State v. Smith

• Decision Date: 23 October 1989
• Docket Number: No. 87-KA-0649,87-KA-0649
• Citation: 554 So.2d 676
• Parties: STATE of Louisiana v. Norvell SMITH. 554 So.2d 676
• Court: Louisiana Supreme Court

Page 676

554 So.2d 676

STATE of Louisiana v. Norvell SMITH.

No. 87-KA-0649.

554 So.2d 676

Supreme Court of Louisiana.

Oct. 23, 1989.

William J. Guste, Jr., Atty. Gen., Harry F. Connick, Dist. Atty., Jack Peebles, Brian Treay, Asst. Dist. Attys., for plaintiff-appellee.

Clyde Merritt, Dwight Doskey, Craig Colwart, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.

DENNIS, Justice.

Appellant was convicted of first degree murder and sentenced to death by electrocution. There are five assignments of error and a request that this court review the entire record and all of the evidence for error as reflected by the various transcripts.

1. Scope of Review

Where the death penalty is applicable, this court will notice all possible errors even though not properly raised. Failure to recognize this duty on our part would be inconsistent with the mandate of our constitution that "[a]ll courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights." La. Const. Art. I, Sec. 22. In a case involving capital punishment anything less than this court's careful consideration of the entire record for possible prejudicial error would not afford "an adequate remedy by due process of law and justice." Id. Further, this court's refusal to consider such an error, simply because appellant's lawyer did not properly raise it, as more able counsel might have, would either defer the problem, adding to the burgeoning delays of postconviction proceedings in state and federal courts, or create the risk of allowing appellant to be executed without a judicial determination of whether the error had prejudicially affected the procedural fairness or accuracy of factfinding in his case. Consequently, we may decline to perform this task on direct review in a capital case only at the cost of shirking our constitutional duty to afford an adequate remedy "administered without denial, partiality, or unreasonable delay." Id. Moreover, this court's failure to comply with its duty would thwart the aim of speed and efficiency implicit in our state constitution's grant of exclusive appellate jurisdiction of death penalty cases to this court, La. Const. Art. V, Sec. 5(D), and ignore our own rule calling for an expeditious direct review of each capital sentence to determine whether it was imposed under the influence of prejudice, arbitrariness or passion, La. Supreme Court Rule 28. This rule was adopted pursuant to an explicit legislative request and has served to guide our review of death penalties for over a decade with legislative approval. La.C.Cr.P. art. 905.9. See cases holding that in a capital appeal, this court will review all assignments of error, whether briefed or not, as a matter of policy: State v. Bay, 529 So.2d 845, 852 (La.1988) ("The potential deprivation of life warrants that we make the extra effort to review the record and see if we can develop a viable argument for the defendant even if the defendant fails to do so himself. Special consideration should be afforded before a life is taken."); State v. Ward, 483 So.2d 578, 587 (La.1986), cert. denied, 479 U.S. 871, 107 S.Ct. 244, 93 L.Ed.2d 168 (1986); State v. Lowenfield, 495 So.2d 1245, 1248 n. 1 (La.1985), cert. denied, 476 U.S. 1153, 106 S.Ct. 2259, 90 L.Ed.2d 704 (1986); State v. Wilson, 467 So.2d 503, 507 (La.1985), cert. denied, 474 U.S. 911, 106 S.Ct. 281, 88 L.Ed.2d 246 (1985); State v. Celestine, 443 So.2d 1091, 1094 (La.1983), cert. denied, 469 U.S. 873, 105 S.Ct. 224, 83 L.Ed.2d 154 (1984); State v. Narcisse, 426 So.2d 118, 131 (La.1983), cert. denied, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983); State v. Lindsey, 404 So.2d 466, 478 (La.1981), cert. denied, 464 U.S. 908, 104 S.Ct. 261, 78 L.Ed.2d 246 (1983); State v. Monroe, 397 So.2d 1258, 1272 (La.1981), cert. denied, 463 U.S. 1229, 103 S.Ct. 3571, 77 L.Ed.2d 1411 (1983); State v. Berry, 391 So.2d 406, 411 (La.1980) (original hearing), cert. denied, 451 U.S. 1010, 101 S.Ct. 2347, 68 L.Ed.2d 863 (1981); see also cases holding that, in a capital case, this court will consider issues not objected to at the trial or sentencing hearing, but assigned as error, due to our obligation to examine the record for passion, prejudice, or arbitrary factors which may have been injected into the proceedings: State v. Clark, 492 So.2d 862, 865 (La.1986); State v. Hamilton, 478 So.2d 123, 127 n. 7 (La.1985), cert. denied, 478 U.S. 1022, 106 S.Ct. 3339, 92 L.Ed.2d 743 (1986); State v. Glass, 455 So.2d 659, 667 (La.1984), cert. denied, 471 U.S. 1080, 105 S.Ct. 2159, 85 L.Ed.2d 514 (1985); State v. Copeland, 419 So.2d 899, 910 (La.1982).

For cases in accord with the view that when the death penalty has been imposed the appellate court should independently and with a greater degree of scrutiny review the entire record for prejudicial error see United States v. Cramer, 137 F.2d 888, 895 (2d Cir.1943), rev'd. on other grounds, 325 U.S. 1, 65 S.Ct. 918, 89 L.Ed. 1441 (1945); Stephan v. United States, 133 F.2d 87, 89-90 (6th Cir.1943), cert. denied, 318 U.S. 781, 63 S.Ct. 858, 87 L.Ed. 1148 (1943); Williams v. King, 573 F.Supp. 525, 530 (M.D.La.1983), affirmed, 719 F.2d 730 (5th Cir.1983), cert. denied, 464 U.S. 1027, 104 S.Ct. 562, 78 L.Ed.2d 732 (1983); Hubbard v. State, 283 Ala. 183, 215 So.2d 261 (1968), vacated on other grounds, 408 U.S. 934, 92 S.Ct. 2851, 33 L.Ed.2d 747 (1972); State v. Hickock, 188 Kan. 473, 363 P.2d 541 (1961); Russell v. State, 226 Miss. 885, 85 So.2d 585 (1956); State v. McLean, 282 N.C. 147, 191 S.E.2d 598 (1972), cert. denied, 410 U.S. 968, 93 S.Ct. 1453, 35 L.Ed.2d 704 (1973); State v. Swilling, 249 S.C. 541, 155 S.E.2d 607 (1967), cert. denied, 389 U.S. 1055, 88 S.Ct. 806, 19 L.Ed.2d 853 (1968).

2. Background Facts

Norvell Smith and Donald Harris were charged jointly by indictment with the first degree murder of sixteen year old Kenny Jackson during an attempted armed robbery on November 2, 1985 in Orleans Parish. The state elected to try the defendants separately and to proceed with its case against Norvell Smith first. Smith pleaded not guilty to the charge, was subsequently convicted by the unanimous verdict of a twelve-person jury, and was condemned to death by electrocution pursuant to the same jury's recommendation following a sentencing hearing.

The theory of the prosecution was that Smith conceived of a plan to rob Kenny Jackson and enlisted Harris as an accomplice; the two, with their faces covered by Halloween masks supplied by Smith, accosted Jackson as he crossed a vacant lot near his residence; Smith brandished a .38 caliber pistol and demanded Jackson's money; and when Jackson failed to deliver, protesting that he had none, Smith beat and fatally shot him with the weapon.

At trial, Smith took the stand and testified that he had no part in the crime but was at home 20 or 30 blocks from the scene at the time of the murder. Smith said that he had been with Harris and Kelly Herrell earlier that day but had left them when they became angry over his refusal to participate in a crime involving illegal drugs. He further testified that he had gone to the police shortly after the crime to tell what he knew because Michael White, a drug dealer for whom the victim, Kenny Jackson, dealt or carried drugs, was looking for Smith to extract information from him and kill him because White believed Smith knew who had been involved in the homicide. Smith stated that Harris and Herrell also dealt drugs for Michael White and had told him earlier on the day of the crime that they knew where some drugs were, but Smith claimed he had no other knowledge of the attempted robbery or murder.

To establish Smith's complicity in the attempted armed robbery and guilt of murder the state relied principally on the testimony of three witnesses: his alleged co-participant, Donald Harris; their mutual acquaintance, Kelly Herrell; and a disinterested passerby, Lyle Spencer.

Donald Harris testified against Smith pursuant to a plea bargain by which he was allowed to plead guilty to manslaughter. During interrogation following his arrest, Harris told the police that Kelly Herrell had planned the armed robbery and had supplied the masks and gun, and that the killing occurred when Harris and Smith attempted to carry out Herrell's plan. At trial, however, Harris changed his story by exculpating Herrell completely, inculpating only Smith and himself, and naming Smith as the instigator, triggerman and supplier of the criminal implements. Harris attributed his prior inconsistent statement during interrogation to insistent pressure by police to implicate Herrell. Furthermore, Harris testified that Smith shot Jackson despite Harris' pleas to let him go and that Smith later said that the killing was necessary because the victim had recognized him and had called out his name.

Kelley Herrell was arrested by the police, who thought there was probable cause to believe that he was involved in the crime, but he was not prosecuted. He testified that he was acquainted with Smith, Harris and Jackson; he had gone to Jackson's house shortly before the murder to loan him a motorcycle helmet; on his way there, he saw Smith and Harris in the neighborhood; Smith was wearing a grey sweatshirt and had a mask and a gun, and Harris was wearing a blue sweatshirt and had a mask; leaving Jackson's house on his bicycle, he heard a gunshot and, looking back, saw Smith and Harris running; Smith still had the gun in his hand and Harris had his mask on.

Lyle Spencer, who was not acquainted with Jackson, Smith, Herrell, or Harris, was leaving the nearby Bus-Stop Lounge, where he had been playing pool, at the time of the murder. He passed by the vacant lot in his car, and saw what appeared to be a fight between three men. He testified that he saw the man in the...