State v. Simmons, 77439

• Decision Date: 30 September 1997
• Docket Number: No. 77439,77439
• Citation: 955 S.W.2d 752
• Parties: STATE of Missouri, Respondent, v. Willie SIMMONS, Appellant.
• Court: Missouri Supreme Court

Page 752

955 S.W.2d 752

STATE of Missouri, Respondent, v. Willie SIMMONS, Appellant.

No. 77439.

Supreme Court of Missouri En Banc.

Sept. 30, 1997.

As Modified on Denial of Rehearing Nov. 25, 1997.

Janet M. Thompson, Asst. Public Defender, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for Respondent.

LIMBAUGH, Judge.

A jury convicted Willie Simmons of the first degree murder of Leonora McClendon and sentenced him to death. The postconviction court overruled Simmons' Rule 29.15 motion after an evidentiary hearing. This Court has jurisdiction of the appeals. Mo. Const. art. V, sec. 3. We affirm the judgments.

I. FACTS

Simmons was charged with the murder of Leonora McClendon in the second count of a two-count indictment. The first count charged Simmons with the murder of Cheri Johnson. Simmons was originally tried for both counts in the same proceeding and was found guilty on both counts. This Court overturned those convictions on the basis that the two murder charges should not have been tried together. State v. Simmons, 815 S.W.2d 426 (Mo. banc 1991). On remand, Simmons was first tried for the murder of Cheri Johnson and once again found guilty. He was then tried and convicted in the case at hand for the murder of McClendon.

The evidence at trial, which we review in the light most favorable to the verdict, State v. Storey, 901 S.W.2d 886, 891 (Mo. banc 1995), reveals the following:

McClendon's murdered body was discovered in her apartment in St. Louis on October 27, 1987, after neighbors complained of foul odors. She was found lying in her bathtub in an advanced state of decomposition with her ankles and hands bound. A cloth gag had been forced down her throat and was held in place by a cloth tied over her mouth. The medical examiner determined that McClendon died from asphyxiation.

In an initial search of McClendon's apartment, the police found a piece of paper with the initials "JR," which is Simmons' nickname, and Simmons' telephone number written on it. This led the police to interview Simmons on October 29, 1987. In this initial interview, Simmons told the police that he had met McClendon in the last week of August 1987, that they dated one time, that he had not seen her since the one date, and that he had never been to her apartment. On January 3, 1988, Simmons was interviewed by the police in relation to the Cheri Johnson murder and was taken into custody. While performing an inventory search of Simmons' wallet, the police discovered three pawn tickets, one for Fay's Furniture Store that was made out in McClendon's name and was dated July 23, 1987, ¹ and claim checks for a CPI photography lab. Upon presenting the pawn ticket to Fay's Furniture Store, police were told that the ticket was for a watch that had been pawned on July 23, 1987, and that the name on the ticket, Leonora McClendon, designated who had pawned the watch. The police used the claim checks to obtain the photographs from the CPI lab.

In a third interview on January 4, 1988, Simmons told the police that he and McClendon had dated three or four times and that he had been to her apartment three or four times. Simmons was confronted with the prior inconsistent statement he had made to police officers on October 29, and at that point the interview was terminated. Also on January 4, Sharon Wright contacted the police with information about the crime. She told the police that on the night McClendon's body was found Simmons was at her apartment watching television. When they heard a news report about a female body being found in the Lindell Apartments, Simmons said "that he knew the lady, her name was Leonora McClendon, and ... that he believed that her boyfriend killed her." At that point in the news report, the name of the victim had not been released. Wright also turned over several items that Simmons had left in her apartment when he had temporarily stayed with her soon after the murder. These items included ceramic masks, a watch and a jewelry box and were all identified as belonging to McClendon.

During the penalty phase the only witness presented by Simmons was his mother, who testified that she and his family have maintained contact with Simmons and would continue to do so if he were sentenced to life without parole. The State presented four statutory aggravating circumstances and several nonstatutory aggravating circumstances, which were all found by the jury.

II. ALLEGATIONS OF TRIAL COURT ERRORS

A. MOTION TO DISMISS INDICTMENT

Simmons claims that the trial court erred in overruling his motion to dismiss the indictment because his trial for the murder of McClendon violated double jeopardy and collateral estoppel principles. This claim arises from fact that, during Simmons' previous trial for the murder of Cheri Johnson, one of the aggravating circumstances submitted to the jury was the alleged murder of Leonora McClendon. The Johnson jury did not list this aggravator on the verdict form as one of the aggravators it found beyond a reasonable doubt. In pressing his claim of trial court error to this Court, Simmons advances the theory that the jury's treatment of the McClendon aggravator during the Johnson trial was the equivalent of a judgment of acquittal for the murder of McClendon.

Simmons argues that the Supreme Court's holding in Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), clearly supports his double jeopardy argument. Bullington, however, does not help him. Bullington had received life imprisonment after the penalty phase of his initial first degree murder trial, a penalty phase that mirrored the "trial" aspects of a guilt phase. Upon retrial after reversal of his conviction, he received a death sentence. The Court reasoned that a death penalty phase that resembles a trial is a proceeding to which jeopardy attaches, and that a sentence of life imprisonment at a first trial is tantamount to an "acquittal" of the death penalty. Id. at 446, 101 S.Ct. at 1862. Therefore, it held that once a person has gone through this type of penalty phase proceeding and received life imprisonment, that person cannot constitutionally be subjected to a possible death sentence for the same crime. Id.

The result in the first penalty phase of our case was directly opposite to that in Bullington--Simmons received the death penalty at the first trial and, therefore, never received an "acquittal" to which Bullington protection applies. Much more pertinent to Simmons' case is Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986), in which the Supreme Court held that the failure to find a particular aggravating circumstance during a sentencing proceeding does not serve as an acquittal of that circumstance. Id. at 155, 106 S.Ct. at 1755. In explanation, the Court stated:

We reject the fundamental premise of petitioners' argument, namely, that a capital sentencer's failure to find a particular aggravating circumstance alleged by the prosecution always constitutes an "acquittal" of that circumstance for double jeopardy purposes. Bullington indicates that the proper inquiry is whether the sentencer or reviewing court has "decided that the prosecution has not proved its case" that the death penalty is appropriate. We are not prepared to extend Bullington further and view the capital sentencing hearing as a set of minitrials on the existence of each aggravating circumstance. Such an approach would push the analogy on which Bullington is based past the breaking point.

Aggravating circumstances are not separate penalties or offenses, but are "standards to guide the making of [the] choice" between the alternative verdicts of death and life imprisonment. Thus, under Arizona's capital sentencing scheme, the judge's finding of any particular aggravating circumstance does not of itself "convict" a defendant (i.e., require the death penalty), and the failure to find any particular aggravating circumstance does not "acquit" a defendant (i.e., preclude the death penalty).

Id. at 155-56, 106 S.Ct. at 1755. The principle that emerges from Bullington and Poland is that the failure to find a particular aggravating circumstance forms the basis for a judgment of acquittal on the imposition of the death sentence only when there is a complete failure to find that any aggravating circumstance exists to support the death sentence. In that context the offender receives a life sentence and is properly viewed as having received an acquittal of the death penalty. It simply does not follow, though, that the jury's failure in this case to find the McClendon murder as an aggravating circumstance operates as an acquittal of the death sentence. The jury's failure to make a finding on a particular aggravating circumstance is, in essence, no finding at all. Moreover, as Poland clearly teaches, aggravating circumstances like the McClendon murder are not separate penalties or offenses, on which the jury's finding produces a conviction or the jury's failure to find produces an acquittal. Therefore, double jeopardy protection does not attach.

Simmons' attempt to rely on collateral estoppel fares no better. In Ashe v. Swenson, the Supreme Court held that the federal rule of collateral estoppel is embodied in the Fifth Amendment guarantee against double jeopardy and applies to the states. 397 U.S. 436, 445, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469 (1970). The Court stated that the principle "means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Id. at 443, 90 S.Ct. at 1194. Subsequent Missouri case law utilizing Ashe, and a proper understanding of the principle of collateral estoppel, make clear that the principle does not bar Simmons' second trial for McClendon's murder.

As a general proposition, collateral estoppel bars...