Smith v. State

• Decision Date: 13 February 2009
• Docket Number: CR–05–0561.
• Citation: 71 So.3d 12
• Parties: Joseph Clifton SMITHv.STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

71 So.3d 12

Joseph Clifton SMITH

v.STATE of Alabama.

CR–05–0561.

Court of Criminal Appeals of Alabama.

Sept. 26, 2008.Rehearing Denied Feb. 13, 2009.Certiorari Quashed April 15, 2011

Alabama Supreme Court 1080589.

Domingo Soto, Mobile (withdrew 11/16/2006); and Chad W. Bryan, Montgomery, for appellant.Troy King, atty. gen., and Pamela Lynn Casey and Corey L. Maze, asst. attys. gen., for appellee.WISE, Judge.

The appellant, Joseph Clifton Smith, appeals the summary dismissal of his petition for postconviction relief filed pursuant to Rule 32, Ala.R.Crim.P. In 1998, 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, and the circuit court sentenced Smith to death. Smith's conviction and his sentence of death were affirmed on direct appeal. Smith v. State, 795 So.2d 788 (Ala.Crim.App.2000), cert. denied, 795 So.2d 842 (Ala.), cert. denied, 534 U.S. 872, 122 S.Ct. 166, 151 L.Ed.2d 113 (2001). We issued the certificate of judgment on March 16, 2001.

In September 2002, Smith filed a Rule 32 petition. The circuit court summarily dismissed the petition after finding that it was untimely filed. ¹ We affirmed the circuit court's dismissal without an opinion. Smith v. State, 897 So.2d 1246 (Ala.Crim.App.2003) (table). On certiorari review the Alabama Supreme Court reversed this Court's judgment and held that Smith's postconviction petition was timely filed. See Ex parte Smith, 891 So.2d 286 (Ala.2004). The case was remanded to the circuit court and Smith was allowed to amend his petition.

On remand, Smith filed amended petitions in June 2004 and again in January 2005. In March 2005, the circuit court granted the State's motion to dismiss. Smith filed a notice of appeal. We dismissed the appeal after finding that the notice of appeal was not timely filed. Smith v. State, 926 So.2d 1095 (Ala.Crim.App.2005) (table). Smith then filed a second Rule 32 petition seeking an out-of-time appeal from the denial of his first Rule 32 petition. That Rule 32 petition was granted, and this appeal is an out-of-time appeal from the denial of Smith's first Rule 32 petition.

We stated the following facts surrounding the murder in our opinion on direct appeal:

“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.

“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. 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.”

Smith, 795 So.2d at 796–97.

Standard of Review

This is an appeal from the denial of a postconviction petition—a proceeding initiated by Smith. Rule 32.3, Ala.R.Crim.P., states, in part: “The petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitled the petitioner to relief.”

In the direct-appeal proceedings we reviewed Smith's capital-murder trial and sentencing proceedings for plain error. See Rule 45A, Ala.R.App.P. However, the plain-error standard of review does not apply to the review of postconviction proceedings challenging a death sentence. See Ex parte Dobyne, 805 So.2d 763 (Ala.2001). We review the denial of a postconviction petition under an abuse-of-discretion standard. See Elliott v. State, 601 So.2d 1118 (Ala.Crim.App.1992). “Abuse of discretion” has been defined as: “An appellate court's standard for reviewing a decision that is asserted to be grossly unsound, unreasonable, illegal, or unsupported by the evidence.” Black's Law Dictionary 11 (8th ed. 2004).

Also, the procedural bars contained in Rule 32 apply to all cases, even those challenging a capital-murder conviction and death sentence. See Hunt v. State, 940 So.2d 1041 (Ala.Crim.App.2005); Hooks v. State, 822 So.2d 476 (Ala.Crim.App.2000); State v. Tarver, 629 So.2d 14 (Ala.Crim.App.1993).

I.

Smith first argues that the circuit court erred in summarily dismissing his claim that he is mentally retarded. He asserts that he is mentally retarded and that his sentence of death violates the United States Supreme Court's holding in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Smith further contends that he is entitled to an evidentiary hearing on this issue because, he says, the circuit court erroneously relied on evidence presented at his trial concerning his IQ score. Smith asserts that a clinical psychologist testified at his sentencing hearing that Smith's IQ placed him in the bottom 2% of all adults and that the “margin of error” in IQ testing would place his IQ below 70.

The State argues that Smith failed to plead sufficient facts showing that his mental functioning was consistent with the definition of mental retardation adopted by the Alabama Supreme Court in Ex parte Perkins, 851 So.2d 453, 456 (Ala.2002). Specifically, it asserts that Smith failed to plead any facts to show that he suffered from “subaverage intellectual functioning” or “deficit adaptive functioning.” Neither, it asserts, did Smith “plead any facts showing his IQ was 70 or less.” Indeed, it contends that Smith did not even plead his IQ score in his second amended petition.

In Atkins v. Virginia, the United States Supreme Court held that it was cruel and unusual punishment in violation of the Eighth Amendment to execute a mentally retarded individual.² However, the Supreme Court left it to the individual states to define mental retardation. Though Alabama has yet to enact legislation addressing this issue, the Alabama Supreme Court in Perkins held that a defendant is mentally retarded if he or she: (1) has significantly subaverage intellectual functioning (an IQ of 70 or below); (2) has significant defects in adaptive behavior; and (3) these two deficiencies manifested...