Smith v. State, No. CR-97-1258 (Ala. Crim. App. 1/16/2009)

• Decision Date: 16 January 2009
• Docket Number: No. CR-97-1258.,CR-97-1258.
• Parties: Jerry Jerome Smith v. State of Alabama
• Court: Alabama Court of Criminal Appeals

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Jerry Jerome Smith v. State of Alabama

No. CR-97-1258.

Court of Criminal Appeals of Alabama.

Decided January 16, 2009.

Appeal from Houston Circuit Court, (CC-97-270).

On Return to Fourth Remand.

PER CURIAM.

In 1998, Jerry Jerome Smith, was convicted of murdering Willie Flournoy, Theresa Helms, and David Bennett by one act or pursuant to one scheme or course of conduct, an offense defined as a capital offense by § 13A-5-40(a)(10), Ala. Code 1975. The jury recommended, by a vote of 11 to 1, that Smith be sentenced to death. The circuit court sentenced Smith to death.

On appeal, this Court affirmed Smith's capital-murder conviction, but remanded the case for the circuit court to correct its sentencing order. See Smith v. State, [Ms. CR-97-1258, December 20, 2000] ___ So. 2d ___ (Ala.Crim.App. 2000). After remanding the case 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. 2d ___ (Ala.Crim.App. 2000) (opinion on return to second remand). However, on certiorari review 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] ___ So. 2d ___ (Ala. 2003).

A new penalty-phase hearing was held, and the jury recommended, by a vote of 10 to 2, that Smith be sentenced to death. The circuit court followed the jury's recommendation and sentenced Smith to death.

On return from the second penalty-phase hearing, Smith argued that he is mentally retarded and that according to the United States Supreme Court's opinion in Atkins v. Virginia, 536 U.S. 304 (2002), he could not be sentenced to death. This Court held that Smith was mentally retarded and that he was ineligible for the death penalty, and we directed the circuit court to set aside Smith's death sentence and sentence Smith to life imprisonment without the possibility of parole. See Smith v. State, [Ms. CR-97-1258, September 29, 2006] ___ So. 2d ___ (Ala.Crim.App. 2006) (opinion on return to third remand).

On certiorari review the Alabama Supreme Court reversed this Court's decision and directed this Court to remand the case to the circuit court for that court to hold an Atkins v. Virginia hearing to determine whether Smith is mentally retarded and for that court to make specific findings of fact pursuant to the factors set out by the Alabama Supreme Court in Ex parte Perkins, 851 So. 2d 453 (Ala. 2002). See Smith v. State, [Ms. 1060427, May 25, 2007] ___ So. 2d ___ (Ala. 2007). In compliance with the Supreme Court's instructions, we remanded the case to the circuit court. See Smith v. State, [Ms. CR-97-1258, August 31, 2007] ___ So. 2d ___ (Ala.Crim.App. 2007).

On remand, the circuit court complied with the Supreme Court's instructions, conducted an Atkins hearing, and set out its findings of fact. This case is now before this Court on return to fourth remand.

Mental Retardation

A statement of the facts surrounding the murders is helpful in evaluating the issues presented in this case. This Court stated the following facts in our 2000 opinion affirming Smith's capital-murder conviction:

"The prosecution's evidence showed that [Smith], 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 [Smith] 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, [Smith] left. Later that night, [Smith], accompanied by his girlfriend, Lekina Smith, returned to Flournoy's residence. He carried a sawed-off .22 caliber rifle concealed under his shirt. [Smith] again asked Flournoy for the money, and Flournoy said he did not have it. [Smith] 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, [Smith] 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. [Smith] attempted to shoot Derrick Gross, but his rifle jammed. As Gross and [Smith] wrestled over the gun, the appellant tried to get a knife from his girlfriend so he could stab Gross. Gross escaped. After the shootings, [Smith], 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 [Smith] 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, [Smith] 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 [Smith's] mother if he did not get his money; and (3) he was angry because Flournoy had called his girlfriend a `whore' and `bitch.'"

___ So. 2d at ___.

In Atkins v. Virginia, 536 U.S. 304 (2002), the United States Supreme Court reversed its holding in Penry v. Lynaugh, 492 U.S. 402 (1989), and held that it was a violation of the Eighth Amendment to the United States Constitution to execute a mentally retarded individual. The Court stated:

"We are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty. Construing and applying the Eighth Amendment in the light of our `evolving standards of decency,' we therefore conclude that such punishment is excessive and that the Constitution `places a substantive restriction on the State's power to take the life' of a mentally retarded offender. Ford [v. Wainwright], 477 U.S. [399,] 405 ([(1986)]."

536 U.S. at 321. The Supreme Court declined to adopt a standardized definition of mental retardation; instead, it left that decision to the individual states.

Alabama has yet to enact legislation addressing this issue. However, the Alabama Supreme Court, in Ex parte Perkins, 851 So. 2d 453 (Ala. 2002), adopted the most liberal definition of mental retardation as defined by those states that have legislation barring the execution of a mentally retarded individual. According to Perkins, to be considered mentally retarded a defendant must show: (1) significant subaverage intellectual functioning — i.e., an IQ of 70 or below; (2) significant or substantial deficits in adaptive behavior; and (3) that these problems manifested themselves during the developmental period — i.e., before the age of 18.

"All three factors must be met in order for a person to be classified as mentally retarded for purposes of an Atkins [v. Virginia, 536 U.S. 304 (2002),] claim. Implicit in the definition is that the subaverage intellectual functioning and the deficits in adaptive behavior must be present at the time the crime was committed as well as having manifested themselves before age 18. This conclusion finds support in examining the facts we found relevant in Ex parte Perkins[, 851 So. 2d 453 (Ala. 2002),] and Ex parte Smith[,[Ms. 1010267, March 14, 2003] ___ So. 2d ___ (Ala. 2003),] and finds further support in the Atkins decision itself, in which the United States Supreme Court noted: `The American Association on Mental Retardation (AAMR) defines mental retardation as follows: "Mental retardation refers to substantial limitations in present functioning."` 536 U.S. at 308 n. 3, 122 S.Ct. 2242 (second emphasis added). Therefore, in order for an offender to be considered mentally retarded in the Atkins context, the offender must currently exhibit subaverage intellectual functioning, currently exhibit deficits in adaptive behavior, and these problems must have manifested themselves before the age of 18."

Ex parte Smith, [Ms. 1060427, May 25, 2007] ___ So. 2d at ____. In its 2007 opinion in Ex parte Smith, the Alabama Supreme Court emphasized that a reviewing court must give great deference to a circuit court's findings on mental retardation; it noted that questions based on weight and credibility determinations are better left to trial courts, which have "`the opportunity to personally observe the witnesses and assess their credibility.'" Ex parte Smith, ___ So. 2d at ___, quoting Smith v. State, [Ms. CR-97-1258, August 29, 2003] ___ So. 2d ___, ___ (Ala.Crim.App. 2003) (Shaw, J., dissenting).

In reviewing the experts testimony, we keep in mind that "[i]t is not the number of experts, but the credibility of their testimony which the judge must weigh." Commonwealth v. Prater, 420 Mass. 569, 575, 651 N.E.2d 833, 838 (1995). "`The question of [the defendant's]...