Smith v. State, 5 Div. 458

CourtAlabama Court of Criminal Appeals
Writing for the CourtTYSON; Over the appellant's objection at trial; Finally; The appellant next argues that J.F. was impermissibly allowed to bolster her in-court identification of the appellant as her assailant. On direct examination; BOWEN; BOWEN
Citation581 So.2d 497
Decision Date24 August 1990
Docket Number5 Div. 458
PartiesJames Wyman SMITH v. STATE.

Page 497

581 So.2d 497
James Wyman SMITH
v.
STATE.
5 Div. 458.
Court of Criminal Appeals of Alabama.
Aug. 24, 1990.
Rehearing Denied Oct. 12, 1990.

Page 500

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

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

TYSON, Judge.

James Wyman Smith was charged by indictment with capital murder committed during a kidnapping in the first degree, in violation of § 13A-5-40(a)(1), Code of Alabama 1975. The petit jury, at the conclusion of the guilt phase of the trial, found the appellant "guilty as charged in the indictment" and, during the sentencing phase, recommended that he be sentenced to death. The trial judge accepted the jury's recommendation and sentenced the appellant to death by electrocution.

The evidence at trial indicated that, on August 31, 1984, Linda Long Talbert was abducted from Flowers Bait Store in Lee County, Alabama. Linda Talbert, the victim, worked as the store clerk from 6:00 a.m. to 2:00 p.m.

Odell White, a frequent customer of the store, stopped by sometime after 10:00 a.m. 1 on August 31, 1984. Donnie Ray

Page 501

Buchanan, who knew the victim and the proprietors of the store, entered immediately after White. Linda Talbert was not in the store. The two men looked in and around the store but were unable to find her.

Buchanan then went to Billy Ray Flowers home, which was approximately one-quarter mile away. Flowers, the owner of the store, returned to the store with Buchanan. Upon confirming that Linda Talbert was not there, he checked the cash register but did not find any money missing. He also spotted Linda's purse behind the check-out counter. He then called the Lee County Sheriff's Department.

Jerry Kay Davis, a carrier for the Columbus Ledger newspaper, was servicing her route when she spotted a pair of white ladies' tennis shoes lying beside the road. Captain Paul Dennis, with the Lee County Sheriff's Department, took possession of the shoes on September 1, 1984. He took the shoes to Donnie Talbert, the victim's husband, who identified the shoes as belonging to his wife.

On September 2, 1984, a search party was organized to search for Linda Talbert. The search focused on the area where the tennis shoes were found, particularly two dirt roads which ran off of the main highway.

Dan Perry and John Shavers, two members of the search group, were driving down one of the dirt roads, commonly called Ghost Town Road, when they noticed a set of tire tracks leading off the road into an adjoining field. The men parked their automobile and, on foot, followed the tire tracks. After walking a short distance off the road, Shavers spotted a body, which was later identified as that of Linda Talbert. They notified the deputies in the area, who came to that location and secured the scene.

On December 4, 1984, the appellant attempted to burglarize an apartment in Auburn, Alabama. During the burglary, the appellant got into an altercation with an Auburn University female student. The appellant fired a shot from his pistol. The appellant fled the scene in his 1980 Dodge St. Regis automobile. An Auburn police officer, Andy Thee, pursued the appellant. During the high-speed pursuit, the appellant wrecked his car. He parked his car in someone's yard and fled on foot. He was located the following day, December 5, 1984, and was arrested. He pleaded guilty to this burglary and received a sentence of life imprisonment without parole.

The appellant's automobile was impounded at the Auburn city lot. While it was in impound, someone noticed that the automobile had Blue Streak radial tires on the front and bias tires on the rear. The tire prints from these tires seemed to match the tire prints at the scene where Linda Talbert's body was found.

Impressions were made of the automobile's tire prints and photographs were taken. These photographs, along with photographs of the tire prints found at the crime scene, were submitted to George Thomas Caddote, the manager of marketing and engineering of Kelly Springfield Tire Company. Cadotte testified that the tire prints found at the scene were partially made by a Goodyear Blue Streak radial tire. He explained that this type of tire was a police pursuit tire sold by Goodyear and placed only on police vehicles. 2 Cadotte stated that the Blue Streak has an imprint different from that of all other tires.

Based upon the similarities of the tire prints, Lieutenant Jay Jones checked the registration on the automobile. He discovered that the car was registered to Margaret Christine Smith, the appellant's wife. He obtained a consent to search the automobile

Page 502

from Margaret Smith. Thereafter, he, together with a team of trace evidence analysts from the Department of Forensic Sciences, searched the car and removed some fibers and hairs from the automobile. These fibers and hairs were later compared to fibers and hairs taken from the body and clothing of Linda Talbert. Based on these comparisons, the analysts were able to identify seven fibers and hairs with similar or very similar qualities.

Following the appellant's arrest for the burglary in Auburn, he was placed in a cell in the Lee County jail with Marion Sanford Enfinger. The appellant and Enfinger remained cellmates from December 1984 until February 1985. Enfinger testified that during this period of time the appellant expressed his concern that the police suspected him of killing Linda Talbert. Enfinger claimed that he told the appellant that he did not have anything to worry about if he did not kill her. To this, Enfinger testified, the appellant responded, "I did do it." (R. 1307, 1397.)

According to Enfinger, the appellant stated that he went into Flowers store to buy a soft drink and some cigarettes. He noticed that the clerk was alone, so he pulled his pistol out and said, "You're going with me." The appellant then allegedly told Enfinger that he took her down a dirt road in a vacant field, took her clothes off, attempted to have intercourse with her, and then strangled her with her brassiere. (R. 1331-34, 1404-07.)

Enfinger also testified that the appellant made several other incriminating statements to him, including: (1) that he was involved in an incident in Columbus, Georgia, with a detective's wife; (2) that the gun he used in the Auburn burglary and the abduction of Linda Talbert were one and the same; (3) that he pleaded guilty to the burglary charge in hopes that the police would quit pursuing him on the Talbert case; and (4) that after he killed Linda Talbert he realized that her shoes were still in his car, so he set them out beside the road.

The State also called J.F., an employee of Brown Real Estate Agency in Columbus, Georgia. She testified that she got to work about 9:00 a.m. on August 31, 1984. Shortly thereafter, a man came into her office, brandishing a pistol. J.F. testified that the appellant tried to rape her and made her perform oral sex on him. J.F. stated that her husband was a police officer with the Columbus Police Department at the time.

After the appellant was arrested in December 1984, J.F. went to the Lee County, Alabama, sheriff's department, where she identified this appellant as her assailant. She also made an in-court identification of him.

The appellant, at trial, called several witnesses to attempt to establish that it would have been impossible, time-wise, for him to have committed the crime in Columbus, Georgia, and then, on the same morning have committed the murder of Linda Talbert. Among these witnesses were his sister and his aunt, both of whom stated that the appellant came to their homes on the morning of August 31, 1984, and the appellant's stepson-in-law, who measured distances and times between relevant points in Columbus and Lee County.

The appellant also called Dr. David Michael Hall, an expert on fiber and hair analysis, to explain the fiber production process. Dr. Hall's testimony was obviously elicited to attempt to off-set the testimony of Tellis Hudson and John Kilbourn with the Department of Forensic Sciences. Both Hudson and Kilbourn examined the hairs and fibers and found seven samples taken from the appellant's automobile which were similar or very similar to those hairs and fibers removed from the victim's body and clothing. Dr. Hall, however, stated that he found no "significant dissimilarities" between the questioned and known hairs and fibers. In fact, he stated: "The fact that we had all of these fibers together at one time is probably significant." (R. 1630.)

Based on this evidence, the jury found the appellant guilty of the capital murder of Linda Talbert. He now appeals from this conviction.

Page 503

The appellant raises numerous issues in his brief. We note that a number of these matters were not raised at trial by timely objection. Nonetheless, as this court stated in Hooks v. State, 534 So.2d 329, 351-52 (Ala.Cr.App.1987), aff'd, 534 So.2d 371 (Ala.1988), cert. denied, 488 U.S. 1050, 109 S.Ct. 883, 102 L.Ed.2d 1005 (1989):

"However, since this is a death case, we must review the error before us to see if it constitutes plain error and, thus, should be noticed despite the lack of a proper objection by defense counsel. Rule 45A, A.R.A.P. In considering what constitutes 'plain error' in a capital case, the Alabama Supreme Court has looked to the federal court's interpretation of what is 'plain error.' See Ex parte Harrell, 470 So.2d 1309 (Ala.1985); Ex parte Womack, 435 So.2d 766 (Ala.1983).

"In United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the Supreme Court stated that the plain error doctrine should be used to correct only 'particularly egregious errors' (quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982)) which are those errors that 'seriously affect the fairness, integrity or public reputation of judicial proceedings'...

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20 practice notes
  • Melson v. State
    • United States
    • Alabama Court of Criminal Appeals
    • March 26, 1999
    ...the possibility of parole regardless of the evidence pertaining to aggravating and mitigating circumstances. See, e.g., Smith v. State, 581 So.2d 497 (Ala.Cr. App.1990), rev'd on other grounds, 581 So.2d 531 (Ala.1991); Kuenzel v. State, 577 So.2d 474 (Ala.Cr.App.1990), aff'd, 577 So.2d 531......
  • Smith v. State
    • United States
    • Alabama Court of Criminal Appeals
    • February 1, 2002
    ...juror can lay aside his [or her] impression or opinion and render a verdict based on the evidence presented in court."` Smith v. State, 581 So.2d 497, 503 (Ala.Crim.App. 1990), rev'd on other grounds, 581 So.2d 531 (Ala.1991), quoting Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1643, 6......
  • Barber v. State, No. CR-03-0737.
    • United States
    • Alabama Court of Criminal Appeals
    • May 27, 2005
    ...the possibility of parole regardless of the evidence pertaining to aggravating and mitigating circumstances. See, e.g., Smith v. State, 581 So.2d 497 (Ala.Cr.App. 1990), rev'd on other grounds, 581 So.2d 531 (Ala.1991); Kuenzel v. State, 577 So.2d 474 (Ala.Cr.App. 1990), aff'd, 577 So.2d 53......
  • Williams v. State, CR-92-0382
    • United States
    • Alabama Court of Criminal Appeals
    • August 23, 1996
    ...error, either on statutory or common law grounds, in the trial court's failure to sua sponte remove A.D. from the venire. Smith v. State, 581 So.2d 497, 503 (Ala.Cr.App.1990), rev'd on other grounds, 581 So.2d 531 (Ala.1991). ("The party seeking to challenge a juror for cause must show that......
  • Request a trial to view additional results
20 cases
  • Melson v. State
    • United States
    • Alabama Court of Criminal Appeals
    • March 26, 1999
    ...the possibility of parole regardless of the evidence pertaining to aggravating and mitigating circumstances. See, e.g., Smith v. State, 581 So.2d 497 (Ala.Cr. App.1990), rev'd on other grounds, 581 So.2d 531 (Ala.1991); Kuenzel v. State, 577 So.2d 474 (Ala.Cr.App.1990), aff'd, 577 So.2d 531......
  • Smith v. State
    • United States
    • Alabama Court of Criminal Appeals
    • February 1, 2002
    ...juror can lay aside his [or her] impression or opinion and render a verdict based on the evidence presented in court."` Smith v. State, 581 So.2d 497, 503 (Ala.Crim.App. 1990), rev'd on other grounds, 581 So.2d 531 (Ala.1991), quoting Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1643, 6......
  • Barber v. State, No. CR-03-0737.
    • United States
    • Alabama Court of Criminal Appeals
    • May 27, 2005
    ...the possibility of parole regardless of the evidence pertaining to aggravating and mitigating circumstances. See, e.g., Smith v. State, 581 So.2d 497 (Ala.Cr.App. 1990), rev'd on other grounds, 581 So.2d 531 (Ala.1991); Kuenzel v. State, 577 So.2d 474 (Ala.Cr.App. 1990), aff'd, 577 So.2d 53......
  • Williams v. State, CR-92-0382
    • United States
    • Alabama Court of Criminal Appeals
    • August 23, 1996
    ...error, either on statutory or common law grounds, in the trial court's failure to sua sponte remove A.D. from the venire. Smith v. State, 581 So.2d 497, 503 (Ala.Cr.App.1990), rev'd on other grounds, 581 So.2d 531 (Ala.1991). ("The party seeking to challenge a juror for cause must show that......
  • Request a trial to view additional results

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