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Smith v. State12/22/2000
455 U.S. 104, 112-116 (1982)(death sentence reversed; evidence of defendant's turbulent family history erroneously excluded from consideration). Equally vital to the capital- sentencing determination is that the jury be properly instructed on the mitigating circumstances. E.g., Ex parte Stewart, 659 So. 2d 122, 127 (Ala. 1993). The sentencing phase in this case contained serious flaws in both respects. The court failed to admit evidence the appellant sought to have admitted surrounding the appellant's grossly dysfunctional family (Part IX of the majority opinion), and the court failed to specifically instruct the jury on the mitigating circumstance set out at § 13A-5-51(6), Ala. Code 1975, even though it agreed to give the instruction (R. 1927) (Part X).
At the sentencing hearing, the prosecutor argued that Smith should not be permitted to present the wealth of evidence concerning his family circumstances and background:
"They can't get into that. They can't get into his brother is mentally retarded. They can't get into his sister tried to commit suicide. They can't get into that his sister has an alcohol problem or attempted suicide. Mr. Smith's cousin ... was in a mental institution. That is not relevant at all. They can put up this defendant and his conditions, but not the family." (R. 1923.)
The prosecutor further argued:
"They can put in things about him, that he has got a drinking problem, he's got a mental problem, he tried to kill himself...; but things about the family are not relevant to mitigating circumstances." (R. 1932-1933.)
The majority correctly notes that § 13A-5-52, Ala. Code 1975, provides that mitigating circumstances shall include "any aspect of the defendant's character or record," and other relevant mitigating circumstances. The majority further acknowledges that the United States Supreme Court has stated that evidence about a capital defendant's background and character, including a disadvantaged background and history of mental problems, is relevant to the sentencing determination. Penry v. Lynaugh, 492 U.S. 302, 317-319 (1992). Because Smith was precluded from presenting and fully developing this evidence, he was, I believe, essentially precluded from presenting his case in mitigation, and he is entitled to a new sentencing hearing before a jury.
The trial court's failure to instruct the jury on § 13A-5-51(6), Ala. Code 1975, the statutory mitigating circumstance regarding the defendant's capacity to appreciate the criminality of his conduct or conform to the requirements of the law was, I believe, also reversible error, even though defense counsel failed to object. Alabama appellate courts have previously recognized:
" he sentencing stage is a `due process hearing of the highest magnitude,' Richardson v. State, 376 So.2d 205, 224 (Ala.Cr.App.1978), aff'd[,] 376 So.2d 228 (Ala.1979), and that a reviewing court must carefully analyze the jury instructions to determine if the trial court has fulfilled its duty to properly inform the jury. Proper instructions are absolutely indispensable if the jury is to effectively perform its role in this crucial proceeding." Ex parte Stewart, 659 So. 2d 122, 127 (Ala. 1993)(footnote omitted)(quoted in Thomas v. State, [Ms. CR-96-0876, June 30, 2000] ___ So. 2d ___ (Ala. Crim. App. 2000)).
The trial court here agreed to instruct the jury on this mitigating circumstance, but then failed to do so. While the majority correctly observes that the jury charge as a whole referred to some of the mental health mitigating evidence presented, I disagree with its conclusion that a specific instruction on this statutory mitigating circumstance "would have had no mea
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