Janecka v. State
| Citation | 823 S.W.2d 232 |
| Decision Date | 31 January 1990 |
| Docket Number | No. 68881,68881 |
| Parties | Allan Wayne JANECKA, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Kenneth W. Sparks, Doug O'Brien, Houston, for appellant.
John B. Holmes, Jr., Dist. Atty., Timothy G. Taft, Robert A. Moen (Opinion after Remand only), Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Matthew W. Paul, Asst. State's Atty. (Opinion on Rehearing only), Austin, for the State.
Before the court en banc.
OPINION AFTER REMAND FOR EVIDENTIARY HEARING
Appellant was convicted of capital murder under the remuneration section of V.T.C.A. Penal Code, Sec. 19.03(a)(3) and was sentenced to death by injection after the jury returned affirmative findings to the first two special issues under Art. 37.071(b), V.A.C.C.P. On direct appeal we affirmed the conviction. Janecka v. State, 739 S.W.2d 813 (Tex.Cr.App.1987). Appellant then filed a motion for rehearing, alleging this Court erred in disposing of his first point of error wherein he contended the trial court erred in overruling his motion to quash the indictment as he was deprived of adequate notice by the State's failure to include within the indictment the name of the individual providing the remuneration in the killing for which he was charged. 1
On original submission this Court found appellant had been denied a requisite item of notice but held the error to be a defect of form rather than substance. Applying the test set out in Adams v. State, 707 S.W.2d 900 (Tex.Cr.App.1986), we held the error to be harmless. 2
Because Adams, supra, was decided after the instant cause was tried, we agreed with appellant in his motion for rehearing that he be given an opportunity to demonstrate harm as a result of the trial court's error in overruling the motion to quash. We abated the appeal and ordered the trial court to hold a hearing to allow appellant the opportunity to fully develop his allegation of harm. Appellant's remaining grounds for rehearing were denied. Janecka, 739 S.W.2d at 841-42.
The sole question presented is whether, in light of his opportunity to produce testimony and develop an adequate record at the evidentiary hearing held below, appellant is now able to demonstrate that the failure to name a remunerator in the indictment had an impact on his ability to prepare a defense and he was thereby harmed.
Pursuant to this Court's order, a hearing was conducted on March 3, 1988. The State and defense produced expert and other lay witnesses who testified regarding the case. By agreement of the parties, the State was allowed to present its sole witness before the defense was put to its burden of proof in the matter. Robert A. Moen was the chief prosecutor in the Janecka case. He related details of the crime and testified that a plea agreement with accomplice Walter Waldhauser was completed prior to appellant's trial. 3 Moen remembered a motion to quash being filed by the defense, but he determined it was not necessary to file a new indictment alleging a remunerator.
The defense then called a series of five witnesses. Mack Arnold was the former chief prosecutor in the Gertrude Zabolio murder case, wherein Markham Duff-Smith was tried and convicted. See Duff-Smith v. State, 685 S.W.2d 26 (Tex.Cr.App.1985). He testified that Duff-Smith was indicted but never tried for the murders of the Wanstrath family. Waldhauser was available as a witness in the Zabolio case but was not called because he was considered untrustworthy and unreliable. If he had been called to testify, all the plea bargaining material, including the capital charges against him, would have been available for impeachment.
Attorney Robert Scardino, Jr. represented Waldhauser during the time in question and negotiated the plea bargain with the State, the contents of which by agreement were to remain secret. In order to avoid breaching the agreement of non-publicity, the hearing judge ordered the plea agreement admitted into the record as a sealed document. The attorney also informed the court that Waldhauser had since recanted his confessions.
Scardino was asked specific questions regarding the impact on the defense of the failure of the indictment to name Waldhauser as remunerator. In his opinion, by eliminating the remunerator, the State eliminated the necessity for proving who had paid for the killing. If Waldhauser had been named, he would have had to testify, thus opening the door for the defense to prove that someone other than the person named in the indictment had been the remunerator.
Counsel Kenneth Sparks next called himself to the witness stand. He testified the prosecutor had kept a closed file in the instant case, although the defense was allowed to inspect certain items of physical evidence. After the trial court overruled the motion to quash the defense was left with the sole strategy of attempting to show appellant's confessions were involuntary. Because a remunerator was not named, the defense was unable to test the State's proof regarding the identification of the remunerator, effectively eliminating the possibility of showing a variance between what was plead and what the State was able to prove, thereby eliminating defense strategies of moving for an instructed verdict, conviction on a lesser offense of murder rather than capital murder, impeachment of Waldhauser, or at the least, mitigation of punishment based upon Waldhauser's active participation in the murder and favorable treatment through plea bargain with the State.
Attorney Doug O'Brien had also participated in the defense. He "totally agreed" with Sparks's testimony.
Attorney Randy Shaffer was called as an expert witness and given a hypothetical using the same facts as in the instant case. Shaffer testified that trial counsel required actual, formal notice of the alleged remunerator in order to adopt a strategy of attempting to secure a lesser conviction. Without a specific allegation in the indictment, the defense would be unable to cast doubt on the individual who was so named and thus raise the possibility of a lesser charge being given the jury. A formal allegation was also, in Shaffer's opinion, necessary to possibly enable the defense to test the sufficiency of the evidence by either a motion for instructed verdict or to argue sufficiency on appeal. There was absolutely "no other way to do it." On the punishment issue, Shaffer pointed out that evidence of Waldhauser's favorable plea bargain could act to mitigate against imposition of capital punishment.
A Special Master, sitting by order of the trial court, made the following findings of fact:
1. The State's file was closed to the defense, and the police offense report was not obtained by the defense from any other source.
2. The appellant's confession among other things reveals:
a. Page 2, last paragraph--appellant stated that Walter Waldhauser never mentioned the name "Mark."
b. Page 5, first paragraph--appellant read the name of Mark Duff-Smith in the newspaper and asked Walter Waldhauser about Duff-Smith's involvement, but Waldhauser never directly confirmed that Duff-Smith was behind anything.
c. Page 5, fourth paragraph--appellant, and Walter Waldhauser split money for the murder, but there is no mention of the source of the funds or the identity of the remunerator.
d. Page 5, last paragraph--appellant "figured" Duff-Smith had something to do with it, but never met him.
3. The defense filed a motion to Quash the Indictment seeking the identity of the remunerator for the following reasons:
a. to seek information;
b. to be able to defend the capital element of remuneration to allow a jury verdict of the lesser included offense of murder;
c. to seek an instructed verdict at the close of the State's case regarding:
(i) insufficient evidence as to the remunerator;
(ii) a possible variance in proof regarding the remunerator.
4. The defense was unaware of what the State would attempt to prove regarding the identity of the remunerator except that the possibilities were Mark Duff-Smith and Walter Waldhauser.
5. Walter Waldhauser, co-defendant with appellant, made a written plea bargain agreement with the State prior to the date appellant's trial began that included an agreement that he would be sentenced to thirty (30) years in the Texas Department of Corrections, and that he would not be prosecuted for other crimes that he had committed.
6. The written Waldhauser plea agreement would have been admissible for impeachment purposes had Waldhauser been called as a witness by the State.
7. Waldhauser was not called as a witness by the State. The jury was unable to hear the details of his plea bargain.
8. The defense made no attempt to demonstrate or establish harm resulting from the overruling of the Motion to Quash since the defense was not aware that it had any burden or requirement to do so. However, the Appellant's Motion in Arrest of Judgment filed following conviction alleged that the failure to name the person providing the remuneration failed to give the defendant proper notice and left him unable to properly defend himself.
9. The defense strategy was, if Walter Waldhauser had been named in the indictment as the remunerator and been called as a witness and the appellant had been convicted of capital murder, then, appellant's attorneys would have handled the punishment state (sic) and punishment argument differently. They would have compared and contrasted the light sentence of Walter Waldhauser by virtue of his plea bargain and the prosecution's request to the jury for a death sentence for the appellant even though they were co-participants in the killings.
10. The defense never knew what theory the State would pursue during its case in chief regarding the identity of the remunerator except that it could be Duff-Smith or Waldhauser until ...
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