Smith v. State

2022 Ark. 95

ROBERT SMITH III APPELLANT v. STATE OF ARKANSAS APPELLEE

No. CR-21-195

Supreme Court of Arkansas

May 5, 2022

APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23CR-18-929] HONORABLE TROY BRASWELL, JUDGE

Lassiter & Cassinelli, by: Michael Kiel Kaiser, for appellant.

Leslie Rutledge, Att'y Gen., by: Rachel Kemp, Sr. Ass't Att'y Gen.; and Karen Virginia Wallace, Ass't Att'y Gen., for appellee.

JOHN DAN KEMP, CHIEF JUSTICE

Appellant Robert Smith III appeals a Faulkner County Circuit Court order convicting him of capital murder, kidnapping aggravated robbery, and theft of property and sentencing him to consecutive terms of life, forty years, forty years, and ten years, respectively. For reversal, Smith argues that (1) substantial evidence does not support his capital-murder kidnapping, and aggravated-robbery convictions; (2) the circuit court erred in denying his motion to suppress evidence; (3) his sentence of life without parole is illegal (4) the circuit court abused its discretion by admitting text messages between Smith's codefendant, Tacori Mackrell and Mackrell's girlfriend; (5) the circuit court erred by allowing the State to inquire about three of Smith's prior bad acts; (6) the State impermissibly shifted the burden of proof to the defense while cross-examining Smith; (7) the circuit court abused its discretion during closing arguments by preventing Smith from commenting on the State's failure to call Mackrell as a witness; and (8) the circuit court abused its discretion during sentencing by allowing the State to introduce a music video in which Smith appeared. We affirm but remand for the circuit court to correct the sentencing order.

I. Facts

On July 7, 2018, around noon, seventy-two-year-old Elvia Fragstein left her home in her 2018 silver Honda CR-V to go shopping in Conway. When she did not return home that evening, her husband, Helmut, became worried. Fragstein did not have a cell phone with her so Helmut checked her credit-card purchases in an attempt to locate her. She had made purchases that day at Kroger, a liquor store, and TJ Maxx. He called 911 and reported Fragstein missing.

Arkansas State Police Trooper Kevin Helm worked Highway Patrol that day. At 5:00 p.m., Trooper Helm ran the license plate for a silver Honda CR-V that passed him on the southbound side of Interstate 530 a few miles north of Pine Bluff. It was registered to Fragstein, but there was no indication then that the vehicle had been stolen.

Investigators with the Faulkner County Sheriff's Office reviewed surveillance footage from the Conway stores where Fragstein had shopped on July 7. A surveillance video from Kroger on Salem Road showed that after Fragstein finished shopping there, she walked outside to her CR-V, cautiously backed out, and exited the parking lot. Video footage from TJ Maxx in the Conway Commons shopping center revealed that she then shopped there and exited the store at approximately 3:43 p.m.

Exterior cameras from a nearby Target store showed other activity in the Conway Commons parking lot. Videos showed two males arrive at the shopping center a few minutes before 3:00 p.m. They walked around for almost an hour and moved their Chrysler PT Cruiser to several different parking spots during that time. One individual was wearing a white shirt, and the other was wearing a t-shirt with a graphic design on the front and a solid white back. At 3:42 p.m., the individuals walked in front of TJ Maxx. At 3:43 p.m., Fragstein exited TJ Maxx and walked in the same direction. Minutes later, the cameras showed Fragstein's CR-V being driven erratically at a high rate of speed. Video recovered from a nearby UPS store also showed multiple occupants inside the CR-V, and someone other than Fragstein appeared to be the driver. Investigators were able to get a still-shot photograph of the two males seen in the surveillance footage, and they were later identified as Smith and Mackrell.

On the morning of July 11, a farmer discovered a female body at a Jefferson County farm outside Pine Bluff. The body, which had deteriorated and was infested with maggot and insect activity, was identified through dental records as Fragstein. On July 17, Fragstein's burned CR-V was found in a secluded area of Pine Bluff.

Dr. Stephen Erickson, the deputy chief medical examiner for the Arkansas State Crime Laboratory, performed the autopsy. He testified that Fragstein's body had undergone extensive decomposition, and there was significant tissue loss in her face, neck, and chest areas. Dr. Erickson discovered crushing neck trauma that he classified as strangulation. He found a fractured second cervical vertebra indicating that a high degree of force had been applied to the left side of the neck, crushing the side of that vertebra where an important vessel supplies blood to the brain. He also found six right-rib fractures and two left-rib fractures. Dr. Erickson stated that the right-rib injuries were probably caused by a significant amount of force. He agreed that a person "could get that [type of an injury] if the ribs are stomped or crushed." Dr. Erickson concluded that there was "a severe prolonged multi-factorial assault[;] her cause of death was a combination of the injuries that [he] found-strangulation, blunt force trauma of the chest[, ] and blunt force trauma of the cervical spine."

Mackrell's girlfriend, Eriya Evans, testified that Mackrell and Smith are cousins. During the summer of 2018, she lived in an apartment across the street from Smith and his family. She remembered the day that Mackrell went to Conway. She had communicated with Mackrell that day via text message, and he had used a cell phone that she had given him. Evans identified a series of text messages between Mackrell and her from July 7. One text message from him stated, "I just got the texts and when we was up there cuz snatched the purse and shidd, it had $60 in it he got 30 I got 30 I put 20 in the tank and he bought ah 20." Evans explained that before Mackrell's trip to Conway, he never had his own vehicle, but soon afterward, he "popped up with one." At trial, when Evans was shown a photo of Fragstein's CR-V, she responded that it looked like the same car. Evans testified that when she asked Mackrell where he got the vehicle, he became agitated and responded, "We can get around now." Evans testified that Mackrell had driven her to the Dollar Store in the CR-V and had given her a brown purse after returning from Conway.

Another witness, Tashemia Bullard, testified that on July 9 or 10, Mackrell's sister picked her up from her house in a silver CR-V. A day or two later, Mackrell picked Tashemia up in the same CR-V and took her and her son to run an errand. When she retrieved her bags from the car, she opened the trunk and saw a bottle of fingernail polish in a white bag. The CR-V was then parked behind Tashemia's house for about two days. She later told the police about her concern that the vehicle was stolen. Three men eventually came to Tashemia's house in a PT Cruiser and picked up the CR-V. Tashemia's sister, Marquita Bullard, also recalled that three or four men arrived in a blue PT Cruiser to pick up the CR-V. Although Marquita did not actually see any of the men drive off in the CR-V, she identified two of the men as Smith and Mackrell.

Police obtained a search warrant for Smith's residence, and during the search officers recovered several items of clothing, including jeans, a white t-shirt that was air-brushed on one side, and a pair of Nike shoes that appeared to be the ones worn by one of the individuals in the surveillance video. Blood was identified on four different areas of the shoes-the outer side of the left shoe, the outer bottom of the left shoe, the outer bottom of the right shoe, and two spots on the outer bottom of the right shoe. All four of the swabs taken from the Nike shoes matched Fragstein's DNA.

Smith testified in his own defense. He stated that on July 7, 2018, when he was sixteen years old, he and Mackrell went to Conway with his mother in her PT Cruiser. They arrived at a bingo hall in Conway, and his mother went inside to play bingo. Smith and Mackrell remained in the car smoking marijuana and listening to music. He claimed that Mackrell also smoked PCP. They left the bingo hall, drove the PT Cruiser to Conway Commons, and walked around. They returned to the car to smoke marijuana, and Mackrell left the car several times. The second time Mackrell left, he came back with a truck and said, "[F]ollow me." Smith drove the PT Cruiser back to the bingo hall and, at Mackrell's request, took the keys to his mother. Smith returned to the truck, and Mackrell yelled at him to get in the driver's seat and drive back to Pine Bluff. Smith looked back and noticed a lot of blood on Mackrell and that he appeared to be "crouching over something." Smith claimed that he could tell it was a person, but he did not hear her make a sound or move. Smith said that he drove all the way back to Pine Bluff and went inside his house. Mackrell then left with the truck. Smith claimed he never caused injury to Fragstein and was not with Mackrell when Mackrell injured her. Smith admitted having gone to the Bullards' house with Mackrell at a later date because someone told Mackrell to move the truck.

Smith admitted on cross-examination that he had talked to the police two different times and told them several lies including that he was not in Conway on July 7, had never been to Conway, did not know if he had ever ridden in his family's PT Cruiser, and had never seen Fragstein's Honda CR-V. The second time he spoke with police, he admitted that he was in a picture taken from the surveillance footage at Target, but still said that "[he] had nothing to do...