Smith v. State (Ex parte Smith)

• Decision Date: 22 October 2010
• Docket Number: 1080973.
• Citation: 213 So.3d 313
• Parties: Ex parte Jerry Jerome SMITH. (In re Jerry Jerome Smith v. State of Alabama).
• Court: Alabama Supreme Court

213 So.3d 313

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

v.State of Alabama).

1080973.

Supreme Court of Alabama.

Oct. 22, 2010.

Bryan A. Stevenson and Marc R. Shapiro, Equal Justice Initiative, Montgomery, for petitioner.

Troy King, atty. gen., and Henry M. Johnson, asst. atty. gen., for respondent.

LYONS, Justice.

Jerry Jerome Smith was convicted in February 1998 of capital murder in the deaths of Willie Flournoy, Theresa Helms, and David Bennett. The murders were made capital because they were committed 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. The trial court followed the jury's recommendation and sentenced Smith to death. On appeal, the Court of Criminal Appeals affirmed Smith's conviction, but remanded the case for the trial court to correct the sentencing order. Smith v. State, 213 So.3d 108 (Ala.Crim.App.2000) ("Smith I "). After remanding the case a second time for correction of the sentencing order, the Court of Criminal Appeals affirmed Smith's death sentence. Smith v. State, 213 So.3d 108 (Ala.Crim.App.2000) (opinion on return to second remand) ("Smith II "). This Court affirmed the judgment of the Court of Criminal Appeals insofar as it affirmed Smith's conviction, reversed the judgment insofar as it affirmed Smith's death sentence, and remanded the case for the Court of Criminal Appeals to order the trial court to conduct a new penalty-phase hearing. Ex parte Smith, 213 So.3d 214 (Ala.2003) ("Smith III ").

After the second penalty-phase hearing, the jury recommended by a vote of 10–2 that Smith be sentenced to death. The trial court again followed the jury's recommendation and sentenced Smith to death. Smith appealed, arguing, in part, that because he is mentally retarded, he cannot be sentenced to death pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding that the execution of a mentally retarded person is unconstitutional). The Court of Criminal Appeals concluded that Smith is mentally retarded and, therefore, that he is 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. Smith v. State, 213 So.3d 226 (Ala.Crim.App.2000) (opinion on return to third remand) ("Smith IV "). This Court reversed the Court of Criminal Appeals' judgment and remanded the case for the Court of Criminal Appeals to order the trial court to conduct an Atkins hearing to determine whether Smith is mentally retarded and for the trial court to make specific findings of fact pursuant to Ex parte Perkins, 851 So.2d 453 (Ala.2002). Smith v. State, 213 So.3d 239 (Ala.2007) ("Smith V "). On remand, the trial court conducted an Atkins hearing and set out its findings of fact, concluding that Smith is not mentally retarded. On return to remand, the Court of Criminal Appeals affirmed the judgment of the trial court as to the issue of mental retardation and also as to the other issues Smith argued on appeal from his second penalty-phase hearing.

Smith v. State, 213 So.3d 255 (Ala.Crim.App.2000) (opinion on return to fourth remand) ("Smith VI "). Smith again petitioned this Court for certiorari review.

We granted Smith's petition to consider three issues: (1) whether the Court of Criminal Appeals' holding that the prosecutor's striking all minority veniremembers from Smith's jury at his second penalty-phase hearing was not improper conflicts with Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and its progeny; (2) whether the Court of Criminal Appeals' holding that no error occurred as a result of contact between relatives of one of the victims and the members of the jury venire conflicts with Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), and Ex parte Pierce, 851 So.2d 606 (Ala.2000) ; and (3) whether the Court of Criminal Appeals' affirmance of the trial court's determination that Smith is not mentally retarded conflicts with Atkins and Perkins. We reverse and remand. Because of our resolution of issue two, we pretermit discussion of issue one.

I. Factual Background

In Smith VI, the Court of Criminal Appeals summarized the facts concerning the crime that was the basis of Smith's conviction. Smith, a drug dealer, went to Flournoy's residence in Dothan around 8:30 p.m. on October 19, 1996, to collect $1,500 Flournoy owed him for crack cocaine. Flournoy told Smith he did not have the money then, but he would have it later that night. Smith left, but later that night, Smith and his girlfriend returned to Flournoy's residence. When they returned, Smith had a sawed-off .22–caliber rifle concealed under his shirt. Flournoy again said he did not have the money he owed Smith. Smith shot Flournoy, who was not armed, in the chest as Flournoy begged Smith not to shoot him. Smith then turned his weapon on the other occupants of the residence, none of whom was armed. He shot Helms six times in the chest as she tried to flee, and he shot Bennett in the head as he sat in a chair. Both died at the scene. Flournoy attempted to escape, but collapsed in his yard. He later died from the gunshot wound to his chest. Smith also attempted to shoot Derrick Gross, but the rifle jammed. As Smith and Gross wrestled with the rifle, Smith attempted to get a knife from his girlfriend, but Gross was able to escape. After the shootings, Smith fled the scene. He made arrangements for an acquaintance to hide the rifle, he changed clothes, and he attempted to hide from the police. He was apprehended the following morning at his father's house. After being advised of his rights, he confessed to the murders. He also bragged to other inmates in the county jail that he would beat the capital-murder charge because of his mental condition, and he made statements that the murders were the result of a drug deal and that he intended to shoot everyone in Flournoy's residence so there would be no witnesses to the murders.

At trial, Smith admitted shooting the three victims, but 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" because, he said, he had been on a binge, smoking crack cocaine and drinking alcohol; he was under duress because he owed his narcotics supplier $27,000, and the supplier had threatened to kill Smith's mother if he did not get his money; and he was angry because Flournoy had called his girlfriend a "whore" and a "bitch."

II. Analysis

A. Determination of Mental Retardation

We first address Smith's contention that the Court of Criminal Appeals' affirmance of the trial court's judgment concluding that he is not mentally retarded conflicts with Atkins and Perkins. If Smith is mentally retarded, then under Atkins he is not eligible for the death penalty.

The trial court, on remand from the Court of Criminal Appeals, held a hearing on April 24, 2008, on the issue whether Smith is mentally retarded. The trial court concluded that Smith " ‘is not mentally retarded so as to prevent his execution for his multiple crimes.’ " Smith VI, 213 So.3d at 267 (quoting the trial court's order). The trial court relied on the testimony of Dr. Harry McClaren and Dr. Doug McKeown, both of whom concluded that Smith is not mentally retarded based upon intelligence tests and his social-adaptive functioning. Dr. McClaren stated that Smith had a full-scale IQ of 68; Dr. McKeown stated that he had reviewed reports of IQ tests on which Smith had scored 72 and 67. Smith's full scale IQ score did not show mental retardation. The trial court stated that ample evidence was presented at the hearing showing that Smith had the ability to function adequately in society as shown by his daily activities, his work history, and his ability to communicate. Specifically, the trial court said, Smith " ‘was able to maintain a bank account, to save money, to use medical terms that were not normal for mentally retarded persons to use, and his participation in daily activities and other work showed his planning and thought processes.’ " Id. (quoting the trial court's order). Dr. McClaren stated that Smith's adaptive functioning was in the high borderline range or borderline range and concluded that Smith is not mentally retarded. He testified:

" ‘No doubt, [Smith] had some IQ scores, in fact, all the IQ scores that I know in the school records that indicate school scores measured by IQ that would be indicative of mild mental retardation, if they were not spuriously lowered by things such as exposure to domestic violence, poverty, cultural deprivation, ethnicity, perhaps intoxication. He told me that he was accustomed to late elementary, early middle school years to take a half pint of gin to school and do that at recess. I can't help to think that would have an adverse affect, if that was true, on his measured IQ's, especially later on. Also, it was clear from talking to his brother, Jimmy, and directly observing one of his half brothers that he had been exposed to domestic violence of a serious nature as a young child, that he had a family history of depression, and had made suicide attempts in his life eating rat poison, attempting another time Jimmy told me—I had not heard of—he may have wanted to kill himself with exhaust fumes and also huffing gas.’ "

Smith VI, 213 So.3d at 309 (quoting the trial court's order). Dr. McClaren also stated that Smith's substance abuse and other matters he testified about " ‘would affect cognitive functioning such that the IQ becomes lower not because of retardation but because of these external influences.’ " Id. The trial court concluded that there was "abundant evidence" to support its finding that Smith is not mentally retarded and that he therefore does not meet the legal criteria for ineligibility for the death penalty. See Atkins and Per...