Smith v. State

• Decision Date: 07 February 2014
• Docket Number: CR–12–1146.
• Citation: 157 So.3d 994
• Parties: James Wilbert SMITH v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

157 So.3d 994

James Wilbert SMITH

v.STATE of Alabama.

CR–12–1146.

Court of Criminal Appeals of Alabama.

Feb. 7, 2014.

Rehearing Denied April 25, 2014.

Certiorari Denied June 6, 2014

Susan G. James, Montgomery, for appellant.

Luther Strange, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.

Opinion

BURKE, Judge.

James Wilbert Smith was convicted of two counts of murder made capital because Smith committed the murders after having been convicted of another murder in the preceding 20 years, a violation of § 13A–5–40(a)(13), Ala.Code 1975. Smith was also convicted of an additional count of murder made capital because two or more persons were murdered by one act or pursuant to one scheme or course of conduct, a violation of § 13A–5–40(a)(10), Ala.Code 1975. Smith was sentenced to life imprisonment without the possibility of parole. This appeal follows.

The evidence at trial established that the victims, Ronnie Pugh and Bertjenski Peterson, were killed at their residence on August 23, 2008. Pugh's body was discovered on the kitchen floor. Pugh's hands had been bound behind his back with duct tape and he had two bullet wounds

to the back of his head. Peterson's body was found on the living room floor. Peterson had gunshot wounds to his head, back, and neck. David Owens, an investigator with the Major Crimes Unit of the Huntsville Police Department, testified that there were six or seven shell casings discovered at the crime scene. According to Owens, the shell casings were for two different caliber bullets, a .45 caliber and a .9 millimeter, indicating that at least two weapons had been fired at the scene.

Trinyell Coats, a friend of the victims, testified that on August 23, 2008, at approximately 7:00 in the evening, he became worried when he was unable to get in touch with either of the victims despite repeated telephone calls. Coats went to the victims' house where he discovered their bodies and contacted the police. According to Coats, the house had been ransacked. Coats stated that “[e]verything was turned over, ripped up. Vents taken off. The counters removed. Refrigerator moved. If it was a shoe box it was turned upside down, emptied out. Dresser drawers emptied. Clothes baskets empty.” (R. 177.) Coats testified that the house had been orderly and clean when he visited earlier in the day. Coats also testified that, the Monday before Pugh and Peterson were killed, their house had been ransacked in a similar manner. Coats stated: “The house was tossed before. But we had to clean it up and everything.” (R. 177.)

Coats further testified that both he and Peterson were drug dealers. Coats stated that it was not unusual for Peterson to have several pounds of marijuana as well as large amounts of cash at his house. According to Coats, Peterson sometimes kept up to 20 pounds of marijuana in a “stash spot.” (R. 181.) Coats stated that a “stash spot” is “a location where if somebody comes in to burglarize the house they won't be able to find it.” (R. 182.) Coats testified that he had seen “over a hundred” people buy marijuana at Peterson's house. (R. 195.)

Michael Johnson, a crime scene investigator with the Huntsville Police Department, testified that the house looked as if it had been “rummaged through.” (R. 408.) Johnson stated that it looked as if somebody “was in a hurry looking for something....” (R. 408.) Johnson testified that he collected a pair of scissors that he discovered near Peterson's body on top of an overturned couch. Subsequent testimony revealed that the fabric on the bottom of the couch appeared to have been cut open. (R. 474.) According to Johnson, there appeared to be drying blood on the blades of the scissors. Johnson also collected samples of what he believed to be blood from a planter in the living room and from two cardboard boxes that were discovered in one of the bedrooms.

Crystal Kissel, a DNA expert with the Alabama Department of Forensic Sciences, testified that she analyzed the blood evidence collected from the crime scene. Kissel stated that she created a DNA profile for each of the samples collected from the scissors, as well as the samples collected from the planter and the cardboard boxes. Those DNA profiles were all identical but did not match the DNA profile of either victim. Kissel testified that she then submitted the unknown samples to the Combined DNA Index System (“CODIS”), a nationwide data bank of DNA profiles from various sources. According to Kissel, those unknown samples matched the DNA profile of Wilbert James Smith, whose DNA profile was already stored in CODIS. Subsequent testimony indicated that an additional DNA sample was taken from Smith after his arrest that also matched the DNA from the blood samples collected at the crime scene.

Investigator Owens testified that he became aware of the match from CODIS on January 7, 2009. On January 21, 2009, Owens arrested Smith in Montgomery. Owens indicated that, at the time of the arrest, he noticed a scar or an old cut on Smith's hand. (R. 497.) Smith did not make any statements to police. However, prior to trial, Smith stipulated to his prior murder conviction as alleged in the indictment.

On appeal, Smith argues that the State failed to present sufficient evidence to establish his guilt beyond a reasonable doubt. Specifically, Smith contends that the evidence was insufficient to establish the element of intent required to sustain a capital-murder conviction. Smith also argues that his constitutional rights were violated when the prosecutor elicited improper comments from a witness regarding Smith's failure to give a post-arrest statement to police. Finally, Smith contends that the trial court erred by failing to include certain language regarding accomplice liability in the final jury instructions. We will address each argument in turn.

I.

A review of the record reveals that one of the State's theories of Smith's guilt was based on accomplice liability. In response to Smith's motion for a judgment of acquittal, the prosecutor stated:

“Judge, our theory of this case is based on complicity. I mean I think the evidence would support a conclusion that this act was not committed by one person alone. There are—we know there's at least two guns being fired. The house is completely ransacked. Two individuals have been subdued and taped up. And it would be beyond—beyond normal occurrence that one person acting alone could have indicated or completed all of this acting alone.”

(R. 527.) In his brief, Smith correctly points out that “[a]n inference of criminal participation cannot be drawn merely from presence; a culpable purpose is essential.” (Smith's brief, at 33), quoting Greer v. State, 563 So.2d 39, 42 (Ala.Crim.App.1990). According to Smith, the State's evidence established nothing more than his presence at the scene.

However, the fact that Smith's blood was found at the crime scene coupled with the location of the blood and the testimony that the blood appeared to be drying at the time the police arrived, established more than mere presence. It established that Smith was cut at or near the time of the shootings with a pair of scissors that were later found near one of the victims on top of an overturned couch that had been slit open. The presence of Smith's blood on a planter in the living room as well as on two separate boxes in an adjacent bedroom established that, after Smith was cut, he went from the living room into the bedroom.

In addition to that evidence, Investigator Owens testified that Smith had a scar or an old cut on one of his hands when he was arrested several months after the shootings. Furthermore, Trinyell Coats testified that the house had been clean earlier in the day but appeared to have been ransacked when he discovered the bodies. That evidence, when taken together with the blood evidence collected at the crime scene, suggests, at the very least, that Smith was cut with the scissors at or near the time that the victims were shot and their house ransacked. Additionally, it establishes that, after being cut, Smith went from the living room into an adjacent bedroom.

This Court has held:

“ ‘ “ ‘In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.’ ” Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). “ ‘The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.’ ” Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O'Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). “ ‘When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court's decision.’ ” Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). “The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.” Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).'

“Gavin v. State, 891 So.2d 907, 974 (Ala.Crim.App.2003).

“ ‘In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether

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