Smith v. State, CR–97–1258.
| Decision Date | 04 February 2011 |
| Docket Number | CR–97–1258. |
| Citation | 213 So.3d 327 |
| Parties | Jerry Jerome SMITH v. STATE of Alabama. |
| Court | Alabama Court of Criminal Appeals |
Jon Christopher Capps (withdrew 9/12/2007); Robert Aaron Gartlan, Dothan; Angela L. Setzer and Bryan A. Stevenson, Montgomery; and Rebecca Kiley, Montgomery, for appellant.
William H. Pryor, Jr., and Troy King, attys. gen., and Kathryn D. Anderson, Michael A. Nunnelley, Beth Jackson Hughes, and Henry Mitchell Johnson, asst. attys. gen., for appellee.
On Remand from the Alabama Supreme Court
In 1998, Jerry Jerome Smith was convicted of capital murder for killing Willie Flournoy, Theresa Helms, and David Bennett by one act or pursuant to one scheme or course of conduct, see § 13A–5–40(a)(10), Ala.Code 1975. The jury recommended, by a vote of 11—1, that Smith be sentenced to death. In accordance with the jury's recommendation, the circuit court sentenced Smith to death.
On appeal, this Court affirmed Smith's capital-murder conviction, but remanded the cause for the circuit court to correct its sentencing order. See Smith v. State, [Ms. CR–97–1258, December 22, 2000] 213 So.3d 108 (Ala.Crim.App.2000). After remanding the cause a second time for the circuit court to correct its sentencing order, this Court affirmed Smith's death sentence. See Smith v. State, [Ms. CR–97–1258, August 31, 2001] – ––– So.3d ––––, –––– (Ala.Crim.App.2000) (). Thereafter, the Alabama Supreme Court reversed Smith's death sentence and ordered a new penalty-phase hearing. See Ex parte Smith, [Ms. 1010267, March 14, 2003] 213 So.3d 214 (Ala.2003).
After a second penalty-phase hearing, the jury recommended by a vote of 10–2 that Smith be sentenced to death. The circuit court followed the jury's recommendation and again sentenced Smith to death. On return to remand, this Court "concluded that Smith is mentally retarded and, therefore, ... ineligible for the death penalty and directed the trial court to set aside Smith's death sentence and to sentence him to life imprisonment without the possibility of parole." Ex parte Smith, [Ms. 1080973, October 22, 2010] 213 So.3d 313, 314 (Ala.2010) (). The Alabama Supreme Court reversed this Court's judgment and remanded the cause for the circuit court to conduct an Atkins1 hearing to determine whether Smith is mentally retarded and to make specific findings of fact pursuant to Ex parte Perkins, 851 So.2d 453 (Ala.2002). Smith v. State, [Ms. 1060427, May 25, 2007] 213 So.3d 239, 254 (Ala.2007). After conducting the Atkins hearing, the circuit court concluded that Smith is not mentally retarded. This Court affirmed the circuit court's determination, and the Alabama Supreme Court granted certiorari review.
On October 22, 2010, the Alabama Supreme Court again reversed Smith's sentence of death and remanded the cause for the circuit court to conduct a new penalty-phase proceeding before a jury. Ex parte Smith, [Ms. 1080973, October 22, 2010] 213 So.3d 313, 314 (Ala.2010). Specifically, after detailing why the circuit court correctly determined that Smith is not mentally retarded, the Alabama Supreme Court held that improper, prejudicial contact between the victim's mother and the jury venire entitled Smith to a new penalty phase-proceeding. Id. at 330.
In accordance with the Alabama Supreme Court's opinion in Ex parte Smith, [Ms. 1080973, October 22, 2010] 213 So.3d at 326, this cause is remanded to the circuit court with instructions for that court to conduct a third penalty-phase hearing. On remand, the circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 180 days from the date of this opinion.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Jerry Jerome Smith appeals his sentence of death that resulted from the third penalty-phase proceeding of his capital-murder trial. In 1998, Smith was convicted of capital murder for killing Willie Flournoy, Theresa Helms, and David Bennett by one act or pursuant to one scheme or course of conduct, see § 13A–5–40(a)(10), Ala.Code 1975. At the conclusion of the third penalty-phase proceeding, the jury recommended, by a vote of 12–0, that Smith be sentenced to death. In accordance with the jury's recommendation, the circuit court sentenced Smith to death.
The facts of the Smith's offense are stated in detail in Smith v. State, [Ms. CR–97–1258, December 22, 2000] 213 So.3d 108 (Ala.Crim.App.2000), and will not be repeated here except as necessary for an understanding of the issue before this Court. Smith, who was a drug dealer, went to Flournoy's residence to collect $1,500, which Flournoy owed him for crack cocaine. When Flournoy told Smith that he did not have the money, Smith shot and killed him with a sawed-off .22 caliber rifle. Smith then shot and killed Helms and Bennett, who were also at Flournoy's residence. The jury convicted Smith of capital murder for intentionally killing two or more people pursuant to one act or pursuant to one scheme or course of conduct, see § 13A–5–40(a)(10), Ala.Code 1975. Smith was sentenced to death; he appealed.
Smith v. State, [Ms. CR–97–1258, Feb. 4, 2011] 213 So.3d 327, 329 (Ala.Crim.App.2011). In accordance with the Alabama Supreme Court's opinion in Ex parte Smith,
[Ms. 1080973, October 22, 2010] 213 So.3d 313, 329 (Ala.2010), this Court remanded the cause to the "the circuit court with instructions for that court to conduct a third penalty-phase hearing." Smith, [Ms. CR–97–1258, Feb. 4, 2011] 213 So.3d at 329.
On January 23, 2012, the circuit court began Smith's third penalty-phase proceeding before a jury. At the conclusion of the presentation of evidence, the circuit court instructed the jury on the law. During its jury charge regarding aggravating circumstances, the circuit court instructed the jury that it could consider four aggravating circumstances. Specifically, the circuit court instructed the jury that it could consider the following aggravating circumstances: 1) "[t]he defendant was previously convicted of another capital offense or a felony involving the use or threat of violence to the person," § 13A–5–49(2), Ala.Code 1975; 2) "[t]he defendant knowingly created a great risk of death to many persons," § 13A–5–49(3), Ala.Code 1975; 3) "[t]he capital offense was especially heinous, atrocious, or cruel compared to other capital offenses," § 13A–5–49(8), Ala.Code 1975; and 4) "the defendant intentionally caused the death of two or more persons by one act or pursuant to one scheme or course of conduct." (R. 948–49.) See § 13A–5–49(9), Ala.Code 1975. At the conclusion of the circuit court's instructions, Smith raised the following objection:
(R. 951–52.)
After the circuit court charged the jury, it returned a...
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