P. v. Smith 3/9/10 CA4/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: G040107

Case Date: 06/24/2010

Preview:Filed 3/9/10 P. v. Smith CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. MARVIN VERNIS SMITH, Defendant and Appellant. G040107 (Super. Ct. No. 07CF1791) OPINION

Appeal from a judgment of the Superior Court of Orange County, Dan McNerney, Judge. Reversed. Riordan & Horgan, Dennis P. Riordan, Donald M. Horgan and Benjamin Owens for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Robin Derman, Deputy Attorneys General, for Plaintiff and Respondent.

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The trial court sentenced defendant Marvin Vernis Smith to 25 years to life in prison after a jury convicted him of first degree murder for the death of his wife Minnie Smith. On appeal, defendant asserts several claims of evidentiary and instructional error. We agree the evidence failed to support the trial courts decision to instruct the jury on aider and abettor liability and that it prejudicially erred in doing so. Therefore, we reverse the judgment.

FACTS

Shortly after 6:30 p.m. on December, 15, 2005, police officers went to the home of defendant and his wife in response to defendants 911 call reporting he believed an intruder was in the residence. After entering the house, the police found Smith on the floor of the upstairs master bedroom dead from blunt force injuries to her head. Subsequent investigation determined the fatal blows came from a log roller kept next to the downstairs fireplace. The victim was lying face down, wearing a nightshirt covering only the upper part of her body with her hands and arms bound behind her back by a wire coat hanger tied around the wrists. One foot missing a sock had burn marks. Investigators found matches, charred material, and pieces of duct tape near the body. The police also found evidence of a break-in. A kitchen window was open with the outer screen removed. Just inside the window, a vase lay on its side on the floor. Drawers were open in several rooms throughout the house. In the master bedroom closet, a portion of the carpeting had been pulled back disclosing a floor safe with the lid open and no valuables inside of it. When questioned later that evening about valuables kept in the home, defendant specifically mentioned a diamond encrusted gold medallion, a diamond encrusted Cadillac emblem, and a diamond ring he kept in the master bedroom armoire. Defendant participated with the police in a videotaped walk-through of the house one 2

week later. Before the walk-through, the police replaced the lid to the floor safe and covered it with the carpet. The aforementioned jewelry items plus a bottle of liquor were the only things defendant identified as missing. Defendant claimed the safe should contain his wifes jewelry and $30,000 in cash. The police arrested him the next day after discovering bags with the missing jewelry, Smiths social security card, and her other valuables in the trunk of his car inside plastic bags wrapped with duct tape. The prosecution theorized that defendant killed his wife on the morning of December 15 and then staged the home to appear as if it had been burglarized. In addition to discovering Smiths body next to an unmade bed dressed only in a nightshirt with a matching nightcap underneath her head, an autopsy revealed she had no food in her stomach. A police officer who saw the body the evening of December 15, observed dried streaks of blood ran on the victims face and dried blood on the carpet under her head. Bennie Thomas, Smiths son, testified he called his mother around 9:00 a.m. on December 15, but she did not answer the phone and, contrary to her usual habit, did not return his call within an hour. The pathologist who examined Smiths body testified to the absence of bruising on her wrists indicated the wire hanger used to bind the hands and arms had been affixed at or about the time of her death and that she had not struggled with her attacker. An investigator who examined the body at the home the day after the murder opined Smith died sometime between 5:30 a.m. and 5:30 p.m. on December 15. The duct tape found near Smiths body came from the same roll of tape used on the bags containing the jewelry found in defendants car and found in the garage of the residence. Forensic testing found defendants DNA profile on the log roller below the handle, one of the burned matchsticks, and the duct tape next to the victims body, plus the duct tape used to wrap the jewelry found in his car. A neighbors tool box was discovered adjacent to the wall separating that yard from the Smiths residence, but a police officer noted there was no disturbance of 3

any dust or debris that would suggest a person had stood on the tool box or climbed over the wall. Nor was there any evidence someone had traversed the yard between the block wall and kitchen window. There were no foot prints in the planter below the window and the screen removed from it had been placed where it would have been in the way if a burglar attempted to leave the residence by that route. Nor was there any scuffing on the window sill. The ceramic vase lying on the floor below the window was not damaged. The drawers removed from furniture had been neatly stacked and the contents of some drawers did not appear to have been disturbed. Although the master bathroom was ransacked, the police found a gun, an item considered to have "a high street value," in one of the drawers. A second six-foot tall safe located in the garage that contained several guns and a twelve-inch high stack of $2 bills was left undisturbed as were wrapped Christmas gifts kept in a downstairs bedroom. Defendant made inconsistent statements. During the 911 call and when questioned by the police later that evening, he claimed to have entered the house through the front door. Thomas testified defendants practice was to enter the house through the garage where the police found Smiths car. Defendant told the police he believed his wife was not home, in part because the front sunshade screen, which she usually kept in the up position, was down. He also claimed he could not find the switch to raise the sunshade screen. The police officers who responded to defendants 911 call testified the screen was up when they arrived. One of the officers participating in the crime scene investigation testified the sunshade screen switch glowed in the dark. When questioned by the police on December 15, defendant said he and his wife never locked the floor safe in the master bedroom closet. During the walk through one week later defendant claimed his wife kept the floor safe locked and denied he knew the combination to it. The prosecution also presented evidence that during the marriage defendant and his wife had fights and defendant engaged in extramarital affairs with other women. Samuel Matthews, who had worked at a liquor store owned by defendant, testified 4

defendant "would . . . say he wish[ed] it was just him and his dog or just him by himself." On another occasion, defendant told Matthews "the only way to get out of the marriage [was] they had to die," because he was "not going to give Minnie half of what I got so another man can live off of it." The defense claimed defendant was not present when the murder occurred and could not have committed it himself. He presented evidence disputing the prosecutions claims concerning the time of death, the staging of a burglary, and the state of the marriage. The defense also presented evidence detailing defendants whereabouts on December 15, and that he had undergone rotator cuff surgery on his left shoulder in early November 2005 and would not have been able to strike the fatal blows. Two witnesses testified to seeing a white vehicle in the Smiths driveway on the afternoon of December 15. Ada Moses, defendants ex-wife, testified she saw the jewelry found in defendants car several months before the murder when she placed some gardening tools in the trunk in preparation for visit of their daughters grave. In addition, defendant presented evidence suggesting Matthews may have killed Smith. Matthews purportedly owed defendant a substantial amount of money. He knew defendant had safes in the house and was aware of some details about the crime.

DISCUSSION

1. Introduction During opening statement, the prosecutor asserted defendant "murdered his wife . . . and then he staged the crime scene to make it look like a burglary . . . to avoid detection." After the close of evidence, he asked the court instruct the jury on aider and abettor liability. "The jury doesnt have to necessarily believe, and I think defense counsel will argue that the defendant did not or could not have committed the crime himself. But that doesnt mean that if he didnt commit the crime himself, that if they 5

find that he aided and abetted in the crime that hes still not guilty of the crime. [

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