Smith v. State

• Decision Date: 10 August 2012
• Docket Number: CR–08–1583.
• Parties: Willie B. SMITH III v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

112 So.3d 1108

Willie B. SMITH III
v.
STATE of Alabama.

CR–08–1583.

Court of Criminal Appeals of Alabama.

May 25, 2012.
Rehearing Denied Aug. 10, 2012.

[112 So.3d 1113]

Kathryn Roe Eldridge, Birmingham; Hugh A. Abrams, Chicago, Illinois; and Tung T. Nguyen, Dallas, Texas, for appellant.

Troy King and Luther Strange, attys. gen., and Jon Hayden, asst. atty. gen., for appellee.

BURKE, Judge.

Willie B. Smith III appeals the circuit court's denial of his Rule 32, Ala. R.Crim. P., petition for postconviction relief challenging his May 7, 1992, conviction of two counts of capital murder and the resulting sentence of death. Smith was convicted of the intentional murder of Sharma Ruth Johnson during a kidnapping, § 13A–5–40(a)(1), Ala.Code 1975, and the intentional murder of Sharma Ruth Johnson during a robbery, § 13A–5–40(a)(2), Ala.Code 1975. The facts of this case are set out in this Court's opinion on return to remand. See Smith v. State, 838 So.2d 413, 421–25 (Ala.Crim.App.2002). Briefly, Smith was convicted of abducting the female victim from the automatic teller “ATM” site of a bank, with the aid of an accomplice who approached the victim from her front passenger's window, and inquired as to the location of a Krystal's Hamburger restaurant. Smith then approached the vehicle at the front driver's window, armed with a gun, and forced the victim into the trunk. After driving away in the vehicle, he returned to the ATM. He forced the victim to provide her password and used the victim's debit card to withdraw funds. A surveillance camera recorded Smith using the victim's card. He drove around with her in the trunk, taunting her with sexual threats when she cried for help. After picking up another passenger, he drove her to a cemetery where he shot her execution-style. Smith abandoned the car, but later returned to the car and burned it. He admitted committing the offense to other witnesses, one of whom was an informant who was wired when Smith made the admission.

On appeal, this Court remanded this case, pursuant to J.E.B. v. State, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), for a hearing to be held and the prosecutor to come forward with his reasons for striking female veniremembers. The trial court was thereafter to determine whether the prosecutor had removed females from the jury in a discriminatory manner. Smith v. State, 698 So.2d 1166 (Ala.Crim.App.1997). On return to remand, this Court affirmed the trial court's judgment, Smith v. State, 838 So.2d 413 (Ala.Crim.App.2002), and the Alabama Supreme Court denied certiorari review on June 28, 2002. On December 16, 2002, Smith's petition for a writ of certiorari to the United States Supreme Court was denied.

Smith filed a Rule 32 petition on August 1, 2003, and, following a motion by the State arguing that certain of his claims were insufficiently pleaded, he was granted leave to amend his petition. The State also filed a motion to dismiss certain of Smith's claims that presented no material issue of law or fact and an answer responding to each of Smith's claims. Smith responded to the State's filing, and the State in turn responded to Smith's response.

[112 So.3d 1114]

Smith filed an amended Rule 32 petition on May 31, 2005. Smith's appellate counsel's motion to withdraw was granted and new appellate counsel was appointed. The State filed an answer to Smith's claims and a motion to dismiss certain claims that were procedurally barred, insufficiently pleaded, or failed to present any material issue of fact or law, pursuant to Rules 32.3, 32.6(b), and 32.7(d), Ala. R.Crim. P. The State also filed a motion to conduct a mental evaluation of Smith.

Smith filed his second amended Rule 32 petition on November 26, 2007. The State filed an answer to Smith's second amended petition, responding to each claim and concluding that relief should be denied on all claims except his claim that he is mentally retarded. The State acknowledged that an evidentiary hearing should be held as to that claim.¹ One of Smith's attorneys was then allowed to withdraw and Smith filed a response to the State's answer, arguing that he was entitled to a hearing; that the “Flynn Effect” indicated that he was retarded; that he was entitled to discovery concerning his retardation, his mental- and physical-health history, and his ineffective-assistance-of-counsel claims; that the effects of his allergic reaction to Haldol prejudiced him at trial during both the guilt phase and the penalty phase; and that his ineffective-assistance claims were not insufficiently pleaded because the State had not provided him with the necessary requested records.

On November 12, 2008, a hearing was held as to Smith's claims in his second amended Rule 32 petition. Smith's counsel stated that evidence would be presented concerning only those issues raising factual disputes. Smith asked that the court simply rule as to the remaining issues, which raised only questions of law and whether they were precluded or insufficiently pleaded. The court indicated that it would do so after the hearing. The two basic issues presented at the hearing concerned claims of ineffective assistance of trial counsel and whether Smith was mentally retarded.

As to his claims of ineffective assistance of counsel, Smith introduced a declaration from one of his five counsel representing him at the hearing, stating that she had made diligent efforts to obtain the testimony of Smith's lead trial counsel. She had contacted him by telephone in Florida, but he had indicated that he was unwilling to return to Alabama to testify concerning his representation of Smith. However, the attorney who had assisted in representing Smith, and who was notably responsible for representing him during the penalty phase, testified at the hearing. She stated that she had been admitted to the Alabama State Bar eight months before Smith's trial and that his trial had been her first trial as a practicing attorney. She had been hired by Smith's lead counsel, who had already been working on Smith's case. She stated that during the guilt phase, she “was observing and assisting [lead counsel] in any way necessary.” (R. 39.) She did not present evidence or examine witnesses during that time.

She testified that her role during the penalty phase, however, was to interview witnesses beforehand and then to examine them at trial. She further stated that lead counsel had discussed the relevance of various mitigating factors with her and had presented half of the closing argument. She stated that she had interviewed people in the community and family members but did not interview any experts. She acknowledged

[112 So.3d 1115]

that the court had ordered a competency test to be performed on Smith before trial by Dr. C.J. Rosecrans. Smith's lead counsel had retained a psychologist, Dr. Alan Blotcky, to evaluate Smith, and the witness stated that she believed that she also had met with Dr. Blotcky. Dr. Blotcky's report, following administering the test pursuant to the Wechsler Adult Intelligence Scale Revised (WAIS–R), indicated that Smith had a verbal IQ of 75, placing him in the borderline range of intelligence. Smith's attorney testified that she did not believe that any full IQ testing or any other psychological, intelligence, or drug testing had been performed on Smith.

On cross-examination, the witness recalled that a clinical psychologist, Dr. Allen Shealy, had been retained by the defense to aid in jury selection. She also testified that she had attempted to obtain Smith's school records because he had indicated that he had been in special-education classes. Because the school no longer had the records, the assistant principal had been called to testify at the penalty phase. She testified that the fee declarations indicated that the lead counsel had also spoken to a psychiatric social worker whom the witness believed to be Donna Click, who had worked at the jail. Smith never complained to the witness of having been “given stuff at the jail that made him not feel right.” (R. 61.) She stated that the lead counsel had been with her during the guilt and penalty phases and that she had discussed the interviews that she had completed with him. However, she complained that the lead counsel had not been very helpful. The prosecutor noted that the witness had presented testimony that Smith had a severe drug problem from the age of 17 and that he had had a difficult childhood.

Dr. Karen Lee Salekin testified that she administered the Stanford–Binet Intelligence Skills, Fifth Edition (Stanford–Binet), test to Smith. She also administered the Scales of Independent Behavior–Revised (SIB–R) test to Smith's family members concerning what skills he reflected at age 17. She testified that the SIB–R test indicated that Smith had an overall score of 67, indicating that it would be very difficult for him to participate in age-appropriate activities. He also scored a 61 as to motor skills, which score raised the same implications of limited ability. He was also limited as to social interaction and communications skills, and limited to age-appropriate level (which category does not indicate that functioning in this area was as “difficult”) as to community-living skills. (R. 80.)

Dr. Salekin testified that the “Flynn Effect” “is a gradual increase in measured IQ score over the course of time” and indicates “that each year there's an increase in IQ score by .3, leading to a three-point increase in measured IQ in a ten-year span.” (R. 81.) On cross-examination, the prosecutor elicited testimony that the manual used by psychiatrists and psychologists to diagnose mental conditions does not recommend adjusting IQ scores to conform to the “Flynn Effect.” Dr. Salekin further acknowledged that there was no national consensus about whether the “Flynn Effect” should be applied to IQ tests.

Moreover, the prosecutor also elicited testimony from Dr. Salekin that a drawback of the SIB–R was that it was...