Simmons v. Lockhart

• Decision Date: 21 March 1989
• Docket Number: No. PB-C-83-411.,PB-C-83-411.
• Citation: 709 F. Supp. 1457
• Parties: Thomas SIMMONS, Petitioner, v. A.L. LOCKHART, Director of the Arkansas Department of Correction, Respondent.
• Court: U.S. District Court — Eastern District of Arkansas

709 F. Supp. 1457

Thomas SIMMONS, Petitioner, v. A.L. LOCKHART, Director of the Arkansas Department of Correction, Respondent.

No. PB-C-83-411.

United States District Court, E.D. Arkansas, Pine Bluff Division.

March 21, 1989.

Jack Gillean, Asst. Atty. Gen., State of Ark., Little Rock, Ark., for petitioner.

Jim Hunter Birch, Little Rock, Ark., for respondent.

MEMORANDUM OPINION

HENRY WOODS, District Judge.

PRELIMINARY STATEMENT

Thomas Winford Simmons was tried in the Circuit Court of Crawford County, Arkansas for the murder of a married couple, their landlord and a Fort Smith, Arkansas police officer. In unanimously affirming his conviction, the Supreme Court of Arkansas stated, "We know of no other case involving multiple murders so cold blooded, so brutal, so lacking in any trace of humanity, as those committed by Simmons." Simmons v. State, 278 Ark. 305, 645 S.W.2d 680, 688 (1983).

This limited remand by the Court of Appeals for the Eighth Circuit, 856 F.2d 1144, focuses principally on the defense afforded Simmons by trial counsel John W. Settle, the public defender, along with the role of a prosecution witness, James Davis. Although the testimony of Davis was significant, there was other testimony, very substantial in nature, which connected Simmons with the crime. The testimony is recited in detail in the decision of the Supreme Court of Arkansas, supra, and in the opinion of the Court of Appeals affirming denial of the original habeas petition. Simmons v. Lockhart, 814 F.2d 504 (8th Cir.1987).

Davis' testimony at the Simmons trial was summarized as follows by the Supreme Court of Arkansas:

James Davis, a neighbor across the street, saw a man (evidently Officer Tate) arrive at the Prices' apartment complex in a blue car. The man looked briefly at the truck and then went into an apartment. Shortly after that another man made three trips from an apartment to the blue car. The first time he brought out a man whose hands were tied behind his back and had him get in the blue car. Next, he brought out another man, also tied, who was put in the car. Third, he brought out a woman, who was crying, and drove off with all three.

645 S.W.2d at 683.

Davis was not unknown to Settle at the time of the Simmons trial, August 5-19, 1981. On December 30, 1980 Settle had been appointed to represent Davis on a felony charge of theft by deception. At the time he was appointed in municipal court, Settle talked to Davis for about two minutes. (TR 86). In a second conversation, occurring between December 30, 1980 and January 8, 1981, Settle learned about Davis' record as a Vietnam veteran and that he was taking Lithium. (TR 87). He may have learned that Davis had a service-connected discharge, but he does not recall obtaining this information from him. (TR 102). On cross-examination of Davis at the Simmons trial, Settle questioned Davis about his court martial in Vietnam, but does not recall now where he obtained this information. (TR 139).

He also cross-examined Davis about a conviction in Memphis, Tennessee. Settle is "almost sure" he obtained this information through discovery. (TR. 139). He had an FBI rap sheet on Davis. (TR. 139; PX 6). This could well have also been the source of information concerning the Vietnam court martial. Settle does not recall whether he knew about Davis' treatment in the VA Hospital at Fayetteville. Although Settle does not recall talking to Davis between December 30, 1980 and January 8, 1981 (TR. 86), a memo (PX 3) which he dictated indicated that he did talk to Davis once during this period. (TR. 87).

The murders for which Simmons was charged occurred Monday, January 5, 1981. Simmons was apprehended on Tuesday, January 6, 1981 when he attempted to cash a forged check on a victim's bank account. 645 S.W.2d at 683. Settle as public defender assumed Simmons' defense on Tuesday, January 6, and represented him at a lineup on January 7. Simmons' picture appeared in the paper on either January 7 or 8 (TR 93).

On January 8, Davis came to Settle and related the story reflected in his testimony, summarized supra. Settle sent him to the police (PX 6; TR 298) and did considerable soul searching as to whether he could continue to represent Simmons in view of the information from his other client, Davis, about his war record and the fact that he was taking Lithium for nervousness. Settle wrote himself a memorandum about these doubts. (PX 3). While it is by no means clear, the reference to Davis' war record may have been the court martial in Vietnam although Settle doesn't specifically recall, as noted supra. After giving the matter thought, Settle concluded that he could continue to represent Simmons without impropriety. He justified his decision because the information obtained from Davis was discoverable and could be obtained from independent sources. (TR 99-100, 101). Mr. Settle also thought that it was his duty as public defender to handle the more serious case, if there was a possibility of conflict. (TR 108). He had extensive contacts with Simmons, involving two interviews on Tuesday, January 6, a lineup on Wednesday, January 7, and probably an interview on Thursday, January 8. (TR 109). "I was already deeply involved in the case." (TR 109). Mr. Settle testified that he did not feel that there was a conflict. "I did not as this case went to trial and I do not at this time." (TR 110). He did not feel that the information he obtained from Davis would inhibit his cross-examination of Davis: (TR 116).

It was not a question of whether or not I could cross examine him on that material. In my view the question was whether or not we wanted to. That was the issue in this matter, not whether or not I felt constrained due to confidences or communications with Mr. Davis.

(TR 116).

The transcript of Settle's cross-examination of Davis (PX 6) discloses a vigorous, even hostile, effort to impeach Davis. Settle used distance, darkness, description and a previous statement to attack Davis' credibility. In addition Settle pushed the exploration of Davis' criminal record to the ultimate and perhaps beyond legal limits. Not only did he bring to the jury's attention Davis' military court martial and a prior criminal conviction for theft by deception in Tennessee (a misdemeanor), but he also managed to introduce evidence of the pending charge of theft by deception of which he had not been convicted.

The main criticism petitioner levels at Settle is his failure to bring out the fact that Davis was taking Lithium and that he was being treated for depression by the Veterans Administration on an outpatient basis. Lithium is a widely used drug to counter manic-depressive tendencies. It is very possible that one or more members of the jury or their families was taking Lithium or had taken it in the past. Mental illness and mental problems are common in our society and anti-depressant drugs are widely used. Petitioner seems to suggest that Lithium could have caused Davis to entertain deliriums and to hallucinate and imagine the incident about which he testified. However, with regard to the reactions or side effects of Lithium or any other drug, the final word is contained in the Physician's Desk Reference Book where the manufacturers of all ethical drugs are required by the Federal Drug Administration to set out all reports of adverse reactions and side effects of their products. Nowhere in the entry for Lithium is there any inclusion of hallucinations or similar neurological effects. The only neurological side effects listed are as follows: "cases of pseudotumor cerebri (increased intracranial pressure and papilledema) have been reported with Lithium use. If undetected, this condition may result in enlargement of the blind spot, constriction of vision and eventual blindness due to optic atrophy. Lithium should be discontinued, if clinically possible if this syndrome occurs." Under miscellaneous side effects are "fatigue, lethargy, transient scotoma,¹ dehydration, weight loss, and tendency to sleep." Patients are to be cautioned "about activities requiring alertness (e.g. operating vehicles or machinery)."

Petitioner has produced a copy of Davis' hospital records at the Veterans Administration facility in Fayetteville, Arkansas for an in camera review. Since Davis is not available and his whereabouts are unknown, there is a question of physician/patient privilege involved in the introduction of Davis' medical records. Because this proceeding has life and death implications, the balance tips in favor of admission of these records into evidence as PX 1. However, the portions of the record after August 19, 1981 (date the trial ended) are not relevant. The earliest entry in these records is May 8, 1980 and the latest is September 28, 1988. Petitioner contends that Settle should have obtained the records and used them during the trial and that his failure to do so constituted dereliction of duty. There is no positive evidence that Settle knew of the existence of these records. (TR 141).

The petitioner contends that the information that Davis was taking Lithium should have alerted him to search for these records. This raises the question as to whether a defendant's counsel is obligated to search out the medical histories of all the state's witnesses in a criminal case. Assuming such a duty, a more serious problem exists for this petitioner with regard to these records. During the pertinent period (prior to August 1981), there is nothing to indicate any problem with perception, hallucinations, orientation or memory. In a neuropsychiatric examination of May 8, 1980, the physician (a psychiatrist) concluded as follows: "No perceptive disturbance or ideas of reference are brought out. He is not suspicious or hostile and there are no paranoid ideas. He realizes that he has difficulty controlling his emotions and generally avoids other people. He is well oriented and his memory is intact." (PX 1, p. 47 of attachment).

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