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Kenneth Eugene SMITH v. STATE of Alabama.


Decided: February 10, 2012

Kenneth Eugene Smith was convicted and sentenced to death for the capital murder of Elizabeth Dorleen Sennett. Smith's conviction and sentence were affirmed by this Court. Smith v. State, 908 So.2d 273 (Ala.Crim.App.2000). The Alabama Supreme Court granted certiorari review but later quashed the writ of certiorari as having been improvidently granted. Ex parte Smith, 908 So.2d 302 (Ala.2005). The United States Supreme Court denied review. Smith v. Alabama, 546 U.S. 928, 126 S.Ct. 148, 163 L.Ed.2d 277 (2005). Smith then filed a petition pursuant to Rule 32, Ala. R.Crim. P., and he raised numerous grounds that, he said, warranted relief from his conviction and sentence. Smith filed an amended Rule 32 petition. The trial court summarily dismissed Smith's petition, and Smith appealed to this Court. This Court reversed the trial court's judgment and remanded the case for further proceedings. Smith v. State, [Ms. CR–07–1412, Dec. 17, 2010] ––– So.3d –––– (Ala.Crim.App.2010). Specifically, this Court held that the trial court had erred because it addressed the claims in Smith's initial petition even though that petition had been superseded by the amended petition, and this Court directed the trial court to address the allegations in the amended petition.

On July 21, 2011, the trial court entered an order that stated, in relevant part:

“[T]here are claims alleged within [Smith's] First Amended Petition concerning the challenge to the handling of the afghan and the failure to disclose to the defendant's counsel that the hair collected from the afghan was not consistent with [Smith's] hair, in violation of Brady. This Court directs that [Smith] shall elaborate further on his claims that the afghan played a significant role in his conviction and the failure to adequately challenge the evidence of the afghan amounted to ineffective assistance of counsel. [Smith] shall also elaborate on his claim that the State failed to disclose that the hair collected from the afghan was not consistent with Petitioner's hair in violation of Brady; the significance of this evidence and elaborate further on the allegation that this evidence was deliberately withheld from [Smith's] trial attorneys.

“[Smith] also alleges that there exists newly discovered evidence that indicates that the Trial Judge failed to properly consider the mitigating circumstances in this case and acted under public pressure in overriding the jury's recommended sentence. [Smith] is allowed to submit any affidavits that he may choose in support of each of his claims in regard to the afghan and hair evidence as well as in support of his claim that the Trial Judge did not consider the mitigating circumstances and acted under public pressure. These affidavits will be accepted in lieu of testimony in support of [Smith's] claims.”

(Remand C. 100–01.)1

On April 15, 2011, Smith filed a memorandum to elaborate on the claims as directed by the trial court, and he submitted four affidavits and numerous exhibits in support of those claims. The trial court granted the State the opportunity to submit affidavits in response to those submitted by Smith, but the State did not file any affidavits. The parties submitted written arguments in which each addressed the claims in the amended petition and the affidavits submitted by Smith. On July 13, 2011, the trial court entered an order denying Smith's amended Rule 32 petition. Smith and the State have filed briefs in this Court on return to remand in which they address the trial court's order.

We are compelled by controlling caselaw from the Alabama Supreme Court to remand this case because the trial court failed to comply with Rule 32.9, Ala. R.Crim. P., when it summarily dismissed some of the claims on which it had already permitted Smith to present evidence. In Ex parte McCall, 30 So.3d 400, 403 (Ala.2008), the Alabama Supreme Court relied on its earlier decision in Ex parte Grau, 791 So.2d 345 (Ala.2000), and held that if a trial court does not dismiss a petition pursuant to Rule 32.7(d), Ala. R.Crim. P., and the court instead holds a hearing, then “the trial court is required to make findings of fact as to each of the material issues upon which the hearing was held.” Specifically, the McCall Court held:

“[A] hearing need not be held if the petitioner fails to adequately present a material issue. If, however, the court holds a hearing, then Rule 32.9, Ala. R.Crim. P., provides, in pertinent part, as follows:

“ ‘(a) Hearing. Unless the court dismisses the petition, the petitioner shall be entitled to an evidentiary hearing to determine disputed issues of material fact ․

“ ‘․

“ ‘(d) Findings of Fact. The court shall make specific findings of fact relating to each material issue of fact presented.’

“Thus, the trial court must first determine whether the petition raises ‘material issue[s] of fact or law ․ which would entitle the petitioner to relief under [Rule 32].’ Rule 32.7(d). Once a hearing is held on those issues, the trial court is required to make findings of fact as to each of the material issues upon which the hearing was held. See Ex parte Grau, [791 So.2d 345 (Ala.2000) ].

“In this case, McCall petitioned for postconviction relief alleging 12 grounds of ineffective assistance of counsel. The trial court held an evidentiary hearing on the petition. By holding that hearing, the trial court implicitly found that the issues presented were ‘material issue[s] of law or fact ․ which would entitle [McCall] to relief,’ Rule 32.7(d), and, under Rule 32.9(d), the trial court therefore had a responsibility to make findings of fact as to each of those issues. Instead of issuing any such findings, however, the trial court dismissed McCall's petition on the ground that his ‘bare allegations' of prejudice were not sufficient to state a claim of ineffective assistance of counsel. Although this conclusion may have been an appropriate basis for a summary dismissal of the petition before a hearing was held, once a hearing has been held Rule 32.9(d) requires findings of fact in support of the judgment. Under our decision in Ex parte Grau, [791 So.2d 345 (Ala.2000),] the trial court's failure to issue such findings is grounds for reversal. Therefore, the Court of Criminal Appeals' decision to affirm the trial court's judgment conflicts with Ex parte Grau, and we reverse the Court of Criminal Appeals' decision and remand the case to that court for proceedings consistent with this opinion.”

30 So.3d at 403–04 (emphasis added; footnote omitted).2

The trial court made specific factual findings in its resolution of claims regarding the trial court's sentencing determination, but it summarily dismissed several claims regarding the afghan and the hair sample found on the afghan. Because the trial court permitted Smith to present evidence on those claims, the trial court could not thereafter summarily dismiss the claims. Based on precedent established by the Alabama Supreme Court we have no choice but to remand the cause for the trial court to comply with Rule 32.9(d), and to make specific findings relating to each material issue of fact presented on those claims involving the hair and the afghan on which the trial court permitted Smith to present evidence.3

As we stated in Andrews v. State, 38 So.3d 99 (Ala.Crim.App.2009), a case that presented similar circumstances:

“Although it seems a waste of scarce judicial resources to remand this case for the trial court to enter a new order setting forth its specific findings of fact, we are nevertheless bound by the Court's holding in Ex parte McCall. However, as [then] Presiding Judge Wise 4 has written, we ‘urge the Alabama Supreme Court to consider amending Rule 32.9(d) so that in future cases, this Court has the discretion to determine whether a remand is necessary.’ Johnson v. State, 976 So.2d 1052, 1053 (Ala.Crim.App.2007) (Wise, J., dissenting).”

38 So.3d at 104.

Additionally, we note that in Part III.C. of its July 13, 2011, order on return to remand the trial court referred to “item number '539” ' from what was purported to be a memorandum from criminalist John Kilbourn regarding the trace-evidence examination; that document was attached as part of Exhibit 4 to the affidavit of Palmer Singleton, one of Smith's attorneys at his retrial. (Remand C. 138.) After the trial court filed its order Smith filed a motion in the trial court in which he sought to clarify the record by substituting a corrected copy of Exhibit 4 to Singleton's affidavit. (Remand C. 1057–59.) Smith stated in the motion that the page that contained the reference to item number 539 was not part of Kilbourn's report but was part of a summary of Kilbourn's testimony in Smith's first trial that a defense attorney had prepared and that the page had been inadvertently included at the end of Exhibit 4. On August 18, 2011, the trial court entered an order in which it stated that Smith's motion to clarify the record and substitute a corrected exhibit could not be ruled on without direction from this Court. (Remand C. 149.) On remand, the trial court shall rule on Smith's motion to clarify the record, and, if the court permits the substitution of Exhibit 4 that does not contain the page that refers to item number 539, the trial court shall, of course, be permitted to amend its order in light of the substitution.

This cause is therefore remanded to the circuit court for proceedings consistent with this opinion. The circuit court is directed to take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time within 28 days from the release of this opinion.


WELCH, Judge.

WINDOM, P.J., and KELLUM, BURKE, and JOINER, JJ., concur.