REL: 03/14/2003 - Ex parte Smith
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 242-4621), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2002-2003
_________________________
_______________________
Ex parte Jerry Jerome Smith
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Jerry Jerome Smith
v.
(Houston Circuit Court, CC-97-270;
Court of Criminal Appeals, CR-97-1258)
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] ___ So. 2d ___ (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] ___ So. 2d ___ (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] ___ So. 2d ___ (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 (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 (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."
Buchannan v. Angelone, 522 U.S. 269, 276 (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 (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 other brothers and sisters at home? "[Smith]: I think my sister was 14, either 13, at the time. And she was pregnant also when she
was 13 years old. ... My oldest brother was molested, and he's the mentally retarded one. "[Prosecutor]: Judge, once again, would you instruct this defendant to answer the question, not
volunteer information. He didn't ask him about those things. He's rambling off. And we've
already taken up these matters. "[Smith's counsel]: We are not offering these as specific examples of mitigation. We are
offering this as the totality of his family unit, which I think is admissible. "THE COURT: Okay. [Smith's counsel], we've already discussed this. And that is sustained.
And the jury is to disregard the testimony in regards to -- I forgot what it was now -- the sister
-- "[Smith's counsel]: The sister being retarded and the brother being in jail. "THE COURT: You are not to consider that at this time." A little later when his counsel questioned Smith about his biological father, the prosecutor
again objected. Smith's counsel indicated that he thought the evidence was relevant. Before
the court could sustain the objection, the prosecutor withdrew his objection. Smith responded,
"My role model dad I was supposed to have had was an alcoholic also. And he stayed in jail
most of the time and basically couldn't hold a job down. So it was hard." In light of the
objection and the trial court's previous rulings, Smith's counsel did not develop this line of
examination to include the effect Smith's relationship with his father, or the lack of one, had on
Smith. The trial court's ruling during the charge conference and its subsequent ruling during
Smith's testimony were erroneous. A sentencer may not, as a matter of law, preclude or refuse
to consider any relevant mitigating factor offered by the defendant. Eddings v. Oklahoma, 455
U.S. 104 (1982); and Lockett, supra. In Price v. State, 725 So. 2d 1003, 1062 (Ala. Crim. App.
1997), aff'd, 725 So. 2d 1063 (Ala. 1998), the Court of Criminal Appeals upheld as proper the
trial court's finding as a nonstatutory mitigating circumstance that the defendant's father was
murdered when he was a child and its consideration of "the instability of [the defendant's]
home life and the traumatic events during his early years." The trial court's ruling here
improperly restricted Smith's presentation and development of mitigation evidence;
consequently, it prevented the jury from determining an individualized sentence
recommendation for Smith. We must now decide whether that error warrants a reversal of the sentence and necessitates a
new penalty-phase proceeding. The Court of Criminal Appeals held that despite the trial
court's ruling, Smith was permitted to present evidence regarding his dysfunctional family;
therefore, the error, if any, was harmless. The Court of Criminal Appeals noted that Smith
presented evidence indicating that Smith's mother and sister suffered from alcoholism; that his
father had been incarcerated while Smith was a child; that his parents were unable to provide a
safe home environment; that his brothers and sisters were unable to provide sustenance; that
one of his brothers was mentally retarded; that some of his siblings were incarcerated; and that
his parents did not visit him while he was incarcerated. We agree with the Court of Criminal
Appeals that mitigating evidence was presented. It is clear from the record, however, that
Smith was prevented from expanding the evidence to show how his childhood was impacted by
the fact that his family was dysfunctional. While he was able to present some evidence about
certain members of his family, that evidence was limited and not well developed. As Smith
maintains, "At no point was the jury able to learn the key information: what it was like for
[him] to grow up in an abusive, neglectful home where no one was able to look after him."
Additionally, the trial court specifically instructed the jury to ignore some of the evidence
presented, which, if developed and allowed to be considered by the jury, may have been
relevant in the jury's sentencing recommendation. "The harmless error rule is to be applied with extreme caution in capital cases. Seibold v.
State, 287 Ala. 549, 253 So. 2d 302 (1970). We hold that caution must also be observed when
reviewing error committed at the penalty phase of the trial. After all, it is the penalty phase
which distinguishes these cases from all other cases." Ex parte Whisenhant, 482 So. 2d 1247, 1249 (Ala. 1984). Smith was prevented from presenting a complete picture of the impact his dysfunctional family
had on his development. We cannot maintain judicial integrity and conclude that the error --
not allowing that evidence to be developed as nonstatutory mitigating evidence -- was
harmless. We are not reasonably certain that the outcome of the penalty phase of Smith's trial
would have been the same had the mitigating evidence been developed. As Justice Marshall
reminded us in his special writing concurring in the judgment in Lockett, "Where life itself is
what hangs in the balance, a fine precision in the process must be insisted upon." 438 U.S. at
620. Smith did not receive the "fine precision" in the penalty phase of his trial necessary to
ensure due process. Therefore, we remand this case for a new penalty-phase proceeding. In concluding that the error here was not harmless, we have considered the role of the jury
during the penalty phase of a capital case. We will not undermine the responsibilities and
duties of the jury during the penalty phase. § 13A-5-46, Ala. Code 1975. Although the trial
court is not bound by the jury's sentencing recommendation, it is a factor in the trial court's
determination. § 13A-5-47(e). See also Ex parte Taylor, 808 So. 2d 1215 (Ala. 2001). Additionally, we note that while the trial court found Smith's evidence significant in its
determination of mitigating circumstances and considered those mitigating circumstances in the
weighing process, this fact alone does not render the error harmless; in fact, it indicates that the
jury's advisory verdict, if the evidence had been developed and the jury allowed to consider it,
may have been different. "'The legislatively mandated role of the jury in returning an advisory verdict, based upon its
consideration of aggravating and mitigating circumstances, can not be abrogated by the trial
court's errorless exercise of its equally mandated role as the ultimate sentencing authority. Each
part of the sentencing process is equally mandated by the statute (§§ 13A-5-46, -47(e)); and the
errorless application by the court of its part does not cure the erroneous application by the jury
of its part. For a case consistent with our holding, see Johnson v. State, 502 So. 2d 877 (Ala.
Cr. App. 1987). To hold otherwise is to hold that the sentencing role of the jury, as required by
statute, counts for nothing so long as the court's exercise of its role is without error.'" Ex parte Stewart, 659 So. 2d 122, 128 (Ala. 1993)(quoting Ex parte Williams, 556 So. 2d 744,
745 (Ala. 1987)). This case does not present a circumstance where the aggravating
circumstances were so numerous and overwhelming that when the aggravating circumstances
are weighed against the mitigating circumstances, the error could be considered harmless. Cf.
Broadnax v. State, 825 So. 2d 134 (Ala. Crim. App. 2000), aff'd, 825 So. 2d 233 (Ala. 2001). We further note that the prosecutor apparently believed that the development of the mitigating
evidence would have some impact on the jury or he would not have so strenuously objected to
its admission. Because we do not know, based on the record, how Smith would have
developed the evidence, we cannot determine with certainty that it would have had no impact
on the jury. We also reject the contention that because Smith's counsel indicated at the charge conference
that Smith was to be the only witness, the evidence to be offered in mitigation was minimal and
the error in not allowing that evidence therefore harmless. We cannot conclude with certainty,
especially in light of the prosecutor's objections, that Smith was able to develop the evidence
fully. The record indicates that during the penalty phase, Smith's mother was present in the
courtroom and that defense counsel indicated that she would probably testify. Smith's mother,
however, did not testify. We acknowledge that the trial court did not refuse to allow her to
testify and that numerous possible reasons exist for her not testifying. However, we cannot
exclude the possibility that her testimony was not elicited because of the trial court's ruling that
what had happened to family members, other than Smith, was not relevant. Our holding today in no way indicates this Court's view on the propriety of the sentence of
death in this case. "What is important ... is an individualized determination on the basis of the
character of the individual and the circumstances of the crime." Zant v. Stephens, 462 U.S.
862, 879 (1983). The penalty phase of a capital-murder case is a "'due process hearing of the
highest magnitude.' Richardson v. State, 376 So. 2d 205, 224 (Ala. Crim. App. 1978), aff'd,
376 So. 2d 228 (Ala. 1979)." Ex parte Stewart, 659 So. 2d at 127. Smith was not afforded due
process at the penalty phase of his trial; therefore, we must remand this case. In light of our remand for a new penalty-phase proceeding, we pertermit any discussion of
other errors Smith alleges occurred during the penalty phase. (2) Our pretermission of any
discussion of the additional penalty-phase issues upon which we granted certiorari review is not
to be understood as approval of all the language, reasons, or statements of law in the Court of
Criminal Appeals' opinion. Horsley, supra. II. After the United States Supreme Court issued its holding in Ring v. Arizona, 536 U.S. 584,
122 S.Ct. 2428 (2002), this Court ordered supplemental briefing to allow the parties to discuss
the impact of Ring on Smith's case. We need not, however, address the implications of the
holding in Ring on the Alabama capital-sentencing statutes. Even if Ring draws into question
the constitutionality of Alabama's capital-sentencing scheme, and we are not prepared to say
that it does, a Ring violation did not occur in this case. In his special writing in Bottoson v. Moore, 833 So. 2d 693, 719 (Fla. 2002), Justice Pariente
eloquently explained: "[T]he presence of a prior violent felony conviction meets the threshold requirement of
Apprendi [v. New Jersey, 530 U.S 466 (2000),] as extended to capital sentencing by Ring [v.
Arizona, 536 U.S. 584, 122 S.Ct. 2432 (2002)]. In Almendarez-Torres v. United States, 523
U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the United States Supreme Court approved
an enhanced sentence for the crime of returning to the United States after being deported, based
on the judge's finding that the deportation was pursuant to three prior convictions of aggravated
felonies. The Court rejected a claim that the enhancement was improper because the
indictment had not alleged that the deportation was pursuant to the prior convictions. As
explained in Apprendi, 'our conclusion in Almendarez-Torres turned heavily upon the fact that
the additional sentence to which defendant was subject was "the prior commission of a serious
crime."' 530 U.S. at 488, 120 S.Ct. 2348. In Apprendi, the Court held: "'[T]here is a vast difference between accepting the validity of a prior judgment of conviction
entered in a proceeding in which the defendant had the right to a jury trial and the right to
require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find
the required fact under a lesser standard of proof.' "Id. at 496, 120 S.Ct. 2348. Accordingly, the Court held: 'Other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.' Id. at 490, 120
S.Ct. 2348 (emphasis supplied [in Bottoson]). "In extending Apprendi to capital sentencing, the Court in Ring did not eliminate the 'prior
conviction' exception arising in Almendarez-Torres. The Court noted in Ring that '[n]o
aggravating circumstance related to past convictions in his case; Ring therefore does not
challenge Almendarez-Torres.' 536 U.S. at ___ n. 4, 122 S.Ct. at 2437 n.4." 833 So. 2d at 722-23 (footnote omitted). As was the circumstance in Bottoson, one of the
aggravating circumstances presented by the State in the penalty phase of this trial involved a
prior felony conviction; therefore, Smith is not entitled to relief pursuant to Ring. See
Almendarez-Torres v. United States, 523 U.S. 224 (1998). III. Smith further maintains that this Court must remand his case for a determination as to whether
his sentence violates the United States Supreme Court's recent holding in Atkins v. Virginia,
536 U.S. ____, ___, 122 S.Ct. 2242, 2250 (2002), that executing a mentally retarded individual
violates the ban on cruel and unusual punishments found in the Eighth Amendment to the
United States Constitution. This issue was raised in the supplemental briefing ordered by this
Court. Although this issue was brought to our attention on certiorari review, because Smith did not
contend at trial that mental retardation barred the imposition of a death sentence upon him we
apply the plain-error standard of review. See Rule 39(a)(2)(D), Ala.R.App.P. "'[T]his Court's review of a death-penalty case allows us to address any plain error or defect
found in the proceeding under review, even if the error was not brought to the attention of the
trial court. Rule 39(a)(2)(D) and (k), Ala. R. App. P. "'"Plain error" only arises if the error is so
obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial
proceedings.'" Ex parte Womack, 435 So. 2d 766, 769 (Ala.), cert. denied, Womack v.
Alabama, 464 U.S. 986, 104 S.Ct. 436, 78 L.Ed.2d 367 (1983), quoting United States v.
Chaney, 662 F.2d 1148, 1152 (5th Cir. 1981). The plain-error standard applies only where a
particularly egregious error occurs at trial. Ex parte Harrell, 470 So. 2d 1309, 1313 (Ala.), cert.
denied, 474 U.S. 935, 106 S.Ct. 269, 88 L.Ed.2d 276 (1985). When the error "has or probably
has" substantially prejudiced the defendant, this Court may take appropriate action. Rule
39(a)(2)(D) and (k), Ala. R. App. P.; Ex parte Henderson, 583 So. 2d 305, 306 (Ala. 1991),
cert. denied, Henderson v. Alabama, 503 U.S. 908, 112 S.Ct. 1268, 117 L.Ed.2d 496 (1992).' "Ex parte Minor, 780 So. 2d 796, 799-800 (Ala. 2000)(footnote omitted)." Ex parte Perkins, [Ms. 1991016, November 22, 2002] ___ So. 2d ___, ___ (Ala. 2002). We reject Smith's contention that in light of the holding in Atkins, we must remand this cause
for the trial court to conduct a hearing to determine if he is mentally retarded and therefore not
subject to the death penalty. Plain error did not occur in that regard in this case. Because the Legislature has not had an occasion to address this State's policy regarding
mentally retarded capital defendants and establish a procedure for determining whether a
capital defendant is mentally retarded and therefore not subject to the death penalty, we have
conducted our review in light of the most liberal definitions considered by the United States
Supreme Court in reaching its holding in Atkins and as defined by statutes in those states that
prohibit the imposition of the death sentence on a mentally retarded defendant. (3) Based on the facts presented at Smith's trial, under even the broadest definition of mental
retardation Smith is not mentally retarded. Those states that have statutes prohibiting the
execution of a mentally retarded defendant require that to be considered mentally retarded a
defendant must have significantly subaverage intellectual functioning (an IQ score of 70 or
below) and significant or substantial deficits in adaptive behavior. Additionally, those
problems must have manifested themselves before the defendant reached age 18. The record establishes that during the guilt phase of trial, the State and Smith presented expert
testimony regarding Smith's intellectual functioning and adaptive behavior. Dr. Don Crook, a
licensed professional counselor, testified as a witness for the defense. Dr. Crook interviewed
Smith and administered the Wechsler Adult Intelligence Scale - Revised when Smith was 26
years old. Dr. Crook testified that Smith was "very cooperative, very pleasant and social." Dr.
Crook testified that Smith was mildly mentally retarded with a full- scale IQ score of 72.
(Smith's verbal IQ score was 76; his performance IQ score was 69.) Dr. Crook further
maintained that his testing indicated that Smith had an "adjustment disorder with mixed
disturbance of emotions" and that Smith suffered from "poly-substance dependence." The
record indicates that according to the results of a Stanford-Binet Intelligence Scale
administered to Smith when he was 12 years old, his full-scale IQ score at that time was 66.
Dr. Crook concluded that Smith read and spelled on a first-grade level, that his math skills were
on a third-grade level, and that his ability to form intent was at the level of a 10- to 12-year-
old. Dr. Crook further testified that Smith knew that it was against the law and wrong to shoot
and kill someone and that it was against the law to sell drugs. Dr. Crook admitted that his conclusions did not take into consideration Smith's articulate
statement made to the police after he was arrested for the murders; the facts surrounding the
murders, which indicate intentional, goal-oriented behavior; Smith's relationship with his
girlfriend; or Smith's statements while he was in jail awaiting trial to the effect that he had
committed the murders and that he would "get off" on a plea of mental disease or defect. Dr. Michael D'Errico, a forensic psychologist, testified for the State. Dr. D'Errico concluded
that Smith was mildly mentally deficient. Dr. D'Errico explained: "When I reviewed Mr. Smith's case, I found that he was living independently at a level,
probably, higher than a mentally retarded individual would be living. Therefore, I was at a loss
to come up with a diagnosis of mental retardation. However, his score on the intelligence test
placed him in the mild range of mental deficiency." According to Dr. D'Errico, Smith was "street-wise" or "street-smart." The testimony with regard to Smith's intellectual functioning indicates that he falls within the
borderline to mildly mentally retarded range with an overall IQ score of 72 a year after the
murders, which seriously undermines any conclusion that Smith suffers from significantly
subaverage intellectual functioning as contemplated under even the broadest definitions. Likewise, with regard to evidence of "significant" or "substantial" deficits in adaptive behavior,
our review of the record indicates little, if any, deficit. At the time of the murders, Smith had
had an ongoing year-long relationship with his girlfriend. His articulate testimony indicates
that he loved his girlfriend, maintaining that she had been his "common-law wife" for a year,
and that they had planned on having children. Additionally, we note that the evidence indicates
that before Smith shot the first victim, he told his girlfriend to move out of harm's way. Moreover, the record indicates that before the murders Smith was able to hold various jobs. At
the time of the murders, Smith was working a construction job. More insightful into Smith's
adaptive behavior is the fact that Smith was involved in an interstate illegal-drug enterprise.
Smith testified that at the time of the murders he was under stress because he owed a Jamaican
drug supplier in Jacksonville, Florida, $27,000. Smith admitted that at the time of the murders
he was addicted to cocaine and that he was using $400 worth of crack cocaine per day; he said
that in order to maintain that habit he "distributed" drugs. Furthermore, the fact that Smith gave a police officer a false name two days before the murders
when he was stopped for a traffic violation, the circumstances surrounding the murders, Smith's
actions after the murder -- enlisting the help of a friend to dispose of the gun and to hide from
the police -- his bragging about the murders, his statement about "getting off" using a mental-disease-or-defect defense, and his statement that he shot two of the individuals in the house to
eliminate witnesses indicate that Smith does not suffer from deficits in his adaptive behavior. Lastly, because the evidence does not support Smith's contention that he manifested subaverage
intellectual functioning and significant deficits in adaptive behavior, we need not address the
third factor -- whether those problems evinced themselves before Smith was 18 years old. Because the record does not support Smith's contention that he falls within the parameters of
the most liberal requirements to support a finding of mental retardation, we reject his
contention that we must remand this cause for resentencing on this ground. Applying the plain-error standard of review, we hold that no reversible error occurred in this regard and a death
sentence may be imposed in this case if such a sentence is deemed proper after the new penalty-phase proceeding. For the foregoing reasons, the judgment of conviction for capital murder is affirmed, but the
sentence of death is reversed, and the cause is remanded for the Court of Criminal Appeals to
remand the cause to the trial court for a new penalty-phase proceeding before a jury. AFFIRMED AS TO CONVICTION; REVERSED AS TO SENTENCE; AND REMANDED. Houston, See, Lyons, Brown, Johnstone, Harwood, and Woodall, JJ., concur. Moore, C.J., concurs in part and dissents in part. MOORE, Chief Justice (concurring in part and dissenting in part). I concur in affirming the conviction in this case, but I respectfully dissent from the reversal of
the death sentence. When Smith tried to introduce evidence in the penalty phase of the trial about his brothers and
sister, the trial court excluded any evidence regarding Smith's siblings. The trial judge also
instructed the jury to not consider anything that may have been introduced about his siblings,
like the fact that his sister became pregnant at a young age or that his brother was retarded and
had served time in jail. I agree with the trial judge that such evidence was irrelevant. If any negative event in a defendant's family can become relevant mitigation evidence in the
penalty phase of a capital-murder trial, I do not see where such reasoning will stop. Why stop
at the family environment? Why not consider every other negative event that ever happened to
the defendant? There is a limit to what a trial court should have to consider when determining
the appropriate penalty for someone who has been found guilty of capital murder. The trial
court set a reasonable limit for the introduction of such mitigation evidence, and I am unwilling
to disturb its ruling in that regard. I agree with the trial judge that in the penalty phase of a capital-murder trial events that
happened to a defendant's siblings are irrelevant as mitigation evidence. Therefore, I
respectfully dissent. 1. This Court issued a writ of certiorari to the Court of Criminal Appeals to review the
following guilt-phase issues:
1. Whether the trial court erred in removing certain potential jurors from the venire.
2. Whether the prosecutor's statements about Smith's confession, the trial court's admission of testimony regarding his suppression hearing, and the trial court's failure to instruct the jury on how to consider his confession were reversible error.
3. Whether the prosecutor engaged in misconduct, resulting in reversible error.
2. In addition to the error already addressed, this Court granted certiorari review of the following penalty-phase issues:
1. Whether the trial court erred in failing to instruct the jury that Smith's capacity "to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired." See § 13A-5-51(6), Ala. Code 1975.
2. Whether the evidence supported the aggravating circumstance that Smith "knowingly created a great risk of death to many persons." See § 13A-5-49(3), Ala. Code 1975.
3. Whether the trial court erred in admitting evidence of his prior convictions.
4. Whether there was prosecutorial misconduct, and, if so, whether that misconduct resulted in reversible error.
3. See Ariz. Rev. Stat. § 13-703.02(J)(2) (2001); Ark. Code Ann. § 5-4-618 (Michie 1993); Colo. Rev. Stat. § 18-1.3-1101(2) (2002); Conn. Gen. Stat. § 1-1g (2001); Fla. Stat. Ann. § 921.137(1) (West 2002); Ga. Code Ann. § 17-7-131(a)(3) (1997); Ind. Code. § 35-36-9-2 (1998); Kan. Stat. Ann. § 21-4623(e) (1995); Ky. Rev. Stat. Ann. § 532.130(2) (Michie 1999); Md. Code Ann., Crim. Law § 2-202 (2002); Mo. Rev. Stat. § 565.030(6) (2001); Neb. Rev. Stat. § 28-105.01(3) (2000); N.M. Stat. Ann. § 31-20A-2.1(A) (Michie 2000); N.Y. Crim. Proc. Law § 400.27(12)(e) (McKinney 2002); N.C. Gen. Stat. § 15A-2005(a)(1)(a)(2001); S.D. Codified Laws § 23A-27A-26.2 (Michie 2002); Tenn. Code. Ann. § 39-13-203(a) (1997); Wash. Rev. Code § 10.95.030(2)(a)(2002).