Ex parte Smith
| Decision Date | 08 January 1999 |
| Citation | 727 So.2d 173 |
| Parties | Ex parte Larry R. SMITH. (In re Larry Reynold Smith v. State of Alabama). |
| Court | Alabama Supreme Court |
Ellen L. Wiesner, Equal Justice Initiative of Alabama; and Jack Daniel, Huntsville, for petitioner.
Bill Pryor, atty. gen., and Michael B. Billingsley, asst. atty. gen., for respondent.
Larry Reynold Smith was convicted of capital murder under Ala.Code 1975, § 13A-5-40(a)(2), for the death of Dennis Wheeler Harris. The trial was conducted after June 15, 1995. The jury recommended death, and the trial court accepted the jury's recommendation. The Court of Criminal Appeals affirmed the conviction and the sentence of death. Smith v. State, 727 So.2d 147 (Ala. Crim.App.1998). We granted certiorari review pursuant to Rule 39(c), Ala.R.App.P.
Smith has raised 21 issues, as well as numerous subissues, for us to review. The Court of Criminal Appeals adequately addressed and correctly resolved most of these issues in its thorough and well-reasoned opinion. The only issue that warrants further discussion is one of the issues focused on in oral argument and one on which Smith was permitted to file a supplemental brief.1 That issue was whether, because of what Smith called a conflict between the recently amended Ala.Code 1975, § 12-16-9, effective June 15, 1995,2 before the date of Smith's trial, and the then existing Rule 19.3, Ala. R.Crim.P.,3 the trial court erred in allowing the jury to separate without his consent and over his objection.
This Court has today held that § 12-16-9 superseded Rule 19.3 insofar as that Rule related to the separation of jurors. Ex parte Stewart, [Ms. 1970319, January 8, 1999] ___ So.2d ___ (Ala.1999), thus deciding that issue adversely to Smith.
Furthermore, as to the other issues Smith raises, suffice it to say, without an in-depth discussion, that we have reviewed the alleged errors; that we have exhaustively searched the record for plain error; and that we have found no error, plain or otherwise. The judgment is due to be, and it is hereby, affirmed.
AFFIRMED.
1. During oral argument, the State contended that even if Rule 19.3, Ala.R.Crim.P., applied, the error in allowing Smith's jury to separate was harmless because, it maintained, on retrial Smith would be subject to the newly amended Rule 19.3, which conforms to Ala.Code 1975, § 12-16-9, and allows capital juries to separate in the trial court's discretion.
On rebuttal, Smith contended that the State's "harmless error" argument presumes the retroactive application of Rule 19.3.
The Court granted Smith permission to file a supplemental brief on the issue of harmlessness and specifically requested briefing on the question of the retroactive application of Rule 19.3. We have considered the arguments made in the supplemental brief; however, because of our resolution of the issue pertaining to the trial court's allowing the jury to separate, over Smith's objection, we pretermit any discussion of those arguments.
2. Ala.Code 1975, § 12-16-9, as amended, provides as follows:
Before June 15, 1995, § 12-16-9, had provided, in part, as follows:
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