Respondents Brief — Whitmore v. Arkansas

g

5 ro Fr Ge > . -

‘eweose tee socaseener i evees..- Respondent

ee Y wry 4

ets

¥ : -

dee ee :

, ey + ;

+;

&

4 Sn ide bwh'an’ op idee « Petittoner

4 <4 S VSS OR 7

ow Le >

7

no | bees es., Respondent

-

II.

TABLE OF CONTENTS

TREE, Ge BAF ROMs Bee cbse ccccccncccccccecs

DET ASGGUOU Cs eb eViccectarcccccecccse

CONSTITUTIONAL PROVISIONS INVOLVED ..

STATEMENT OF THE CASE .......2ccsccccccess

SUMMARY OF THE ARGUMENT ...............

tT ccknanestivenseéedseccceeodroceoces

Whether the Eighth Amendment’s ban against cruel

and unusual punishment requires mandatory appel-

late review in all cases in which the death penalty is

imposed.

Whether petitioner Whitmore has standing to assert

the constitutional rights of the genuine party at

interest, Ronald Gene Simmons, after Simmons has

made a knowing and intelligent decision to waive

assertion of his own rights.

CPPTEMIUEIES Seo cvecescdvcciccccccceccccccces

2

> EE a a a

ii

TABLE OF AUTHORITIES

Page

CASES:

Allen v. Wright, 468 U.S. 737 (1984) .....-.0-eeeeeeeee 20

Booth v. Maryland, 482 U.S. 496 (1987) ...... foosdumens 1]

California v. Brown, 479 U.S. 538 (1987) .......020005- 1]

Caplin and Drysdale v. United States,

109 S. Ce. 2646 (1989) 2... cccccccccccvcccccccccce 20

Coker v. Georgia, 433 U.S. 584 (1977) .. 2... eeeeeeeees 18

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

cert. denied, 434 U.S. 878, reh. denied, 434

U.S. O77 (1IDTT). wcccveccsccecesessscvesessesocess 9

Ford v. Wainwright, 477 U.S. 399 (1986) ...........--- 18

Franklin v. Lynaugh, 108 S. Ct. 2320 (1988) ........... 1]

Franz v. Lockhart, 700 F.Supp. 1005 (E.D. Ark. 1988) ....5

Franz v. State, 296 Ark. 111, 751 S.W.2d 355 (1988) ...... 5

Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988) ...... 5

Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986) ....15

Furman v. Georgia, 408 U.S. 238 (1972)... 22.2.2 ee eees 17

Gilmore v. Utah, 429 U.S. 102 (1976) .........000e0ees 14

Gregg v. Georgia, 428 U.S. 153, DGD (ISGP cavevescssoes 8

Johnson v. Mississippi, 108 S. Ct. 1981 (1988).......... 12

Jurek v. Texas, 428 U.S. 262 (1976) ........ceceececees 13

Lockett v. Ohio, 438 U.S. 586 (1978) ..........5 eee eens 12

ra ili

Maynard v. Cartwright, 108 S. Ct. 1853 (1988) ......... 1]

McCleskey v. Kemp, 481 U.S. 279 (1987) ........-.-45- 13

Murray v. Giarratano, 109 S. Ct. 2765 (1989) ........... 13

O'Shea v. Littleton, 414 U.S. 488 (1974) ........ 6 ee eee 20

Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987)..... 15

Penry v. Lynaugh, 109 S. Ct. 2934 (1989) ........-++++- 18

Proffitt v. Florida, 428 U.S. 242 (1976) .......-.0-0e0e- 13

Pulley v. Harris, 465 U.S. 37 (1984) ..... 66. e eee eee ees 8

Roberts v. Louisiana, 428 U.S. 325 (1976) .........645- 13

Ruiz and Denton, 280 Ark. 190,

655 S.W.2d 441 (1983) ........ ccc eee cecevceccees 21

Simmons v. State, 298 Ark. 193, 766 S.W.2d 422......... 6

Simmons v. State, 298 Ark. 255, 766 S.W.2d 423 ......... 6

Singleton v. Wulff, 428 U.S. 106 (1976) .........-0-45- 20

Spaziano v. Florida, 468 U.S. 447 (1984)... 2.0.6. eee eees 8

Stanford v. Kentucky, 109 S. Ct. 2969 (1989) ........... 18

Tison v. Arizona, 481 U.S. 137 (1987) ......00 cece eens 18

Trop v. Dulles, 356 U.S. 85 (1958) .... 2... e cece eee eee 18

Valley Forge Christian College v. Americans

United, 454 U.S. 464 (1982)... 2... eee eee ee eens 20

Whitmore v. State, 296 Ark. 308,

756 S.W.2d 890 (1988). ...... cece eee eereceeeees 20

7"

iv

Whitmore v. State, 299 Ark. 55,

Te Bee SC 8 be vc cavesccceccacsoescess 20

Woodson v. North Carolina, 428 U.S. 280 (1976) ....... 13

Zant v. Stephens, 462 U.S. 862 (1983) ..........2e eens: 12

UNITED STATES CONSTITUTION PROVISIONS

AND ARKANSAS STATUTES

Ark. Code Ann. §5-4-601 (1987) ........2ccceeeeeeeees 15

Ask. Code Amm. §5-4-GGE(S) o.oo ccccccccdcccsccccecves 16

Amt.. Cute Bam. BOG «Vickie deesicbeadiiccedueds 16

Bae. CD FR Bs on ca dose edie sries ck décecatd 16

Rat. Cae Rane. BGG iis oc cdcdicn cdiouddes ivve ses’ 16

Fs SE TE 60-6 00 copnsccananéoccecesées 16

Article III, §2 of the United States Constitution ......... 2

Eighth Amendment to the United States Constitution ...2

LAW REVIEW ARTICLES

AND TREATISES

Brilmayer, The Jurisprudence of Article Ill: Perspectives

on the “‘Case or Controversy”” Requirement,

SP PEUDU. Bice GUUN, GD LUPE cb cddoeddbevecscidceds 23

Carter, Maintaining Systemic Integrity in Capital

Cases: the Use of Court-Appointed Counsel to

Present Mitigating Evidence when the Defendant

Advocates Death, 55 Tenn. L. Rev. 95 (1987)....... 13

Dix, Appellate Review of the Decision to Impose

Death, GB Goa: Li. 5. G7 (IGT sce cscccsccsccccccce 13

Page

Goodpaster, Judicial Review of Death Sentences,

74 Jour. of Crim. L. and Criminology 786 (1983). ..13

Logan, Standing to Sue: A Proposed Separation of

Powers Analysis, 1984 Wisc. L. Rev.

eh es PE bdnb6enee ce ctccccreccescvecceses 23

Pascucci, Capital Punishment in 1984: Abandoning

the Pursuit of Fairness and Consistency,

69 Cornell L. Rev. 1129 (1984) ............. seeeee 13

Scalia, The Doctrine of Standing as an Essential

Element of the Separation of Powers,

17 Suffolk U.L. Rev. 881 (1983) ..........220000ee 23

U.S. Dept. of Justice, Bureau of Justice Statistics, Bull.,

Capital Punishment, 1987 at 5 (July 1988)......... 13

13 Wright, Miller and Cooper, Federal Practice and

Procedure: Jurisdiction §3135.4—.6 (2d ed. 1984) ...20

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 ......-0 000 eeeeeeeeeeees Petitioner

vs.

Se OT FEI oc vo sccccccccccecscccceees Respondent

RONALD GENE SIMMONS, SR. .......0e00eeeeees Respondent

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF ARKANSAS

BRIEF FOR RESPONDENT

THE STATE OF ARKANSAS

JURISDICTION

This Court has no jurisdiction to enter a judgment in

favor of petitioner Whitmore because Whitmore cannot satisfy

the “‘case or controversy"’ requirement of Article III, §2 of the

United States Constitution.

CONSTITUTIONAL PROVISIONS INVOLVED

The Eighth Amendment to the United States Constitution

provides in pertinent part:

“(n jor cruel and unusual punishment inflicted.”’

Article III, §2 of the United States Constitution provides

in pertinent part:

“(t]he judicial power shall extend to all cases, in law and

equity, arising under this Constitution, . . .”

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 the 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, 1987, and

continued to search the next day, December 29, 1987. In the

course of this search, the Deputy Sheriffs discovered bodies of

fourteen 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 Circuit Court (hereinafter Simmons 1). Subsequently,

in February of 1989, Simmons was tried in Johnson County

Circuit Court for the murders of the fourteen members of his

family whose bodies were discovered on December 238-29

(hereinaftér Simmons Il). 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 conviction for

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 Arkansas Supreme Court. After hearing this

expert testimony, the trial court found that Simmons was

sufficiently mentally 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. 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

mentally competent to waive hisinight 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 four

issues: (1) whether there should be a mandatory direct appeal to

the Arkansas Supreme Court in death penalty cases; (2) if such

a direct appeal is not required by the Eighth Amendment of the

United States Constitution or by Arkansas Rules of Criminal

Procedure, whether the Arkansas Supreme Court should

review Ronald Gene Simmons’ right to waive a direct appeal to

the Arkansas Supreme Court; (3) assuming that the Arkansas

Supreme Court does decide to review Ronald Gene Simmons’

waiver of his right to a direct appeal, whether Simmons was

sufficiently mentally competent to make a voluntary waiver of

his right toa direct appeal to the Arkansas Supreme Court; and

(4) whether Reverend Franz had standing as next friend to

assert Simmons’ right to a direct appeal to the Arkansas

Supreme Court. Franz v. State, 296 Ark. 111, 751 S.W.2d 355

(1988). After reviewing the briefs submitted by the parties and

transcripts of the two competency hearings that were held by

the Franklin County Circuit Court, the Arkansas Supreme

Court issued an 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 Consti-

tution 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). (J.A. 4-28).

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 mmtervene in

Simmons | to prosecute a direct appeal on Simmons’ behalf to

the Arkansas Supreme Court. 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 counse! prepare a lengthy report in order to

advise Simmons as to whether there were any reversible errors

that occurred in Simmons I, including ineffective assistance of

trial counsel. The District Court eventually held that Simmons

was sufficiently mentally competent to waive his right to a

direct appeal to the Arkansas Supreme 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 Con-

stitution 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 Unated States

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

his petition seeking @ writ of habeas corpus as next friend of

Simmons. This appeal is now on the Eighth Circuit's docket as

Franz v. Lockhart, No. 89-1485EA. The Eighth Circuit has

stayed Franz v. Lockhart pending this Court's decision in the

instant Case.

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 was sulfi-

ciently mentally competent to waive his right toa direct appeal

to the Arkansas Supreme Court of his conviction of capital

murder and death sentence imposed for murdering 14 members

of his family. The Johnson County Circuit Court reviewed the

information in its file from Simmons I concerning Simmons’

mental competence, heard additional testimony from Sim-

mons and then found that Simmons was sufficiently mentally

competent in order to waive his 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. (J.A. 29-31). Three days later, on March 13, 1989, Jonas

Whitmore, petitioner in the instant case, filed a motion to

intervene in Simmons II with the Arkansas Supreme Court.

(J.A. 32-33). In this motion to intervene, Whitmore asserted

that he should be allowed to do so as Simmons’ next friend and

also in order to protect his own rights and those of other

Arkansas death row inmates, present and future. The Arkansas

Supreme Court denied Whitmore’s motion to intervene on the

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

(J.A. 34).

At this point, the death sentence that Simmons had

received in Simmons I 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 tiiat

©

ce all

the stay remain in effect pending Whitmore’s filing of a

petition seeking a writ of certiorari to the Arkansas Supreme

Court. This Court granted Whitmore’s petition for a writ of

certiorari to review the Arkansas Supreme Court's denial of his

petition to intervene on July 3, 1989.

SUMMARY OF THE ARGUMENT

With respect to the first issue presented in this case,

whether the Eighth Amendment requires that Ronald Gene

Simmons directly appeal his capital murder conviction and

death sentence to the Arkansas Supreme Court, respondent the

State of Arkansas asserts that the Eighth Amendment does not

require such an appeal, given the structure of Arkansas’ death

penalty sentencing process. In several cases, this Court has held

that there is no one correct procedure for the states to employ in

capital punishment cases. See, e.g., Spaziano v. Florida, 468

U.S. 447, 464-65 (1984). When this Court considers the Eighth

Amendment sufficiency of a state’s capital punishment

sentencing procedure, this Court considers the procedure as a

whole. Pulley v. Harris, 465 U.S. 37, 45 (1984). The State of

Arkansas respectfully submits that its capital punishment

sentencing procedure, when considered as a distinct whole,

satisfies the Eighth Amendment's requirement that death

sentences be imposed in a manner that is not fundamentally

arbitrary, capricious or freakishly random. The following

features of Arkansas’ death penalty sentencing procedure,

when considered as a whole, satisfy the Eighth Amendment:

(1) a defendant can be sentenced to death only by a jury;

(2) death penalty cases in Arkansas are bifurcated into a

guilt/innocence phase; (3) the State is limited in the sentencing

phase to proof of eight statutory aggravating circumstances

and, moreover, the State must abide by the rules of evidence in

proving its aggravating circumstances; (4) these aggravating

circumstances have been facially approved by thie Court in

Gregg v. Georgia, 428 U.S. 153 (1976); (5) in the sentencing

phase of an Arkansas capital trial the defendant is allowed to

introduce a very wide range of mitigating evidence and is not

constrained by the rules of evidence in putting in his proof;

(6) in order to impose the death sentence an Arkansas jury

must unanimously find in writing that the State’s aggravating

circumstances exist beyond a reasonable doubt, that these

aggravating circumstances outweigh beyond a reasonable

doubt any of the defendant’s mitigating circumstances that are

found to exist and the jury must decide that the aggravating

circumstances justify a sentence of death beyond a reasonable

doubt; and (7) Arkansas trial judges are “*. . . vested with broad

powers to check the arbitrary, capricious, wanton or freakish

imposition of death sentences by a jury.’’ Collins v. State, 261

Ark. 195, 206, 548 S.W.2d 106, 113, cert. denied, 464 U.S. 878,

reh. denied, 434 U.S. 977 (1977).

Respondent the State of Arkansas respectfully submits

that this Court should not reach the Eighth Amendment issue

present in this case because Whitmore lacks standing to argue

to this Court that the Eighth Amendment requires a direct

appeal to the Arkansas Supreme Court of Ronald Gene

Simmons’ capital murder conviction and death sentence.

Whitmore has no connection to Simmons but for the fact that

he, like Simmons, is a citizen of the State of Arkansas and is

also an inmate on Arkansas’ death row. Whitmore lacks

standing because he cannot satisfy the ‘case or controversy”

jurisdiction requirement of Article ITI, §2 of the United States

Constitution. Whitmore cannot satisfy the “case or contro-

versy’’ requirement of Article III, §2 because he cannot show

that he has personally suffered from some actual or threatened

injury as a result of Arkansas’ refusal to mandate a direct

appeal by Ronald Gene Simmons of his capital murder

conviction and death sentence to the Arkansas Supreme Court.

Whitmore cannot show any actual. or threatened injury

because he has already had an unsuccessful direct appeal to the

Arkansas Supreme Court of his own capital murder conviction

and resulting death sentence. Whitmore’s contentions that he

will suffer if Simmons’ case is not put into the pool of Arkansas

death penalty cases that the Arkansas Supreme Court examines

when it undertakes comparative review of death penalty cases

is entirely speculative. Whitmore has not made any showing

that there is even the remotest possibility that his own capital

10

murder conviction and death sentence will be reversed at any

time in the future. Given that Whitmore has no standing to

assert that Ronald Gene Simmons must directly appeal his

capital murder conviction and death sentence to the Arkansas

Supreme Court because he cannot satisfy the ‘‘case or

controversy” requirement of Article III, §2, respondent the

State of Arkansas respectfully submits that the instant case is

_ identical to Gilmore v. Utah, 429 U.S. 1012 (1976) and should

be controlled by Gilmore.

11

ARGUMENT

WHETHER THE EIGHTH AMENDMENT'S BAN

AGAINST CRUEL AND UNUSUAL PUNISHMENT

REQUIRES MANDATORY APPELLATE REVIEWIN ALL

CASES IN WHICH THE DEATH PENALTY IS IMPOSED.

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 Eighth Amendment issue.

The Eighth Amendment issue presented in this case is not

whether, as an abstract matter, the Eighth Amendment

requires a direct appeal of all capital murder convictions and

resulting death sentences. The Eighth Amendment issue,

properly framed, is whether Arkansas’ capital sentencing

procedure is so deficient that a mandatory direct appeal to the

Arkansas Supreme Court is necessary to prevent the arbitrary

and capricious imposition of death sentences by Arkansas

juries following Arkansas’ capital sentencing procedure.

As this Court has repeatedly held, the core of the Eighth

Amendment's limitation on the ability of a state to impose the

penalty of death on a particular defendant is the Eighth

Amendment’s requirement that death sentences be }mposed in

a manner that is not arbitrary, capricious or freakishly

random. See, e.g., Franklin v. Lynaugh, 108 S. Ct. 2320, 2331

(1988) (plurality opinion); Maynard v. Cartwright, 108 S. Ct.

1853, 1858-59 (1988); Booth v. Maryland, 482 U.S. 496, 502

(1987); and California v. Brown, 479 U.S. 538, 541 (1987). In

order to determine whether a state’s capital punishment

sentencing process measures up to this Eighth Amendment

12

requirement, this Court reviews the capital sentencing pro-

cedure at issue as a distinct whole. In Pulley v. Harris, 465 U.S.

37 (1984) this Court held:

[wle do not intend to suggest that only the above-

described procedures would be permissible under Furman

or that any sentencing system constructed on these

general lines would inevitably satisfy the concerns of

Furman, for each distinct system must be examined on an

individual basis. Jd. at 45 (quoting Gregg v. Georgia, 428

U.S. 153, 195 [1976)]).

If Arkansas’ capital sentencing procedure is considered as a

whole, then it is not necessarily violative of the Eighth

Amendment because it lacks the feature of a mandatory direct

appeal to the Arkansas Supreme Court. In addition, this Court

held in Pulley that a capital punishment sentencing procedure

is not violative of the Eighth Amendment if it produces on

occasion “‘aberrational outcomes.” Instead, this Court held

that a particular capital sentencing procedure is violative of

the Eighth Amendment if it suffers from such ‘systemic

defects” that the system produces death penalties in a manner

that is arbitrary, capricious or freakishly random. Pulley at 54.

Moreover, this Court has repeatedly recognized that there can

be “‘no perfect procedure for deciding in which cases govern-

mental authority should be used to impose death.”’ Johnson v.

Mississippi, 108 S. Ct. 1981, 1986 (1988); Pulley, supra at 54;

Zant v. Stephens, 462 U.S. 862, 884-85, 904 (1983) and Lockett v.

Ohio, 438 U.S. 586, 605 (1978) (plurality opinion).

Is Arkansas’ death penalty sentencing procedure such that

without the feature of a mandatory direct appeal to the

Arkansas Supreme Court the procedure allows death penalties

to be imposed in the manner that is fundamentally arbitrary

and capricious? Arkansas notes at the outset that this Court has

repeatedly identified appellate review as an important com-

13

ponent, for Eighth Amendment purposes, of a state’s capital

punishment sentencing process. In Murray v. Giarratano, 109

S. Ct. 2765, 2771 (1989) this Court held that “. . . direct appeal

is the primary avenue for review of capital cases. . . ."’ Jd. at

2771. Ina number of cases this Court or a plurality of the Court

has stated that appellate review is an important component of

a State capital punishment sentencing process because such

review serves as a safeguard against the arbitrary or capricious

imposition of the death penalty. Murray, at 2777 n.11

(dissenting opinion); McCleskey v. Kemp, 481 U.S. 279, 303

(1987); Zant v. Stephens, 462 U.S. 862, 876 (1983); Gregg v.

Georgia, 428 U.S. 153, 198, 204-06, 211 (1976); Proffitt v.

Florida, 428 U.S. 242, 250-51, 253, 258-59 (1976); Jurek v.

Texas, 428 U.S. 262, 269, 276 (1976); Woodson v. North

Carolina, 428 U.S. 280, 303 (1976); and Roberts v. Louisiana,

428 U.S. 325, 335 (1976); see also Pascucci, Capital Punishment

in 1984: Abandoning the Pursuit of Fairness and Consistency,

69 Cornell L. Rev. 1129, 1188-98 (1984); Goodpaster, Judicial

Review of Death Sentences, 74 Jour. of Crim. L. and

Criminology 786 (1983); and Dix, Appellate Review of the

Decision to Impose Death, 68 Geo. L. J. 97, 106-09 (1979).

Moreover, it is the case that almost all of the 37 states that have

the death penalty have statutory provisions for mandatory

review of a capital defendant's conviction of capital murder

and also of his death sentence. See U.S. Dept. of Justice, Bureau

of Justice Statistics, Bull., Capital Punishment 1987 at 5 (July

1988) and Carter, Maintaining Systemic Integrity in Capital

Cases: the Use of Court-Appointed Counsel to Present

Mitigating Evidence when the Defendant Advocates Death, 55

Tenn. L. Rev. 95, 114-16 (1987). The two lower courts that have

specifically considered whether Arkansas’ capital punishment

sentencing process violates the Eighth Amendment because it

lacks the feature of the mandatory appeal have disagreed. In

Collins v. State, 261 Ark. 195, 204-11, 548 S.W.2d 106, 111-13,

cert. denied, 434 U.S. 878, reh. denied, 434 U.S. 977 (1977) and

again in Franz v. State, 296 Ark. 181, 186-88, 754 S.W.2d 839,

.

14

842-43 (1988) (Simmons I) the Arkansas Supreme Court held

that the absence of a mandatory direct appeal was nota “‘make

or break” feature of Arkansas’ death penalty sentencing

procedure. In so holding, the Arkansas Supreme Court relied

primarily on this Court's decision in Gilmore v. Utah, 429 U.S.

1012 (1976). In both these cases a majority of the Arkansas

Supreme Court held:

[t]he idea that in Gregg, Proffitt, and Jurek, the United

States Supreme Court has held that there must be a

mandatory or automatic appeal from the imposition of

the death penalty by a state trial court seems to have

crumbled with the recent actions of the court in Gilmore

v. State of Utah, 429 U.S. 1012, 97 S. Ct. 436, 50 L.Ed.2d

632 (1976), in which, on December 13, 1976, that court

found that Gary Mark Gilmore, who had been sentenced

to death, made a knowing and intelligent waiver of any

and all federal rights he might have had. In a concurring

opinion by the Chief Justice and Mr. Justice Powell, it is

clearly pointed out that Gilmore had waived his right of

appeal under state law, and the history of that waiver 1s

recited. True enough, the order of the United States

Supreme Court (White, Brennan, Marshall and Black-

mun dissenting) does not specifically refer to this waiver.

It does, however, state:

***:hat the State’s determinations of his competence

knowingly and intelligently to waive any and all such

rights were firmly grounded.

If the Constitution of the United States requires that a

state provide a mandatory appeal in such cases, we do not

see how there can be a knowing and intelligent waiver of

“any and all federal rights’ when there has been no

appeal from the state trial court's judgment imposing the

death sentence. In any event, the Stewart plurality has said

el) eS «

)

15

that it had no intention to suggest that the procedures

approved in Gregg would be the only ones permissible

under Furman or that a system constructed on these

general lines would inevitably satisfy Furman; but that

each system must be examined on an individual basis.

Gregg v. Georgia, supra. Collins at 205-06, 548 S.W.2d

at 112.

The United States District Court for the Eastern District of

Arkansas reached the opposite conclusion in Franz v. Lock-

hart, 700 F.Supp. 1005, 1012-24 (E.D. Ark 1988) (Simmons I).

In order for this Court to evaluate the Eighth Amendment

sufficiency of Arkansas’ capital punishment sentencing pro-

cedure, the Court should consider the several components of

the process. Arkansas’ death penalty sentencing procedure is

set forth in Ark. Code Ann. §§5-4-601—08 (1987). Aside from

the absence of a mandatory appeal, Arkansas’ death penalty

sentencing procedure is virtually identical to the state pro-

cedures that were approved by this Court in Gregg v. Georgia,

428 U.S. 153 (1976) and Proffitt v. Florida, 428 U.S. 242 (1976).'

Study of Collins, supra and Ark. Code Ann. §§5-4-601—08

reveals the following features of Arkansas’ death penalty

sentencing procedure that insure that death sentences will not

be imposed in Arkansas in a manner that is fundamentally

'A defendant sentenced to death in Arkansas may directly appeal

his capital murder conviction and death sentence to the Arkansas

Supreme Court if he chooses to do so. Pursuant to Arkansas Rule of

Criminal! Procedure 36.24, Arkansas Supreme Court Rule 11(f) and

Ark. Code Ann. §16-91-113(a) (1987), when a condemned defendant

appeals his capital murder conviction and sentence 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 rulings as an issue on appeal. This compre-

hensive review by the Arkansas Supreme Court is not, however, a

review for plain error. See Parker v. State, 292 Ark. 421, 436, 731

S.W.2d 756, 764 (1987) and Fretwell v. State, 289 Ark. 91, 98, 708

S.W.2d 630, 634 (1986).

16

arbicary, capricious or freakishly random. Initially, Arkansas

notes that defendants in Arkansas criminal trial courts cannot

receive the death penalty unless they are tried and sentenced by

a jury. (Ark. Code Ann. §5-4-608). Moreover, the capital

defendant's jury trial is bifurcated into a guilt/innocence

phase that is held prior to a separate sentencing phase. [Ark.

Code Ann. §5-4-602(3)]. In this sentencing phase the jury must

unanimously make three findings of fact, in writing: (1) the

jury must 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 circum-

stances found to exist; and (3) the jury must find that the

aggravating circumstance or circumstances justify a sentence

of death beyond a reasonable doubt. [Ark. Code Ann. §5-4-

6034a)]. This weighing of aggravating circumstances against

mitigating circumstances 1s not required by the Eighth Amend-

ment. Zant v. Stephens, 462 U.S. 862, 875-76 n. 13 (1983). At this

sentencing hearing the State is limited to proof of only the

eight statutory aggravating circumstances (Ark. Code Ann.

§5-4-604) and the State must comply with the rules of evidence

in order to prove its aggravating circumstances [Ark. Code

Ann. §5-4-602(4)]. The State’s aggravating circumstances have

been approved by this Court in Gregg, supra and Proffitt,

supra. In contradistinction to the State, the capital defendant

in Arkansas is permitted to offer to the jury a very wide range of

evidence in mitigation and the defendant is not constrained by

the rules of evidence in putting forth his case in mitigation

[Ark. Code Ann. §5-4-602(4) and Ark. Code Ann. §5-4-605).

The defendant has no burden of proof to satisfy in establishing

his mitigating circumstances. Most importantly, Arkansas

trial judges have “. . . broad powers to check the arbitrary,

capricious, wanton or freakish imposition of the death

sentence by a jury.”’ Collins at 206-10, 548 S.W.2d at 113-15.

Arkansas respectfully submits that these features of this death

penalty sentencing process, particularly its requirement that

aggravating circumstances exist beyond a reasonable doubt,

a

ee th i a INN A A lll EE A lh tee maces 5

.

~ Le oe pcan a — SO ee Eee,

17

that they outweigh beyond a reasonable doubt any evidence

going to mitigation and that they justify a sentence of death

beyond a reasonable doubt, when considered as a whole insure

that defendants will not be sentenced to death in Arkansas ina

manner that is fundamentally arbitrary, capricious or freak-

ishly random. These features of Arkansas’ death penalty

sentencing process considered as a whole “. . . are a far cry from

the major systemic defects identified in Furman.” Pulley v.

Harris at 54.

Arkansas acknowledges that the feature of a mandatory

direct appeal would provide an additional measure of

reliability with respect to the imposition of death sentences

only on those defendants who truly deserve to die as

punishment for having committed the offense of murder.

However, this Court has never interpreted the Eighth Amend-

ment prohibition against cruel and unusual punishment to

require meticulous exactitude in the imposition of the death

penalty. Pulley v. Harris at 54. Since its landmark decision in

Furman v. Georgia, 408 U.S. 238 (1972) this Court had

interpreted the Eighth Amendment's prohibition against cruel

and unusual punishment to require only that death sentences

be imposed in a manner that is not fundamentally arbitrary,

capricious or freakishly random. The features of Arkansas’

death penalty sentencing procedure noted above insure that

Arkansas jwries will impose death sentences, when they choose

to do so, in a manner that meets the Eighth Amendment's

standard. It is true that most of the other states that have a death

penalty provision do have some sort of mandatory appellate

review. However, this Court has held that the Eighth

Amendment does not require absolute symmetry among the

states with respect to their death penalty procedures. See

Spaziano v. Fiorida, 468 U.S. 447, 464 (1984).

In Spaziano this Court held that the Eighth Amendment

does not forbid a judge from overriding a jury's recom-

18

mendation of a sentence of life imprisonment and sentencing a

defendant in a capital case to death. In reaching this decision in

Spaziano this Court held:

[tJhe fact that a majority of jurisdictions have adopted

a different practice, however, does not establish that

contemporary standards of decency are offended by the

jury override. The Eighth Amendment is not violated

every time a State reaches a conclusion different from a

majority of its sisters over how best to administer its

criminal laws. Id. at 464.

It is true that this Court has frequently made use of “.. .

evolving standards of decency that mark the progress of a

maturing society’’ [Trop v. Dulles, 356 U.S. 86, 101 (1958)] to

determine whether a particular death sentence imposed on a

defendant was violative of the Eighth Amendment. Further-

more, it is true that this Court determines the content of these

“evolving standards of decency” by considering the content of

state statutes. Penry v. Lynaugh, 109 S. Ct. 2934, 2953 (1989)

and Stanford v. Kentucky, 109 S. Ct. 2969, 2974-77, 2982 (1989).

Examination of the cases in which this Court has expressly

made use of the “evolving standards” analysis to determine

Eighth Amendment issues demonstrates that the “evolving

standards” analysis is employed to determine whether the

death penalty is a proportional punishment for certain kinds

of criminal offenses or a proportional punishment for certain

classes of defendants. See, e.g., Tison v. Arizona, 481 U.S. 137,

152-55 (1987) (Eighth Amendment does not forbid imposition

of death on felony murderers who do not actually kill the

victim, but act with reckless indifference to human life in the

coursé of a felony in which someone is killed); Ford v.

Wainwright, 477 U.S. 399, 406-09 (1986) (Eighth Amendment

forbids imposition of the death penalty on inmates who

become insane while on death row); and Coker v. Georgia, 433

U.S. 584, 593-97 (1977) (plurality opinion) (Eighth Amend-

19

ment forbids imposition of the death penalty for the criminal

offense of rape). As this Court's holding in Spaziano indicates,

the procedure that a state uses to impose the death penalty, as

opposed to the substance of the offense for which the death

penalty is imposed or the kind of defendant on which the death

penalty is imposed, is not violative of the Eighth Amendment

mercly because the procedure is not followed in majority of

states that have the death penalty.

Il.

WHETHER PETITIONER WHITMORE HAS STANDING

TO ASSERT TEE CONSTITUTIONAL RIGHTS OF THE

GENUINE PARTY AT INTEREST, RONALD GENE

SIMMONS, AFTER SIMMONS HAS MADE A KNOWING

ANDINTELLIGENT DECISION TO WAIVE ASSERTION

OF HIS OWN RIGHTS.

Petitioner Whitmore asserts that he should have standing

to argue that the Eighth Amendment requires that there be a

direct appeal of Ronald Gene Simmons’ capital murder

conviction and death sentence to the Arkansas Sup *me Court.

Respondent the State of Arkansas respectfully submits that

Whitmore has no standing to assert this claim. Whitmore has

no such standing because he cannot satisfy the ‘“‘case or

controversy” requirement of Article III, §2 of the United States

Constitution.

In his brief Whitmore fails to demonstrate that he has any

direct connection to Simmons or to Simmons’ conviction and

sentence of death except for the fact that Whitmoie, like

Simmons, is a citizen of the State of Arkansas and is an inmate

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

third parties, not otherwise connected with a particular legal

controversy, who step forward to claim the right to assert the

legal rights of genuine parties at interest have no standing to

20

4

do so. This Court has consistently held that “champions” such

as Whitmore lack standing to assert the rights of genuine

parties at interest because they cannot satisfy the “case or

controversy” requirement of Article III, §2 of the United States

Constitution. This Court has consistently held that a would-be

plaintiff has standing to vindicate the constitutional 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 Caplin and

Drysdale v. United States, 109 S. Ct. 2646, 2651 n.3 (1989); Allen

v. Wright, 468 U.S. 737, 750-52 (1984); Valley Forge Christian

College v. Americans United, 454 U.S. 464, 472-6 (1982);

Singleton v. Wulff, 428 U.S. 106, 112 (1976); and O’Shea v.

Littleton, 414 U.S. 488, 493-4 (1974); see also 13 Wright, Miller

and Cooper, Federal Practice and Procedure: Jurisdiction

§3531.4—.6 (2d ed. 1984).

In his brief 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).

Moreover, Whitmore has received post-conviction review from

the Arkansas Supreme Court. Whitmore v. State, 299 Ark. 55,

771 S.W.2d 266 (1989). Given that the Arkansas Supreme Court

has reviewed Whitmore’s capital murder conviction and death

sentence on direct appeal and again on post-conviction review,

any constitutional defect in Arkansas’ death penalty sen-

tencing procedure that exists because of the absence of a

mandatory direct appeal to the Arkansas Supreme Court will

have no actual effect on Whitmore.

————_-

21

4

In his brief Whitmore seems to allege that the capital

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. According to Whitmore,

this fact is sufficient to actually injure him if the Arkansas

Supreme Court does not review Simmons’ capital murder

conviction and death sentence because the Arkansas Supreme

Court ordinarily does conduct comparative review of death

sentences.” This assertion of an actual injury by Whitmore is

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 brief that there is even a

remote possibility that his own capital murder conviction and

death sentence will be reversed at any time in the future. 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 conviction or sentence could be reversed

and that he could face the death penalty a second time, his

“compared-to-Simmons-I-don’t-look-so-bad” argument is too

speculative to warrant the conclusion that Whitmore will

suffer some actual injury if the Arkansas Supreme Court does

not conduct a direct review of Simmons’ capital murder

?The Arkansas Supreme Court has committed itself to compar-

ative review of death sentences imposed by Arkansas juries in order to

make certain that each death penalty imposed by an Arkansas jury

was not the product of arbitrariness or capriciousness. See Ruiz v.

State, 280 Ark. 190, 655 S.W.2d 441 (1983). In determining that the

death penalty was a proportional punishment for the murder that

Whitmore committed, the Arkansas Supreme Court took note of th¢

fact that Whitmore, in the course of a robbery, stabbed his victim ten

times, cut her throat and carved an “X"’ mark on the side of her face.

Whitmore, supra at 317, 756 S.W.2d at 895.

22

conviction and death sentence. Not only is .Whitmore’s

‘“‘compared-to-Simmons-I-don’t-look-so-bad”” argument too

speculative to serve as an actual injury to Whitmore, but it also

proves too much as a logical matter. If Whitmore has standing

to argue that Simmons’ case should be in the pool of Arkansas

death row cases for comparative review purposes, does

Whitmore also have standing to intervene in the post-convic-

tion efforts of other death row inmates with “more” heinous

murders than his in order to resist their challenges to their

capital murder convictions and death sentences? Would

Whitmore have standing to intervene to assist death row

inmates with “marginally’’ heinous murders to their credit in

order to help them remove themselves from death row? Surely

Whitmore does not have standing to intervene in post-

conviction proceedings brought by Arkansas death row

inmates in order to further his own interests by keeping the

‘“‘more”’ heinous murderers on death row and by assisting the

“less” heinous murderers to exit Arkansas’ death row by

attacking their capital murder convictions and sentences in

post-conviction proceedings.

Whitmore could evade the Article III bar to his champion-

ing of Simmons’ right to a direct appeal if Whitmore could

demonstrate that he was Simmons’ next friend. After reading

Whitmore’s brief, it appears to respondent the State of

Arkansas that Whitmore has abandoned any effort to persuade

this Court that he is the next friend, or should be, of Ronald

Gene Simmons.

Whitmore attempts to evade the Article III bar to his lack

of standing by arguing that there should be some sort of

generalized “public interest’’ exception in cases such as the

instant case where vindication of Eighth Amendment values in

death penalty cases is at stake. This argument overlooks the

Article III basis of standing. This Court has squarely held that

it has no authority to, of itself, ignore the Article III, §2 “case or

23 ?

controversy”’ limitation on its jurisdiction in the name of

“public interest.”’ Allen v. Wright, supra and Gilmore v. Utah,

429 U.S. 1012, reh. denied, 429 U.S. 1030 (1976); see also Logan,

Standing to Sue: A Proposed Separation of Powers Analysis,

1984 Wisc. L. Rev. 37, 47, 54 (1984) and Scalia, The Doctrine of

Standing as an Essential Element of the Separation of Powers,

17 Suffolk U.L. Rev. 881 (1983). Even in death penalty cases,

this Court recognizes the Article III, §2 ‘‘case or controversy”

limitation on its jurisdiction. Gilmore, supra; see also Valley

Forge Christian College, supra at 489-90 n.26 (‘‘[w]ere we to

recognize standing premised on an ‘injury’ consisting solely of

an alleged violation of a ‘personal constitutional right’ to a

government that does not establish religion”’ id. at 265, ‘‘a

principled consistency would dictate recognition of respond-

ents’ standing to challenge execution of every capital sentence

on the basis of a personal right to a government that does not

impose cruel and unusual punishment... .’’) and Brilmayer,

The Jurisprudence of Article Ill: Perspectives on the ‘‘Case or

Controversy” Requirement, 93 Harv. L. Rev. 297, 312-13 (1979)

(Prof. Brilmayer observes that if Gilmore had founded

standing on “‘societal interest,”’ then “‘the standing doctrine

would have to fall.’’). In this respect, the instant case is

identical to Gilmore and should be controlled by it.

. 24

CONCLUSION

Respondent the State of Arkansas, respectfully requests

hat this Honorable Court affirm the decision of the Arkansas

Supreme Court in Simmons v. State, 298 Ark. 255, 766 S.W.2d

423 (1989). :

Respectfully submitted,

J. Steven CLARK

Attorney General of

Arkansas

By: CLINT MILLER

Assistant Attorney General

200 Tower BUILDING

4TH AND CENTER STREETS

LittLe Rock, AR 72201

(501) 682-3657

Attorneys of Record

for Respondent The State

~ of Arkansas