Nicholas Noelani D. Smith v. State of Alabama (Appeal from Calhoun Circuit Court: CC-11-494.80)

Rel: June 28, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.

Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,

Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections

may be made before the opinion is published in Southern Reporter.

Alabama Court of Criminal Appeals

OCTOBER TERM, 2023-2024

_________________________

CR-2022-0504

_________________________

Nicholas Noelani D. Smith

v.

State of Alabama

Appeal from Calhoun Circuit Court

(CC-11-494.80)

COLE, Judge.

Nicholas Noelani D. Smith appeals the death sentence imposed on

him after his second penalty-phase proceeding.

Facts and Procedural History

The facts presented in support of Smith's conviction have been

summarized by this Court, in part, as follows:

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"On the night of April 20, 2011, Kevin Thompson was

speaking on the telephone to Chris Wilkerson, his friend,

when he heard someone at his front door. Thompson opened

the door. Wilkerson heard Thompson say, ' "I didn't know you

was bringing all these people with you." ' (R. 1157.) Then, the

telephone call was disconnected. Wilkerson dialed

Thompson's telephone number and Thompson answered. The

telephone call was brief, with Thompson telling Wilkerson

that he would call him right back. A few hours passed without

Thompson returning the telephone call. Worried, Wilkerson

telephoned Thompson repeatedly around midnight, but

Thompson did not answer.

"Thompson's absence from his position as a teacher at

Wellborn Elementary School was noticed early the following

morning…. Multiple individuals attempted to contact

Thompson by telephone to no avail. Deputy Brendan Harris

of the Calhoun County Sheriff's Office, the school's resource

officer, was dispatched to an address to conduct a welfare

check. The address, though, led Deputy Harris to the

residence of Thompson's mother and sister, Frances and Rena

Curry. Deputy Harris was able to make contact with Rena

Curry and expressed to her the concern the staff at the

elementary school had regarding Thompson's absence.

"Rena Curry telephoned her mother and then drove to

Thompson's apartment. Two things stood out to Rena Curry

upon her arrival. First, Thompson's vehicle, a silver Honda

Civic, was not in the parking lot. Second, and more peculiar,

was a single shoe, which she believed belonged to Thompson,

lying in the parking lot. The front door to Thompson's

apartment was unlocked, and Rena Curry did not notice

anything amiss inside.

"Frances Curry telephoned the Jacksonville Police

Department and asked that an officer meet her at Thompson's

apartment. An officer responded to Thompson's apartment

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and briefly investigated before leaving. In Frances Curry's

opinion, law enforcement seemed unconcerned about

Thompson's whereabouts.

"Undeterred, Frances Curry continued her search for

her son. Frances Curry telephoned Thompson's bank and

learned that several withdrawals had been made from

Thompson's account the previous night at various financial

institutions. Frances Curry again contacted the Jacksonville

Police Department to inform them of the account activity.

"Officers obtained surveillance footage from the area

credit unions and banks where withdrawals had been made

that corresponded with the times of activity on Thompson's

account. Video from the Jacksonville branch of the Farmers

& Merchants Bank depicted a silver vehicle arriving at 10:19

p.m. A man wearing a baseball cap bearing a script 'A' made

multiple withdrawals from the bank's automatic-teller

machine ('ATM'). In an apparent attempt to obscure his

identity, the man held his left arm across his face; the

attempt, though, made visible a distinct tattoo on the man's

left hand. The video also appeared to depict a passenger in

the front seat of the vehicle aiming a rifle toward the backseat

of the vehicle. Photographs from the Jacksonville branch of

the Ft. McClellan Credit Union depicted what appeared to be

the same man make a withdrawal from the ATM at 10:26 p.m.

Photographs from the Anniston branch of the Ft. McClellan

Credit Union depicted a silver vehicle and a dark-colored

sport-utility vehicle arrive at 12:13 a.m. on April 21. There, a

man walked up to the ATM and made a withdrawal. Officers

presented photographs generated from the surveillance

footage to Frances Curry and Rena Curry to see if an

identification could be made. Rena Curry was able to identify

Tyrone Thompson. Rena Curry explained that Tyrone

Thompson was a family acquaintance whom Thompson had

known since the two were children. Thompson had recently

made contact with Tyrone Thompson after Tyrone

Thompson's latest release from incarceration….

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"Investigator Clint Parris of the Anniston Police

Department located Tyrone Thompson, and he agreed to be

interviewed. During an interview with Investigator Parris

and Investigator Joseph Martin of the Jacksonville Police

Department, Tyrone Thompson identified Smith as being

involved with Thompson's disappearance.

"Meanwhile, Cynthia Warf, who had been visiting her

husband, Andrew Jones, at the hospital, returned to her

residence to find multiple individuals in her husband's

garage. Warf saw Jessica Foster, her daughter; Whitney

Ledlow; Smith; and two other males, who were later identified

as Blake Hamilton and Teddy Lee Smith, in the garage with

a silver vehicle…. Smith had telephoned Ledlow at 3:00 a.m.

that morning to ask Foster if he could park his friend's vehicle

at Warf's house and Foster had agreed. When Smith met with

Ledlow and Foster later that morning, Smith told them he

needed someone to 'chop' the vehicle. At Ledlow's request,

Hamilton and Teddy Lee Smith agreed to take the vehicle

apart for scrap.

"Warf, assuming that the vehicle had been stolen, told

the individuals to remove the vehicle from the garage and

threatened to telephone law enforcement. As she walked back

to her residence, the individuals fled; Ledlow, Foster, and

Smith went in search of a trailer to remove the vehicle, which

by this point was not operable. Warf telephoned her husband

about the silver vehicle in his garage and he telephoned law

enforcement. When officers arrived at the garage, it was

apparent that the silver vehicle was in the process of being

dismantled. Assistant Chief Bill Wineman of the Jacksonville

Police Department testified that the silver vehicle was

registered to Thompson.

"Ledlow, Foster, and Smith planned to return to Warf's

house, tow the vehicle away, and burn it. That plan was

abandoned, though, because they saw a number of police

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vehicles as they neared Warf's house. Smith told Ledlow and

Foster that they 'were deeper in it than [they] thought,' so

they drove away. (R. 849.) Ledlow and Foster decided to

travel to Carrollton, Georgia, to give themselves time to

consider their next step. Ledlow stated that she did not know

what Smith had done to Thompson and described Smith's

behavior during the trip to Carrollton as 'perfectly fine.' (R.

853.) In Carrollton, Ledlow rented a motel room for the night.

There, Smith admitted to Ledlow and Foster that he had been

involved in a murder with Tyrone Thompson and Jovon

Dwayne Gaston. Smith detailed for them the crime and

generally described the location of Thompson's body. Ledlow

testified that she was initially incredulous because Smith was

so calm. The three then went to a Walmart retail store to

purchase clothes and toiletries. Ledlow playfully struck

Smith in the arm while at the store, and Smith responded,

'[D]on't you know you don't punch a killer.' (R. 857.)

"The following day, Warf contacted Investigator Parris

and informed him that Smith's black Ford Explorer sport-

utility vehicle was parked in a parking lot near her house.

She also told Investigator Parris that Foster, Ledlow, and

Smith were likely traveling in a GMC Yukon sport-utility

vehicle that belonged to her son. Meanwhile, Smith was

making arrangements to enter a drug-rehabilitation program

in Florida. Ledlow, Foster, and Smith left the motel in

Carrollton and traveled to the airport in Atlanta. On the way,

Ledlow saw a number of police vehicles following them. When

she parked near the taxi terminal at the airport, officers

swarmed their vehicle and took the three into custody.

"A search of the Yukon yielded a camera, which Foster

admitted was taken from Thompson's vehicle. Officers also

found a black baseball cap with a script 'A,' which appeared

to match the hat that was captured by the ATM surveillance

footage. Ledlow also admitted to taking a ring from

Thompson's vehicle, which she pawned for $200. Ledlow and

Foster provided lengthy statements to officers following their

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arrest, and Ledlow consented to a search of her property.

Officers recovered several items of evidentiary value on

Ledlow's property. From an exterior trash can, officers

recovered: a pair of Nike Air Jordan basketball shoes, which

had dried mud and vegetation stuck on the soles and several

reddish-brown stains on the uppers; cardboard packaging for

duct tape; a nearly expended roll of gray duct tape; and a t-

shirt wrapped around a serrated steak knife, which appeared

to bear a mixture of dried blood and mud on the blade and

handle. Inside Ledlow's house, officers recovered: a pair of

COOGI brand denim jeans, which bore dried mud; and a pair

of boxer shorts, which bore red stains. Subsequent DNA

testing established that the bloodstains found on the jeans,

knife, and basketball shoes were consistent with Thompson's

DNA. Smith was listed as a potential contributor for DNA

found inside the basketball shoes, and DNA on the inside of

the jeans was consistent with Smith's DNA.

"Officers obtained information that Thompson's body

had been disposed of down an embankment near a set of

guardrails on U.S. Highway 278. Based on that description,

Investigator Seth Rochester of the Cherokee County Sheriff's

Office was able to locate Thompson's body in the early

morning hours of April 23. Thompson's wrists were bound

with duct tape, and a subsequent analysis of the tape revealed

that the tape was consistent with the tape found in Ledlow's

trash can.

"The injuries suffered by Thompson were substantial.

Dr. Emily Ward, a state medical examiner with the Alabama

Department of Forensic Sciences, performed the autopsy on

Thompson's body. Dr. Ward noted a cut across the front of the

neck, which was deep enough to compromise the windpipe and

left jugular vein. This injury caused blood to aspirate into

Thompson's lungs. Thompson suffered four haphazard stab

wounds to the left side of his chest -- two pierced the heart and

all four pierced the left lung. Dr. Ward stated that the

orientation of the wounds suggested that Thompson's

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assailants were standing while Thompson was in a

submissive position on the ground. Thompson sustained a

contusion to the entire left side of his face, consistent with

punching or kicking. In Dr. Ward's opinion, this injury was

caused by a 'tremendous' amount of force. (R. 753.)

Thompson bore superficial abrasions on his extremities,

which could have been caused by falling; bruises to his wrists,

which were consistent with his wrists being bound by duct

tape; and defensive wounds to his palms. Dr. Ward stated

that, although the stab wounds and injury to the throat were

severally fatal, Thompson's death was not quick because

Thompson did not sustain arterial bleeding. In Dr. Ward's

opinion, Thompson would have been aware of his injuries and

would have experienced significant pain.

"Shane Golden, a forensic scientist with the Alabama

Department of Forensic Sciences, processed Smith's Explorer.

Golden applied a luminol reagent, which reacts with iron in

the hemoglobin of blood, to the interior of Smith's vehicle….

Subsequent DNA testing of blood swabs taken from Smith's

Explorer revealed that the samples were consistent with

Thompson's DNA.

"Golden noted a smell of cleaners in the Explorer. That

odor was explained by John Robinson, who owned a detail

shop. Robinson identified Smith as having come to his detail

shop on the morning of April 21. Smith's visit was memorable

to Robinson because Smith wanted only the interior of his

vehicle cleaned and because Smith emphasized that he

wanted the cleaning to be thorough. Robinson testified that

he saw red spatter on the carpet in the back seat and around

the console.

"Smith was extradited to Alabama on April 27. Upon

his return he waived his Miranda[ v. Arizona, 384 U.S. 436

(1966),] rights and provided a statement to Investigator

Parris and Investigator Martin, which gave the officers a

horrifying glimpse into Thompson's final hours. Smith's

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statement included several versions, each more incriminating

than the last. Smith stated that Tyrone Thompson had

telephoned him around 10:00 to 10:30 p.m. on April 20 to 'go

get some money' and drink some beer. (State's Exhibit 60.)

Tyrone Thompson picked up Gaston and Smith, and then the

three went to Thompson's apartment. Tyrone Thompson,

Gaston, and Smith walked up to the front door. Thompson

met the men at the front door and Tyrone Thompson took a

telephone from Thompson and smashed it. Thompson was

then taken to his vehicle. Gaston retrieved his rifle and all

four men entered Thompson's vehicle. Smith drove

Thompson's vehicle to a bank where he withdrew funds from

Thompson's account. The men returned to Thompson's

apartment, at which point Thompson was forced into the

trunk of his vehicle. After picking up Smith's Explorer, the

men took both vehicles to Tyrone Thompson's house, where

they drank beer and discussed who would kill Thompson.

Following an unsuccessful search for a chop shop in

Coldwater, Alabama, the men traveled to Warf's house and

then to a branch of the Ft. McClellan Credit Union.

Thompson's debit card did not work at the credit union, so the

men returned to Warf's house. After a brief trip to a Shell

gasoline station to purchase duct tape, the men returned to

Warf's house and used the tape to bind Thompson.

Thompson, though, had broken some of his bindings and was

screaming in the trunk, so he was moved to Smith's Explorer.

The men traveled to Piedmont, Alabama, and found an

isolated stretch of Highway 278. Thompson was escorted off

the road. Tyrone Thompson handed Smith a knife and held

Thompson's hands while Smith slit Thompson's throat.

Thompson, who was crying and pleading for help at this point,

was held down as a vehicle passed. Then Gaston took the

knife from Smith and stabbed Thompson several times in the

chest. Thompson was held down as another vehicle passed,

and then was held up and again stabbed by Gaston. After

pushing Thompson to the bottom of the embankment, Smith,

Tyrone Thompson, and Gaston left the scene.

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"In his statement, Smith attempted to marginalize his

role by suggesting that he unwittingly had become involved

in Thompson's murder and that he had been a reluctant

participant. This suggestion, however, was rebutted by other

evidence offered at trial."

Smith v. State, 246 So. 3d 1086, 1090-94 (Ala. Crim. App. 2017) (footnotes

omitted).

Smith was convicted of two counts of capital murder -- one count for

intentionally killing Kevin Thompson during a kidnapping, a violation of

§ 13A-5-40(a)(1), Ala. Code 1975, and one count for intentionally killing

Thompson during a robbery, a violation of § 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 Calhoun Circuit Court ("the trial court")

followed that recommendation. Smith appealed.

On March 17, 2017, this Court issued an opinion affirming Smith's

capital-murder convictions, but we remanded Smith's case to the trial

court for that court to conduct a new penalty-phase proceeding. 1 Id. This

Court found plain error during the penalty phase of Smith's trial when

the trial court allowed "the State to elicit and argue the opinions of

1The Alabama Supreme Court denied certiorari review on August

25, 2017, and this Court issued a certificate of judgment that same day,

which returned jurisdiction over Smith's case to the trial court. (C. 89.)

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Thompson's family to persuade the jury to recommend a sentence of

death." Smith, 246 So. 3d at 1114.

On remand, the trial court followed this Court's instructions and

conducted a second penalty-phase proceeding. During the second

penalty-phase proceeding, the State presented its evidence of

aggravating circumstances to the jury, and Smith presented his

mitigating circumstances. Specifically, Smith called Colby Kalani,

Elaine Young, Dr. Henry Griffith, and Joanne Terrell (his mitigation

specialist), and had the prior testimony of Smith's mother, Chrisandra

Smith, read to the jury.

Kalani, who is Smith's half-brother and who is 10 years older than

Smith, testified about them growing up in Hawaii and their "chaotic"

home life, which he described as more chaotic than being in a prison. (R.

584, 593.) Kalani said that there was no structure and that, when he was

10 years old, he would be left to watch Smith. (R. 586.) Kalani also said

that their mother was "extremely violent," and had stabbed both him and

Smith and had run over him with her car. (R. 588.) Kalani explained

that their mother "could also be the sweetest too though." (R. 592.)

Kalani admitted that he had physically and sexually abused Smith. (R.

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595.) As the trial court's sentencing order explained, Smith's mother's

testimony also outlined "the physical, mental, emotional abuse that was

persistent throughout Mr. Smith's life. Testimony of Elaine Young,

Children's advocacy Center Director, discussed the nature of his abuse

and the failure of the system to adequately protect Mr. Smith as a child."

(C. 238.)

At the conclusion of Smith's second penalty-phase proceeding, the

jury, in addition to the two aggravating factors proved beyond a

reasonable doubt at Smith's guilt-phase proceeding (i.e., that the capital

offense was committed during the course of a first-degree kidnapping and

that the capital offense was committed during the course of a first-degree

robbery), found that three other aggravating circumstances were proved

beyond a reasonable doubt -- namely, that Smith committed the capital

offenses after having been previously convicted of a felony involving the

use or threat of violence to a person, that Smith committed the capital

offenses while under a sentence of imprisonment, and that the capital

offense was especially heinous, atrocious, or cruel when compared to

other capital offenses. (C. 222-24.) In all, the jury found five aggravating

circumstances to exist beyond a reasonable doubt. The jury then

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recommended by a vote of 10 to 2 that Smith be sentenced to death. (C.

225.) The trial court, finding that "the aggravating circumstances

outweigh the mitigating circumstances," 2 followed the jury's

recommendation and sentenced Smith to death. (C. 236-38; R. 781-83.)

This appeal follows.

Standard of Review

Rule 45A, Ala. R. App. P., currently provides that,

"[i]n all cases in which the death penalty has been

imposed, the Court of Criminal Appeals may, but shall not be

obligated to, notice any plain error or defect in the proceedings

under review, whether or not brought to the attention of the

trial court, and take appropriate appellate action by reason

thereof, whenever such error has or probably has adversely

affected the substantial right of the appellant."

Before the current version of Rule 45A, the rules of preservation did not

apply in cases in which the death penalty had been imposed, and this

Court had to review the entire record for plain error. Although no longer

required, this Court recently explained that it would continue to review

the entire record for plain error in all cases in which the death penalty

2The

trial court did not find any additional aggravating

circumstances to exist. (C. 237.)

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has been imposed. See Iervolino v. State, [Ms. CR-21-0283, August 18,

2023] ___ So. 3d ___, ___ (Ala. Crim. App. 2023).

Because this Court already conducted plain-error review of Smith's

guilt-phase proceeding and affirmed his convictions for capital murder,

our plain-error review in this case is limited to Smith's second penalty-

phase proceeding. See Jerry Jerome Smith v. State, [Ms. CR-17-1014,

Sept. 2, 2022] ___ So. 3d ___, ___ n. 2 (Ala. Crim. App. 2022) ("This Court

has already affirmed Smith's capital-murder conviction; thus, it has

already reviewed the guilt phase of Smith's trial for plain error.

Consequently, we do not review for plain error anything that occurred

during the guilt phase of his trial. Instead, our plain-error review is

limited to Smith's sixth penalty-phase proceeding.").

In conducting plain-error review of Smith's second penalty-phase

proceeding, we apply the following standard:

" 'The standard of review in reviewing a claim under the

plain-error doctrine is stricter than the standard used in

reviewing an issue that was properly raised in the trial court

or on appeal.' Hall v. State, 820 So. 2d 113, 121 (Ala. Crim.

App. 1999), aff'd, 820 So. 2d 152 (Ala. 2001). Plain error is

'error that is so obvious that the failure to notice it would

seriously affect the fairness or integrity of the judicial

proceedings.' Ex parte Trawick, 698 So. 2d 162, 167 (Ala.

1997), modified on other grounds, Ex parte Wood, 715 So. 2d

819 (Ala. 1998). 'To rise to the level of plain error, the claimed

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error must not only seriously affect a defendant's "substantial

rights," but it must also have an unfair prejudicial impact on

the jury's deliberations.' Hyde v. State, 778 So. 2d 199, 209

(Ala. Crim. App. 1998), aff'd, 778 So. 2d 237 (Ala. 2000). 'The

plain error standard applies only where a particularly

egregious error occurred at trial and that error has or

probably has substantially prejudiced the defendant.' Ex

parte Trawick, 698 So. 2d at 167. '[P]lain error must be

obvious on the face of the record. A silent record, that is a

record that on its face contains no evidence to support the

alleged error, does not establish an obvious error.' Ex parte

Walker, 972 So. 2d 737, 753 (Ala. 2007). Thus, '[u]nder the

plain-error standard, the appellant must establish that an

obvious, indisputable error occurred, and he must establish

that the error adversely affected the outcome of the trial.'

Wilson v. State, 142 So. 3d 732, 751 (Ala. Crim. App. 2010).

'[T]he plain error exception to the contemporaneous-objection

rule is to be "used sparingly, solely in those circumstances in

which a miscarriage of justice would otherwise result." '

United States v. Young, 470 U.S. 1, 15, 105 S. Ct. 1038, 84 L.

Ed. 2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152,

163 n.14, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982))."

DeBlase v. State, 294 So. 3d 154, 182-83 (Ala. Crim. App. 2018).

Discussion

I.

Smith first argues that the circuit court erred when it admitted,

during Smith's second penalty-phase proceeding, "numerous

photographs of Kevin Thompson's body at the crime scene, as well as

graphic photographs taken at Mr. Thompson's autopsy." (Smith's brief,

p. 11.) Because Smith did not object to the State's presenting these

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complained-of photographs to the jury during Smith's second penalty-

phase proceeding, this Court reviews Smith's argument for plain error

only. See Rule 45A, Ala. R. App. P. We find no error, plain or otherwise,

in the admission of the complained-of photographs.

Indeed, Smith raised a similar argument in his original direct

appeal to this Court, which this Court also reviewed for plain error,

claiming that the admission of crime-scene and autopsy photographs at

the guilt phase of his trial was error because the photographs were

"irrelevant, cumulative, and highly prejudicial." Smith, 246 So. 3d at

1110. This Court explained:

" ' "Generally, photographs are admissible into evidence

in a criminal prosecution 'if they tend to prove or disprove

some disputed or material issue, to illustrate or elucidate

some other relevant fact or evidence, or to corroborate or

disprove some other evidence offered or to be offered, and

their admission is within the sound discretion of the trial

judge.' " Bankhead v. State, 585 So. 2d 97, 109 (Ala. Crim.

App. 1989), remanded on other grounds, 585 So. 2d 112 (Ala.

1991), aff'd on return to remand, 625 So. 2d 1141 (Ala. Crim.

App. 1992), rev'd, 625 So. 2d 1146 (Ala. 1993), quoting

Magwood v. State, 494 So. 2d 124, 141 (Ala. Crim. App. 1985),

aff'd, 494 So. 2d 154 (Ala. 1986). "Photographic exhibits are

admissible even though they may be cumulative,

demonstrative of undisputed facts, or gruesome." Williams v.

State, 506 So. 2d 368, 371 (Ala. Crim. App. 1986) (citations

omitted). In addition, "photographic evidence, if relevant, is

admissible even if it has a tendency to inflame the minds of

the jurors." Ex parte Siebert, 555 So. 2d 780, 784 (Ala. 1989).

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"This court has held that autopsy photographs, although

gruesome, are admissible to show the extent of a victim's

injuries." Ferguson v. State, 814 So. 2d 925, 944 (Ala. Crim.

App. 2000), aff'd, 814 So. 2d 970 (Ala. 2001). " '[A]utopsy

photographs depicting the character and location of wounds

on a victim's body are admissible even if they are gruesome,

cumulative, or relate to an undisputed matter.' " Jackson v.

State, 791 So. 2d 979, 1016 (Ala. Crim. App. 2000), quoting

Perkins v. State, 808 So. 2d 1041, 1108 (Ala. Crim. App. 1999),

aff'd, 808 So. 2d 1143 (Ala. 2001), judgment vacated on other

grounds, 536 U.S. 953 (2002), on remand to, 851 So. 2d 453

(Ala. 2002).' "

Smith v. State, 246 So. 3d 1086, 1111 (Ala. Crim. App. 2017) (quoting

Brooks v. State, 973 So. 2d 380, 393 (Ala. Crim. App. 2007)). This Court

rejected Smith's argument in his direct appeal, holding:

"The photographs were relevant and admissible to establish

the injuries Thompson sustained. See Gobble v. State, 104 So.

3d 920, 963-64 (Ala. Crim. App. 2010) (holding that autopsy

photographs were gruesome yet necessary to demonstrate to

the jury the extent of the victim's injuries (quoting Dabbs v.

State, 518 So. 2d 825, 829 (Ala. Crim. App. 1987))). 'The

photographs and testimony relating to postmortem animal

and insect activity were also relevant and admissible to

distinguish between the injuries [Smith] caused and the

injuries that he did not.' Kelley v. State, 246 So. 3d 1032, 1051

(Ala. Crim. App. 2014), rev'd in part on unrelated grounds by

Ex parte Kelley, 246 So. 3d 1068 (Ala. 2015). Although

unpleasant, the photographs and testimony were not unduly

gruesome or unfairly prejudicial. Consequently, this Court

holds that the prejudicial effect of the evidence was not

substantially outweighed by its prejudicial effect. Id.; see also

Rule 403, Ala. R. Evid. ('Although relevant, evidence may be

excluded if its probative value is substantially outweighed by

the danger of unfair prejudice.')."

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Smith, 246 So. 3d at 1111.

The only difference between Smith's argument on direct appeal and

his present argument is the proceeding at which the complained-of

photographs were admitted. The State merely reintroduced during the

second penalty-phase proceeding the same complained-of photographs

that were admitted during Smith's guilt-phase proceeding. Regarding

the admission of evidence at a penalty-phase proceeding, § 13A-5-45(c),

Ala. Code 1975, provides that

"evidence may be presented as to any matter that the court

deems relevant to sentence and shall include any matters

relating to the aggravating and mitigating circumstances

referred to in Sections 13A-5-49, 13A-5-51, and 13A-5-52.

Evidence presented at the trial of the case may be considered

insofar as it is relevant to the aggravating and mitigating

circumstances without the necessity of re-introducing that

evidence at the sentence hearing, unless the sentence hearing

is conducted before a trial judge other than the one before

whom the defendant was tried or a jury other than the trial

jury before which the defendant was tried."

In other words, because the State presented these complained-of

photographs during the guilt phase of Smith's trial, the State could re-

introduce the photographs to his new penalty-phase jury as long as the

photographs were "relevant to the aggravating and mitigating

circumstances."

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This Court, as it did in Smith's previous appeal, has again reviewed

the complained-of photographs, and to be sure, some of the photographs

are graphic and unpleasant. But the photographs show the extent of the

brutal injuries that Thompson sustained when Smith and his colleagues

murdered Thompson. The complained-of photographs are also probative

of the aggravating circumstance that the offense was especially heinous,

atrocious, or cruel when compared to other capital offenses when they are

considered in conjunction with Dr. Emily Ward's testimony about the

extent of Thompson's injuries and what he would have experienced as he

was being murdered, and her testimony that Thompson would not have

died quickly. Thus, the photographs were relevant to the State's proving

the aggravating circumstance that the capital offense was especially

heinous, atrocious, or cruel when compared to other capital offenses, and,

thus, were properly admitted. See Haney v. State, 603 So. 2d 368, 396

(Ala. Crim. App. 1991) ("The photographs depict the location of the

crimes, the manner in which it was carried out, and its viciousness, all of

which were highly relevant to the issues in the case. Moreover, the

photographs were relevant to corroborate or disprove other evidence in

the case. They were probative in proving the aggravating circumstance

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that the crimes were committed in an especially heinous, atrocious, or

cruel manner as compared to other capital offenses.").

Accordingly, Smith is due no relief on this claim.

II.

Next, Smith argues that the trial court erred "when it allowed the

State to introduce non-statutory aggravating factors to the jury through

its cross-examination of [his] psychological expert, Dr. Henry Griffith, on

subjects that exceeded the scope of any relevant issue in this case."

(Smith's brief, p. 17.) Smith also argues that the trial court "erred by

failing to instruct the jury not to consider [his] IQ of 128 or the absence

of evidence that [he] was 'clinically insane' in reaching their sentence."

(Smith's brief, p. 21.) But Smith neither objected to the State's questions

posed to Dr. Griffith nor to the trial court's "failure to instruct" the jury

about his IQ or lack of evidence of him being "clinically insane." Thus,

Smith's arguments are reviewed for plain error only. After reviewing the

record and the arguments presented by Smith and the State, we hold that

there was no plain error either in the State's cross-examination of Dr.

Griffith or in the trial court's failing to sua sponte instruct the jury not to

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consider Smith's IQ or the absence of evidence that he was "clinically

insane."

Accordingly, Smith is due no relief on these claims.

III.

Smith argues that the trial court erred when it denied his motion

to continue his penalty-phase trial from March 14, 2022, "until a date

early in May" because, he says, "COVID-19 and related restrictions had

impeded the defense's ability to prepare its mitigation case in advance of

[his] sentencing." (Smith's brief, p. 23.)

It is well settled that

" ' " '[a] motion for a continuance is

addressed to the discretion of the court

and the court's ruling on it will not be

disturbed unless there is an abuse of

discretion. Fletcher v. State, 291 Ala.

67, 277 So. 2d 882 (1973). If the

following principles are satisfied, a

trial court should grant a motion for

continuance on the ground that a

witness or evidence is absent: (1) the

expected evidence must be material

and competent; (2) there must be a

probability that the evidence will be

forthcoming if the case is continued;

and (3) the moving party must have

exercised due diligence to secure the

evidence. Knowles v. Blue, 209 Ala. 27,

32, 95 So. 481, 485-86 (1923).' "

20

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" 'Fortenberry v. State, 545 So. 2d 129, 138 (Ala.

Crim. App. 1988).'

"Ex parte Clark, 728 So. 2d 1126, 1134 (Ala. 1998) (quoting

Ex parte Saranthus, 501 So. 2d 1256, 1257 (Ala. 1986)). See

also Scott v. State, 937 So. 2d 1065, 1076 (Ala. Crim. App.

2005)."

Eatmon v. State, 992 So. 2d 64, 68 (Ala. Crim. App. 2007). " ' "There are

no mechanical tests for deciding when a denial of a continuance is so

arbitrary as to violate due process" ' "; rather, " ' "[t]he answer must be

found in the circumstances present in every case, particularly in the

reasons presented to the trial judge at the time the request is denied." ' "

Id. at 68 (quoting Glass v. State, 557 So. 2d 845, 848 (Ala. Crim. App.

1990), quoting in turn Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841,

850, 11 L. Ed. 2d 921 (1964)).

Moreover, reversing a death sentence because a trial court denied

a motion to continue " ' "requires 'a positive demonstration of abuse of

judicial discretion.' Clayton v. State, 45 Ala. App. 127, 129, 226 So. 2d

671, 672 (1969)." Beauregard v. State, 372 So. 2d 37, 43 (Ala. Cr. App.),

cert. denied, 372 So. 2d 44 (Ala.1979).' " Eatmon, 992 So. 2d at 68

(quoting McGlown v. State, 598 So. 2d 1027, 1029 (Ala. Crim. App. 1992)).

And " ' "[n]ormally, a reviewing court determines the correctness of a trial

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court's ruling 'as of the time when it was made and according to what the

record shows was before the lower court at that time.' " Henry v. State,

468 So. 2d 896, 899 (Ala. Cr. App. 1984), cert. denied, 468 So. 2d 902 (Ala.

1985).' " Eatmon, 992 So. 2d at 68 (quoting Dozier v. State, 630 So. 2d

137, 140 (Ala. Crim. App. 1993)).

On appeal, Smith argues that the trial court erred when it denied

his motion to continue for two reasons: (1) his "trial counsel's ability to

develop [his] mitigation case and prepare for his sentencing was inhibited

by their inadequate access to [him] and Mr. Kalani as a result of COVID-

19 and related restrictions" (Smith's brief, p. 25); and (2) "the short

continuance requested by [him] was necessary to permit [his] mitigation

specialist, Joanne Terrell, sufficient time to complete her investigation

and assessment, which had been impeded by COVID and her need to

limit exposure to COVID in order to protect her hospitalized husband"

(Smith's brief, p. 26). Smith's arguments are without merit.

To provide context to Smith's motion to continue his second-penalty

phase proceeding, we first set out some additional procedural history to

this case: Smith was arrested for murdering Thompson in April 2011, and

he was indicted for capital murder in May 2011. Smith was subsequently

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convicted of capital murder and sentenced to death. Smith's sentences of

death, however, were reversed on March 17, 2017, Smith v. State, 246

So. 3d 1086 (Ala. Crim. App. 2017), and this Court issued a certificate of

judgment on August 25, 2017, returning jurisdiction of Smith's case to

the trial court for that court to conduct a second penalty-phase

proceeding. (C. 89.) Over two years later, on September 25, 2019, Smith

filed a "Motion for Expenses to Hire a Mitigation Expert," in which he

asked the trial court to give him $15,000 "to obtain the services of Joanne

Terrell." (C. 194.) The next day, the trial court granted Smith's motion.

(C. 91.)

Smith's second penalty-phase proceeding was set for trial on March

14, 2022. A little over three weeks before his trial was set to begin, Smith

moved to continue his trial, apparently setting out "five reasons that the

motion to continue should be granted."3 (R. 17.) On February 14, 2022,

3Although Smith's counsel and the trial court referenced the motion

to continue at the hearing on the motion (see R. 17), the motion does not

appear in the record on appeal. " '[I]t is the appellant's duty to provide

this Court with a complete record on appeal.' " Belcher v. State, 341 So.

3d 237, 264 n.9 (Ala. Crim. App. 2020) (quoting Knight v. State, 621 So.

2d 394, 395 (Ala. Crim. App. 1993)).

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the trial court set Smith's motion to continue for a hearing on February

16, 2022. (C. 201.)

At the outset of the hearing on his motion, the circuit court

informed the parties that it was granting Smith's motion to have Colby

Kalani, who was an inmate in the Alabama Department of Corrections,

"made available to counsel for the defendant in this matter." (R. 14.) The

court then told Smith's counsel that it was further ordering that Kalani

be put in the Cleburne County jail and that "it may be easier to get in

and out of there." (R. 15.) The court told Smith's counsel that it had

already "called the Sheriff to give him a heads up … [a]nd [the circuit

court] told him to make him available to y'all who need to talk to him."

(R. 15.) Smith's counsel then told the circuit court that they had not been

able to have in-person contact with Smith "in two years" and that they

wanted to be in the room with him. (R. 16.) The circuit court told Smith's

counsel, "We can make that happen. That's not a big deal. That's easy.

They may have to disinfect and spray stuff. I don't know what their

COVID protocol is down there. I mean, they'll take care of whatever it

is." (R. 16-17.)

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Smith's counsel then addressed the motion to continue, and counsel

explained that the current "COVID spike" was "the largest COVID spike

in two years." (R. 17.) Smith's counsel noted to the court that "this is the

first time the defense team has met in entirety with Mr. Smith." (R. 18.)

Smith's counsel further argued that, because of this rise in COVID-19

cases, Smith's trial should be postponed for a short time due to his

concern that black jurors "will not be well-represented." (R. 21.)

Specifically, Smith's counsel said that Smith's trial is

"set for 23 days from today. And we'll be picking a jury. We've

been close before, 30 days out in September of 2019, before

Judge Howell called an index. This -- and I wanted to

preserve for the record if the judge doesn't grant this motion

for a continuance and you sentence Mr. Smith to death I

believe there's an inaccessibility to client followed by -- which

could lead to ineffective assistance of counsel, which I'll admit

to not being able to get my team in to see Mr. Smith.

"I didn't get an infectious disease specialist or

epidemiologist in here. We're going to be in close quarters

with -- and I have talked to Kim McCarson, and I may have

played a hand. I asked her about how many people will be

summoned for jury duty. And I have attempted to watch two

jury trials, murder trials. I was escorted out of one under the

guise of COVID.

"....

"Not you, Judge. In another circuit. And in the previous

-- in the other case, it was a murder case, there were 14 white

jurors seated and it ended up in mistrial. It was an abortion.

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It was in Judge Jones' class or courtroom in December, I

believe. There's going to be a dearth of -- I won't know for 23

days. We expect a dearth of black jurors from the pool. The

population here is 23 percent black, and we won't know until

that date whether to move for striking or doing away with the

impaneling of the jury. But that's what we expect is that

blacks in particular will not be well-represented in this

particular trial, and we would ask for some time to let COVID

lapse. Maybe this summer. Maybe May. But those are about

all of the items I wanted to put on the record."

(R. 20-21.)

The State responded to Smith's argument and maintained that it

was ready to proceed to trial and argued that there should not be any

concern about accessibility to inmates, explaining:

"[A]s far as access to inmates, there have been numerous

things done by the Department of Corrections to make their

inmates accessible. They've done Zoom [video conferences].

We've had hearings where defendants have been made

available through Zoom. In particular this defendant's

codefendant has been made available through Zoom in a

hearing that we have had regarding his counsel. That would

be Mr. Jovon Gaston, Your Honor. So there are ways to visit

with capital murder defendants. It can be done through

Zoom.

"I was present when the request was made to have Mr.

Smith brought up from Department of Corrections to make

him available for Dr. Griffith for him to be able to interview

him. That was done for defense counsel at their request. The

Court has made him available to them."

26

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(R. 22-23.) As far as Smith's argument about whether black jurors would

be underrepresented, the State argued:

"And as relating to potential jurors or lack of or

discrepancy in number, Your Honor, those things are not ripe

until we get ready for trial. That's a chance we take every

time we move to try a case even pre-pandemic. Our sister

county when we go to strike juries over there the numbers are

not always what you would hope they would be, but that is

representative of that county. Our numbers here represent

this county.

"So it is not an issue that becomes ripe until we try to

select that jury. And if at the time we're not able to get one

and the Court believes that it can't be done, then measures

will be taken. But as far as I'm concerned, Your Honor, we're

ready to move forward and have been for quite some time."

(R. 24-25.)

Thereafter, Smith's counsel added a new reason why the trial court

should grant his motion to continue -- namely, Smith's mitigation expert,

Joanne Terrell, "has expressed concerns regarding COVID." (R. 26.)

Smith's counsel argued:

"[A]nother concern that we've got which I think may or may

not have been laid out in the motion is our mitigation

specialist, Joanne Terrell, has expressed concerns regarding

COVID. Her husband is currently hospitalized. I believe he's

got heart and lung conditions. So she's trying to be extremely

cautious about not exposing him to COVID. And that caution

has made it more difficult for her to do her job as well. Her

job is not one that can really be done over Zoom or be done in

any way other than meeting with people in person. So we

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have to make her concerns known as well because even

though she's just one member of this team she's arguably the

most important one. I would almost rather -- and I think [co-

counsel] would agree with me -- I would almost rather lose a

lawyer from this team than to lose her. Without her there's

not much we can do. So her concerns have to be taken into

account as well, Judge."

(R. 25-26.) The State countered that "[w]e all have family" that we do not

want to expose to COVID-19, but "I anticipate being here March 14th and

everyone else should be as well." (R. 28.) The State also argued that its

"understanding is Ms. Terrell has already generated a report

and her findings as relating to her encounters with Mr. Smith

and probably any of the other persons that she's also spoken

with. So I would ask the Court to have the defense produce

that report to the Court as well as any timeline or anything

that may be available and that -- I mean, she has -- we all

have health concerns, Your Honor."

(R. 27.) Smith's counsel then told the trial court that Terrell's "job doesn't

stop once she generates that report," and that she "still does work up to

and throughout the trial." (R. 28.) Thereafter, the trial court found as

follows: "All right. The Court has considered the motion to continue and

arguments of counsel on behalf of the defendant in this case [by both

defense counsel] and corresponding response by the State of Alabama in

this case. Motion to continue will be denied." (R. 30-31.) On February

17, 2022, the trial court memorialized its denial of Smith's motion to

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continue in a written order. (C. 204.) A few days later, on February 24,

2022, Smith asked the trial court for an additional $15,000 to pay Joanne

Terrell. (C. 208-10.) The trial court granted Smith's motion. (C. 211.)

The jury-selection process for Smith's second penalty-phase proceeding

began on March 10, 2022, and, as set out above, both Colby Kalani and

Joanne Terrell testified in Smith's mitigation case.

On appeal, Smith maintains that the circuit court erred when it

denied his motion to continue his second penalty-phase proceeding

because, he says, the circuit court "ignored compelling reasons to grant

Mr. Smith's motion for a continuance." (Smith's brief, p. 24.) Smith

highlights two "compelling reasons" for granting his motion.

First, Smith says that his motion to continue should have been

granted because his "trial counsel's ability to develop [his] mitigation

case and prepare for his sentencing was inhibited by their inadequate

access to Mr. Smith and Mr. Kalani as a result of COVID-19 and related

restrictions." (Smith's brief, p. 25.) Second, Smith says that "the short

continuance requested by [him] was necessary to permit [his] mitigation

specialist, Joanne Terrell, sufficient time to complete her investigation

and assessment, which had been impeded by COVID and her need to

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limit exposure to COVID in order to protect her hospitalized husband."

(Smith's brief, p. 26.) Neither reason shows that the circuit court abused

its considerable discretion here when it denied Smith's motion to

continue.

As set out above, Smith was arrested for capital murder in 2011, he

was convicted of capital murder and sentenced to death the first time in

2013, his death sentence was reversed on March 17, 2017, and this Court

issued a certificate of judgment on August 25, 2017, which returned

jurisdiction of Smith's case to the circuit court for that court to conduct a

second penalty-phase proceeding. Smith did not move for a continuance

of his second penalty-phase proceeding until February 2022. Although

Smith's counsel mentioned difficulties with accessing Kalani and Smith

because of COVID-19-related issues and noted Terrell's concerns about

COVID-19, Smith's counsel did not explain why he could not have

accessed Kalani and Smith and why a mitigation expert could not have

completed a mitigating investigation in the nearly three years between

this Court's returning jurisdiction to the circuit court for Smith's second

penalty-phase proceeding and the start of the COVID-19 pandemic in

March 2020.

30

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What is more, as to Smith's argument on appeal about having

access to Kalani and Smith, the circuit court made it clear to Smith's

counsel at the hearing on his motion to continue that Smith's counsel

would not have an issue accessing Kalani and could have in-person

contact with Smith. Smith's counsel expressed no disagreement or

concern with the court's assurance of access to Kalani and Smith, and

Smith's counsel expressed no further concerns about accessing either

Smith or Kalani and made no further argument about needing a

continuance based on their access to Smith. As to Smith's argument

about Terrell's mitigation investigation, the State correctly points out

that Terrell "had already generated a report on January 30, 2022 with

her findings regarding Smith." (State's brief, p. 18.) Although Smith's

counsel explained that Terrell's mitigation investigation was on-going,

Smith's counsel did not explain to the circuit court what additional

mitigation evidence Terrell was hoping to uncover in the event the court

granted his motion. Although Terrell expressed a concern about

testifying at trial due to a rise in COVID-19 cases because a family

member had been hospitalized, Terrell did testify and her hesitancy to

testify at trial did not require the circuit court to grant Smith's motion to

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continue. Her hesitancy certainly does not establish that the court

abused its discretion in denying Smith's motion to continue.

In short, the circuit court did not abuse its considerable discretion

when it denied Smith's motion to continue his second penalty-phase

proceeding.

Accordingly, Smith is due no relief on this claim.

IV.

Smith argues that the trial court erred when it denied his motion

to have the entire Calhoun County District Attorney's Office recused

from his case. (Smith's brief, p. 29.) According to Smith, after his first

trial, the "lead counsel [from] his first trial (Timothy Burgess) joined the

Calhoun County District Attorney's office." (Smith's brief, p. 29.) In his

brief on appeal, Smith explains:

"Mr. Burgess was Mr. Smith's lead counsel in the guilt

and penalty phases of his initial trial in 2013. During the

course of his representation of Mr. Smith, from 2011 through

2013, Mr. Burgess acquired confidential information relating

to Mr. Smith's case. Most notably, as the attorney who

examined the majority of Mr. Smith's witnesses at his first

trial and during his first sentencing -- including Mr. Smith's

mitigation expert --and delivered the penalty-phase closing

statement on behalf of Mr. Smith, Mr. Burgess acquired

confidential information regarding Mr. Smith's mitigation

evidence, which was the subject of his re-sentencing.

Following that first trial, Mr. Burgess became an Assistant

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District Attorney with the Calhoun County District Attorney’s

office in 2015, and served in that capacity until 2021, at which

point he became a circuit court judge in Calhoun and

Cleburne Counties. Mr. Burgess' work at the Calhoun County

District Attorney's office presented a conflict of interest that

should have precluded the Calhoun County District

Attorney's office from prosecuting Mr. Smith in his re-

sentencing proceeding. At a minimum, the trial court should

have conducted an inquiry into the existence of a conflict."

(Smith's brief, pp. 29-30.) Smith raises two arguments on appeal

concerning the trial court's denial of his motion to have the entire district

attorney's office recused from his case. Neither argument entitles him to

any relief.

Before we address Smith's arguments, we must provide context to

Smith's argument by setting out the procedural history surrounding his

motion to recuse: On January 30, 2020, Smith moved the trial court to

recuse the entire district attorney's office from his second penalty-phase

proceeding because Burgess had been hired to work in that office. Smith

alleged that "it could appear the members of the District Attorney's Office

have acquired such information and thereby such an interest in this case

that they shall not be able to discharge their duties impartially in regard

to this case." (C. 191 (emphasis added).)

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The next day, the State responded to Smith's motion. The State

alleged that, "[s]ince his hire, Tim Burgess has been advised to avoid

working on cases that involve any potential conflicts with prior cases, and

has been advised not to discuss with any member of this Office any

information that he may have derived from prior cases." (C. 189.) The

State further explained that, with Burgess, it had followed the National

District Attorney's Association's guidelines for addressing potential

conflicts of interest within the office by "firewalling" him from the case.

The State said that it believed that recusal was not necessary in this case

because "there are adequate firewalls in place to protect this Office and

the Defendant from any disclosure of information that would be

detrimental to either party." (C. 190.)

On February 7, 2020, the trial court issued an order denying

Smith's motion to recuse, finding that it "is satisfied with the response of

the State of Alabama and that appropriate steps have been taken in

compliance with the 'best practices' to prevent conflicts from arising." (C.

186.)

On February 28, 2020, Smith filed a "Request for Evidentiary

Hearing Date," in which Smith asked the circuit court to conduct a

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hearing to determine whether there existed "a direct or imputed conflict

with the Calhoun County District Attorney's Office prosecution of

Smith." (C. 105.) The trial court granted Smith's request for an

evidentiary hearing on his motion to recuse. (C. 115.) Later, the trial

court set the hearing on Smith's motion for January 8, 2021. (C. 159.)

At the hearing, Smith's counsel argued that, despite the State's

assertion that it had taken measures to ensure that Burgess did not

discuss or work on Smith's case, the appearance of impropriety was

enough to require the entire office to recuse. Smith's counsel conceded

that he was "not saying that there's any nefarious action by [the district

attorney] or by Mr. Burgess or that there's some sort of underhanded

thing going on." (Supp. R. 6.) Smith's counsel argued:

"Now, I understand what the rules of professional

conduct say about moving from private work to government

work, and I understand that it doesn't say that every conflict

is automatically -- you wouldn't want the DA's office to be

prevented from hiring quality prosecutors. I get that. That

makes total sense. If I were Mr. McVeigh, [the district

attorney,] I would say, wow, this guy is a great lawyer, he tries

a good case, I want to hire him. We wouldn't want to

discourage that. But asking them to recuse off of one specific

case where the man has been sentenced to death already and

by their own admission, there's a transcript, the evidence is

going to be the same, there's nothing to worry about. Okay.

Well, then there's no problem.

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"Out of an abundance of caution it's not like we're asking

to try the case again. We're not asking to introduce new

evidence. The evidence is closed, so the only thing that we're

doing is presenting a different strategy at sentencing, one

which they may very well be aware of by virtue of the fact that

his trial counsel had 1,200 days in their office before he even

needed to be screened off of anything. Okay? That's it."

(Supp. R. 9-10.)

The district attorney responded by explaining the office procedures

that are in place when the district attorney -- both past and present --

has hired an attorney who has previously tried criminal defense cases as

follows:

"[W]hen we have the ability to hire people -- I have hired some

new lawyers that don't have any experience, but most of my

hires for people who are going to be trying cases have been

experienced criminal lawyers. They're going to have to, in a

small county like this, have tried cases before, and Mr.

Johnston and Mr. Burgess specifically have tried capital

cases. I would say the bulk of capital cases.

" So when you're talking about recusing -- and he's right.

The easiest thing in the world for me to do would be to come

in here and say, no, let somebody else have it, and that's going

to affect every capital case that I have that those two men

touched. And that goes back to when Joe Hubbard was the

district attorney and Tim Burgess was trial counsel for Ellis

Mashburn.

"So the idea that when somebody comes in because a

capital murder case is on appeal, then, well, we don't need to

screen people. We say if you have tried a capital murder

under Joe Hubbard and you're hired in this office, you never

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talk about that case, we never ask you any questions, you

never disclose anything to us. You don't look anything up on

the computer. Those are the rules.

"That's what has been the case since Mr. Field was the

DA. It was the case when Joe Hubbard was the DA. It's the

case under me. So to say that there was 1,000-some odd days

when he wasn't screened is false on its face. From the moment

he was hired in this office, he was screened from any case he's

handled in the past."

(Supp. R. 10-12.) The district attorney continued:

"If we were to say any time we hire an experienced

lawyer that that lawyer is somehow conflicted on all cases

involving all people in our county of 120,000 people, we

wouldn't try very much of anything. We would conflict it all

the time, especially on capital cases, so your choice would be

don't hire the experienced lawyers that have criminal history.

I was a three-year-experienced criminal defense lawyer when

I was hired, and I had some cases that I tried on the other

side. You know, there are potential issues there. That's why

the firewall is put into place.

"I don't think we're required to step away from a case

just because the allegation is made. I understand why the

allegation is made. It's because of what I did in the other case.

I would do that again. It has created some issues for me,

which again is not just wiping it away. The easiest thing to

do is say take me off of every capital case. I'm not doing that.

"I'm saying our office is shielded. I'm saying this

defendant in this particular set of facts has been tried three

times. Obviously it's been different in each case. There may

be witnesses related to one defendant that aren't with

another. This case has been tried to a verdict. What we're

talking about coming back for is sentencing, so all the

evidence will come in through a couple of witnesses. It will be

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a truncated trial. The majority of stuff being done will be done

by them, and we will argue the same thing.

"I wouldn't be here if I wasn't asking for death. If I

didn't want death, I could say, we'll ask for life without and

just not try the case, and I believe that would [be] his

sentence. So the family is asking us to ask for death. We're

asking for death.

"But this Court has seen the trial. They've got

transcripts of the other trial. If all the sudden I started

coming out with evidence and saying, well, what about this or

what about that, they wouldn't know that and could say how

would he have known this. So there are mechanisms there to

protect this young man who is being charged and who has

been tried and who has been convicted.

"The question is his sentence. It's either death or life

without. I believe that we can abide by all the rules that

govern our conduct, and I believe that we have. And I believe

it would be wrong to punish me for doing the right thing on

another case, to then take me off of this and I would say any

and all capital cases that Burgess or David Johnston or who

knows who else that I have employed that has touched

anybody else out there. It will have a domino effect on other

cases.

"….

"So I would argue that everything he alleged was wrong.

We ought to be allowed to stay on the case, but as in every

case, the Court is here to monitor our behavior and to control

if we stray. Okay. Thank you."

(Supp. R. 16-18.)

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On May 18, 2021, after the original trial judge retired, the trial

court set Smith's motion to recuse for another hearing on June 22, 2021.

(C. 166.) At that hearing, the trial court and the parties agreed that the

new trial judge would review the transcript from the January 8, 2021,

hearing and the parties agreed that "there are no additions or

supplements that should be made to that argument." (R. 4.) On August

31, 2021, the trial court issued an order denying Smith's motion to recuse.

(C. 173.)

As set out above, Smith raises two arguments on appeal about the

trial court's denial of his motion to recuse the entire district attorney's

office from his second penalty-phase proceeding.

First, Smith argues that the district attorney's hiring of Burgess

imputed a conflict of interest on the entire district attorney's office.

Smith is incorrect.

"In Alabama, there is not a per se rule that a district

attorney's office must recuse itself when one assistant

attorney has previously represented a defendant. See Smith

v. State, 639 So. 2d 543 (Ala. Crim. App. 1993); Terry v. State,

424 So. 2d 710 (Ala. Crim. App. 1982); Hannon v. State, 48

Ala. App. 613, 266 So. 2d 825 (Ala. Crim. App. 1972). In

Smith, we stated:

" '[Defense counsel] did not breach the

attorney-client relationship because he abstained

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from any participation in the prosecution of the

appellant and he revealed no confidential

information regarding his former client to anyone

at the district attorney's office.'

"639 So. 2d at 548. In Hannon, we stated:

" 'The public interest demanded that the

prosecution go forward. There has been no breach

of the attorney-client relationship, the privilege

against disclosure has been preserved, and

professional ethics, painstakingly observed, and

the constitutional guarantee of a fair and

impartial trial was not infringed.'

"48 Ala. App. at 618, 266 So. 2d at 829."

Sneed v. State, 1 So. 3d 104, 122 (Ala. Crim. App. 2007).

In his motion to recuse and at the hearing on his motion, Smith

never alleged that Burgess had breached the attorney-client relationship

by disclosing any information to the district attorney's office. At best,

Smith made speculative assertions that his former trial counsel might

have made such disclosures after he was hired by the district attorney.

But the district attorney explained the safeguards in place in the district

attorney's office to ensure that Burgess did not make such a disclosure.

Because Smith failed to even allege that his former trial counsel breached

the attorney-client relationship, the trial court did not err when it denied

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Smith's motion to recuse the entire district attorney's office on an

imputed conflict of interest.

Second, Smith, citing Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct.

1708, 64 L. Ed. 2d 333 (1980), argues that, "[i]n denying [his] motion to

disqualify the district attorney's office, the trial court failed to conduct

any meaningful inquiry into whether and what information had been

disseminated from Mr. Burgess to others in the district attorney's office."

(Smith's brief, p. 33.) Cuyler, however, does not support Smith's

argument in this case.

"In Cuyler, the United States Supreme Court stated:

" 'Holloway [v. Arkansas, 435 U.S. 475

(1978)] requires state trial courts to investigate

timely objections to multiple representation. But

nothing in our precedents suggests that the Sixth

Amendment requires state courts themselves to

initiate inquiries into the propriety of multiple

representation in every case. Defense counsel

have an ethical obligation to avoid conflicting

representations and to advise the court promptly

when a conflict of interest arises during the course

of trial. Absent special circumstances, therefore,

trial courts may assume either that multiple

representation entails no conflict or that the

lawyer and his clients knowingly accept such risk

of conflict as may exist. Indeed, as the Court noted

in Holloway, supra, at 485-486, trial courts

necessarily rely in large measure upon the good

faith and good judgment of defense counsel. "An

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'attorney representing two defendants in a

criminal matter is in the best position

professionally and ethically to determine when a

conflict of interest exists or will probably develop

in the course of a trial.' " 435 U.S., at 485, quoting

State v. Davis, 110 Ariz. 29, 31, 514 P.2d 1025,

1027 (1973). Unless the trial court knows or

reasonably should know that a particular conflict

exists, the court need not initiate an inquiry.'

"446 U.S. at 346-47, 100 S. Ct. at 1717 (footnotes omitted).

See also Hannon v. State, 48 Ala. App. 613, 620, 266 So. 2d

825, 831 (1972) (' "Nor is there basis for recusation in the

charge that there is a possibility that Mr. Ware has violated

the confidential relationship existing between attorney and

client. Indeed, it is to be presumed that he, as a member of

the bar in good standing, has and will respect the defendant's

confidence." ')."

Sneed v. State, 1 So. 3d 104, 122 (Ala. Crim. App. 2007).

Again, neither in his motion to recuse nor at the hearing on his

motion to recuse did Smith ever allege that Burgess engaged in any

improper conduct. Rather, Smith merely made speculative assertions

about the possibility that Burgess could have disclosed confidential

information. Because Smith never alleged that Burgess engaged in any

improper behavior, the presumption is that Burgess did not engage in

such conduct; thus, the trial court was free to presume that no such

improper behavior occurred and had no obligation to conduct any further

inquiry. In addition, the trial court could rely upon the assertions of the

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Calhoun County District Attorney that Smith's former counsel was

"screened" from the case from the "moment he was hired" so that he did

not reveal any confidential information that he learned through his

representation of Smith.

Accordingly, Smith is due no relief on this claim.

V.

Smith, relying primarily on Ramos v. Louisiana, 590 U.S. ___, 140

S. Ct. 1390, 206 L. Ed. 2d 583 (2020), argues that his "death sentence

violates the Alabama and United States Constitutions because the jury

did not return a unanimous verdict in favor of death." (Smith's brief, p.

35.) According to Smith, because his "jury did not return a[ ] unanimous

verdict in favor of the death penalty, his death sentence must be

reversed." (Smith's brief, p. 36.) Smith's argument has no merit.

We have held that

" ' "Alabama law does not require that the jury's advisory

verdict be unanimous before it can recommend death," '

Thompson, 153 So. 3d at 179 (quoting Miller v. State, 913 So.

2d 1148, 1169 n.4 (Ala. Crim. App. 2004)), and Keaton cites

no case from the United States Supreme Court that requires

such unanimity. See State v. Poole, 297 So. 3d 487, 504 (Fla.

2020), cert. denied 592 U.S. ___, 141 S. Ct. 1051, 208 L. Ed.

2d 521 (2021) (holding that the 'requirement of a unanimous

jury' for the imposition of the death penalty 'finds no support

in' caselaw from the United States Supreme Court). See also

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Lane, 327 So. 3d at 776-77 (noting that ' "both this Court and

the Alabama Supreme Court have upheld death sentences

imposed after the jury made a less-than-unanimous

recommendation that the defendant be sentenced to death" '

(quoting Brownfield v. State, 44 So. 3d 1, 39 (Ala. Crim. App.

2007))). Keaton's reliance on Ramos v. Louisiana, 590 U.S.

___, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020), is misplaced

because Ramos held only that the United States Constitution

requires a unanimous verdict to support a conviction, not a

sentence. See Ruiz v. Davis, 819 F. App'x 238, 246 n.9 (5th

Cir. 2020) (noting that the United States Supreme Court held

in Ramos that ' "the Sixth Amendment's right to a jury trial

requires a unanimous verdict to support a conviction," not a

sentence' (quoting Ramos, 590 U.S. at ____, 140 S. Ct. at

1397))."

Keaton v. State, 375 So. 3d 44, 136-37 (Ala. Crim. App. 2021). Because

there is no requirement that a jury unanimously agree to impose a death

sentence, Smith's argument that his death sentence is unconstitutional

because the jury "did not return a unanimous verdict in favor of death"

(Smith's brief, p. 35) is without merit.

Accordingly, Smith is due no relief on this claim.

VI.

Smith also argues that the trial court erred when it failed "to

adequately address improper juror conduct and shield the jury from

extraneous and/or prejudicial information." (Smith's brief, p. 44.)

According to Smith,

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"[d]uring a break on the second day of [his] sentencing

hearing, juror [J.B.] informed the trial court that he had

previously-undisclosed connections to Cynthia Warf and

Jessica Foster -- two key State witnesses at the guilty phase,

whose conduct was the subject of testimony by the State's

investigator. (R. 560-61.) Although [J.B.] was removed from

the jury, the trial court took no steps to ascertain the extent

of [J.B.'s] extraneous knowledge of the crime and its

participants, or whether he shared such knowledge with any

other remaining members of the jury." 4

(Smith's brief, pp. 44-45.) Smith's argument, which was not first raised

in the trial court, is reviewed for plain error. See Rule 45A, Ala. R. App.

P. We find no plain error.

VII.

Smith argues that the trial court erred when it allowed the State to

reintroduce into evidence Dr. Emily Ward's testimony from Smith's guilt-

phase proceeding by reading the transcript of her testimony to the second

4Neither the State nor Smith revealed either Warf's or Foster's

names to the venire during voir dire. When testimony during the second

penalty phase revealed those names to the seated jury, Juror J.B. (who

was an alternate juror) immediately disclosed to the court that he was

familiar with both Warf and Foster. Juror J.B. explained that he has not

"had contact with [Warf and her husband] in over 10 years, but I know

them. And on top of that, if it's who I think it is, Jessica Foster has been

a client at the rehab where my wife is a program manager." (R. 563-64.)

Juror J.B. made clear that he "just figured all that out today" and he "just

didn't make the connection." (R. 564.) Neither Smith nor the State made

any arguments about Juror J.B.'s disclosure.

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penalty-phase jury because, he says, it "undermined [his] rights under

the Confrontation Clause of the Sixth Amendment of the United States

Constitution." (Smith's brief, pp. 46-47.) Smith did not object to the

State's reading of Dr. Ward's trial testimony to the jury during the second

penalty-phase proceeding, nor did he expressly raise a Confrontation

Clause argument in the trial court. Therefore, Smith's argument on

appeal is reviewed for plain error. We find no error, plain or otherwise,

with the trial court's allowing the State to read Dr. Ward's guilt-phase

testimony to the jury during the second penalty phase of Smith's trial.

Indeed, this Court has

" 'express[ed] doubt that the Confrontation Clause applies at

sentencing, even in capital cases,' Lockhart, 163 So. 3d at

1133, and some federal appellate courts have unequivocally

concluded that a defendant's right to confrontation does not

apply at the penalty phase of a capital trial. See, e.g.,

Muhammad v. Secretary, Florida Dep't of Corr., 733 F.3d

1065, 1074 (11th Cir. 2013) (holding that the United States

Supreme Court's decisions in Williams v. New York, 337 U.S.

241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949), and Gardner v.

Florida, 430 U.S. 349, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977),

'together stand for the proposition that a defendant does not

have a right to confront hearsay declarants at a capital

sentencing hearing'); and Szabo v. Walls, 313 F.3d 392, 398

(7th Cir. 2002) ('[T]he Supreme Court has held that the

Confrontation Clause does not apply to capital sentencing. It

applies through the finding of guilt, but not to sentencing,

even when that sentence is the death penalty.' (citing

Williams v. New York, supra))."

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Keaton v. State, 375 So. 3d at 115-16. To prevail on his plain-error

argument, Smith must "establish an obvious, indisputable, and egregious

error that adversely affected the outcome of his sentencing." Petric v.

State, 157 So. 3d 176 (Ala. Crim. App. 2013). Because it is far from

"obvious" and "indisputable" that the Confrontation Clause applies to a

penalty-phase proceeding, we certainly cannot hold that the trial court's

allowing the State to reintroduce Dr. Ward's guilt-phase testimony

during Smith's second penalty-phase proceeding was plain error.

In any event, Smith's argument is meritless because Dr. Ward's

guilt-phase testimony, which was subject to cross-examination by

Smith's counsel during the guilt phase of his trial, was admissible during

the penalty phase of Smith's trial pursuant to § 13A-15-45(c), Ala. Code

1975, which provides:

"At the sentence hearing evidence may be presented as

to any matter that the court deems relevant to sentence and

shall include any matters relating to the aggravating and

mitigating circumstances referred to in Sections 13A-5-49,

13A-5-51, and 13A-5-52. Evidence presented at the trial of

the case may be considered insofar as it is relevant to the

aggravating and mitigating circumstances without the

necessity of re-introducing that evidence at the sentence

hearing, unless the sentence hearing is conducted before a

trial judge other than the one before whom the defendant was

47

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tried or a jury other than the trial jury before which the

defendant was tried."

Here, as Smith notes in his argument on appeal, Dr. Ward's

testimony that was read into the record during Smith's second penalty-

phase proceeding was the testimony that she gave to the jury during

Smith's guilt-phase proceeding. As set out above, Dr. Ward's testimony

addressed the extent of Thompson's injuries and the manner in which he

died. Dr. Ward's testimony also established that Thompson would not

have died quickly, that he would have been aware of his injuries, and that

he would have experienced significant pain. Because Dr. Ward's

testimony was a part of the State's evidence at Smith's guilt-phase

proceeding, because it was relevant to the aggravating circumstance that

the capital offense was especially heinous, atrocious, or cruel when

compared to other capital offenses, and because the State had to

reintroduce Dr. Ward's testimony to the new penalty-phase jury for it to

consider the testimony, the trial court properly admitted Dr. Ward's

guilt-phase testimony pursuant to § 13A-5-45(c), Ala. Code 1975.

Accordingly, the trial court did not commit any error, plain or

otherwise, when it admitted Dr. Ward's testimony during Smith's second

penalty-phase proceeding.

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VIII.

Smith next argues that "the use of a conviction for [his] juvenile

conduct as an aggravating factor making him eligible to receive the death

penalty violated [his] right to be free from cruel and unusual punishment

under the Eighth Amendment." (Smith's brief, p. 51.) According to

Smith, "the prosecution presented evidence regarding [his] prior

conviction for robbery in the first degree when he was sixteen, and the

jury determined that [his] prior conviction was an aggravating factor

supporting the imposition of a death sentence." (Smith's brief, p. 51.)

Smith, citing Roper v. Simmons, 543 U.S. 551 (2005), argues that,

"though Roper does not require that courts 'wipe clean' individuals'

records, ... it does insist that individuals not be executed for conduct they

engaged in as children." (Smith's brief, pp. 51-52.) But Smith's "juvenile

conduct" -- as he calls it -- resulted in an "adult" criminal conviction for

first-degree robbery. The record on appeal shows that Smith committed

the first-degree robbery about two months before he turned 17 years old

and that he was tried and convicted as an adult offender in Calhoun

Circuit Court. (C. 1010-11.)

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In Jackson v. State, 305 So. 3d 440, 496 (Ala. Crim. App. 2019), this

Court rejected an argument identical to the one Smith raises here. In

Jackson, this Court held that "[n]othing in Roper forbids using the prior

adult conviction that occurred when Jackson was a juvenile as an

aggravating circumstance to support the death penalty, and Roper does

not bar Jackson's sentence of death." So, just as in Jackson, nothing

prohibits the use of Smith's prior adult conviction for first-degree robbery

as an aggravating circumstance to support his death sentence.

Accordingly, Smith is not entitled to any relief on this claim.

IX.

Smith argues that "double-counting murder during the commission

of a robbery and murder during the commission of a kidnapping at the

guilt and penalty phases violated state and federal law." (Smith's brief,

p. 53.) Yet this Court and the Alabama Supreme Court have consistently

rejected this argument and recognized that there is no constitutional or

statutory prohibition on " 'double counting' circumstances both as an

element of the offense and as an aggravating circumstance." Hicks v.

State, 378 So. 3d 1071, 1127 (Ala. Crim. App. 2019). Accordingly, Smith

is not entitled to any relief on this claim.

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X.

Smith next argues that "Alabama's method of execution [by lethal

injection] constitutes cruel and unusual punishment in violation of the

Eighth Amendment." (Smith's brief, p. 55.) Smith's argument was not

first presented in the trial court. Smith did argue generally at the close

of the State's penalty-phase case that "the death penalty is cruel and

unusual punishment." (R. 576.) Smith, however, did not raise the

specific argument that the method by which Alabama carries out the

death penalty is cruel and unusual punishment. Thus, his argument is

due to be reviewed for plain error only. But regardless of whether the

specific argument was raised below, we find no error, plain or otherwise,

because Smith's argument is without merit. Indeed, the Alabama

Supreme Court has held that lethal injection does not constitute cruel

and unusual punishment. See Ex parte Belisle, 11 So. 3d 323, 349 (Ala.

2008) (holding "that Alabama's use of lethal injection as a method of

execution does not violate the Eighth Amendment to the United States

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Constitution"). 5 Accordingly, Smith is not entitled to any relief on this

claim.

XI.

Finally, pursuant to § 13A-5-53, Ala. Code 1975, this Court is

required to address the propriety of Smith's capital-murder conviction

and death sentence.

As set out above, Smith was convicted of two counts of capital

murder -- one count for intentionally killing Thompson during a

kidnapping, a violation of § 13A-5-40(a)(1), Ala. Code 1975, and one count

for intentionally killing Thompson during a robbery, a violation of § 13A-

5Although Smith's argument on appeal attacks the

constitutionality of lethal injection as a method of execution, Smith's

argument fails to recognize that Alabama has other available methods of

execution, having recently adopted nitrogen hypoxia as a method of

execution. This Court has explained that, even "if lethal injection is held

unconstitutional by the United States Supreme Court or by the Alabama

Supreme Court, 'all persons sentenced to death for a capital crime shall

be executed by any constitutional method of execution.' " Saunders v.

State, 10 So. 3d 53, 112 (Ala. Crim. App. 2007) (quoting § 15-18-82.1(c),

Ala. Code 1975). In other words, even if this Court agreed with Smith's

argument (and we do not), he would not be entitled to a reversal of his

death sentence because the State could carry out his execution via

nitrogen hypoxia. See § 15-18-82.1(h), Ala. Code 1975 ("In any case in

which an execution method is declared unconstitutional, the death

sentence shall remain in force until the sentence can be lawfully executed

by any valid method of execution.").

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5-40(a)(2), Ala. Code 1975. The jury's guilty verdicts established the

existence of two aggravating circumstances -- namely, that the capital

murder was committed during a first-degree kidnapping and that the

capital murder was committed during a first-degree robbery. See § 13A-

5-49(4), Ala. Code 1975. At the conclusion of his second penalty-phase

proceeding, the jury found three additional aggravating circumstances to

exist beyond a reasonable doubt -- namely, that Smith committed the

capital offenses after having been previously convicted of a felony

involving the use or threat of violence to a person, that Smith committed

the capital offenses while under a sentence of imprisonment, and that the

capital offense was especially heinous, atrocious, or cruel. (C. 222-24.)

Thus, five aggravating circumstances were found to exist beyond a

reasonable doubt. The jury then recommended by a vote of 10 to 2 that

Smith be sentenced to death. (C. 225.) After conducting a judicial-

sentencing hearing, the trial court followed the jury's recommendation

and sentenced Smith to death.

After examining the record on appeal, this Court finds nothing to

show that Smith's death sentence was imposed as the result of the

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influence of passion, prejudice, or any other arbitrary factor. See § 13A-

5-53(b)(1), Ala. Code 1975.

Additionally, § 13A-5-53(b)(2), Ala. Code 1975, requires this Court

to reweigh the aggravating and mitigating circumstances to determine

whether Smith's sentence of death is appropriate. In so doing, we are

mindful of the following:

" 'Section 13A-5-48, Ala. Code 1975, provides:

" ' "The process described in Sections 13A-5-

46(e)(2), 13A-5-46(e)(3) and Section 13A-5-47(e) of

weighing the aggravating and mitigating

circumstances to determine the sentence shall not

be defined to mean a mere tallying of aggravating

and mitigating circumstances for the purpose of

numerical comparison. Instead, it shall be defined

to mean a process by which circumstances relevant

to sentence are marshalled and considered in an

organized fashion for the purpose of determining

whether the proper sentence in view of all the

relevant circumstances in an individual case is life

imprisonment without parole or death."

" ' "The determination of whether the aggravating

circumstances outweigh the mitigating circumstances is not a

numerical one, but instead involves the gravity of the

aggravation as compared to the mitigation." Ex parte Clisby,

456 So. 2d 105, 108-09 (Ala. 1984). "[W]hile the existence of

an aggravating or mitigating circumstance is a fact

susceptible to proof, the relative weight of each is not; the

process of weighing, unlike facts, is not susceptible to proof by

either party." Lawhorn v. State, 581 So. 2d 1159, 1171 (Ala.

Crim. App. 1990). ... "The weight to be attached to the

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aggravating and the mitigating evidence is strictly within the

discretion of the sentencing authority." Smith v. State, 908

So. 2d 273, 298 (Ala. Crim. App. 2000).' "

Collins v. State, 361 So. 3d 1, 63 (Ala. Crim. App. 2019) (opinion on return

to second remand) (quoting Stanley v. State, 143 So. 3d 230, 333 (Ala.

Crim. App. 2011) (opinion on remand from the Alabama Supreme

Court)).

Here, the trial court, in its sentencing order, found the existence of

the five aggravating circumstances found by the jury -- "two aggravating

factors that carried over from the guilt phase, Murder during a

Kidnapping in the First Degree and Murder during a Robbery in the First

Degree" and the three aggravating circumstances the jury found to exist

beyond a reasonable doubt. (C. 237.) The trial court also "consider[ed]

all of these mitigating circumstances":

"The defense offered testimony and evidence that the

following statutory mitigators were applicable: (1) The capital

offense was committed while the defendant was under the

influence of extreme mental or emotional disturbance

pursuant to Section 13A-5-51(2); (2) The Defendant acted

under extreme duress or under the substantial domination of

another person pursuant to Section 13A-5-51(5); and (3) The

Defendant did not have the capacity to appreciate the

criminality of his conduct or to conform his conduct to the

requirements of law was substantially impaired.

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"The defense further offered evidence and testimony

under Section 13A-5-52. This evidence and testimony

consisted of multiple reports of the horrendous upbringing

that the defendant endured. Testimony from his mother and

brother consisted of the physical, mental, emotional, and

sexual abuse that was persistent throughout Mr. Smith's life.

Testimony of Elaine Young, Children's Advocacy Center

Director, discussed the nature of his abuse and the failure of

the system to adequately protect Mr. Smith as a child.

"All of the mitigating evidence was summarized by

JoAnn Terrell. Ms. Terrell is an expert in the field of

Mitigation and provided compelling testimony about the

mitigating circumstances present in this case."

(C. 237-38.) The trial court then sentenced Smith to death, concluding:

"After considering the evidence presented, the

arguments of counsel, the report prepared by Pardons and

Paroles, the jury's verdict, and after weighing the aggravating

circumstances against the mitigating circumstances, this

Court finds that the aggravating circumstances outweigh the

mitigating circumstances.

"This Court has sworn to uphold the law of this State,

and this is a duty that it does not take lightly. It is never easy

to recommend the taking of the life of another person;

however, the law requires it in this case."

(C. 238.)

The trial court's findings are correct, and this Court, after

independently weighing the aggravating circumstances found to exist

and all the mitigating circumstances found to exist, holds that Smith's

sentence of death is appropriate.

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Next, as required by § 13A-5-53(b)(3), Ala. Code 1975, this Court

must determine whether Smith's sentence is excessive or

disproportionate when compared to the penalty imposed in similar cases.

It is not. Again, Smith was convicted of intentionally killing Thompson

during a kidnapping, a violation of § 13A-5-40(a)(1), Ala. Code 1975, and

for intentionally killing Thompson during a robbery, a violation of § 13A-

5-40(a)(2), Ala. Code 1975. As noted above, five aggravating

circumstances were proved to exist beyond a reasonable doubt -- namely,

that the capital murder was committed during a first-degree kidnapping;

that the capital murder was committed during a first-degree robbery;

that Smith committed the capital offenses after having been previously

convicted of a felony involving the use or threat of violence to a person;

that Smith committed the capital offenses while under a sentence of

imprisonment; and that the capital offense was especially heinous,

atrocious, or cruel. (C. 222-24.) Sentences of death have been imposed

for similar crimes in Alabama. See Gaddy v. State, 698 So. 2d 1100, 1150

(Ala. Crim. App. 1995) ("Two-thirds of all death cases in Alabama involve

murders that occur during the course of a robbery."). See also Shanklin

v. State, 187 So. 3d 734 (Ala. Crim. App. 2014) (robbery and burglary);

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Mills v. State, 62 So. 3d 553 (Ala. Crim. App. 2008) (robbery); Sale v.

State, 8 So. 3d 330 (Ala. Crim. App. 2008) (kidnapping); Lewis v. State,

24 So. 3d 480 (Ala. Crim. App. 2006) (kidnapping); and Wilson v. State,

142 So. 3d 732 (Ala. Crim. App. 2010) (especially-heinous-atrocious-or-

cruel capital murder committed during a robbery and burglary).

Therefore, this Court holds that Smith's death sentence is neither

excessive nor disproportionate when compared to the penalty imposed in

similar cases.

Lastly, this Court has searched the record for any error that may

have adversely affected Smith's substantial rights and has found none.

See Rule 45A, Ala. R. App. P.

Conclusion

Based on these reasons, Smith's death sentence is affirmed.

AFFIRMED.

Windom, P.J., and Kellum, McCool, and Minor, JJ., concur.

58