McKay v. State
| Decision Date | 02 October 1985 |
| Docket Number | No. 69049,69049 |
| Citation | 707 S.W.2d 23 |
| Parties | David Wayne McKAY, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
This is an appeal taken from a conviction of capital murder. V.T.C.A. Penal Code, § 19.03(a)(2). The death penalty was imposed after the jury answered affirmatively the special issues submitted under Art. 37.071, V.A.C.C.P. Appellant brings twenty grounds of error before this Court. We affirm the conviction.
Although appellant does not challenge the sufficiency of the evidence to support the conviction, a brief recitation of the facts will be of assistance in our resolution of his grounds of error.
In 1978 appellant met Kevin Long, subsequently a key State's witness against appellant. They worked and lived together for several years, and in 1981 moved to Dallas where the events leading to appellant's trial and conviction occurred.
In February, 1982, Long obtained a .32 revolver and a .380 automatic pistol, which he gave to appellant with the understanding that they would "do a robbery." During the last week of February, 1982, appellant suggested to Long that they rob some pharmacies together. Appellant suggested that they use Long's truck, since it had no license plate. When Long did not agree to the use of his truck, appellant told him that he would go to a parking lot and find a nice car, hijack the driver, and "not leave any witnesses."
On Thursday, March 4, 1982, the deceased, Bobby Hill, left his home to take a set of car keys to his girlfriend, who had lost her keys at the Rox-Z Club. Hill drove his father's 1980 tan over navy blue Chrysler Cordoba to the club.
When deceased was stopped in the parking lot, appellant walked to the car, circled it, knocked on the driver's window and told the deceased that he needed a ride. After refusing to give appellant a ride, Hill escorted his girlfriend to her car. She then saw appellant approach Hill. Hill looked down in the direction of appellant's hands and then backed up to his car, got in, and slid over to the passenger's seat. Appellant got into the driver's seat and the two of them drove away.
On Friday, March 5, 1982, at about 7:00 a.m., a carpenter discovered Hill's body in a field in Las Colinas, a subdivision in Irving just outside of Dallas. Hill's hands had been tied with telephone cord. He had been shot four times in the head.
Also on March 4, at approximately 3:30 p.m., Long was arrested by the police of University Park, a suburb of Dallas, for the delivery of cocaine. Long was incarcerated in the University Park Police Department Jail.
At about 8:00 a.m. March 5, appellant arrived at the University Park Police Department Jail to visit Kevin Long. An officer at the jail asked appellant for identification before permitting him inside. Appellant left to get his driver's license, which he said was in his car. The officer saw appellant in the parking lot standing next to a tan over blue Chrysler. Appellant said he could not find his license, but was permitted inside to visit Long.
Appellant told Long that he had obtained a car, abducted a man from the Rox-Z Club, tied him with telephone cord, and shot him six times in the back of the head. Appellant stated that he had waited until the blood stopped squirting out of the back of the deceased's head before leaving.
When appellant left the jail, Long asked to talk to Officer Holman. As a result of the conversation, Holman called several police departments in the area. The Irving Police Department sent investigators to interview Long about appellant's statements. An arrest warrant was then issued for appellant's arrest.
On March 5, at 11:15 p.m., William Motteram, a manager of a Pizza Hut, was robbed at gunpoint by appellant who drove off in a late model "dark with light top" Chrysler Cordoba. The gun recovered from appellant after his arrest was identified by Motteram as one that looked similar to the gun used in the robbery.
On March 6, 1982, at about 2:30 a.m., appellant was arrested as he pulled out of the Rox-Z parking lot driving a tan over blue Chrysler. A search of the car revealed two weapons and three letters belonging to appellant.
On March 7, 1982, appellant was identified at a photographic lineup conducted at the Irving Police Department as the person who left the club with Bobby Hill. Hill's girlfriend made the identification.
In ground of error number nineteen, appellant contends that the trial court committed reversible error in excusing for cause venireperson Dorothy Jones, in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and consequently denying appellant his right to an impartial jury.
The record of the voir dire examination of prospective juror Jones reflects:
Now, I don't want to put any words in your mouth, but is that the way you feel?
And just like you told us that there's no way you could ever, prior--before 1974 ever return a verdict of death by writing it in, d-e-a-t-h, the same thing goes for three yes answers.
You know the results--yes, yes, yes equals death, and I believe you've told us that there's no way you could answer those questions yes, yes, yes, knowing that it would result in anybody's death. Is that correct?
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