Simmons v. Lockhart

• Decision Date: 18 March 1987
• Docket Number: No. 86-1177,86-1177
• Parties: Thomas SIMMONS, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction, and Steve Clark, Attorney General, State of Arkansas, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 504

814 F.2d 504

Thomas SIMMONS, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction, and Steve Clark, Attorney General, State of

Arkansas, Appellees.

No. 86-1177.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 12, 1986.

Decided March 18, 1987.

Ron Heller, Little Rock, Ark., for appellant.

Jack Gillean, Asst. Atty. Gen., Little Rock, Ark., for appellees.

Before McMILLIAN and ARNOLD, Circuit Judges, and ARNOLD, ^* District Judge.

ARNOLD, Circuit Judge.

This death-penalty case comes to us on appeal of the District Court's ¹ denial of habeas corpus relief, 626 F.Supp. 872 (E.D.Ark.1985). On the issues presented to us, we affirm the judgment of the District Court.

I.

On January 5, 1981, Larry Price disappeared from his home in Fort Smith, Arkansas. On that afternoon, Jawana Price, his wife, went with her employer and landlord, Holly Gentry, to the Fort Smith Police Department to file a missing-person report. Accompanied by Ray Tate, a Fort Smith detective, they returned to the Price apartment. They were never seen alive again. On the next day, the bodies of Tate, Gentry, and Jawana Price were found in rural Crawford County, a few miles from Fort Smith. All had been shot at close range in the back of the head. The following day, the body of Larry Price was discovered at another Crawford County site, about seven miles distant from the first. He, too, had been shot in the back of the head.

The only firm lead which the police uncovered was that Thomas Simmons, the present petitioner, had deposited into his bank account on January 5 a check drawn on a closed account of Larry and Jawana Price. On January 6, Simmons went to the bank and sought to retrieve the check. An alert teller noticed that the name "Larry Price" was the same as that of the person reported as missing, and promptly notified the police. Simmons was taken into custody at his workplace and eventually was charged with four counts of capital murder.

At trial the State relied primarily on circumstantial evidence. The physical evidence in the case was not conclusive of Simmons's guilt. Although numerous fingerprints were taken from the Price apartment and the Tate car, none of them matched to Simmons. Some forensic evidence was consistent with (but not conclusive of) Simmons's guilt, while some was inconsistent with the State's theory. Circumstantial evidence in the case included testimony which placed Simmons at or near the Price apartment during the day of the murders and testimony that he was seen watching Jawana Price's car at her place of employment late that afternoon. One witness for the State testified that he had observed two bound men and a woman being taken from the Price apartment during the evening of January 5 and forced into a car resembling Detective Tate's unmarked car by a man whom the witness identified as Simmons. Although the witness testified that he was unconcerned at the time, he later came forward and made a statement to the police.

On August 19, 1981, the jury found Simmons guilty of four counts of capital murder. The jury then fixed punishment at death on all counts.

The Arkansas Supreme Court affirmed the conviction and sentence, Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (Smith, J.), cert. denied, 464 U.S. 865, 104 S.Ct. 197, 78 L.Ed.2d 173 (1983). When the Arkansas Supreme Court refused to stay his execution pending the filing of a petition for post-conviction relief, 280 Ark. 542, 659 S.W.2d 758 (1983) (per curiam), Simmons commenced this action in the District Court, which did issue a stay.

II.

Although Simmons raised seven grounds in support of his petition in the District Court, only four of them are before us now. ²

A.

Simmons's trial counsel moved for a change of venue to a county outside the 12th Judicial Circuit. This Circuit contains two counties: Sebastian (in which the abductions had taken place), a predominantly urban county with seats at the City of Fort Smith and the Town of Greenwood; and Crawford (in which the murders were charged to have occurred), a mainly rural county with its seat at Van Buren, approximately five miles from Fort Smith. Simmons argued that since crimes were alleged to have occurred in both counties, and since news reporting from the Fort Smith metropolitan area blankets the entire circuit, a change of venue from Crawford County to Sebastian County would be meaningless. The trial court, after hearing testimony and argument which cover over 500 pages of the trial record, ruled that under the Constitution and statutes of Arkansas, it had no power to transfer the venue of a criminal proceeding from the judicial district or circuit in which the charges had been filed. In the alternative, the court ruled that even if it had the authority to grant such a motion, the evidence did not support a conclusion that the pretrial publicity had been so overwhelming and prejudicial as to deny the defendant a fair trial in Crawford County. Tr. 1577-79. The motion was therefore denied.

The trial court relied in part on the Constitution of Arkansas, Art. 2, Sec. 10, which reads as follows:

Sec. 10. Rights of accused enumerated--Change of venue.--In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by impartial jury of the county in which the crime shall have been committed; provided that the venue may be changed to any other county of the judicial district in which the indictment is found, upon the application of the accused, in such manner as now is, or may be, prescribed by law; and to be informed of the nature and cause of the accusation against him, and to have a copy thereof; and to be confronted with the witnesses against him; to have compulsory process for obtaining witness in his favor, and to be heard by himself and his counsel.

Although in the early days there were cases in which this section was construed as an absolute bar to any change of venue outside the district, see, e.g., State v. Flynn, 31 Ark. 35 (1876), the Arkansas Supreme Court has more recently sought to interpret the limiting clause of the section in favor of the right of the accused to trial by an unbiased jury. In Cockrell v. Dobbs, 238 Ark. 348, 381 S.W.2d 756 (1964), the Court stated that:

The important declaration in this section of the constitution is its guaranty of a trial by an impartial jury. A change of venue is a means to that end. The subordinate directive that it be to another county in the district is also for the protection of the accused, for it prevents the trial from taking place at an unreasonable distance from the county where the offense was committed.

Id. at 350, 381 S.W.2d at 757. In Cockrell, the defendant was being tried in a single-county judicial circuit. It had been shown that he could not receive a fair trial in that county. The Court therefore ordered a change of venue to another circuit, despite the apparent limitation in Section 10, so as not to violate the core of that section, which is the guarantee of an impartial jury. See also Swindler v. State, 264 Ark. 107, 569 S.W.2d 120 (1978), in which a capital-murder conviction was reversed because of intense and prejudicial pretrial publicity in the local area. Upon remand, venue was transferred out of the Twelfth Circuit (which at that time contained only Sebastian County) to an adjacent county in another circuit. Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979), cert. denied, 449 U.S. 1057, 101 S.Ct. 630, 66 L.Ed.2d 511 (1980).

Subsequently, the Arkansas Supreme Court has ruled, in two other spectacular Crawford County capital-murder cases, that if prejudicial pretrial publicity has made a fair trial impossible in any of the counties in the judicial circuit, then the venue must be moved outside the circuit. Compare Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982) ("The court could have granted a change of venue to any county adjacent to Crawford County, either inside or outside of the Twelfth Judicial District," id. at 363, 642 S.W.2d at 868, citing Cockrell, supra ), with Anderson v. State, 278 Ark. 171, 644 S.W.2d 278 (1983) ("[I]f the trial court determines a defendant cannot receive a fair trial, then it has the power to remove the case to some county in an adjoining judicial circuit," id. at 178, 644 S.W.2d at 281.). The Anderson Court stated that "[i]f the question is whether a defendant can or cannot receive a fair trial, as required by the fourteenth amendment to the United States Constitution, then conflicting law must give way to a defendant's right to due process." Id. at 177-78, 644 S.W.2d at 281 (footnote omitted). The Arkansas Supreme Court has striven to limit the strict language of Section 10 so that it would be consistent with the Sixth and Fourteenth Amendments of the federal Constitution. If, in the instant case, the trial court had relied solely on a strict reading of Section 10 without looking to whether the defendant could receive a fair trial in the local area, then it would have committed reversible error.

However, the trial court gave, as its alternative reason for denying the motion, its conclusion that "I do not believe that the publicity concerning this case has been so overwhelming and prejudicial that the defendant could not receive a fair trial in Crawford County." Tr. 1578-79. This is an essentially factual conclusion by the State trial court. It is entitled to a presumption of correctness in federal habeas corpus proceedings unless the State court hearing was procedurally defective, see 28 U.S.C. Sec. 2254(d)(1)-(7), or unless the federal court, upon considering the record as a whole, concludes that the factual determination was not fairly supported by the record. 28 U.S.C. Sec. 2254(d)(8).

In the hearing on the change-of-venue motion, Simmons offered abundant evidence of the extent and tone of pretrial publicity. The murder of four people including a police officer would be a major news event in any...