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March 21, 1989

A.L. LOCKHART, Director of the Arkansas Department of Correction, RESPONDENT

The opinion of the court was delivered by: WOODS



 Thomas Winford Simmons was tried in the Circuit Court of Crawford County, Arkansas for the murder of a married couple, their landlord and a Fort Smith, Arkansas police officer. In unanimously affirming his conviction, the Supreme Court of Arkansas stated, "We know of no other case involving multiple murders so cold blooded, so brutal, so lacking in any trace of humanity, as those committed by Simmons." Simmons v. State, 278 Ark. 305, 645 S.W.2d 680, 688 (1983).

 This limited remand by the Court of Appeals for the Eighth Circuit, 856 F.2d 1144, focuses principally on the defense afforded Simmons by trial counsel John W. Settle, the public defender, along with the role of a prosecution witness, James Davis. Although the testimony of Davis was significant, there was other testimony, very substantial in nature, which connected Simmons with the crime. The testimony is recited in detail in the decision of the Supreme Court of Arkansas, supra, and in the opinion of the Court of Appeals affirming denial of the original habeas petition. Simmons v. Lockhart, 814 F.2d 504 (8th Cir. 1987).

 Davis' testimony at the Simmons trial was summarized as follows by the Supreme Court of Arkansas:

James Davis, a neighbor across the street, saw a man (evidently Officer Tate) arrive at the Prices' apartment 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.

 645 S.W.2d at 683.

 Davis was not unknown to Settle at the time of the Simmons trial, August 5-19, 1981. On December 30, 1980 Settle had been appointed to represent Davis on a felony charge of theft by deception. At the time he was appointed in municipal court, Settle talked to Davis for about two minutes. (TR 86). In a second conversation, occurring between December 30, 1980 and January 8, 1981, Settle learned about Davis' record as a Vietnam veteran and that he was taking Lithium. (TR 87). He may have learned that Davis had a service-connected discharge, but he does not recall obtaining this information from him. (TR 102). On cross-examination of Davis at the Simmons trial, Settle questioned Davis about his court martial in Vietnam, but does not recall now where he obtained this information. (TR 139).

 He also cross-examined Davis about a conviction in Memphis, Tennessee. Settle is "almost sure" he obtained this information through discovery. (TR. 139). He had an FBI rap sheet on Davis. (TR. 139; PX 6). This could well have also been the source of information concerning the Vietnam court martial. Settle does not recall whether he knew about Davis' treatment in the VA Hospital at Fayetteville. Although Settle does not recall talking to Davis between December 30, 1980 and January 8, 1981 (TR. 86), a memo (PX 3) which he dictated indicated that he did talk to Davis once during this period. (TR. 87).

 The murders for which Simmons was charged occurred Monday, January 5, 1981. Simmons was apprehended on Tuesday, January 6, 1981 when he attempted to cash a forged check on a victim's bank account. 645 S.W.2d at 683. Settle as public defender assumed Simmons' defense on Tuesday, January 6, and represented him at a lineup on January 7. Simmons' picture appeared in the paper on either January 7 or 8 (TR 93).

 On January 8, Davis came to Settle and related the story reflected in his testimony, summarized supra. Settle sent him to the police (PX 6; TR 298) and did considerable soul searching as to whether he could continue to represent Simmons in view of the information from his other client, Davis, about his war record and the fact that he was taking Lithium for nervousness. Settle wrote himself a memorandum about these doubts. (PX 3). While it is by no means clear, the reference to Davis' war record may have been the court martial in Vietnam although Settle doesn't specifically recall, as noted supra. After giving the matter thought, Settle concluded that he could continue to represent Simmons without impropriety. He justified his decision because the information obtained from Davis was discoverable and could be obtained from independent sources. (TR 99-100, 101). Mr. Settle also thought that it was his duty as public defender to handle the more serious case, if there was a possibility of conflict. (TR 108). He had extensive contacts with Simmons, involving two interviews on Tuesday, January 6, a lineup on Wednesday, January 7, and probably an interview on Thursday, January 8. (TR 109). "I was already deeply involved in the case." (TR 109). Mr. Settle testified that he did not feel that there was a conflict. "I did not as this case went to trial and I do not at this time." (TR 110). He did not feel that the information he obtained from Davis would inhibit his cross-examination of Davis: (TR 116).

It was not a question of whether or not I could cross examine him on that material. In my view the question was whether or not we wanted to. That was the issue in this matter, not whether or not I felt constrained due to confidences or communications with Mr. Davis.

 (TR 116).

 The transcript of Settle's cross-examination of Davis (PX 6) discloses a vigorous, even hostile, effort to impeach Davis. Settle used distance, darkness, description and a previous statement to attack Davis' credibility. In addition Settle pushed the exploration of Davis' criminal record to the ultimate and perhaps beyond legal limits. Not only did he bring to the jury's attention Davis' military court martial and a prior criminal conviction for theft by deception in Tennessee (a misdemeanor), but he also managed to introduce evidence of the pending charge of theft by deception of which he had not been convicted.

 The main criticism petitioner levels at Settle is his failure to bring out the fact that Davis was taking Lithium and that he was being treated for depression by the Veterans Administration on an outpatient basis. Lithium is a widely used drug to counter manic-depressive tendencies. It is very possible that one or more members of the jury or their families was taking Lithium or had taken it in the past. Mental illness and mental problems are common in our society and anti-depressant drugs are widely used. Petitioner seems to suggest that Lithium could have caused Davis to entertain deliriums and to hallucinate and imagine the incident about which he testified. However, with regard to the reactions or side effects of Lithium or any other drug, the final word is contained in the Physician's Desk Reference Book where the manufacturers of all ethical drugs are required by the Federal Drug Administration to set out all reports of adverse reactions and side effects of their products. Nowhere in the entry for Lithium is there any inclusion of hallucinations or similar neurological effects. The only neurological side effects listed are as follows: "cases of pseudotumor cerebri (increased intracranial pressure and papilledema) have been reported with Lithium use. If undetected, this condition may result in enlargement of the blind spot, constriction of vision and eventual blindness due to optic atrophy. Lithium should be discontinued, if clinically possible if this syndrome occurs." Under miscellaneous side effects are "fatigue, lethargy, transient scotoma, *fn1" dehydration, weight loss, and tendency to sleep." Patients are to be cautioned "about activities requiring alertness (e.g. operating vehicles or machinery)."

 Petitioner has produced a copy of Davis' hospital records at the Veterans Administration facility in Fayetteville, Arkansas for an in camera review. Since Davis is not available and his whereabouts are unknown, there is a question of physician/patient privilege involved in the introduction of Davis' medical records. Because this proceeding has life and death implications, the balance tips in favor of admission of these records into evidence as PX 1. However, the portions of the record after August 19, 1981 (date the trial ended) are not relevant. The earliest entry in these records is May 8, 1980 and the latest is September 28, 1988. Petitioner contends that Settle should have obtained the records and used them during the trial and that his failure to do so constituted dereliction of duty. There is no positive evidence that Settle knew of the existence of these records. (TR 141).

 The petitioner contends that the information that Davis was taking Lithium should have alerted him to search for these records. This raises the question as to whether a defendant's counsel is obligated to search out the medical histories of all the state's witnesses in a criminal case. Assuming such a duty, a more serious problem exists for this petitioner with regard to these records. During the pertinent period (prior to August 1981), there is nothing to indicate any problem with perception, hallucinations, orientation or memory. In a neuropsychiatric examination of May 8, 1980, the physician (a psychiatrist) concluded as follows: "No perceptive disturbance or ideas of reference are brought out. He is not suspicious or hostile and there are no paranoid ideas. He realizes that he has difficulty controlling his emotions and generally avoids other people. He is well oriented and his memory is intact." (PX 1, p. 47 of attachment).

 Although there had been a diagnosis of schizophrenia, schizo-affective type from the records, such a diagnosis was challenged and discarded in a psychiatric examination on October 28, 1980, two months before his alleged identification of Simmons. After that examination the psychiatrist wrote: "Evaluation of mental status suggests spurious Dx of Schizophrenia during period of crisis in which someone may have observed disorganization." (PX 1, p. 45 of attachment). The same physician on September 23, 1980 wrote:

"I see no signs of schizophrenia - he smiles, he has a full range of affect, he senses his behavior as sociopathic, is self reflective no hallucinations or delusions. He may have been given the diagnosis in a spell of temper fury sometime. The overwhelming impression is of an emotionally dyscontrolled person of dull normal IQ who avoids responsibility for his decisions and compounds his own circumstances by running or going into temper explosions. Will use Lithium and Vistaril to start."

 (PX 1, p. 52 of attachment). (Emphasis added).

 Between Davis' contact with the police on January 8, 1981 and the trial in August of 1981, there are two more notations in the records. Davis called his psychiatrist on January 9, 1981 "to ask some medical questions about the use of hypnosis and polygraph in his case to uncover some memories of eyewitnessed events in recent days." He was assured of "no contra-indicator to its use if he chooses to participate." (PX 1, p. 21 of attachment). This note would indicate that someone had suggested a polygraph test and hypnosis. (PX 6). His psychiatrist made the following note on March 20, 1981: "Pt in for med renewal -- still in school. No excessively high mood spells on Lithium, nor unwanted side effects even at high range. Will add Inderol for emergencies." (PX 1, p. 21 of attachment). On May 20, 1981 this note appears: "Pt doing well. Stomach better. Was taken off Elavil by Dr. Walters and started on Inderol." (PX 1, p. 17 of attachment). Assuming that Davis had waived the physician/patient privilege, there is nothing in these records that would have disqualified him as a competent witness. He was a troubled Vietnam veteran, responding well to medication.

 After affirmance of Simmons' conviction by the Arkansas Supreme Court and denial of certiorari, Simmons v. Arkansas, 464 U.S. 865, 78 L. Ed. 2d 173, 104 S. Ct. 197 (1983), a petition for habeas was filed by Mr. Ron Heller on November 8, 1983. He had been retained by the ACLU on November 4. On the same day he asked the Arkansas Supreme Court for a stay and for additional time to request post-conviction relief, but his motion was denied November 7, 1983. A history of the original habeas corpus petition is discussed, infra. That petition was denied for the reasons set forth in Simmons v. Lockhart, 626 F. Supp. 872 (1985). The Court of Appeals affirmed, Simmons v. Lockhart, 814 F.2d 504 (8th Cir. 1987). The Supreme Court denied certiorari 485 U.S. 1015, 108 S. Ct. 1489, 99 L. Ed. 2d 717 (1988), and the previously issued stay of execution was revoked.

 Petitioner then filed a motion with the Court of Appeals to recall the mandate and grant rehearing. Judge Richard Arnold, acting as a single Circuit Judge under Fed.R.App.P. 8, stayed the execution to permit consideration of the motion by a panel of the Court of Appeals. That court granted the motion, recalled the mandate, granted the petition for rehearing and remanded the case for consideration of issues I-IV (issue V is raised for the first time):

Did Simmons' lawyer, Ron Heller, in the appeal from the original habeas petition fail to raise the statutory overlap issue because of alcoholism or some other reason? Was he therefore constitutionally ineffective?
Was there cause for the procedural default of failing to raise the ineffective trial counsel issue in state court as well as prejudice from such failure?
Why did Simmons fail to present the ineffective counsel issue in his original habeas petition and what was the legal import?
Whether Simmons' lawyer was faced with an actual conflict of interest that prevented him from vigorously cross-examining Davis on his military record, psychiatric problems and any deals Davis made with the prosecution.
Is the petitioner's request for an expert witness to review the records and provide testimony in this cause justified?



 1. Ron Heller, counsel for the petitioner did not raise the overlap issue on appeal because he believed it to be of questionable merit, having been decided adversely by the Supreme Court of Arkansas, by Judge Overton *fn2" and by me in the original habeas hearing in this case. *fn3"

 The overlap issue was first considered by the Supreme Court of Arkansas in Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980). In an opinion written by Justice George Rose Smith the court held that there was "no constitutional infirmity in the overlapping of the two sections, because there is no impermissible uncertainty in the definition of the offenses." Id. at 107. The view of the Arkansas Supreme Court was reaffirmed in Wilson v. State, 271 Ark. 682, 611 S.W.2d 739 (1981); Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981); Warren v. State, 272 Ark. 231, 613 S.W.2d 97 (1981); Ruiz v. State, 273 Ark. 94, 617 S.W.2d 6, 13 (1981), cert. denied, 454 U.S. 1093, 70 L. Ed. 2d 631, 102 S. Ct. 659 (1981); Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981); Ford v. State, 276 Ark. 98, 633 S.W.2d 3, 6 (1982); Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983); Owens v. State, 283 Ark. 327, 675 S.W.2d 834, 836 (1984); Abernathy v. State, 278 Ark. 250, 644 S.W.2d 590, 592 (1983); Cannon v. State, 286 Ark. 242, 690 S.W.2d 725, 727 (1985). "The appellant next argues that the overlap between the capital murder statutes and the first degree murder statutes violated the Due Process and Equal Protection Clause of the Constitution of the United States. This argument has been made and rejected on numerous occasions." Zones v. State, 287 Ark. 483, 702 S.W.2d 1, 2 (1985). See also Coble v. State, 274 Ark. 134, 624 S.W.2d 421, 424 (1981), cert. denied, 456 U.S. 1008, 73 L. Ed. 2d 1304, 102 S. Ct. 2301; Penn v. State, 284 Ark. 234, 681 S.W.2d 307, 308 (1984); Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1983). In the latter case the court noted that "because the capital murder statute and the first degree murder statute overlap[,] in appropriate cases, the jury may refuse consideration of both the death penalty and life without parole, by returning a guilty verdict as to the charge of murder in the first degree." 656 S.W.2d at 686.

 Citing U.S. Supreme Court authority, Justice George Rose Smith again addressed petitioner's argument in Miller v. State, 273 Ark. 508, 621 S.W.2d 482 (1981), a case handled by Mr. Hartenstein, one of petitioner's experts:

Essentially the same argument was rejected with respect to overlapping federal offenses in United States v. Batchelder, 442 U.S. 114, 99 S. Ct. 2198, 60 L. Ed. 2d 755 (1979). There the court held that where two federal statutes authorized different ranges of punishment for the same conduct, the prosecutor's discretionary decision to proceed under the more severe statute did not involve a denial of due process or equal protection. That case is controlling on the point now argued.

 The Supreme Court case cited by Justice Smith involved overlapping provisions of the Omnibus Crime Control and Safe Streets Act. The language of Justice ...

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