The Alabama Court of Criminal Appeals has denied Brittany Smith’s motion to reverse the Jackson County Circuit Court’s denial of her motion to dismiss and request for pretrial immunity.

Brittany Smith is charged in the 2018 death of Joshua Todd Smith, 38 of Jasper, Tennessee. Brittany Smith has maintained she was raped and acted in self-defense when she shot and killed Todd Smith.

According to court records, Brittany Smith purchased a puppy from Todd Smith on Jan. 14, 2018. A day later, she, along with her brother, Chris McCallie, picked up Todd Smith after he called her from a park in South Pittsburg, Tennessee saying he needed a ride.

McCallie dropped off his sister and Todd Smith at her residence, according to testimony. From there, Brittany Smith claimed Todd Smith became angry and attacked her, including raping her.

She said later her brother took her and Smith to the store, where she saw a uniformed officer but did not say anything to him, saying she was afraid because Todd had threatened her and told her not to involve the police.

Brittany Smith said, after her brother returned her and Todd to her residence, he returned later. At that point, she claims McCallie and began fighting, testifying, “I hear a gunshot, arguing, fighting.”

According to court documents, Brittany Smith said Todd had her brother in a chokehold, and he couldn’t breathe. She said she shouted for Todd to stop, let him go and leave. At that point, she picked up McCallie’s .22 caliber revolver and shot it three times. She testified that she called 911, and that she and McCallie did CPR on Todd until police arrived.

In Jackson County Circuit Court, Circuit Judge Jenifer Holt wrote in a court order “the court further finds that the defendant’s testimony about material facts was significantly at odds with the physical evidence, exhibits and other witness testimony. Holt wrote that the evidence from the forensic evaluation was consistent with a physical assault in that Brittany Smith had bruising on her neck, breast and body consistent with bite marks and forcible contact.

However, Holt said the physical evidence is inconsistent with the Brittany Smith’s statements about a sexual assault. A SANE nurse testified that her examination of Brittany Smith revealed no genital trauma.

A toxicology report from the autopsy showed that Todd Smith had very high amounts of methamphetamine in his system.

Holt also wrote in her court order that “[Brittany Smith] did not credibly demonstrate that she reasonably believed it was necessary for her to use deadly force in the situation. The court finds that the defendant has failed to prove by a preponderance of the evidence that she was justified in using deadly physical force.”

Based on the facts of the case, the Alabama Court of Criminal Appeals said it could not say that the circult court abused its discretion when it denied Brittany Smith’s motion.

“Even though [Brittany Smith] did not meet her burden that she is entitled to immunity at the pretrial hearing, she may pursue the defense of self-defense at trial,” wrote the court of criminal appeals.

While all five judges on the court of criminal appeals, voted to deny Brittany Smith’s motion, Judge Elizabeth Kellum wrote that she questions whether a petitioner would ever be successful in challenging a circuit court’s pretrial immunity ruling by mandamus.

“The better option, but one that is unfortunately not currently available under Alabama law, would be allow a defendant to file a pretrial appeal as opposed to a petition for a writ of mandamus,” wrote Kellum.

By allowing so, Kellum wrote, “this Court could review the judgement of the circuit court without first requiring the defendant to overcome the extraordinary requirements necessary for mandamus relief.”

Kellum said she invites the Alabama Legislature to consider amending the law to include a right to appeal a circuit court’s pretrial ruling on an immunity defense.

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