People v. Smothers

• Decision Date: 20 July 2021
• Docket Number: A156081
• Citation: 281 Cal.Rptr.3d 409,66 Cal.App.5th 829
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Sherill Lynn SMOTHERS, Defendant and Appellant.

66 Cal.App.5th 829

281 Cal.Rptr.3d 409

The PEOPLE, Plaintiff and Respondent,

v.Sherill Lynn SMOTHERS, Defendant and Appellant.

A156081

Court of Appeal, First District, Division 3, California.

Filed July 20, 2021

As Modified on Denial of Rehearing August 9, 2021

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Donna M. Provenzano, Supervising Deputy Attorney General, and David H. Rose, Deputy Attorney General for Plaintiff and Respondent.

Law Offices of Gary K. Dubcoff, Gary K. Dubcoff, San Francisco, for Defendant and Appellant.

Wiseman, J.^*

In 1983, Marsha Carter was found dead from multiple sharp-force injuries. Her fully clothed body was located 10 days after she disappeared from her home in Richmond, California, where she apparently was attacked and possibly murdered. She was found in the trunk of her car, which was parked at a West Sacramento motel—miles from her home. Various leads came to the attention of the Richmond Police Department, however, its investigation did not result in any charges being filed and the case went inactive for many years.

In 2008, investigators began processing evidence from the case for DNA, using analytical procedures unavailable to law enforcement in 1983. The results of the DNA analysis of blood found in Carter's home pointed to Sherill Smothers, a man Carter was dating in 1983 around the time she was murdered, who had been a suspect in the initial 1983 investigation. In 2016, Smothers was charged with Carter's murder and an enhancement was alleged for use of a deadly and dangerous weapon.

Investigators also discovered scrapings from beneath Carter's fingernails which contained DNA from an unknown male who was not Smothers or any of his known associates. The unknown male sample was entered into the Federal Bureau of Investigation's Combined DNA Index System (CODIS), a national database of DNA profiles. It yielded a match to a man named Kevin Sennett, who appeared to have never had any known connection to California, Carter, or Smothers. To complicate matters further, the information the parties initially had about Sennett was that in 1983 he had been a member of the Army reserves in Texas.

Defense counsel moved to introduce evidence of the DNA match to Sennett in support of Smothers's third-party culpability defense. Following an extensive hearing, the trial court, over the prosecutor's objection, granted the defense motion and told counsel he could present this evidence to the jury.

At trial, the prosecution relied on alternative theories to establish Smothers's culpability for Carter's murder, including an uncharged conspiracy theory. The jury heard testimony that Carter had a broken fingernail with blood underneath, and that the fingernail break could have been a defensive wound possibly caused by Carter scratching or coming into contact with her attacker. The jury also heard testimony that the DNA found in the scrapings beneath Carter's fingernails matched a male who was not Smothers or any of his known associates.

Defense counsel, however, never introduced evidence that the DNA evidence was matched to Sennett, and Sennett's name was never mentioned during trial, even though the court had given him the green light to do so. The defense presented no witnesses and Smothers did not testify.

The jury found Smothers guilty of murder but found the sentencing enhancement that he had wielded a dangerous weapon to be not true. As the trial court correctly observed, the jury's verdict was most consistent with the theory that Smothers conspired with a third party—likely Sennett, a name unknown to the jury—to kill Carter and that the third party, based on the DNA evidence, likely was the killer.

On appeal, Smothers raises multiple errors including that the court (1) improperly denied his motion to dismiss based on the delay in bringing charges against him, which violated his rights to due process and a fair trial, and (2) that Smothers was denied effective assistance of counsel due to his counsel's failure to present evidence of Sennett's identity to the jury.

We are compelled to conclude that Smothers's trial counsel was ineffective for not presenting the available Sennett evidence, including his identity, to the jury. The People's key witness (who by the time of trial was dying of stage four lung cancer

) testified via a conditional examination that Smothers tried to get him and/or other local friends to help him kill Carter. He never mentioned the existence of a clandestine hitman from out-of-state. To say the least, this witness’ testimony was shaky for a variety of reasons, hence until the police were able to place Smothers at the probable murder scene via DNA evidence, the prosecution believed there was not enough evidence even to charge Smothers.

One of the elements the prosecution had to prove to convict Smothers of the uncharged conspiracy to commit murder was that Smothers had the specific intent to enter into an agreement with someone to kill the victim, Carter. Based on the People's key witness’ testimony there was evidence that Smothers entered (or tried to enter) into an agreement to kill Carter with the key witness and other local mutual friends. However, there was no DNA evidence placing these co-conspirators at any of the crime scenes—the likely murder scene or inside the car that transported Carter's body to Sacramento. The only DNA evidence matches that were found at the probable murder scene belonged to Smothers and Sennett.

There is no evidence that Smothers entered into an agreement with Sennett to kill Carter. There were no financial records, no phone records (the Internet was basically nonexistent in 1983), and no eyewitness testimony that these two men who from all outside appearances, were from completely different worlds, had ever even crossed paths let alone conspired to commit Carter's murder.

We can see no reason why, under these circumstances, defense counsel would not have wanted facts relating to Sennett and his identity before the jury. The trial court told him he could introduce the evidence reasoning that if Sennett's DNA was under Carter's fingernails that meant Sennett was in California—no matter how he got there. It would have only inured to the benefit of the defense to use this fact to argue that the prosecution could not prove a key element of their conspiracy theory, i.e., there was no evidence Smothers entered into an agreement with Sennett to kill Carter because there was no evidence of any connection between the two men.

Instead, based on the evidence they heard, the jury likely concluded that Smothers was finally able to locate some local acquaintance to help him kill Carter, which would have been a conclusion supported by the evidence the jury heard. We will never know whether this jury would have reached the same conclusion if they had been told Sennett's identity and heard there was no known connection between him and Smothers let alone an agreement between the two to murder Carter.

In addition, we conclude the trial court properly exercised its discretion when it denied Smothers's motion to dismiss the indictment against him on grounds of pre-accusation delay. Recognizing that this case may be retried, we also point out potential appellate issues with respect to the conspiracy instructions which should be considered in the event of a retrial.

We reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

In 1983, 25-year old Marsha Carter was murdered. She lived in Richmond, California with her four sons, including then 9-year old Travis Carter, Jr., his 1-year old brother, and two other brothers, ages 11 and 7. No prosecution occurred following the investigation by police, and the case eventually became inactive.

Beginning in 2008, investigators from Contra Costa County's "cold case unit" began analyzing DNA from biological evidence collected at Carter's house when she disappeared. The DNA was compared to known DNA samples obtained from suspects in the 1983 investigation, including Smothers. In August 2016, a grand jury returned an indictment charging Smothers with murder under Penal Code section 187, subdivision (a), and alleging an enhancement under Penal Code section 12022, subdivision (b)(1) for use of a deadly and dangerous weapon.

The trial took place over the course of nearly two months in 2018.

A. Motions Regarding Third Party Culpability Evidence

At the start of trial and prior to any witness testimony, both parties filed motions on third-party culpability evidence. The People moved to exclude it, while Smothers moved in limine to allow it. Smothers's motion stated that the defense "anticipate[d] expert testimony showing that DNA belonging to Kevin Sennett was found underneath Marsha Carter's fingernails."

Nearly two years earlier, in June 2016, investigators at the Contra Costa County Office of the Sheriff's Crime Lab (Crime Lab or Lab) had developed a partial DNA profile from the scrapings found beneath Carter's fingernails. It did not match Smothers or any of his known associates. The Crime Lab entered the profile into CODIS. There were two hits, one of which was to Kevin Sennett.¹ The Crime Lab informed the investigating officer, Lieutenant Stina Johanson, that these matches "constitute[d] an investigative lead" and justified issuance of a warrant for a reference sample from Sennett.

Before the grand jury hearing in August 2016, Lt. Johanson found and contacted Sennett in Florida. Sennett informed her that in 1983, he was in the Army in Texas, that he knew no one by the name of Marsha Carter, and he had never been to California. Meanwhile, defense counsel attempted without success to find evidence that Sennett had been in the Bay Area in December 1983.

While the third-party culpability motions were pending, the People obtained a buccal swab from Sennett, who provided the sample voluntarily without the need for a subpoena or court order. The Crime Lab...