HRLR
Los Tocayos Carlos
Chapter 11
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Hunter then began identifying and preparing the state's witnesses for the trial—Escobedo herself, the first officers at the scene (Fowler, McCoy, Mejia), the arresting officers (Mylett, Rivera, Schauer, Vargas), the cops who organized the show-up identifications in the Sigmor parking lot (Glorfield, Knox, McConley), officers who helped in the scene investigation (Infante) and interviewed witnesses (Garrett, Shedd), police dispatcher Escochea, fingerprint examiner Wilson, Medical Examiner Rupp, several emergency technicians and the doctor and nurse who treated Wanda Lopez on the night she died, Sigmor manager Pete Gonzalez, and witnesses Kevan Baker, George Aguirre, John and Julie Arsuaga, Esther Barrera and Armando Garcia.171

In April and May, Detective Escobedo, I.D. tech Infante, and prosecutor Schiwetz took a momentary detour and worked the Carlos Hernandez angle that Detective Eddie Garza and his informants had identified. Infante took Hernandez's fingerprints, and Escobedo and Schiwetz reviewed Hernandez's rap sheet and those of six other men with the same name.172

Fully expecting the jury to convict DeLuna at the first stage of trial, the prosecutors spent May and June identifying the witnesses and arrest, prison, and parole records they would use to try to convince the same jury, at the second stage of the trial, to sentence Carlos DeLuna to die.173

* * * * *

In the three weeks Lawrence and De Peña had to come up with a defense to the case that two dozen law enforcement officers had spent four months assembling, they found nothing that was helpful to Carlos that they didn't already know about—no witness or other evidence. When Lawrence later submitted an invoice for the work of the investigator the judge had agreed to fund, he had to explain why the investigator went over budget when, in fact, "much of the information developed was not used or, as a matter of fact, was not usable."174

During those weeks, DeLuna was still refusing to name the man he said he saw committing the crime, and Lawrence and DePeña didn't come up with a name themselves or any information that could help them find him.175 The only names DeLuna did offer were those of Linda and Mary Ann Perales, sisters who he claimed to have run into at the skating rink on the night of the killing.176

Linda Perales did indeed know Carlos DeLuna. She and his brother Manuel were junior high sweethearts in the late 1970s and would briefly marry in the late 1990s. Linda was also Pricilla Hernandez's step mother; she would later hear from Pricilla that her uncle Carlos Hernandez had confessed to killing Wanda Lopez and had let Carlos DeLuna take the blame.177

When the out-of-town investigators came to her in 2004, Linda recalled going to the skating rink at SPID and Kostoryz when she was younger.178 But she couldn't remember seeing Carlos DeLuna there on any particular day in 1983, twenty-one years earlier, and thought she had probably been too old by then to be at the rink.179 Linda was sure, however, that no one from either side of the case had approached her in 1983 to ask her about Carlos DeLuna's claim.180

The defense investigator did talk to Linda's sister Mary Ann, who told him she was certain she had not been at the skating rink on the evening of February 4th. She was seven months pregnant then and had attended her own baby shower at her mother's house that very night.181 She said she had photos to prove it.182

Realizing that Mary Ann could only hurt their client's case, Lawrence and De Peña nonetheless subpoenaed her to appear in court at DeLuna's July 1983 trial,183 and they told the state's lawyers what Carlos had said about her.184 The prosecutors promptly sent officers out to interview Mary Ann, who told them as well—after they assured her that DeLuna was a "liar"185—that she was not at the skating rink that night.186 Mary Ann's denial of a detail in their client's story was the only hard information Lawrence and De Peña came up with, and it helped the prosecutors' case.

Application for Subpoena, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Mar. 8, 1983) at 1 (subpoenaing various Corpus Christi police officers to testify against Carlos DeLuna);

Application for Subpoena, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Mar. 8, 1983) at 1 (subpoenaing George Aguirre, Kevin Baker, Armando Garcia, and Theresa Barrera to testify against Carlos DeLuna);

Application for Subpoena, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Mar. 9, 1983) at 1 (similar);

Application for Subpoena, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Mar. 10, 1983) at 1 (subpoenaing Pete Gonzales, the Shamrock store's district manager to testify against Carlos DeLuna);

see also Application for Subpoena, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 16, 1983) at 1 (subpoenaing Nurse Dorothy Gomez, who treated Wanda Lopez on the night of February 4, 1893, to testify against Carlos DeLuna).

See supra Chapter 9, notes 8–9, 50–51, 56–66, 72–105 and accompanying text.

Application for Subpoena of S.O. Woods, Texas Dep't of Corrections, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. May 26, 1983) , at 1 (subpoenaing S.O. Woods, Texas Dep't of Corrections, to provide certain records for use against Carlos DeLuna at the sentencing stage of his capital trial);

Application for Subpoena of Juanita Garcia, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 1, 1983) at 1 (subpoenaing Juanita Garcia to testify against Carlos DeLuna at the sentencing stage of his capital trial);

Application for Subpoena of Lucinda Garcia, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 9, 1983) at 1 (subpoenaing Lucinda Garcia for the same purpose).

Letter from Judge Walter Dunham, Jr. to Judge Robert Barnes (Sept. 27, 1983) at 1 (asking the local judge responsible for paying court-authorized investigators to approve and pay invoice from Investigator Horacio Ortiz based on Lawrence's representation that "the investigation performed by Mr. Ortiz was necessary even though much of the information developed was not used or, as a matter of fact, was not usable.").

See Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:23:29 ("Like I said, the only thing he [Carlos DeLuna] ever cooperated on, the only thing, and this was—we're down to the closing moments of this thing before we went to trial that I was able to persuade him to at least give me a name [Carlos Hernandez's].");

James S. Liebman's Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 3 ("I finally got a name [Carlos Hernandez] from CDL [Carlos DeLuna]. We tried to find him.");

infra notes 263–266 and accompanying text; infra Chapter 12, note 42.

See James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983) at 5–6, 7:

A. We feel there are about four or five witnesses that we have been unable to get ahold of, and I feel the names provided by Mr. De Luna to us and with the investigator working on it, that it's going to take a short period of time in which we can either locate these witnesses or not . . . .

Q. [by prosecutor Schiwetz] Mr. Lawrence, when did you—when did your client first tell you of [the Perales sisters]?

A. I was told of several of these witnesses beginning—it would have to have been after—certainly after May the 15th, and it would have to have been either the beginning of—of June or the latter part of May. I have got—Saturday, this past Saturday [June 4, 1983] when I visited him at the jail, in getting a complete statement from the Defendant which could cover that aspect of it. Up until that point I didn't have any.

Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:01:48 ("[Carlos DeLuna] had indicated that he was not anywhere near the premises, that he had been at a bowling alley with a girl. . . . [W]e were able to hire an investigator who ultimately tried to follow up on the information that our client had given us concerning his whereabouts.");

Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:39:58–12:40:27 ("Q. You described that the young woman who Carlos DeLuna said he was with at the bowling alley or the skating rink that evening had said that she was instead at a baby shower. A. It turned out that the night that this crime had occurred, she was actually having a baby shower for herself somewhere else.");

James S. Liebman's Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 1, 4 ("When Jim [Lawrence] and I first got this case, when we started out, CDL [(Carlos DeLuna) was saying] he wasn't even there. He went to the bowling alley with a girlfriend. It took as a great deal of effort to get CDL to tell us more."; "First, he said he was . . . at roller rink. [But this proved wrong, because the g]irl was having a baby shower [elsewhere that night]. Mary Ann Perales (although [Hector De Peña] at first remembered this as Linda Perales). Our investigator located her.").

See supra Chapter 8, notes 86 and accompanying text.

Peso Chavez's Notes on Interview with Linda Perales Ayala, Step-Mother of Pricilla Hernandez Jaramillo and Ex-Wife of Manuel DeLuna (Feb. 22–26, 2004) at 3 ("'No one ever contacted me about this [DeLuna's claim that he ran into her at the skating rink on the night of the offense] and I didn't even know Mary Ann [her sister] testified [about it].' . . . I asked Ms. Ayala if it was possible that she and her sister gave Carlos a ride on the night in question. She stated, 'I really don't remember because it was so long ago. But it's probably unlikely because in 1980 I got married and I never really saw Manuel or Carlos after that. Then in 1983 I had my 3rd child so I probably I would not have been hanging out with them.'").

Peso Chavez's Notes on Interview with Linda Perales Ayala, Step-Mother of Pricilla Hernandez Jaramillo and Ex-Wife of Manuel DeLuna (Feb. 22–26, 2004) at 3.

Peso Chavez's Notes on Interview with Linda Perales Ayala, Step-Mother of Pricilla Hernandez Jaramillo and Ex-Wife of Manuel DeLuna (Feb. 22–26, 2004) at 3 ("No one ever contacted me about this [DeLuna's claim that he ran into her at the skating rink the night of Wanda Lopez's murder,] and I didn't even know Mary Ann had testified.").

See Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:01:48:

And when we first discussed this with our client he had indicated that he . . . had been at a bowling alley with a girl. And, eventually, we were able to convince the district judge to allow us to hire an investigator, which was like pulling teeth at the time. But we were able to hire an investigator who ultimately tried to follow up on the information that our client had given us concerning his whereabouts. It was later determined that he was not at the bowling alley, but in fact the girl he contended he was visiting with was, in fact, at the time that the crime occurred, having a birthday shower, I mean a baby shower. She was expecting or getting ready to have a child.

Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:39:58–12:41:46:

Q. You described that the young woman who Carlos DeLuna said he was with at the bowling alley or the skating rink that evening had said that she was instead at a baby shower.

A. It turned out that the night that this crime had occurred, she was actually having a baby shower for herself somewhere else.

Q. Where did you learn that information? Was that part of your investigation?

A. That was part of, some of the facts that our investigator came up with as we were trying to, as we were investigating the facts that our client gave us.

James S. Liebman's Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 1, 4 ("When . . . I first got this case, when we started out, CDL [Carlos DeLuna] [was saying] he . . . went to the bowling alley with a girlfriend. It took as a great deal of effort to get CDL to tell us more."; "First, he said he was . . . at roller rink. [But this proved wrong, because the g]irl was having a baby shower [elsewhere that night]. Mary Ann Perales . . . . Our investigator located her. We knew before trial what her testimony would be.");

James S. Liebman's Notes on Interview with James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna (Feb. 25, 2005) (offering Lawrence's opinion that the testimony of Mary Ann Perales damaged Carlos DeLuna's defense);

see also Mary Ann Perales, Witness Against Carlos DeLuna, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 451 ("Q. I want to direct your attention back to the 4th day of February of 1983 and I want to ask you if you had occasion to meet Mr. De Luna here at the Gulf Bowling Alley or Gulf Skating Rink or someplace like that? A. No. I was attending a baby shower. Q. Just a second. Your answer is no? A. No. Q. At any time on that day did you talk to him or run around with him at all? A. No.").

Steve Mills & Maurice Possley, 'I Didn't Do It. But I Know Who Did,' Chi. Trib., June 25, 2006, at 7, available at http://www.chicagotribune.com/news/chi-tx-1-story,0,653915.story?page=5 ("Convinced that De Luna was a liar, Schiwetz had reason to be confident going to trial in July 1983. He effectively destroyed the part of De Luna's alibi that on the night of the crime he was at the roller rink talking to two women. Under Schiwetz's questioning, one of the women testified that she was not at the rink but at her baby shower. And she had photos to prove it.").

See Application for Subpoena of Various Individuals, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 19, 1983) at 1 (subpoenaing, among others, Mary Ann Perales; on the handwritten list of witnesses being subpoenaed, the name "Linda" is written, then crossed out, just above the name "Mary Ann Perales").

Transcribed Videotape Interview with Mary Ann Perales Benavides, Witness Against Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 11:38:40–11:39:06 ("Q. And what else did the police tell you at that point [when they came to interview her prior to DeLuna's trial]? A. Nothing really, just that, you know, they were sorry that I had to go and appear and stuff, and they more or less kind of could tell he was lying, you know. Cause apparently he had mentioned a lot of other people, too, as alibis, and apparently they knew he was lying, but I had to show up anyway. Q. And when you say 'he was lying' you're referring to? A. Carlos DeLuna."); Peso Chavez's Notes on Interviews with Mary Ann Perales Benavides, Witness Against Carlos DeLuna (Feb. 22–26, 2004) at 2:

Sometime prior to trial she [Mary Ann Perales] was contacted and informed that Carlos DeLuna was alleging that her and her sister had given him a ride on the night in question. Ms. Benavidez [Mary Ann Perales] stated, "I don't remember who it was that came to my house and told me I was going to have to go to court and testify. They told me that they knew Carlos was lying but that I would have to testify anyway and that he was trying to make-up other alibi's and none of his stories were making sense."

Sita Sovin & Lauren Eskenazi's Notes on Interviews with Mary Ann Perales Benavides, Witness Against Carlos DeLuna (Sept. 16, 2004) at 3 ("The investigators (police/DA investigators) told Mary Ann 'we know he's [CDL] lying, but we need you to testify.' The investigators said that CDL was lying about other things. Specifically, that he was lying about all kinds of alibis.");

see Arg. of Counsel on Pretrial Mot. for Continuance, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983) at 5–7 ("We feel there are about four or five witnesses that we have been unable to get ahold of, and I feel the names provided by Mr. De Luna to us [i.e., the names of the Perales sisters] and with the investigator working on it, and that it's going to take a short period of time in which we can either locate these witnesses or not."; referring to the Perales sisters as possible "alibi witnesses" identified by DeLuna).

See supra note 184.

Mary Ann Perales Benavides, Witness Against Carlos DeLuna, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 451 ("Q. I want to direct your attention back to the 4th day of February of 1983 and I want to ask you if you had occasion to meet Mr. De Luna here at the Gulf Bowling Alley or Gulf Skating Rink or someplace like that? A. No. I was attending a baby shower. Q. Just a second. Your answer is no? A. No. Q. At any time on that day did you talk to him or run around with him at all? A. No.").

Chapter 11
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