Robert Smith III v. State of Arkansas , 2022 Ark. 95 ( 2022 )

Cite as 2022 Ark. 95SUPREME COURT OF ARKANSAS
No. CR-21-195
Opinion Delivered: May 5, 2022
ROBERT SMITH III
APPELLANT APPEAL FROM THE FAULKNER
COUNTY CIRCUIT COURT [NO. 23CR-
V. 18-929]
HONORABLE TROY BRASWELL, JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED; REMANDED TO CORRECT
SENTENCING ORDER.
JOHN DAN KEMP, Chief Justice
Appellant Robert Smith III appeals a Faulkner County Circuit Court order convicting him
of capital murder, kidnapping, aggravated robbery, and theft of property and sentencing him to
consecutive terms of life, forty years, forty years, and ten years, respectively. For reversal, Smith argues
that (1) substantial evidence does not support his capital-murder, kidnapping, and aggravated-
robbery convictions; (2) the circuit court erred in denying his motion to suppress evidence; (3) his
sentence of life without parole is illegal; (4) the circuit court abused its discretion by admitting text
messages between Smith’s codefendant, Tacori Mackrell, and Mackrell’s girlfriend; (5) the circuit
court erred by allowing the State to inquire about three of Smith’s prior bad acts; (6) the State
impermissibly shifted the burden of proof to the defense while cross-examining Smith; (7) the circuit
court abused its discretion during closing arguments by preventing Smith from commenting on the
State’s failure to call Mackrell as a witness; and (8) the circuit court abused its discretion during
sentencing by allowing the State to introduce a music video in which Smith appeared. We affirm
but remand for the circuit court to correct the sentencing order.
I. Facts
On July 7, 2018, around noon, seventy-two-year-old Elvia Fragstein left her home in her 2018
silver Honda CR-V to go shopping in Conway. When she did not return home that evening, her
husband, Helmut, became worried. Fragstein did not have a cell phone with her so Helmut checked
her credit-card purchases in an attempt to locate her. She had made purchases that day at Kroger, a
liquor store, and TJ Maxx. He called 911 and reported Fragstein missing.
Arkansas State Police Trooper Kevin Helm worked Highway Patrol that day. At 5:00 p.m.,
Trooper Helm ran the license plate for a silver Honda CR-V that passed him on the southbound
side of Interstate 530 a few miles north of Pine Bluff. It was registered to Fragstein, but there was no
indication then that the vehicle had been stolen.
Investigators with the Faulkner County Sheriff’s Office reviewed surveillance footage from
the Conway stores where Fragstein had shopped on July 7. A surveillance video from Kroger on
Salem Road showed that after Fragstein finished shopping there, she walked outside to her CR-V,
cautiously backed out, and exited the parking lot. Video footage from TJ Maxx in the Conway
Commons shopping center revealed that she then shopped there and exited the store at
approximately 3:43 p.m.
Exterior cameras from a nearby Target store showed other activity in the Conway Commons
parking lot. Videos showed two males arrive at the shopping center a few minutes before 3:00 p.m.
They walked around for almost an hour and moved their Chrysler PT Cruiser to several different
parking spots during that time. One individual was wearing a white shirt, and the other was wearing
a t-shirt with a graphic design on the front and a solid white back. At 3:42 p.m., the individuals
walked in front of TJ Maxx. At 3:43 p.m., Fragstein exited TJ Maxx and walked in the same direction.
2
Minutes later, the cameras showed Fragstein’s CR-V being driven erratically at a high rate of speed.
Video recovered from a nearby UPS store also showed multiple occupants inside the CR-V, and
someone other than Fragstein appeared to be the driver. Investigators were able to get a still-shot
photograph of the two males seen in the surveillance footage, and they were later identified as Smith
and Mackrell.
On the morning of July 11, a farmer discovered a female body at a Jefferson County farm
outside Pine Bluff. The body, which had deteriorated and was infested with maggot and insect
activity, was identified through dental records as Fragstein. On July 17, Fragstein’s burned CR-V was
found in a secluded area of Pine Bluff.
Dr. Stephen Erickson, the deputy chief medical examiner for the Arkansas State Crime
Laboratory, performed the autopsy. He testified that Fragstein’s body had undergone extensive
decomposition, and there was significant tissue loss in her face, neck, and chest areas. Dr. Erickson
discovered crushing neck trauma that he classified as strangulation. He found a fractured second
cervical vertebra indicating that a high degree of force had been applied to the left side of the neck,
crushing the side of that vertebra where an important vessel supplies blood to the brain. He also
found six right-rib fractures and two left-rib fractures. Dr. Erickson stated that the right-rib injuries
were probably caused by a significant amount of force. He agreed that a person “could get that [type
of an injury] if the ribs are stomped or crushed.” Dr. Erickson concluded that there was “a severe
prolonged multi-factorial assault[;] her cause of death was a combination of the injuries that [he]
found—strangulation, blunt force trauma of the chest[,] and blunt force trauma of the cervical spine.”
Mackrell’s girlfriend, Eriya Evans, testified that Mackrell and Smith are cousins. During the
summer of 2018, she lived in an apartment across the street from Smith and his family. She
3
remembered the day that Mackrell went to Conway. She had communicated with Mackrell that day
via text message, and he had used a cell phone that she had given him. Evans identified a series of
text messages between Mackrell and her from July 7. One text message from him stated, “I just got
the texts and when we was up there cuz snatched the purse and shidd, it had $60 in it he got 30 I
got 30 I put 20 in the tank and he bought ah 20.” Evans explained that before Mackrell’s trip to
Conway, he never had his own vehicle, but soon afterward, he “popped up with one.” At trial, when
Evans was shown a photo of Fragstein’s CR-V, she responded that it looked like the same car. Evans
testified that when she asked Mackrell where he got the vehicle, he became agitated and responded,
“We can get around now.” Evans testified that Mackrell had driven her to the Dollar Store in the
CR-V and had given her a brown purse after returning from Conway.
Another witness, Tashemia Bullard, testified that on July 9 or 10, Mackrell’s sister picked
her up from her house in a silver CR-V. A day or two later, Mackrell picked Tashemia up in the
same CR-V and took her and her son to run an errand. When she retrieved her bags from the car,
she opened the trunk and saw a bottle of fingernail polish in a white bag. The CR-V was then parked
behind Tashemia’s house for about two days. She later told the police about her concern that the
vehicle was stolen. Three men eventually came to Tashemia’s house in a PT Cruiser and picked up
the CR-V. Tashemia’s sister, Marquita Bullard, also recalled that three or four men arrived in a blue
PT Cruiser to pick up the CR-V. Although Marquita did not actually see any of the men drive off in
the CR-V, she identified two of the men as Smith and Mackrell.
Police obtained a search warrant for Smith’s residence, and during the search officers
recovered several items of clothing, including jeans, a white t-shirt that was air-brushed on one side,
and a pair of Nike shoes that appeared to be the ones worn by one of the individuals in the
4
surveillance video. Blood was identified on four different areas of the shoes—the outer side of the
left shoe, the outer bottom of the left shoe, the outer bottom of the right shoe, and two spots on the
outer bottom of the right shoe. All four of the swabs taken from the Nike shoes matched Fragstein’s
DNA.
Smith testified in his own defense. He stated that on July 7, 2018, when he was sixteen years
old, he and Mackrell went to Conway with his mother in her PT Cruiser. They arrived at a bingo
hall in Conway, and his mother went inside to play bingo. Smith and Mackrell remained in the car
smoking marijuana and listening to music. He claimed that Mackrell also smoked PCP. They left
the bingo hall, drove the PT Cruiser to Conway Commons, and walked around. They returned to
the car to smoke marijuana, and Mackrell left the car several times. The second time Mackrell left,
he came back with a truck and said, “[F]ollow me.” Smith drove the PT Cruiser back to the bingo
hall and, at Mackrell’s request, took the keys to his mother. Smith returned to the truck, and
Mackrell yelled at him to get in the driver’s seat and drive back to Pine Bluff. Smith looked back and
noticed a lot of blood on Mackrell and that he appeared to be “crouching over something.” Smith
claimed that he could tell it was a person, but he did not hear her make a sound or move. Smith
said that he drove all the way back to Pine Bluff and went inside his house. Mackrell then left with
the truck. Smith claimed he never caused injury to Fragstein and was not with Mackrell when
Mackrell injured her. Smith admitted having gone to the Bullards’ house with Mackrell at a later
date because someone told Mackrell to move the truck.
Smith admitted on cross-examination that he had talked to the police two different times
and told them several lies, including that he was not in Conway on July 7, had never been to Conway,
did not know if he had ever ridden in his family’s PT Cruiser, and had never seen Fragstein’s Honda
5
CR-V. The second time he spoke with police, he admitted that he was in a picture taken from the
surveillance footage at Target, but still said that “[he] had nothing to do with it” and that “[he didn’t]
know anything about it.” At trial, Smith admitted that his statement was also a lie.
Smith acknowledged that if Mackrell sent Evans a text saying that “cuz” snatched a purse,
Smith was the “cuz” about whom Mackrell was referring. But Smith claimed at trial that Mackrell
lied because he did not take the purse. Smith also acknowledged that the shoes found in his house
with Fragstein’s blood on them belonged to him but claimed that he did not know how the blood
got there. Smith also admitted that he had previously been suspended from school for fighting with
a teacher and disciplined for chasing a female student down the hall and kicking her. He further
admitted that his music name is “MG Glo,” and that “MG” stands for “Murder Gang.” He claimed
that “Murder Gang” was a music group in Pine Bluff and acknowledged that he was in one of its rap
videos. He also admitted that its songs are about killing people and that the lyrics of one song are
about stomping someone to death.
After deliberations, the jury convicted Smith of capital murder, kidnapping, aggravated
robbery, and theft of property. He was sentenced to a cumulative term of life imprisonment plus
ninety years. He filed a timely notice of appeal, and this appeal followed.
II. Points on Appeal
A. Sufficiency of the Evidence
Smith first argues that the circuit court erred in denying his motion for directed verdict on
the capital-murder, kidnapping, and aggravated-robbery charges.1 Although Smith admits that he
1
Although Smith asserts that none of his convictions are supported by substantial evidence,
he fails to develop any argument challenging his theft conviction. We do not address arguments that
are not supported by authority or convincing argument. See Sweet v. State, 2011 Ark. 20, at 18, 370
6
drove to and from the crime scene with Mackrell, he contends that there was no evidence he “did
anything with the purpose of promoting or facilitating the crimes.”
We treat a motion for directed verdict as a challenge to the sufficiency of the evidence.
McClendon v. State, 2019 Ark. 88, at 3, 570 S.W.3d 450, 452. In reviewing this challenge, we view
the evidence in a light most favorable to the State, considering only the evidence that supports the
verdict. Id., 570 S.W.3d at 452. We will affirm the verdict if substantial evidence supports it. Id., 570
S.W.3d at 452. Substantial evidence is evidence 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., 570 S.W.3d at 452. Circumstantial evidence may constitute substantial evidence
to support a conviction. Finley v. State, 2019 Ark. 336, at 2, 587 S.W.3d 223, 226. For circumstantial
evidence to be substantial, the evidence must exclude every other reasonable hypothesis than that of
the guilt of the accused. Id. at 3, 587 S.W.3d at 226. Upon review, this court must determine whether
the jury resorted to speculation and conjecture in reaching its verdict. Id., 587 S.W.3d at 226.
Smith committed capital-felony murder if, acting alone or with another person, he
committed or attempted to commit the offense of robbery or kidnapping, and, in the course of and
in furtherance of the felony or in immediate flight therefrom, he or a person acting with him, caused
the death of a person under circumstances manifesting extreme indifference to the value of human
life. Ark. Code Ann. § 5-10-101(a)(1)(A)(iii), (v) & (B) (Supp. 2017 reprint). Smith committed
aggravated robbery if, with the purpose of committing a felony or misdemeanor theft, he employed
or threatened to employ physical force upon another person and was “armed with a deadly weapon”
S.W.3d 510, 523.
7
or inflicted death upon another person. Ark. Code Ann. § 5-12-103 (Repl. 2013). Finally, Smith
committed kidnapping if, without consent, he restrained another person so as to interfere
substantially with the other person’s liberty with the purpose of facilitating the commission of any
felony or flight after the felony, inflicting physical injury upon the other person, or terrorizing the
other person. Ark. Code Ann. § 5-11-102(a)(3), (4) & (6) (Repl. 2013).
In cases implicating a theory of accomplice liability, we will affirm if substantial evidence
exists that the defendant acted as an accomplice in the commission of the alleged offense. Finley,
2019 Ark. 336, at 2, 587 S.W.3d at 226. A person acts as an accomplice of another person if, with
the purpose of promoting or facilitating the commission of the offense, the person aids, agrees to
aid, or attempts to aid in planning or committing the offense. See Ark. Code Ann. § 5-2-403(a)(2)
(Repl. 2013). When causing a particular result is an element of an offense, a person is an accomplice
of another in the commission of an offense if “acting with respect to that particular result with the
kind of culpable mental state sufficient for the commission of the offense, the person . . . [a]ids,
agrees to aid, or attempts to aid the other person in committing it.” Ark. Code Ann. § 5-2-403(b)(2)
(Repl. 2013). Relevant factors in determining the connection of an accomplice to a crime are the
presence of the accused in proximity to a crime, the opportunity to commit the crime, and an
association with a person involved in a manner suggestive of joint participation. Gilcrease v. State,
2009 Ark. 298, at 12, 318 S.W.3d 70, 79. A defendant is an accomplice if he or she renders the
requisite aid or encouragement to the principal with regard to the offense at issue, irrespective of
the fact that the defendant was not present at the murder scene and did not directly commit the
murder. Id., 318 S.W.3d at 79.
8
Here, with regard to his aggravated-robbery conviction, Smith contends that the State failed
to present substantial evidence that he had the purpose to commit a theft or that he employed
physical force against Fragstein. On his kidnapping conviction, Smith contends that Fragstein was
already dead while he got into her CR-V, so the State failed to prove that he restrained her at any
point when she was alive. Finally, on the capital-felony-murder conviction, Smith again argues that
Fragstein was already dead when he got into her vehicle and that the State presented insufficient
evidence of the underlying felonies of either kidnapping or robbery.
The State presented evidence that Smith participated in the kidnapping and aggravated
robbery. On July 7, Smith and Mackrell walked the same direction as Fragstein about a minute
before she exited TJ Maxx, and just before her Honda CR-V was seen being driven erratically at a
high rate of speed. Mackrell sent his girlfriend a text message telling her that Smith “snatched the
purse,” after which he and Mackrell divided up the $60 that was in the purse. Smith drove Fragstein’s
stolen CR-V from Conway to Pine Bluff with Fragstein inside. She was found murdered four days
later. Smith also went with Mackrell to the Bullards’ house to move Fragstein’s stolen CR-V after
someone requested that Mackrell move it.
The State also presented evidence that Smith participated in the capital-felony murder. Dr.
Erickson testified that Fragstein suffered a “severe, prolonged and multi-factorial” assault and that
her injuries were consistent with someone “stomping” on her. Smith admitted that he is in a music
group that has songs about killing people and stomping someone to death. And Fragstein’s blood
was found at multiple locations on Smith’s shoes. Although Smith testified that he did not injure
Fragstein and that she appeared to be dead when he got into her CR-V, the jury was not required to
believe Smith’s testimony. See Price v. State, 2019 Ark. 323, at 6, 588 S.W.3d 1, 5. Finally, he lied to
9
police multiple times about his involvement in the crimes, which could be considered by the jury as
circumstances tending to establish guilt. See Hyatt v. State, 2018 Ark. 85, at 12–13, 540 S.W.3d 673,
680.
We hold that the evidence above, viewed in the light most favorable to the State, constitutes
substantial evidence of Smith’s participation as an accomplice in the capital-felony murder,
kidnapping, and aggravated robbery of Fragstein. See Ark. Code Ann. § 5-10-101(a)(1)(A)(iii), (v) &
(B) (capital-felony murder); Ark. Code Ann. § 5-11-102(a)(3), (4), and (6) (kidnapping); Ark. Code
Ann. § 5-12-103 (aggravated robbery). Thus, we affirm on this point.
B. Motion to Suppress Evidence
Smith next argues that the circuit court’s denial of his motion to suppress evidence found in
the search of his residence was clearly against the preponderance of the evidence. He claims that the
search-warrant affidavit did not describe any circumstances showing that evidence of the crimes
against Fragstein would be discovered at Smith’s residence.
Arkansas Rule of Criminal Procedure 13.1(b) states that an “application for a search warrant
shall describe with particularity the persons or places to be searched and the persons or things to be
seized[.]” Ark. R. Crim. P. 13.1(b). It must be supported by affidavit or testimony before a judicial
officer “particularly setting forth the facts and circumstances tending to show that such persons or
things are in the places, or the things are in possession of the person, to be searched.” Id. “An
affidavit or testimony is sufficient if it describes circumstances establishing reasonable cause to
believe that things subject to seizure will be found in a particular place.” Id. The task of the judge
issuing a search warrant is to make a “practical, common-sense decision whether, given all of the
circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or
10
evidence of a crime will be found in a particular place.” King v. State, 2019 Ark. 114, at 5, 571 S.W.3d
476, 479 (omission in original). In reviewing a denial of a suppression motion, this court makes an
independent examination based on the totality of the circumstances, viewing the evidence in the
light most favorable to the State, and we reverse only if the circuit court’s ruling was clearly against
the preponderance of the evidence. Id. at 5–6, 571 S.W.3d at 479.
Here, the affidavit supporting the search warrant stated that the affiant, Jefferson County
Investigator Johnathan Powell, had reason to believe that on the premises or inside Smith’s residence
there is now being concealed certain property or persons, namely: Any property believed to
belong to Elvia Fragstein, property or documents identifying Elvia Fragstein or her 2013
Honda CRV, any electronic communications devices believed to belong to Robert Smith,
and any property believed to be related to the crimes of kidnapping, theft of a vehicle, and
capital murder[.]
A “continuation for affidavit,” which was attached to the affidavit, contained a sworn statement by
Investigator Powell detailing the following facts in support of his request: the finding of a female
body on July 11; the discovery the next day that the victim was Fragstein, who had gone missing
from a Conway shopping center on July 7; his review of video surveillance from Conway Commons
showing two black males in a blue Chrysler PT Cruiser moving to different parking spots several
times, and eventually parking near Fragstein’s vehicle; the identification of the two males as Smith
and Mackrell; a description of their clothing, including that one had a “distinctive graphics t-shirt
with multiple people printed on it and jeans”; Mackrell’s cell-phone records showing that he was in
Conway around the time of Fragstein’s disappearance and discussing getting rid of the truck;
Mackrell’s text message to Evans on July 10, “I’m sorry for getting loud it’s just Tasha say on the
news on Conway ah truck got stolen I’m finna get off of it today or tomorrow”; Mackrell’s July 15
11
statement to police officers that Smith’s mother, LaTasha, identified in Mackrell’s texts as “Tasha,”
had driven Smith and Mackrell to Conway on July 7; and Smith’s arrest at the residence in question.
After a hearing, the circuit court denied Smith’s motion and found that
[t]he examination of the four-corners of the document, the affidavit, and the continuation
for affidavit provides this Court with the information to conclude that probable cause
existed. Further, the information establishes a nexus with the items located during the search
under Johnson v. State, 2015 Ark. 387. Therefore, the motion to suppress is DENIED.
We agree with the circuit court that the affidavit and continuation for affidavit established
a nexus between Smith’s residence and the items sought in the investigation of the crimes committed
against Fragstein. See, e.g., Johnson v. State, 2015 Ark. 387, at 6, 472 S.W.3d 486, 489. The affidavit
placed Smith with Mackrell at the time Fragstein disappeared, and it described in detail the clothing
worn by Smith that day. It stated that Smith had been arrested at that residence. It established a
close relationship between Mackrell, Smith, and Smith’s mother. It also indicated that Smith’s
mother warned Mackrell that police were looking for the stolen CR-V.2 Given these facts, we hold
that the circuit court’s conclusion that the affidavit established probable cause for a search of the
home shared by Smith and his mother was not clearly against the preponderance of the evidence.
Therefore, we affirm the circuit court’s denial of Smith’s motion to suppress.
C. Smith’s Life-Without-Parole Sentence
Smith next argues that his sentence of life imprisonment without the possibility of parole
for his capital-murder conviction was illegal because Arkansas law does not allow a juvenile to be
sentenced to life without parole for any homicide offense. He argues that we should remand to the
circuit court for his sentence to be modified.
2
On July 16, when the search warrant was issued, the stolen CR-V had not yet been found.
It was found the following day.
12
Arkansas Code Annotated section 5-10-101(c)(1)(B) (Supp. 2017 reprint) provides,
Capital murder is punishable as follows:
...
(B) If the defendant was younger than eighteen (18) years of age at the time he or she
committed the capital murder, life imprisonment with the possibility of parole after serving
a minimum of thirty (30) years’ imprisonment.
Here, it is undisputed that Smith was sixteen years old at the time of the capital murder. Thus, he
was ineligible for a sentence of life without the possibility of parole.
The State contends that the life-without-parole notation on Smith’s sentencing order appears
to be a clerical error because all parties below agreed that Smith would be eligible for parole on his
capital-murder conviction after thirty years.
When there is a discrepancy between the sentencing order and the pronouncement of
sentence, the sentencing order controls. Martinez v. State, 2019 Ark. 85, at 2, 569 S.W.3d 333, 335.
But clerical errors do not prevent enforcement of a judgment, and a circuit court can enter an order
nunc pro tunc at any time to correct clerical errors in a judgment. Id., 569 S.W.3d at 335. We
therefore remand and instruct the circuit court to correct the sentencing order so that it accurately
reflects that Smith was sentenced to “Life” for capital murder, which in his case means that he is
eligible for parole after thirty years.
Additionally, Smith argues that he is “entitled to parole eligibility at thirty years across the
board on all of his offenses” and asks that, on remand, his sentencing order “be corrected
accordingly.” Smith does not argue that his sentences for kidnapping, aggravated robbery, and theft
were illegal. His challenge is solely to parole eligibility. Parole eligibility falls clearly within the
domain of the executive branch and specifically the Arkansas Division of Correction, as fixed by
13
statute. Johnson v. State, 2012 Ark. 212, at 5. Thus, on the basis of this precedent, we lack jurisdiction
to instruct the circuit court to apply specific parole statutes to Smith’s kidnapping, aggravated-
robbery, and capital-murder convictions.
D. Text Messages3
Smith next argues that the circuit court abused its discretion in admitting three exhibits—
State’s exhibits 50, 110, and 111—over his hearsay objections. The circuit court admitted State’s
exhibits 50 and 110 on two bases—as nonhearsay statements made by a co-conspirator in furtherance
of the conspiracy under Rule 801(d)(2)(v) of the Arkansas Rules of Evidence and as statements of
the declarant’s then existing state of mind, emotion, sensation, or physical condition under Rule
803(3) of the Arkansas Rule of Evidence. The circuit court also admitted State’s exhibit 111––a
series of five questions sent from Evans to Mackrell––because it was not offered for the truth of the
matter asserted.
Circuit courts have broad discretion in deciding evidentiary issues, and we will not reverse a
circuit court’s ruling on the admission of evidence absent an abuse of discretion. Collins v. State,
2019 Ark. 110, at 5, 571 S.W.3d 469, 472. Abuse of discretion is a high threshold that does not
simply require error in the circuit court’s decision, but requires that the circuit court act
improvidently, thoughtlessly, or without due consideration. Id., 571 S.W.3d at 472. Furthermore,
we will not reverse unless the appellant demonstrates that he was prejudiced by the evidentiary
ruling. Id., 571 S.W.3d at 472.
3
We address Smith’s next two points on appeal in tandem because both involve challenges
to the circuit court’s admission of text messages between Mackrell and Evans.
14
“‘Hearsay’” is a statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted.” Ark. R. Evid. 801(c). A
statement is not hearsay if it is “offered against a party” and it is a “statement by a coconspirator of
a party made during the course and in furtherance of the conspiracy.” Ark. R. Evid. 801(d)(2)(v).
Additionally, Arkansas Rule of Evidence 803(3) allows for hearsay statements, even if the declarant
is available, as evidence of a “declarant’s then existing state of mind . . . such as intent, plan, motive,
design . . . but not including a statement of memory or belief to prove the fact remembered or
believed[.]”
1. State’s exhibit 50
State’s exhibit 50 was a text message from Mackrell to Evans at 11:31 p.m. on July 7, 2018,
stating, “I just got the texts and when we was up there cuz snatched the purse and shidd it had 60
dollars in it he got 30 I got 30 I put 20 in the tank and he bought ah 20.”4 In addressing admissibility
of the exhibit under Arkansas Rule of Evidence 801(d)(2)(v), the circuit court ruled from the bench
that a conspiracy existed between Smith and Mackrell—who sent the text message at issue. The court
based its ruling on the photographs of them together at the scene where Fragstein went missing,
Smith driving Fragstein’s CR-V to Pine Bluff, Mackrell and Smith arriving at the Bullard residence
after someone called Mackrell to come get the CR-V, and Fragstein’s blood on Smith’s shoe. The
circuit court also ruled that the statement was made in the course of and in furtherance of the
conspiracy because it “discussed the disbursement of . . . some of the gains from the conspiracy[,]”
and was “still in the course of the theft of property[.]” Thus, it found that State’s exhibit 50 was
admissible as a nonhearsay statement of a co-conspirator.
4
Smith also challenges State’s exhibit 53, which is an enlarged copy of exhibit 50.
15
We agree with the circuit court’s ruling. First, we see no error in the finding that there was
conspiracy between Smith and Mackrell for the reasons articulated by the circuit court as well as
Smith’s own testimony about his participation in the crimes. Second, the circuit court’s conclusion
that the message was sent during the course of the conspiracy was not erroneous because it was sent
the night that Fragstein went missing. Several days later, Smith and Mackrell went to the Bullards’
house after Mackrell was asked to move the CR-V. Additionally, Fragstein’s body was discovered on
July 11, and her CR-V was found on July 17. The conspiracy between Smith and Mackrell had not
concluded when Mackrell sent the text. Third, we agree that the statement was made in furtherance
of the conspiracy. This court has previously addressed the “in furtherance of” requirement:
Although this court has had few opportunities to discuss the “in furtherance of” element of
Rule 801(d)(2)(v), it has held that statements designed to further the specific objective of the
conspiracy are made in furtherance of the conspiracy. Federal cases interpreting the
corresponding federal rule of evidence hold that this requirement should be interpreted
broadly. Thus, statements that have an overall effect of facilitating the conspiracy or that
somehow advance the objectives of the conspiracy are said to be in furtherance of the
conspiracy.
Dyer v. State, 343 Ark. 422, 429, 36 S.W.3d 724, 728 (2001) (internal citations omitted).
In this case, the text message stating that “cuz snatched the purse” was admitted into evidence
after Evans testified about her receipt of a brown purse following Mackrell’s trip to Conway. That
text message also stated that Mackrell “put 20 in the tank.” Evans testified that, a few days after his
trip to Conway, Mackrell drove her to the Dollar Store in a vehicle that looked like Fragstein’s CR-
V. Evans further admitted that she had taken a photograph of herself inside the CR-V. Given Evans’s
testimony about receiving a purse and riding in the CR-V, we conclude that Mackrell’s text message
16
to her was made in the furtherance of the conspiracy. Thus, we hold that the circuit court did not
abuse its discretion by admitting State’s exhibit 50 under Rule 801(d)(2)(v).5
2. State’s exhibit 110
State’s exhibit 110 was a series of five text messages that Mackrell and Evans exchanged
between 8:04 p.m. and 8:10 p.m. on July 7. Although Smith challenges the entire exhibit, he alleges
that he was prejudiced by only a single text message within that exhibit—a message from Mackrell to
Evans stating, “[C]ause we not finna park this truck there and don’t you got eniya unless she
coming.” The circuit court rejected Smith’s hearsay objection to this exhibit, ruling that it was
admissible under Rule 803(3) of the Arkansas Rules of Evidence because it showed Mackrell’s state
of mind—his “intent to not park the truck there.”
We agree that this statement concerned Mackrell’s intent to do something in the future,
which this court has said is admissible pursuant to Rule 803(3). See King, 2019 Ark. 114, at 8, 571
S.W.3d at 480. Accordingly, we hold that the circuit court did not abuse its discretion in admitting
State’s exhibit 110.
3. State’s exhibit 111
State’s exhibit 111 was a series of five text messages from Evans to Mackrell between 4:35
p.m. and 6:53 p.m. on July 7. Smith argues that two of the text messages within that exhibit were
inadmissible because they were offered to prove the truth of the matter asserted. First, he asserts that
Evans’s message to Mackrell ending in “cause you been from Conway,” was a statement offered to
show that Mackrell had been in Conway for an extended period of time. Second, he contends that
5
We need not address the circuit court’s alternative ruling that exhibit 50 was admissible
under Rule 803(3).
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a text stating, “So you at the crib an can text me back” was a written assertion that Mackrell was back
home in Pine Bluff.
We have stated that merely cumulative evidence is not prejudicial. Davis v. State, 368 Ark.
401, 411, 246 S.W.3d 862, 871 (2007). We will not reverse unless an appellant demonstrates that
he was prejudiced by an evidentiary ruling. Collins, 2019 Ark. 110, at 5, 571 S.W.3d at 472. State’s
exhibit 111 is duplicative of surveillance footage of Smith and Mackrell at the Conway Commons
shopping center as well as Smith’s own testimony that he was in Conway with Mackrell the afternoon
of July 7. Because Smith has failed to show any prejudice in the admission of Exhibit 111, we hold
that the circuit court did not abuse its discretion in admitting it.
E. Prior Bad Acts
Smith next argues that the circuit court abused its discretion by allowing the State to question
him about three prior bad acts in violation of Rules 403 and 404(b) of the Arkansas Rules of
Evidence.
On cross-examination at trial, Smith testified that he remembered the police telling him
what had happened to Fragstein, and he told the police that he would not put himself in a situation
like that. On redirect examination, Smith testified as follows:
[DEFENSE COUNSEL]: Do you remember [the prosecutor] asked you about putting
yourself in this situation?
[SMITH]: Yes, sir.
[DEFENSE COUNSEL]: That’s not the kind of person you are, correct?
[SMITH]: No, sir.
The prosecutor then argued to the circuit court in a bench conference that Smith’s responses had
opened the door to questioning about Smith’s previous incidents related to his character. The circuit
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court ruled that Smith had opened the door to otherwise inadmissible character evidence, and it
allowed the State to question Smith about three prior bad acts—a previous suspension from school
for fighting with a teacher, being disciplined for chasing a female student down the hall and kicking
her, and his participation as “MG Glo,” in the music group “Murder Gang.”
In admitting the evidence, the circuit court relied on Smallwood v. State, 326 Ark. 813, 935
S.W.2d 530 (1996). There, Smallwood’s attorney asked him, “Did you threaten [the victim] with a
knife or with anything?” Smallwood responded, “No, I didn’t threaten her with a knife. I’m not that
type of person. I didn’t threaten her with a knife.” Id. at 819, 935 S.W.2d at 533 (emphasis in original).
This court recognized that
otherwise inadmissible testimony may be offered when one party has opened the door for
another party to offer it. This is most often permitted when a defendant has been untruthful
about a former crime or has brought up otherwise inadmissible character evidence which the State
may then rebut.
Id. at 819, 935 S.W.2d at 533. (emphasis in original) (quoting Larimore v. State, 317 Ark. 111, 120,
877 S.W.2d 570, 574 (1994)). In Smallwood, by claiming that he was not the “type of person” to
threaten someone with a knife, Smallwood placed his propensity toward violence in issue. Id., 935
S.W.2d at 533. We held that the circuit court properly allowed the State to question Smallwood
about other violent acts or threats. Id., 935 S.W.2d at 533.
Smallwood is dispositive of the issue here. Smith’s own testimony elicited by his trial counsel
opened the door to questioning about his propensity toward violence. Smith claimed that he was
“not the kind of person” to place himself in a kidnapping-robbery-murder scenario in which the
victim suffered a “severe prolonged multi-factorial assault.” Thus, we hold that the circuit court did
not abuse its discretion by finding that Smith opened the door to evidence of his past violent acts
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and participation in a music group that has songs about killing people and stomping someone to
death. We therefore affirm on this point.
F. Shifting the Burden
Smith next argues that the circuit court abused its discretion by permitting the prosecutor to
shift the burden of proof to him during the following line of questioning:
[PROSECUTOR]: Okay. And you would agree that all the videos that were in
evidence in this case and jury have seen, none of them show
the PT Cruiser in this time frame before Trooper Helm clocks
y’all on Interstate 530, that the PT Cruiser is never seen
leaving the Conway Commons, is it?
[SMITH]: I guess you guys didn’t do enough backing up for the video
because it had to have—
[PROSECUTOR]: Okay.
[SMITH]: –left the Conway Commons to get back to the Bingo hall,
right?
[PROSECUTOR]: But you would agree that all the videos that are in evidence in
this case during this time period don’t ever show the PT
Cruiser leaving, do they?
[SMITH]: No, ma’am. No, ma’am.
[PROSECUTOR]: Okay. All right. And you’ve chosen to testify willingly here
today, haven’t you?
[SMITH]: Yes, ma’am.
[PROSECUTOR]: And if you thought you had a way to prove that with some
video, you would show that, wouldn’t you?
[SMITH]: I don’t have access to videos.
Smith’s trial counsel then objected on the basis that the prosecutor attempted to shift the burden of
proof to Smith. The State responded that its questions were in response to Smith’s testimony that
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the State did not back up the surveillance video far enough to show the PT Cruiser leaving Conway
Commons in the time period he claimed. The circuit court overruled Smith’s objection.
For reversal, Smith relies on Cook v. State, 316 Ark. 384, 872 S.W.2d 72 (1994), in which
this court held that a prosecutor’s comment in closing argument “[a]t most” constituted “an attempt
to shift the burden of proof[.]” Id. at 387, 872 S.W.2d at 74. However, the court affirmed the denial
of a mistrial motion because the circuit court’s limiting instruction had cured any error. Id., 872
S.W.2d at 73–74.
Here, we agree that Smith opened the door to the State’s questions when he suggested that
the State had not shown the part of the video that would confirm his testimony. Moreover, Smith
did not request a mistrial or a limiting instruction, as was given in Cook. Any possible prejudice
could have been easily cured by an admonishment, which defense counsel did not request. See, e.g.,
Noel v. State, 331 Ark. 79, 89, 960 S.W.2d 439, 444 (1998). Thus, we conclude that the circuit court
properly rejected Smith’s burden-shifting argument, and we affirm on this point.
G. Refusal to Allow Comment on Mackrell’s Absence as a Witness
Next, Smith argues that the circuit court abused its discretion by refusing to allow his trial
counsel to comment on the State’s failure to call Mackrell as a witness at trial.
During guilt-phase closing argument, Smith’s trial counsel stated,
They tell you about a text message. They said Tacori says that “cuz snatched the purse.” Now
first of all, I’m amazed that all of a sudden they wanted to listen to the same man that we all
know is a violent vicious killer. So, all of a sudden now his telling—[Mackrell’s] words should
be credible. But we don’t have him here to ask him, okay, explain to us why you say that,
how you come to say that, and whatever. We don’t have any of that stuff.
The State objected on the basis that “the State cannot call a co-defendant so that’s an improper[,]
misleading argument to the jury.” After some discussions, Smith’s trial counsel responded, “But I’m
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not saying anything else about this issue[.]” Thus, before the circuit court could rule on the objection,
Smith’s trial counsel announced that he would refrain from further mentioning Mackrell’s not
testifying at trial. We therefore hold that Smith’s argument is unpreserved for our review, and we
affirm without addressing it. See Hamilton v. State, 348 Ark. 532, 537–38, 74 S.W.3d 615, 618 (2002).
H. Introduction of Music Video at Sentencing
Finally, Smith argues that the circuit court abused its discretion in the sentencing phase of
trial by permitting the State to introduce, over Smith’s objection, a “Murder Gang” music video
featuring Smith. When the State announced its intent to introduce two “Murder Gang” music
videos at sentencing, Smith’s attorney objected only to the video in which Smith did not appear.
The circuit court agreed and excluded that video as evidence. Smith’s attorney did not object to the
one in which Smith did appear. Before that video was played for the jury, Smith’s attorney stated,
“Over the same objection that I had.”
Smith now contends that the music video in which he appeared was not relevant and that
its admission was incredibly prejudicial. Because that specific objection was not made below, we hold
that Smith’s current argument is unpreserved. Friday v. State, 2018 Ark. 339, at 6, 561 S.W.3d 318,
322. We therefore affirm on this point.
III. Rule 4-3(a)
Because Smith received a life sentence, this court, in compliance with Arkansas Supreme
Court Rule 4-3(a), has examined the record for all objections, motions, and requests made by either
party that were decided adversely to Smith. No prejudicial error has been found.
Affirmed; remanded to correct sentencing order.
WOMACK, J., concurs.
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SHAWN A. WOMACK, Justice, concurring. I join the majority’s decision to affirm Robert
Smith’s convictions for capital murder, kidnapping, and aggravated robbery. But I write separately
to note it is preferable to affirm Smith’s sentence as modified rather than remand the matter to the
circuit court. To efficiently administer justice, this court may correct an illegal sentence, particularly
when the illegality stems from an apparent clerical error in the sentencing order. See Walden v. State,
2014 Ark. 193, at 11, 433 S.W.3d 864, 871 (holding that “[b]ecause neither issue relates to [the
defendant’s] guilt, we can correct the sentence in lieu of remanding”). Remanding is a needless waste
of resources for both parties, the trial court, the clerks and other employees. The best disposition is
to affirm Smith’s sentence as modified: life imprisonment.
Therefore, I respectfully concur.
Lassiter & Cassinelli, by: Michael Kiel Kaiser, for appellant.
Leslie Rutledge, Att’y Gen., by: Rachel Kemp, Sr. Ass’t Att’y Gen.; and Karen Virginia Wallace,
Ass’t Att’y Gen., for appellee.
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