HRLR
Los Tocayos Carlos
Chapter 3
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All Chapter 3 Footnotes

On his walkie-talkie, McConley heard Schauer's broadcast about the arrest. He said to bring the suspect "back" to the Sigmor for a show-up identification.65

Eventually, Schauer arrived with DeLuna in his squad car. He navigated the potholes on the western edge of the Sigmor lot and parked parallel to Dodd Street, directly across from Wolfy's.66 People pressed forward to see the suspect sitting in the rear seat on the gas station side.

Sigmor supervisors Gonzalez and Stange made their way to the sidewalk on the west side of the car, two feet from the vehicle. They traded places every once in a while so each could get a better view inside the car.67 The gas station lighting was poor. It was hard to see the man inside the car.68

* * * * *

When McConley saw the squad car pull in with the suspect, he walked over to the ice machine to talk to the witnesses.69 They already knew the police had a suspect.70

"Here comes a cop," Baker recalled, reliving the scene and replaying the cop's words recalled much later.71 The officer told them, "'We found him. Is this the gentleman? He was hiding underneath a car.'"72 Julie Arsuaga later remembered being told the same thing by the officer.73

McConley asked the four witnesses to go look at the man and see if they could identify him.74

Immediately, all of the witnesses got upset. Everything they'd seen and heard—the man opening a long knife and putting it in his pocket, the threat to shoot Baker, the wound in Wanda's chest, her lifeless body being lifted into the ambulance—told them they didn't want to be anywhere near the guy.75

Julie said what they all were thinking. "No, I don't want to see him."76 It was too dangerous and scary. John refused, too.77 Baker said he just wanted to get his gas and go. He remembered thinking he was lucky to be alive and didn't want to take any more chances.78 The next day he clipped an article from the paper and sent it home to his folks in Michigan with a note saying, "thank God, I didn't die."79 Aguirre also demurred.80

See Eddie McConley, Corpus Christi Police Lieutenant, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 52−53, 55 (“I heard Mr. Schauer come on the radio with his location and that he had a suspect that they had pulled from underneath a truck. He gave me a brief description of him and based on what had been put out over the radio and BOLO and whatever, I instructed him to bring him back to the Sigmor Shamrock Station”; testifying that he (McConley) received this information over a walkie-talkie while he was outside the store in the parking lot);

Mark Schauer, Corpus Christi Police Officer, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 127–28 (“I put out a broadcast that . . . we had picked up a suspect in the area”; “he told me to bring the suspect over to the scene of the crime”).

See Mark Schauer, Corpus Christi Police Officer, Supplementary Police Report (Undated) at 2 (“Lt. McConley contacted me on walkie and advised me to bring the suspect back to the scene so that the witnesses could observe him. I transported the suspect back to the Shamrock on 2806 [sic] South Padre Island Drive and had the suspect sitting alone in the back seat of my unit.”);

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 20−22 (testifying that the identification took place in the gas station parking lot just “off of Dodd” Street);

Eddie McConley, Corpus Christi Police Lieutenant, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 47−48 (describing location of show-up);

Mark Schauer, Corpus Christi Police Officer, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 109−10 (testifying that he (Schauer) pulled into the gas station parallel to Dodd and “witnessed” the show-up from the “driver’s side” of the squad car);

Eddie McConley, Corpus Christi Police Lieutenant, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 48 (affirming that he did assist in a suspect identification that occurred “on the west side of the [gas station] building.”);

Mark Schauer, Corpus Christi Police Officer, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 127−28 (recalling that DeLuna, was alone, “seated in the back seat,” and “handcuffed behind his back”);

Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005) at 15:31:27, 15:37:15–15:38:09, 15:56:00–15:56:35 (describing location of show-up identification; “[W]hen the police car did come back, he pulled around the back and swung in to the wing wall so that he could parallel the side street [Dodd Street]. So he drove through the mud holes, because there was potholes in that area.”);

supra Figure 5 (indicating location of show-up identification on police diagram of crime scene).

See Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005) at 15:31:27–15:33:12, 15:37:15–15:38:09, 15:56:45–15:57:20 (“Sometime after [Wanda] left [in the ambulance], police did bring back [a] car, and in the back sat a gentleman, and he didn’t have his shirt on, and I believe that was the individual”; “Pete [Gonzalez] and myself, we found ourselves over by what we call the [west] wing wall. . . . I remember they brought the [squad] car back, and we kind of wandered over to the car, and there was this gentleman sitting in the back. That was the person they believed did it.”; “I can remember looking at him from, say, about mid-driver’s door. I was about mid-driver’s door and I was about four feet away from him. So that put me about two feet, a foot and a half, from the [car] door. . . . I know that at different times Pete [Gonzalez] and I would trade positions because we wanted to see the individual.”).

See Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005), at 15:47:30–15:48:00, 16:09:47–16:11:48 (stating that he believed the police used flashlights “to help illuminate the face of this individual” because “the lighting at our location at that time was certainly not what it is today, so they would have needed more [light]”; “the light wasn’t sufficient enough to really see him”).

See Eddie McConley, Corpus Christi Police Lieutenant, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 52−53, 56 (“I heard Mr. Schauer come on the radio with his location and that he had a suspect that they had pulled from underneath a truck. He gave me a brief description of him and based on what had been put out over the radio BOLO and whatever, I instructed him to bring him back to the Sigmor Shamrock Station.”; testifying that he (McConley) received this information over a walkie-talkie while he was outside the store in the parking lot).

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 45 (“Q. You knew they had a suspect. A. Yes, we were told they apprehended a gentleman, and would any of us like to possibly make identification or whatever.”);

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 277 (“We were standing over on the east side of the building, the few people that did see what went on, and a police officer came up and asked if we would like to make—if we would like to look at this gentleman they had in the back of the car and see if we could—you know, if we recognized him from before or not. . . .”).

See Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 24:54–26:08, 26:57–28:00 (“One of the police officers did mention to me that we found this guy hiding underneath a car without a shirt on, two blocks north of us or three blocks north of us . . . . The girl [Wanda Lopez] had already been transported away and we were still trying to sort it out, here comes a cop: ‘We found him. Is this the gentleman? He was hiding underneath the car.’”);

Steve Mills & Maurice Possley, ‘I Didn’t Do It. But I Know Who Did,’ New Evidence Suggests a 1989 Execution in Texas Was a Case of Mistaken Identity, First of Three Parts, Chi. Trib., June 25, 2006, http://www.chicagotribune.com/news/chi-tx-1-story,0,653915.story?page=4 (reporting that before any identification, “police told [Baker] they had arrested De Luna hiding under a truck near the scene of the attack . . . .”; quoting Baker saying, “‘The cops told me they found him hiding under a truck.’”).

See Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 24:54–26:08, 26:57–28:00 (“One of the police officers did mention to me that we found this guy hiding underneath a car without a shirt on, two blocks north of us or three blocks north of us. . . . The girl [Wanda Lopez] had already been transported away and we were still trying to sort it out, here comes a cop: ‘we found him. Is this the gentleman? He was hiding underneath the car.’”).

Julie Arsuaga, Aff. (Feb. 13, 2005) at 2 (“A policeman came up . . . and said they had a man they found under a car and that they wanted us to see whether it was the same guy we saw running.”).

See Kevan Baker, Eyewitness to Attack on Wanda Lopez, Statement to Corpus Christi Police Dep’t (Feb. 4, 1983) (“While I was still there [at the Shamrock station], a police car drove up . . . . They asked me if I could identify him.”);

George Aguirre, Witness to Events Outside Shamrock Gas Station, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 20−21 (testifying that police asked the witnesses, “‘Can you identify,’ you know, ‘somebody?’”);

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 45 (“[W]e were told they apprehended a gentleman, and would any of us like to possibly make identification or whatever”);

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 277 (“We were standing over on the east side of the building, the few people that did see what went on, and a police officer came up and asked if we would like to make—if we would like to look at this gentleman they had in the back of the car and see if we could—you know, if we recognized him from before or not.”);

Julie Arsuaga, Aff. (Feb. 13, 2005), at 2 (“A policeman came up . . . and said they had a man they found under a car and that they wanted us to see whether it was the same guy we saw running.”).

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 63−64 (“Q. Did you do that [attempt to identify the person in the vehicle]? A. No, sir. Q. Why not? A. I didn’t want to—I didn’t know if he would get out or if it was—you know. In other words, I was—The Court: All right. . . . A. Well, I was, you know, not really afraid, but I had my doubts about the whole situation.”).

See also 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 247−48 (“Q. Would you do that [go over to the man in the car to see if he could identify him]? A. No, sir. Q. Why wouldn’t you do that? A. Well, I was scared, I guess. I didn’t want him to be able to recognize me later or . . .”);

see also Statements of Kevan Baker, Julie Arusaga, Robert Stange, and Lt. McConley, quoted infra notes 75–80, 85 (describing other witnesses’ fear and reluctance to go near the suspect).

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 45 (responding to question about what went through his mind when McConley came up and asked him to view the suspect: “what went through my mind was what the one lady witness said, she said—first thing she said, ‘No, I don’t want to see him.’”).

See 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 63−64 (Arsuaga refused to go over and look at the person in the vehicle, because “I didn’t know if he would get out of it” later and come after them; “I had my doubts about the whole situation”);

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 95−96 (“I was very upset and nervous.”);

Steven Schiwetz, Prosecutor in DeLuna Trial, Opening Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 12−13 (John Arsuaga “will testify that he refused to go look at the man in the car and he was scared”);

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 247−48 (testifying that he refused the officer’s request that he view the suspect in the squad car because “I was scared, I guess. I didn’t want him to be able to recognize me later.”);

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 356 (testifying that she and her husband John declined to take part in the show-up identification because they “thought it might be dangerous”);

Steven Schiwetz, Prosecutor in DeLuna Trial, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 531 (“When they bring the man back 30 minutes later, he’s [John Arsuaga’s] scared, he doesn’t want to go look at him, ‘I’m not going to do it.’”);

Julie Arsuaga, Aff. (Feb. 13, 2005) at 2 (“A policeman came up . . . and said they had a man they found under a car and that they wanted us to see whether it was the same guy we saw running. We said we preferred not to do that. We felt uncomfortable about it.”).

Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005), at 15:38:09–15:40:00, 15:48:40–15:49:16 (“Pete [Gonzales] made the comment that he [the witness who saw Wanda being attacked] was in the lines of one scared individual. . . . And one of his points was he just wanted to get his 10 dollars [of gas] and get on his way. For some reason now, that struck me, that he wanted to get his gas so he could get away. He didn’t really want to be involved in this whole thing.”; describing information Stange heard in the parking lot about witness Kevan Baker: “[he felt] like he was lucky that he wasn’t killed just for being there.”).

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 34:30–36:05 (“[T]here was a write-up in the paper, you know, lady was stabbed and died later on that night. And I remember cutting the clippings out and sending them to my family up here. Cause this is like, ‘thank god I didn’t die.’);

see also Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005), at 15:44:55–15:45:56, 15:48:40–15:49:16, 16:11:48–16:12:00, 16:12:10–16:12:55 (“[W]hen [Baker] was summoned over to the car to identify the person that, he was extremely scared and he did not want—the witness did not want to go to the car to identify him . . . and be that close to that individual, and I believe the police had to do some coaxing to get him over to the car. . . .”; recalling that Baker “was terrified to go identify this person”; “But I remember [Baker] as being the witness. He was standing at the front of the car, and he didn’t want to get any closer. He was terrified, he just did not want to be involved. . . .”; “I believe they had to coax him [Baker] to do that because they needed that identification to be able to move him away from the scene.”).

Eddie McConley, Corpus Christi Police Lieutenant, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983), at 51 (recalling that Aguirre “was kind of hesitant” because “he didn’t want the suspect to see him”).

Chapter 3
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