2016-02-19 Polk Appeal
STATEMENT OF THE CASE
Appellant brings this appeal from his murder conviction. He here contests the evidence’s sufficiency to establish he reasonably should have foreseen a murder could result from the aggravated robbery he was participating in.
Further, he sees reversible error in the trial court’s jury instructions on party liability; specifically, he faults the court for not limiting statutorily-described modes of conduct subjecting him to party liability to those modes the evidence showed were actually applicable to his participation in the crime.
From May 18-22, 2015, appellant’s trial took place with a jury selected and sworn, the indictment read, and appellant’s plea of “not guilty” entered to the offense.
After evidence was presented to the jury, appellant was found “guilty” as alleged in the indictment. The punishment phase took place and appellant was assessed punishment by the jury at 45 years in TDCJ-ID, with a
$10,000 fine Appellant filed a notice of appeal and motions for new trial. The trial court certified appellant’s right of appeal.
STATEMENT OF FACTS
Evidenced at trial was that appellant participated in an aggravated robbery of Edward Pendleton (“the victim”), from which the victim’s death resulted. Appellant’s evidentiary challenge is directed to the State’s showing he should reasonably have foreseen the victim’s death occurring in the aggravated robbery.
About 6:00 a.m. May 1, 2013, Danielle Luce (“Danielle”), in bed with her husband, the victim, was awakened by a loud noise in the living room of their house. Danielle first thought the television had fallen.
Responding to the noise, the victim jumped over Danielle in the bed, and hurried into the living room. Id. An instant later, Danielle heard two gunshots; she then proceeded to her bedroom door. Id. There, Danielle saw two males in the living room, one standing over the prone victim; as Danielle watched, that man shot the
victim in the back.
Danielle retreated into the bedroom and slammed the door. The two men pushed their way into the bedroom, and demanded to know where the money was. Danielle pointed to a purse in a baby bassinet in the room; one of the men walked over the bed, and grabbed the purse. The man with the gun wore dark clothes, Danielle testified. The man who grabbed her purse wore lighter clothes, perhaps white in color.
Both men were African-American, Danielle noted, and both were taller than her 5’8’’ height. Id. She did not have a good view of their faces. The man with the gun placed its barrel against Danielle’s neck, demanding money; Danielle pointed to the victim’s pants. After rifling the pants, the men left the house.
Danielle went to the victim, who was still alive, and tried to help him; the victim repeated the name, “Morris, Morris.”. While attending to the victim, Danielle telephoned 911. The victim sold drugs, Danielle acknowledged; his street nickname was “ATX.” RR2:227 She and the victim fought over his drug involvement, Danielle related, and he transacted his business only at a house other than their residence. Paramedics took the victim to Amarillo’s Northwest Texas Hospital. He died there at 8:37 a.m.
Amarillo police officer Koval interviewed Danielle at the scene, in his patrol car and because of the shock of what had transpired, Danielle had difficulty remembering details. Koval then transported Danielle to the Special Crimes Unit office at the police station. There, another officer, who had no knowledge of the victim or any suspect, showed Danielle a photographic lineup. Danielle was unable to make any identification.
Dr. Thomas Parsons performed the victim’s autopsy.1 RR3:39 The cause of the victim’s death, Dr. Parsons testified, was three gunshot wounds. The bullet causing one gunshot wound entered the victim’s right upper chest, went through the second rib, perforated the upper and lower lobes of the right lung, and exited the back through the seventh rib; that wound “very likely” have itself been fatal, the doctor opined. RR3:43, 46 A second bullet entered the deltoid area of the right arm, went through the shoulder joint, and exited the right upper chest, Dr. Parsons related; that wound alone would not necessarily have been fatal.
The third bullet entered the left buttock, went through the pelvic organs, perforated the right side of the liver, and terminated in the right side of the chest; Dr. Parsons recovered that bullet in the autopsy. That wound, said Dr. Parsons, very like would have itself been fatal.
Early the afternoon of May 1, a police officer brought Damarrus “Morris” Ary to Special Crimes Unit sergeant Jason Riddlespurger to be interviewed; Morris became a person of interest in the case after his brother called the police.
In that interview, Riddlespurger learned the names of possible suspects in this case: Andrea Brown (“Andrea”), appellant, and K, and learned of the apartment where those suspects might be located. Police SWAT team members were sent to surveille the apartment, and a search warrant was obtained.
Amarillo police officer Toby Hudson, assigned to the SWAT unit, at about 4 p.m. May 1 began surveillance the apartment where the suspects were believed to be. In that connection, he was instructed to also observe a white Chrysler 300 parked at the apartment complex, thought to be connected with the crime. At about 7:50 p.m., Hudson testified, three persons left the apartment, entered the automobile being surveilled, and departed the scene. Hudson continued to watch the apartment until the search warrant arrived.
Away from the apartment complex, the Chrysler’s driver was stopped by police officers. Amarillo police crime scene investigator Edward Carroll drove the vehicle to the police department warehouse to secure it. He then drove to the apartment to assist in executing the search warrant. At the apartment, officers saw Danielle’s purse in a high chair, Danielle’s driver’s license, and the social security cards of Danielle and her two young sons.
In a bedroom, the searching officers found a box of .45 caliber ammunition; the box was packaged to contain 50 bullets, but ten were missing. RR3:241 The head stamp on the casings in the box was of the brand “GFL;” spent casings found at the murder scene were also marked with the GFL brand.
The following day, Carroll processed the white Chrysler Andrea had been driving when stopped by police. A USB key was found in the back seat of the vehicle which contained Danielle’s college literary papers. Carroll lifted latent prints from the car’s exterior.
A gun was found hidden under the back seat on the left side of the car. Though the gun’s chamber was empty, its magazine had eight bullets. The cartridges in the magazine consisted of eight GFL brand and one PMC brand; the cartridges found at the murder scene were of both those brands.
Significant in the State’s case was the testimony of the accomplice witness Andrea. On May 1, 2013, Andrea resided with her friend, Kortnee “Mariah” Fennel at an Amarillo apartment. Also living at the apartment were Marquis Wilkins – Mariah’s boyfriend and the father of her baby- , and Marquis’ friend Zyrus Williams.
Additionally, appellant, and appellant’s friend “Morris2” stayed at the apartment sometimes. Shortly before May 1, “a dude named K” came to stay at the apartment. Andrea saw K with a gun the day he arrived at the apartment. She saw K load bullets into a clip, and the clip into the gun, using his shirt to touch the bullets.
Andrea was awakened about 7 a.m. May 1 when appellant and Morris asked her for a ride. RR3:146 According to what appellant said to Andrea, the purpose of the trip was to “hit a lick,” which Andrea understood to mean a drug transaction.
In her white 2001 Chrysler 300 she drove appellant, who sat in the front passenger seat, K, who sat behind her on the back seat, and Morris, who sat on the passenger side back seat, as appellant directed. Following appellant’s directions, she drove to the San Jacinto area of Amarillo, and parked on a street a
block away from the destination residence.
En route, appellant and Morris told her they were looking for “ATX,” who sold drugs. The men discussed who was going to open the door of the residence; at that point, Andrea knew some illegal act was going to occur.
After she had parked, the men exited the car and walked away, and she remained seated behind the steering wheel. Within five minutes, the men ran back to the car; Morris was holding a black purse, and appellant held a gun. Inside the car, the men yelled at each other:
K declared, “I clapped that nigger;” Morris expressed dismay that K had shot the victim; and, appellant exclaimed that the shooting was not supposed to have happened, that they had not planned the encounter that way. Appellant directed Andrea to drive the back streets on the return drive to the apartment.
Back at the apartment, the men, K with the gun in his waistband, went into Marquis’ and Mariah’s bedroom, and appellant reported what happened.
Appellant told Marquis that K kicked the door in, which caused appellant to fall into the house through the entrance. The victim, appellant told Marquis, came running around the corner into the living room, and K shot the victim; appellant and K first thought the victim had a gun. K then walked up to the victim, appellant continued, and shot the victim again.
A female was present, yelling and screaming, appellant related to Marquis; he, appellant, told the female
to “shut up.” K said in the discussion with Marquis that he, K, pointed a gun at a female, and she pointed to her purse, the victim’s pants, and a set of keys. Appellant said he grabbed the purse, and the men ran out of the house.
Later on May 1, Morris left the apartment; K initially did not want Morris to leave, Andrea noted. Appellant admonished Morris, before Morris left, not to discuss what had happened.
The evening of May 1, appellant asked Andrea to drive him and K to appellant’s grandmother’s house, first making a stop to “pick up some weed.” She drove, appellant sat in the car’s front passenger seat, and K sat
behind her on the back seat. Appellant and K were wearing the same clothes they had been wearing early in the morning, Andrea noted. As appellant had asked, Andrea drove to the “weed house,” but no one was there. Continuing the drive to appellant’s grandmother’s house, Andrea was stopped by police. As the stop was being effected, the officer activated the siren on the patrol car and appellant asked K if K had a “piece” on him; K affirmed that he did.
Police officers took Andrea from the scene of the traffic stop to the Special Crimes Unit office to interview her. Id. In that first interview, she did not give a truthful account, Andrea acknowledged; she was afraid the victim’s family would learn of her involvement, and she did not want to be on K’s bad side. Andrea’s mother persuaded here to go to the police station a few days later to give a truthful statement and Andrea did.
On October 18, 2013, Andrea was arrested for aggravated robbery because of her involvement in this case. Aided by counsel, she struck a plea bargain with the prosecutors: she pled guilty and was sentenced to five years imprisonment; that bargained punishment recommendation was conditioned upon her agreement to testify truthfully in this case.
Marquis likewise related important testimonial facts about the crime participants’ actions and statements in the apartment on the day in question. At the time of trial, Marquis was serving a six-year prison sentence
for an aggravated robbery offense unrelated to the instant case.
At the end of April or early on May 1, 2013, Marquis recounted, appellant brought K to the apartment; Marquis knew nothing about K. Marquis had known appellant for a time, having attended high school with him. The evening he came, K brought a gun, Marquis noted; appellant handled the gun but never cocked it.
On May 1, Marquis arose about 6:30 a.m., planning to care for his daughter and niece; he learned he was not needed to baby-sit, as his brother-in-law did not work that day as scheduled. About the time he got up, appellant, K, and Andrea left the apartment. Thirty to 45 minutes later, appellant came into his room, looking “scared.”
“They had to down a nigger,” appellant told Marquis. Marquis asked who they killed, but appellant stopped speaking when K entered the room. K then took control of the conversation. He kicked open the door to the victim’s residence, K told Marquis, and the victim came running around the corner inside; K then shot the victim.
Right before May 1, Mariah recounted in her testimony, appellant brought K to the apartment; no one but appellant knew K. K was carrying a gun as he walked into the apartment; indeed, noted Mariah, K seemed “to always have that gun with him.”
Early the morning of May 1 Mariah related, appellant asked Marquis whether he or Mariah had a bandana. RR4:28 Appellant then left the apartment with Andrea and K, and Mariah went back to sleep. RR4:29 Later in the day, when she returned to the apartment from work and school, appellant and K were conversing about what had happened. That evening, appellant and K again left the apartment; not long thereafter, police officers came to the apartment to execute a search warrant. The officers took her to the police station to be interviewed; in her statement to police, she was untruthful, Mariah acknowledged, because “it didn’t have anything to do with me.”
The night of May 1, appellant and K were delivered to the Special Crimes Unit to be interviewed. RR3:179 In an hour-long interview, appellant gave Riddlespurger different versions of his involvement in the robbery/murder.
Initially, appellant denied any involvement at all, asserting he had not been to the victim’s residence in months. Later in the interview, appellant told Riddlespurger he had been in Andrea’s car near the residence, but remained in the car when Morris and K walked to the residence; Morris was the shooter, appellant said. Finally, appellant admitted to Riddlespurger he had walked with K and Morris to the house; but, appellant explained, when the door was kicked in by one of the other men he ran back to Andrea’s car, never himself entering the house. Morris, appellant said, brought a purse back to the car.
Two particulars of appellant’s story were later disproven. Appellant told Riddlespurger that Morris left the apartment on May 1, after the shooting, with the murder weapon; the firearm shown to be the murder weapon was recovered hidden elsewhere. And, when appellant was asked if the purse was in the apartment, appellant replied that “it shouldn’t be;” yet the purse was recovered in the execution of the search warrant at the apartment.
Amarillo police officer Joe Brown, a crime scene investigator with the Special Crimes Unit, testified to his observations and activities at the residence where the crime occurred. RR3:64-138 Arriving at the residence about 9 a.m. May 1, Brown noted damage to the interior portion of the front door, around the door jamb, suggesting the door had been forced open.
Officers at the scene pointed out a shoe impression on the door, and Brown ensured the door was preserved as evidence; the door and outer screen door were removed and taken to the Special Crimes Unit laboratory.
A .45 caliber cartridge casing was found on the residence’s front porch, Brown testified. RR3:78, 81 A second casing, also a .45 caliber, Brown said, was found in the living room in a love seat. RR3:84, 87 A third casing, also a .45 caliber, was found on the bottom shelf of the entertainment center in the living room. The third casing differed from the other two in that it was a PMC brand; the other two casings were GFL brand. Two spent bullets, Brown noted, were found inside the residence. One bullet was found on the floor of the children’s bedroom and another was found imbedded in the bathroom wall.
Later on May 1, Brown helped Amarillo police officer Carroll process a vehicle from which appellant and suspects Andrea and K had been detained. Fingerprints were lifted from the back passenger quarter panel, the back passenger door handle, and the front passenger door and window exteriors.
Jimmy Rifenberg, a crime scene investigator with the Special Crimes Unit and a fingerprint expert, related in his testimony his findings respecting evidentiary items from the murder scene and the searched apartment. Seeing the faint shoe impression on the front door of the residence at the murder scene, Rifenberg
removed the door and had it taken to the police laboratory. Rifenberg determined, from comparison with appellant’s known prints, that appellant’s left and right palm prints and left middle print were on the door. He did not find the fingerprints of K, Morris, or appellant elsewhere in the residence.
Rifenberg also lifted latent fingerprints from the apartment during the execution of the search warrant. Prints from K’s left palm and left index finger were lifted from the ammunition box containing 40 rounds.
Also examined by Rifenberg were latent prints lifted from the Chrysler automobile Andrea had been driving when stopped. The prints of all four suspects appellant, K, Morris, and Andrea – were on the automobile. The magazine in the Hi-Point .45 caliber pistol recovered from the car contained nine rounds; eight of those rounds were GFL .45 ACP and the other was a PMC .45 auto round. RR4:155 Rifenberg lifted prints off the gun and magazine; K’s prints were on the magazine and barrel. At the residence where the murder occurred, Rifenberg discussed the cartridges found.
Joseph Mata, a forensic scientist, tested the gun officers seized from Andrea’s car. Two of the three fired bullets recovered at the murder scene were fired from that gun, Mata testified; the third recovered bullet did not allow for identification. The three cartridge casings found at the scene, said Mata,
were fired from the gun.
Lyndsey Bynum, another forensic scientist, testified to her comparison of the shoe impression on the recovered door from the murder scene and the right shoe appellant wore. The tread designs were similar.
Russell Elliott, at the time of trial incarcerated at the Potter County Detention Center, related a statement against interest appellant made to him. While both were in jail, appellant told him that Morris shot ATX and that he, appellant, was happy about it. Because, professedly, he was repulsed by appellant’s participation in a horrific crime witnessed by a child, Elliott wrote a letter to the 47th District Attorney’s Office. Later, as a jail trustee serving the prisoners their meal trays, Elliott asked appellant who K was; appellant replied that K was the original trigger man in this case. Appellant on a later date threatened Elliott, telling Elliott he, appellant, had seen a video of appellant making a written statement for police.
SUMMARY OF THE ARGUMENT
For Issue One, sufficient evidence supports appellant’s guilt and the verdict was not irrational because any inferences necessary to support the conviction are reasonable and supported by the record. The State’s theory of the case was based on party liability and appellant acted as a party in many ways. He brought in a person,
K, known to always have a gun to rob a drug dealer and he directed the parties where to go for the home invasion. Evidence revealed the gun was loaded before the robbery and K had it ready as appellant busted open the front door. A cartridge was ejected on the front porch from the first shot as appellant and K entered together. Appellant continued inside the home with K as K shot the victim twice more. Neither appellant nor K attempted to aid the victim in any way.
There was no hesitation as appellant pushed further inside and demanded money from the victim’s wife and took property. Afterwards, appellant told others “we” had to kill the victim and “we” let the victim’s wife live.
To the police, appellant lied about the murder and did not assist in the investigation. The murder was committed in furtherance of the robbery or felony conspiracy, and was an offense that should have been anticipated as a result of carrying out the conspiracy. In sum, sufficient evidence supports appellant’s guilt as a party to the murder.
For Issue Two, the jury was charged correctly by the trial court in this case. Even assuming, arguendo, the charge should have been narrowed regarding modes of conduct under party liability, the alleged error was harmless.