# Respondents Brief — Whitmore v. Arkansas

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0557%3A08

## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1990
- **Citation:** 495 U.S. 149

## Text

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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 ...............
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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

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0557%3A08. Public record. Not legal advice.