Crime

Was a driver who caused a fatal wreck on I-70 under the influence of a date rape drug?

Kelli Smith might have been under the influence of a date rape drug, her lawyer says. Missouri Highway Patrol investigators did a limited sexual assault investigation. An appeals court has thrown out Smith’s involuntary manslaughter conviction, but she may face another trial.
Kelli Smith might have been under the influence of a date rape drug, her lawyer says. Missouri Highway Patrol investigators did a limited sexual assault investigation. An appeals court has thrown out Smith’s involuntary manslaughter conviction, but she may face another trial. jledford@kcstar.com, nnakahodo@kcstar.com

People in Kelli Smith’s world think something horrific happened to her after a night out with friends four years ago.

They say it happened in the early morning hours of Feb. 25, 2012, before she drove her yellow Nissan SUV the wrong way on Interstate 70 and before she slammed into another car about 40 miles east of Columbia. The wreck killed 35-year-old Thomas D. Sullivan II, who was traveling from Kansas City to St. Louis to see his two young boys.

What happened to Smith led to those events, her family and friends say. How else, they say, to explain how she ended up at mile marker 170 in Montgomery County, directionally disoriented and naked from the waist down? One of her tan high-heel shoes was missing, along with her underwear and cellphone.

Medical personnel found bruises on her inner thighs and extensive bruising and damage to her cervix, both signs of a possible sexual assault. Her father, Jim Smith, later noticed what appeared to be thumbprint bruises on her wrists.

“We’re convinced something bad happened,” he said. “You just can’t escape it, all the questions. … Some of those answers may never come.”

Mile marker 170.2 on Interstate 70 was the scene of a 2012 fatal accident. Kelli Smith was driving west in the eastbound lane at 3:32 a.m. Smith's vehicle slammed into an eastbound car, killing Thomas D. Sullivan. She was found guilty of involunta

Kelli Smith, 26, has no recollection of the crash or the two or three hours before. Doctors have said that because of the traumatic brain injury she suffered in the wreck, those memories are gone.

A jury in December 2014 found her guilty of involuntary manslaughter. She received a five-year prison sentence but has been out on bond pending appeal.

In late December, the Missouri Court of Appeals threw out her conviction, saying jurors didn’t receive proper instructions on Smith’s blood alcohol content. The ruling put the case back in the hands of Montgomery County prosecutor Nathan A. Carroz.

He said in a written statement to The Star that “procedurally, our office will continue with the prosecution of this matter.”

Beyond that, Carroz wrote, he has an “ethical duty not to make any public comments about a pending case.”

Smith appears in court Wednesday morning for the first time since her involuntary manslaughter conviction was thrown out. Smith now faces a second trial. Her attorney, Jennifer Bukowsky, has filed a motion asking for a new judge and change of venue.

Sullivan’s father, Thomas D. Sullivan Sr., didn’t want to comment on the possibility of a new trial.

“We’re just waiting to see what happens next,” he said.

He also didn’t want to comment on the theory of Smith’s defense team, her family and friends, and at least one juror from her trial: that Smith was sexually assaulted and possibly disoriented from a date rape drug in the hours before the wreck.

Bukowsky said the Missouri Highway Patrol’s investigation was inadequate, never answering why Smith ended up so far from her Columbia home.

“No one could ever explain why she was in Montgomery County. Ever,” Bukowsky said. “There’s a mountain of things that could have been done and weren’t.”

She pointed to the handling of Smith’s blood sample — how it wasn’t drawn until more than 7 1/2 hours after the wreck. Testimony at the trial revealed that the vial of blood wasn’t refrigerated for 10 days, which an expert for the defense testified can lead to fermentation and a misleading alcohol content reading.

The patrol also interviewed only some of the witnesses that night, and the sexual assault investigation was “basically nonexistent,” Bukowsky said. A corporal with the patrol’s Division of Drug and Crime Control told jurors he gave it “a look.”

If Smith is tried again, Bukowsky hopes jurors can see there was more to Feb. 25, 2012, than a fatal crash on the interstate.

“The problem is, the state’s case is really simple: ‘She was at bars, she was driving the wrong way on the highway, so she must have been drunk. Convict her,’ ” Bukowsky said. “But the reality is it’s a much more complicated case than that.”

Fractured timeline

Smith remembers only fragments from that night. She can recall putting her drink down on the table inside a Columbia bar before she went outside to the smoking area. She remembers coming back in and picking it up.

From there, the story shifts to witness testimony, cellphone pings and 911 calls.

“We’ve tried to piece together what happened to her,” Bukowsky said. “Something changed with her that she went from losing her belongings to driving in such a disoriented manner to … somehow ending up 50 miles east of home half naked.”

About 10 p.m. on Feb. 24, Smith met friends at a Mexican restaurant. The group later went to Shiloh Bar and Grill, where one of Smith’s friends ran into a man she knew from work. That co-worker was with a friend.

When Smith’s group went to another bar, The Penguin, they saw the same two men there. They all talked.

That was the bar where Smith set down her drink to go outside.

Her friends testified that Smith didn’t drink much that night and was known to call a cab if she felt tipsy. Friends with her said she was not impaired when they saw her.

Before the bar closed, the group left. Smith, one of her friends and the two men got into Smith’s car. She drove to a home on Paris Road where the men lived with three other men. Two more men were at the house that night, visiting from out of town.

Both men in the car told the patrol that Smith didn’t appear drunk and didn’t seem to have any trouble driving.

Once at the house — by 1:33 a.m., according to a cellphone ping — Smith’s friend and one of the men got out of the car. Smith needed to check on another friend downtown, and the second man went with her.

A short time later the two returned to the house, but Smith drove past the residence. When she backed up, she hit a vehicle that belonged to one of the out-of-town guests.

She reportedly waited in the car while that guest was told his vehicle had been hit. He and two other men talked with her outside the house.

The next half hour or so — starting about 2 a.m. — is a dark window in Smith’s timeline. According to records, text messages that came into her phone at 2:05 and 2:07 went unanswered.

At 2:39 a.m., the man whose car Smith hit called her insurance company to report the damage.

The patrol interviewed three of the seven men at the house on Paris Road. Two of the men outside the house with Smith said she was clothed the last time they saw her. They disagreed on which of them was the last to see her, each indicating the other.

“She said she had to go home to take care of her dog,” Bukowsky said, referring to testimony from one of the men, who had asked her if she wanted to spend the night.

Yet for reasons no one can explain — including Smith herself — she didn’t go home. Instead, she ended up on Interstate 70.

About 3 a.m., a half hour before the fatal wreck, police say she was involved in a minor crash some 30 miles east of Columbia. A 911 call reported that a yellow SUV sideswiped another vehicle near mile marker 158 in Callaway County and then drove off.

A call about the fatal wreck at mile marker 170 came at 3:32 a.m.

‘Wished it had been her’

By 11 a.m., Smith was in intensive care at University Hospital in Columbia and had been diagnosed with a brain injury.

Highway Patrol Cpl. Raymond Miller soon would alert her parents about the crash. But first he needed a blood sample. A nurse took Smith’s blood at 11:09 a.m.

The state said Miller went to the hospital directly after leaving the crash scene, which took hours to investigate.

After the blood was drawn at the hospital, Miller put the vial in his patrol car. The blood stayed in his car for two days, then was kept in a patrol office for eight days before going to the crime lab.

Smith’s blood alcohol content came back at 0.085, just above the legal limit.

The state countered that once the blood arrived at the laboratory, the sample was refrigerated. According to the state’s response to Smith’s appeal: “There was no odor of putrefaction as would have been present had the sample not been properly preserved or if microorganisms had manufactured bacteria.”

As far as Smith’s physical condition, questions started to surface once she got to the hospital.

While giving Smith a bath that evening, nurses noticed the bruising on the inside of her thighs and marks across her buttocks. They also had taken note of how she arrived at the hospital.

“They thought it was odd that she came in with no pants on,” Miller testified at trial. “And that the location of the bruising might indicate — might indicate that she was sexually assaulted.”

Authorities found her jeans in the backseat of the SUV. They weren’t seized for evidence. Her cellphone, shoe and underwear were never found.

The hospital performed a rape exam that night.

Several days later, a nurse pulled her parents aside.

“They figured out no one had told us,” Jim Smith said. “They told us they had done a rape kit. They told us they believed she had been raped. … There’s a thousand things going on in your mind.”

The rape exam found no evidence of semen. It did not test for DNA.

Several weeks after the crash, doctors and her parents decided it was time to tell her details about the night of the crash.

Smith listened as a doctor told her about the suspected assault and the wreck. For the first time, she heard that someone had died.

“She broke down,” her father said. “Just bawling. She said she’d wished it had been her instead of him.”

Assault investigation

Not long after the rape exam, the patrol’s Division of Drug and Crime Control was brought in to investigate the possible sexual assault.

“We assumed, and that was our bad, that the patrol would thoroughly investigate the sexual assault,” Jim Smith said. “We figured they did everything they normally do.”

He said he and other family members didn’t realize until the trial how limited the investigation was.

Cpl. Eric Stacks, who was assigned to investigate the possible sexual assault, testified for the state that he looked at photos of Smith’s injuries to her right buttock — and had others at the patrol review them — and determined they were consistent with injuries she would have suffered in the crash.

On cross-examination, Bukowsky asked Stacks if he had interviewed Smith or any of the seven men who were at the house on Paris Road. He said he hadn’t.

He also said he didn’t process Smith’s vehicle looking for signs of a possible sexual assault.

“I’ve never personally went to the vehicle,” Stacks said. Another trooper, Stacy Mosher, took photos of the SUV.

Stacks told jurors that he and Mosher spoke with nurses when they picked up the rape kit. He reviewed photos of Smith’s injuries, including significant bruising on her buttocks.

“Did you ask a pathologist to review the photos?” Bukowsky asked him.

“No,” he said.

Bukowsky asked about the bruising of Smith’s body.

“And in your experience with car crashes,” Bukowsky said, “how many times do you see injuries to a cervix?”

“I don’t know what you are asking me,” Stacks said. “To a cervix?”

“You don’t know what a cervix is?” Bukowsky asked.

“No,” Stacks said. “Explain that to me, please.”

She showed him a diagram of female body parts with the cervix labeled.

Jeffrey Coughenour, trauma and critical care surgeon at University Hospital, told jurors it would be unlikely that a wreck caused the bruising and damage to the cervix.

“How unlikely?” Bukowsky asked.

“I don’t know a percentage,” Coughenour said. “It would be very rare.”

Bukowsky also questioned the state’s testing for date rape drugs. The patrol did a broad test for all substances, she said, instead of testing for minute traces that would possibly be left in the blood.

Some date rape drugs go through a body within hours, leaving no trace.

“They were looking for forests when they should have been looking for trees,” Bukowsky said.

She said Smith received two drugs in the hospital that can be used as date rape drugs and neither came up in the testing.

More testing couldn’t be done because there wasn’t enough blood left, the attorney said.

In response to Smith’s appeal, the attorney general’s office wrote: “There was no evidence that Defendant had a sexual encounter that night, much less that she was raped. There was no semen in Defendant’s body. There was no evidence that anyone gave her any ‘date rape’ drug.”

‘Not her fault’

During their deliberations, jurors discussed Smith’s 0.085 blood alcohol content, said Gloria Langenecker, juror No. 11.

“We just automatically threw out the blood, said we definitely weren’t considering that,” Langenecker told The Star. “It wasn’t drawn right, not until 7 hours later. … It sat in the car over the weekend and (was) not sent to the lab for over a week.”

The first day of deliberations, the jury went over the case for more than 10 hours, trying to determine whether Smith was guilty beyond a reasonable doubt. The panel took several votes. Two jurors insisted she was guilty, but others thought something had happened to Smith before the crash.

“She did kill the man, because she was there. She caused the accident,” said Langenecker, who lives outside Montgomery City. “But it was not her fault for being where she was at, not her fault whatsoever.”

At the end of the first day, when the judge sent the jury home after midnight, the vote was 10-2, with the majority voting not guilty, Langenecker said. She was one of the 10 not-guilty votes.

The next day one juror was sick and an alternate was brought in.

“He was adamant that she was guilty,” Langenecker said.

Soon people started to change their votes. One reason, Langenecker said, was because of an answer to a question sent back to the jury.

On that second day of deliberations, jurors asked: “Can we have the timeline presented by the defense?” and “Can we have Officer Miller’s investigation report?”

Four minutes later, the answer came back: “You must (be) guided by the evidence as you recall and the exhibits that have been provided.”

The evidence, she said, pointed to the fact that more than one paramedic testified to smelling alcohol on Smith’s breath moments after the crash. Based on that, Langenecker said, she reluctantly changed her vote.

“They said we had to go by the evidence,” she said.

Still a ‘big mystery’

On a recent day, a chalkboard stood on the sidewalk outside Bukowsky’s Columbia law firm with a quote by Margaret Thatcher.

“You may have to fight a battle more than once to win it.”

Fitting for an attorney preparing for a new trial. She said she and the defense team plan to have additional evidence of involuntary intoxication and show the prevalence of date rape drugs in Columbia. The next court hearing is March 2.

During the sentencing phase of the first trial, Thomas Sullivan Sr. showed jurors pictures of his son with his two boys, who were 4 and 7 at the time of their father’s death.

In December 2014, Sullivan said his son’s death had taken a toll on the family. According to media reports, he told jurors: “The pain of this event never goes away because there are constant reminders of his life and death.”

In a recent phone interview with The Star, Sullivan said Thomas was “a good dad and a great son.”

Jim Smith said his family often prays for the Sullivan family. He spoke on behalf of his daughter, who still faces some effects of her brain injury.

“We never forget about them,” Smith said. “We try to understand their need for closure.”

His daughter wanted to reach out to Sullivan’s family and talk with them.

“I think that’s something she always wanted to do,” Jim Smith said. “She never got the word they were ready to do that.”

For now the Smiths focus on their daughter and her future. Her youth, good health and athletic nature helped her heal.

She was able to move into her own place again in the fall of 2012. She got a job and eventually finished her associate degree in finance. Now she’s working on a bachelor’s degree.

Those who meet her for the first time wouldn’t know she was in a horrific crash four years ago, her father said. Wouldn’t know the scars, inside and out.

For him and his family, everything that’s happened in the past four years has been overwhelming. He and wife Melissa first worried that the older of their two daughters might not live, or might need full-time care. After they learned of the possible sexual assault, thoughts of what had happened to her could be consuming.

“There were weeks where that was the vision in my mind when I closed my eyes, of someone holding her down,” Jim Smith said.

Langenecker said she thinks about Kelli Smith all the time.

“I believe they all thought it was just an open-and-closed case of a drunk-driver accident,” she said. “They didn’t want to look at any rape at all.

“I do honestly deep within believe she faced a horrible trauma that night when she left the bar. It’s a big mystery what happened to this poor girl.”

Laura Bauer: 816-234-4944, @kclaurab

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