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Arkansas Supreme Court: Unborn Child Not a ‘Person’ Under Sentencing Enhancement Scheme

On December 3, 2015, Brad Hunter Smith and two accomplices lured Cherrish Allbright to a field, shot her with a crossbow, and then struck her head with a bat after ordering her to kneel on the ground. The trio then buried her in a shallow grave.

A week later, one of the accomplices testified about his involvement in the murder, implicating Smith and helping authorities locate Allbright’s body. The autopsy revealed her death was the result of blunt-force trauma to the head and that she was about five weeks pregnant.

Smith was convicted at trial of capital murder, kidnapping, and abuse of a corpse.

The State notified Smith that it intended to present evidence for three aggravating sentencing factors: (1) that the murder was committed in an especially cruel and depraved manner (pursuant to Arkansas Code Annotated Section 5-4-604(8); (2) that Smith knowingly created a great risk of death to a “person” other than Allbright in the commission of the murder (under Section 5-4-604(4)); and (3) that Smith knowingly caused the death of more than one person in the same criminal episode.

Smith’s counsel filed an objection during the trial to counting the unborn child as a “person” for the second and third enhancements but then abandoned this argument prior to sentencing.

The jury was tasked with choosing between the death sentence and life without parole.  Section 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.”

Subsequently, the jury found sufficient facts to assign enhancements (1) and (2) and sentenced Smith to death.

Smith filed a motion for post-conviction relief under Arkansas Rules of Criminal Procedure 37.5.  He claimed, among other things, that his lawyer was deficient for failing to object to  enhancement (2) on the ground that the unborn child should not be included in the definition of a “person.” The circuit court denied his petition, and Smith timely appealed.

The issue before the Arkansas Supreme Court was whether the death of an unborn child may be used to sustain an enhancement under Section 5-4-604(4).

Since this issue relates to statutory interpretation, such issues are considered de novo by the Court.  State v. Colvin, 427 S.W.3d 635 (Ark. 2013).  Penal statutes are to be strictly construed with all doubts resolved in favor of the defendant.  Williams v. State, 217 S.W.3d 817 (Ark. 2005).

Section 5-1-102 contains definitions “[a]s used in the Arkansas Criminal Code.”  Subsection 13(A) defines “Person” as “Any natural person.”  Subsection 13(B)(i)(a) then adds, “As used in Sections 5-10-101 through 5-10-105, ‘person’ also includes an unborn child in utero at any stage of development.”

Applying the fundamental principle of statutory construction known by the maxim unius est exclusio alterius (meaning that the express designation of one thing may properly be construed to mean the exclusion of another), the Court found that the Legislature’s specific application of subsection 13(B)(i)(a) to Sections 5-10-101 through 105 necessarily implies that the extended definition of “person” to include an unborn child is only for use when applying those statutes.  Those statutes relate to various forms of killing but specifically do not include the aggravating sentencing factors codified at Section 5-4-605.

Thus, the circuit court erred in allowing the jury to find that enhancement based on the death of Allbright’s unborn child, and Smith’s counsel was deficient in failing to object to this error at sentencing.

Defendants alleging ineffective assistance of counsel must not only establish that counsel was deficient, they must also establish that it likely affected the “outcome of the trial.”  Springs v. State, 387 S.W.3d 143 (Ark. 2012) (citing Strickland v. Washington, 466 U.S. 668 (1984)).

Regarding how the error affected the jury, the Court said, “We cannot read the jury’s mind, and the lack of specificity as to the weight it gave to each aggravating factor is sufficient to undermine our confidence in the outcome of the sentencing.”

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Smith v. State



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