Smith v. State

239 S.W.3d 494, 367 Ark. 274
Supreme Court of Arkansas·Decided September 21, 2006·No. CR 06-77·Published·Cited by 12 cases

Opinion

Betty C. Dickey, Justice.

Albert Kieth Smith appeals his conviction of forty years for one count of kidnapping, and life without parole for one count of capital murder, from the Benton County Circuit Court. He alleges multiple errors by the circuit court, which include: (1) failing to dismiss for want of jurisdiction or failing to submit the jurisdiction issue to the jury; (2) failing to direct a verdict in favor of Appellant based on the insufficiency of the evidence; (3) permitting the State to impermissibly shift the burden of proof to Appellant; (4) failing to properly instruct the jury with regard to the evidence that was not admitted for the truth of the matter; and, (5) permitting the State to introduce prior “bad acts.” We conclude that his appeal is without merit, and affirm.

Background

On September 18, 1999, the body of an unidentified white man was found in McIntosh County, Oklahoma, in the right-of-way of Interstate 40. The body was positively identified on September 20, 1999, as that of David Douglas Howard. Howard had been shot in the back of the neck, and two .22 caliber bullets were recovered from his body. Howard was a fifty-six year old, single man who had lived in Bella Vista and managed the Loch Lomond Marina. Appellant’s involvement with Howard is best understood by reviewing, in a chronological order, Smith’s relationship with his wife, Linda, in the months preceding the crimes.

Linda Smith had been married to Albert Kieth Smith for twenty-eight years, and, according to Linda, their marriage had become “platonic.” She and Smith had their own computers, and Linda began looking at online websites on hers after learning about them from her daughter. In June of 1999, Smith and Linda decided to separate; however, for financial reasons, they continued living in the same house in Van Burén.

With the help of a co-worker and friend, William Dunn, Smith installed a program on Linda’s computer that kept track of her keystrokes so that he could access the password to her AOL email account. Although they were separated, Smith was upset about Linda’s communication with other men, and, at some point in the summer of 1999, he printed twenty to twenty-five emails involving communication between Linda and other men. Smith took those emails to Mikeal Bates, who was a detective in the Criminal Investigation Division at that time. Bates looked at the emails and listened as Smith told him that he had put the Stealth program on Linda’s computer in order to view her computer activity. Smith asked Bates to speak with Linda and tell her to stop emailing other men, whereupon Bates suggested marriage counseling to Smith.

On July 19, 1999, Smith set up an email account using the alias “jccart.” Smith not only told Dunn about this account, but Dunn saw the name jccart as it appeared on several of the emails he had written Linda. Not only Linda received emails from a jccart account, but also Herbert Hawkins, one of the men with whom Linda had chatted online, received an email on July 22, 1999, from a jccart account warning him to stay away from Linda Smith. The Stealth Keyboard Interceptor Program installed on Linda’s computer would, without her knowledge, send Smith’s computer copies of every email that she sent or received. Smith filed for divorce on July 29, 1999. Although surprised when Smith filed for divorce, Linda accepted the situation and moved out of the house she shared with Smith on August 13, 1999.

There were two other men besides Hawkins with whom Linda Smith frequently exchanged emails, Robert Glendinning of Jacksonville, Florida, and David Howard, the victim in this case. The evidence suggests that Smith was trying to gather information on these men. Linda testified that Smith had a Sam’s card and would buy pre-paid phone cards. She admitted that they occasionally shared the phone cards while she lived with Smith, but testified that she did not use them after she moved out. The evidence shows that calls were placed from Smith’s calling card in an attempt to track down Mr. Glendinning. A call was also placed from that calling card to the Loch Lomond Marina, where David Howard was employed. In addition, internet searches for Robert Glendinning’s address were entered on Smith’s computer.

In an email exchange on August 10, 1999, Linda and David Howard discussed meeting one another. That same day, Linda received emails from the jccart account mentioning Howard. One email read, “How about David is he going to be more competition for me,” and the other stated, “Maybe I don’t have the right to be jealous, but I am anyway. I hope you don’t start anything with David.” Linda was still unaware that the jccart account had been registered on Smith’s computer, thinking jccart was a stranger on the internet who had somehow hacked into her computer. She received another email from jccart on August 11, 1999, stating “I will try to stop monitoring your email account, although it will be hard to do knowing all of your other friends.”

While Smith was not a hunter and did not collect guns, his Visa was used to purchase a Marlin .22 caliber rifle, with scope and ammunition, at the Van Burén Wal-Mart on August 11,1999. The next day, a call was placed from Smith’s new cell phone to the Loch Lomond Marina, and Linda received an email from the jccart account regarding Howard coming to stay with her on Sunday night and Monday. The email warned her that Howard was out every night with a different woman and that she should use a condom to be safe. On August 14, 1999, Smith’s work records from his job as a mail carrier for the U.S. Postal Service revealed that he took the day off. His Visa was used on that day for purchases from the Rogers Wal-Mart, and the purchases included a pair of binoculars, black jeans, a black long-sleeve shirt, and a pair of black shoes. A call was placed that night from Smith’s cell phone to Howard’s home phone number in Bella Vista.

On August 15, 1999, Linda and Howard met in person for the first time, and he spent that night at her apartment. Smith’s work records for that day indicate that he had the day off, and his computer later revealed that he had spent time that day researching different poisons. During this time period Linda was still communicating with Robert Glendinning, the man from Florida. Smith’s computer also revealed that he emailed Glendinning on August 17, 1999, stating that “there is more at stake here than you can imagine.” In addition, Smith’s Visa records indicate more purchases at the Van Burén Wal-Mart, including a one-half inch white nylon rope. Two days later, August 19, 1999, Smith purchased a new white van, although his truck was fairly new with low mileage. The van’s license plate read 535DMK.

David Howard and Linda decided that she should visit Howard at his home in Bella Vista on August 21, 1999. Smith’s work records show that he again took a sick day on the same day, and his cell phone records reveal that calls were made to Howard’s place of employment. The calls to the Loch Lomond Marina were connected through the nearest cell tower, indicating that the calls were placed from Bella Vista. That night, Smith’s Visa revealed a purchase of a nine-and-a-half inch stainless steel knife at the Van Burén Wal-Mart, and Smith’s calling card showed three calls were placed to Howard’s home.

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Smith v. State, 239 S.W.3d 494, 367 Ark. 274 (Ark. 2006).

239 S.W.3d 494 (Smith v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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