NEWS: Murderer's Death Sentence Reversed By 4-3 Vote On Rehearing
Brown Nominees Make Their Presence Felt In Rare Rehearing

by KEVIN LEE, DAILY JOURNAL STAFF WRITER
Aug 24, 2016

CALIFORNIA (Daily Journal) - The state Supreme Court has set aside the death penalty against Gary Lee Grimes by the slimmest of majorities, more than two decades after the defendant was sentenced.

Monday's 4-3 decision is a remarkable turnaround for Grimes, considering the high court just last year had affirmed the death penalty against him.

The about-face was prompted by the addition of two justices nominated by Gov. Jerry Brown, Mariano-Florentino Cuellar and Leondra R. Kruger.

Cuellar succeeded conservative stalwart Marvin R. Baxter, while Kruger took the seat vacated by Joyce L. Kennard.

Grimes and appointed counsel Cliff Gardner successfully petitioned the high court for rehearing within days of Cuellar and Kruger officially donning their robes.

Cuellar and Kruger joined another Brown nominee, Goodwin H. Liu, and the longest tenured member of the high court, Kathryn M. Werdegar, in support of rehearing the case.

The same group of four justices joined vacated the death penalty against Grimes in Monday's decision. Kruger wrote the majority opinion.

"It's never too late to reach the right decision and I'm glad they did," said Gardner, a Berkeley-based practitioner who has argued for Grimes three times before the Supreme Court. "It shows that in our profession, you need to persevere."

Grimes, convicted of murdering 98-year-old Betty Bone during a robbery and burglary in 1995, claimed a trial judge wrongly excluded statements by an accomplice that could have helped Grimes avoid a capital sentence.

The accomplice, John Morris, told acquaintances that Grimes was in another part of the house when Morris killed Bone.

On Monday, the high court majority found that the trial court was incorrect to exclude the statements made by Morris. The majority also concluded such an error was prejudicial against Grimes.

"We therefore conclude that Morris's statements... that he acted alone and that defendant and [accomplice Patrick James] Wilson appeared startled when [Morris] killed Bone were so disserving to his interests that a reasonable person in his position would not have made them unless they were true," Kruger wrote.

The majority also held that Grimes was a major participant in the crimes against Bone and affirmed the murder conviction with robbery and burglary special circumstances. People v. Grimes, 2016 DJDAR 8698.

Garner said that the case will return to Shasta County Superior Court unless prosecutors ask the justices to rehear the case.

If prosecutors wish to seek capital punishment against Grimes, they would have to retry the penalty phase. If no retrial is sought, Grimes would face life in prison without parole.

"The actual killer told people he was acting alone," Gardner said. "The jury considering whether [Grimes] should live or die should take into account whether he ordered the killing or whether he was surprised. It may not be dispositive but it is certainly relevant evidence for the jury."

Chief Justice Tani G. Cantil-Sakauye wrote in dissent that the trial court properly excluded the statements made by Morris as inadmissible hearsay. She added that she would have affirmed the death penalty sentence against Grimes.

"The majority needlessly complicates the law regarding statements against interest and opens the door to potentially untrustworthy hearsay," Cantil-Sakauye wrote.

The chief justice was joined in dissent by Justices Ming W. Chin and Carol A. Corrigan.

David S. Ettinger, a partner at Horvitz & Levy LLP who was not involved in the case, said the Grimes result is the most concrete example of the shift prompted by the recently installed Brown nominees.

"Rehearings happen almost next to never in the Supreme Court," Ettinger said. "But when they do happen, it's when there is a transition in the court."

Deputy Attorney General Stephanie A. Mitchell argued on behalf of the prosecution in Grimes. A spokeswoman for the attorney general's office said that prosecutors were reviewing the opinion.

Grimes is the second decision by the high court in as many weeks to vacate a capital punishment verdict.

Last week, the justices set aside a death sentence against Sergio Dujuan Nelson, who shot and killed two Target employees, because of a judge's improper interference with jury deliberations. People v. Nelson, 2016 DJDAR 8396.



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