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01/27/95 EX PARTE ARTHUR JAMES SMILEY (RE ARTHUR

January 27, 1995

EX PARTE ARTHUR JAMES SMILEY (RE: ARTHUR JAMES SMILEY
v.
STATE)



PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS. (Jefferson Circuit Court, CC-92-2776, Court of Criminal Appeals, CR-92-722). James H. Hard IV, Trial Judge.

As Amended. Released for Publication April 25, 1995.

Almon, Houston, Kennedy, Ingram, and Cook, JJ., concur. Maddox, J., Dissents.

PER CURIAM.

We granted certiorari review in order to determine whether the evidence was sufficient to support the jury's verdict. We hold that it was not.

Arthur James Smiley was convicted of murder and was sentenced to 20 years' imprisonment. The Court of Criminal Appeals affirmed the judgment of conviction. Smiley v. State, [Ms. CR-92-722, August 13, 1993] 655 So. 2d 1074 (Ala.Crim.App. 1993).

A summary of the facts follows: The victim, Beatrice Brown, was living with Smiley's brother in a "high crime area" in Birmingham, Alabama. On July 20, 1991, the brother telephoned Smiley at his house and asked him to come and visit with him and the victim. Smiley arrived at his brother's house sometime that afternoon. Smiley, his brother, and the victim sat on the front porch, talking and drinking beer and whiskey.

Between 7:00 and 8:00 p.m., Smiley, his brother, and the victim left the brother's house in Smiley's automobile. The three went to a "shot house" in Ensley, where they continued to drink. Around midnight, the brother stated that he wanted to go home and get some rest because he had to work the next day. The victim did not want to leave the shot house at that time. According to the brother, he gave the victim a $100 bill and then he and Smiley left the shot house. Smiley told the victim he would come back to take her home.

Smiley's car overheated on the way to drop the brother at his house, so they stopped at a gasoline station to put water in the radiator. During the drive to the house, the brother told Smiley that he had given the victim $100 and that he was upset with the victim. This prompted a Discussion in which Smiley asked his brother whether life or money was more important. When they arrived at the house, Smiley asked a group of young men standing in front of an apartment building near the house whether they would rather have $100 or their lives. Smiley's brother responded "both of them."

According to the brother, he subsequently left the house and went to a friend's house. When he left the friend's house, he said, he "ran up on a lady friend" and they went to the Tourway Inn, where, he said, they spent the rest of the night. The police detective investigating the victim's death testified that the brother's name was on the register but that no time of arrival was noted on the register. The police detective acknowledged that someone else could have signed the register and that the brother could have signed the register and then left the motel. Apparently, the police did not attempt to contact the brother's "lady friend" for verification of the brother's alibi. Also, the brother testified that he knew of no reason why Smiley would want to harm the victim.

Smiley said he left his brother's house and returned to the shot house to pick up the victim, but that she was not there. He then went back to the brother's house. When Smiley arrived, his brother was not at the house. Smiley stayed and talked with the victim out on the porch. Later, they went inside and had sex. Afterwards, Smiley telephoned his wife and told her that he was coming home.

Smiley then got on an Interstate highway. His car overheated again, and he left the highway to look for a service station, but no stations were open. He said he went to a Waffle House restaurant to get change for a $5 bill. The police detective in charge of the investigation could not find a Waffle House restaurant in that area of town. However the officer did find an Omelette Shoppe restaurant in the area.

Smiley put some more water in the radiator and then went to Audrey Stewart's home. Smiley telephoned his wife from Stewart's house; then he spent the remainder of the night there. Audrey Stewart and her brother, both of whom lived in Audrey's home, testified at trial that Smiley was at Audrey's house from 3:00 a.m. until 9:30 or 10:00 a.m.

The forensic pathologist testified that the victim most likely died from strangulation. He also stated that her blood alcohol level was .235%, which indicates a significant degree of intoxication. The prosecutor did not ask the pathologist to estimate the time of death.

The forensic serologist testified that she analyzed vaginal, anal, and oral swabs taken from the victim's body. Semen found in the swabs was consistent with Smiley's DQ alpha blood type. She also stated that that blood type was consistent with the brother's blood type and with that of 1 out of every 15 black males. She could not ...


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