Whitmore v. State, CR

• Decision Date: 30 May 1989
• Docket Number: No. CR,CR
• Citation: 771 S.W.2d 266,299 Ark. 55
• Parties: Jonas Hoten WHITMORE, Petitioner, v. STATE of Arkansas, Respondent. 87-168.
• Court: Arkansas Supreme Court

Page 266

771 S.W.2d 266

299 Ark. 55

Jonas Hoten WHITMORE, Petitioner, v. STATE of Arkansas, Respondent.

No. CR 87-168.

Supreme Court of Arkansas.

May 30, 1989.

Steve Clark, Atty. Gen., for State.

GLAZE, Justice.

Petitioner, Jonas Hoten Whitmore, seeks post-conviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. While seeking relief before this court, Whitmore also sought to intervene as next friend in the case of Simmons v. State, CR89-45, so Whitmore could argue certain constitutional issues concerning whether Arkansas is required to hold appellate reviews in all capital cases, including those where the convicted defendant waives such a review. This court, finding Whitmore had no standing to intervene on behalf of Simmons, promptly denied his request. The United States Supreme Court subsequently granted Whitmore's petition for certiorari after our denial of his motion. The court also stayed the execution date for Ronald Gene Simmons.

The Whitmore and Simmons cases are further examples of a chain of Arkansas cases that reveal how the state and federal judicial systems have permitted applications for post-conviction remedies to get out of control. By our action today, we intend to limit or narrow post-conviction relief by abolishing Criminal Procedure Rule 37. As the United States Supreme Court said in Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), states are not obligated to provide for post-conviction relief after the defendant has failed to secure relief through direct review of his conviction. By abolishing Rule 37, a defendant may still petition for a writ of habeas corpus--a narrower remedy than Rule 37--but our action will at least curtail some of the abuses that result from the inconsistent and meritless claims that petitioners lodge under the broader relief afforded under Rule 37. ¹

Whitmore's Rule 37 petition here and his intervention in the Simmons's case, now pending in the United States Supreme Court, depict only one of the problems--albeit an absurd one--that the courts face when attempting to bring an end to criminal cases once they are launched into the procedural appellate and post-conviction maze. In his post-conviction petition now before us, Whitmore claims that he did not receive a fair trial, because, among other things, his trial attorney was ineffective. In support of his argument, he contends his trial counsel failed to present available evidence that Whitmore had a diminished capacity when he killed his victim. Whitmore also points to his lengthy psychiatric history as well as to his alcoholism and incest and sexual abuse that occurred in his family. In sum, Whitmore objects that his trial counsel made no use of Whitmore's psychiatric evidence to show either diminished capacity as to his guilt or mitigating circumstances at the penalty phase. Further, Whitmore contends that he is presently insane. In pursuing his petition before the United States Supreme Court, Whitmore makes no mention whatsoever of his pending petition in this court and the diminished capacity claims that he asserts in the petition.

Obviously, if Whitmore has a diminished capacity or psychiatric problem, how can he have standing to intervene in behalf of Simmons? In Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966), the Supreme Court held that if a defendant is determined to be competent, then a next friend has no standing to pursue further proceedings when the defendant chooses not to proceed. See Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976), where the Supreme Court reversed the record bearing on Gilmore's competency and decided his mother did not have standing to speak for him. Here a state trial court, this court and a federal district court have either ordered psychiatric examinations or reviewed those examinations and have concluded Simmons has the capacity to waive his right to appeal or refuse to pursue any claims he may have. Nonetheless, the United States Supreme Court has allowed Whitmore, who has placed his own mental capacity in issue in a pending state proceeding, to intervene on behalf of Simmons so that Whitmore can argue claims Simmons steadfastly waives and refuses to raise. If the judicial system is to maintain its integrity, we can ill afford to permit such a willful and improper manipulation of post-conviction procedures by a defendant.

Unfortunately, other abuses of our post-conviction remedies continue to occur besides the one we have here. In our recent case of Robertson v. State, 298 Ark. 131, 765 S.W.2d 936 (1989), Justice Hickman, in a concurring opinion, recounted the history of our review of capital cases. See also Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986) (Hickman, J., concurring), and Ruiz & Van Denton v. State, 280 Ark. 190, 655 S.W.2d 441 (1983) (Hickman, J., concurring). Justice Hickman cited capital cases that appeared to have come to the end of the direct appeal and post-conviction relief processes, only to find that the cases--some of which he identifies by name--have entered the federal judicial machinery where they seemingly disappear. As Justice Hickman noted, our court affirmed Eddie Lee Miller's conviction in 1980, but Miller filed a habeas petition in federal district court in 1981. Eight years have passed and the federal court has failed to rule on Miller's petition. Clay Anthony Ford and Darrell Wayne Hill's cases have been pending in federal district court since January 1983 and February 1983, respectively, and no final decisions, as yet, have been entered by the federal court. There are others, as well, but it is of little value to repeat here those cases already fully identified in Justice Hickman's earlier concurring opinion. Suffice it to say, that despite this court's best efforts to expedite and review these serious appeals and post-conviction petitions, these cases inevitably end up in the federal judicial system, where too often they languish.

Finally, we note the burgeoning number of post-conviction petitions filed by defendants which reflects not only the increase in the number of inmates in recent years, but also the defendants' increased awareness that they have nothing to lose by filing such petitions. In most cases, this court dismisses these petitions because the claims or allegations are meritless. Nonetheless, most of these petitions will be filed in habeas form with the federal courts and will be disposed of once again by those courts. In this respect, the state Attorney General's office reports that, as of May 3, 1989, there were 358 petitions for writs of habeas corpus pending in federal district courts to which the state had responded. Such petitions, of course, are not decided by the federal court until after the inmate has pursued his remedy in state court. Meanwhile, the number of Rule 37 petitions in this state continues to rise. As of May 3, 1989, 108 Rule 37 petitions and 162 pro se motions have been filed in this court since January 1, 1988, and in addition to those petitions, and for the same period of time, this court's legal staff has answered 1,910 letters from inmates, who generally are, in some form or another, seeking relief. ^{2 2} By way of comparison, this court handled only forty-three Rule 37 petitions for the entire year of 1983; for that same year, the court responded to approximately 900 inmate letters.

Having now benefitted from years of experience and reviews of post-conviction claims, we abolish Rule 37 recognizing how this state's post-conviction Rule has served to cause the review of criminal convictions to become an interminable process, rather than to improve the system of justice, as this court originally intended by adopting such remedies. In re: Rule 37, Rules of Criminal Procedure, 293 Ark. 609, 732 S.W.2d 458 (1987). Our action today will cause convicted criminal defendants to assert their claims and defenses on direct appeal rather than to allow such defenses years later, which is possible under present post-conviction remedies. In our view, this new expeditious procedure will have a beneficial effect of placing both state and federal courts in a position of considering the more legitimate and serious claims a petitioner may have when seeking relief from a questionable verdict. On the other hand, a defendant will have less opportunity to misuse the federal and state systems to develop legal theories that unnecessarily prolong meritless cases. For the reasons stated above, we abolish Rule 37 effective July 1, 1989, but in abolishing Rule 37, we issue a per curiam this date that provides that persons, who have been convicted and sentenced during the existence of Rule 37, may still proceed under that Rule. By the same per curiam, we amend Rule 36.4 to provide that a defendant may assert his or her claim of ineffective counsel on direct appeal.

Now, we turn to the merits of Whitmore's Rule 37 petition. In 1987, Whitmore was found guilty by a jury of capital felony murder in the 1986 stabbing death of Essie Mae Black. We affirmed, Whitmore v. State, 296 Ark. 308, 756 S.W.2d 890 (1988), and Whitmore now seeks post-conviction relief pursuant to Rule 37.

Petitioner first alleges that he was not afforded the effective assistance of counsel guaranteed by the constitution and laws of the United States and this state in either the guilt or penalty phase of his bifurcated trial. When determining whether there was effective assistance of counsel, this court evaluates the claim according to the criteria set out by the United States Supreme Court in Strickland v. Washington. In Strickland, the Court held that the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial court cannot be relied on as having produced a just result. The criteria apply to a capital sentencing proceeding as well as the...