Judge Michael McC _ nick - Voice For The Defense Online

CAPITAL MURDER - PUNISHMENT PHASE- CLAIMOF ENMUND V. FLORIDA "FATAL DHPECT":Dclaimcd jury's verdict on punishment was "fatally defeaive"because jury wasallowed to assess dea~h penalty without at firstexpressly finding he himself killed, anem led to kill, intended tokill or contemplated that lethal force wou P d beempioycd. Enmundv. Florida. 102 S.Ct. 3368 (1982). In short. D amed because hemuld have been convict& asa party tdthe cipital murder, thefinding required by Enmund may not have been made.FACTS: D and accomplice (never identified) kidnappedElizabeth Cantu and her husband (c/w). D told muplo they were"going to go for a ride, get some money and that islie] wasgoingto give it to him and that they wcm going to go back to Ship Ahoyand that lshe. who was nieht manaecrl was eoine to oven the safeand @veihek ail the moGy? At thve ktaurh hab;?th Cantuwas tied uo and left. C/W was held bv accomplice in cou~le'sblazer. D Ad co-D took c/w to city dbp whbre he was ;hotnumemus times by a ,357 or .38 caliber and a A5 caliber wea n;fatal shot came from the 357 or 38 weapon. Several months aterD was a~~rehended as he fled scene of robberv. During mmmissionof Kat offense (robbery of mnvenience store) ~ dii~ia~edchrome plated ,357 magnum revolver which ballistics proved tobe the sa'me weapon thit had wounded c/w. C/W's f6rmer wife(Olga Cantu) tfstified she knew D from high school and that c/wwarwith her on several occasions when s6ereFerred to D byname. From this evidence TCA theorized c/w may haverecagniAD, which could have been the motive for the killing.NOTE: Ina related point of ermr,TCA found evidence sufficientto support guiit/innmnoe and to support affirmativeanswer to&ecidissue one [the "delibemt&ess issuef'lunder a theory that D was eitherthe primary actor or aPatty.TCA overruled D's Enmund challenge on two theories. Itrepeated earlier holdings that as a matter of statutowconstructiin, law of parties maynot beapplied at punishmekt phaseoftrial. Cueuas v. Stale, 742S.W.2d 331 (1987). Having already concludedthat evidence suooorted iuds affirmative>nswerio suecia1issue one, TCA further conciudh, by authority of ~uevas,~thatdidatesof Enmund had been met. When a jury answers the firstiai issueat capital murder punishment phase, that issue in-Enmund findines. Neither Enmundnor S/Ct.'s laterdecision in Tison v. ~&onn, 107 S.Ct. 1676 (1987), placed additionalburden onTexas capital sentencing scheme.Secondly, TCA found jury made adequate finding of intent tokill in its verdict of miih, - whether or not it found Dguilty asprimary aaor or p&y. it isn't important whether or cot jurybelieved D pulled trigger of actual murder wmpon. Becauscjurywas requid to find% intent to pmmotcora&ist commissionofan intentionalmurder before it could convict D as a party to the offense.TCA could not sav its later ounishment verdict was "fatalivdefe&ve" under ~nrnuid.IDENTIFICATION- LINEUPCONDUCTED AFTER WIT-NESS LEARNED POLICE APPREHENDED MAN IN POSSESSION OFMURDER WEAPON:FACTS: Eliibeth Cantu identified Din lineua At trial D attemptedto provcsho had bccn primed to identiiy any short, lightcomplected biackman in the lineup. Prior to lineup witnesslearned police had apprehended man in possession of pistol thathad killed her husband. She was not told the name of sus wt, butseems to have bcen informed he would appear in lineup. e rior tothe live lineup, conducted five monthsafter thekilling, witnesshad sccn in &cessof 200 photographs of black malesand hadmade no identification. T/C found there was some suaestivenessto lineup because witness knew gun had been found, &t furtherP"found lineup was not impmissibly suggestive.I1ELD:Tfstimony adduced at pre-trial hearing failed toestablish~. t/cabused discretion in ~ermittinn in murt identification.TCA acknowledged it is "unhoubtedlythecase that in a substantialnumber of live lineuos the identification witncss will pre-supposethat police have some reason to believe one of the -ts is the perpetrator." If tNs faa standing alone wereparticirenoug to render lineup impermissibly suggestive, "precious fewlineups would meet constitutionalmuster?N0TE:TCA further noted evidence adduced at trial onmerits fortified earlier ruling of t/con identlfimtion.In a footnoteTCA indicated that limiting appellate reviewonly to fact8 adduced at pre-lrial hearing could placeappellatecourt in "the untenable position of having to reverse aconviction in the faoeof a record which supports albeit bclatedly,the trial couri's ruling." TCA made this observationdespite fact D "rciitigated" facts around pre-trial identificationonly in the context of trying to impunge the weight ofElizabeth Cantu's testimony - i.e., he was not attempting - -specifically to retly thelegil issue.Withat least seven judgfs ofTCA sharing this view, trialattomefs should becareful when weighing risk of anemptingto ikpeachordiscredit identificatiGn Gtness at latertrial.SEARCH AND SEIZURE - WARRANTLESS ARREST - WHENMAY THE POLICE ARREST BASED ON REPRESENTATION OF"ONE TIME" CITIZEN?FACTS: D was armted fleeing thescene of an unrelated mbberyseveral months later. DPS officer LC was patmllinginterstatehe received radio broadcastblackmales had just takendace. Fifteen minutes later LC was hezed down bv passingktorist, OP. In state of excitement 0I%formed Lk fie had-knfollowine two blackmalesdrivine a Mamuis. that thew men hadjust robbh a convenience store, &d that they were in possessionof eithera ,357 or ,358 magnum chrome plated pistol. OP also toldLC five cars had passed since OP stopped to contact LC; OP gaveLC license plate number. As LC gave pursuit, he broadcast informationOPhad given him. This was intercepted by Deputy Sheriffwho, together with LC, stopped D and his companion withinminutes. Chrome plated ,357 magnum was discovered in plainview, cocked, on front seat.HELD: Cfficers had probable cause to arrest D. Information OPsupplied to LC(that arrhed mbbery had occurred at conveniencestore and that robbers were fleeing in specified car) wassufficientto warrant a prudent man in believing occupants of the car hadcommitted felonv. Remainine issue - whether reasonable manwould credit OF% inEormati& under the circumstances - was sup-plied because OP's story was sufficiently detailed to su gest to LCthat he had direct knowledge; further information supp ied by OP"dove tailed nicelf with informationalready withincollectiveknowledgeof LC&~other lawenfo~emen~officers (the twoblack males had been involved in armed robbery and would bedriving a Marquis). Using totality of circumstances test, faaswould iustifv reasonable and prudent man in concluding that informationf6m OP wassuffisenlly trustworthy to act upon.EVIDENCE - ADMISSIBILITY OFTAPES COMPlLED FROMDISPATCHTAPE:D challeneed admissibiiitvof cassette taue recodinndocumentin~~lizabeth~an~u's initial call k~ police, sub'Eequentdialoeue between disoatchers and police officers, and further conversgionbetween diipatcher and bntu as she waited for someoneto come to restaumnt and release her.PiSignificant Decisions Reporf January 1989