APPELLATE COURT NO. IN THE COURT OF APPEALS

Transcription

1 ," T'''', ~. APPELLATE COURT NO. IN THE COURT OF APPEALS OF THE STATE OF TEXAS ANTHONY SHAWN MEDINA, Appellant, VS. THE STATE OF TEXAS, Appellee. 0 CAUSE NO. 0 APPEAL FROM THE TH DISTRICT COURT OF HARRIS COUNTY, TEXAS JUDGE SAM ROBERTSON PRESIDING 0 JULY, Sandra J. Oballe Official Court Reporter th District Court Harris County, Texas

2 VOLUME IX - JULY, CHRONOLOGICAL INDEX JUROR NO., DALE VERNON WOODRUFF PAGE Voir Dire Examination By The Court Voir Dire Examination By Mr. Baldassano 0 Juror Excused - Agreement JUROR NO., HAROLD C. VANDERWEIDE 0 Voir Dire Examination By The Court Voir Dire Examination By Mr. Baldassano Voir Dire Examination By Mr. Millin Juror Excused - Peremptory Challenge Defense 0 JUROR NO., JANE HEAD WHATLEY Voir Dire Examination By The Court Voir Dire Examination By Mr. O'Brien Voir Dire Examination By Mr. Guerinot Juror Excused - Defense 0 General Voir Dire By The Court - Nos i -.( -...

3 , ::. JUROR NO., ERNESTINA CARMILLO DAVILA PAGE Voir Dire Examination By The Court 00 Voir Dire Examination By Mr. Baldassano 00 Voir Dire Examination By Mr. Guerinot 0 Juror Struck - State 0 JUROR NO., WILLIAM ROBERT WHEELER 0 Voir Dire Examination By The Court 0 Voir Dire Examination By Mr. O'Brien 0 Juror Excused - Peremptory Challenge - State 0 JUROR NO., DAWN BARRETT FRAZIER Voir Dire Examination By The Court 0 Voir Dire Examination By Mr. Baldassano 0 Juror Struck - State 0 0 ii

4 ~. VOLUME IX - JULY, ALPHABETICAL INDEX JUROR NO., ERNESTINA CARMILLO DAVILA PAGE Voir Dire Examination By The Court 00 Voir Dire Examination By Mr. Baldassano 00 Voir Dire Examination By Mr. Guerinot 0 Juror Struck - State 0 JUROR NO., DAWN BARRETT FRAZIER 0 Voir Dire Examination By The Court 0 Voir Dire Examination By Mr. Baldassano 0 Juror Struck - State 0 JUROR NO., HAROLD C. VANDERWEIDE Voir Dire Examination By The Court Voir Dire Examination By Mr. Baldassano Voir Dire Examination By Mr. Millin Juror Excused - Peremptory Challenge - Defense 0 0 JUROR NO., JANE HEAD WHATLEY Voir Dire Examination By The Court Voir Dire Examination By Mr. O'Brien Voir Dire Examination By Mr. Guerinot Juror Excused - Defense.er, iii

5 JUROR NO., WILLIAM ROBERT WHEELER PAGE Voir Dire Examination By The Court 0 Voir Dire Examination By Mr. O'Brien 0 Juror Excused - Peremptory Challenge - State 0 JUROR NO., DALE VERNON WOODRUFF Voir Dire Examination By The Court Voir Dire Examination By Mr. Baldassano 0 Juror Excused - Agreement 0 0 iv

6 CAUSE NO. 0 STATE OF TEXAS IN THE TH DISTRICT COURT VS. OF HARRIS COUNTY, T E X A S ANTHONY SHAWN MEDINA MAY TERM, A. D., A P PEA RAN C E S: 0 For the State: Mr. Steve Baldassano Mr. Casey O'Brien Assistant District Attorney Harris County, Texas For the Defendant: Mr. Gerry Guerinot Mr. Jack Millin Attorney at Law Harris County, Texas BE IT REMEMBERED that upon this the th day of July, A.D.,, the above entitled and numbered cause came on for Voir Dire before the 0 Honorable Sam Robertson, Presiding Judge of ~he th District Court of Harris County, Texas; and the State appearing by counsel and the Defendant appearing in person and by counsel, announced ready for Voir Dire, and the following proceedings were had, viz: 0 ::. :('

7 (Start Time - :0 a.m.) JUROR, DALE VERNON WOODRUFF, Please bring out Mr. Woodruff. State ready? MR. BALDASSANO: State's ready Judge. MR. GUERINOT: We're ready, Judge. Please bring out Mr. Woodruff. 0 Please come right around, sir. Have a seat in the witness chair. How are you? Good morning, sir. MR. WOODRUFF: Pretty good. is Dale Vernon Woodruff? For the record, your name 0 MR. WOODRUFF: Yes, sir. Is it V or J? MR. WOODRUFF: V. All right. Mr. Woodruff, when I get started out in the morning, my tongue kind of gets tangled up sometimes. started out right this morning, if I MR. WOODRUFF: Okay. I'll try to get can. I was talking to you and the other panelists out there several days ago and

8 kind of explained how a criminal trial proceeds, and nobody took me up on needing additional information at that time. After you have had a little while to think about it do you have any questions that you want to ask me about anything we went over there in the group? MR. WOODRUFF: Not that I know of. We'll get started into 0 that portion of the voir dire examination that requires us to do it individually with each juror and we'll move along as quickly as we can. The legislature has provided that all persons who have been found guilty of capital murder will be punished by life imprisonment or death. Do you have any conscientious scruples against the infliction of death as punishment for crime in a proper cas~? MR. WOODRUFF: No. All right. There was a 0 time -- you may well be aware there was a time when the jury actually wrote out the verdict: We, the jury, find the defendant guilty and assess his punishment at death. But that procedure was declared unconstitutional by the U.S. Supreme Court some years ago. And the legislature of each state

9 that wanted to have a death penalty had to revamp their procedures and give to the jury some guidelines that hopefully would make it more uniform in deciding who was going to get the death penalty and who was not. Okay? Texas devised a procedure whereby in the punishment phase of the trial the jury has to, answer two questions. Before we get into those questions let me quickly tell you the criminal 0 trial is divided into two parts. First part of the trial is the defendant guilty or not guilty? And if guilty, of what he is guilty? Second part of the trial, if the jury finds him guilty, then the second part of the trial begins and there the issue is the punishment. In a capital murder sentence scheme the legislature is authorized both of the prosecution and the defense to introduce evidence about the defendant so the jury knows something about his past and everything, but hopefully will 0 assist them in deciding the questions that I to you. submit And when both sides have rested I give you a written charge and in that charge there are two questions that the jury must answer. Now, I'll ask you, if you will, please, just look at the

10 board there and let's go over them real quickly. First question: Do you find from the evidence beyond a reasonable doubt that there is a probability that the defendant will commit criminal acts of violence that would constitute a continuing threat to society? If the jury answers - well, the jury's got to answer yes or no. If the jury answers it yes, then they have to answer the second question. 0 Do you find that taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed? And if the jury answers that question no, then I automatically assess the defendant's punishment at death. 0 If any other combination of answers to those questions, I sentence the defendant to life imprisonment. Now, that is the capital murder sentencing scheme as we know it in Texas. You recognize from that that just because a person's found guilty of capital murder he's not - doesn't I.!..il..,; ',ii,.

11 mean he gets the death penalty. The jury's got to further find that based on probabilities he's going to commit criminal acts of violence in the future that will constitute a threat to society. 0 And if the jury answers, yeah, finds that too beyond a reasonable doubt, then they still by that second issue got to sit back and look at the whole thing; circumstances of the offense, the defendant's character and background, and his personal moral culpability, and decide anywhere in here is there a circumstance that rises to the level of mitigation sufficient that the jury believes that life imprisonment rather than death is a proper punishment? You kind of see what the legislature was driving at in setting out this scheme? MR. WOODRUFF: A little bit. Maybe not entirely. Just as long as you kind 0 of understand what your duty would be as a that's the main thing. juror, Let's talk about that just a little bit. Some citizens coming in here for jury duty and faced with that first question say, well, I don't know about finding based on probabilities

12 what a defendant's going to do in the future. But really there's many facets of life, decisions that are made every day, based on probabilities of what's going to happen in the future. Do you see any reason why you would have any more difficulty answering that first question than any other citizen would have coming in here for jury duty? MR. WOODRUFF: No. You're not going to do it 0 all by yourself. Got other people that you-all can get back there and talk it over and find out if beyond a reasonable doubt you believe that. MR. WOODRUFF: Yeah. Now, that question might be made more possible more easy to answer, for instance, if the person on trial had lived a life of crime in the past. You might can say, well, if anybody lived this way, well, I can certainly find beyond a reasonable doubt there's a probability 0 he's going to continue down the same road. MR. WOODRUFF: (Nods head.) But that's not it may well be that in the trial of a case you would be faced with a defendant that hadn't been in trouble before and it would - the jury could if they would I

13 be authorized to if they believed it beyond a reasonable doubt that just from the circumstances of the offense was so heinous, so horrible, so bad, that the jury could say, well, anybody that would do this, I can find beyond a reasonable doubt that there's a probability that they're going to do other acts of violence in the future. understand? MR. WOODRUFF: uh-huh. Do you 0 All right. Look at the phrase IIcriminal acts of violence". That's not defined. That could be acts of violence against person or property. Okay? Just so long as it would constitute a continuing threat to society. Now, we've already talked about that second issue just a little bit, but as I said there that's sort of a --some refer to as a stopgap 0 measure, slips the jury the right, even though they've found the defendant guilty of capital murder, even though they find that he will be a continuing threat to society, they've still got to decide this issue. Well, is there something that causes us to believe that a life sentence is the proper punishment rather than death in the area of :..' mitigating circumstance or circumstances? Those

14 won't be defined for you either. have to decide that themselves. The jury would It has been suggested by some writers or some courts that possibly the age of the defendant, say, like, a very young age or maybe a very old age might rise to the definition of a mitigating circumstance. Been suggested that possibly intoxication might be a mitigating circumstance. Voluntary intoxication is not a 0 defense to crime. But, you know, in the punishment phase of the trial it's conceivable it would be up to the jury. Okay? It has been suggested that maybe severe mental retardation might rise to the definition of a mitigating circumstance. All that said I'm just tossing those out to let you be thinking about it, that that is the kind of thought process you probably would go through in answering that second question. Do you 0 see any reason in the world why you couldn't live with that system that's set out by your legislature? MR. WOODRUFF: I don't think so. All right. Let me hit two other little issues, then I'm going to turn you over td the lawyers.

15 I told you-all when you were sitting out there day before yesterday or whenever it was that the burden of proof in all criminal cases was beyond a reasonable doubt. Now, that applies no matter how minor the offense or how serious the offense. For instance, running a red light. If I was charged with that, I couldn't be convicted unless the evidence showed I was guilty beyond a reasonable doubt. If I was charged with capital 0 murder, I couldn't be convicted unless the evidence shows beyond a reasonable doubt that I was guilty. Some citizens coming in here for jury duty state, well, if I'm going to be called upon to determine whether a person lives or dies if I find him guilty, I would want proof greater than beyond a reasonable doubt. But that's not that doesn't work because there is no I mean, that doesn't fit in with our system. On television we hear 0 phrases like "beyond a shadow of a doubt ll or "beyond all doubt" or "to a moral certainty", Words such as that that's a figment in some writer's imagination. That doesn't exist in the real criminal justice world. Can you abide by the proof required that the proof show the defendant guilty beyond a reasonable doubt? _

16 MR. WOODRUFF: I think so. That's probably the hardest part as to what guidelines is to have to make a decision. I guess I'm more of a black-and-white-type person. Well, the thing of it some people say, I want more evidence, but if it was beyond all doubt, the only way that could be proven is if you were there. And if you had been there, you would be called as a witness rather than 0 a juror. MR. WOODRUFF: Uh-huh. So as long as a juror can participate with the other and discuss this just like you discuss any other issues, then of course that's the main thing. If you can make the State prove the defendant guilty beyond a reasonable doubt, and if they don't do it, find him not guilty, that's the issue. All right? MR. WOODRUFF: Yeah. 0 Finally the last issue, that has to do with credibility of witnesses. Every witness that will take the stand where you're sitting there will have taken the same oath to tell the truth. But of course you know and I know not everybody's going to be telling the truth. That's 00

17 the function of the jury is to determine who is and who's not telling the truth so a verdict can be rendered. There are some citizens who respond -- possibly without really thinking of the effect of their answer -- that, well, since a polic~ officer has special training to investigate crime, to come in and testify and all of that, and were so to speak speculate I will give him more 0 credibility or more believability than I would somebody else. Well, if you want to give him more believability after he testifies and after you've observed him and heard what he has to say and see if it all fits in together, that would be fine. But when he first takes the stand, he should not be entitled to any more believability in the beginning starting out than the defendant himself, if he 0 testifies, or any other witness. with that? MR. WOODRUFF: Yes. Would you agree And in these cases sometimes I have seen, you know, some rascals, some shady characters, come in and testify either for the State or defendant. Just because they're a rascal or whatever doesn't mean that they're 0

18 automatically going to tell an untruth. agree with that, certainly? MR. WOODRUFF: Yeah. You would I know that and all I'm trying to do is get you committed on some of these general propositions before I lawyers, see? turn you over to the MR. WOODRUFF: Uh-huh. The questioning process, 0 selection of a jury in a capital case, to say the least, is a tedious process. And the lawyers of course they've got to carry out their duties under the law, both the prosecution and defense. Because in a little while, probably in 0, minutes they're going to say, well, I want Mr. Woodruff as a juror, or I don't want him. And each side has the right to personally select you. So that's the reason I have tried to explain some of these things 0 to hopefully make.it more easy for you to answer their questions. Just relax and listen to their questions and answer them as forthrightly as you can. And if you don't understand the question, tell them do it again, and we'll move along. you, sir. Thank 0

19 You may proceed. MR. BALDASSANO: Hi. I'm Steve Baldassano and this is Casey O'Brien. Together we represent the District Attorney's Office in the case, the prosecution. What we are tying to find out, and the Judge told you, is a little bit about 0 where you are, how you feel about the death penalty, and other things, and just to decide whether or not we have to have you on the jury or not. I notice from your questionnaire, and I kind of agree with you and I don't know any other way to do it, but you had stated that you really don't think it's a good idea to have the lawyer picking the jury. There should be some other way. MR. WOODRUFF: Uh-huh. MR. BALDASSANO: Believe me, I wish there was another way because it's gets a little tedious for everybody. What do you think about 0 that? What legal thing were you thinking wh~n answered that question? you MR. WOODRUFF: I guess going through this experience before it seems like the jurors that were picked in the case were either biased on one side or the other. Not people that were 0

20 logically thinking, that fit in the middle, that could make a decision from the facts. They were already biased in the joint interviews that they had. So I thought that was a bad situation to set up for a jury trial. MR. BALDASSANO: Well, like the best 0 people get knocked off, the most clear thinking? MR. WOODRUFF: Not the best people but the ones that seem to be more biased for one situation or the other situation or the ones that were picked than they had picked the ones that were more logical thinking or more middle-of-the-road-type thinking and didn't have a preconceived decision on how they felt about the particular facts that were presented to them. MR. BALDASSANO: Well, did you participate in, like, one of these type of situations where it was individual? MR. WOODRUFF: The ones I've 0 participated in were more of a joint thing, where they ask questions all together and the panel that was selected and then from that they selected the people. MR. BALDASSANO: Actually the way it happens in the big group and even in the 0

21 singular-type thing is each side gets in a felony case ten strikes. So nobody's really picked. In a sense people are kind of picked off, and the first that are left become the jury, for whatever that's worth. Did you get picked on a panel? MR. WOODRUFF: No. I have never been picked for jury. MR. BALDASSANO: Okay. Let me ask you this: Just your gut reaction, when you hear, 0 say, a defense attorney, what do you think of? When you hear defense attorney, does that raise any kind of thing in your brain or do you think one way or the other, or Matlock or good or bad or anything? MR. WOODRUFF: Not that I know of, just general definition of a defense attorney. MR. BALDASSANO: How about prosecutor? MR. WOODRUFF: About the same. 0 MR. BALDASSANO:Okay. MR. WOODRUFF: I guess most of the opinion is from what you see on television and the trials that they hold there as far as what the functions of the two sides are. MR. BALDASSANO: And do you have any 0. ij.!!:j!!' "'-""'...r

22 0 0 opinion one way or the other after watching TV? MR. WOODRUFF: What type of opinion? MR. BALDASSANO: About the defense or the State or the prosecutor? MR. WOODRUFF: I don't guess so. MR. BALDASSANO: I notice that you watch Perry Mason or something where the prosecutor's always some guy in a cheap suit, that's always wrong, and the other guy is always right. The guy gets off every time. So if you were watching only that show, you would get this kind of impression. MR. WOODRUFF: I guess most of them somebody confesses at the end of the series. That's an unreal particular situation. MR. BALDASSANO: Yeah. The guy jumps up ln the back of the courtroom and he's on the docket and he spills his guts about it. MR. WOODRUFF: Yeah. MR. BALDASSANO: How about lawyers in general? Maybe I shouldn't ask that. Maybe that's a rhetorical question. Let me ask you about beyond a reasonable doubt. The Judge had mentioned and you said it's hard to figure what that it is, and I agree 0

23 with you, that's kind of a hard definition to get your hands around. But as the Judge said it's not beyond all doubt and it's not beyond a shadow of a doubt, but basically a common sense approach. You weigh all the evidence carefully and you deliberate with the other jurors and you come to a Can you do you that? result. MR. WOODRUFF: I think so. I think every day business-type thing. Like the Judge 0 stated, you have certain facts and you're making decisions from facts one way or the other. And sometimes you make decisions you might not feel real comfortable with but you have to go with. And as I stated, I'm more of a black-and-white person. 0 So you've got to have an answer one-way-or-the-other-type thing and I'm used to doing that type of thing. MR. BALDASSANO: Let me ask about that, but elaborate on that through work. MR. WOODRUFF: Yes. Through work I think and everyday-life-type situation when you've got to make a decision, you've got to have whether you feel you have all the information or not to make that decision. MR. BALDASSANO: You had mentioned 0

24 something about I guess it's Question. It says: Do you want to be a juror in this case? And you checked off no. And then it says: No? Why not? I think I would not be willing to compromise and cause a hung jury. I'd like to ask you about that because that's real important to us because a lot of time and effort and expense that goes into these trials. And I guess I want to know how you feel 0 ahead of time about that. Can you elaborate on that statement? MR. WOODRUFF: I guess based on what I said where you're more or less opinionated about the facts that you have and you have a definite result that you've obtained from the facts you received, that I guess I'm more direct in saying I have those facts and this is what I believe in those fact that I have. And that again is more opinionated, and I'm pretty strong, I think, on 0 those opinions, which sometimes isn't the best thing to do. That would be kind of consistent with the thinking of a engineer, isn't it? MR. WOODRUFF: Maybe so. 0,,:(i

25 MR. BALDASSANO: Well, let me ask you this about that. Say you listen to all the 0 0 evidence and the last day of the trial it ends and would you be the type of person that you would probably have made up your decision before you mean, after all the evidence is in before you walk into the jury room knowing that you pretty much know your answer and that's probably what it's going to be regardless of what anybody says back there because you heard the evidence yourself? MR. WOODRUFF: Maybe not that, but I would say that I wouldn't hesitate to be the only one that was the other way on the vote. MR. BALDASSANO: You would not hesitate? MR. WOODRUFF: Not hesitate if I was a single person. MR. BALDASSANO: Okay. MR. WOODRUFF: After I heard all of the discussion. MR. BALDASSANO: Okay. Let me ask I you this about the death penalty. In your own words, can you describe how you feel about it? How do you feel about being part of the process or possibly part of the process and how long have you 0

26 felt that way? MR. WOODRUFF: I don't know. I guess I'm for the death penalty. I think it's something that has to be. I don't know exactly how to describe all of it. I think it's bad in our process from that the way people can get out of the death penalty after a -panel jury has convicted 0 someone. I think it should be another -panel jury before they are relieved from that verdict that was presented by people. And I think a politician or even a judge should not have the single right to pardon that particular decision. MR. BALDASSANO: So does it make you mad when you read in the paper that so and so maybe even after one or two jury trials has been commuted to life or released based on a judge? 0 MR. WOODRUFF: I think I would hold a retrial and another -man panel making that decision. MR. BALDASSANO: And how about. the fact that it's 0, years down the road that the person is retried or released? MR. WOODRUFF: Even then it should abide by the same rules, in my opinion. MR. O'BRIEN: Judge, I think we've 0

27 reached an agreement. Pardon me? agreement, Judge. MR. O'BRIEN: We've reached an All right. 0 Mr. Woodruff, the lawyers have agreed to excuse you so I'm sorry, sir. Thank you very much for being here. I wish you could have been on the jury with us. You're excused. Do you need a certificate? MR. WOODRUFF: No, I don't. you, very much, sir. All right, sir. Thank MR. WOODRUFF: Thank you. 0

28 JUROR NO., HAROLD C. VANDERWEIDE, All right. Callout Mr. Vanderweide, No.. Come right around, please, sir, and have a seat in the witness chair. Good morning, sir. How are you doing? MR. VANDERWEIDE: Good. For the record, your name 0 is Harold C. Vanderweide? MR. VANDERWEIDE: Vanderweide. Vanderweide. All right. Mr. Vanderweide, I had talked to the panelists out here the other day and kind of try to give them an idea of what the criminal trial was like. I invited them to, the panelists, to ask me any questions if they had any, and I didn't get any takers on that. You've had a little time to think about that. Based on anything we talked about at 0 that time did you have any questions of me before we get started in the process that causes us to have individual voir dire? MR. VANDERWEIDE: No. I don't think so. All right. ~; ~..u po; ("; ":"!Cr"tICl

29 Our legislature has provided that all persons who have been convicted of capital murder will be punished by either life imprisonment or death. Do you have any conscientious scruples against the infliction of death as punishment for crime in a proper case? MR. VANDERWEIDE: No. All right. There was a time when the jury actually wrote out the verdict: 0 We, the jury, find the defendant guilty and assess his punishment at death. That type of procedure was generally followed in the United States. And the Supreme Court of the United States knocked that down some years ago mainly because it did not give the jury guidelines in making the ultimate decision and to make more uniform the determination, shall we say, of when a person would get life or death if after being convicted of capital murder. The Supreme Court said your legislature has to tighten 0 up the rules. Our Texas Legislature did so and they have set forth some guidelines that the jury must follow. Before I get into those particularly or in detail let me just say this. A criminal trial is divided into two parts. First part is the :~,I, I (.(,/k,(! --':~;:"".".

30 defendant guilty or not guilty? And if the jury finds him guilty, then the second part of trial begins and there the issue is punishment. At least as far as capital murder sentencing scheme is concerned both sides, the State and the defense, have a right to introduce before the jury evidence in some detail about who the jury's dealing with, information about the defendant. If he's been convicted of crime 0 previously or committed criminal acts of violence or something such as that. he's ever been in trouble. This is the first time These things might help the jury in answering the questions that I have to submit to them after both sides have rested their cases in the punishment phase of the trial. I then give you a Court's Charge and from that charge are two questions. Now, if you don't mind, if you'll look at the board with me, we area going to go over those briefly. The first 0 question you have to answer is: Do you find,from the evidence beyond a reasonable doubt that there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society? If you answer that question yes, then

31 the second question must be answered and that is: Do you find from taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed? 0 Then if you answer that question no, then I automatically assess the defendant's punishment at death. If you answer the question any other way, then I sentence the defendant to life imprisonment. Do you sort of get the picture of the sentencing scheme? MR. VANDERWEIDE: Yes. Just because a person is convicted of capital murder doesn't mean he automatically gets a death penalty. In order to be 0 eligible for the death penalty the jury has got to find that basically beyond a reasonable doubt there's a probability he's going to be a threat to society in the future and if there's no mitigating circumstances. Some citizens coming in here express a little bit of inability, shall we say, to.~:c:cjcl C;CiC!C;

32 make that decision on the first question based on probability. Of course you recognize you don't have to find to a certainty that he would commit criminal acts of violence, but probability. The question might be made more easy to answer if you heard evidence the defendant had lived a life of 0 crime and committed acts of violence on numerous occasions in his past, might make it easier to answer. I don't know. But of course the thing of it is it's not just that person who has lived a life of the crime that's eligible for the death penalty. You could - a jury could find just from the facts of the crime alone that they were so horrible, such a depraved mind would commit an act like this, that, yes, I can find beyond a reasonable doubt that there's a probability that he'll commit criminal acts of violence in the 0 future. from? Do you understand kind of where I'm coming MR. VANDERWEIDE: (Nods head.) All right. Do you see any reason in the world why you would have any more difficulty in dealing with the probability cause that follows in that question than any other

33 citizen coming in here for jury duty? MR. VANDERWEIDE: No. You and the other jurors could discuss the issue and make that decision? MR. VANDERWEIDE: Yes. All right. The term there "criminal acts of violence", that is not defined. That could be acts of violence against 0 person or property. All right? MR. VANDERWEIDE: Okay. Just as long as it would constitute a continuing threat to society. Now, the second question. What has happened there is the legislature has said, okay, even though you found the defendant guilty of capital murder and even though you found beyond a reasonable doubt 0 that there is a probability that he's going to commit criminal acts of violence in the future, you're still going to have to sit back, look at everything; circumstances of the offense, the defendant's character and background, his personal moral culpability, and find out whether there's anything that rises to the level of a mitigating circumstance that will cause the jury to believe

34 that a sentence of life imprisonment was appropriate rather than the death penalty. Nobody will define for you what mitigating circumstances are. It has been 0 suggested by some writers and some courts that possibly an immature age, or on the other end, maybe the person in advanced years, that could conceivably be considered mitigating circumstance. Intoxication might be thrown into the picture, and you would have to decide is that a mitigating circumstance or an aggravating circumstance? There could be a difference of views on it. Voluntary intoxication is not a defense to crime, but the jury could take it into consideration at punishment. Severe mental 0 retardation, not sufficient that it doesn't cause the person to know the difference between right and wrong, but mental retardation has been suggested could conceivably be a mitigating circumstance. But, anyway, all the law is telling the jury is you've got to look at all these things and determine is there a sufficient mitigating circumstance to cause you to say life in prison rather than death? You can participate with other people in that, couldn't you?

35 MR. VANDERWEIDE: Yes. Let me hit two other little issues and I'll turn you over to the lawyers. The burden of proof in all criminal cases is beyond a reasonable doubt. As I said out there when I talked to you-all the other day I don't care if I'm charged with running a red light or capital murder, the burden that the State must prove me guilty by before I could be found guilty is beyond 0 a reasonable doubt. Some citizens coming in here say, well, if I'm going to have to make a decision though on whether to take a person's life, I want more proof than beyond a reasonable doubt. But that's not possible. I mean, if it was beyond all doubt, the only way you could be satisfied of that is if you were a witness. And of course you would have to be a witness rather than a juror. Are you comfortable, would you abide by the law that 0 requires the State to prove the defendant guilty beyond a reasonable doubt? MR. VANDERWEIDE: Yes. If they didn't do so, you would find him not guilty?.,", MR. VANDERWEIDE: Yes. -"- -,". -:.:. \.

36 I feel -- you know, I feel it's just totally unnecessary to discuss this other issue with you but I'll just hit it lightly. Witnesses. Every witness that takes this chair where you are will have taken the same oath to tell the truth. But you know and I know that that doesn't mean everybody's going to be telling the truth. And that's one of the greatest functions 0 that the jurors and the jury performs is determining, because you can believe everything a witness says or not a single word of what a witness says or anything in between. The only thing is every witness when they take the stand they ought to get to start out with the presumption that having taken the oath they're going tb tell the truth. with that? Can you agree MR. VANDERWEIDE: Yes. And that would apply 0 whether it's a police officer who's been trained or the defendant or any other witness. And then as they testify, you determine what they're doing. Some people coming in here say, well, no, I'm going to have to believe a police officer over some other type people. But maybe so after you hear them ~,":.,,"',.:j Ii J!!.L :.. 0

37 testify but not in the beginning, certainly? MR. VANDERWEIDE: (Nods head.) And just one other word in that regard. My experience on the bench has been that sometimes you get some people in here that you know, don't appear to be the best type of witnesses to hear from, but they're the witnesses, 0 and you've got to listen to them and decide. can do that, can't you? MR. VANDERWEIDE: Yes. I sure do thank you, You sir. Just one little word along this line, and as you well know selection of a murder case is very tedious. jury in a capital I've gone over some of these things with you hopefully getting you prepared for the lawyers. Remember that while it sort of gets some of the questions get kind of 0 personal at times, these lawyers carrying out their duty have got to decide in 0 or minutes, whatever it is, do they want Mr. Vanderweide as a juror. So if you'll answer their questions as forthrightly as you can, I'll appreciate it. Thank you, sir. You may proceed. ; i.;.-,...; _ i._i ~ _

38 MR. BALDASSANO: Good morning. MR. VANDERWEIDE: Good morning. My name is Steve Baldassano and this is Casey O'Brien. We represent the State of Texas in the case or the district attorney's office. Like the Judge said, we're trying to get a feel for how you think about the death penalty and, you know, being part of the process. Let me ask you a little bit about your church affiliation. It says 0 0 here that you're a deacon in the First Presbyterian Church? MR. VANDERWEIDE: I was. MR. BALDASSANO: How involved are you with the church now? MR. VANDERWEIDE: I'm not an officer any longer. I do volunteer work. We help Tuesday and Thursday morning. I do Operation ID where people come to us and we help them get birth certificates and identification cards from the DPS offices. I do that Tuesday and Thursday morning. MR. BALDASSANO: So to help people deal with the government-type stuff where they need paperwork? MR. VANDERWEIDE: Right. Right. We help them fill out the forms and we supply some of

39 the money for them. MR. BALDASSANO: That's nice. Well, why don't you tell us in your own words what your feeling is about capital punishment, the death penalty? MR. VANDERWEIDE: I feel like if a person has committed murder, he either should get life imprisonment or the death penalty if proved by the preponderance of the evidence on the 0 circumstances. It depends whether he did it deliberately or it was accidental. I do feel that, you know, you would have to consider the victims. I don't have any problem in doing the death 0 penalty. But, on the other hand, I could look at it and say, well, you know, it wasn't something he really meant to do. MR. BALDASSANO: Well, if it's an accidental killing that's not subject really to any criminal liability. If I, say, maybe drove down the street and I was, you know, wasn't violating any laws or anything like that, and, you know, a kid ran out and I accidentally hit him, that's a killing but not intentional. You couldn't say that's murder under those circumstances. MR. VANDERWEIDE: No.

40 MR. BALDASSANO: I think I know wha t you're saying though. Okay. What types of - what benefit or do you think the death penalty serves society or how do you think it serves? Why do it, in your mind? MR. VANDERWEIDE: Well, I guess two reasons. One to enact punishment and the other is maybe to prevent it from happening again by the same person. There are other ways to rehabilitate 0 someone. I guess it depends on the circumstances of the crime. MR. BALDASSANO: Any idea in your head about what you think would be a death-penalty-type case just off the top of your head? MR. VANDERWEIDE: I think if someone planned it ahead of time and had the weapon with them and planned to use it if the situation came up and did it when it really wasn't necessary to do it 0 I would probably consider it as a death penalty. MR. BALDASSANO: Let me tell you how Texas is set up, the capital murder law. First of all, there I s all different ranges of murder, like, third, second, and first degree murder. They're called by other names. What we call first is -.;

41 intentionally and knowingly taking of a human life. And under that situation it's what we call term. it's regular murder, for lack of a better It's punishable from five years probation up to life imprisonment. Capital murder, on the other hand, the way the legislature has written the law is they've taken murder and added something else if there's some other thing that makes it a capital 0 murder in certain circumstances. murdered a police officer on duty. For example, if I If the guy wasn't on duty or wasn't a police officer, it's murder. But if he's on duty, they made that capital murder. Or fireman or jailer. If I murdered somebody and I was in the course of a robbery or rape or burglary, they've made those kind of murders capital murders. You murder a child under six years old, they've made that a capital murder. If like in the 0 indictment here the allegation in murdering more than one person at a time, they made that a capital murder. Do you basically agree? Could you follow that law and do you agree with the way they've set that out? MR. VANDERWEIDE: Yes.

42 MR. BALDASSANO: So I just wanted to make sure that's called, like, a regular murder you wouldn't if the State, say, didn't prove, say, in a case there were say, we proved one horrible murder, didn't fall into any of those categories, especially the category of a multiple murder, more than one at a time, could you find the defendant guilty of just murder and not capital murder? Even if you thought it was a terrible crime and it was 0 murder but it wasn't the double murder? MR. VANDERWEIDE: Yes. MR. BALDASSANO: Okay. Basically the bottom line throughout this whole inquiry from myself, the Judge, and the defense attorney, is going to be whether you could put any feelings you have aside and base your verdict on the law and evidence in the case. Could you do that? MR. VANDERWEIDE: Yes. MR. BALDASSANO: And the law comes 0 from Judge Robertson, evidences comes from the witness stand. Could you use those two things, the law from the Judge and the evidence from the witness stand, combine them and use only that for your verdict? MR. VANDERWEIDE: Yes....:;::~-; ::",-;',' '.... '- ~ -: ;

43 MR. BALDASSANO: Not to say you couldn't use your own common sense. Obviously, that's why we have you. Okay? There's really nothing else -- let's see in your questionnaire that raises any key kind of questions for me. In any case the defendant's presumed legally innocent before the case starts. That's, you know, from a traffic ticket up to capital murder. The State is required to prove the case to 0 you beyond a reasonable doubt, like the Judge said. That means when you sit as a juror, when you first start out, you can't presume anything. You can't even presume, like, in a murder case that the victim's dead or that it happened in Harris County or anything that's in the indictment. You have to sit in and listen to the State put on it's case and see if they prove it to you before you can render a verdict. Can you do that? Can you sit there at the outset of the case 0 and presume the defendant's innocent and make the State prove the case to you before you start off? MR. VANDERWEIDE: Yes. I think I could. MR. BALDASSANO: Okay. Defendant has a bunch of rights, his Constitutional rights, that : j I " ~ U..:..'

44 we all have. He doesn't have to testify if he doesn't want to. doesn't have to. that against him? He can if he wants to, but he Can you follow that and not hold 0 MR. VANDERWEIDE: Yeah. MR. BALDASSANO: He can call witnesses. He doesn't have to but he can. He can basically, you know, plead not guilty and make the State prove the case. MR. VANDERWEIDE: (Nods head.) MR. BALDASSANO: Okay. I'm going to touch on a few things about the -- what the Judge had talked to you about, witnesses. Both sides take the case as they find them. That is, whatever happens, whoever's there, both sides try to get the witnesses, bring them into court and tell what happened, more or less. And like the Judge said, sometimes things can happen in a church and everybody there is churchgoing people or, you know, 0 a priest or whatever. Other times crime could happen in a bad neighborhood or it could happen when there's hardly anybody around. that. You can see.. Basically what the Judge talked to you about and I'm going to ask you about is whether. "l~ "lr, -v, _ '-, r;,~, -,',. ~ I.,.,

45 or not you can listen to the witnesses and not automatically make a decision about what their believability is before you hear them out. do that? Can you S MR. VANDERWEIDE: Yeah. I think. MR. BALDASSANO: Now, I'm going to talk about witnesses that might have been in trouble before. For example, witnesses that could be that were in gangs or have been to jailor 0 prison, those kind of people. Could you listen to ls those people and hear them out for what they have to say and just put it all in the mix and then decide after you hear them? MR. VANDERWEIDE: Yes. MR. BALDASSANO: And so you're not a type of person that thinks that somebody's been in trouble or jail or prison everything out of their mouth is automatically a lie? 0 MR. VANDERWEIDE: No. MR. BALDASSANO: You can consider everything, and the defendant, if he testifies, you have to treat him like every other witness. You can consider his motives, you can consider his whatever, you know, he says and how it fits with S the other testimony. Obviously, if everybody's ~ ;-\ ~ t - '. i _--:

46 going to say the same thing -- I think the Judge may have said you have to gauge and listen to everything. You don't have to believe anybody. You listen to them. Would a defendant's age have any bearing on you deciding the guilt/innocence? is, if somebody's or or, would you - would that effect how you determine guilt or That 0 innocence in a case? MR. VANDERWEIDE: No. MR. BALDASSANO: The reason I ask that is some jurors might feel sympathy, saying somebody's relatively young. I can't find them guilty even though I think they did it beyond a reasonable doubt. You're not like that, are you? MR. VANDERWEIDE: No. MR. BALDASSANO: I'm going to talk to you real briefly about this thing called transferred intent. There's a rule of law in the 0 penal code that says if I shoot at somebody and want to kill them, if I intend to kill them and I miss and hit the person next to them, I'm still liable for killing the person next to them even though I didn't technically mean it because I meant to kill the first guy. You can agree with that? 0

47 MR. VANDERWEIDE: Right. MR. BALDASSANO: That seems self evident? MR. VANDERWEIDE: Yeah. MR. BALDASSANO: It also means, say, I want to kill somebody and I want to kill somebody and I go to their house and thinking they're home wanting to kill them thinking they're home. But 0 0 they're not home, they're somewhere else. I kill somebody else in the house. I also could be liable, if you believe that, of murder. MR. VANDERWEIDE: (Nods head.) MR. BALDASSANO: Do you agree with that in a proper circumstance? MR. VANDERWEIDE: That capital murder? MR. BALDASSANO: No. That would be just - MR. VANDERWEIDE: Regular. MR. BALDASSANO: I could make it a capital murder if I wanted to kill two people and then I go and shoot and kill two people or something like that. MR. VANDERWEIDE: I agree. MR. BALDASSANO: I want to kill one

48 person and shoot through the door and shoot a whole bunch of times and kill two people. capital murder if you believe that I That could be intended to kill one and I that? killed two. MR. VANDERWEIDE: (Nods head.) MR. BALDASSANO: Could you follow MR. VANDERWEIDE: Yeah. MR. BALDASSANO: Okay. I am going to 0 talk to you briefly about the stuff that the Judge has -- all right May I kind of gone over with you. approach, Judge? Yes. MR. BALDASSANO: Mr. Vanderweide, I'm going to call your attention to those two questions, and these come up again if you found the defendant guilty of capital murder. Capital murder doesn't mean capital punishment although people use them interchangeably. But capital murder just 0 means they commit the crime. Capital punishment would be whether they get the death penalty; And here there's no automatic. You can't say if somebody's guilty of capital murder, they automatically get the death penalty because it's set up in such a way that you have to answer these

49 questions. Now, how do you feel about that? Say you believe beyond a reasonable doubt somebody killed more than one person. Would you answer these questions in a way that they will get the death penalty every time irrespective of the evidence or walking through and following these? MR. VANDERWEIDE: No. I would follow these. 0 MR. BALDASSANO: Okay. MR. VANDERWEIDE: I would like to take that into consideration. Issue NO.. MR. BALDASSANO: And you would have to. MR. VANDERWEIDE: Yeah. MR. BALDASSANO: Let's talk about Question No. first. The Judge touched on it so I'm not going to spend too much time. But it says the State to prove beyond a reasonable doubt 0 there's a probability; doesn't mean we have to prove with certainty because we could never do that. Probability that the defendant would commit criminal acts of violence, that includes violence against people or property..~., MR. VANDERWEIDE: In the future? ", \... : ;;.;

50 '----- MR. BALDASSANO: In the future. It doesntt necessarily mean hets going to commit another murder or rape or some horrible act. It just says it doesntt actually say it here t but the law is as long as we prove beyond a reasonable doubt he would probably commit criminal acts of violence against people or property. It could be like you might consider an arson violence against property or burglaryt kind of like that. That 0 would constitute a continuing threat to societyt and that includes everybody and I mean everybody. Thatts people in and out of prison t people in and out of anywhere. Okay? MR. VANDERWEIDE: The opposite of that t this is a onetime thing and he probably would never do it again? MR. BALDASSANO: Right. Let me ask you this: If we proved to you beyond a reasonable doubt that the defendant probably would commit 0 criminal acts against property that could be,a continuing threat to prison societyt could you answer that question yes if we proved it? MR. VANDERWEIDE: Yes. MR. BALDASSANO: You had just asked me something and I just forget what it was.

51 MR. VANDERWEIDE: If it was a onetime thing. MR. BALDASSANO: Now, the Judge I think touched on that. Now, sometimes a crime is so bad that you can answer this question yes, some people could, just based on the crime. You look and think, my God, if somebody could do that I think beyond a reasonable doubt they would do it 0 again. Do you feel that way about some crimes? MR. VANDERWEIDE: It's possible. MR. BALDASSANO: Possibly. Okay. And then there could be some evidence of prior acts that help you decide that question one way or the other. If you answer that question yes, you go on to Question, which is put in there really because the Supreme Court case that the Judge talked to you about. They wanted everybody, the Texas Legislature and the Supreme Court, wanted everybody to take another look at everything before they go 0 ahead and assess the death penalty. little safety valve. MR. VANDERWEIDE: Yeah. Kind of a MR. BALDASSANO: What they are saying here is that if some evidence rises to a sufficient level that it's mitigating that you are to consider

52 it. MR. VANDERWEIDE: Yeah. MR. BALDASSANO: This question there's no burden of proof on this. It doesn't say beyond a reasonable doubt. The State doesn't have to the prove this, the defense doesn't have to. It's just a matter of you looking at the evidence and everything. Now, the Judge mentioned some things. The bottom line of whether or not it's 0 mitigating or not is up to you. Now, the Judge mentioned age. Some people might consider young age as mitigating. other people might say, you committed a capital The felony when you're that's pretty bad. I'm going to consider that aggravating. How do you feel about that? Do you see that there could be two sides to that? MR. VANDERWEIDE: Yeah. MR. BALDASSANO: Do you have any gut 0 feeling about age one way or the other? think it's mitigating or aggravating? Do you MR. VANDERWEIDE: No. It depends on the crime. MR. BALDASSANO: Okay. Sure. Well, that's up to you. If it's aggravating, you don't