Smith v. State

• Decision Date: 06 March 1998
• Citation: 727 So.2d 147
• Parties: Larry Reynold SMITH v. STATE.
• Court: Alabama Court of Criminal Appeals

727 So.2d 147

Larry Reynold SMITH v. STATE.

CR-94-2205.

Court of Criminal Appeals of Alabama.

March 6, 1998.

Rehearing Denied May 8, 1998.

Jack Daniel, Huntsville; and LaJuana Davis and Ellen L. Wiesner, Montgomery, for appellant.

Bill Pryor, atty. gen., and Michael Billingsley, asst. atty. gen., for appellee.

COBB, Judge.

Larry Reynold Smith was convicted of murder for the death of Dennis Wheeler Harris, made capital because it was committed during a robbery. See § 13A-5-40(a)(2), Ala.Code 1975. The jury recommended, by a vote of 12 to 0, that Smith receive the death sentence. The trial court imposed the death sentence recommended by the jury and Smith appeals. We affirm.

Chief Investigator Mike Whitten of the Marshall County Sheriffs Department testified that he received a report on September 29, 1994, that Dennis Harris was missing. He stated that he then began to talk with various individuals and determined that Harris had last been seen on September 23, 1994. Whitten testified that on the night of October 3, 1994, he received a report that Harris's body had been discovered. At approximately 11:00 p.m., Whitten located Harris's body in a wooded area in Marshall County, approximately 100 yards from a dirt road. He testified that the area was secured and that a deputy remained on the scene until Whitten and other officials returned early the following morning.

Whitten stated that the scene remained unchanged overnight and that the weather conditions were constant. Photographs were taken of the body and the surrounding area. Whitten stated that Harris's body was lying face down and was badly decomposed. He stated that the head had completely separated from the body. The skull was exposed, having been separated entirely from the scalp and hair. Harris was wearing a plaid shirt and shoes with no socks. Whitten testified that it appeared that Harris had died as a result of a gunshot wound to the head.

Whitten testified that he began to investigate the case as a homicide and also said that he questioned many of the people he had spoken with in investigating the missing persons report. In the course of the investigation, Whitten learned that Harris was a friend of Smith's and that he was a best friend of Tanya, Smith's wife. Whitten stated that he received a telephone call from Carl Cooper, an acquaintance of both Smith and Harris, and that based on the information Cooper gave him, he narrowed his investigation to Smith.

Cooper testified that he had known Smith for six or seven years and that he had been acquainted with Harris for approximately one year. He stated that he met Harris through Smith, and that he had also previously worked with Harris. Cooper testified that he would see Harris at Smith's mother's apartment or at Harris's apartment. He testified that he had read a newspaper report of Harris's disappearance and that he informed the authorities of a conversation he had with Smith about plans to rob Harris. Cooper testified that, before the murder, he and his wife discussed with Smith and his wife, Tanya, the idea of robbing Harris of cash. Cooper testified that the plan was for Smith and him to cover their faces, hit Harris in the head, take his glasses (without which Harris purportedly could not see) and rob him. Cooper testified that he originally thought the idea was a joke, but that when a similar conversation took place again later, he told Smith that he wanted nothing to do with the plan. Cooper also stated that he had seen Smith borrow money from Harris more than once.

Cooper further testified that he saw Smith with a nickel-plated .25 caliber semi-automatic weapon with a black handle and a black holster. Cooper testified that Smith told him that he had stolen the gun from "a man named Larry" who lived at the Overlook Mountain Lodge.

Larry Moffett testified that in September 1994, he was living at the Overlook Mountain Lodge, and that Smith lived "just [a] couple doors down." He stated that in the summer of 1994, he purchased a .25 caliber chrome gun with a black handle and a black holster. Moffett testified that Smith had looked at the gun and had offered to buy it. Moffett testified that he did not sell Smith the gun, and that he kept it on the nightstand by his bed. He stated that he later noticed that the gun was missing from his nightstand. He said that he confronted Smith and that Smith denied taking the gun.

Amanda Elkins, a co-worker of Harris's, testified that at approximately 1:00 a.m. on Friday, September 23, 1994, she and Harris left work and went to Elkins's house, where they watched television until approximately 4:30 a.m. Elkins testified that Harris left and that she never saw him again. She further stated that when he left, he was wearing gray pants and a red plaid shirt. She did not become aware of his disappearance until over a week later.

Kevin Harville testified that he had become acquainted with Harris after an automobile accident involving Harris. Harville testified that Harris owed him some money as a result of the automobile accident. He stated that since Harris was paid on Thursdays, he would go to his room every Friday to collect a payment towards the debt. Harville testified that he saw Smith and Harris at Harris's hotel room on a Friday in September, sometime between 11:30 a.m. and 12:30 p.m. He stated that he returned to Harris's room the following Friday; however, Harris did not come to the door. Harville later learned that Harris had been reported missing.

Brent Wheeler, an expert in firearms, testified that he examined some bullets or projectiles delivered to him in connection with the Harris homicide. He stated that he was able to determine that they had been fired from a .25 caliber automatic pistol. Wheeler also testified that he went to the scene of the murder and discovered two .25 caliber Remington cartridge cases near where the body was located. He testified that he was able to determine that both shell casings had been fired from the same weapon. Dr. Joseph Embry, the state medical examiner, testified that when he received Harris's body, it was clothed in a short-sleeved plaid, reddish brown and tan shirt. He stated that the head was essentially skeletonized. There was a ¼ inch hole in the right side of the back of the skull that displayed characteristics of a gunshot wound. Dr. Embry found a bullet inside the skull. Dr. Embry also testified concerning a second gunshot wound in the left cheek area as evidenced by bone loss beginning around the nose and going out to the area below the eye. He testified that a second bullet was found under the hair. However, he testified that the cause of death was the gunshot wound to the head.

Whitten testified that he was able to verify that a gun matching the description given to him by Cooper had been stolen from Larry Moffett. Whitten stated that on October 11, 1994, he obtained an arrest warrant for Smith and that he arrested Smith at his mother's trailer in DeKalb County. Smith was arrested for the murder of Harris and was taken to the Albertville Police Department where he was informed of his rights and was questioned. Whitten testified that Smith was questioned on two separate occasions, once by him and once by his brother, Andy Whitten.¹ Officer Mike Whitten was present during both interviews and stated that Smith was informed of, and voluntarily waived, his rights before each interview. Whitten stated that Smith gave a tape-recorded statement admitting to robbing and killing Harris. He was then tried for, and convicted of, capital murder. The jury recommended, by a vote of 12 to 0, that Smith be sentenced to death. The trial court followed the jury's recommendation and sentenced Smith to death.

I.

Smith contends that the trial court erred in allowing the jury to separate over his objection. In support of his argument, he cites § 12-16-9(a), Ala.Code 1975, which required the agreement of the accused, his attorney, and the state before the trial court could allow the jury to separate in a capital case.

We note that the statute Smith cites no longer exists. Effective June 15, 1995, subsection (a), which addressed the separation of a jury during a trial upon the consent of the accused, counsel for the accused, and the state, was deleted. Now, § 12-16-9 provides that the trial court, in its discretion, may permit the jury to separate during the trial in any felony case. No longer are the accused, counsel for the accused, and the state required to agree to the separation.

We note that, at the time of Smith's trial, there was a variance between the statute, as amended, and Rule 19.3, Ala.R.Crim.P. This Court in Stewart v. State [Ms. CR-90-415 September 26, 1997], ___ So.2d ___ (Ala.Cr. App.1997), recognized this conflict and held that § 12-16-9 implicitly and effectively overruled Rule 19.3, Ala.R.Crim.P. Specifically, we held that "[s]ection 12-16-9 authorizes a trial court, in its discretion, to allow a jury to separate in all trials, both capital and noncapital." Stewart, ___ So.2d at ___. Therefore, the trial court did not err in allowing the jurors to separate during Smith's trial. We also note that on October 8, 1997, the Supreme Court of Alabama amended Rule 19.3, Ala.R.Crim.P., effective December 1, 1997, to conform to § 12-16-9, Ala.Code 1975.

II.

Smith contends that the trial court considered inappropriate factors in determining that the statutory mitigating circumstance of "no significant history of prior criminal activity" did not exist. Specifically, he contends that when he attempted to argue that mitigating circumstance should be considered because, he said, his past criminal history was relatively minor, the trial court commented that it did not believe that a person who admitted using marijuana and being addicted to crack cocaine had a very minor background. (R. 1641.) One of the statutory mitigating circumstances that must be considered before sentencing a person to death...