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Post by honkybouffant on Feb 27, 2011 13:46:49 GMT -6
This discussion is about whether any innocents have been executed, and this thread is intended to be open to discussion of any such cases.
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Post by honkybouffant on Feb 27, 2011 13:47:36 GMT -6
I will begin by continuing a line of discussion from yesterday in a different thread, which appears to have been locked. It concerns the case of Johnny Frank Garrett, who was accused of murdering Sister Tadea Benz, an elderly nun, in the city of Amarillo, Texas. The principal reason to think that Garrett was innocent is the coming to light, recently, of compelling evidence that the crime was committed by another man. Specifically, Leoncio Perez Rueda, a man with a history of rape and murder independent of the crimes mentioned here:
1. Leoncio Perez Rueda, a convicted criminal from Cuba, arrived in Amarillo in late 1980. During the spring of 1981, ten elderly women were raped and brutally beaten in the Northeastern area of Amarillo.
2. Later that summer, within walking distance of these crimes, Narnie Box Bryson, an elderly woman, was raped and murdered in her home.
3. 115 days later, Sister Tadea Benz, an elderly nun, was raped and murdered in her bedroom, again in the same part of Amarillo.
4. Police at the time said that one man was responsible for all of these crimes.
5. Leoncio Perez Rueda was arrested two weeks after the Bryson murder for peeping in the window of an elderly woman.
6. 23 years later, Leoncio Perez Rueda was found guilty, by both a DNA match of sperm left at the crime scene and a confession, of the murder of Narnie Box Bryson, the crime mentioned in 2, which was one of the series of attacks on elderly women.
7. Leoncio Perez Rueda maintained on tape that the murders were committed by his buddy, including that of Sister Benz, but that he was made to participate at gunpoint, which is why he left sperm at the scene.
8. Within days of Garrett's arrest, the sperm from the Benz crime scene was destroyed by the coroner.
9. Years later, this coroner was convicted for deliberately destroying and otherwise tampering with evidence in order to secure convictions.
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Post by honkybouffant on Feb 27, 2011 13:50:12 GMT -6
Here is an explicit response to a post left on the locked thread yesterday by JBS: I would invite everyone to look at that link. It is written by one of the (inadequate) defense lawyers who must share some larger portion of responsibility for Garrett's death. The link basically says very little, except two things: (i) that "at no time did Garrett ever once protest his innocence nor did he ever question the evidence at trial" and (ii) that Jesse Quackenbush, the lawyer who is currently maintaining the innocence of Johnny Frank Garrett on behalf of the Garrett family, needs to put up or shut up: "So, show us the money; show us something that we can possibly hang our collective hat on." I dunno what exactly this guy wants, since he admits that Quackenbush has put together a whole documentary , one that contains the quasi-confessions of Rueda ("my buddy did it, he made me join in, I can prove that we were the ones who did Sister Benz because my blood stained t-shirt was the one left at the scene"). Conveniently, those videos are also available to watch online right here: www.bloodshedbooks.com/tour.php?category=Leoncio's+Confessions Clark (hacklawyer) has also suggests that "Even Randall Sims, Potter County D.A., has strongly hinted that if Jesse can come up with something, he (Sims) feels obligated to run it through for DNA testing, if it can be done."Strongly hinted huh? Not said, but strongly hinted. However, these strong hints are not in agreement with the typed letter received from the Potter County DA's office where they refuse to provide any evidence that might help in this comparison. Moreover, they threaten the Garrett family attorney with legal action should he continue to ask, since his doing so must surely be only for the purposes of harassment and self-promotion, since "any other conceivable cause you might assert for the deceased or the family is barred by statute of limitations, precluded by criminal conviction, and immunity". Apparently there is a statute of limitations on framing someone and executing them, and there's some kind of immunity too. Read all about it: www.bloodshedbooks.com/tour.php?category=Current+Legal+Proceedings#As for hacklawyer's claim that Garrett never maintained his innocence, that's at odds both with the letters he wrote home, and with signed correspondence between Garrett and his representatives, so hacklawyer seems to have a bad memory. See, in particular, the third letter where Garrett signs a letter to his lawyers affirming his innocence: www.bloodshedbooks.com/tour.php?category=Garrett's+Death+Row+Letters This link is particularly disgusting, and will get its own response. I don't know what this means. In context: Also, black hairs were found at the scene of both slayings; Garrett was white and had brown hair.
But police deny that assertion.
"I was the chief here then and I don't know where he's coming up with that," Amarillo Police Chief Jerry Neal said. Then he is either conveniently forgetful or an out and out liar. Check out the reports from the FBI lab that they sent the evidence to (2nd and 3rd item across): www.bloodshedbooks.com/tour.php#"One or more brown head hairs possessing Caucasian characteristics were found on or in each of the specimens BEDSPREAD BLANKET SWEEPINGS FROM FLOOR and SHEETS. These hairs are unlike the hairs in VICTIM'S HEAD HAIR and GARRETT'S HEAD HAIR and, accordingly, could not be associated with the source of VICTIM'S HEAD HAIR and FLORES' (another suspect) HEAD HAIR."
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Post by HANGMAN1981 on Feb 27, 2011 14:22:43 GMT -6
Solution to the problem: DO NOT CONVICT INNOCENT PEOPLE
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Post by honkybouffant on Feb 27, 2011 15:17:35 GMT -6
vlex.com/vid/johnny-garrett-lynaugh-corrections-37199359Wrt to the link above, which JBS posted, I said I would give this one a separate response. What disgusts me about this particular link is that it shows the way the system works, and how it is more about blood than justice. Check out the following quote: "The evidence against the accused was overwhelming. Garrett was seen running from the direction of the convent on the night of the murder. Prints found on the handle and blade of the kitchen knife recovered from under the victim's bed and prints from the bed headboard matched Garrett's. Pubic hairs recovered from the scene were determined to have the same individual characteristics as Garrett's. The steak knife found in the driveway of the convent was of the same manufacture, design and make, and had the same degree of use as another steak knife recovered from Garrett's residence." The "overwhelming evidence" here stated is (a) poor on its face and (b) almost entirely misleadingly described in the quote. "Garrett was seen running from the direction of the convent on the night of the murder." - I will now type out the police report to which this is referring, in full. Unfortunately I have not been able to find it online, but you can read the whole thing by pausing 'the Last Word' the documentary by the attorney representing the Garrett family: On 10/30/81, at 11:48 PM Officer Moose and I were dispatched to 4007 N.E. 18th on a burglary. As we were approaching the 4000 Blk. of N.E. 10th at 11:54 PM, I observed a W/M wearing blue jeans and a white shirt running from the Alamo Catholic Complex in a Southwesterly direction toward 1709 North Spring. The subject cut between 1707 and 1709 North Spring and we circled the block but were unable to find him. We then went to 4002 N.E. 18th on our call and the complaintant (sic) there stated that his next door neighbor, Johnny Garrett that lives at 4000N.E. 18th had been prowling around the house at 1801 N. Spring. When we pulled up to the complaintant's (sic) house I saw Johnny in his front yard wearing a white shirt and blue jeans, this appeared to be the same person I saw running. Johnny had some sort of stick or a pole approximately 3' long in his hands and was hitting a bush next to his front door with a great deal of force. After Johnny saw us he went back into his house. We did not talk to Johnny at this time because he was in his house and we could see no reason to talk to him.
IR# 81-25900 Officer Reporting: L. Jones Date of Report: 11/10/81 Page 1 of 1 pages. There are several minor problems with this report. For one thing, it was typed up two weeks after the event. For another, they "could see no reason to talk to" Garrett even though they had just seen him fleeing, and had tried to apprehend him, and even though his neighbor had called them out specifically because Garrett was "prowling around" a nearby house. But there are also several MAJOR problems with it. I mean, if it's all true, then it simply doesn't square with the idea that Garrett was running away from the convent. Firstly, the call was for a burglary, which isn't further mentioned, but when the cops arrived they find the complainant had an issue with Garrett "prowling around the house at 1801 N. Spring". Now how did the neighbor, who lived at 4002 N.E. 18th witness Garrett at another address, "prowling around", 1801 N. Spring? One google maps search will tell you the answer! The two addresses are right around the corner from one another: maps.google.com/maps?f=d&source=s_d&saddr=4000N.E.+18th+amarillo+tx&daddr=1801+N.+Spring+amarillo&hl=en&geocode=FU2UGQIdssvu-SldFvihSUkBhzETjRnGl84eDA%3BFe6VGQIdnMnu-SlRZFB2SUkBhzGX15E_rrVebg&mra=ls&sll=35.226585,-101.7909&sspn=0.013655,0.025384&ie=UTF8&z=19 So at the time Garrett's next door neighbor made the call, Garrett was just around the corner. By the time the cops arrived, Garrett was in his own front yard, one corner away. Where was the convent? maps.google.com/maps?f=d&source=s_d&saddr=4000N.E.+18th+amarillo+tx&daddr=Sisters+of+St+Francis+Convent,+Northeast+18th+Avenue,+Amarillo,+TX&hl=en&geocode=FU2UGQIdssvu-SldFvihSUkBhzETjRnGl84eDA%3BFbyYGQIdHdnu-SHDp9R02DbfZw&mra=ls&sll=35.45787,-102.064125&sspn=0.871388,1.624603&ie=UTF8&ll=35.230827,-101.790798&spn=0.006827,0.012692&z=17 ...several blocks away. So if Garrett was fleeing the murder of Sister Tadea Benz then he must have been prowling around 1801 N. Spring when the cops were called then, as the cops were coming, he ran several blocks to the convent, broke in, raped and murdered the nun, then ran back to be in his front yard by the time the cops arrived. Of course, that's IF Garrett was seen running from the convent the night of the murder. In fact, however, Sister Benz was murdered on the night of the 31st October, Halloween, whereas, according to the police report, Garrett was seen "running from the direction of the convent" THE NIGHT BEFORE, on the 30th. (!!!) Not really running from the scene of the crime as such is it? I'll try to get a screenshot of the report. If I can't, I invite you to get the documentary and pause on the document. You will see the dates very clearly. "Prints found on the handle and blade of the kitchen knife recovered from under the victim's bed and prints from the bed headboard matched Garrett's." The (bent) 'kitchen knife' was a butter knife, unsuitable for murder and, I believe, not the murder weapon. The quote neglects to mention this. Moreover, there is compelling evidence that Garrett had been to the convent on one or perhaps even two separate occasions in prior weeks. Once as a volunteer, and once as a thief. With respect to the first, the priest associated with the convent is on tape declaring that Garrett helped move furniture about the place prior to the murder. "Pubic hairs recovered from the scene were determined to have the same individual characteristics as Garrett's." Having 'the same individual characteristics' could mean, of course, that both the hairs found at the scene and Garrett's hairs were brown. No DNA test was performed on the hairs, and the representative for the Garrett family is trying to get a hold of those hairs precisely so that that can be done, but the PD and DA's office has so far refused to release them. With respect to the actual report made by the FBI lab at the time concerning the hairs, the report explicitly refused to make a positive identification. The pubic hairs could have been Garrett's, but might not have been. "The steak knife found in the driveway of the convent was of the same manufacture, design and make, and had the same degree of use as another steak knife recovered from Garrett's residence." On this basis it was concluded by the FBI lab that the steak knife "could have originated from the same set of knives or a different set of knives" to the ones found at Garrett's home. Such was the "OVERWHELMING" evidence the appeals court considered to tell against Garrett. Some hairs that might or might not have been Garrett's. A knife that might or might not have been Garrett's. Fingerprints on items unrelated to the murder, explained by Garrett's presence as a volunteer at the convent. Lastly, a sighting of him "running away from the crime scene", several blocks away from it, right by his own house, THE NIGHT BEFORE the murder. I'd laugh, except that some poor guy got poisoned to death as a result of this cuckoo process. From the same link above, let's see how it ends: Garrett's argument is straightforward: If Dr. Erdmann had tested the samples for the assailant's blood type and those tests had revealed that the assailant had a blood type different from Garrett's, the evidence would have been absolutely exculpatory. Garrett argues that under California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), the failure of the state to make this test or preserve enough of the sample for Garrett to conduct the test denied him a fundamentally fair trial. There then follows some half-cocked phony legal baloney about how, in this case, destroying exculpatory evidence wasn't so bad, and so the petitioner's claim is denied. So we see how the system of appeals that "guarantees that no innocent man is ever convicted" really works. You pass over the feeble evidence presented at trial without question, and move on to some legal baloney reverse-reasoned to deny the petition. On this occasion, they said that it was ok that the coroner (a man later convicted for destroying and tampering with evidence in order to secure convictions) destroyed the evidence since he used it up in testing it, so what else could the poor guy do? In fact, the coroner destroyed the sperm sample several days after Garrett was arrested, without further testing, and later claimed that he did so because no-one had told him to keep it. So the appeals process isn't even dealing with the facts, they are just finding whatever rationalization they can to get the result they want. Since we're all so used to hearing half-baked reasoning when it comes to justifying the dp, so I'll pass over the legal arguments made in denying Garrett's claim without further comment. However, note that Garrett is clearly maintaining his innocence at the appeals phase, since he is complaining that the sperm sample that was mysteriously destroyed within a couple of weeks of his being arrested would have exonerated him. This puts the lie to 'hacklawyer's' claim, linked to by JBS, that, during the appeals process, Garrett never mentioned his innocence. A lie. The dp is evil. It is a method via which psychopathic bureaucrats can commit murder while enjoying the protections of the state, then lie about it for decades afterwards. This is what the brood of cockroaches in Amarillo have proved.
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Post by honkybouffant on Feb 27, 2011 15:25:59 GMT -6
The police report:
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Post by Big Al on Feb 27, 2011 18:46:33 GMT -6
The police report: Dude!!!!! He was hitting the bush!!!!!!! With a large stick!!!!!!! And then fled into his house at the sight of the police!!!!!!!!! What more do you need man. For christ's sake!!!!!!!!!!!
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Post by HANGMAN1981 on Feb 28, 2011 0:11:18 GMT -6
The police report: Dude!!!!! He was hitting the bush!!!!!!! With a large stick!!!!!!! And then fled into his house at the sight of the police!!!!!!!!! What more do you need man. For christ's sake!!!!!!!!!!! Don't worry. He should head of the Innocence Project, since every scumbag is "innocent" in his eyes.
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Post by honkybouffant on Feb 28, 2011 0:47:37 GMT -6
Dude!!!!! He was hitting the bush!!!!!!! With a large stick!!!!!!! And then fled into his house at the sight of the police!!!!!!!!! What more do you need man. For christ's sake!!!!!!!!!!! Don't worry. He should head of the Innocence Project, since every scumbag is "innocent" in his eyes. How many other people have I defended the innocence of on this site? Without lies, you've got no argument. Kinda like the way the dp is defended generally.
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Post by HANGMAN1981 on Feb 28, 2011 2:27:03 GMT -6
Don't worry. He should head of the Innocence Project, since every scumbag is "innocent" in his eyes. How many other people have I defended the innocence of on this site? Without lies, you've got no argument. Kinda like the way the dp is defended generally. You would defend John Spriko and Tommy Arthur, despite their previous murder charges. They were poster children for the abolitionists. Troy Davis is likely your next one.
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Post by honkybouffant on Feb 28, 2011 2:53:49 GMT -6
How many other people have I defended the innocence of on this site? Without lies, you've got no argument. Kinda like the way the dp is defended generally. You would defend John Spriko and Tommy Arthur, despite their previous murder charges. They were poster children for the abolitionists. Troy Davis is likely your next one. I can't comment until I have looked closely at the cases. but it looks like you've backed off on saying that I defend all convicted murderers as being innocent. Now you're just saying that I would defend a certain few. You're right in that case. I'll defend the ones that seem to me to be innocent, like Garrett.
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Post by jan on Feb 28, 2011 7:35:12 GMT -6
You would defend John Spriko and Tommy Arthur, despite their previous murder charges. They were poster children for the abolitionists. Troy Davis is likely your next one. I can't comment until I have looked closely at the cases. but it looks like you've backed off on saying that I defend all convicted murderers as being innocent. Now you're just saying that I would defend a certain few. You're right in that case. I'll defend the ones that seem to me to be innocent, like Garrett. What a joke! Maybe you should insist that the courts contact you for your learned opinion because according to you they have it all wrong?
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Post by jan on Feb 28, 2011 7:43:57 GMT -6
Back to the original thread about "innocents executed"
Innocents have been executed but less so now and in future as the forensic science develop and investigating methods are upgraded.
The most innocents that were executed were not for murder but at the hands of the religious for not complying with their opinion, and it still happens.
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Post by honkybouffant on Feb 28, 2011 10:50:17 GMT -6
I can't comment until I have looked closely at the cases. but it looks like you've backed off on saying that I defend all convicted murderers as being innocent. Now you're just saying that I would defend a certain few. You're right in that case. I'll defend the ones that seem to me to be innocent, like Garrett. What a joke! Maybe you should insist that the courts contact you for your learned opinion because according to you they have it all wrong? Maybe they should contact you to ask who to contact.
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Post by honkybouffant on Feb 28, 2011 10:51:38 GMT -6
Back to the original thread about "innocents executed" Innocents have been executed but less so now and in future as the forensic science develop and investigating methods are upgraded. How do you know that fewer innocents are being executed these days? Where is your data, your evidence? Irrelevant.
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Post by whitediamonds on Feb 28, 2011 12:39:12 GMT -6
Back to the original thread about "innocents executed" Innocents have been executed but less so now and in future as the forensic science develop and investigating methods are upgraded. How do you know that fewer innocents are being executed these days? Where is your data, your evidence? Same place you say innoents have been executed, where is the actual data ? Not your opinion or feelings. All your postings are Irrelevant too on that topic.
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Post by jan on Feb 28, 2011 12:41:02 GMT -6
What a joke! Maybe you should insist that the courts contact you for your learned opinion because according to you they have it all wrong? Maybe they should contact you to ask who to contact. That's not a bad idea, I will not put your name forward though.
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Post by Rev. Agave on Feb 28, 2011 15:06:47 GMT -6
vlex.com/vid/johnny-garrett-lynaugh-corrections-37199359....Garrett argues that the state deprived Garrett of potentially exculpatory evidence because the state pathologist failed to test the deceased's vaginal contents for the rapist's blood type or to preserve the specimen so that the defense could have those tests conducted.
The district court held a hearing on the facts surrounding the autopsy. When Sister Benz' body was recovered from the funeral home it was sent to Dr. Ralph Erdmann, a pathologist on retainer with Potter County, for an autopsy. After Dr. Erdmann found external evidence of a rape he injected saline solution into the vaginal vault and recovered a small quantity of fluid. From these vaginal washings Dr. Erdmann tested for the presence of sperm and prostate secretions and found both. In making these tests, Dr. Erdmann used the entire vaginal contents sample he recovered from Sister Benz' body.
Garrett's argument is straightforward: If Dr. Erdmann had tested the samples for the assailant's blood type and those tests had revealed that the assailant had a blood type different from Garrett's, the evidence would have been absolutely exculpatory. Garrett argues that under California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), the failure of the state to make this test or preserve enough of the sample for Garrett to conduct the test denied him a fundamentally fair trial.
In Trombetta the Court considered whether the due process clause requires law enforcement agencies to preserve breath samples of suspected drunken drivers for later inspection and tests by the accused in order for the state to admit the results of breath analysis tests in criminal prosecutions. The Court held that the Constitution requires a state to preserve "[material] evidence that might be expected to play a significant role in the suspect's defense." Id. at 489, 104 S.Ct. at 2534. Evidence meets the materiality standard for these purposes if it possesses an "exculpatory value that was apparent before the evidence was destroyed, and be of such nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id. Garrett's reliance on Trombetta is misplaced. No evidence was destroyed in the Trombetta sense. Dr. Erdmann completely used the available sample in making the tests that he considered necessary. Stated another way, there was in this case no evidence (whether or not potentially exculpatory) left for the state to preserve once Dr. Erdmann had used up the sample. Trombetta does not require a state to conduct its investigation in any particular way or perform tests on raw data in any particular order. Nor does it require a state to conduct additional or more comprehensive tests.********************************************************* query.nytimes.com/gst/fullpage.html?res=9E0CE6DB133AF931A15752C1A964958260&pagewanted=printRipples of a Pathologist's Misconduct In Graves and Courts of West Texas By ROBERTO SURO, HOUSTON, Nov. 21— he prairie graveyards of West Texas are giving mute testimony to the misdeeds of a circuit-riding pathologist who left a trail of faked autopsies, botched blood samples and missing organs from the Panhandle to the Rio Grande.
According to defense lawyers' estimates, as many as 20 capital murder cases and dozens of other prosecutions will be appealed because of accusations that crucial evidence was ghoulishly or criminally mishandled in autopsies performed by the pathologist, Dr. Ralph R. Erdmann, who worked as a contract medical examiner in more than 40 rural Texas counties since the early 1980's.
As evidence of Dr. Erdmann's malfeasance piles up, a fracas has broken out over defense lawyers' accusations that prosecutors sanctioned his practices to win cases and are now trying to cover it up.
On Sept. 21 Dr. Erdmann, 65 years old, pleaded no contest to seven felony counts involving falsified autopsies in Lubbock, Hockley and Dickens counties. Under plea agreements he was sentenced to 10 years of probation and 200 hours of community service and was ordered to pay two counties nearly $17,000 in restitution for autopsy fees and costs of exhumations, medical re-examinations and reburials.
Dr. Erdmann, who surrendered his medical license in August, after his indictment, still faces criminal investigations, lawsuits and demands for testimony in many other cases.
"The botched autopsies he's been indicted on so far are just a small sample," said Tommy Turner, the special prosecutor in a Lubbock court of inquiry that investigated Dr. Erdmann last summer. 'This Guy Was a Liar'
Mr. Turner said a fairly quick and narrow examination of Dr. Erdmann's work turned up evidence of about 100 faked autopsies.
"We started digging up bodies," Mr. Turner said, "and when we were seven for seven we decided that in the interests of judicial economy we didn't have to go further to prove that this guy was a liar."
Don Hurley, a Lubbock lawyer who is appealing a murder case in which he said Dr. Erdmann falsified a toxicology report, said, "I believe as I believe that the sun will come up tomorrow that there was a conspiracy between the prosecution and Erdmann to say whatever was necessary to get a conviction, and I don't have any doubt that there is a cover-up now." Prosecutors Deny Guilt
Prosecutors have angrily denied such accusations. Even though the Randall County District Attorney, Randy Sherrod, said, "I wouldn't use Erdmann again, ever, based on what I know now," he insisted, "I never saw an autopsy by Erdmann that was not correct on the basis of other evidence."
Repeated attempts over four days to reach Dr. Erdmann at his home in Lubbock were unsuccessful.
When a person dies during a crime or under questionable circumstances, law-enforcement authorities routinely order an autopsy by a medical specialist. In criminal cases an autopsy is often presented as evidence by the prosecution and the examiner is called to testify as an expert witness.
In many cities the autopsies are performed by medical examiners or coroners who are full-time government employees, but jurisdictions in rural areas contract with pathologists for such services. Lubbock County paid Dr. Erdmann more than $140,000 a year under such a contract, and he collected as much as $600 per autopsy elsewhere.
Dr. Erdmann, who claimed to have a medical degree from a university in his home country of Mexico, performed as many as 400 autopsies a year in West Texas. His practice consisted basically of his contract work doing autopsies, and, all the while he worked in close collaboration with many prosecutors and police officials, some of whom are now prominent in politics.
Defense lawyers say their suspicions of falsified autopsies and a cover-up have been heightened by the way law-enforcement authorities reacted to the initial accusations against Dr. Erdmann.
Prosecutors in Lubbock learned on Feb. 14 that the doctor was about to be indicted in a neighboring county, said Steve Holmes, chief administrator of the Lubbock District Attorney's office, but they did not open their own investigation into his activities in their own county until April 3. County officials explained that they had had no complaints of criminal wrongdoing by him in their jurisdiction, but defense lawyers dispute that. Talk of 'Fantasies'
In a review of criminal cases involving Dr. Erdmann's autopsies, independent pathologists concurred with Dr. Erdmann's findings every time, Mr. Holmes said. But he could not say how many cases had been reviewed.
"There are clear indications," Mr. Turner said, "that a number of people in law enforcement considered him weird and questioned his competence because he regularly messed up evidence and he did strange things like handing people organs to hold. But no one blew the whistle."
Dr. Erdmann's dealings with the authorities were not within the scope of the special inquiry last summer, but the prosecutor, Mr. Turner, said, "From what I learned about the man, it seemed Erdmann had fantasies aggrandizing his role in law enforcement to the point that he may have shaded things to follow along with the police theory of a case."
As an example, Mr. Turner noted the case of Craig Newman, which led to the indictment of Dr. Erdmann last February.
When Dr. Erdmann arrived to perform an autopsy of Mr. Newman, a 41-year-old Levelland man found dead in his home, Mr. Turner said, a police officer made a casual remark speculating that drugs were involved. When the autopsy later stated that Mr. Newman died of a cocaine overdose, his family was incensed, insisting he never used drugs.
Then, one family member noted that the autopsy listed the spleen as ane internal organ that had been examined and weighed, although Mr. Newman's spleen had been removed years earlier.
Mr. Newman's body was exhumed, but no autopsy incision marks were found on it. Another autopsy was then performed and showed that Mr. Newman had died of a heart attack. New Turn for a Trial
District Attorney Sherrod, who used Dr. Erdmann in dozens of criminal cases in his Panhandle county over many years, described the doctor as "a weird kook" and acknowledged that Dr. Erdmann exaggerated his qualifications, for example by falsely claiming to be an expert on ballistics. As a trial witness "he'd confuse left with right," Mr. Sherrod said, "and say 'up' when he meant 'down' because he wouldn't prepare for trials."
In the past weeks, defense lawyers have transformed a seemingly straightforward murder being prosecuted by Mr. Sherrod in Canyon into a test case for the accusations that Dr. Erdmann's incompetence was tolerated or even abetted by prosecutors and the police.
In the Canyon case, Douglas Palmer, 19, is charged with capital murder in the beating death of an elderly man during a botched burglary. His lawyers argue that Mr. Palmer should not be on trial for capital murder because he never intended to kill the man. But the facts of the case have almost been forgotten as the pretrial hearing has become a battleground over Dr. Erdmann, whose autopsy supported the prosecution's case.
Mr. Sherrod has opened grand jury proceedings against Dr. Erdmann for falsifying tissue samples in the Palmer case, but he insists the findings of the autopsy of Mr. Palmer's victim are correct.
Two lawyers nationally known for their work in fighting death penalty cases, Millard Farmer of Atlanta and Steven Losch of New York, joined Mr. Palmer's defense team and have used the pre-trial hearing to explore Dr. Erdmann's career, issuing subpoenas to more than 50 law-enforcement officials to testify about their relations with him.
That has sparked a storm of motions, charges and counter-charges that is still going on.
So far, two police officers have testified in support of the charges of prosecutorial misconduct. Both have since been indicted for perjury, one for his testimony on Dr. Erdmann and the other in an unrelated case.
Last month, Mr. Farmer was indicted on a charge of tampering with a witness -- in this case threatening Dr. Erdmann to get favorable testimony out of him.
Defense lawyers say all of the indictments are a vindictive effort to derail the investigation of Dr. Erdmann's relations with law enforcement. Prosecutors argue, however, that they are defending the legal system from maliciously overeager lawyers.
All of this has simply excited the defense bar's appetite for appealing almost any case that Dr. Erdmann touched.
"The state is either going to have to make great deals with prisoners or it's going to have to be digging up a whole lot of bodies," said Rod Hobson Jr., president of the Lubbock Criminal Defense Lawyers Association."
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Post by Rev. Agave on Feb 28, 2011 15:09:47 GMT -6
682 S.W.2d 301 (1984)
Johnny Frank GARRETT, Appellant, v. The STATE of Texas, Appellee.
No. 69088. Court of Criminal Appeals of Texas, En Banc.
September 19, 1984. Rehearing Denied November 7, 1984. 303*303 Bruce Sadler, Amarillo, for appellant.
Danny E. Hill, Dist. Atty. and Vicki Howard, Asst. Dist. Atty., Amarillo, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION
TOM G. DAVIS, Judge.
Appeal is taken from a conviction for capital murder. After finding appellant guilty, the jury returned affirmative findings to the two special issues submitted under Art. 37.071(b), V.A.C.C.P. Punishment was assessed at death.
Appellant was convicted of murdering T___ B___, an elderly nun at the St. Francis Convent in Amarillo, "in the course of committing or attempting to commit the offense of aggravated rape" of the said victim.
In his first ground of error, appellant challenges the sufficiency of the evidence to sustain the conviction. Specifically, appellant contends that the circumstantial evidence relied upon for conviction does not "exclude every other reasonable hypothesis except that of the guilt of the accused."
At approximately 7:00 o'clock a.m. on October 31, 1981, the nude body of the victim was found on the floor of her room in the St. Francis Convent by a nun who had noticed the deceased missing at chapel earlier that morning. Another nun testified that she passed by the deceased's open bedroom door at midnight the night before and heard her breathing. She further testified that although there was blood on the deceased's face when the body was found that morning, the nuns did not suspect foul play and had the body removed by a funeral home. The police were summoned after the nuns discovered a broken window in the ground level recreation room. The screen to the window had been cut, and was on the pavement outside.
The police found a bent "serrated edge" table knife under the deceased's bed, along with a set of lower dentures. What appeared to be blood was found on the wall next to the bed, the bed sheet, the deceased's nightgown, and pillowcase. A different knife, a "Forgecraft" steak knife, was found outside of the convent in the driveway.
Dr. Ralph Erdmann, a pathologist, performed the autopsy on the body. He testified that the deceased "had sustained multiple blunt force trauma about the face, chest, and arms," as well as stabbing wounds to the chest. He further stated that the body had injuries to the front and back of the neck, and that death was caused by manual strangulation which resulted in "cardiac arrest due to cerebral anoxia." Injuries to the front of the neck appeared to be caused by a hard and thin object, "consistent with" the shape of the knife found under the bed.
304*304 Dr. Erdmann took vaginal washings of the deceased and found the presence of sperm and male prostate secretions. Hemorrhaging indicated that the hymen had been recently torn.
Latent fingerprints identified as appellant's were found on the headboard of the deceased's bed, and on the knife found under the bed. Officer Stephens testified that one print taken from the knife matched appellant's left middle fingerprint, and that another print on the knife matched appellant's left palm print. A print taken from the upper part of the back of the headboard matched appellant's left ring finger. Although no blood was found on the knife found under the bed, the bedsheet had a striated blood smear on it which, according to Agent Goldsberry of the FBI, was either made by that knife "or by another knife having the same type of striations."
Agent Burwitz of the FBI testified that several pubic hairs found on the floor in the deceased's room matched samples taken from appellant, and that the hairs either came from appellant "or another individual who had precisely the same characteristics, racial characteristics."
Agent Goldsberry testified that the impressions on the screen to the broken window were made by a knife similar to the steak knife found in the driveway of the convent, but he could not positively state that the same knife made the marks. Goldsberry further testified that the steak knife found in the driveway of the convent was the same brand as a steak knife recovered from the kitchen in appellant's residence, and that both knives had "the same degree of use and abuse and very possibly could have originated from the same source."
Lonnie Watley, an inmate and trusty in the Potter County jail during appellant's incarceration there, testified he talked to appellant in jail about the murder. He stated that although appellant was at first reluctant to discuss the matter, appellant eventually admitted breaking into the convent and killing the deceased.
Appellant testified at the guilt stage of the trial, and admitted entering the convent and being in the deceased's room with the knife later found under the bed. However, appellant testified he was in the convent shortly after noon, two days before the murder took place. He stated he entered the convent through the front door, took a knife from the convent cafeteria, and went upstairs to the rooms where the nuns resided searching for a chain with a cross on it, to steal. In one room, a drawer in a chest of drawers would not open and appellant bent the knife trying to open it. He stated that he grabbed the headboard on a bed in one of the rooms so that he could lean over and reach a cross hanging on the wall. At one point appellant heard footsteps approaching and got rid of the knife and fled from the convent.
Appellant now contends that his testimony at trial raises a reasonable alternative hypothesis on appeal, and therefore, the evidence is insufficient to sustain the conviction.
The standard for reviewing the sufficiency of the evidence on appeal is the same for direct and circumstantial evidence cases; and that is to view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Carlsen v. State, 654 S.W.2d 444 (Tex.Cr.App.1983); Freeman v. State, 654 S.W.2d 450 (Tex.Cr.App.1983); Denby v. State, 654 S.W.2d 457 (Tex.Cr.App.1983); Wilson v. State, 654 S.W.2d 465 (Tex.Cr. App.1983); see also Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
In applying the above standard of review, the "exclusion of reasonable hypotheses" test may be used as one means of analyzing the sufficiency of circumstantial evidence cases. As the opinion on rehearing in Denby, supra, noted, "if the evidence supports an inference other than the guilt of the appellant, a finding of guilt 305*305 beyond a reasonable doubt is not a rational finding." 654 S.W.2d at 456.
Appellant's trial testimony explaining why his fingerprints were found in the deceased's room does not constitute an outstanding reasonable hypothesis on appeal. The jury, as the trier of fact, was authorized to accept or reject any or all of this testimony. See Ables v. State, 519 S.W.2d 464 (Tex.Cr.App.1975). Furthermore, the State presented rebuttal testimony which challenged the reasonableness of appellant's testimony. One of the nuns testified that the front door was normally locked, or if not, a nun would have been in the office by the front door. In addition, the nuns ate lunch in the cafeteria between noon and 1:00 p.m., and would in all likelihood have seen appellant enter the dining room during the lunch hour to remove a knife. Finally, none of the chests of drawers in the convent had a lock, and there had been no report of a stuck drawer.
Appellant's contention is overruled. The evidence summarized above is sufficient to sustain the conviction.
In three grounds of error, appellant complains of the State's use of an oral confession for impeachment purposes. Appellant confessed to detectives Walter Yerger and A.L. Morris while in custody. After his confession had been reduced to writing, appellant refused to sign it. When appellant testified at trial denying his guilt in the murder, his oral confession was used for impeachment by the State.
Appellant's first complaint is that the trial court erred in failing to enter an order stating its conclusion that the statement used for impeachment was voluntarily made, as required by Art. 38.22, Sec. 6, V.A.C.C.P., in all cases where a question is raised as to the voluntariness of a statement of the accused. At appellant's trial, outside the presence of the jury, a hearing was held concerning the voluntariness of the oral statement given to Yerger and Morris and the court ruled that the statement was voluntarily given. Although not initially in the record on appeal, the trial court's written order that the statement was voluntarily made, along with the court's findings of fact, has been supplemented to the record before, us, and therefore, any error has been cured. See Bass v. State, 626 S.W.2d 769 (Tex.Cr.App.1982).
In his next ground of error, appellant contends the court erred in allowing the State to impeach appellant with his oral statement because prior to making the statement, appellant was given an incorrect warning of his constitutional rights as required by Art. 38.22, V.A.C.C.P., and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant points to the following excerpt from the warnings given to him:
"I have the right to remain silent and not make any statement at all and that any statement I make can and will be used in evidence against me at my trial." (emphasis added) Appellant contends the warning given is insufficient because Art. 38.22, Sec. 2(a)(1) provides that an accused must be warned that "any statement he makes may be used against him at his trial" (emphasis added).
Appellant's contention is overruled. First, we fail to see how substituting "can and will" for "may" in any way lessens the effectiveness of the Miranda warnings. Furthermore, Art. 38.22, Sec. 2(a)(1) regulates what must appear on written confessions and is thus inapplicable in determining whether oral statements may be used for impeachment. Since the amendments to Art. 38.22, Sec. 3, effective September 1, 1981, the use of oral statements for impeachment is governed by Art. 38.22, Sec. 5, which provides that oral statements stemming from custodial interrogation are admissible for impeachment purposes if voluntarily made.[1] Statements are 306*306 not per se involuntary for impeachment purposes merely because incomplete Miranda warnings were given. See Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). Finally, we hold that the warnings given appellant in the instant case constituted a "fully effective equivalent" of the warnings mandated in Miranda, supra. See California v. Prysock, 453 U.S. 355, 101 S.Ct. 2806, 68 L.Ed.2d 696 (1981).
Appellant also contends that his oral statement was inadmissible for impeachment purposes because the officers failed to comply with appellant's request for an attorney. Appellant asserts that after he requested an attorney, the officers nevertheless continued their interrogation of appellant, and thereafter, the statement was made. Appellant asserts that the use of the statement for impeachment violates "appellant's rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, Article I, Section 10, of the Texas Constitution, and Articles 38.21, 38.22, and 38.23 of the Texas Code of Criminal Procedure."
It is undisputed that appellant was given Miranda warnings prior to interrogation. Detective Morris and Lieutenant Boydston initially interrogated appellant for two hours after his arrest, and then turned over the interrogation to Detective Yerger. Appellant asked Yerger if appellant could talk to a District Attorney, and his request was refused. Approximately 10 minutes later, appellant admitted going to the convent, breaking the window, and going inside. Appellant then requested an attorney, and the questioning stopped. Yerger left the room, told Morris about appellant's admission and request, and stated that he had stopped the interview and was going to book appellant into jail. Yerger reentered the room and began filling out an "arrest ticket." Morris entered the room five to ten minutes later and asked appellant, "how is it going?" Yerger told Morris in appellant's presence about appellant's admission to entering the convent, and appellant "got upset with the fact" that Morris had been told. Morris told appellant that he was Yerger's supervisor, and appellant demanded to see Morris' identification, since Morris was in plain clothes. After seeing the identification, appellant stated, "Well, I suppose I should tell you everything," and without further questioning from the officers, gave the confession which was reduced to writing. When the statement was typed up, appellant requested to talk to an attorney before signing. After talking to an attorney, appellant refused to sign the statement.
The State contends that appellant's statement, "Well, I suppose I should tell you everything," evidences appellant's intent to waive his right to counsel and initiate further conversation with the police. In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the Supreme Court stated: "We further hold that an accused, such as Edwards, having expressed his desire to deal with police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." 451 U.S. at 484, 101 S.Ct. at 1884. The State points to the opinion of the United States Supreme Court in Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), in which it was held that an accused's statement, "Well, what is going to happen to me now?", made after invoking the right to counsel, was a sufficient "initiation" of conversation within the meaning of Edwards, supra. The State maintains that appellant's statement bears "more directly on his intent to voluntarily tell the detectives what had happened" than did the statement found sufficient in Bradshaw.
We need not decide whether appellant "initiated" further communication with the police under Edwards and Bradshaw. Since the confession in the instant case was a voluntary statement used for impeachment, 307*307 [2]it is admissible under Art. 38.22, Sec. 5, supra. The statement is also admissible for impeachment purposes as a matter of federal constitutional law under Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975), and Harris v. New York, supra.
In Hass, a suspect in police custody who had been given Miranda warnings invoked his right to counsel, but was told by the officer who was at the time transporting him to the station that he could not contact an attorney until reaching the station. Thereafter the defendant made several statements, including pointing out where the property he was charged with having stolen was located. The State did not use the statements in its case in chief, but rather used them as impeachment after the defendant had taken the stand and denied complicity in the crime. The Supreme Court relied on Harris v. New York, supra, which held evidence obtained from a defendant after incomplete Miranda warnings admissible for impeachment purposes, and held that the otherwise voluntary statements by the accused were admissible for impeachment purposes, even though the officer continued his interrogation after the suspect asked for an attorney. The Court also noted:
"If, in a given case, the officer's conduct amounts to an abuse, that case, like those involving coercion or duress, may be taken care of when it arises measured by the traditional standards for evaluating voluntariness and trustworthiness." 95 S.Ct. at 1221. Appellant does not contend that his statement was involuntary because of an over-bearing of will, coercion, or duress. See Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). There is nothing before us to indicate that appellant's statement was involuntary under "traditional standards for evaluating voluntariness and trustworthiness." Since appellant's only claim of voluntariness rested on the issue of invoking the right to counsel, appellant's contention is overruled. See Oregon v. Hass, supra; Harris v. New York, supra.
In five grounds of error, appellant contends the court's charge is fundamentally defective. Appellant made no objections to the charge when submitted, nor did he offer requested instructions. Under these circumstances, our review is limited to fundamental error.
The indictment alleges in pertinent part that appellant did:
"knowingly and intentionally while in the course of committing and attempting to commit the offense of Aggravated Rape against T___ B___ intentionally cause the death of T___ B___, an individual, by choking and strangling T___ B___ by manner and means unknown to the Grand Jurors ..." The pertinent portion of the court's charge provides as follows:
"Now if you find from the evidence beyond a reasonable doubt that on or about the 31st day of October, 1981 in Potter County, Texas the defendant, Johnny Frank Garrett, did intentionally kill T___ B___ by choking or strangling her, and that said defendant, then and there, was in the course of committing or attempting to commit the offense of aggravated rape, then you will find the defendant guilty of capital murder." Appellant's first contention is that the charge is fundamentally defective because it "failed to require the jury to find an essential element as alleged in the indictment, i.e. `that T___ B___ was an individual.'"
Appellant relies on Cumbie v. State, 578 S.W.2d 732 (Tex.Cr.App.1979), which states that the "omission from the court's charge of an allegation in the indictment which is required to be proved" constitutes fundamental error. Id. at 733.
308*308 In Sattiewhite v. State, 600 S.W.2d 277 (Tex.Cr.App.1980), we noted that the above statement in Cumbie "is not to be understood to mean that in applying the law to the facts the charge of the court must in every case set out in haec verba the factual allegations of an indictment that are supported by evidence." 600 S.W.2d 284, n. 11. We stated that a charging instrument is not fundamentally defective if it requires the jury to find each essential element of the offense, and if it comports with the legal theory presented by the State in the indictment. Id. at 285.
In Boles v. State, 598 S.W.2d 274 (Tex.Cr.App.1980), we held that an indictment for murder under V.T.C.A. Penal Code, Sec. 19.02 was not fundamentally defective for failing to allege that the victim was an "individual." It follows from Boles that a murder victim's status as an "individual" is not an essential element of murder (and capital murder), and therefore, failure to include such allegation in the court's charge, although recited in the indictment, does not constitute fundamental error. Sattiewhite v. State, supra. Appellant's contention is overruled.
Appellant's next assertion is that the charge is fundamentally defective because although it required the jury to find that appellant caused the death of the victim "by choking or strangling her," it failed to require the jury to find that such choking or strangling was "by manner and means unknown to the Grand Jurors" as alleged in the indictment.
Max Motley, a member of the grand jury which heard evidence and subsequently indicted appellant, testified at trial that the grand jury was unable to determine the manner and means by which the deceased was choked or strangled. Although Dr. Erdmann, the pathologist who performed the autopsy on the deceased, testified that death was caused by manual strangulation, he did not know the exact means through which the strangulation was effected.
It is well settled that an indictment for murder should set forth the means, instrument, or weapon used; or if not known, that fact must be stated. See generally 18 Tex.Jur.3rd, Criminal Law, Sec. 205 (1982). It has been stated that "[t]he averment of an indictment that the means causing death was unknown to the grand jury is a material allegation, the substance of which must be proven as pleaded." Mitchell v. State, 111 Tex.Cr.R. 101, 10 S.W.2d 87, 89 (1928); see also Corbett v. State, 493 S.W.2d 940, 952 (Tex.Cr.App. 1973).
In the instant case the State offered proof in support of the allegation in the indictment that the manner and means were unknown to the grand jury. Thus, no variance between the pleading and proof exists. The question remains whether the failure to instruct the jury to find that the manner and means were unknown to the grand jury constitutes fundamental error.
We hold that it does not. The grand jury's failure to determine the manner and means must be pled in the indictment in order to give notice to the defendant. An unknown manner and means, however cannot be considered to be an essential element of the offense of capital murder. Therefore, in the absence of a variance between the proof and the allegations, and in the absence of an objection, failing to instruct the jury to find that the manner and means were unknown to the grand jury does not mandate reversal. See Sattiewhite v. State, supra.
Appellant also contends the charge is fundamentally defective for failing "to require the jury to find a culpable mental state concerning the committing or attempting to commit the offense of aggravated rape." The charge, quoted above, merely required the jury to find that appellant intentionally killed the deceased while "in the course of committing or attempting to commit aggravated rape."
This contention is without merit. We have held that a capital murder indictment alleging murder "in the course of committing or attempting to commit aggravated rape" need not set out the elements 309*309 of the aggravated rape. Granviel v. State, 552 S.W.2d 107 (Tex.Cr.App.1976). It follows therefore that such elements need not be set out in that portion of the charge applying the law to the facts of the case. This contention is overruled.
Appellant's next contention is that the charge is fundamentally defective because it "permitted a conviction on proof less than required to prove the allegations in the indictment." Appellant asserts that the charge is defective for authorizing a conviction upon proof that appellant caused the death of the deceased "by choking or strangling her," when the indictment alleged appellant killed the deceased "by choking and strangling her."
This contention is overruled. First, the terms "choke" and "strangle" are virtually synonymous in this context.[3] Furthermore, it is proper for an indictment to allege the ways an offense may have been committed in the conjunctive, and for those different ways to be charged to the jury in the disjunctive. See e.g., Zanghetti v. State, 618 S.W.2d 383 (Tex.Cr.App.1981); Vaughn v. State, 607 S.W.2d 914 (Tex.Cr. App.1980); Brantley v. State, 522 S.W.2d 519 (Tex.Cr.App.1975).
Appellant's final challenge to the charge asserts that the charge is fundamentally defective for using the word "kill" when the indictment used the phrase "cause the death of."
This contention is without merit and is overruled. Since "kill" has the same meaning as "cause the death of,"[4] we perceive no error in the charge. Cf. White v. State, 632 S.W.2d 752 (Tex.App.1981), (charge substituting "appropriate" for "exercise control over" not fundamentally defective).
In his tenth ground of error, appellant contends his conviction should be reversed "since vital evidence to appellant's defense was destroyed by the State." Dr. Erdmann, the pathologist who performed the autopsy on the deceased, testified that he took vaginal washings of the deceased and found the presence of sperm and male prostate secretions. He did not conduct any tests to determine the blood type of the individual who had produced the sperm and prostate secretions.
Appellant contends that by failing to conduct a test for blood type and by disposing of the vaginal washings, "the State denied Appellant the opportunity to demonstrate his innocence by showing that the blood type of the prostate secretions in question were of a different blood type from his own."
Although appellant cites no authority, he apparently relies upon Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which holds that it is a violation of due process for the State to withhold evidence favorable to an accused.
While Dr. Erdmann admitted that there would have been at least a 70 percent chance of identifying the blood type of the individual, had a blood type test been made, he testified that no such test had been conducted. Furthermore, he stated he had used up all of the sample taken and was not able to conduct further tests as to blood type. Therefore, there is no factual basis to support appellant's contention that the State withheld any information favorable to him. Appellant's contention is overruled. See Wilson v. State, 581 S.W.2d 661 (Tex.Cr.App.1979) (Opinion on State's Motion for Rehearing).
In a supplemental brief, appellant contends that the trial court erred in excluding four prospective jurors in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Appellant points to no specific statements of the veniremen, merely asserting that "lthough the veniremen in question each stated a general objection to the imposition of the death penalty, they failed to make unmistakably clear their unbending opposition to capital punishment or that such opposition 310*310 would affect their deliberation on issues of fact."
Venireman Mildred Walker stated on direct that she "did not believe in the death penalty," and that no matter what the evidence showed, she would answer one of the punishment issues "no" in order to ensure that the death penalty would not be imposed. Walker did not equivocate at first on examination by defense counsel, but after repeatedly stating she would not vote "yes" under any circumstances, the following exchange took place between Walker and defense counsel:
"Q.... Let's just say that maybe there had been certain kinds of evidence that you were satisfied that a person did do it deliberately and that you were also satisfied because of maybe his past conduct, or maybe because of other things that had been admitted into evidence, that he would probably do something like this in the future; maybe he had done it a dozen times in the past— "A. Well, that would be a different story, I suppose. "Q.... would you answer the questions `yes' if you were convinced of that? "A. If I was convinced of it, yes. "... "Q. Depends on what the evidence was? "A. Yes." Thereafter the court questioned Walker and the following dialogue occurred:
"THE COURT; All right. Mrs. Walker, just so there is no misunderstanding, ma'am, I want to be sure that I understand. "Are you telling me that you would automatically vote against the imposition of the death penalty in any case, no matter what the facts might reveal? "JUROR: Yes, sir. "THE COURT: All right. And to carry it one step further, are you telling me that you would automatically answer those questions ... in such a way that the death penalty would not be imposed, regardless of what the facts might reveal?" "JUROR: Yes, that's the way I feel." At this point Walker was excused over objection that she had been excused in violation of Witherspoon.
In Witherspoon v. Illinois, supra, the United States Supreme Court held that a prospective juror may not be excluded by the trial court because of opposition to capital punishment unless the venireman makes it clear either that he would automatically vote against the imposition of capital punishment no matter what evidence was presented, or that his views would prevent him from making an impartial decision as to the defendant's guilt.
Walker's final statements to the judge make clear that she would automatically vote against the imposition of death under any circumstances. Appellant's counsel chose not to request to question Walker further. Under these circumstances, no error is shown. See Meanes v. State, 668 S.W.2d 366 (Tex.Cr.App.1983).
Venireman Patsy Wood stated that although she could determine a defendant's guilt or innocence in a capital case, she would have to vote "no" on one of the punishment issues regardless of the evidence because of her "strong" feelings about capital punishment. On examination by defense counsel, Wood did not equivocate:
"Q. Mrs. Wood, are you telling the Court that after having taken an oath to make true answers to those questions and to return a true verdict based upon the law and the evidence ... that you would disregard that oath, and even though you believed that those issues, or one of those issues, or both of those issues, should be answered `yes' that you would deliberately answer one of them `no,' because by answering one of the `no,' you would know in your own mind that 311*311 the death penalty could not be imposed. "A. Yes, sir. "Q. Would you automatically, Mrs. Wood, prior to hearing any of the evidence, automatically vote `no,' knowing that the death penalty could not be imposed if you did that? "A. Yes, sir." Thereafter the court questioned Wood and she again stated that she would automatically vote against the death penalty, no matter what the facts might reveal. Under these circumstances, the exclusion of Wood was not improper under Witherspoon, supra.
Venireman Bernice Brown stated that she believed in punishment, but not the death penalty. She stated that she could not answer both punishment questions "yes," under any circumstances, no matter what the evidence was. Brown also did not waiver in response to questioning by defense counsel:
"Q. Now, let me just ask you this question: Would you automatically, Mrs. Brown, without regard to the evidence, without regard to the evidence at all, would you automatically vote `no' to those issues just in order to see that the death penalty was not imposed? "A. Yes, I still would ..." Therefore, we find that the trial court did not err in excluding venireman Brown under Witherspoon, supra.
The last venireman allegedly improperly excluded was Leslie Link. Link also expressed opposition to the death penalty, and stated that no matter what evidence was presented, he would have to violate his oath and answer "no" to one of the punishment issues so that death would not be imposed. In questioning by defense counsel, Link remained firm in his convictions:
"Q. Okay. Now, what the District Attorney is asking and what we need to know, are you telling the Court right now under oath that you would deliberately answer one of those questions `no' even though you thought it ought to be answered `yes,' see, just so that you would be sure that the accused got a life sentence rather than death? "A. Yes."
The trial court did not err in sustaining the State's challenge to this juror. Appellant's final contention is overruled.
The judgment is affirmed.
[1] Art. 38.22, Sec. 5, V.A.C.C.P. provides in pertinent part:
"Nothing in this article precludes the admission of ... a voluntary statement, whether or not the result of custodial interrogation, that has a bearing upon the credibility of the accused as a witness ..."
[2] In its charge, the trial court instructed the jury "that the statement made by the defendant, if it was made, to Walt Yerger and A.L. Morris was admitted for the purpose of impeaching the defendant, if you find that it does impeach him, and you cannot consider such impeachment testimony as any evidence whatsoever of the guilt of the defendant."
[3] "Strangle" is defined as "to choke to death by compressing the throat ..." See Webster's New Collegiate Dictionary (1979).
[4] "Kill" is defined as "to deprive of life ..." See Webster's New Collegiate Dictionary (1979).
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Post by Rev. Agave on Feb 28, 2011 15:34:22 GMT -6
Of course, that's IF Garrett was seen running from the convent the night of the murder. In fact, however, Sister Benz was murdered on the night of the 31st October, Halloween, whereas, according to the police report, Garrett was seen "running from the direction of the convent" THE NIGHT BEFORE, on the 30th. (!!!) Not really running from the scene of the crime as such is it? Just to clarify, Benz's body was supposedly found at about 7am on October 31.
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Post by HANGMAN1981 on Feb 28, 2011 22:00:23 GMT -6
You would defend John Spriko and Tommy Arthur, despite their previous murder charges. They were poster children for the abolitionists. Troy Davis is likely your next one. I can't comment until I have looked closely at the cases. but it looks like you've backed off on saying that I defend all convicted murderers as being innocent. Now you're just saying that I would defend a certain few. The list is too long to type in one sitting! ;D
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Post by honkybouffant on Mar 1, 2011 14:31:20 GMT -6
Of course, that's IF Garrett was seen running from the convent the night of the murder. In fact, however, Sister Benz was murdered on the night of the 31st October, Halloween, whereas, according to the police report, Garrett was seen "running from the direction of the convent" THE NIGHT BEFORE, on the 30th. (!!!) Not really running from the scene of the crime as such is it? Just to clarify, Benz's body was supposedly found at about 7am on October 31. Thanks. There seems to be some confusion about this. Most sources say that she was killed on Halloween night and found on November 1: "On a cold November morning, the dead body of 76-year-old Sister Tadea Benz was discovered. It was believed; she had been murdered and brutally raped the previous evening." www.suite101.com/content/the-after-death-reprisals-of-johnny-frank-garrett-a273641#ixzz1FNiNFEGc"Jury deliberations began in the murder trial of 18-year-old Johnny Frank Garrett, accused of raping and murdering a Roman Catholic nun, 76-year-old Sister Tadea Benz, on Halloween night 1981 at the St. Francis Convent in Amarillo. " amarillo.com/stories/110809/spe_specialsec25.shtml"Sister Tadea Benz was sound asleep in her second-story bedroom in the St. Francis Convent in Amarillo on Halloween night in 1981 when Johnny Frank Garrett slipped into the room." However the following official source says she was found on the 31 October: "The nude body of Sister Tadea Benz was found in her bedroom on the second floor of the St. Francis Convent in Amarillo, Texas, at approximately 7:00 a.m. on October 31, 1981. Sister Benz was seen alive late the previous evening." ftp.resource.org/courts.gov/c/F2/842/842.F2d.113.87-1680.htmlI guess I should go with the latter, in which case the police report isn't as messed up a piece of evidence as I made out, but still pretty messed up. The Quackenbush documentary is inconsistent on this point. They claim she was killed in Halloween night, which means they ought to claim that the report corresponds to the wrong night. But they don't, and raise no objections pertaining to the date on the report. That was all me I'm afraid.
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Post by Potassium_Pixie on Mar 11, 2011 20:13:42 GMT -6
Wasn't he also only 17 when he was convicted and not 18? Oh boy, people made a big fuss because of that. Just one year younger. And I still have my doubts that he didn't know what he was doing.
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Post by honkybouffant on Mar 12, 2011 19:16:51 GMT -6
Wasn't he also only 17 when he was convicted and not 18? Oh boy, people made a big fuss because of that. Just one year younger. And I still have my doubts that he didn't know what he was doing. I don't think Johnny Frank Garrett had any idea what Leoncio Perez Rueda was doing.
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Post by rayozz on Mar 14, 2011 1:05:46 GMT -6
The TDCJ says that he confessed in his very first police statement.
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Post by honkybouffant on Mar 14, 2011 2:26:37 GMT -6
The TDCJ says that he confessed in his very first police statement. Unfortunately he denies it, the confession wasn't signed and... whoops... they forgot to switch the recorder on.
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Post by mel77 on Mar 16, 2011 6:44:49 GMT -6
If a cop or several cops were to lie and incorrrectly state that someone had admitted to having committed capital murder and that person was given the death penalty, should those cops later also get the death penalty if it later turns out they lied, risking the death of an innocent? What if it turned out the cops (or whoever) had tampered with evidence in an effort to get the wrong person convicted? Are there any such cases?
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Post by honkybouffant on Mar 16, 2011 16:54:04 GMT -6
If a cop or several cops were to lie and incorrrectly state that someone had admitted to having committed capital murder and that person was given the death penalty, should those cops later also get the death penalty if it later turns out they lied, risking the death of an innocent? What if it turned out the cops (or whoever) had tampered with evidence in an effort to get the wrong person convicted? Are there any such cases? This is almost certainly the case with Garrett. The coroner, upon Garrett's arrest, threw away the sperm samples taken from the murder scene. He threw them away. He threw them away, right after they caught Garrett. He threw away the evidence that, if Garrett did it, would convict him bang to rights. He threw it away. Threw. Away. Why? Because, he said "nobody asked me to keep it." !! Years later, this same coroner was convicted of tampering with the evidence in order to secure wrongful convictions. Since he was guilty of tampering with evidence in order to secure convictions, and not of simply being an incompetent bumbling , we should assume that he lost the sperm because it would hurt the case against Garrett, not because he was just being a complete arse that morning.
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Post by mel77 on Mar 17, 2011 6:14:09 GMT -6
Should such a cop be convicted of attempted murder if the tampering happened in a dp state?
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Post by oslooskar on Mar 17, 2011 13:11:34 GMT -6
Should such a cop be convicted of attempted murder if the tampering happened in a dp state? He should certainly be charged with such crime and prosecuted for it.
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