Green v. State

• Decision Date: 26 November 1980
• Docket Number: No. 3,No. 59380,59380,3
• Citation: Green v. State, 615 S.W.2d 700 (Tex. Crim. App. 1980)
• Parties: Leroy GREEN, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 700

615 S.W.2d 700

Leroy GREEN, Appellant, v. The STATE of Texas, Appellee.

No. 59380.

Court of Criminal Appeals of Texas, Panel No. 3.

Nov. 26, 1980.

Dissenting Opinion May 27, 1981.

Rehearing Denied June 3, 1981.

Thomas J. Purdom, R. Byrn Bass, Jr., Lubbock, for appellant.

Alton R. Griffin, Dist. Atty., Cindy L. Miller and Hollis Browning, Asst. Dist. Attys., Lubbock, Robert Huttash, State's Atty., Austin, for the State.

Before ODOM, TOM G. DAVIS and CLINTON, JJ.

OPINION

CLINTON, Judge.

This is an appeal from a conviction for capital murder in which the jury returned negative findings upon the special issues submitted pursuant to Article 37.071(b), V.A.C.C.P. Appellant's punishment was assessed at life confinement.

The only evidence connecting appellant with the murder of Warren McKay is a written statement in which he confessed his participation in the aggravated robbery of the deceased and his wife, during the course of which Mr. and Mrs. McKay were shot and killed by Raymond Sanders, and Robert Lee White.

According to appellant's statement, he, Sanders and White armed with two shotguns, drove to the McKay home on the evening of January 12, 1975, and parked in the driveway. Warren McKay came out of the house and over to Sanders' pickup. Robert Lee White got out of the truck, walked around to the other front and pointed a shotgun at McKay. Appellant exited the pickup with the other shotgun which was not loaded. Appellant's written statement continues:

"Robert took the wallet from Mr. McKay and gave it to me. I opened it and looked into it. There was a one hundred dollar bill and some more. I do not know how much, then I gave it back to McKay. Raymond said wait a minute. Raymond and Robert brought Mr. and Mrs. McKay into the house, Mrs. McKay asked what are you going to do with us. Raymond told her we are not going to hurt you. I also said that we were not going to hurt you. Mrs. McKay asked is she could get a coat. She pointed to her and Mr. McKay's coat. We said okay, they put their coats on and Mrs. McKay asked if she could put on some shoes. Raymond said that you are just going down the street. We then took them out of the house. I asked Raymond where (sic) we were going to do with these damned people, and he told me to put them in the back of the pickup. I told him that it was cold back there, so Raymond told me not to back up now. Raymond said to the McKays, get in the back of the truck. I was already back there. Both of the McKays got into the back of the pickup where I was at. Robert got into the back of the pickup. Raymond got into the pickup and backed it up and then he drove off. We drove down a road real fast for a long time. We were laying down in the back. After awhile Raymond finally stopped the truck and I helped Mr. McKay out. They got out over the tailgate, then Mr. and Mrs. McKay started to walk off. Raymond told me what are you going to do, go ahead and shoot them. I told him that I did not have any shells. I asked Raymond, where are the shells, then Raymond took the shotgun away from me. I turned around and then I heard a shot and then another and another. It was three shots altogether that I heard. I turned around and saw the lady, Mrs. McKay, laying in the road. ¹ She was laying on her stomach. I do not know if she was dead or not. I did not see the man, this being Mr. McKay. Robert and Raymond were walking back toward me. We got into the truck and drove off."

Sanders asked appellant how much money they had gotten and the latter counted out about $174.00. The concluding statement in appellant's account of the murders was, "I ... want to say that Robert and Raymond did shoot and kill Mr. and Mrs. McKay."

Appellant now complains in six grounds of error that his written statement should have been excluded from evidence ² because it was obtained by exploitation of his detention pursuant to an illegal arrest, citing Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); and Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). We agree and accordingly reverse.

The record reflects that Mr. and Mrs. Dub Coffee lived a short distance from the McKay house. During the evening hours of the date of the murders, Mr. and Mrs. Coffee had been at home. At that time, three black men had come to their house. They knew that Raymond Sanders was one of those men, but they did not know who the others were.

As a result of law enforcement officers' talking to the Coffees, a search for Raymond Sanders ensued. The officers went to the house where Raymond Sanders lived and found out where he worked. They found a pickup that belonged to his employer and observed the tires on that pickup, as well as the tracks that they made. The officers compared those tracks and believed them to be the same as those found both at the Coffee and McKay residences. Likewise, the tracks compared favorably with those found on the shoulder of the road about 100 yards from where the bodies had been found.

Based upon all of the facts that they had at their disposal at the time, the officers obtained a search warrant for the home of Sanders. At the Sanders house, the officers seized two shotguns. Raymond Sanders was immediately arrested at his house and taken to the Lubbock County Sheriff's Office. Subsequent testing upon the weapons seized failed to reveal any fingerprints on them.

Upon arriving at the Sheriff's Office Justice of the Peace F. H. Bolen was summoned, and a complaint was sworn by Sheriff C. H. Blanchard against appellant, alleging he had committed the murder of Warren McKay; on presentation of this complaint to Judge Bolen, a warrant for appellant's arrest issued.

As soon as the arrest warrant issued for appellant, this fact was broadcast over police radio to some seven Lubbock County law enforcement officers and two Texas Rangers, who were already combing the county, investigating the whereabouts of Leroy Green and Robert Lee White.

After going into a few more residences and "joints," the officers came to a "project" complex at 2610 Weber Drive. Deputy P. R. Wilbanks and Ranger Tommy Walker, armed with shotguns, approached an apartment in which they believed appellant to be. It was approximately 2:00 a. m.

After knocking loudly a few times, other residents began to open their doors in the hall. Wilbanks asked a woman across the hall "if this is the residence of Leroy Green," and she replied that she thought so. So Walker knocked on the door again, but with the butt of his shotgun. The officers then decided to "go on ahead and force entry." Walker kicked the door twice, then Wilbanks kicked it, to no avail. So, both officers backed up and ran through the door knocking it off its hinges and the facing off the frame.

Inside, the officers first confronted appellant's mother, Adell Green, who had been on her way back to her bedroom to get a robe. According to Mrs. Green, she could not tell exactly who was there because flashlights were being pointed at her:

"... I went to pull the curtains back to see who it were and by the time I got the curtains back ... one of them said, 'Don't move' and I said, 'Well, I don't have any right to run ... will somebody please tell me what's going on?' and nobody ever said anything to me."

The officers started asking for Leroy Green and made their way into a bedroom where appellant and his brother, Sammy were sleeping. Shining flashlights and pointing shotguns at appellant and his brother, the officers asked if one of them were Leroy Green, and appellant jumped up, standing on his bed with his hands up and said, "Yes, I'm Leroy Green."

Appellant was then led toward the front door and handcuffed with his hands behind him. Dressed in only a T-shirt and undershorts, appellant was led out the front door and Ranger Walker recited to him his Miranda ³ warnings. The eighteen year old appellant was then taken outside and placed in a patrol car. It was 29o outside.

Though the testimony conflicted slightly, it appears that appellant asked the officers if someone could get him some clothes and, after circling the block, they returned to the apartment and asked someone to go in for some clothes. Appellant's brother went in and returned with a pair of pants, but no shoes or shirt.

The evidence clearly established that appellant was not taken to the Sheriff's Office for almost an hour. ⁴ Deputy Wilbanks explained the delay thus:

"We were still in the process of looking for another individual and Leroy Green was giving us some information as to how we might contact this third person and we were relaying this information to other officers via the radio and occasionally we would stop, might pull over to see what might turn up...."

According to Ranger Walker,

"Well, I was completely lost, I had no idea where in Lubbock that I was. I know that we questioned Leroy as to the whereabouts of (Robert Lee) White and we he gave us some information, several addresses and we put them out on the air, maybe one address at a time. I remember stopping at one place while some deputies checked the address to see if White was there...."

The evidence is, however, undisputed that appellant was arrested sometime between 2:30 and 2:40 a. m., and booked in at the Lubbock County Jail at 3:30 a. m. The weight of the positive testimony, including that of a former Assistant District Attorney, is that appellant was brought in wearing nothing but his undershorts and T-shirt. ⁵

Though Judge Bolen was still at the Sheriff's Office and in fact remained there until approximately 5:00 a. m. appellant was not taken before him at any time through that night. ⁶

Once at the jail, appellant was first put in a room with "several officers." Ranger Horger warned him and talked to him briefly. ⁷ Then appellant was placed for a short time in a holdover cell, then brought out and booked. Thereafter, according to Deputy Sheriff Alton Hobbs, he first saw appellant at approximately...