Smith v. State

• Decision Date: 08 March 1996
• Docket Number: CR-91-1733
• Citation: 698 So.2d 189
• Parties: James Wyman SMITH v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 189

698 So.2d 189

James Wyman SMITH v. STATE.

CR-91-1733.

Court of Criminal Appeals of Alabama.

March 8, 1996.

Rehearing Denied July 3, 1996.

J. Michael Williams, Auburn; Thomas E. Jones, Auburn, for Appellant.

Jeff Sessions, Atty. Gen., and David Bjurberg, Asst. Atty. Gen., for Appellee.

PATTERSON, Judge.

The appellant, James Wyman Smith, was indicted in 1986 by the Lee County grand jury, for the capital offense of murder committed during a kidnapping in the first degree, or an attempt thereof. See § 13A-5-40(a)(1), Code of Alabama 1975. The indictment reads, in pertinent part, as follows:

"The grand jury ... charged that ... James Wyman Smith ... did intentionally cause the death of Linda Darlene Talbert by strangling her with an article or articles of clothing, and James Wyman Smith caused said death during James Wyman Smith's abduction of or attempt to abduct Linda Darlene Talbert with intent to inflict physical injury upon her or to violate her sexually in violation of Section 13A-5-40(a)(1) of the Code of Alabama."

At arraignment, the appellant pleaded not guilty and not guilty by reason of mental disease or defect. The plea of not guilty by reason of mental disease or defect was withdrawn by the appellant before the case was submitted to the jury. On June 24, 1992, the jury found him guilty of the capital offense charged in the indictment. A sentencing hearing was held before the jury, in accordance with §§ 13A-5-45 and -46, and the jury recommended by a vote of 11 to 1 that the sentence should be death. ¹ Thereafter, the trial court held another sentencing hearing in accordance with §§ 13A-5-47 through -52, and, after weighing the aggravating and mitigating circumstances and considering the jury's recommendation and considering the presentence report, sentenced the appellant to death. ² The appellant appeals his conviction and sentence, raising 14 issues. We will address those issues in the order that they appear in the appellant's brief. ³ We have searched the record for plain error as required by Ala.R.App.P. 45A. ⁴

The state's evidence showed that on the morning of August 31, 1984, Linda Darlene Talbert, hereinafter referred to as "the victim," was abducted at gunpoint by the appellant from her place of employment, Flowers Bait and Tackle Shop, a convenience store in the Smiths Station community of Lee County. Her nude body was discovered three days later in a field several miles from the store. She had been strangled with her brassiere and pantyhose.

On December 4, 1984, the appellant, in an unrelated matter, became involved in a high speed automobile chase with the police. During the chase, he wrecked his automobile, abandoned it, and fled on foot. The appellant became a suspect in the abduction and murder of the victim when the police discovered that the tread on the tires of the appellant's automobile was similar to the peculiar tread marks left by the kidnapper's vehicle at the place where the victim's body was found. Subsequent investigation disclosed that numerous fibers and hair found on the body and clothing of the victim were similar or identical to those found in the appellant's automobile. In addition, Marion S. Enfinger, a cellmate of the appellant's in the county jail, testified that the appellant had described to him in some detail how he had abducted and killed the victim. For a more detailed recitation of the facts of this case, see Smith v. State, 581 So.2d at 500-02.

The appellant's defense consisted of calling several witnesses in an effort to discredit or to cast doubt upon the testimony of the state's witnesses and upon the state's evidence pertaining to the tread marks, fibers, and hair. He also presented several witnesses in an attempt to establish that it would have been impossible, for him on the date the crime was committed, to have been able to leave his place of employment in Columbus, Georgia, at the time reflected in his employer's time sheets, visit relatives in Columbus, travel to his house on his motorcycle, get his automobile, and drive to the convenience store in Smiths Station in time to commit the crime. The appellant did not testify at either the guilt phase or the sentencing phase of the trial.

I.

The appellant raises several issues in paragraph I of his brief. He first contends that the trial court committed reversible error because it abused its discretion in prohibiting him from properly propounding reverse-Witherspoon ⁵ questions to the prospective venirepersons, i.e., questions inquiring into their "pro-death-penalty biases." In support of his contention, the appellant relies principally on Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), and Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). While Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), dealt with venirepersons who were opposed to the death penalty, the instant case deals with the reverse situation; however, similar principles apply. Kuenzel v. State, 577 So.2d 474 (Ala.Cr.App.1990), aff'd, 577 So.2d 531 (Ala.1991), cert. denied, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991).

The United States Supreme Court in Morgan v. Illinois held that veniremembers who would automatically vote for the death penalty for every eligible defendant must be excluded for cause. The Court reasoned that any prospective juror automatically voting for death would fail to consider the evidence of aggravating and mitigating circumstances, thus violating the impartiality requirements of the Due Process Clause of the Fourteenth Amendment. The Court held that a capital defendant may challenge for cause any prospective juror who would automatically vote to impose death if the defendant was convicted of a capital offense; that on voir dire, the trial court is required, at the defendant's request, to inquire into the prospective jurors' views on capital punishment to identify unqualified jurors; and that jurors who are unalterably in favor of the death penalty in every case are unable to follow the law, and should therefore be disqualified. The Court warned that even if one such juror was empaneled and the death sentence imposed, the state would not be entitled to execute the sentence. Upon proper request, the veniremembers in a capital case should be questioned as to whether any veniremember has a fixed opinion in favor of capital punishment. Bracewell v. State, 506 So.2d 354 (Ala.Cr.App.1986). "[T]he better practice is that where the death penalty is a possibility, the trial judge should examine the prospective jurors to ascertain whether any of them would clearly vote either for or against the death penalty regardless of the evidence." Kuenzel v. State, 577 So.2d at 485.

In this case, the trial court, in accordance with Ala.R.Cr.P. 18.4 and §§ 12-16-150 and -152, Code of Alabama 1975, initially administered the oath to the venire, had each venireperson identify him or herself, and addressed general voir dire qualification questions to the venire as a whole. It asked the question, "Do you have a fixed opinion against punishment which would include death or imprisonment in the penitentiary?" Seven venirepersons indicated that they did, and the court and the parties questioned them separately about their opinions. Of these, four were excused on challenges by the state for fixed opinions against the death penalty; one was challenged by the state, but that challenge was denied, and two were excused for reasons other than their opinions on the death penalty or imprisonment. The trial court then divided the venire into 5 panels of 14 members each, and permitted counsel to conduct further voir dire examination. The trial court, in the interest of time, instructed the parties to direct general background-type questions to the panels as a whole and to confine separate individual voir dire questions to the type of questions that might elicit embarrassing information, confidential information, or answers that might tend to prejudice the venire. The court stated to the parties, "I'll give you the opportunity to examine each juror individually to whatever extent you wish, within reason." The voir dire examination, consisting mostly of questions asked by the defense, extended over a period of approximately three eight-hour days, and comprise over 1400 pages of the record.

When the prosecutor directed a Witherspoon question to the venire, three more venirepersons indicated that they had reservations about recommending the death penalty. They were questioned separately by the parties. One stated that he could never vote for capital punishment under any circumstance. He was excused on challenge by the state. One was not challenged, but was later removed in a peremptory strike by the state. One was challenged by the appellant on grounds other than his opposition to capital punishment, and the challenge was granted.

We have carefully reviewed the record of the voir dire examination in this case, and we find no merit in the appellant's allegation that the trial court abused its discretion by prohibiting him from properly propounding reverse-Witherspoon questions. The record shows that such questions were propounded by the appellant to nearly all of the prospective veniremembers, and as to those who were not asked such questions, the appellant obviously made a conscious decision at the time not to do so. It is true that the trial court on several occasions during the voir dire examination interceded and propounded reverse-Witherspoon questions to the venire when it concluded that the questions asked by the appellant were confusing and misleading. The trial court was merely responding to what it felt was a need to clarify and explain the questions. Many of the questions propounded by the appellant merely sought to disclose the veniremember's superficial views and opinions rather than to develop whether particular veniremembers entertained...