State v. Smith

• Decision Date: 04 November 2020
• Docket Number: No. CR-18-0295-AP,CR-18-0295-AP
• Citation: 250 Ariz. 69,475 P.3d 558
• Parties: STATE of Arizona, Appellee, v. Allyn Akeem SMITH, Appellant.
• Court: Arizona Supreme Court

250 Ariz. 69

475 P.3d 558

STATE of Arizona, Appellee,

v.Allyn Akeem SMITH, Appellant.

No. CR-18-0295-AP

Supreme Court of Arizona.

Filed November 4, 2020

Mark Brnovich, Arizona Attorney General, Brunn (Beau) W. Roysden III, Solicitor General, Lacey Stover Gard, Chief Counsel, David R. Cole, Nate Curtisi (Argued), J.D. Nielsen, Vineet Mehta Shaw, Assistant Attorneys General, Capital Litigation Section, Phoenix, Attorneys for State of Arizona

James J. Haas, Maricopa County Public Defender, Peg Green, Nicholaus Podsiadlik (argued), Deputy Public Defenders, Phoenix, Attorneys for Allyn Smith

JUSTICE GOULD authored the opinion of the Court, in which CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER and JUSTICES BOLICK, LOPEZ, BEENE, and JUSTICE PELANDER (Retired)^* joined.

JUSTICE GOULD, opinion of the Court:

¶1 Allyn Akeem Smith was sentenced to death after a jury found him guilty of first-degree murder and child abuse. We have jurisdiction of this automatic appeal pursuant to article 6, section 5(3) of the Arizona Constitution and A.R.S. § 13-4031. We affirm Smith's convictions and sentences.

I.

¶2 On December 11, 2014, K.L. was fatally shot by Smith, her former boyfriend and the father of her two-month-old daughter, K.S.¹ K.L. and K.S. were found on a hiking path near South Mountain in Phoenix. K.L. was shot in the back of the head, while K.S. was left facedown against the ground with a bullet wound in her thigh. K.S. survived after surgery.

¶3 Smith and K.L. had a stormy relationship. Before meeting K.L., Smith was in an on-again-off-again relationship with K. Ward. At some point in 2014, Ward cheated on Smith and Smith began dating K.L. Smith and Ward were back together by October of 2014.

¶4 In early 2014, Smith got K.L. pregnant. Ward obsessed over K.L.’s pregnancy, expressing anger that Smith may have fathered a child with another woman. Smith tried to convince Ward that he was not the father. Smith and Ward also had a son, and Ward threatened to leave Smith and take their son away if Smith was indeed the father of K.L.’s child.

¶5 Almost four months before the murder, on August 17, 2014, K.L. and Smith met at Kiwanis Park. They took a walk through the park, with Smith walking several feet ahead of K.L. As they were walking, K.L. was assaulted from behind. At the time, K.L. was seven months pregnant with Smith's child, and her assailant kicked her in the stomach, punched her in the back of the head and cheek, knocked her to the ground, and then punched her again. K.L. had to be treated at a hospital.

¶6 Evidence suggested that Smith was involved in the attack. Before the attack, Smith told his friend, G. Curley, that he needed help with a pregnant girl, he needed to "fuck her up" because she was pregnant, and that he was "ready to fuck this bitch up." Curley declined to help, and when Smith later repeated the request, Curley responded that it was "all on him." After the attack, Smith told K.L. he called 911, but there was no record of the call. Because no one was able to identify K.L.’s assailant, no charges were filed. However, Cell Site Location Information ("CSLI") revealed that Smith's long-time friend, R. Marley, was at or within a mile and a half radius of the park when K.L. was attacked. CSLI also revealed that Smith and Marley were together near Smith's apartment immediately after the attack.

¶7 In October 2014, K.L. gave birth to K.S. When K.L. applied for welfare benefits, the Department of Economic Security ("DES") required her to collect child support from K.S.’s father. As a result, on October 27, K.L. named Smith as the father and provided his contact information to DES to set up a DNA test.

¶8 Smith, however, repeatedly failed to show up for his appointments with DES. On December 1, after K.L.’s urging, Smith made an appointment for December 4. He did not, however, show up for that appointment. Smith made another appointment on December 9, but he did not show up for that one either. On December 10, the day before her murder, K.L. persisted in trying to get Smith to take the paternity test, informing him that DES would refer the matter to the courts if he did not show up for his test by December 11. Smith told K.L. that he wanted to meet K.S. and play with her before he took the paternity test. Smith said he would meet with K.L. and K.S. only if they were alone, reiterating, "If anyone else is there, I don't want to come." On December 10, K.L. gave Smith her address, and Smith told her that he would be there at 12:00 or 12:30 p.m. the following day.

¶9 On December 11, at 10:54 a.m., Smith deleted K.L. as a friend on Facebook. Four minutes later, he deleted his OG Triple Facebook account (an account associated with his email address), which he had used to contact K.L. Smith then went to a firearms store and purchased a Phoenix Arms .22 handgun and ammunition. He filled out paperwork and was captured on store video surveillance at 11:46 a.m. Then, according to Smith's CSLI, he arrived at K.L.’s apartment at approximately 12:16 p.m. Tashae Jones, K.L.’s roommate, saw Smith enter K.L.’s apartment at approximately 12:40 p.m. Smith immediately asked K.L. to have Jones leave the apartment.

¶10 Smith drove K.L. and two-month-old K.S. to a trail near the base of South Mountain, where he fired two shots; one hit K.L. in the back of the head, and another struck K.S. in the thigh. K.L. and K.S. were found around 3:00 p.m. by a hiker. K.L. was unconscious, and K.S. was lying outside her carrier face down on the ground. The paramedic who first treated K.S. had to remove gravel from her mouth. The bullet fractured K.S.’s femur, but she survived after undergoing emergency surgery. Because of K.S.’s small size, she had to be placed in a body cast to treat her fracture.

¶11 K.L. could not be revived, and a medical examiner determined that she died of a gunshot wound to the head. The Phoenix Police Department ("PPD") recovered a shell casing for a .22 caliber weapon from the crime scene.

¶12 After murdering K.L., Smith immediately drove to DES and took a paternity test. He asked an employee what would happen if K.L. did not arrive for testing. He was told that the matter would be closed. The test established that K.S. is his daughter.

¶13 Smith was indicted for first-degree murder and one count of child abuse. On September 13, 2016, the State obtained Smith's CSLI by court order pursuant to A.R.S. § 13-3016. Smith's CSLI revealed that his cell phone was within a mile and a half radius of K.L.’s apartment at 12:16 p.m. and within a mile and a half radius of the crime scene from 1:29 p.m. until 2:04 p.m. Additionally, Smith and Ward had been communicating throughout the morning, but there was a period from 12:28 p.m. to 1:39 p.m. where Smith did not answer Ward's text messages.

¶14 At trial, the jury found Smith guilty of premeditated first-degree murder of K.L. and one count of knowing or intentional child abuse involving threat of death or serious physical injury of K.S. At the end of the aggravation phase, the jury found two aggravators: (1) Smith was convicted of a serious offense (child abuse of K.S.), see A.R.S. § 13-751(F)(2) ; and (2) Smith murdered K.L. for pecuniary gain, see id. (F)(5), i.e. to avoid child support payments.

¶15 In the penalty phase, Smith did not testify or exercise his right of allocution but presented twenty-nine non-statutory mitigating circumstances. Infra ¶ 160. He presented no statutory mitigators. After considering the mitigation evidence, the jury determined that Smith should be sentenced to death. Additionally, the trial court sentenced Smith to a consecutive presumptive prison term for his child abuse conviction.

II.

A.

¶16 Smith argues that the trial court erred in denying his motion to suppress his CSLI. We review a court's factual findings on a motion to suppress for an abuse of discretion "but review de novo the trial court's ultimate legal determination that the search complied with the Fourth Amendment." State v. Jean , 243 Ariz. 331, 334 ¶ 9, 407 P.3d 524, 527 (2018) (quoting State v. Gilstrap , 235 Ariz. 296, 297 ¶ 6, 332 P.3d 43, 44 (2014) ). Additionally, we review de novo whether the good-faith exception to the exclusionary rule applies. State v. Weakland , 246 Ariz. 67, 69 ¶ 5, 434 P.3d 578, 580 (2019).

¶17 PPD Detective Helen Balmir prepared an affidavit and applied for a court order ("CSLI Order") to obtain Smith's CSLI through the Initial Appearance Court ("IA Court"). Balmir later testified at the suppression hearing that it was common practice for PPD to make such applications to the IA Court. The IA Court Commissioner granted the order that same day.

¶18 In response to the CSLI Order, AT&T (Smith's service provider) provided "call detail reports," which included Smith's CSLI, subscriber information, historical detail records, and device information from March 1, 2014 through December 14, 2014. AT&T did not disclose any information regarding the content of Smith's communications, such as texts, voicemails, or emails.

¶19 Smith moved to suppress the CSLI, arguing that under Carpenter v. United States , ––– U.S. ––––, 138 S. Ct. 2206, 2220–21, 201 L.Ed.2d 507 (2018), the State could not obtain his CSLI without a search warrant supported by probable cause. Additionally, Smith claimed that the State violated § 13-3016 by failing to provide him notice of the CSLI Order. Following an evidentiary hearing, the trial court denied Smith's motion, concluding that (1) there was probable cause to support the CSLI Order, and (2) lack of notification under § 13-3016 was not grounds for suppression of Smith's CSLI.

¶20 On appeal, Smith asserts that because the State did not have a warrant and the CSLI Order was only based on reasonable grounds, it did not comply with Carpenter , and his CSLI should have been suppressed. Further, Smith argues that § 13-3016(C)(3) is facially unconstitutional to the extent it allows CSLI to be obtained without a warrant.

1. Functional Equivalent of a Warrant

¶21 On...