author: STUART, Justice. MOORE, Chief Justice

text:
    Ex parte Jerry Jerome SMITH. (In re Jerry Jerome Smith v. State of Alabama).
    1010267.
    Supreme Court of Alabama.
    March 14, 2003.
    Rehearing Denied May 23, 2003.

      Kathleen Nemish and Chris Capps, Do-than, for petitioner.
    William H. Pryor, Jr., atty. gen., and George Martin and Tracy M. Daniel, asst, attys. gen., for respondent.
   STUART, Justice.

Jerry Jerome Smith was convicted of “[mjurder wherein two or more persons are murdered by the defendant by one act or pursuant to one scheme or course of conduct.” § 13A-5-40(a)(10), Ala.Code 1975. The jury recommended, by a vote of 11 to 1, that Smith be sentenced to death. After a sentencing hearing, the trial court sentenced Smith to death.

The Court of Criminal Appeals affirmed Smith’s conviction, but remanded the case for the trial court to address deficiencies and errors in the sentencing order. Smith v. State, 213 So.3d 108 (Ala.Crim.App.2000). The trial court amended its sentencing order on remand. The Court of Criminal Appeals reviewed the amended order and held that the amendment did not remedy the errors because the trial court had not addressed all of the court’s concerns; it again remanded the case. 213 So.3d 108, 203 (opinion on return to remand). On return to second remand, the trial court submitted a new sentencing order, which the Court of Criminal Appeals determined was adequate. The Court of Criminal Appeals completed its review and affirmed Smith’s death sentence. 213 So.3d 108, 209 (opinion on return to second remand).

The Court of Criminal Appeals presented a detailed synopsis of the facts of the offense and a thorough analysis of the issues presented during the guilt phase of Smith’s trial. We have reviewed the issues raised by Smith regarding the guilt phase of his trial as to which we granted certiorari review, and we agree with the Court of Criminal Appeals that there was no reversible error during the guilt phase; therefore, Smith’s conviction is due to be affirmed. This Court, however, does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals’ December 22, 2000, opinion addressing the allegations of error in the guilt phase. See Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973). We conclude, however, that reversible error did occur during the penalty phase of Smith’s trial, and we remand the case for a new penalty-phase proceeding.

I.

According to Smith, the trial court prevented him from introducing relevant and persuasive mitigating evidence in violation of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and Alabama law. Specifically, he maintains in his brief to this Court that he was denied the opportunity to present evidence to show that

“[h]is family’s role models and caretakers—his mother and father—were an alcoholic and a convict. They were unavailable to protect their children from predators or to provide them with a healthy home environment. Because Jerry Smith’s brothers and sisters also suffered from neglect and trauma, they were unable to offer the sustenance that a sibling can sometimes provide to assist a flailing youngster.”

According to Smith, because the trial court ruled that he could introduce evidence only of things that happened to him and no one else, he was precluded from presenting a complete picture of his childhood.

“We begin by recognizing that the concept of individualized sentencing in criminal cases generally, although not constitutionally required, has long been accepted in this country.... [Wjhere sentencing discretion is granted, it generally has been agreed that the sentencing judge’s ‘possession of the fullest information possible concerning the defendant’s life and characteristics’ is ‘[hjighly relevant—if not essential—[to the] selection of an appropriate sentence .... ’ Williams v. Neto York, [337 U.S. 241], 247 [ (1949) ](emphasis added [in Lockett ]).
“... [W]e conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.... Given that the imposition of death by public authority is so profoundly different from all other penalties, we cannot avoid the conclusion that an individualized decision is essential in capital cases. The need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual is far more important than in noncapital cases.... The nonavailability of corrective or modifying mechanisms with respect to an executed capital sentence underscores the need for individualized consideration as a constitutional requirement in imposing the death sentence.
“There is no perfect procedure for deciding in which cases governmental authority should be used to impose death. But a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant’s character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.”

Lockett v. Ohio, 438 U.S. at 602-05 (footnotes omitted). Likewise, a ruling that has not given “independent mitigating weight to aspects of the defendant’s character” creates the same risk.

To determine the appropriate sentence, the sentencer must engage in a “broad inquiry into all relevant mitigating evidence to allow an individualized determination.” Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998). Alabama’s sentencing scheme broadly allows the accused to present evidence in mitigation. Jacobs v. State, 361 So.2d 640, 652-53 (Ala.1978). See 13A-5-45(g), Ala.Code 1975 (“The defendant shall be allowed to offer any mitigating circumstance defined in Sections 13A-5-51 and 13A-5-52.”). “[E]vidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.” California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987) (O’Con-nor, J., concurring specially).

At the charge conference before the penalty phase of Smith’s trial, Smith’s counsel indicated that Smith would testify that his family was dysfunctional and the effect that his dysfunctional family had on his development. At the charge conference, the following occurred:

“[Prosecutor]: I want to say this evidence about at age 12 the client—I presume the client is Jerry Jerome Smith— [Smith’s siblings] were at home, and [E.L.M.] came in and raped [Smith’s sister], hit [Smith’s brother] in the head with the pliers. Mr. Smith was angry about that incident. That is clearly not admissible. They can’t elicit that.... They can’t get into that. They can’t get into his brother is mentally retarded. They can’t get into his sister tried to commit suicide. They can’t get in that his sister had an alcohol problem or attempted suicide. Mr. Smith’s cousin ... was in a mental institution. That is not relevant at all. They can put up this defendant and his conditions, but not the family....
“[Smith’s counsel]: Your Honor, mental retardation is a hereditary factor, certainly, certain aspects of it, without doubt. To show that someone is in [special education] classes, that he has the education ability of a 12 year old, he’s borderline mentally retarded, he has a mild mental deficiency, all of those are weighting factors to substantiate the possibility of him having that problem, which [Smith’s expert witness] testified [during the guilt phase] that he has....
“[Smith’s cocounsel]: Judge, let me refer the Court to Jackson v. Thigpen [752 F.Supp. 1551 (1990) ]. This is [a] Northern District [of] Alabama 1990 case. Let me read you this, ‘Petitioner’s alcoholism, the abuse that she suffered as a child, her limited intelligence, and the circumstances surrounding the killing of her boyfriend all bore upon the mitigating factors of whether petitioner was substantially impaired in her capacity to appreciate the criminality of her conduct.’ ...
«
“[Prosecutor]: They can put in things about him, that he has got a drinking problem, he’s got a mental problem, he tried to kill himself, ... but things about the family are not relevant to mitigating circumstances. That’s what these cases say. Once that gets in, it’s too late to try to change it on behalf of the State.
“THE COURT: Okay. I’m going to exclude anything that happened to anybody other than the defendant. And you have fall’s objection to that.
“[Smith’s counsel]: What about were your siblings abusive or neglectful to you? Yes, I had a sister in prison. She wasn’t home with me to bond with me. All of that, Judge, I think is relevant.
“THE COURT: No. No.”

During Smith’s direct testimony in the penalty phase, the following occurred:

“[Smith’s counsel]: How many brothers and sisters did you have?
“[Smith]: Well, there is five boys and two girls, and two of them—the oldest one was in prison at the time—
“[Prosecutor]: I object. This was not the question. If the defendant would answer the questions and not ad lib or volunteer stuff, Judge.
“[Smith’s counsel]: We are talking about his family unit here, in other words, his environment as a child. “THE COURT: Okay. I think we talked about that before this hearing, and that is sustained.
“[Smith’s counsel]: How old were your other brothers and sisters at home?
“[Smith]: I think my sister was 14, either 13, at the time. And she was pregnant also when she was 13 years old.... My oldest brother was molested, and he’s the mentally retarded one.
“[Prosecutor]: Judge, once again, would you instruct this defendant to answer the question, not volunteer information. He didn’t ask him about those things. He’s rambling off. And we’ve already taken up these matters.
“[Smith’s counsel]: We are not offering these as specific examples of mitigation. We are offering this as the totality of his family unit, which I think is admissible.
“THE COURT: Okay. [Smith’s counsel], we’ve already discussed this. And that is sustained. And the jury is to disregard the testimony in regards to—I forgot what it was now— the sister—
“[Smith’s counsel]: The sister being retarded and the brother being in jail.
“THE COURT: You are not to consider that at this time.”

A little later when his counsel questioned Smith about his biological father, the prosecutor again objected. Smith’s counsel indicated that he thought the evidence was relevant. Before the court could sustain the objection, the prosecutor withdrew his objection. Smith responded, “My role model dad I was supposed to have had was an alcoholic also. And he stayed in jail most of the time and basically couldn’t hold a job down. So it was hard.” In light of the objection and the trial court’s previous rulings, Smith’s counsel did not develop this line of examination to include the effect Smith’s relationship with his father, or the lack of one, had on Smith. The trial court’s ruling during the charge conference and its subsequent ruling during Smith’s testimony were erroneous. A sentencer may not, as a matter of law, preclude or refuse to consider any relevant mitigating factor offered by the defendant. Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); and Lockett, supra. In Price v. State, 725 So.2d 1003, 1062 (Ala.Crim.App.1997), aff'd, 725 So.2d 1063 (Ala.1998), the Court of Criminal Appeals upheld as proper the trial court’s finding as a nonstatutory mitigating circumstance that the defendant’s father was murdered when he was a child and its consideration of “the instability of [the defendant’s] home life and the traumatic events during his early years.” The trial court’s ruling here improperly restricted Smith’s presentation and development of mitigation evidence; consequently, it prevented the jury from determining an individualized sentence recommendation for Smith.

We must now decide whether that error warrants a reversal of the sentence and necessitates a new penalty-phase proceeding. The Court of Criminal Appeals held that despite the trial court’s ruling, Smith was permitted to present evidence regarding his dysfunctional family; therefore, the error, if any, was harmless. The Court of Criminal Appeals noted that Smith presented evidence indicating that Smith’s mother and sister suffered from alcoholism; that his father had been incarcerated while Smith was a child; that his parents were unable to provide a safe home environment; that his brothers and sisters were unable to provide sustenance; that one of his brothers was mentally retarded; that some of his siblings were incarcerated; and that his parents did not visit him while he was incarcerated. We agree with the Court of Criminal Appeals that mitigating evidence was presented. It is clear from the record, however, that Smith was prevented from expanding the evidence to show how his childhood was impacted by the fact that his family was dysfunctional. While he was able to present some evidence about certain members of his family, that evidence was limited and not well developed. As Smith maintains, “At no point was the jury able to learn the key information: what it was like for [him] to grow up in an abusive, neglectful home where no one was able to look after him.” Additionally, the trial court specifically instructed the jury to ignore some of the evidence presented, which, if developed and allowed to be considered by the jury, may have been relevant in the jury’s sentencing recommendation.

“The harmless error rule is to be applied with extreme caution in capital cases. Seibold v. State, 287 Ala. 549, 253 So.2d 302 (1970). We hold that caution must also be observed when reviewing error committed at the penalty phase of the trial. After all, it is the penalty phase which distinguishes these cases from all other cases.”

Ex parte Whisenhant, 482 So.2d 1247, 1249 (Ala.1984).

Smith was prevented from presenting a complete picture of the impact his dysfunctional family had on his development. We cannot maintain judicial integrity and conclude that the error—not allowing that evidence to be developed as nonstatutory mitigating evidence—was harmless. We are not reasonably certain that the outcome of the penalty phase of Smith’s trial would have been the same had the mitigating evidence been developed. As Justice Marshall reminded us in his special writing concurring in the judgment in Lockett, ‘Where life itself is what hangs in the balance, a fine precision in the process must be insisted upon.” 438 U.S. at 620. Smith did not receive the “fíne precision” in the penalty phase of his trial necessary to ensure due process. Therefore, we remand this case for a new penalty-phase proceeding.

In concluding that the error here was not harmless, we have considered the role of the jury during the penalty phase of a capital case. We will not undermine the responsibilities and duties of the jury during the penalty phase. § 13A-5-46, Ala. Code 1975. Although the trial court is not bound by the jury’s sentencing recommendation, it is a factor in the trial court’s determination. § 13A-5-47(e). See also Ex parte Taylor, 808 So.2d 1215 (Ala.2001).

Additionally, we note that while the trial court found Smith’s evidence significant in its determination of mitigating circumstances and considered those mitigating circumstances in the weighing process, this fact alone does not render the error harmless; in fact, it indicates that the jury’s advisory verdict, if the evidence had been developed and the jury allowed to consider it, may have been different.

“‘The legislatively mandated role of the jury in returning an advisory verdict, based upon its consideration of aggravating and mitigating circumstances, can not be abrogated by the trial court’s errorless exercise of its equally mandated role as the ultimate sentencing authority. Each part of the sentencing process is equally mandated by the statute (§§ 13A-5-46, -47(e)); and the er-rorless application by the court of its part does not cure the erroneous application by the jury of its part. For a case consistent with our holding, see Johnson v. State, 502 So.2d 877 (Ala.Cr.App.1987). To hold otherwise is to hold that the sentencing role of the jury, as required by statute, counts for nothing so long as the court’s exercise of its role is without error.’ ”

Ex parte Stewart, 659 So.2d 122, 128 (Ala.1993)(quoting Ex parte Williams, 556 So.2d 744, 745 (Ala.1987)). This case does not present a circumstance where the aggravating circumstances were so numerous and overwhelming that when the aggravating circumstances are weighed against the mitigating circumstances, the error could be considered harmless. Cf. Broadnax v. State, 825 So.2d 134 (Ala.Crim.App.2000), aff'd, 825 So.2d 233 (Ala.2001).

We further note that the prosecutor apparently believed that the development of the mitigating evidence would have some impact on the jury or he would not have so strenuously objected to its admission. Because we do not know, based on the record, how Smith would have developed the evidence, we cannot determine with certainty that it would have had no impact on the jury.

We also reject the contention that because Smith’s counsel indicated at the charge conference that Smith was to be the only witness, the evidence to be offered in mitigation was minimal and the error in not allowing that evidence therefore harmless. We cannot conclude with certainty, especially in light of the prosecutor’s objections, that Smith was able to develop the evidence fully. The record indicates that during the penalty phase, Smith’s mother was present in the courtroom and that defense counsel indicated that she would probably testify. Smith’s mother, however, did not testify. We acknowledge that the trial court did not refuse to allow her to testify and that numerous possible reasons exist for her not testifying. However, we cannot exclude the possibility that her testimony was not elicited because of the trial court’s ruling that what had happened to family members, other than Smith, was not relevant.

Our holding today in no way indicates this Court’s view on the propriety of the sentence of death in this case. “What is important ... is an individualized determination on the basis of the character of the individual and the circumstances of the crime.” Zant v. Stephens, 462 U.S. 862, 879, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). The penalty phase of a capital-murder case is a ‘due process hearing of the highest magnitude.’ Richardson v. State, 376 So.2d 205, 224 (Ala.Crim.App.1978), aff'd, 376 So.2d 228 (Ala.1979).” Ex parte Stewart, 659 So.2d at 127. Smith was not afforded due process at the penalty phase of his trial; therefore, we must remand this case.

In light of our remand for a new penalty-phase proceeding, we pretermit any discussion of other errors Smith alleges occurred during the penalty phase. Our pretermission of any discussion of the additional penalty-phase issues upon which we granted certiorari review is not to be understood as approval of all the language, reasons, or statements of law in the Court of Criminal Appeals’ opinion. Horsley, supra.

II.

After the United States Supreme Court issued its holding in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), this Court ordered supplemental briefing to allow the parties to discuss the impact of Ring on Smith’s case. We need not, however, address the implications of the holding in Ring on the Alabama capital-sentencing statutes. Even if Ring draws into question the constitutionality of Alabama’s capital-sentencing scheme, and we are not prepared to say that it does, a Ring violation did not occur in this case.

In his special writing in Bottoson v. Moore, 833 So.2d 693, 719 (Fla.2002), Justice Pariente eloquently explained:

“[T]he presence of a prior violent felony conviction meets the threshold requirement of Apprendi [v. New Jersey, 530 U.S. 466 (2000),] as extended to capital sentencing by Ring [v. Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002)]. In Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the United States Supreme Court approved an enhanced sentence for the crime of returning to the United States after being deported, based on the judge’s finding that the deportation was pursuant to three prior convictions of aggravated felonies. The Court rejected a claim that the enhancement was improper because the indictment had not alleged that the deportation was pursuant to the prior convictions. As explained in Apprendi, ‘our conclusion in Almendarez-Torres turned heavily upon the fact that the additional sentence to which defendant was subject was “the prior commission of a serious crime.” ’ 530 U.S. at 488, 120 S.Ct. 2348. In Apprendi, the Court held:
“ ‘[TJhere is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof.’
“Id. at 496, 120 S.Ct. 2348. Accordingly, the Court held: ‘Other than the fad of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ Id. at 490, 120 S.Ct. 2348 (emphasis supplied [in Botto-son ]).
“In extending Apprendi to capital sentencing, the Court in Ring did not eliminate the ‘prior conviction’ exception arising in Almendarez-Torres. The Court noted in Ring that ‘[n]o aggravating circumstance related to past convictions in his case; Ring therefore does not challenge Almendarez-Torres.’ 536 U.S. at 597 n. 4, 122 S.Ct. at 2437 n. 4.”

833 So.2d at 722-23 (footnote omitted). As was the circumstance in Bottoson, one of the aggravating circumstances presented by the State in the penalty phase of this trial involved a prior felony conviction; therefore, Smith is not entitled to relief pursuant to Ring. See Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).

III.

Smith further maintains that this Court must remand his case for a determination as to whether his sentence violates the United States Supreme Court’s recent holding in Atkins v. Virginia, 536 U.S. 304, 317, 122 S.Ct. 2242, 2250, 153 L.Ed.2d 335 (2002), that executing a mentally retarded individual violates the ban on cruel and unusual punishments found in the Eighth Amendment to the United States Constitution. This issue was raised in the supplemental briefing ordered by this Court.

Although this issue was brought to our attention on certiorari review, because Smith did not contend at trial that mental retardation barred the imposition of a death sentence upon him we apply the plain-error standard of review. See Rule 39(a)(2)(D), Ala.R.App.P.

“‘[TJhis Court’s review of a death-penalty case allows us to address any plain error or defect found in the proceeding under review, even if the error was not brought to the attention of the trial court. Rule 39(a)(2)(D) and (k), Ala. R.App. P. “‘“Plain error” only arises if the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings.’ ” Ex parte Womack, 435 So.2d 766, 769 (Ala.), cert. denied, Womack v. Alabama, 464 U.S. 986, 104 S.Ct. 436, 78 L.Ed.2d 367 (1983), quoting United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir.1981). The plain-error standard applies only where a particularly egregious error occurs at trial. Ex parte Harrell, 470 So.2d 1309, 1313 (Ala.), cert. denied, 474 U.S. 935, 106 S.Ct. 269, 88 L.Ed.2d 276 (1985). When the error “has or probably has” substantially prejudiced the defendant, this Court may take appropriate action. Rule 39(a)(2)(D) and (k), Ala. R.App. P.; Ex parte Henderson, 583 So.2d 305, 306 (Ala.1991), cert. denied, Henderson v. Alabama, 503 U.S. 908, 112 S.Ct. 1268, 117 L.Ed.2d 496 (1992).’
“Ex parte Minor, 780 So.2d 796, 799-800 (Ala.2000)(footnote omitted).”

Ex parte Perkins, 851 So.2d 453, 454-55 (Ala.2002).

We reject Smith’s contention that in light of the holding in Atkins, we must remand this cause for the trial court to conduct a hearing to determine if he is mentally retarded and therefore not subject to the death penalty. Plain error did not occur in that regard in this case.

Because the Legislature has not had an occasion to address this State’s policy regarding mentally retarded capital defendants and establish a procedure for determining whether a capital defendant is mentally retarded and therefore not subject to the death penalty, we have conducted our review in light of the most liberal definitions considered by the United States Supreme Court in reaching its holding in Atkins and as defined by statutes in those states that prohibit the imposition of the death sentence on a mentally retarded defendant.

Based on the facts presented at Smith’s trial, under even the broadest definition of mental retardation Smith is not mentally retarded. Those states that have statutes prohibiting the execution of a mentally retarded defendant require that to be considered mentally retarded a defendant must have significantly subaver-age intellectual functioning (an IQ score of 70 or below) and significant or substantial deficits in adaptive behavior. Additionally, those problems must have manifested themselves before the defendant reached age 18.

The record establishes that during the guilt phase of trial, the State and Smith presented expert testimony regarding Smith’s intellectual functioning and adaptive behavior. Dr. Don Crook, a licensed professional counselor, testified as a witness for the defense. Dr. Crook interviewed Smith and administered the Wechsler Adult Intelligence Scale—Revised when Smith was 26 years old. Dr. Crook testified that Smith was “very cooperative, very pleasant and social.” Dr. Crook testified that Smith was mildly mentally retarded with a full-scale IQ score of 72. (Smith’s verbal IQ score was 76; his performance IQ score was 69.) Dr. Crook further maintained that his testing indicated that Smith had an “adjustment disorder with mixed disturbance of emotions” and that Smith suffered from “poly-substance dependence.” The record indicates that according to the results of a Stanford-Binet Intelligence Scale administered to Smith when he was 12 years old, his full-scale IQ score at that time was 66. Dr. Crook concluded that Smith read and spelled on a first-grade level, that his math skills were on a third-grade level, and that his ability to form intent was at the level of a 10- to 12-year-old. Dr. Crook further testified that Smith knew that it was against the law and wrong to shoot and kill someone and that it was against the law to sell drugs.

Dr. Crook admitted that his conclusions did not take into consideration Smith’s articulate statement made to the police after he was arrested for the murders; the facts surrounding the murders, which indicate intentional, goal-oriented behavior; Smith’s relationship with his girlfriend; or Smith’s statements while he was in jail awaiting trial to the effect that he had committed the murders and that he would “get off’ on a plea of mental disease or defect.

Dr. Michael D’Errico, a forensic psychologist, testified for the State. Dr. D’Errico concluded that Smith was mildly mentally deficient. Dr. D’Errico explained:

“When I reviewed Mr. Smith’s case, I found that he was living independently at a level, probably, higher than a mentally retarded individual would be living, Therefore, I was at a loss to come up with a diagnosis of mental retardation. However, his score on the intelligence test placed him in the mild range of mental deficiency.”

According to Dr. D’Errico, Smith was “street-wise” or “street-smart.”

The testimony with regard to Smith’s intellectual functioning indicates that he falls within the borderline to mildly mentally retarded range with an overall IQ score of 72 a year after the murders, which seriously undermines any conclusion that Smith suffers from significantly subaver-age intellectual functioning as contemplated under even the broadest definitions.

Likewise, with regard to evidence of “significant” or “substantial” deficits in adaptive behavior, our review of the record indicates little, if any, deficit. At the time of the murders, Smith had had an ongoing year-long relationship with his girlfriend. His articulate testimony indicates that he loved his girlfriend, maintaining that she had been his “common-law wife” for a year, and that they had planned on having children. Additionally, we note that the evidence indicates that before Smith shot the first victim, he told his girlfriend to move out of harm’s way.

Moreover, the record indicates that before the murders Smith was able to hold various jobs. At the time of the murders, Smith was working a construction job. More insightful into Smith’s adaptive behavior is the fact that Smith was involved in an interstate illegal-drug enterprise. Smith testified that at the time of the murders he was under stress because he owed a Jamaican drug supplier in Jacksonville, Florida, $27,000. Smith admitted that at the time of the murders he was addicted to cocaine and that he was using $400 worth of crack cocaine per day; he said that in order to maintain that habit he “distributed” drugs.

Furthermore, the fact that Smith gave a police officer a false name two days before the murders when he was stopped for a traffic violation, the circumstances surrounding the murders, Smith’s actions after the murder—enlisting the help of a friend to dispose of the gun and to hide from the police—his bragging about the murders, his statement about “getting off’ using a mental-disease-or-defect defense, and his statement that he shot two of the individuals in the house to eliminate witnesses indicate that Smith does not suffer from deficits in his adaptive behavior.

Lastly, because the evidence does not support Smith’s contention that he manifested subaverage intellectual functioning and significant deficits in adaptive behavior, we need not address the third factor— whether those problems evinced themselves before Smith was 18 years old.

Because the record does not support Smith’s contention that he falls within the parameters of the most liberal requirements to support a finding of mental retardation, we reject his contention that we must remand this cause for resentencing on this ground. Applying the plain-error standard of review, we hold that no reversible error occurred in this regard and a death sentence may be imposed in this case if such a sentence is deemed proper after the new penalty-phase proceeding.

For the foregoing reasons, the judgment of conviction for capital murder is affirmed, but the sentence of death is reversed, and the cause is remanded for the Court of Criminal Appeals to remand the cause to the trial court for a new penalty-phase proceeding before a jury.

AFFIRMED AS TO CONVICTION; REVERSED AS TO SENTENCE; AND REMANDED.

HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, and WOODALL, JJ., concur.

MOORE, C.J., concurs in part and dissents in part.

MOORE, Chief Justice

(concurring in part and dissenting in part).

I concur in affirming the conviction in this case, but I respectfully dissent from the reversal of the death sentence.

When Smith tried to introduce evidence in the penalty phase of the trial about his brothers and sister, the trial court excluded any evidence regarding Smith’s siblings. The trial judge also instructed the jury to not consider anything that may have been introduced about his siblings, like the fact that his sister became pregnant at a young age or that his brother was retarded and had served time in jail. I agree with the trial judge that such evidence was irrelevant.

If any negative event in a defendant’s family can become relevant mitigation evidence in the penalty phase of a capital-murder trial, I do not see where such reasoning will stop. Why stop at the family environment? Why not consider every other negative event that ever happened to the defendant? There is a limit to what a trial court should have to consider when determining the appropriate penalty for someone who has been found guilty of capital murder. The trial court set a reasonable limit for the introduction of such mitigation evidence, and I am unwilling to disturb its ruling in that regard.

I agree with the trial judge that in the penalty phase of a capital-murder trial events that happened to a defendant’s siblings are irrelevant as mitigation evidence. Therefore, I respectfully dissent.

      .This Court issued a writ of certiorari to the Court of Criminal Appeals to review the following guilt-phase issues:
      1. Whether the trial court erred in removing certain potential jurors from the venire.
      2. Whether the prosecutor’s statements about Smith’s confession, the trial court’s admission of testimony regarding his suppression hearing, and the trial court’s failure to instruct the jury on how to consider his confession were reversible error.
      3,Whether the prosecutor engaged in misconduct, resulting in reversible error.

      .In addition to the error already addressed, this Court granted certiorari review of the following penalty-phase issues:
      1. Whether the trial court erred in failing to instruct the jury that Smith's capacity "to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.” See § 13A-5-51(6), Ala.Code 1975.
      2. Whether the evidence supported the aggravating circumstance that Smith "knowingly created a great risk of death to many persons.” See § 13A-5-49(3), Ala.Code 1975,
      3. Whether the trial court erred in admitting evidence of his prior convictions.
      4. Whether there was prosecutorial misconduct, and, if so, whether that misconduct resulted in reversible error.

      . See Ariz.Rev.Stat. § 13-703.02(J)(2) (2001); Ark.Code Ann. § 5-4-618 (Michie 1993); Colo.Rev.Stat. § 18-1.3-1101(2) (2002); Conn. Gen.Stat, § 1-1 g (2001); Fla. Stat. Ann. § 921.137(1) (West 2002); Ga.Code Ann. § 17-7-131(a)(3) (1997); Ind.Code. § 35-36-9-2 (1998); Kan. Stat. Ann. § 21-4623(e) (1995); Ky.Rev.Stat. Ann. § 532.130(2) (Michie 1999); Md.Code Ann., Crim. Law § 2-202 (2002); Mo.Rev.Stat. § 565.030(6) (2001); Neb.Rev.Stat. § 28-105.01(3) (2000); N.M. Stat. Ann. § 31-20A-2.1(A) (Michie 2000); N.Y.Crim. Proc. Law § 400.27(12)(e) (McKinney 2002); N.C. Gen.Stat. § 15A-2005(a)(l)(a)(2001); S.D. Codified Laws § 23A-27A-26.2 (Michie 2002); Tenn.Code. Ann. § 39-13-203(a) (1997); Wash. Rev.Code § 10.95.030(2)(a)(2002),


source: Caselaw Access Project

author: PATTERSON, Retired Appellate Judge. BASCHAB, Judge. SHAW, JUDGE,

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    Jerry Jerome SMITH v. STATE of Alabama.
    CR-97-1258.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 2003.
    Opinion on Return to Third Remand Sept. 29, 2006.
    Rehearing Denied Dec. 1, 2006.

      Jon Christopher Capps (withdrew 9/12/2007) and Robert Aaron Gartlan, Do-than; Kathleen M. Nemish, Dothan (withdrew 10/15/2003); Angela L. Setzer, Bryan A. Stevenson, and Randall S. Susskind, Montgomery; Rebecca Kiley, Montgomery (withdrew 9/24/2012); and David Kenneth Hogg, Dothan, for appellant.
    William H, Pryor, Jr., Troy King, and Luther Strange, attys. gen., and Kathryn D. Anderson, Michael A. Nunnelley, Beth Jackson Hughes, and Henry Mitchell Johnson, asst, attys. gen., for appellee.
   On Remand from the Alabama Supreme Court

PATTERSON, Retired Appellate Judge.

The appellant, Jerry Jerome Smith, was convicted of “[mjurder wherein two or more persons are murdered by the defendant by one act or pursuant to one scheme or course of conduct,” § 13A-5-40(a)(10), Ala.Code 1975. The jury recommended, by a vote of 11 to 1, that the appellant be sentenced to death. After a sentencing hearing, the trial court sentenced the appellant to death.

On August 31, 2001, after twice remanding this case for the trial court to address deficiencies and errors in its sentencing order, this Court affirmed the appellant’s conviction for capital murder and his sentence of death. Smith v. State, 213 So.3d 108, 209 (Ala.Crim.App.2000) (opinion on return to second remand). The Alabama Supreme Court granted certiorari review and, on March 14, 2003, affirmed the appellant’s conviction, but reversed the appellant’s sentence of death and remanded the case to this Court with the instruction that this case be remanded to the trial court for a new penalty-phase proceeding before a jury. Ex parte Smith, 213 So.3d 214 (Ala.2003). The Supreme Court overruled the application for rehearing on May 23, 2003.

In accordance with the Supreme Court’s instruction, we reverse the appellant’s sentence of death and remand this case for the trial court to conduct a new sentencing hearing before a jury. The trial court should take the necessary action to ensure that the circuit clerk makes due return to this Court within 140 days from the date of this opinion, or as soon as practicable.

The foregoing opinion was prepared by Retired Appellate Judge John Patterson while serving on active duty status as a judge of this Court under the provisions of § 12-18-10(e), Ala.Code 1975.

AFFIRMED AS TO CONVICTION; REVERSED AS TO SENTENCE; AND REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ., concur. SHAW, J., recuses himself.

On Return to Remand

BASCHAB, Judge.

The appellant, Jerry Jerome Smith, was convicted of capital murder for murdering two or more people by one act or pursuant to one course of conduct. See § 13A-5-40 (a)(10), Ala.Code 1975. By a vote of 11-1, the jury recommended that he be sentenced to death. The trial court accepted that recommendation and sentenced him to death.

On August 31, 2001, after twice remanding this case for the trial court to correct its sentencing order, we affirmed the appellant’s conviction and sentence of death. See Smith v. State, 213 So.3d 108, 209 (Ala.Crim.App.2000) (opinion on return to second remand). On March 14, 2003, the Alabama Supreme Court affirmed the appellant’s conviction, but reversed his sentence of death and remanded the case to this court with the instruction that we remand the case to the trial court for a new penalty phase proceeding, See Ex parte Smith, 213 So.3d 214 (Ala.2003).

On remand, the trial court conducted a new penalty phase proceeding. By a vote of 10-2, the jury recommended that the appellant be sentenced to death. The trial court accepted the jury’s recommendation and sentenced him to death.

After we affirmed the appellant’s conviction and sentence and after the Alabama Supreme Court granted his petition for certiorari review, the United States Supreme Court released its decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). In Atkins, the Supreme Court held:

“We are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty. Construing and applying the Eighth Amendment in the light of our ‘evolving standards of decency,’ we therefore conclude that such punishment is excessive and that the Constitution ‘places a substantive restriction on the State’s power to take the life’ of a mentally retarded offender. Ford, [v. Wainwright], 477 U.S. [399,] 405, 106 S.Ct. 2595, 91 L.Ed.2d 335 [ (1986) ].”

536 U.S. at 321, 122 S.Ct. at 2252.

The appellant argues that his sentence of death is unconstitutional because he is mentally retarded. When it rejected a similar argument on certiorari review, the Alabama Supreme Court explained:

“We reject Smith’s contention that in light of the holding in Atkins, we must remand this cause for the trial court to conduct a hearing to determine if he is mentally retarded and therefore not subject to the death penalty. Plain error did not occur in that regard in this case.
“The record establishes that during the guilt phase of trial, the State and Smith presented expert testimony regarding Smith’s intellectual functioning and adaptive behavior. Dr. Don Crook, a licensed professional counselor, testified as a witness for the defense. Dr. Crook interviewed Smith and administered the Wechsler Adult Intelligence Scale—Revised when Smith was 26 yeai’s old. Dr. Crook testified that Smith was ‘very cooperative, very pleasant and social.’ Dr. Crook testified that Smith was mildly mentally retarded with a full-scale IQ score of 72. (Smith’s verbal IQ score was 76; his performance IQ score was 69.) Dr. Crook further maintained that his testing indicated that Smith had an ‘adjustment disorder with mixed disturbance of emotions’ and that Smith suffered from ‘poly-substance dependence.’ The record indicates that according to the results of a Stanford-Binet Intelligence Scale administered to Smith when he was 12 years old, his full-scale IQ score at that time was 66, Dr. Crook concluded that Smith read and spelled on a first-grade level, that his math skills were on a third-grade level, and that his ability to form intent was at the level of a 10- to 12-year-old. Dr. Crook further testified that Smith knew that it was against the law and wrong to shoot and kill someone and that it was against the law to sell drugs.
“Dr. Crook admitted that his conclusions did not take into consideration Smith’s articulate statement made to the police after he was arrested for the murders; the facts surrounding the murders, which indicate intentional, goal-oriented behavior; Smith’s relationship with his girlfriend; or Smith’s statements while he was in jail awaiting trial to the effect that he had committed the murders and that he would ‘get off on a plea of mental disease or defect.
“Dr. Michael D’Errico, a forensic psychologist, testified for the State. Dr. D’Errico concluded that Smith was mildly mentally deficient, Dr. D’Errico explained:
“ When I reviewed Mr. Smith’s case, I found that he was living independently at a level, probably, higher than a mentally retarded individual would be living. Therefore, I was at a loss to come up with a diagnosis of mental retardation. However, his score on the intelligence test placed him in the mild range of mental deficiency.’
“According to Dr. D’Errico, Smith was ‘street-wise’ or ‘street-smart.’
“The testimony with regard to Smith’s intellectual functioning indicates that he falls within the borderline to mildly mentally retarded range with an overall IQ score of 72 a year after the murders, which seriously undermines any conclusion that Smith suffers from significantly subaverage intellectual functioning as contemplated under even the broadest definitions.
“Likewise, with regard to evidence of ‘significant’ or ‘substantial’ deficits in adaptive behavior, our review of the record indicates little, if any, deficit. At the time of the murders, Smith had had an ongoing year-long relationship with his girlfriend. His articulate testimony indicates that he loved his girlfriend, maintaining that she had been his ‘common-law wife’ for a year, and that they had planned on having children. Additionally, we note that the evidence indicates that before Smith shot the first victim, he told his girlfriend to move out of harm’s way.
“Moreover, the record indicates that before the murders Smith was able to hold various jobs. At the time of the murders, Smith was working a construction job. More insightful into Smith’s adaptive behavior is the fact that Smith was involved in an interstate illegal-drug enterprise. Smith testified that at the time of the murders he was under stress because he owed a Jamaican drug supplier in Jacksonville, Florida, $27,000. Smith admitted that at the time of the murders he was addicted to cocaine and that he was using $400 worth of crack cocaine per day; he said that in order to maintain that habit he ‘distributed’ drugs.
“Furthermore, the fact that Smith gave a police officer a false name two days before the murders when he was stopped for a traffic violation, the circumstances surrounding the murders, Smith’s actions after the murder—enlisting the help of a friend to dispose of the gun and to hide from the police—his bragging about the murders, his statement about ‘getting off using a mental-disease-or-defect defense, and his statement that he shot two of the individuals in the house to eliminate witnesses indicate that Smith does not suffer from deficits in his adaptive behavior.
“Lastly, because the evidence does not support Smith’s contention that he manifested subaverage intellectual functioning and significant deficits in adaptive behavior, we need not address the third factor—whether those problems evinced themselves before Smith was 18 years old.
“Because the record does not support Smith’s contention that he falls within the parameters of the most liberal requirements to support a finding of mental retardation, we reject his contention that we must remand this cause for re-sentencing on this ground. Applying the plain-error standard of review, we hold that no reversible error occurred in this regard and a death sentence may he imposed in this case if such a sentence is deemed proper after the neiv penalty-phase proceeding.

Ex parte Smith, 213 So.3d at 224-26 (emphasis added).

The State argues that the appellant cannot relitigate this issue because the Alabama Supreme Court considered and rejected it in his first appeal. However, the Alabama Supreme Court reversed and remanded for a new sentencing proceeding because the appellant “was prevented from presenting a complete picture of the impact his dysfunctional family had on his development.” Ex parte Smith, 213 So.3d at 220-21. Contrary to the State’s argument, the supreme court could not realistically have pretermitted discussion of the question of whether the appellant was mentally retarded. Rather, it was required to make an initial determination on this issue based on the record before it because, if it had determined that the appellant was mentally retarded, it would have been pointless to remand for a new penalty phase proceeding during which the only permissible sentence would have been imprisonment for life without the possibility of parole.

Moreover, the appellant’s original trial preceded the United States Supreme Court’s decision in Atkins. Therefore, even though he presented evidence concerning mental retardation as mitigation during his original trial, he did not have the opportunity to fully factually develop his claim in the trial court in light of Atkins and its progeny. As we noted in Morrow v. State, 928 So.2d 315, 321 (Ala.Crim.App.2004):

“Because [the appellant] was convicted and sentenced before the decision in Atkins was released, his presentation of evidence at the penalty phase of the trial was naturally focused on establishing circumstances in mitigation of the death penalty, not on establishing that he was constitutionally ineligible for the death penalty.”

For these reasons, we reject the State’s argument that this court does not have jurisdiction to reconsider the appellant’s Atkins claim.

In Atkins, the Supreme Court noted:

“The American Association on Mental Retardation (AAMR) defined mental retardation as follows: ‘Mental retardation refers to substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18.’ Mental Retardation: Definition, Classification, and Systems of Supports 5 (9th ed.1991).
“The American Psychiatric Association’s definition is similar: ‘The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion A), that is accompanied by significant limitations in adaptive functioning in at least of two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system.’ Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed.2000). ‘Mild’ mental retardation is typically used to describe people with an IQ level of 50-55 to approximately 70. Id. at 42^13.”

536 U.S. at 308 n. 3, 122 S.Ct. at 2245 n. 3. The Supreme Court also stated:

“[C]linical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18. Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reaction of others. There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders. Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.”

536 U.S. at 318, 122 S.Ct. at 2250-51 (footnotes omitted). Finally, the Supreme Court stated:

‘[W]e leave to the Statefs] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.’ [Ford v. Wainwright, 477 U.S. 399,] 405, 416-17, 106 S.Ct. 2595 [ (1986) ].”

536 U.S. at 317, 122 S.Ct. at 2250.

Our Legislature has not established a method for deciding whether a capital defendant is mentally retarded as contemplated by Atkins and therefore not eligible for the death penalty. At most, Alabama has the “Retarded Defendant Act,” § 15-24-1 et seq., Ala.Code 1975. Section 15-24-2(3), Ala. Code 1975, defines a mentally retarded person, for purposes of the Act, as “[a] person with significant subaverage general intellectual functioning resulting in or associated with concurrent impairments in adaptive behavior and manifested during the developmental period, as measured by appropriate standardized testing instruments.” Finally, in Ex parte Perkins, 851 So.2d 453, 456 (Ala.2002), the Alabama Supreme Court held:

“[A] defendant, to be considered mentally retarded, must have significantly subaverage intellectual functioning (an IQ of 70 or below), and significant or substantial deficits in adaptive behavior. Additionally, these problems must have manifested themselves during the developmental period (i.e., before the defendant reached age 18).”

On remand, the defense presented the following evidence in support of its claim that the appellant is mentally retarded:

Charles Davis, a neighbor who had known the appellant practically all of his life, testified that the appellant played with his sons when he was small and that he kept the appellant around him a lot; that the appellant’s ability to comprehend and to respond to things was not like that of a normal child; that he first started noticing the problems when the appellant was about nine years old; that the appellant had problems functioning in the community because he read and wrote on about a second- or third-grade level; and that the appellant could carry on a mild conversation with another person. He also testified that he believed that the appellant’s mother, an uncle, and all but one of his brothers and sisters were mildly mentally retarded or slow. Finally, he stated that, based on his experience with children and particularly those with disabilities, he believed that the appellant was mildly retarded.

Fred Davis, Charles Davis’ son, testified that he grew up with the appellant; that the appellant was in special education classes; that the appellant tried to fit in with people, but that he did not; that the appellant’s house was filthy and almost uninhabitable; that the appellant usually smelled bad and was not clean; that the appellant’s brothers and sisters were mentally retarded; and that he would classify the appellant as being mentally retarded. He also testified that the appellant could not read and could only print his name.

Napoleon Bradley, a neighbor who knew the appellant and his family, testified that most of the family was slow; that the appellant was slow; and that the appellant had always been willing to help him work on vehicles, but did not have the ability to work without supervision.

The defense also presented evidence that the appellant was born on February 16, 1971, and was the seventh child in the family; that the appellant’s half-brother Darrin had an IQ of 65 and had been diagnosed as being mildly mentally retarded; that the appellant’s half-brother Arles-ter had been diagnosed as being severely retarded; and that the appellant’s sister Mary was mentally slow and received a disability check. The defense further presented evidence that the appellant’s mother was neglectful toward her home and children at times and was mentally limited, that she was an alcoholic, that she had repeated run-ins with other people, and that law enforcement officers knew her and her family well.

David Glanton, a teacher who was employed by the Henry County Board of Education, testified that the appellant was placed in special education classes because he was classified as educably mentally retarded (“EMR”). He also testified that grades for special education students were assigned on a sliding scale based on the grade level at which the child was functioning.

School records showed that the appellant achieved an IQ score of 61 when he was eight years old. The appellant’s Stanford Achievement Test scores reflected that, whén he was ten years old, he was at 1.0 grade equivalent in reading and 1.6 grade equivalent in math; that, when he was eleven years old, he was at 1.3 grade equivalent in reading and 2.0 grade equivalent in math; and that, when he was twelve years old, he was at 2.9 grade equivalent in reading and 4.4 grade equivalent in math. When he was fourteen years old, the appellant’s performance on the Stanford Achievement Test was below average on 43 of 47 areas and average on 4 of 47 areas. When he was fifteen years old, the appellant’s performance on the Stanford Achievement Test was below average on 42 of 47 areas and average on 5 of 47 areas.

Dr. Frank Weathers, a clinical psychologist, testified that he reviewed numerous records concerning the appellant’s upbringing and history to attempt to explain his actions. Based on that review, he stated that standardized intelligence tests were repeatedly administered to the appellant and that he had low IQ scores that were “very, very consistent at a very early age”; that the appellant “is mentally deficient in the range of 60 to 70 on standardized IQ tests”; that the appellant started using drugs at a very early age; that the appellant’s family had poor interactions with peers and within the family; and that the appellant and his family lived in extreme poverty. (R. 1057,1091.)

Dr. Michael D’Errico, a forensic psychologist, testified that he had previously conducted over 5,000 psychological evaluations; that he had been appointed by the court in about 500 eases; and that he performed a psychological evaluation of the appellant in this case on July 23, 1997. At that time, he administered the Wech-sler Adult Intelligence Scale—Revised (‘WAIS-R”), and the appellant achieved a full-scale score of 67, “which falls near the upper limit of mild range of mental retardation.” (R. 1123.) The appellant’s performance IQ was 70, and his verbal IQ was 67. D’Errico explained that the highest score a person could achieve and still be considered mentally retarded is 70.

D’Errico testified that, in his opinion, the appellant is mildly mentally retarded. He admitted that he had previously determined that the appellant was mildly mentally deficient, although he could not explain why, but had not been able to conclude that he was mentally retarded. However, he explained that, at that time, he did not have any documentation to show that the appellant had been in special education classes, that he had access to the appellant’s school records only on the day of the previous trial proceedings in this case, that he did not have any access to IQ scores, and that he “didn’t have enough information to use the formal term mild mental retardation.” (R. 1135.)

Regarding the appellant’s IQ, D’Errico conceded that he had previously described the appellant as mildly mentally deficient rather than mentally retarded “mainly because [he] lacked clear evidence of a low IQ that was obtained prior to age 18.” (R. 1132.) However, shortly before the new sentencing proceeding, he received school records that showed that the appellant had an IQ of 61 when he was eight years old. D’Errico also admitted that, in September 1997, another doctor administered the same IQ test he had used, and the appellant achieved an overall score of 72 on that test, with a verbal IQ of 76 and a performance IQ of 69. However, he explained that the instructions for the WAIS-R warn that the test should not be administered within six months after it is first administered.

Regarding adaptive behavior, D’Errico admitted that he had previously described the appellant as “street-wise or street-smart.” (R. 1132.) However, he testified that he now considers the appellant to be a high functioning mentally retarded person. D’Errico explained that, when he formed his initial opinion, he looked more at the appellant’s functioning level as an adult. As he further explained, improving learning and adaptive functioning is

“the entire goal of the educably mentally retarded program that you have heard so much about in schools. These are high-functioning mentally retarded children with their IQ scores between a 60 or 70. And the goal in the EMR program is to provide these individuals with some type of skills and some level of adaptive functioning so they can, at least, function marginally in society.”

(R. 1150.) He also testified that some mentally retarded people can improve their adaptive functioning to a point where they can function, at least marginally, in society. For example, some mentally retarded people can obtain driver’s licenses, handle money, and live alone.

On rebuttal, Dr. Doug McKeown, a clinical and forensic psychologist, testified that he had reviewed the appellant’s school records, previous evaluations, and various other relevant records. Based on that review, he concluded that some of the appellant’s scores showed that his actual adaptive function and ability level were beyond what the IQ test showed; that the appellant was probably in the borderline range of intellectual functioning; and that, at the time of the offense, the appellant was not functioning at the level of mental retardation.

On cross-examination, McKeown admitted that, with regard to home living, records showed that the appellant’s family was somewhat dysfunctional. He also admitted that the appellant had a deficit in his functional academic skills.

Finally, in its sentencing order, the trial court found that the appellant was “borderline mentally retarded” and “mildly mentally retarded.” (C.R. 605, 607.) With regard to whether the appellant had the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law, it also found, in part, as follows:

“The evidence presented by the Defense basically showed matters that had happened to the Appellant and Appellant’s family members that could possibly affect his dysfunction as an adult. The following evidence was presented during the sentencing on this mitigating circumstance:
“(3) That the Appellant’s home environment was not healthy. His grandmother raised him because of this parent’s alcohol problems. The Appellant was abused and molested by an older cousin when he was twelve years of age. That the Appellant’s older brother was also molested. That the Appellant’s sister became pregnant at the age of thirteen. The Appellant witnessed physical altercations between his parents. The Appellant and his siblings started abusing drugs and alcohol when he was eight years old. At the age of eighteen, the Appellant lived with his sister who was abusing drugs and alcohol.
“(4) The evidence shows that the Appellant had a brother with a serious mental illness and a sister who was mentally retarded. The Appellant’s older brother was also mentally retarded and took psychotropic medication and had been diagnosed as a schizophrenic. Both siblings had been incarcerated.
“Other evidence provided on this issue were the following:
“(1) The Defendant’s use or misuse or abuse of drugs was a result of his mental or emotional disturbance.
“(5) Jerry Jerome Smith has the learning capacity of a third grader.
“(11) Mr. Smith was in special education classes all of his life; only finished the eighth grade.
“(13) Mr. Smith cannot read or write.
“(14) The Defendant’s low IQ and his low frustration tolerance and poor impulse control.
“(15) The dysfunction of his childhood home.
“(16) The fact that he acted as a 12 year old with regard to the capacity to form the intent to commit the crime. The Court has considered all of the factors listed on whether there existed the statutory mitigating circumstance under § 13A-5-51(6). The Court finds that it does exist.”

(C.R. 603-06.) The trial court also found that the following relevant non-statutory mitigating circumstances existed:

“6. Jerry Jerome Smith has the learning capacity of a third grader.
“10. Darren Smith (brother) is mentally retarded....
“16. Jerry Jerome Smith was in special education classes all of his life and only finished the eighth grade. Even so, he was illiterate when he finished school.
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“18. Jerry Jerome Smith cannot read or write.
“19. Jerry Jerome Smith’s brother, Arlester, is mentally retarded.
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“22. Jerry Jerome Smith’s cousin, Annie Jewel Turner, is in a mental institution.”

(G.R. 607-09.)

The record before us, which was more fully developed on remand following Atkins, affirmatively establishes that, well before age eighteen, the appellant had significantly subaverage intellectual functioning. Specifically, as early as age eight, his IQ score was 61. There is also an indication that the appellant’s IQ at age twelve was 66. From an early age, the appellant performed poorly in school. As a result, he was classified as educably mentally retarded and was placed in special education classes. Finally, subsequent Stanford Achievement Test scores showed that he was below average in the majority of the areas tested.

When it conducted its plain error review of this issue based on the record before it, the Alabama Supreme Court did not have the benefit of information about the appellant’s IQ scores and adaptive skills before the age of eighteen. In fact, it specifically noted that, based on the record before it at that time, it did not need to address the matter of whether the appellant’s problems manifested themselves before the age of eighteen. Likewise, D’Errico did not have such information when he first concluded that the appellant was mildly mentally deficient. However, he explained that the additional information about the appellant’s IQ scores and adaptive skills before the age of eighteen caused him to change his initial opinion and conclude that the appellant was indeed mildly mentally retarded.

In addition, the record affirmatively establishes that the appellant had significant or substantial deficits in adaptive behavior before the age of eighteen. He clearly had significant or substantial deficits in functional academics. Also, the testimony of various witnesses who knew the appellant during his developmental period establishes that, at the very least, he had substantial deficits in self-care, home living, and social skills. In fact, even the State’s expert, Dr. McKeown, conceded that the appellant had deficits in home living and functional academics.

For these reasons, we conclude that the appellant is mentally retarded and is therefore not eligible for the death penalty. In reaching this conclusion, we find Dr. D’Errieo’s testimony and change of opinion during the new sentencing proceeding to be compelling. We also find the trial court’s findings that the appellant was borderline mentally retarded and mildly mentally retarded and its findings about his deficits in adaptive behavior to be significant and entitled to great weight.

We recognize that, upon a cursory review, it appears that we are second-guessing a decision the Alabama Supreme Court has already made. However, as set forth above, we believe that the Alabama Supreme Court simply intended for its previous opinion to be a threshold determination, based on the scant record before it at the time, as to whether a remand for a new sentencing proceeding was necessary. We also find authority for our decision in the Alabama Supreme Court’s statement that “a death sentence may be imposed in this case if such a sentence is deemed proper after the new penalty-phase proceeding.” Ex parte Smith, 213 So.3d at 226.

For the above-stated reasons, we reverse the trial court’s judgment as to sentence and remand this ease with instructions that the trial court set aside the appellant’s sentence of death and resen-tence him to imprisonment for life without the possibility of parole.

REVERSED AND REMANDED.

McMILLAN, P.J., and COBB, and WISE, JJ., concur; SHAW, J., dissents, with opinion.

SHAW, JUDGE,

dissenting.

I agree with the majority that the Alabama Supreme Court’s opinion in Ex parte Smith, 213 So.3d 214 (Ala.2003), did not preclude relitigation of the Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), issue on remand. However, that Court’s opinion is, in my view, subject to differing interpretations and, based on the record, it is unclear to me whether the trial court understood that the Atkins issue was viable on remand, or whether it believed any evidence of mental retardation would be relevant only as a mitigating circumstance.

Before the penalty proceedings on remand, Smith filed three motions requesting that a sentence of life imprisonment without the possibility of parole be imposed pursuant to Atkins; two of those motions also requested a pretrial hearing on the issue. The trial court denied the first motion several months before trial, but granted Smith funds for IQ testing, thus indicating that the trial court believed that the Atkins issue was still viable. During a break in voir dire examination, the trial court deferred ruling on the second two motions until it heard the evidence of Smith’s retardation, again indicating that it believed that the Atkins issue was viable, but it denied Smith’s request for a pretrial hearing on the issue in contravention of this Court’s opinion in Morrow v. State, 928 So.2d 315 (Ala.Crim.App.2004), released over two months before the remand proceedings, holding that an Atkins issue should be determined before trial, thus indicating that the trial court believed that any evidence of mental retardation would not preclude imposition of the death penalty, but could be used only as mitigation evidence. There is no further mention in the record of these motions, and the trial court did not issue a specific ruling on the motions.

In its sentencing order, in finding that Smith’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired, see § 13A-5-51(6), Ala.Code 1975, the trial court found that Smith was “borderline mentally retarded” and had a “low IQ” (C. 605-06; emphasis added), but it then found as a nonstatutory mitigating circumstance, see § 13A-5-52, Ala.Code 1975, that Smith was “mildly mentally retarded.” (C. 607; emphasis added.) I note, however, that its sentencing order after the penalty proceedings on remand is in large part identical to the sentencing order the court issued after the first penalty proceedings. The court made no specific findings of fact regarding Smith’s intellectual functioning or adaptive behavior in its sentencing order and, indeed, it did not even mention the Atkins decision, and despite its findings of mental retardation, the court nevertheless imposed the death penalty.

Moreover, the evidence regarding Smith’s mental retardation is sharply conflicting. Although Smith presented both lay and expert testimony to the effect that he was mentally retarded, the State presented both lay and expert testimony to the effect that he was not. The evidence indicated that, at various points in his life, Smith had had IQ scores of between 61 and 72. As the Supreme Court noted, “an overall IQ score of 72 a year after the murders ... seriously undermines any conclusion that Smith suffers from significantly subaverage intellectual functioning.” Ex parte Smith, 213 So.3d at 225. Although the majority finds Dr. D’Errico’s change of testimony compelling, a review of his testimony at the proceedings on remand indicates that the sole basis for his change of opinion was Smith’s childhood IQ scores because, according to Dr. D’Er-rico, IQ scores are the “primary factor” to consider in determining whether a person is mentally retarded. (R. 1149.) Yet, at the original trial, Dr. D’Errico testified that it was Smith’s adaptive behavior and his ability to live “independently at a level, probably, higher than a mentally retarded individual would be living,” that led to his inability, at that time, to find Smith to be mentally retarded. (Original Record, R. 1598.) In addition, Dr. McKeown testified on remand that adaptive functioning is just as important as an IQ score in determining mental retardation. On remand, Dr. D’Errico did not speak to Smith’s level of adaptive functioning, as he did at the original trial, other than to state that Smith was high functioning and to confirm his previous opinion that Smith was “streetwise.” With respect to Smith’s adaptive functioning, evidence indicated that Smith was raised in a dysfunctional, neglectful, and poverty-stricken home; that he had difficulty fitting in at school because of his home environment; and that many of his relatives are mentally retarded and/or suffer from mental illness. However, other evidence indicated that when he was 10, 11, and 14, Smith was tested for adaptive skills and scored above the mental-retardation range of adaptive functioning; that he held various jobs throughout his life; that he was able to live alone and take care of himself, including managing his money, paying his bills, and even paying child support; and that he had a long-time girlfriend. In addition, as the Supreme Court noted in Ex parte Smith:

“More insightful into Smith’s adaptive behavior is the fact that Smith was involved in an interstate illegal-drug enterprise. Smith testified that at the time of the murders he was under stress because he owed a Jamaican drug supplier in Jacksonville, Florida, $27,000. Smith admitted that at the time of the murders he was addicted to cocaine and that he was using $400 worth of crack cocaine per day; he said that in order to maintain that habit he ‘distributed’ drugs.
“Furthermore, the fact that Smith gave a police officer a false name two days before the murders when he was stopped for a traffic violation, the circumstances surrounding the murders, Smith’s actions after the murder—enlisting the help of a friend to dispose of the gun and to hide from the police—his bragging about the murders, his statement about ‘getting off using a mental-disease-or-defect defense, and his statement that he shot two of the individuals in the house to eliminate witnesses indicate that Smith does not suffer from deficits in his adaptive behavior.”

213 So.3d at 225. In determining that Smith “had significant or substantial deficits in adaptive behavior,” the majority does not acknowledge any of these factors the Supreme Court found significant when it determined that Smith had little or no deficits in his adaptive behavior.

“Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus” prohibiting the death penalty. Atkins v. Virginia, 536 U.S. 304, 317, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). The question is not whether Smith could be considered to have some level of mental retardation based on his IQ scores, but whether he is so impaired as to fall within the range of mentally retarded offenders for which the death penalty is prohibited. Such a question involves a factual finding based on weight and credibility determinations, determinations that are better left in the first instance to the trial court, which had the opportunity to personally observe the witnesses and assess their credibility.

Given that the Supreme Court’s opinion in Ex parte Smith is subject to differing interpretations regarding the viability of relitigating the Atkins issue on remand, the ambiguity in the record regarding the trial court’s understanding of whether Atkins could be relitigated on remand, the inconsistencies in the trial court’s findings of both borderline and mild mental retardation, and the conflicting evidence of Smith’s mental retardation, I believe it would be better at this point to remand this case for the trial court to issue specific written findings of fact regarding Smith’s level of mental retardation in light of Atkins and its Alabama progeny before holding as a matter of law, based on our own credibility choices made from review of a cold record, that Smith is mentally retarded to the extent he is ineligible' for the death penalty. Only after findings are made by the trial court can this Court then properly review those findings under the abuse-of-discretion standard enunciated in Morrow.

For these reasons, I respectfully dissent.

      . The Supreme Court issued its certificate of judgment on June 11, 2003.

      . Because of our disposition of this issue, we need not address the remaining arguments the appellant raises in his brief to this court.

       Note from the reporter of decisions: On the prior actions in this case, Judge Shaw ra-cused himself. When the case was resubmitted on return to remand in 2005, the reason for Judge Shaw’s recusal had been removed, and he sat in consideration of the case.

      . The fact that Dr. D'Errico appears to have changed his mind not only as to his opinion of Smith's mental retardation, but also as to the importance of adaptive functioning in determining mental retardation creates, in my mind, a question of credibility that should be determined by the trial court, not this Court.