Smith v. State

2020 Ark. 410

BRAD HUNTER SMITH APPELLANT v. STATE OF ARKANSAS APPELLEE

No. CR-20-86

SUPREME COURT OF ARKANSAS

December 10, 2020

APPEAL FROM THE CLEVELAND COUNTY CIRCUIT COURT

[NO. 13CR-16-3]

HONORABLE DAVID W. TALLEY, JUDGE

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR RESENTENCING.

COURTNEY RAE HUDSON, Associate Justice

Appellant Brad Hunter Smith appeals the circuit court's denial of his petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.5 (2019). For reversal, Smith argues that the circuit court erred by (1) denying his amended petition based on ineffective assistance of counsel, (2) not considering his second amended petition, (3) allowing the jury to consider at sentencing an aggravating circumstance that was not supported by sufficient evidence, and (4) making insufficient findings of fact. We affirm in part, reverse in part, and remand for resentencing.

Smith was charged on January 7, 2016, with capital murder, kidnapping, and abuse of a corpse. Evidence at trial demonstrated that Cherrish Allbright went missing on December 3, 2015. On December 10, Smith's friend, Josh Brown, confessed to his involvement in Allbright's disappearance. Brown testified that he called Allbright on December 3 under the pretenses of wanting to smoke marijuana. Brown picked up Allbright in Jonathan Guenther's truck and drove to a field where Smith and Guenther were hiding behind trees. After Allbright exited the truck, Smith shot her through the back with a crossbow bolt. Allbright attempted to reenter the truck, but Smith ordered her out of the truck and told her and Brown to kneel on the ground. Smith then struck Allbright in the back of the head with a wooden bat. The trio placed Allbright's body onto a trailer attached to a four-wheeler and transported it to a wooded area near Smith's residence for burial. Based on information that Brown provided, authorities found Allbright's body buried in a shallow grave. An autopsy revealed that Allbright died of blunt force injuries and the presence of a "[f]ive-week +/- gestational age embryo[.]" The jury convicted Smith on all charges.

At the sentencing phase, the circuit court allowed the jury to consider as an aggravating factor whether, pursuant to Arkansas Code Annotated section 5-4-604(4) (Repl. 2013), "[i]n the commission of the capital murder, Brad Hunter Smith knowingly created a great risk of death to a person other than the victim or knowingly caused the death of more than one person (Cherrish F. Allbright and unborn child) in the same criminal episode." The jury found beyond a reasonable doubt that the circumstance existed. The jury also found beyond a reasonable doubt that the murder was committed in an especially cruel and depraved manner pursuant to Arkansas Code Annotated section 5-4-604(8) and that the aggravating factors outweighed the mitigating factors. The jury therefore sentenced Smith todeath for Allbright's murder. The jury also sentenced Smith to twenty years' imprisonment for kidnapping and ten years' imprisonment for abuse of a corpse. He challenged only his death sentence on direct appeal, and we affirmed. Smith v. State, 2018 Ark. 277, 555 S.W.3d 881.

Smith filed a petition for postconviction relief pursuant to Rule 37.5 on March 19, 2019, and an amended petition on May 29, 2019. In his amended petition, Smith alleged that (1) trial counsel were ineffective because they abandoned their objection to instructing the jury that the death of Allbright's unborn child could be considered an aggravating factor for sentencing purposes; (2) trial counsel were ineffective because they failed to present evidence that Smith had no criminal history; and (3) because these issues were essential to the jury's consideration of the death penalty, the circuit court erred by failing to bring them to the jury's attention. The circuit court held a hearing on the amended petition on July 17, 2019. On August 27, 2019, after the hearing, but before the circuit court ruled on the amended petition, Smith filed a second amended petition. That petition added two additional claims: (1) that trial counsel rendered ineffective assistance by failing to investigate the viability of Allbright's unborn child and its cause of death, and (2) that defining Allbright's unborn child as a "person" in the guilt phase of the trial confused the jury and violated his due-process rights. On November 1, 2019, the circuit court entered an order denying both petitions. The circuit court found the claims in the first amended petition to be without merit. The circuit court rejected the claims in the second amended petition because Smith filed the petition without leave of the court as required by Arkansas Rule ofCriminal Procedure 37.2(e). Alternatively, the circuit court found that the claims in the second amended petition were meritless. Smith filed a timely notice of appeal.

When reviewing a circuit court's ruling on a petitioner's request for Rule 37.5 relief, this court will not reverse the circuit court's decision granting or denying postconviction relief unless it is clearly erroneous. Johnson v. State, 2020 Ark. 168, 598 S.W.3d 515. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been made. Id.

Claims of ineffective assistance of counsel are assessed under the two-prong standard set forth by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668 (1984). Roberts v. State, 2020 Ark. 45, 592 S.W.3d 675. In asserting ineffective assistance of counsel under Strickland, the petitioner first must demonstrate that counsel's performance was deficient. Id. This requires a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment. Watson v. State, 2014 Ark. 203, at 3, 444 S.W.3d 835, 838-39. The reviewing court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. The defendant claiming ineffective assistance of counsel has the burden of overcoming that presumption by identifying the acts and omissions of counsel which, when viewed from counsel's perspective at the time of trial, could not have been the result of reasonable professional judgment. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55.

Second, the petitioner must show that the deficient performance prejudiced the defense, which requires a demonstration that counsel's errors were so serious as to deprive the petitioner of a fair trial. Roberts, 2020 Ark. 45, 592 S.W.3d 675. This requires the petitioner to show that there is a reasonable probability that the fact-finder's decision would have been different absent counsel's errors. Strickland, 466 U.S. 668. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. The "outcome of the trial" refers not only to the finding of guilt or innocence but also to possible prejudice in sentencing. Springs v. State, 2012 Ark. 87, 387 S.W.3d 143. In making a determination of ineffective assistance of counsel, the totality of the evidence must be considered. Id. Unless a petitioner makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Sales v. State, 2014 Ark. 384, 441 S.W.3d 883.

This appeal requires us to interpret statutes crafted by the General Assembly. We review issues involving statutory construction de novo, as it is for this court to decide the meaning of a statute. State v. Colvin, 2013 Ark. 203, 427 S.W.3d 635. Significantly, penal statutes are to be strictly construed with all doubts resolved in favor of the defendant. Williams v. State, 364 Ark. 203, 217 S.W.3d 817 (2005). Strict construction means narrow construction and requires that nothing be taken as intended that is not clearly expressed. Metzner v. State, 2015 Ark. 222, 462 S.W.3d 650. However, even a penal statute must not be construed so strictly as to defeat the obvious intent of the legislature. Williams, supra. Additionally, in construing any statute, we place it beside other statutes relevant to thesubject matter in question and ascribe meaning and effect to be derived from the whole. Singleton v. State, 2009 Ark. 594, 357 S.W.3d 891; Bush v. State, 338 Ark. 772, 2 S.W.3d 761 (1999). Statutes relating to the same subject must be construed together and in harmony, if possible. Jester v. State, 367 Ark. 249, 239 S.W.3d 484 (2006).

The jury convicted Smith of capital murder and sentenced him to death. A person commits capital murder if "with the premeditated and deliberated purpose of causing the death of another person, the person causes the death of any person." Ark. Code Ann. § 5-10-101(a)(4) (Repl. 2013). Capital murder is punishable by death or life imprisonment without parole. Ark. Code Ann. § 5-10-101(c)(1)(A)(i)-(ii). To impose a death sentence, a jury must unanimously find beyond a reasonable doubt that an aggravating circumstance exists, that aggravating circumstances outweigh any mitigating circumstances, and that the aggravating circumstances justify a sentence of death. Ark. Code Ann. § 5-4-603 (Repl. 2013).

This appeal concerns the interplay of a definitional statute and a sentencing statute. Arkansas Code Annotated section 5-1-102 contains definitions "[a]s used in the Arkansas Criminal Code." In relevant part, that section provides that:

(13)(A) "Person", "actor", "defendant", "he", "she", "her", or "him" includes:

(i) Any natural person; and

(ii) When appropriate, an organization as defined in § 5-2-501.

(B)(i)(a) As used in §§ 5-10-101 -- 5-10-105, "person" also includes an unborn child in utero at any stage of development.

(b) "Unborn child" means offspring of human beings from conception until

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