Grimes

I. FACTS

A. Guilt phase

1. The offenses In October 1995, defendant, then 33 years old, was staying with a friend, Sheila Abbott (Sheila), in her trailer. Also staying in the trailer were Sheila‟s son, Shane Fernalld; her daughter, Misty Abbott (Misty); and Misty‟s boyfriend, Patrick James Wilson, then 19 years old. On the morning of October 18, John Morris, a 20-year-old friend of the family, arrived at Sheila‟s trailer. At approximately noon, Morris, Wilson, and defendant obtained some medical gloves and bandanas from the trailer. They tried on the bandanas, placing them over their mouths, before putting them in their pockets. They then drove Morris‟s red sports car to a house in Redding shared by 98-year-old Betty Bone and her daughter. They ransacked the house and took property, including a .38-caliber handgun, a

2 portable music player, some jewelry, a rifle, a telephone in a Styrofoam box, and a brown truck. Bone was killed. Her body showed evidence of blunt force trauma to the head, ligature strangulation, and stab wounds. There was a telephone cord and a bandana around her neck. There was bruising on her tongue and lip that was likely caused by a gag. Her injuries were…

A jury convicted defendant Gary Lee Grimes of one count of murder with burglary and robbery special circumstances and one count each of robbery, burglary, conspiracy to commit robbery, conspiracy to commit burglary, and the unlawful driving or taking of a vehicle. (Pen. Code, §§ 182, subd. (a), 187, subd. (a), 190.2, subd. (a)(17), 211, 459; Veh. Code, § 10851, subd. (a).) 1 In connection with the murder, robbery, burglary, and conspiracy counts, the jury found true allegations that defendant inflicted great bodily injury upon the victim, an elderly person (§ 1203.09, subd. (a)), and that the offenses were committed while defendant was on parole (§ 1203.085, subd. (b)). In a bifurcated proceeding, the trial court found true allegations that defendant had served four prior prison terms (§ 667.5, subd. (b)) and had been convicted of a serious or violent felony within the meaning of the “Three Strikes” law (§ 1170.12). The jury returned a verdict of death. The trial court sentenced defendant to death for the murder and imposed a term of six years for the driving or taking of a motor vehicle and four one-year terms for the four prior prison term allegations. Sentences on the…

Concurring and Dissenting.—This court originally affirmed the judgment of death in this case, rejecting defendant Gary Lee Grimes’s argument that the exclusion of certain hearsay statements at his trial amounted to prejudicial error. After granting rehearing, a majority of this court now agrees with defendant that these statements should have been admitted under the exception to the hearsay rule applicable to statements against interest. (Evid. Code, § 1230.) The majority also concludes that although the exclusion of these statements was harmless at the guilt phase, the perceived possibility of a different outcome at the penalty phase means that the judgment of death must be reversed.

I respectfully disagree with the majority’s assessments of error and prejudice. This court was correct when it originally found no reversible error in the trial court’s rulings as to the disputed statements. On rehearing, I have given careful reconsideration to these issues and find even more reason now to *740 conclude that the trial court did not abuse its discretion in excluding one of these statements, and no reasonable possibility that introduction of the other proffered evidence would have…