Cook v. State

KELLER, Judge,

dissenting.

My brethren determine that although most of the State’s acts of misconduct are harmless, two incidents entitle appellant to relief. One is the State’s suppression of exculpatory statements and grand jury testimony given by Robert Hoehn. The’ other is the State’s suppression of evidence incriminating Louella Mayfield. My comments will focus on those two matters. I believe, however, that this case warrants a more thorough discussion of the evidence than that given in the lead opinion and in Judge Baird’s concurring and dissenting opinion. Reader, bear with me for yet a different account of the events that took place twenty years ago in Tyler, Texas.

I. The facts

The undisputed evidence, developed at the third trial, established the following: In 1976, Jim Mayfield was dean of learning resources at Texas Eastern University. He lived with his wife Elfriede and two of their children, Bonnie and Louella. Mayfield met the victim in this case, 21 year old Linda Jo Edwards, *640 at the university, where she also worked. When Edwards’ marriage was faltering and she needed a place to live, she moved into the Mayfield home. At some point, Mayfield and Edwards began an adulterous relationship. In December of 1976, the Mayfields moved to a lake house near Tyler; Edwards did not accompany them. The affair continued.

On May 14,1977, while Elfriede was out of town, Mayfield and Edwards rented an apartment at the Embarcadero apartments in Tyler and moved in together. The two remained at the apartment just a few days before Mayfield decided to end the affair and go back to Elfriede. He went home on Elfr-iede’s birthday, May 17. Soon after Mayfield moved out of the apartment, Edwards tried to kill herself by taking an overdose of pills. Mayfield found her, unconscious, and carried her to the hospital. She recovered and, toward the end of May, moved in with Paula Rudolph, who lived at the Embarcadero. Edwards’ attempted suicide resulted in her affair with Mayfield being made public and Mayfield losing his job.

Appellant lived in Dallas, but in late May of 1977 he went to Tyler, where he stayed with a man named James Taylor. Taylor lived at the Embarcadero apartments.

Early in June, around Monday the 6th or Tuesday the 7th, James Taylor’s twelve-year-old nephew, Rodney Dykes, came to visit him. Taylor was a truck driver and was out of town, but Rodney stayed in Taylor’s apartment with appellant.

The first day of Rodney’s visit appellant pointed a window out to Rodney and his brother Randy. Appellant told the Dykes brothers that one night while returning from the pool he had seen that the curtains were open a little, and he had stopped to watch the woman inside undress. Rodney and Randy later showed the police the window — it was Edwards’.

Edwards had been known to be careless about closing her bedroom curtains. Several witnesses had seen her, nude, through her window.

On the second afternoon of Rodney’s visit, while at the swimming pool, appellant sent Rodney over to talk to two women, one of whom matched the description of Edwards. At appellant’s direction, Rodney told the women that appellant was interested in them. They looked at Rodney as if he were crazy, laughed, and did not respond to appellant’s overture. They expressed no interest in appellant.

Rodney and appellant returned from the pool to Taylor’s apartment and ate dinner. Appellant left after it became dark. He returned late, after the television stations had gone off the air, and woke Rodney up. He had Rodney give him a back rub, and Rodney noticed there were “hickeys” on appellant’s neck. He had not seen them earlier. Rodney left Tyler around mid-week.

Appellant spent part of the evening of Thursday, June 9, with Robert Hoehn at Taylor’s apartment. When Hoehn first arrived, at around 10:35 or 10:45, appellant was watching The Sailor Who Fell From Grace With the Sea on cable television. Although the movie was on, Hoehn said that appellant was not paying any attention to it while Hoehn was there. After a few minutes, the two men went for a walk to the swimming pool, where they stayed for 20 or 25 minutes. On their way to the pool, appellant pointed out Edwards’ bedroom window and said there was a good looking girl there. Appellant walked part way up the incline toward the apartment, and Hoehn told him to get away from the window. The two men returned to the apartment and resumed watching the movie.

In one scene in the movie, children drug a sailor in preparation, apparently, for mutilating him as they had previously mutilated a cat. During that scene appellant engaged in masturbation. The movie ended at 11:45, appellant “cleaned himself up” and Hoehn drove him to the store to get cigarettes. Hoehn estimated that they left for the store at about 12:00 or 12:05 and arrived back home at about 12:30. A witness who later timed the trip calculated that it would have taken no more than ten minutes, by which estimate Hoehn and appellant would have returned by 12:10 or 12:15. Hoehn did not drive appellant to Taylor’s apartment, but instead dropped him off on the road at the entrance to the Embarcadero complex.

*641 On Thursday, June 9, Edwards was at the Embarcadero tennis courts watching a game between Orlando Padrón and Greg Smith. Padron’s wife, Alma, showed up at the courts and recognized Edwards as someone she had met through a mutual acquaintance. Alma invited Edwards over and after the game the four returned to the Padrons’ apartment where they had a drink. Edwards checked her watch frequently, saying that her roommate was leaving at 10:30, and Edwards needed to get home before she left. Edwards left.

Also on June 9, Rudolph received a phone call from a friend who was in town on business. She went to his hotel to have a drink with him, and returned to her apartment at some time around 12:35 or 12:40.

When Rudolph opened her apartment door, she saw a man in Edwards’ room obliquely through the open door to the bedroom, and immediately assumed it was Edwards’ boyfriend. As soon as she saw him, she said something to the effect of, “Don’t worry, it’s only me.” The man was facing away from her, but heard her and spun around to face her. 1 He moved forward and closed the bedroom door. Rudolph went straight to her room, thinking “it wasn’t right.” She stood there for a minute thinking that it did not look like Mayfield, and wondered whether Edwards was gone and someone was trying to steal the stereo equipment. She decided that the man must have been Mayfield because there was no reason for anyone else to be there. Then she heard the sound of the patio door sliding, and heard it shut. She did not want to appear to be prying so she did not check on her roommate. Leaving her bedroom door open, as was her custom, she got ready for bed and went to sleep.

The next morning when Rudolph awakened, she discovered Edwards’ body. Edwards had been struck in the head and face with a plaster “bookworm” statue, and had been stabbed numerous times with a knife and with scissors. Her body had been mutilated, the most brutal mutilation being by scissors to the genital area.

II. Theories of the case

The defensive theory of the case appears to be that this was a “domestic” homicide; that Mayfield committed the murder in his anger at Edwards for costing him his job, and possibly out of jealousy. At the third trial, the theory included a contention (evidence of which was not allowed before the jury) that appellant met Edwards at the swimming pool, went to her apartment and had sexual intercourse with her, got “hickeys” on his neck at that time, and left his fingerprints on the inside of the glass door at that time.

The State’s theory of the case was that the offense was a “lust murder,” and that lust murders are not committed by people who have been in long-term intimate relationships with the victim. According to the State’s theory, Mayfield was ruled out as a suspect for this reason, at least. One specific aspect of the crime that identified it as a lust murder was the removal of parts of the body. The defense tried to show that no parts of the body had been removed.

III. Misconduct

(a) Misconduct found to warrant reversal

1. Hoehn’s grand jury testimony 2

Appellant claims that the State suppressed evidence of Hoehn’s grand jury testimony. Hoehn told the grand jury that appellant told him that he (appellant) had gone to a woman’s apartment a few days before the murder and she had left “passion marks” on his neck. 3 First, and most critical, this is evi- *642 denee of which appellant was aware — it was evidence of a statement that appellant himself had made. What was not disclosed was the fact that Hoehn so testified, not the fact that appellant had made the statement. Obviously, appellant knew he made the statement and he knew Hoehn knew it. To whatever extent the evidence was exculpatory, it was always available to appellant. An analysis of the materiality of the suppression should thus relate to the fact that there was grand jury testimony, and not to the substance of what Hoehn said. 4

Second, upon hearsay objections by the State, the trial judge ruled that any testimony to the effect that appellant had told someone he had been in Edwards’ apartment and/or engaged in sexual relations with her was inadmissible. So even though appellant always knew about it, and defense counsel was aware at least by the third trial that the State had this evidence, the defense could not use it. I do not see how the “suppression” of inadmissible evidence of which appellant was already aware could be prosecutorial misconduct requiring a reversal of the conviction.

Also, the defensive theory that appellant had had sexual intercourse with Edwards is inconsistent with appellant’s own statements to the press. He told reporters after the first trial that he had never been inside Edwards’ apartment.

And even aside from that inconsistency, what Hoehn said appellant told him is exculpatory only in a broad sense. That is, it is evidence favorable to the accused, but it is not evidence that reflects directly on appellant’s guilt or innocence. If appellant did have sexual intercourse with Edwards in her apartment, that fact does not in any way show or tend to show that appellant did not murder Edwards.

Judge Baird claims that the evidence is potentially very damaging to the State’s theory that the murder was committed by a stranger. Dave Gomez, an FBI expert, testified to the characteristics of lust murders. 5 But the way I read the testimony, it is not quite correct to say the State’s theory was that the murder was committed by a stranger. Gomez’s testimony is summed up in his answer to the concluding question during his direct examination. He testified that this murder was not committed by anyone in a “long-term, personal relationship” with the victim. Even if believed, evidence that appellant had met Edwards at the pool a day or two before the murder and engaged in sexual intercourse with her one afternoon would not, under Gomez’s testimony, rule appellant out as the perpetrator of this murder. 6

The plurality and Judge Baird also mention Hoehn’s grand jury testimony to the effect that appellant had not paid attention to the movie that had allegedly inflamed him. But the jury heard this testimony at the third trial.

Judge Baird contends that various aspects of Hoehn’s grand jury testimony and his statements to the State contradicted incriminating statements he made during the first trial. The only contradictory statement that I can find is that Hoehn told the grand jury that he had not engaged in a homosexual act with appellant, when in fact he had. Before the first trial, Hoehn was granted immunity from prosecution for the homosexual conduct. *643 When he made the first statement, to the grand jury, he apparently did not want to subject himself to prosecution, so the evidence of what he told the grand jury is not worth much as far as impeachment.

But regardless of the reason Hoehn changed his testimony, the trial court consistently refused, at appellant’s request, to let the State put on evidence of appellant’s homosexual behavior. 7 The defense could not have used the contradictory testimony to impeach Hoehn unless evidence of appellant’s homosexuality were admitted. Under these circumstances, I do not see how evidence that Hoehn contradicted himself on this issue helps the defense. 8

2. Evidence regarding Louella

The plurality and Judge Baird both contend that the State suppressed evidence incriminating Louella, Jim Mayfield’s sixteen year old daughter, and that such suppression deprived appellant of the opportunity to investigate and develop a potential defense. The primary incriminating evidence concerning Louella was brought before the jury during the third trial. Specifically, Sergeant Hayden of the Tyler Police Department testified that Captain Findley of the police called him in and said that the apartment managers of several apartments, one of which was the Embarcadero, had called him to report that a young white woman was going around the complexes saying she worked for the police.. She said she was investigating a murder “involving” Mayfield and Edwards. Apparently, this incident took place around May 16 through 19. Sergeant Hayden suggested that it might be Louella, wearing her Explorer Scout uniform, so Captain Findley had Louella come in and talk to him. Sergeant Hayden was not present at that meeting and did not know what was said. By the third trial, Captain Findley did not remember speaking to Louella about the incident.

The defense was aware before the first trial that Mayfield was a suspect and that he had a daughter who was upset with Edwards. The defense deposed Mayfield, but they neither deposed Louella nor subpoenaed her as a witness. Even though defense counsel was not made aware specifically of some of Louella’s activities, counsel could have investigated at that time on the basis of what they did know.

Moreover, the incident is not as significant as it might appear. Louella’s “investigation” took place weeks before the murder, evidently during the time that Mayfield was living with Edwards. Since then, Mayfield had returned home to his wife and family, and given up his affair, thus removing the immediate motive for murder.

Judge Baird notes other evidence concerning Louella, such as the “suspicious” pants, evidence of which was before the jury during the third trial. The only testimony regarding the jeans showed the following: When the police interviewed Louella after the murder, a pair of damp blue jeans was found lying flat in her trunk. Eddie Clark, the investigating officer, asked Louella why the jeans were wet, and she told him that they had gotten wet when she was wading in the lake at their lake house the evening before. Clark took the jeans to determine if they were relevant to the crime. He and Captain Collard looked at the jeans and noted that only the bottoms of the jeans were wet, up to about 6 or 8 inches from the hem. The jeans had mud on them and tiny pieces of debris that would have been on the edge of the lake. And more important, they were found in the trunk four and a half days after the murder. *644 There was testimony that because it was June, and hot, the jeans would have been dry if they had been in the trunk longer than from the night before they were found. The officer determined that the appearance of the jeans was entirely consistent with Louella’s explanation, and that the jeans were not evidence related to the offense.

In Arizona v. Youngblood, 488 U.S. 51, 57 , 109 S.Ct. 333, 337 , 102 L.Ed.2d 281, 284 (1988), the Supreme Court discussed the effect of the State’s failure to refrigerate clothing worn by the victim and containing semen stains or to perform timely tests on semen samples taken from the victim. The Court concluded that unless a criminal defendant can show bad faith on the part of the police, the State’s failure to preserve potentially useful evidence — of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant — does not constitute a violation of the due process clause of the United States Constitution’s Fourteenth Amendment. In the present case, the police made a good faith determination that the jeans were not relevant to the offense. There is no violation of due process.

Finally, and above all, it is necessary to recognize that whatever “incriminating” evidence existed against Louella, she was not the person Paula Rudolph saw on the night of the murder. Not only did Rudolph testify unequivocally that she saw a man, she testified specifically that it was not Louella. There has never been any dispute over Rudolph’s testimony that the person she saw was a man. The theory that Louella murdered Linda Edwards is not consistent with that unchallenged eye-witness testimony.

Neither is it consistent with Dave Gomez’s testimony. He testified that if someone were to commit a homicide for personal motives of revenge or rage, in order for it to appear as this murder did, that person would have to have a considerable amount of criminal sophistication, and probably have committed a lust murder before. He said he would not expect a sixteen year old girl to have that kind of criminal sophistication.

(b) Misconduct found to be harmless

The plurality and Judge Baird find that the State committed other acts of misconduct, but determine that such acts were harmless. I address two of these other acts in order to clarify the nature and effect of the misconduct, and to dispel the impression created by the lead opinion and Judge Baird’s opinion that, in order to secure a conviction, the State deliberately and nefariously engaged in the grossest misconduct.

Doug Collard, the fingerprint expert, testified at trial that the prints on the outside of the patio door were six to twelve hours old. At the writ hearing, however, he stated that there was no scientific basis for determining the age of prints. The courts found prosecu-torial misconduct in the fact that the State insisted that Collard provide misleading testimony regarding the age of the prints. Nevertheless, Collard testified at the writ hearing that it was his personal opinion based on experience that the prints had been made six to twelve hours before the murder. And he said that after fifteen years, his experience led him to the same conclusion, “only more so.” The jury was misled about a serious matter, namely, the lack of a scientific basis for Collard’s opinion. But Collard’s opinion always was and still is that the prints were six to twelve hours old. 9

Judge Baird’s opinion also refers to the incident in which the prosecutor, David Dobbs, spoke with appellant at the Smith County jail. I do not here repeat the conversation because it is not relevant, but it is apparent that Dobbs did not intend to violate appellant’s right to counsel. The trial courts’ finding that the State’s conduct was improper and misguided but without bad motive or evil purpose is fully supported by the record. Dobbs found out by chance that appellant was being returned to the Smith County jail, *645 and on the way to his car that evening decided to go by to watch the book-in and, if possible, meet appellant’s lawyer. 10 When appellant tried to discuss the case with Dobbs, Dobbs immediately tried to stop him. The trial court’s comment about forgiving the prosecutor means simply that Dobbs’ conduct was of such a nature that an apology was appropriate, but the error was not legally significant. It is apparent from the findings of fact that the trial court considered Dobbs’ action totally inappropriate but also utterly harmless and without insidious purpose.

(c) Materiality of misconduct

My view of the evidence differs from that of the plurality and Judge Baird. There is, as well, evidence that I believe is important but that is not mentioned in either of the other opinions. The following is, I believe, relevant to determining the materiality of any uncured misconduct on the part of the State.

First, the fingerprint evidence affects the materiality of the misconduct. At the time of appellant’s first trial, one fingerprint matching appellant’s had been found at the murder scene. It was on the outside of the sliding glass door to Edwards’ apartment. After the first trial appellant told several people, including newspaper reporters, that he had never been in Edwards’ apartment. Appellant said that he did not know the woman, but he had placed his hand on the glass door when he was window-peeping. After the first trial, however, prints from the inside of the sliding glass door were computer enhanced, and found to match appellant’s. Fingerprint experts for both the State and the defense agreed that the prints on the inside of the sliding glass door could not have been made unless appellant was inside the apartment. The undisputed evidence thus shows that appellant was in Edwards’ apartment.

Second is Rudolph’s identification of the murderer. Rudolph identified appellant as the man she saw in her apartment the night of the murder. According to Judge Baird’s opinion, Rudolph has, “over the course of fourteen years come to clarify her initial statements that she saw Jim Mayfield in the victim’s bedroom on the night of the murder.” As far as I can tell from the record, Rudolph never said she saw Mayfield that night. She said instead that, although she felt uneasy about it, she simply assumed that it must have been Mayfield. She has not changed her testimony — she identified appellant and only appellant as the man she saw in Edwards’ room. No one involved in the case understood Rudolph’s statement to be an identification of Mayfield or treated it as such.

The third matter involves tissue missing from the victim’s body. Witnesses for both the State and the defense agreed that they had never seen a domestic homicide in which parts of the body were removed. There was testimony by defense witnesses that the “missing” lip and vaginal tissue were present but simply sliced and cut beyond recognition. However, there was no dispute at all over whether some of the victim’s hair had been cut from her head and removed from the scene. There was testimony that hair could constitute a trophy or a souvenir to the offender. Since the defensive theory that this was a domestic murder rather than a lust murder depended upon no “souvenirs” being taken, the fact that the hair was taken greatly diminishes the significance of whether other “souvenirs” were taken.

Fourth, there was evidence that appellant confessed. Robert Wickham testified at the third trial that at the time of the first trial, he was a reserve deputy for Smith County. He said that at one point when he was transferring appellant to the courtroom, appellant told him, “I killed her and I don’t give a shit what they do to me.” Wickham explained that he did not think the statement would be admissible in court, so he had not reported the incident officially. He had, however, soon afterwards recounted the incident to a highway patrolman friend named Glenn Miller. Miller testified and confirmed that Wickham had told him of the incident. Mil *646 ler said he did not report the episode because the trial was already over.

IV. Conclusion

There is evidence that should have been turned over to the defense. But as far as I can see, the evidence that the plurality and Judge Baird claim compels a reversal of the conviction is inconsistent either with the physical evidence, or with the eyewitness testimony, or with appellant’s own statements. The most significant evidence that was not made available to the defense — the evidence that Hoehn told the grand jury that appellant said he had been with Edwards in her apartment — was always known to appellant and was, moreover, inadmissible. It is beyond me how the plurality can conclude that this “misconduct” should mandate a reversal. And, the plurality’s arbitrary and unprecedented predetermination that Hoehn’s testimony will be inadmissible at any new trial seems to me to be an unwarranted encroachment upon the authority of the trial judge.

In addition, appellant’s old defensive theory contradicts his new defensive theory. He said himself that he had never been inside Edwards’ apartment. Furthermore, Rodney Dykes’ testimony indicated that on an afternoon a day or two before the murder, Edwards acted as if she did not know appellant. There was also a variety of evidence to the effect that Edwards would not have engaged in sexual intercourse with someone like appellant, under the circumstances described by appellant. And, even if believed, evidence that appellant was once in Edwards’ apartment with her consent does not absolve appellant of guilt.

The identification by Rudolph, the fingerprints inside the apartment, the wealth of evidence supporting the conclusion that this was a lust murder, and the other evidence presented by the State dissipate the significance of the undisclosed evidence.

Appellant is entitled, of course, to present as many defensive theories as he wishes, and it is not required that his theories be consistent with each other or with the physical evidence. But if the “favorable” evidence, like that regarding Hoehn, is contradicted by appellant’s own statements, is already known to appellant, and is inadmissible, it seems to me that the suppressed evidence does not “put the whole case in such a different light as to undermine confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419 , 115 S.Ct. 1555 , 131 L.Ed.2d 490 . And if the evidence, like that regarding Louella, is made known to the jury, reversal is not required simply because one can speculate that a stronger defense might have been devised, especially if that defense is inconsistent with undisputed eye-witness testimony or physical evidence. Such is the case here.

I would, therefore, overrule points of error one through four, and proceed to consider the merits of appellant’s other points of error. 11

McCORMICK, P.J., and WHITE, J. join this opinion.

. Mayfield suffered from a hearing loss.

. In its discussion of Hoehn’s grand jury testimony, Judge Baird’s concurring and dissenting opinion mentions that the jury deliberated for nine days. I note that only about three days were spent in actual deliberation on guiltdnno-cence.

.In this interest of accuracy, I mention that appellant did not raise this claim in his pre-trial application for writ of habeas corpus, possibly because counsel was unaware of this specific grand jury testimony at that time. There are, thus, no findings of fact relating to this particular claim. Also, that pleading alleged a violation of double jeopardy, not due process, both of which are, of course, alleged in appellant’s brief to this *642 Court. The issue regarding the grand jury testimony was raised in appellant’s Special Plea in Bar, filed before the third trial.

. These observations about Hoehn's testimony are equally applicable to the claims regarding the suppression of the Dykes brothers' grand jury testimony.

. Gomez testified that a lust murder is characterized by a focused attack on the sexually significant organs of the victim, up to and including removal of body parts. Sexual homicides have a fantasy aspect that can involve rape, mutilation or sadistic acts. At some point there is a buildup of precipitating stressors that cause the offender to kill. In a sexual homicide, the sexual component of the fantasy is based on the person’s sexual inadequacy, sexual immaturity, or sexual ambivalence.

.Judge Baird claims that Hoehn fit the State’s profile of the offender better than appellant. I disagree. There was no evidence that Hoehn was sexually ambivalent, sexually immature, or sexually inadequate. There was, however, testimony that appellant was sexually ambivalent. Evidence not before the jury in this trial also revealed appellant's sexual inadequacy on the night of the murder.

. In jury argument, the defense brought out the homosexual aspect of the evidence.

. A final note on the subject of Hoehn's testimony: During jury deliberation the jury sent out a note asking to hear Hoehn’s testimony regarding the events of June 9. The court reporter read back the testimony. At the end of the reading, the court reporter read beyond what was introduced at trial, reading also the beginning of the testimony that defense counsel had included in his bill of exceptions. She read to the juiy:

Q. What did he tell you about looking into the window? What did he say about it?

A. He just said that that had been a girl that he had been out with on the previous Monday afternoon. He had met her at the swimming pool.

The court instructed the jury twice to disregard that portion of the statement. We presume that they followed the instruction.

. At the writ hearing, there was testimony that Collard had been cross-examined at the first trial about whether he was familiar with the work of another expert who said that there was no scientific basis for aging prints. At the hearing, Collard testified that "that was correct.” It thus appears that Collard conceded even at the first trial that there was no scientific basis for determining the age of prints.

. Judge Baird’s opinion says that Dobbs asked to be informed of appellant’s arrival. I do not find this in the record. Dobbs found out appellant was being returned when a newspaper reporter called to ask about it.

. Obviously, because I do not believe that this conviction should be reversed at all, I do not believe there is any bar to retrial.