Smith v. State

• Decision Date: 17 December 2010
• Docket Number: CR–07–1412.
• Citation: 160 So.3d 40
• Parties: Kenneth Eugene SMITH v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

160 So.3d 40

Kenneth Eugene SMITH

v.STATE of Alabama.

CR–07–1412.

Court of Criminal Appeals of Alabama.

Dec. 17, 2010.

Opinion on Return to Remand Feb. 10, 2012.

Andrew B. Johnson and Richard H. Monk III, Birmingham; and Robert Grass and Peter Samburg, New York, New York, for appellant.

Troy King and Luther Strange, attys. gen., and Joshua Bearden (withdrew 8/10/10), J. Clayton Crenshaw, Kevin W. Blackburn (withdrew 3/9/11), and Tina Coker Hammonds, asst. attys. gen., for appellee.

WELCH, Judge.

Kenneth Eugene Smith appeals from the circuit court's summary denial of his petition, filed pursuant to Rule 32, Ala. R.Crim. P., for relief following his conviction and death sentence for the capital murder of Elizabeth Dorlene Sennett. We reverse and remand for further proceedings.

Smith was indicted by a Colbert County grand jury on April 7, 1988, on a charge of murder made capital because it was done for pecuniary or other consideration or was pursuant to a contract for hire. § 13A–5–40(a)(7), Ala.Code 1975. The case was transferred to Jefferson County, and the case was tried before a jury. On November 3, 1989, Smith was convicted of capital murder. The jury recommended that the death sentence be imposed, and the trial court imposed the death sentence. Smith's conviction was reversed on appeal because of a violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Smith v. State, 588 So.2d 561 (Ala.Crim.App.1991), on return to remand, 620 So.2d 727 (Ala.Crim.App.), on return to second remand, 620 So.2d 732 (Ala.Crim.App.1992). Smith was retried in April 1996, and he was again convicted of capital murder. By a vote of 11 to 1, the jury recommended that Smith be sentenced to life imprisonment without the possibility of parole. The trial court overrode the jury's recommendation and sentenced Smith to death. Smith's conviction and sentence were affirmed. Smith v. State, 908 So.2d 273 (Ala.Crim.App.2000). The Alabama Supreme Court granted certiorari review, and then quashed the writ of certiorari as having been improvidently granted. Ex parte Smith, 908 So.2d 302 (Ala.2005). Review was denied by the United States Supreme Court. Smith v. Alabama, 546 U.S. 928, 126 S.Ct. 148, 163 L.Ed.2d 277 (2005).

On March 16, 2006, Smith filed a petition pursuant to Rule 32, Ala. R.Crim. P. The State filed an answer to the petition on July 21, 2006. Smith sought from the trial court, and was granted, leave to file an amended petition. On June 1, 2007, Smith filed an amended petition, a portion of which was filed under seal, upon Smith's request and after the circuit court granted Smith's motion for leave to file a portion of the petition under seal.¹ The parties subsequently submitted to the circuit court a joint consent order setting a schedule for the filing of additional pleadings and for an evidentiary hearing that, the parties stated, they anticipated would be held in early 2008. The circuit court signed the consent order on September 17, 2007. On October 1, 2007, the State filed a motion for partial dismissal, seeking summary disposition of many of the claims raised in the amended petition. The motion for partial dismissal did not seek dismissal of, or otherwise mention, a majority of the claims of ineffective assistance of counsel presented by Smith in the amended petition. Smith filed a motion for discovery, and the State filed a response to that motion in which it acknowledged that Smith was entitled to discovery of many of the documents he had requested. On November 16, 2007, Smith filed a pleading opposing the State's motion for partial dismissal.

On March 11, 2008, the circuit court entered an extensive order summarily denying Smith's petition for postconviction relief. The circuit court also entered an order denying Smith's motion for discovery. Smith filed a motion to reconsider, alter, amend, or vacate both orders. The court entered a written order addressing the arguments raised by Smith in the motion, and it denied the motion. This appeal follows.

On direct appeal from Smith's second conviction and death sentence this Court summarized the evidence from trial:

“The State's evidence tended to show the following. On March 18, 1988, the Reverend Charles Sennett, a minister in the Church of Christ, discovered the body of his wife, Elizabeth Dorlene Sennett, in their home on Coon Dog Cemetery Road in Colbert County. The coroner testified that Elizabeth Sennett had been stabbed eight times in the chest and once on each side of the neck, and had suffered numerous abrasions and cuts. It was the coroner's opinion that Sennett died of multiple stab wounds

to the chest and neck.

“The evidence established that Charles Sennett had recruited Billy Gray Williams, who in turn recruited Smith and John Forrest Parker, to kill his wife. He was to pay them each $1,000 in cash for killing Mrs. Sennett.

There was testimony that Charles Sennett was involved in an affair, that he had incurred substantial debts, that he had taken out a large insurance policy on his wife, and that approximately one week after the murder, when the murder investigation started to focus on him as a suspect, Sennett committed suicide. Smith detailed the following in his confession to police:

“ ‘About one month prior to March 18, 1988, I was contacted by Billy Williams. Billy came over to my house and we talked out on the front porch. It was late afternoon. Billy said that he knew someone that wanted somebody hurt. Billy said that the person wanted to pay to have it done. Billy said the person would pay $1500 to do the job. I think I told Billy I would think about it and get back with him. Billy lives at the corner of Tuscaloosa Street and Cypress Street near the telephone company. Billy drives a red and white Thunderbird. Billy and I are good friends. Billy and I talked about this several times before I agreed to do it. I had already talked with John Parker about helping me.

“ ‘I think I first met Charles Sennett about two weeks prior to the murder. Billy arranged the meeting. At the time I met Mr. Sennett I did not know who he was. I did not ask his name and he did not ask what my name was. Mr. Sennett told me that he wanted somebody taken care of. Mr. Sennett said that the person would be at home, that they never had any visitors. Mr. Sennett said that the house was out in the country. At that time I just listened to his proposal and told him I would get back with him. When we talked we sat in Mr. Sennett's truck in front of Billy's apartment. I gave him my phone number.

“ ‘Mr. Sennett called me a couple of times to see if I had made a decision. Sometime between the Monday prior to the murder and the Thursday prior to the murder, Mr. Sennett learned that John and I would do what he wanted. I met with Mr. Sennett on Tuesday prior to the murder in the coffee [house] at ECM. At this meeting Mr. Sennett drew me a diagram of his house and told me that his wife and he would be out of town on Wednesday, to go down to the house and look around. By the time Sennett and I met at ECM I had learned through conversations with him that it was his wife that he wanted killed and the price agreed was $1,000 each—excuse me—$1,000 each for Billy Williams, John Parker and I.

“ ‘The next meeting was on Thursday prior to the murder in front of Billy's apartment again. Billy, Mr. Sennett and I sat in Mr. Sennett's silver car and talked. I don't recall what time it was exactly. I think it was in the morning. At this meeting Sennett gave me $200 and showed us the rest of the money. Two hundred dollars was for anything we needed to do the job. John Parker sat in my car while Billy and I talked with Mr. Sennett. The murder was supposed to look like a burglary that went bad. This was Mr. Sennett's idea. Sennett told me to take whatever I wanted from the house. It was agreed for John and I to do the murder and then come back to Billy's apartment—to Billy's house—excuse me—and get the rest of our money. This meeting only lasted a short while. Sennett told us that he would be gone from 8:30 until noon. Then on 3/18 of '88 ... Friday, John and I got together around 8:30. We were in John's car, a Pontiac Grand Prix, gold. John drove to Muscle Shoals, then I drove down to the Sennett house. John had brought a black handle survival knife and a black holster. At this time we still did not know how we were going to kill Mrs. Sennett.

“ ‘John and I got to the Sennett house around 9:30, I think. I parked at the back of the house near a little patio that led into the house. I went to a door to the left of the car. I think there was a white freezer nearby. I knocked on the door and Mrs. Sennett came to the door. I told Mrs. Sennett that her husband had told us that we could come down and look around the property to see about hunting on it. Mrs. Sennett asked my name. I told her I was Kenny Smith. She went to the phone and called her husband and came back and told us it was okay to look around.

“ ‘John and I looked around the property for a while then came back to the house. John and I went back to the door. We told Mrs. Sennett we needed to use the bathroom and she let us inside.

“ ‘I went to the bathroom nearest the kitchen and then John went to the bathroom. I stood at the edge of the kitchen talking with Mrs. Sennett. Mrs. Sennett was sitting at a chair in the den. Then I heard John coming through the house. John walked up behind Mrs. Sennett and started hitting her. John was hitting her with his fist. I started getting the VCR while John was beating Mrs. Sennett. John hit Mrs. Sennett with a large cane and anything else he could get his hands on. John went into a frenzy. Mrs. Sennett was yelling just stop, we could have anything we wanted.

“ ‘As John was beating up Mrs. Sennett, I messed up some things in the house to make it look like a burglary. I took the VCR out to the car.

“ ‘The last place I saw Mrs. Sennett she was lying near the fireplace covered with some kind of blanket. I had gone

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