BRad smith

Current Proceedings: Sentence reduced to LWOP on 08/09/2021

Case Number: CR-20-86

Judge: Michael Darren O'Quinn

Demographic Information: White Male

Current Counsel:

Bill Luppen 210 S. State St. Little Rock, AR 72201 501.376.0886 (tel.)

 

Legal Status: On August 9th 2021, Smith's sentence was reduced to LWOP after the Arkansas Supreme Court granted his Rule 37.5 petition and remanded the case for resentencing. (Arkansas Supreme Court found the victim's unborn child could not be used as an aggravating circumstance in support of a death sentence. Prosecuting attorney Jeffrey Rodgers signed the order because he thought trying the case again would be difficult since the aggravating circumstance could not be used.)

Significant Legal Issues:

  • PCR:

    • Error in denying the Rule 37.5 petition based on IAC (Issue 1 below)

  • Appeal: (only raised issues relating to punishment phase of trial)

    • Use of unborn child's death as an aggravating factor (did not rule on merits, not properly preserved for review)(dissent disagrees, both preserved and meritorious.) -(Dissent disagrees. State could have charged him with murder of unborn child under the "person" definition for homicide statutes; however, cannot use as an aggravating circumstance because no ambiguity in definition of "person" as applies to the sentencing statute, and even if there were, Rule of Lenity would require to interpret in favor of defendant.Further, even if not preserved, abandonment of the argument by counsel would unquestionably warrant relief under Rule 37 for IAC)

    • Scope of Rebuttal Closing Argument- Circuit court did not abuse it's discretion to control counsel in closing argument; can't show State's comments were specificallyu designed to appeal to juror's emotions

    • Circuit court's failure to instruct jury that his lack of a prior criminal history was an undisputed mitigating circumstanec. (Majority say not arbitrary because no evidence presented to jury, and absence of crim history is not enough to establish the mitigating circumstance) (Dissent disagrees; reversal should be required for court's failure to instruct the jury that his lack of prior crim history was an undisputed mitigating circumstance. Because both attys and the judge all agreed that the mitigating circumstance exists, such undisputed existence constitues a matter essential to the jury's consideratio of the death penalty, thus making the appellate court's review mandatory.)

Last Judicial Decision Related to Conviction or Sentence: Smith v. State, 2020 WL 7253448 (Dec. 10, 2020) (granting habeas relief and remanding for new penalty phase).

Reported Opinions:

  • Smith v. State 2020 WL 7253448

  • Smith v. State, 555 S.W.3d 881 (Ark. 2018).

Prior Counsel:

Conviction County: Cleveland

Counts:

Victim Demographic:

Crime Date: 12/10/2015

Sentencing Date: 07/28/2017

Trial Counsel:

  • Gregory Neal Robinson

  • William Plunkett Luppen

Trial Judge: Talley, David W. 13th Circuit Division 5 -recused on state PCR (9/11/20)

Trial Prosecutor: Thomas Duncan Wynne III