Opposition Brief — Whitmore v. Arkansas

BEST AVAILABLI

QUESTIONS PRESENTED

I.

WHETHER ARKANSAS* CAPITAL SENTENCING PROCEDURE IS

SUFFICIENT TO PREVENT THE ARBITRARY AND CAPRICIOUS

IMPOSITION OF THE DEATH PENALTY DESPITE THE ABSENCE OF A

MANDATORY DIRECT APPEAL TO THE ARKANSAS SUPREME COURT.

Il.

WHETHER A THIRD PARTY, NOT OTHERWISE CONNECTED WITH THE

CASE, MAY PROSECUTE A DIRECT APPEAL TO A STATE APPELLATE

COURT IN A DEATH PENALTY CASE AS NEXT FRIEND OF A

MENTALLY COMPETENT DEFENDANT.

TABLE OF CONTENTS

PACE

QUESTIONS PRESENTED.

TABLE OF CONTENTS. .......+46-.

TABLE OF AUTHORITIES ...

i ee ee ee ee ee ee ee

JURTGDICTION . «. «ss we see

STATEMENT OF THE CASE. .... +. s+ © es ee

REASONS FOR DENYING THE WRIT

By

II.

THIS COURT SHOULD DENY PETITIONER WHITMORE'S

PETITION FOR WRIT OF CERTIORARI BECAUSE ARKANSAS’

CAPITAL SENTENCING PROCEDURE IS SUFFICIENT TO

PREVENT THE ARBITRARY AND CAPRICIOUS IMPOSITION

OF THE DEATH PENALTY DESPITE THE ABSENCE OF A

MANDATORY DIRECT APPEAL TO

THE ARKANSAS SUPREME COURT. .

THIS COURT SHOULD DENY THE PETITION

FOR WRIT OF CERTIORARI REQUESTED BY

WHITMORE BECAUSE WHITMORE LACKS STANDING

AND HE CANNOT BE A NEXT FRIEND

OF RONALD GENE SIMMONS. .

CONCLUSION .

othe

vi

TABLE OF AUTHORITIES

CASES PAGE

Allen v. Wright, 468 U.S. 737 C1906) «© we we vavevwes 5

Baker v. Carr, 369 U.S. 1866 (1962) . «© «© «© «© «© we ww 6

Collins v. State, 261 Ark. 195, 548 S.W.2d alot

cert. denied, 434 U.S. 678 (1977)... ..-s oes & 2

Franz v. Lockhart, 700 F.Supp. 1005

(B.B. ACR. IFUBP - s we eee eveveevseoses « ohh BaReie

Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988). . 2

Furman v. Georgia, 408 U.S. 238 (1972) ... « «+ «© « « 4

Gilmore v. Utah, 429 U.S. 1012 (1977). . . . . «ww 8

Gregg v. Georgia, 428 U.S. 153 (1976). . . . « «ww 1, 3

Maggio v. Fulford, 462 U.S. 111 (1983) . 8

5

O'Shea v. Littleton, 414 U.S. 488 (1974)

Pickens v. State, 292 Ark. 362, 730 S.W.2d 230,

cert. denied sub. nom., Arkansas v. Pickens,

cee Gs Wes Se Ses 6 6 6 we Os ea eS © Soe os 3

Proffitt v. Florida, 428 U.S. 242 (1976) .....4.-. 2, 3

Pulley v. Marrcis, 465 U.6. 37 (1964) . . « « «© « © © ohy By ©

Rosenberg v. United States, 346 U.S. 273 (1953)... . 8

Smith v. Armontrout, 812 F.2d 1050 (8th puree

cert. denied, 107 S. Ct. 3277 (1987)... “se 7

Spaziano v. Florida, 468 U.S. 447 (1984) ....... q

Tileston v. Ullman, 318 U.S. 44 (1943) ......24.-. 5

Valley Forge College v. Americans United. 454 U.S.

464 (1982)... oer ee ee ec oe oe © © © 5

Whitmore v. State, 296 Ark. 308, 756 S.W.2d 890

[3 0 6k 6 wks 2S Oe ae ee ee eee .

Wilson v. Lane, 870 F.2d 1250 (7th Cir. 1989). .... 7

Zant v. Stephens, 462 U.S. 862 (1983). ....++s-s 2

TREATISES AND LAW REVIEW ARTICLES

13 Wright, Miller and Cooper,

Federal Practice and Procedure: Jurisdiction

££ Ree = ££ aes 6

Strafer, Volunteering for Execution: Competency,

Voluntariness and the Propriety of Third

Party Intervention, 74 J. Crim. L. & Criminology

Gon Uneeee «ee 6 te 8 Oe ee 8 6 60 8 et eee ee 4, 7

-iii-

As

Se

i te SR a Eg SR iii ik i i Bk oe i Ne a

JURISDICTION

Respondent submits that this Court has no jurisdiction

pursuant to 28 U.S.C. § 1257(3) to issue a writ of

certiorari in @le instant case because Whitmore lacks

standing to assert the right of Ronald Gene Simmons to a

direct appeal to the Arkansas Supreme Court of his capital

murder conviction and sentence of death.

-iv-

NO. 88-7146

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1988

JONAS H. WHITMORE,

INDIVIDUALLY AND AS NEXT FRIEND

OF RONALD GENE SIMMONS PETITIONER

Vv.

STATE OF ARKANSAS RESPONDENT

ON PETITION FOR WRIT OF CERTIORARI

TO THE ARKANSAS SUPREME COURT

RESPONDENT STATE OF ARKANSAS’

BRIEF IN OPPOSITION FOR WRIT

OF CERTIORARI TO THE

ARKANSAS SUPREME COURT

The State of Arkansas, the respondent herein, opposes

the petition of Jonas Whitmore requesting a writ of

certiorari to review the judgment of the Arkansas Supreme

Court denying his motion to intervene as next friend of

Ronald Gene Simmons.

OPINIONS BELOW

Before the Arkansas Supreme Court, petitioner Jonas

Whitmore attempted to intervene in a petition filed by

Ronald Gene Simmons in which Simmons requested expedited

review of his waiver of a direct appeal of his capital

murder conviction and death sentence. The Arkansas Supreme

Court denied Whitmore's motion to intervene in Simmons v.

State, 298 Ark. 255, 766 S.W.2d 423 (1989). The Arkansas

Supreme Court affirmed Ronald Gene Simmons’ waiver of his

right to a direct appeal to that court in Simmons v. State,

298 Ack. 193, 766 S.w.2d 422 (1989).

\

-V-

~~

STATEMENT OF THE CASE

On December 28, 1987 Ronald Gene Simmons went on a

murderous rampage in the town of Russellville, Arkansas.

Within approximately 30 minutes, at four different locations

in Russellville, Simmons shot at six people with a .22

caliber pistol. Of these six intended victims, Simmons

actually shot five, of whom two died as a result of their

wounds. After Russellville police officers arrested

Simmons, the Pope County Sheriff's Department searched

Simmons’ house, located at Dover, Arkansas, on the afternoon

of December 28 and continued to search on the next day,

December 29. In the course of this search, the deputy

sheriffs discovered the bodies of sixteen members of

Simmons’ family. All had been murdered. Five of the

victims were found in Simmons’ house. Seven were buried in

a shallow grave near the house. Two victims, infants, were

found in the trunks of two junk automobiles located near the

house.

On the basis of all these killings, the State of

Arkansas filed two sets of criminal charges against

Simmons. Simmons was tried for the Russellville crimes in

May of 1988 in Franklin County Circuwit Court (hereinafter

Simmons I). Subsequently, in February of 1989, Simmons was

tried in Johnson County Circuit Court for the murders of the

sixteen members of his family whose bodies were discovered

on December 28-29 (hereinafter Simmons II). The result of

both trials was the same. A jury found Simmons guilty of

capital murder and sentenced him to die.

With respect to Simmons I, Simmons made known to the

trial court that he did not wish to directly appeal to the

Arkansas Supreme Court the validity of his convictions for

capital murder and attempted Capital murder. On May 16,

1988 the Franklin County Circuit Court heard expert

testimony concerning Simmons’ mental competence to make a

voluntary waiver of his right to a direct appeal to the

-vi-

Arkansas Supreme Court. After hearing this expert

testimony, the trial court found that Simmons was

sufficiently mental competent to voluntarily waive his right

to a direct appeal. The correctness of this finding of fact

by the Franklin County Circuit Court was challenged by Rev.

Louis Franz, who filed with the trial court a petition

requesting permission to prosecute a direct appeal on

Simmons’ behalf to the Arkansas Supreme Court as Simmons‘

next friend. Reverend Franz had no connection to Simmons or

to the crimes that were the subject of Simmons I. Reverend

Franz simply appointed himself the champion of Simmons’

right to a direct appeal and then interjected himself into

Simmons I. On December 17, 1988 the Franklin County Circuit

Court held a second hearing in order to determine Simmons’

mental competence to waive a direct appeal to the Arkansas

Supreme Court. After hearing additional expert testimony at

this hearing, the Franklin County Circuit Court found that

Simmons was sufficiently mental competent to waive his right

to a direct appeal to the Arkansas Supreme Court.

Reverend Franz carried his fight to intervene in Simmons

I on behalf of Simmons as next friend to the Arkansas

Supreme Court. On June 20, 1988, at the request of Reverend

Franz, the Arkansas Supreme Court stayed Simmons’ execution

and ordered Franz and the State to submit briefs addressing

three issues: (1) whether there should be a mandatory

direct appeal to the Arkansas Supreme Court in death penalty

cases; (2) whether Reverend Franz had standing to assert

Simmons’ alleged right to a direct appeal to the Arkansas

Supreme Court; and (3) whether Simmons was sufficiently

mentally competent to make a voluntary waiver of his right

to a direct appeal to the Arkansas Supreme Court. Franz v.

State, 296 Ark. lll, 751 S.W.2d 355 (1988). After reviewing

the briefs submitted by the parties and transcripts of these

two competency hearings that were held by the Franklin

County Circuit Court, the Arkansas Supreme Court issued an

-vii-

Opinion in which it held that Reverend Franz did not have

standing to assert, as next friend, Simmons’ right to a

direct appeal to the Arkansas Supreme Court and that neither

the Eighth Amendment to the United States Constitution nor

any Arkansas case law or rule of procedure required that

there must be a direct appeal in a case where a defendant

has received the death penalty. Franz v. State, 296 Ark.

181, 754 S.W.2d 839 (1988).

After this loss at the Arkansas Supreme Court, Franz

next tried the United States District Court for the Eastern

District of Arkansas as a forum from which he could

intervene in Simmons I to force a direct appeal on Simmons.

The United States District Court for the Eastern District of

Arkansas ordered yet additional briefs, had Simmons examined

at the Medical Center for Federal Prisoners in Springfield,

Missouri, and had an independent counsel prepare a lengthy

report in order to advise Simmons as to whether there were

any reversible errors that occurred in Simmons I. The

District Court eventually held that Simmons was sufficiently

mentally competent to waive his right to a direct appeal to

the Arkansas Suprme Court and, therefore, Reverend Franz had

no standing as next friend to assert Simmons’ right to a

direct appeal. Franz v. Lockhart, 700 F.Supp. 1005 (E.D.

Ark. 1988). In Franz the District Court also held that the

Eighth Amendment to the United States Constitution requires

that there be at least one review by an appellate court

before a state may impose on a defendant the penalty of

death. Franz has appealed to the United States Eighth

Circuit Court of Appeals the District Court's denial of his

petition seeking a writ of habeas corpus as next friend of

Simmons and this appeal has been stayed pending the

resolution of the instant petition to this Court.

With respect to Simmons II (the instant case), on

March 1, 1989 the Johnson County Circuit Court held an

evidentiary hearing in order to determine whether Simmons

-viii-

was sufficiently mentally competent in order to waive his

right to a direct appeal to the Arkansas Supreme Court of

his conviction of capital murder and death sentence for

killing 16 members of his family. The Johnson County

Circuit Court reviewed the information itt its file from

Simmons I concerning Simmons’ mental competence, heard

additional testimony from Simmons and then found that

Simmoms was sufficiently mentally competent in order to

waive hic right to a direct appeal. The Arkansas Supreme

Court affirmed this finding of fact on March 10, 1989 in

Simmons v. State, 298 Ark. 193, 766 S.W.2d 422 (1989).

Three days later, on March 13, 1989, Jonas Whitmore,

petitioner in the instant cose, filed a motion to intervene

in Simmons II with the Arkansas Supreme Court. The Arkansas

Supreme Court denied Whitmore’s motion to intervene on the

seme day in Simmons v. State, 298 Ark. 255, 766 S.W.2d 423.

At this point, the death sentence that Simmons had received

in Simons II was to be carried out on March 15, 1989. After

the Arkansas Supreme Court denied his motion to intervene,

Whitmore petitioned this Court, as next friend of Ronald

Gene Simmons, to stay the March 15, 1989 execution. In an

order dated March 15, 1989 this Court did stay the execution

that had been set for March 15, 1989 and ordered that the

stay remain in effect pending Whitmore's filing of a

petition seeking a writ of certiorari to the Arkansas

Supreme Court. The instant brief is filed with this Court

in opposition to Whitmore’s petition for a writ of

certiorari to the Arkansas Supreme Court.

-ix-

Ae

I.

THIS COURT SHOULD DENY PETITIONER WHITMORE'S

PETITION FOR WRIT OF CERTIORARI BECAUSE ARKANSAS’

CAPITAL SENTENCING PROCEDURE IS SUFFICIENT TO

PREVENT TH® ARBITRARY AND CAPRICIOUS IMPOSITION

OF THE CEATH PENALTY DESPITE THE ABSENCE OF A

MANDATORY DIRECT APPEAL TO

THE ARKANSAS SUPREME COURT.

According to petitioner Whitmore, the substantive issue

presented in this case is whether the Eighth Amendment's

prohibition against cruel and unusual punishment mandates a

direct appeal of all capital murder convictions and

resulting death sentences.’ Respondent, the State of

Arkansas, disagrees with Whitmore’s framing of the issue.

The issue presented in this case is not whether, as an

abstract matter, the Eighth Amendment requires a direct

appeal of all capital murder evavictions and resulting death

sentences. The issue, properly framed, is whether Arkansas’

capital sentence procedure is so deficient that a mandatory

direct appeal to the Arkansas Supreme Court is necessary to

prevent the arbitrary, capricious imposition of death

sentences by Arkansas juries following Arkansas‘ capital

sentencing procedure. Arkansas’ capital sentencing

procedure, taken as a distinct whole, must be examined in

order to determine if the Eighth Amendment requires that

Arkansas’ death penalty sentencing procedure have the

feature of a mandatory direct appeal to the Arkansas Supreme

Court. See Pulley v. Harris, 465 U.S. 37, 45 (1984) and

Gregg v. Georgia, 428 U.S. 153, 195 (1976). According to

this Court's opinions in Gregg and Pulley, Arkansas’ capital

sentencing procedure is not necessarily violative of the

Eighth Amendment because it lacks the feature of a mandatory

direct appeal. What the Eighth Amendment requires is not an

appeal for the sake of the extra measure of reliability in

the correctness of a verdict and sentence that appellate

‘The due process clause of the Fourteenth Amendment

incorporates the Eighth Amendment's prohibition against

cruel and unusual punishment; therefore, the Eighth

Amendment's prohibition is obligatory on the fifty states.

Robinson v. California, 370 U.S. 660 (1962).

Pe

i

=e =e

review provides, but that a defendant be sentenced to death

in a manner <..st is not irrations., arditrary Of Capi. vi-...

Pulley at 54. In this regard, it is important to note that

this Court has recognized that there can be “no perfect

procedure for deciding in which cases governmental authority

should be used to impose death.” Pulley at 54 and Zant v.

Stephens, 462 U.S. 862, 884-85 (1983).

Is Arkansas‘ death penalty sentencing procedure so

deficient that the Eighth Amendment prevents the State from

accepting an otherwise valid waiver of a right to a direct

aopeal to the Arkansas Supreme Court by a defendant who has

been sentenced to die by an Arkansas jury?’ The two lower

courts that have considered this issue have disagreed. In

Collins v. State, 261 Ark. 195, 203-11, 548 S.W.2d 106,

111-15, cert. denied, 434 U.S. 678 (1977) and again in Franz

v. State, 296 Ark. 181, 186-88, 754 S.W.2d 839, 842-43

(1988) (Simmons I) the Arkansas Supreme Court held that the

absence of a mandatory direct appeal was 19:2 4a “make or

break" feature of Arkansas‘ death penalty sentencing

procedure. The United States District Court for the Eastern

District of Arkansas ceached the opposite conclusion in

Franz v. Lockhart, 700 F.Supp. 1005, 1014-24 (1988) (Simmons

I). Study of Collins and Ark. Code Ann. §§ 5-4-601-07

reveals the following features of Arkansas’ death penalty

sentencing procedure that prohibit Arkansas juries from

7Arkansas’' death penalty sentencing procedure is set

forth in Ark. Code Ann. §§ 5-4-601-07 (1987). Aside from

the absence of a mandatory appeal, Arkansas‘ death penalty

sentencing procedure is virtually identical to the state

procedures that were approved by this Court in Gregg v.

Georgia, 428 U.S. 153 (1976) and Proffitt v. Florida, 428

U.S. 242 (1976). In addition, pursuant to Arkansas Rule of

Criminal Procedure 36.24, Ark. Sup. Ct. Rule LI(£) aud Ark.

Code Ann. § 16-91-113(a) (1987), once a capital murder

conviction and sentence are appealed to the Arkansas Supreme

Court the court will review all of the trial court's rulings

that were adverse to the defendant whether or not the

defendant advances the adverse ruling as an issue on appeal.

This comprehensive review by the Arkansas Supreme Court 15s

not, however, a review for plain error. See Parker v. State,

292 Ack. 421, 436, 731 S.W.2d 756, 764 (1987) and Fretwell

v. State, 289 Ark. 91, 98, 708 S.W.2d 630, 634 (1986).

imposing a death sentence in a way that is fundamentally

acbitrary and capricious: (1) in a separate sentencing

hearing the jury must unanimously find that at least one of

eight statutory aggravating circumstances exists beyond a

reasonable doubt; (2) the jury must find that the

aggravating circumstance or circumstances outweigh beyond a

reasonable doubt all mitigating circumstances found to

exist; (3) the jury must find that the aggravating

circumstance or circumstances must justify a sentence of

death beyond a reasonable doubt; (4) the aggravating

circumstances themselves have been approved by this Court in

Gregg, supra and Proffitt, supra; (5) the defendant is

permitted to offer to the jury a very wide range of evidence

in mitigation (see, e.g., Pickens v. State, 292 Ark. 362,

730 S.W.2d 230, cert. denied sub nom., Arkansas v. Pickens,

108 S. Ct. 269 (1987) (on resentencing, defendant may offer

as mitigation proof of his good behavior on death row)); (6)

the definition of capital murder in Ark. Code Ann.

§ 5-10-101 (1987) is limited to seven kinds of felony murder

and murder committed with a premeditated and deliberated

mental state;’

(7) the trial court has the authority, in

its discretion, to reduce a death sentence to life

imprisonment. These features of the Arkansas’ death penalty

sentencing process, when considered as a whole, insure that

defendants will not be sentenced to death by Arkansas juries

in a manner that is fundamentally arbitrary or capricious.

Respondent the State of Arkansas acknowledges that the

opinion of the United States District Court in Franz v.

Lockhart, supra, is correct insofar as it holds that the

feature of a mandatory direct appeal will provide an

additional measure of reliability with respect to the

imposition of a death sentence only on defendants who truly

‘Ackansas has recently amended its detinition of

Capital murder to add single-victim killings done with

premeditation and deliberation. See 1989 Ark. Acts No. 856.

This amendment becomes effective on July 2, 1989.

“4 i, a a lik th i ell ier 1? onda th Sie te

deserve to die as punishment for murder. See Franz v.

Lockhart at 1022; see also Strafer, Volunteering for

Execution: Competency, Voluntariness and the Propriety of

Third Party Intervention, 74 J. Crim. L. & Criminology 860,

895-908 (1983). The short answer to the District Court's

conclusion that Arkansas’ death penalty sentencing process

violates the Eight Amendment because it lacks the feature of

a mandatory appeal is that this Court has never interpreted

the Eighth Amendment to require meticulous, computer-lLike

exactitude in the imposition of the death penalty. See

Pulley v. Harris, 465 U.S. 37, 54 (1984). Since its

landmark decision in Furman v. Georgia, 408 U.S. 238 (1972)

this Court has interpreted the Eighth Amendment to require

only that death sentences not be imposed in a manner that is

fundamentally arbitrary and capricious. The features of

Arkansas’ death penalty sentencing procedure noted above

ensure that Arkansas juries will not impose death sentences

in a manner that is fundamentally arbitrary and capricious.

It is true that all the other states that have a death

penalty do have some sort of mandatory appellate review,

however, this Court has held that the Eighth Amendment does

not require absolute symmetry between the states with

respect to their death penalty sentencing procedures. See

Spaziano v. Florida, 468 U.S. 447, 464 (1984). To put the

matter another way, Spaziano holds that a show of hands does

not necessarily establish an Eighth Amendment requirement.

Zhe

THIS COURT SHOULD DENY THE PETITION

FOR WRIT OF CERTIORARI REQUESTED BY

WHITMORE BECAUSE WHITMORE LACKS STANDING

AND HE CANNOT BE A NEXT FRIEND

OF RONALD GENE SIMMONS.

Whitmore asserts that he should have standing as next

friend of Ronald Gene Simmons to argue that the Eighth

Amendment requires that there be a direct appeal of Simmons’

capital murder conviction and death sentence to the Arkansas

Supreme Court. The short answer to this assertion by

Whitmore is that he has no standing to assert Simmons’ right

to a direct appeal as Simmons’ next friend. Whitmore has no

standing because he cannot satisfy the “case or controversy”

requirement of Article III of the United States Constitution

and because Whitmore cannot establish that Simmons is not

sufficiently mentally competent to waive his right to a

direct appeal.

In his petition Whitmore fails to demonstrate that he

has any connection to Simmons or to Simmons’ case except for

the fact that Whitmore, like Simmons, is an inmate on

Arkansas’ death row.* This Court has repeatedly held that

third parties, not otherwise connected with a case, who step

forward to champion a cause have no standing to assert the

legal rights of the genuine parties at interest. See Allen

v. Wright, 468 U.S. 737, 754 (1984); O'Shea v. Littleton,

414 U.S. 488, 493-4 (1974); and Tileston v. Ullman, 318 U.S.

44 (1943). Third party “champions” such as Whitmore lack

standing because they cannot satisfy the “case or

controversy” requirement of Article III of the United States

Constitution. This Court had held that would-be plaintiffs

have standing to vindicate the rights of genuine parties at

interest if: (1) the would-be plaintiff shows that he has

personally suffered some actual or threatened injury as a

result of the allegedly illegal conduct of the defendant;

(2) the would-be plaintiff must show that the injury fairly

can be traced to the challenged conduct of the defendant;

and (3) the would-be plaintiff must show that the injury is

likely to be redressed by a favorable decision. See Allen

v. Wright, supra; Valley Forge College v. Americans United,

“Whitmore has had a direct appeal, which was

unsuccessful, to the Arkansas Supreme Court. Whitmore v.

, 296 Ark. 308, 756 S.W.2d 890 (1988). In addition,

the Arkansas Supreme Court denied Whitmore post-conviction

relief in Whitmore v. State, No. CR87-168 (May 30, 1989).

In its Whitmore opinion of May 30, 1989, the Arkansas

Supreme Court not only denied Whitmore post-conviction

relief but also announced the virtual abolition of state

post-conviction relief. The Arkansas Supreme Court's

decision to abolish post-conviction relief in Arkansas was

prompted, in part, by Whitmore’s filing of the instant

petition seeking a writ of certiorari with this Court.

454 U.S. 464, 472 (1982); and Baker v. Carr, 369 U.S. 186,

204 (1962); see also 13 Wright, Miller and Cooper, Federal

Practice and Procedure: Jurisdiction § 3531.9 at 452-56,

567-69 (2d ed. 1984).

In his petition Whitmore fails to explain how it is that

he will suffer some actual injury if Simmons’ does not

challenge the validity of his capital murder conviction and

death sentence by filing a direct appeal with the Arkansas

Supreme Court. In truth, Whitmore cannot do so. Whitmore

has had a direct appeal of his capital murder conviction and

death sentence. Whitmore v. State, 296 Ark. 308, 756 S.W.2d

890 (1988). Given that Whitmore has had a direct appeal of

his capital murder conviction and death sentence, any

constitutional defect in Arkansas’ death penalty sentencing

procedure that exists because of the absence of a mandatory

direct appeal to the Arkansas Supreme Court will have no

effect on Whitmore. In his direct appeal to the Arkansas

Supreme Court, that court did apply Arkansas Rule of

Criminal Procedure 11(f). This state cule of criminal

procedure requires that the Arkansas Supreme Court examine

the entire record of the appellant’s trial to make sure that

all rulings by the state trial court that were adverse to

the appellant were not so prejudicial that they would

require reversal of the appellant's conviction or sentence.

Because the Arkansas Supreme Court did apply Rule 11(fYto

the record of Whitmore's state trial, he would suffer no

prejudice if the Arkansas Supreme Court did not apply Rule

11(€) to Simmons because Simmons failed to file a direct

appeal with the Arkansas Supreme Court.

In addition, Whitmore’s claim that the robbery/murder

that he committed will not seem so bad, by way of

comparative review by the Arkansas Supreme Court, to the

murders that Simmons committed is, by the terms of

Whitmore's petition, entirely speculative. Whitmore's

argument in this regard depends upon his capital murder

conviction and death sentence, which the Arkansas Supreme

Court has already affirmed, being reversed and remanded at

some indefinite period in the future by some state or

federal court. Whitmore has completely failed to allege in

his petition that there is even a remote possibility that

his own conviction and sentence will be reversed. It is

only if Whitmore's sentence and conviction are reversed that

he would be able to minimize the reprehensibility of the

murder that he committed by comparing it to the murders that

Simmons committed. Until Whitmore can demonstrate some

possibility that his convictior. or sentence could be

reversed and that he could face the death penalty a second

time, his *“compared-to-Simmons-I-dont 't-look-so-bad”

argument is too speculative to warrant the conclusion that

Whitmore will suffer an irreparable injury if the Arkansas

Supreme Court does not review Simmons’ conviction and

sentence.

Whitmore could evade the Article III bar to his

championing of Simmons’ right to a direct appeal if Whitmore

could demonstrate that he was Simmons’ next friend.’ In

order to establish his status as Simmons’ next friend,

Whitmore must show that he has some relationship with

Simmons beyond that of uninvited intruder and Whitmore must

also establish that Simmons is not sufficiently mentally

competent to voluntarily waive his right to a direct appeal

to the Arkansas Supreme Court. See Wilson v. Lane, 870 F.2d

1250, 1253 (7th Cir. 1989); Smith v. Armontrout, 812 F.2d

1050, 1053 (8th Cir), cect. denied, 107 S. Ct. 3277 (1987);

and Strafer, Volunteering for Execution: Competency,

Vv ntar and the Propriet f Third Party Intervention,

74 «~4«~ Crim. L. & Criminology 860, 909 n.211 (1983). This

Court has repeatedly held that would-be next friends cannot

assert the rights of a defendant if the defendant is

sufficiently mentally competent to decide himself whether he

‘Petitions seeking relief pursuant to 28 U.S.C. § 2254

may be filed by a “next friend.” 28 U.S.C. § 2242.

et! ae = ee ee eee? eee,

will assert his rights. Gilmore v. Utah, 429 U.S. 1012

(1977) and Rosenberg v. United States, 346 U.S. 273, 291

(1953). A record of Simmons’ mental competence was

extensively developed in Simmons I and was reviewed by the

state trial court and by the Arkansas Supreme Court in the

instant case, which is Simmons II. The state trial court,

the Arkansas Supreme Court and the United States District

Court for the Eastern District of Arkansas have all held

that Simmons was mentally competent and not, therefore, in

need of a mext friend. (The United States District Court

for the Eastern District of Arkansas reached this decision

with respect to Simmons I). The Arkansas courts’ finding of

fact that Simmons is sufficiently mentally competent to

voluntarily waive his right to a direct appeal is entitled

to the presumption of correctness set forth in 28 U.S.C.

§ 2254(d). See Maggio v. Fulford, 462 U.S. 111 (1983) and

Feanz v. Lockhart, 700 F.Supp. 1005, 1025 (E.D. Ark. 1988).

Whitmore fails to assert in his petition that Simmons is

presently incompetent. Because Whitmore has failed to

demonstrate even a slight possibility that Simmons is

presently incompetent, Whitmore cannot assert Simmons * right

to a direct appeal as Simmons’ next friend. In this

respect, the instant case is identical to Gilmore, supra,

and should be controlled by it.

For the reasons noted above, respondent, the State of

Arkansas, respectfully requests that this Court deny

petitioner Whitmore’s petition requesting a writ of

certiorari to the Arkansas Supreme Court.