Seth Bradley Smith v. State of Arkansas

Cite as 2021 Ark. App. 255
Elizabeth Perry ARKANSAS COURT OF APPEALS
I attest to the accuracy and
integrity of this document DIVISION II
2023.06.28 10:47:54 -05'00' No. CR-20-234

2023.001.20174
Opinion Delivered May 26, 2021

SETH BRADLEY SMITH APPEAL FROM THE CRAIGHEAD
APPELLANT COUNTY CIRCUIT COURT,
WESTERN DISTRICT
V. [NO. 16JCR-17-1519]

STATE OF ARKANSAS HONORABLE F. RANDY
APPELLEE PHILHOURS, JUDGE

AFFIRMED

BRANDON J. HARRISON, Chief Judge

Seth Bradley Smith appeals his conviction by a Craighead County Circuit Court

jury of one count of second-degree murder. Smith contends that the circuit court erred in

denying his motion to suppress, allowing the State to introduce information from the

autopsy report, and denying his motion for directed verdict. We affirm the circuit court.

In December 2017, Smith was charged with the second-degree murder of AS, his

four-month-old son. At a jury trial, the State presented evidence that on 3 October 2017,

Smith picked up AS from his babysitter between 4:00 and 5:00 p.m. and took him home.

Smith’s mother was at his home, and she fed the baby and changed his diaper while Smith

took a shower. Smith’s mother left at approximately 5:45 p.m. At 6:13 p.m., Smith called

911 and reported that there was “something wrong” with his baby and that the baby was

“not really moving.” A local firefighter responded in less than two minutes and found the

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baby “grayish blue” in color and with no pulse, and he began administering CPR.

Paramedics arrived, found the baby “completely unresponsive,” and moved the baby to the

ambulance, where they continued CPR. They also intubated the baby to help him breathe

and inserted an interosseous line to administer medication. Emergency room personnel

continued CPR and administration of medications until it was “deemed futile to continue.”

AS was pronounced dead at 7:09 p.m.

Smith told a police officer who responded to the 911 call that AS had been “crying

and crying and he was acting like he couldn’t breathe. I’m holding and shaking him and

I’m just like—and I’m patting and finally he’s just—he kind of just goes limp.” In an

interview with police six days after AS’s death, Smith initially denied having done anything

to harm AS but later admitted to shaking him “just for a second.” He later said the shaking

was “just for three or four seconds.”

The Arkansas State Crime Laboratory chief medical examiner testified that AS’s cause

of death was “traumatic brain injuries” with contributory causes of “neck

contusions/intramuscular hemorrhage.” Specifically, the medical examiner explained that

AS died from “blunt force trauma” to his head and internal injuries to his central nervous

system, including retinal hemorrhages and optic-nerve hemorrhage, which indicated “a

considerable amount of force, and the force was placed on the head and brain to disrupt

critical areas inside the brain and cause[d] the infant to stop breathing.” He agreed that

these injuries can be caused by shaking and that he could not think of anything else that

could have caused such injuries in this case.

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The jury found Smith guilty of second-degree murder, and the court sentenced him

to eighteen years’ imprisonment. This appeal followed. 1

I. Sufficiency of the Evidence

Although it is presented as his third point on appeal, we address Smith’s challenge to

the sufficiency of the evidence first due to double-jeopardy considerations. Conte v. State,

2015 Ark. 220, 463 S.W.3d 686. In reviewing a challenge to the sufficiency of the evidence,

we view the evidence in the light most favorable to the verdict to determine whether the

verdict is supported by substantial evidence, direct or circumstantial. King v. State, 2018

Ark. App. 572, 564 S.W.3d 563. Substantial evidence is that which is of sufficient force

and character that it will, with reasonable certainty, compel a conclusion one way or the

other, without resorting to speculation or conjecture. Id. Weighing the evidence,

reconciling conflicts in the testimony, and assessing credibility are all matters exclusively for

the trier of fact, in this case the jury. E.g., Holland v. State, 2017 Ark. App. 49, 510 S.W.3d

311.

Arkansas Code Annotated section 5-10-103(a)(1) (Repl. 2013) provides that a person

commits murder in the second degree if the person knowingly causes the death of another

person under circumstances manifesting extreme indifference to the value of human life. In

making its motion for directed verdict, the defense first renewed previous motions to

suppress Smith’s statement to the police and to exclude information from the autopsy.

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Smith filed a motion for new trial and a motion to reconsider sentence, but the
arguments in those motions are irrelevant to the points on appeal.
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(These issues will be discussed below as Points II and III on appeal.) The defense then

argued that

had the Court excluded those items there would have been a complete lack
of evidence in this case and nothing on which the jury could found [sic] the
defendant guilty and would definitely had resulted in a directed verdict or
judgment of acquittal. We still assert that the evidence is insufficient and ask
the Court to direct a verdict in his favor. We also assert, you know, the Court
should deny—should grant those previous motions, exclude that evidence,
and then based on that, find that there is insufficient evidence.

The defense made similar renewals after the close of the defense’s case and the State’s

rebuttal.

On appeal, Smith argues first that the State failed to present sufficient evidence that

AS’s death was caused by injuries inflicted by Smith, because “the only evidence presented

on this issue was derived from the autopsy report which was improperly admitted.” He also

contends that the State failed to present any evidence that he knowingly caused the death

of his son under circumstances manifesting an extreme indifference to the value of human

life; in other words, the State did not prove that Smith “was aware that the alleged act of

shaking his son was practically certain to cause serious injury or death.”

Smith’s first point is not a challenge to the sufficiency of the evidence; it is a challenge

to the admission of the autopsy report and its findings, which are addressed below in Point

III. We note here that Smith’s argument is factually incorrect because the autopsy report

itself was not admitted into evidence.

As to his second point, it is not preserved for our review. Arkansas Rule of Criminal

Procedure 33.1(a) (2020) requires that a criminal defendant specifically advise the circuit

court of any deficiency in the State’s proof. Turley v. State, 2020 Ark. App. 118 (holding

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defendant must make a specific motion for directed verdict that advises the circuit court of

the exact element of the crime that the State has failed to prove). The rule is strictly

construed, and a defendant’s failure to adhere to the requirements of Rule 33.1(a) will

constitute a waiver of any question pertaining to the sufficiency of the evidence to support

the verdict. Id.; Ark. R. Crim. P. 33.1(c). A directed-verdict motion that merely asserts

the State has failed to prove its case and does not inform the circuit court of any specific

deficiency in the proof is inadequate to preserve a specific issue for appeal. Peoples v. State,

2019 Ark. App. 559, 590 S.W.3d 783. In this case, Smith never argued to the circuit court

that the State had failed to prove he acted knowingly, so we are precluded from addressing

that argument now.

We acknowledge the comprehensive and fervent arguments against Rule 33.1 that

Smith presented in his reply brief; but this appeal is not postured in a manner that requires

us to address them, much less in the sweeping manner that the reply brief invites.

II. Motion to Suppress

Shortly after he was charged, Smith filed a general motion to suppress evidence

including “a confession or admission of a defendant involuntarily made.” At a motions

hearing held on 12 November 2019, the circuit court addressed Smith’s specific argument

that the court should suppress statements he made to Ron Richardson, an investigator with

the Craighead County Sheriff’s Department. Richardson testified that he had been assigned

to investigate a possible homicide and interviewed Smith on 9 October 2017 (six days after

AS’s death). Richardson explained to Smith, “Whenever there’s a death like this . . . the

sheriff’s office, comes in and does a follow-up, final, formal investigation[.]” Richardson

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advised Smith of his Miranda rights, and Smith initialed and signed a waiver of his rights.

Richardson also made an audio and video recording of his interview with Smith, and that

recording was played for the court.

In that interview, Smith explained that he had been alone with AS and that he had

been fussy, but Smith initially denied having shaken AS. He denied that he had ever heard

of “shaken baby syndrome.” Richardson explained that the police knew AS had died from

being shaken and that it was done by either Smith or his mother, who was the only other

person who had been with AS immediately prior to the time he sustained his injuries.

Richardson stated, “[Y]ou had a momentary lapse of reasoning. Now, either you shook

this child to cause his death or your momma did. I don’t think it was your momma, do

you?” Smith replied, “I know it wasn’t her. She loved him a lot.” Smith insisted the baby

had been fine when his mother left and then said that he had “heard of people losing their

cool and shaking their babies before.” Smith admitted he lost his cool “[j]ust for a second.”

Smith agreed that he had held AS around his ribs and shaken him “for a second.” He later

described it as “about three or four” shakes but insisted he had not meant to hurt AS.

Richardson denied ever threatening or intimidating Smith during the interview.

The State also played a video of Smith speaking with his fiancé, Ruby Keller, in

which Smith said that he “didn’t mean to.” Keller said, “Now, our son is gone because of

you,” and Smith replied, “I know it’s because of me.” On cross-examination, Richardson

agreed that he had told Smith that the police believed either he (Smith) or Smith’s mother

had caused AS’s injuries.

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The defense argued that Smith’s first statement was the result of coercion. It asserted

that the police had interviewed Smith soon after AS’s death, when Smith would be

vulnerable, and that the police misled Smith by telling him he was coming in to help the

police complete their report. Defense counsel argued,

[A]fter he’s repeatedly told them he did nothing to cause harm, they
say now we have absolute proof from the medical examiner. It’s either going
to be you, or it’s going to be your mom. Which one is it? And at that point,
he makes a statement about sort of a half-hearted statement I shook him, and,
again, we’ll address something later. We do not believe that is a confession. .
. . [W]e think the purpose of injecting his mother was coercion and that
alone with the misleading nature, which they bring in him and are deceptive
about what they know, what their purposes are, and then try to coerce him
into making some type of statement by threatening his mother. We think all
are factors that should—that justify the State not being allowed to use this
statement.

The defense also contended that the police intentionally put Smith and Keller together in

the interrogation room and that “knowing that he is going to make some type of apology

or some kind of other statements is a violation of Miranda.” The circuit court found Smith’s

statements admissible and entered a written order to that effect.

On appeal, Smith again argues that his statements to the police were the result of

coercion. A statement made while in custody is presumptively involuntary, and the burden

is on the State to prove by a preponderance of the evidence that a custodial statement was

given voluntarily. Bell v. State, 371 Ark. 375, 266 S.W.3d 696 (2007). To determine

whether a waiver of Miranda rights is voluntary, knowing, and intelligent, we look to see if

the statement was the product of free and deliberate choice rather than intimidation,

coercion, or deception. Flanagan v. State, 368 Ark. 143, 243 S.W.3d 866 (2006). We

review the totality of the circumstances surrounding the waiver including the age,

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education, and intelligence of the accused; the lack of advice as to his constitutional rights;

the length of the detention; the repeated and prolonged nature of the questioning; the use

of mental or physical punishment; and statements made by the interrogating officers and the

vulnerability of the defendant. Id. We will reverse a circuit court’s ruling on this issue only

if it is clearly against the preponderance of the evidence. Id. Evaluating the credibility of

witnesses who testify at a suppression hearing about the circumstances surrounding an

appellant’s custodial confession is for the circuit court to determine, and this court defers to

the circuit court in matters of credibility. Shields v. State, 357 Ark. 283, 166 S.W.3d 28

(2004).

In this case, Smith focuses on a statement made by the interrogating officer and

Smith’s vulnerability at the time of the interview. Smith argues that he said he shook AS

only “in response to the officer’s overt threat that Appellant’s mother would be subjected

to investigation and prosecution if Appellant did not tell the officer what he wanted to

hear.” He also contends that he was in the “midst of grieving” and was misled by the officer

about the purpose of the interview. He claims he was told that the interview was just to

“finish the paperwork” and was “no big deal.” Smith also argues that recording the

conversation between Smith and his fiancée was a “deceptive interrogation practice” that

violated due process and basic human decency.

We hold that the circuit court did not err in denying the motion to suppress. There

was no threat, overt or otherwise, to prosecute Smith’s mother; in fact, the officer made

clear that he did not think Smith’s mother had hurt AS. The officer was simply stating a

matter of fact: two people had been with AS prior to his injuries, Smith and his mother.

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Therefore, one of them had inflicted the injuries. As to the timing of the interview, it did

not take place in the immediate aftermath of AS’s death; it was six days later, both Smith

and his fiancée came in voluntarily to be interviewed, and Richardson did not know when

AS’s visitation and funeral had been scheduled. Contrary to Smith’s assertions, Richardson

did not tell Smith that the interview was just to “finish the paperwork” and “no big deal.”

Those were phrases used by defense counsel in questioning Richardson at trial. And finally,

Smith develops no real argument about the recorded conversation between him and his

fiancée, but instead makes the conclusory statement that it was a “deceptive interrogation

practice.” Absent some additional argument or some citation to authority, we decline to

address it. Springer v. State, 2015 Ark. App. 605.

III. Confrontation Clause

At the motions hearing held prior to trial, the defense raised a concern regarding the

autopsy report, specifically that the doctor who performed the autopsy, Dr. Christy

Cunningham, was not going to testify. Instead, Dr. Charles Kokes would offer his own

expert testimony based on the autopsy report. The defense argued this would violate

Smith’s rights under the Confrontation Clause. The court overruled the defense’s objection

but said it would revisit the issue “when the time comes.” The State clarified that it did not

intend to introduce Dr. Cunningham’s autopsy report.

On the second day of trial, before resuming testimony, the court again addressed the

issue and denied the defense’s objection based on Sauerwin v. State, 363 Ark. 324, 214

S.W.3d 266 (2005) (holding that defendant’s confrontation rights were not violated when

medical expert, who had not conducted autopsy on body of murder victim, testified

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regarding cause of victim’s death). Defense counsel also raised an objection to Dr. Kokes’s

report and asked that Dr. Kokes not refer to Dr. Cunningham’s conclusions. The parties

agreed to limit Kokes’s testimony and report to eliminate references to Dr. Cunningham.

Before this court, Smith argues that the circuit court erred by allowing the State to

introduce information from the autopsy report without calling the medical examiner who

performed the autopsy to testify at trial. The admissibility of evidence rests in the broad

discretion of the circuit court. Miller v. State, 2010 Ark. 1, 362 S.W.3d 264. We will not

reverse the circuit court’s ruling on the admissibility of expert testimony or a hearsay

question unless the appellant can show an abuse of discretion. Id. To qualify as an abuse of

discretion, the circuit court must have acted improvidently, thoughtlessly, or without due

consideration. Id. Additionally, this court will not reverse an evidentiary ruling absent a

showing of prejudice. Id.

Citing cases from other jurisdictions, Smith asserts that certain information contained

in autopsy reports is testimonial and cannot be admitted at trial unless the person who

prepared the report is unavailable or subject to cross-examination. Smith contends that Dr.

Kokes had not conducted any independent investigation of his own, he did not

independently verify that the information in the autopsy report was accurate, and the defense

was prejudiced by Dr. Kokes’s testimony because it “was the only evidence admitted which

could have met the State’s burden on the issue of causation.” Smith does not address

Sauerwin, supra, which the circuit court relied on in making its ruling.

In Sauerwin, the Arkansas Supreme Court found no error in allowing a medical

examiner who had not performed the autopsy to testify on the results and meaning of the

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autopsy report. Basing its opinion on Ark. R. Evid. 703, our supreme court held that the

medical examiner’s testimony

was not a reading of the report, but was an expert analysis and opinion based
upon his review of the report as well as the photos. This type of expert
testimony and reliance upon autopsy reports is in line with the purposes of
Rule 703. For the above reasons, it is clear that the trial court did not abuse
its discretion in allowing the expert testimony.

363 Ark. at 328–29, 214 S.W.3d at 270. We have a similar situation here: in forming his

own expert opinion, Dr. Kokes reviewed the original autopsy report, the investigative

reports submitted to the crime laboratory, the medical records, and the photographs and

tissue slides taken at the autopsy. We therefore hold that the circuit court did not err in

relying on Sauerwin and allowing Dr. Kokes to testify.

In his reply brief, Smith cites Alejandro-Alvarez v. State, 2019 Ark. App. 450, 587

S.W.3d 269, as further support for reversal. In that case, this court held that the appellant’s

Sixth Amendment right to confront his accuser was denied when an analyst who did not

conduct the DNA testing was allowed to testify regarding the results of a DNA test

performed at the crime lab. We nevertheless affirmed the appellant’s convictions for rape

and sexual assault because the error was harmless in light of other evidence at trial.

We hold that Alejandro-Alvarez is distinguishable, as its result on the Confrontation

Clause issue stems from a line of U.S. Supreme Court cases holding that “certificates of

analysis” or “testimonial certifications” of lab results made by analysts who did not testify at

trial were testimonial in nature, thereby implicating the right of confrontation. See

Bullcoming v. New Mexico, 564 U.S. 647 (2011); Melendez-Diaz v. Massachusetts, 557 U.S.

305 (2009); Crawford v. Washington, 541 U.S. 36 (2004). The Supreme Court has not ruled

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on whether autopsy reports also fall into that category. And in Arkansas, Sauerwin is still

good law, which we have no authority to overrule.

In addition, the analyst who testified in Alejandro-Alvarez specifically acknowledged

that his work and results were “exclusively dependent” on the work of the prior analyst

who had actually performed the physical laboratory work. 2019 Ark. App. 450, at 9, 587

S.W.3d at 273. Dr. Kokes, in contrast, reviewed all the material in the case, did not consider

any information he could not independently corroborate, and reached an independent

conclusion about AS’s cause of death.

Affirmed.

VIRDEN and KLAPPENBACH, JJ., agree.

Ben Motal, for appellant.

Leslie Rutledge, Att’y Gen., by: Pamela Rumpz, Sr. Ass’t Att’y Gen., for appellee.

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