Case Summary - Demetrius Dewayne Smith v. State

Demetrius Smith had been dating Tammie White, a mother of three. However, after they broke up, he called her and threatened her life. He called her and told her “You think I’m playing with you bitch? You’re going to die today.” Later, White was at her home with her eleven-year-old daughter, Kristina who was playing with her friends. Smith forced his way into the residence, shot White in the chest, neck, and head at close range. Kristina had followed Smith inside. She picked up a kitchen knife, presumably for protection, and ran back outside to warn the other children shortly after Smith shot her mother. Then, she ran around a car, dropped the knife, and curled up in a ball for protection. Smith found her and shot her twice, once in the top of the head, before leaving to go find Tamara, Kristina’s fourteen-year-old sister who was not at home at the time.

A jury convicted Smith of capital murder for killing more than one person in the same criminal transaction and sentenced him to death. On appeal he raised twenty-six issues, several of which were non-issues. The Court of Criminal Appeals affirmed. As per my usual practice, I’ll break them down into subject groups.

Motion to Quash/Objection to Amendment of the Indictment – Smith complained that the trial court should’ve granted his motion to quash the indictment or sustained his objection to the State’s inclusion of the phrase “during the same criminal transaction” in the indictment before jury selection. According to Smith this changed two separate counts of murder into one count of capital murder and therefore violated Article 28.10 and his right to a grand jury indictment. The CCA held that Smith was not harmed because it was clear that he’d received notice of the State’s theory of the case, namely that this was a capital murder case. The State’s “Notice of the Intent to Seek the Death Penalty” might have been a clue. Moreover, his substantive rights weren’t harmed as he clearly had actual notice of the capital charge. The indictment alleged two murder victims and it listed the charge as “Capital Murder”, though it failed to specify whether this was two murders during the same transaction or two murders pursuant to the same course of conduct. Smith’s attorney worked for months preparing for a capital murder charge, so clearly had had notice.

Granting Challenges for Cause - Smith also complained that the trial court granted nine challenges for cause based upon the jurors’ personal beliefs against capital punishment in violation of Witherspoon v. Illinois. The CCA went over each juror’s interview individually and rejected Smith’s argument. The jurors either equivocated or indicated that their views against the death penalty would prevent or substantially impair the performance of their duties as jurors.

Lesser Included Offense Instruction – Smith complained that the trial court improperly failed to include a jury instruction on the lesser-included offense of murder. Obviously murder is a lesser-included offense of capital murder. Moreover, there was no evidence to show that if Smith was guilty, he was only guilty of the lesser-included offense of murder. Sure, Kristina had picked up a kitchen knife, but there was no evidence that she had ever threatened Smith with it, or that he’d even seen her in possession of the knife. Regardless, the evidence showed that Smith killed Kristina in “a continuous and uninterrupted chain of conduct occurring over a very short period of time . . . in a rapid sequence of unbroken events”. No evidence contradicted that. Thus, the CCA held Smith wasn’t entitled to a lesser-included instruction on murder.

Failure to Define Same Criminal Transaction - Smith complained that the trial court failed to define “same criminal transaction” in the jury charge. The CCA noted that the phrase was not defined by statute and held that jurors could be presumed to attach a common understanding of the phrase. Moreover, there was no evidence that Smith was guilty of only one murder, so any error would not have contributed beyond a reasonable doubt to Smith’s conviction.

Testimonial Statements in Pen Packets – At punishment the State introduced two pen packets that contained bare bones recitations of infractions or disciplinary violations committed by Smith while in prison during previous incarcerations. Many of the violations were trivial, but the CCA notes that the reports still contained testimonial statements. Moreover, the Court singled out two particular documents that go beyond sterile descriptions because the reports appear to have been copied from corrections officers reports and contain detailed descriptions of the Smith’s disciplinary offenses. While these documents violated Smith’s right confront witnesses under Crawford, the Court ultimately held their introduction was harmless as the State did not emphasize them and focused instead on the heinousness of the capital murder itself.

[Note: The Court could have been clearer about what it found admissible and inadmissible in the records. Segundo went to great trouble to explain that Russeau found statements within records objectionable, but not the entire set of records. The CCA appears to do that here as well, but then it doesn’t make clear what the two documents are that they find objectionable. Are summaries of the violations okay, or are they testimonial, too?]

Judge Keasler filed a concurring opinion in response to this issue. According to Keasler, he felt that the business records are not testimonial because even SCOTUS acknowledged in Crawford that business records are not testimonial. Consequently, the analysis under Ohio v. Roberts should control, and the records should come in because the hearsay falls within a firmly rooted exception. This was consistent with his dissenting opinion in Russeau v. State.

Death Penalty Non-Issues – The CCA considered and rejected number of death penalty “non-issues” that had either been previously decided adversely to Smith or were not ripe for review. The challenge to the lethal injection protocol was not litigated at the trial court and was not ripe for review. Smith was not entitled to a burden of proof instruction on the mitigation special issue because there is no burden of proof. Moreover, the mitigation special issue does not allow for open-ended discretion. It also doesn’t deprive the defendant of meaningful appellate review. The death penalty isn’t cruel and unusual punishment. Finally, the failure to inform the jury that one hold out on any special issue will result in automatic life in prison does not render the death penalty scheme unconstitutional.

Because this is a death penalty case, appeal was automatic to the Court of Criminal Appeals. There was no underlying opinion.