Cook v. State

CLINTON, Judge,

dissenting.

The offense was committed during early morning hours of June 10, 1977, and the record reflects that the case gained instant notoriety. No doubt and commendably, members of the law enforcement community, including the district attorney, were anxious to solve the crime, and are convinced they succeeded. But to me, at least, there are some troublesome aspects in this cause. 1

The record reflects that not until August 4, 1977 did officers believe there was probable cause to arrest appellant. Just the day before, according to the complaint or information made by Detective Eddie Clark, Sgt. Doug Collard had concluded that latent fingerprints he lifted from outer patio door frame were left by appellant; though Detective Clark related that he had interviewed Paula Rudolph on June 10, 1977, and summarized what she reported about seeing a man and hearing him leave, nowhere does he indicate that she could identify him. Detective Clark obtained a warrant to arrest appellant, and it was executed the next day. Within thirty days Edward Scott Jackson and appellant were in the same tank. Immunity was granted *947 several persons. An indictment was returned September 19, 1977. Transactional immunity was granted to James B. Taylor, uncle of appellant. A “reindictment” was presented November 7, 1977. Trial commenced June 5, 1978. Appellant had recently turned twentytwo.

The evidence may be sufficient when one picks and chooses certain items, but a rational reviewer of all facts is left with serious questions whether a rational trier of fact could find guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979).

Paula Rudolph opened an unlocked front door after midnight; from entry area to her left she saw door to bedroom of deceased was open and silhouetted in very bright light overhead was a human figure; it turned (“for one split second there we were face to face”), whirled out of sight and closed the bedroom door. The figure was wearing what appeared to be “white shorts,” “a definite band of white across the lower torso into the top of the leg.” However, Robert Hoehn testified appellant never wore white around him, and left his car wearing long dark blue pants, but under them were sport shorts with a “blue body and a red stripe around the waist and down the leg.” 2

In her own bedroom, Rudolph heard sliding patio door to the rear of the apartment open and close, assuming the figure was leaving. Lt. Doug Collard said fingerprints on the door were made when appellant entered and closed the patio door behind him; if done contemporaneously surely it made same sliding noise Rudolph heard, alerting fully clothed deceased. But he also testified that when first attacked deceased was lying on a “bed” (actually a couch, see post, n. 8.), there was no evidence of a struggle nor any indication that deceased offered resistance against her attacker. Usually detectives take that to mean a victim knows her assailant.

The most prejudicial evidence in reels and reams was given by Hoehn. Not mentioned in the opinion of the Court is the fact that to obtain his testimony the State granted Hoehn immunity.

The most incriminating testimony came from Edward Scott Jackson, and a clear inference from arrangements made to place appellant in the same tank with Jackson and the latter’s taking the initiative with appellant is that he had a personal stake in the matter. His memory about the conversation was much better than his recollection of the more important point of law, that is, when did the conversation take place. On that score, jail records that may have helped refresh his recollection or cast light on the subject “were either missing or had not been kept for that period.” 3

Manifestly, then, there are certain matters of critical importance, and to evaluate them intelligently one must identify the principals and place them in a setting of time and place as of June 9, 1977.

Paula Rudolph is a thirtysix year old widow. She has resided in Apartment No. 169 for almost two years, and works as a Tech Processing Librarian at Texas Eastern University. Her supervisor is James Mayfield, Dean of the Learning Resource Center; in his early forties and married, he and his wife have three children. Linda Jo Edwards is twentyone, a secretary in the English Department, School of Humanities, who earlier had worked under the supervision of Rudolph and, in turn, Dean May-field.

Edwards “had a lot of life to her and she had a lot of intelligence, but she didn’t have a lot of experience ... and was impressed with the attention of someone like she had never known before,” namely, Dean May- *948 field, according to Rudolph. They have been emotionally involved for some eighteen months, and are having an affair. Formerly living in the Bullard area of Tyler and once married but divorced, at one point in time for “probably a couple months, a few months,” Edwards stayed with the Mayfields in their home. Mayfield visited Rudolph in her apartment “a few times” and she saw him around the complex another time. Rudolph elaborated:

“They were — he was in the parking lot close to the tennis courts coming away from the tennis courts.”

For about two weeks Edwards has been a guest of Rudolph, looking for her own apartment; Dean Mayfield has been in once during that period.

Rudolph arrived home on the evening of June 9 about 8:30 p.m. to find the front door locked and no one there; while she was eating, Edwards came in around 9:30, and they chatted until Rudolph said she was going to take a shower; Edwards said she would go over to the tennis courts “to see if there was anyone there to play with.” Returning at approximately 10:15, Edwards related that she “had run into some old friends,” a couple, and a second man with the couple. She gave Rudolph an impression that the three of them lived in the apartments and that she was going back to play tennis with them because they were to give her some pointers. Rudolph left at 10:30. In a few minutes Hoehn would arrive at Taylor’s apartment with beer for appellant.

Eyewitness Identification

The next day Rudolph was interviewed by a police lieutenant and gave a sworn statement which was tendered jointly by the parties on crossexamination and read into evidence by Rudolph, herself. Therein she recounted the information summarized above and the following account of activity and observations after she returned about 12:35 to 12:45 a.m., and opened unlocked front door to her apartment (which she did not then or later lock and Lt. Collard would say had no indication of forcible entry)— practically at same time Hoehn testified he let appellant out entrance to a parking lot in front of the complex and declined an invitation to come in with appellant.

“... I pushed the door open and stepped in and noticed a figure jump behind the door in Linda’s room. I remember the figure had silver hair cut in a medium touching the ears fashion that men wear. The body was that of a Caucasian with a tan wearing white shorts of some fashion. I do not know if they were briefs, walking shorts, tennis shorts, or exactly what style. The figure was sleek and slender and he moved quickly behind the door in Linda’s room and closed it. I knew that Linda had been seeing my boss, Jim Mayfield.

My first impression on seeing the figure was that it was he, even though I could not see the facial features nor hear him speak. I felt that the best thing for me to do was to go to my room and exercise discretion. I called out, ‘Don’t worry, it’s only me.’ I went straight to my room. After getting through my room in just a few moments, less than five minutes, I’m sure, I heard the patio doors open and close. I decided to go into the kitchen and get me a cup of coffee and unplug the pot but decided not to since Linda might be in the living room or on the patio with the person I assumed to be Jim Mayfield.

I got into bed at approximately 12:45. I got back up a few minutes later to set the alarm and it was 12:50. I then went back to bed. I did not hear Linda or anyone else speak during the time I arrived home until I went to sleep. I did hear the television in Linda’s room or it might have been the radio.

I woke up at 6:30 A.M. this morning but did not get up until 7:00 A.M. ****’’ 4

Faced with that statement, the prosecution and Rudolph fashioned her direct testi *949 mony to elaborate on those moves and observations in such manner as to demonstrate her impression that the figure is Dean Mayfield was erroneous. 5

Rudolph explained from her position in entry foyer to center of bedroom she had “approximately one foot field of vision;” she moved in a dark area looking into an intensely bright lighted area from high wattage bulbs in an overhead fixture; she described the torso of the figure. Then after answering affirmatively whether “this person who you saw in [Edwards’] bedroom [is present in the courtroom]” and being asked to do so, she pointed to appellant, described what he was wearing and where he was seated. Then the following occurred:

“Q. Do you base your identification of this Defendant as the person who you saw in your roommate’s [sic] bedroom, do you base this on what you recall from seeing late in the night of June 9th or early morning on June 10, 1977?

A. Yes. I do. He fits.

[DEFENSE COUNSEL]: Your Honor, I object to the non-responsive part on the witness and ask the Court to instruct her not to do so anymore.

THE COURT: The Court will sustain the objection. The Jury is instructed to disregard that portion of the witness’ which was ‘he fits”. The witness will please be as responsive to the question asked of you....

Q. Miss Rudolph, there was a non-responsive answer to the extent that you said ‘he fits.’ Do you mean that he fits the description of the physical characteristics which you recall from the night, is that what you mean?

A. Yes. That is what I mean.”

Her sworn statement ended with a recitation that she had read it, it is true and correct and that she “will testify to such facts in Court if asked to do so.” After she finished reading it to the jury, the first question was whether her “mind has changed” about the figure having “silver hair,” and she allowed it had. In response to further questions, she stated that appellant’s hair was “very black,” “not speckled with gray” and “not silver;” that his was a “broad face,” Mayfield’s “probably sharper than his,” and that by “broad face” she meant “the shape of it,” because: “I did not and never said I saw the figure distinctly enough to see features.”

Counsel for appellant then returned to her partially nonresponsive answer that “he fits,” and what she agreed with the prosecutor she meant by that. To his questions she responded that she had talked about her description of the figure with relatives, numerous police officers and prosecuting attorneys; she agreed that she had not spoken with defense counsel. Counsel drew her attention to an August 19 examining trial and September 20 bail hearing at which she testified, knowing that appellant was there as accused. Regarding prior testimony given by her then to the effect that “this person had white hair, silver hair or whatever,” she said that had been her testimony, adding that “this person refers back to the person I thought I recognized,” namely, Jim Mayfield. As to “what has changed [her] mind” since then, Rudolph offered an explanation,, viz:

“For one thing, I think when I made the statement ..., it was within a few hours *950 of discovering Linda’s body. If I were doing it logically when I was not in such a state of shock and I were writing it and not dictating it, I think I would have worded it differently. I do not and am not certain that I saw the person’s hair. It was in extremely bright lighting looking at a silhouette. It was a very reflective. It was a reflection really.”

Whether it was a matter of “thinking about it for a year,” she thought not: “It is attempting to be logical.”

Asked if her testimony now is “that you didn’t see someone with white hair,” Rudolph answered that “my testimony and it’s all along that it refers to the person I thought I recognize.” She only “perceived that there was a reflection around his head that was silver;” she was not telling the jury that “because the room is well lighted [she] thought [she] saw someone with silver, yet now [she] is telling the jury that someone [had] black hair....” What she is saying is “that I could very well have been mistaken in my original interpretation of my perception.” Her recall is no better; it is a matter of “being able to stand back and take a logical look at something rather than reacting emotionally, based on completely preconceived ideas would enable one to make a better interpretation of a perception or almost anything for that matter.” Her “identification” on direct examination “is the result of attempting to stand back, recall that figure that I saw, and recall it without preconceived notions that it was someone else.”

Rudolph agreed that she may have been asked whether she recognized appellant and that she had never identified appellant in twice testifying under oath and once giving a sworn statement, but she denied that “now over a year later been [she has been] able to conjure up something that would identify him;” she had never been asked by counsel before. Subsequently, responding to questions, she reiterated:

“I have attempted and I said I try to look at this objectively and logically to forget, to keep that image of that figure, that silhouette, in my mind and apply it without — without period. It was a silhouette, I was looking into that bright light. It was a shape, a shape as is probably the most difficult thing to describe. I have attempted and as I said before to apply that shape to see if it fits, forget anything I might have known previously or since.

The shape, it fits.

The outline, the shape, the silhouette against the light. There were shadows. I wasn’t specifically aware of the exact shape of his nose or the exact shape of his eye or the color of his eye. I was aware of shadows and planes on a shape, a figure.

I have never said anything else. He fits.”

Rudolph concluded with “I believe that is the man I saw,” as opposed to “what I thought I saw” at the time.

While rules permitting witnesses to testify on matters of identity are said to be liberal, the Court has recognized “there are certain limitations beyond which it is not safe to go.” Emery v. State, 95 Tex.Cr.R. 336 , 254 S.W. 957 (1923). However, there is a dearth of authority drawing clear lines of limitation.

On admissibility of evidence, the Court has upheld refusal of a trial court to admit proffered testimony that while the witness did not recognize accused at time and occasion in question, from a process of reasoning or believing based on subsequent information he concluded that it was accused he had seen. Clark v. State, 79 Tex.Cr.R. 196 , 183 S.W. 437 (1916); cf. Polk v. State, 500 S.W.2d 825, 826 (Tex.Cr.App.1973). The Court has rejected tendered “misidentification” testimony when it is “speculative.” Turner v. State, 600 S.W.2d 927, 933 (Tex.Cr.App.1980) (other males in vicinity of crime scene physically resembled accused and drove similar automobile); Hall v. State, 153 Tex.Cr.R. 215 , 219 S.W.2d 475, 479 (1949) (while witness testified man in khaki clothes beat victim, because common knowledge that many men wear khaki *951 clothing testimony that a certain man other than accused worked in khaki clothing nearby “too speculative”).

In Proctor v. State, 465 S.W.2d 759 (Tex.Cr.App.1971), a Constable Coleman observed two men inside a store around 3:00 a.m., and as he sought to apprehend them one burglar came face to face with him and in an exchange of gunfire the Constable was struck by a volley of shots. Although he had known Proctor for years, Coleman was unable to identify him then. (“It didn’t register on my mind that that was J.B. Proctor. Just no more than I got to see him.”) Coleman became the sole witness placing accused at scene of the burglary.

During a hearing on motion to suppress his incourt identification of Proctor, the witness testified:

“Q. I think you described it to me that you came to the conclusion, or became convinced, as to the identity of Proctor as being the man out there when a chain of pieces or circumstances that fell into place, that you were able finally to conclude in your mind that this was Proctor?

A. Yes, sir.

Q. Of course, all of this that you’ve described, you jostled your memory to where you were able to positively say that was Proctor?

A. I say I exercised my channels of thought, and stronger and stronger with the days that went by I was more sure of it. I had satisfied myself that it was. Q. Of course, without all of this investigation, you might never have satisfied your mind that way.

A. No, I don’t think I would have.”

The Court was “unable to conclude that there was clear and convincing proof that the in-court identification was of independent origin.” Id., at 765 . In the hospital Coleman gave a description that did not fit Proctor. True it is that “this investigation” had been conducted by the Constable himself, beginning about three weeks after the offense occurred. Learning that an informer in Arkansas had described Proctor and named him as a participant in a shootout with an officer in Texas or Louisiana, Coleman obtained a mug shot of the man mentioned by the informer and set out on his own to find him. Instead, the confederate was arrested in Arkansas and upon being returned to Texas Coleman interrogated him without success; later, however, while Coleman was present he made a confession implicating Proctor in the affair. Coleman also obtained a letter alluding to the shooting. When Proctor was arrested and returned to the venue Coleman went to jail several times and once viewed him in direct confrontation in a maximum security cell. On the day Proctor was arraigned Coleman rode down an elevator with him and was in the courtroom when he was served with indictment.

Paula Rudolph is not a peace officer, of course, but like Constable Coleman her split second confrontation with the person under the circumstances was such that she saw only a “figure,” an “outline,” a “shape” or a “silhouette.” Her every action and words demonstrate that in her mind she then immediately thought and believed the person to be Dean James May-field. Obviously at some later day, though this record fails to reveal when or how, she was given to understand her assumption was incorrect. At that point she is in about the same attitude as Constable Coleman, both being unable to identify a person they “saw.”

When appellant was arrested in early August Rudolph heard about it. She talked about her description of the figure with numerous police officers and the prosecuting attorneys. As a witness at the August 19 examining trial she saw appellant seated at counsel table between his lawyers and knew he was accused; she also testified at a September 20 hearing on motion for bail; again appellant was present. Finally, almost a year after the fact, like Constable Coleman, through mental processes she described Rudolph “satisfied [herjself” that appellant “fits” the *952 “figure,” “outline,” “shape” or “silhouette.”

“The vagaries of eyewitness identification are well known; the annals of criminal law are rife with instances of mistaken identification. Mr. Justice Frankfurter once said: ‘What is the worth of identification testimony even when uncontra-dicted? The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances of English and American trials. These instances are recent — not due to the brutalities of ancient criminal procedure.’ The Case of Sacco and Vanzetti 30 (1927).”

United States v. Wade, 388 U.S. 218, 228 , 87 S.Ct. 1926, 1933 , 18 L.Ed.2d 1149 (1967). Sobel, Eyewitness Identification (Second Edition), Clark Boardman Co., Ltd. (1986), Ch. 6; Sanders, Helping the Jury Evaluate Eyewitness Testimony: The Need for Additional Safeguards, 12 Am.J.Crim.L. 189, 190-191 (1984).

Mistaken identification on the part of an eyewitness may be the result of various factors operating on his unconscious mind. Because they are unknown to the average layperson, “[tjhese subtle but powerful influences ... create the greatest danger of misidentification and wrongful conviction.” Sanders, op. cit., supra, at 192-193. Experts have divided the human memory process into three stages, towit: acquisition, retention (storage) and retrieval. There are distortions in each stage to such an extent that “eyewitness identifications, even those made under optimal conditions, are highly suspect.” Id., at 193. 6

Once an initial description, along with identification of a known person by name, is recanted by an “eyewitness,” much more untrustworthy and hazardous is subsequent identification of a stranger in terms of “figure,” “outline,” “shape” or “silhouette.” Recent experiences in Ex parte Binder, 660 S.W.2d 103 (Tex.Cr.App.1983) (five eyewitness making identification, some for first time at trial) and State of Texas v. Geter (five eyewitnesses identifying him), dictates an exercise in caution before routinely deferring to verdict of a jury.

Fingerprint Identification

When Paula Rudolph left her apartment at 10:30 p.m. her impression was that Linda Jo Edwards was going to play tennis with the couple and another man she had met by chance earlier that evening. The record does not show when she left or when she returned, and various bracketed estimates of time of death are not helpful in that. 7 In all likelihood she took her purse with her; it was on the table in the entry way later that morning. Thus she probably *953 came in through the front door. Whether she returned alone or with some one is an open question. At some point the television in her bedroom was turned on. 8

As shown by exhibit 101, left from the entry way is a short hallway leading to her “suite” in that side of the apartment, her bathroom on the left and bedroom on the right; Rudolph’s is on the opposite side. When Rudolph finally returned the front door was closed but unlocked. She stepped into the entry foyer, saw the figure inside Edwards’ bedroom to her left, called out and moved on to her right away from the closed bedroom door. She heard noise of television.

Lt. (then Sgt.) Collard and his team dusted literally every surface throughout the residence and the outer side of the front door and patio door likely to hold a latent print. In Edward’s bedroom he checked “any item possibly handled by the suspect” and other articles, and they moved outwardly door to door, room to room to the outside area. His team lifted a total of thirteen latent prints: one from scissors, others from outer side of Edwards’ bathroom door, from door frame of her bedroom door, from inside front door, with largest number “coming out of the dishwasher.” Of the prints identified, all belong to Edwards or Rudolph — except a single set assigned to appellant lifted from outer metal frame of patio door. Collard called it Latent No. 1.

Five latents remain unidentified; although he examined an estimated 2500 sets of prints Lt. Collard said he was unable to match any one with a known print, sufficient that he would testify by whom it was made. As to where they were found, though he had just identified Defendant’s Exhibit No. 1 as a paper on which he listed each latent and its location, Lt. Collard testified:

“There are partially, I believe, two or three off of the patio door, and I believe one of them from the inner door, I believe, if I remember correctly, either the bedroom or the bathroom.” 9

Lt. Collard did not include scissors used to mutilate, perhaps because he had already talked about them. He lifted a latent print from scissors; it was “too faint and not enough details to make a comparison.” However, there was enough for Collard to determine the finger leaving the print had a whirl pattern. No finger of appellant has a whirl pattern.

The print on scissors could not have been made by appellant. Since he examined some 2500 sets of fingerprints of other persons, Lt. Collard must have been able to rule out that five other latents were left by appellant or Edwards or Rudolph. Collard agreed that “the only thing we have [here today] is that one print” — Latent No. 1. Thus there is no evidence that appellant left his fingerprint anywhere in the entire apartment, and we do not know from this record who left one on the doorway to Edwards’ bedroom and four others elsewhere, or when.

Informer Identification

Whenever charged with the offense of murder, Edward Scott Jackson was confined in Smith County jail from November 28, 1976 through trial of the instant cause. In the latter part of July 1977 he achieved trusty status, and retained it during all pertinent times before trial. He had access to a television set.

Putting aside all testimony from this twentytwo year old witness and others *954 about arrangements to have appellant placed in the same tank with him, when “voluntary” statements and admissions were allegedly made to him by appellant, missing jail records and the like, see ante at p. 947, practically everything of significance Jackson claims appellant told him about the death of Linda Jo Edwards could have come from his watching news reports on local television. Indeed, Jackson learned her name from that very source, and surely the color of her hair. 10

There are, of course, some matters mentioned by Jackson that he could not have gleaned directly from media sources. He had related one in an October 18, 1877 statement taken by Detective Clark. On his direct examination the prosecution choose not to develop that matter. It came out on cross-examination, viz:

“Q. Did Kerry tell you, allegedly tell you about having a hamburger with this girl?

A. Sir, he said that when he met her, he either met her at an eating place where she works or a girlfriend of hers works. About the hamburger, I don’t know.

Q. Are you talking about Linda Jo Edwards?

A. Yes, sir.

Q. How did you know her name?

A. Through the TY.

Q. What else did he tell you about, did he have a date with her?

A. Yes, sir. He said that soon after that he either met her at a bar or took her to a bar.

Q. Do you know which one?

A. No, sir. I don’t.

Q. Are we still talking about Linda Jo Edwards?

A. Yes, sir.

Q. So as far as you are concerned, you are telling the Jury then that Kerry knew the victim in this case?

A. Yes, sir.

Q. Which is Linda Jo Edwards?

A. Yes, sir.”

The State had known for eight months that Jackson claimed appellant had said he knew Edwards before her death. Most assuredly that point would be investigated thoroughly for it obviously bore on the prosecutorial theory of its case. Clearly in testimony the prosecutor elicited from Paula Rudolph and other witnesses there is no thought that either Jackson or, assuming he actually said it, appellant was being truthful. On redirect examination the prosecutor did not allude to that matter, nor in his final argument; neither did defense counsel.

As to whether Jackson had some understanding about disposition of the murder charge against him pending trial eighteen months at his own request, on cross examination there was the following exchange:

“Q. Did you make a statement on the elevator last week that you were getting out of here, that your case was going to be dropped to manslaughter and you were going to be given credit for the time served if you testified in this case.?

A. No, sir, not the way you put it. I ..could explain that.

Q. No, I just want you to answer the question.

A. No, sir.”

Of course, William Fomby would and did swear for appellant that Jackson said he was going to testify for the State because, in more precise terms:

“He said that this was — that this was an ace in the hole on this case and that the District Attorney said that they were going to reduce his charge from murder to involuntary manslaughter and give time served.” 11

“The proof of the pudding,” as they say, could not then be determined. See ante, n. *955 3, at p. 947. May 6, 1977 Jackson was indicted in Cause No. 7-77-90 for murder, but his case had not been resolved. Sentence of death and commitment in this cause was signed and filed July 17, 1978. Within less than a month, from a certified copy of sentence in said Cause No. 7-77-90 the provable facts are that on August 15, 1978 in the presence of Edward Scott Jackson and his attorney Woody Roark a different judge of a trial court ordered that Edward Scott Jackson who, had been adjudged guilty of “Involuntary Manslaughter, A Felony,” and whose punishment had been assessed at two years confinement in the penitentiary, be delivered to the Director of Corrections to be confined for “a term of not less than two (2) nor more than two (2) years,” and to be “given credit for 625 days served in the Smith County Jail.’’

Considerations

There are three principal incidents produced by the State to make its case: a “figure” whirling in Edwards’ bedroom at an early morning hour; appellant’s leaving a partial set of his fingerprints on outer side of patio door frame; his purported conversation with Jackson. The first two are as parts of a different puzzle in that one does not easily fit together with the other.

The State sought to make them mesh, it seems to me, with testimony of Hoehn— not all his prejudicial kinky sexual stuff, but that he had let appellant out in a nearby area of the apartment complex. The State argues because appellant was at large in the complex at 12:30 or 12:35 a.m. and was either lusting after Edwards (according to the Dykes brothers), or going to punish her (according to Jackson), he went straight way to rear of Apartment No. 169, walked up several steps, lifted latch to and opened wooden gate to patio, moved to sliding patio door, opened it, entered and closed it, picked up statue, made his way to her room, knocked her out with statue, stabbed her many times with scissors, went to kitchen, selected french knife, went back, pulled her off couch, cut her ear lobe loose and sliced artery and jugular vein, mutilated her body from front, turned it over, stabbed upper back, cut vagina from back to front, also using scissors, and doing what else was done — stripping down to shorts somewhere along the way — in ten minutes, fifteen at the most.

Dr. Gonzales testified that to do such damage “in this area here” alone probably took “five to ten minutes.” Yol. 5 S.F. at 877.

The figure whirls and closes bedroom door, and Rudolph assumes it is a boyfriend in the person of Dean Mayfield, and five minutes later when someone opens and closes patio door at the rear, she also assumes the boyfriend is leaving. All is well and she is asleep in five minutes. She did not see Edwards and nothing in this record ever shows Edwards was in her room when Rudolph glimpsed a figure and assumed Dean Mayfield was calling on her. 12

At trial, however, Rudolph says she was wrong then, and logically appellant “fits” *956 the image in her mind. Someone was in the bedroom, to be sure. But the bare fact that his “entry” fingerprints are lifted from outer frame of patio door will not serve to corroborate Rudolph because Lt. Collard opined they would have been made any time from eight o’clock in evening of June 9 to eight o’clock in morning of June 10. 13

Furthermore, there is an unidentified latent print on that doorway to Edwards’ bedroom, and another on innerside of unlocked front door. There are also two unidentified latents on the frame of patio door. Many of the same factors considered by Lt. Pollard in estimating when appellant’s prints were placed on the patio door should also apply to the other two latents found there. That the latents are unidentified means only that known prints of the person or persons leaving them during the same period of time were not available to Pollard. It cannot be rationally concluded that the “figure” was appellant because his prints were identified and the two other latents were not.

In sum, I am unable to agree that the evidence is sufficient and, therefore, I respectfully dissent.

*957 APPENDIX

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. At the outset it must be noted that the State introduced 109 exhibits, some 70 of them being slide photographs of every pertinent detail of the crime scene, as well as a blueprint of the apartment complex and grounds and a diagram of the floor plan of apartment no. 169; appellant offered ten exhibits. None was reproduced in the record forwarded to this Court, so we were at once disadvantaged in relating constant testimony that "this is there (indicating)" to the exhibits. To correct those deficiencies in the record we ordered up the exhibits and they have now been examined. Appended hereto is State’s Exhibit 101, a floorplan of her apartment Paula Rudolph shared with deceased.

. All emphasis is mine throughout unless otherwise noted.

. While not properly before the Court, as the majority opinion notes, there is material extant revealing that Jackson recanted his testimony, was at the time the beneficiary of favors bestowed by the district attorney and did indeed have a “deal" with the State. See post, at p. 954.

. Soon she went to the kitchen to make coffee; returning to her bedroom, she looked out through patio door and noticed wooden gate in rear patio fence was open — an “extremely unusual" event, since she insisted it be kept closed — and also immediately noticed her cat *949 was not in the apartment as she usually is. Looking for her cat she pushed unclosed door to Edwards bedroom and saw her bloody arm. Shortly after Rudolph called police the cat scratched the patio door to be let in. The door was not locked.

. The fact of the matter is she had described Mayfield "from the shoulders up" almost perfectly. As she would later testify in response to several questions:

“From the shoulders up he is a very slender man, sharped face and wears glasses. He has very thin silver hair, gray hair. I don't know the color of his eyes. * * * [In June 1987 his style of haircut] was a modern haircut, straight,_about even around the ears. It’s not short conservatively, it’s semi-mod conservative, conservative mod.”

Hoehn testified appellant wore his hair over his ears and down to his shoulders. When Dr. Grigson first saw him appellant “had long black hair.”

. "- In order to cope with this inherent limitation [in perceiving and encoding stimuli], the observer unconsciously concentrates selectively on the details that are more important to him. This problem of selective perception is exacerbated when a witness is called upon to remember details that were unimportant to him at the acquisition stage but later assumed greater significance. * * * *

Human memory is an active process by which fragments of information are integrated; gaps in the information are filled by inference, and incongruous details are changed so that they 'all make sense.’ * * * *

.... Witnesses, like other people, are highly motivated by a desire to conform. * * * *

The danger of misidentification is again magnified by the desire to please authority figures.

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Sanders, op cit., supra, at 194-200 (footnotes omitted).

. The State presented certain testimony of Robert Hoehn in such a way as to suggest when he and appellant walked to the pool at about 11:00 p.m. and appellant invited him to "window peek” Edward’s bedroom, that she was there then and appellant saw her. Neither is shown by testimony given by Hoehn. Asked if appellant told him "anything about what he had seen in that girl’s bedroom,” Hoehn answered. "No. He didn’t get close enough to look in the window that night with me.” Hoehn was not asked whether, and did not volunteer that, there was any lighting emanating from the bedroom through the window. Nothing suggests Edwards was home. Appellant "never made any more remarks [to Hoehn] about the young woman’s bedroom window."

. Although almost always referred to as "bedroom," reality is that Rudolph called it "den and sewing room” and the "bed” a "couch” or "day bed.” The bedspread and pillow mentioned in the opinion at p. 931 were on couch; see Vol. 1 S.F. at 106, 109, 110 and Vol. 2 S.F. 197, 229. Human blood was on pillow and also on bedspread along with small white specks of plaster, indicating to Lt. Collard that Edwards’ was struck on head with statue while lying on bedspread, head on pillow. Vol. 2 S.F. at 197-198. The prosecution argued she was asleep.

. A “weakened print” was on inside “lower part of the [patio] door,” one on “the inner door edge" of the patio door. Other evidence puts Latent No. 6 on doorway to Edwards’ bedroom.

. At page 934 the majority opinion faithfully reports Jackson’s account of what appellant supposedly told him about the killing. However, there is a major omission in the version as told by Jackson: he said nothing about a plaster statue.

. In rebuttal, the State called Woody Roark, appointed attorney for Jackson. Roark testified *955 that there had been no plea bargaining for Jackson “since on or about October 27, 1977, [the] time I first became aware of Mr. Jackson’s involvement as a potential witness in this cause,” and he instructed his client that "I would engage in no plea bargaining nor would he in this case.” However, Roark did “think" Jackson talked to an agent of the district attorney "without [his] presence," and acknowledged that "those discussions with [his] client in [his] absence were with [his] permission as attorney of record...."

. When Paula Rudolph testified at the August examining trial and again at the September bail hearing she seems to have stayed with her description of the person she saw in Edward’s bedroom. See, ante at p. 949. On January 9, 1978, counsel for appellant filed a motion to take the deposition of Dean Mayfield, alleging, inter alia, that Mayfield was represented by an attorney who, though requested, denied him an interview with Mayfield, that Mayfield is a material witness, that Mayfield “was the prime suspect regarding the death of Linda Jo Edwards and, presently, still is a suspect,” and that without obtaining testimony from Mayfield, counsel is unable adequately to prepare a defense.

The judge of trial court ordered the deposition taken, and he presided over the taking February 1, 1978. Dean Mayfield did not testify during *956 trial. Nevertheless, included in a supplemental transcript is what purports to be a copy of several introductory pages of the deposition down to the point where Mayfield was sworn, to tell the truth — and nothing more. Given that circumstance, we ordered the original deposition forwarded to this Court, and have since determined that neither the fact it was taken was made known to nor any part of it was used before the jury, so there was no occasion for it to become part of the initial record.

. In argument a defense lawyer suggested to the jury that shortly before 8:00 a.m. appellant may have come through the back gate, opened sliding door and, leaning in out of curiousity, put his fingerprints on the frame at that time. The facts are that Rudolph got up about ten minutes to seven, plugged in a coffee maker, walked back to her bedroom, saw the opened wooden gate and went out and closed it, came back in and in looking for her cat pushed open the door to Edwards’ room and saw her bloody arm and head, went to call police (in response to her report that Edwards had been beaten, dispatcher said an ambulance would be sent), returned to Edwards room and viewed that scene, backed out of room and apartment and was leaning against a post when an ambulance “came shortly thereafter." Vol. Ill S.F. 495. Attracted by sight or sound of that ambulance, appellant could have done what counsel contended. It might even explain observation of Randy Dykes that appellant looked “somewhat shocked” upon hearing a news report later in the morning.