Smith v. State

• Decision Date: 22 February 2013
• Docket Number: CR–08–0638.
• Citation: 122 So.3d 224
• Parties: Corey Schirod SMITH v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

122 So.3d 224

Corey Schirod SMITH

v.STATE of Alabama.

CR–08–0638.

Court of Criminal Appeals of Alabama.

Sept. 30, 2011.

Rehearing Denied Dec. 9, 2011.

Certiorari Denied Feb. 22, 2013

Alabama Supreme Court 1110366.

John M. Broaddus and Jerry Kristal, Cherry Hill, New Jersey, for appellant.

Troy King and Luther Strange, attys. gen., and Henry M. Johnson, asst. atty. gen., for appellee.

KELLUM, Judge.

The appellant, Corey Schirod Smith, currently an inmate on death row at Holman Correctional Facility, appeals the circuit court's denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P.

In 1995, Smith was convicted of capital murder for murdering Kimberly Ann Brooks during the course of a kidnapping in the first degree. See§ 13A–5–40(a)(1), Ala.Code 1975. The jury unanimously recommended that Smith be sentenced to death. The circuit court followed the jury's recommendation and sentenced Smith to death. Smith's conviction and death sentence were affirmed on direct appeal. See Smith v. State, 797 So.2d 503 (Ala.Crim.App.2000), cert. denied, 797 So.2d 549 (Ala.), cert. denied, 534 U.S. 962, 122 S.Ct. 371, 151 L.Ed.2d 282 (2001). This Court issued the certificate of judgment making Smith's direct appeal final on May 11, 2001. SeeRule 41(a), Ala. R.App. P.

In June 2002, Smith filed a timely petition for postconviction relief. ¹ He filed amended petitions in September 2002 and in July 2005. An evidentiary hearing was conducted in July 2005 at which time the State objected to the second amended petition. The circuit court struck Smith's second amended petition and Smith appealed. This Court reversed the circuit court's rulingand directed that court to consider Smith's second amended petition. Smith v. State, 961 So.2d 916 (Ala.Crim.App.2006).

In December 2007, the circuit court conducted a second evidentiary hearing and in December 2008 issued a 130–page order denying Smith's second amended petition for postconviction relief.² This appeal followed.

On Smith's direct appeal, we stated the following concerning the facts surrounding Brooks's murder:

“On February 24, 1995, Tallapoosa [County sheriff's deputies] discovered the charred body of Kimberly Brooks rolled in a carpet; the carpet was lying beside a dirt road in Bibb Town. The coroner testified that Brooks had been shot in the head and the stomach and that there was soot in her lungs and trachea; he testified that she died of the ‘shots to the head [and] the chest and possible asphyxiation and burning.’

“Smith handwrote the following confession for the police:

“ ‘Kim came to the house around 7:30 a.m. Wednesday morning with Labreasha Main. We was talking about getting married later on. My brother Reginald came and Main left. After awhile, Reginald left.

“ ‘When my mamma got off work, me and Kim got into an argument about another girl calling me. We went outside. I pulled my gun on her. Sanjay [Brooks] and Shontai [Smith] pulled up. I forced her into the van. I told Sanjay to go to Bibb Town, which he did. And, when we got there, Kim and I got out, continuing arguing.

“ ‘I told her I love her, and if I couldn't have her, no one could. She told me she loved me but things weren't the same. I kissed her on the forehead and pushed her off me and shot her in the chest. And then she fell to the ground, and I shot her again toward her head.

“ ‘Shontai got out and helped me drag her into the bushes. We left. Sanjay dropped us off into the soft sands. When he returned, we got James Shealey['s] car and got some gas and went back where I left her. When we got there, she was standing up, and she got in the car and sat beside me. I was scared.

“ ‘Sanjay rode from Bibb Town to Reeltown looking for a place to set her on fire and bury her. I asked her what would she say if I took her to the hospital. She sa[id], “I'm going to say Corey shot me.” We returned back to Bibb Town, and Sanjay drop us off—dropped us off. He told us to go ahead and finish her and he'll be back.

“ ‘We put a trash bag over her face until she died. I poured the gas on her, and Shontai lit the lighter. Sanjay never returned.

“ ‘We left there and walked back to my house. Shontai spent the night. The next [day] he left and I never saw him again.’

“Smith's codefendants, Sanjay Brooks and Shontai Smith, Smith's cousins, pleaded guilty to murder and to kidnapping and received life sentences in exchange for their trial testimony against Smith. Brooks was sentenced to concurrentlife sentences on each count and Shontai Smith was sentenced to two consecutive life sentences. Both codefendants testified at trial and corroborated Smith's statement. Shontai Smith further testified, concerning setting Brooks's body on fire, that after he and Smith poured gasoline on Brooks and ignited her, the fire got out of control; to stop it they threw sand on Brooks's body. The two then placed her body in a piece of carpet that had been left in the dump area and rolled her body in the carpet.

“Two other witnesses testified that on the day of the murder Smith told them that he had killed Kimberly. One witness, Larry Butler, testified that Smith told him that he had killed Kimberly and that he needed gasoline to dispose of her body.”

797 So.2d at 509.

Standard of Review

Smith appeals the circuit court's denial of his petition for postconviction relief attacking his capital-murder conviction and sentence of death. Smith initiated the proceedings and, according to Rule 32.3, Ala. R.Crim. P., bears the sole burden of pleading and proving that he is entitled to relief. Rule 32.3 states:

“The petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief. The state shall have the burden of pleading any ground of preclusion, but once a ground of preclusion has been pleaded, the petitioner shall have the burden of disproving its existence by a preponderance of the evidence.”

When reviewing Smith's claims on direct appeal, we applied the plain-error standard of review and examined every claim whether or not an objection was made in the circuit court. SeeRule 45A, Ala. R.App. P. However, the plain-error standard does not apply when evaluating a circuit court's ruling on a postconviction petition. See Ferguson v. State, 13 So.3d 418, 424 (Ala.Crim.App.2008); Waldrop v. State, 987 So.2d 1186 (Ala.Crim.App.2007); Hall v. State, 979 So.2d 125 (Ala.Crim.App.2007); Gaddy v. State, 952 So.2d 1149 (Ala.Crim.App.2006). “The standard of review this Court uses in evaluating the rulings made by the trial court is whether the trial court abused its discretion.” Hunt v. State, 940 So.2d 1041, 1049 (Ala.Crim.App.2005).

“ ‘[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court's review in a Rule 32 proceeding is de novo.’ Ex parte White, 792 So.2d 1097, 1098 (Ala.2001). ‘Moreover, “when reviewing a circuit court's rulings made in a postconviction petition, we may affirm a ruling if it is correct for any reason.” ’ Lee v. State, 44 So.3d 1145, 1149 (Ala.Crim.App.2009), quoting Bush v. State, 92 So.3d 121 (Ala.Crim.App.2009).”

Dunaway v. State, [Ms. CR–06–0996, December 18, 2009] –––So.3d ––––, –––– (Ala.Crim.App.2009).

Last, we may affirm a circuit court's ruling on a postconviction petition if it is correct for any reason. See McCartha v. State, 78 So.3d 1014 (Ala.Crim.App.2011); Bryant v. State, [Ms. CR–08–0405, February 4, 2011] ––– So.3d –––– (Ala.Crim.App.2011).

I.

Smith first argues that the circuit court erred in denying his claim that his counsel's performance was ineffective at the penalty phase of his capital-murder trial. Specifically, he asserts that his counsel failed to investigate and present evidence of his mental-health problems and his family background and that the failure to present this mitigation evidence prejudiced him.

To establish a claim of ineffective assistance of counsel, a petitioner must show: (1) that counsel's performance was deficient; and (2) that he was prejudiced by the deficient performance. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Ex parte Lawley, 512 So.2d 1370, 1372 (Ala.1987).

“Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133–34, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ See Michel v. Louisiana, [350 U.S. 91], at 101 [(1955)]. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.”

Strickland, 466 U.S. at 689.

In Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), the United States Supreme Court found counsel's performance ineffective at the penalty phase of a capital-murder trial because counsel failed to present a plethora of mitigating evidence concerning Wiggins's upbringing and his mental deficiencies. The court stated:

“In finding that [trial counsel's] investigation did not meet Strickland's [ v. Washington, 466 U.S. 668 (1984),...