Janecka v. State

823 S.W.2d 232, 1990 WL 6251

• Court: Court of Criminal Appeals of Texas
• Decided: February 12, 1992
• Docket: 68881
• Status: Published

Opinions

OPINION AFTER REMAND FOR EVIDENTIARY HEARING

W.C. DAVIS, Judge.

Appellant was convicted of capital murder under the remuneration section of V.T.C.A. Penal Code, Sec. 19.03(a)(3) and was sentenced to death by injection after the jury returned affirmative findings to the first two special issues under Art. 37.-071(b), V.A.C.C.P. On direct appeal we affirmed the conviction. Janecka v. State, 739 S.W.2d 813 (Tex.Cr.App.1987). Appellant then filed a motion for rehearing, alleging this Court erred in disposing of his first point of error wherein he contended the trial court erred in overruling his motion to quash the indictment as he was deprived of adequate notice by the State’s failure to include within the indictment the name of the individual providing the remuneration in the killing for which he was charged.¹

On original submission this Court found appellant had been denied a requisite item of notice but held the error to be a defect of form rather than substance. Applying the test set out in Adams v. State, 707 S.W.2d 900 (Tex.Cr.App.1986), we held the error to be harmless.²

Because Adams, supra, was decided after the instant cause was tried, we agreed with appellant in his motion for rehearing that he be given an opportunity to demonstrate harm as a result of the trial court’s error in overruling the motion to quash. We abated the appeal and ordered the trial court to hold a hearing to allow appellant the opportunity to fully develop his allegation of harm. Appellant’s remaining grounds for rehearing were denied. Janecka, 739 S.W.2d at 841-42.

The sole question presented is whether, in light of his opportunity to produce testimony and develop an adequate record at the evidentiary hearing held below, appellant is now able to demonstrate that the failure to name a remunerator in the indictment had an impact on his ability to prepare a defense and he was thereby harmed.

Pursuant to this Court’s order, a hearing was conducted on March 3, 1988. The State and defense produced expert and other lay witnesses who testified regarding the case. By agreement of the parties, the State was allowed to present its sole witness before the defense was put to its burden of proof in the matter. Robert A. Moen was the chief prosecutor in the Ja-necka case. He related details of the crime and testified that a plea agreement with accomplice Walter Waldhauser was completed prior to appellant’s trial.³ Moen remembered a motion to quash being filed by the defense, but he determined it was not necessary to file a new indictment alleging a remunerator.

The defense then called a series of five witnesses. Mack Arnold was the former chief prosecutor in the Gertrude Zabolio murder case, wherein Markham Duff-Smith was tried and convicted. See Duff-Smith v. State, 685 S.W.2d 26 (Tex.Cr.App.1985). He testified that Duff-Smith was indicted but never tried for the murders of the Wanstrath family. Waldhauser was available as a witness in the Zabolio case but was not called because he was considered untrustworthy and unreliable. If he had been called to testify, all the plea bargaining material, including the capital charges against him, would have been available for impeachment.

Attorney Robert Scardino, Jr. represented Waldhauser during the time in question and negotiated the plea bargain with the State, the contents of which by agreement were to remain secret. In order to avoid breaching the agreement of non-publicity, the hearing judge ordered the plea agreement admitted into the record as a sealed document. The attorney also informed the court that Waldhauser had since recanted his confessions.

Scardino was asked specific questions regarding the impact on the defense of the failure of the indictment to name Waldhau-ser as remunerator. In his opinion, by eliminating the remunerator, the State eliminated the necessity for proving who had paid for the killing. If Waldhauser had been named, he would have had to testify, thus opening the door for the defense to prove that someone other than the person named in the indictment had been the remunerator.

Counsel Kenneth Sparks next called himself to the witness stand. He testified the prosecutor had kept a closed file in the instant case, although the defense was allowed to inspect certain items of physical evidence. After the trial court overruled the motion to quash the defense was left with the sole strategy of attempting to show appellant’s confessions were involuntary. Because a remunerator was not named, the defense was unable to test the State’s proof regarding the identification of the remunerator, effectively eliminating the possibility of showing a variance between what was plead and what the State was able to prove, thereby eliminating defense strategies of moving for an instructed verdict, conviction on a lesser offense of murder rather than capital murder, impeachment of Waldhauser, or at the least, mitigation of punishment based upon Wal-dhauser’s active participation in the murder and favorable treatment through plea bargain with the State.

Attorney Doug O’Brien had also participated in the defense. He “totally agreed” with Sparks’s testimony.

Attorney Randy Shaffer was called as an expert witness and given a hypothetical using the same facts as in the instant case. Shaffer testified that trial counsel required actual, formal notice of the alleged remun-erator in order to adopt a strategy of attempting to secure a lesser conviction. Without a specific allegation in the indictment, the defense would be unable to cast doubt on the individual who was so named and thus raise the possibility of a lesser charge being given the jury. A formal allegation was also, in Shaffer’s opinion, necessary to possibly enable the defense to test the sufficiency of the evidence by either a motion for instructed verdict or to argue sufficiency on appeal. There was absolutely “no other way to do it.” On the punishment issue, Shaffer pointed out that evidence of Waldhauser’s favorable plea bargain could act to mitigate against imposition of capital punishment.

A Special Master, sitting by order of the trial court, made the following findings of fact:

1. The State’s file was closed to the defense, and the police offense report was not obtained by the defense from any other source.

2. The appellant’s confession among other things reveals:

a.Page 2, last paragraph — appellant stated that Walter Waldhauser never mentioned the name “Mark.”

b. Page 5, first paragraph — appellant read the name of Mark Duff-Smith in the newspaper and asked Walter Wal-dhauser about Duff-Smith’s involvement, but Waldhauser never directly confirmed that Duff-Smith was behind anything.

c. Page 5, fourth paragraph — appellant, and Walter Waldhauser split money for the murder, but there is no mention of the source of the funds or the identity of the remunerator.

d. Page 5, last paragraph — appellant “figured” Duff-Smith had something to do with it, but never met him.

3. The defense filed a motion to Quash the Indictment seeking the identity of the remunerator for the following reasons:

a. to seek information;

b. to be able to defend the capital element of remuneration to allow a jury verdict of the lesser included offense of murder;

c. to seek an instructed verdict at the close of the State’s case regarding:

(i) insufficient evidence as to the re-munerator;

(ii) a possible variance in proof regarding the remunerator.

4. The defense was unaware of what the State would attempt to prove regarding the identity of the remunerator except that the possibilities were Mark Duff-Smith and Walter Waldhauser.

5. Walter Waldhauser, co-defendant with appellant, made a written plea bargain agreement with the State prior to the date appellant’s trial began that included an agreement that he would be sentenced to thirty (30) years in the Texas Department of Corrections, and that he would not be prosecuted for other crimes that he had committed.

6. The written Waldhauser plea agreement would have been admissible for impeachment purposes had Waldhauser been called as a witness by the State.

1. Waldhauser was not called as a witness by the State. The jury was unable to hear the details of his plea bargain.

8. The defense made no attempt to demonstrate or establish harm resulting from the overruling of the Motion to Quash since the defense was not aware that it had any burden or requirement to do so. However, the Appellant’s Motion in Arrest of Judgment filed following conviction alleged that the failure to name the person providing the remuneration failed to give the defendant proper notice and left him unable to properly defend himself.

9. The defense strategy was, if Walter Waldhauser had been named in the indictment as the remunerator and been called as a witness and the appellant had been convicted of capital murder, then, appellant’s attorneys would have handled the punishment state (sic) and punishment argument differently. They would have compared and contrasted the light sentence of Walter Waldhauser by virtue of his plea bargain and the prosecution’s request to the jury for a death sentence for the appellant even though they were co-participants in the killings..

10. The defense never knew what theory the State would pursue during its case in chief regarding the identity of the remunerator except that it could be Duff-Smith or Waldhauser until the State rested its case and the defense then learned that the State was not going to prove any theory.

11. The defense was unable to rely on any allegation of the identity of the re-munerator by the State since the indictment did not contain an allegation regarding the identity of the remunerator.

12. Markam (sic) Duff-Smith was never prosecuted for the Wanstrath killings.

In the present case, after reviewing the record and prior opinions in the case, we find the Special Master’s findings of fact relative to the issue on remand are supported by the record and will be adopted by this Court. We may now turn to the legal question upon which the cause was remanded; that is, whether appellant was successful in demonstrating he suffered harm as a result of the defect in form under the Adams standard.

Based upon the findings of fact, his review of the appellate record, and all documents in the trial court’s file, the Master made the following conclusions of law:

1. The appellant was harmed by the State’s failure to name the remunerator in the indictment and the Court’s failure to grant the appellant’s Motion to Quash the Indictment.

2. The lack of an allegation regarding the identity of the remunerator in the indictment had a negative impact on the appellant in terms of preparing and conducting his defense.

3. The State was never put to a test of proof regarding the identity of the re-munerator by its failure to allege the remunerator.

4. The testimony of Walter Waldhau-ser, if called as a witness by the State, would have provided ammunition for the defense to impeach him and would have provided an unfavorable comparison between the punishment of Waldhauser and the requested punishment of appellant.

5. The defense was deprived of the opportunity to establish a variance or contest the sufficiency of the evidence regarding the identity of the remunerator. The above findings and conclusions were

subsequently adopted by the trial court on March 11, 1988. The record of the eviden-tiary hearing, together with the findings and conclusions above, were subsequently filed with the Clerk of the court.

It is a question of law under the Adams standard whether, “in the context of the case, this (failure to convey some requisite item of ‘notice’) had an impact on the defendant’s ability to prepare a defense, and finally, how great an impact.” Adams, 707 S.W.2d at 903. The trial court, through the Special Master, was correct to review the record for prejudice to appellant’s substantial rights from the defect of form in the charging instrument as directed by this Court’s remand instructions. Although we are not bound by those conclusions of law, in the instant case we are constrained to hold that the conclusion reached by the trial court is supported by the record. Appellant was faced with the possibility of defending against an allegation naming one or both possible remunerators: Markham Duff-Smith and Walter Waldhauser. In addition to the indictment being silent as to who paid for the killing, the prosecutor’s file was not open for inspection by defense counsel. It is difficult to measure the equity in requiring a defendant to prepare for trial, especially in a capital case, without benefit of notice of a highly material, if not “substantive” factor being revealed by the State in its indictment which will allow investigation and strategic decisions regarding the case to be made.

Unlike the case in Adams, supra, the instant cause does not concern a choice of unnamed but substantially similar descriptive elements in the indictment. There, Adams contended he was hindered from preparing his defense against a charge of obscenity because the State failed to allege which of two films were allegedly obscene. Without notice of what material was allegedly obscene, Adams contended, he could not prepare an adequate defense. We agreed with the Court of Appeals’ finding that the motion to quash should have been granted for failure of notice but also agreed with that panel’s conclusion that Adams had failed to show his substantial rights had been prejudiced by the defect in form. Because the films were so similar, in that they depicted essentially the same conduct or sexual acts, Adams could not possibly have defended on a theory applicable to one film but not the other.

In contrast, the instant case presents a different scenario. The similarity with Adams, supra, ends with the number of possible descriptive elements which could have been included to provide notice of the offense. If the indictment had named Duff-Smith as the remunerator, the record reflects the defense would have provided testimony showing Waldhauser never directly confirmed Duff-Smith’s involvement and never mentioned the name “Mark” to appellant. Waldhauser’s own statements, never an issue at trial because he was not called as a witness, showed money was shared between himself and appellant, but did not identify the source of the funds as Duff-Smith. Absent sufficient proof of Duff-Smith as remunerator, the defense strategy would have been to seek a conviction on the lesser offense of murder, thus avoiding the death penalty, or to set up an issue for appeal concerning a variance between the allegations in the indictment and the proof at trial.

Similarly, the facts elicited at the eviden-tiary hearing reflect that the defense could have benefited if Waldhauser had been named as remunerator. Waldhauser had in fact been named in another related and pending indictment, a fact which may perhaps reflect upon the State’s motivation in structuring the instant charging instrument but has no practical effect upon the disposition of this appeal. The basic strategy of the defense, had Waldhauser been named as remunerator, and assuming Wal-dhauser would have been called to testify, would have been to first attempt to impeach Waldhauser with his plea agreement. If a capital conviction was nevertheless returned, the defense would point out that Waldhauser, an active participant in the killings, had been granted leniency by the State, the inference being that appellant deserved an equal sentence. While we may review such contentions with some skepticism, we can but speculate that the jury would have returned the same verdict or answered the special issues in the same manner. It is, however, entirely logical that the State would have had to call Wal-dhauser to the stand to testify had the indictment contained a specific allegation as to the remunerator. The language used in the plea agreement shows the State at least considered using him as a witness. The allegation on a separate indictment relating to the same series of killings naming Waldhauser as remunerator would tend to show that Waldhauser was a known factor in the equation. By not naming any individual as remunerator, the State effectively prevented the defense from exploring both the relationship of Waldhauser to the case as well as his preferential treatment by the authorities. Although it is by no means certain that the defense could successfully have defended against the capital offense or obtained a sentence less than death, there is no doubt that the substantial rights of appellant to pursue such strategic avenues was prejudiced by the defect in form.

The testimony elicited at the evidentiary hearing reflects the State’s failure to name a remunerator impacted upon the ability of the defense to attempt to prove a variance between the indictment and evidence during the first stage of trial, and its ability to mitigate punishment at the second stage. Under the Adams test, appellant has demonstrated harm in that the particular defect of form in the charging instrument prejudiced his substantial rights. Adams, supra.

The conviction and sentence are reversed, and the cause is remanded to the trial court for new trial. Art. 44.29(c), V.A.C.C.P.

WHITE, J., concurs in the result.

1 . For a complete discussion of the facts of the case see Janecka v. State, 739 S.W.2d 813 (Tex.Cr.App.1987).

2 . Under the Adams test, the important question to answer is whether a particular defect of form in the charging instrument prejudiced the substantial rights of a defendant. It must first be determined whether the charging instrument failed to convey some requisite item of “notice." If sufficient notice was given, the inquiry ends. If not, the second step is to determine whether, in the context of the case, the deficiency had an impact on the defendant’s ability to prepare a defense, and if so, how great an impact.

3 . The plea bargain was admitted at the eviden-tiary hearing as a "sealed exhibit". Since Wal-dhauser did not testify at appellant's trial, the bargain played no part in the proceedings. Although there was apparent agreement between the parties that the document would not be publicized, it has now become a focal point in appellant’s burden on remand to demonstrate harm. Waldhauser, the District Attorney’s office and the trial court entered into a written agreement stating that Waldhauser, in exchange for his statements, and subsequent testimony at any of four murder trials and several possible conspiracy to commit murder trials, and his plea of guilty in three of the four murder cases, would receive three concurrent 30 year sentences on the reduced murder charges. In addition, Waldhauser was guaranteed his sentence would be spent in the Diagnostic Unit at the Texas Department of Corrections, and he would be given complete transactional immunity covering the other murder and conspiracy to commit murder cases.