Simmons v. State

• Decision Date: 07 February 1983
• Docket Number: No. CR,CR
• Citation: 645 S.W.2d 680,278 Ark. 305
• Parties: Thomas Winford SIMMONS, Appellant, v. STATE of Arkansas, Appellee. 82-18.
• Court: Arkansas Supreme Court

Page 680

645 S.W.2d 680

278 Ark. 305

Thomas Winford SIMMONS, Appellant, v. STATE of Arkansas, Appellee.

No. CR 82-18.

Supreme Court of Arkansas.

Feb. 7, 1983.

Rehearing Denied March 14, 1983.

John W. Settle, and Garner Taylor, J., Fort Smith, for appellant.

Steve Clark, Atty. Gen. by Leslie M. Powell, Asst. Atty. Gen., Little Rock, for appellee.

GEORGE ROSE SMITH, Justice.

Thomas Winford Simmons, age 37, was sentenced to death for capital murder, in that he shot four persons in the back of the head, one of them while handcuffed and helpless. Simmons, represented in the trial court and here by the public defender, argues 22 points for reversal. We find no prejudicial error of any kind. For convenience we discuss Point 16 first, the sufficiency of the evidence, requiring a narrative of the facts, then the three points on which counsel place particular emphasis, and finally the other 18 points, grouping them when appropriate.

First, a narrative of the evidence. Simmons was charged with having caused the deaths of (1) Larry Price in the course of kidnaping, (2) police officer Ray Tate acting in the line of duty, and (3 and 4) Jawana Price (Larry Price's wife) and Holly Gentry in the course of kidnaping, robbery, and rape. We detail the events as they occurred, beginning on Saturday, January 3, 1981, and continuing through the following Wednesday. We should note at the outset that Simmons has made no statement about the homicides either to the investigating officers or at the trial, resting throughout on the plea of not guilty and his right to remain silent.

Holly Gentry, who was Jawana Price's employer, asked her to sell his car for him, a maroon-silver LTD. The Prices advertised the car for sale. On Saturday afternoon a witness who lived next to the Prices' apartment in Fort Smith saw a man drive up in a small yellow car. (Simmons's car was a small yellow Toyota.) The witness, who noticed the stranger looking at the LTD, told him that the Prices were away for the weekend and suggested that he come back during the week.

Early Monday morning a man came by to look at the LTD, according to statements made by Jawana Price when she went to the police that afternoon to report that her husband was missing. A neighbor testified that he saw Simmons, whom he identified at a lineup and in court, looking at the LTD with Larry Price. According to Jawana's report, her husband and the visitor took a test drive together and were drinking coffee in the apartment when Jawana left for work in her own car.

At some time during the morning Simmons took to his branch bank in Van Buren a $350 check drawn on a Clarksville account that had been closed by the Prices some months earlier. Simmons received $50 in cash and deposited the rest. The Price signature on the check was a forgery. The jury could have concluded that Simmons kidnaped Larry Price, killed him by shooting him in the back of the head, and hid the body in a wooded area not far from Simmons's home at Kibler in nearby Crawford county. The fact that blood from Price's head wound dripped into water just below where his body was hidden indicated that the wound was still bleeding when the body was concealed. The medical examiner testified that Price's death could have occurred during the day at any time after 8:00 a.m.

That afternoon the witness Seaton, working at a parking lot used by Jawana, noticed a man in a yellow Toyota watching Jawana's car for more than an hour. Seaton wrote down the license number, which was shown to be Simmons's number, but Seaton did not report the incident to the police until the next day, Tuesday.

Larry Price failed to meet Jawana for lunch as they had planned. She also learned that he did not show up for work that day. When she and Gentry left work that afternoon they drove in Gentry's pickup truck to police headquarters, where they reported Larry to be missing. They talked to Officers Davis and Tate. At about 6:00 p.m. Gentry and Jawana left the police station to go to the Prices' apartment, and Officer Tate left in his unmarked blue police car to meet them there. Shortly before that a man not clearly identified had engaged a taxicab and had been dropped off at the Prices' apartment complex.

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. Officer Tate had reported in by radio when he arrived at the apartment complex; he was never heard from again. Late that night Tate's police car and Gentry's LTD were found parked in public areas in or near Fort Smith.

When the branch bank opened on Tuesday morning, Simmons was waiting to get in. He asked for the return of the check he had deposited the day before. The two bank employees connected the name on the check, Larry Price, with the missing-persons account that was already extensively in the news. They mentioned that fact to Simmons, but said they did not have the check at the branch. When Simmons drove away his license number was written down by one of the bank employees, whose husband was a police officer. She at once called her husband about the incident. A quick investigation traced the number to Simmons, who had given his name and address at the bank. It was also learned that Simmons was on parole from a federal prison (a fact not disclosed to the jury), that he worked at a sand and gravel company near Fort Smith, that he had not been at work on Monday, having called in to say that he had an accident in his car, and that he was at work on Tuesday.

Several officers went out to the sand and gravel company to interview Simmons. According to them, he was cooperative and readily agreed to accompany them to headquarters for questioning about the check. At a suppression hearing the officers testified that Simmons explained he had encountered Larry Price on Sunday night and had received the check as payment for a sale of marihuana. He encountered Price at a later meeting on Sunday night, and Price said the check was bad. When the officers mentioned that Price was missing, Simmons refused to make any further statement and asked for an attorney. The officers then placed Simmons under arrest for violation of his parole, ceased their questioning, and called the public defender to represent him. None of the testimony about Simmons's explanation was heard by the jury.

At about three o'clock on Tuesday afternoon a farmer working near Kibler, where Simmons lived, happened to find the bodies of Tate, Gentry, and Jawana Price, piled together in a big tractor tire in a field and partly concealed. Tate's hands were fastened behind his back with his handcuffs. On the basis of their total information the police charged Simmons with the murders at about 5:40 p.m. Larry Price's body was found by a deputy sheriff in the woods near Kibler on Wednesday, as a result of a telephone call.

Scientific testimony and other evidence provided much additional proof of Simmons's guilt. As to robbery, missing from the three bodies were the three men's wallets and Jawana's purse. As to rape, Jawana's body had slight bruises in the genital area, her pantyhose were on wrong side out, a belt was not through all its loops, and semen in her vagina matched Simmons's blood type but not that of Larry Price. A pistol lying under the three bodies was positively identified as the murder weapon. Its serial number had been filed down, but the number could be determined. That pistol had been bought by a neighbor of Simmons's, who had lost it in the woods some two years earlier and had reported the loss to the police. From the proof the jury could have found beyond a reasonable doubt that a hair from Simmons's body was discovered in Officer Tate's shirt and another hair from Simmons's body was found in Larry Price's sock. We have no doubt about the sufficiency of the evidence, circumstantial though it was.

Point 1 assigns error in the trial judge's denial of a requested change of venue. There was, understandably, much media publicity during the first few days, when the four victims were missing and after their bodies were found. Later the news coverage was not especially extensive. The affidavits submitted with the motion were conflicting, with the State's outnumbering those of the movant's. Most important, the twelve jurors and two alternates, without exception, were accepted as "good for the defense." More than seven months elapsed between the original publicity and the trial. Only six of about sixty prospective jurors were excused because of their beliefs about Simmons's guilt. We agree that Simmons would have been entitled to a change of venue beyond the two-county circuit had the proof required a change, but it did not. The court was right in denying the motion. See Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982).

Point 2 questions the denial of motion in limine by which defense counsel sought a ruling that if Simmons chose to testify the State could not impeach him by evidence of previous felony convictions if counsel first offered to concede that Simmons had previously been convicted of one felony.

Neither branch of counsel's twofold argument can be sustained. Primarily, it is argued that when counsel admitted one felony conviction, Simmons would then be effectively discredited and could not be further impeached by proof of other convictions (of which he had several). Neither the common law nor Uniform Evidence Rule 609 supports the argument. The common law permitted impeachment by proof of any felony conviction; Rule 609 contains...