Green v. State

CLINTON, Judge,

concurring in part and dissenting in part.

The majority’s conclusion that the evidence is sufficient on both special issues 1 and 2 is based on two assumptions: (1) that it was appellant who said “shoot him, shoot him” during his struggle with the victim, immediately before Starvaggi fired the first bullet into Denson which struck him in the shoulder; and, (2) that it was appellant who, speaking with a “speech impediment,” urged the triggerman to “kill them, kill them” while standing at the feet of the victim’s wife and daughter, after Starvaggi had fired the two fatal shots into Denson’s heart.

If it were proved beyond a reasonable doubt that appellant was, in each instance, the person speaking, then I could agree that “appellant’s conduct was quite similar” to that of Earnest Benjamin Smith; 1 that appellant “told Starvaggi to shoot Denson;” that appellant “also encouraged Starvaggi to kill Susan and Grace Denson;” that “he participated directly in the shooting of the victiman 2 , after that deed had been done, urged his cohorts to kill the victim’s wife and daughter.”

As the majority correctly observes, in order to prove appellant was the person uttering either of the phrases in question, it was incumbent upon the State to exclude reasonable inferences other than that it was appellant. This, the State was unable-to do.

The record reflects that Susan and Grace Denson each positively identified Starvag-gi’s voice in a pretrial voice identification procedure. They were, however, unable to identify appellant’s voice — even when he spoke the phrases in issue. At trial, the State did not ask Susan Denson whether the “shoot him, shoot him” voice sounded like that of Starvaggi or not. Since appellant and Starvaggi were the only intruders in the house at that point, and Susan had been able to discern Starvaggi’s voice, testimony by Susan that the voice did not sound like Starvaggi’s, would have excluded every reasonable inference other than that it was appellant. But the question was not asked.

Is it any less or more reasonable to infer that it was Starvaggi — observing at the bottom of the stairs that appellant had his pistol 3 as he struggled with Denson — than appellant, who urged the other to “shoot him, shoot him?” Each inference is equally likely under the evidence, and neither was excluded.

Only Grace Denson testified that someone stood at her and Susan’s feet and urged Starvaggi to “kill them, kill them.” Susan Denson was asked:

“Q: Was there any discussion — did you hear any discussion about shooting you and your mother?

A: No, sir.

Q: Did anybody say anything that you all should be shot?

A: Not that I know of.”

*298 Since Grace Denson’s testimony was the only evidence that the “kill them, kill them” phrase had been spoken, the identification of appellant as the speaker also depended entirely on her. Thus, apparently anticipating testimony to be adduced at the punishment phase to the effect that appellant spoke with a lisp, the prosecution, during the State’s case in chief on guilt, sought to establish that the person who uttered the phrase spoke, not only with a speech impediment, but a particular kind. That effort was as follows:

“Q [By prosecutor]: I’ll ask you if you noticed anything unusual about the voice....

A: Yes, he had a speech impediment.

* * sk * * ⅜

Q: And by speech impediment, could you tell the jury and the Court, more or less, what you have reference to?

A: Well, he kind of have [sic] a lisp-like. * * * He didn’t speak very plainly.”

Labeling it a “lisp-like,” the witness only described the speech impediment in question as a failure to “speak very plainly.” Thus, on crossexamination, the attributes of the “speech impediment” in question were pursued as follows:

“Q [By defense attorney]: How could you tell there was a speech impediment?

A: Because he didn’t speak very plainly.

Q: Did you hear a specific pronouncing as a lisp usually is?

A: Well, yes. And he just had a kind of — just couldn’t speak very plainly.

Q: Well, there weren’t any lisp in kill them, kill them, aren’t you going to kill them?

A: Yes.

* * * * # *

Q: —did you hear this person say anything else that might—

A: No, just kill them, kill them.

Q: At one point — and you determined there was a speech impediment from this one point?

A: Each time he said the same thing.

* * 4s * * *

Q: You didn’t see this man, did you?

A: No, I didn’t.

Q: So you don’t know his size or anything else about him?

A: He seemed to have a speech impediment.

Q: That’s right. You are not sure what kind of speech impediment, are you?

A: It was — he just couldn’t speak plainly or clearly. He had a lisp.

Q: Was it necessarily a lisp or was it some other problem of just not speaking clearly?

A: He couldn’t speak clearly, and he had a lisp. I can’t tell you exactly how. I can’t speak that way. I don’t know how.

Q: But you could determine he had a lisp from that particular phrase?

A: Yes.”

The only other evidence adduced regarding a “speech impediment” was given at the punishment phase: State’s witnesses testified appellant spoke with a “lisp;” defense witnesses testified he did not; and also made an issue was whether Martin or Bayer — the other two intruders in the house at the time the phrase was spoken— spoke with a “speech impediment.”

From this contested evidence, the jury could have found beyond a reasonable doubt that appellant speaks with a “lisp.”

However, Grace Denson’s testimony fails to establish beyond a reasonable doubt that the speaker of the phrase spoke with a “lisp:” there is no opportunity for a “lisp” —a pronunciation of the sibilants “s” and “z” imperfectly, especially by giving them the sound of “th” — in the words “Kill them. Kill them. Aren’t you going to kill them.” Moreover, using only the label “lisp,” Grace Denson was unable to describe qualities of a “lisp” in the abstract; neither could she describe the particular attributes of the “speech impediment” she heard such that one might reasonably infer it was a “lisp.”

*299 In sum, Grace Denson’s testimony at most established the person who urged Starvaggi to kill her and her daughter “just couldn’t speak plainly or clearly.” The State adduced no evidence which would exclude the reasonable hypotheses that one of the other two robbers, Bayer or Martin, spoke with the “speech impediment” Den-son described only as unplain speech. Restated, it is no less plausible to infer that Bayer or Martin spoke the phrase in question, than it is to infer the speaker was appellant. This leaves a reasonable doubt that it was appellant who urged the women be killed.

I would hold that, upon viewing the evidence in a light most favorable to the prosecution, no rational trier of fact could find beyond a reasonable doubt, that appellant’s conduct which made him a party to the capital murder of John Denson, was committed deliberately to cause the death of the deceased and with the reasonable expectation that his death would result.

Neither can I agree with the majority that the individual circumstances of appellant’s participation in the offense established are alone sufficient to sustain the jury’s affirmative answer to Special Issue No. 2. One need only review the facts constituting the offenses committed in cases such as Burns v. State, 556 S.W.2d 270 (Tex.Cr.App.1977); 4 and King v. State, 631 S.W.2d 486 (Tex.Cr.App.1982), to appreciate “the shocking nature of [those defendants’] crime[s] or the most dangerous aberration of character [they] evince.” 631 S.W.2d at 504 .

If this appellant’s participation in the instant offense alone establishes beyond a reasonable doubt that there is a probability he will commit future acts of violence which constitute a continuing threat to society, then the substantive value of submitting Special Issue No. 2 to the jury has been obliterated.

Appellant was not the shooter. There is no evidence he helped plan the burglary transaction. There is no evidence any of the perpetrators expected a murder to be committed. 5 The State was unable to bring the jury evidence that appellant had ever before been convicted of a felony. Neither did the State adduce any evidence of past violent conduct on appellant’s part. 6 The State did offer testimony from a Houston Police Department detective and the Cherokee County Sheriff to the effect that appellant’s reputation for being a peaceable and lawabiding person was bad.

On the other hand, appellant, a cement mason by trade, introduced the testimony of four work associates: Donald Ford, the Training Director of the Cement Mason’s Local Union; Travis Smith, the Business Manager of Houston Cement Masons; Howard Brown, owner of Howard Brown Construction Company; and, Gene Smith, a *300 cement mason. Each of these witnesses testified that he had known and worked with appellant between ten and thirteen years, had never heard of his being in trouble with the law, and opined that he was a steady, reliable and talented cement mason. Brown and Smith each testified that notwithstanding appellant’s conviction for capital murder, he would hire appellant if he were released. 7 Appellant also introduced the testimony of Ray Gilbert, an Assembly of God minister, who related that appellant — who Gilbert had known for thirteen years — had once poured a slab for a church building project, but refused payment for the work when it was offered. Gilbert also testified that appellant was “loved by” children, because he always took the time to give them his attention.

Next, appellant called James Keeshan, the District Attorney of Montgomery County, who testified that both Susan and Grace Denson had made positive voice identifications of Starvaggi as the person who had said “I killed your old man, you know...,” but that no such identification had been made when the witnesses heard the lineup participants, including appellant, say, “Kill them. Kill them.” Keeshan testified that two of the lineup participants had been singled out by the Densons as “possibly” the person who spoke the words, but he could “not remember” whether appellant had been one. Appellant also called Texas Ranger Wesley Styles who likewise testified that he did “not remember” whether appellant was one of the lineup participants who was identified as being, “possibly” the speaker of the phrase “Kill them. Kill them....”

Finally, appellant called Ron Van Loon, a handwriting expert, who had conducted an analysis of appellant’s handwriting which was contained in his written inculpatory statement. Van Loon characterized appellant as being “near genius” and a person who exhibited “a great deal of optimism,” and had been “struggling for improvement all his life.” According to Van Loon, appellant “has the capacity of being greater than most people in this room, including myself.” It was Van Loon’s opinion that appellant “would not deliberately go and take someone’s life” and that with better direction, appellant could be a great asset to his community and society. Van Loon further opined that appellant is not likely “to hang around with a gun in his hand a lot of the time ... because he works more with his mind.” The witness stated on crossexamination that appellant would not go “to another county and crash into a house, ... and terrorize the occupants and rob [them] alone, ... but he would be a follower.”

To say, as does the majority, that the mitigating factors reflected by' this record do not outweigh the aggravating factors, and that the evidence is sufficient to support the affirmative finding on the second special issue, is nothing short of fantastic. I cannot agree that the Legislature intended our special issue submission scheme to have so little effect on the determination of whether a person should live or die.

I am both gratified and relieved that the Court has seen fit to overrule Wilder and Armour v. State, 583 S.W.2d 349 (Tex.Cr.App.1979) and to adopt the analysis of the concurring opinion in Meanes v. State, 668 S.W.2d 366 (Tex.Cr.App.1983). I also agree with the majority that the conviction of appellant — at least as reflected by the record before us — is error free. Accordingly, I concur in the affirmance of appellant's conviction for capital murder.

*301 But for the reasons stated, I would vacate the death sentence and reform it to life confinement.

ODOM and TEAGUE, JJ„ join.

. See Smith v. State, 540 S.W.2d 693 (Tex.Cr.App.1976).

. Albeit not the ultimate fatal shooting which the evidence clearly shows was done by Starvag-gi alone at a time when no one but he and Denson were in the kitchen.

.The evidence established the gun appellant carried was inoperative, and indicates appellant may have known of its condition at the time of the offense.

. Relief granted on other grounds sub nom, Burns v. Estelle, 592 F.2d 1297 (CA5 1979) rehearing en banc, 598 F.2d 1016 (CA5 1979), order granting relief aff’d., 626 F.2d 396 (CA5 1980).

. In fact the only inference from the evidence is that a murder was not planned from the outset: As the majority observes, the shooter, Joey Star-vaggi, told Susan Denson,

“I killed your old man, you know. I didn’t want to do it, but he made me. You had a good old man, you know.”

. The only encounter with the law the State was able to produce was that in March of 1976, a Houston police officer stopped a woman driving a Volkswagen. The officer testified he found a pistol, but did not elaborate. Appellant was a passenger in the car and was arrested for the misdemeanor offense, unlawfully carrying a pistol. The record indicates he was fined $150.00 and sentenced to three days in jail.

In Thompson v. State, 659 S.W.2d 649, 654-655 (Tex.Cr.App.1983) the Court observed:

"We are unwilling to say that carrying a weapon is per se a 'violent' or 'aggressive’ act of and by itself. See Johnson v. State, 650 S.W.2d 414 (Tex.Cr.App.1983). * * * [U]nlike the situation in which the State establishes the fact of a defendant’s admissible prior conviction, [the offering party] here was free to develop the details of the ... conduct which gave rise to each of the convictions, and if it could be shown any or all of them involved acts of aggression, such evidence would have been appropriate for the jury’s consideration_ But no showing of the underlying circumstances was made here. Accordingly, [there was a failure] to establish the prior convictions involved acts of violence...."

. According to Howard Brown, appellant had worked as a foreman for his construction company on several jobs. Additionally, Brown had assisted appellant in coaching a baseball team composed of seventeen and eighteen year old boys, and testified that "they all thought a lot of him.” When asked what he would say appellant’s reputation is, Brown replied:

“Well G.W. Green is — I think one of the finest men that ever worked for me on a job. He’s never given me any trouble of any kind and as far as I know this is the first trouble that G.W. Green has ever been in... ”

Gene Smith testified that he had on numerous occasions, in the capacity of foreman, hired appellant as a cement mason, and would hire him “today” if he were available.