Smith v. Lopez

A defendant initially provided sufficient notice of the charges against them, may have their constitutional right to this notice violated if a prosecutor "affirmatively" leads a defendant to believe the prosecutor won't seek to prove the defendant's guilt by some specific theory and the prosecutor subsequently does so.

Marvin Smith, was convicted of first degree murder in California. During the trial the prosecutor presented only evidence that Smith principally committed first degree murder. The prosecution asked for an “aiding-and-abetting instruction” during the jury instruction colloquy. Smith “strenuously objected” to this instruction as he “previously was unaware” that the state was relying on such a theory. The California state courts eventually affirmed Smith’s conviction, finding no harm to the defendant in applying the Guiton/Griffin prejudice standard. These courts found the factually unsupported instruction was not prejudicial error because, “there was no affirmative indication on the record that the jury based its guilty verdict solely on aiding and abetting.” Smith was granted a federal habeas petition on the grounds that this late state theory violated his constitutional right to adequate notice of the charge against him. The Ninth Circuit considered the defendant’s Sixth Amendment fundamental right to adequate accusatory notice for a meaningful opportunity to prepare an adequate defense. The panel found that the defendant’s original charging instrument initially put him on notice that he could be convicted on either principal or aiding and abetting theories. However, the panel found the state’s conduct both before and during the trial, “affirmatively led [the defendant] to reasonably believe” the state would not rely on an aiding and abetting theory. The panel distinguished the facts in this case from Guiton/Griffin. The panel noted the Guiton/Griffin analysis is used to determine whether a factually unsupported aiding and abetting instruction required reversal, a separate analysis from whether a defendant was given adequate accusatory notice. The panel found the error “had a substantial and injurious effect” and required reversal. Finding harm, the panel declined to determine whether a violation of the Sixth Amendment notice requirement is even subject to harmless error analysis. AFFIRMED.