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SIMMONS v. STATE

February 7, 1983

THOMAS WINFORD SIMMONS
V.
STATE OF ARKANSAS



Appeal from Crawford Circuit Court; John G. Holland, Judge; affirmed. [278 Ark Page 309]

SYLLABUS BY THE COURT

1. EVIDENCE - SUFFICIENT EVIDENCE ALTHOUGH CIRCUMSTANTIAL. - Although the evidence in this case is circumstantial, there is no doubt about the sufficiency of the evidence.

2. VENUE - DENIAL OF MOTION FOR CHANGE OF VENUE CORRECT. - Although there was much media publicity at first, where later news coverage was not especially extensive, affidavits submitted with the motion were conflicting, with the State's outnumbering the movants, the twelve jurors and two alternates were accepted as `good for the defense," more than seven months elapsed between the original publicity and the trial, and only six of about sixty prospective jurors were excused because of beliefs about appellant's guilt, the trial court was correct in denying the motion for change of venue.

3. EVIDENCE - NO LIMIT ON NUMBER OF CONVICTIONS USED TO IMPEACH WITNESS. - Ark. Unif. R. Evid. Rule 609 contains limitations as to the time and nature of the convictions used to impeach the defendant's testimony and limitations as to the comparative probative value of the convictions, but none as to their number.

4. EVIDENCE - USE OF PRIOR CONVICTIONS TO IMPEACH WITNESS. - If proof that a witness has been convicted of murder or theft or perjury is admissible to impeach his veracity, as it usually is, then proof that he has committed such offenses time and time again may fairly be considered by the jury as further impeaching his credibility.

5. EVIDENCE - IMPEACHMENT OF WITNESS WITH PRIOR CONVICTION - RULES CONTEMPLATE JURY BEING TOLD WHAT THE CRIME WAS. - Although details of a conviction concerning the date of the sentence or its length are irrelevant to impeachment, Ark. Unif. R. Evid. Rule 609, by requiring that probative value be weighed against prejudice and by admitting all convictions involving dishonesty, contemplates that the jury will know of just what crimes the witness has been convicted.

6. EVIDENCE - IMPEACHMENT BY SHOWING PRIOR CONVICTION OF KIDNAPPING NOT UNDULY PREJUDICIAL IN CASE WHERE KIDNAPPING INVOLVED. - The trial court did not abuse its discretion in concluding that a prior conviction for The opinion of the court was delivered by: George Rose Smith, Justice.

Thomas Winford Simmons, age 37, was sentenced to death for capital murder, in that he shot four persons in the back of the head, one of them while handcuffed and helpless. Simmons, represented in the trial court and here by the public defender, argues 22 points for reversal. We find no prejudicial error of any kind. For convenience we discuss Point 16 first, the sufficiency of the evidence, requiring a narrative of the facts, then the three points on which counsel place particular emphasis, and finally the other 18 points, grouping them when appropriate.

First, a narrative of the evidence. Simmons was charged with having caused the deaths of (1) Larry Price in the course of kidnaping, (2) police officer Ray Tate acting in the line of duty, and (3 and 4) Jawana Price (Larry Price's wife) and Holly Gentry in the course of kidnaping, robbery, and rape. We detail the events as they occurred, beginning on Saturday, January 3, 1981, and continuing through the following Wednesday. We should note at the outset that Simmons has made no statement about the homicides either to the investigating officers or at the trial, resting throughout on the plea of not guilty and his right to remain silent.

Holly Gentry, who was Jawana Price's employer, asked her to sell his car for him, a maroon-silver LTD. The Prices advertised the car for sale. On Saturday afternoon a witness who lived next to the Prices' apartment in Fort Smith saw a man drive up in a small yellow car. (Simmons's car was a small yellow Toyota.) The witness, who noticed the stranger looking at the LTD, told him that the Prices were away for the weekend and suggested that he come back during the week.

Early Monday morning a man came by to look at the LTD, according to statements made by Jawana Price when she went to the police that afternoon to report that her husband was missing. A neighbor testified that he saw [278 Ark Page 310]

Simmons, whom he identified at a lineup and in court, looking at the LTD with Larry Price. According to Jawana's report, her husband and the visitor took a test drive together and were drinking coffee in the apartment when Jawana left for work in her own car.

At some time during the morning Simmons took to his branch bank in Van Buren a $350 check drawn on a Clarksville account that had been closed by the Prices some months earlier. Simmons received $50 cash and deposited the rest. The Price signature on the check was a forgery. The jury could have concluded that Simmons kidnaped Larry Price, killed him by shooting him in the back of the head, and hid the body in a wooded area not far from Simmons's home at Kibler in nearby Crawford county. The fact that blood from Price's head wound dripped into water just below where his body was hidden indicated that the wound was still bleeding when the body was concealed. The medical examiner testified that Price's death could have occurred during the day at any time after 8:00 a.m.

That afternoon the witness Seaton, working at a parking lot used by Jawana, noticed a man in a yellow Toyota watching Jawana's car for more than an hour. Seaton wrote down the license number, which was shown to be Simmons's number, but Seaton did not report the incident to the police until the next day, Tuesday.

Larry Price failed to meet Jawana for lunch as they had planned. She also learned that he did not show up for work that day. When she and Gentry left work that afternoon they drove in Gentry's pickup truck to police headquarters, where they reported Larry to be missing. They talked to Officers Davis and Tate. At about 6:00 p.m. Gentry and Jawana left the police station to go to the Prices' apartment, and Officer Tate left in his unmarked blue police car to meet them there. Shortly before that a man not clearly identified had engaged a taxicab and had been dropped off at the Prices' apartment complex.

James Davis, a neighbor across the street, saw a man (apparently Officer Tate) arrive at the Prices' apartment [278 Ark Page 311]

complex in a blue car. The man looked briefly at the truck and then went into an apartment. Shortly after that another man made three trips from an apartment to the blue car. The first time he brought out a man whose hands were tied behind his back and had him get in the blue car. Next, he brought out another man, also tied, who was put in the car. Third, he brought out a woman, who was crying, and drove off with all three. Officer Tate had reported in by radio when he arrived at the apartment complex; he was never heard from again. Late that night Tate's police car and Gentry's LTD were found parked in public areas in or near Fort Smith.

When the branch bank opened on Tuesday morning, Simmons was waiting to get in. He asked for the return of the check he had deposited the day before. The two bank employees connected the name on the check, Larry Price, with the missing-persons account that was already extensively in the news. They mentioned that fact to Simmons, but said they did not have the check at the branch. When Simmons drove away his license number was written down by one of the bank employees, whose husband was a police officer. She at once called her husband about the incident. A quick investigation traced the number to Simmons, who had given his name and address at the bank. It was also learned that Simmons was on parole from a federal prison (a fact not disclosed to the jury), that he worked at a sand and gravel company near Fort Smith, that he had not been at work on Monday, having called in to say that he had an accident in his car, and that he was at work on Tuesday.

Several officers went out to the sand and gravel company to interview Simmons. According to them, he was cooperative and readily agreed to accompany them to headquarters for questioning about the check. At a suppression hearing the officers testified that Simmons explained he had encountered Larry Price on Sunday night and had received the check as payment for a sale of marijuana. He encountered Price at a later meeting on Sunday night, and Price said the check was bad. When the officers mentioned ...


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