Ex parte Smith

• Decision Date: 21 January 2000
• Docket Number: No. 1971580.,1971580.
• Citation: 756 So.2d 957
• Parties: Ex parte Ronald Bert SMITH, Jr. (Re Ronald Bert Smith, Jr. v. State).
• Court: Alabama Supreme Court

756 So.2d 957

Ex parte Ronald Bert SMITH, Jr.

(Re Ronald Bert Smith, Jr. v. State).

No. 1971580.

Supreme Court of Alabama.

January 21, 2000.

Charles H. Pullen, Huntsville, for petitioner.

Bill Pryor, atty. gen., and J. Clayton Crenshaw, asst. atty. gen., for respondent.

On Application for Rehearing

PER CURIAM.

The opinion of July 30, 1999, is withdrawn, and the following is substituted therefor.

Ronald Bert Smith, Jr., was charged with and convicted of the capital murder of Casey Wilson. The jury recommended, by a vote of 7 to 5, a sentence of life in prison without the possibility of parole. The trial judge, however, sentenced Smith to death, and the Court of Criminal Appeals affirmed Smith's conviction and sentence. Smith v. State, 756 So.2d 892, 904 (Ala. Crim.App.1998). This Court granted Smith's petition for certiorari review and heard oral arguments.

The facts of this case are adequately set out in the trial court's sentencing order, which is attached as Appendix A to the opinion of the Court of Criminal Appeals. Smith, 756 So.2d at 946-57. Smith has raised 22 issues for this Court's consideration. The Court of Criminal Appeals adequately addressed and correctly resolved the majority of those issues in its thorough, well-reasoned, and unanimous opinion. We will, however, address a few of those issues.

I.

Smith argues that the trial court improperly allowed the jury to separate over his objection. He makes the same argument on this issue that the defendant made in Stewart v. State, 730 So.2d 1203 (Ala.Crim.App.1996) (opinion on third return to remand). The Court of Criminal Appeals rejected that argument in Stewart, and this Court affirmed. Ex parte Stewart, 730 So.2d 1246 (Ala.1999). See also Ex parte Smith, 727 So.2d 173 (Ala. 1999). We must likewise reject the defendant's argument in this present case.

II.

Smith complains of the conclusions the Court of Criminal Appeals reached in Part IV.C. of its opinion, in which that court addressed certain testimony the trial court admitted over Smith's objection. The Court of Criminal Appeals, in effect, held that Smith waived his objection to this testimony by arguing, after it was admitted, that the jury should draw from it inferences favorable to him. The Court of Criminal Appeals held:

"[Smith's] present argument that such testimony was inadmissible is inconsistent with his position at trial. A person cannot take inconsistent positions at trial and on appeal. Therefore, we find no error in [the admission of the witness's] testimony."

Smith, 756 So.2d at 913. The Court of Criminal Appeals misapplied the rule regarding a party's taking inconsistent positions. Smith could not comment to the jury or argue with the trial court about the court's action in overruling his objection and admitting the testimony. Rather, Smith, through his lawyer, attempted to make the best of the situation, and his lawyer owed him a duty to argue to the jury any favorable inferences the testimony would allow. Smith did not, by his efforts in this regard, waive his objection. See Porter v. Jolly, 564 So.2d 434 (Ala. 1990). His position on the question whether this testimony was admissible has not been inconsistent at all. However, the other reasons given by the Court of Criminal Appeals for its holding that the admission of this testimony was not prejudicial error are correct.

III.

In Part IX of its opinion, the Court of Criminal Appeals addressed the admission of testimony by Officer Renfroe in which he narrated to the jury what he understood to be depicted on a videotape of the incident during which the killing occurred; that videotape was made by security-surveillance cameras mounted inside the premises where the killing occurred. Although Officer Renfroe did investigate the incident and did extensively examine the scene, he had not been present during the incident to observe it personally. Nonetheless, the trial court, over the defendant's objections, allowed Officer Renfroe to describe not only the physical layout and features of the scene but also the positions, movements, and actions of the people participating in the incident. The Court of Criminal Appeals stated:

"Although Renfroe commented on what the videotape showed, we do not find that his comments constituted a closing argument or that he usurped the jury's factfinding function."

756 So.2d at 919.

On the one hand, Officer Renfroe could legally identify the layout and features of the scene as they were depicted on the videotape, because the law allows a witness with personal knowledge of things depicted in a photograph (whether taken by videotape recorder or otherwise) to identify those things as they appear in the photograph. See Ex parte Rieber, 663 So.2d 999, 1011 (Ala.1995), and McFarland v. State, 581 So.2d 1249 (Ala.Crim.App. 1991). On the other hand, Officer Renfroe could not legally testify about his impressions of the locations, movements, and actions of the people depicted by the videotape, things that were outside his own personal knowledge. He was incompetent to testify to matters outside his own personal observation. Sheridan v. State, 591 So.2d 129 (Ala.Crim.App.1991); Lewis v. State, 535 So.2d 228 (Ala.Crim.App.1988); Charles W. Gamble, McElroy's Alabama Evidence, § 105.01 (5th ed.1996).

Officer Renfroe, in that incompetent testimony, invaded the province of the jury by stating his conclusions of ultimate facts, insofar as he purported to describe the presence and actions of the defendant and his accomplice. Allen v. State, 472 So.2d 1122 (Ala.Crim.App.1985); Wyatt v. State, 405 So.2d 154, 157 (Ala.Crim.App. 1981); McElroy's Alabama Evidence, supra, §§ 115.01 and 127.01.

For the reasons stated by the Court of Criminal Appeals, however, any error in the admission of this testimony by Officer Renfroe was harmless. Therefore, like the Court of Criminal Appeals, we conclude that Officer Renfroe's testimony did not deprive Smith of a fair trial.

IV.

Part XIII.D. of the opinion by the Court of Criminal Appeals concerns a statement made by the prosecutor in his closing argument: "It is a rare occasion that you have as much evidence to prove a case of this nature as we have here." The Court of Criminal Appeals held that the "prosecutor's comment [was] simply a permissible comment on the evidence." Smith, 756 So.2d at 929 (emphasis in original).

As the Court of Criminal Appeals correctly held, the prosecutor's statement was not tantamount to vouching for the credibility of the prosecutor's witnesses, as the defendant had claimed in his objection. However, the prosecutor's words "It is a rare occasion" constitute a comparison between the weight of the evidence presented in this case and the weight of the evidence generally presented in other cases, although no evidence presented in this present case related to the weight of the evidence generally presented in other cases. Thus, the appellate courts should not approve, as a permissible comment on the evidence, the prosecutor's statement here: "It is a rare occasion that you have as much evidence to prove a case of this nature as we have here."

The defendant's objection, however, stated an improper ground—that the prosecutor was vouching for his witnesses. The defendant did not object on the ground that the prosecutor was commenting on facts not in evidence. Thus, the trial court's failure to sustain the defendant's objection was not error. An objection specifying one ground excludes others. Floyd v. State, 82 Ala. 16, 2 So. 683 (1887); Lee v. State, 562 So.2d 657 (Ala.Crim.App. 1989); Snider v. State, 406 So.2d 1008 (Ala.Crim.App.1981). Under the plain-error rule, the absence of an apt objection weighs against any claim of prejudice. Ex parte Kennedy, 472 So.2d 1106 (Ala.1985), cert. denied, 474 U.S. 975, 106 S.Ct. 340, 88 L.Ed.2d 325 (1985). Further, under the plain-error rule, we will reverse only when an "error has or probably has adversely affected the substantial rights of the [defendant]." Rule 39(k), Ala. R.App. P. As the Court of Criminal Appeals observes early in its opinion, "`[The] plain-error exception to the contemporaneous-objection rule is to be "used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result,"'" quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (quoting in turn United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). In the context of this defendant's long and carefully conducted trial, any error in allowing this argument does not approach the degree of error the plain-error rule would require for a reversal.

V.

Smith argues that the trial court inappropriately attached the "aggravating" label to evidence that should be considered mitigating. See Zant v. Stephens, 462 U.S. 862, 885, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) (holding that if a state has "attached the `aggravating' label to ... conduct that actually should militate in favor of a lesser penalty," due process would require that the death sentence be set aside). Specifically, Smith argues that the trial court used his evidence of good character against him. In support of this claim, Smith points to the following portion of the trial court's sentencing order:

"Without question, the attributes or features that make up and distinguish Smith's formative years stand in stark contrast to his adult conduct, and to this crime. They also diverge from the background of cold-blooded killers: typically products of poverty, a broken home, physical or sexual abuse, and social deprivation. Smith comes from an intact, middle-class family. Yet, those characteristics cut two ways. They are concurrently mitigating and aggravating. Smith's background exposed him to virtually all of the values that are central to an ordered society; the awards of his youth opened avenues that pointed to a successful career based upon honest effort. But, Smith spurned society's road

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