Smith v. State
| Decision Date | 02 October 1998 |
| Citation | 745 So.2d 284 |
| Parties | Burnum Gilbert SMITH and Lisa Smith v. STATE. |
| Court | Alabama Court of Criminal Appeals |
J. Stanton Glasscox, Oneonta; and Susanna B. Smith and Donald W. Stewart, Anniston, for appellants.
Bill Pryor, atty. gen., and Jean A. Therkelsen, asst. atty. gen., for appellee.
Alabama Supreme Court 1980595.
On November 19, 1993, the appellants, Burnum Gilbert Smith and his wife Lisa Smith, were charged in separate indictments with the following offenses: Burnum Gilbert Smith was charged with (1) sodomy in the first degree and sexual abuse in the first degree (case no. 93-337, involving victim T.B.); (2) rape in the first degree, sodomy in the first degree, and sexual abuse in the first degree (case no. 93-338, involving victim S.B.); and (3) sexual abuse in the first degree and sodomy in the first degree (case no. 93-339, involving victim B.B.). Lisa Smith was charged with (1) incest and sexual abuse in the first degree (case no. 93-340, involving victim B.B.); (2) sexual abuse in the first degree (case no. 93-341, involving victim T.B.); and (3) rape in the first degree and sexual abuse in the first degree (case no. 93-342, involving victim S.B.). The appellants' cases were consolidated, and trial began on September 19, 1994. On the second day of trial, the appellants were granted a mistrial. On May 31, 1995, a second trial began. Both appellants were found guilty of all the charges, except Lisa Smith was acquitted of the charge of rape. Burnum Gilbert Smith was sentenced to life imprisonment on the rape conviction and each of the 3 sodomy convictions and to 10 years' imprisonment on each of the 3 sexual abuse convictions. Lisa Smith was sentenced to life imprisonment on the incest conviction and on each of the 3 sexual abuse convictions. The Smiths appealed to this Court on October 23, 1995. However, while that appeal was pending, they also each filed a Rule 32, Ala.R.Crim.P., petition in the circuit court. Following a stay of their appeal, the circuit court denied the appellants' Rule 32 petitions. The case was resubmitted to this Court on October 24, 1997.
The State's evidence at trial tended to show that, when the appellants married in July 1991, Lisa Smith was the mother of three children: S.B., a girl then 10 years old; B.B., a boy then 6 years old; and T.B., a girl then one year old. In August 1993, the children were removed from the Smiths' custody after S.B.'s teacher reported that S.B. had been sexually abused. S.B. testified at trial that, over a period of approximately two years, her stepfather Burnum Gilbert Smith had touched her genitals with his hand, his penis, his mouth, and a dildo; that he had put his penis into her mouth and had ejaculated; and that he had had intercourse with her. She said that her stepfather also engaged in numerous sexual acts with her brother and sister and forced her to have sexual intercourse with her brother, B.B. S.B. also testified that her mother touched her on her genitals and watched as she performed many of the sexual acts with her stepfather. S.B. admitted that she had previously falsely accused her Uncle Don, the husband of her mother's sister, of rape. B.B. testified that, during that same two-year period, his stepfather had put his hand on B.B.'s penis and also had put his own penis into B.B.'s mouth and had ejaculated. B.B. said that his stepfather engaged in sexual acts with his sisters and also had forced him to place his penis onto his mother's genitals. He stated that his mother was present during many of the sexual acts with his stepfather. T.B. testified that her stepfather had done "bad things" to her and to her brother and sister. She illustrated with anatomical dolls that her stepfather had touched her genitals and her mouth with his penis, and she stated that her mother was present during these acts.
Meg Wood, a county social worker, testified that she obtained a pick-up order for B.B. and S.B. on September 16, 1993, and that she removed them from the Smiths' home. She subsequently obtained a second order and picked up T.B. from Mr. Smith's parents on September 28. B.B. and T.B.'s statements to her concerning their mother and stepfather's actions were essentially the same as their testimony at trial. Georgia Murray, a children's therapist, testified that she began working with the three children after they had been removed from their home. B.B. and T.B.'s statements to her also were similar to their testimony at trial. Two of Burnum Gilbert Smith's adult daughters testified that their father had engaged in sexual acts with them when they were living at home. M.A.A., who was 38 years old at the time of trial, said that her father had had sexual intercourse with her when she was 12 years old and again when she was 15 years old and that her natural mother was aware of these acts. B.H., who was 36 years old at the time of trial, testified that her father had sex with her from the time she was 12 or 13 years old until she left home at age 18. She said that her mother had joined them in bed every time except the first.
Lisa Smith testified that she and her husband had disciplined her children physically, but she denied that either of them had ever committed any sexual acts with them. She said that S.B. often told lies and that she did not like her stepfather. Burnum Gilbert Smith testified that his natural daughters did not like his current wife, Lisa Smith. He said that he had never had an improper relationship with his stepchildren or his natural daughters and that their mothers would not have allowed such acts.
The issues presented in the appellants' direct appeal are set out in Part I. The issue presented in their Rule 32 petitions is set out in Part II.
The appellants contend that the trial court erred in denying their motion for a mistrial, which alleged that their second trial, following a mistrial, violated their right to be free from double jeopardy. They also contend that the issue of whether the prosecutor was guilty of misconduct should have been heard by a jury because, they say, the prosecutor gave them a copy of a D.H.R. report at trial solely to "goad them into asking for a mistrial" when he saw that "he could not successfully use certain statements" contained in the report at trial.
In Spears v. State, 647 So.2d 15, 21-22 (Ala.Cr.App.1994), this Court stated that, when a defendant has moved for, and been granted, a mistrial, double jeopardy bars a retrial only when the government's conduct in the first trial is "intended to `goad'" the defendant into making the motion. Here, the appellants failed to offer any evidence of such an intent on the part of the prosecution. On the first day of the appellants' first trial, after the jury had been empaneled and sworn but before any other proceedings had begun, the appellants moved for production of a D.H.R. report they claimed had not been provided in discovery. The trial court ordered the prosecutor to provide the report, and the prosecutor complied. The appellants subsequently moved for a mistrial, on the ground that they had been prejudiced by the delay.
At the hearing on the motion, the prosecutors stated that they understood that the appellants had been furnished a copy of the D.H.R. report before trial but that, because they could not say for certain that the appellants had received the report, a mistrial should be granted because they "didn't want this court to do anything that would cause this case to come back here." The court then granted the appellants' motion for a mistrial. On the first day of the retrial, the appellants again moved for a mistrial. At the hearing on that motion, the appellants stated that they intended to call the prosecutor, the author of the D.H.R. report, and the typist of the report as witnesses. However, they made no offer of proof as to the expected testimony of the witnesses or as to any other evidence they had that tended to prove that the prosecution had intentionally goaded them to seek a mistrial in the first trial.1 In light of the complete absence of any evidence of intent on the part of the prosecution, and in light of clear evidence that the report was produced pursuant to a specific order of the trial court, the judge did not err in determining that a jury trial on the appellant's motion was not required in denying the motion.
The appellants contend that the trial court erred in admitting evidence of collateral acts allegedly committed by Burnum Gilbert Smith against his daughters. Burnum Gilbert Smith argues that the incidents were too remote because one daughter testified that the acts against her occurred "some 26 years before the trial of the case" and the other said that she had been abused "at least 22 years before ... trial." He also argues that the acts did not closely resemble the present offenses because he "supposedly acted alone" in the prior offenses and, in the present case, he was charged with the "deviant behavior" of "jointly raping, sodomizing and molesting" the victims. Lisa Smith argues that the trial court's limiting instruction failed to cure the prejudicial impact of the evidence of Burnum Gilbert Smith's collateral acts.
The record reveals that Burnum Gilbert Smith incorrectly calculated the time—he used the period between the prior acts and the trial, rather than the period between the prior acts and the present ones. M.A.A. testified that one incident occurred in 1970 and another in 1973,2 and B.H. testified that the abuse against her began in 1971 or 1972 and ended in 1977.3 Testimony established that S.B. was abused in August 1991, B.B. in November 1991, and T.B. in August 1993. The time between the acts therefore was a minimum of 18 and a maximum of 20 years for M.A.A. and a minimum of 14 and a maximum of 16 years for B. H.
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