Simmons v. Com., 85-SC-629-MR
| Decision Date | 21 January 1988 |
| Docket Number | No. 85-SC-629-MR,85-SC-629-MR |
| Citation | 746 S.W.2d 393 |
| Parties | Beoria A. SIMMONS, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Beoria A. Simmons, Jr. was convicted of three murders, three rapes, one attempted murder, one attempted rape, and four kidnappings. He was sentenced to death for each of the three murders, to death for three of the kidnappings, 20 years' imprisonment for the attempted murder, 10 years' imprisonment for attempted rape, and 20 years' imprisonment for the other kidnapping charge. All of the charges arose from assaults perpetrated upon four women in Louisville, Kentucky.
Sixteen-year-old K.D. Heaton was accosted by appellant at gunpoint as she stood waiting for a bus. He took her in his automobile to Iroquois Park in Louisville and attempted to rape her. She had a knife in her possession and slashed appellant repeatedly and made her escape. The attempted rape was reported to the police.
Meanwhile, the appellant had sought medical assistance at a hospital, where he claimed to have been injured by people who robbed him. The police, however, suspected a connection between the stab wounds suffered by appellant and the stabbing of an assailant which was reported by Ms. Heaton.
Appellant's pistol was recovered from his automobile, and ballistic tests showed that this weapon had been used in three earlier murders. The appellant gave a statement in which he admitted having sexual intercourse with the three other women and that he killed each of them. He also permitted his statement of his involvement in these crimes to be tape recorded.
In each of the three murders committed on separate occasions prior to the assault on Ms. Heaton, the appellant stated that he picked up the victims on the street, that they rode around in his car for a while, and later engaged in consentual sexual relations, after which each of the women demanded money. In the ensuing argument about money, he shot each of the three victims, causing their death, and he left the bodies of two of them in a city park and the other was left lying where she was shot, in the vicinity of River Road in Louisville.
Appellant has a Bachelor's Degree in social work, and at the time of his arrest was employed as a counselor at a halfway house for parolees.
Appellant has asserted 34 grounds for reversal of his conviction in his brief and addressed some of those issues at oral argument. This opinion will focus on all of the issues addressed by appellant's counsel at oral argument plus others presented in the brief which, in the opinion of this court, merit discussion. Allegations of errors which we consider to be patently without merit will not be addressed herein.
Appellant first contends that he was denied due process of law when the trial court overruled his motions to advance funds for psychological and psychiatric examination and assistance. Appellant requested that funds be provided for the appointment of two independent psychiatrists, two independent psychologists, and one licensed clinical social worker to examine him.
An indigent defendant is entitled to reasonably necessary expert assistance. Young v. Commonwealth, Ky., 585 S.W.2d 378 (1979); K.R.S. 31.110. K.R.S. 31.185 provides that an indigent defendant is entitled to use state facilities for the evaluation of evidence. On a joint motion the appellant was transferred to the Kentucky Correctional Psychiatric Center for evaluation. He was examined there by a Dr. Ravani, a psychiatrist, and consulted with a social worker, Cheryl Stuckey.
Dr. Ravani reported to the court that appellant was competent to stand trial. Both Dr. Ravani and Cheryl Stuckey testified in behalf of appellant: Dr. Ravani at the guilt phase of the trial and Cheryl Stuckey at both the guilt and the sentencing phase. Although he was employed by the state, Dr. Ravani testified that he was not employed by the prosecution and that his only job was to give an independent answer concerning the mental status of the persons examined by him. He also stated that in a majority of cases referred to him, his report showed some degree of mental deficiency.
The appellant failed to show a necessity for the expert assistance he requested. He stated in general terms only that expert assistance was needed to prepare adequately for trial and possible sentence hearing. He did not state the names of any doctor or social worker that he desired to examine him, nor did he furnish any estimate of the cost. He further did not state what he expected to show or in what manner the requested assistance would be of any specific benefit to him. He made no challenge to the competency of Dr. Ravani or that Dr. Ravani was uncooperative with him or was not available for consultation.
The only objection that he made to the examination by Dr. Ravani pursuant to the court order, was that the information given to Dr. Ravani would not be treated with confidentiality, but, nevertheless, he used Dr. Ravani as a witness in his behalf. The Commonwealth presented no psychiatric evidence in support of any aggravating factor in these capital murder cases. See, Bowden v. Kemp, 767 F.2d 761 (11th Cir.1985).
The trial courts are not required to provide funds to defense experts for fishing expeditions. Hicks v. Commonwealth, Ky., 670 S.W.2d 837, 838 (1984). There is no violation of due process in the refusal to provide for expert witnesses where the defendant offers little more than an undeveloped assertion that the requested assistance would be beneficial. Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).
We hold that appellant was provided competent expert psychiatric and social worker assistance, which he utilized in his trial, and that he failed to establish that further expert assistance was reasonably necessary for his defense.
The appellant has postulated numerous alleged errors in the jury selection process. He contends that some jurors were improperly excused for cause when they expressed reservation about their ability to vote for the death penalty and that others were not excused for cause upon challenge by appellant when they indicated that they were prone toward the death penalty and could not consider the full range of punishment provided by law.
The determination of whether to exclude a juror for cause lies within the sound discretion of the trial court. We do not reverse the action of the trial court in the exercise of its discretion unless the exercise of discretion is clearly erroneous. Caldwell v. Commonwealth, Ky., 634 S.W.2d 405, 407 (1982).
We have read the entire transcript of the voir dire of the prospective panel members of whom appellant makes complaint. In the case of the jurors excused for cause by reason of their feelings about the death penalty, their testimony was such as to convince any reasonable person that they could not, under any circumstances, in any case whatever, vote to impose the death penalty. Because of this they would be prevented or substantially impaired in their ability to perform their duties as jurors, and it was not an abuse of discretion to strike them for cause. Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).
Likewise, some of the jurors indicated their belief in the death penalty in a proper case, but a review of the entire voir dire does not reveal that any would inevitably impose the death penalty in every case nor that they could not consider the entire range of penalties established by law. The failure of the trial court to discharge those jurors for cause was not an abuse of discretion.
One juror, during voir dire, indicated that, if justified, he could impose the death penalty. Some time later during the jury selection process this juror appeared before the judge and stated that upon reflection he believed in the death penalty but did not believe that he could impose it in any case. The court then asked the juror if he would be unable, under any circumstance, to impose the death penalty, and the juror replied that he thought he could not. This juror was excused for cause, and we find no abuse of discretion in the trial court's action.
Another juror, during preliminary voir dire questioning by the court, answered affirmatively that he could not, under any circumstance, consider imposing the death penalty. This juror was excused for cause. The appellant objected because he was not afforded an opportunity to rehabilitate the juror. The examination of jurors by counsel is a privilege, not a right. RCr 9.38. The juror's response to questions of the trial judge was unequivocal, and we see no abuse of discretion on the part of the trial court.
Appellant contends that one prospective juror should have been discharged for cause for the reason that she was biased against the defense of insanity or mental illness. This juror's response to voir dire questions showed her to be a mature and intelligent person who believed that insane persons are not responsible for their acts and that mental illness should be considered in mitigation of punishment. Although she expressed a personal feeling that insanity should not be a complete defense to crime, she did not state that she would be unable to follow the law and the instructions of the court, or that she could not in this or any other case be able to return a verdict of not guilty by reason of insanity. We find no error in the refusal to discharge this juror for cause.
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