Released for Publication January 20, 2015.
Appeal from Morgan Circuit Court. (CC-03-1098). Trial Judge: Sherrie W. Paler, Judge.
REVERSED AND REMANDED.
For Appellant: Bryan A. Stevenson, Randall S. Susskind, Kathryn Elizabeth Miller, Montgomery.
For Appellee: Luther Strange, Attorney General, Kevin Wayne Blackburn, Assistant Attorney General.
Windom, P.J., and Welch, Kellum, and Joiner, JJ., concur.
Marqueze Taron Smith was convicted of two counts of murder made capital because the murder was committed during a kidnapping in the first degree or an attempt thereof, see § 13A-5-40(a)(1), Ala. Code 1975, and because the murder was committed during a robbery in the first degree or an attempt thereof, see § 13A-5-40(a)(2), Ala. Code 1975. The jury, by a vote of 11 to 1, recommended that Smith be sentenced to death. The trial court followed the jury's recommendation and sentenced Smith to death. Smith appeals his convictions and his sentences.
At trial, the State set forth evidence indicating the following.
Around 6 a.m. on August 12, 2003, a few employees of Interstate Steel discovered the body of a deceased person lying across a dirt road near the business. That deceased person was later identified as Jeremy Black. When Black's body was discovered, he was wearing multiple T-shirts, a pair of boxer shorts, and one sock that had been partially pulled off his right foot. He did not have a sock on his left foot, and he did not have on any shoes. Several bullets and shell casings were found near Black's body. Black's vehicle was discovered about a mile from where his body was discovered. When his vehicle was discovered, the glove compartment was open, and investigators determined that several items were missing from the vehicle, including the radio and license plate.
An autopsy performed by a forensic pathologist with the Alabama Department of Forensic Sciences revealed that Black died from multiple gunshot wounds. Two gunshots had entered Black's back and exited his chest, and seven gunshots had entered Black's chest and exited his back. One of the gunshot entry wounds in Black's back was described as a " near contact" wound and the other entry wound in Black's back was described as a " contact" wound. The exit wounds in Black's back were " shored," which indicated that Black's back was in
contact with a hard surface when the bullets exited his back.
A firearms examiner with the Alabama Department of Forensic Sciences examined a .45 caliber Colt brand handgun, a .45 caliber Ruger brand handgun, and 9 bullets or bullet fragments recovered during the investigation into Black's murder. The firearms examiner determined that two of those bullets had been fired from the Ruger handgun and that five of those bullets had been fired from the Colt handgun. One bullet could not be conclusively matched to either handgun because the bullet was damaged, but it had the same rifling series as the Colt handgun. One bullet fragment did not have any rifling that could be examined; thus, it could not be matched to either handgun.
During the morning of August 11, 2003, Smith, Christopher Smiley, and Smith's uncle, Patrick Smith (" Patrick" ), were hanging out and drinking alcohol at a house that belonged to Smith's grandmother, Novella Smith (" Novella" ). They parted ways around 11 a.m., but they reunited that night. Early during the night of August 11, 2003, Smith, Smiley, and Patrick were hanging out with other people at Smiley's cousin's house. They were drinking alcohol and smoking marijuana. Smith borrowed Smiley's phone and used it to call Black. Following the phone call, Black came to Smith's location and sold marijuana to him. Around midnight, after moving to a different location, Smith again used Smiley's phone to call Black. Then, Smiley, Smith, and Patrick went to Maggie Mae Johnson's apartment. Johnson was Patrick's girlfriend. Smiley asked Patrick and Smith whether they wanted him to give them a ride to Novella's house. Patrick responded: " No, I'm going to stay here. I got to get me somebody. I need some money." (R. 1064.) Shortly thereafter, Smiley left and went to the parking lot of the local Wal-Mart discount store to talk to a woman he had met a couple of days earlier.
According to Smiley's trial testimony, after he finished talking to the woman and was leaving the Wal-Mart parking lot, he received a telephone call from Patrick, but the call was quickly disconnected. Then, around 1:30 a.m., Smiley received a phone call from Smith. Smith asked Smiley to pick him and Patrick up at a particular gas station. When Smiley arrived at that gas station, he saw Patrick and Patrick got in Smiley's vehicle. Patrick then instructed Smiley to go to another location. Pursuant to Patrick's instructions, Smiley turned down a dirt road and parked his vehicle. Black's vehicle and Smith were there. Patrick and Smith then began taking items from Black's vehicle and putting them into Smiley's vehicle. After Patrick, Smith, and Smiley left that location in Smiley's vehicle, Patrick instructed Smiley to go to another location. As they drove by that location, Patrick pointed to a body lying on the ground. Smiley then asked Patrick whether he had shot somebody. Patrick responded by pulling out a handgun and asking Smiley whether he thought " this [was] a mother fucking game." (R. 1078.) Patrick then told Smiley that, shortly before Black died, Black said that he had a little girl and he asked Smith " why you doing this." (R. 1079.) Smiley testified that, after they drove by Black's body and Patrick had responded to Smiley's question, Smith told Smiley that Patrick shot Black two times before Patrick's gun jammed and that Smith then pushed Patrick out of the way and " just started shooting."
(R. 1080.) Smith also told Smiley that Black was " squirming like a worm." (R. 1081.) Smiley, Patrick, and Smith then went to Novella's house. After a short time, they left Novella's house and went to Johnson's apartment. At Johnson's apartment, they unloaded the items that had been taken from Black's vehicle. After the items were unloaded, Smiley and Smith went to Smiley's house while Patrick stayed at Johnson's apartment.
At trial, Smiley identified the Colt brand handgun used in Black's murder as a gun that he had previously owned. Smiley testified that, before Black's murder, he had given that gun to Patrick to clean. However, Smiley testified that, after he and Smith left Johnson's apartment on the night of the murder, he saw Smith with the Colt handgun in his possession. Specifically, Smiley testified that, when Smith got out of Smiley's vehicle, the gun was lying on the seat where Smith had been sitting. Smiley further testified that he grabbed the gun off the seat and took it inside his house.
The morning after the murder, an investigator called Smiley's phone because the investigator had received a copy of the telephone numbers that had recently called Black's cell phone, and one of those numbers belonged to Smiley. The investigator asked Smiley to come to the police station and talk to investigators. Smiley voluntarily complied with that request. At trial, Smiley testified that, before he went to talk to the investigators, he put the Colt handgun in a Wal-Mart bag and gave it to Smith. Smiley then gave Smith a ride to Novella's house. Smiley testified that, when he dropped Smith off at Novella's house, Smith did not go inside the house. Instead, Smith went around the right side of the house.
At trial, Smiley admitted that, on August 12 and 13, 2003, he gave two separate statements to investigators that did not implicate Smith in Black's murder. Those statements implicated only Patrick. In fact, Smiley's August 12 statement did not mention Smith, and the August 13 statement mentioned only that Smiley and Smith had hung out on the night of the murder. However, on August 15, 2003, Smiley gave a statement to investigators that implicated Smith in Black's murder. Also, on November 8, 2011, Smiley gave another statement that implicated Smith. At trial, Smiley testified that he was telling the truth at trial and that, to the extent his trial testimony did not match his previous statements, he had lied in his previous statements.
Based on his participation in the crime, Smiley was originally charged with capital murder. However, in September 2009, a little less than 3 years before Smith's trial, Smiley pleaded guilty to second-degree robbery and was sentenced, as a habitual offender, to 20 years in prison. As part of Smiley's plea, he agreed to testify at Smith's trial and to tell the truth.
In August 2003, Angela Delores Steel Smith (" Angela" ), Smith's aunt and Patrick's sister, discovered a handgun in the outside storage room of her apartment. Angela testified that the handgun did not belong to her and that, after discovering the handgun, she immediately telephoned the police to inform them of her discovery. That handgun was later identified as the .45 caliber Colt handgun that was involved in Black's murder. Angela also testified that, in August 2003, her mother, Novella, lived about half of a block away from her.
In August 2003, law-enforcement officers went to Johnson's apartment looking for Patrick. Johnson allowed the officers to come inside the apartment, and they found Patrick hiding in an upstairs bedroom. A .45 caliber Ruger brand handgun and several items of personal property
that had belonged to Black were found near where Patrick was hiding. That handgun was later identified as the Ruger handgun that was involved in Black's murder. These items of personal property included various papers with Black's or Black's mother's name on them, stereo equipment from Black's vehicle, and clothing items that belonged to Black.
On August 14, 2003, Smith gave the following statement to law-enforcement officers:
" On the night of Monday, August the 11th, 2003, at about 11:00-12:00 p.m., me and my uncle, Patrick Napoleon Smith, were standing outside of the Cardinal Apartments when my uncle asked me to call someone to buy some weed. At first I tried to call someone else, but I could not reach him. I called Jeremy Black, who I know and have known since I was about five.
" I contacted Jeremy and told him that I needed a $20.00 sack, meaning $20.00 worth of marijuana.
" I told him that I did not have any transportation, so he said that he would bring it right over.
" We waited until he arrived in about 15-20 minutes.
" After Jeremy arrived, my uncle asked Jeremy to drive us over to his cousin's house. My uncle explained that his cousin lived somewhere near Blue Bird Apartments.
" Jeremy agreed to take us over there. So he got out and let us into his whitish looking Monte Carlo or Cutlas car.
" He told us that the passenger's side door didn't open. I entered the backseat, and my uncle got in the front passenger's seat.
" Jeremy drove to a point behind Blue Bird Apartments, then stopped and started dialing numbers on his cell phone.
" My Uncle Patrick pulled out his pistol, which was grayish black with a clip. Then he told Jeremy to 'get right,' which meant to give up the money or not make any foolish moves.
" My uncle then told Jeremy to get into the backseat. Jeremy at first raised his hands and seemed to briefly resist my uncle's demands, but then he got out of the car, and my uncle climbed over into the driver's seat as I climbed up front into the passenger's seat.
" My uncle told Jeremy to lay down, and he did.
" Uncle Patrick then drove to Trinity. While we were on the way my uncle told Jeremy that 'You need to watch the bitches that you fuck with!'
" We went onto Woodall Road and turned onto Trinity Lane. After we crossed the railroad tracks and made a left turn, my uncle drove on down and turned right into a path. He then turned the lights off and stopped the car. He got out of the car and told Jeremy to get out and to lay on the ground face down.
" Before Jeremy got out of the car he said, 'Man, I have got a little girl!' He also called out my name, 'Marqueze!' But I didn't say anything, because I feared what my uncle may have done.
" Then Jeremy got out of the car and walked towards the front of the car, and he laid face down on the ground.
" I began getting out of the car as he walked forward.
" My uncle then got on top of Jeremy and placed his knee on his back.
" I then went over to my uncle and grabbed his shoulder and told him, ...