ST. LOUIS – There’s a lot Kelli Smith can’t remember about Feb. 25, 2012.
She doesn’t know how she ended up in her car that night, driving the wrong way across Interstate 70 in Montgomery County, 50 miles east of her home.
She can’t recall the head-on crash that killed Thomas David Sullivan II, a 35-year-old worker at the General Motors plant in Kansas City, as he made a regular weekend trip home to the St. Louis area to see his sons, 4 and 7.
She doesn’t remember a minor crash she apparently caused a half hour earlier, at 3 a.m., in Callaway County on the same highway.
And she can’t explain why emergency workers found her naked from the waist down, her pants crumpled in the back of her demolished car.
A brain injury suffered in the crash appears to have wiped out those memories and more.
Why were there matching bruises on the insides of her wrists, injuries to her cervix and what appeared to be marks from fingers on her inner thighs? What about hand prints on the ceiling of her car? Where were her underwear, purse, cellphone and one shoe – none of which was ever found?
Smith, then 22 and employed by the Columbia Daily Tribune, said her last recollections are of being at bars with friends in downtown Columbia, then driving some male acquaintances to their nearby home.
To the Missouri State Highway Patrol, many of those questions were immaterial.
A blood draw more than seven hours after the crash showed Smith’s blood alcohol at 0.085 – just beyond the legal limit – with an assumption it was much higher when she drove. To investigators, it was clear: Smith was driving drunk when she killed somebody.
Case closed. She was charged with involuntary manslaughter and, in December 2014, convicted by a jury.
But what did happen?
That question resurfaced Tuesday with a Missouri Court of Appeals ruling in St. Louis that threw out Smith’s conviction and five-year prison sentence.
A three-judge panel ruled that jurors should have been better instructed on how to consider Smith’s blood alcohol. They said that if jurors had received proper instructions, they might have given greater weight to circumstantial evidence raised by the defense, pointing to an entirely different explanation.
That theory? Smith’s lawyer, Jennifer Bukowsky, believes someone slipped Smith a date rape drug, then sexually assaulted her. If the intoxication was involuntary, she reasoned, her client could not be held criminally negligent – if she was drunk at all.
“The jury has to look at whether her actions were reasonable under the circumstances,” Bukowsky explained in a recent interview. “Kelli would not have been behind the wheel going the wrong way on Highway 70 in Montgomery County had she not been forcibly raped and/or involuntarily drugged in Boone County that night.”
Bukowsky said the highway patrol didn’t do enough to investigate that possibility, despite red flags raised by Smith’s injuries and the strange circumstances of the crash.
The lawyer said several rulings by Montgomery County Circuit Judge Wesley Dalton before trial limited her from fully raising involuntary intoxication as a defense.
While the appeals court did not address Bukowsky’s points in that regard, the ruling opens the door for fresh arguments if the case goes back to trial.
Bukowsky said Tuesday’s opinion “undoubtedly” strengthens her case. It points in particular to one of Bukowsky’s experts, who said the blood draw was mishandled in a way that could have elevated the test results.
Proper instructions, the opinion said, “would have called to the jury’s attention the theory that the test was unreliable and that the other additional evidence of intoxication was not overwhelming.” It notes that the jury asked several times during deliberations for a better definition of “under the influence” and “intoxicated condition.”
The attorney general’s office, which helped prosecute the case and handled the appeal, had no comment Tuesday. It has 15 days to decide whether to fight the ruling.
Ultimately, a retrial decision could come back to Montgomery County Prosecuting Attorney Nathan Carroz. He indicated Tuesday that his office would continue to press the case, but declined comment otherwise. The highway patrol declined comment on the case earlier this month.
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Sullivan was a grown man with a child’s spirit, his family said at Smith’s sentencing.
He was an avid reader who loved to cook and displayed a boyish grin under his ever-present Cardinals hat. If the world were divided between good guys and bad guys, Sullivan was the former.
He joined the military but returned home with a bad back from years of football.
He graduated from a police academy, but turned to the production line at General Motors when his gentle heart couldn’t bear the harsh realities of law enforcement, according to his family. Through prosecutors, they declined comment for this article.
After Sullivan was laid off in Wentzville, he moved to a General Motors plant in Kansas City. Every weekend, he traveled home to see his sons.
With a tractor-trailer to his right, Sullivan had no opportunity to swerve the night Smith approached. They hit head-on and he died upon impact, his body burned beyond recognition when his vehicle burst into flames.
“I’m really so glad that Kelli Smith survived this crash and is now in reasonably good health,” his father, Thomas Sullivan, said at the trial. “It’s because I truly could not fathom or want her family to go through what we went through.”
Smith, a first-born child, animal lover and athlete, was found tucked within the wreckage.
Paramedics found her alive. Her breathing was shallow. On it, they testified, smelled alcohol. At first, nobody noticed the missing pants. One paramedic said she thought Smith was wearing a short dress.
She was airlifted to the University Hospital in Columbia, remaining unconscious for about a week. The day of her transfer to a rehabilitation center, a hospital nurse pulled Smith’s parents aside.
“That’s when we first learned that Kelli had been raped,” said her father, James Smith, 56, in an interview.
On a doctor’s orders, nurses had performed a sexual assault exam the day Smith arrived, because of bruising on her thighs that they later testified suggested rape.
Her parents relayed the nurse’s concerns to highway patrol investigators. That’s when Cpl. Scott Miller told them Smith had been found naked from the waist down.
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Miller, of the highway patrol, had been called out of bed to respond to the crash. It took him more than seven hours to process the scene and get to the hospital for the blood draw. Smith’s jeans, found in the back of her car, were not seized for evidence.
“Would we have liked for Cpl. Miller to draw that blood within two hours? Absolutely, but God there’s just no way he could do it,” Kelly King, an assistant prosecutor, told the jury in closing arguments, noting the patrol doesn’t even have the staffing to have a trooper on duty overnight in Montgomery County.
Miller had a nurse take the blood using a combination of his equipment and the hospital’s. The sterility of that procedure, and the fact that it was done without an arrest or warrant, were among points Bukowsky raised with the appeals court.
Miller kept the sample in his patrol vehicle for two days before leaving it in a courthouse drop box. The blood wasn’t refrigerated until March 6, and not tested until March 12.
A defense expert testified that blood alcohol levels can increase due to fermentation if samples are not stored properly, particularly over time. Bukowsky’s witnesses also spoke of how a delayed test, or one not specific enough, can miss commonly used date rape drugs.
In fact, the test on Smith’s blood did not show two drugs the hospital administered to her – two medications, an expert testified, that also can be used as date rape drugs.
Bukowsky said there was not enough blood drawn from Smith for follow-up testing.
A highway patrol investigator, Eric Stacks, testified he was consulted on the question of a sexual assault, as he had been involved in dozens of rape cases.
Smith’s exam revealed no semen.
Stacks examined the accident scene and hospital photographs, then sitting with other investigators around a conference table decided that all her injuries could have been from the crash.
That concluded his investigation.
On cross-examination in the trial, Bukowsky asked Stacks about the bruising to Smith’s cervix.
Stacks indicated he didn’t know what a cervix was.
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Miller interviewed three of the seven men at the house in Columbia where Smith was last seen. All denied having sex with her; they had been drinking.
Nobody ever saw a drink in Smith’s hand, although her friends had shared pitchers of beer that night, according to testimony. Some assumed Smith had been drinking before she bumped her car into another vehicle outside the house. Nobody could conclusively say who was last with her.
The judge forbade Bukowsky from mentioning a possible sexual assault from date rape drugs during jury selection and opening statements. Bukowsky was able to introduce some of those inferences later. But even then, she said, the judge limited her ability to put on a full defense.
For Sullivan’s family, the suggestion that someone else might be responsible is “offensive,” according to David Warner, Sullivan’s brother, who spoke at Smith’s sentencing.
“Kelli needs to face the consequences of her horrendous actions,” he said. “Why try to point to reasons beyond the simple truth? She went out with the intent to drink, she drank, she didn’t stop. Kelli is not the victim. She is the aggressor.”
Smith’s father can’t understand why the highway patrol did not look deeper.
“In our minds, something happened to Kelli that was very egregious and horrible that set all these events in motion that culminated in that head-on crash on I-70 in Montgomery County,” he said. “We believe that the person or persons who sexually assaulted her are at fault here. That person set in motion her flight.”
He said his daughter, now 26 and at liberty on bail, has tried to stay busy with school and a new job – making the most of her time, ever-cognizant of the potential of going to prison.
He said it’s tough to feel happy about the appeals court ruling. The road to get here has been too long, and there’s no guarantee an end is in sight.
“It’s good news, it’s what you were hoping for, but you also feel for the Sullivan family,” he said. “This was tough getting to this point for both families touched by this accident.
“I guess, just for a moment,” he said, “you can feel some hope.”
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