Facts
and Procedural History
In
1998, Smith was convicted of capital murder for killing
Willie ("Flint") Flournoy, Theresa Helms, and David
Bennett by one act or pursuant to one scheme or course of
conduct. See § 13A-5-40(a)(10), Ala. Code 1975.
Because this Court affirmed Smith's capital-murder
conviction in an opinion issued on December 22, 2000, see
Smith v. State, 213 So.3d 108 (Ala.Crim.App.2000), a
lengthy recitation of the facts underlying Smith's
conviction is unnecessary. Briefly, the State's evidence
showed that
"Smith, a drug dealer, went to Flournoy's residence
to collect $1,500, which Flournoy owed Smith for crack
cocaine. When Flournoy told Smith that he did not have the
money, Smith shot and killed him with a sawed-off .22 caliber
rifle. Smith then shot and killed Helms and Bennett, who were
also at Flournoy's residence. The jury convicted Smith of
capital murder for intentionally killing two or more people
pursuant to one act or pursuant to one scheme or course of
conduct, see § 13A-5-40(a)(10), Ala. Code 1975.
The circuit court sentenced Smith to death, and he appealed
his conviction and sentence."
Smith v. State, 213 So.3d 327, 334
(Ala.Crim.App.2016) (opinion on return to sixth remand).
Although this Court affirmed Smith's capital-murder
conviction, it
"'remanded the cause for the circuit court to
correct its sentencing order. See Smith v. State
213 So.3d 108 (Ala.Crim.App.2000). After remanding the cause
a second time for the circuit court to correct its sentencing
order, this Court affirmed Smith's death sentence.
See Smith v. State, 213 So.3d 108, 209
(Ala.Crim.App.2000) (opinion on return to second remand).
Thereafter, the Alabama Supreme Court reversed Smith's
death sentence and ordered a new penalty-phase hearing.
See Ex parte Smith, 213 So.3d 214 (Ala. 2003).
"'After a second penalty-phase hearing, the jury
recommended by a vote of 10-2 that Smith be sentenced to
death. The circuit court followed the jury's
recommendation and again sentenced Smith to death. On return
to remand, this Court "concluded that Smith is mentally
retarded and, therefore, ... ineligible for the death penalty
and directed the trial court to set aside Smith's death
sentence and to sentence him to life imprisonment without the
possibility of parole." Ex parte Smith, 213
So.3d 313, 314 (Ala. 2010) (citing Smith v. State
213 So.3d 226, 228 (Ala.Crim.App.2003) (opinion on return to
third remand)). The Alabama Supreme Court reversed this
Court's judgment and remanded the cause for the circuit
court to conduct [a hearing pursuant to Atkins v
Virginia, 536 U.S. 304 (2002),] to determine whether
Smith is mentally retarded and to make specific findings of
fact pursuant to Ex parte Perkins, 851 So.2d 453
(Ala. 2002). Smith v. State, 213 So.3d 239, 254
(Ala. 2007). After conducting the Atkins hearing
the circuit court concluded that Smith is not mentally
retarded. This Court affirmed the circuit court's
determination, and the Alabama Supreme Court granted
certiorari review.
"'On October 22, 2010, the Alabama Supreme Court
again reversed Smith's sentence of death and remanded the
cause for the circuit court to conduct a new penalty-phase
proceeding before a jury. Ex parte Smith, 213 So.3d
313, 326 (Ala. 2010). Specifically, after detailing why the
circuit court correctly determined that Smith is not mentally
retarded, the Alabama Supreme Court held that improper,
prejudicial contact between the victim's mother and the
jury venire entitled Smith to a new penalty-phase proceeding.
Id. at 320-26.'
"Smith v. State, 213 So.3d 327, 328-29
(Ala.Crim.App.2011). In accordance with the Alabama Supreme
Court's opinion in Ex parte Smith, 213 So.3d
313, 326 (Ala. 2010), this Court remanded the cause to
'the circuit court with instructions for that court to
conduct a third penalty-phase hearing.' Smith,
213 So.3d at 329.
"On January 23, 2012, the circuit court began
Smith's third penalty-phase proceeding before a jury. At
the conclusion of the [third] penalty phase, the jury, by a
vote of 12 to 0, recommended that Smith be sentenced to
death. The circuit court followed the jury's
recommendation and sentenced Smith to death. On return to
remand, this Court determined that the circuit court
erroneously allowed the jury to consider an aggravating
circumstance that did not exist at the time of Smith's
offense. Smith v. State, 213 So.3d 327, 329
(Ala.Crim.App.2011). Thus, this Court reversed Smith's
sentence of death and remanded the cause with instructions
for the circuit court to conduct a fourth penalty-phase
proceeding. Id. at 334.
"On September 8, 2014, the circuit court began
Smith's fourth penalty phase. Before beginning the
jury-selection process, the circuit court completely excluded
the public and
the press from its general qualification of the
veniremembers. ...
"....
"At the conclusion of the [fourth] penalty-phase
proceeding, the jury recommended, by a vote of 10 to 2, that
Smith be sentenced to death. The circuit court followed the
jury's recommendation and sentenced Smith to death."
Smith v. State, 213 So.3d 327, 334-36
(Ala.Crim.App.2016) (opinion on return to sixth remand).
After his fourth penalty-phase proceeding, Smith appealed his
death sentence.
In that
appeal, this Court found that "the circuit court
violated Smith's Sixth Amendment right to a public
trial." Smith, 213 So.3d at 338. Consequently,
this Court reversed Smith's death sentence and remanded
his case to the circuit court for that court to conduct a
fifth penalty-phase proceeding. Id.
Smith's
fifth penalty-phase proceeding began on November 14, 2016.
(C. 167.) At the conclusion of that proceeding, the jury
unanimously found the existence of two aggravating
circumstances --that Smith had been previously convicted of a
felony involving the use or threat of violence to the person,
namely first-degree assault, and that he knowingly created a
great risk of death to many persons. (C. 207-08.)
But only eight jurors voted to impose a death sentence on
Smith. (C. 206.) So the trial court set Smith's case for
a sixth penalty-phase proceeding. See §
13A-5-46(f) and (g), Ala. Code 1975 (providing that a
"decision of the jury to return a verdict recommending a
sentence of life imprisonment without parole must be based on
a vote of a majority of the jurors" and a decision
"to recommend a sentence of death must be based on a
vote of at least 10 jurors," and explaining that,
"if the jury is unable to reach a verdict recommending a
sentence, ... the trial court may declare a mistrial of the
sentence hearing").
Smith's
sixth penalty-phase proceeding began on May 14, 2018. At the
conclusion of that proceeding, the jury unanimously found the
existence of one aggravating circumstance -- that Smith had
been "previously convicted of a felony involving the use
or threat of violence to the person, namely Assault I"
(C. 412) -- and, by a vote of 10 to 2, recommended that the
trial court sentence Smith to death.[1] (C. 411; R. 1138-41.)
On June
5, 2018, the trial court held a judicial-sentencing hearing.
At that hearing, the trial court accepted the jury's
recommendation and sentenced Smith to death. (Sentencing
Hearing, R. 14-15.) The trial court memorialized its decision
in a written sentencing order issued on June 7, 2018. (C.
423-32.)
In its
order, the trial court detailed the history of Smith's
case; found the existence of two aggravating circumstances
(that Smith created a great risk of death to many persons and
that Smith had been previously convicted of another felony
involving the use or threat of violence to the person), the
existence of one statutory mitigating circumstance (the
capacity of the defendant to appreciate the criminality of
his conduct or to conform his conduct to the requirements of
law was substantially impaired), and the existence of the
following eight non-statutory mitigating circumstances: (1)
Smith did not resist arrest, (2) Smith was on drugs and
alcohol when this crime was committed, (3)
Smith's mother was an alcoholic when Smith was a child,
(4) Smith's mother and father and all his siblings had
criminal histories, (5) Smith was in special-education
classes all of his life and only finished the eighth grade,
(6) Smith had a history of excessive alcohol and drug abuse,
(7) Smith cannot read or write, and (8) Smith's siblings
"were dysfunctional." (C. 431-32.) The trial court
then "weighed the aggravating circumstances against the
mitigating circumstances, ... [found] that the aggravating
circumstances outweigh the mitigating circumstances" and
sentenced Smith to death. (C. 432.)
On June
28, 2018, Smith moved for a new trial. (C. 444-48.) The trial
court denied Smith's motion the next day. (C. 449.) This
appeal follows.
