HRLR
Los Tocayos Carlos
Chapter 3
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All Chapter 3 Footnotes

After some coaxing, however, Lieutenant McConley convinced Baker and Aguirre to go over to the man.81 McConley promised that he and the other cops would shield the witnesses from the suspect.82 The Arsuagas still refused.

Baker went first.83 Led by McConley, cops surrounded him and walked him to the car. Officers shined flashlights through the windows directly into the suspect's eyes—so "there would be no revenge kind of thing," an officer said.84

Store manager Stange watched from a few feet away. He remembered Baker "standing at the front of the car . . . . [H]e didn't want to get any closer. He was terrified, he just did not want to be involved."85

Accounts differed about what happened next. Some witnesses at the trial testified that officers stood DeLuna up outside the squad car, shirtless and shoeless in the cold air.86 Officer Schauer, who had driven the suspect to the gas station and stayed with his squad car the whole time, testified that DeLuna remained inside the car: the "[suspect] was in the back seat of the car and somebody was flashing the light in his eyes."87 That was also what Robert Stange remembered, that DeLuna "never got out of the car. He was sitting in there with no shirt" while Baker "looked through the windows."88 Baker told the private investigator the same thing.89

By all accounts, Baker stood behind McConley. At five foot six, Baker had to look over the cop's shoulder. He never got a full view.90 "Keep the light in [the suspect's] eyes," someone said.91

Baker told the private investigator that the suspect looked "distraught"—"like, 'I'm in the back of the police car. I'm fucked,'" "whether . . . innocent or guilty, you know, 'I'm fucked.'"92

Again, Baker found himself wishing he wasn't there. There was so little to go on.93 He'd only seen the man for a few seconds as he ran out of the store, and right away the guy had said he had a gun.94 At the mention of a gun, Baker told the Chicago detective, "I was on 110 percent hype." He had locked eyes with the man, willing him not to pull a weapon. "[T]here was other more important things to worry about" than how "long [the guy's] sideburns" were.95

Now, peering at the man from behind the police lieutenant, Baker tried to focus. The man had his shirt off. He was Hispanic, dark hair, dark complexion.96 "Okay," Baker thought, "it might be him; it might be not."97 The cops were watching and waiting. So were the people in the crowd. Baker took a few seconds, "five, ten," he had said at the trial, "fifteen at the most."98 "Yeah, that's the guy," he told the tall cop.99 Then he got the hell out of there as fast as he could.100

Police repeated the process with Aguirre. He too identified DeLuna.101

Later that night at the police station, Detective Escobedo showed John and Julie Arsuaga mugshots of six men, including Carlos DeLuna. Both eventually identified DeLuna as the man they'd seen taking a leisurely jog in his dress clothes east of the gas station, before disappearing into the yards along Nemec Street near Franklin.102

* * * * *

Asked at the trial about his identification of DeLuna, Kevan Baker described two differences between the man he saw wrestling with Wanda and the man he saw in the squad car. One was obvious. The man who ran out of the store had a gray sweatshirt and a flannel jacket on. The man in the patrol car was naked from the waist up.103

Baker puzzled over the other difference. The man he came eye-to-eye with outside the Sigmor had no marks or scratches on his face.104 The man in the squad car had a "scarred up" face with blood on it.105

Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005), at 16:12:10–16:12:55 (“And I believe they had to coax [Baker] to do that [look at DeLuna] because they needed that identification to be able to move him away from the scene.”).

See George Aguirre, Witness to Events Outside Shamrock Gas Station, Statement to Corpus Christi Police Dep’t (Feb. 4, 1983) at 1 (stating that, after police took him over to the squad car, “I did positively identify that man as the same one I seen just a short while before . . . having a knife; however now he did not have a shirt on.”);

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;

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, 234, 239 (“They had flashlights on him and they told me if I had seen him before and I identified him as the guy I had seen earlier”; Aguirre is “sure the man you saw there that the police showed to you was the same man you had seen earlier”);

see also 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 50−51 (testifying that he took Baker “back to the approximately area that I had first taken him from to show the man to him” and then brought Aguirre over to Schauer’s police car; Aguirre “was kind of hesitant so Capt. Glorfield and I were there, we kind of shielded him and let him take a look at the suspect also”; Aguirre “didn’t want the suspect to see him”);

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;

Eddie McConley, Corpus Christi Police Lieutenant, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 291−93;

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 131−32;

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 (“They handcuffed [DeLuna], put him in the rear of a squad car and drove him to the Sigmor. Aguirre and Baker separately were led to the car, where an officer shone a flashlight into De Luna’s face. Both men identified him as the person they had seen at the station.”).

Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 79 (“Q. And did you, pursuant to your work out there, have occasion, to show a photo lineup to a couple of different witnesses? A. Yes I did sir. Q. Did you show a photo lineup to John Arsuaga? A. Yes, I did sir.”);

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 65–67 (“Q. Okay. And were you able to identify a person [in the six-photograph lineup] as being the person you saw running along there? A. Yes, I was. . . . Q. Do you see in the courtroom today the man you saw trotting across the parking lot that night? A. Yes, I do. Q. Could you point him out to the Court? A. (Indicating).”);

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 83–84, 89–90:

Q. Okay. The photos you saw on that photo line-up was he one of the ones you saw?

A. . . . I did not want to say which one I thought it was, but after, you know, I got—after we were done with everything that evening, I asked my husband, I said, ‘Was it picture number 5?’ And he said yes, that was the one he said it was. And, you know, that was, you know, just how I knew that I had—had really seen what I had, you know, the person. . . .

Q. You weren’t able to positively identify anybody were you?

A. Well, I—there was one that I thought looked like the person that I had seen, but I didn’t—you know, I didn’t want to say something about, you know, somebody where it might not be true. I was not absolutely 100 percent positive.

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. Were you able to pick out one of the [six] photographs [as the man you saw running the night of Wanda’s murder]? A. Yes, I was. Q. And whose photograph was it? A. Carlos De Luna’s. . . . 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 [affirms].”);

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 352–53 (“Q. Have you seen that person [the jogger] since then? A. Yes. Q. Where? A. Here. Q. Do you see him in the courtroom today? A. Yes, I do. Q. Would you point him out for the Jury? A. He’s sitting right there (indicating). Q. Okay. You need to speak up. A. He’s sitting right there (indicating). A. What’s he wearing? A. A jacket and a striped tie. . . . Mr. Schiwetz: Your Honor, can the record reflect that she identified the Defendant? The Court: All right.”).

Kevan Baker, Eyewitness to Attack on Wanda Lopez, Statement to Corpus Christi Police Dep’t (Feb. 4, 1983) at 1 (testifying that the man who assaulted the store clerk and ran out of the store “had on what looked like a flannel shirt with some red in it”; later, when they brought someone to the gas station in the backseat of a squad car, “I positively identified him as the same man I seen fighting with the lady inside the Shamrock . . . however, now he did not have on a shirt.”).

See also 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 28−30, 39−42 (testifying that, when asked by Officer Mejia to say what the man who ran out of the store looked like, “I described a shirt that had some red in it”; “I felt that it was something with red in it, and I assume something long-sleeved that possibly could be a flannel shirt”; the man police brought to the gas station in the back of the patrol car was different because of his “lack of clothing”; he was not wearing a 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 265−78, 281, 286 (shirt was “something red with flannel or something flannel with red in it”; the man in the police car had no shirt);

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 68−69 (noting that, when he arrived at scene, Baker told him the suspect was male, Hispanic, 24–25 years old, 5’ 7” to 5’9, wearing a “gray type of shirt, possibly a sweatshirt type of shirt”, after which Baker added “flannel type of shirt, that also being light-colored”).

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. Was there anything different about this person when you saw him the second time [when he identified a suspect that police had brought to the gas station] from the time you saw him the first time [as the attacker exited the store]?

A. Yes, sir, he had . . . scratches on him . . . .

Q. Does the man, Mr. De Luna, look any different today than the way you saw him that night?

A. Same facial features, basically; less scars, scratches on his face. [When Baker] initially identified him, he had a few scratches on his face.”

See also Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 29:08–30:00, 41:45–43:10 (“I’m thinking he’s scarred up, maybe, or maybe a few bloods . . . . I kinda remember that.”; “I noticed there was a little blood . . . .”).

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 29:08–30:00.

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 50−51 (recalling that Aguirre “was kind of hesitant so Capt. Glorfieid and I were there, we kind of shielded him and let him take a look at the suspect”).

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 . . . .”; 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 to do that because they needed that identification to be able to move him away from the scene.”).

See supra note 81.

For accounts of Baker’s identification, 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 44;

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 49−51;

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 285−86;

Eddie McConley, Corpus Christi Police Lieutenant, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 291−93;

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 2:14−4:00, 24:54−32:02, 41:45−45:37;

Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005) at 15:48:40–15:49:16,; 16:11:48–16:12:00.

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 131−32 (testifying that Lieutenant McConley and Captain Glorfield said they are “going to bring people over to . . . look at him [the suspect] and see if he was the person they had seen”; “what they did is they brought over one person and they surround[ed] him by police officers, when they brought him to the car, they took the flashlights and they shine them in the suspect’s eyes so he couldn’t see the witness, just in case, so there would be no revenge kind of thing, then they took that witness back and then they came back with another witness and they showed the suspect again.”; stating that the whole process took “less than five minutes”);

see Mark Schauer, Corpus Christi Police Officer, Supplementary Police Report (Undated) at 2 (“I read the suspect the Miranda Warning at 8:49 p.m. as I was transporting him back to the crime scene . . . Captain Glorfield and Lt. McConley then escorted a witness to the unit [i.e., the police car] and the witness observed the suspect. They then left and returned with another witness. They again left and Lt. McConley returned and advised me to arrest the subject and book him at the city jail.”);

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 44 (“[T]he officer I do remember did say, ‘Well, keep the light in his eyes so there won’t be any encounter,’ seeing or whatever.”);

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, 56 (recalling that Aguirre “was kind of hesitant so Capt. Glorfield and I were there, we kind of shielded him and let him take a look at the suspect also”);

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 “witnessed” the identifications from next to “the front seat of my patrol car” and “the witnesses were surrounded by the police officers” who “were shining—other officers were shining flashlights in his face so that he couldn’t see the witnesses”);

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 230, 234 (“They had flashlights on him and they told me if I had seen him before and I identified him as the guy I had seen earlier”);

Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005), at 15:47:30−15:48:00 (“Seems to me that there was three or four flashlights held to help illuminate the face of this individual.”);

see also Crime Scene Photograph 25500010, Corpus Christi Police Dep’t (Feb. 4, 1983) (showing officers at gas station with flashlights);

Crime Scene Photograph 25500022, Corpus Christi Police Dep’t (Feb. 4, 1983) (same).

Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005) at 15:48:40–15:49:16; 16:11:48–16:12:00 (“[Baker] was not a willing—He was terrified to go identify this person.”; “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.”).

See 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 (“[T]hey had him standing up and they had flashlights to him . . . .”);

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 29−30, 44 (police had suspect “stand outside the patrol 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 49−50 (“[W]e got him out of the car and stood him up . . . .”);

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 285 (“Q. They stood him up? A. Yes, sir.”);

Eddie McConley, Corpus Christi Police Lieutenant, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 291−93 (stating that police “took him [the suspect] out of the car”);

see also 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 117, 146−47 (describing DeLuna as not wearing any socks or shoes).

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 131−32 (assenting to lawyer’s characterization that, during the identifications, the suspect “was in the back seat of the car and somebody was flashing the light in his eyes”; and testifying that he doesn’t remember anyone taking DeLuna out of the car and that the “witnesses looked at the man . . . in the back seat”).

Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005) at 15:46:55–15:47:22, 15:48:00–15:48:30; 15:48:40–15:49:16;

see also Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005) at 16:12:10–16:12:55.

After struggling himself to get a good look at the suspect in the backseat, Stange remembers thinking that, without the flashlights, the poor parking lot lighting would not have allowed a sufficient view of the man’s face inside the car to allow an identification. 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 (reporting Stange’s belief that 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”).

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 2:14–3:00, 3:00–4:00, 30:00–30:58 (recalling that when he (Baker) observed the suspect, he (the suspect) was “in the back seat of a car without a shirt on”; “[in the] back of the police car”; “in the back of the car”);

see Julie Arsuaga, Aff. (Feb. 13, 2005) at 2 (“The police shined a light into the car with the suspect” so Aguirre and Baker could “attempt an identification”).

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 44 (“I looked over a police officer’s shoulder instead of full view 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 286 (“I was standing behind the officer that led me over there, I was looking over his shoulder at the gentleman. I suppose four feet, five feet” away.);

See also 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 50−51 (noting that when one of the witnesses “was kind of hesitant . . . Capt. Glorfield and I were there, [and] we kind of shielded him and let him take a look at the suspect . . . .”);

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 (testifying that he “witnessed” the identifications from next to “the front seat of my patrol car” and that “the witnesses were surrounded by the police officers”);

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 131−32 (recalling that McConley and Glorfield said they were “going to bring people over to [Schauer’s squad car] to . . . look at [the suspect] and see if he was the person they had seen”; “what they did is they brought over one person and they surrounded them by police officers, when they brought him to the car . . . .”).

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 44 (testifying that he “walked over” and an officer with him said, “‘Well, keep the light in his eyes so there won’t be any encounter,’ seeing or whatever . . . .”).

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 3:00–4:00, 30:00–30:58 (“[The suspect] looked ‘distraught,’ like ‘I’m in the back of the police car, I’m fucked’—one of those situations.”; “He looked dejected like, whether they are innocent or guilty, you know, ‘I’m fucked.’”).

See Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 8:59–10:07, 43:58–45:10 (“[W]hen he [the suspect] came back in the police car he had no shirt on, so it had to be all facial recognition.”; “‘This is a human being’s life’—that’s kinda the way I thought [at the time of the identification]. . . .”);

see also Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 40:00–41:45 (“Because, you know, no shirt. So that lost something recognizable at that point. So I had to focus on [his face].”).

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 0:02–1:05:

I looked up [after he realized no gas was coming out of the nozzle] and I seen this Hispanic gentleman pulling on the girl’s hair. Basically, I saw it and I thought, “oh fuck.” I don’t know, to me it seemed that the right thing to do was go walk towards the door. I walked to the door and he met me face to face. [He] came out the door. Threw her down. Come out. We met face to face. The man said, “I got a gun.” We were basically about four feet apart. He said, “I got a gun.”

See also 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 28 (“Q. Okay and how long did you actually converse with him [the suspect]? A. I didn’t say anything, it was just a matter of that one comment and—Q. What did he say? A. ‘Don’t mess with me. I’ve got a gun.’ And I just stood there looking him in the eye and we kind of stood there for another two seconds and he took off.”);

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 271–72 (“Q. How long were y’all actually standing there face to face like that? A. Then he made the comment, ‘Don’t mess with me,’ and I just kind of looked him in the eye and he looked me in the eye and a couple seconds went by and he took off.”).

See 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 283 (answering question about the details of his encounter with the attacker at the doorway, Baker said he couldn’t say for sure because “there was other more important things to worry about. . . .”);

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 11:09–12:00, 28:00–29:08, 41:45–43:10 (stating that when he stood eye to eye with the man outside the store, “I was on 110 hype; I was watching the gentleman’s eyes to see what was going to happen: he had already told me ‘gun’. . . .; [M]y main thing was eye to eye contact to make sure he didn’t use the gun on me. . . .”; all Baker had to go on was “facial features, basically eye-to-eye contact” because when he saw the man, “I was waiting for a gun to come out, or knife to come out. . . . I didn’t really—I’m not trained that way. I didn’t really focus on, ‘he’s got long sideburns,’ you know—you know what I am trying to say?”).

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 3:00–4:00 (“[H]e had his shirt off. Of course, Hispanic, dark hair, dark complexion”).

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 28:00–29:08 (“Basically, in the back of my head, I was like, ‘ok,’ I was like ‘it, ok, might be him; it might be not.’ That’s why I’m still thinking I’m like 70 percent sure, you know.”).

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 (answering question about how long he looked at the suspect: “Not very long. It didn’t take very long, probably five, ten seconds, you know, fifteen at most.”).

See Kevan Baker, Eyewitness to Attack on Wanda Lopez, Statement to Corpus Christi Police Dep’t (Feb. 4, 1983) at 1 (“I positively identified him as the same man I seen fighting with the lady inside the Shamrock . . ., however, now he did not have on a shirt.”);

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 29−31;

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;

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 49 (“I took [Baker] over there and the suspect was sitting in the back of the police car. One of the officers shined a light kind of on his face . . . and [Baker] said, ‘That’s the guy that robbed the place.’”).

Chapter 3
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