PEOPLE v. GRIMES

Appellant’s Letter Brief

Cal.July 23, 2014

SUPREME COURT COPY LAWOFFICE OF CLIFF GARDNER COB) Li Ur W7 1448 SANPABLO AVENUE e BERKELEY, CA ¢ 94702 PHONE:510-524-1093 e FAX: 510-527-5812 Website: CliffGardner.com July 22, 2014 SUPREME COURT Mr. Frank A. McGuire F | L E D Office of the Clerk California Supreme Court 014 350 McAllister Street . JUL 232 San Francisco, CA 94102 . Gale \Re. Frank A. McGuire Clerk Re: People wsGrimes, S076339 Deputy Dear Mr. McGuire: After May 28, 2014 oral arguments in the above-captionedcase, the Court ordered supplemental opening andreply briefs on three distinct questions. All three questionsrelatedto the trial court’s exclusion of evidence that John Morrissaid he alone killed the victim. Both parties filed their initial briefs on July 16, 2014. I would appreciate if you would bring this reply brief to the Court’s attention. I. Although The State Has Not Forfeited A Harmless Error Argument In Connection With State Law, It Has Forfeited The Argument In Connection With Federal Law. Prior to oral arguments, Mr. Grimes served andfiled a focus letter stating that he would be discussing the John Morris issue. Deputy Attorney General Stephanie Mitchell, representing the state, filed a focus letter indicating the state would “prepare[] to address any focus issues specified by counsel for appellant and to answer any questions posed by the Court at oral argument.” (People v. Grimes, S076339, Respondent’s Letter ofMay 7, 2014.) Of course,it stands to reason this preparation included reviewing Mr. Grimes’s reply brief on the John Morris issue which noted that in its Respondent’s Brief the state did “not dispute that if error occurred, reversal of both the special circumstance and penalty phase verdictsis required.” (Appellant’s Reply Brief 32.) At oral argument, and in response to a question from the bench, counsel for Mr. Grimesreiterated that the state had never disputed harmless error. Deputy Attorney General Mitchell -- the very same Deputy Attorney General whoactually wrote the state’s briefand whospecificallyprepared to address the John Morris DEATH PENALTY Mr. Frank McGuire July 22, 2014 Page 2 issue -- was askedifthe state had omitted harmlesserror from its brief. She candidly concededthat the state had indeed omitted harmless error from its brief: [T]he harmless error [argument] was omitted from ourbriefing .... (People v. Grimes, 8076339, Oral Argument CD ofMay 28, 2014 (“CD”) at 3:02:37-3:03:04.) In light of the state’s brief, and the state’s concession, the Court requested briefing on whether“the Attorney General’s failure to argue in the answerbrief that an alleged error is harmless constitute[d] forfeiture of any harmless error argument regarding either state law errorsor federal constitutional errors?” The state now arguesthat for three reasons, it has not forfeited anything. First, the state argues that Mr. Grimes(in his reply brief and oral argument), Deputy Attorney General Mitchell (in her oral argument) and the Court (in its order requesting briefing) were all wrong. Accordingto the state’s newest position, the state did raise a harmless error argument and Mr. Grimes was “on notice”all along that the state was disputing harmless error. (Respondent’s Supplemental Letter Brief (“RSLB”) 1-2.) Second,any failure on the state’s part “to comply with court rules concerning the content and form ofbriefs should not result in forfeiture.” (RSLB 2.) Thisis so, the state argues, becausethe state raised harmless. error at oral argument “before the matter was submitted” and wenton to instruct the Court “that any omission of a harmless error argumentin the answerbrief should not be interpreted as a forfeiture.” (RSLB 2.) Third, even if it did omit a harmless error argument from its brief the state argues there is no forfeiture. (RSLB 3-5.) This is so as to both (1) errors of state law which require the defendant to prove the error prejudicial and(2) errors of federal law which require thestate to prove the error harmless. (RSLB 3 [state law errors], 3-5 [federal law errors].) Mr. Grimes will address each of these contentions. As he noted in hisinitial letter brief, the state’s view that there is no forfeiture as to state law errorsis correct. Beyondthat, however, the state’s arguments are meritless: (1) the state was correct at oral argument whenit conceded that harmless error had never been raised, (2) a party’s failure to properly raise an argumentin its briefs cannot be cured byraising the argument withoutnotice at oral argument and advising the reviewing court that Mr. Frank McGuire July 22, 2014 Page 3 no forfeiture was intended and (3) as courts throughout the country have held, the state’s failure to dispute prejudice when it has the burden ofproving an error harmless constitutes a forfeiture. A. The State’s Newly Minted Argument That It Raised Harmless ErrorIn Its Brief Ignores The State’s Explicit Concession That Harmless Error “Was Omitted From OurBriefing” And The Actual Record. Asnoted, the state concededat oral argument that “the harmless error [argument] was omitted from our briefing... .” In light of the structure and content of the state’s brief, there was good reason for this candid concession. The headings of the state’s briefmade very clear it was only contesting the existence of error. (RB 72, 76.) Butresolution of this issue does not depend on the state’s headings. The arguments in respondent’s brief that followed these headings had nothing to do with harmless error. In fact, these arguments discuss (and dispute) only the existence of error. (RB 72-76, 76-77.) Theyfail to discuss -- or even mention-- prejudice standards or the concepts of prejudice or harmlesserror. This failure stands in stark contrast to the other instances in the state’s briefwhere the state actually did dispute prejudice. (Compare RB 72-77 with RB 95 [in making an alternative prejudice argument, the state argues that an alleged error was not “prejudicial under any standard”]; 156-157 [in making an alternative prejudice argument,thestate cites both Watson and Chapmanandarguesthat the state and federal prejudice standards have not been met]; 162 [in making an alternative prejudice argument, the state argues that “[a]ppellant cannot demonstrate any prejudice.”]; 165-166 [in making an alternative prejudice argument, the state argues that “appellant has not demonstrated any prejudice undereither the state or federal harmless-error standards .. . .”]; 191-192 [in making an alternative prejudice argument, the state argues that “even assuming [error] . . . there was no prejudice.”]; 201 [in making an alternative prejudice argument, the state cites Watson and argues that “even assuming[error] . . . any error was harmless].) Respondentignoresall of this entirely. Instead, the state now argues that Deputy Attorney General Mitchell was wrong at oral argument when she conceded that harmless error had been omitted from the brief she herself wrote. Mr. Frank McGuire July 22, 2014 Page 4 Thestate accurately notes that in its Respondent’s Brief it advanced the argument that becausethe trial court had admitted some ofMorris’s statements “appellant has not demonstratedthat the trial court’s exclusion of evidence under state law violated his federal constitutional rights.” (RSLB 1-2, citing RB 77.) According to the state’s new position,its specific argument that there was no federal constitutional error “would have put appellant on notice”that the state was not just disputing whether there was federal constitutional error but was disputing prejudice as well. (RSLB1-2.) First things first. The irony of the state’s position should not escapethis Court. At oral argument the deputy attorney general who wrote the paragraph on which the state now relies admitted the state had not placed harmlesserror at issue. In other words, the very same paragraph which the state now claims should “have put appellant on notice” that the state was raising harmless error did not even put the deputy attorney general who wrote the paragraph on noticethat she herselfhad raised harmless error. Charitably put, the state’s suggestion that Mr. Grimes should have gleaned from this paragraph what the author herself did not requires an unfair prescience on the part of appellant’s counsel. Nordoes the actual language of Respondent’s Brief remotely support the state’s new position. As noted above, in this section ofits brief the state argued that becausethetrial court did not exclude.all-of Morris’s statements “appellant has not demonstrated that the trial court’s exclusion of evidence understate law violated the federal constitution.” (RB 77.) The meaning of this argumentis plain: the state was not making a harmless error argumentat all, but was arguing that because someof Morris’s statements were admitted, the court’s ruling did not rise to the level of a federal constitutional violation. As the state’s frank concession at oral argument suggests, recharacterizing this argument now with the benefit of hindsight (and the Court’s request for supplemental briefing) does not change what all parties know wasactually argued. In short, when the state wanted to raise an alternative harmless error argument,it knew howto do so. It argued that there was no prejudice, orit argued that any assumed error was harmless,or it cited Watson,or it cited Chapman. Or it did all of these. (RB 95, 156-157, 162, 165-166, 191-192, 201.) Whatit did not do was fail to mention prejudice, harmless error, Watson or Chapman andinstead argue simply that an errordid not “violate the federal constitution.” Mr. Frank McGuire July 22, 2014 Page 5 Thestate gotit right at oral argument. It never raised harmlesserrorinits brief.’ B. The Fact That The Attorney General Injected Harmless Error At Oral Argument Has No Bearing On The Question Of Forfeiture For Failing To Brief Harmless Error. Thestate accurately notes that it disputed harmlesserror at oral argument“before the matter was submitted.” (RSLB 2.) Thestate suggests that any failure “to comply with court rules concerning the content and form ofbriefs” has therefore been cured because the harmless error argument wasorally raised “before the matterwasinitially submitted.” (RSLB 2.) The state cites no authority in support of its position. This argument should not long detain the Court. The state does not dispute that where a defendant hasfailed to raise an argumentin his principalbrief, the argumenthas been forfeited, and the reviewing court should not grant relief based on such an argument precisely because the state never hada fair chance to respond. (RSLBat 1-5; see People v. Duff(2014) 58 Cal.4th 527, 550, fn.9; People v. Gonzales (2011) 51 Cal.4th 894, 957 fn.37; People v. Harris (2008) 43 Cal.4th 1269, 1290; People v. Alvarez (1996) 14 Cal.4th 155, 241 fn.38.) Nor does the state dispute that where a defendanttries to raise an issue for the first time at oral argument-- evenifit is “before the matter [is] submitted” -- the argumentis forfeited, and the reviewing court should not grant relief based on such an argumentbecausethe state has not had a fair chance to respond. (RSBLat1-5; see, e.g., People v. Crow (1993) 6 Cal.4th 952, 960 fn.7; People v. Dixon (2007) 153 Cal.App.4th 985, 996; People v. Norman (1999) 75 Cal.App.4th 1234, 1241 fn.4; People v. Cardenas (1997) 53 Cal.App.4th 240, 248 fn. 4.) Mr. Grimeswill be clear about his position. The state never explains whyit alone amongall litigants in the state should not be subject to the samerulesthat apply to ' In evaluating the state’s most recent position, it is worth noting that in contrast to the two sentences which the state now says comprised its harmless error argumentin the Respondent’s Brief, the state’s current harmless error argument comprises 15 single-spaced pages, refers both to prejudice and harmless error and cites both Watson and Chapman. The suggestion that the state raised this harmless error argument in Respondent’s Brief is made not by relying on what the state actually wrote in Respondent’s Brief, but by ignoring it almostentirely. Mr. Frank McGuire July 22, 2014 Page 6 everyoneelse. No logical reason exists. The rule the state seeks here -- in which it is allowed to raise arguments for the first time at oral argument“before the matter[is] submitted” -- has never been the rule in California. It should not be the rule now. But if the Court is inclined to depart from its longstanding approach-- and permit parties to raise arguments for the first time at oral argument -- then that rule should apply to both the state and the defense.’ C. Although There Is NoForfeiture As To State Law, The State has Forfeited The Harmless Error Argument As To Federal Law. Thestate argues alternatively that even if it did omit a harmless error argument from its brief, and even if that omission wasnot cured by seekingto raise the issue for the first time at oral argument, there is no forfeiture either (1) as to errors of state law which require the defendantto prove the error prejudicial or (2) as to errors of federal law which require the state to prove the error harmless. (RSLB 3 [state law errors], 3-5 [federal law errors].) Thestate is partially right and partially wrong. As Mr. Grimesrecognizedin his initial brief, as to errors of state law raised in an appeal, the state is correct. (See Appellant’s Supplemental Letter Brief (““ASLB”) 2 Thestate addsthat it “explicitly stated at oral argument that any omission of a harmless error argumentin the answer brief should not be interpreted as a forfeiture.” (RSLB 2.) This is true. But the legal relevance ofthis observationis difficult to fathom. The ability of a party to raise an argumentfor the first timeat oral argument has never depended on an inquiry into whetherthe party subjectively intendedto forfeit the argument whenit failed to raise the argumentin its principal brief. It almost goes without saying that the state cites no case from anywhere advancing such a proposition. Yet again, however, if the Court is inclined to carve out a new rulein this area -- and permit parties to raise arguments for the first time at oral argumentso long as they assure the Court at oral argumentthat they never intended to forfeit anything -- then that rule should apply to both the state and the defense. This will, of course, dramatically change both briefing andoral argument. Mr. Frank McGuire July 22, 2014 Page 7 7-8.) The state correctly notes that as to state-law errors, “appellant. . . [has the] burden to demonstrate prejudice.” (RSLB 3.) Thestate correctly reasons that since the burden of proving prejudice as to state-law errors remains with the defense, the state’s omission of harmless error from its principal brief does not forfeit the state-law issue. (RSLB 3; see ASLB 7-8.) As Mr.Grimesalso notedin his initial brief, in this situation the Court must take several procedural steps to avoid providing the state with a windfall whenthe state omits harmlesserror from its briefing. Thus, the Court may not become an advocate for one side, but instead must offer both sides the opportunity to (1) brief the harmless error issue and (2) orally argue the issue onceit is fully briefed. Any other approach permits the state to actually profit from omitting harmless error from its brief, by depriving a defendant of the opportunity for responsivebriefing and responsive oral argument.’ . Asto errors of federal law raised on appeal, however, the state is wrong. Indeed, the very samerationale which the state correctly employs to show there was no forfeiture as to state-law errors -- an analysis of the burden of proof in showing prejudice -- shows whythe state is wrong. The state recognizes, as it must, that the burden as to prejudice in connection with errors of federal law on appealis very different from the burden imposedas to state-law errors. In contrast to state-law errors (where the burdenis placed on the defense to affirmatively show prejudice), federal constitutional errors put the burden onthestate to prove that a particular error was harmless. (RSLB 4;see Chapmanv. California (1967) 386 U.S. 18, 24 [holding that “the beneficiary of a constitutional error [must] . . . prove beyond a reasonable doubtthat the error complained ofdid not contribute to the verdict obtained.”]. Accord Arizonav. Fulminante (1991) 499 U.S. 279, 295; Satterwhite v. Texas (1988) 486 U.S. 249, 258; Rose v. Clark (1986) 478 U.S. 570, 586.) 3 In a footnote the state suggests that it has a “strong adversarial incentive, without the threat of forfeiture, to argue harmless error.” (RSLB 5, fn. 1.) That very well may be. The procedural protections discussed above-- providing the parties with an opportunity for both adversarial briefing andoral argumentafter the argumentis fully briefed -- ensure that the state has no similarly “strong adversarial incentive” to obtain a tactical advantage by omitting harmless error from its briefs. . Mr. Frank McGuire July 22, 2014 Page 8 Given the clarity of the Supreme Court’s language in Chapman andits progeny, there should be no doubt that whenthere is a federal constitutional error on direct appeal, the state has the burden ofproving the error harmless and it must do so beyond a reasonable doubt. Despite this clear language, however, the state actually suggests there is a doubt as to this fundamental principle. Thestate cites O’Neal v. McAninch (1995) 513 U.S. 432 for the proposition that “confusion .. . arises when a prejudice determination is discussed in terms of a party’s burden of proof.” (RSLB 4.) The application of Chapmanto federal constitutional errorsis really not all that confusing. Indeed, O’Neal did not even involve the standard of prejudice to be applied to constitutional errors on direct appeal. Instead, it involved application of a more deferential standard of prejudice applied to such errors in federal habeas proceedings. That is why in cases after O ‘Neal, neither this Court nor the United States Supreme Court has expressed any “confusion”at all on this issue: errors of federal law raised on direct appeal place the burden squarely on the state to prove the error harmless beyond a reasonable doubt. (See, e.g., Sullivan v. Louisiana (1993) 508 U.S. 275, 278; People v. Neal (2003) 31 Cal.4th 63, 86.)* Andbecausethe burden ofproving a federal constitutional error harmlessis on the state, as state and federal courts around the country have concluded,thestate’s failure to even offer an argumentin its principal briefto satisfy that burden forfeits the issue on appeal. (See, e.g., State v. Almaraz (Id. 2013) 301 P.3d 242, 256-257; Polk v. State (Nev. 2010) 233 P.3d 357, 359-361; United States v. Davis (3rd Cir. 2013) 726 F.3d 434, 445, fn.8; Hargrave v. McKee (6th Cir. 2007) 248 Fed.Appx. 718, 729; United States v. Gonzales-Flores (9th Cir. 2005) 418 F.3d 1093, 110; United States v. Cacho-Bonilla (1st Cir. 2005) 404 F.3d 84, 90; United States v. Pablo Varela-Rivera (9th Cir. 2002) 279 F.3d 1174, 1180; United States v. Vallejo (9th Cir. 2001) 237 F.3d 1008, 1026; United States v. Montgomery (8th Cir. 1996) 100 F.3d 1404, 1407.) In making a contrary argument, the state does not discuss or even cite any of these 4 Curiously, in arguing there was no forfeiture as to any state-law error which occurred here, the state expressed no “confusion”at all in asserting -- correctly -- that “appellant . . . [has the] burden to demonstrate prejudice.” (RSLB 3.) The state’s apparentthesis is that burdens of proof in connection with prejudice only cause “‘confusion” in connection with federal law. Mr. Frank McGuire July 22, 2014 Page 9 cases. Instead, the state argues that in assessing harmlesserror, a reviewing court is obligated to review the trial record. Implicit in the state’s argumentis thatthis obligation to review thetrial record exists regardless of whetherthe state elects to argue harmless error. The state cites three cases to support its position. (RSLB 4, citing Arizona v. Fulminante (1991) 499 U.S. 279, 297, People v. Aranda (2012) 55 Cal.4th 342, 367 and People v. Cahill (1993) 5 Cal.4th 478, 482.) In each of these cases the reviewing courts madeclear that in assessing prejudice, it was proper to review thetrial record. Noneofthese cases come even remotely close to supporting the state’s hypothesis. In none ofthese cases did the state seek to inject harmlesserror into the case for the first time at oral argument without ever having briefed it. Rather, in each of these cases the state presented the harmlesserrorissuein its briefs, and the defendant responded in writing prior to oral argument. (See Arizonav. Fulminante, Petitioner’s Brief on the Merits, 1990 WL 507415 at * 14-20; Arizona v. Fulminante, Respondent’s Brief on the Merits, 1990 WL 507414 at * 28-31; People v. Aranda, Appellant’s Opening Brief on the Merits, 2011 WL 4014410at * 63-64; People v. Aranda, Respondent’s Brief on the Merits, 2011 WL 6841142 at * 37-40; People v. Cahill, Appellant’s New Brief on the Merits, 1991 WL 11014960 at * 60-74; People v. Cahill, Respondent’s New Brief on the Merits, 1991 WL 11014959 at * 31-34.) Thus, any decision by the reviewing courts in these cases to examinethe trial record says nothing at all about whether such review is required when the state elects not to brief harmlesserror. In the final analysis, the forfeiture question as to errors of federal law is simple. The state had the burden of proofonthis issue andit did not dispute the issue. The state gives no reason whyit alone shouldbetreated differently from every other litigant in the adversary system whofails to properly raise an argument. No reason exists. The state has forfeited the issue. Il. The Trial Court’s Erroneous Exclusion Of John Morris’s Statements Requires Reversal Of The Special Circumstances And Death Sentence. A. The Special Circumstance. Attrial, the state called Jonathan Howeto testify. Howetestified that Mr. Grimes confessed “that he ordered . . . Morris to kill” Ms. Bone. (31 RT 8380.) Howe also told police that Grimessaid he (1) “was standing there watching [the killing]” and (2) “enjoyed watching it.” (31 RT 8501.) Mr. Frank McGuire July 22, 2014 Page 10 Because Grimes wasnot the actual killer, the jury could not find the special circumstanceallegations true unless the state proved Mr. Grimeseither (1) aided the felonies with a specific intent to kill or (2) was a major participantin the felonies who acted with a reckless indifference to human life. (Tison v. Arizona (1987) 481 U.S. 137, 158.) Attrial, the prosecutor relied on both the intent to kill and reckless disregard theories. (35 RT 9212-9213, 9293-9294 [intentto kill] and 35 RT 9203-9211 [reckless indifference theory].) According to the prosecutor herself, her intent-to-kill theory relied “primarily” on Howe’s testimony that Mr. Grimes“wentinto the residence with Wilson and Morris and he told them to tie up and kill Betty Bone.” (35 RT 9212-9513.) The defense sought to impeach Howebyintroducing statements from Morris. Although the court admitted evidence that Morris admitted stabbing Ms. Bone, the trial court excluded Morris’s statements to Lawson that Grimes was “in the house but took nopart in the actualkilling and [was] in some other placein the house.” (24 RT 6747, 6797.) The court also excluded Morris’s statements to Abbott that (1) Grimes “did not take part in the killing,” (2) Mr. Grimes had not“participated in the killing” and (3) after he “did the lady” Mr. Grimes “lookedat him asif [he] were saying, what in the hell are you doing, dude.” (24 RT 6750, 6797.) In his July 16, 2014 brief (as well as his Appellant’s Opening Brief), Mr. Grimes contended that exclusion of Morris’s statements to Misty Abbott and Albert Lawsonrequired reversal of the special circumstance verdicts. (ASLB 11-14.) Mr. Grimes’s thesis was not complicated: the excluded evidence would have directly rebutted Howe’s testimony. Morris told Abbott that when Grimes saw what he (Morris) had done, he (Grimes) was shocked at what had happened. Morris told both Abbott and Lawson that Grimes “took nopart in” the killing and had not “participated in the killing.” Taken together, this evidence would have supported the defense thesis that Mr. Grimes had “no part in” planning the killing, nor did he even see it happen. Obviously if Grimes had planned for and ordered Morris to kill the victim, he would not have been surprised. In addition, Howe said Grimes admitted watching and enjoying the killing. But Morris said that when hekilled the victim, Grimes was“in the house but took no part in the actual killing and [was] in some other place in the house.” This directly contradicts Howe’s testimony that Grimes saw and enjoyed the killing. Because the prosecutor forthrightly admitted that her intent-to-kill theory for the special circumstance was based on Howe’s testimony, the exclusion of evidence which Mr. Frank McGuire July 22, 2014 Page 11 would have impeached Howecannotbe harmless undereither state or federal law. (ASLB 11-14.) Thestate disagrees. Toits credit, the state concedesthat “to prove that appellant hadthe intent to kill . . . the prosecutorrelied on Jonathan Howe’stestimony . . .” (RSLB 7.) The state also concedes that jurors were told they could find the special circumstance true without agreeing on whether the state had proven an intent to kill or reckless indifference to humanlife. (RSLB 7.) Thusall 12 jurors may have relied on the intent-to-kill theory. Nevertheless, for three reasons the state argues that any error in excluding Morris’s statements was harmless. First, the state argues thetrial court’s exclusion of evidence from Abbott and Lawson was harmless because Abbott and Lawson werenot credible. (RSLB 11- 13.) Second,the state argues that the excluded evidence was cumulative to evidence which was admitted. (RSLB 11, 13-15.) Finally, the state argues that-- in fact -- the excluded evidence does not really impeach the state’s case because “(alppellant’s interpretation of the meaning of the excluded statementsis unsupported by any evidence in the record.” (RSLB 11.) Each of these arguments will be addressed in turn. Each is without merit. Reversal of the special circumstance finding is required. 1. Because assessments of credibility are uniquely within the province of the jury, the state’s suggestion that this Court may find the error harmless byitself finding that Abbott and Lawson werenot credible must be rejected. The state accurately notes that the witnesses to Morris’s statements were Misty Abbott and Albert Lawson. Thestate argues that the trial court’s exclusion of evidence from Ms. Abbott and Mr. Lawsonis harmless because neither witness was worthy of belief. (RSLB 11-13.) The argumenthas no place in this Court. It is, of course, well established that in deciding whether to admit defense evidence in a criminalcase,a trial court may not weighthe credibility of witnesses, a task which is reserved exclusively for the jury. (See, e.g., People v. Cudjo (1993) 6 Cal.4th 585, 607-608; People v. Alcala (1992) 4 Cal.4th 742, 790; People v. Hall (1986) 41 Cal.3d 826, 834.) The state’s argumenthere is that although a trial court may not consider credibility in deciding the admissibility of evidence, a reviewing court may consider credibility in Mr. Frank McGuire July 22, 2014 Page 12 assessing whether the exclusion of evidence wasprejudicial. The United States Supreme Court hasspecifically rejected this approach to Chapman harmless error review. Whena trial court has improperly excluded evidence in violation of the federal constitution, the harmless error inquiry proceedsnotby speculating that jurors would have discredited the excluded testimony, but by assumingthat “the damaging potential of the [evidence] were fully realized.” (See Delaware v. Van Arsdall (1986) 475 U.S. 673, 684. Accord Olden v. Kentucky (1988) 488 U.S. 227, 232 [in applying Chapman wherethetrial court excluded evidence during cross-examination “the correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.”’].)- Just as in Van Arsdall and Olden,in assessing prejudice from thetrial court’s exclusion of evidence, this Court too must assume jurors would have credited the excluded evidence, not ignored or discredited it. Any other approach would be inconsistent with the Sixth Amendmentright to a jury trial. This Court has long reachedan identical conclusion in the context of prejudice. Thus, in assessing prejudice from trial court’s failure to give a properinstruction, the reviewing court “must assumethat the jury might have believed the evidence upon whichtheinstruction . . . was predicated.” (Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 673-674. Accord Clementv. State Reclamation Board (1950) 35 Cal.2d 628, 643-644; Logacz v. Limansky (1999) 71 Cal. App. 4th 1149, 1156. Compare People v. Flannel (1979) 25 Cal.3d 668, 684 [reviewing court maynotassess credibility of defendant’s testimony in assessing whether instructional error occurred, but must assumethe evidenceis credible].) The same approach is warranted here. Even if Van Arsdall, Olden and the California precedents were ignored, however-- and the Court assumedtherole of a juror and inquiredinto credibility -- the inquiry does notaid the state. The state notes that had Abbott’s testimony been introduced, the defense would have “had to walk a difficult line to convince the jury that Abbott was being truthful [as to her defendant-favorable testimony] but that other portions of Abbott’s testimony were unworthyofbelief.” (RSLB 12.) It is certainly a valid observation. But the state never explains why defense counsel’s position would have been any moredifficult then that of the prosecutor. Had Abbott’s testimony been Mr. Frank McGuire July 22, 2014 Page 13 introduced, the prosecutor, too, would have “had to walk a difficult line to convincethe jury that Abbott was being truthful” as to her state-favorable testimony “but that other portions of Abbott’s testimony were unworthy ofbelief.” . (See RSLB 12.) Given that both parties would have faced the identical credibility hurdle as to Abbott, the state never explains howthis carries its burden ofproving the error harmless beyond a reasonable doubt. It doesnot.° 2. The excluded evidence was not cumulative to evidence which was admitted. Thetrial court admitted evidence from Morris that he killed Ms. Bone by stabbing her. (24 RT 6747-6750, 6796, 6798.) The state argues that the excluded evidence ““was cumulative of other evidence already presented to the jury in which Morris - admitted killing Bone... .” (RSLB 11.) Thestate’s argumentreflects a fundamental misunderstanding ofthe factual issues before the jury in connection with both the special circumstance verdicts and the penalty phase decision. It is worth emphasizing here that Mr. Grimesis not arguing that the trial court’s exclusion of evidence requires reversal of his murder conviction. It does not. Underprinciples ofaccompliceliability, the specifics of Mr. Grimes’srole in the actualkilling simply do not matter. Once he wasliable as an accomplice to the underlying robbery and burglary, his guilt of felony murder wasestablished. ° Asto Lawson,the state presents a different credibility argument. Thestate notes that when Lawsoninitially spoke with police in October of 1995, he told them Morris confessedto killing Ms. Bone. When he spoke with police again in March, 1998he recalled that Morris also said Grimes was in another part of the house and took nopart in the killing. (RSLB 12.) Accordingto thestate, because Grimes wasin the samepart of the county jail as Lawsonfor “five or six days” in October 1995, when Lawson spoke with police more than twoyearslater (in March of 1998) Lawson’s recollection of an additional statement wasa lie. (RSLB 12-13.) Given that so much time had passed since Lawson and Grimes had been in the same unit, it seems unlikely that jurors would have accepted the premise that the mentally retarded Grimes had choreographed suchan elaborate, long-delayed remembrance. Certainly the possibility that one or more jurors would have accepted such a theory does not establish harmlessness beyond a reasonable doubt. Mr. Frank McGuire July 22, 2014 Page 14 But as to the special circumstances verdict, because Mr. Grimes wasnotthe actual killer, the jury could not find the special circumstance true withoutfinding either that he intended to kill or harbored a reckless indifference to humanlife. And of course, as to the decision on whether Mr. Grimes wouldliveor die, it wascritical for the jury to know exactly who did whatin connection with the crime. Asto these specific inquiries, the evidence excluded wascertainly not cumulative to that which wasintroduced. As noted, the court introduced Morris’s statements that he fatally stabbed the victim. But the court excluded Morris’s statements that (1) when he killed Ms. Bone, Mr. Grimes was“in the house but took no part in the actual killing and [was] in someother place in the house” (2) Grimes “did not take part in the killing,” (3) Mr. Grimes had not “participated in the killing”and (4) after he “did the lady” Mr. Grimes “looked at him as if [he] were saying, what in the hell are you doing, dude?” (24 RT 6747, 6750, 6797.) With respect to the special circumstance verdicts, the admitted evidencethat Morris stabbed Ms. Bone conveys no specifics about Grimes’s role. In contrast, the excluded evidence conveys information whichis not only in-and-of-itself directly relevant to whether Mr. Grimes harboredeither an intentto kill or a reckless indifference to human life, but which also impeaches the evidence from Howewhich supportedthe state’s intent-to-kill and reckless indifference theories. In short, in light of thestate’s theory of the case, the evidence which was admitted -- that Morris alone killed Ms. Bone-- hadlittle or no probative value in connection with the intent to kill and reckless disregard theories. In contrast, the evidence which was excluded-- that Grimes could not have seen the killing, was elsewhere in the house when it happened, had norole in it and was surprised when he learned aboutit -- was directly relevant to both of these theories. The excluded evidence here was not cumulative to the evidence which was admitted. 3. Not only did the excluded evidence directly undercut Howe’s evidence, but the state’s concession that the excluded evidence would have proved “that appellant... [was] in the house, doing something else, when Morris killed Bone” requires reversal. Thestate alternatively argues that any error in excluding testimony from Abbott and Lawson was harmless because the excluded evidence doesnotreally undercut the state’s case. Thestate basically makes two arguments. In makingthese two Mr. Frank McGuire July 22, 2014 Page 15 arguments, however, the state makes a critical concession. Thestate’s first argumentis that there was no prejudice from thetrial court’s exclusion of Morris’s statements that Mr. Grimesdid not participate in the murder, and wasin anotherpart of the houseat the time. In making this argument, the state concedesthat the excluded evidence (if believed) would have “prove[n] . . . that appellant . . . [was] in the house, doing something else, when Morriskilled Bone.” (RSLB 14.) This concession should end whatever harmlesserror issue has not been forfeited. According to Howe, Grimes said he (1) “was standing there watching [the killing]” and (2) “enjoyed watching it.” (31 RT 8501.) But the state itself now concedes that the trial court excluded evidence which “prove[s] .. . that appellant . .. [was] in the house, doing something else, when Morris killed Bone.” (RSLB 14, emphasis added.) In other words, the state concedes the excluded evidence would have directly impeached Howe. Afterall, if Grimes was “in the house doing something else when Morris killed Bone,” Grimes could not have been “standing there watching” and enjoying the killing as Howetestified. And if Howe was lying when hesaid that Grimes admitted watching and enjoyingthe killing, the jury could certainly find he was also lying about Grimes having ordered the killing. In short, the state’s concession itself shows exactly how the excluded evidence could have been used to rebut Howe’s evidence and credibility. Significantly, the state does not dispute that Howe was importantto the state’s intent-to-kill theory of the special circumstance. Norcouldit -- the prosecutor herself said that the state’s theory depended “primarily” on Howe. (35 RT 9212- 9213.) And becausethe jury rendered a general verdict on the special circumstanceallegation, it is impossible for the state to prove that even a single juror did not actually rely on the intent-to-kill theory. Thus, reversal is required based solely onthetrial court’s exclusion of evidence which would have proved that “appellant . . . [was] in the house, doing something else, when Morris killed Mr. Frank McGuire July 22, 2014 Page 16 Bone.” (RSLB 14.)° The state’s second argumentis that there was no prejudice from thetrial court’s exclusion of Morris’s statement that Grimes was surprised when he saw what Morris had done. The state argues that this evidence “is too vague” and “does not prove that appellant was ‘surprised’ that Morris killed Bone.” (RSLB 14.) The state offers a different interpretation, suggesting Morris really meant: (1) Grimes was“shockedat the brutality of the killing” and “about how Bonewaskilled not that she was killed.” (RSLB 14.) Asaninitial matter, because thetrial court’s exclusion of evidence showingthat 6 Howe’s evidence was also importantto the state’s alternative reckless indifference theory. As a result, excluding evidence which impeached Howe wouldalso taint a reckless indifference verdict. The reckless indifference theory required jurors to determine if Mr. Grimes exhibited a reckless indifference to human life. As noted above, separate and apart from his testimony that Grimes admitted ordering the killing (which was directly relevant to the intent-to-kill theory), Howetold police that Grimes said he “was standing there watching [the killing] and “he enjoyed watching it.” (31 RT 8501.) As the United States Supreme Court has itself concluded, in seeking to prove that an accomplice harbored reckless indifference to humanlife, the state mayrely on evidence showingthat the defendant “watchedthe killing” and then acted to aid the killer but not the victim. (Tison v. Arizona (1987) 481 U.S. 137, 152. See People v. Mora (1995) 39 Cal.App.4th 607, 617 [fact that defendant watchedthe killing, did nothing to stop it and aided the killer supported a finding of reckless indifference to humanlife]; People v. Bustos (1994) 23 Cal.App.4th 1747, 1754 [fact that defendant watched the killing and did nothingto try and stop it supported a finding of reckless indifference].) In light of the case law, the state does not dispute that Howe’s statements were directly relevant to the calculus of whether Mr. Grimes exhibited a reckless indifference to human life. Thus,the trial court’s exclusion of evidence which could have impeached Howe would have been prejudicial evenasto the reckless indifference theory. But because of the general verdict - and the impossibility of determining if even a single juror relied on the reckless indifference theory -- there is no need for the Court to reach this issue here. Mr. Frank McGuire July 22, 2014 Page 17 “appellant . . . [was] in the house, doing something else, when Morris killed Bone” requires reversal for the reason discussed above, there is no need for the Court to reach the separate question of whether excluding this distinct evidence requires reversal too. Nevertheless, and as he did at oral argument, Mr. Grimes recognizes there can be differing interpretations of Morris’s statement that Grimes was surprised when he saw what Morris had done. Twopoints are worth noting. First, the state’s current interpretation takes Morris’s statement entirely out of context, ignoring not only the other statements Morris made, but other facts in the record. Morris did not simply say that Grimes was surprised at what he (Morris) had done. If that was all the record showed,then the state’s suggested interpretation might be considered plausible. But the record shows more than this. The record shows Morris said (1) Grimes took no part in the killing, (2) Grimes was in another part of the house when the killing occurred and (3) Grimes was surprised when he saw what Morris had done. Moreover, the evidence showed Bone was unconscious when Grimes entered the house, and they had given false names when they cameto the door of Ms. Bone’s house. Thus, not only was there no needto kill, but the use of false names would have been unnecessary if a killing had even been anticipated. In context, the more reasonable interpretation ofMorris’s statementis that Grimes was not making a comment on the mannerofkilling but on the fact that Bone had been killed. That is why Grimes was surprised at what Morris had done. But even putting aside the logic of Mr. Grimes’s position, and assuming arguendo that the state suggested an alternative interpretation which was equally plausible, reversal would be required. Evenifthe state’s explanation was equally plausible, the existence of an equally plausible (and state-friendly) explanation for excluded evidence doesnot carry the state’s burden ofproving error in excluding that testimony harmless beyond a reasonable doubt. 4. Summary. In the final analysis, the harmless error argument hereis straightforward. The only genuineissue for the jury in connection with the specialcircumstance verdict was whether Mr. Grimeseither intendedto kill or harbored reckless indifference to human life. The state introduced statements from jailhouse informant Howethat Mr. Grimes(1) concededhe “ordered . . . Morris to kill” Ms. Bone, (2) admitted “standing there watching [the killing]” and (3) confessed that “he enjoyed Mr. Frank McGuire July 22, 2014 Page 18 watchingit.” (31 RT 8380, 8501.) The state itself now concedes that the excluded evidence would have permitted Mr. Grimes to rebut Howe’s evidence and credibility. Given the importance the prosecution itself placed on Howein the determination of special circumstances, and the fact that the jury rendered a general verdict which did not indicate what theory any ofthe jurors relied on, the error requires reversal underany standard ofprejudice. B. The Death Sentence. In deciding whether Mr. Grimes should live or die, the jury was told to consider the “circumstances of the crime.” Based on Howe’s statements, the jury deciding whether Mr. Grimes wouldlive or die knew that Mr. Grimes admitted (1) ordering Wilsonto kill the victim, (2) watching Morrisas he killed the victim, and (3) enjoying watching the killing. In urging the jury to impose death the prosecutor referenced “Mr. Howe’s statement” and told jurors that the defense had “never given you a reason to doubt [Howe’s] testimony.” (41 RT 10879.) In his supplementalletter brief, Mr. Grimes contended that evidence he orderedthe killing, watched it and enjoyed it pointed unmistakably and powerfully to death. (ASLB 12.) The evidence excluded -- showing that Morris admitted Grimes did not see the killing, was elsewhere in the house when it occurred and was surprised byit -- rebutted each of these terribly prejudicial circumstances ofthe crime. As such, Mr. Grimes contended that even if the special.circumstance did not have to be reversed, reversal of the death verdict was required. (ASLB 14-15.) Thestate does not dispute that the deliberating penalty phase jurors were presented with evidence from Howethat Grimes admitted ordering, watching and enjoying the killing. (RSLB 15-19.) Nor does the state dispute that this evidence points to death. (RSLB 15-19.) And as noted above, the state recognizes that Howe could have been impeached with the excluded evidencesinceit “prove[s] . . . that appellant .. . [was] in the house, doing something else, when Morris killed Bone.” (RSLB 14.) Nevertheless, the state argues the trial court’s exclusion of impeaching evidence does not require reversal of the penalty phase for two main reasons. Thestate repeats its argument that any error was harmless because Abbott and Lawson werenot credible. (RSLB 15, 19.) Because Mr. Grimes has addressed this issue above, there is no need to repeat that discussion. Suffice it to say here that both this Court and the United States Supreme Court have longrejected this Mr. Frank McGuire © July 22, 2014 Page 19 approach to harmlesserror review. Thestate then argues that the prosecutor did not rely on Howein herclosing argument asking the jury to impose death. (RSLB 15-17, 19.) As noted above, the argument is simply wrong; respondentitself concedes elsewhere inits brief, and as the record shows, during her closing argumentin the penalty phase the prosecutor specifically referenced “Mr. Howe’s statement” and told jurors that the defense had “never given you a reason to doubt” Howe. (41 RT 10879. See RSLB 18.) But even putting this aside -- and assuming the prosecutor had notspecifically referenced Howe’s testimony during her penalty phase closing argument-- reversal would still be required. Forall the jury knew, Howe wasright when he testified that Grimes ordered, watched and enjoyedthe killing. If Abbott and Lawson are believed, however, Howe waslying; Morris said Grimesdid not see the killing, was elsewhere in the house whenit occurred and wassurprised byit. It does not matter whether the prosecutor focused the jury’s attention on Howe’s devastating statements. As Justice Brown noted sometime ago,a “Juroris not somekind of a dithering nincompoop, brought in from never-never land... .” (People v. Guiuan (1998) 18 Cal.4th 558, 578 [Brown,J., concurring and dissenting].) The jurors heard this plainly aggravating evidence of the worst sort. They did not need a road map. Exclusion of defense evidence which rebutted this evidence wasnot harmless under any standard.’ 7 The state adds that “Howe’s testimony that appellant ordered Morris and Wilson to tie up and kill Bone wasnotpart of the prosecution’s case in aggravation.” (RSLB 19.) As a factual matter the assertion is difficult to follow; Howe’s testimony wascertainly not part of the defense case in mitigation. The state may have meantto say that Howe’s testimony wasnot formally introduced as aggravating evidence at the penalty phase, but instead came in at the guilt phase. If so, as a legal matter the assertion is equally difficult to follow. In accord with standard jury instructions, the jury here wasspecifically told that in deciding what penalty to impose, it was to consider “evidence which has been received during any part ofthetrial of this case.” (41 RT 10801.) Mr. Frank McGuire July 22, 2014 Page 20 II. The Trial Court’s Erroneous Exclusion Of Morris’s Statements That Mr. Grimes WasNot Involved In The Actual Killing Requires Reversal Of The Special Circumstance Findings And Death Sentence. In his July 16, 2014 supplemental brief, Mr. Grimes arguedthat evenifthe trial court’s error was simply in excluding the statements about Mr. Grimes’s actual role in the killing, reversal of both the special circumstance and penalty phasesis still required. (ASLB 15-16.) In its supplementalbriefthe state argues that any errors were harmless, incorporating its “analysis in question 2.” Becausethat analysis has already been discussed, no further reply is necessary. The state’s recognition that the excluded evidence “prove[s] . . . that appellant. . [was] in the house, doing something else,when Morris killed Bone” showsthat even the narrowerruling whichis the subject of the Court’s third question involved the exclusion of evidence which would have allowed defense counsel to attack Howe’s credibility. On the record ofthis case, for the same reasons discussed above, the erroneous exclusion of such evidenceis prejudicial as to both the special circumstance verdict and the penalty phase undereitherstate or federal law. HLFsubmitted, iff Gardner CERTIFICATE OF SERVICE I, the undersigned, declare as follows: I am a citizen of the United States, over the age of 18 years and not a party to the within action. My business address is 1448 San Pablo Avenue, Berkeley, California 94702. I am nota party to this action. On July 22, 2014, I served the within PEOPLE V. GRIMES, 8076339, SUPPLEMENTAL BRIEF(7-22-14) upon the parties named below by depositing a true copy in a United States mailbox in Berkeley, California, in a sealed envelope, postage prepaid, and addressed as follows: Shasta County Superior Court 1500 Court Street Redding, California 96001 Shasta County District Attorney 1525 Court Street Redding, California 96001 Mr. Gary Grimes CDC:P-27200 San Quentin State Prison San Quentin, California 94974 California Appellate Project 101 Second Street Suite 600 San Francisco, California 94105 Stephanie Mitchell Office of the Attorney General P.O. Box 944255 Sacramento, California 94244-2550 I declare underpenalty ofperjury that the foregoing is true. Executed on July 22, 2014, in Berkeley, California. LkDy