Cook v. State

940 S.W.2d 623, 1996 Tex. Crim. App. LEXIS 226, 1996 WL 638229

• Court: Court of Criminal Appeals of Texas
• Decided: November 6, 1996
• Docket: 71855
• Status: Published

Opinions

OPINION

MANSFIELD, Judge.

Appellant was initially indicted for this offense, a capital murder alleged to have been committed in Smith County in 1977, in 1978. He was convicted and was sentenced to death. We affirmed his conviction and death sentence in 1987. Cook v. State, 741 S.W.2d 928 (Tex.Crim.App.1987). Following the Supreme Court’s vacating and remanding of our judgment,¹ we reversed the judgment and remanded the cause to the trial court. Cook v. State, 821 S.W.2d 600 (Tex.Crim.App.1991). In 1992, appellant’s first retrial ended in a mistrial after the jury was unable to reach a verdict.

In 1994, appellant was tried a third time.² The third trial resulted in appellant’s conviction. Appellant was sentenced to death after the jury answered both special issues in the affirmative. Direct appeal to this Court is automatic. Tex.Code Crim.Proc. Art. 37.0711, § 3(h)) (now Art. 87.071, § 3(h)). Appellant raises fifty-five points of error. We reverse and remand.

The complainant, Linda Jo Edwards, was involved in an affair with James Mayfield, a married man, for the eighteen month period prior to her murder. Approximately three weeks before the complainant’s death, May-field left his wife and moved into an apartment with the complainant. During its investigation of the crime, the Smith County District Attorney’s office found that May-field’s sixteen-year-old daughter, Louella, had made repeated death threats against the complainant to third parties as well as one directly to the complainant just a few days before the murder.

Mayfield ended the affair and moved back to his wife’s house in May of 1977. The complainant subsequently tried to kill herself but, after being found unconscious by May-field and brought by him to the hospital, recovered. After her recovery, she moved into an apartment with Paula Rudolph, at the same complex where she had previously lived with Mayfield. Mayfield’s affair with the complainant became public after her suicide attempt and contributed to the loss of his position as Dean of Learning Resources at Texas Eastern University in late May of 1977.

In early June of 1977, appellant, who lived in Dallas, moved into an apartment with James Taylor. The apartment was in the same complex as the complainant’s. At trial, Rodney and Randy Dykes, Taylor’s nephews, testified appellant told them he had watched a woman undress through the window of an apartment while returning from the pool.³ The following day, appellant sent Rodney over to two females at the pool, one of whom matched the complainant’s description, to tell them appellant was interested in them. Rodney testified they expressed no interest in appellant. Appellant and Rodney then left the pool, returned to the apartment and ate supper. Appellant left after dark.

Appellant returned later that night. Rodney testified he gave appellant a back rub and noticed “hickeys” on appellant’s neck, which he had not observed earlier.

On June 9, appellant and Robert Hoehn, who arrived at Taylor’s apartment at about 10:30 PM, watched a cable move, The Sailor Who Fell from Grace with the Sea, which involved a mutilation of a cat and an insinuation of a genital mutilation of a seaman by a group of children. During the movie, appellant and Hoehn went to the pool for awhile. On their way to the pool, appellant showed the complainant’s window to Hoehn and told him an attractive woman lived there. They returned and watched the rest of the movie. During the mutilation scene, appellant masturbated. Hoehn testified they left for the store to get cigarettes at about midnight and returned about 12:30 AM.⁴ Hoehn dropped appellant off at the entrance to the apartment complex instead of dropping him off directly at Taylor’s apartment, and drove away.

Until about 10:30 PM on June 9th, the complainant was at an apartment of some friends. She informed her friends she had to return to her apartment because her roommate, Rudolph, was leaving about 10:30 PM and she needed to get home before she left. Rudolph testified she returned to the apartment shortly after 12:30 AM. She saw a man through the open door to the complainant’s bedroom and assumed it was the complainant’s boyfriend, Mayfield. She testified she told him, in effect, “it was her and don’t worry about it.” Although he did not look like Mayfield, it was dark and she decided it must have been him and went to her room after the man closed the door to the complainant’s room.

When Rudolph got up the next morning, she discovered the complainant’s body. The autopsy disclosed she had been struck in the head with a statue, stabbed numerous times and severely mutilated, most notably in the genital area. Fingerprints subsequently identified as appellant’s were found on the sliding glass door to the patio of complainant’s apartment. Appellant was subsequently arrested and indicted for the capital murder of complainant.

In his third and fourth points of error, appellant contends the Due Process Clause of the Fourteenth Amendment to the United States constitution and the Due Course of Law provisions of Articles I, Sections 13 and 19, of the Texas Constitution prohibited appellant’s second retrial because the Smith County District Attorney’s Office engaged in egregious prosecutorial misconduct during the period of time commencing with the murder investigation and including appellant’s first two trials.

This case presents an issue of first impression, namely, whether prosecutorial misconduct, magnified by the passage of over fourteen years and the death of a key witness, can so degrade the normal workings of justice that a fair trial becomes impossible and thus retrial is forbidden under due process and due course of law principles.

During its investigation of the crime, the Smith County District Attorney’s Office found that Mayfield’s sixteen-year-old daughter, Louella, had made repeated death threats against complainant to third parties as well as one directly to complainant just a few days before the murder. The investigation also revealed Louella falsely identified herself as an investigator with the Tyler Police Department to the manager of the apartment complex where complainant lived and told the manager that she was investigating a homicide involving Jim Mayfield and a Linda Jo Edwards (this conversation took place two weeks before Edwards’ murder.) The district attorney did not reveal this information to appellant until 1991, fourteen years after the murder. Additionally, a report drafted by a Tyler Police Department sergeant, in which he states he “personally knows Louella to be mentally and emotionally unstable, very hyperactive and a pathological liar,” was not revealed to appellant until 1991. The only two witnesses who supported James Mayfield’s alibi that he was asleep at his wife’s house at the time complainant was murdered were his wife and Louella. Failure to provide appellant with the potentially exculpatory information concerning Louella Mayfield was prosecutorial misconduct viola-tive of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Other prosecutorial misconduct in this case included the following:

1. Misrepresentation during appellant’s first trial of a deal made by the Smith County District Attorney’s Office with Edward “Shyster” Jackson, who was in custody awaiting trial on a murder charge. In exchange for having the pending murder charge reduced to involuntary manslaughter with a two-year sentence, including credit for time served, Jackson testified appellant made a jailhouse confession that he killed complainant. The State implied during closing argument it had made no deal with Jackson in order to procure his testimony. After he was released, Jackson admitted his trial testimony was a total fabrication. This information was not provided to appellant until 1991.

2. The district attorney’s office failed to reveal to appellant it possessed evidence appellant and complainant knew each other. Despite having this evidence, the State presented, at appellant’s first trial, its theory that appellant and the complainant were total strangers and he had not been to her apartment until the evening of her murder. This potentially exculpatory evidence not revealed to appellant included grand jury testimony by Rodney Dykes that appellant told him he met complainant at the pool three or four days prior to her murder and then went to her apartment, where he received “passion marks on his neck.” The State did not provide this “highly exculpatory” testimony to appellant until years after appellant’s first trial.

3. The State failed to reveal to appellant, at his first trial, a prior inconsistent statement by a key prosecution witness, Robert Hoehn. Hoehn testified at appellant’s first trial he had homosexual sex with appellant shortly before the murder and that appellant had watched, and became aroused by, a movie, The Sailor Who Fell from Grace with the Sea, that evening. This highly prejudicial testimony was directly contradicted by Hoehris earlier sworn testimony before the grand jury in which, while admitting he was a homosexual, he said he had not had sex with appellant. He also testified appellant paid no attention to the movie. The State did not disclose Hoehris grand jury testimony to appellant until after commencement of appellant’s second trial and after Hoehris death. Hoehris death also made it impossible for appellant to impeach Hoehris testimony with a prior statement he made to the district attorney’s office that he had not had sex with appellant.

4. The State introduced misleading testimony at appellant’s first trial as to the age of fingerprints found to be those of appellant and found at complainant’s apartment. The State’s witness testified they were six to twelve hours old, which placed appellant at the scene at the time the murder was committed. However, the witness, Sgt. Collard, admitted, in writing and in response to a grievance filed against him in 1978, his “expert opinion” regarding the age of the fingerprints was not in fact an expert opinion, was a mistake which could not be supported by any scientific evidence or by any other latent fingerprint expert, and that the district attorney had pressured Collard to present the false and misleading evidence against Collard’s wishes. Collard’s written statement was not disclosed to appellant until 1992.

5. Attempts by an assistant district attorney to interview appellant without the presence of appellant’s attorney and without the knowledge of appellant’s attorney prior to appellant’s second trial.

Due process requires the State to disclose exculpatory evidence to one accused of a crime. Brady v. Maryland, supra; Moore v. Illinois, 408 U.S. 786, 794-795, 92 S.Ct. 2562, 2567-68, 33 L.Ed.2d 706 (1972); Kyles v. Whitley, 514 U.S. 419,-, 115 S.Ct. 1555, 1568-69, 131 L.Ed.2d 490 (1995). In Kyles the Supreme Court held the government has the duty to disclose exculpatory evidence, even in the absence of a request by the defendant, if the withheld evidence, considered as a whole, results in a “reasonable probability” that a different result would have occurred. The defendant is only required to show that the government’s failure to disclose the exculpatory evidence “undermined confidence in the outcome of the trial.” Whether the prosecutor or the police acted in good or bad faith in failing to disclose exeul-patory evidence is immaterial. Kyles v. Whitley, 514 U.S. at -, 115 S.Ct. at 1568-1569.⁵

Failure to disclose impeachment evidence favorable to the defendant upon request is constitutional error only if its suppression undermines confidence in the outcome of the trial. United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). See also, Thomas v. State, 841 S.W.2d 399, 402 (Tex.Crim.App.1992).

Prior to his third trial, appellant filed a pretrial habeas corpus petition in which he averred prosecutorial misconduct was so egregious as to have deprived him of the ability to present an effective defense. Therefore, state and federal constitutional due process, due course of law and double jeopardy provisions barred his retrial. The habeas court’s findings established numerous undisputed acts of misconduct by the district attorney’s office, some of which are described above. While we are not bound by the findings of the habeas court, we generally accept them, absent an abuse of discretion. Ex parte Brandley, 781 S.W.2d 886, 887 (Tex. Crim.App.1989); Ex parte Adams, 768 S.W.2d 281 (Tex.Crim.App.1989); Ex parte Castellano, 863 S.W.2d 476, 485-486 (Tex.Crim.App.1993). The habeas court denied relief, however.

Prosecutorial and police misconduct has tainted this entire matter from the outset.⁶ Little confidence can be placed in the outcome of appellant’s first two trials as a result, and the taint, it seems clear, persisted until the revelation of the State’s misconduct in 1992.

Much of the earlier misconduct by the State was cured prior to appellant’s third trial. The misconduct with respect to Edward “Shyster” Jackson’s testimony was not relevant as Jackson did not testify at the third trial. The State’s misconduct with respect to Collard’s testimony was corrected by full disclosure prior to appellant’s third trial. Rodney Dykes and his brother were available and testified at appellant’s third trial, providing appellant an opportunity to correct the State’s suppression of statements the Dykes brothers made which were exculpatory with respect to appellant.

The death of Robert Hoehn, however, precluded appellant from investigating the contradictions between his testimony at trial and before the grand jury, and between his trial testimony and his statement to the police. Hoehn’s testimony was crucial as it placed appellant near the scene of the murder in an aroused emotional state at the time of its commission. Hoehn’s trial testimony also contradicted his statement to the police concerning whether appellant watched a movie on television which, the State averred at trial, inflamed appellant just prior to the time the murder was committed. Use of Hoehn’s testimony at appellant’s third trial, under these circumstances, casts serious doubts as to the fairness of appellant’s third trial and the reliability of the proceeding against him. Accordingly, reversal of appellant’s conviction is mandated by the Due Process Clause of the United States Constitution as well as the Due Course of Law provision of the Texas Constitution.

We do find that, consistent with constitutional principles, a retrial of appellant is possible, assuming, of course, the State elects to retry him. However, we are convinced that Hoehn’s unavailability for any retrial, given the Supreme Court’s holdings in Brady, Moore, Kyles and Bagley, would bar use of his testimony from appellant’s prior trials or any statements he may have given concerning this case at any such retrial. Clearly, any testimony or statements of Hoehn are tainted by the State’s prior misconduct, which cannot now be corrected by cross-examination or other means and fundamental fairness and due process forbid their use at any retrial of appellant.

With respect to Louella Mayfield, we recognize the passage of time, coupled with the State’s earlier suppression of evidence which strongly suggested she was a viable suspect in the murder, has complicated appellant’s opportunity to investigate and develop a potential defense based on her as a viable suspect. See Ex parte Mitchell, 853 S.W.2d 1 (Tex.Crim.App.1993). The record, however, does not state Louella is unavailable.

If appellant is retried, he will be free to call Louella as a witness and will have available, at the very least, the Tyler Police report labeling her as a pathological liar, as well as the results of the investigation placing Louella at the complainant’s apartment complex at or near the time of the murder and describing threats she made against complainant. While the combination of the passage of many years plus State misconduct may well complicate appellant’s construction of a defense based on Louella’s being a viable suspect, the record does not support appellant’s contention that it is not, at this late date, possible to do so.⁷

For the reasons stated above, we sustain appellant’s third and fourth points of error, reverse the judgment of the trial court and remand this cause for further proceedings consistent with this opinion.

CLINTON, J., not participating.

1 . Cook v. Texas, 488 U.S. 807, 109 S.Ct. 39, 102 L.Ed.2d 19 (1988).

2 . The first two trials were conducted in Smith County; the third trial was held in Williamson County.

3 .It was established at trial the window was to the apartment complainant shared with Paula Rudolph. Other testimony at trial established the complainant was careless about closing the curtains and was often seen, nude, through the window of her apartment.

4 . Hoehn is now deceased.

5 . In Kyles, the Supreme Court, in effect, held the prosecutor is responsible for material exculpatory information in the possession of the police, and reversal of a criminal conviction for failure to disclose material exculpatory information to the defendant by the police is mandated by Brady, supra, even if the prosecution was not aware of the existence of such information. In the present case, the habeas court found the prosecutor knew of several items of material exculpatory information described above in the possession of the police but failed to disclose them to appellant.

6 . We note the acts of misconduct on the part of the Smith County District Attorney's Office and the Tyler Police Department took place nearly twenty years ago and we do not imply any complicity in said acts on the part of the current District Attorney or current members of the Tyler Police Department.

7 . Because we find that it is possible, consistent with the Supreme Court’s holding in United States v. Morrison, 449 U.S. 361, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981), to neutralize the taint of the State's prior misconduct while preserving society’s interest in prosecution of criminal activity by reversal and remand, we reject the remedy advocated by appellant, namely dismissal of the prosecution with prejudice and thereby precluding retrial.