Smith v. State (Ex parte State)

• Decision Date: 25 May 2007
• Docket Number: 1060427.
• Citation: 213 So.3d 239
• Parties: Ex parte State of Alabama. (In re Jerry Jerome SMITH v. STATE of Alabama).
• Court: Alabama Supreme Court

213 So.3d 239

Ex parte State of Alabama.

(In re Jerry Jerome SMITH

v.STATE of Alabama).

1060427.

Supreme Court of Alabama.

May 25, 2007.

Troy King, atty. gen.; Kevin C. Newsom, deputy atty. gen.; and Beth Jackson Hughes, asst. atty. gen., for petitioner.

Bryan A. Stevenson, Angela L. Setzer, and Rebecca C. Kiley of Equal Justice Initiative of Alabama, Montgomery, for respondent.

STUART, Justice.

The issue in this case is whether Jerry Jerome Smith is mentally retarded and thus ineligible for the death penalty. See Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding unconstitutional the execution of a mentally retarded offender).

On February 24, 1998, Smith was found guilty of capital murder, and on March 19, 1998, he was sentenced to death. On August 31, 2001, after twice remanding the case for the trial court to address errors in its sentencing order, the Court of Criminal Appeals affirmed Smith's conviction and death sentence. Smith v. State, [Ms. CR–97–1258, December 22, 2000] 213 So.3d 108 (Ala.Crim.App.2000).

In 2002, after the Court of Criminal Appeals had affirmed Smith's conviction and sentence and after we had granted Smith's petition for certiorari review of the Court of Criminal Appeals' decision, the United States Supreme Court released Atkins. At that time Smith raised an Atkins claim before this Court, which we denied after conducting a plain-error review. We held that the facts before us did not support a finding that Smith was mentally retarded. However, we reversed Smith's death sentence and remanded the case to the trial court for new penalty-phase proceedings because the trial court had erroneously excluded certain mitigating evidence during the original penalty phase of Smith's trial. Ex parte Smith, [Ms. 1010267, March 14, 2003] 213 So.3d 214 (Ala.2003).

On remand, Smith attempted to litigate the Atkins claim in the trial court. It is unclear from our review of the proceedings and the trial court's order whether the trial court believed that the Atkins claim could be litigated on remand. Before the penalty-phase proceedings could be held on remand, Smith filed three Atkins motions; two of those motions requested a pre-penalty-phase hearing on the issue. During a recess in voir dire examination of the venire for the penalty-phase hearing, the trial court deferred ruling on the Atkins motions until it heard the evidence relating to Smith's mental capabilities. The trial court specifically denied Smith's request for a pre-penalty-phase hearing on the Atkins issue. There is no further mention in the record of these motions, and the trial court did not issue a specific ruling on Smith's Atkins motions.

On November 9, 2004, after the new penalty-phase hearing, the jury recommended that Smith be sentenced to death. In its sentencing order of January 18, 2005, the trial court found as a "nonstatutory mitigating circumstance" that Smith is "mildly mentally retarded" but nonetheless imposed a death sentence. On March 22, 2005, the trial court denied Smith's motion for a new sentencing hearing.

The Court of Criminal Appeals reversed the trial court's judgment and held as a matter of law that

"[Smith] is mentally retarded and is therefore not eligible for the death penalty. In reaching this conclusion, we find Dr. [Michael] D'Errico's ^{[1 ]} testimony and change of opinion during the new sentencing proceeding to be compelling. We also find the trial court's findings that the appellant was borderline mentally retarded and mildly mentally retarded and its findings about his deficits in adaptive behavior to be significant and entitled to great weight."

Smith v. State, [Ms. CR–97–1258, September 29, 2006] 213 So.3d 226, 236 (Ala.Crim.App.2000) (opinion on return to remand).

The State filed an application for rehearing, which the Court of Criminal Appeals overruled on December 1, 2006. The State then filed a petition for the writ of certiorari with this Court.

We reverse the judgment of the Court of Criminal Appeals and remand the case for that court to remand it to the trial court with directions that the trial court conduct an Atkins hearing and make an explicit determination whether Smith is mentally retarded and, consequently, ineligible for the death penalty. If the trial court determines that Smith is mentally retarded as provided in Atkins, the trial court has the authority to vacate its sentencing order and resentence Smith to life imprisonment without the possibility of parole.

Facts

On October 19, 1996, at about 8:30 p.m., Smith went to Willie Flournoy's residence in Houston County to collect between $1,500 and $1,700 Flournoy owed him for crack cocaine. When Smith arrived, Flournoy told Smith that he did not have the money but that he would have it later that night. They then smoked some crack cocaine together before Smith left.

Smith returned to Flournoy's residence later that night, accompanied by his girlfriend, Lekina Smith. Smith carried with him, inside his sleeve, a sawed-off .22 caliber rifle. Smith again asked Flournoy for his money, but Flournoy said that he did not have it. At that point, Smith told Lekina to get out of the way as he raised his rifle. Smith then shot Flournoy, who was unarmed, with the rifle. In order to eliminate any witnesses, Smith proceeded to shoot Theresa Helms and David Bennett, who were at Flournoy's house that night and who were also unarmed. Derrick Gross, who was also at the residence, confronted Smith. As Smith tried to prevent Gross from getting away, the two men wrestled over the gun. As the two men struggled at the back steps of the residence, Smith told Lekina to give him a knife she was holding so that he could stab Gross. A vehicle then pulled up to the residence, and Gross was able to get away and report the shootings to the police.

Smith and Lekina fled to Lekina's father's house. From there, they got a ride to the residence of Miranda Felder. At Smith's request, Felder hid the rifle at her residence. Smith and Lekina then went to the residence of Lavoris Smith, Lekina's mother, where they changed clothes. Smith was eventually apprehended at about 2:00 a.m. at his father's house, where he was found hiding under the bedcovers. After he was taken into custody and advised of his rights by law-enforcement officers, Smith confessed to the three murders.

In his brief to this Court, Smith sets forth the following evidence from the previous proceedings in support of his claim that he is mentally retarded and, thus, ineligible for the death penalty.

When he was eight years old, Smith's IQ was measured at 61. Tests given to him at ages 9 and 12 showed his IQ to be 72 and 66, respectively. After repeating the first grade, Smith was classified as "educably mentally retarded" and was placed in special-education classes, where he remained until he left school after the eighth grade. David Glanton, a special-education teacher who knew Smith when he was in elementary school, testified that he believed Smith to be mentally retarded.

Other witnesses testified that it was clear from a young age that Smith had significant mental limitations. Charles Davis, a neighbor, noticed that when Smith was nine years old he was different in "his ability to comprehend and his ability to respond to things you would tell him to do. He couldn't respond as a normal child would." Fred Davis, a childhood friend and neighbor of Smith's, testified that he regarded Smith as mentally retarded based on his knowledge of Smith's childhood. Davis testified that if Smith was asked to drive to a specific address to pick up some documents, he would be unable to do so. A third neighbor, Napoleon Bradley, who also knew Smith as a child, regarded him as "slow." Bradley was an automobile mechanic, and when Smith was a teenager he would help Bradley with his work, but Bradley had to carefully supervise Smith and could entrust him with only simple tasks.

Testimony indicated that Smith struggled with literacy into adulthood. Officer Ted Yost, formerly of the Headland Police Department, testified that he stopped Smith in Headland in October 1996 for a traffic violation. Smith gave his name as "Christopher Michael Turner," but after he was arrested signed a waiver-of-rights form "C–U–M–R–I–M T–U–M–N–T–H–N."

In July 1997, in preparation for Smith's trial, Dr. Michael D'Errico, a forensic psychologist, tested Smith's IQ and found it to be 67. Two months later, a defense expert tested Smith's IQ and reported the resulting score to be 72.

During the guilt phase of trial, Smith called Dr. Donald Crook, a licensed professional counselor, who testified that before developing his opinion of Smith's intelligence level, he administered the Wechsler Adult Intelligence Scale IQ test to Smith. Dr. Cook stated that Smith scored a full-scale IQ of 72 on this test. Based on this IQ score and a childhood IQ score of Smith's, Dr. Crook opined that Smith's level of functioning was best described as mildly mentally retarded.

Additionally, during the guilt phase of Smith's trial, the State called Dr. D'Errico, who testified that in his opinion Smith was "mildly mentally deficient." Dr. D'Errico also testified at the second penalty-phase hearing; at that time he diagnosed Smith as being mildly mentally retarded. Dr. D'Errico explained that he did not see the record containing Smith's IQ score of 61 at age eight until the summer of 2004, which was after Dr. D'Errico had testified in the first trial. Dr. D'Errico testified that this early test score provided additional information necessary to support his present diagnosis that Smith is mildly mentally retarded.

Evidence regarding the history of mental retardation

in Smith's family was also presented at the second penalty-phase hearing. At least three of Smith's siblings have been diagnosed with mental retardation. Smith's brother, Arlester, is described in records from the Department of Human Resources as "severely retarded." Another brother, Darron, has a full-scale IQ of...