Smiley v. State

295 So.3d 156

Benjamin Davis SMILEY, Jr., Appellant,

v.STATE of Florida, Appellee.

No. SC18-385

Supreme Court of Florida.

May 14, 2020

Andrea M. Norgard of Norgard, Norgard & Chastang, Bartow, Florida, for Appellant

Ashley Moody, Attorney General, Tallahassee, Florida, and Marilyn Muir Beccue, Senior Assistant Attorney General, Tampa, Florida, for Appellee

PER CURIAM.

Benjamin Davis Smiley, Jr. appeals a circuit court judgment sentencing him to death.¹ As we explain, we affirm the conviction and sentence.

FACTS AND PROCEDURAL HISTORY

I. Guilt Phase

Mark Wilkerson lived in Lakeland with his brother Mario, his mother, and his 58-year-old stepfather, Clifford Drake. Late at night on April 15, 2013, as he was putting away his bicycle, Wilkerson heard rattling coming from the chain link fence at the rear of his home. Wilkerson saw two men, both wearing dark sweatshirts, standing on the other side of the fence. Wilkerson recognized neither man. He called out to them, asking what they were doing. The shorter of the two —we now know it was the defendant, Smiley—pointed a gun at Wilkerson and commanded that he come toward them. Smiley and the other man jumped the fence, and Smiley ordered Wilkerson to take off his clothes and get on the ground. Smiley pointed his gun at Wilkerson and yelled at him, demanding to know where Wilkerson's stepfather kept a safe with money. Wilkerson denied knowing about any safe or money, and he begged for his life. Smiley went through the pockets of Wilkerson's pants and took Wilkerson's cellphone, a small amount of cash, and a key to the home.

Smiley told Wilkerson to put his pants back on. Keeping the gun trained on Wilkerson, Smiley marched him to the front door of the home, all the while threatening to kill Wilkerson if he made any noise. Wilkerson, Smiley, and the other man entered the home, and Wilkerson led them to Drake's bedroom, where Drake lay asleep. At first, Smiley entered the dark bedroom alone, but he was unable to find the safe. Smiley ordered Wilkerson to go into the room and turn on the light. Smiley then struck the still-sleeping Drake on the head with the gun. Startled, Drake scooted around on the bed while Smiley shouted at him, pointing the gun in Drake's face and demanding to know where Drake kept his money. Drake denied having any. Smiley then shot Drake in the hip and continued to ask about the money. Seconds later, Smiley fatally shot Drake in the chest.

Smiley returned his focus to Wilkerson, ordering him at gunpoint to help find Drake's money. Smiley watched while Wilkerson ransacked the bedroom, to no avail. Eventually the taller man, who had been mostly silent throughout this episode, warned Smiley that someone was coming. Smiley commanded Wilkerson to get on the ground, and he complied. Smiley and his accomplice then ran from the home, leaving behind a backpack.

The police immediately began an investigation. Though the murder weapon was never found, analysis of bullets recovered at the scene showed that the gun from the Drake murder had also been used less than a month earlier in a nearby shooting. Otherwise the case went cold for nearly two years. Then, in February 2015, the police learned that DNA recovered from the backpack and from a sweatshirt found near the crime scene matched Smiley's DNA. The police showed Mark Wilkerson a photo lineup, and he identified Smiley as the shooter.

The police also revisited phone records showing that, minutes after the Drake murder, Mark Wilkerson's stolen cell phone had been used in a three-way phone call. That in turn led the police to two of the participants in that call, John McDonald and Samantha Lee. McDonald, whose mother lived across the street from the Drake home, is Smiley's cousin. Lee is Smiley's aunt.

McDonald testified at trial that, during a card game, Mario Wilkerson had bragged that his stepfather (Drake) kept money in a safe. Within a few days, McDonald, Lee, and Smiley hatched a plan to rob Drake. The night of the murder, McDonald picked up Smiley and "Big Jit" from Lee's house in Tampa and drove them to the parking lot of an apartment complex behind the Drake residence in Lakeland. McDonald had not met Big Jit before and was surprised by his participation, but Lee vouched for him. The plan was for Smiley and Big Jit to carry out the robbery and for McDonald to pick them up afterward. McDonald waited for a while after watching Smiley and Big Jit walk toward the Drake home, but he drove off after seeing Mark Wilkerson ride by on his bicycle. Eventually McDonald got a call from Lee, who patched Smiley into a three-way call so that McDonald and Smiley could find each other.

When Smiley got in the car he angrily told McDonald that it had been a "blank mission"—the only proceeds of the robbery were Wilkerson's cell phone and a small bag of marijuana. Smiley had been unable to find the safe. And Smiley told McDonald that "the dude that was asleep looked like he was reaching for something and he [Smiley] shot him."

Smiley testified in his own defense at trial. He acknowledged his familial relationship with McDonald and Lee and his friendship with "Big Jit" (whose actual name is Casey Bisbee), but he denied having been part of any plan to rob Drake. He further denied even being in Lakeland on the night of the murder.

On October 6, 2016, the jury found Smiley guilty of the first-degree felony murder of Clifford Drake, robbery with a firearm of Mark Wilkerson, aggravated assault with a firearm of Mark Wilkerson, and burglary of a dwelling with an assault or battery while armed with a firearm, all as charged in the indictment. John McDonald, Samantha Lee, and Casey Bisbee were not charged with crimes for their roles in the Drake murder.

II. Penalty Phase

The penalty phase began in April 2017 and was conducted before a different jury. As to the State's case, the most significant difference from the guilt phase is that the prosecution was able to present evidence about Smiley's prior conviction for the March 2013 first-degree murder of Carmen Riley. John McDonald described circumstances similar to those surrounding the Drake murder. Riley lived in the same neighborhood as Drake and McDonald's mother. McDonald selected her as a target and planned the robbery with Smiley and Samantha Lee. Smiley's role was to carry out the robbery, McDonald was the driver. After the robbery and murder, Smiley told McDonald that he shot Riley because she refused to cooperate. Smiley shot Riley with the same revolver he would use weeks later to kill Drake.

The defense case for mitigation focused largely on the effects of two ruptured brain aneurysms that Smiley suffered in September 2012, less than a year before he murdered Drake and Riley. Dr. Alan Waldman, a neuropsychiatrist, testified that bleeding from the ruptured aneurysms had caused severe damage to the parts of Smiley's brain that affect behavior and impulse control. In particular, according to Waldman, the brain damage resulted in Smiley having problems with rage control. Dr. Hartig, a psychologist hired by the defense but whom the State called as a rebuttal witness, similarly testified that Smiley's ruptured aneurysms constituted a severe brain trauma. (Hartig also testified that Smiley generally performed well on the personality tests she administered, and that Smiley scored 114 on an IQ test.)

The defense complemented the experts’ testimony with testimony from Smiley's mother, from Michael Clayton (a former pro football player who had mentored Smiley for years), and from Samantha Lee, all of whom testified that Smiley's personality changed significantly after the ruptured aneurysms. According to these witnesses, Smiley developed a bad temper and mood swings, and he would rant on social media over relatively insignificant matters—all of which was out of character for him. Lee acknowledged that Smiley had a temper and got in fights before the aneurysms, but she testified that post-aneurysm Smiley was "just wild." Smiley's mother acknowledged that she had not personally observed Smiley's personality changes, but she trusted what she had heard about Smiley's behavior from her own mother and from Lee.

The defense witnesses testified that, while Smiley's childhood had not been without its difficulties, his post-aneurysm behavior was very inconsistent with his past. Smiley did not have a relationship with his biological father until age 18, but he was close with his stepfather, who was married to Smiley's mother from Smiley's infancy and treated him as his own child. Smiley attended a private Christian school and did well academically and in extracurricular activities. Smiley's mother and stepfather were devoutly religious and strict, and the stepfather disciplined Smiley with corporal punishment—Smiley told Dr. Hartig that it did not rise to the level of abuse, but Smiley thought it was overly harsh compared to how his siblings were treated. Smiley learned construction from his stepfather, which enabled Smiley to work home renovation jobs for his mentor. At age 16, Smiley moved out of his parents’ house because he no longer wanted to live under their strict rules. From then on he lived intermittently with Samantha Lee, with his girlfriend, with friends and other relatives, or in houses that he was working on. Smiley drank and smoked marijuana, but he did not have a history of significant violence before the aneurysms.

The defense's penalty phase closing argument had two principal themes. First, that Smiley's brain damage and its effects on his temper and impulse control had led to behavior that was inconsistent with his essential character. And second, that the jury should take into account that John McDonald and Samantha Lee had escaped responsibility for their role in the Drake and Riley murders, even though (according to the defense) they had taken advantage of Smiley and led him to commit those crimes. Defense counsel summed up his argument saying: "There's simply this: Are these mitigating...