2020 Ark. 410
Ark.2020Background
- Brad Hunter Smith was convicted of capital murder, kidnapping, and abuse of a corpse for the December 2015 killing of Cherrish Allbright; autopsy showed blunt-force trauma and an approximately five-week embryo.
- At sentencing the State submitted three aggravating factors, including that Smith caused the death of more than one person or created a great risk of death to another person, based on Allbright’s pregnancy.
- Defense counsel initially objected that the statutory definition treating an “unborn child” as a “person” (Ark. Code Ann. § 5-1-102(13)(B)) applies only to homicide statutes, not to the aggravating-factor statute § 5-4-604, but counsel abandoned that objection at sentencing; the jury found two aggravators and imposed death.
- Smith filed a Rule 37.5 petition alleging trial counsel’s ineffective assistance (including abandoning the unborn-child objection and failing to present evidence of no criminal history and fetus viability), and later filed a second amended petition; the circuit court denied relief and rejected the second amended petition as filed without leave (or alternatively on the merits).
- The Arkansas Supreme Court held that § 5-1-102(13)(B)’s unborn-child definition is expressly limited to the homicide statutes and does not apply to the sentencing/aggravator statute § 5-4-604; counsel were ineffective in abandoning the objection, which undermined confidence in the death sentence; the Court reversed as to sentencing and remanded for resentencing; other claims were rendered moot.
Issues
| Issue | Plaintiff's Argument (Smith) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether counsel were ineffective for abandoning objection to treating unborn child as a “person” for § 5-4-604 aggravator | Counsel abandoned a meritorious statutory-construction objection; this deficient performance prejudiced sentencing | The statutory definition in § 5-1-102 applies to the Criminal Code (including § 5-4-604); no deficiency or prejudice | Held for Smith: § 5-1-102(13)(B) is limited to homicide statutes; counsel ineffective; remand for resentencing |
| Whether the circuit court erred by not considering the second amended petition | Smith argued new claims (failure to investigate fetus viability, due-process confusion) should be considered | State argued second amended petition was filed without leave in violation of Rule 37.2(e) and was barred | Held against Smith as to consideration (circuit court properly rejected filing without leave); claims alternatively found meritless and are moot after resentencing |
| Whether using the unborn child as an aggravating factor was supported and permissible | Smith argued the unborn child could not be counted as a “person” under § 5-4-604 | State argued the fetal-definition legislation means unborn child is a person for capital sentencing | Held for Smith: the fetal-definition statute is confined to homicide statutes and does not expand § 5-4-604; use of unborn child as aggravator was error |
| Whether circuit court made sufficient findings of fact at Rule 37.5 hearing | Smith argued the court failed to make required findings on key issues (e.g., aggravator weight, investigation) | State argued findings and record were adequate; other issues moot | Held: because error undermined sentencing confidence, resentencing required; related factual- finding complaints rendered moot |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (two-prong ineffective-assistance standard)
- Williams v. State, 364 Ark. 203 (penal statutes must be strictly construed)
- Buonauito v. Gibson, 2020 Ark. 352 (expressio unius supports restricting statutory application)
- Arms v. State, 2015 Ark. 364 (court declined to extend homicide-only fetal definition to nonhomicide statutes)
- Bolin v. State, 2015 Ark. 149 (statutory inclusion of specific language implies exclusion elsewhere)
- 3 Rivers Logistics, Inc. v. Brown-Wright Post No. 158 of Am. Legion, 2018 Ark. 91 (courts must not add words to statutes)
- Johnson v. State, 2020 Ark. 168 (standard of review for Rule 37.5 rulings)