Ambush Tainted Accused Wife Killer’s Conviction

(CN) - California prosecutors improperly "ambushed" a man on trial for murdering his wife with a new theory of the case just before it went to jury, the 9th Circuit ruled Monday.

The federal appeals court in Pasadena affirmed habeas corpus relief to Marvin Smith, a septuagenarian businessman serving 25 years to life for allegedly murdering his wife in 2005.

Smith told police his wife of nearly 30 years had been bound and beaten to death with a fireplace tool by unknown burglars, but police later found jewelry allegedly taken from the scene in the trunk of his car, along with samples of the duct tape that was used to bind his late wife. Prosecutors in his murder trial in Orange County also showed evidence that Smith had told his former employee, Sam Matthews, that he would sooner kill his wife then allow her to divorce him, as she had threatened to do.

The defense argued that Smith, who was 70 at the time of the trial in 2007, couldn't have wielded the log roller because he had only recently had rotator cuff surgery. Smith also "insinuated" that Matthews, who owed him money, may have committed the murder, according to the ruling.

Just before the jury took up the case, prosecutors asked the trial court judge to tell the jury that they could also find Smith guilty if they believed he aided and abetted the murder rather than used the murder weapon himself. The defense objected without success, and the jury found Smith guilty of first-degree murder.

The California Court of Appeal later reversed the conviction, saying that the prosecution had failed to show the evidence of another killer that was required to justify the aiding-and-abetting jury instruction. The state attorney general took the issue to the California Supreme Court, which reversed the reversal and set up Smith's federal habeas corpus petition.

Smith argued that the aiding-and-abetting instruction had violated his right to due process under the U.S. Constitution, specifically his "constitutional right to adequate notice of the nature of the charges against him."

U.S. District Judge Otis Wright in Santa Ana granted the petition, and the 9th Circuit affirmed in a unanimous ruling published Monday.

"By requesting the jury instruction just before closing argument and without any prior indication that it was pursuing an aiding-and-abetting theory, the prosecution ambushed Smith and denied him a meaningful opportunity to prepare his defense," Judge Sidney Thomas wrote for the three-judge appeal panel.

From its opening statement to its final, the state argued that Smith had alone committed the crime, and introduced absolutely no evidence to the contrary, the panel found.

Nor did Smith's insinuation that Matthews may have committed the crime give rise to "aiding-and-abetting liability," the panel found.

"Contrary to the state's logic, implying that someone else killed the victim does not necessarily invoke a new question as to aiding and abetting," Thomas wrote. "Indeed, the defense theory was that Matthews had an independent motive to burglarize the house, and he knew facts about the murder scene unknown to others. However, pointing his finger at Matthews did not automatically implicate Smith as Matthews's accomplice, and it certainly did not show that he knew the prosecution was pursuing an aiding-and-abetting theory." (Emphasis in original.)

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