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Smith v. State12/22/2000
the appellant's answer was not excluded.) In addition, Probation Officer Buchannan read the following from the presentence report for the appellant's assault conviction: "There has been no discipline at home. Some of [his siblings] have been on probation, some are presently on probation, and some are in prison." (R. 1987.)
7. Failure of the appellant's parents to visit him during his incarceration for this crime: During the guilt phase, the appellant testified that neither parent had been to see him while in jail. (We question the relevance of this fact in mitigation of the offense.)
Thus, we find that the trial court allowed evidence as to all the alleged facts argued in brief except (1) any sibling's commitment to a mental institution, and (2) the attempted suicide of two siblings. Although the testimony did not include evidence of any sibling's commitment to a mental institution, D'Enrico testified that the appellant's brother J.S. had informed him that their brother D.S. took psychotropic medication and that he had been diagnosed as a schizophrenic. In regard to the absence of testimony regarding any sibling's commitment, we first note that the appellant made no offer of proof. Furthermore, the appellant's stated purpose for introducing the alleged evidence of any sibling's commitment was to show its effect of preventing the appellant from bonding with that sibling. Evidence of the enormous obstacles to the appellant's bonding with at least some of his siblings was strong. Therefore, any error in the exclusion proposed evidence regarding any sibling's commitment would have been harmless.
The appellant contends that testimony of suicide attempts by two siblings, which was not allowed, would have supported the genuineness of his attempted suicide. Without any offer of proof as to the catalysts of these attempted suicides or their effect, if any, on the appellant, we cannot conclude that this evidence would have been relevant. It was not offered that these attempts manifested an inherited mental disorder (which the appellant possibly shared) or some dysfunction arising from experiences in the home they once shared with the appellant. Moreover, we agree with the attorney general that the genuineness of the appellant's suicide attempt was not questioned. Thus, the trial court's exclusion of alleged evidence of siblings' suicide attempts did not prejudice the appellant. (We note that, curiously, the trial court instructed the jury that a circumstance it could consider as mitigating was that the appellant's older sister, D., "has an alcohol problem and has attempted suicide." (R. 2136.)) Although the appellant does not raise this question on appeal, we have noted it in our plain-error review -- whether the trial court committed reversible error in excluding evidence indicating that the appellant's sister was raped when he was 12 years old. The list of proposed non-statutory mitigating circumstances that the appellant wanted read to the jury in the trial court's oral charge included the following: "At age twelve (12) client, [D.], [M.] and [W.] were at home, [E.L.M.] came in and raped [M.], hit [W.] in the head with a frying pan. Mr. Smith was angry about the incident." (C.R. 232.) Evidence of this incident alone is not necessarily relevant: what makes the incident relevant is the effect this incident had upon the appellant's life. See State v. Simpson. The mere assertion that this incident angered the appellant gives no indication of how that anger impacted his life 13 years later. Moreover, the incident's relevance to the showing of the marked dysfunction of the appellant's family life is of little significance, because that dysfunction was established by overwhelming evidence. Thus, the
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