Finally, chemist Donald Thain testified that he didn't find any trace of blood on DeLuna's white dress shirt, black slacks, shoes, and the cash bills found in his pocket.81 Schiwetz took Thain through the following explanation:
Q. I'm showing you now what's marked as Exhibit 16, being these pants. Presume for a moment that the person got some blood, some blood dripped off a person who had been stabbed and dripped onto these pants somewhere and presume that that person laid down in one gutter and that in that gutter there was water and when this person got up, their pants were soaking wet. Would that have any influence on whether you found blood on them?
A. Yeah. As I say, if it was fresh blood, it would—when water gets on fresh blood, it would wash away pretty easily.
Q. Same regarding the shirt . . ., if it was being worn by a person who was lying in a gutter with some water on them, could the blood, if there was any wash out that way?
A. It could.
Q. Would it be difficult or easy?
A. It would—as the water gets on the, you know, blood, and its fresh, it would go out pretty good.82
Schiwetz asked a similar question, and got a similar answer, regarding DeLuna's shoes.83
Cross-examined by Lawrence, Thain testified that blood that had dried on the cloth shoes, shoe laces, shirt, and pants would not come out with water, and that small smears and spatters would likely dry quickly in those kinds of porous cloth.84
He offered no explanation for the absence of blood on the cash found in DeLuna's pocket.
* * * * *
Early Monday morning, Schiwetz called his star witnesses—the ones who Mejia had corralled near the ice machine where they shared descriptions and discussed whether to do the "show-up" identification at the scene.85
George Aguirre testified first. There was no "doubt in his mind," he said, that the shirtless and handcuffed man police brought to the gas station in the back of a squad car was the same one86 he'd seen outside the Sigmor store carefully situating a large, open lock-blade knife in his left pants pocket before asking Aguirre for a ride to the Casino Club.87
Logically, the next step in the examination was to ask Aguirre to point to the man in the courtroom who he'd seen at the gas station with a knife. But at an earlier hearing where no jury was present, Aguirre had been unable to identify DeLuna, who was sitting at a table a few feet away with his lawyers.88 With a jury in the courtroom, Schiwetz didn't even ask Aguirre to try.
On the manhunt tape, the description from Aguirre indicated that the man he saw wore a white long-sleeved t-shirt or thermal shirt and blue jeans.89 But by the time of trial, Aguirre's description tracked the one he'd discussed by the ice machine with the insistent Julie and John Arsuaga:90 white button-down shirt and "dark blue" or "black" pants.91 Lawrence didn't have the manhunt tape. He didn't cross-examine Aguirre on the point.
Lawrence did question Aguirre's claim that, after he left the gas station and got on the SPID freeway, he was able to look across six other lanes of highway traffic and down off the elevated SPID roadway into the recesses of the Sigmor store and see Wanda struggling with the man he'd encountered outside the store—all while driving at expressway speeds.92
Donald Thain, Texas Dep't of Public Safety Blood Analyst, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 366–73 ("Q. And did you inspect these shoes to see if they had any blood on them? A. Yes. Q. And did they? A. No. . . . Q. Okay. Did you inspect this shirt to see if it had blood on it? A. Yes. Q. Were you able to determine if there was any? A. I could find no blood on it. . . . Q. Did you inspect these pants to see if you could find any blood on them? A. Yeah. I could find no blood on them."; testifying to the same conclusion with regard to the cash found on DeLuna's person at the time of his arrest);
Stipulation of the Parties, Trial Transcript, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 331 ("The State has announced that its intention is to call Mr. Don Thain . . . of the [Texas Department of Public Safety], whose testimony will be to the effect that there was no blood found on any of these items [of clothing belonging to Carlos DeLuna and the cash found on his person].").
Donald Thain, Texas Dep't of Public Safety Blood Analyst, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 370–71.
Donald Thain, Texas Dep't of Public Safety Blood Analyst, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 370 ("Q. Presume for a moment that as a hypothetical matter that these [shoes] did have some blood on them, on the bottoms, and that a person wearing them then ran several blocks and that at least portions of the area where he was running had water in the gutters and the like and he stepped in it. Would that have any effect on whether you found blood on it or not? A. Well, fresh blood, particularly if it hadn't dried yet, would come off very easily in water.").
Donald Thain, Texas Dep't of Public Safety Blood Analyst, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 372–73:
Q. Sir, how long does it take for blood to dry?
A. It depends on a number of variables. One is say how humid it is; two is how thick or how much blood, is it just a light smear or is it a very heavy clot . . . .
Q. Well, could you give me a time frame, seconds, minutes?
A. It—as I say, it depends. A very light smear would dry I suppose within a few minutes on a hot, dry day and blood which is in a very humid condition perhaps wouldn't dry at all.
Q. Is blood itself one of the most difficult stains to get out of clothing?
A. . . . If a blood stain is dried on clothing and it's allowed to stay there for a good length of time, it probably wouldn't come out with water . . . . Well, like, for instance the shoes, the plastic part [into] which [blood] wouldn't penetrate, it would probably be less adherent to other parts of it than, say [to parts] which are cloth and it would penetrate and be—it wouldn't come out quite as easily. . . .[T]he shoe lace is porous and it would penetrate . . . .
Steven Fowler, Corpus Christi Police Officer, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 42 ("I advised him [Officer Mejia] to grab every witness he could and take them over beside the side of the station and isolate them and try to get some information and put out a BOLO as quick as he could.");
Bruno Mejia, Corpus Christi Police Officer, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 66, 67–68 ("Okay, at that point, there were several people starting to crowd around. I asked each and every one of them if they had seen anything and if they didn't, to please leave, that this was a crime scene and we could not disturb it in any way and I then secured the witnesses who were there at the scene."; "we try to get—there was a suspect, where it was male or female, that's very important; whether there was a vehicle involved or not . . . then I find out what he was wearing, what he looked like, get a physical on him; all this information is being fed to me by the witnesses, and then as soon as they give it to me, I put it over the air").
George Aguirre, Witness to Events Outside Shamrock Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 229–30 :
Q. Now, how is it that you went over to see the man?
A. I went over there and they had him standing up and they had flashlights to him and they told me if I had seen him before and I identified him as the guy I had seen earlier.
Q. Did they tell you or did they ask you?
A. They asked me. . . .
Q. Now, was there anything different about the man the second time you saw him from the first time you saw him?
A. He didn't have a shirt on.
Q. Was that the only difference?
Q. Are you sure the man you saw there that the police showed to you was the same man you had seen earlier?
Q. Any doubt in your mind?
George Aguirre, Witness to Events Outside Shamrock Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 222–23, 225–26 ("Q. Did you notice anything else about this particular individual? A. That when I was looking at him, you know, through the corner of my eye, I saw him putting a knife in his left pocket open, the blade was—I saw him holding it by the blade and putting it in his left pocket.; "Q. Now, did the man say anything to you? A. He was asking for a ride to the Casino Club on Port. Q. Can you tell the Jury approximately what he did say? A. He asked me like if I could give him a ride to the Casino Club on Port and told me he would give me money or drugs or, you know, whatever I needed, beer, anything.").
See supra Chapter 3, note 111 and accompanying text.
Bruno Mejia, Corpus Christi Police Officer, Supplementary Report (Feb. 4, 1983) at 2 ("I contacted Witness #2, George Aguirre, who advised me that . . . he observed a Hispanic male, approximately 5'7" to 5'9", wearing a white shirt (long-sleeve), untucked, and dark pants.");
George Aguirre, Witness to Events Outside Shamrock Gas Station, Statement to Corpus Christi Police Dep't (Feb. 4, 1983) ("Hispanic male, five feet ten inches tall, one hundred and seventy-five pounds, dark hair, about twenty three or twenty four years old. He had on blue pants and I think a white long sleeve shirt.");
see supra Chapter 2, notes 79–81 and accompanying text (discussing Mejia's BOLOs, at 8:16:36, 8:22:32, and 8:32:09 p.m., which include additional information—evidently from Aguirre because it conflicts with Baker's consistent description that night of a grey sweatshirt and red flannel jacket, and the Arsuagas' consistent descriptions of a white button-down dress shirt, and is consistent with Aguirre's written statement and Officer Mejia's contemporaneous written description of what Aguirre told him—that the shirt the suspect was wearing was a "white long-sleeve T-shirt"); supra Chapter 2, Figure 3 (documenting Aguirre's changing descriptions of the clothing of the man he saw, which originally referred to a white long-sleeve t-shirt and blue jeans, consistent with the descriptions given throughout by Kevan Baker, but later changed to a long-sleeve button-up shirt with rolled up sleeves and black or dark blue pants, tracking the descriptions given throughout by John and Julie Arsuaga).
George Aguirre, Witness to Events Outside Shamrock Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 224, 235–36 ("A. Like a dark blue pants or black, it was a dark color, and a white shirt rolled up to the elbows."; "A. The shirt was a white one, long sleeves that was rolled up to the elbows. Q. Okay, Could you tell more or less what type of a shirt? By that I mean was it a dress shirt, a sport shirt? A. Like a button-up. Q. It would be just a regular white shirt that a person would wear and maybe put a tie on? A. Yeah. Q. A white dress shirt. Did it have any colors in it? A. No, it was white.");
see also George Aguirre, Witness to Events Outside Shamrock Gas Station, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 20 ("A. Black pants like—what is it, double knit like black double knit pants. . .Q. What kind of shirt was he wearing? A. A white one. The sleeves, I don't know if they were short sleeves or what, but they were—it was like rolled up past the elbow . . . . [I]t was a button-up.").
George Aguirre, Witness to Events Outside Shamrock Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 227–28 ("Q. What did you do [after speaking with Wanda Lopez]? A. I got in my van and I got on SPID—well, I got on SPID on the access road and came underneath down by Ayers and went under the underpass and got back on the freeway going towards the mall and when I was passing by, I saw that—the person I was talking about earlier struggling with the lady that was working at the Shamrock. Q. You could see that from the—A. From the other side of the freeway, I looked across and I saw them.");
George Aguirre, Witness to Events Outside Shamrock Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 232–33:
Q. After you left the Sigmor and drove back under Ayers and came back heading east on SPID, did you look over toward the Sigmor Service Station?
Q. Could you—did you have a good view from the—the roadway there?
A. Yes. . . .
Q. And how fast were you going, sir?
A. Sir, I was just getting on the freeway.
Q. Okay. And I'm sure you were looking over there and you were looking at traffic and you were looking where you were going to, at the same time; would that be fair to say?
A. Well, I was looking at the Shamrock because, you know—
Q. Okay. I realize that, but you were also—you had your attention on getting on the freeway and not having a wreck and driving in the right lane, weren't you?
See supra Chapter 2, note 87 (describing the implausibility of Aguirre's testimony, given the layout of the SPID freeway and its relationship to the gas station).