Smith v. State

• Decision Date: 26 May 2000
• Citation: 795 So.2d 788
• Parties: Joseph Clifton SMITH v. STATE.
• Court: Alabama Court of Criminal Appeals

795 So.2d 788

Joseph Clifton SMITH v.STATE.

CR-98-0206.

Court of Criminal Appeals of Alabama.

May 26, 2000.

Rehearing Denied August 25, 2000.

Glenn L. Davidson, Mobile, for appellant.

Bill Pryor, atty. gen.; and J. Clayton Crenshaw and Thomas F. Parker IV, asst. attys. gen., for appellee.

PER CURIAM.

The appellant, Joseph ("Jody")Clifton Smith, was convicted of murdering Durk Van Dam during the course of a robbery, an offense defined as capital by § 13A-5-40(a)(2),Ala.Code 1975.The jury, by a vote of 11 to 1, recommended that Smith be sentenced to death.The trial court accepted the jury's recommendation and sentenced Smith to die in Alabama's electric chair at a date to be set by the Alabama Supreme Court.

The State's evidence tended to show the following.On November 25, 1997, police discovered the badly beaten body of Durk Van Dam in his mud-bound Ford Ranger truck in a wooded area near Shipyard Road in Mobile County.Dr. Julia Goodin, a forensic pathologist for the Alabama Department of Forensic Sciences, testified that Van Dam died as a result of 35 different blunt-force injuries to his body.Van Dam had marks consistent with marks made by a saw on his neck, shoulder, and back; he also had a large hemorrhage beneath his scalp, brain swelling, multiple rib fractures, a collapsed lung, multiple abrasions to his head and knees, and defensive wounds on his hands.Dr. Goodin testified that the multiple rib fractures that caused one lung to collapse were probably the most immediate cause of death.

Smith gave two statements to the police.In the first statement he denied any involvement in the robbery-murder but said that he was with Larry Reid when Reid beat and robbed Van Dam.Smith denied taking anything from the victim.When police were questioning Reid, Smith repeatedly knocked on the interrogation room door and requested to talk to the officer who had taken his first statement.In his second statement Smith admitted that he and Reid had planned to rob Van Dam because they had been told that Van Dam was carrying $1,500 in cash.Smith said that he, Reid, and Van Dam left the Highway Host motel in Van Dam's red truck on November 23, 1997.Van Dam was driving.Reid directed Van Dam, who had been drinking, to an isolated location.Once there, Reid began hitting Van Dam.He said that when Reid kicked Van Dam in the face he thought Van Dam was dead.Smith said that Van Dam then got up and Smith hit him on the head with his fist, kicked him in the ribs several times, threw a handsaw at him, and may have hit him with a hammer but he wasn't entirely sure because he suffers from blackouts.Reid then got a power saw from the back of Van Dam's truck, Smith said, and ran the saw against Van Dam's neck.Smith held Van Dam down while Reid took the money from his pockets.Smith and Reid then attempted to move the truck, because they had planned to steal it, but it got stuck in the mud.Smith also admitted that he took the victim's boots, because his shoes were wet, and that he took the victim's tools.The two discussed where to take Van Dam's body and Smith suggested that they take it to a nearby lake.However, they left the body, Smith said, under a mattress near Van Dam's truck.Smith said that when they divided the money he got only $40 and Reid kept the rest, approximately $100.Smith also told police that he had just been released from custody on Friday—two days before the robbery-murder on Sunday.¹

Russell Harmon testified that on November 23, 1997, he went to the Highway Host motel and saw Reid and Smith.He said that Smith told him that they were going to rob Van Dam and asked if he wanted to join them.Harmon declined and left the motel.Later that day he went back to the motel to see if the two had been successful with their plans.He said that Smith told him that he had beaten the victim on the head and that he had cut him with a saw.On cross-examination he admitted that he could not swear that Smith was the one who said he had cut Van Dam in the back but that it could have been Reid who made this statement.However, on cross-examination Harmon reiterated that Smith told him that he"hit the man, beat the man—hit the man in the head and cut him."(R. 340.)Harmon testified that Smith asked him to go with him to get the tools from where he had left them in the woods.He said that he went with Smith and that they got the tools and took them to a pawnshop—Smith received $200 for the tools.Harmon testified that he was currently in the county jail because his probation had been revoked.

M.A.² testified that she was living at Highway Host motel with her mother and sister at the time of Van Dam's murder.She said that her sister, M., was dating Smith.M.A. testified that on November 23, 1997, she saw Smith, Reid, and Van Dam drive away from the motel in a red truck.She said that when Smith and Reid returned sometime later they were in a black car, Van Dam was not with them, and Smith had blood on his clothes.M.A. testified that Smith told her that he had hit, cut, and stabbed Van Dam in the back.

Patty Milbeck testified that she saw Smith, Reid, and Van Dam on the day of the robbery-murder.When they returned, she said, Van Dam was not with them and Smith appeared nervous.Smith told her that Van Dam had become angry and left.Milbeck stated that at the time of her trial testimony she was in jail because she failed to report to her probation officer.

Joey Warner, an employee of 24-Hour Pawn pawnshop, testified that on November 23, 1997, Smith pawned several tools including saws, drills, and a router.He was given $200 and he showed his Alabama Department of Corrections identification card as identification to pawn the tools.(Supp. R. 92.)

Standard of Review

Because Smith has been sentenced to death, this Court must review each issue raised in Smith's brief, even if the issue was not first presented to the trial court.This Court must also review the record to determine if there is any "plain error" i.e., error that has adversely affected the substantial rights of the appellant, seeRule 45A, Ala.R.App.P., even though the issue was not raised in Smith's appellate brief to this Court.

"The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal.As the United States Supreme Court stated in United States v. Young,470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1(1985), the plain-error doctrine applies only if the error is `particularly egregious' and if it `seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'SeeEx parte Price,725 So.2d 1063(Ala.1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d 1012(1999);Burgess v. State,723 So.2d 742(Ala.Cr.App.1997), aff'd, 723 So.2d 770(Ala.1998), cert. denied, 526 U.S. 1052, 119 S.Ct. 1360, 143 L.Ed.2d 521(1999);Johnson v. State,620 So.2d 679, 701(Ala.Cr.App.1992), rev'd on other grounds, 620 So.2d 709(Ala.1993), on remand, 620 So.2d 714(Ala.Cr.App.), cert. denied, 510 U.S. 905, 114 S.Ct. 285, 126 L.Ed.2d 235(1993)."

Hall v. State, [Ms. CR-94-0661, October 18, 1999] ___ So.2d ___, ___(Ala.Cr.App.1999).

Guilt-Phase Issues

I.

Smith argues that "the trial court violated Mr. Smith's rights to a capital trial free from arbitrariness when it randomly removed a juror from the venire."(Appellant's brief to this Court, p. 89.)The following occurred after the trial court granted strikes for cause:

"The Court: Okay.So that means we have lost one, two, three, four, five, six, seven, eight, nine.That means we've got 39.All right.Lesley [court reporter], give me any number between 1 and 48."

"The Court Reporter: Thirty-five.

"The Court: Ma'am?

"The Court Reporter: Thirty-five.

"The Court: All right.Thirty-five.Gentlemen, strike 35.All right.All right.That leaves 38."

(R. 111.)

Initially, we observe that no objection was made to the court's using the court reporter to strike one juror so that the State and the defense would have an even number of strikes.Our review, therefore, is limited to determining whether plain error occurred.Rule 45A, Ala.R.App.P.

Section 12-16-100(a),Ala.Code 1975, addresses the drawing, selection, and empaneling of juries in criminal cases and states in part:

"In every criminal case the jury shall be drawn, selected and empaneled as follows: Upon the trial by jury in the circuit courts of any person charged with a felony, including a capital felony, a misdemeanor, or violation, the court shall require a strike list or lists to be compiled from the names appearing on the master strike list as established in Section 12-16-74.In compiling the list or lists, names of qualified jurors may be omitted on a nonselective basis. ..."

(Emphasis added.)This same provision is also contained in Rule 18.4(a), Ala. R.Crim.P.

Clearly, the trial court was authorized by law to remove this prospective juror.There is no argument that this prospective juror was not removed on a "nonselective basis," indeed, Smith's argument states that this prospective juror was "randomly struck."No error, much less plain error, occurred here.

II.

Smith argues that he was denied an impartial and unbiased jury because the trial court denied his request for individual sequestered voir dire examination.The following occurred at a pretrial hearing regarding Smith's motion for individual voir dire:

"Mr. Hughes [defense counsel]: Judge, I don't have anything other than what was stated in the motion, as far as that goes.

"The Court: It's my understanding, based on my review of the Alabama law, that there's no requirement to individual voir dire in a capital case.

"Mr. Hughes: I think you're correct, Judge.

"The Court: And so the lawyers will know exactly what I intend to do, we will qualify our panel generally, meaning the panel in its entirety.Those who express

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