Smith v. State

• Decision Date: 01 February 2002
• Citation: 838 So.2d 413
• Parties: Willie B. SMITH III v. STATE.
• Court: Alabama Court of Criminal Appeals

838 So.2d 413

Willie B. SMITH III v. STATE.

CR-91-1975.

Court of Criminal Appeals of Alabama.

February 1, 2002.

Rehearing Denied March 15, 2002.

Certiorari Denied June 28, 2002.

Ellen L. Wiesner, Brookfield, Wisconsin, for appellant.

Bill Pryor, atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for appellee.

Alabama Supreme Court 1011228.

On Return to Remand

PER CURIAM.

The appellant, Willie B. Smith III, was convicted of capital murder for the intentional killing of Sharma Ruth Johnson during the course of a robbery and the intentional killing of Sharma Ruth Johnson during the course of a kidnapping. Following a sentencing hearing, the jury returned an advisory verdict of death, by a vote of 10 for death and 2 for life imprisonment without parole. A subsequent sentencing hearing was held before the trial court, and the appellant was sentenced to death by electrocution.

The trial court properly made the following findings of fact concerning the offense, which were contained in his sentencing order:

"The Defendant is a black male, age 22 at the time of trial, charged in an execution style shotgun slaying of Sharma Ruth Johnson, a 22-year-old white female abducted at gunpoint from an automatic teller site at a local bank.

". . . .

"Angelica Willis, also indicted for the capital murder of Ms. Johnson, testified in exchange for a plea to the lesser offense of murder and a twenty-five year sentence. Ms. Willis, age 17 at the time of the offense, stated that she was living with defendant Smith in October, 1991, that she and defendant left their apartment on foot at about midnight of October 26 to look for defendant's brother Lorenzo, were enroute to Pizza Hut [restaurant] and observed Ms. Johnson seated in her car at a First Alabama Right Place automatic teller machine on Parkway East. Ms. Willis states that defendant Smith told her to approach the car and `ask the lady where Krystals [hamburger fast food restaurant] is', that she complied by going to the passenger side of the car, made the inquiry, that Ms. Johnson said she did not know the location of Krystals, that the defendant approached the car, pulled out a sawed-off shotgun, inserting the gun partly in the window and repeatedly demanded that the victim get out of the car; that Ms. Johnson got out of the car and was placed in the car trunk, that defendant drives the car some distance to Huffman, returns to the point of the abduction at the bank and locates Ms. Johnson's bank card on the ground.

"The victim is made to call out her secret code number from the trunk of the car and the approximate amount of money she had in her account, enabling Willis at defendant's instruction to receive some $80.00 from the automatic teller machine.

"Unknown to defendant Smith the bank video camera is taking his photograph while he is seated in the car directing Willis' activities. The time of day depicted in the photo frame is Sunday, October 27, 1991, 1:25 a.m.

"The film runs for about four minutes depicting defendant's face and special wearing apparel, Los Angeles Raiders cap, epaulets on shoulders of coat.

"The witness describes how defendant Smith embarked again driving victim's car with victim in the trunk and Willis in the front seat, the purchase of some gas at a Texaco station and locating Lorenzo at a shopping center in Huffman.

"The witness describes Lorenzo getting into the car and upon learning that the owner of the car is a female locked in the trunk taunts the victim with sexual overtures, i.e., `do you want to suck my ______.'

"The defendant and Willis manage to get Lorenzo to quiet down, a phone call is made to a Michael Wilson who is not in, witness then describes the trip to Zion Memorial Cemetery.

"Willis states that Smith said `I'm going to have to kill her—she'll call the police,' Willis states that she (Willis) protested but that Smith persisted that he would have to kill Ms. Johnson; that Smith directed Lorenzo and Willis to get away from the trunk in case the woman might jump out at them, that he proceeded to open the trunk, remarking to the victim `I'm going to have to kill you', that the victim promised that she would not tell the authorities, that Smith raises up the gun and she hears the report of the shotgun.

"Witness describes Lorenzo as stating `Willie had shot her in the head.'

"Next the threesome drive to north Roebuck and abandon the vehicle with Ms. Johnson's remains in the trunk. The next day Willis states that defendant Smith confided in her that he had gone back and burned the car to remove his fingerprints.

"Germane Norman testified that in early November she heard the defendant on the phone describing how he had `killed a white woman at the cemetery, had ridden around in her car and later burned the car.'

"The witness further describes defendant as saying that he was going to leave town.

"Latonya Roshell described how she met the defendant in November when defendant and Michael Wilson moved into her place; that Wilson stated to her that Willie needed a place to stay; that Smith stated that he had `got a white woman and shot her—blowed her brains out—and got some money from her.'

"Roshell is a Hoover Police Department informant and upon confirming through news reports that Smith was telling the truth she called her contact at Hoover Police Department. The Hoover Police Department gets Birmingham Police Department involved and Ms. Roshell agrees to be `wired' with a body mike.

"Ms. Roshell, wearing a body mike and monitored by the police, engages in a dialogue with defendant Smith and though there is static and interference on the tape from airplanes, passing cars, radios, etc., defendant Smith is clearly heard to make a number of inculpatory statements.

"Redacted or `sanitized' tapes were played to the jury and the jury was provided a redacted transcript of the dialogue. Some of the actual dialogue between Roshell and Smith at tape # 1 side B beginning at page 4 of the transcript follows:

"`Smith: Now, now that's the only way he can help me, but as far as giving me some money, but it ain't never came down to it, really, really, really boil down to it, where I just have to go on and get out of town.

"`Roshell: Even, Jermaine was trying to get money from folks. She said me and Willie had our differences but I don't want to see him get fucked up over no bullshit like this, but ah what I'm saying, they followed y'all to the apartment.

`"Smith: Yeah.

"`Roshell: What I'm saying is this thing fucked up.

"`Smith: Yeah, it is fucked up boy, you know like I said earlier, it don't really matter to me.

"`Roshell: What I like to know, I mean, do you, I mean you can't trust everybody.

"`Smith: I can't trust everybody, only my, only person knows my brother, my brother he lives my brother worried about him, you understand?

"`Roshell: What he was with you?

"`Smith: Yeah, he was with me, my brother I ain't worried about him.

"`Roshell: Oh.

"`Smith: I ain't worried about him. And, and my cousin.

"`Roshell: Your cousin was with you?

"`Smith: Nah, not my cousin, but, he's my cousin, the one that went the next day when we burnt up the car, but I ain't worried about him. Because he helped me burn up that bitch, so my kin only know.

"`Roshell: That's why you, you didn't want your fingerprints on it.

"`Smith: Yeah, yeah.

"`Roshell: But you ain't been to jail for no damn murder have you? What makes you, make you, ... I/A ... if you ain't been to jail for murder. Like you running scared?

"`Smith: Right now, I ain't, I'm not on the run. I ain't on the run right now. What I was trying to do, I was trying to get my things away from Roebuck, period. You see what I'm saying, just in case, these white folks don't hardly like no black folks running there anyway. I walked through there with my gun, I had my hand on my gun like this and just in case they say, boom, and there he go, that is the one, you see what I'm saying? They going put a check on him. You see I don't want, I don't want to be around all that, see cause that's why I said I'd get away from the house for a couple of weeks, couple of months something like that there, then my face wouldn't be seen from all these cars out in the clear. So you don't like that idea?

"`Smith: ... I/A ... (road traffic) (interference inside store, Pac Man [video-game] machine.) Unknown males talking in store.

"`Roshell: ... I/A ... I was thinking about this all last night I was like, I was just thinking. I don't know. I just thought like my nephew, he got shot at the Gallant Men, right `sic,' the dude that he, they was shooting each other for a fifth of ... I/A ... but he killed the dude, but that still bother Greg. Even though it was self-defense. Like you see, I can imagine how you feel. You know ... I/A. one hundred dollars?

"`Smith: One hundred dollars ... I/A... her brother was the police.

"`Roshell: So what's the thing, how did you find out her brother was the police?

"`Smith: `Cause when I got in her car, I looked at the pictures, she had her brother sitting right there. It said Johnson, his name was Officer Johnson and her name was Sharma Johnson, she got pictures right there.

"`Roshell: You remember her name and shit?

"`Smith: Yeah, I remember her whole name.

"`Roshell: How'd you kill her? Did you beat her to death or what?

"`Smith: All I did, all I did was, uh, I took her to the cemetery.

"`Roshell: And then you killed her in the cemetery?

"`Smith: I killed her in the cemetery right in Zion City. It's probably about 12 blocks, nawh, about 14 blocks from my house.

"`Roshell: From your house?

"`Smith: Yeah, about 14, about 15, 16 blocks from my house ... I/A ... (road noise).

"`Roshell: I don't know where you stay, so.

"`Smith: Yeah, anyway it's a good ways from my house, ... I/A ... (road noise).

"`Roshell: What you say, did she know you were going to kill her?

"`Smith: She didn't know. She just said here you can take the car. I was acting like this here. I was thinking don't shoot, don't do it. Her

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