DocketNumber： WR-60,434-02
Filed Date： 7/1/2009
Status： Precedential
Modified Date： 9/16/2015
In applicant's trial for murder, the state's primary witness was the co-defendant, who was an accomplice as a matter of law. Applicant alleges that his trial counsel was ineffective for failing to request an accomplice-witness instruction. (1) On appeal, the court of appeals held that the failure to request the instruction was error, but found it harmless because the state had produced "ample corroboration evidence."
The court of appeals listed a number of findings to support its conclusion that the failure to request an accomplice-witness instruction was harmless.
1. Appellant had a motive to kill the victim.
Appellant had confronted the victim the week before the murder because he had heard a rumor that the victim had had an affair with applicant's wife. Motive is not evidence of guilt, nor does it "tend to connect" applicant to the crime. And this ignores other testimony from an uninvolved witness that, a few minutes before applicant confronted the victim about the rumored affair on the night of the murder, the co-defendant had confronted the victim about the victim hassling the co-defendant's wife.
2. The victim's blood was found on the front passenger seat of the co-defendant's car.
This evidence does not tend to connect applicant to the crime.
3. Applicant had owned a .22 caliber semi-automatic handgun.
Such guns are very common, and mere ownership of a weapon of a similar type does not tend to connect applicant to the crime.
4. The victim was shot from behind with a small-caliber weapon.
There are other small caliber weapons, such as .25 and .32, but the casing found in the back seat suggests that the gun was a .22. The bullet fragmented, as .22 caliber bullets are prone to do, and the murder weapon was not recovered. There is no way to connect the casing or the bullet to any gun, much less a gun owned by applicant.
5. Applicant had a box of .22 caliber ammunition at his parents' home.
If one owns a certain caliber gun, it is reasonable to own ammunition for it, but again based on my experience, the ammunition is usually kept with the weapon, not at the home of someone else.
6. An FBI firearms examiner determined that the spent .22 caliber casing found in the rear seat of the co-defendant's car was made by the same company that made the cartridges in the box of ammunition.
Four companies, Federal, Remington, Winchester, and CCI, are the leading manufacturers of bullets, based on volume. Wal-Mart and K-Mart together sell more than half of the .22 caliber bullets sold in the United States. Annual production of .22 caliber bullets in the United States is estimated at 2-2.5 billion rounds; .22 caliber is by far the most common bullet in the retail market and drives the industry "24/7."
7. The FBI firearms examiner determined that the same tool made the spent casing as well as eight of the cartridges in the box of ammunition.
Manufacturers turn out millions of bullets every day from a finite number of machines (bunters). A typical batch of bullets from a single source is anywhere from 39 to 54 million rounds. If the life of a bunter exceeds a single "melt," the bunter may make its mark on more than 100 million casings. The casings from each bunter generally go into a collecting bin with the output of one or more other bunters. This mixture of bunter output is randomly boxed, usually in boxes of 50 rounds, and it is highly probable that a given box will contain bullets produced by each bunter that emptied into a given collection bin. Ammunition is sold to retailers in pallet quantities. The odds are that any box of bullets purchased from a major retailer, such as Wal-Mart, in the same market area would contain casings from the same bunter as the spent casing. In this case, eight out of fifty rounds were found to be from the same bunter, the others may therefore be assumed to be from one or more other bunters.
8. A DPS firearms examiner found lead residue, consistent with that of a firearm, on the front passenger seat of the co-defendant's car.
No one disputed that a gun was fired in the co-defendant's car. This does not connect applicant to the crime because we do not have sufficient information about the location of the residue on the front passenger seat.
If the driver fired the shot, residue would be on the side and front of the front seat and, perhaps, the headrest, and there might well be a residue "shadow" on the seat where the residue fell onto the victim rather than on the seat.
If the shot was fired from the back seat, residue would be on the back of the front seat and on the back of the headrest and there would be no "shadow" on the seat.
Because of lack of information, I cannot address the differing patterns deposited by residue from the barrel and residue from the ejection port; these exits for residue are typically 90º apart and leave different patterns of residue.
9. The DPS firearms examiner opined that the residue patterns were consistent with the weapon being held above the car seat at a downward direction and not sideways.
See point 8. The state argued that the residue pattern was consistent with the victim being shot by someone sitting in the back seat. "Consistent with" is not "is." The only direct evidence of the identity of that person was the testimony of the co-defendant. To argue as it did, the state presumed that, since the co-defendant owned the car, he was driving. Based on years of reading opinions and briefs, it is evident to me that "owner" does not precisely equate to "driver."
10. The co-defendant carried the victim's body from the car, spilling the victim's blood on his boots and pants.
This is highly incriminating for the co-defendant, but it does not tend to connect applicant to the crime.
Conclusion
Given these circumstances, I cannot conclude that the absence of an instruction on corroboration of an accomplice's testimony was harmless.
Filed: July 1, 2009
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