By Ray King
The Arkansas Supreme Court on Thursday ordered a new hearing a Cleveland County man sentenced to death after being convicted of capital murder, kidnapping and abuse of a corpse.
Writing for the court, Associate Justice Courtney Rae Hudson said the attorney for Brad Hunter Smith, 25, was ineffective when they abandoned an argument that the unborn child of Cherrish Allbright was not an aggravating factor in the jury’s decision and the trial court erred when the jury was presented with that death as an aggravating factor.
Smith was sentenced to death stemming from the 2015 death of Allbright, whose body was found in a shallow grave in a rural area near Smith’s residence in Cleveland County.
Testimony at Smith’s trial revealed that Josh Brown, a friend of Smith, called Allbright on Dec. 3 under the pretext of going to smoke marijuana and drove to a field where Smith and another man were hiding behind trees. When Allbright got out, Smith shot her through the back with a crossbow bolt. When she tried to get back in the truck, Smith ordered her out and told her and Brown to knell on the ground. He then hit Allbright in the back of the head with a wooded bat. Smith, Brown and the third man, Jonathan Guenther, put the body on a trailer attached to a four-wheeler and drove to a wooded area where the body was buried.
An autopsy showed that Allbright died of blunt force injuries and also that she had been pregnant.
During the sentencing phase of the trial, the court allowed prosecutors to present, as an aggravating factor, that Smith “knowingly created a great risk of death to a person other than the victim or caused the death of more than one person (Allbright and the unborn child). The jury found beyond a reasonable doubt that was the case and also found beyond a reasonable doubt that the murder was committed in an especially cruel or depraved manner.
On appeal, Smith argued that his attorneys abandoned their contention that the unborn child could be considered an aggravating factor and also thathis attorney failed to present evidence Smith had no criminal record.
The Supreme Court ruling said that while state law provided a definition for “person” in the homicide statutes, it does not in the statute dealing with sentencing and could not be used as an aggravating factor.
Judge Hudson went on to say that while the jury considered two aggravating factors, they should have considered only one, that the murder was committed in an especially cruel or depraved manner.
“We cannot read the jury’s mind and the lack of specificity as to the weight it gave each aggravating factor is sufficient to undermine the confidence of the sentencing,” Hudson said. “We therefore reverse the circuit court’s denial of Smith’s petition with respect to his death sentence and remand for resentencing.”
