Wilbert James Smith Motion for Acquittal

7/29/2019 Wilbert James Smith Motion for Acquittal

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IN THE CIRCUIT COURT OF MADISON COUNTY, ALABAMA

STATE OF ALABAMA, ))

v. ) CASE NOS: CC-2010-1164;1165;1166)WILBERT J AMES SMITH, ) EVIDENTIARY HEARING REQUESTED

Defendant. )

MOTION FOR JUDGMENT OF ACQUITTAL , OR,IN THE ALTERNATIVE, MOTION FOR NEW TRIAL

Comes Now the Defendant, Wilbert James Smith, and files this motion for judgment of

acquittal, or, in the alternative, motion for new trial, and, in support thereof, states the following:

THE FACTS

1. On January 21, 2009, Defendant was arrested in the murders of Ronnie Pugh Jr. and

Bertjenski Jamel Peterson and charged with murder made capital because two or more persons

will killed by one act or pursuant to one scheme or course of conduct, a violation of Ala. Code

(1975) 13A-5-40(A)(10).

2. On February 12, 2010, a Grand Jury indicted Defendant on one count of said charge

and two additional counts of murder made capital because Defendant had previously been

convicted of another murder within 20 years preceding the instant offense charged, violating Ala.

Code (1975) 13A-5-40(A)(13). Specifically, the indictment stated that Defendant intentionally

caused the death of Pugh and Peterson by shooting them with a pistol.

3. Defendant was imprisoned for more than four years pending trial.

4. On February 11, 2013, a jury trial began and lasted for multiple days. At trial, the

State presented the following evidence in its case-in-chief:

ELECTRONICALLY FILED3/22/2013 9:23 PM

47-CC-2010-001164.00CIRCUIT COURT OF

MADISON COUNTY, ALABAMJANE C. SMITH, CLERK


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a. There was testimony that the victims were bound, gagged, and shot during anapparent home invasion and that the cause of death was homicide.

b. There was testimony that several blood droplets were located at the scene andDNA was collected for forensic examination.

c. There was expert testimony that tests of approximately four blood dropletscollected at the scene were matched to Defendants DNA. However, there was

no corroborating evidence placing Defendant at the scene of the murders on the

date in question.

d.

A Madison County jail inmate, indentified by Defendant as Trinyell Coats,

testified that the residence where the victims were killed was, in fact, a drug

house, suggesting that the motive for the murders was robbery. Coats further

testified that he and victims sold drugs from the location, and that he had been at

the scene with one of the victims on the day of August 28, 2003. Coats further

testified that he left the residence and thereafter placed a call to a cell phone of

one of the victims. Coats stated that the victim answered the call and, during their

conversation, stated What up Coop? to a visitor who arrived at the residence.

Finally, Coats testified that he returned to the residence later that day and entered

to the house, whereupon he found the bodies of the victims.

e. There was no testimony from any witness regarding the efforts to indentify thevisitor named Coop. Furthermore, the State did not present any testimony

regarding the law enforcements efforts to indentify the individuals who may have

placed calls to or received calls from the victims cell phones on the day of the

murders.


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f. There was expert testimony that bullets were extracted from the bodies duringautopsy. The bullets were identified as being fired from a .9mm firearm and a .45

cal. firearm.

g. There was evidence that a .9mm firearm was found in the possession of Coats atthe scene. There was further evidence that a .45 cal. firearm was recovered from

a vehicle located at the scene. A third firearm, a .38 cal., was recovered from one

of the victims.

h. There was no evidence of any ballistic testing conducted on the bullets extractedfrom the bodies of the victims in an effort to match those bullets to the firearms

recovered at the scene. Moreover, there was no evidence connecting the

Defendant to any of the firearms recovered at the scene.

i. Finally, improper statements were made to the jury concerning Defendants priormurder conviction, despite the pre-trial joint stipulation between the parties that

no such statements would be made to the jury.

5. Once the state rested its case, the defense moved for directed verdict, arguing that the

case should be dismissed because the state had failed to prove the elements of the crime as

charged in the indictment. The Court denied the motion.

6. The defense put on no witnesses and presented no evidence. The defense rested its

case, and renewed its motion for directed verdict. Again, the Court denied the motion.

7. Thereafter, the Court instructed the jury on the applicable law. The Courts jury

instructions included an instruction on complicity, pursuant to Ala. Code (1975) 13A-2-23. The

given instruction was inconsistent with the charges as stated in the indictment, in that the


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indictment failed to state that Defendant procured, induced, or caused another person to commit

the offense, or that he aided or abetted such other person in committing the offense.

8. The jury deliberated for several hours, during which jurors sent questions to the Court

regarding the Courts instruction on complicity. After receiving further instruction from the

Court on said charge, the jury returned a verdict of guilty on all counts.

9. On February 20, 2013, Defendant was sentenced to life without parole in the state

penitentiary.

10. Thereafter, Defendant timely filed his Motion for New Trial, or, in the alternative,

Motion for J udgment of Acquittal. SeeAla.R.Crim.P. 20.3(b)(1), (2)(c); Ala.R.Crim.P. 24.1(b).

I. MOTION FOR JUDGMENT OF ACQUITAL

11. Defendant moves this Honorable Court for judgment of acquittal based on

insufficiency of the evidence.

12. Defendant was convicted solely on DNA evidence purportedly placing him at the

scene of the crime. However, there was no corroborating evidence placing Defendant at the

scene when the murders occurred. Furthermore, there was no evidence connecting Defendant to

any purported murder weapons used in the offense.

13. Defendant maintains that he was convicted, based on said evidence, under a theory of

accomplice liability, because there was no evidence identifying Defendant as the shooter in this

case in order to support the charge of intentional murder, as specifically stated in the indictment.

14. Furthermore, Defendant maintains that he was convicted under accomplice liability

based on his purported presence at the scene, which was established solely on the purported

match between DNA recovered at the scene and Defendants DNA previously stored in a State

database.


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15. Defendant maintains that he was not present at the scene at the time of the murders.

Assuming, without conceding, that the DNA evidence presented was sufficient to establish his

presence at the scene, mere presence at the scene of a crime is insufficient evidence of knowing

participation in the crime charged. The evidence of knowledge must be clear and not equivocal.

J ones v. State, 481 So. 2d 1183, 1184 (Ala.Crim.App. 1985).

16. In Gamble v. State, the Alabama Court of Criminal Appeals explained the

requirements of proof for establishing the criminal liability of an accomplice in a capital offense:

Aid and abet comprehend all assistance rendered by acts or words ofencouragement or support or presence, actual or constructive, to render assistance

should it become necessary. Jones v. State, 174 Ala. 53, 57, 57 So. 31(1911)(quoted inRadke v. State,292 Ala. 290, 292, 293 So.2d 314 (1974)). If thejury is convinced beyond a reasonable doubt that the defendant was present with aview to render aid should it become necessary, the fact that the defendant is anaider and abettor is established.J ones, supra; Raiford v. State, 59 Ala. 106, 108(1877). The culpable participation of the accomplice need not be proved bypositive testimony, and indeed rarely is so proved. Fuller v. State, 43 Ala.App.632, 198 So.2d 625. Rather, the jury must examine the conduct of the parties andthe testimony as to the surrounding circumstances to determine its existence.Miller v. State, 405 So.2d 41, 46 (Ala.Cr.App.1981); Watkins v. State, 357 So.2d156, 159 (Ala.Cr.App.1977), cert. denied, 357 So.2d 161 (Ala.1978).

17. In the instant case, the jury was presented with no evidence to allow an examination

of the conduct of Defendant, nor was there testimony concerning any surrounding

circumstances tying Defendant to this offense. Again, the only evidence presented of that

nature was the purported DNA match.

18. Defendant maintains that evidence presented at trial was not sufficient to establish a

match between DNA collected at the scene and his DNA stored in the database.

19. Even assuming that such evidence was sufficient to establish Defendants presence at

the scene at some unknown point in time, under the above-cited authorities, Defendants mere

presence at the scene was not sufficient to establish his participation in the crime charged.


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20. Thus, Defendant prays that this Court grant the relief requested by entering a

judgment of acquittal on all convictions in this case.

I I. MOTION FOR NEW TRIAL

21. When a Defendant has been sentenced, the Court, on motion of Defendant, may

order a new trial. Ala.R.Crim.P. 24.1(a).

22. The Court may grant the motion for the reason that the verdict is contrary to law or to

the weight of the evidence; or if for any other reason the defendant has not received a fair and

impartial trial. Ala.R.Crim.P. 24.1(c)(1)-(2).

23. For the reasons set forth more fully below, the verdict is contrary to law and to the

weight of the evidence. Additionally, for the reasons set forth more fully below, the Defendant

has not received a fair and impartial trial due to the Courts rulings and instructions on matters of

law.

(A) THE DNA EVIDENCE

24. Defendant maintains that the State failed to establish the reliability of the particular

DNA testing procedures used to match the DNA recovered from the crime scene to

Defendants DNA. Furthermore, Defendant maintains that the State failed to establish the

relevancy of said testing procedures at trial.

25. Defendant maintains that, at trial, his trial counsel objected to the admissibility of

said expert testimony and other evidence offered to establish the purported DNA match on the

basis that the reliability of such evidence had not been established.

26. Once the admissibility of this evidence was contested, the Court was required to hold

a hearing, outside the presence of the jury, to determine whether the proponent of the evidence


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had sufficiently established the reliability and relevancy of the challenged evidence. SeeAla.

Code (1975) 36-18-30, see also Turner v. State, 746 So.2d 355, 361 (Ala. 1998).

27. Defendant maintains that the Court failed to hold a hearing outside the presence of

the jury after his trial counsel raised the challenge, and, as a result, the admissibility of such

evidence was error, because the jury was mislead into believing that the offered DNA

comparisons resulted in an accurate match.

(B) INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

28. Defendant further maintains that after said evidence was admitted by the Court, his

counsel failed to adequately cross-examine the States expert about whether the DNA testing

procedures employed in this case were, in fact, performed without error. Defendant further

maintains that his trial counsel raised no meaningful challenge to the expert testimony and DNA

evidence, after such evidence was admitted by the Court.

29. The purported DNA evidence was on the only evidence offered by the State to link

Defendant to the crime.

30. Defendant maintains that his trial counsel failed to consult with a DNA testing

expert, despite having more than four years to prepare for trial. Defendant further maintains that

had his counsel consulted with said expert, Defendant could have challenged the weight of the

DNA evidence offered by the state.

31. Defendant maintains that because his trial counsel failed to consult with said expert,

and because his trial counsel presented no witnesses in his defense, he was denied effective

assistance of counsel.

32. The Sixth Amendment guarantees criminal defendants the effective assistance of

counsel. McMann v. Richardson, 397 U.S. 759, 771, n.14 (1970). Moreover, the right is denied


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when a defense attorney=s performance falls below an objective standard of reasonableness and

thereby prejudices the defense.Wiggins v. Smith, 539 U.S. 510(2003).

33. The U.S. Supreme Court set the standard for ineffective assistance claims in

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). InStrickland,

the U.S. Supreme Court stated that:

The purpose of the Sixth Amendment guarantee of counsel is to ensure that adefendant has the assistance necessary to justify reliance on the outcome of theproceeding.[A] defendant need not show that counsel=s deficient conduct more likely thannot altered the outcome in the case.

The defendant must show that there is a reasonable probability that, but forcounsel=s unprofessional errors, the result of the proceeding would have beendifferent. A reasonable probability is a probability sufficient to undermineconfidence in the outcome.[A] court should keep in mind that the principles we have stated do not establishmechanical rules. Although those principles should guide the process of decision,the ultimate focus of inquiry must be on the fundamental fairness of theproceeding whose result is being challenged. In every case the court should beconcerned with whether, despite the strong presumption of reliability, the result ofthe particular proceeding is unreliable because of a breakdown in the adversarialprocess that our system counts on to produce just results.

104 S.Ct. at 2067-2069 (emphasis added); See alsoEx Parte Lawley, 512 So.2d 1370 (Ala.1987).

34. With regard to the prejudice requirement, a movant must establish that, but for

counsel's deficient performance, the outcome of the proceeding would have been different.

Strickland, 466 U.S. at 694. Furthermore, the movant must establish that counsels errors were

so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Lockhart,

506 U.S. at 369 (quotingStrickland, 466 U.S. at 687).

35. To establish ineffective assistance, the movant must also provide factual support for

his contentions regarding counsels performance. Smithv. White,815 F.2d 1401, 1406-07 (11th


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Cir.),cert. denied, 484 U.S. 863, 108 S.Ct. 181,98 L.Ed.2d 133 (1987). Bare, conclusory

allegations of ineffective assistance are insufficient to satisfy theStrickland test.Tejada v.

Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991); Stano V. Dugger, 901 F.2d 898, 899 (11th Cir.

1990) (citingBlackledge,431 U.S. at 74,97 S.Ct. at 1629).

36. The instant case is not a case where tactical decisions are being criticized as

ineffective, but in effect trial counsel did not take reasonable steps to defend. SeeLuke v. State,

484 So.2d 531 (Ala.Crim.App. 1985), cert. den. (Ala. 1986). InCave v. Singletary, the U.S.

Supreme Court stated in:

A

[T]he mere incantation of the word>

strategy=

does not insulate attorney behaviorfrom review. The attorneys choice of tactic must be reasonable under thecircumstances . . . [T]he question of whether a decision was a tactical one is aquestion of fact . . . . However, whether this tactic was reasonable is a question oflaw.

Cave v. Singletary, 971 F.2d 1513, 1518 (11th Cir. 1992).

37. Defendant contends his trial attorney was ineffective for a number of reasons that are

more fully set out below.

38. Defendants trial counsel was ineffective for failing to properly investigate sources of

evidence which were crucial to his defense. SeeMagwood v. State, 791 F.2d 1438 (11th Cir.

1979); Davis v. State, 586 F.2d 1214 (5th Cir. 1979) reh. den. 601 F. 2d 586, vacated 446 U.S.

903, on remand 623 F.2d 366; Waldrop v. State, 523 So.2d 475 (Ala. Crim. App. 1987) cert. den.

(Ala. 1988).

39. InUnited States v. Yizar, 956 F. 2d 230, 232-33 (11thCir. 1992) it was held that

failure of counsel to interview government witnesses, to conduct basic discovery, or to consider

potential defense witnesses was prejudicial. InKimmelman v. Morrison, 477 U.S. 365, 385

(1986), it was held to be ineffective assistance when counsel failed to conduct any pretrial


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discovery and failed to file timely pre-trial motions to suppress illegally seized evidence.

40. InU.S. v. Rowe, 446 F. Supp. 1039, 1044, 1045 (N.D. Ill. 1978) it was stated that:

AWhen inadequate representation is alleged, the critical factual inquiry ordinarily

relates to matters outside the trial record: whether the defendant had the defensewhich was not presented; whether trial counsel consulted sufficiently with theaccused, and adequately investigated the facts and the law; whether the omissionscharged the trial counsel resulted from inadequate preparation rather than fromunwise choices of trial tactics and strategy.@

41. In the instant case, Defendant repeatedly informed trial counsel that he was not

present at the scene on the date of the murders. Defendant requested trial counsel to investigate

his whereabouts on the date in question, which was more than four months before his arrest and

pre-trial detention. Trial counsel failed to adequately investigate Defendants whereabouts on

said date, despite having the ability to contact Defendants employer, review his bank and/or cell

phone records, and interview his family, friends, and associates. Trial counsels failure to

investigate this defense resulted in effective assistance and prejudiced defendant by prohibiting

him from presenting any meaningful defense.

42. Trial counsel did not call any witnesses. For several months prior to trial, Defendant

specifically instructed trial counsel to interview Ulanda Lewis, his fianc and the mother of his

two children, for purposes of testifying at trial. If given the opportunity, Ms. Lewis would have

testified to Defendants good character and reputation for peacefulness, particularly since he was

released from prison on the first murder charge. Ms. Lewis would have testified to Defendants

care and support for her and their two children, his determination to turn his life around from the

mistakes of his youth, and his consistent good deeds toward others.

43. The defendant=s character and reputation were relevant in this case. Because the

indictment stated that Defendant had previously been convicted of murder, trial counsel should

have presented character witnesses to explain and to mitigate Plaintiffs role in the previous


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conviction and to explain his reformed character since being released from prison on that prior

conviction. The failure of trial counsel to present any character witnesses prejudiced Defendant

in that the jury likely believed that Defendant must have committed the crime charged because

he had previously been convicted of murder.

44. Had the defendant placed character and reputation witnesses into evidence the

defendant would have been entitled to a jury charge regarding same. In fact the defendant would

have been entitled to an instruction from the Court that good character itself in connection with

all the evidence could generate a reasonable doubt and entitle the defendant to an acquittal. See

Kilpatrick v. State, 37 Ala. app. 165, 168, 66 So. 2d 441(1953); see also United States v.

Darland, 626 F.2d 1235, 1237-1238, (5thCir. 1980) , Harrison v. Dugger, 874 F. 3d 756, 764

(11th Circ. 1969) (Testimony about the appellants good character constituted the only means of

showing that Harris was perhaps less reprehensible than the facts of the murder indicated.).

45. Trial Counsels failure to call any witnesses, including character witnesses, for

Defendant constituted ineffective assistance.

46. Furthermore, trial counsel failed to properly investigate this case during the four-year

period preceding the trial.

47. An attorney has a duty to conduct a reasonable investigation, including an

investigation of the defendants background, for possible mitigating evidence, APorter v.

Singletary, 14 F. 3d 554, 557 (11th Cir. 1994). A[T]he failure to [investigate] may render

counsels assistance ineffective.@Baxter v. Thomas, 45 F. 3d 1501, 1513 (11th Cir. 1995).

48. An attorney may, under some circumstances, make a strategic choice not to conduct

a particular investigation, seeDobbs v. Turpin, 142 F. 3d 1383, 1387 (11th Cir. 1998). A

particular decision not to investigate must be directly assessed for reasonableness in all the


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circumstances, applying a heavy measure of deference to counsel=s judgments. Id. 1387-88

(quotingStrickland, 466 U.S. at 691 , 104 S. Ct. at 2066).

49. Effective representation of counsel encompasses the independent duty to investigate

and prepare the case.Dill v. State, 484 So. 2d 491 , 497 (Ala.Crim.App. 1985) (cited in State v.

Terry, 601 So. 2d at 164).

50. Failure to investigate and failure to put on witnesses cannot be categorized as

effective trial strategy.

51. A trial counsel has the duty to exercise diligence in preparing a case for trial and in

procuring witnesses.Weaver v. State, 401 So. 2d 344 (Ala.Crim.App. 1981).

52. A strategic decision cannot be reasonable when the attorney has failed to investigate

his options and make a reasonable choice between them.Horton v. Zant, 941 F. 2d 1449 (11th

Cir. 1991).

53. Moreover, when a lawyer fails to conduct a substantial investigation into any of his

client=s plausible lines of defense, the lawyer has failed to render effective assistance of counsel.

House v. Balkcom, 725 F. 2d 608, 615 (11thCir. 1984). Failure to investigate a particular

defense falls below the customary level of skill and knowledge required when only one defense

is available. Profitt v. Waldron, 831 F. 2d 1245 (5thCir. 1987); Beavers v. Balkcom, 636 F. 2d

114 (5thCir. 1981). See alsoBouchillon v. Collins, 907 F. 2d 589, 597(5thCir. 1990).

54. In this case witnesses were available to testify to critical matters in support of

Defendants defense. Defendant had other witnesses available, none of whom met with his

attorney, most of all whom his attorney knew of, but never interviewed.

55. Accordingly, trial counsels performance was inadequate in this regard.

(C) EVIDENCE INSUFFICIENT TO SUSTAIN CONVICTION


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56. In determining the sufficiency of the evidence to sustain the conviction, this Court

must accept as true the evidence introduced by the State, accord the State all legitimate

inferences therefrom, and consider the evidence in the light most favorable to the prosecution.

Faircloth v. State, 471 So.2d 485, 489 (Ala. Cr. App. 1984). However, even under this stringent

standard, and for the reasons stated above, the evidence was not sufficient to convict Defendant

of multiple counts of capital murder, subjecting him to a life without parole sentence for crimes

he was not guilty of committing.

VI. CONCLUSION

57. Defendant respectfully requests an evidentiary hearing on this motion.

58. InMurray v. Carrier, 477 U.S. 478, 496 (1986) it was stated that [T]he right to

effective assistance of counsel . . . may in a particular case be violated by even an isolated error

of counsel if that error is sufficiently egregious and prejudicial.

59. Trial counsel=s representation of defendant fell below the range of reasonable

representation. Based on the arguments presented herein and the evidence to be presented at an

evidentiary hearing, if granted, it is reasonably predictable that the outcome of this case would

have been different if trial counsel had prepared and represented defendant properly.

60. There are sufficient questions raised as to trial counsel=s competence to undermine

confidence in the outcome of the trial. StricklandU.S. 694 at 466.

61. Therefore, Defendant prays that this Court will grant the requested relief by vacating

the conviction and setting this case for a new trial.

Respectfully submitted this 20th

s/Susan G. James

day of March, 2013.

SUSAN G. JAMESThe James Firm600 South McDonough Street


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Montgomery, Alabama 36104Phone: (334) 269-3330Fax: (334) 263-4888E-mail: [email protected] No: JAM012

CERTIFICATE OF SERVICE

I hereby certify that on March 20, 2013, I electronically filed the foregoing with theClerk of Court using the Alafile system, which will send notification of such filing to thefollowing: William Starnes, 100 North Side Sq., Huntsville, 35801.

/s/Susan G. JamesSUSAN G. JAMES

Wilbert James Smith Motion for Acquittal

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