{ "id": 1912759, "name": "Leon SIMMONS v. STATE of Arkansas", "name_abbreviation": "Simmons v. State", "decision_date": "1993-10-04", "docket_number": "CR 93-88", "first_page": "310", "last_page": "317", "citations": [ { "type": "official", "cite": "314 Ark. 310" }, { "type": "parallel", "cite": "862 S.W.2d 245" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "260 Ark. 303", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1616802 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/ark/260/0303-01" ] }, { "cite": "295 Ark. 337", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893725 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/295/0337-01" ] }, { "cite": "279 Ark. 328", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1746997 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/279/0328-01" ] }, { "cite": "313 Ark. 23", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1914601 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/313/0023-01" ] }, { "cite": "271 Ark. 616", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1756098 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/271/0616-01" ] } ], "analysis": { "cardinality": 642, "char_count": 12018, "ocr_confidence": 0.896, "pagerank": { "raw": 5.676830387708631e-08, "percentile": 0.35437336308024137 }, "sha256": "a5a51e3154f3fa03eca9d9984e161b79a0745ae1545378c51e6f4992b4748180", "simhash": "1:0d2f943458487b7a", "word_count": 2014 }, "last_updated": "2023-07-14T21:22:56.854306+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Leon SIMMONS v. STATE of Arkansas" ], "opinions": [ { "text": "Tom Glaze, Justice.\nLeon Simmons stands convicted of two counts of possession of cocaine with intent to deliver, and as a habitual offender, was sentenced to two life sentences. He raises five points for reversal.\nIn his first two points, Simmons argues that the trial judge abused his discretion in refusing to continue the scheduled August 13,1992 trial and to recuse from trying Simmons\u2019s case. Simmons was charged on February 11,1992, and counsel, Tracy Bagwell, was appointed to represent him. Simmons\u2019s present counsel, William Howard, Jr., apparently took over Simmons\u2019s representation on June 29, 1992, although no notice of appearance was filed by Howard and no withdrawal motion was filed by Bagwell.\nThe record reflects Howard\u2019s first appearance on Simmons\u2019s behalf occurred when he filed motions for discovery and continuance on July 24, 1992. A hearing was held on Simmons\u2019s continuance motion on July 27,1992. Howard told the trial judge that he was scheduled to retry a capital felony murder case on August 17th, and he said that there was no way he could be ready to try Simmons\u2019s case on August 13th. The judge responded by denying the requested continuance and stating Simmons had been in jail for six or seven months, his drug case was simple and counsel, Howard, had had forty-five days to prepare for trial, which was long enough.\nArk. R. Civ. P. 27.3 provides the court shall grant a continuance only upon a showing of good cause and that a motion for continuance is addressed to the sound discretion of the trial judge and his or her judgment will not be reversed on appeal in the absence of clear abuse. Loggins v. State, 271 Ark. 616, 609 S.W.2d 76 (1980). Here, the trial judge gave sound reasons for denying a continuance, and Simmons offers no proof or argument that Mr. Howard was unprepared or otherwise hampered when representing Simmons at trial.\nRelated to his continuance argument, Simmons also contends the trial judge demonstrated prejudice towards him, and for that reason, the judge should have recused. Simmons\u2019s counsel, Howard, asserts that, during the hearing on Simmons\u2019s continuance motion, the trial judge became upset over Howard\u2019s remarks when he mentioned the district\u2019s Drug Task Force and what he characterized as the Task Force\u2019s \u201crecent published problems.\u201d The trial judge stated Howard\u2019s comments were not fair and were \u201ccondemning somebody without evidence.\u201d Howard explained he was seeking reports relating to the disappearance or discrepancies of drugs the Task Force had had in its possession because Simmons\u2019s defense was \u201che did not have drugs and if they found drugs, someone planted them on him.\u201d The judge then responded, \u201cI don\u2019t know anything about that, and that\u2019s fine, and in other words, if you\u2019re entitled to it, you prepare the order and you\u2019ve got it.\u201d\nHoward and the prosecutor then exchanged remarks concerning what evidence may or may not be discoverable involving the Drug Task Force, and the trial judge interjected \u201cthat you both know the laws of discovery well enough that you can comply with the rules of discovery without hassling about it.\u201d Then, abruptly switching back to his earlier expressed need for a continuance, Howard told the court, \u201cWell, like I said before, Your Honor, I have several cases that have been set on the docket prior to this trial, prior to this case.\u201d The court again responded, \u201cEither Mr. Bagwell is going to represent Mr. Simmons, or you are going to represent him on August the 13th. You are going to be here. If you\u2019re not here, I\u2019ll send after you, Mr. Howard.\u201d\nIn sum, Simmons argues his attorney interpreted the trial judge\u2019s actions and statements, including his threat to send the sheriff after counsel, as an objective 'demonstration of prejudice. We must disagree. As we have recently said, the decision to disqualify from a case is discretionary with a judge and a judge\u2019s decision in this regard will not be reversed absent an abuse of that discretion. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993).\nFrom our reading of the record, clearly the trial court\u2019s objective was to try Simmons\u2019s case on August 13, because Simmons had been incarcerated for about seven months. He viewed the case as uncomplicated and further expressed that the discovery differences defense counsel had with the state could be resolved, if necessary, by the court\u2019s order. At the recusal hearing, the trial judge explained that he would expect any trial counsel to appear when his or her client\u2019s case was called on the docket; if counsel failed to appear, the judge would determine why counsel did not show, and, if necessary, send the sheriff for a contempt hearing. The judge added that he had always treated Howard fairly, and Howard agreed, saying that was why he expected having no problem in obtaining a continuance in Simmons\u2019s case. The record, we believe, reflects nothing that shows the trial judge .could not impartially try Simmons\u2019s case, and absent some objective demonstration of prejudice, we will not reverse the judge\u2019s ruling on disqualification. Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983).\nSimmons\u2019s third and fourth points we consider together. Both points involve hearsay objections to testimony given by state witnesses Lavonne Davis and Particia Matthews.\nLavonne Davis had been arrested on a separate drug offense on January 21,1992, and at that time, he spoke with Officer Ron Poole about Simmons. It was this information from Davis which in main part led to the arrest of Simmons and the search of his car and two residences. Simmons did not challenge Simmons\u2019s arrest or search, and at trial, the crack cocaine rocks found in Simmons\u2019s residences and car were admitted into evidence without objection. However, the state placed Davis on the stand to testify to what he had previously told Poole on January 21, and Simmons argues such elicited testimony was hearsay and inadmissible. The testimony follows:\nState: What did you tell Mr. Poole?\nDavis: It \u2014 he asked me did Leon [Simmons] have any dope in the car?\nState: What did you tell him?\nDavis: I told him there was some people come by looking for him and they said he had some, asked me did I have any.\nHoward: Objection again to hearsay.\nCourt: The objection as to hearsay part of it is sustained.\nState: Bunny, I don\u2019t want to know what the girls told you.\nDavis: Okay.\nState: I want to know what you told Mr. Poole, going at it around about way.\nDavis: That Leon had some dope in the car.\nState: You told Mr. Poole what? Those words?\nDavis: Yes, sir.\nHoward: Your Honor, I\u2019d like to object to that. Number one, he\u2019s indicated he didn\u2019t even talk to Leon Simmons that day. How does he have any personal knowledge what Mr. Simmons had in his car, unless someone else told him? It\u2019s hearsay objection I\u2019m making.\nCourt: Overruled. (Emphasis added.)\nSimmons\u2019s second hearsay objection goes to testimony elicited from Patricia Matthews, who was living with Simmons at the time of his arrest, and it was her apartment in which some of the cocaine was found. While she was on the stand, the following occurred during direct:\nState: What was the nature of your conversation with Mr. Simmons? Why did you confront him?\nMatthews: Because I heard that he was selling drugs and I asked him if he was selling drugs.\nHoward: Your Honor, I\u2019m going to object again. We\u2019re going to some hearsay. She hadn\u2019t testified yet to seeing him with any drugs. She heard something about some drugs.\nCourt: The objection to the last question is overruled. (Emphasis added.)\nSimmons argues Davis\u2019s and Matthews\u2019s statements were hearsay because they were elicited to prove the matter asserted, namely, that Simmons was selling dope. The state contends that Davis\u2019s testimony showed in part the probable cause basis for the officers having stopped and arrested Simmons and having searched his car and two residences. Concerning Ms. Matthews\u2019s testimony, the state urges that information gained from others that Simmons was selling dope merely showed the reason or basis for confronting Simmons sometime prior to his arrest and the search, and telling him she did not want drugs in her apartment where Simmons resided.\nAs previously mentioned, Simmons never challenged the officers\u2019 search of his car and apartment, so the evidence gained as a result of the searches was admitted without objection. Probable cause in this case had no relevance and the state\u2019s use of Davis\u2019s remarks to Poole could only be of value to reinforce in the jurors\u2019 minds that Simmons was selling drugs. And while Matthews\u2019s testimony, too, bears some indicia of hearsay problems, we should quickly add that, in view of the overwhelming nature of the evidence against him, Simmons has not demonstrated that, even given error in the admission of such testimony, prejudice resulted. Gage v. State, 295 Ark. 337, 748 S.W.2d 351 (1988).\nAs pointed out, the state introduced without objection the bags of cocaine found in Simmons\u2019s residences and car. In addition, Lavonne Davis testified that he personally had obtained crack cocaine from Simmons, sold it and returned a portion of the proceeds to Simmons. Davis testified that, during the six-month period prior to his and Simmons\u2019s arrest, he had gotten crack cocaine from Simmons on nine or ten occasions, he sold it and after the sales, he gave money to Simmons who would give Davis a new supply. Such testimony clearly portrayed to the jury Simmons\u2019s intended use of the crack cocaine found in his possession when he was arrested. In view of this overwhelming evidence of guilt, Simmons simply fails to show that prejudice resulted from either Davis\u2019s or Matthews\u2019s testimony.\nSimmons\u2019s final point involves a hearsay argument as well. On cross-examination of Officer Poole, defense counsel asked whether the items seized from Simmons\u2019s residences and car had been dusted for prints. Counsel further asked, \u201cIf you really wanted to know if this [stuff] was Leon Simmons\u2019s and he had touched it... you\u2019d ask the Crime Lab to dust for fingerprints... wouldn\u2019t you? Poole said, \u201cI\u2019ve got . . . instructions from the Crime Lab on matters such as this, and I\u2019ll be glad to explain it to you if you\u2019d like.\u201d Counsel told Poole no. On redirect, the prosecutor asked Poole to explain what the Crime Lab\u2019s instructions were concerning fingerprint analysis of items such as the ones seized from Simmons. Over Simmons\u2019s hearsay objection, Poole was allowed to say, \u201cThey told us that items like this are not likely to produce any fingerprints . . . and they asked us not to submit items like that.\u201d\nThe simple answer to Simmons\u2019s argument here is that he opened the door for Poole to explain why he had not sought fingerprint analysis from the Crime Lab when defense counsel, himself, asked Poole would he not have asked the Crime Lab to dust for fingerprints if Poole really wanted to show Simmons possessed or touched the contraband found in his car and residences. See Dyas v. State, 260 Ark. 303, 539 S.W.2d 251 (1976). The state only had Poole explain that the reason he did not seek fingerprint analysis in this case was because the Crime Lab had requested officers not to do so on certain items like those found in Simmons\u2019s possession.\nIn conclusion, because Simmons has been sentenced to life imprisonment, the record has been reviewed pursuant to Ark. Sup. Ct. R. 4-3(h) and other prejudicial errors have not been found. Therefore, we affirm.\nSimmons objected to this testimony below as being irrelevant, but the trial judge allowed the testimony under Ark. R. Evid. 404(b) to show Simmons\u2019s intent when having the crack cocaine in his possession at the time of his arrest. Simmons does not challenge the trial judge\u2019s ruling in this appeal.", "type": "majority", "author": "Tom Glaze, Justice." } ], "attorneys": [ "William M. Howard, Jr., for appellant.", "Winston Bryant, Att\u2019y Gen., by: Teena L. White, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Leon SIMMONS v. STATE of Arkansas\nCR 93-88\n862 S.W.2d 245\nSupreme Court of Arkansas\nOpinion delivered October 4, 1993\n[Rehearing denied November 8, 1993.]\nWilliam M. Howard, Jr., for appellant.\nWinston Bryant, Att\u2019y Gen., by: Teena L. White, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0310-01", "first_page_order": 336, "last_page_order": 343 }