Respondents Brief — Whitmore v. Arkansas

7

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i

QUESTIONS PRESENTED

I.

WHETHER THE EIGHTH AMENDMENT'’S BAN

AGAINST CRUEL AND UNUSUAL PUNISHMENT

REQUIRES A MANDATORY APPELLATE REVIEW IN

ALL CASES IN WHICH THE DEATH PENALTY IS

IMPOSED.

WHETHER A THIRD PARTY HAS STANDING TO

ASSERT THE VIOLATION OF CONSTITUTIONAL

RIGHTS WHEN THE PARTY DIRECTLY AFFECTED

DOES NOT ASSERT THE RIGHT.

oo. 2 i i A ee ee ee a

PARTIES TO THE PROCEEDINGS!

'The caption of the case does not contain the names of all of the

parties. Is Ronald Gene Simmons, Sr., a party, or not? To remove any

uncertainty about his status as a party in this matter, Simmons’

attorneys filed with this Court a motion to have Simmons declared a

party. Said motion was received April 1, 1989, in the Office of the

Clerk of the Supreme Court of the United States. Simmons’ lawyers

thereafter received a letter from the U.S. Supreme Court Clerk's office

dated April 5, 1989, which stated in part: ““The motion to declare

Ronald Gene Simmons a party for the purpose of filing a brief in

opposition was received April 1, 1989, and is herewith returned as

unnecessary.'’ Again, a letter was received from the U.S. Supreme

Court Clerk's office dated July 19, 1989, which stated in part: “By

copy of this letter to all counsel, I am requesting that any future

pleadings, correspondence, etc., filed in this case, that copies be

served upon you as counsel for Ronald Gene Simmons. I am

enclosing an Appearance Form for you to complete as counsel for

Ronald Gene Simmons.”’ On July 25, 1989, the Appearance Form,

Supreme Court of the United States, No. 88-7146, was completed and

filed with this Court by letter dated July 2£, 1989. On August 2, 1989,

Simmons’ lawyers and lawyers for the respondent State of Arkansas

mailed for filing a motion for additional time and for divided time for

oral argument, and as of this time, the Court has not acted upon

Simmons’ motion requesting the opportunity to present oral

argument in this case. Apparently, the Petitioner does not regard

Ronald Gene Simmons, Sr., as a party in this case because Simmons’

name as a respondgt is continually omitted from the caption of the

case in all of Petitioner's pleadings. Therefore, after all of this, the

question still exists, “Is Ronald Gene Simmons, Sr., a party in this

case? Will Ronald Gene Simmons, Sr., be afforded the opportunity to

participate in oral argument in this case? Isn't Ronald Gene

Simmons, Sr., the real party in interest in this case?” In conclusion,

respondent Simmons contends that the caption of the case does not

contain the names of all of the parties.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..........00 0 eee eeeeeeees i

BR Ge ME oc cece cc ccccccccccccccccccvccces ii

TABLE OF CONTENTS ........- 0c ce eeeeeeeeeeeees iii

TABLE OF AUTHORITIES. ............ 6-50 e eee euee iv

CITATIONS TO OPINIONS BELOW ...........--+5. l

N10): 3 |) 0) (0s 8 (0), re eee 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ........6 50 cee cece eeeeee 2

STATEMENT OF THE CASE ..........-20e eee eeeees 3

SUMMARY OF ARGUMENT ....... 2... 02 eee eee ee eees i)

PT Ces coe dadcdeccccccccccccccccces 11-29

IA. Whether the Eighth Amendment’s ban against

cruel and unusual punishment requires a man-

datory appellate review in all cases in which the

death penalty is imposed? ........+..+000e+085 1]

B. A mandatory appellate review of death penalty

cases is NOT necessary to reflect contemporary

standards of decency. ........eeeeececceeecees 16

C. Whether the Arkansas death penalty statute is

subject to being arbitrarily and capriciously

imposed in the absence of mandatory appellate

DE SaRERG ERG edhe obo becccocecececececcce 17

D. Allowing a waiver of appellate review in capital

cases under certain conditions is NOT contrary

to public policy or adverse to the rights of

BOCIERY. oc ccc cccccccccccssecccccsccccccccece 18

I]. Whether a third party has standing to assert the

Constitutional rights when the party directly

affected does not assert the right? ...........+6+ 24

CONCLUSION ....... cece cece cece eee eeeeeeeeeees 30

iv

TABLE OF AUTHORITIES

Page

CASES:

Franz v. State, 296 Ark. 181, 754 S.W.2u 839 (1988) ...... 6

Gilmore v. Utah, 429 U.S. 1012 (1976) ..........60. 12

Gregg v. Georgia, 428 U.S. 153 (1976). ...... 0... ee ee eee 9

Hamblin v. Florida, 527 So.2d 800 (1988)............ 23

In Re Estate of Brooks, 32 Ill. 2d 361,

ee Pe RE as nb ote bv esccecuesssdcone 27

Jurek v. Texas, 428 U.S. 262 (1976) .......cccecccceceess se)

RAE Tey GOO We Sek sascidecvscevcueaee 23

McKane v. Durston, 153 U.S. 684 (1894)............. 23

Murray v. Giarratano, _— U.S. —— (88-411,

June 23, 1989), 45 Criminal Law Reporter 3155... .23

Proffitt v. Florida, 428 U.S. 242 (1976) ...........00e0ee 9

Pulley v. Harris, 465 U.S. 37 (1984) ...........00000: 25

Rees v. Payton, 384 U.S. 312 (1966) ..........000008- 12

Rosenberg v. United States, 346 U.S. 273 (1953) ...... 25

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

GERD bee e hic ceed rdwht ad eebebU VEN bSedeedeiscies l

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

Ty eee ee er ee ee 7

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

GEN 46 66a. enedonnestintebbnoncsbuléeescnse 25

CONSTITUTION AND STATUTES

OP es, SE en. cep cececcceseeecees

Oe | I verse in see eee nec cccoeeees

EE SD oc acacscccececosseeses

OY ee, EE TIE occ cccccccccoccccesess

TREATISES >

Johnson, The Death Row Right to Die: Suicide or

Intimate Decision, 54 S. Cal. L. Rev. 575 (1981)...

Urofsky, A Right to Die: Termination of Appeal for

Condemned Prisoners, 75 J. Crim. L. &

Criminology 553 (1984) .........0eeeeeee ee eees

MISCELLANEOUS

A recent U.P.I. release from the Bureau of

Justice Statistics ......ccccccccccccccccevccees

9

21

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

No. 88-7146

Jonas H. WHITMORE, INDIVIDUALLY

AND AS NEXT FRIEND OF

RONALD GENE SIMMONS ..........0eccceccssecess Petitioner

vs.

EASE GP BANGS win 6 506i 0 6 8c 600640 Horesd’ Respondent

RONALD GENE SIMMONS, SR. ........00eeeeeees Respondent

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF ARKANSAS

BRIEF FOR THE RESPONDENT

RONALD GENE SIMMONS, SR.

OPINIONS BELOW

The opinion of the Arkansas Supreme Court in Franz v.

State (Simmons I), reported at 296 Ark. 181, 754 S.W.2d 839

(1988), is reprinted in the Joint Appendix at page 4.

The opinion of the Arkansas Supreme Court in Simmons

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

(1989), is reprinted in the Joint Appendix at page 29.

The opinion of the Arkansas Supreme Court in Simmons

v. State (Simmons II), reported at 298 Ark. 255, 766 S.W.2d 423

(1989), is reprinted in the Joint Appendix at page 34.

2

JURISDICTION

Article Three of the United States Constitution gives this

Court jurisdiction over actual cases and controversies between

ligitimate parties. This petitioner has no standing indi-

vidually, and therefore seeks to gain next friend status of

Ronald Gene Simmons, Sr., whose competency and age are not

questioned; however, the incompetency of the petitioner is

presently admitted. (See Whitmore v. State, 299 Ark. 55[1989].)

Therefore, this Court is without jurisdiction. Gilmore v. Utah,

429 U.S. 1012.

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The Eighth Amendment to the Constitution of the United

States provides:

7

Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.

The First Amendment to the Constitution of the United

States provides, in pertinent part:

Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof.

The Fifth Amendment to the Constitution of the United

States provides, in pertinent part:

No person shall. . . be deprived of life, liberty, or property

without due process of law . . .

The Fourteenth Amendment to the Constitution of the

United States provides, in pertinent part:

. .nor shall any state deprive any person of life, liberty,

or property, without due process of law . . .

3

STATEMENT OF THE CASE

During the evening hours of March 15, 1989, Ronald Gene

Simmons, Sr., was eating his last meal. His execution was set

for the next day at 7:00 a.m., the 16th day of March, 1989.

The Respondent Simmons had previously been tried in two

separate cases, convicted, and sentenced to death for capital

murder of sixteen individuals, including fourteen family

members. After each conviction and sentence of death,

Respondent Simmons was fully advised by counsel of nis right

to appeal, potential grounds for appeal, and many other things

concerning the appellate process. Respondent Simmons took

the position that whether or not to appeal was a personal

decision that could oniy be made by him, and it was his

decision that the verdicts in the two previous Cases were just

and proper, and his only request was that the sentence be

carried out without any delay; that life was cruel for him and he

was suffering with it. Immediately after Respondeni Simmons

took this position, parties opposed to capital punishment,

including a Catholic Priest and other death row inmates, came

forward in both the Simmons I and the Simmons II cases, and

attempted to intervene and delay these two proceedings in the

following particulars: First, by claiming next friend status,

and second, by asserting that the United States Constitution

required a mandatory appeal in death penalty cases that

cannot be waived by the defendant.

The trial court immediately gave these interlopers a

hearing on their petitions, and also conducted a competency

hearing to determine whether or not Respondent Ronald Gene

Simmons, Sr., was competent and had knowingly and intel-

ligently waived his right to appeal. After a full hearing on these

matters, the trial court ruled that Respondent Ronald Gene

Simmons, Sr., was competent, that he had in fact knowingly

and intelligently waived his right to appeal, and as such, the

petitioners would have no standing as next friend or otherwise,

4

and as a matter of law, there was no mandatory appeal that

could not be waived by a competent defendant.

The trial court's decision in Simmons I was immediately

appealed to the Arkansas Supreme Court; and the Arkansas

Supreme Court, without any notice to Respondent Ronald

~ Gene Simmons, Sr., and without any meaningful opportunity

for him to be heard on the matter, granted the petitioners’

request for stay of execution. However, ultimately, the

Arkansas Supreme Court, after a full hearing on the matter,

reversed themselves and lifted the stay of execution, and

specifically found that Respondent Ronald Gene Simmons,

Sr., was competent and had knowingly and intelligently

waived his right to appeal; that the petitioners as such would

have no standing as next friend or otherwise; and that the law

of Arkansas and the Constitution of the United States of

America do not require a mandatory appeal that cannot be

waived by a competent defendant.

Immediately thereafter, the petitioners in Simmons I filed

for a petition for writ of habeas corpus in Federal District

Court contending essentially the same things, and again, the

Federal District Judge, without any notice to Respondent

Ronald Gene Simmons, Sr., and without any meaningful

opportunity for him to be heard on the issue, granted a stay of

execution. On September 23, 1988, Federal District Judge G.

Thomas Eisele denied the petitioners’ writ of habeas corpus

“insofar as it attempted to assert any claim that Respondent

Simmons may not make a knowing and intelligent waiver of

any right he may have to state court appellate review by reason

that petitioners do not have standing to assert such a claim, and

this Court therefore lacks jurisdiction over such claim.’ In a

hearing set for September 29, 1988, at 10:00 a.m., Mr. Simmons

was brought before Judge Eisele for the purpose of ascertain-

ing whether Simmons did in fact wish to waive further judicial

review of his state court conviction and sentence, and on

September 29, 1988, Judge Eisele ordered Simmons committed

to the custody of the Attorney General for a period of thirty

days to be transferred to the Medical Center for Federal

Prisoners at Springfield, Missouri, for a psychiatric obser-

vation and examination, during that period to. determine

Simmons’ present competence to waive habeas corpus relief,

with a report of the examinations to be filed with the Court

promptly upon conclusion. On September 29, 1988, Judge

Eisele entered an order appointing Attorney John Wesley Hall

as an expert to review the state and federal records in Simmons’

case, and to advise Simmons independently as to the merit of

any arguments which might be made on Simmons’ behalf. On

October 18, 1988, Judge Eisele ordered the court reporter

for the Circuit Court of Franklin County, Arkansas, to

immediately undertake and complete the preparation of a

transcript of all proceedings of record in that Court in

connection with the trial of Simmons. On December 29, 1988,

Judge Eisele ordered:

The Court finds Simmons is competent to waive Federal

habeas corpus review of his conviction and sentence. After

court-appointed expert informs the Court of his com-

pleted review, the Court will order Mr. Simmons’ return

to Litthe Rock to confer with the expert. Thereafter a

hearing will be held to give Mr. Simmons the opportunity

to make a knowing and intelligent waiver of his rights to

habeas corpus review.

On March 8, 1989, Judge Eisele ordered Simmons to

confer with the Court-appointed expert, John Wesley Hall, on

the morning of 3-9-89, at the Federal Courthouse in Little

Rock. The Judge further ordered:

A hearing will be held at 1:30 p.m., at which time Mr. Hall

and Mr. Simmons will report upon their conference, and

Mr. Simmons shall make known his desires as to waiver of

federal review of his state court conviction.

6

On March 9, 1989, Judge Eisele ordered, on the basis of the

findings and conclusions stated in open court:

The petition for habeas corpus is dismissed. The tempor-

ary stay of execution filed on 8-3-88 is dissolved and set

aside.

On February 28, 1989, attorney John Wesley Hall, Jr., the

expert appointed by Judge Eisele, after reviewing the complete

transcript of the case and visiting personally with Mr.

Simmons, filed his report. Said report does not indicate any

basis for ineffective assistance of counsel, and in reviewing the

psychiatric and psychological evaluation filed with the court

of 11-29-88, and other matters before the Court, Judge Eisele

found Mr. Simmons competent to waive federal habeas corpus

review of his conviction and sentence.

On February 10, 1989, the Simmons II trial was held, anda

Johnson County jury convicted Simmons of capital murder

and sentenced him to death by lethal injection to be carried out

on March 16, 1989, at 7:00 a.m. Following the trial, Mr.

Simmons notified the trial judge of his desire to waive his

appeal, and after an evidentiary hearing held on March 1, 1989,

the trial judge found that Simmons was competent to waive his

right to a direct appeal. In accordance with the Arkansas

Supreme Court's decision in Franz v. State, 296 Ark. 181, 754

S.W.2d 839 (1988), Simmons submitted to the Supreme Court

of Arkansas a transcript of the lower court's proceedings along

with his petition and request for expedited review. After

careful review of those lower court proceedings, the Arkansas

Supreme Court granted petitioner Simmons’ request. After

noting that the trial court considered and made a part of this

proceeding the same psychological evaluations that were

introduced in Franz, in addition the trial court added to the

record the forensic evaluation which was filed in a proceeding

before the United States District Court, Eastern District of

7

Arkansas, and the court further found that the trial judge and

Simmons’ counsel performed an exceptional job in examining

and exploring Simmons’ capacity to understand the choice

between life and death and his ability to know and to

intelligently waive any and all rights he might have in

an appeal of his sentence. In addition, Simmons’ counsel

thoroughly discussed seven possible points that could be

argued for reversal on appeal, and Simmons responded by

stating he understood those points and that he rejected all

encouragement and suggestions to appeal. Simmons v. Staie,

766 S.W.2d 423, Ark. (1989).

After this last ruling, as mentioned earlier, Respondent

Ronald Gene Simmons, Sr., was enjoying his last meal on the

15th day of March, 1989, prior to being executed at 7:00 a.m. on

the following morning, when he happened to notice the

monitor on the TV in the room, a news flash that the U.S.

Supreme Court had stayed his execution pursuant to an

application for stay of execution pending petition for writ of

certiorari to the Supreme Court of Arkansas, filed herein by

Petitioner Jonas H. Whitmore, individually and as next friend

of Ronald Gene Simmons. This stay of execution by the U.S.

Supreme Court was granted without any notice to respondent

Ronald Gene Simmons, Sr., and without any meaningful

opportunity for him to be heard on the issue.

Subsequent to that ruling by the High Court, the peti-

tioners in Simmons I filed a notice of appeal to the 8th Circuit

Court of Appeals, and thereafter, filed a motion for stay of

proceedings pending the outcome in the Simmons II case that

is presently before the U.S. Supreme Court. The State of

Arkansas, through its Attorney General's office, filed a

response essentially acquiescing that the proceedings in the

8th Circuit Court of Appeals in Simmons I should be stayed

pending the outcome of Simmons II before this court, and

again, without any notice to Respondent Ronald Gene

8

Simmons, Sr., and without any meaningful opportunity for

him to be heard, the 8th Circuit Court of Appeals issued its

order staying all of those proceedings pending the outcome of

Simmons II before the U.S. Supreme Court.

On July 3, 1989, the U.S. Supreme Court granted writ of

certiorari. On April 1, 1989, Simmons filed a motion to be

declared a party in the proceedings, which the Clerk later ruled

was unnecessary, and on August 2, 1989, Simmons and the

attorneys for the Siate of Arkansas filed a joint motion

requesting additional time and an opportunity for Simmons to

participate in the oral argument so that his personal interests

can be asserted prior to final resolution of this matter.

9

SUMMARY OF ARGUMENT

The bulk of petitioner's argument is grounded in three

cases, Gregg v. Georgia, 428 U.S. 153, 1976; Jurek v. Texas, 428

U.S. 262, 1976; and Proffitt v. Florida, 428 U.S. 242, 1976. But

what petitioner fails to recognize is that a later case is more

clearly decisive on the question of mandatory appeal, and that

case is Gilmore v. Utah, 429 U.S. 1012, 1976.

Petitioner attempts to characterize Arkansas as the only

state with a death penalty statute which does not by statute or

case law mandate a non-waivable appellate review of either the

conviction or the sentence imposed. However, the only case

going before the Supreme Court on this question was Gilmore.

Therefore, it is not clear whether any state in the nation has a

mandatory appeal that cannot be waived by a competent

defendant. Certainly, Arkansas has no prohibition against a

waiver if it is by a competent defendant who has made a

knowing and intelligent waiver under safeguards enumerated

by the law of the state.

Simmons does not believe that the Arkansas death penalty

statute is subject to being arbitrarily and capriciously imposed,

and he does not assert that it is in his case. However, the

numerous safeguards that are built into the statutory scheme in

Arkansas could better be addressed by the respondent State of

Arkansas in its brief. Simmons would suffice to say that as a

matter of fact, it has not been subject to being arbitrarily and

capriciously imposed in the State of Arkansas for the past

twenty-six years, because no one has been executed in Arkansas

during that period of time. ’

Allowing a waiver of appellate review in capital cases

under certain conditions is not contrary to public policy or

adverse to the rights of society. For the prisoner convicted and

condemned by society and restrained in a tiny cell with

10

practically no freedom, the option of termination of appeals

and being executed may represent the only opportunity to

exercise any personal choice in order to affect his or her fate.

For the abolitionist, this may be the most difficult aspect of the

problem, for granting the condemned person the right to bring

on death affronts their belief in the sanctity of human life. But

what must be remembered at all times is that the life involved is

the life of the prisoner. It is his or her life at stake, his or her

personal autonomy, and not that of the abolitionist. (Quoting

from Urofsky, A Right to Die, Termination of Appeal for

Condemned Prisoners, Vol. 75, No. 3, The Journal of Criminal

Law and Criminology, 553, 1984.)

Petitioner Whitmore does not have standing on any of the

traditional grounds, and he has failed to even allege grounds

for standing. Instead he asks this Court to grant an exception

and relax the requirements for standing so that the Court may

address what petitioner characterizes as the abridgement of

societal rights, and to remedy it, he says this Court should

grant standing to any citizen. To this, respondent Simmons

would argue that in the first place, societal rights are not being

abridged but are being served in this case; secondly, the

petitioner has no standing in this matter; and thirdly, citizens

generally should not be able to acquire standing as next friend

or otherwise in cases of this nature unless some bases exist for

their claims. To relax the standards as requested by the

petitioner would be to enlarge the jurisdiction of this Court in

direct violation of Article Three of the United States Consti-

tution opening the door to allow any citizen in any ca’pital case

to intervene and thwart the workings of the Court by claiming

next friend status.

11

ARGUMENT

IA

WHETHER THE EIGHTH AMENDMENT'S BAN

AGAINST CRUEL AND UNUSUAL PUNISHMENT

REQUIRES A MANDATORY APPELLATE REVIEW IN

ALL CASES IN WHICH THE DEATH PENALTY IS

IMPOSED.

In Whitmore v. State, 299 Ark. 55 (1989), Justice Tom

Glaze writing for the majority said:

[1] 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... .

Whitmore’s Rule 37 petition here and his intervention in

the Simmons case, now pending in the United States

Supreme Court, depict only one of the problems — albeit

an al.surd one — that the courts face when attempting to

bring an end to criminal cases once they arelaunched 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,

12

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 (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 (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 examina-

tions 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 integrity, we can ill afford to permit

such a willful and improper manipulation of post-

conviction procedures by a defendant.

The case before this Court could more accurately be

capuoned as, “Abolitionists vs. Capital Punishment.” The

arguments advanced by the petitioner, and many of the

responses brought on by necessity by the respondents, in reality

will have very little todo with Mr. Whitmore or Mr. Simmons.

It would appear that they may not be relevant to these

proceedings, and a question still remains whether Mr.

13

Simmons isa party, and if he is a party or not, will he be able to

argue his side in this matter. If Simmons were allowed to argue

these weighty notions raised by petitioner, Sinmmons’ argu-

ment would be that common sense should prevail; that the

Court should go back to the basics of stare decisis, because both

of the points raised by petitioner, mandatory appeal and

standing, have heretofore been decided against petitioner in a

single case, Gilmore v. Utah, 429 U.S. 1012 (1976). The bulk of

petitioner’s argument is grounded in three cases: Gregg v.

Georgia, 428 U.S. 153 (1976); Jurek v. Texas, 428 U.S. 262

(1976); and Proffitt v. Florida, 428 U.S. 242 (1976). But what

petitioner fails to recognize is that a later case is more clearly on

point, as determinative of the issues that petitioner wants to

raise on this appeal. That case is Gilmore, which should be

binding precedent that anyone else could follow and rely

upon. The only distinction between the Gilmore case and the

Simmons case is that the petitioner does not question

Simmons’ competency, and could not, since Mr. Simmons’

competency has been determined recently by three inde-

pendent court evaluations. Simmons v. State, 766 S.W.2d 423

(Ark., March 10, 1989).

Petitioner contends that Gilmore is not dispositive of the

issue of mandatory appeal but is instead relevant only to the

issue of third party standing.

Gilmore was a landmark decision. The abolitionists had

been successful in abolishing capital punishment for a decade

or more, and then Gilmore came along, willing to waive his

rights to appeal his conviction, willing to waive any flaws

in the trial procedures below, willing to waive even the

constitutionality of a statute under which he was convicted, at

a time when there were serious questions about the consti-

tutionality of the Utah statute, and,even some concern about

Gilmore's competency. In spite of this, the U.S. Supreme

Court allowed Mr. Gilmore to forego any appeal of his

conviction, and in fact, be executed. Now the petitioner

14

contends that the Arkansas Supreme Court and the respondent

State of Arkansas have misinterpreted both the issues of

Gilmore and its precedential value on the question of

mandatory appeal.

After a full reading of the text of the Gilmore decision, the

only basis for petitioner's argument in that regard is Chief

Justice Burger’s comments:

In his dissenting opinion, Mr. Justice White suggests that

Gary Mark Gilmore is unable, as a matter of law, to waive

the right to state appellate review. Whatever may be said

as to the merits of this suggestion, the question simply is

not before us. Gilmore, duly found to be competent by the

Utah courts, has had available meaningful access to this

Court, and has declined expressly to assert any claim here,

other than his explicit repudiation of Bessie Gilmore's

effort to speak for him as next friend. It follows therefore

that the Court is without jurisdiction to consider the

question posed by the dissent. P

When Chief Justice Burger said the question (of man-

datory appeal) is simply not before us, is perhaps subject to

different interpretations. Petitioner's interpretation is that the

Gilmore case is not dispositive on the issue of mandatory

appeal. However, if the four Justices dissenting could have

mustered one more Justice on their side of the argument, the

holding of the case would have been that Gary Mark Gilmore

was unable as a matter of law to waive the right to state

appellate review, and the petitioner's argument then would

have been that the Gilmore case is totally dispositive of the

issue of mandatory appeal, and is good precedent and should

be followed.

There is yet another argument why the Gilmore case is

dispositive on the issue of mandatory appeal. Mr. Chief Justice

“—?

15

Burger writing for the majority said:

After examining with care the pertinent portions of the

transcripts and reports of state proceedings, and the

response of Gary Mark Gilmore filed on December 8, Iam

in complete agreement with the conclusion expressed in

the Court's order that Gary Mark Gilmore knowingly and

intelligently, with full knowledge of his right to seek an

appeal in the Utah Supreme Court, has waived that right.

Question: How can you waive that right to appeal if ‘‘the

Eighth Amendment’s ban against cruel and unusual punish-

ment requires a mandatory appellate review in a death penalty

case which cannot be waived by the defendant’? The majority

decision in the Gilmore case in determining that he had waived

his right to appellate review is stating, at least by implication,

that the Constitution allows for such a waiver. If the majority

felt otherwise, they could have denied Gilmore’s attempted

waiver, with or without Bessie Gilmore’s next friend appli-

cation. So the Gilmore case is not just a question of standing as

advocated by the petitioner. It is binding precedent on the

question of mandatory appeal and it is good precedent on the

issue of standing, and to this day, the Gilmore decision has

never been overruled. It reflects contemporary standards of

decency in our changing society by recognizing that even a

murderer has certain rights and dignities, and freedom of

choice, and that no third party, no matter how noble their

intentions, should be allowed to decide what course of action is

best for a particular individual, notwithstanding that indi-

vidual’s contrary views.

16

A MANDATORY APPELLATE REVIEW OF DEATH

PENALTY CASES IS NOT NECESSARY TO REFLECT

CONTEMPORARY STANDARDS OF DECENCY.

Petitioner blatantly states that “Arkansas is the only state

with a death penalty statute which does not by statute or case

law mandate a non-waivable appellate review of either the

conviction or the sentence imposed.” This assertion, although

unfounded and not properly documented, begs the question.

The question is, “Can any state, by statute, case law, or

otherwise, mandate a non-waivable appellate review of either

the conviction or the sentence imposed in a death penalty

case?’’, and the only answer is, that Utah did not in 1976. See

Gilmore. Respondent Simmons would dispute the assertion

that these other states have mandatory appeals that cannot be

waived in a death penalty case, and even if they did have sucha

rule, it could not be asserted as petitioner is attempting to do

so, until such time as that state’s rule were tested before the U.S.

Supreme Court for its constitutionality. Respondent Simmons

is not awaré of any of these other states referred to by petitioner

as ever having gone before the U.S. Supreme Court to uphold

the constitutionality of such a mandatory rule, and respondent

Simmons would contend that if and when one of those states

has a proper occasion to test any purported mandatory appeal,

the U.S. Supreme Court will strike the rule down as being

unconstitutional to a capital defendant, as being violative of a

capital defendant's constitutional rights, of religion under the

First Amendment, of the right of privacy in the “liberty”

protected by the due process clause of the Fifth and Fourteenth

Amendments and possibly the Ninth Amendment conceived as

a rule against cramped construction, or from the privileges and

immunities clauses of Article IV and of the Fourteenth

Amendment. Encompassing rights to shape one’s inner life

and rights to control the face one presents to the world, they

17

have materialized like holograms from the ‘‘amanations”’ and

‘“‘penumbras”’ most recently dubbed the ‘‘shadows of the First,

Third, Fourth, and Fifth Amendments’’. They elaborate the

“blessings of liberty’’ promised in the Preamble, and have been

held implicit in the Eighth Amendment's prohibition against

cruel and unusual punishments. (Quoting in part from

Professor Tribe, p. 613, Southern California Law Review,

Vol. 54.)

IC

WHETHER THE ARKANSAS DEATH PENALTY

STATUTE IS SUBJECT TO BEING ARBITRARILY AND

CAPRICIOUSLY IMPOSED IN THE ABSENCE OF

MANDATORY APPELLATE REVIEW.

Simmons does not believe that the Arkansas death penalty

statute is subject to being arbitrarily and capriciously imposed,

and he does not assert that such is the case. Simmons believes

that the respondent State of Arkansas can better address this

point being raised by petitioner, because respondent State of

Arkansas is more familiar with all of the procedures and

safeguards that are included in the statutory scheme for

administering the death penalty than is respondent Simmons.

However, Simmons would contend that the Arkansas

death penalty statute has not been subject to being arbitrarily

and capriciously imposed in the absence of mandatory review

for the past twenty-six years, because as a matter of fact, no one

has been executed in Arkansas for the past twenty-six years,

and according to a recent U.P.I. release from the Bureau of

Justice statistics, an arm of the Justice Department, it is

reported that only twenty-five people were executed in eight

states in 1987, the most since the Supreme Court reinstated the

death penalty in 1976, and as of December 1, 1988, a record of

1,984 offenders were on death row in thirty-four states.

18

Obviously from these statistics, capital punishment has not

been arbitrarily and capriciously imposed in Arkansas or in the

nation in the absence of mandatory appellate review.

ID

ALLOWING A WAIVER OF APPELLATE REVIEW IN

CAPITAL CASES UNDER CERTAIN CONDITIONS IS

NOT CONTRARY TO PUBLIC POLICY OR ADVERSE

TO THE RIGHTS OF SOCIETY.

In Urofsky, A Right to Die: Termination of Appeal for

Condemned Prisoners, Vol. 75, No. 3, The Journal of Criminal

Law & Criminology, 553, 1984:

Although the death sentence is “qualitatively different

from a sentence of imprisonment” as the Supreme Court

has recognized, the doctrine of waiver in this area is

derived substantially from general rules of waiver in

criminal cases. Under early common law doctrine, an

accused could not waive any rights intended for his

protection. Later, he was allowed to waive those personal

to himself, but not those in which the state maintained

an interest. Currently, if there is no constitutional or

statutory prohibition, or any public policy involved, an

accused may waive any privilege. (See Schick v. United

States, 195 U.S. 65, 71 [1904].) Page 562...

If it is agreed that current law allows condemned

prisoners to terminate their appeals, it must nonetheless

be noted that opponents of capital punishment believe

that they should not be allowed to do so. The most

common argument is that acquiescence in the sentence

amounts to state-abetted suicide. In his dissent in Bishop,

Justice Marshall, who has consistently argued, albeit

unsuccessfully so far, that the death sentence is uncon-

stitutional under the Eighth Amendment, charged that

19

“the Court has permitted the State’s mechanism of

execution to be triggered by an entirely arbitrary factor:

the defendant's decision to acquiesce in his own death.

In my view, the procedure the Court approves today

amounts to nothing less than state-administered suicide.”’

For abolitionists, the death penalty is “‘no less [barbarous ]

on those occasions when a murderer welcomes his own

legal execution” than when the prisoner involuntarily

goes to death. . . . For an abolitionist, there is apparently

no middle ground; any execution by the state must be

resisted. Pp. 565-566.

If one looks more closely at these arguments and examines

them in the light of both legal and ethical considerations,

their surface logic fails. First, ever since Gary Gilmore

ended a ten-year moratorium on executions in this

counuy, each new execution has brought dire warnin’s of

an impending national bloodbath. Certainly with nearly

thirteen hundred persons on death row and a net addition

of approximately one hundred each year, the nation

would have to execute ten persons a week for three years

just to catch up with the backlog. But the facts show that

despite indications of a growing dissatisfaction with

endless appeals, the courts continue to insist on indi-

vidualized evaluations of each case. Even Bedau concedes

that the “avalanche” has failed to materialize. Unless

and until firm evidence is presented that voluntary

termination of appeal does in fact affect the rights ofother

prisoners, there should be no restrictions on these persons

that prevent them from exercising their rights. Page

SOG dict

If, as the abolitionists argue, capitai punishment is an

inhumane deprivation of rights as well as a degradation

of the individual, then why should not death row inmates

be allowed — if they themselves so choose — to accept

their punishment with dignity? It is certainly ironic that

20

in the Gilmore case, the American Civil Liberties Union

passionately fought to prevent the execution of a

convicted murderer who wished to die, claiming that

Gilmore had no right to do so. It then turned around and

argued that a right to die existed for Karen Ann Quinlan,

who was unable to express her wishes one way or the

other. Page 568...

The Supreme Court has never addressed the issue of

suffering attached to the death sentence aside from the

actual mode of execution, and that case came down in

1890 when the Court approved the use of the electric chair.

Punishments are cruel, held the Court, “when they

involve torture or a lingering death; but the punishment

of death is not cruel, within the meaning of that word as

used in the Constitution. It implies something inhuman

and barbarous, something more than the mere extinguish-

ment of life.’’ Not until 1958, in a non-death penalty case,

did the Court hold that a person’s humanity must be

respected regardless of guilt or crime. Abolitionists

consider capital punishment in itself violative of the

Eighth Amendment, but even those who favor the death

penalty ought to concede that months or years on death

row is certainly ‘“‘more than the mere extinguishment of

life.” If one is going to argue that even condemned

murderers retain some spark of humanity, some rights of

individual autonomy, then something must be done to

either improve death row conditions, or permit those who

wish to terminate that existence through execution of

sentence the right to do so. Page 573. . .

For the prisoner, convicted and condemned by society and

restrained in a tiny cell with practically no freedom, the

option of terminating appeals and being executed may

represent the only opportunity to exercise any personal

choice in order to affect his or her fate. For the abolli-

tionists, this may be the most difficult aspect of the

21

problem, for granting the condemned person the right to

bring on death affronts their belief in the sanctity of

human life. But what. must be remembered at all times is

that the life involved is that of the prisoner; it is his or her

life at stake, his or her personal autonomy, and not that of

the abolitionist. Pp. 578-579.

Quoting from Johnson, The Death Row Right to Die:

Suicide or Intimate Decision? 54 Southern California Law

Review, 575 (1981):

In order to be considered suicide, the victim must also

actively set the death producing agent in motion. The

terminal patient, to the extent that his physical condition

results from natural causes and is not self-induced,

certainly cannot be classified as suicidal because he

refuses further treatment. Neither can the capital defend-

ant, who may have committed murder for many other

reasons, be said to have put himself on death row in an

attempt at self-destruction. Society, represented by a jury

of his peers, concluded that the prisoner deserved to die;

he had no control over the outcome of their deliberations.

Pp. 617-618.

What right does petitioner Jonas H. Whitmore have to

unilaterally interject himself into Mr. Simmons’ case and

thereby deny Mr. Simmons the basic personal right of choice

and to further subject Mr. Simmons to the prolonged agony

and suffering brought about by these unreasonable and

unwanted delays? The obvious answer is that Mr. Whitmore

does not have that right.

In his brief, petitioner attempts to chastise Simmons’

attorneys, trial judge, and perhaps by implication the Arkan-

sas Supreme Court, Federal District Judge G. Thomas Eisele,

and court-appointed expert, auorney John Wesley Hall, when

petitioner raises these questions: ‘“‘Who has informed Mr.

~~

Simmons of trial error: his attorneys? Who advocates his death?

The trial judge who, presumably, ruled on the questions of

evidence? And who has informed Mr. Simmons as to whether

he received effective assistance of counsel at the trial?”’

In raising these questions, petitioner ignores the apparent

answers which are noted throughout the voluminous record

that was established in both Simmons I and Simmons II.

Specifically, in Simmons | after the trial court had already

conducted two or more hearings and declared Simmons to be

competent and that he had knowingly and intelligently waived

his rights to appeal, thereafter the Arkansas Supreme Court

made its review, and determined that Simmons was competent

and that he knowingly and intelligently waived his rights to

appeal, but more particularly thereafter, Federal District Judge

G. Thomas Eisele ordered Mr. Simmons to undergo additional

psychiatrict evaluation at a federal institution and ordered a

court clerk to prepare a complete transcript of the entire trial

record and appointed attorney John Wesley Hall as an expert

on constitutional criminal law, to review the entire record and

meet with and counsel with Simmons to personally advise him

independently of his rights to appeal and the grounds therefor,

and his federal habeas corpus rights. Thereafter, Attorney Hall

filed a very extensive seventy-four page report to advise

respondent Simmons on appealable issues in his May 1988

death sentence, and nowhere in that report is there any finding

of ineffective assistance of counsel, and Mr. Simmons has never

asserted any ineffective assistance of counsel, and neither

Federal District Judge G. Thomas Eisele, nor the Arkansas

Supreme Court, nor the trial court below has ever found any

basis for ineffective assistance of counsel.

In Simmons v. State of Arkansas, 766 S.W.2d 423 (Ark.

1989), the Arkansas Supreme Court stated in its per curiam

order:

The trial judge and petitioner's (Simmons’) counsel

*

oo 8 ee . -

23

performed an exceptional job in examining and explor-

ing the petitioner’s capacity to understand the choice

between life and death and his ability to know and to

intelligently waive any and all rights he might have in an

appeal of his sentence. In addition, petitioner's counsel

thoroughly discussed seven possible points that could be

argued for reversal on appeal, and petitioner responded

by stating he understood those points and that he rejected

all encouragement and suggestions to appeal.

In Lenhard v. Wolff, 603 F2d 91 (1979), the Court held that

court-appointed counsel had no standing as an accused’s next

friend to file petition for writ of habeas corpus and application

for stay of execution of sentence imposed on accused in. the

absence of some showing that accused lacked capacity to

pursue relief in federal court; and, in Hamblin v. State of

Florida, 527 So.2d 800 (1988), the court held:

Hamblin had a constitutional right to represent himself,

and he was clearly competent to do so. To permit counsel

to take a position contrary to his wishes through the

vehicle of guardian ad litem would violate the dictates of

Faretta. In the field of criminal law, there is no doubt that

“death is different,’ but, in the final analysis, all

competent defendants have a right to control their own

destinies.

“Generally, there is no constitutional right to appeal a

conviction.” See McCain v. Durston, 153 U.S. 684 (1894). This

cited authority appears in the recent case of Murray v.

Giarratano, ___ U.S. —_ (88-411, June 23, 1989). Therefore, if

there is presently no constitutional right to appeal a con-

viction, how can there be a constitutional prohibition against

waiving an appeal?

24

Il

WHETHER A THIRD PARTY HAS STANDING TO

ASSERT THE CONSTITUTIONAL RIGHTS WHEN THE

PARTY DIRECTLY AFFECTED DOES NOT ASSERT

THE RIGHT?

Petitioner Whitmore does not have standing on any of the

traditional grounds, and he has failed to even allege grounds

for standin,;. Instead, he asks this Court to grant an exception

and relax the requirements for standing so that the Court may

address what petitioner characterizes as the abridgement of

societal rights, and to remedy this, he says this Court should

grant standing to any citizen. To this, respondent Simmons

would argue that in the first place, societal rights are not being

abridged, but are being served in this case. Secondly, the

petitioner has no standing in this matter; and thirdly, citizens

generally should not be able to acquire standing as next friend

or otherwise in cases of this nature, unless some bases exist for

their claims. To relax the standards as requested by the

petitioner would be to enlarge the jurisdiction of this Court in

direct violation of Article Three of the United States Consti-

tution. And if petitioner Whitmore were granted standing in

this case, the Court would be opening the door to allow any

citizen in every capital case to intervene and thwart the

workings of the Court by claiming next friend status.

Also, to grant petitioner next friend status in the Simmons

case, this Court would clearly have to overrule the findings in

the Gilmore case, because even the petitioner cites the Gilmore

case as being controlling authority on the question of

standing. In Gilmore, Mr. Chief Justice, writing for the

majority stated: .

When the application for a stay was initially filed on

December 2, a serious question was presented as to

whether Bessie Gilmore had standing to seek the re-

ee

eer =

25

quested relief or any relief from this Court. Assuming the

Court would otherwise have jurisdiction with respect toa

“next friend” application, that jurisdiction would arise

only if it were demonstrated that Gary Mark Gilmore is

unable to seek relief in his own behalf. See Rosenberg v.

United States, 346 U.S. 273, 291, 97 L.Ed. 1607, 73 S. Ct.

1152 (1953) (separate opinion of Jackson, J., joined by five

Members of the Court). However, in view of Gary Mark

Gilmore's response on December 8, 1976, it is now clear

that the ‘‘next friend” concept is wholly inapplicable to

this case. Since Gary Mark Gilmore has now filed a

response and appeared in his own behalf, through his

retained attorneys, any basis for the standing of Bessie

Gilmore to seek relief in his behalf is necessarily

eliminated.

Petitioner also claims to be a citizen of the State of

Arkansas, but offers no proof on this point other than the

allegation that he is presently confined on death row in

Arkansas prisons. Respondent Simmons would contend that

petitioner Whitmore is not a citizen of the State of Arkansas,

and where petitioner Whitmore claims to have standing to

assert a constitutional violation as it directly involves rights

afforded to him by the State of Arkansas and his interest to have

the Simmons case in the data base for comparative review in his

death penalty case, respondent Simmons would contend that

petitioner Whitmore has already had his case affirmed on

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

[1988]), and further, has had his Rule 37 petition denied

(Whitmore v. State, 299 Ark. 55 [1989]). Also see Pulley v.

Harris, 465 U.S. 37, 79 L..Ed.2d 29, 104 S. Ct. 871 (1984), where

this Court held:

There is thus no basis in our cases for holding that

comparative proportionality review by an appellate court

is required in every case in which the death penalty is

imposed and the defendant requests it. Indeed, to so hold

26

would effectively overrule Jurek and would substantially

depart from the sense of Gregg and Proffitt. We are not

persuaded that the Eighth Amendment requires us to take

that course.

Quoting from Johnson, The Death Row Right to Die:

Suicide or Intimate Decision? 54 S. Cal. Law Review, 575

(1981):

Although next friend proceedings have been specifically

approved in cases of infancy, incompetency, or lack of

time, the death row inmate’s desire to be executed,

coupled with his refusal to appeal, cannot alone confer

standing upon a next friend that a party would not

ordinarily have under recognized principles. A showing

of the capital defendant's incompetence must be made.

(See Gilmore). . .

When the date of execution is imminent, next friends will

usually be successful in obtaining temporary stays of

execution, pending a determination of the defendant's

competency and ability to represent his own interests.

Such a stay, however, will not be continued after the

condemned prisoner has been found competent to waive

appellate review of his death sentence. (Citing Lenhard v.

Wolff), Pp. 584, 585.

Next friends will usually be successful in obtaining

TEMPORARY STAYS OF EXECUTION, and here lies the

problem for the death row inmate, the state, society, victims of

crime, and the public generally who believe in the fair and

expeditious enforcement of capital punishment. In the past,

not by law, but by practical application, a temporary stay has

been virtually automatic upon the request of anybody

claiming, rightly or wrongly, next friend status, and with the

apparently endless cycle of appellate litigation on capital

a ee ae en

——

27

cases, a temporary stay can easily translate into a decade or

more, but the worst evil of this procedure has never been

addressed, and probably never will, because it is always a moot

question. The question is, ‘What remedy, if any, does a death

row inmate have when his constitutional rights are violated by

some interloper claiming next friend status?”’ Clearly, peti-

tioner Whitmore could not have taken Simmons’ car or any of

his property, liberty, or life, without due process of law under

the Fifth Amendment of the United States Constitution. Due

process of law is generally considered to be notice and a

reasonable opportunity to be heard before the action is taken

against you. In every instance in this case where the court has

granted a stay of execution, first the Arkansas Supreme Court;

second Federal District Court; third the Eighth Circuit Court

of Appeals; and fourth the U.S. Supreme Court; each and every

time this was done to Mr. Simmons without any notice to

Mr. Simmons, and without any opportunity for him or his

attorneys to be heard on the question, and as a direct result of

these unwanted stays of execution being granted, this has

caused Mr. Simmons by his own admission to suffer unneces-

sarily in clear violation of his Eighth Amendment rights

against cruel and unusual punishment. Each and every time

Mr. Simmons attempted to complain about this in the court

processes below, it was always disregarded as a moot question

because the stay had already been granted. Surely now, before

this Court of last resort, this Court will take cognizance of

respondent Simmons’ complaint about the violations of his

constitutional rights as inflicted by petitioner Whitmore and

others who have wrongfully characterized themselves as ‘“‘next

friends’. There is precedent for a court addressing what would

otherwise be classified as a moot question. Jn re Estate of

Brooks, 32 Il. 2d 361, 205 N.E.2d 435 (1965), in this “landmark

case upholding a patient’s right to refuse treatment on

religious grounds, Mrs. Brooks, a Jehovah's Witness, refused

to accept blood transfusions necessary for her survival on the

ground that the tenets of her faith forbade such procedures.

28

Although transfusions had already been administered pur-

suant to the trial court's order, the Supreme Court of Illinois

still chose to consider the issues involved as they were of

substantial public interest. In condemning the trial court's

action as a clear violation of the patient's religious freedom,

the Illinois Supreme Court distinguished Brooks from other

cases in which the state’s interest in protecting the life of an

unborn child, as well as in safeguarding the health and welfare

of minor children, were sufficiently compelling to justify

forced transfusions. Mrs. Brooks was not pregnant, had no

minor children to care for, and did not, by her actions, present

any ‘clear and present danger’ to society's welfare.”

Respondent Simmons respectfully asks this Court to

address this question in the case before it.

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

A total stranger to Julius and Ethel Rosenberg filed a next

friend petition for stay of execution of the defendants’

death sentences, which was temporarily granted. Justice

Jackson, in a concurring opinion, discussed the potential

for abuse inherent in next friend standing:

“Every lawyer familiar with the workings of our criminal

courts. . . will agree that this precedent presents a threat

to orderly and responsible representation of accused

persons and the right of themselves and their counsel to

control their own cases. ... That such disorderly

intervention is more likely to prejudice than to help the

representation of accused persons in highly publicized

cases is self evident. We discountenance this practice.”

In the present case, petitioner Whitmore has no standing

to intervene, and this Court therefore is lacking in jurisdiction.

And the question of mandatory appeal was decided in Gilmore

29

thirteen years ago, and it has never been overruled. Allowing a

prisoner some degree of autonomy and dignity and personal

choice in these matters is not against society's interest but in

furtherance of it. Therefore, petitioner's request should be

denied.

30

CONCLUSION

For the reasons and authorities cited above, the decision of

the Arkansas Supreme Court should be affirmed.

Respectfully submitted,

JOHN Harris

ATTORNEY AT LAw

Suite 110, 500 BUILDING

RUSSELLVILLE, AR 72801

(501) 968-3009

Member of the Bar of the Court

and,

Rosert E. IRWIN

ATTORNEY AT LAw

P. O. Box 444

RUSSELLVILLE, AR 72801

(501) 968-3595

Attorneys fos Respondent,

Ronald Gene Simmons, Sr.

CERTIFICATE OF SERVICE

I, John Harris, hereby certify that the annexed Brief for the

Respondent Ronald Gene Simmons, Sr., has been timely filed,

pursuant to Rules 30 and 35 of the Rules of this Court by

sending a copy via first class mail, postage pre-paid, addressed

to the Clerk of this Court.

I further certify that I served the said Brief on Petitioner by

placing a copy in the United § tates Mail, postage prepaid, to:

Arthur L. Allen, Attorney at Law, Allen & O’Hern, First

Commercial Building, 400 West Capitol, Suite 1700, Little

Rock, AR 72201; and that I served the said Brief on Respondent

State of Arkansas by placing a copy in the United States Mail,

postage prepaid, to: The Hon. Steve Clark, Attorney General

of Arkansas, Tower Building, Suite 200, Fourth & Center

Streets, Little Rock, Arkansas 72201, on the 22nd day of

September, 1989.

/s/ John Harris

Attorney for Respondent

Ronald Gene Simmons, Sr.