HRLR
Los Tocayos Carlos
Chapter 13
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All Chapter 13 Footnotes

John Arsuaga testified next. He identified DeLuna in the courtroom as the man he'd seen jogging past the Phase III nightclub.93 He explained that, on the night of Wanda's attack, he went back to the police station and selected a photo of DeLuna from a group of six Hispanic males.94 John was "sure" the man in the photo was the same man he'd seen "running earlier that night."95 A little later, Julie Arsuaga also identified DeLuna. As usual,96 Julie gave the most detailed description of the well-dressed jogger's attire: white dress shirt, unbuttoned and "untucked," flapping in the wind, with "black or dark blue" slacks.97 John's description had been similar.98

Again, however, Lawrence didn't have the manhunt tape, and didn't hear Mejia's remark that the Arsuagas seemed to be describing "another man," different from the one Baker saw fleeing the store.99 The defense lawyer didn't realize that the Arsuagas' testimony helped his well-dressed client by placing him blocks away when Baker came face-to-face with the scruffy assailant in the Sigmor doorway. Instead, Lawrence spent much of the trial attacking John and Julie's photo identification of DeLuna.100

When Schiwetz called Kevan Baker to the stand, the prosecutor noted that the car salesman was "a little nervous" and urged the reluctant witness101 to "slow down" so the jury could follow him.102 Calming himself, Baker identified DeLuna—the "gentleman that's sitting right here in front of me"—as the man he'd met at the gas station door after watching Wanda struggling to break free of his grasp.103 Baker said that when he identified the suspect in the gas station parking lot later that night, he was sure the man was Wanda's attacker.104

It came out during Baker's testimony that he had originally told Mejia that the attacker wore a red flannel jacket,105 had the unkempt look of a "transient,"106 sported a mustache,107 was in his mid-twenties,108 and fled "east" only a few steps before turning and going north "behind" the Sigmor.109 Baker volunteered that DeLuna's face had cuts and scratches on it at the show-up, unlike the face of the man he saw running out of the store.110

Guided by Schiwetz's follow-up questions, however, Baker said he no longer remembered the "kind" of shirt the attacker wore111 or where he went after exiting the door and turning "east."112

Without the manhunt tape, Lawrence couldn't refresh Baker's recollection with the descriptions Baker had given—and Mejia's BOLOs had repeated nines times—of a man in a grey sweatshirt and red flannel jacket running north.

* * * * *

As one witness after another identified him, the "twenty-year-old Carlos DeLuna sat calmly, taking notes on a legal pad," Boudrie reported to her Newswatch 10 listeners.113

Later, Boudrie told the private investigators that the I.D. witnesses hadn't impressed her, either. Even though she "had a tendency" at the time "to be very much believing of the prosecution, not wanting to question it as much" as the defense,114 Boudrie remembered thinking that "all they had" was a bunch of witnesses saying "'boy, he ran by,' and whoever ran by ran by really quickly."115

Boudrie recalled being outside the Sigmor Shamrock store herself, filming a report and "visualizing where [the witnesses] supposedly were when they saw it."116 "How good a look of [the man] would they have gotten at night?" she remembered thinking.117

Boudrie had just come to Corpus Christi. She'd "never met that many Hispanic people. And I'm thinking, if I was there in the gas station and I see a Spanish guy running by, would I be able to I.D. him? I don't know."118

See portions of cross-examination of witnesses John and Julie Arsuaga and Olivia Escobedo and closing argument of James Lawrence cited and quoted supra Chapter 11, note 212.

See supra Chapter 2, note 8 and accompanying text.

Kevan Baker, Eyewitness to Attack on Wanda Lopez, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 265–66 ("Q. When you pulled in, can you tell the Jury what you did. A. [lengthy answer presented in a single sentence] . . . . Q. Okay. You need to slow down just a little bit and let me ask the questions. A. Okay. Q. And give me one answer at a time. A. Okay. Q. Are you a little nervous? A. Yes. Q. Just try and slow it down a little bit and we will get it all out. All right? A. Okay.").

Kevan Baker, Eyewitness to Attack on Wanda Lopez, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 278–79 ("Q. Do you see him in the courtroom today? A. Yes. sir. Q. Okay. Could you point him out for the Jury? A. The gentleman that's sitting right here in front of me (indicating). Q. Okay, what's he wearing? A. A blue blazer, yellow shirt, tie. Q. There's two of us wearing blue blazers, yellow shirt and ties. A. Okay, the gentleman next to the man with the tan suit on. Mr. Schiwetz: Could the record reflect he has identified the Defendant, Your Honor? The Court: All right").

Kevan Baker, Eyewitness to Attack on Wanda Lopez, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 278 ("Q. Now, when you got over there, did they show somebody to you? A. Yes, sir. Q. And were you able to identify the person? A. Yes, sir. . . . Q. Was it the same person you had seen earlier? A. Yes, sir. Q. Are you sure? A. Yes, sir.").

Kevan Baker, Eyewitness to Attack on Wanda Lopez, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 276–77 ("Q. And do you remember what kind of description you did give them [the police]? A. Yes, I said something red with flannel or something flannel with red in it . . . .").

Kevan Baker, Eyewitness to Attack on Wanda Lopez, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 286 ("Q. That person that you had seen earlier at the station, would you describe him as a—looking like a transient? A. Yes, sir, I would. Q. A transient being a person that—well, what is a transient to you? A. To me a transient is somebody unshaven, I mentioned looking hungry, clothes weren't all, you know, really pressed or super neat and clean."); see Kevan Baker, Eyewitness to Attack on Wanda Lopez, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 41–42 ("That night I saw him I would say he had been someone who had been on the street and was very hungry. Q. Okay. Would you describe in these words the man that you saw on the 4th of February as maybe a transient? A. Yes. More so than a local citizen"; "the night I saw him he looked like a transient").

Kevan Baker, Eyewitness to Attack on Wanda Lopez, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 273–74 ("Q. Did you notice any facial hair? A. Yes. Q. How much? A. Quite a bit. Q. Okay, describe it for us. A. [T]o me it looked like he was either starting a beard or that was—you know, he just hadn't shaved in, you know, ten days, a couple weeks. Q. Did he have a moustache? A. Yes . . . .").

Kevan Baker, Eyewitness to Attack on Wanda Lopez, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 274 (giving the man's age as "Twenty four, 26.").

Kevan Baker, Eyewitness to Attack on Wanda Lopez, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 281–82:

A. He ran to the left—it would be to my right or to his left in an easterly direction. . . .

Q. Now do you remember making a statement in this particular case, giving the police a statement?

A. In the sense of afterwards and going down town—

Q. Yeah.

A. —yes, sir.

Q. And it was basically that same night, was it not?

A. Yes, sir.

Q. Okay. Do you recall in your statement that you said that the person, after he got out the door and talked to you, that you said he ran off behind the station?

A. Yes, sir.

Q. Okay. Behind the station, when we use the word "behind," we're talking about the back and now you're saying he's moving eastward.

A. Yes, sir.

Q. Or did he go eastward and then turn around and go up the—behind the station.

A. I would say you said it correctly that time.

Kevan Baker, Eyewitness to Attack on Wanda Lopez, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 278 ("Q. Was there anything different about this person when you saw him the second time from the time you saw him the first time? A. Yes, sir, he had more scratches on him or had scratches on him and no shirt.").

Kevan Baker, Eyewitness to Attack on Wanda Lopez, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 272, 273–74 ("Q. What kind of shoes was the man wearing? A. I have no idea. Q. What kind of pants? A. No idea. Q. Shirt? A. No idea."; "A. Apparently, to me it looked like he was either starting a beard or that was—you know, he just hadn't shaved in, you know, ten days, a couple weeks. Q. Did he have a moustache? A. Yes, he had—the most hair he had on his face was the moustache area.");

Kevan Baker, Eyewitness to Attack on Wanda Lopez, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 276–77:

Q. Were you able to give them any kind of a description as to what he was wearing?

A. Yes, I tried to, but I just don't really remember, you know, if it was right or not, you know, because I was trying to be helpful as much as possible.

Q. And do you remember what kind of description you did give them?

A. Yes, I said something red with flannel or something flannel with red in it and dark pants.

Q. When you say "flannel," what do you mean by that?

A. Well, I couldn't—you know, I don't know what else to describe something with red in it, it wasn't really a red T-shirt that I saw, you know, with red in it or something like that, it was—seemed more like a shirt to me.

Q. Do you really have any kind of recollection about what kind of shirt the man was wearing?

A. Not really, no.

Q. Do you remember what his face looked like, though?

A. Yes, sir.

Kevan Baker, Eyewitness to Attack on Wanda Lopez, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 270 ("The gentleman [assailant] had the lady—apparently knew I was there and trying hard to get her into the back of the store and as I turned and saw them and started walking toward the door, he threw her down and proceeded to meet me at the door. . . . We just looked each other face to face and he made the comment, 'Don't mess with me,' and proceeded to run around the door. I was standing here on the curb or just off the curb and he come around and said, 'Don't mess with me,' and took off in an easterly direction.");

Kevan Baker, Eyewitness to Attack on Wanda Lopez, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 271 ("Q. Did you actually see where he went? A. No, I didn't.").

Transcribed Videotape of TV Station Archive Tapes on Wanda Lopez Homicide, KZTV Channel 10, Feb. 4, 1983 Archive Tape on Wanda Lopez Homicide, Vargas v. Diamond Shamrock, No. 84–4951-D, 86–5900-D (Nueces Cty., 105th Dist. Tex. 1988) at segment 3 ("20-year-old Carlos DeLuna sat calmly, taking notes on a legal pad as the witnesses testified.").

Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 1:25:28 ("I had a tendency, I think, at that time, to be very much believing of the prosecution, not wanting to question it as much. I didn't understand what Brady material was and things like that, that I might have dug a little bit harder down the road.").

Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 02:05:24:

I remember thinking that, in some respects, that all they had was witness identification. I remember reporting and all the same, boy, he ran by, and whoever ran by ran by really quickly. And for people to identify him, could I do that? I don't know that I could. I mean, I'm coming to this town for the first time, being immersed in the Hispanic culture. I've never met that many Hispanic people. And I'm thinking, if I was there in the gas station and I see a Spanish guy running by, would I be able to I.D. him? I don't know. But I remember thinking that's some pretty flimsy evidence. But none of us knew at that time that there were actually conflicting witness statements. That never came out. And to hear that later just really, really bothers me. It absolutely bothers me that the defense never had the opportunity to put a case on with that as the crux of it, to really be able to attack the witness identification. But in any event, I remember thinking that that was amazing, that that's all they had. But the fact that they caught him hiding nearby, under a car, you started to think he was there, they caught him hiding nearby.

Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 2:15:38–2:19:00:

Q. I want you to take us . . . through your impression of the eyewitnesses. How much evidence you thought was there from what the eyewitnesses themselves were able to see and do.

A. It's funny that you're asking me because . . . More so than any other trial I have ever covered, I remember where they say the witnesses were standing. I can visualize the Diamond Shamrock station as if I'm facing the front of it, off to the right. And there was one witness over here who says Carlos ran this way towards them, or Carlos Hernandez, whichever person they thought they saw. I can remember visualizing where they supposedly were when they saw it. I guess I was really trying to figure out what kind of a glimpse, or how long they would have really seen this person. It's funny that you ask me that, because I remember that. I remember thinking, and being out there, shooting the store myself, standing where they were and thinking, how good a look of them would they have gotten at night, and this is kind of flimsy. I remember putting myself in their shoes and trying to get a perspective of how they would have seen him and what kind of look they would have gotten. I remember visualizing that. Because that was the—it—that was the crux of the prosecution's case, that they identified, supposedly, Carlos DeLuna. I remember the defense did ask, "It was a few seconds, are you positive?" I remember those types of question[s]. And yet, he was still convicted.

Q. At the end of the day, what did you conclude about the quality, the reliability, or the impressiveness of the eyewitness identification?

A. . . . [A]t the time, I do remember, at the end of the day, being doubtful. I still think, despite being green and being more understanding about witnesses now, I had some doubt that these were good I.D.'s. I don't think they were that convincing. And they were so brief. And I remember thinking, I'm glad I'm not on the jury convicting this guy.

Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 2:15:38:

More so than any other trial I have ever covered, I remember where they say the witnesses were standing. I can visualize the Diamond Shamrock station as if I'm facing the front of it, off to the right. And there was one witness over here who says Carlos ran this way towards them, or Carlos Hernandez, whichever person they thought they saw. I can remember visualizing where they supposedly were when they saw it. I guess I was really trying to figure out what kind of a glimpse, or how long they would have really seen this person. It's funny that you ask me that, because I remember that. I remember thinking, and being out there, shooting the store myself, standing where they were and thinking, how good a look of them would they have gotten at night, and this is kind of flimsy. I remember putting myself in their shoes and trying to get a perspective of how they would have seen him and what kind of look they would have gotten. I remember visualizing that. Because that was the—it—that was the crux of the prosecution's case, that they identified, supposedly, Carlos DeLuna.

See supra note 116.

Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 02:05:24:

I remember thinking that, in some respects, that all they had was witness identification. I remember reporting and all the same, boy, he ran by, and whoever ran by ran by really quickly. And for people to identify him, could I do that? I don't know that I could. I mean, I'm coming to this town for the first time, being immersed in the Hispanic culture. I've never met that many Hispanic people. And I'm thinking, if I was there in the gas station and I see a Spanish guy running by, would I be able to I.D. him? I don't know. But I remember thinking that's some pretty flimsy evidence.

John Arsuaga, Witness to Man Running Near Shamrock Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 250 ("Q. Do you see that man in the courtroom today? A. Yes, I do. Q. Could you point him out for the Jury? A. Third over from the left. Mr. Schiwetz: Could the record reflect the Defendant is sitting third over from the left, Your Honor? The Court: (Nods head affirmatively.)").

John Arsuaga, Witness to Man Running Near Shamrock Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 248–50:

Q. Now, can you tell the Jury how she showed you those pictures, the way she showed them to you?

A. Well, she showed me a folder, it had six pictures in it, they were two across three down.

Q. Now, when she showed you these photographs, did she tell you which one to pick out?

A. No, she didn't.

Q. Did she give you any kind of help at all?

A. No.

Q. Did she make any kind of suggestions as to who you should pick out?

A. No.

Q. Did they say the other witnesses have picked out this guy or that guy or anything like that?

A. No, she didn't.

Q. The pictures you looked at, these six pictures, were they all of the same sex?

A. Yes, they were.

Q. And what sex is that?

A. Male.

Q. Were they all of the same ethnic origin?

A. Yes, they were.

Q. And what was that?

A. Hispanic.

Q. Were they all approximately the same age?

A. Yes.

Q. Did they have other distinguishing characteristics that were similar?

A. Facial hair.

Q. Did they all have some facial hair or no facial hair or full beards or what?

A. They all had a fair amount of facial hair.

Q. Okay, when you say "fair amount," do you mean they had full beards or they had little moustaches or goatees or what? Do you recall?

A. I can't really be sure.

Q. Were you able to pick out one of the photographs?

A. Yes, I was.

Q. And whose photograph was it?

A. Carlos De Luna's.

Q. Now, that photograph, are you sure the photograph you picked out was the same man that you had seen running earlier that night?

A. Yes, I was.

Q. Do you see that man in the courtroom today?

A. Yes, I do.

Q. Could you point him out for the Jury?

A. Third over from the left. Mr. Schiwetz: Could the record reflect the Defendant is sitting third over from the left, Your Honor?

John Arsuaga, Witness to Man Running Near Shamrock Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 250 (answering "yes" when asked if he were "sure the photograph [he] picked out was the same man [he] had seen running earlier in the night").

See supra Chapter 2, notes 98–99 and accompanying text.

Julie Arsuaga, Witness to Man Running Near Shamrock Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 349:

Q. Were you able to see what kind of pants he was wearing or what color they were?

A. Uh-huh.

Q. What color were they?

A. I mean I can't say the exact color, but they were either black or dark blue and they were, you know, the kind of pants that you wear like if you were working in a garage or something.

Q. And what color was the shirt, if you recall?

A. White.

Q. Was it a T-shirt, a long sleeve shirt, what?

A. It was like a shirt that you would wear with—kind of like—you know, a blouse and the sleeves were folded up and it was untucked and, you know, because I could see the side of it, you know, going beside him as he was running.

See also John Arsuaga, Witness to Man Running Near Shamrock Gas Station, Statem`ent to Corpus Christi Police Dep't (Feb. 4, 1983) (describing the man he saw running east away from the Sigmor station: "he was wearing a light colored shirt; dark colored slacks");

Bruno Mejia, Corpus Christi Police Officer, Supplementary Report (Feb. 4, 1983) at 1–2 ("I then contacted Witness #1, Kevin Baker, who advised me that [he saw a] . . . Hispanic male, approximately 5'7" to 5'9", wearing a light colored shirt and dark pants. 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. I then contacted Witnesses #3 and #4, John and Julie Arsuaga, who were together . . . they both advised me that they observed a Hispanic male, approximately 5'7" to 5'9", dark hair, wearing a white long-sleeve shirt untucked and unbuttoned, running across the Phase III parking lot");

Julie Arsuaga, Witness to Man Running Near Shamrock Gas Station, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 92:

He [the man she saw running east away from the Shamrock station] was wearing dark pants . . . it was dark pants like, you know, work pants that you would wear maybe if you were working in a gas station or something like that, and a white shirt that was open; you know because I could see the side of it, kind of flapping back a little bit, might not have been completely unbuttoned, but close to the bottom it was. The sleeve was rolled up, it was a white, you know, blouse-style shirt, you know, something like what you have on.

See also 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 69–70 (describing the "third description" of the shirt worn by the suspect that he received from witnesses that night, which was from "[t]he Arsuagas, Mr. and Mrs. Arsuaga": a "white long sleeve shirt, untucked").

John Arsuaga, Witness to Man Running Near Shamrock Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 251 ("Q. How was he dressed that particular night when you saw him running across that parking lot? A. He had like uniform slacks on with a light colored, long sleeve shirt.");

see also John Arsuaga, Witness to Man Running Near Shamrock Gas Station, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 68 ("He was wearing dark slacks like a uniform-type with a light colored shirt, long sleeve.").

See supra Chapter 2, notes 146–154, 162–163 and accompanying text; Chapter 11, notes 201–210 and accompanying text.

Chapter 13
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