Smith v. Baldwin

FISHER, Circuit Judge,

with whom SCHROEDER, WILLIAM A. FLETCHER, and PAEZ, Circuit Judges, join,

concurring:

Although I concur in the result the majority reaches, I write separately because I do not adopt all of its reasoning. Specifically, I would affirm the district court’s decision on narrower grounds, relying solely on the determination that Smith cannot overcome the high standard set by Schlup v. Delo, 513 U.S. 298 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995), with respect to element (d) of Oregon’s affirmative defense to felony murder. Thus, Smith cannot pass through the “gateway ... to have his otherwise barred constitutional claim[s] considered on the merits.” Id. at 315 , 115 S.Ct. 851 (internal citations and quotation marks omitted).

I agree we should assume there was prosecutorial misconduct, generally for the reasons spelled out in Judge Reinhardt’s and Judge Thomas’ dissents. I am not persuaded, however, that the facts of this case warrant skipping over the Schlup gateway to remedy this misconduct. Smith’s problem, even with Edmonds as a now-exculpatory witness, is his inability to demonstrate that, on the record as a whole, no reasonable juror would have concluded that he proved all the necessary elements of Oregon’s affirmative defense to felony murder.

I focus on the fourth element, which requires the defendant to prove that he “[h]ad no reasonable ground to believe that any other participant was armed with a dangerous or deadly weapon.” Or.Rev. Stat. § 163.115(3)(d). The plain language of Edmonds’ affidavits, in which he recants his previous statements that Smith killed Mr. Konzelman, does not satisfy Smith’s burden with regard to this element. At most, the affidavits would establish that Smith was not the real killer, but they do not resolve the separate question of whether Smith “had a reasonable ground to believe” that Edmonds was armed before he beat Mr. Konzelman with the crowbar.

To evaluate how a jury would likely resolve that question, our Schlup review “must consider all the evidence, old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under rules of admissibility that would govern at trial.” House v. Bell, 547 U.S. 518 , 126 S.Ct. 2064, 2077 , 165 L.Ed.2d 1 (2006) (internal citations and quotation marks omitted). Although this is a closer question than the majority indicates, I ultimately join its conclusion that Smith has not met his burden of proof to warrant passing through Schlup’s actual innocence gateway.

To characterize Edmonds’ statements as “occasionally” contradictory is an understatement. Op. 1131. As Judge Bybee described in his dissent from the three-judge panel decision in this case, “Ed-monds has given many accounts of that evening, which together encompass nearly every possible way that the burglary and murder might have occurred.” Smith v. Baldwin, 466 F.3d 805, 831 (9th Cir.2006) (Bybee, J., dissenting), reh’g granted, 482 F.3d 1156 (9th Cir.2007). For the purpose of Smith’s element (d) argument, the discrepancies regarding the Smith’s and Ed-monds’ respective comings-and-goings into the Konzelmans’ house are particularly pertinent.

At different times, Edmonds has alternatively said that: (1) Smith returned to the garage to obtain the rope and the crowbar after he and Edmonds had entered the house; (2) Smith already had the crowbar in his hands when they entered the house for the first time, and Smith *1150 returned to the garage only to get the rope; or (3) Edmonds didn’t “have any idea where the crowbar came in at,” because the first time he saw it was in the Konzelmans’ bedroom. In each re-telling of this story, there have been periods when Edmonds was alone in either the house or the garage while Smith was in the other location, and the order of who followed whom into the house has often changed. Depending on the time-line one accepts, Edmonds could have entered the house either before or after Smith, and removed the crowbar from the garage and carried it into the house without Smith’s knowledge. See SR Dissent at 1157 n.10. A reasonable juror could adopt this interpretation and conclude that Smith had no reason to know about the crowbar before Edmonds used it to beat Mr. Konzelman.

Under Schlup , however, Smith must prove that it is more likely than not that no reasonable juror would conclude that Smith had a reasonable ground to believe that Edmonds was armed. See, e.g., House, 126 S.Ct. at 2077 ; Carriger v. Stewart, 132 F.3d 463, 478 (9th Cir.1997). Smith cannot satisfy this high standard. Despite — or perhaps because of — the inconsistencies, a reasonable juror most likely would find that (1) there was a period when Edmonds and Smith were in the same location when Edmonds had the crowbar before he used it, and that (2) Edmonds could not conceal the three-foot weapon from Smith during this time — indeed, that he had no reason to do so. Because it is more likely than not that a reasonable juror would conclude that Smith had a reasonable ground to believe that Edmonds was armed, Smith cannot meet his burden with respect to element (d) of Oregon’s affirmative defense to felony murder.

In reaching this conclusion, I do not feel it useful to speculate on the contents of Edmonds’ hypothetical testimony if he were to testify at a hypothetical evidentia-ry hearing. I submit this is largely irrelevant to our inquiry given the nature of the cumulative record. Even if Edmonds testified that Smith did not know that he was carrying the crowbar, we must “assess how reasonable jurors would react to the overall, newly supplemented record.” House, 126 S.Ct. at 2078 (emphasis added). “If new evidence so requires, this may include consideration of ‘the credibility of the witnesses presented at trial.’ ” Id. (internal citations omitted). We must evaluate how a jury would respond to all of Edmonds’ statements, not just his hypothetical, exculpatory version. Given the numerous inconsistencies and contradictions in Edmonds’ various accounts, it is unlikely that reasonable jurors would find Edmonds’ new testimony sufficiently credible to rule out that Smith knew about the crowbar before Mr. Konzelman’s beating. See Schlup, 513 U.S. at 330 , 115 S.Ct. 851 (explaining that where “newly presented evidence may [] call into question the credibility of the witnesses presented at trial,” then “the habeas court may have to make some credibility assessments”). Therefore, viewed in the totality of all the circumstances, Smith cannot show that more likely than not, no reasonable juror would conclude that he had a reasonable ground to believe that Edmonds was armed. Consequently, regardless of Ed-monds’ hypothetical testimony, I conclude that Smith does not meet Schlup’s actual-innocence gateway standard with respect to element (d) of Oregon’s affirmative defense to felony murder.