COA rejects evidentiary challenges, upholds murder conviction

With the dying words of his victim and cellphone records against him, an Indiana murderer failed to get his conviction overturned by the Court of Appeals of Indiana on Thursday.

In September 2018, Keith Smith and Arnel Davis were rival drug dealers. Also, the two allegedly “both were messing with some girl named Sharonda.”

Around that time, Davis “got a hold of some bad heroin” and lost customers to Smith. Davis then confronted Smith at a local bar.

After Smith told Davis that he could come work for him, Davis “cussed him out” and “got belligerent.” Smith then brought an assault rifle into the bar and threatened Davis.

After the confrontation in the bar, Smith left the assault rifle at Sharonda’s house, and she gave it to Davis. Smith put a $10,000 bounty on Davis, but no one accepted it. Smith then decided “he was going to have to do it himself.”

On the morning of Sept. 29, 2018, Davis left the Indianapolis residence of his fiancee, Daughana Curothers. Smith followed Davis on his way to the barbershop.

Later, while on the way to a liquor store, Davis called Curothers. Smith then pulled alongside Davis’ vehicle and shot him at least 11 times.

Curothers testified she heard a “tapping” sound and then Davis said, “Baby, Keith shot me.”

In February 2019, the state charged Smith with murder and Level 4 felony unlawful possession of a firearm by a serious violent felon. Smith filed a notice of alibi defense that declared he was in Gary at the time of the crime.

Smith waived his right to a jury trial in May 2021, and the Marion Superior Court convicted him at a bench of murder but dismissed the firearm charge.

In August 2021, Smith was sentenced to 60 years in prison.

On appeal, Smith first argued the trial court abused its discretion when it determined the dying declaration exception to the hearsay rule allowed Curothers to testify that Davis had said, “Baby, Keith shot me.”

The COA disagreed.

“Under the dying declaration exception to the hearsay rule, ‘the fact that the victim ultimately dies from her injuries does not make her statement admissible; rather the victim must have known that death was imminent and abandoned all hope for recovery,’” Judge Melissa May wrote. “… It is hard to imagine that someone shot at least eleven times, with many of those bullets striking his chest or stomach, would NOT believe his death was imminent.”

May added that the police response to the incident was quick, and that an officer believed Davis was dead upon arrival.

Smith also argued on appeal that the trial court committed fundamental error when it admitted evidence of and testimony regarding his cellphone records to rebut his alibi defense.

Specifically, the state called Melody Haynes, Smith’s former girlfriend, who testified to Smith’s cellphone numbers at the time of the crime. Haynes indicated she did not “know [Smith’s] number from 2018,” and the state refreshed her recollection.

IMPD Communications Records Analyst Adam Franklin then testified he received “Call Detail” records for cellphone numbers identified as belonging to Smith and used a program called “Cell Hawk” to map the nearest cellphone tower to the location from which a call was made. Based on those records, Franklin testified the cellphone numbers earlier identified as belonging to Smith were in Indianapolis, not Gary, at the time of the crime.

“Smith did not object at trial to the admission of any of the evidence he now challenges. Thus, his argument is waived,” May wrote. “… (A)ny error in the admission of the Haynes’ testimony regarding Smith’s cell phone number at the time of the crime, Smith’s cell phone records, and Franklin’s analysis thereof, was harmless because the challenged evidence and testimony were cumulative of other independent testimony placing Smith in Indianapolis at the time of the crime.”

May also noted there was surveillance footage that showed the black truck Smith was driving in the areas where he allegedly followed Davis.

The case is Keith Smith v. State of Indiana, 21A-CR-1834.