Smith v. State (Ex parte Smith)

• Decision Date: 14 March 2003
• Docket Number: 1010267.
• Citation: 213 So.3d 214
• Parties: Ex parte Jerry Jerome SMITH. (In re Jerry Jerome Smith v. State of Alabama).
• Court: Alabama Supreme Court

213 So.3d 214

Ex parte Jerry Jerome SMITH.(In re Jerry Jerome Smith

v.State of Alabama).

1010267.

Supreme Court of Alabama.

March 14, 2003.

Rehearing Denied May 23, 2003.

Kathleen Nemish and Chris Capps, Dothan, for petitioner.

William H. Pryor, Jr., atty. gen., and George Martin and Tracy M. Daniel, asst. attys. gen., for respondent.

STUART, Justice.

Jerry Jerome Smith was convicted 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." § 13A–5–40(a)(10), Ala.Code 1975. The jury recommended, by a vote of 11 to 1, that Smith be sentenced to death. After a sentencing hearing, the trial court sentenced Smith to death.

The Court of Criminal Appeals affirmed Smith's conviction, but remanded the case for the trial court to address deficiencies and errors in the sentencing order. Smith v. State, [Ms. CR–97–1258, Dec. 22, 2000] 213 So.3d 108 (Ala.Crim.App.2000). The trial court amended its sentencing order on remand. The Court of Criminal Appeals reviewed the amended order and held that the amendment did not remedy the errors because the trial court had not addressed all of the court's concerns; it again remanded the case. [Ms. CR–97–1258, March 30, 2001] 213 So.3d 108, 148 (opinion on return to remand). On return to second remand, the trial court submitted a new sentencing order, which the Court of Criminal Appeals determined was adequate. The Court of Criminal Appeals completed its review and affirmed Smith's death sentence. [Ms. CR–97–1258, August 31, 2001] 213 So.3d 108, 209 (opinion on return to second remand).

The Court of Criminal Appeals presented a detailed synopsis of the facts of the offense and a thorough analysis of the issues presented during the guilt phase of Smith's trial. We have reviewed the issues raised by Smith regarding the guilt phase of his trial as to which we granted certiorari review,¹ and we agree with the Court of Criminal Appeals that there was no reversible error during the guilt phase; therefore, Smith's conviction is due to be affirmed. This Court, however, does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals' December 22, 2000, opinion addressing the allegations of error in the guilt phase. See Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973). We conclude, however, that reversible error did occur during the penalty phase of Smith's trial, and we remand the case for a new penalty-phase proceeding.

I.

According to Smith, the trial court prevented him from introducing relevant and persuasive mitigating evidence in violation of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and Alabama law. Specifically, he maintains in his brief to this Court that he was denied the opportunity to present evidence to show that

"[h]is family's role models and caretakers—his mother and father—were an alcoholic and a convict. They were unavailable to protect their children from predators or to provide them with a healthy home environment. Because Jerry Smith's brothers and sisters also suffered from neglect and trauma, they were unable to offer the sustenance that a sibling can sometimes provide to assist a flailing youngster."

According to Smith, because the trial court ruled that he could introduce evidence only of things that happened to him and no one else, he was precluded from presenting a complete picture of his childhood.

"We begin by recognizing that the concept of individualized sentencing in criminal cases generally, although not constitutionally required, has long been accepted in this country.... [W]here sentencing discretion is granted, it generally has been agreed that the sentencing judge's 'possession of the fullest information possible concerning the defendant's life and characteristics' is '[h]ighly relevant—if not essential —[to the] selection of an appropriate sentence....' Williams v. New York, [337 U.S. 241], 247 [ (1949) ](emphasis added [in Lockett ] ).

"....

"... [W]e conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.... Given that the imposition of death by public authority is so profoundly different from all other penalties, we cannot avoid the conclusion that an individualized decision is essential in capital cases. The need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual is far more important than in noncapital cases.... The nonavailability of corrective or modifying mechanisms with respect to an executed capital sentence underscores the need for individualized consideration as a constitutional requirement in imposing the death sentence.

"There is no perfect procedure for deciding in which cases governmental authority should be used to impose death. But a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant's character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments."

Lockett v. Ohio, 438 U.S. at 602–05, 98 S.Ct. 2954 (footnotes omitted). Likewise, a ruling that has not given "independent mitigating weight to aspects of the defendant's character" creates the same risk.

To determine the appropriate sentence, the sentencer must engage in a "broad inquiry into all relevant mitigating evidence to allow an individualized determination." Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998). Alabama's sentencing scheme broadly allows the accused to present evidence in mitigation. Jacobs v. State, 361 So.2d 640, 652–53 (Ala.1978). See 13A–5–45(g), Ala.Code 1975 ("The defendant shall be allowed to offer any mitigating circumstance defined in Sections 13A–5–51 and 13A–5–52."). "[E]vidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse." California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987) (O'Connor, J., concurring specially).

At the charge conference before the penalty phase of Smith's trial, Smith's counsel indicated that Smith would testify that his family was dysfunctional and the effect that his dysfunctional family had on his development. At the charge conference, the following occurred:

"[Prosecutor]: I want to say this evidence about at age 12 the client—I presume the client is Jerry Jerome Smith—[Smith's siblings] were at home, and [E.L.M.] came in and raped [Smith's sister], hit [Smith's brother] in the head with the pliers. Mr. Smith was angry about that incident. That is clearly not admissible. They can't elicit that.... They can't get into that. They can't get into his brother is mentally retarded. They can't get into his sister tried to commit suicide. They can't get in that his sister had an alcohol problem or attempted suicide. Mr. Smith's cousin ... was in a mental institution. That is not relevant at all. They can put up this defendant and his conditions, but not the family....

"....

"[Smith's counsel]: Your Honor, mental retardation is a hereditary factor, certainly, certain aspects of it, without doubt. To show that someone is in [special education] classes, that he has the education ability of a 12 year old, he's borderline mentally retarded, he has a mild mental deficiency, all of those are weighting factors to substantiate the possibility of him having that problem, which [Smith's expert witness] testified [during the guilt phase] that he has....

"[Smith's cocounsel]: Judge, let me refer the Court to Jackson v. Thigpen [752 F.Supp. 1551 (1990) ]. This is [a] Northern District [of] Alabama 1990 case. Let me read you this, 'Petitioner's alcoholism, the abuse that she suffered as a child, her limited intelligence, and the circumstances surrounding the killing of her boyfriend all bore upon the mitigating factors of whether petitioner was substantially impaired in her capacity to appreciate the criminality of her conduct.' ...

"....

"[Prosecutor]: They can put in things about him, that he has got a drinking problem, he's got a mental problem, he tried to kill himself, ... but things about the family are not relevant to mitigating circumstances. That's what these cases say. Once that gets in, it's too late to try to change it on behalf of the State.

"....

"THE COURT: Okay. I'm going to exclude anything that happened to anybody other than the defendant. And you have y'all's objection to that.

"....

"[Smith's counsel]: What about were your siblings abusive or neglectful to you? Yes, I had a sister in prison. She wasn't home with me to bond with me. All of that, Judge, I think is relevant.

"THE COURT: No. No."

During Smith's direct testimony in the penalty phase, the following occurred:

"[Smith's counsel]: How many brothers and sisters did you have?

"[Smith]: Well, there is five boys and two girls, and two of them—the oldest one was in prison at the time—

"[Prosecutor]: I object. This was not the question. If the defendant would answer the questions and not ad lib or volunteer stuff, Judge.

"[Smith's counsel]: We are talking about his family unit here, in other words, his environment as a child.

"THE COURT: Okay. I think we talked about that before this hearing, and that is sustained.

"....

"[Smith's counsel]: How old were your

...