Smith v. State12/22/2000
l at age eight. Number twelve, [Smith] was sniffing gas and lacquer thinner at age nine or ten. Number thirteen, at age ten or eleven, Mr. Smith was sexually abused by his cousin. Number fourteen, Mr. Smith was in special education classes all his life and only finished the eighth grade. Next, that Mr. Smith has a history of excessive alcohol and drug abuse. Mr. Smith sniffed gas, lacquer thinner, and used marijuana, heroine , angel dust, acid, LSD, cocaine, Valium, Quaaludes, crack, rush, hash, alcohol, homebrew, and wine. Next, as a mitigating circumstance for you to consider, Mr. Smith can't read or write. ... Next, any other circumstance or circumstances arising from the evidence that you as jurors have noted and consider mitigating." (R. 2132-36; emphasis added.)
After receiving objections from counsel outside the jury's presence, the trial court instructed the jury as follows: "I was reading a charge here ... and ... I just put the wrong word in. Instead of, `You may consider all the evidence of mitigation,' the correct charge is, `You must consider all the evidence of mitigation.'" (R. 2142.) These instructions did not foreclose the jury's consideration of any mitigating evidence; instead, they directed the jury to base its decision on all of the evidence presented, including the evidence relevant to the appellant's allegedly substantially impaired capacity.
We further note that, although the trial court did not instruct the jury specifically on § 13A-5-51(6), the prosecutor noted in his opening statement to the jury-sentencing phase, as follows:
"I expect they will attempt to prove some mitigating circumstances to you. ... And they can follow the Code, what is mitigating, plus what other things that are relevant, whatever is relevant for you to consider. ....
"I expect ... they will try to show you mitigating circumstances, the defendant, listen to this now, the defendant had the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired. ou heard testimony from Dr. D'Enrico he wasn't impaired in any manner or fashion." (R. 1960-61; 1965-66.)
In addition, defense counsel, in his closing argument in the sentencing phase, argued the appellant's alleged mental deficiency, the fact that " is mind is fried on drugs and alcohol" (R. 2077); and the alleged duress exerted upon him.
After reviewing the entire record, we conclude that the trial court's failure to instruct the jury on the substantially-impaired- capacity statutory mitigating circumstance, under the facts and circumstances of this case, was not plain error: it did not adversely affect a substantial right of the appellant, nor did it prejudice the fairness, integrity, or outcome of the proceedings. The lack of an instruction on § 13A-5-51(6) did not preclude the jury from giving effect to the evidence relevant to that mitigating circumstance. Rather, considering the trial court's instructions in their entirety, the jury was required to give effect to all of the evidence presented. Cf. Gaddy v. State, 698 So. 2d 1100, 1142-44 (Ala. Crim. App. 1995), aff'd, 698 So. 2d 1150 (Ala. 1997) (the trial court's refusal to give the defendant's requested charge proposing specific non-statutory mitigating circumstances was harmless, in light of the entire instructions, including instructions on the jury's role in weighing the evidence and on what areas of the evidence were proper for finding mitigating circumstances).
Under the facts and jury instructions here, a specific instruction on § 13A-5-51(6) would have had no meaningful effect. An instruction would merely have related any relevant evidence
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