1
No. 607A02NINETEEN-C JUDICIAL DISTRICT
NORTH CAROLINA SUPREME COURT
*********************************************
STATE OF NORTH CAROLINA)
)
v.)From Rowan
)
WESLEY TOBE SMITH, JR.)
*********************************************
DEFENDANT-APPELLANT’S BRIEF
1
INDEX
TABLE OF AUTHORITIES...... ii
QUESTIONS PRESENTED...... 1
STATEMENT OF THE CASE...... 3
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW. . . .3
STATEMENT OF THE FACTS...... 3
ARGUMENT...... 8
I.THE TRIAL COURT ERRED IN ADMITTING A
HEARSAY STATEMENT REGARDING A BLUE
VAN UNDER N.C.G.S. §8C-1 RULE 803(3), AS THE
STATEMENT OF MEMORY OR BELIEF FELL
OUTSIDE THE PARAMETERS OF THEN EXISTING
MENTAL, EMOTIONAL, OR PHYSICAL CONDI-
TION, WAS IRRELEVANT, AND WAS HIGHLY
PREJUDICIAL...... 8
II.THE TRIAL COURT ERRED OR ABUSED ITS
DISCRETION IN PERMITTING LESLIE BURGESS
TO TESTIFY TO THE EFFECTS OF TWO TEN
MILLIGRAM DOSES OF VALIUM...... 13
III.THE TRIAL COURT ERRED, OR COMMITTED
PLAIN ERROR, IN PERMITTING MICHAEL PAGE
TO TESTIFY THAT MR. SMITH CARRIED A POCKET
KNIFE, AS A POCKET KNIFE BORE NO RELEVANCE
TO THE CASE AND SUGGESTED UNRELATED
CRIMINALITY...... 16
IV.THE TRIAL COURT COMMITTED PLAIN ERROR
IN FAILING TO INTERVENE IN GUILT PHASE
CLOSING ARGUMENTS WHEN THE PROSECUTOR
SET FORTH A TIMELINE FOR THE HOMICIDE
WHICH WAS UNSUPPORTED BY THE EVIDENCE...... 19
V.THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN
MR. SMITH’S CONVICTION FOR PREMEDITATED
AND INTENTIONAL MURDER...... 26
VI.THE TRIAL COURT COMMITTED PLAIN ERROR IN
FAILING TO INTERVENE IN THE PENALTY PHASE
CLOSING ARGUMENT WHEN THE PROSECUTOR
COMMENTED ON MR. SMITH’S FAILURE TO
TESTIFY...... 31
VII.THE TRIAL COURT COMMITTED PLAIN ERROR
IN FAILING TO SUA SPONTE INQUIRE WHETHER
MR. SMITH WISHED TO TESTIFY ON HIS OWN
BEHALF IN PENALTY PHASE PROCEEDINGS...... 34
VIII.THE TRIAL COURT LACKED JURISDICTION TO
ENTER A DEATH SENTENCE DUE TO THE
ABSENCE OF AGGRAVATING CIRCUMSTANCES
IN THE INDICTMENT...... 37
IX.THE TRIAL COURT LACKED JURISDICTION TO
ENTER A JUDGMENT OF CONVICTION OF
FIRST DEGREE MURDER, AS THE SHORT-
FORM INDICTMENT FAILED TO ALLEGE THE
ELEMENTS OF OFFENSE...... 39
X.MR. SMITH WAS DEPRIVED OF THE EFFECTIVE
ASSISTANCE OF COUNSEL, AS GUARANTEED
BY THE SIXTH AND FOURTEENTH AMENDMENTS
TO THE UNITED STATES CONSTITUTION AND
ARTICLE I, §§18, 19, 23, 24, 26, AND 35 OF THE
NORTH CAROLINA CONSTITUTION, BY COUN-
SEL’S FAILURE TO MOVE FOR DISMISSAL OF
THE INDICTMENT ON THE GROUNDS THAT THE
INDICTMENT FAILED TO ALLEGE ALL ELEMENTS
OF FIRST DEGREE MURDER AND AGGRAVATING
FACTORS IN SUPPORT OF THE CRIME OF CAPITAL
MURDER, AS REQUIRED BY THE FIFTH, SIXTH,
EIGHTH, AND FOURTEENTH AMENDMENTS TO
THE UNITED STATES CONSTITUTION AND ARTICLE
I, §§18, 19, 22, 23, 27, AND 35 OF THE NORTH CARO-
LINA CONSTITUTION...... 40
XI.THE TRIAL COURT ERRED IN SENTENCING MR.
SMITH TO DEATH, AS THE SENTENCE WAS NOT
SUPPORTED BY THE EVIDENCE, IS DISPROPOR-
TIONATE, AND WAS IMPOSED UNDER THE
INFLUENCE OF PASSION, PREJUDICE, AND OTHER
ARBITRARY FACTORS...... 41
CONCLUSION...... 43
CERTIFICATE OF FILING AND SERVICE...... 44
TABLE OF AUTHORITIES
CASES
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000)...... 38,39,41
Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed.
1314 (1935)...... 20
Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314
(1966)...... 35
Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d
70 (1962)...... 35
Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644
(1948)...... 39
Culberson v. State, 412 So.2d 1184 (Miss. 1982)...... 36
Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d
562 (1975)...... 35
Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d
670 (1961)...... 36
Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d
859 (1976)...... 43
Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d
593 (1975)...... 20
Hodgson v. Vermont, 168 U.S. 262, 18 S.Ct. 80, 42 L.Ed. 461
(1897)...... 39
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
560 (1979)...... 27
Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461
(1938)...... 34
Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143
L.Ed.2d 311 (1999)...... 38,39,41
LaVigne v. State, 812 P.2d 217 (Alaska 1991)...... 36
McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25
L.Ed.2d 763 (1970)...... 40
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966)...... 35
People v. Curtis, 681 P.2d 504 (Colo. 1984)...... 35
Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d
556 (2002)...... 38,39
Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d
37 (1987)...... 35
State v. Al-Bayyinah, 356 N.C. 150, 567 S.E.2d 120 (2002)...... 19
State v. Allen, 353 N.C. 504, 546 S.E.2d 372 (2001)...... 20
State v. Anthony, 354 N.C. 372, 555 S.E.2d 557 (2001),
cert. denied, __ U.S. __, 122 S.Ct. 2605, 153 L.Ed.2d 791
(2002)...... 18
State v. Barfield, 298 N.C. 306, 259 S.E.2d 510 (1979),
cert. denied, 448 U.S. 907, 100 S.Ct. 3050, 65 L.Ed.2d
1137 (1980)...... 42
State v. Barley, 240 N.C. 253, 81 S.E.2d 772 (1954)...... 35
State v. Baymon, 336 N.C. 748, 446 S.E.2d 1 (1994)...... 30
State v. Berry, 356 N.C. 490, 573 S.E.2d 132 (2000)...... 19
State v. Braswell, 321 N.C. 553, 324 S.E.2d 241 (1985)...... 40
State v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000), cert.
denied, 531 U.S. 1130, 121 S.Ct. 890, 148 L.Ed.2d 797 (2001)...... 14
State v. Britt, 285 N.C. 256, 204 S.E.2d 817 (1974)...... 28
State v. Carroll, 356 N.C. 526, 573 S.E.2d 899 (2002)...... 36
State v. Conner, 335 N.C. 618, 440 S.E.2d 826 (1994)...... 27
State v. Conrad, 293 N.C. 735, 239 S.E.2d 260 (1977)...... 27
State v. Davis, 353 N.C. 1, 539 S.E.2d 243 (2000), cert. denied,
534 U.S. 839, 122 S.Ct. 95, 151 L.Ed.2d 55 (2001)...... 32
State v. Davis, 349 N.C. 1, 506 S.E.2d 455 (1998), cert. denied,
526 U.S. 1161, 119 S.Ct. 2053, 144 L.Ed.2d 219 (1999)...... 15
State v. Elliott, 344 N.C. 242, 475 S.E.2d 202 (1996), cert.
denied, 520 U.S. 1106, 117 S.Ct. 1111, 137 L.Ed.2d 312 (1997). . . . 26
State v. Frazier, 142 N.C. App. 207, 541 S.E.2d 800 (2001)...... 27
State v. Frye, 341 N.C. 470, 461 S.E.2d 664 (1995), cert. denied,
517 U.S. 1123, 116 S.Ct. 1359, 134 L.Ed.2d 526 (1996)...... 21
State v. Gappins, 320 N.C. 64, 357 S.E.2d 654 (1987)...... 18
State v. Gibson, 342 N.C. 142, 463 S.E.2d 193 (1995)...... 27
State v. Gray, 347 N.C. 143, 491 S.E.2d 538 (1997), cert. denied,
523 U.S. 1031, 118 S.Ct. 1323, 140 L.Ed.2d 486 (1998)...... 9
State v. Grooms, 353 N.C. 50, 540 S.E.2d 713 (2000)...... 40
State v. Hamilton, 264 N.C. 277, 141 S.E.2d 506 (1965),
cert. denied, 384 U.S. 1020, 86 S.Ct. 1936, 16 L.Ed.2d 1044
(1966)...... 18
State v. Hardy, 339 N.C. 207, 451 S.E.2d 600 (1994)...... 9
State v. Harris, 338 N.C. 129, 449 S.E.2d 371 (1994),
cert. denied, 514 U.S. 1100, 115 S.Ct. 1833, 131 L.Ed.2d
752 (1995)...... 42
State v. Hayes, 314 N.C. 460, 334 S.E.2d 741 (1984)...... 36
State v. Hedgepath, 350 N.C. 776, 517 S.E.2d 605 (1999), cert.
denied, 529 U.S. 1006, 120 S.Ct. 1274, 146 L.Ed.2d 223 (2000)...... 15
State v. Hipps, 348 N.C. 377, 501 S.E.2d 625 (1998), cert. denied,
525 U.S. 1180, 119 S.Ct. 1119, 143 L.Ed.2d 114 (1999)...... 9
State v. Holden, 321 N.C. 125, 362 S.E.2d 513 (1987),
cert. denied, 485 U.S. 1061, 108 S.Ct. 2835, 100 L.Ed.2d
935 (1988)...... 42
State v. Ingle, 336 N.C. 617, 445 S.E.2d 880 (1994), cert. denied,
514 U.S. 1020, 115 S.Ct. 1366, 131 L.Ed.2d 222 (1995)...... 21
State v. Jennings, 276 N.C. 157, 171 S.E.2d 447 (1970)...... 31
State v. Johnston, 344 N.C. 596, 476 S.E.2d 289 (1996)...... 14
State v. Jones, 355 N.C. 117, 558 S.E.2d 97 (2002)...... 20
State v. Jones, 303 N.C. 500, 279 S.E.2d 835 (1981)...... 27
State v. Kemmerlin, 356 N.C. 446, 573 S.E.2d 870 (2002)...... 32
State v. Lee, 335 N.C. 244, 439 S.E.2d 547, cert. denied,
513 U.S. 891, 115 S.Ct. 239, 130 L.Ed.2d 162 (1994)...... 42
State v. LeGrande, 346 N.C. 718, 487 S.E.2d 727 (1997)...... 35
State v. Lloyd, 354 N.C. 76, 552 S.E.2d 596 (2001)...... 14
State v. Locklear, 349 N.C. 118, 505 S.E.2d 277 (1998),
cert. denied, 526 U.S. 1075, 119 S.Ct. 1475, 143 L.Ed.2d
559 (1999)...... 35
State v. Lucas, 353 N.C. 568, 548 S.E.2d 712 (2001)...... 27
State v. Luker, 65 N.C. App. 644, 310 S.E.2d 63 (1983),
aff’d as to error, rev’d as to harmlessness, 311 N.C. 301,
316 S.E.2d 309 (1984)...... 36
State v. Lytch, 142 N.C. App. 576, 544 S.E.2d 570 (2001)...... 18
State v. Malloy, 309 N.C. 176, 305 S.E.2d 718 (1983)...... 27
State v. Mann, 355 N.C. 294, 560 S.E.2d 776, cert. denied,
__ U.S. __, 123 S.Ct. 495, 154 L.Ed.2d 403 (2002)...... 20
State v. McCain, 6 N.C. App. 558, 170 S.E.2d 531 (1969)...... 15
State v. McCall, 286 N.C. 472, 212 S.E.2d 132 (1975),
death sentence vacated, 429 U.S. 912, 97 S.Ct. 301, 50
L.Ed.2d 278 (1976)...... 33
State v. McCray, 312 N.C. 519, 324 S.E.2d 606 (1985)...... 29
State v. Miller, 344 N.C. 658, 477 S.E.2d 915 (1996)...... 36
State v. Misenheimer, 304 N.C. 108, 282 S.E.2d 791 (1981),
overruled in part on other grounds, State v. Weaver, 306 N.C.
629, 295 S.E.2d 375 (1982)...... 30
State v. Mitchell, 353 N.C. 309, 543 S.E.2d 830 (2001)...... 32
State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975)...... 33
State v. Moses, 350 N.C. 741, 517 S.E.2d 853 (1999), cert.
denied, 528 U.S. 1124, 120 S.Ct. 951, 145 L.Ed.2d 826 (2000)...... 18
State v. Murillo, 349 N.C. 573, 509 S.E.2d 752 (1998), cert.
denied, 528 U.S. 838, 120 S.Ct. 103, 145 L.Ed.2d 87 (1999)...... 9
State v. Neuman, 179 W. Va. 580, 371 S.E.2d 77 (1988)...... 36
State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980)...... 27
State v. Prevatte, 356 N.C. 178, 570 S.E.2d 440 (2002)...... 32
State v. Pridgen, 313 N.C. 80, 326 S.E.2d 618 (1985)...... 27
State v. Reid, 334 N.C. 551, 434 S.E.2d 193 (1993)...... 32
State v. Rich, 351 N.C. 386, 527 S.E.2d 299 (2000)...... 15
State v. Robinson, 355 N.C. 320, 561 S.E.2d 245, cert.
denied, __ U.S. __, 123 S.Ct. 488, 154 L.Ed.2d 404 (2002)...... 27
State v. Rouse, 339 N.C. 59, 451 S.E.2d 543 (1994), cert.
denied, 516 U.S. 832, 116 S.Ct. 107, 133 L.Ed.2d 60 (1995)...... 32
State v. Skeen, 182 N.C. 844, 109 S.E. 71 (1921)...... 14
State v. Spaulding, 288 N.C. 397, 219 S.E.2d 178 (1975),
death sentence vacated, 428 U.S. 904, 96 S.Ct. 3210, 49
L.Ed.2d 1210 (1976)...... 14
State v. Stanley, 310 N.C. 332, 312 S.E.2d 393 (1984)...... 38
State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987)...... 27,42
State v. Stokes, 274 N.C. 409, 163 S.E.2d 770 (1968)...... 39
State v. Thacker, 301 N.C. 348, 271 S.E.2d 252 (1980)...... 34
State v. Thibedeaux, 352 N.C. 570, 532 S.E.2d 797 (2000),
cert. denied, 531 U.S. 1155, 121 S.Ct. 1106, 148 L.Ed.2d
976 (2001)...... 9
State v. Thomas, 322 N.C. 544, 423 S.E.2d 75 (1992)...... 28
State v. Wallace, 351 N.C. 481, 528 S.E.2d 326, cert.
denied, 531 U.S. 1018, 121 S.Ct. 581, 148 L.Ed.2d 498
(2000)...... 37,39
State v. Watson, 338 N.C. 168, 449 S.E.2d 694 (1994),
cert. denied, 514 U.S. 1071, 115 S.Ct. 1708, 131 L.Ed.2d
569 (1995), overruled in part on other grounds, State v.
Richardson, 341 N.C. 585, 461 S.E.2d 724 (1995)...... 29
State v. Wells, 78 N.C. App. 769, 338 S.E.2d 573 (1986)...... 35
State v. Williams, 144 N.C. App. 526, 548 S.E.2d 802 (2001),
aff’d, 355 N.C. 272, 559 S.E.2d 797 (2002)...... 28
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984)...... 40
United States v. Cohen, 631 F.2d 1223 (5th Cir. 1980)...... 9
Wright v. Estelle, 572 F.2d 1071 (5th Cir.), cert. denied,
439 U.S. 1004, 99 S.Ct. 617, 58 L.Ed.2d 680 (1978)...... 37
CONSTITUTIONS
North Carolina Constitution
Article I, §18...... 8,13,16,20,27,32,34,
39,40
Article I, §19...... 8,13,16,20,37,32,34,
39,40
Article I, §22...... 38,39
Article I, §23...... 8,32,34,39,40
Article I, §24...... 32,34,40
Article I, §26...... 40
Article I, §27...... 32,34,39,40,42
Article I, §35...... 8,32,34,39,40
United States Constitution
Amendment V...... 32,34,39
Amendment VI...... 38,39,40
Amendment VIII...... 32,38,39,42
Amendment XIV...... 8,13,16,20,26,32,34,
38,39,40,42
STATUTES
North Carolina General Statutes
§8-54...... 32
§8C-1, Rule 401...... 8,16
§8C-1, Rule 402...... 8,18
§8C-1, Rule 403...... 16
§8C-1, Rule 404...... 16
§8C-1, Rule 701...... 14
§8C-1, Rule 803...... 8
§14-17...... 39
§15-144...... 39
§15A-1443...... 12,16,20,32
§15A-2000...... 37,41
OTHER AUTHORITIES
American Bar Association, Guidelines for the Appointment
and Performance of Counsel in Death Penalty Cases (1989)...... 37,41
American Bar Association, Standards for Criminal Justice
Relating to the Defense Function (3rd ed. 1993)...... 36
LaFave & Scott, 2 Substantive Criminal Law (1986)...... 30
National Legal Aid and Defender Association, Standards for
the Appointment and Performance of Counsel in Death
Penalty Cases (1988)...... 41
Note, Waiver of the Criminal Defendant’s Right to Testify:
Constitutional Implications, 60 Fordham L.Rev. 175 (1991)...... 36
O’Neill, Vindicating the Defendant’s Constitutional Right
To Testify at a Criminal Trial: The Need for an On-the-
Record Waiver, 51 U. Pitt. L.Rev. 809 (1990)...... 36
The Revised Rules of Professional Conduct of the North
Carolina State Bar (2003)...... 36
Weinstein & Berger, 4 Weinstein’s Evidence (1995)...... 9
1
No. 607A02NINETEEN-C JUDICIAL DISTRICT
NORTH CAROLINA SUPREME COURT
*********************************************
STATE OF NORTH CAROLINA)
)
v.)From Rowan
)
WESLEY TOBE SMITH, JR.)
*********************************************
DEFENDANT-APPELLANT’S BRIEF
*********************************************
QUESTIONS PRESENTED
1.Whether the trial court erred in admitting a hearsay statement regarding a blue van under N.C.G.S. §8C-1 Rule 803(3), as the statement concerned memory or belief and fell outside the parameters of then existing mental, emotional, or physical condition, was irrelevant, and was highly prejudicial?
2.Whether the trial court erred or abused its discretion in permitting Leslie Burgess to testify regarding the effects of two ten milligram doses of valium?
3.Whether the trial court erred, or committed plain error, in permitting Michael Page to testify that Mr. Smith carried a pocket knife, as a pocket knife bore no relevance to the case and suggested unrelated criminality?
4.Whether the trial court committed plain error in failing to intervene in guilt phase closing arguments when the prosecutor set forth a timeline of the homicide that was unsupported by the evidence?
5.Whether the evidence was insufficient to sustain Mr. Smith’s conviction for premeditated and intentional murder?
6.Whether the trial court committed plain error in failing to intervene in penalty phase closing argument when the prosecutor commented on Mr. Smith’s failure to testify?
7.Whether the trial court committed plain error in failing to sua sponte inquire whether Mr. Smith wished to testify on his own behalf in penalty phase proceedings?
8.Whether the trial court lacked jurisdiction to enter a death sentence due to the absence of aggravating circumstances in the indictment?
9.Whether the trial court lacked jurisdiction to enter a judgment of conviction of first degree murder, as the short-form indictment failed to allege the elements of the offense?
10.Whether Mr. Smith was deprived of the effective assistance of counsel, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, §§18, 19, 23, 24, 26, 27, and 35 of the North Carolina Constitution, by counsel’s failure to move for dismissal of the indictment on the grounds that the indictment failed to allege all elements of first degree murder and aggravating factors in support of the crime of capital murder, as required by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, §§18, 19, 22, 23, 27, and 35 of the North Carolina Constitution?
11.Whether the trial court erred in sentencing Mr. Smith to death, as the sentence was not supported by the evidence, is disproportionate, and was imposed under the influence of passion, prejudice, and other arbitrary factors?
STATEMENT OF THE CASE
On October 10, 2001, the Rowan County Grand Jury indicted Wesley Tobe Smith, Jr. with one count of murder. (Rp. 4)[1] The case came on to be capitally tried at the 6 May 2001 Criminal Session of Rowan County, the Honorable Charles C. Lamm, Jr. presiding. On May 23, 2002, the jury found Mr. Smith guilty of first degree murder. (Rp. 56) On May 29, 2002, the jury returned a binding recommendation that Mr. Smith be put to death. (Rp. 88-97) On the same date, Judge Lamm sentenced Mr. Smith to death. (Rp. 98-99) From the judgment imposed on May 29, 2002, Mr. Smith entered notice of appeal. (Rp. 100-101; Vol. 8Tp. 198)
STATEMENT OF GROUNDS FOR APPELLATE REVIEW
The ground for appellate review is a final judgment of the Superior Court under N.C.G.S. § 15A-1444(a) of which this Court, under §7A-27(a), has exclusive jurisdiction.
STATEMENT OF THE FACTS
Wesley Tobe Smith became friends with Jason Wagner through work. (Vol. 6Tp. 26, 68) Wagner lived with his eighteen year old fiancée Margaret Leighann Martin in a trailer in an isolated area of Rowan County. (Vol. 6Tp. 19, 33) Ms. Martin met Mr. Smith in 2000 when she visited Mr. Wagner at various job sites. (Vol. 6Tp. 27) On several occasions in 2000 and 2001, Mr. Smith spent time with Wagner and Martin, or with Ms. Martin alone, at their trailer. (Vol. 6Tp. 29, 68-69) Mr. Wagner never observed any “static” between Mr. Smith and Ms. Martin. (Vol. 6Tp. 31)
Mr. Smith was a heavy drug user. (Vol. 6Tp. 123, 138; Vol. 7Tp. 544, 587, 601) Mr. Wagner grew marijuana at the trailer and gave or sold it to Mr. Smith on several occasions. (Vol. 6Tp. 24-25, 27, 60, 121) Mr. Smith admitted himself into Charter Hospital in 1999 due to heroin and crack cocaine use. (Vol. 6Tp. 140; Vol. 7Tp. 582) His drug use noticeably increased in September, 2001, as he kept to himself in his room taking any pill available and smoking marijuana. (Vol. 6Tp. 124, 125, 138) Due to the drug use, his behavior got “pretty kooky” in September, 2001, according to his roommate Michael Page. (Vol. 6Tp. 123)
On September 8, 2001, Ms. Martin allegedly told her mother that she planned to tell Mr. Smith to stop coming over and stop hanging out with Mr. Wagner. (Vol. 6Tp. 99-100) Her mother suggested that she ask Wagner to tell Mr. Smith not to come over, as she pointed out that one never knows how a person will respond to being told something like that. Ms. Martin said that she was not afraid of Mr. Smith and would tell him herself. (Vol. 6Tp. 100)
Mr. Wagner came home from work at approximately 11:30 a.m. on September 11, 2001, after hearing about the attack on the World Trade Center. (Vol. 6Tp. 32) He saw a dark burgundy van parked at the trailer and thought it was Mr. Smith’s van. When he entered the trailer, Mr. Smith and Ms. Martin were sitting on opposite ends of the couch watching television. (Vol. 6Tp. 33-34) Mr. Wagner did not notice anything unusual about Ms. Martin’s demeanor. (Vol. 6Tp. 33) Mr. Smith asked if Mr. Wagner was aware of any jobs he could work on. Mr. Wagner said that he did not, but that he would call Mr. Smith if a painting job came his way. Mr. Smith then left. (Vol. 6Tp. 34)
Mr. Smith woke up shortly before 6:00 a.m. on September 12, 2001. (Vol. 6Tp. 128) It was unusual for him to be up so early, as he often slept all day, ran around at night, and returned “wasted” on drugs early in the morning. (Vol. 6Tp. 123; Vol. 7Tp. 548) That morning, he took two ten-milligram doses of valium, three ten-milligram doses of klonopin, two ten-milligram doses of xanax, and unspecified dosages of amitriptyline and midrin. (Vol. 6Tp. 381) His wife, however, did not think that he was under the influence of drugs. (Vol. 7Tp. 578)
Mr. Smith drove to Mr. Wagner’s trailer. According to his confession, Ms. Martin invited him in and the two sat on the couch and talked. She “smarted off” and told him she did not want him around Mr. Wagner because he used drugs and was a bad influence. Ms. Martin then went into the kitchen and started loading the dishwasher. Mr. Smith “went into a rage,” grabbed a knife, and stabbed her multiple times in the chest. Ms. Wagner fell to the floor. Mr. Smith continued stabbing her in the chest and stomach. Ms. Martin begged him to stop and tried to crawl away. Mr. Smith stabbed her in the back. He followed her as she crawled into the bathroom, grabbed a curling iron, and swung it at him. He felt he “couldn’t stop” and continued stabbing her as she lay face down on the floor. Mr. Smith then turned Ms. Martin over and slit her throat. (Vol. 6Tp. 381-382) Ms. Martin sustained approximately sixty knife wounds and died within five to ten minutes of the infliction of fatal wounds due to blood entering her body cavity. (Vol. 7Tp. 504)
Mr. Smith threw the knife and a bloody towel out the car window as he drove from the trailer. (Vol. 6Tp. 383) His driving was erratic by the time he got home. His wife immediately saw that his hand was bleeding. (Vol. 7Tp. 546) Mr. Smith explained to her and his roommate that he had been cut by a man at the Gold Hill Market who wanted to use the telephone. (Vol. 6Tp. 130, 383; Vol. 7Tp. 555) Mr. Smith’s mother-in-law drove him to the hospital. (Vol. 7Tp. 556) Emergency room nurses Leslie Burgess and Christy Myers did not observe any signs of alcohol or drug impairment. (Vol. 6Tp. 223-224, 248) His pulse rate, respiration, and blood pressure tested within normal ranges. (Vol. 6Tp. 216) After returning home, Mr. Smith put his bloody shirt, pants, and shoes in a trash pile in his yard. (Vol. 6Tp. 383)
Police interviewed Mr. Smith on September 17. (Vol. 6Tp. 347-348) Mr. Smith admitted having been at the Wagner-Martin trailer on September 11 to return some marijuana that he had been unable to sell. (Vol. 6Tp. 356) He denied having seen Wagner or Martin since that date. (Vol. 6Tp. 357) Mr. Smith told police about problems Ms. Martin and Mr. Wagner were having (Vol. 6Tp. 356-357) and opined that “Leighann had a thing for me. The way she would act around me and the things she would wear. She would wear tight clothes and see-through clothes.” (Vol. 6Tp. 357-358) Mr. Smith advised police of various medications he took to control his behavior, but said that he had “been having problems lately with being pissed off, angry, and having bad thoughts of hurting himself.” (Vol. 6Tp. 354) He explained that “[a]bout the middle of the month I start getting real pissed and I get very angry and I will go outside and start hitting a tree.” (Vol. 6Tp. 354) Mr. Smith told police that he had cut his fingers skinning copper wire. (Vol. 6Tp. 357)
Police searched Mr. Smith’s residence on September 17 and recovered the bloody clothes and shoes. (Vol. 6Tp. 264, 266, 320, 372) The shoes matched bloody footwear impressions in various rooms of the trailer. (Vol. 6Tp. 176, 186, 196-199; Vol. 7Tp. 479, 481) Police interrogated Mr. Smith a second time on September 17 and he confessed to having killed Ms. Martin. (Vol. 6Tp. 381-383) Mr. Smith told police, “I knew what I had done was wrong. The rage just made me keep on going.” (Vol. 6Tp. 383) He told his wife the next day that he had not meant to hurt Ms. Martin, and that he did not know if he “blacked out. I don’t know if I went crazy and done it, or what.” (Vol. 7Tp. 408, transcript pages 2, 5)
Mr. Smith had no prior history of violence. (Vol. 6Tp. 140; Vol. 7Tp. 566, 595, 602; Vol. 8Tp. 14, 24, 32, 34, 47, 50, 56, 60, 66, 68, 73, 79, 81) He suffered from a personality disorder characterized by immaturity and underdeveloped social and emotional skills necessary for adult functioning. His limited skills were compromised by longstanding substance dependence. (Vol. 7Tp. 610) Dr. William Tyson, an expert in forensic and clinical psychology (Vol. 7Tp. 607), opined to a psychological certainty that Mr. Smith’s ability to premeditate and deliberate this homicide was impaired (Vol. 7Tp. 610), that his capacity to appreciate his behavior was compromised (Vol. 7Tp. 616), and that his ability to conform his behavior and understand proper behavior was probably impaired. (Vol. 7Tp. 616) Mr. Smith’s long term drug dependence and deterioration of his abilities to reason, plan, and anticipate the consequences of actions compromised his ability to act on anything other than impulse. (Vol. 7Tp. 611)
Mr. Smith’s serious drug use began at age fifteen when his mother died. (Vol. 8Tp. 6-7, 17, 30, 65, 78, 82, 84-85) His mother had been very protective of him due to his stuttering (Vol. 8Tp. 5-6), which caused him to be teased by other children. (Vol. 8Tp. 13-14, 61) His wife pulled him out of the drug treatment at Charter Pines (Vol. 8Tp. 17-18, 86) and failed to seek help when Mr. Smith was found passed out in a car with a belt wrapped around his arm. (Vol. 8Tp. 18) Mr. Smith sought out and attended drug treatment after his arrest (Vol. 6Tp. 398-399; Vol. 8Tp. 37) and did not cause any problems while incarcerated prior to trial. (Vol. 8Tp. 75)
The jury found that the single aggravating factor submitted, that the murder was especially heinous, atrocious, or cruel, was proven beyond a reasonable doubt. (Rp. 89) One or more jurors found the following non-statutory mitigating factors: that Mr. Smith has no history of violence or aggression towards others, and this murder is out of character for him; that Mr. Smith’s mother was killed suddenly and tragically in a head-on collision when he was fifteen and her death had a dramatic and significant impact on him; that Mr. Smith has a surviving family consisting of his father, two older sisters, and three children, all of whom love and care for him; and that, prior to his arrest, Tobe Smith gave a statement to law enforcement admitting his guilt. (Rp. 92-93) The jury found that the mitigating circumstances proven were insufficient to outweigh the aggravating circumstance and recommended a sentence of death. (Rp. 95-96)