EX PARTE SMITH
| Decision Date | 16 March 2001 |
| Citation | 795 So.2d 842 |
| Parties | Ex parte Joseph Clifton SMITH. (In re Joseph Clifton Smith v. State). |
| Court | Alabama Supreme Court |
Glenn L. Davidson, Mobile, for petitioner.
Bill Pryor, atty. gen., and Thomas F. Parker IV, asst. atty. gen., for respondent.
Prior report: Ala.Cr.App., 795 So.2d 788.
WRIT DENIED. NO OPINION.
Joseph Smith was convicted on September 16, 1998, of capital murder. The Court of Criminal Appeals affirmed his conviction and the sentence of death on May 26, 2000. Smith v. State, 795 So.2d 788 (Ala.Crim.App.2000). He petitioned this Court for certiorari review. This Court today denies that review. I respectfully dissent from that denial.
The first issue Smith presents in his certiorari petition concerns the trial court's instructing the jurors that they could recommend a sentence of life imprisonment without parole only if they were convinced "beyond a reasonable doubt that the mitigating circumstances outweigh the aggravating circumstances." I conclude that Smith properly presented this issue to this Court under Rule 39, Ala.R.App.P. Smith quotes language from Stewart v. State, 730 So.2d 1203 (Ala.Crim.App.1996), and from various other cases from the Court of Criminal Appeals (noted on pages 7 through 9 of his petition) that show a conflict between that court's caselaw concerning the proper weighing of aggravating and mitigating circumstances and the law as the trial judge presented it to the jury in the instruction Smith challenges. The petition also alerts this Court to the fact that the instruction in question conflicts with the rationale of the holdings in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), and Ex parte Martin, 548 So.2d 496 (Ala.1989), and with certain provisions of the death-penalty statute, particularly § 13A-5-48, Ala.Code 1975. The trial court's instruction that the jurors could recommend life without parole only if they were convinced "beyond a reasonable doubt that the mitigating circumstances outweigh the aggravating circumstances" is plainly contrary to the requirements of the authorities Smith cited in his petition.
On page 8 of his petition, Smith (citing R.T. 847-48) quotes the following language from the trial court's instruction:
"[I]f after a full and fair consideration of all of the evidence in this case you are convinced beyond a reasonable doubt that the mitigating circumstances outweigh the aggravating circumstances... your verdict would be to recommend the punishment of life imprisonment without parole."
(Emphasis added by Smith.) The Court of Criminal Appeals quoted that statement in its opinion, and it also quoted this further language from the instruction (referencing R.T. 848):
Smith v. State, 795 So.2d at 835 (emphasis added). I note that in this second statement, the judge committed the additional error of misstating the burden of proof for a mitigating circumstance. Moreover, that second statement not only fails to correct the earlier error—the statement that, in order to recommend a sentence of life without parole, the jury had to find beyond a reasonable doubt that the mitigating circumstances outweighed the aggravating circumstances—but that second statement could reasonably be understood to restate that earlier error.
The petition also notes that the trial court attempted to give a curative instruction, quoted by the Court of Criminal Appeals, 795 So.2d at 835, which included this passage:
"Only an aggravating circumstance must be proven beyond a reasonable doubt and the burden is always on the State of Alabama to convince you from the evidence beyond a reasonable doubt that such an aggravating circumstance exists and the burden is also on the State to prove to you beyond a reasonable doubt that the aggravating circumstance or circumstances, should you find that they exist, outweigh any mitigating circumstances which need only be proven by a preponderance of the evidence."
(Emphasis supplied.) The Court of Criminal Appeals concluded that this instruction corrected the earlier error concerning the burden of proof relating to mitigating circumstances; it then held that the trial court had not committed reversible error. I believe the petition correctly notes that the trial court's attempted cure of its error concerning the burden of proof relating to mitigating circumstances does not address the separate error in the instruction that stated that the jury could recommend a sentence of life imprisonment without parole only if the jury found beyond a reasonable doubt that the mitigating circumstances outweighed the aggravating circumstances. Based upon the instructions quoted in the opinion of the Court of Criminal Appeals and pointed out by Smith in his petition, a reasonable jury might conclude that in order to recommend the death penalty it must determine that the aggravating circumstances outweigh the mitigating circumstances, whereas in order to recommend a sentence of life without parole, it must determine, beyond a reasonable doubt, that the mitigating circumstances outweigh the aggravating circumstances. I believe that, especially in a capital case, the trial judge should phrase any attempted curative charge in such a way as to alert the jury to the fact that the court had made a misstatement earlier and that the court is now giving an instruction intended to supplant and correct the earlier misstatement.
Misinforming the jury about the quantum of proof necessary to recommend a sentence of life without parole in a capital case is a significant error, and the critical issue raised by this petition is whether the trial court's later statement of the law was sufficient to cure that error. My research does not reveal a hard-and-fast rule concerning what is required to cure an erroneous instruction in this context.1
It appears that Alabama courts have reviewed, on a case-by-case basis, the question whether attempted cures were sufficient to correct erroneous instructions, giving a practical consideration to the question whether the error "has or probably has adversely affected [a] substantial right of the appellant." Rule 45A, Ala. R.App.P. For example, in Starks v. State, 594 So.2d 187 (Ala.Crim.App.1991), the Court of Criminal Appeals considered an error in the trial court's jury charge concerning the distinction between the capital offense of intentional murder and the lesser included offense of felony murder. It described the trial court's error and contrasted that error with the correct procedures:
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