555 S.W.3d 881
Ark.2018Background
- In December 2015 Cherrish Allbright was murdered; her body and her unborn child were buried in an unmarked grave. Brad Hunter Smith was arrested, tried, convicted of capital murder, and sentenced to death. He challenges only the penalty phase.
- Evidence at trial: Smith and two friends lured Allbright to a field; Smith shot her with a crossbow bolt, beat her with a bat, and the three disposed of the body. A co-defendant confessed and led police to the grave.
- Smith was convicted of kidnapping, abuse of a corpse, and capital murder; he received 20 years, 10 years, and death respectively; only the death sentence is appealed.
- Issues on appeal: whether the jury could consider the death of the unborn child as an aggravator; admissibility of prosecution rebuttal testimony; scope and tone of the prosecution’s rebuttal closing; whether the court failed to inform the jury that “person” in the aggravator did not include an unborn child; and whether the jury’s failure to find lack of criminal history as a mitigating circumstance rendered the sentence arbitrary.
- The majority affirmed the conviction and death sentence, rejecting Smith’s claims on preservation, abuse of discretion, and arbitrariness; Justice Hart dissented, arguing preservation and mandatory Rule 10(b)(ii) review required reversal or a new sentencing trial.
Issues
| Issue | Plaintiff's Argument (Smith) | Defendant's Argument (State) | Held |
|---|---|---|---|
| 1. Whether jury could consider death of unborn child as an aggravator under Ark. Code Ann. § 5-4-604(4) | §5-1-102’s unborn-child definition should not apply to §5-4-604; court erred by permitting aggravator | Issue abandoned below; in any event jury could consider death of unborn child | Not preserved; majority declines to address on merits and affirms sentence |
| 2. Admissibility of prosecution rebuttal testimony (Rauls) | Rebuttal was improper—witness did not rebut defense witness’s detention-center testimony | Testimony properly rebutted defense claim that Smith was a model prisoner | Court did not abuse discretion in admitting rebuttal testimony |
| 3. Scope/emotional tone of prosecution’s penalty-phase rebuttal closing | State exceeded scope, appealed to passion, improperly rehashed arguments | State limited to rebuttal and reasons for pursuing death penalty; court supervised scope | No manifest abuse of discretion; remarks not so passion-evoking as to require reversal |
| 4. Trial court’s failure to inform jury that "person" in aggravator excludes unborn child | Court should have instructed jury that "person" does not include unborn child for §5-4-604 | No Wicks exception triggered; issue not essential in this manner | Majority: not within Wicks exception; no relief. Dissent: Rule 10(b)(ii) requires review and reversal |
| 5. Jury’s refusal to find lack of significant prior criminal history as mitigating circumstance | Jury’s failure was arbitrary: all parties agreed Smith had no significant prior history and urged jury to check the box | No evidence was formally put before jury; arguments are not evidence; jury may weigh or reject mitigation | Not arbitrary; jury permissibly declined to find that mitigator |
Key Cases Cited
- Lee v. State, 327 Ark. 692, 942 S.W.2d 231 (discusses limits on factual recitation when sufficiency not challenged)
- Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (lists aggravating circumstances and jury obligations in death cases)
- Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (death-penalty exception permitting first-time appellate review when Rule 37 relief would be required)
- Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (identifies narrow exceptions requiring the trial court to remedy matters essential to consideration of the death penalty)
- Miller v. State, 2010 Ark. 1, 362 S.W.3d 264 (jury may accept or reject mitigating evidence; not compelled to find mitigator)
- Roberts v. State, 352 Ark. 489, 102 S.W.3d 482 (jury cannot arbitrarily disregard undisputed, objective proof of mitigating circumstance)
- Gilliland v. State, 2010 Ark. 135, 361 S.W.3d 279 (trial court’s discretion on rebuttal testimony reviewed for abuse)
- Wetherington v. State, 319 Ark. 37, 889 S.W.2d 34 (reversal for improper argument requires appeal to jurors’ passions)