FROM THE CLEVELAND COUNTY CIRCUIT COURT [NO. 13CR-16-3-5]
HONORABLE DAVID W. TALLEY, JR., JUDGE
Robinson & Zakrzewski, P.A., by: Luke Zakrzewski, for
Rutledge, Att'y Gen., by: Amanda Jegley, Ass't
Att'y Gen., and Jason M. Johnson, Ass't Att'y
Gen., for appellee
A. WOMACK, ASSOCIATE JUSTICE
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.
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
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
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. 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
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.
Prohibition of Aggravating Circumstances
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
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. 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).
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).
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.
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. We note that enforcing a narrow
interpretation of the death penalty exception ensures that it
remains an exception and does not swallow the rule.
Improper Rebuttal Testimony
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
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.
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.
Scope of ...