Perillo v. State

• Decision Date: 14 September 1988
• Docket Number: No. 69435,69435
• Citation: 758 S.W.2d 567
• Parties: Pamela Lynn PERILLO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 567

758 S.W.2d 567

Pamela Lynn PERILLO, Appellant, v. The STATE of Texas, Appellee.

No. 69435.

Court of Criminal Appeals of Texas En Banc.

Sept. 14, 1988.

William W. Burge, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Timothy G. Taft, J. Sidney Crowley and Glenn Gotschall, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the Court En Banc.

OPINION

CLINTON, Judge.

Appellant's first conviction for the offense of capital murder as proscribed under V.T.C.A. Penal Code, § 19.03(a)(2), was reversed by this Court for error committed during voir dire. Perillo v. State, 656 S.W.2d 78 (Tex.Cr.App.1983). Appellant has now been tried and convicted a second time. Once again the jury answered special issues affirmatively and the trial court assessed her punishment at death. Article 37.071, V.A.C.C.P. The cause is before us again on automatic appeal. Appellant raises five points of error. We will affirm.

Although appellant does not attack sufficiency of the evidence, a recitation of the facts will aid our disposition of her first three points of error. The evidence presented at appellant's trial parallels that adduced at the separate trial of her codefendant, Mike Briddle, which we summarized in Briddle v. State, 742 S.W.2d 379, 381-82 (Tex.Cr.App.1987).

On the night of March 3, 1980, Sergeant Harold McMillian of the Denver Police Department was "hailed" by appellant on a downtown street in Denver, Colorado. As she approached McMillian's patrol car, appellant told him that "[she] and Mike killed two Bobs in Texas." Appellant was transported to police headquarters where she elaborated upon this statement in a full confession. The story she told, as supplemented by the physical and forensic evidence and testimony of other witnesses at her trial (excluding the testimony of Linda Fletcher, whose testimony we will treat individually in relation to point of error one), follows.

In order to avoid apprehension for an aggravated robbery, Briddle fled California with his wife, Linda Fletcher, and hitchhiked to Texas. Appellant, who had also participated in the robbery, joined the two en route in Tucson, Arizona. Eventually this troika landed in Houston, where on the evening of Friday, February 21, 1980, the first "Bob," Robert Banks, picked them up in his van as they were hitchhiking near the Astrodome. Banks was in the process of moving his belongings from an apartment to a house, and made the fatal mistake of offering to compensate the three for helping him with the move. For two nights they stayed with Banks. On Saturday evening Banks and his three guests went to a rodeo at the Astrodome. Returning to Banks' new abode, they found the second "Bob," Bob Skeens, a friend of Banks' from Louisiana, waiting for them. Skeens had arrived in his green Volkswagen.

Sunday morning, February 23, Banks and Skeens arose early and left the house to fetch coffee and donuts. While they were out, Briddle and appellant secured an M-1 rifle and a .45 caliber revolver, respectively, that belonged to Banks. When "the two Bobs" returned, Briddle and appellant "pulled the guns on them and told them to lay down." Skeens immediately complied, but Banks, suspecting a joke, did not. Briddle struck Banks on the side of the head with the rifle, knocking him down and causing him to bleed "pretty bad." Appellant and Briddle then bound their victims, hands and ankles, with nylon rope. Skeens' ankles were later untied, and he was forced to walk to a back bedroom, where he was rebound. Back in the livingroom, a piece of rope was wrapped twice around Banks' neck, and, in appellant's words, "one of us pulled on one end and the other pulled on the other end" for about ten minutes. They knew this had killed Banks because "we felt his heart beat and he wasn't breathing. He was spitting up blood and blood was coming out of his nose."

After Banks was thus dispatched, Briddle, appellant and Fletcher all began to load Skeens' Volkswagen with various items taken from the house, including the M-1 rifle and the .45 revolver, plus a shotgun also belonging to Banks. Also taken were a camera and a radio/cassette player. Within an hour of Banks' death, ignoring Skeens' pleas to let him live, Briddle and appellant killed him in the same grisly manner. ¹ According to appellant's confession, although Fletcher viewed the bodies afterwards, she was not present when the killings occurred.

The three fled to Dallas in the Volkswagen, where they abandoned the car in a downtown parking garage and purchased bus tickets to Denver. Banks' shotgun was left in the Volkswagen. Once in Denver, appellant and Briddle pawned the radio/cassette player and sold the M-1 rifle to a patron in a bar. The .45 revolver was also sold but apparently never recovered. The camera could not be pawned and was later found in a search of appellant's hotel room. Eventually appellant contacted the Denver police because, as she put it, "I want to stop running and get my son back." The bodies of Banks and Skeens were discovered by Houston police when Banks failed to show up for work after three days. The pants pockets of each had been turned out and their wallets were missing.

In her first point of error appellant maintains she was denied effective assistance of counsel. Her argument appears to be two-fold. First she contends that the trial court erred in failing to inquire into the existence of a conflict of interest on the part of lead defense counsel when the court knew or should have known that a particular conflict existed. See Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); Cuyler v. Sullivan, 446 U.S. 335, at 347, 100 S.Ct. 1708, at 1717, 64 L.Ed.2d 333, at 346 (1980). As appellant points out in her brief, there is some suggestion in Wood v. Georgia, 450 U.S. 261, at 272, n. 18, 101 S.Ct. 1097, at 1104, n. 18, 67 L.Ed.2d 220, 230-31, n. 18 (1981), that when the mere possibility or potential for a conflict of interest is or should be apparent to the trial court, an affirmative duty to inquire arises. See also Ex parte McCormick, 645 S.W.2d 801, at 805, n. 15 (Tex.Cr.App.1983). At any rate, she continues, though she made no objection at trial, she is entitled to a reversal because an actual conflict was shown to exist which adversely affected her counsel's performance. Cuyler v. Sullivan, 446 U.S. at 348, 100 S.Ct. at 1718, 64 L.Ed.2d at 346-47; Gonzales v. State, 605 S.W.2d 278, 282 (Tex.Cr.App.1980).

Specifically, appellant contends that her attorney, James Skelton, was hampered in his ability to crossexamine Linda Fletcher, an accomplice witness at appellant's trial, because he had earlier represented Fletcher in her own aggravated robbery trial stemming from the same transaction. ²

Prior to Fletcher's direct testimony a brief hearing was held out of the presence of the jury. There it was shown that Fletcher had initially been charged with capital murder but was later recharged with and convicted of aggravated robbery; that she had been assessed five years' probation which had already been successfully completed; that Skelton had indeed represented her at that trial, but no attorney/client relationship between them currently existed; and that she had other counsel present advising her at appellant's trial. That other counsel, Will Gray, informed the trial court:

"... I have instructed her that she should assert her attorney/client privilege as to any privileged communications between her and Mr. Skelton based on his prior representation and she intends to do that, I believe."

The trial court responded, "I guess we will meet that matter when it arises." Thus it appears true that the trial court failed to make a detailed inquiry at the first moment it should have appeared that a potential for conflict of interest existed. Nevertheless we perceive no basis to reverse the judgment, for as matters developed it became clear there was no actual conflict.

Taking Fletcher on crossexamination, Skelton first elicited that not only had he been appointed to represent her at her own trial for aggravated robbery, but he had since become her personal friend and had even flown out to California to attend her wedding when she remarried after her marriage to Briddle was annulled. She also acknowledged that during her trial they had decided she should not testify, and that Skelton had therefore found no need to discuss "the facts of the case with [her] because [he] had read the file and knew what had transpired and didn't need to know [her] testimony." Skelton was instrumental in obtaining Fletcher's presence for the State at Briddle's trial, but did not hear the testimony she gave there. In fact, Skelton never discussed with Fletcher the details of the morning of the killings until the night before she took the stand at appellant's trial:

"Q As a matter of fact, you and I sat down [last night] and went through part of what you had testified to. Correct?

A Yes.

Q And I outlined for you the sort of things I was going to go into on cross examination. Correct?

A Yes.

Q Now, the reason I am going through that elaborate explanation, there is nothing in the things I am fixing to go through with you that I have discussed with you last night that ever came about in our attorney/client relationship with you. Correct?

A Yes."

Appellant likens her situation to that in United States v. Martinez, 630 F.2d 361 (CA5 1980). The government called a witness at Martinez' trial who had not been on its witness list and whom his trial counsel had represented in a prosecution arising from the same transaction. Counsel informed the court that to thoroughly crossexamine the witness would require a breach of attorney/client confidence and that his discomfort with this "might impair his effectiveness in representing Martinez." Id., at 362. The court required counsel to proceed, and he conducted an apparently "vigorous" crossexamination, even seeming...