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Smith v. State12/22/2000
kill negates application of this circumstance.
In support of these two contentions, the appellant directs us to the comments of the trial court and the prosecutor during a charge conference just before the sentencing phase and also to the findings in the trial court's sentencing order in reference to the statutory mitigating circumstance listed at § 13A-5-51(6). The prosecutor vigorously, but erroneously, argued that the defense "gave up" this mitigating circumstance when it withdrew the defense of mental disease or defect at the guilt phase and that to be considered in mitigation, a substantially impaired capacity must rise to the level of a mental disease or defect. The defense countered this argument by correctly asserting that substantially impaired capacity can be less than a mental disease or defect that would rise to the level of a defense and that, in this case, the evidence of the appellant's mental retardation, his intoxication at the time of the crime, and duress presented a jury question. In response to this discussion, the trial court initially denied the appellant's request to submit § 13A-5-51(6) to the jury, stating, "Number Six is put there specifically for the defense of mental disease or defect." (R. 1921-22.) However, after a discussion on whether the appellant could introduce evidence concerning his immediate family members (see Part IX, supra), the following occurred:
"THE COURT: Okay. This is what I'm going to do. I don't really think it's admissible to a certain extent, again, since the plea of mental disease or defect has been withdrawn. But to make very sure about it, I'm going to let you put it in.
"[DEFENSE COUNSEL]: ... Subsection Six?
"THE COURT: (Positive response.)" (R. 1927.)
Although the trial court indicated that it would submit the mitigating circumstance to the jury for its consideration, it did not do so. No objection was raised by defense counsel. Although the trial court did not instruct the jury on this circumstance, its sentencing order addressed § 13A-5-51(6), as follows: "The capacity of Mr. Smith to appreciate the criminality of his conduct. No evidence supports this contention. In fact, the evidence shows just the opposite, i.e., that the Defendant intended to kill the three victims." (C.R. 264.)
In a capital case, the sentencer may not, as a matter of law, preclude or refuse to consider any relevant mitigating factor offered by a defendant. Eddings v. Oklahoma, 455 U.S. 104 (1982); Lockett v. Ohio, 438 U.S. 621 (1978); Clisby v. State, 456 So. 2d 99 (Ala. Crim. App. 1983). The trial court may determine the weight to be given mitigating evidence, but may not exclude it from consideration. Eddings v. Oklahoma.
The proposed mitigating facts that the appellant claimed were supported by the evidence and pertinent to § 13A-5-51(6) are that he is mildly mentally retarded; that he has a full scale IQ of 72, a verbal IQ of 76, and a performance IQ of 69; that he has a low frustration tolerance and poor impulse control; that he has the learning capacity of a child in third grade; that he came from a dysfunctional home; that he had habitually used alcohol and drugs, beginning at an early age; that he was highly intoxicated, at the time of the commission of the offense, as a result of ingesting alcohol and drugs; that he was under duress at the time of the offense because of threats against his mother; and that he acted as a 12-year-old with regard to the capacity to form the intent to commit the crime charged.
We cannot ascertain from the trial court's order whether the court disregarded all evidence relevant to § 13A-5-51(6), and if it did so, whether it dismissed the evidenc
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