Friday, March 13, 2015
Divided State High Court Votes to Rehear Death Penalty Case
New Justices Join Dissenters, Order New Look at Hearsay Ruling in Murder Trial
By KENNETH OFGANG, Staff Writer
The California Supreme Court has voted to reconsider its decision upholding the death sentence for a Shasta County man, whose lawyers say he did not get a fair trial because the judge excluded evidence suggesting his accomplice was the actual killer.
Justices Mariano-Florentino Cuellar and Leondra Kruger, appointees of Gov. Jerry Brown who were sworn in Jan. 5—the same day the court voted 4-3 to affirm Gary Grimes’ conviction and sentence—joined Justices Kathryn M. Werdegar and Goodwin H. Liu in voting to grant rehearing in People v. Grimes  60 Cal. 4th 729.
Chief Justice Tani Cantil-Sakauye and Justices Ming Chin and Carol Corrigan, who together with retired Justice Marvin Baxter formed the original 4-3 majority, voted to allow the decision to stand. The action was taken at Wednesday’s court conference in San Francisco.
Baxter helped decide the case as an assigned justice on the first day of his retirement. Court of Appeal Justice Laurie Zelon of this district’s Div. Seven, also sitting by assignment, joined in dissent.
Zelon was one of a number of Court of Appeal justices who were assigned, in rotation, to the court between Justice Joyce L. Kennard’s retirement in April and Kruger joining the court in January.
In her now-discarded opinion, the chief justice acknowledged that hearsay statements attributed to John Morris—who killed himself in jail the day after his arrest for the murder of Betty Bone—might have been admissible as declarations against interest. But admission of the statements would not have changed the outcome of Grimes’ trial because they were not inconsistent with the prosecution theory that Grimes ordered Morris and Patrick Wilson to commit the murder, Cantil-Sakauye said.
Grimes was sentenced to death in Shasta County in 1999 for the stabbing death of the 98-year-old Bone in her home on Oct. 18, 1995. Prosecutors said she was stabbed multiple times, as well as strangled, when she walked in to find the three men burglarizing her home in the town of Bella Vista, six miles east of Redding.
The house was ransacked and several valuable items were stolen, including a pickup truck, which was found underwater the following morning at a boat ramp.
Following Morris’ suicide, Grimes told police he was involved in the burglary and robbery, but was not involved in the murder. He said he did not intend for anyone to be killed, but admitted providing Morris with a gun.
Trial Court Ruling
At trial, the defense tried to admit into evidence statements by two witnesses—a friend of the defendant and a county jail inmate—that Morris told them that Grimes did not participate in the murder and was in another part of the house when it occurred. Shasta Superior Court Judge Bradley L. Boeckman, however, ruled that those statements were not declarations against interest under Evidence Code §1230.
Jurors found Grimes guilty of murder, robbery, burglary, and conspiracy, and taking of a motor vehicle, and voted to impose the death penalty.
Cantil-Sakauye said the exclusion of the putative declarations against interest was harmless.
She cited testimony by Jonathan Howe, a prisoner who had been housed with Grimes in the county jail, that Grimes told him he had ordered Wilson and Morris to tie up Bone and kill her.
Cantil-Sakauye noted that the prosecution never argued, nor presented evidence suggesting, that Grimes was involved in the actual stabbing and strangulation.
“We find no reasonable possibility that the excluded evidence would have caused the jury to doubt Howe’s testimony,” she wrote. “Statements that defendant did not participate in the actual killing were not inconsistent with Howe’s testimony that defendant admitted he ordered Morris to kill Bone, and they were consistent with Howe’s testimony that defendant said he had never touched Bone.”
The chief justice also rejected the argument that the attorney general forfeited the harmless error argument by not raising it prior to oral argument, following which the court requested supplemental briefing on the issue.
Treating the argument as forfeited, Cantil-Sakauye insisted, would violate the state Constitution’s command that judgments of trial courts not be reversed unless “after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”
A briefing failure, she wrote, “does not relieve this court of its constitutional responsibility to determine whether any error resulted in a miscarriage of justice.”
Liu, however, joined by Zelon, said the court had violated principles of fairness and neutrality when it invited the prosecution to brief the harmless-error issue, after the defense had filed its reply brief and submitted its focus-issues letter, rather than treating the claim as forfeited.
“[N]o authority supports this court’s approach of inviting and considering belated arguments on harmless error when the government, in response to a defendant’s clearly stated claim of prejudice, does not address the issue. Instead, harmless error analysis must be based on the record and arguments that are properly before the reviewing court.”
Turning to the merits, Liu said the statements were admissible and their exclusion prejudicial.
“[T]the proper legal standards for harmless error in a capital trial,” he wrote, require reversal of the sentence, although not the conviction, “because the excluded statements were crucial to rebutting the principal evidence of Grimes’s leadership and depravity with respect to the killing.”
Werdegar agreed with the majority that the harmless-error issue could be considered, but agreed with Liu and Zelon that the statements should have been admitted and that the death penalty might not have been imposed if they were.
The court Wednesday also voted to grant review of a ruling by this district’s Div. Six that the City of Los Angeles, in inadvertently supplying privileged documents in response to a Public Records Act request, waived confidentiality and the documents can be used as evidence in litigation.
The lower panel in Ardon v. City of Los Angeles  232 Cal. App. 4th 175 affirmed a decision by then-Los Angeles Superior Court Judge Lee Edmon, now presiding justice of Div. Three of the Court of Appeal.
Edmon denied the city’s motion to force a man who is suing it, in connection with a challenge to a “telephone users tax,” to return the documents and to disqualify his lawyer, San Diego attorney Rachele R. Rickert.
The city argued that the records that were erroneously delivered pursuant to the PRA should be treated the same as privileged matter that is inadvertently produced in discovery.
San Luis Obispo Superior Court Judge Earle Jeffrey Burke, writing for the Court of Appeal while sitting on assignment, said that Edmon “accurately observed” that “disclosure of documents under the [PRA] is not the same as disclosure in the course of litigation discovery.”
Burke said “Rickert used the [PRA] for exactly the purpose the Legislature intended” and did not target privileged materials.
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