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Smith v. State

Supreme Court of Arkansas

October 4, 2018



          Robinson & Zakrzewski, P.A., by: Luke Zakrzewski, for appellant.

          Leslie Rutledge, Att'y Gen., by: Amanda Jegley, Ass't Att'y Gen., and Jason M. Johnson, Ass't Att'y Gen., for appellee


         On December 10, 2015, the bodies of Cherrish Allbright and her unborn child were found buried in an unmarked grave. Cherrish had an arrow through her back and she had suffered two, severe, blunt-force impacts to the back of her head, which caused her death. Brad Hunter Smith was arrested and charged with her murder. Following a jury trial in Cleveland County, he was convicted of capital murder and sentenced to death. On appeal, he only raises issues regarding the punishment phase of his trial. We affirm the conviction and sentence.

         Smith does not challenge the sufficiency of the evidence on appeal, so only a brief recitation of the facts is required. Lee v. State, 327 Ark. 692, 696, 942 S.W.2d 231, 233 (1997). In November 2015, Allbright disclosed to Smith that she was pregnant with his child. Throughout the following weeks he made numerous comments to friends, family, and coworkers that he needed help committing a murder. Ultimately, on December 3, 2015, Smith enlisted the help of his two friends, Jonathan Guenther and Joshua Brown, to kill Allbright and hide her body. According to the plan, Brown would call Allbright under the pretenses of wanting to smoke marijuana and then drive her to a nearby field where Guenther and Smith would be lying in wait.

         When Brown arrived at the field with Allbright, Guenther and Smith were hiding behind some trees. When Allbright exited and walked to the front of the vehicle, Smith stood up and shot her through the back with a crossbow bolt. She attempted to get back into the vehicle, but Smith ordered her to get down on the ground on her knees. He then used a wooden baseball bat to hit her twice in the back of the head, killing her. The trio then loaded the body onto the back of a trailer, transported it to a gravesite behind Smith's house, and buried her.

         On December 10th, officers from the Cleveland County Sherriff's Department brought Brown in for questioning on an unrelated matter and, upon encouragement from his mother, he confessed to the murder and led officers to the grave.[1] Based on the information Brown provided, officers from the Arkansas Game and Fish Commission were ultimately able to arrest Smith at his family's cabin on Belcoe Lake.

         Smith was charged with kidnapping, abuse of a corpse, and capital murder. The jury convicted him on all charges and he was sentenced to twenty years, ten years, and death respectively. He only challenges his sentence for capital murder on appeal.

         I. Prohibition of Aggravating Circumstances

         For his first point, Smith argues that prejudicial error occurred when the circuit court permitted the jury to consider the death of Allbright's unborn child as an aggravating circumstance. Arkansas Code Annotated section 5-4-604 sets forth the aggravating circumstances that the jury may consider for the imposition of the death penalty. Bowen v. State, 322 Ark. 483, 496, 911 S.W.2d 555, 561 (1995). The specific provision in question states that it is an aggravator if "[t]he person in the commission of the capital murder knowingly created a great risk of death to a person other than the victim or caused the death of more than one (1) person in the same criminal episode." Ark. Code Ann. § 5-4-604(4) (2013). Arkansas Code Annotated section 5-1-102(13)(B)(i)(a) contains the definition of "person" as it relates to the homicide statutes and states, "As used in §§ 5-10-101 -- 5-10-105, 'person' also includes an unborn child in utero at any stage of development." Smith argues that the circuit court should have granted his motion prohibiting the aggravating circumstance from being presented because the definition of person in section 5-1-102 could not apply to section 5-4-604.

         The State in turn argues that this issue is not preserved for appeal because it was abandoned below. At trial, Smith filed a motion to prohibit the State from submitting an aggravating circumstances form to the jury. Attached to the motion was the form the State intended to submit to the jury, which included the definition of person in Ark. Code Ann. § 5-1-102(13). However, at a hearing outside the presence of the jury, the court inquired whether Smith objected to the definition or its placement on the form. Smith responded that he was objecting to the placement.[2] In his reply brief, Smith acknowledges that his argument was abandoned, but nevertheless contends that he may raise it on appeal based on our decision in Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981).

         The general rule is that this court will not address errors raised for the first time on appeal. Id. at 129, 623 S.W.2d at 181; Hicks v. State, 2017 Ark. 262 at 10, 526 S.W.3d 831, 838. Likewise, parties cannot change their grounds for an objection on appeal, but are bound by the scope and nature of their objections as presented at trial. Hicks, 2017 Ark. 262 at 10, 526 S.W.3d at 838. However, in death-penalty cases we will consider errors argued for the first time on direct appeal when prejudice is conclusively shown by the record and this court would unquestionably require the trial court to grant relief under Rule 37 of the Arkansas Rules of Criminal Procedure. Singleton, 274 Ark. at 128, 623 S.W.2d at 181; Hill v. State, 275 Ark. 71, 77, 628 S.W.2d 284, 287 (1982); Hughes v. State, 295 Ark. 121, 122, 746 S.W.2d 557, 557 (1988).

         In Singleton the defendant was sentenced to death for felony murder and life imprisonment for aggravated robbery. 274 Ark. at 128, 623 S.W.2d at 181. We affirmed the conviction for capital felony murder but set aside the conviction for the lesser included offense of aggravated robbery. Id. We noted that our recent decision in Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981), prohibited the entry of a judgment for capital felony murder and the underlying specific felony. Id. We therefore applied our holding to Singleton's case by invoking the death penalty exception. Id.

         We decline to extend the exception to the circumstances argued here. Smith has not conclusively shown prejudice and he has failed to show that we would unquestionably grant him Rule 37 relief on the issue.[3] We note that enforcing a narrow interpretation of the death penalty exception ensures that it remains an exception and does not swallow the rule.

         II. Improper Rebuttal Testimony

         For his second point, Smith argues that the circuit court erred when it improperly permitted the prosecution to present rebuttal testimony. During the penalty phase of the trial, Smith presented testimony from Randall Jones, who worked for the Dallas County Detention Center. He testified that while Smith was awaiting trial, he was a model prisoner and never showed any signs of aggression or violence. After Smith rested, the State argued that it was entitled to present a rebuttal witness, Coby Rauls. Rauls testified that he was a deputy sheriff with Cleveland County and that he had transported Smith from one of his court appointments back to the detention center. During the transportation, Rauls recounted that Smith stated he would like to use the officer's night stick to beat the driver of the vehicle in front of him for excitement. Before Rauls testified, Smith's attorney argued that it wasn't rebuttal because the officer wasn't at the detention center to witness Smith's behavior. The court allowed the rebuttal noting that it related to Smith's behavior while he was still a prisoner.

         Smith argues that the evidence was improper because Rauls's testimony was not in response to Jones's. The State in turn argues that this argument was not presented to the circuit court. See Hicks, 2017 Ark. 262 at 10, 526 S.W.3d at 838. In his reply, Smith admits that he did not present this specific argument to the circuit court below. However, even if we address his argument, it is meritless.

         The decision to admit rebuttal testimony is at the circuit court's discretion and we will not reverse unless the circuit court abused that discretion. Gillard v. State, 2010 Ark. 135');">2010 Ark. 135 at 11, 361 S.W.3d 279, 285. Here, Jones testified that Smith was a model prisoner. The State's rebuttal witness countered that assertion by Smith's comment in the squad car. Smith can't show that the circuit court abused its discretion by allowing Rauls to testify.

         III. Scope of ...

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