Kelley v. State

• Decision Date: 09 October 1991
• Docket Number: No. 3-88-114-CR,3-88-114-CR
• Citation: Kelley v. State, 817 S.W.2d 168 (Tex. App. 1991)
• Parties: James Oliver KELLEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 168

817 S.W.2d 168

James Oliver KELLEY, Appellant, v.The STATE of Texas, Appellee.

No. 3-88-114-CR.

Court of Appeals of Texas Austin.

Oct. 9, 1991.

Discretionary Review Refused

Jan. 29, 1992.

R. Mayo Davidson, San Saba, for appellant.

Sam Oatman, Dist. Atty., Robert Malcolm, Asst. Dist. Atty., Llano, for appellee.

Before POWERS, JONES and ONION^*, JJ.

ONION, Justice(Retired).

Appellant appeals his conviction for the murder of his wife, Helen W. Kelley.SeeTex.Penal Code Ann. § 19.02(a)(1)(1989).After finding the appellant guilty, the jury assessed his punishment at life imprisonment.

Appellant advances three points of error.Initially, appellant contends that the trial court erred in exempting Texas Ranger Ray Coffman from the "Rule" and allowing him to remain in the courtroom during the "testimony of fact witnesses."SeeTex.R.Crim.Evid.Ann. 613(3)(Pamph.1991).Secondly, appellant urges that the trial court erred in admitting into evidence oral statements made by him to Larry Conner, a neighbor, which were the result of custodial interrogation.Lastly, appellant argues that the trial court erred in admitting into evidence his extra-judicial confession.

The sufficiency of the evidence to sustain the conviction is not challenged.Both the sheriff's dispatcher and the appellant testified that on June 20, 1987, he called the sheriff's office to report that his wife had been shot and to ask for an ambulance.Department of Public Safety TrooperLes Dawson was the first law enforcement officer to arrive at the scene.Appellant told Dawson "I shot my wife."Mrs. Kelley's body was found in the trailer house.She had been shot.A deer rifle was found nearby.Larry Conner and his wife arrived shortly after Trooper Dawson.Appellant told Conner, inter alia, that he and the deceased had an argument and that he"blew her away."The next day the appellant gave a written extra-judicial confession to Ranger Coffman at the sheriff's office.Testifying in his own behalf, appellant admitted he had an argument with his wife, remembered the "roar of the gun" or the "blast," but he did not remember shooting her.He acknowledged that the rifle was his, and that only he and his wife were present at the time.A firearms expert testified that the rifle was a functioning ".3006 caliber Winchester" which was capable of causing death or serious bodily injury.The medical examiner testified that the one shot had been fired at close range; and that the rifle bullet entered the lower portion of the face of the deceased, resulting in a four-inch exit hole in back of her neck.

In his first point of error, appellant complains that the trial court erred in excluding Texas Ranger Coffman from the witness sequestration rule.The appellant filed a pretrial motion to invoke the "Rule" and to exclude all witnesses including Coffman, the "chief fact witness" for the State.The motion alleged that Coffman's presence in the courtroom was not essential to the presentation of the State's case, and that his testimony had already conflicted with that of another officer at an earlier hearing.

At an evidentiary hearing the prosecutor testified under oath that Ranger Coffman had been involved in the preparation of the State's case since the date of the alleged offense; that he was the lead investigator and had assisted her in the preparation of the case; that while Coffman would be a witness, there would be approximately thirty items of evidence to be introduced and the testimony of four expert witnesses to be offered; that she needed Coffman's expertise in presenting this evidence as to ballistics, fingerprints "and how to handle bodies;" that Coffman's help had been essential in trial preparation and it would be essential for him to be present with her during trial.

The prosecutor was not cross-examined nor was her testimony challenged in any way.The parties then stipulated that, if called, Coffman's testimony would be essentially the same as that of the prosecutor.Appellant then agreed that Coffman could remain in the courtroom during the presentation of expert testimony or physical evidence.Appellant requested, however, that Coffman be excluded when fact witnesses, who might offer a different version than Coffman, testified.The trial court invoked the "Rule," exempted Coffman therefrom under Rule 613(3), and denied appellant's specific request.

Appellant calls our attention to six places in the record where he contends that Ranger Coffman's testimony conflicts with that of Deputy Sheriff Leslie Don Stewart.Two of these conflicts occurred at the pretrial evidentiary hearing to determine the voluntariness and admissibility of appellant's written confession.These conflicts occurred before the "Rule" was invoked at the trial on the merits and are not pertinent to the point of error as stated.The trial record shows that Coffman's testimony did conflict with Stewart's earlier testimony for the State as to whether Coffman wiped down the rifle with gauze in one or two places, and worked the bolt action on the rifle and ejected the spent cartridge and three live rounds at the scene or later at his Brady office, and whether Justice of the Peace Reeves arrived at the jail or sheriff's office prior to the signing of the confession.Ranger Coffman was interrogated before the jury about the conflicts.He was unable to explain why Stewart had so testified.Appellant contends that the conflicts demonstrate the trial court abused its discretion.

The "Rule" serves two purposes.Initially, it prevents witnesses from tailoring, consciously or unconsciously, their testimony to fit that of other witnesses.Secondly, in the cases of witnesses testifying for the same side, it enhances the jury's ability to detect falsehood by exposing inconsistencies in their testimony.See generallyEx parte Robertson, 731 S.W.2d 564, 566(Tex.Crim.App.1987);Allen v. State, 536 S.W.2d 364, 367(Tex.Crim.App.1976);Carlile v. State, 451 S.W.2d 511, 512(Tex.Crim.App.1970).

The "Rule" is now found in Rule 613 of the Texas Rules of Criminal Evidence.See alsoTex.Code Crim.Proc.Ann. arts. 36.05 & 36.06(1981).Rule 613(Exclusion of Witnesses) provides:

At the request of a partythe court shall order witnesses excluded so they cannot hear the testimony of other witnesses, and it may make the order on its own motion.This rule does not authorize exclusion of (1)a party who is not a natural person, or (2) an officer or employee of a defendant which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause, or (4) the victim, unless the victim is to testify and the court determines that the victim's testimony would be materially affected if the victim hears other testimony at the trial.

Tex.R.Crim.Evid.Ann. 613(Pamph.1991)(amended June 26, 1990, eff.September 1, 1990).

Prior to the adoption of the Rules of Criminal Evidence the decision to invoke the "Rule" was discretionary with the trial court.Brown v. State, 523 S.W.2d 238, 241(Tex.Crim.App.1975);Corbett v. State, 493 S.W.2d 940, 948(Tex.Crim.App.1973), cert. denied, 414 U.S. 1131, 94 S.Ct. 871, 38 L.Ed.2d 756(1974).Trial courts are now required to exclude witnesses under Rule 613 upon the request of either party unless one of the expressed exceptions or exemptions apply.

In the instant case, the prosecutor sought to exempt Coffman from the "Rule" invoked by the appellant under the third exception of Rule 613.The third exception requires the exercise of sound judicial discretion.Any person whose presence is essential to the presentation of a party's case cannot be excluded.A party claiming the exemption bears the burden of establishing that a witness's presence in court is in fact "essential."

The statement, "[U]nder the Rules, Judge, we are entitled to have a case worker" did not constitute a "showing" by the State that a witness was essential.Barnhill v. State, 779 S.W.2d 890, 892-93(Tex.App.1989, no pet.).Likewise, a prosecutor's conclusory statement to the court that it would be "necessary and essential" for him to confer with a deputy sheriff-witness in the courtroom during the trial was not sufficient to sustain the State's burden.Hernandez v. State, 791 S.W.2d 301, 306(Tex.App.1990, pet. ref'd).

In the instant case, the prosecutor, under oath, established the witness's connection with the case as the lead investigator, his expertise in certain fields, the number of evidentiary items to be offered and the expert witnesses to be called, and her need for the witness's assistance during trial.While some of the prosecutor's statements were conclusory, the showing here was a far cry from those in Barnhill and Hernandez.It was stipulated that the witness's testimony would be essentially the same as that of the prosecutor.The appellant agreed that the witness might be excused from the "Rule" during the presentation of expert witnesses and physical evidence.We hold that, under the particular circumstances of this case, the trial court did not abuse its discretion in exempting Ranger Coffman from the "Rule" under the third exception of Rule 613.

Even if it can be argued that the trial court abused its discretion in exempting Ranger Coffman from the "Rule," the question then becomes whether the error is reversible.Tex.R.App.P.Ann. 81(b)((2)(Pamph.1991).Hernandez, 791 S.W.2d at 306;Barnhill, 779 S.W.2d at 893;Hendley v. State, 783 S.W.2d 750, 752(Tex.App.1990, no pet.).We find any error harmless for several reasons.Appellant agreed that Coffman could be excused from the "Rule" when the testimony of expert witnesses was offered as well as during the presentation of physical evidence.Deputy Stewart's testimony was necessary to establish the chain of custody and the proper predicate for the introduction of the rifle, bullet, empty shell, live rounds, and other...