Simms v. State
| Decision Date | 05 January 1972 |
| Docket Number | No. 3917,3917 |
| Citation | 492 P.2d 516 |
| Parties | George A. SIMMS, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Fagan & Fagan, and Thomas J. Fagan, Casper, for appellant.
Clarence A. Brimmer, Atty. Gen., Frederic C. Reed and Richard A. Stacy, Asst. Attys. Gen., Cheyenne, for appellee.
Before McINTYRE, C. J., and PARKER and McEWAN, JJ.
Defendant, George A. Simms, charged under § 6-54, W.S.1957, with the February 11, 1969, premeditated murder of Capp James Bird, was tried by jury, found guilty of second degree murder, and has appealed. He charges some eleven errors were committed by the trial court's:
1. Failing to discharge the jury panel challenged by the defendant and to empanel one that contained 'a fair portion of Negro jurors based upon the proportion of the Negro population in the County';
2. Ruling that if defendant invoked his right to not have his wife, Norma Jean Simms, testify against him the State would be allowed to introduce a transcript of her testimony taken at the preliminary hearing-when she was not his wife;
3. Improperly instructing the jury;
4. Refusing certain instructions offered by defendant;
5. Permitting misconduct of State's counsel;
6. Admitting a dummy with arrows purporting to show the path of bullets through deceased's body;
7. Admitting into evidence broken eyeglasses not previously delivered to defendant for inspection;
8. Allowing the prosecution during direct examination to use a statement given by Norma Jean Simms and the transcript of her preliminary hearing testimony;
9. Refusing to allow testimony in reference to marijuana found in the bedroom deceased was occupying prior to his death;
10. Not allowing defendant's medical witness to testify as to the direction the deceased was moving when struck by the bullets and the sequence in which the bullets were fired;
11. Not admitting into evidence a statement of defendant taken by the police department on the night of the homicide.
In addition to these specific criticisms, it is argued generally that the verdict was not sustained by sufficient evidence and was contrary to law. Defendant admitted that he killed decedent but testified at the trial, and his counsel now accordingly contends, that he was acting in self-defense.
Although the trial was extended and the evidence voluminous, the relevant facts are uncomplicated and largely undisputed:
About 5:30 p. m. on February 11, 1969, in response to a telephone call, a police officer went to 1016 North Elma Street, Casper, and observed defendant, a black man, in the driveway, holding a .38 caliber Smith and Wesson revolver in the air. The officer asked for and received the gun, removing five empty cases from it. Investigating officers went inside and found deceased, a white man (clad in pajama tops, bath robe, 1 and slippers), lying on the bedroom floor, with ten bullet holes in his body. A loaded revolver belonging to Mrs. Simms was lying beside him. No fingerprints were on it. Testimony introduced at the trial showed that this gun had not been fired recently but that the one surrendered by defendant was the weapon which killed the deceased. The doctor conducting the autopsy testified there had been five bullets fired, one having made three holes in the body of deceased, one having made one, and the other three each having made two. Only one of the shots was fatal, severing the aorta, which would have dropped blood pressure to zero almost instantly. On the evening of the homicide defendant made a statement to the officers. At the time of the charged offense, the residence at 1016 North Elma Street was in the name of Norma Jean Simms, a black woman, to whom defendant had been married from 1960 to 1966 when they had been divorced. (They were remarried between the time of the preliminary hearing and the trial.) During their marriage the two had owned the residence jointly, and at the time of the offense charged owned certain business property in the city. Despite the divorce, they had continued to live together as husband and wife until January 1969. On February 10, 1969, defendant tried to telephone Mrs. Simms from Tacoma, Washington, but was unable to contact her. He called again from Spokane, leaving a message for her to the effect that he would try to be in Casper the next day about 5 p. m. After his arrival in Casper on the 11th at about 4 p. m. he spoke with Mrs. Simms over the phone-apparently regarding the sale of their Casper business property because of his financial situation-and was assured by Mrs. Simms that despite the fact Capp James Bird was there defendant might come to her home. He thereafter went to her residence, took out a .38 caliber Smith and Wesson revolver from his car (he indicated at the trial that this was done because he was fearful of deceased), knocked, was admitted, and went inside. There followed an altercation, the nature of which is somewhat disputed, and defendant fired several shots, which resulted in the death of decedent. No one except defendant and deceased saw what occurred immediately preceding the fatal shot as Mrs. Simms had run from the house before she heard shots fired.
Shortly before the trial, defendant filed a challenge to the array, charging that: the list of jurors selected was taken primarily from that part of the county tax assessment rolls containing only the names of persons owning real property with virtually none selected from that part of the county rolls containing the names of persons owning personal property; the ownership of real property in the county by negroes was negligible; a major portion of the few negroes appearing on the rolls as real property owners was not included in the list from which juries were empaneled; this resulted in the entire negro population of the county being arbitrarily excluded from jury service although that race comprised approximately 5 percent of the county's total population; and defendant had a right to be tried before a jury of his peers. As support for this motion he presented affidavits of (1) one Devereaux, a black electrical engineer and housing chairman for the Wyoming-Colorado Conference of the NAACP, as to affiant's estimate of the population of the county, and (2) defendant's counsel to the effect that the ownership of real property by negroes was negligible, that typical of the failure to include negro owners of real property who appear on the assessment rolls but do not appear on the list of trial jurors were four persons, whom he named; that he had made personal investigation and inquired into procedure of compiling the list from which jurors were chosen to serve in the county, which study disclosed that the lists from which the jury panels were chosen came primarily from lists containing the names of persons owning real property with virtually none containing those who owned personal property only, that for a period of approximately thirteen years there had been a total of approximately three negroes selected to serve on jury panels in the county, that there were none on the existing panel, that none of the official district court personnel who would be involved in the trial of the defendant were negroes, and that the list of trial jurors from which the existing and previous jury panels were chosen did not include any persons within the county who did not show on the tax assessment rolls as the owners of property, real or personal, resulting in the entire class of nonproperty owners being excluded from jury service within the county.
The State countered this with affidavits from the assessor and clerk, the former stating that in accordance with his duties he obtains information as to qualifications for jury service from individual county assessment schedules and makes and certifies lists of trial jurors from the information obtained to the county clerk, who in turn deposed that she receives these lists and deposits each name thereon in the official jury box. Concerning the procedure of drawing juror names, the bailiff testified the names are placed in a bin or container that is rotated to mix them and the clerk draws them by lot until the desired number of jurors is obtained. Questioned about the number of negroes on the juries during the past the bailiff said that in the thirteen years he had served he remembered three or possibly four negroes who had been on the jury.
Numerous cases are cited by counsel as supporting the view that the challenge to the array should have been allowed. We find no occasion to reverse the trial court, which stated informally, 'I am not satisfied that the assessor and officers haven't followed in good faith the statutory requirements.' We discussed the question of challenges to the array in the case of Lofton v. State, Wyo., 489 P.2d 1169, 1171-1172, where incidentally Lofton used certain of the affidavits and supporting information on which defendant here relies for reversal on this point. As we there explained, study of the cited cases upon analysis shows that wherever the challenge has been recognized it has stemmed from evidence of systematic and intentional exclusion of some group and not merely from the fact that there are numbers of a group in the community and a lack of their members on the jury array. More importantly, we noted in Lofton, 489 P.2d at 1172, as we do here, the unfortunate method by which the attack on the jury array was launched, i. e., without any specific information as to numbers or persons eligible for jury service and solely on approximations, opinions, and recollections. Conjecture can have no part in such challenges and specific evidence, here lacking, is essential to establish a prima facie case of exclusion. 2
When the State announced that it would call Norma Jean Simms as a witness, a colloquy occurred in...
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