Smith v. State

• Decision Date: 15 March 1991
• Docket Number: CR-90-161
• Citation: 581 So.2d 1283
• Parties: Jerome SMITH v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1283

581 So.2d 1283

Jerome SMITH v. STATE.

CR-90-161.

Court of Criminal Appeals of Alabama.

March 15, 1991.

Jerome Smith, pro se.

Don Siegelman, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant was convicted of capital murder and was sentenced to life imprisonment without parole. His conviction was affirmed by this Court. Smith v. State, 531 So.2d 1245 (Ala.Cr.App.1987). Thereafter, the appellant filed the instant petition for relief under Rule 20, A.R.Cr.P., arguing as grounds the following: (1) the facially race-neutral reasons offered for the prosecution's peremptory strikes were insufficient to disprove discrimination; (2) an in-court identification of the appellant was tainted by unfairly suggestive line-up procedures; (3) the appellant's counsel was ineffective at trial for failing to challenge the prosecution's reasons for its peremptory strikes; and (4) the appellant's counsel was ineffective on appeal for failing to raise the issue of the tainted in-court identification.

The record contains no evidence of an answer or response by the State prior to the trial court's summarily overruling and dismissing the appellant's petition. As grounds for the dismissal, the trial court found that the first and third issues of the petition had previously been addressed by both the trial court and the Court of Criminal Appeals, that the second issue had previously been considered at trial and did not need to be ruled on again concerning an additional issue, and that the fourth issue was not a matter for the consideration of the trial court.

We do not address the merits of the appellant's petition, because this cause must be remanded for further action by the trial court. When the State does not respond to a petitioner's allegations, the unrefuted statement of facts must be taken as true. Chaverst v. State, 517 So.2d 643, 644 (Ala.Cr.App.1987). Further, when a petition contains matters which, if true, would entitle the petition to relief, an evidentiary hearing must be held. Ex parte Boatwright, 471 So.2d 1257, 1258 (Ala.1985). A petitioner is entitled to notice as to any grounds of preclusion, so as to enable him to formulate a response. Ex parte Rice, 565 So.2d 606, 608 (Ala.1990). Thus, because of the State's failure to respond, the appellant was never given the requisite notice, and the cause must be remanded. Upon remand, the trial court should require the district attorney's office to address the issues in the appellant's petition and to come forward with specific pleadings as to any grounds of preclusion. The trial court is authorized to conduct an evidentiary hearing and to take further action as necessary to comply with the order of this Court. The findings of the trial court shall be returned to this Court within 90 days.

REMANDED WITH INSTRUCTIONS.

All the Judges concur, except Bowen, J., who dissents in part and concurs in part with opinion.

BOWEN, Judge, dissenting in part, concurring in part.

The majority sets aside the judgment of the circuit court denying the appellant's petition for post-conviction relief and remands this cause so that the district attorney may be required to file a response as to each of the four grounds raised by the petitioner-appellant. In my opinion, this is improper and constitutes a mistaken application of Ex parte Rice, 565 So.2d 606 (Ala.1990). Grounds # 1, # 2, and # 3 of the petition were properly denied. This cause should be remanded only in regard to ground # 4.

The petition contains four grounds: 1) The prosecution did not give race-neutral reasons for the exercise of its peremptory strikes against black veniremembers. 2) The in-court identification of the petitioner was tainted by "excessively suggestive" pretrial identification procedures. 3) On the remand of this case by the Alabama Court of Criminal Appeals, trial counsel was ineffective because he "failed to offer any evidence or argument that the reasons given by the prosecution for his use of peremptory challenges against black jurors was not sufficient." 4) Petitioner's appellate counsel was guilty of "inadequate preparation and unwise choices of strategy" and was ineffective by not raising the issue of the improper identification procedures.

In denying the petition, the circuit court entered the following order:

"The Petitioner in this case was indicted and tried for the offense of Capital Murder and the jury returned a verdict finding the Petitioner guilty of Capital Murder on September 26, 1985.

"At the punishment phase of the proceedings the jury recommended to the Court the punishment of life imprisonment without provision for parole. On November 8, 1985 at the punishment phase of the proceeding, the Court sustained the jury's recommendation and imposed life imprisonment without provision for parole. The Defendant subsequently gave oral notice of appeal and the case was appealed to the Court of Criminal Appeals. Subsequent to the Supreme Court of the United States ruling in the case of Batson v. Kentucky the matter was remanded back to the trial court for determination as to whether the prosecution had exercised its peremptory challenges in a racially discriminatory manner. On remand the trial court held a hearing and determined, that in fact, the prosecution had not used their challenges in a racially discriminatory manner and resubmitted the matter in transcript to the Court of Criminal Appeals.

"On August 23, 1988, the Alabama Court of Criminal Appeals sustained the conviction with an affirmance specifically referring to the remandment order and specifically affirmed the trial court in its ruling concerning the Batson challenge.

"The Petitioner has again raised this issue in his Rule 20 Petition and as this matter has previously been addressed by the trial court and the Court of Criminal Appeals, the Petitioner is denied relief under aspect # 1 of his Petition.

"Aspect # 2 in the Petitioner's Rule 20 Motion is a matter that was ruled on by the trial court at trial and as the court has previously ruled on this particular issue, it need not rule again concerning an additional issue, therefore, Petition for relief is denied in aspect # 2 of the Petitioner's Rule 20 Petition.

"Aspect # 3 of the Rule 20 Petition is the same as # 1 and this has already been ruled on by the trial court and affirmed by the Court of Criminal Appeals, therefore, aspect # 3 of the Petition is hereby denied.

"The last aspect of the Petitioner's Rule 20 Petition alleges that the Defense attorney was ineffective in representing him on appeal. As this matter is not consideration for this court, the court will deny relief under this aspect as relief could only be granted by the Appellant Courts of this state. For these reasons, as previously stated, the relief prayed for under the Rule 20 Petition heretofore filed by the Petitioner is hereby overruled and denied."

The circuit court properly denied ground # 1 of the petition. In Smith v. State, 531 So.2d 1245, 1248 (Ala.Cr.App.1987), this Court held: "After applying the principles of Batson [v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d...