Smith v. State

• Citation: 797 So.2d 503
• Parties: Corey Schriod SMITH v. STATE.
• Decision Date: 25 August 2000
• Court: Alabama Court of Criminal Appeals

797 So.2d 503

Corey Schriod SMITH v. STATE.

CR-95-0205.

Court of Criminal Appeals of Alabama.

August 25, 2000.

Rehearing Denied October 20, 2000.

Lee Sims, Dadeville; and Palmer Singleton, Atlanta, Georgia, for appellant.

Bill Pryor, atty. gen.; and Thomas F. Parker IV and Jack W. Willis, asst attys. gen., for appellee.

McMILLAN, Judge.

The appellant, Corey Schriod Smith, was convicted of murdering Kimberly Ann Brooks during the course of a kidnapping, an offense defined as capital by § 13A-5-40(a)(1), Ala.Code 1975. The jury unanimously recommended that Smith be sentenced to death. The trial court accepted the jury's recommendation and sentenced Smith to death by electrocution.

The State's evidence tended to show the following. On February 24, 1995, Tallapoosa police discovered the charred body of Kimberly Brooks rolled in a carpet; the carpet was lying beside a dirt road in Bibb Town. The coroner testified that Brooks had been shot in the head and the stomach and that there was soot in her lungs and trachea; he testified that she died of the "shots to the head [and] the chest and possible asphyxiation and burning."

Smith handwrote the following confession for the police:

"Kim came to the house around 7:30 a.m. Wednesday morning with Labreasha Main. We was talking about getting married later on. My brother Reginald came and Main left. After awhile, Reginald left.

"When my mamma got off work, me and Kim got into an argument about another girl calling me. We went outside. I pulled my gun on her. Sanjay [Brooks] and Shontai [Smith] pulled up. I forced her into the van. I told Sanjay to go to Bibb Town, which he did. And, when we got there, Kim and I got out, continuing arguing.

"I told her I love her, and if I couldn't have her, no one could. She told me she loved me but things weren't the same. I kissed her on the forehead and pushed her off me and shot her in the chest. And then she fell to the ground, and I shot her again toward her head.

"Shontai got out and helped me drag her into the bushes. We left. Sanjay dropped us off into the soft sands. When he returned, we got James Shealey['s] car and got some gas and went back where I left her. When we got there, she was standing up, and she got in the car and sat besides me. I was scared.

"Sanjay rode from Bibb Town to Reeltown looking for a place to set her on fire and bury her. I asked her what would she say if I took her to the hospital. She say, `I'm going to say Corey shot me.' We returned back to Bibb Town, and Sanjay drop us off—dropped us off. He told us to go ahead and finish her and he'll be back.

"We put a trash bag over her face until she died. I poured the gas on her, and Shontai lit the lighter. Sanjay never returned.

"We left there and walked back to my house. Shontai spent the night. The next [day] he left and I never saw him again."

Smith's codefendants, Sanjay Brooks and Shontai Smith, Smith's cousins, pleaded guilty to murder and to kidnapping and received life sentences in exchange for their trial testimony against Smith. Brooks was sentenced to concurrent life sentences on each count and Shontai Smith was sentenced to two consecutive life sentences. Both codefendants testified at trial and corroborated Smith's statement. Shontai Smith further testified, concerning setting Brooks's body on fire, that after he and Smith poured gasoline on Brooks and ignited her, the fire got out of control; to stop it they threw sand on Brooks's body. The two then placed her body in a piece of carpet that had been left in the dump area and rolled her body in the carpet.

Two other witnesses testified that on the day of the murder Smith told them that he had killed Kimberly. One witness, Larry Butler, testified that Smith told him that he had killed Kimberly and that he needed gasoline to dispose of her body.

Because Smith was sentenced to death, this Court is obligated, pursuant to Rule 45A, Ala.R.App.P., to review the record of the trial for plain error. Rule 45A, Ala. R.App.P., defines "plain error" as follows:

"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings 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 right of the appellant."

As this Court stated in Tyson v. State, 784 So.2d 328, 333 (Ala.Crim.App. 2000):

"Error is `plain' if `the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings.' Haney v. State, 603 So.2d 368 (Ala.Cr. App.1991), aff'd, 603 So.2d 412 (Ala. 1992), cert. denied, 507 U.S. 925, 113 S.Ct. 1297, 122 L.Ed.2d 687 (1993). Also, `[T]he 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."' United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). To find plain error `the claimed error [must] not only [have] seriously affected [the defendant's] "substantial rights," but ... it [must have] had an unfair prejudicial impact on the jury's deliberations.' Young, 470 U.S. at 18 n. 14."

I.

Smith argues that the trial court erred in not quashing his indictment because, he alleges, there was gender discrimination in the selection of the grand jury foreperson in Tallapoosa County.¹ Smith argues that he met his burden of establishing a prima facie case of gender discrimination and that the State failed to rebut this evidence. Smith also asserts that this alleged discrimination is all the more "repugnant" because of the important and vital role that the grand jury foreperson performs.

Initially, we observe that the Alabama Supreme Court has characterized the role of an Alabama grand jury foreperson as "primarily ministerial." Ex parte Myers, 699 So.2d 1285 (Ala.1997), cert. denied, 522 U.S. 1054, 118 S.Ct. 706, 139 L.Ed.2d 648 (1998). "[T]he role of a grand jury foreperson in Alabama is so ministerial that even his or her failure to participate in deliberations and to vote with the panel is not fatal to the indictment if the requisite 12 members of the panel concur in the indictment." Ex parte Pace, 714 So.2d 332, 338 (Ala.1997), opinion on remand, 714 So.2d 340 (Ala.Crim. App.1998), cert. denied, 523 U.S. 1051, 118 S.Ct. 1372, 140 L.Ed.2d 520 (1998). The Alabama Supreme Court in Pace refused to find plain error in the discriminatory selection of a foreperson of an otherwise properly constituted grand jury because the role of the foreperson in almost entirely ministerial.

This Court held in Lee v. State, 631 So.2d 1059 (Ala.Crim.App.1993), and Locke v. State, 631 So.2d 1062 (Ala.Crim.App. 1993), that in order to establish a prima facie case of racial discrimination in the selection of a grand jury foreperson, the defendant must show: (1) that the group alleged to be discriminated against is a distinct group; (2) that the degree of under representation is significant over a period of time; and (3) that the selection procedure is susceptible to abuse or is not race-neutral. We note that this Court has used this test when determining whether there was gender discrimination in the selection of a grand jury foreperson. Minor v. State, 780 So.2d 707 (Ala.Crim.App. 1999). Once the defendant has established a prima facie case of discrimination, the burden then shifts to the State to rebut this evidence. Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979).

At the hearing on the pretrial motion to dismiss, Smith presented evidence that from spring 1990, until Smith was indicted in spring 1995, 11 grand juries were convened in Tallapoosa County.² Of the 11 grand juries convened, two had forepersons who were women—spring 1992 and one in fall 1993. Smith also submitted the 1990 census for Tallapoosa County. This census reflected that in 1990 women over the age of 18 made up 54% of the population in Tallapoosa County. There was also a stipulation at the hearing that the grand jury forepersons were selected by the local circuit court judges, sometimes with the advice of the district attorney.

Certainly, women constitute a distinct group in Tallapoosa County and Smith's evidence showed that 2 women had been selected as forepersons out of the 11 grand juries that had convened in the period he reported on. The foreperson of Smith's grand jury was male. However, Smith did not meet the third prong of the Lee and Locke test. Although there was a stipulation as to how foreperson were generally selected in Tallapoosa County Smith did not present evidence as to how the grand jury foreperson who presided over the grand jury that indicted him was selected. There was evidence presented that the presiding judge did not always follow the district attorney's recommendation and that the judge would, on occasion, select the grand jury foreperson himself. However, there was no indication how the grand jury foreperson for Smith's grand jury was chosen. Neither was there evidence as to the criteria that the judge used in selecting the grand jury foreperson. There was no evidence that the standards by which the judges chose grand jury forepersons were discriminatory. Also, defense counsel at the hearing admitted that he did not know the gender composition of Smith's grand jury. As this Court stated in Drinkard v. State, 777 So.2d 225, 243 (Ala.Crim.App. 1999):

"[T]he appellant did not establish that there was any discrimination in the selection of the foreperson of the grand jury that indicted him. The racial composition of the grand jury is not evident from the record. It would be sheer supposition to conclude that an African American served on the grand jury that indicted the appellant, and that he

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