Smelley v. State

• Decision Date: 19 January 1990
• Docket Number: 7 Div. 187
• Citation: 564 So.2d 74
• Parties: Lionel SMELLEY, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 74

564 So.2d 74

Lionel SMELLEY, alias v. STATE.

7 Div. 187.

Court of Criminal Appeals of Alabama.

Jan. 19, 1990.

Rehearing Denied Feb. 23, 1990.

Thomas R. Allison and W. Barry Alvis of Griffin, Allison, May & Alvis, Birmingham, for appellant.

Don Siegelman, Atty. Gen., and Robert E. Lusk, Jr. and Mary Ellen Forehand, Asst. Attys. Gen., for appellee.

TYSON, Judge.

Lionel Smelley was indicted by the Shelby County Grand Jury at the March Term of 1986 on three counts: (1) capital murder, or murder while committing robbery in the first degree, in violation of § 13A-5-40(a)(2), Code of Alabama 1975; (2) murder in violation of § 13A-6-2(a)(1), Code of Alabama 1975; and (3) robbery in the first degree in violation of § 13A-8-41(a)(1), Code of Alabama 1975. After a lengthy trial, from August 2 to August 8, 1988, the petit jury found the appellant "guilty of the offense of capital murder ... having found that said Defendant committed an intentional murder during the course of committing the first-degree robbery as charged in the Indictment." (R. 1331.)

Immediately following the verdict, a sentencing hearing was held, whereby the mitigating and aggravating circumstances were argued by both the defense counsel and the district attorneys.

Upon conclusion of this evidence, the jury retired. Upon reconvening, the jury recommended "that the defendant, Lionel Green, be punished by death, and the vote [was] as follows: ten for death and two for life without parole." (R. 1384.)

On December 19, 1988, a hearing was held before the trial judge to pronounce sentence upon this appellant. Again, mitigating and aggravating circumstances were presented. Upon allocution, the defense counsel asked that the appellant not be sentenced to death by electrocution.

The trial judge, after considering both mitigating and aggravating circumstances and all of the evidence presented in behalf of and against this appellant, sentenced the appellant to life imprisonment without the possibility of parole. (Supp.R. 0015.)

Ricky Junkins, the son of the deceased, Bill Junkins, testified that, on February 19, 1986, he went to his father's farm in Shelby County, Alabama. Ricky stated that he had been unable to reach his father by telephone. He stated that his father lived in a small house next to his horse barn.

Ricky testified that, when he drove up to the house, several people were working in and around the barn, but all of the folks told him that they had not seen his father. Ricky then walked to the house and knocked on the door. He stepped inside saw the place "was messy," and called out his father's name. He saw blood splattered on the wall next to the bed and saw that the mattress to the bed was moved off of the box springs.

Ricky stated that he walked over to the bed, moved the mattress and saw his father lying on the floor. He reached down to touch his father and felt that he was cold. He then went outside and called the sheriff's department, since the telephone cord inside was pulled from the wall.

Ricky said that he last saw his father alive on the morning of February 18, 1986. He stated that his father wore several pieces of jewelry. He also said that his father kept several weapons in his home. All of these guns were returned to Ricky except a .22 caliber and a .38 caliber handgun.

Deputy Gene Hamby of the Shelby County Sheriff's Department was the first law enforcement officer to arrive on the scene. He stated that he walked into the house, spotted the body and secured the scene.

Officer Jesse Payne of the Calera Police Department testified that he was a licensed emergency medical technician. He stated that he arrived on the scene shortly after Deputy Hamby. He checked the victim for vital signs and determined him to be dead.

Investigator Tom Smitherman of the Shelby County Sheriff's Department participated in canvassing the scene and was the primary investigator in this case. On February 24, 1986, Investigator T. Smitherman received a call from personnel at the Southern Ready-Mix plant in Calera, Alabama, regarding certain items found floating in the gravel pit adjoining the Junkins property. Investigator T. Smitherman went to the plant and spoke with Michael Morrison. Morrison found a lamp floating in the water and he found a blanket, a sheet, a towel and a ball cap near the bank of the pit. He fished these items out of the pond and turned them over to Investigator T. Smitherman.

Investigator T. Smitherman testified that the pit was approximately 1.5 miles from the Junkins farm house. He estimated that the distance would be about the same from the pit to the house in which the appellant resided on February 18, 1986. Investigator T. Smitherman further testified that he interviewed Lewis McNeal, the appellant's neighbor and the State's key witness, on three separate occasions.

Investigator Michael Smitherman, an evidence technician with the Shelby County Sheriff's Department, was in charge of processing the scene. He stated that, on February 19, 1986, several people from the State Department of Forensic Sciences assisted him in processing the scene. He stated that after processing the scene he placed a padlock on the only door to the house and that he was the only person who had a key to the lock. He also stated that he visited the crime scene on several occasions to further process the scene. He testified that two bullet holes were found in the southwest wall of the house and in the ceiling, respectively.

Sergeant Richard Fox of the Shelby County Sheriff's Department testified that he assisted in processing the scene. He stated that he spotted the bullet hole in the ceiling. He crawled into the attic and found a slug buried in the insulation. He also stated that a slug was taken from the hole in the wall.

Wayne R. Stewart III, a medical examiner investigator for the State Department of Forensic Sciences, transported the body from the scene to the Cooper Green Hospital morgue. He assisted Dr. Joseph Embry in performing the autopsy. Stewart testified that the body had two gunshot wounds in the abdomen area and trauma on and about the head.

Larry Huys, a serologist with the State Department of Forensic Sciences, tested the blood of the victim and the appellant. Both men had ABO Type A blood. Several items found in and around the farm house were found to contain this type of blood.

Steve Drexler, a criminal trace evidence examiner with the Department of Forensic Sciences, recovered several hairs from the victim's clothing which were consistent with Negro hairs. However, the hairs found lacked sufficient characteristics to make a meaningful comparison to the appellant's hair.

Lauden Yates, the lab director for the Department of Forensic Sciences, testified that he specialized in firearms and tool marks identification. A piece of metal and a spring were found under the victim's body. Yates identified these items to be part of an extractor rod housing from a Colt Pacemaker .22 caliber single-action revolver. He also identified another piece of metal which was found near the victim's body as being part of a pistol grip mechanism from the same type weapon.

Yates testified that four spent projectiles (or bullets which have previously been fired) were turned over to him. Two were recovered from the victim's body by Dr. Embry, one was removed from the wall, and one from the ceiling of the farm house. He identified all four as being .22 caliber long rifle ammunition. Yates further testified that the grooving on the projectiles was consistent with a Colt Pacemaker pistol.

Yates also examined a bedspread and two bed sheets turned over to him. The bedspread had a bullet hole with stippling (or a scattering of gun powder) around the hole. One of the sheets had three bullet holes in it with stippling around the holes. Yates testified that it was possible that the three holes were made by one gunshot, by the sheet being folded. The other sheet had two bullet holes in it; one hole had stippling around it.

Yates testified that the stippling was consistent with a gun being fired at close range. He also stated that all the holes were consistent with a .22 caliber bullet.

Dr. Joseph Embry, a forensic pathologist with the Department of Forensic Sciences, testified next for the State. Dr. Embry performed an autopsy on the victim on February 19, 1986. He stated that one bullet was lodged in the victim's stomach and one in his chest wall. The gunshot wound to the stomach was surrounded with stippling, which indicates that the shot was fired from within one to two feet.

Dr. Embry also stated that the victim suffered numerous injuries on and about his head, as follows:

"He had a great number of bruises and tears of his scalp in the right temple area and the upper portion of his right cheek in an arc about eight-by-four inches extending into the scalp behind the right ear from the upper portion of the right cheek. He had similar tears in the right ear and the back of the left side of his head. These tears were patterned injuries in that they were curved and must have been about a half-inch in length.

"The skull beneath the tears above his right ear were shattered and small pieces of skull and brain were in his hair.

"He had other scrapes and abrasions or bruises or contusions on the tip of his nose in the location of the eyeglass and the back of his right arm."

(R. 956-57.) And he stated:

"On his brain on the right side he had tears, but beneath the tears in his scalp and fractures in his skull, superficially to the brain itself. He had marked hemorrhage or bleeding in the abdomen in the area around the interior vena cava in the back of his abdomen.

"Externally, he had scrapes and bruises on the right side of his arm on the outside aspect and on the back of his right elbow, the back of his right forearm, and the back of his right upper arm. The elbow had lacerations or tearing of the upper arm just above the elbow. He had a few...