Smith v. State

79 So.3d 671

Patrick Napolean SMITH

v.STATE of Alabama.

CR–08–0369.

Court of Criminal Appeals of Alabama.

Feb. 5, 2010.

George W. Miller, Hartselle, for appellant.

Troy King, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.

KELLUM, Judge.

The appellant, Patrick Napolean Smith, was convicted of one count of murder made capital because it was committed during a first-degree robbery, see § 13A–5–40(a)(2), Ala.Code 1975, and one count of murder made capital because it was committed during a first-degree kidnapping, see § 13A–5–40(a)(1), Ala.Code 1975. The jury voted 8 to 4 in favor of life imprisonment, and the trial court sentenced Smith to life imprisonment without the possibility of parole.

The evidence presented by the State demonstrated the following pertinent facts. On the morning of August 12, 2003, the body of Jeremy Black was found near the Interstate Steel facility in Trinity. The body was lying on the gravel driveway of an abandoned house off Old Trinity Road. During its investigation, the Morgan County Sheriff's Department learned that this house was commonly used for drug sales and prostitution.

Medical examiners determined that Black's death was caused by multiple gunshot wounds. The examination of his body indicated that Black had been shot nine times; seven gunshots had been fired into Black's chest, exiting through his back, and two gunshot wounds had been fired into Black's back, exiting through his chest. The two gunshot wounds to Black's back were described as “contact wounds,” meaning the barrel of the gun was pressing against his skin when the gun fired. A small copper bullet fragment was recovered from Black's lung, and one intact copper-jacketed bullet was recovered from one of the exit wounds on Black's back. At the time his body was found, Black was wearing two t-shirts, a pair of boxer shorts, and one sock.

Tammy Sly, a firearms and tool-marks examiner with the Alabama Department of Forensic Sciences, examined bullets and cartridge cases recovered from the crime scene, bullets and bullet fragments recovered from Black's body, and two handguns—a Ruger .45 caliber pistol and a Colt .45 caliber pistol—discovered during the State's investigation. Sly determined that the bullets recovered from the crime scene had been fired from these two guns and the shell casings were from the Colt pistol. A bullet recovered from Black's body during the autopsy was determined to have been fired from the Colt pistol.

Sheriff Gregory Bartlett of Morgan County oversaw the investigation of Black's murder. Through the course of the investigation, the officers learned that Black was in the business of selling marijuana, and that he had planned to sell marijuana to Marqueze Smith and Patrick Smith the night he was murdered. Cellular telephone records for a cellular telephone belonging to Michelle Matthews, the girlfriend of Christopher Smiley, indicated that at 10:37 p.m. on August 11, 2003, calls were made from Matthews's phone to Black's phone, which account was in Black's mother's name. Multiple outgoing and incoming calls were logged between the two numbers on the report for late in the night of August 11 and early in the morning of August 12. Using the information obtained from the telephone records, an investigator placed a telephone call to one of the numbers found in the call log of Black's phone around the time of his death. The man who answered the phone identified himself as Smiley. The officer asked Smiley if he would come to the police station to speak with investigators, and Smiley complied.

Ondrama McDaniel Coffee, an acquaintance of Smith's, testified that she saw Patrick Smith, Marqueze Smith, and Christopher Smiley at her apartment complex, the Summer Place Apartments, in the early morning hours of August 12, 2003. Coffee first saw the three men standing outside the apartment of Kristen Jones, Marqueze Smith's girlfriend. According to Coffee, she saw Smiley's car leave the apartment complex at approximately 1:30 a.m. She testified that she could not tell who, if anyone, was in the car with Smiley, but said that neither Marqueze nor Patrick Smith were at the apartment complex after Smiley left.

Maggie Mae Johnson, a former girlfriend of Patrick Smith, testified that early in the morning on August 12, 2003, Patrick Smith let himself into Johnson's apartment with a key she had given him. Smith was carrying a bag at the time. One of the guns involved in the shooting was recovered in Johnson's apartment; Johnson testified that she did not know how the gun ended up in her apartment, nor did she know how the other items recovered from the upstairs room of her apartment, including stereo equipment and speakers from Black's automobile, got there. Johnson testified that during that time period, only Smith and she had access to the bedroom.

Lauren Allard lived with Black at the time he was killed. On the night he was killed, Allard recalled Black's receiving a telephone call around 10:30 p.m. or 11:00 p.m. When shown a picture of the interior of Black's Oldsmobile Cutlass automobile, Allard explained that the stereo and speakers were missing. Allard identified the stereo equipment recovered from Johnson's apartment as Black's stereo equipment. Allard admitted that Black occasionally sold drugs.

On August 13, 2003, the day after Black's body was discovered, Sheriff Bartlett, along with Investigator Terry Kelly and Sergeant John Bili of the Morgan County Sheriff's Office, arrested Smith at Johnson's apartment, read him his Miranda¹ rights, and informed him that they wanted to talk with him about Black's death. Sheriff Bartlett told Smith, “I need the gun,” and Smith told the officers the gun was in an upstairs room of the apartment. (R. 794.) Officer Kelly recovered the following in the closet of the room: a Ruger .45 caliber pistol; a Pioneer Premiere brand car stereo player; an Audiobox brand wooden speaker cabinet containing two 12–inch speakers; two American Pro Ban brand six-inch-by-nine-inch car stereo speakers; a Kenwood brand car stereo power amplifier; a Jensen brand 200–watt power amplifier; an owner's manual for a 1978 Oldsmobile Cutlas Sedan automobile—the brand and model of car driven by Black; an Alfa Insurance Company insurance card for the Oldsmobile sedan in the name of Connie Ann Black, Black's mother; title to the Oldsmobile in Black's name; a gym bag; a blue plastic bag that contained paperwork associated with Black; a pair of Nike brand tennis shoes; and some clothes.

Angela Steele, Smith's sister, telephoned the Morgan County Sheriff's Department in August 2003 to report that she had found a pistol while moving boxes in a storage room of her apartment. When the investigators searched the storage room, they recovered the following: a Colt .45 caliber pistol; a plastic bag in which the pistol was found; a pair of gloves; and a pair of work boots. Steele did not know who had stored the pistol in her apartment.

After both sides rested and the trial court instructed the jury on the applicable principles of law, the jury convicted Smith of two counts of capital murder—counts I and III—as charged in his indictment. Smith appealed.

I.

Smith argues that the verdict forms given to the jury by the trial court suggested his guilt and that his convictions should be reversed for that reason. Specifically, Smith argues that the verdict form listed “Guilty” before “Not Guilty”; thus, Smith argues, the order in which the verdicts were listed suggested his guilt.

After the charge conference, the following discussion took place outside the presence of the jury:

“[THE COURT]: And for the record, [your] objection was as to the order in which I listed the guilty and not guilty.

“[Defense Counsel]: Yes, yes. And several reasons. One is that the order in which they appear on the verdict form may be taken as jurors as a comment on the—the Court commenting on the evidence. And it could be taken by the jury as an instruction that, well, I think he is guilty, so that is your first choice.

“The second objection is that in the weighing of the evidence they don't first go to see if he is guilty, as my understanding. They first go to see if the evidence has overcome his presumption of innocence. So the first choice would be not guilty. And if they cannot arrive at that, then they start evaluating or weighing the evidence to determine whether or not he is guilty and of what charge.

“....

“[THE COURT]: Overruled.”

(R. 1316–17.) After the trial court instructed the jury on the applicable law, Smith once again raised the issue of the order of the potential verdicts on the forms given to the jury. The trial court then gave the jury the following instruction: “For your convenience, the Court prepared for your use in the case three forms of the verdict. No inferences are to be drawn by you from the fact that the Court has supplied you with these forms or from the order in which your choices are listed on the forms.” (R. 1432.)

“A trial court has broad discretion in formulating its jury instructions, provided those instructions accurately reflect the law and the facts in the case.” Ingram v. State, 779 So.2d 1225, 1258 (Ala.Crim.App.1999), citing Raper v. State, 584 So.2d 544 (Ala.Crim.App.1991).

We cannot assume that the jurors presumed Smith's guilt from the order of the verdicts on the forms given to the jury by the trial court. To do so would require us to presume that the jurors completely disregarded the trial court's supplemental instruction not to draw inferences from the order of the verdict choices listed on the forms. See, Brooks v. State, 973 So.2d 380, 409 (Ala.Crim.App.2007) (“It is well settled that jurors are presumed to follow, not disregard, the trial court's instructions.”). Accordingly, this claim is without merit.

II.

Smith also argues that the trial court erroneously denied his motion for a judgment of acquittal with respect to both counts of capital murder. At ...