People v. Smothers ( 2021 )

Filed 7/20/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A156081
v.
SHERILL LYNN SMOTHERS, (Contra Costa County
Super. Ct. No. 51613181)
Defendant and Appellant.
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.
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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.
2
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
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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.
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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
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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 examined the
swab and developed Sennett’s DNA profile. On August 10, 2018, while trial
was underway but before opening statements, the Crime Lab concluded that
Sennett’s DNA profile was included in the partial DNA profile deduced from
Carter’s fingernail scrapings. Sennett is Caucasian. According to the Crime
Lab, the probability of encountering a Caucasian with a DNA profile that can
1 The second hit was the result of clerical error, and that match was
subsequently excluded.
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be included in the partial profile, when that individual is drawn at random
from a population of unrelated individuals, was 1 in 2.4 million.
On August 20, 2018, the court granted Smothers’s motion, allowing him
to present any third-party culpability evidence related to Sennett’s DNA. In
ruling, the court explained, “I think the DNA evidence relating to Mr.
Sennett is admissible because it could create reasonable doubt as to the
defendant’s guilt. I think a reasonable argument is that whoever it is,
whether it’s Mr. Sennett or a third male, unidentified, whoever’s DNA is
under the victim’s fingernails if there is a male under her fingernails, may
very well be the person who killed her because of the defensive wounds and
the broken fingernails. [¶] . . . It’s a circumstantial connection of a third-
party, whether it’s Mr. Sennett or not, to the perpetration of the crime, and I
think the defense is entitled to present it.” Opening statements and witness
testimony followed.
B. Travis Carter, Jr. Testimony on Mother’s Disappearance
The prosecution’s first witness was Carter’s second eldest son, 44-year
old Travis Carter, Jr., who was nine years old at the time of his mother’s
death.
In 1983, the family was living in a single-family home in Richmond. An
uncle lived with them, and another woman lived there as a roommate.
Carter worked during the day and attended school in the evenings. At home,
she ran an organized operation which emphasized timeliness and cleanliness.
The older boys maintained regimented chore schedules which included
washing dishes daily, tidying their rooms, cleaning the two bathrooms in the
house twice a week, and vacuuming regularly.
Sometime in the spring or summer of 1983, Carter and Smothers began
dating. Around this time, Smothers came over to the house two or three
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times a week and occasionally spent the night. In the fall of 1983, they broke
up. Smothers tried to reunite with Carter and came to the house a few times
in the months after the break-up, but Travis rarely saw Smothers during this
period.
By early December 1983, Travis’s uncle and the roommate had moved
out. In early December 1983, Travis saw Smothers come by the house daily
over the course of a three-day period. By this time, it had been months since
Smothers had actually spent the night at the house. The visits upset his
mother to the point where Travis and his brothers were scared.
The first of these visits came on Sunday, December 4th. That day,
Smothers stopped by the house and spoke with Carter at the front door but
Travis could not definitively say Smothers ever entered the house that day.
For a while, his mother and Smothers talked normally, but the conversation
soon became disagreeable. Carter blamed Smothers for vandalizing her car,
which Smothers denied. The conversation lasted between 5 and 15 minutes,
before Carter shut the door in Smothers’s face.
The next day, Monday, December 5th, Smothers returned. He had gifts
for the boys and came inside for 30 minutes or an hour.
On Tuesday, December 6th, around 6:00 p.m., Smothers returned to the
house and briefly visited with Carter at the front door. The boys
eavesdropped on the conversation, and Travis heard his mother say, “You
know what, this just isn’t going to work, it’s not going to work.” Smothers
responded, “You know, I think we can work this out. I think we can do this.”
After a couple of minutes, she slammed the door on him and Smothers left.
About an hour to an hour-and-a-half later, the phone rang and Travis
answered. The caller was a man, but Travis did not recognize his voice and
passed the phone to his mother as the caller requested. Travis heard his
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mother say, “This is just not going to work out. We just don’t get along.” He
did not remember how long the call lasted although phone records indicated
the call was 71 minutes long.
That night, Travis went to bed in the room he shared with his younger
brother. He did not hear any unusual noises during his sleep.
On the morning of Wednesday, December 7th, Travis woke around 6:00
or 6:30 a.m. to the sound of a “car pulling off” but stayed in bed. Travis’s
brother got out of bed and left the room. He came back and said, “Mom’s
gone.”
Travis got up, thinking it was odd his mother was gone because it was
inconsistent with the usual routine. The entire house, which was normally
“[v]ery tidy,” was “ransacked.” The front and back doors were open, and
telephone lines were cut.
Travis, along with two of his brothers, made their way to their mother’s
bedroom. Upon entering the room, they saw “blood everywhere . . . [¶] . . .
lots of blood,” though at the time they did know it was blood. Travis looked
under his mother’s bed for a machete and knife Smothers had given his
mother but did not see them. Nor could he find his baby brother.
The three boys ran across the street to a neighbor’s house. The
neighbor called the police, who soon arrived at the scene.
On cross-examination, Travis acknowledged that he and his brothers
were regularly attending school in the weeks and months prior to their
mother’s murder. He agreed that if someone came over to visit while he was
at school, he would not have known. Sometimes, Travis also stayed overnight
with his father, so would not know whether his mother had a visitor over
while he was with his father.
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Travis further acknowledged that when he was interviewed by police
officers on December 7th, he told them that on one of the nights between
December 4th and December 6th, Smothers had stayed for an extended
period, perhaps until morning. He acknowledged that he did not know if
Smothers was at the house for 15 minutes or 4 hours on December 4th, but
said it was hard for him to think that Smothers stayed a long time because
they were scared of him. He also stated that other than his father, who had
since died, he had never told anyone previously he was afraid of Smothers.
Asked to look at a picture of the common bathroom taken on December
7th, he acknowledged there was an ashtray with debris even if no one who
was living at the house at the time smoked. After seeing pictures of beneath
the bed, he also acknowledged the machete was still there.
C. Police Response/Evidence Collection at the Carter House
Numerous Richmond Police Department officers responded to the
neighbor’s call that day. These included Louis Bajza, who was the lead
detective on the case; Richard Terry, a homicide detective; Robert Louis
Flores, an officer; and Wayne Cunningham, the crime scene investigator.
Three decades later, these officers, all since retired from the Department,
testified at the trial.
Officer Flores was the first officer to reach the Carter house that
morning. After speaking with the neighbor, Officer Flores entered the home
through the open front door. Alerted by the neighbor, he went to the master
bedroom and found it a “bloody mess.” There were bloodstains on the
mattress and blood spatter on the pillows and on boxes in the room.
Officer Flores had been told that Carter’s youngest son was missing, so
he was on the lookout for the infant. He found him appearing physically
10
unharmed lying on his stomach underneath the bed in the master bedroom.
With the help of other first responders, he removed the baby from the house.
Responding officers who testified at trial also recalled the house was in
disarray. The back door to the porch was open. The kitchen telephone was
off the hook and on the floor, and the cord had been cut or torn. Officer
Flores looked but found no signs of forced entry.
Officers also saw spots of blood outside the house. There was a spot of
blood on the back porch steps and blood on the driveway in front of the
garage door.
Inside, officers saw significant blood stains and spatter throughout the
master bedroom, including on the bed and floor. In the bathroom attached to
the master bedroom, responding officers observed what appeared to be blood,
too. Detective Bajza saw in the sink “what appeared to be red spots, possibly
blood spots.” Officer Cunningham saw the spots, too. Neither could
remember whether these spots in the sink were wet or dry. In addition,
Detective Bajza observed that beneath a hanging white towel, there was a
damp light blue nightgown with a red stain that “appeared to be blood.” On
the wall, there was also a spot that appeared to be blood.
As the crime scene investigator, Officer Cunningham was the evidence
technician, and he collected and preserved evidence. Outside the house, he
collected a shoeprint left on a piece of cardboard. He also collected swabs of
the red substance found on the driveway and on the back porch. Inside, he
collected the mattress cover next to the bed, congealed blood from the carpet,
and swabs from the blood on the bed. From the master bathroom, he
collected the nightgown, and took samples of the substance in the sink and on
the wall. He confirmed that photos no longer existed of the blood spots in the
master bathroom sink because they had gone missing. The only bathroom
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photo that remained was of the common bathroom, which depicted an
ashtray with a cigarette butt on the counter. In addition, Carter’s car was
missing.
Detective Terry interviewed Travis. He prepared a report of his
interview, which he was asked about on cross-examination. Based on his
report, Terry confirmed that during the 1983 interview Travis had told him
that Smothers had stayed late on December 5th. He said that the first
argument between Carter and Smothers that Travis told him about occurred
on December 6th. Travis also told Detective Terry he thought the man who
called on December 6th was his youngest brother’s father, but really was not
sure who it was. In addition, he told Terry that in the early morning of
December 7th, he woke sometime between 4:00 and 5:00 a.m., got up, used
the bathroom, and saw his mother and brother still on the living room couch.
He also said his baby brother’s cries woke him that morning.
D. Initial Police Investigation and Discovery of Carter’s Body
On December 8th, Detective Bajza spoke to Smothers at his parents’
house, where he lived. When they spoke, Detective Bajza did not observe any
cuts on or injuries to Smothers’s hands or face. After obtaining Smothers’s
consent, Bajza searched his room. He did not find anything connecting
Smothers to Carter’s disappearance.
On December 17th, Carter’s car was found in a motel parking lot in
West Sacramento off of Highway 80. Carter’s body was in the trunk. She
was fully clothed. The discovery of Carter’s body in the car in the motel
parking lot was reported in the local news.
Dr. Ransdell was the pathologist who performed the autopsy the same
day the body was discovered. At trial, Dr. Ransdell was unavailable (he had
since died), so Dr. Arnold Josselson, a forensic pathologist, testified about the
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autopsy though he did not personally conduct it. Dr. Josselson based his
testimony on his review of Dr. Ransdell’s report, the coroner’s investigative
report, and photos of the 1983 autopsy.
Dr. Josselson observed deep wounds to Carter’s body, some of which
were almost certainly inflicted with a knife. He also observed some
superficial wounds consistent with a knife but he could not conclude that
another sharp instrument did not cause them. There was also a large incised
wound in the left lower portion of her chin caused by a sharp object.
Dr. Josselson noted defensive wounds on Carter’s hands and forearms, which
he characterized as sharp-force injuries suffered as she attempted to ward off
the attack.
He detailed injuries to Carter’s neck. Her larynx, or voice box, suffered
a sharp-force injury that prevented her from screaming or talking. On each
side of her neck, there were two sharp-force injuries across the carotid artery,
which supplies about 75% of the blood to the brain. It was Dr. Josselson’s
opinion that Carter bled to death. Once her carotid artery was cut, she
rapidly lost blood and then lost consciousness. Within minutes, she likely
died.
On cross-examination, Dr. Josselson was asked about one of Carter’s
fingernails, which based on a photo, appeared to be broken. There also
appeared to be blood in the area where the nail broke but he could not say
whose blood it was. In light of the blood, this could have been a defensive
wound possibly caused by Carter scratching or coming into some other
contact with her attacker. Dr. Josselson agreed that the area under the nail
could trap someone else’s DNA, and that it was common practice for
pathologists to take scrapings from underneath fingernails to look for DNA
from the perpetrator.
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Detective Bajza, who attended the autopsy, described some of what he
saw. He, too, confirmed that Carter suffered numerous stab wounds and
cuts. He also noticed one of Carter’s hands had been clasping several strands
of hair, which were collected. The criminalist from the Department of Justice
who analyzed the hair concluded it could not be excluded as having come
from Carter or one of her relatives. The criminalist also concluded that
Smothers and Mayfield could be excluded as a source of the DNA of the hair
strands in Carter’s hands.
Detective Bajza also confirmed that a rape examination kit was
collected at the autopsy. The criminalist with the Crime Lab who analyzed
the kit found no semen or foreign pubic hair present.
E. Ongoing Police Investigation Leads to Calvin Featherson
Meanwhile, the police investigation brought officers to Calvin
Featherson, who contacted the police and was interviewed by officers on
December 18th, the day of or day after Carter’s body was found and reported
in the news.
Detective Bajza and another detective conducted the interview, which
took place in the middle of the night and was recorded. The recording was
played to the jury, and a transcript of it was also admitted into evidence.
While many of Featherson’s statements were unintelligible, he shared with
the detectives the following information.
By 1983, Featherson had known Smothers for about 15 years. They
lived on the same block in Oakland. One day, Featherson returned home and
saw Smothers standing on his porch ringing his doorbell. Smothers asked
him if he could kill someone. Smothers never told Featherson the name of
the woman he wanted to kill, only that she lived in Richmond. Featherson
suggested Smothers reach out to Martin Mayfield, a mutual friend in the
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neighborhood who they had known for a long time and who Smothers had
already been trying to find for a couple days. If Featherson ever ran into
Mayfield, Smothers asked Featherson to let Mayfield know he was looking for
him.
In this interview, it was not clear whether Featherson agreed to
Smothers’s request for help. Whether Featherson agreed or not, he shared
details with officers about Smothers’s plan.
According to Featherson, Smothers was going to persuade Carter to let
him inside the house, and once in, he would manage to unlock the back door.
Upon receiving a signal from Smothers, Featherson was supposed to come in
the back door and then “he wanted her strangled. He was gonna hold her
(nose or somethin’) and I strangle her.” Smothers told him “he didn’t wanna
leave nothin’ messed up. Nothin’. Uh, (If anything) act like it was, like, a
burglary, takin’ the stereo or somethin’, you know, act like it was somebody
broke in the house and – and not lookin’ to kill.”
After they killed her, Smothers told him that they would put her body
in the trunk of her car. Smothers would drive Carter’s car, and Featherson
was supposed to follow driving Smothers’s car. They would get on Highway
80, take the body to Sacramento, and “get off on [the] west – something” exit.
Smothers planned on leaving Carter’s car in a hotel parking lot and then
taking off with Featherson in his car. Later, Featherson added that
Smothers told him to tell Mayfield that if all three of them were involved,
Featherson was going to do the driving, and Mayfield and Smothers were
“gonna do – do the thing.”
Featherson added that on the same day Smothers approached him for
help, he accompanied Smothers to downtown Oakland to what Featherson
understood to be Smothers’s bank. Smothers went inside the building, got a
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map, and came out to rejoin Featherson who was waiting in the car where
they reviewed the map. Featherson said Smothers pointed out Highway 80
and the Jefferson exit and asked whether he could handle the job. Asked
when Smothers reviewed the map with him, Featherson stated “maybe a
couple of days” before he planned the murder. Asked again, Featherson
stated, “I’ll say a day before the (event).”
Asked whether the murder had been planned to take place at night,
Featherson replied, “Um, y-heah, sometime when the kid’s asleep, (now)
exactly what he told me, ‘When the kid go to sleep.’ Or something’ like that.”
When asked if Smothers worked nights, Featherson said he delivered
newspapers at 3:00 to 4:00 in the morning, and that Smothers said he had to
work. That meant “[i]t was either the Thursday or a Sunday ‘cause he (had
to work).”
On the night Smothers asked him for help, Featherson made audio
“tapes of what’s real” and gave them to his friend, Ragon “Little Guy” Magee.
He instructed Magee, “ ‘If anything happen to me, then you send this tape
off.’ ”
Some evening later, around 10 p.m., Featherson got a call from
Smothers, who asked whether he was going to help him out. Featherson said
no. After the call, he went outside and saw Smothers and Mayfield sitting in
Smothers’s car laughing together. He said Smothers asked another friend
named Vincent to also ride with him that night but that friend declined, too.
Featherson said Smothers still planned to come by Featherson’s house and
honk the horn so he could join them, but Smothers never came.
Since Smothers never came to his house that night, Featherson
recovered the tape from his friend and erased it. He figured nothing
happened and Smothers decided not to go through with it. Later in the
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interview, he said, “I made this tape up. My voice only of – of – of the plan
and, uh, so it’s in like me – my, uh, drawer. A certain drawer where nobody
goes in.” Featherson also said he “told all – everybody, my brother, my
homeboy friends, ya know” the details of what Smothers wanted him to help
him do.
Featherson observed the similarities between the plan Smothers
shared with him and the crime reported in the news. He said, “So it
happened the same way, you know, with him and (Martin) did it the same
way.” He further added, “From the news, they say she was in her trunk from
Richmond to Sacramento and I said, ‘Well-well, you know, he told me . . . the
same thing.’ ” Contemplating that Carter was stabbed not strangled,
Featherson speculated that Smothers and Mayfield may have changed the
plan so that Featherson would think somebody else committed the murder.
He then told the officers that Carter owed Smothers at least $2000, and that
Smothers told him he was trying to get money back from her. Smothers told
him he wasn’t able to get the money back from her, so “he couldn’t do none
other than kill her.”
Featherson had difficulties pinpointing exactly what day Smothers had
approached him at his house and what day Smothers followed up with the
10:00 p.m. call asking Featherson if he was going to help him. Asked when
Smothers made his plan, Featherson responded, “A day before she died
probably.”
Asked again what day of the week this conversation happened,
Featherson responded, “It mighta been weekday – it might been a weekend.”
He added that the news said Carter died 11 days ago, and that was “the only
thing I can go by. I’m not sure . . .” Asked to try to narrow the time span
when he received the call from Smothers asking him to come along and then
17
saw him and Mayfield in the car, Featherson replied, “If you tell me what day
that was, I’ll take your word for it.” When the officer noted December 7th
was a Wednesday, Featherson replied, “Yeah. Okay, thank you. It was a
Wednesday. The night she was supposed to die was a Wednesday.” When an
officer clarified she was found missing Wednesday morning, he revised,
“Okay, Tuesday. Okay, it was Tuesday then. It was Tuesday morning . . .”
Then he went back to Wednesday.
Featherson then added, “Hey – hey, you know what I think? I think
that it could’ve, uh, been, uh, they coulda did it before (they asked me). I’m
not sure.” Considering the question further, he repeated that he was not sure
when his conversation with Smothers occurred.
Smothers was planning to pay Featherson $500-$600 and “a little bit
more” if “no heat [got] on [them].” Smothers never gave Featherson any
money up front. Featherson observed that about 4 or 5 days earlier, Mayfield
had a couple new jackets, some new records, and good weed.
Asked about why he did not go to the police earlier, he explained
nobody got killed. He only went to the police after he learned the victim’s
name from Mayfield, whom he figured would tell him because he knew
Featherson already knew of Smothers’s plan and figured he could be trusted.
When he heard Carter’s name on the radio, he matched the name to the one
Mayfield gave him and then came to the police. But when asked later if he
had talked to Mayfield, he said Mayfield “ain’t say nothin’ . . . he don’t know
nothin’.”
He characterized Smothers telling him about his plan and not having
him help was a “fool move.” He also expressed some concern for his own
safety: “See? That’s the trip. See what I’m saying’? He was a fool at this
point. Now he got enough gall to kill her, why wouldn’t he kill me?”
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At various points during the interview, Featherson acknowledged his
own criminal record. He said he stole to make a living and sold the stuff for
money to get by since he did not work but noted that he would not hurt
anybody. He said he was cited for shoplifting a week earlier and that he also
had a record for burglary.
At the end of the interview, Featherson asked if there was a reward
and said he would go for it if there was one. The officers had no knowledge of
a reward and informed him he was not going to receive a reward if one were
offered.
On December 19th, the Crime Lab processed Carter’s car for evidence.
The criminalist who processed the car observed blood and bloody smears in
the car’s trunk and rear bench seat. He processed the car for bloody
fingerprints but found none had sufficient detail that would have allowed for
an analysis to determine who left the print. The same day, a latent print
examiner for the Richmond Police Department also processed Carter’s car for
fingerprints. He collected potential latent fingerprints from various exterior
surfaces (e.g., glass window, bumpers, trunk) and interior surfaces (e.g.,
inside door release, rear view mirror, steering wheel, gear shift and turn
signals, radio controls, etc.) as well. He submitted the latent fingerprints to
the Richmond Police Department. A qualified print examiner with the Crime
Lab examined the latent prints and discovered five of them had sufficient
ridge detail to compare to a known suspect. Of the five, Smothers was
excluded as the source of the two fingerprints found on the left rear inside
door release, and the remaining three prints located on the car were
inconclusive as to him. In addition, Mayfield was excluded as the source of
one of the fingerprints from the inside door, and the remaining four prints
were inconclusive as to him.
19
On or around December 20th, Detective Terry met with Featherson for
follow-up. During that meeting, Terry drove Featherson around downtown
Oakland in his unmarked police car until Featherson was able to point out
the bank building he said Smothers had taken him to retrieve the maps.
Featherson found the building, which turned out to be an AAA Insurance
building. He took the maps outside to Featherson and had him indicate the
locations where Smothers said they were supposed to bring Carter’s body.
On December 22nd, at the request of the police, Featherson wore the
first of two wires while speaking with Smothers. The first wire recording was
played to the jury and a transcript admitted into evidence. In the recorded
conversation, Featherson told Smothers that somebody must be talking to the
police because the police wanted to talk to him. He asked Smothers what to
do if they asked if he knew anything about “ ‘this.’ ” Smothers answered, “No.
Listen – listen, be cool. Would you stop tripping. You don’t know nothing.”
Featherson expressed concern about being caught in a lie about the maps, to
which Smothers said, “Look. No maps. No nothing.” He asked, “[W]hat if
they tell me to take a lie detector and they say, ‘You know anything about
this?’ ” Smothers responded, “Come here. Come here. Come here. Look,
they can’t tell you to take a lie detector. . . . [¶] . . . . They can’t tell you to do
nothing. Don’t do it. Don’t do it.” Smothers added, “You never seen no maps.
Have they asked you about no maps?” Featherson said he had not been
asked but was still worried about a lie detector test. Smothers suggested he
“[j]ust act normal. You don’t know nothing . . . and you don’t . . . [¶] . . . You
ain’t see me do nothing.” Smothers repeated that Featherson did not need to
talk to the police. He advised, “Just say, ‘I ain’t got nothing to say.’ That’s
all. Simple as that.” Featherson said, “I know you did nothing but hey, I
20
ain’t going to jail for nobody,” to which Smothers replied, “Yeah. That’s how I
feel.”
Smothers further told Featherson to tell officers that he and Smothers
were not friends because Smothers’s mother thought Featherson broke into
their house. He told Featherson, “Be strong too. So if I was you hey, I’d just
simply tell them, uh, ‘I don’t have nothing to say. I mean, I saw [her] on TV
and that’s all I know. ’ ” Smothers then stated, “Look, I never discussed it
with you. You never saw her. Okay. You never saw her except for
television. . . . You don’t know nothing about it.” At one point, Featherson
asked Smothers if the police found maps with him. Smothers asked in
response, “[W]hy the heck you think they asking people? They ain’t got
nothing.” He also noted the police were at Mayfield’s house, but that he was
“so cool under pressure.”
The next day, December 23rd, Featherson agreed to wear another wire.
The second wire recording was played to the jury and a transcript of the
recording admitted into evidence. Featherson began the conversation with a
ruse, telling Smothers that after they spoke the previous day, the police
snatched him, gave him a lie detector test, and accused him of lying.
Smothers asked, “Did you tell them about the map?” Featherson said, “Nah,
nah.” He repeated the police gave him a polygraph and wanted to see how
well he knew Smothers. He said he flunked the test, and the officers made
him sign something or they wouldn’t release him. Featherson then told
Smothers, “You could kick me something down man,” and Smothers replied,
“Okay.” Featherson repeated his request to Smothers to “[k]ick me
something,” adding “I ain’t had nothin’ to do with it, man, y’all did that to
baby, y’all did this to . . . ” Smothers replied, “I – I didn’t - I didn’t . . .”
Featherson said the police were “trippin’ with me ‘cause they think that I
21
might do your dirty work for you.” Smothers answered, “You haven’t. I don’t
know, but fuck, you don’t have nothin’ to do with it, I don’t have nothin’ to do
with it, I don’t – I don’t know.” Featherson then appeared to ask for money
again.
Featherson then told Smothers he shared some information with the
police. He said he told officers: “Sherill knew baby and he said that he was
tired of stayin’ with her, that’s all. I told him, I said, hey, you know, man, he
– he don’t want to be with her no more and he was going to mess up her car.”
Smothers responded, “Why you tell ‘em that stuff? . . . [¶] . . . You don’t know
nothing’.” Later, Smothers said, “Look, just tell them you don’t know
anything. You and I aren’t even friends.” The conversation concluded with
Featherson asking Smothers for some money.
On January 12, 1984, Detective Terry contacted Mayfield and took his
fingerprints. While Mayfield allowed his prints to be taken, he refused to
sign the card indicating that he provided his fingerprints on his own volition.
Mayfield asked for his fingerprint card back, but Detective Terry said he was
keeping it.
F. Case Turns Cold Without a Prosecution
No one was prosecuted for Carter’s murder following this initial police
investigation, and the case became inactive.
G. Resumption of Investigation Decades Later
In 2008, Lt. Johanson, who was then an officer, was assigned to
Carter’s case. At that point, she began submitting biological evidence from
the case to the Crime Lab for DNA analysis. The evidence was sent in phases
over a period of years. According to Lt. Johanson, this “methodical” approach
provided the best way to obtain DNA evidence while not overwhelming the
Lab.
22
Evidence sent to the Crime Lab to be tested for DNA evidence included
the evidence collected from the master bathroom: the nightgown, the red
substance on the wall, and the sample taken from the bathroom sink.
Samples from the blood found on the back steps and in the driveway were
also submitted for DNA analysis. Lt. Johanson also sent the scrapings
obtained from under Carter’s fingernails during the autopsy.
In June 2015, Lt. Johanson collected a buccal swab from Smothers at
his home. She had a warrant but did not need to show it to Smothers given
his cooperation. Johanson also collected a buccal swab from Mayfield.
Neither Mayfield nor Smothers matched the DNA taken from under Carter’s
fingernails. Featherson’s DNA was also collected by police officers in
Milwaukee, where Featherson lived, and was sent to Johanson.
Johanna Estrada-Ballardo, a criminalist in the Crime Lab, was
qualified to testify as an expert in biological fluid examination, DNA analysis,
and statistical analysis. Her job was to examine physical evidence from
Carter’s case for DNA and to draw conclusions based on her findings.
Estrada-Ballardo explained DNA analysis: the extraction of DNA from
a sample of evidence, the quantification of DNA present in the sample, and
then the analysis and interpretation of the DNA. When evidence samples are
complete, she is able to develop complete DNA profiles and determine
whether a match to the DNA of a known person exists, or whether that
person can be excluded as the source of the DNA in the evidence sample. If
there is insufficient DNA from a given evidence source that is compared to a
complete DNA profile of a known individual, she says that a person is
“included.” She then applies statistics to show how uncommon the evidence
profile is in the population.
23
She further noted that DNA can be a great tool for evidence stored
properly, that is, frozen, which preserves the DNA. If not stored correctly or
with the passage of time, DNA can degrade. With degraded DNA, there
would not be sufficient DNA for her to test, precluding a complete DNA
analysis. She would not be surprised if evidence from a 1983 case, prior to
DNA analysis, had been stored at room temperature, or in an area that got
really hot. She also made clear that just because DNA may degrade, the
DNA does not change.
Over the last 10 years, Estrada-Ballardo examined over 50 items in
Carter’s case. She conducted both DNA analysis and biological fluid
identification on the items. She also performed DNA analysis and generated
a DNA profile for each of the individuals whose swabs she collected, including
Smothers and Mayfield.
Several of the pieces of evidence tested, such as the blood samples
taken from the driveway and back porch and the bloodstained mattress pads,
did not have sufficient DNA to develop a profile. Other pieces of evidence
allowed for development of a DNA profile which ultimately matched that of
Carter. There was no blood detected on the machete beneath the bed.
Two pieces of evidence from the master bathroom, however, had
sufficient DNA to develop profiles. Estrada-Ballardo conducted a DNA
analysis of the apparent bloodstain on the nightgown and developed an
unknown male profile which matched Smothers’s DNA profile. In her
statistical analysis, Estrada-Ballardo added that the probability of
encountering an African-American with the same DNA profile as the
evidence profile was 1 in 44 sextillion. Smothers is African-American.
Estrada-Ballardo also conducted an analysis of the red substance that
had been collected from the master bathroom sink. It tested positive for
24
blood, and its DNA profile was consistent with the profile from the nightgown
and matched Smothers. The probability of encountering another person with
the same DNA profile as the evidence profile generated from the blood in the
sink was 1 in 140 quintillion African-Americans. As for the third piece of
evidence collected from the master bathroom—the red substance on the
wall—Estrada-Ballardo determined it was not blood and did not test it
further.
Estrada-Ballardo further confirmed that she could not say when or how
the DNA got on either the nightgown or in the sink. She agreed that the
DNA could have been on the nightgown or in the sink for days, weeks, or
months. She also acknowledged that it was possible that someone rinsing out
the nightgown to eliminate the bloodstain over the sink caused the blood to
be deposited in the sink.
Estrada-Ballardo determined the scrapings taken from Carter’s
fingernails tested positive for blood and that they contained DNA from at
least two individuals. The major DNA profile she developed was consistent
with Carter’s DNA profile. The minor DNA profile, which was a partial
profile, belonged to a male. Smothers, Mayfield, and Featherson were all
excluded as the source of this DNA. She further explained that physical
contact is the typical way one gets someone else’s DNA underneath their
fingernails, and that DNA could transfer from just casual contact. On cross-
examination, defense counsel did not ask whether the male DNA evidence
beneath Carter’s fingernails had matched to any known person, and if so, the
identity of that person. No evidence was introduced as to the identity of the
unknown male who matched to this DNA evidence.
Estrada-Ballardo stated that of all the items she examined, Smothers’s
DNA matched or was included in only the samples from the nightgown and
25
sink in the master bathroom. She did not find DNA from Mayfield or
Featherson in any of the samples she tested from inside or outside the Carter
house.
H. Featherson’s Conditional Examination
Featherson was unavailable to testify at trial due to illness. In 2018,
he was suffering from stage four lung cancer, needed to use a feeding tube,
and his doctor recommended he not travel to California from his residence in
Milwaukee. As a result, the court permitted the prosecution to proceed by
conditional examination, and the jury viewed the videotape and transcript of
Featherson taken on November 15, 2016.
Featherson testified he was 57 years old. He had been diagnosed with
stage four lung cancer and was going through chemotherapy. While he
presently lived out of state, he grew up in Oakland. When he was younger,
he committed some crimes, including stealing and burglary. To prepare for
his testimony and refresh his memory, he reviewed transcripts from when he
spoke to police in 1983.
Featherson met Smothers when they were about six or seven years old.
They grew up in the same Oakland neighborhood and lived on the same
block. As kids, they socialized occasionally but not much since Featherson
had a different group of friends. Also, Smothers’s parents did not like
Featherson since he, his brother, and his friends were “pretty wild.” In the
early 1980s, when Featherson was in his twenties, he periodically saw
Smothers in the neighborhood but they did not hang out. There was no bad
blood between the two.
In late 1983, Smothers approached Featherson somewhere on their
block and talked about his girlfriend. Smothers told him he was upset with
his girlfriend “for something that she did to him and about the
26
relationship . . . turning bad or – or dissolving.” Smothers said she had taken
advantage of him and referenced money he had spent on her and wanted
back. Smothers added that throughout their relationship, “she took
advantage of him, played him for a fool.” He wanted something done to her
vehicle, “wanted to know if I would do something, burn it up or whatever,
something of that nature.” Featherson did not agree to it.
Two or three months later, Smothers came over to Featherson’s house
and asked if he could help him kill someone. Smothers said he was very
upset with his ex-girlfriend and that he wanted to kill her. He said that “she
took advantage of him. . . . [H]e just wanted her gone, ‘cut up real bad’ is his
exact words.” He asked how much Featherson would charge to help him. At
first, Featherson hesitated to consider whether he would help. Featherson
said $500 or $600 because Smothers offered him that amount. Featherson
agreed to help but said he was leading Smothers on.
Three or four days later, Smothers picked up Featherson in his car ,
explained the plan to him, and drove him to downtown Oakland to a bank to
get maps of the area where his ex-girlfriend lived and where they would drive
her car after killing her. While Featherson stayed in the car, Smothers left to
get a couple maps of the Sacramento area.
Two days later between 4:00 and 5:00 p.m., Smothers and Mayfield
pulled up in front of Featherson’s house and asked Featherson if he wanted
to come with them. Smothers did not say where he was going, but
Featherson knew what he wanted. Featherson told them he was busy. After
they left, Featherson did not know what they did. Later that evening,
Smothers called him three separate times, but he did not answer the phone.
He never discussed the matter with Smothers again.
27
Featherson stated that he hung out regularly with Mayfield, who also
lived on their block, and knew him better than Smothers. Asked if Mayfield’s
name had come up in his conversations with Smothers, Featherson initially
said it had not and that he could not remember it well. He then explained
that he had been hesitant with Smothers and “kept putting him off.” At that
point, Smothers asked Featherson to tell Mayfield he wanted to talk to him.
Featherson stated that this occurred during a separate conversation he had
with Smothers during this time period, not one of the three earlier ones he
had described. He then changed his mind and said this conversation about
Mayfield occurred during one of his three conversations with Smothers
previously described.
The night he saw Smothers and Mayfield in the car together,
Featherson made his own audio recording of what he knew about the case.
He told several stories about what he did with the recording. One was that
he put it in a personal drawer for safekeeping. Another was that he “passed
it on” to several of his friends. In addition, he stated that it remained in his
house, and he told his friend Guy McGee about it. He told McGee that if
something happened to him, he needed to take the tape to the police. After
“days went by and [Featherson] didn’t hear anything [about] what had . . .
occurred,” he erased the tape. By the time he had contacted the police, his
recording was deleted.
Ten or eleven days later, Featherson saw news that the body of a
young woman named Marsha Carter from Richmond was found in the trunk
of her car in a shopping mall or hotel parking lot in Sacramento. At that
point, Featherson said, “In a hot second I knew it was her and I knew it was
the same girl.” Featherson contacted the police.
28
A few hours later, police came to his house. He told them what he
knew, and officers recorded the conversation. He agreed to wear a wire and
talk to Smothers.
The prosecutor played recordings of both of his wired conversations
with Smothers. Featherson stated that when he asked Smothers to “kick
[him] down something,” he wanted something for “keeping [his] mouth
closed.” Smothers gave him $5. Featherson acknowledged that he had asked
officers about a reward and was told there was no reward. Even without a
reward, he was still willing to have wired recordings with Smothers.
On cross-examination, Featherson explained that Smothers approached
him for help because he was “very popular” and people could come to him if
they wanted to know how to do a burglary, steal a car, or get weed. He
acknowledged he had been convicted in Alameda County for possessing stolen
goods in 1978 and for burglary in 1980.
He also said that he had told police during his initial conversation with
them that Smothers wanted to cut up his ex-girlfriend “ ‘[r]eal bad.’ ”
However, he did not remember ever telling police Smothers wanted to
strangle her. When presented with a transcript of that interview in which he
said Smothers’s plan was to strangle his ex-girlfriend, he said he did not
remember that and then “remember[ed] a little bit because she had children.”
He confirmed that he found out about the woman being stabbed from the
news reports. He said he did not believe anything in the initial recorded
statement he made to the police because he did not remember “almost any of
it.” Asked whether his recollection of what Smothers told him was better in
December 1983 or now, Featherson responded, “The same.”
With respect to the three phone calls he ignored the night he put off
Smothers and Mayfield, he said he knew it was Smothers calling even if he
29
never picked up the phone “ ‘[c]ause we had a time, when he got off work. I
knew it was him.” He could not remember telling police that he told
Smothers he would not participate in his plan.
Featherson also acknowledged on cross-examination that the second
wire continued to record after he finished his conversation with Smothers.
He ran into Nathaniel Hayes on the street and discussed where they were
going to get weed. Asked if he discussed the case with Hayes and told him
“ ‘I’ll blackmail that n******,’ ” Featherson answered, “No, that’s never been
done.” After being presented with the transcript from the wired recording, he
remembered that he told Hayes, “ ‘Man, I’ll drain a n*****’s pockets.’ ” He
agreed that he was trying to blackmail Smothers in order to keep his mouth
shut.
The defense presented no witnesses. Smothers did not testify.
I. Verdict and Post-trial Motion for New Trial
On September 20, 2018, the jury found Smothers guilty of murder and
found the enhancement for use of a deadly and dangerous weapon not true.
One week after the jury reached its guilty verdict, military records
regarding Sennett from the National Personnel Records Center, which the
People had subpoenaed weeks earlier, reached the parties. These records
indicated Sennett was in the Army reserves in December 1983, then living in
Wisconsin Rapids, Wisconsin and unemployed. They also included the name
of Sennett’s ex-wife.
Smothers was scheduled to be sentenced the next day, September 28,
2018, but defense counsel asked for a continuance based on the subpoenaed
records, which defense counsel argued were newly discovered evidence
requiring further investigation. Over the People’s objection, the court
granted the continuance. In doing so the court stated, “Most of the
30
information that’s been described was known to all parties at the time of the
trial. As I see it the only difference is that the records may indicate that Mr.
Sennett was in Wisconsin as opposed to Texas, that he was in the Army
reserve as opposed to active duty in December of 1983. I’m not sure how
much difference that makes when the information was otherwise available to
the defense.”
On October 2, 2018, defense counsel’s investigator located and
interviewed Sennett’s ex-wife, the former Deborah Sennett. In a telephone
interview, Deborah told the investigator that she was “100% sure that
[Sennett] took a road trip to California to make money” sometime in the fall
or early winter of 1983.
The following week, Smothers filed a motion for new trial based in part
on the newly discovered evidence contained in the military records and what
was revealed by the follow-up investigation conducted by the defense. The
purported new evidence was that Sennett was not stationed in Texas at the
time of Carter’s murder, and that he took a road trip to California between
Thanksgiving and Christmas 1983 for a job. According to the defense’s
motion, “[h]ad the defense been able to present evidence connecting Kevin
Sennett to California in December 1983, the DNA found under [Carter’s]
fingernails would have likely been given considerably more weight in the
minds of the jury.”
On October 5, 2018, the court heard the new trial motion. It concluded
Deborah’s live testimony was necessary, so it set an evidentiary hearing
which took place on November 1, 2018. Deborah was the sole witness to
testify. She testified that Sennett was her ex-husband. They were married
in 1982. In 1983, they were living in Wisconsin Rapids, Wisconsin, and
31
Sennett was in the Army reserves. Other than when he was in military camp
or busy with the reserves on the weekends, they lived together.
Deborah further testified that right after Thanksgiving 1983, Sennett
left on a trip with his brother, Brian Sennett, and a friend, Raymond Gilliam.
He did not tell Deborah where he was going. Sennett was gone for about two
to two and half weeks. When he returned right before Christmas, Deborah
figured he went to California based on a Raiders jacket he brought back for
her. He also came back from this trip with cash. Deborah said Sennett and
Gilliam had gone on trips together previously. On the one trip with them
that Deborah joined when she was pregnant with her son, Sennett and
Gilliam left her alone in a parking lot for almost three hours. When they
returned they had cash. On November 5, 2018, the court denied the new trial
motion.
The court sentenced Smothers to 25 years to life in state prison.
Smothers now appeals.
DISCUSSION
A. Pre-accusation Delay
Smothers argues the trial court abused its discretion when it denied his
motion to dismiss the indictment against him on grounds of pre-accusation
delay. We disagree.
1. Background
Before trial, Smothers moved to dismiss the indictment against him on
grounds that the nearly 33-year delay in prosecuting a 1983 offense violated
his state and federal constitutional rights to due process and caused him
severe prejudice. He specified over two dozen ways the delay adversely
affected his defense, which included lost physical evidence, lost witnesses,
impaired memories, and non-existent or impossible to obtain evidence. After
32
an evidentiary hearing and two days of argument, the court denied the
motion, and the case proceeded to trial.
As Smothers notes, the trial court provided a very thorough
explanation of its reasoning. The court found only one of Smothers’s alleged
losses, namely, Smother’s deceased mother who could not testify that
Smothers cried when she told him news of Carter’s death, to be slightly
prejudicial. On the other hand, it found the prosecution’s justification for the
delay “quintessentially reasonable.” On balance, the trial court concluded the
“strong justification” for the delay outweighed the minimal amount of
prejudice.
Following trial, the court also denied a renewed motion to dismiss
based on pre-accusation delay.
2. Applicable Law
A delay between the commission of an offense and the filing of a
criminal charge does not implicate the constitutional right to a speedy trial.
(Scherling v. Superior Court (1978) 22 Cal.3d 493, 505.) However, the due
process clauses of the Fifth and Fourteenth Amendments to the United
States Constitution and article I, section 15 of the California Constitution
“ ‘protect[ ] a criminal defendant’s interest in fair adjudication by preventing
unjustified delays that weaken the defense through the dimming of
memories, the death or disappearance of witnesses, and the loss or
destruction of material physical evidence.’ [Citation.] Accordingly, ‘[d]elay in
prosecution that occurs before the accused is arrested or the complaint is filed
may constitute a denial of the right to a fair trial and to due process of law
under the state and federal Constitutions.’ ” (People v. Nelson (2008) 43
Cal.4th 1242, 1250 (Nelson).) Although the statute of limitations is the
general guarantee against the bringing of criminal charges in an untimely
33
fashion, a defendant’s due process rights under the state and federal
constitutions may be violated by an unreasonable delay in bringing criminal
charges. (Ibid.)
In determining whether a criminal defendant’s due process right has
been violated, courts employ a three-step test. (People v. Catlin (2001) 26
Cal.4th 81, 107 (Catlin).) The defendant has the initial burden of showing
prejudice as a result of the delay; the prosecution then must show
justification for the delay; thereafter, the court balances the harm against the
justification. (People v. Reeder (1984) 152 Cal.App.3d 900, 909–910.)
“The burden of proof for establishing such a claim rests with the
defendant.” (People v. Price (1985) 165 Cal.App.3d 536, 542.) Under both the
state and federal Constitutions, a defendant must make a threshold showing
of actual prejudice before the trial court is called upon to balance the
prejudice to the defendant against the justification for the delay. Under the
federal Constitution, a claim based on pre-accusation delay requires showing
the delay was undertaken to gain a tactical advantage over the defendant.
(Catlin, supra, 26 Cal.4th at p. 107; United States v. Lovasco (1977) 431 U.S.
783, 795.) Under the state Constitution, “ ‘ “the defendant has the initial
burden of showing some prejudice before the prosecution is required to offer
any reason for the delay [citations]. The showing of prejudice requires some
evidence and cannot be presumed.” ’ ” (People v. Alexander (2010) 49 Cal.4th
846, 874, italics omitted.)
“ ‘We review for abuse of discretion a trial court’s ruling on a motion to
dismiss for prejudicial prearrest delay [citation], and defer to any underlying
factual findings if substantial evidence supports them [citation].’ ” (People v.
Jones (2013) 57 Cal.4th 899, 922 (Jones).) Whether the defendant was
prejudiced by a delay and whether the delay was justified are questions of
34
fact. (People v. Mirenda (2009) 174 Cal.App.4th 1313, 1330.) Thus, on
appeal, we examine whether the trial court’s prejudice and justification
findings are supported by substantial evidence. (People v. Dunn-Gonzalez
(1996) 47 Cal.App.4th 899, 911–912.) “[W]e consider all evidence that was
before the court at the time the trial court ruled on the motion.” (Jones, at p.
922.)
Nelson, supra, 43 Cal.4th 1242, is instructive. There, a woman was
killed in 1976, and police interviewed the defendant as a suspect shortly after
the body was found. (Id. at p. 1248.) After an extensive police investigation,
no charges were filed and the case became an inactive cold case. (Ibid.) In
2000, the county began hiring and training analysts to solve sexual assault
cases that lacked suspects, and the instant case was put in line for DNA
analysis. (Id. at pp. 1248–1249.) In July 2001, the case was reviewed and
semen stains found on the victim were tested. (Id. at p. 1249.) The results
matched the defendant’s DNA profile, and he was identified as a potential
source of the semen stain. (Ibid.) In 2002, the defendant was arrested.
(Ibid.)
The defendant moved to dismiss the case for precharging delay.
(Nelson, supra, 43 Cal.4th at p. 1249.) The court found the “the justification
for the delay was strong,” and that it was an “investigative delay, nothing
else.” (Id. at p. 1256.) While the police had some basis to suspect the
defendant of the crime shortly after it was committed in 1976, it was not
until 2002 that law enforcement agencies could solve the case when the
comparison of defendant’s DNA with the crime scene evidence resulted in a
match. (Ibid.) It was only at that point that the prosecution believed it had
sufficient evidence to charge the defendant. (Ibid.) Rejecting the defendant’s
claim that the 26-year delay in bringing charges violated his constitutional
35
rights to a fair trial and due process, the Court affirmed the denial of the
motion to dismiss. (Ibid.)
3. Analysis
Even assuming Smothers met his burden of demonstrating prejudice,
substantial evidence similar to that in Nelson supported the trial court’s
finding that there was “strong justification” for the delay and that the delay
was “quintessentially reasonable.” In this case, law enforcement agencies
believed there was insufficient evidence to charge Smothers in 1983, and at
that time DNA analysis did not exist. DNA analysis for law enforcement
purposes was not available until the mid-1990s but those analyses yielded
results with less specificity and greater uncertainty than later DNA
protocols. In addition, the Crime Lab needed to validate the new technology
before implementing it into casework, so it was not until 2001 that the Lab
approved the use of the more advanced DNA analysis that was ultimately
used to match Smothers’s DNA with the evidence at the crime scene.
At some point, Richmond Police leadership identified Carter’s case as a
good candidate for DNA analysis. Even so, there was ample evidence that
neither the Richmond Police nor the Crime Lab had the means to investigate
exhaustively every single active case they received or cold case selected for
reopening. Tuan Nguyen, a deputy sheriff forensic supervisor who began
working at the Crime Lab as an analyst in 2005, testified that around the
time Carter’s case was reopened, the Lab had a huge backlog of cases
awaiting DNA testing. Further, it generally took analysts 100 days going
“pedal to the metal” to complete a case after receiving it. Nguyen also
explained that the Lab prioritized recent, or “fresh,” homicide and rape cases
over cold cases, so cases like Carter’s were worked on as time permitted.
36
Evidence of the county’s limited resources and the need to allocate
those resources was further apparent in the manner evidence from Carter’s
case was processed. At the evidentiary hearing, Lt. Johanson stated she
received the case in 2008 and reviewed the case to assess the available
evidence. She met with the Crime Lab supervisor to decide how to select
evidence to be examined in light of the case’s large volume of evidence. They
did not want to overwhelm the Lab’s capacity and sought to prioritize the
evidence that would give them the best opportunity to find DNA evidence of
Carter’s murderer. They decided that evidence would be submitted to the
Lab in phases, and Lt. Johanson sent the first batch of evidence to the Lab in
2008 and other pieces followed in separate batches.
The Lab completed its initial analysis in 2015 when it developed the
DNA profile for an unknown male from a couple pieces of evidence. In the
months following, the police secured buccal swabs from suspects from the
earlier investigation. In 2016, the Lab matched Smothers’s DNA to the
bloodstains on the nightgown and master bathroom sink. Once law
enforcement had the DNA evidence connecting Smothers to the crime scene,
there is no question that the prosecution proceeded promptly. In August
2016, the prosecutor convened a grand jury to determine whether there was
sufficient evidence to charge Smothers with Carter’s murder, and Smothers
was arrested shortly after the grand jury returned an indictment. On these
facts, we have no trouble concluding substantial evidence supported the trial
court’s finding that the prosecution’s justification for the delay was strong.
Likewise, we have no trouble concluding that on balance the People’s
strong justification for delay outweighed the various prejudices we assume
Smothers suffered. In the weighing process, “the seriousness of the crime for
which the indictment is returned must be given appropriate consideration.
37
The fact that the Legislature has decreed no statute of limitations for murder
shows the importance that society places on governmental efforts to bring a
murderer to the bar of justice.” (Penney v. Superior Court (1972) 28
Cal.App.3d 941, 954.) Further, “whether the delay was negligent or
purposeful is relevant to the balancing process. Purposeful delay to gain an
advantage is totally unjustified, and a relatively weak showing of prejudice
would suffice to tip the scales towards finding a due process violation. If the
delay was merely negligent, a greater showing of prejudice would be required
to establish a due process violation.” (Nelson, supra, 43 Cal.4th at pp. 1255–
1256.) In addition, “[i]n balancing prejudice and justification, it is important
to remember that prosecutors are under no obligation to file charges as soon
as probable cause exists but before they are satisfied that guilt can be proved
beyond a reasonable doubt or before the resources are reasonably available to
mount an effective prosecution. Any other rule ‘would subordinate the goal of
orderly expedition to that of mere speed.’ ” (People v. Boysen (2007) 165
Cal.App.4th 761, 777.)
Here, the case involved an unsolved murder. There was nothing in the
record indicating the prosecution caused the delay or allowed the case to
languish to take advantage of Smothers. Nor was there evidence of
prosecutorial negligence. Like Nelson, the delay can be characterized as an
“investigative delay, nothing more.” Even though Smothers was a suspect
during the police’s 1983 investigation, law enforcement did not believe there
was sufficient evidence to charge him then. Only when the DNA evidence
from the crime scene resulted in a match with Smothers’s DNA did the
prosecution believe it had sufficient evidence to seek an indictment. This
analysis was not done until 2016, due to the Crime Lab’s backlog, its
reasonable prioritization of current cases over reopened cold cases, and the
38
need to allocate limited law enforcement resources. Under these
circumstances, the justification for the delay outweighed the prejudice we
assume Smothers suffered.
On appeal, Smothers contends that if “the talisman that resources are
limited and cold cases can permissibly be shunted year after year to the
bottom of the pile” suffices as a reasonable justification for delay, then “there
is no point at which what may have once been reasonable becomes
unreasonable.” He further states that under the trial court’s analysis, “it did
not matter whether 14 years passed or 50” since the court “deemed judicial
inquiry foreclosed in the face of a stated policy of prioritizing new cases over
cold ones.” We are not persuaded. In Nelson, the Supreme Court stated, “A
court may not find negligence by second-guessing how the state allocates its
resources or how law enforcement agencies could have investigated a given
case . . . . ‘[T]he difficulty in allocating scarce prosecutorial resources . . . [is]
a valid justification for delay.’ [Citation.] It is not enough for defendant to
argue that if the prosecutorial agencies had made his or her case a higher
priority or had done things a bit differently they would have solved the case
sooner.” (Nelson, supra, 43 Cal.App.4th at pp. 1256–1257.) Smothers’s
contentions amount to no more than the type of criticism against state
resource allocation which the Supreme Court rejected.
In any event, we do not conclude that all pre-accusation delays for cold
cases in counties with limited resources will always be justified, no matter
how long the delay or the reasons for it. We have only decided that under the
circumstances of Carter’s case, the 33-year delay between her murder and
Smothers’s indictment did not violate his due process. This is in the ballpark
of the 26 years the Supreme Court considered in Nelson for cold cases
reopened with DNA analysis.
39
B. Ineffective Assistance of Counsel
We next consider Smothers’s ineffective assistance of counsel (IAC)
claims. Smothers asserts his trial counsel was ineffective for several reasons,
including (1) making evidentiary promises in his opening statement that he
did not fulfill; (2) conducting an inadequate investigation; (3) failing to
adduce proof regarding Sennett’s identity; and (4) failing to object to the
prosecution’s inadequate and untimely notice of the prosecution’s uncharged
conspiracy theory. We are persuaded that Smothers’s third IAC contention,
that defense counsel failed to present the jury with proof of Sennett’s
identity, has merit and was prejudicial. We do not address Smothers’s other
IAC claims because in the event of a retrial they are unlikely to recur.
1. Applicable Law
A criminal defendant is guaranteed the right to the assistance of
counsel by the Sixth Amendment to the United States Constitution and
article I, section 15 of the California Constitution. “The standard for showing
ineffective assistance of counsel is well settled. ‘In assessing claims of
ineffective assistance of trial counsel, we consider whether counsel’s
representation fell below an objective standard of reasonableness under
prevailing professional norms and whether the defendant suffered prejudice
to a reasonable probability, that is, a probability sufficient to undermine
confidence in the outcome. [Citations.] A reviewing court will indulge in a
presumption that counsel’s performance fell within the wide range of
professional competence and that counsel’s actions and inactions can be
explained as a matter of sound trial strategy. Defendant thus bears the
burden of establishing constitutionally inadequate assistance of counsel.’ ”
(People v. Gray (2005) 37 Cal.4th 168, 207.)
40
Ineffective assistance claims may be raised and decided on direct
appeal, and they can be found meritorious when the record reveals that
counsel did not or could not have a reasonable strategic reason for the
challenged action or inaction. (See, e.g., People v. Fosselman (1983) 33 Cal.3d
572, 581.) “Reasonableness must be assessed through the likely perspective
of counsel at the time.” (People v. Ochoa (1998) 19 Cal.4th 353, 445.) If the
record on appeal sheds no light on why counsel acted or failed to act in the
manner challenged, an appellate claim of ineffective assistance of counsel
must be rejected unless counsel was asked for an explanation and failed to
provide one, or there simply could be no satisfactory explanation. (People v.
Mendoza Tello (1997) 15 Cal.4th 264, 266 (Mendoza Tello).) “Otherwise, the
claim is more appropriately raised in a petition for writ of habeas corpus.”
(People v. Carter (2003) 30 Cal.4th 1166, 1211.)
2. Counsel Provided Ineffective Assistance Related to
Evidence of Sennett’s DNA
As we have already explained, the trial court granted Smothers’s
motion allowing admission of the Sennett DNA evidence under a third-party
culpability theory. Several days later in trial, the parties again discussed the
scope of admissible third-party culpability evidence outside the jury’s
presence. The prosecutor questioned how defense counsel intended to handle
Sennett’s DNA, specifically asking whether counsel intended “to produce an
actual name as opposed to saying, hey, it’s someone else’s DNA . . .” The
prosecutor expressed concern that any testimony from Estrada-Ballardo
regarding the initial hit through CODIS would be hearsay and lacking
foundation. He argued the third-party culpability evidence should be
narrowly tailored and argued against identifying Sennett by name and how
his name was obtained through CODIS.
41
When the court asked defense counsel his intentions regarding the
Sennett DNA evidence, he responded, “That’s a difficult question and one
that I have been grappling with. . . . [¶] I am leaning, and have been leaning,
more towards doing it more that there was an individual who came back. In
other words, there was this hit, and that there is a third person under the
fingernails and leave it generally at that with Ms. Ballardo -- Estrada
Ballardo; that there was DNA, as I think I told the jury in my opening, that
there was DNA of a third party found under the fingernail that is not Mr.
Smothers and kind of leave it at that. [¶] I don't have the obligation to prove
-- I have no burden of proof. I don’t have to show who it was. So I don’t
necessarily benefit by putting a name to it, as we did have discussions early
on, before Your Honor made the decision while we were going through that,
then the DNA was being retested and things of that nature. [¶] The
somewhat convoluted manner of getting the Sennett family to California is a
journey that I’m not sure I want to revisit in front of the jury. So I don’t
necessarily need the name.”
The next day, the prosecutor stated the following for the record: “What
we’re going to do is we’re going to speak of the nail scrapings, that there was
a female contributor from the victim, there was a male profile that was
generated, and that that male profile excludes Smothers, Mayfield, and
Featherson. [¶] So obviously there is male DNA under her fingernails that is
not the suspect, but as far as CODIS and the rest of that information, we
won’t be going into that.” Defense counsel responded, “That is correct and
acceptable.”
Before the jury, Estrada-Ballardo testified that the partial DNA profile
from Carter’s fingernail scrapings matched a man who was not Smothers,
Mayfield, or Featherson. However, defense counsel did not present any
42
evidence to the jury that Sennett was a possible source of the DNA in the
scrapings and never referenced Sennett by name.
In conjunction with his motion for new trial, trial counsel explained the
reason he did not present this evidence: “We know we have his DNA under
the fingernail. That was confirmed. But I could not, in good faith, place
[Sennett] here otherwise, which is the reason, quite frankly, I did not
reference him by name in this courtroom or try to, because . . . [I] believe you
would have told me that I wouldn’t do it because I couldn’t connect him.”
Post-trial, defense counsel learned that Sennett’s ex-wife recalled a trip
Sennett took between Thanksgiving and Christmas 1983 which she was
“100% sure” was to California. Defense counsel explained that Sennett’s ex-
wife’s statement provided him the good faith belief that Sennett was in
California in December 1983 when the murder was committed.
The trial court disagreed with counsel’s assessment, noting that the
fingernail DNA evidence provided a good faith basis to believe that Sennett
had come into contact with the victim in California at or around the time of
the murder. Further, the court explained that it had expressly ruled “that all
evidence relating to Mr. Sennett was admissible; in other words, the third-
party culpability issue.”
Smothers contends his trial counsel was deficient for not presenting the
jury with evidence of Carter’s probable killer’s identity. Because defense
counsel’s explanation for withholding Sennett’s identity from the jury
appears in the record, we decide this IAC claim on direct appeal. (See
Mendoza Tello, supra, 15 Cal.4th at p. 266; People v. Lucas (1995) 12 Cal.4th
415, 442 [reversal on direct appeal for ineffective assistance of counsel
possible when “the record on appeal demonstrates there could be no rational
tactical purpose for counsel’s omissions”].)
43
Based on the circumstances and counsel’s representations to the court,
we are compelled to conclude that Smothers’s trial counsel’s performance fell
below an objective standard of reasonableness under prevailing professional
norms. The record affirmatively reflects that defense counsel had no
satisfactory tactical reason to not disclose Sennett’s identity to the jury in
connection with the fingernail scrapings DNA evidence. To the contrary,
defense counsel’s stated reasons for not presenting the Sennett evidence to
the jury appear to be based on counsel’s own misconceptions. (Cf. In re
Wilson (1992) 3 Cal.4th 945, 955–956 [“[c]ounsel’s failure to raise a
meritorious objection to incriminating evidence as a result of ignorance or
misunderstanding” constitutes ineffective assistance].)
First, counsel’s belief that he could not reference Sennett by name to
the jury because he had no good faith basis to place Sennett in California at
the time of Carter’s murder was incorrect. As the trial court found, the DNA
evidence beneath Carter’s fingernails was more than adequate to place
Sennett in California. How else would it have gotten there in the absence of
Sennett being in contact with Carter who, indisputably, was murdered in
California at some point between her home in Richmond and the parking lot
where her body was found in Sacramento? The court accurately observed
that based on the Crime Lab’s analysis, the “defense had definitive proof that
Mr. Sennett, his DNA was under the victim’s finger nails.” Thus, according
to the trial court, “[t]he defense knew before trial and had the evidence to
prove that Kevin Sennett was in California around the time of the murder
because there is no explanation for his DNA under the victim’s fingernails
other than that he had personal contact with the victim, the victim either
scratched him or otherwise drew blood from Mr. Sennett, and that it was
likely during the attack.” Defense counsel understood this as reflected by
44
comments he made during argument of his motion in limine where he stated,
“[J]ust because I don’t have a database that says Kevin Sennett was here [in
California] in 1983, it doesn’t mean he wasn’t here in 1983 for some period of
time long enough to have had some contact with this victim.” Weeks later,
when he opted not to present Sennett’s name to the jury, he ignored his own
sound analysis.
Second, counsel’s statement that he did not want to refer to Sennett by
name because he believed the court would bar him from doing so absent
additional evidence showing a further connection to California was also
mistaken. The court never indicated it would take this position. To the
contrary, the court had granted Smothers’s in limine motion, expressly
allowing him to present any third-party evidence related to Sennett’s DNA.
As we have noted, the court clearly stated in open court, “[T]he DNA evidence
relating to Mr. Sennett is admissible because it could create a reasonable
doubt as to the defendant’s guilt.” The court later reminded counsel of that
ruling when it decided the new trial motion, stating, “I ruled in favor of the
defense that they could present any of this evidence relating to Mr. Sennett’s
DNA in their case if they chose to do so.” The court imposed no
conditions/restrictions on its ruling regarding the admissibility of Sennett’s
DNA. We can think of no tactical reason why counsel would not have wanted
the jury to be aware of Sennett’s identity and why counsel would not have
wanted to argue Sennett was the likely source of the DNA beneath Carter’s
fingernails.
Defense counsel’s decision to withhold Sennett’s name is particularly
problematic given defense counsel’s understanding of how critical it was to
Smothers’s third-party culpability evidence. For example, counsel had tasked
his defense investigator with locating and determining whether Sennett was
45
ever in California. Before trial, he moved in limine to have the evidence
showing that DNA belonging to Sennett was found beneath Carter’s
fingernails. In argument, defense counsel said of Sennett’s connection to the
DNA evidence: “[T]his is critical evidence as far as the defense is concerned
to prove that there was someone else who committed this act and not Mr.
Smothers.” He later expressed his belief that he did not have to “prove who it
was or whether or not that person had a connection to California before [he]
can tell this jury about it, what the physical evidence of this case conveys.
And that is that there was another person who we now have a name.”
Further, in Smothers’s motion for new trial, defense counsel argued
that had he “been able to present evidence connecting Kevin Sennett to
California . . . , the DNA found under [Carter’s] fingernails would have likely
been given considerably more weight in the minds of the jury.” This is a tacit
acknowledgement that the DNA evidence beneath Carter’s fingernails could
have been minimized by the jury because it was given no evidence of to whom
it matched. In fact, the jury was told the evidence was the DNA of an
unknown male, which was not accurate and was misleading.
We recognize the jury found Smothers not to be the actual killer which
is consistent with the evidence. However, Sennett’s identity and his lack of
connection with Smothers or with any of the other potential co-conspirators
or with any of the other evidence was highly relevant as to whether the
prosecution could prove that Smothers entered into an agreement with
Sennett to hire him to murder Carter. In this context, defense counsel’s
decision at trial to not even attempt to adduce evidence about Sennett as a
possible source of the DNA beneath Carter’s fingernails was unreasonable.
On the eve of DNA analysis expert Estrada-Ballardo’s examination, the
prosecution revisited the scope of the third-party culpability evidence that
46
would be introduced to the jury. The prosecution argued that no evidence of
Sennett’s name or how his identity was obtained be presented to the jury.
Unlike before, this time defense counsel did not object to the prosecution’s
renewed attempt to dilute the third-party culpability evidence and agreed not
to mention Sennett’s identity. This did not amount to vigorous
representation of his client. (See Magana v. Superior Court (2018) 22
Cal.App.5th 840, 865 [“ ‘[A]ttorneys owe high duties to their clients to defend
their cases fully, vigorously, and even with arguments which might be
offensive or ultimately unsuccessful. This is particularly true in criminal
cases, where the clients’ liberties are at stake, and where the adequacy of the
attorneys’ representation can raise constitutional issues.’ ”].)
3. Counsel’s Conduct was Prejudicial
Since we have concluded Smothers’s performance was deficient, we
must address whether Smothers suffered prejudice as a result. Ineffective
assistance of counsel is prejudicial when “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” (Strickland v. Washington (1984)
466 U.S. 668, 669 (Strickland).) The defendant need not show that it is more
likely than not that the outcome of the trial would have been different had
the inadequacy not occurred. (Id. at p. 693.) We also conclude that trial
counsel’s deficient representation was prejudicial to Smothers.
Here, the prosecution relied on alternative theories to establish
Smothers’s culpability for Carter’s murder. Based on the charges and the
alleged enhancement for his use of a dangerous weapon, the prosecution’s
primary theory was that Smothers was the actual perpetrator of Carter’s
murder. Alternatively, the prosecution also pursued Smothers under an
47
uncharged conspiracy theory. As we have already mentioned, since the jury
found Smothers guilty of first degree murder but found the enhancement that
Smothers used the weapon that killed Carter to be not true, the jury must
have adopted the prosecution’s theory that Smothers conspired with someone
else to kill Carter and that she was stabbed by someone other than Smothers
at Smothers’s request.
While it was theoretically possible that the jury believed Smothers
conspired with Mayfield, the evidence does not support this conclusion.
Mayfield’s DNA profile did not match any of the DNA profiles generated from
evidence at the crime scene. Besides the DNA on the nightgown and in the
bathroom sink (which matched Smothers’s DNA profile), the only other DNA
evidence from the case resulting in a match was from the scrapings beneath
Carter’s fingernails. The jury learned another male’s DNA had been found
beneath Carter’s fingernails. Based on this evidence, the jury likely
concluded that Smothers enlisted this unidentified male to assist him and
convicted Smothers for conspiring with this unnamed male to kill Carter.
“ ‘A conviction of conspiracy requires proof that the defendant and
another person had the specific intent to agree or conspire to commit an
offense, as well as the specific intent to commit the elements of that offense,
together with proof of the commission of an overt act “by one or more of the
parties to such agreement” in furtherance of the conspiracy.’ ” (People v.
Jurado (2006) 38 Cal.4th 72, 120; People v. Morante (1999) 20 Cal.4th 403,
416 [a conspiracy is an express or tacit agreement between two or more
persons to commit any crime, followed by an overt act committed by at least
one of them for the purpose of furthering the object of the agreement].) “To
prove a conspiracy to commit a crime the prosecution need not show that the
parties met and expressly agreed to commit a crime. [Citations.] The
48
evidence is sufficient if it supports an inference that the parties positively or
tacitly came to a mutual understanding to commit a crime. [Citation.] The
existence of a conspiracy may be inferred from the conduct, relationship,
interests, and activities of the alleged conspirators before and during the
alleged conspiracy.” (People v. Cooks (1983) 141 Cal.App.3d 224, 311.)
Featherson’s testimony provided the only evidence of a conspiracy to
commit murder. Since the jury was told the identity of the male whose DNA
was underneath Carter’s fingernail scrapings was unknown, the jury could
have inferred from Featherson’s testimony that Smothers found someone else
in the neighborhood besides Featherson or Mayfield to carry out his murder
plan. According to Featherson, the only individuals Smothers approached for
aid were people in the neighborhood—himself, Mayfield, and at one point
another friend named Vincent. When Featherson declined to ride with
Smothers and Mayfield the evening Smothers asked him to, and his friend
Vincent also declined, a juror could have reasonably inferred Smothers
approached someone else in the neighborhood or another mutual friend like
Vincent who was willing to help Smothers with his plan on short notice. A
juror could have reasonably inferred that this late-joining coconspirator was
the source of the DNA found in the scrapings beneath Carter’s fingernails.
Featherson’s testimony did not support a conspiracy in which someone
like Sennett was a member. For example, Featherson never mentioned that
Smothers told him an out-of-state hitman or contract killer was (or could
have been) part of the plan to kill Carter. Further, as an Army reservist
living in Wisconsin, there is absolutely no evidence that Sennett had any
connection to those in Smother’s Oakland neighborhood where Featherson
testified Smothers approached others for help.
49
According to Featherson, on the night Smothers carried out his murder
plan, he scrambled for assistance once Featherson refused to help him. The
notion that Smothers located Sennett and arranged for him to assist
Smothers on December 6th when his “local options” fell through that evening
is hard to reconcile given Sennett was not someone from the neighborhood,
like Featherson or Mayfield, and readily available to ride along with him.
Had Smothers made arrangements with Sennett well in advance, which
would have been necessary given Sennett’s residence in Wisconsin, his efforts
to recruit help from the neighborhood up until hours before the murder
makes little sense.
Most importantly, there was absolutely no evidence of any connection
between Smothers and Sennett, and no proof of a certain or tacit agreement
between the men to kill Carter. For example, the jury was not told 1) about
any evidence of phone records that connected them, 2) about any financial
transactions that may have occurred between them, 3) whether they had
common acquaintances or friends, and 4) whether they had ever even met or
spoken to each other. In our exhaustive review of the record, we have found
zero evidence, direct or circumstantial, tying Sennett to Smothers. In the
absence of any evidence of a connection between the two men, a juror would
not have been able to reasonably infer that Smothers had the specific intent
to enter into an agreement with Sennett to murder Carter, as required under
a conspiracy to commit murder theory. It becomes easy to see how
introducing Sennett’s name into evidence as a possible source of the DNA
beneath Carter’s fingernails would have exposed holes in the prosecution’s
conspiracy theory through which it secured Smothers’s conviction. 2
2
The People observe that the prosecution also pursued Smothers under
an aiding and abetting theory of liability, which “had elements that were
essentially identical to the conspiracy theory.” They contend that “any
50
The People contend that Smothers’s claim his counsel was deficient “is
no more than forbidden second-guessing of counsel’s judgment” and that
counsel’s decision not to give the jury evidence of Sennett’s identity reflected
a “tactical choice” based on a reasonable belief counsel could not conclusively
show it was Sennett who was the third party. We disagree. Defense
counsel’s own explanation revealed no tactical reasons behind his decision to
hold back Sennett’s identity. Rather, the decision was premised on his
erroneous beliefs that 1) something more than the DNA match was necessary
to place Sennett in California at the time of Carter’s murder, and 2) the court
would prohibit him from introducing Sennett’s identity, notwithstanding the
court’s earlier in limine ruling allowing counsel to introduce that very
evidence.
The People further argue Smothers cannot show prejudice based on
defense counsel’s failure to give the jury evidence of Sennett’s identity since it
was not evidence that would have raised the probability of a different result.
The People reject the assertion that telling the jury that Sennett was the
unknown party would have undermined Featherson’s testimony because it
changed the nature of Smothers’s purported murder plot. Again, we are not
persuaded.
possible prejudice from the prosecutor’s conspiracy theory arguments would
be negated by the propriety of the aiding and abetting theory.” Under this
theory, too, there was no evidence that would have supported Smothers’s
conviction as an aider and abettor and Sennett as the perpetrator. To prove
Smothers guilty under an aiding and abetting theory, the People are required
to prove that he knew the perpetrator intended to commit the crime and that
his words and conduct did in fact aid and abet the perpetrator’s commission
of the crime. (CALCRIM Nos. 400, 401.) On this record, there was no
evidence of Sennett’s intent, or any words exchanged or interactions between
Smothers and Sennett.
51
According to the People, the fact that Smothers did not share with
Featherson that he was in contact with Sennett (or some other unknown
third party) would not have been a surprise to the jury because it was plain
from the evidence that Smothers did not fully trust Featherson and withheld
much information from him. Given the level of detail that Featherson
claimed Smothers revealed to him about the murder plot, it seems unlikely
that Smothers would not have disclosed the possible participation of a hired
killer. For example, according to Featherson’s initial statement to the police,
Smothers was planning to let Featherson inside the house and he wanted
Featherson to strangle Carter. Smothers talked about their approach and
division of labor if Mayfield joined in the plot. Smothers even explained
where they would take Carter’s body and reviewed maps with Featherson.
The People contend, “There is no reason to assume [Smothers] could
not have run into Sennett either by happenstance, or through a mutual
acquaintance, any time in the days before the murder.” The People further
add that the jury was well aware that this was “always a paid murder-for-
hire plot” and “the idea that [Smothers] ended up paying Sennett, however
appellant came across Sennett, would not have been at all surprising, even if
appellant’s connection to Sennett was unexplained.” However, there was no
evidence (direct or circumstantial) that even hints at such an encounter.
There was no evidence of any phone calls or financial exchanges between the
two. There was no evidence of any mutual acquaintance or circumstances
that would have prompted Sennett, an Army reservist, to travel with friends
all the way from Wisconsin to be in contact with Smothers, a newspaper
delivery man in Oakland, to engage in a murder plot.
The People also argue that even if it was Sennett who was the
unknown killer, “there was no reasonable possibility that the jury would have
52
thought Sennett acted on his own.” According to the People, the jury had
“three compelling legs of proof of [Smothers’s] guilt”: (1) Featherson’s
statement to police and Smothers’s unexplained statements in the wiretaps
telling Featherson not to talk to the police; (2) Smothers’s DNA in Carter’s
master bathroom; and (3) Featherson’s “painful return from Wisconsin to
testify in this case, with an illness he knew was about to end his life.”
Sennett, however, is not ingrained into any of these “legs.” Sennett’s name,
or that of a hired hitman, never came up in Featherson’s statement to police.
While Smothers’s wiretap statements to Featherson are not what one would
expect a totally innocent person to say, they, too, do not refer to any
agreement with Sennett or a third party to kill Carter. Smothers’s DNA in
the master bathroom obviously places Smothers in Carter’s bathroom at some
time near when the murder was committed, but it does not establish evidence
of any connection between Smothers and Sennett. Featherson’s conditional
examination testimony, which the People describe as “unexplainable except
as a testament to the truth by a dying man,” provided ample evidence for a
murder conspiracy but never included Sennett in that conspiracy.
Accordingly, we are compelled to find that trial counsel was ineffective
for failing to present evidence of Sennett’s identity to the jury, and that the
failure to do so was prejudicial to Smothers. We reverse on this basis.
(People v. Montoya (2007) 149 Cal.App.4th 1139, 1148 [“We reverse on the
ground of inadequate assistance on appeal only if the record affirmatively
discloses no rational tactical purpose for counsel’s act or omission.”].) We
need not address Smothers’s other IAC claims given these issues are unlikely
to recur in the event of retrial. In light of our reversal, we also do not reach
Smothers’s claims of error related to the motion for new trial or cumulative
error as, they too, are unlikely to recur in the event of retrial.
53
D. Uncharged Conspiracy Instruction
Although we need not reach the issue of whether the court erred in its
uncharged conspiracy instruction, in light of our reversal, we will do so here
to provide guidance to the trial court if a retrial of this matter is conducted.
(See People v. Neely (1993) 6 Cal.4th 877, 896.) 3
Smothers contends the court committed an instructional error when it
allowed the jury to convict him of an uncharged conspiracy without finding
an essential element of the charge, namely, that he and the killer had an
agreement to murder. Smothers contends the court had a sua sponte duty to
tailor CALCRIM No. 416 (CALCRIM 416) to the facts and issues of the case
but erroneously did not do so. In Smothers’s view, the absence of
specification in the instruction left jurors “free to conclude . . . that any
person who killed [Carter], by virtue of that fact alone, was acting pursuant
to an agreement with [Smothers] and, consequently, [Smothers] could be held
liable for that killing.” He contends he “was denied the jury’s consideration of
what should have been an essential element if it were to convict him on a
conspiracy-based murder theory, namely, that the perpetrator of the murder
and defendant were coconspirators in the uncharged conspiracy to commit
murder.” Relatedly, he contends that “although the court had a sua sponte
duty to explain that defendant could not be found guilty through a conspiracy
theory based on murder committed by one who was not a coconspirator of
defendant, it did not do so.” We agree on both points. In light of Smothers’s
3
As an initial matter, the People argue Smothers forfeited this claim on
appeal because he did not object or request a clarifying or amplifying
instruction. Since we offer this analysis for guidance, we will proceed to
consider Smothers’s arguments on the merits without addressing the People’s
forfeiture contention.
54
multiple possible coconspirators, clarification of the uncharged conspiracy
instruction, if given, may be appropriate on retrial.
California Supreme Court decisions have “ ‘long and firmly established
that an uncharged conspiracy may properly be used to prove criminal liability
for acts of a coconspirator. [Citations.] “Failure to charge conspiracy as a
separate offense does not preclude the People from proving that those
substantive offenses which are charged were committed in furtherance of a
criminal conspiracy [citation]; nor, it follows, does it preclude the giving of
jury instructions based on a conspiracy theory [citations].” ’ ” (People v.
Valdez (2012) 55 Cal.4th 82, 150.)
The court has a sua sponte duty to give CALCRIM 416, Evidence of
Uncharged Conspiracy, when the prosecution has not charged the crime of
conspiracy but has introduced evidence of a conspiracy to prove liability for
other offenses. (People v. Williams (2008) 161 Cal.App.4th 705, 709
(Williams).) The instruction sets forth the four elements that the prosecution
must prove for an uncharged conspiracy. As stated in CALCRIM 416, the
first element the People must prove is that “[t]he defendant intended to agree
and did agree with [one or more of] (the other defendant[s]/[or]
_____________________“)
to commit _______[.]” 4 Accordingly, when giving the
instruction, the Judicial Council directs trial courts to insert the names or
otherwise describe the other person(s) involved in the conspiracy, when they
are not the defendant’s codefendants. The Bench Notes to CALCRIM 416
4 The other elements for an uncharged conspiracy are: (2) at the time of
the agreement, the defendant and the other member(s) of the conspiracy
intended that one or more of them would commit the crime; (3) the defendant
or the other member(s) of the conspiracy committed an overt act to
accomplish the crime; and (4) the overt act was committed in California. (See
Williams, supra, 161 Cal.App.4th at pp. 709–710.)
55
underscore the point, stating: “In elements 1 and 3, insert the names or
descriptions of the alleged coconspirators if they are not defendants in the
trial.” (See CALCRIM No. 416.) 5
Instructional error is determined from the entire charge of the court,
not by isolated parts of the instructions or from one particular instruction.
(People v. Smithey (1999) 20 Cal.4th 936, 963–964.) Rather, a reviewing
court reads the instructions as a whole to determine whether there is a
reasonable likelihood they confused or misled the jury. (See, e.g., People v.
Hughes (2002) 27 Cal.4th 287, 341.) We presume the jurors understood,
correlated, and correctly applied the instructions. (People v. Carey (2007) 41
Cal.4th 109, 130.) “The independent or de novo standard of review is
applicable in assessing whether instructions correctly state the law [citations]
and also whether instructions effectively direct a finding adverse to a
defendant by removing an issue from the jury’s consideration.” (People v.
Posey (2004) 32 Cal.4th 193, 218.)
Here, the court granted the prosecution’s request, and instructed on
uncharged conspiracy with CALCRIM 416. The instruction was as follows:
“The People have presented evidence of a conspiracy. A member of a
conspiracy is criminally responsible for the acts or statements of any other
member of the conspiracy done to help accomplish the goal of the conspiracy.
[¶] To prove that the defendant was a member of a conspiracy in this case,
the People must prove that: [¶] 1. The defendant intended to agree and did
agree with one or more other persons to commit murder; [¶] 2. At the time of
the agreement, the defendant and one or more of the other alleged members
of the conspiracy intended that one or more of them would commit murder;
5 Although CALCRIM Bench Notes do not have the force of law (see
People v. Alvarez (1996) 14 Cal.4th 155, 223, fn. 28), reviewing courts look to
them for guidance. (See, e.g., Williams, supra, 161 Cal.App.4th at p. 709.)
56
[¶] 3. The defendant, or a co-conspirator, or both of them, committed at least
one of the following overt acts to accomplish the murder: [¶] (a) Travel to
Marsha Carter’s residence; [¶] (b) Entry into Marsha Carter’s residence; and
[¶] (c) Killing of Marsha Carter; [¶] AND [¶] 4. At least one of these overt
acts was committed in California.”
The court further instructed, “To decide whether the defendant and the
other alleged member of the conspiracy intended to commit murder, please
refer to the separate instructions that I will give you on that crime. [¶] The
People must prove that the members of the alleged conspiracy had an
agreement and intent to commit murder. The People do not have to prove
that any of the members of the alleged conspiracy actually met or came to a
detailed or formal agreement to commit th[e] crimes. An agreement may be
inferred from conduct if you conclude that members of the alleged conspiracy
acted with a common purpose to commit the crime.”
As we have repeatedly noted, the jury found Smothers guilty of the first
degree murder of Carter but found the enhancement that Smothers
personally used the weapon that killed her to be not true. As we have stated
before, based on these verdicts, the trial court observed that “the jury’s
verdicts in this case are most consistent with the theory that [Smothers]
conspired with Mr. Mayfield and/or a third person, which obviously is likely
to be Mr. Sennett, to kill his girlfriend and that she was stabbed by someone
other than [Smothers] at [Smothers’s] behest.”
The court did not follow the Judicial Council’s Bench Note to “insert the
names or descriptions of alleged coconspirators if they are not defendants in
the trial” in its CALCRIM 416 instruction. The court neither named or
described Smothers’s alleged coconspirators, stating only that the People had
to prove that “[t]he defendant intended to agree and did agree with one or
57
more other persons to commit murder.” Given the evidence supported the
possible existence of multiple coconspirators (Mayfield, Featherson, and
Sennett), the absence of names or descriptors could have readily led to jury
confusion. Absent names or descriptions of the coconspirators, a reasonable
juror could conclude that it did not matter who Smothers’s alleged
coconspirators were. The jurors could have believed that any person who
killed Carter was acting pursuant to an agreement with Smothers without
finding Smothers and the killer had actually entered into a conspiratorial
agreement. A rational juror could have concluded that the unidentified male
contributor of the fingernail DNA was the actual killer (especially since the
Crime Lab’s analysis excluded Smothers and Mayfield), and that he
conspired with Smothers to kill Carter. CALCRIM 416, as modified, would
have permitted the juror to find Smothers guilty even when there is
absolutely no evidence in the record that Smothers and the unidentified male
had any connection, or ever entered into an agreement to commit murder. 6
In addition to providing the suggested specification and tailoring by
inserting the names or otherwise describing the others involved in the
conspiracy, Smothers states “[a]ll that needed to be done to ensure the jury
would consider all the requisite elements of conspiracy liability was to
include language such as that found in CALCRIM No. 417 (CALCRIM 417).
We agree. CALCRIM 417, denominated “Liability for Coconspirators’ Acts,”
states, “A member of a conspiracy is criminally responsible for the crimes
6 The People do not dispute that the action of a “non-member of a
conspiracy” cannot confer liability on those who are a part of a conspiracy,
and they further assert several reasons why the court’s CALCRIM 416
instruction resulted in “no reasonable likelihood of a misunderstanding” that
would have allowed a conspiracy conviction based on a non-member’s
conduct. It is unnecessary to address the People’s arguments in light of a
possible retrial with modified instructions.
58
that he or she conspires to commit, no matter which member of the
conspiracy commits the crime.” (CALCRIM No. 417.) According to the Bench
Notes, the following paragraph should also be given “when supported by the
evidence”: “The defendant is not responsible for the acts of another person
who was not a member of the conspiracy even if the acts of the other person
helped accomplish the goal of the conspiracy.” (CALCRIM No. 417, Bench
Notes.) Given the evidence in this case includes DNA evidence in Carter’s
fingernail scrapings that matched a man who appears nowhere in the
prosecution’s primary witness’ rendition of the conspiracy, such an additional
instruction would be supported by the evidence. At the risk of stating the
obvious, the addition of such an instruction would make it more clear that
Smothers could only be convicted of murder on a conspiracy theory if there
was evidence beyond a reasonable doubt that he conspired with the actual
murderer. 7
DISPOSITION
The judgment is reversed and remanded.
7
Another option would be a “hybrid general verdict form,” which
accompanies a general verdict form, thereby allowing the jury to also make
special findings. (See People v. Gurule (2002) 28 Cal.4th 557, 632 [approving
hybrid general verdict forms in contrast to special verdicts which are not
approved in criminal trials]; People v. Davis (1995) 10 Cal.4th 463, 511
[special “findings” may accompany a general criminal verdict, even if not
expressly authorized by statute, as long as they do not interfere with the
jury’s deliberative process].) For example, the jury could be asked whether it
found Smothers and each coconspirator specifically intended to enter into an
agreement to murder Carter or something to that effect.
59
_________________________
Wiseman, J. *
WE CONCUR:
_________________________
Petrou, Acting P.J.
_________________________
Jackson, J.
A156081/People v. Smothers
*Retired Associate Justice of the Court of Appeal, Fifth Appellate District,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
60
Trial Court: Contra Costa County Superior Court
Trial Judge: Hon. John W. Kennedy
Counsel: Xavier Becerra, Attorney General, Lance E. Winters, Chieg
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, for
Defendant and Appellant.
61