Smith v. State

• Decision Date: 22 December 2000
• Docket Number: CR–97–1258.
• Citation: 213 So.3d 108
• Parties: Jerry Jerome SMITH v. STATE.
• Court: Alabama Court of Criminal Appeals

213 So.3d 108

Jerry Jerome SMITH

v.STATE.

CR–97–1258.

Court of Criminal Appeals of Alabama.

Dec. 22, 2000.

Opinion on Return to Remand March 30, 2001.

Opinion on Second Return to Remand Aug. 31, 2001.

Dissenting Opinion on Overruling of Rehearing Oct. 26, 2001.

Jon Christopher Capps, Robert Aaron Gartlan, Dothan; Kathleen M. Nemish, Dothan; Angela L. Setzer, Bryan A. Stevenson, and Randall S. Susskind, Montgomery; Rebecca Kiley, Montgomery; and David Kenneth Hogg, Dothan, for appellant.

William H. Pryor, Jr., Troy King, and Luther Strange, attys. gen., and Kathryn D. Anderson, Michael A. Nunnelley, Beth Jackson Hughes, and Henry Mitchell Johnson, asst. attys. gen., for appellee.

PATTERSON, Retired Appellate Judge.

The Houston County grand jury indicted the appellant, Jerry Jerome Smith, on February 20, 1997, for the capital offense of "[m]urder wherein two or more persons are murdered by the defendant by one act or pursuant to one scheme or course of conduct," Alabama Code 1975, § 13A–5–40(a)(10).¹ At arraignment, he entered pleas of not guilty and of not guilty by reason of mental disease or defect. He withdrew this latter plea before his case was submitted to the jury. When withdrawing the plea, his counsel stated, "Nobody's saying he's insane. We're just saying he's retarded." (R. 1229.) The appellant was found guilty by a jury on February 24, 1998, of the capital offense charged in the indictment. A sentencing hearing was held before the jury in accordance with §§ 13A–5–45 and –46, and the jury recommended, by a vote of 11 to 1, that the appellant be sentenced to death. The trial court held another sentencing hearing as required by §§ 13A–5–47 through –52, and, after considering all the evidence, after weighing the aggravating and mitigating circumstances, and after considering the presentence report and the jury's recommendation, sentenced the appellant to death.

The prosecution's evidence showed that the appellant, a drug dealer, went to the residence of Willie Flournoy in Dothan, around 8:30 p.m., on October 19, 1996, to collect $1,500 Flournoy owed him for crack cocaine Flournoy had purchased. Flournoy told the appellant that he did not have the money at that time, but that he would have it later that night. After smoking crack cocaine with Flournoy, the appellant left. Later that night, the appellant, accompanied by his girlfriend, Lekina Smith, returned to Flournoy's residence. He carried a sawed-off .22 caliber rifle concealed under his shirt. The appellant again asked Flournoy for the money, and Flournoy said he did not have it. The appellant told his girlfriend, Lekina, to get out of the way, and then he pointed his rifle at Flournoy and said, "Flint [Flournoy], I have something for you." He shot Flournoy, who was unarmed, in the chest as Flournoy begged him not to shoot. Flournoy attempted to escape, but fell in the yard of his residence and later died from a bullet wound

in his chest. After shooting Flournoy, the appellant turned on the other occupants of the home, none of whom was armed. He shot Theresa Helms six times as she tried to flee; she died at the scene from several gunshot wounds to her chest. He shot David Bennett as Bennett sat in a chair in one of the bedrooms of the residence; Bennett died at the scene from a gunshot wound to his head. The appellant attempted to shoot Derrick Gross, but his rifle jammed. As Gross and the appellant wrestled over the gun, the appellant tried to get a knife from his girlfriend so he could stab Gross. Gross escaped. After the shootings, the appellant, accompanied by his girlfriend, fled the scene; he made arrangements for an acquaintance to hide the rifle, changed clothing, and attempted to hide from the police. He was apprehended by the police at approximately 2:00 a.m. the following morning, when he was discovered hiding in his father's house. After being advised of his rights, he confessed to the shootings. The prosecution's evidence also tended to show that the appellant had bragged to other inmates in the county jail that he would beat the capital charge because of his mental condition. It further indicated that the appellant had made statements that the shootings were the result of a drug deal and that he intended to shoot all persons in the residence in order to eliminate all witnesses to the shootings.

At trial, the appellant admitted shooting and killing the three victims, but he contended that he did not intend to kill them. He claimed that he was not "in his right mind" at the time of the shootings and that he just "snapped," for three reasons: (1) he had been on a binge, smoking crack cocaine and drinking alcohol; (2) he was under duress because he owed $27,000 to his narcotics supplier, a person he could only identify as a Jamaican named "Tony," who lived in Florida and who, he claimed, carried an Uzi automatic weapon and had threatened to kill the appellant's mother if he did not get his money; and (3) he was angry because the Flournoy had called his girlfriend a "whore" and "bitch." He also urged the jury to consider the facts that he had had an alcohol and drug problem since he was eight years old and that he was mentally retarded. In his closing summation, his counsel argued:

"He should get punished only for what he did and had an intent to do. We are not asking you to let him off for killing someone, absolutely not. He's admitted that. But he didn't intend to kill those people. The drugs and alcohol in his system, the threat of force, and then the final little thing, the straw that broke the camel's back, Flint standing there and called his [girlfriend] a whore and a slut and stuff, the man snaps."

(R. 1780.)

The evidence presented by the prosecution was largely direct evidence, and the appellant does not question on appeal the sufficiency of the prosecution's evidence to support the jury's verdict. Nevertheless, we have reviewed the record in reference to the question of the sufficiency of the evidence, as we are required to do in a death-penalty case, and we find that the evidence presented by the prosecution was sufficient for the jury to find the appellant guilty beyond a reasonable doubt of the capital offense charged in the indictment. In fact, we find the evidence of guilt of the capital offense to be strong and convincing.

I.

The appellant first contends that the trial court erred in granting the prosecution's challenges for cause, over his objection, of veniremembers M.M., L.Y., and L.W. The attorney general responds that the trial court's grant of the challenges for cause was proper; the challenge was based upon the inability of the three veniremembers to be impartial, which, he argues, could reasonably be inferred from their alleged failure to answer truthfully certain questions during the voir dire examination.

"To justify a challenge of a juror for cause there must be a statutory ground (Ala.Code Section 12–16–150 (1975)), or some matter which imports absolute bias or favor, and leaves nothing to the discretion of the trial court." Nettles v. State, 435 So.2d 146, 149 (Ala.Crim.App.), aff'd, 435 So.2d 151 (Ala.1983). Section 12–16–150 sets out the grounds for removal of veniremembers for cause in criminal cases; however, the attorney general asserts none of these statutory grounds and we find none applicable here.

However, in addition to the statutory grounds, there are other grounds in the common law for challenging veniremembers for cause where those grounds are not inconsistent with the statute. Kinder v. State, 515 So.2d 55, 60 (Ala.Crim.App.1986). Ultimately, the test to be applied is whether the veniremember can set aside his or her opinions, prejudices, or biases, and try the case fairly and impartially, according to the law and the evidence. Knop v. McCain, 561 So.2d 229 (Ala.1989). This determination of a veniremember's absolute bias or favor is based on the veniremember's answers and demeanor and is within the discretion of the trial judge; however, that discretion is not unlimited. See Rule 18.4(e), Ala.R.Crim.P. Even proof that a veniremember has a bias or fixed opinion is insufficient to support a challenge for cause. A prospective juror should not be disqualified for prejudices or biases if it appears from his or her answers and demeanor that the influence of those prejudices and biases can be eliminated and that, if chosen as a juror, he or she would render a verdict rendered according to the law and the evidence. Mann v. State, 581 So.2d 22, 25 (Ala.Crim.App.1991) ; Minshew v. State, 542 So.2d 307 (Ala.Crim.App.1988), overruled on other ground, Ex parte Gentry, 689 So.2d 916 (Ala.1996).

In regard to the prosecutor's claim that M.M., L.Y., and L.W. were untruthful in addressing the questions put to them during voir dire, we acknowledge that voir dire examination is critical in ensuring juror impartiality. It enables the parties to probe potential jurors for prejudice and bias, both known and unknown. Demonstrated bias in the responses to questions on voir dire may result in a potential juror's being excused for cause. While demonstrated bias can result in a veniremember's removal, hints of bias, not sufficient to warrant a challenge for cause, assist the parties in exercising their peremptory strikes. If the process is to serve its purpose, veniremembers must give truthful answers. McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984) ; Dyer v. Calderon, 151 F.3d 970 (9th Cir.1998).

"Nevertheless, we must be tolerant, as jurors may forget incidents long buried in their minds, misunderstand a question or bend the truth a bit to avoid embarrassment. The Supreme Court has held that an honest yet mistaken answer to a voir dire question rarely amounts to a constitutional violation; even an intentionally dishonest answer is not fatal, so long as the falsehood does not bespeak a lack of impartiality. See McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78

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