Ex parte Smith

• Decision Date: 15 March 1991
• Docket Number: No. 1900153,1900153
• Parties: Ex parte James Wyman SMITH. (Re James Wyman Smith v. State).
• Court: Alabama Supreme Court

Page 531

581 So.2d 531

Ex parte James Wyman SMITH (Re James Wyman Smith v. State).

No. 1900153.

Supreme Court of Alabama.

March 15, 1991.

Rehearing Denied May 10, 1991.

J. Michael Williams, Sr. and Thomas E. Jones, Auburn, for petitioner.

Don Siegelman, Atty. Gen., and P. David Bjurberg and William D. Little, Asst. Attys. Gen., for respondent.

KENNEDY, Justice.

James Wyman Smith was indicted for capital murder committed during a kidnapping in the first degree, Ala.Code 1975, § 13A-5-40(a)(1). ¹ The jury found Smith "guilty as charged in the indictment" and recommended that he be sentenced to death. The trial court, accepting the jury's recommendation, sentenced Smith to death. The Court of Criminal Appeals affirmed the judgment of the trial court, with an opinion, and we granted certiorari review.

On August 31, 1984, Linda Talbert was abducted from her place of employment--a convenience store in Smith's Station, a few miles northwest of Phenix City--and was subsequently strangled to death. Her body was discovered several days later. Despite great effort, law enforcement officials could not immediately determine definite suspects for the crime. On December 4, 1984, Smith burglarized an apartment in Auburn, and he was arrested on December 5, 1985, for the burglary. He pleaded guilty to that burglary and was sentenced to life imprisonment without parole. While Smith was in prison, a cellmate of his was Marion Enfinger, whose testimony both helped to secure an indictment against Smith for Talbert's murder and provided a substantial portion of the State's case against Smith.

At trial, during the State's case-in-chief, the prosecution called J.F., a resident of Columbus, Georgia, who testified that on the morning Talbert was abducted and killed, Smith came to J.F.'s office, where she worked alone, and forced his way into the office; that he had a pistol and that he made her take off her clothes; that "he got on top of [her]"; that he forced her to perform oral sex on him four or five times; that she took the gun away and tried to shoot him, but the gun malfunctioned and he took the gun back and tried to shoot her, but it again malfunctioned; and that Smith was "impotent" the entire time. Smith was indicted for this alleged assault, but he was never tried for it. J.F. is married to a detective; Enfinger testified that Smith had once told him that Smith had an incident with a policeman's wife in Columbus, Georgia. Before J.F. took the stand, Smith objected to her entire testimony as irrelevant and as being more prejudicial than it was probative of any material or relevant fact.

During closing argument at the guilt stage of the trial, the prosecutor made this statement:

"Now, ladies and gentlemen, if this defendant ever gets loose again, he's going to do it again. He's going to kill, and he's going to kill again. And I would ask you to consider that, because, ladies and gentlemen, only you can stop him for sure."

Smith did not object to that argument.

Smith argues numerous grounds of error, but we address only two of the grounds to resolve this case: (1) whether the prosecutor's argument set out above was reversible error; and (2) whether the admission of J.F.'s testimony was reversible error. By not addressing the other grounds of error, we do not mean to imply that we necessarily agree with the rulings of the Court of Criminal Appeals regarding them.

Smith did not object to the prosecutor's guilt-phase closing argument that he now claims is reversible error. Nevertheless, because this is a death penalty case, we are directed by Rule 39(k), A.R.App.P., to "notice any plain error or defect in the proceeding under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial rights of the petitioner." "Plain error" exists when the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the proceedings, Ex parte Womack, 435 So.2d 766 (Ala.1983); see United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), and United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir.1981); in other words, "plain error" exists when a substantial right of the defendant has or probably has been adversely affected. Ex parte Johnson, 507 So.2d 1351, 1356 (Ala.1986); Tell v. State, 285 Ala. 234, 231 So.2d 107 (1970).

The State acknowledges that the challenged portion of the prosecutor's closing argument at the guilt phase is error; as the State said at the oral argument of this case, "it's not proper to argue that you should convict somebody because he's going to kill again." The State argues that the error is not sufficiently prejudicial to be plain error, however, because, the State says, the prosecutor is entitled to make a general appeal to the jury for the need for law enforcement as a deterrent to crime.

Unquestionably, we have consistently held that as long as a prosecutor does not comment on the possibility that the defendant will commit future illegal acts, he may legitimately argue to the jury the need for law enforcement as a deterrent to crime. Berard v. State, 486 So.2d 476, 479 (Ala.1985); Ex parte Waldrop, 459 So.2d 959, 962 (Ala.1984); Cook v. State, 369 So.2d 1251, 1255 (Ala.1978). However, we have never indicated that a prosecutor may properly argue for the purpose of proving guilt that a defendant will commit future illegal acts.

In Cook, Recardo Cook was convicted of committing a murder during the robbery of a store. He was sentenced to death. Cook argued that his conviction should be set aside because, in closing, the prosecutor had argued that both storeowners and criminals were watching the case, the criminals wondering if the jury was "going to say to them, ... 'we're going to give you a license to kill.' " Cook, at 1254. The Court noted that "a district attorney in closing argument may make a general appeal for law enforcement," id., and that "since the argument complained of did not imply that Cook himself would commit other illegal acts in the future the comment did not overstep the bounds of legitimate argument." Cook, at 1255.

In Ex parte Waldrop, another death penalty case, Waldrop argued that the prosecutor's argument at the sentencing hearing was reversible error because he told the jurors it was up to them whether to allow killers to live in society and that society had the right to defend itself against killers. Waldrop, at 961-62. The Court stated:

"As in Cook, the closing argument in the instant case did not imply that the defendant himself would commit illegal acts in the future, nor did the prosecutor seek by inflammatory appeal to arouse in the jurors a personal hostility towards, or fear of, the defendant. Accordingly, the prosecutor's comments properly argued the necessity of law enforcement as a deterrent to crime and as a protection of society."

459 So.2d at 962.

In Berard v. State, Jerome Berard had been convicted of capital murder and after a second conviction and appeal, both he and the State petitioned this Court for certiorari review. 486 So.2d at 477. At trial Berard had pleaded not guilty by reason of insanity. The prosecutor, on cross-examination of the defense's psychologist, asked if Berard could have another bout of insanity and "Is he capable of shooting somebody else?" 486 So.2d at 478.

The Court noted that it is more prejudicial to a defendant to allow this kind of testimony than it is even to make such an argument in closing and held, as in Waldrop and Cook, that "as long as a prosecutor does not comment on the possibility that the defendant will commit future illegal acts, he may legitimately argue to the jury the need for law enforcement as a deterrence to crime." 486 So.2d at 479. The Court reversed Berard's conviction and stated the following as one of the reasons:

"[T]he central issue in the guilt phase of a capital murder trial is whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of the crime charged. Beck [v. State], 396 So.2d at 662 [ (Ala.1980) ]. This kind of question could have easily shifted the focus of the jury's attention to the issue of punishment, which is an improper consideration at the guilt phase of the trial."

486 So.2d at 479.

Consider again the statement the prosecutor made in the closing argument at the guilt phase of Smith's trial:

"Now, ladies and gentlemen, if this defendant ever gets loose again, he's going to do it again. He's going to kill, and he's going to kill again. And I would ask you to consider that, because, ladies and gentlemen, only you can stop him for sure."

This statement exemplifies the kind of statement proscribed by Cook, Waldrop, and Berard. The prosecutor directly stated that Smith would kill again in the future "if [he] ever gets loose" and that "only you [the jury] can stop him for sure." The statement sought "by inflammatory appeal to arouse in the jurors a personal hostility towards, or fear of, the defendant." Waldrop, at 962. Like the testimony elicited in Berard, this closing argument at the guilt phase could have shifted the focus of the jury's attention from the central question of whether the State had proved its case beyond a reasonable doubt and to the issue of punishment, which is an improper consideration at the guilt phase of the trial. Berard, at 479; see also, State v. Barksdale, 590 S.W.2d 931 (Tenn.1979). Accordingly, we hold both that the error involved in the prosecutor's argument would seriously affect the fairness and integrity of the proceedings and that substantial rights of Smith have been adversely affected. Berard; Waldrop; Cook; see also Johnson; Womack; Tell. Pursuant to the wording of either standard for determining plain error previously described, the prosecutor's argument was plain error, for which the judgment is...