Cook v. State

• Decision Date: 06 November 1996
• Docket Number: No. 71855,71855
• Citation: 940 S.W.2d 623
• Parties: Kerry Max COOK, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 623

940 S.W.2d 623

Kerry Max COOK, Appellant, v. The STATE of Texas, Appellee.

No. 71855.

Court of Criminal Appeals of Texas,

En Banc.

Nov. 6, 1996.

Rehearing Denied March 19, 1997.

Paul Nugent, Winston E. Cochran, Jr., Houston, for appellant.

Edward J. Marty, Asst. District Attorney, Tyler, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION

MANSFIELD, Judge.

Appellant was initially indicted for this offense, a capital murder alleged to have been committed in Smith County in 1977, in 1978. He was convicted and was sentenced to death. We affirmed his conviction and death sentence in 1987. Cook v. State, 741 S.W.2d 928 (Tex.Crim.App.1987). Following the Supreme Court's vacating and remanding of our judgment, ¹ we reversed the judgment and remanded the cause to the trial court. Cook v. State, 821 S.W.2d 600 (Tex.Crim.App.1991). In 1992, appellant's first retrial ended in a mistrial after the jury was unable to reach a verdict.

In 1994, appellant was tried a third time. ² The third trial resulted in appellant's conviction. Appellant was sentenced to death after the jury answered both special issues in the affirmative. Direct appeal to this Court is automatic. Tex.Code Crim.Proc. Art. 37.0711, § 3(j) (now Art. 37.071, § 3(h)). Appellant raises fifty-five points of error. We reverse and remand.

The complainant, Linda Jo Edwards, was involved in an affair with James Mayfield, a married man, for the eighteen month period prior to her murder. Approximately three weeks before the complainant's death, Mayfield left his wife and moved into an apartment with the complainant. During its investigation of the crime, the Smith County District Attorney's office found that Mayfield's sixteen-year-old daughter, Louella, had made repeated death threats against the complainant to third parties as well as one directly to the complainant just a few days before the murder.

Mayfield ended the affair and moved back to his wife's house in May of 1977. The complainant subsequently tried to kill herself but, after being found unconscious by Mayfield and brought by him to the hospital, recovered. After her recovery, she moved into an apartment with Paula Rudolph, at the same complex where she had previously lived with Mayfield. Mayfield's affair with the complainant became public after her suicide attempt and contributed to the loss of his position as Dean of Learning Resources at Texas Eastern University in late May of 1977.

In early June of 1977, appellant, who lived in Dallas, moved into an apartment with James Taylor. The apartment was in the same complex as the complainant's. At trial, Rodney and Randy Dykes, Taylor's nephews, testified appellant told them he had watched a woman undress through the window of an apartment while returning from the pool. ³ The following day, appellant sent Rodney over to two females at the pool, one of whom matched the complainant's description, to tell them appellant was interested in them. Rodney testified they expressed no interest in appellant. Appellant and Rodney then left the pool, returned to the apartment and ate supper. Appellant left after dark.

Appellant returned later that night. Rodney testified he gave appellant a back rub and noticed "hickeys" on appellant's neck, which he had not observed earlier.

On June 9, appellant and Robert Hoehn, who arrived at Taylor's apartment at about 10:30 PM, watched a cable move, The Sailor Who Fell from Grace with the Sea, which involved a mutilation of a cat and an insinuation of a genital mutilation of a seaman by a group of children. During the movie, appellant and Hoehn went to the pool for awhile. On their way to the pool, appellant showed the complainant's window to Hoehn and told him an attractive woman lived there. They returned and watched the rest of the movie. During the mutilation scene, appellant masturbated. Hoehn testified they left for the store to get cigarettes at about midnight and returned about 12:30 AM. ⁴ Hoehn dropped appellant off at the entrance to the apartment complex instead of dropping him off directly at Taylor's apartment, and drove away.

Until about 10:30 PM on June 9th, the complainant was at an apartment of some friends. She informed her friends she had to return to her apartment because her roommate, Rudolph, was leaving about 10:30 PM and she needed to get home before she left. Rudolph testified she returned to the apartment shortly after 12:30 AM. She saw a man through the open door to the complainant's bedroom and assumed it was the complainant's boyfriend, Mayfield. She testified she told him, in effect, "it was her and don't worry about it." Although he did not look like Mayfield, it was dark and she decided it must have been him and went to her room after the man closed the door to the complainant's room.

When Rudolph got up the next morning, she discovered the complainant's body. The autopsy disclosed she had been struck in the head with a statue, stabbed numerous times and severely mutilated, most notably in the genital area. Fingerprints subsequently identified as appellant's were found on the sliding glass door to the patio of complainant's apartment. Appellant was subsequently arrested and indicted for the capital murder of complainant.

In his third and fourth points of error, appellant contends the Due Process Clause of the Fourteenth Amendment to the United States constitution and the Due Course of Law provisions of Articles I, Sections 13 and 19, of the Texas Constitution prohibited appellant's second retrial because the Smith County District Attorney's Office engaged in egregious prosecutorial misconduct during the period of time commencing with the murder investigation and including appellant's first two trials.

This case presents an issue of first impression, namely, whether prosecutorial misconduct, magnified by the passage of over fourteen years and the death of a key witness, can so degrade the normal workings of justice that a fair trial becomes impossible and thus retrial is forbidden under due process and due course of law principles.

During its investigation of the crime, the Smith County District Attorney's Office found that Mayfield's sixteen-year-old daughter, Louella, had made repeated death threats against complainant to third parties as well as one directly to complainant just a few days before the murder. The investigation also revealed Louella falsely identified herself as an investigator with the Tyler Police Department to the manager of the apartment complex where complainant lived and told the manager that she was investigating a homicide involving Jim Mayfield and a Linda Jo Edwards (this conversation took place two weeks before Edwards' murder.) The district attorney did not reveal this information to appellant until 1991, fourteen years after the murder. Additionally, a report drafted by a Tyler Police Department sergeant, in which he states he "personally knows Louella to be mentally and emotionally unstable, very hyperactive and a pathological liar," was not revealed to appellant until 1991. The only two witnesses who supported James Mayfield's alibi that he was asleep at his wife's house at the time complainant was murdered were his wife and Louella. Failure to provide appellant with the potentially exculpatory information concerning Louella Mayfield was prosecutorial misconduct violative of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Other prosecutorial misconduct in this case included the following:

1. Misrepresentation during appellant's first trial of a deal made by the Smith County District Attorney's Office with Edward "Shyster" Jackson, who was in custody awaiting trial on a murder charge. In exchange for having the pending murder charge reduced to involuntary manslaughter with a two-year sentence, including credit for time served, Jackson testified appellant made a jailhouse confession that he killed complainant. The State implied during closing argument it had made no deal with Jackson in order to procure his testimony. After he was released, Jackson admitted his trial testimony was a total fabrication. This information was not provided to appellant until 1991.

2. The district attorney's office failed to reveal to appellant it possessed evidence appellant and complainant knew each other. Despite having this evidence, the State presented, at appellant's first trial, its theory that appellant and the complainant were total strangers and he had not been to her apartment until the evening of her murder. This potentially exculpatory evidence not revealed to appellant included grand jury testimony by Rodney Dykes that appellant told him he met complainant at the pool three or four days prior to her murder and then went to her apartment, where he received "passion marks on his neck." The State did not provide this "highly exculpatory" testimony to appellant until years after appellant's first trial.

3. The State failed to reveal to appellant, at his first trial, a prior inconsistent statement by a key prosecution witness, Robert Hoehn. Hoehn testified at appellant's first trial he had homosexual sex with appellant shortly before the murder and that appellant had watched, and became aroused by, a movie, The Sailor Who Fell from Grace with the Sea, that evening. This highly prejudicial testimony was directly contradicted by Hoehn's earlier sworn testimony before the grand jury in which, while admitting he was a homosexual, he said he had not had sex with appellant. He also testified appellant paid no attention to the movie. The State did not disclose Hoehn's grand jury testimony to appellant until after commencement of appellant's second trial and after Hoehn's death. Hoehn's death also made it impossible for appellant to impeach Hoehn's testimony with a prior statement he made to the district attorney's office that he had not had sex with appellant.

4. The State introduced misleading...