In a 5-2 decision this week, the Arkansas Supreme Court overturned the death sentence of a Cleveland County man convicted of the December 2015 murder of a pregnant Cleveland County woman.

Brad Hunter Smith’s capital murder conviction stands, but the court ordered a new sentencing.

Smith, now 25, was charged on January 7, 2016, with capital murder, kidnapping, and abuse of a corpse in the death of of 22-year-old Cherrish Faith Allbright of the Randall community in Cleveland County.

Cherrish Faith Allbright

Cherrish Faith Allbright

Allbright was last seen by a family member the night of December 3, 2015 when she received a telephone call. A short time later, a vehicle pulled up to the house and Allbright went outside. She did not return.

A friend of Smith testified at trial that he called Allbright on December 3 under the pretense of wanting to smoke marijuana. He said he drove to a field where Smith and another friend were hiding behind trees. After Allbright exited the truck, Smith shot her through the back with a crossbow and hit her in the head with a baseball bat, according to court documents.

Though Allbright had been struck in the back with a bolt from a crossbow, it was the blows to the head with a baseball bat that caused her death, according the the state medical examiner. An autopsy also revealed the presence of an embryo with a gestational age of approximately five weeks.

After the beating, Smith and two of his friends 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 provided by one of Smith’s friends, authorities found Allbright’s body buried in a shallow grave.

At the sentencing phase of Smith’s trial, the circuit court judge allowed the jury to consider as an aggravating factor whether Smith knowingly caused the death of more than one person — Allbright and the embryo — 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 and that the aggravating factors outweighed the mitigating factors.

After finding Smith guilty of capital murder, kidnapping and abuse of a corpse, a Cleveland County jury sentenced Smith to death. The jury also handed down a 20-year sentence for kidnapping and a 10-year sentence for abuse of a corpse.

On appeal to the Arkansas Supreme Court, Smith argued that his trial counsel was ineffective because they dropped an objection to the prosecutor’s use of Allbright’s pregnancy as an aggravating circumstance for sentencing purposes.

Writing for the majority in the Arkansas Supreme Court opinion released Thursday, five years after Allbright’s death, Justice Courtney Hudson said Smith’s appeal concerns the interplay of a definitional statute in Arkansas law and a sentencing statute.

“The question presented to the court is not whether Smith committed a particularly heinous crime or whether he deserves death for his transgressions,” Hudson wrote. “Rather, the question we must answer is whether the General Assembly properly provided for the ‘unborn child’ definition of ‘person’ to be applied when an aggravating factor in capital-murder sentencing is being considered. The answer is no. The legislature did not permit the section 5-1-102(13)(B) definition of a ‘person’ to apply in the determination of an aggravating factor for capital-murder sentencing. In fact, the General Assembly specifically restricted the use of this definition. This we cannot ignore.”

Hudson said the jury considered two aggravating factors when it should have considered only one: 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 to each aggravating factor is sufficient to undermine our confidence in the outcome of the sentencing,” Hudson wrote.

Chief Justice Dan Kemp, associate justices Karen Baker and Josephine Hart joined Hudson’s opinion. Special Justice Darren O’Quinn concurred.

In her dissenting opinion, Justice Rhonda K. Wood said it is “absurd and inharmonious to hold that when the General Assembly defined a person to include an ‘unborn child’ for a death in a capital-murder statute that it did not intend that definition to apply to a death of a person in the capital-murder aggravating factors.”

She said Smith’s defense counsels’ failure to object to the aggravating factor was not deficient and did not rise to the level of depriving Smith of his Sixth Amendment right to counsel.

Justice Shawn Womack joined Wood in her dissent.