Alabama Supreme Court denies Cody Smith appeal in decision critical of attorneys

The Alabama Supreme Court has dismissed an appeal filed by former Montgomery police officer...
The Alabama Supreme Court has dismissed an appeal filed by former Montgomery police officer Aaron “Cody” Smith to overturn his conviction, though several justices expressed doubts about the effectiveness of his counsel, possibly opening the door to post conviction relief.(Source: Alabama Department of Corrections)
Published: Dec. 9, 2022 at 11:37 PM CST
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MONTGOMERY, Ala. (WSFA) - The Alabama Supreme Court has dismissed an appeal filed by former Montgomery police officer Aaron “Cody” Smith to overturn his conviction, though several justices expressed doubts about the effectiveness of his counsel, possibly opening the door to post conviction relief.

Smith was convicted in early 2020 of manslaughter for the on-duty shooting death of Gregory Gunn in 2016.

After his conviction, Smith appealed to lower courts, arguing three points for an appeal to overturn; The first included allegations that the trial court erred by prohibiting testimony that Gunn resisted arrest in 2007. The second point was that the court denied Smith a second immunity hearing after the trial judge who denied Smith’s immunity from prosecution was forced to recuse by the Alabama Supreme Court. The final appeal argument was “insufficient” evidence to sustain a conviction of “heat of passion” manslaughter. The appeal was ultimately denied.

The Alabama Criminal Court of Appeals later affirmed the lowers court’s decision, upholding its decision to deny his appeal. The state filed a motion soon after seeking to revoke his bond and invoke his sentencing. Smith surrendered in May to begin serving a 14-year prison sentence but filed a petition with the state’s highest court to have his conviction and sentencing overturned.

Friday’s decision by the Alabama Supreme Court quashed Smith’s latest appeal efforts, with Justice Jay Mitchell writing in his concurring opinion that “Smith has failed to preserve any viable legal theories for our review.”

However, several justices, including Mitchell, expressed “serious concerns about Smith’s conviction and the adequacy of his counsel.” Mitchell noted the concerns mean “Smith may be able to seek postconviction relief under Rule 32,” which allows an individual convicted of a criminal offense to seek a new trial or other relief if the original conviction was the product of a constitutional violation.

Mitchell’s opinion noted that the Court isn’t in a position to conduct a full review of the trial record but said if the facts as stated by the Court of Criminal Appeals are true and “largely undisputed,” then it is difficult to understand how a reasonable, properly instructed jury could have convicted Smith.”

The jury was charged with considering convictions on only two crimes, Mitchell wrote, including intentional murder and heat-of-passion manslaughter, both of which required the prosecution to prove beyond a reasonable doubt that Smith acted with the specific intent to kill Gunn.

“Yet the record, as described...does not seem to indicate -- let alone establish beyond reasonable doubt -- that Smith’s specific intent was to kill Gunn rather than to disable Gunn’s attack,” Mitchell continued. “If anything, the facts recited by the Court of Criminal Appeals strongly suggest the opposite conclusion.”

Justice Tommy Bryan noted that while he concurred with the decision to deny the appeal, he pointed to the “failure” of Smith’s counsel “to challenge the adequacy of specific-intent evidence [at trial,] in a posttrial motion, on direct appeal, or in his certiorari petition,” and wrote the “omission appears to be problematic and perhaps raises a serious question about the effectiveness of Smith’s counsel.”

“If the Court of Criminal Appeals’ summary of the record is accurate, then Smith’s failure to litigate the adequacy of specific-intent evidence is, frankly, bizarre,” Mitchell noted. “It may be the most astonishing failure I’ve ever seen in a criminal case.”

Smith remains in state custody at Limestone Correctional Facility. His attorneys have not yet responded to requests for comment on the justices’ opinions.

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