Smith v. Lopez

• Decision Date: 23 September 2013
• Docket Number: No. 12–55860.,12–55860.
• Citation: 731 F.3d 859
• Parties: Marvin Vernis SMITH, Petitioner–Appellee, v. Raul LOPEZ, Warden, Respondent–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

731 F.3d 859

Marvin Vernis SMITH, Petitioner–Appellee,

v.Raul LOPEZ, Warden, Respondent–Appellant.

No. 12–55860.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 6, 2013.

Decided Sept. 23, 2013.

Kamala Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Kevin Vienna, Supervising Deputy Attorney General, Robin Urbanski (argued), Deputy Attorney General, San Diego, CA, for Respondent–Appellant.

Dennis P. Riordan (argued), Donald M. Horgan, and Gary K. Dubcoff, Riordan & Horgan, San Francisco, CA, for Petitioner–Appellee.

Appeal from the United States District Court for the Central District of California, Otis D. Wright II, District Judge, Presiding. D.C. No. 8:11–cv–01076–ODW–MRW.

Before: SIDNEY R. THOMAS and ANDREW D. HURWITZ, Circuit Judges, and RALPH R. BEISTLINE, Chief District Judge.^*

OPINION

THOMAS, Circuit Judge:

In this appeal, we consider whether a habeas petitioner's constitutional right to notice of the nature of the accusations against him was violated. We agree with the district court that it was, and we affirm the judgment granting federal habeas relief.

I

A

On the evening of December 15, 2005, police officers went to the home of Marvin and Minnie Smith in response to Marvin Smith's 911 call reporting a burglary in progress. In the upstairs bedroom, the police found Minnie Smith's body on the floor. She had been killed by a crushing blow to her head from a fireplace log roller, and her body had other injuries that may have been inflicted before her death. Her hands were bound by a wire clothes hanger, and her feet had been bound by a strip of duct tape that was found near the body. Parts of the house appeared to have been ransacked, and valuable jewelry was missing from the bedroom.

Several weeks later, Smith was arrested for the murder of his wife. A felony complaint charged Smith with “unlawfully and with malice aforethought kill[ing] MINNIE SMITH” in violation of California Penal Code § 187(a).

At the preliminary examination hearing, the prosecution presented the testimony of Detective Christopher McShane. Detective McShane testified that he had interviewed David Moraga, Smith's cell mate for six months, and that Moraga had told Detective McShane that Smith made incriminating statements while they were celled together:

Q. And did [Moraga] indicate to you whether Marvin Smith had told him anything about the killing of Minnie Smith?

A. Yes.

Q. What did [Moraga] say to you he'd heard from Marvin Smith?

A. He said that Marvin had told him that he had to get rid of his wife because she was standing in the way of his future plans; that she was threatening to divorce him and he wasn't going to give up half of his property he worked so hard for his entire life. Said on the day of the murder he had left the house earlier than he normally does, that he left, he took the jewelry and the money out of the safe with him. He staged it to look like a home invasion robbery. He left a window open. He exited the house without setting the alarm. He went through the front door of the house, and that he went to work that day.On cross-examination, Detective McShane admitted that Moraga was vague on the details of the murder:

Q. Did Mr. Moraga, Detective, tell you the manner in which the killing was carried out?

A. He said that she was beat up real bad.

Q. Did he give any further details?

A. No.

[ ... ]

Q. And [Moraga] didn't really have any information about who specifically did the homicide, did he?

A. Marvin never told him specifically who did it, no....

[ ... ]

Q. [Moraga] didn't know any of the details of the homicide itself and how it was carried out, correct?

A. Correct.

Q. Did he tell you that the homicide was committed before Mr. Smith left the house or was he vague on that point?

A. He was vague.

The court found probable cause to try Smith on the charge in the felony complaint, and the district attorney then filed an information reciting the same charge of first-degree murder.

At Smith's trial, the prosecutor said in his opening statement that “the evidence will show that that man over there at the end of counsel table, wearing the nice sweater, murdered his wife of 27 or 28 years, and then he staged the crime scene to make it look like a burglary and to avoid detection.” Later, the prosecutor said that “the evidence will show” that “the defendant bludgeoned [Minnie Smith] to death, bound her arms behind her with a wire coat hanger, and then staged the scene to look like a burglary.” The prosecution asserted that Smith killed his wife because he did not want to divide his substantial assets with her in the event of a divorce.

In the middle of the prosecution's opening statement, defense counsel learned that Moraga had refused to testify. During a recess, Moraga's attorney told the court that his client would invoke his Fifth Amendment privilege if called to the stand. The judge concluded that it was unlikely Moraga would testify and ordered the parties not to discuss the prospect of his testimony in their opening statements. The trial judge also granted defense counsel's request to delay her opening statement for nearly two weeks, agreeing that Moraga's potential testimony had been significant and that the defense should be given an opportunity to reengineer its opening statement to remove references to Moraga.

In her opening statement, defense counsel offered two reasons why Smith could not have killed his wife. First, she told the jury that the evidence would show that Smith's whereabouts were accounted for at the time of his wife's murder. Second, she said that the evidence would show that Smith was physically incapable of bludgeoning his wife to death with a heavy fireplace tool because of major shoulder surgery he had undergone a few weeks before the murder. She also told the jury that “there may be evidence that points to other people, but you won't be able to put it all together and know who did it.”

In its presentation, the prosecution called over forty witnesses and offered over 220 exhibits. The prosecution presented evidence that Smith was unfaithful to his wife for many years, that his wife was threatening to divorce him, and that he told one of his former employees, Sam Matthews, that the “only way” he or his wife would get out of their marriage was “to die,” because he was “not going to give Minnie half of what [he] got so some other man can live off of it.”

The prosecution also presented evidence that Smith's DNA was recovered from both the murder weapon and his wife's body. The prosecution also showed that police recovered the missing jewelry from the trunk of Smith's car, and that the duct tape found on the jewelry box was from the same roll as the duct tape used to bind his wife's ankles. Finally, the prosecution presented the expert testimony of a criminologist who opined that the disarray in the Smiths' house was staged.

Like the prosecution, the defense presented a large volume of evidence, calling nearly thirty witnesses and submitting nearly one hundred exhibits. To support Smith's alibi, defense counsel presented evidence of Smith's movements on December 15, 2005. To establish that the seventy-year-old Smith was incapable of committing the murder, defense counsel presented medical evidence showing that he underwent major rotator cuff surgery weeks before the murder, and that surgery would have prevented him from swinging a fireplace tool with enough force to deal the fatal blow.

The defense insinuated that Matthews, and not Smith, murdered Minnie. On cross-examination, Matthews admitted that he owed Smith $15,000 and knew the location of several safes in the Smiths' house. Defense counsel also elicited testimony that, at the time Matthews spoke with investigators, he knew details about the crime scene that the investigators hadn't told him and that he hadn't learned from news reports. In particular, defense counsel asked Matthews about statements he made to investigators in which he imagined how Smith would have gone about the murder:

Q. And didn't you tell the police that Mr. Smith wouldn't have done it alone?

A. Yeah, I might have said that.

Q. And didn't you say that he would have done it with Nelson Nealy?

A. Probably said that, too.

Q. Yes or no?

A. Yes.

Q. And didn't you say that “he and Nelson Nealy would have done it, and then they would have gone downstairs afterwards and had a drink”?

A. No I didn't say that.

Contrary to Matthews's testimony, he did tell investigators that whoever killed Minnie Smith went downstairs and had a drink afterward. In fact, a cup of Hennessy cognac was sitting on the downstairs bar when police discovered Minnie Smith's body.

After the defense rested, the trial court held a conference to discuss jury instructions. The prosecution proposed an aiding-and-abetting instruction. The prosecutor argued that the instruction was needed because “if [Smith] didn't swing the murder weapon, it doesn't mean he's not guilty of the crime.” Defense counsel strenuously objected, explaining that she previously was unaware that the prosecutor was relying on an aiding-and-abetting theory. She emphasized that throughout the case, there had been no sign that the prosecution was relying on such a theory, and asserted that the instruction would invite the jury to “speculate about a universe of possibilities for which there's absolutely no evidence.”

The trial judge nevertheless agreed to give the aiding-and-abetting instruction. The judge believed he had a sua sponte duty to do so because there was “considerable evidence” that even if Smith was incapable of swinging the log roller, “he may very well have been an aider and abettor.” The judge expressed concern that without an aiding-and-abetting instruction, the jurors would be left without legal guidance in the event they accepted the defense theory but still believed Smith was involved in the murder. In expressing this concern, the trial judge acknowledged...