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Ray McArthur
FREENEY
Classification: Murderer
Characteristics:
Rape
Number of victims: 2
Date of murders: April 18/22, 2002
Date of birth:
December 21,
1973
Victims profile: Kirshalynne Jones,
15 / Vicky Dean (prostitutes)
Method of murder: Stabbing
with knife
Location: Harris County, Texas, USA
Status: Sentenced to death on September 25, 2003
Name
TDCJ
Number
Date
of Birth
Freeney, Ray McArthur
999458
12/21/1973
Date
Received
Age (when received)
Education Level
09/25/2003
29
09
Date
of Offense
Age (at the offense)
County
04/18/2002
28
Harris
Race
Gender
Hair
Color
Black
Male
Black
Height
Weight
Eye
Color
05'08"
194
Brown
Native
County
Native
State
Prior
Occupation
Harris
Texas
Fast Food, Laborer
Prior
Prison Record
None
Summary of incident
On April 18, 2002, in Houston,
Texas, Freeney took his girlfriend to a motel where he sexually
assaulted her and stabbed her multiple times, resulting in her
death.
He left the scene and went to an apartment complex where
he attacked a second female victim as she entered her home. He
sexually assaulted her and stabbed her until she lost
consciousness.
He left the residence, picked up a third victim,
took her to his residence where he choked her until she lost
consciousness. When she awoke, he sexually assaulted her and
stabbed her multiple times, resulting in her death.
Co-defendants
None
Race
and Gender of Victim
Unknown / Female; Unknown / Female
In the Court
of Criminal Appeals of Texas
No. AP-74,776
Ray McArthur Freeney v.
The State of Texas
On Direct
Appeal from Harris County
Keasler, J., delivered the
opinion of the Court in which Keller, P.J., and
Meyers, Price, Womack, Johnson,
Hervey, and Holcomb, JJ., joined.
Cochran, J., concurred in point of error three and
otherwise joined the opinion.
O P I N I O N
Ray McArthur Freeney was convicted in August 2003 of capital
murder.
(1) Pursuant to
the jury's answers to the special issues set forth in Texas Code
of Criminal Procedure Article 37.071, Sections 2(b) and 2(e),
(2) the trial
court sentenced Freeney to death.
(3) Direct appeal
to this Court is automatic.
(4) Freeney
raises sixteen points of error challenging his conviction and
sentence. We reject his contentions and affirm the conviction and
sentence.
STATEMENT OF FACTS
Freeney was
indicted for the murders of Kirshalynne Jones and Vicky Dean
during different criminal transactions but pursuant to the same
scheme or course of conduct.
Prior to her
murder, fifteen-year-old Jones had been staying with some
relatives in the Travel Lodge Motel located at the intersection of
Beltway 8 and Highway 59 in Houston. Jones became friends with
fellow motel guest Margaret Sims, and soon moved into the motel
room that Sims shared with her boyfriend, Jason Shiner. Sims and
Jones worked as prostitutes. They generally solicited customers on
Bissonnet Road and brought them back to their room at the Travel
Lodge.
Shiner
testified that he drove Jones and Sims to Bissonnet Road at around
midnight on April 18, 2002. Jones met her first customer, or
"date," that evening, and brought him back to the motel room. When
they were finished, Sims arrived with her "date," and Shiner drove
Jones back to Bissonnet Road. Jones had already returned to the
motel with another customer when Shiner came back to pick up Sims.
Sims testified that she saw the man with Jones and that he was
about 5'9", had dark skin, and was either bald or had very short
hair. Shiner later noticed that Jones had been in the motel room
an unusually long time, so he began calling the room on his cell
phone. He tried to call several times, but the line was busy. He
then knocked on the door of the motel room, but no one answered it.
He called
the motel office at about 1:30 a.m. and asked for a security guard
to assist him. The security guard attempted to open the door, but
it was locked from the inside with a deadbolt. The security guard
went back to the office to retrieve a key. While Shiner waited for
him to return, a bald man with a dark complexion came out of the
room. Shiner reached for the door, but the man pulled it shut.
Shiner asked, "Where's the girl?" and the man responded, "She's in
the bathroom. She's okay." Shiner followed the man downstairs and
wrote down his license plate number as he drove away.
Shiner and
the security guard returned to the motel room. Shiner went inside
and called for Jones but did not get a response. He went into the
bathroom, pulled back the shower curtain, and found Jones's body
in the bathtub. He dialed 911 at about 1:45 a.m.
When Officer
Todd Miller arrived at the scene, he saw a blood stain and a fecal
matter stain on the floor at the foot of the bed, and he
discovered another large blood stain after he pulled back the
bedspread. There was an empty bottle of Chloraseptic spray on the
vanity near the sink. Jones's body was immersed in water in the
bathtub, and there was an empty bottle of Dial body wash and a
pair of underwear floating in the water as well. Joseph Burrell,
the crime scene investigator, testified that he was unable to
locate any usable fingerprints, and that the table in the motel
room "had obviously been wiped down."
The medical
examiner testified that Jones died from multiple stab wounds. She
suffered three stab wounds to her chest and two stab wounds to the
left side of her neck. She had a blunt trauma injury to the top of
her head and a bruise behind her right ear that was consistent
with a blow to the back of her head. She had abrasions on her
torso, face, and neck that were consistent with a violent struggle.
The petechiae present in her eyes was indicative of strangulation.
She also had vaginal redness that was consistent with some sort of
penetration.
Miller
checked the license plate number obtained by Shiner and found that
it matched a green Pontiac Sunfire that was registered to Freeney.
Miller also ascertained that Freeney lived at the Ravencrest
apartment complex at 10003 Forum West, which was located almost
directly behind the Travel Lodge Motel. Miller put together a
photo spread containing Freeney's picture. Shiner and Sims
identified Freeney in the photo spread. Shiner identified Freeney
at trial, but Sims was unable to do so.
A Harris
County deputy constable discovered Freeney's abandoned car in the
parking lot of the Tinseltown Movie Theatre on Beltway 8 on April
19. Miller testified that he observed a stain around the gear
shift lever that looked like blood. DNA was extracted from a
swabbing of the gear shift. Forensic DNA analyst Jennifer McCue
testified that the sample contained a mixture of DNA from more
than two individuals, and Freeney and Jones could not be excluded
from the mixture.
On April 22,
Officer Guy Majors was dispatched to the Ravencrest apartment
complex at about 1:30 a.m. When he arrived, he saw a naked woman
covered in blood lying in the grass next to the building. The
woman told Majors that her name was Vicky Dean. She said she had
been attacked, but was unable to give Majors any information about
her attacker. Majors observed that the window of a nearby
apartment was open about five inches, and that there was blood on
the window and windowsill. When Majors pulled back the curtain and
looked inside, he saw blood all over the room.
Majors and
some other officers knocked on the door to the apartment. Lou
Jackson, Freeney's elderly aunt with whom he shared the apartment,
answered the door. She gave the officers permission to come inside
and look through the apartment. She appeared very frail and said
that she had been undergoing treatment for cancer. She also gave
Majors the phone number of Freeney's girlfriend.
Officer Glen
Riddle testified that there was blood in the entryway and living
room. A knife blade on the living room floor had bloodstains and
two small strands of hair on it. There was a trail of blood
leading to the bedroom and blood on the outside of the bedroom
door. Inside the bedroom, there was blood on the bed, walls,
ceiling, and floor. The bedroom was in disarray and the sheets and
mattress cover had been pulled off the bed. A black purse
containing Dean's driver's license was lying on the bed. There
were various items scattered on the floor at the foot of the bed,
including two women's sandals, a black bra, a black dress, a box
of condoms, a set of keys, and a small cosmetic bag. A black knife
handle without a blade was also lying on the floor near the bed.
Carol
Dempsey, Dean's sister, testified at trial that Dean had been
living with her in her condominium, which was located next door to
the Ravencrest apartment complex. On the evening of April 21, Dean
was getting ready to go out for the evening and told Dempsey that
she had a date. Dempsey testified that Dean left at 10:05 p.m. and
was wearing a dress and sandals.
Dean was
transported to the hospital and died several days later. The
medical examiner testified that Dean had twenty "sharp force
injuries" to her arms, hands, torso, neck, and face. The fatal
wound was the stab wound to her left eyebrow which entered her eye
socket, perforated the roof of her skull, and entered the left
side of her brain. As a result, a blood clot formed in her left
internal carotid artery.
Miller met
with Freeney's girlfriend, Quentessa Synegal, who gave him
information as to the possible whereabouts of Freeney. Shortly
before midnight on April 25, Miller and Synegal drove to Bissonnet,
where she identified Freeney sitting with a woman on a bus stop
bench in front of a Burger King. A team of police officers then
arrested Freeney. The woman he was sitting with identified herself
as Shaekia Calhoun. Calhoun told Detective John Swaim that she was
a prostitute and that she and Freeney were discussing a price to
go to a nearby hotel room.
Miller
observed cuts and scratches on Freeney's hands and forearms when
he interviewed him at the police station. Freeney gave three
audiotaped statements in which he confessed to the murders of
Jones and Dean. With regard to the Jones murder, Freeney said that
he picked up Jones on Bissonnet and they went to her room on the
third floor at the Travel Lodge. Freeney did not have any money
and never intended to pay Jones for sex. Jones asked him for the
money upfront when they went inside the motel room, and Freeney "jumped
on her." During the struggle, Jones reached for the phone and
knocked it off the hook. Freeney placed her in a "choke hold," and
she passed out for about fifteen minutes, during which time he
attempted to have vaginal intercourse with her but could not
ejaculate. When she "came to," he stabbed her in the side, chest,
and neck with his pocketknife. Jones then began performing oral
sex on him, but again he did not ejaculate. As she was performing
oral sex on him, she had a "bleak look in her eyes," and slowly
passed out and died at the foot of the bed closest to the door.
Afterwards, he used water to clean up the areas that he touched.
He picked up Jones's body and placed it in the bathtub; then he
ran some water in the tub and shut the shower curtain and the
bathroom door. A man had been knocking on the door for five to ten
minutes while Freeney was cleaning up the room. When Freeney
opened the door and exited the room, the man asked if the girl was
okay, and Freeney said yes, and that she was in the bathroom. The
man followed Freeney downstairs, and Freeney got into his car and
left. Freeney drove home, took a shower, and went to bed. The next
day he left his car in the Tinseltown parking lot after he hit a
median while driving on Beltway 8.
With regard to the Dean murder, Freeney stated that he met Dean on
Forum West street and that she willingly walked with him to his
apartment. They entered the apartment through his bedroom window.
She told him she wanted the money right away, but Freeney knew
that he did not have any money. She asked him for something to
drink, so he gave her juice with a "sleeping aid" in it. Freeney
also got a sharp knife with a black handle and a "flimsy blade"
from the kitchen and returned to the bedroom. Dean drank the juice,
smoked cigarettes, and talked to Freeney. He then told her to lie
on the bed so he could give her a massage. When she did so, he
stabbed her in the neck. They wrestled, and he continued to stab
her and told her "she was stupid for being a prostitute."
(5) After "the
first few stabs," she took her clothes off, and they attempted to
have vaginal intercourse. She then performed oral sex on Freeney,
and he ejaculated. They fought again, and the knife broke at some
point. Freeney swung the knife one last time and stabbed her in
the left eye, and she told him, "Pull this knife out of me so I
can die." He threw the bedcovers over her and exited through the
window.
DNA evidence also linked Freeney to the murders of Jones and Dean.
Officer Riddle testified that he recovered a pocketknife from "another
location in Southwest Houston."
(6) Riddle
obtained swabs from the knife, which appeared to have bloodstains
on it. McCue testified that Jones's DNA profile matched the
profile on the swabs. McCue also performed DNA analysis on the two
hairs found on the knife that was recovered from Freeney's
apartment. The DNA profile of the hair root matched Dean's DNA
profile. In addition, McCue detected Dean's DNA on some of
Freeney's clothing.
SUFFICIENCY OF THE EVIDENCE
In his first point of error, Freeney argues that the evidence is
legally insufficient to support his conviction for capital murder.
In evaluating the legal sufficiency of the evidence, we must view
the evidence in the light most favorable to the verdict and
determine whether any rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt.
(7) Those who
commit murders pursuant to the same scheme or course of conduct
have an "over-arching objective or motive" or engage in "a regular
mode or pattern of . . . behavior."
(8)
Freeney
contends that the evidence is insufficient to show that the
murders occurred during the same scheme or course of conduct.
Freeney supports this argument by highlighting some differences in
the circumstances surrounding each murder. He asserts that "[t]he
State committed itself to a theory that the 'common scheme or
course of conduct' was the systematic murder of prostitutes . . .
[y]et, the evidence failed to prove that Vicki Dean was a
prostitute." He points out that he attempted to conceal his
identity after he murdered Jones, but he did not do so with regard
to Dean. Finally, he alleges that he used drugs to sedate Dean but
not Jones.
Despite
Freeney's argument, there were enough similarities in Freeney's
motive or pattern of behavior that a rational juror could have
found that the murders occurred during the same scheme or course
of conduct. Freeney picked up Jones, who was working as a
prostitute on Bissonnet, and went to her motel room intending to
have sex with her without paying her any money. He subdued her and
caused her to lose consciousness by placing her in a "choke hold,"
attempted to have vaginal intercourse with her, stabbed her in the
chest and neck when she regained consciousness, and then forced
her to perform oral sex on him. Four days later, he picked up Dean
on Forum West, which was located almost directly behind the motel
where he killed Jones. He brought Dean back to his apartment,
believing that she was a prostitute and intending to have sex with
her without paying her any money. He attempted to subdue Dean by
giving her a "sleeping aid," stabbed her in the neck, torso, face,
and upper extremities, attempted to have vaginal intercourse with
her, and had her perform oral sex on him. Freeney was arrested
three days later on Bissonnet, the same street where he had picked
up Jones. At the time of his arrest, he was sitting on a bench
with a woman who said she was a prostitute and they were
discussing a price to go to a nearby motel room.
Based on the
evidence at trial, a rational jury could have concluded beyond a
reasonable doubt that Freeney committed the murders of Jones and
Dean during different criminal transactions but pursuant to the
same scheme or course of conduct.
(9)
Point of error one is overruled.
In his second point of error, Freeney contends that the evidence
is factually insufficient for the same reasons expressed in his
first point of error. In a factual sufficiency review, we view all
of the evidence in a neutral light, and we will set the verdict
aside only if the evidence is so weak that the verdict is clearly
wrong and manifestly unjust, or the contrary evidence is so strong
that the standard of proof beyond a reasonable doubt could not
have been met.
(10) A clearly
wrong and unjust verdict occurs where the jury's finding is "manifestly
unjust," "shocks the conscience," or "clearly demonstrates bias."
(11)
In the instant case, the same facts that make the evidence legally
sufficient also make it factually sufficient. The evidence
supporting the verdict was not so weak as to be clearly wrong and
manifestly unjust, nor was the contrary evidence so strong that
the standard of proof beyond a reasonable doubt could not have
been met.
(12) Point of
error two is overruled.
BATSON ERROR
In points of error five, six, and seven, Freeney contends that the
trial court erred in overruling his Batson
(13) objections
to the State's peremptory challenges of prospective jurors Doris
Anderson, Borita Williams, and Annita Waller. A defendant
objecting under Batson must make a prima facie
showing of racial discrimination in the State's exercise of its
strikes.
(14) The burden
then shifts to the State to articulate race-neutral explanations
for its strikes.
(15) Once the
prosecutor has articulated race-neutral explanations, the burden
shifts back to the defendant to show that the explanations are
really a pretext for discrimination.
(16) The trial
court must then determine whether the defendant has carried his
burden of proving discrimination.
(17) The trial
court's determination is accorded great deference and will not be
overturned on appeal unless it is clearly erroneous.
(18)
Freeney
objected to the State's peremptory challenge against Anderson as
follows:
[DEFENSE
COUNSEL]: The discussion we just finished with Juror 61, Doris
Anderson, we would like to make an objection under Batson,
Article 35.261 of the Texas Code of Criminal Procedure, in that we
will again state for the record that our client is a member of the
minority race, African-American, and Ms. Anderson was as well.
We also feel
like she clearly stated on the record that although she had
reservations about some of the areas of law that were inquired
upon, she did state firmly and clearly on the record that she
could follow the law, and we think the State improperly used a
peremptory on her, in that we have other potential jurors who are
Caucasian who have also stated they could follow the law and those
other white jurors the State did not chose [sic] to use a
peremptory, and we think we have made a prima facie case and we
would ask the Court to inquire of the State to state on the record
what race neutral reasons, if any, they may have for having struck
Mrs. Anderson.
[THE COURT]:
That will be denied. I heard the testimony.
Although the
trial court did not expressly rule on Freeney's prima facie
case, Freeney neither objected on this basis at trial nor
complains about the absence of a ruling on appeal.
(19)
He instead complains that "the trial court erred by rejecting [his]
Batson challenges." In the context of a Batson
claim, the defendant has the ultimate burden to demonstrate
purposeful discrimination by a preponderance of the evidence.
(20)
Freeney failed to meet this burden. He generally alleged disparate
treatment of black and white veniremembers, asserting that the
State failed to exercise peremptory challenges against "other
potential jurors who are Caucasian who have also stated they could
follow the law." However, he failed to identify these other jurors
or point out the similarities between their testimony and
Anderson's testimony. And after reviewing the voir dire
examination of Anderson in the light most favorable to the trial
court's ruling, we cannot conclude that the trial court's denial
of the Batson challenge was clearly erroneous. Point of
error five is overruled.
Freeney
objected to the State's peremptory challenge against Williams
under Batson, arguing that the State "used a peremptory
challenge for a juror who was otherwise qualified under the law,
stating clearly on the record she could follow the law and could
return the death penalty if it was based upon facts," and that
there were "other similar Anglo potential jurors who have equally
qualified who they have not challenged peremptorily." The State
responded as follows:
[PROSECUTOR]:
Judge, I don't think they have made a prima facie showing of any
racial reasons. I will point out that we did select a young
African-American female just the other day, and in this case the
questioning was quite thorough as to her epiphany and change of
opinion here. I think it was quite obvious that she's a very, very
weak juror and that she will have some severe problems assessing a
death penalty in any case no matter what her statements to you
are.
So for that,
plus she had some additional statements in here, which in her
questionnaire which are not favorable to the State. One of the
people that she admires is a strong anti-death penalty opponent.
She also - - well, I will just leave it at that. There are several
answers in here which were not favorable to this case. So I think
the record is very clear that she would not have been a favorable
juror. There are other reasons why we made our strike, so I don't
believe they have made a prima facie showing.
THE COURT:
Well, go ahead and put your reasons for your strike on the record,
please.
[PROSECUTOR]:
Okay. I will just refer to what I just said, plus her questioning
was quite obvious. I don't think she was being truthful with us
when she said she could do it based on her questions and answers.
The trial
court's denial of Freeney's Batson challenge is supported
by the record and is not clearly erroneous. Williams indicated in
her questionnaire that she did not believe in the death penalty
and that she thought it was unfairly assessed in many cases. She
also testified during voir dire that she believed that the prison
system should be geared more towards rehabilitation than
punishment and that the death penalty was "[n]ot too much" of a
deterrent to other people. The trial court did not abuse its
discretion in concluding that these were race-neutral reasons for
the strike. Point of error six is overruled.
We next turn
to Freeney's Batson challenge to the State's strike
against Waller, who stated during voir dire examination that she
had once been shot in a dance club and that the shooter had never
been caught. Freeney objected to the State's peremptory challenge
against Waller under Batson, arguing that Waller was "clearly
qualified under the law," and that the State did not exercise
strikes against "similar prospective jurors" who answered
questions in a "similar fashion." The prosecutor responded that
Freeney had not demonstrated a prima facie case, and the
trial court asked the prosecutor to recite the reasons for the
strike for purposes of the record.
The
prosecutor explained that Waller was struck because she expressed
that rehabilitation was more important than punishment for the
person who had shot her, she believed that a friend of hers had
been rehabilitated after twenty-five years in prison, she stated
that she and her parents had been employed at agencies that
provided rehabilitation services, she thought life in prison was a
stiffer punishment than the death penalty, she felt like the death
penalty was "the easy way out," she believed the death penalty was
used too often, and she reacted favorably to the possibility of
probation in a murder case. The prosecutor was also concerned that
Waller had indicated on her jury questionnaire that she would be a
leader in "all situations." The prosecutor stated, "We want to
make sure everybody has got equal input, because it should be a
decision by 12 individual people and I don't think it would be
appropriate for one person to be taking command and making all of
the decisions." The trial court found that the prosecutor's
explanations were race-neutral and overruled Freeney's objection.
The
prosecutor gave numerous reasons for striking Waller, none of
which reflected an inherently discriminatory intent.
(21)
The trial court's finding that the State's explanations were race-neutral
is supported by the record and is not clearly erroneous. Point of
error seven is overruled.
HEARSAY EVIDENCE
In his third
point of error, Freeney alleges that the trial court erroneously
permitted Detective John Swaim to testify that Shaekia Calhoun
told him at the time of Freeney's arrest "[t]hat she was a
prostitute and that [she] and Freeney were talking about a price
to go to a motel room nearby." Freeney objected to Swaim's
testimony on hearsay grounds. The State argued that the testimony
was admissible under the present sense impression and statement
against interest exceptions to the hearsay rule.
(22)
The trial court overruled Freeney's objection and admitted the
testimony. Although it did not specify the exception under which
the testimony was admitted, the trial court's decision will be
sustained if it is correct on any theory of law applicable to the
case.
(23)
A determination regarding the admissibility of a statement against
interest in accordance with Rule 803(24) requires a two-step
inquiry.
(24) The trial
court must first determine whether the statement in question tends
to expose the declarant to criminal liability.
(25) The trial
court then determines whether there are corroborating
circumstances that clearly indicate the trustworthiness of the
statement.
(26) Any number
of factors may be considered in the inquiry, including: whether
the guilt of the declarant is inconsistent with the guilt of the
accused; whether the declarant was so situated that he might have
committed the crime; the timing of the declaration and its
spontaneity; the relationship between the declarant and the party
to whom the declaration was made; and the existence of independent,
corroborative facts.
(27) Evidence
undermining the reliability of the statement as well as evidence
corroborating its trustworthiness may be considered.
(28) The standard
for review of a trial court's decision to admit or exclude a
hearsay statement under Rule 803(24) is whether the trial court
abused its discretion.
(29)
Calhoun's
statements that she was a prostitute and that she was making
arrangements to commit an act of prostitution were sufficiently
self-inculpatory because they exposed her to criminal liability.
There were also corroborating circumstances that clearly indicated
the trustworthiness of her statements. Officer Todd Miller
testified that he learned about Calhoun's "profession" by "checking
her criminal history." Officer Guy Majors testified that he saw
Calhoun the night before Freeney's arrest and told her "[t]o get
off the corner." Evidence that Freeney had recently solicited
another prostitute in the same area also corroborated Calhoun's
statements. The trial court did not abuse its discretion in
admitting Swaim's testimony regarding Calhoun's statements. Point
of error three is overruled.
IDENTIFICATION PROCEDURE
In point of
error four, Freeney argues that the trial court should have
suppressed Jason Shiner's in-court identification of Freeney
because it was tainted by a suggestive out-of-court identification
procedure. Shiner twice identified Freeney prior to trial. First,
he identified Freeney in a photospread the morning after Jones's
murder. Second, he identified Freeney in a live line-up
approximately two weeks later. Freeney specifically complains that
the line-up was impermissibly suggestive.
A pre-trial identification procedure may be so suggestive and
conducive to mistaken identification that subsequent use of that
identification at trial would deny the accused due process of law.
(30) A two-step
analysis is used to determine the admissibility of an in-court
identification: (1) whether the out-of-court identification
procedure was impermissibly suggestive; and, (2) whether that
suggestive procedure gave rise to a very substantial likelihood of
irreparable misidentification.
(31) The analysis
requires an examination of the totality of the circumstances
surrounding the particular case and a determination of the
reliability of the identification.
(32)
Shiner and
Miller each testified regarding this issue outside the presence of
the jury. Shiner was in jail on a probation revocation at the time
of the line-up on May 1, 2002. He testified that, before he viewed
the line-up, other inmates at the jail told him that the suspect "had
some scratches on his wrists." He did not tell police that he had
heard this information prior to the line-up. He testified that he
was able to identify Freeney based on his facial features and
upper body. He testified that he was able to identify Freeney on
that basis as soon as he entered the room, before he even saw the
scratches. Miller testified that Shiner identified Freeney as he
entered the room. Miller believed that Shiner identified Freeney
based on his facial features. He did not think that Shiner would
have been able to clearly see the scratches "in the few seconds
that the defendant was visible before Jason made the
identification."
The trial
court overruled Freeney's objection to Shiner's in-court
identification of Freeney. The trial court, however, excluded any
evidence about Shiner's out-of-court identification of Freeney in
the line-up, because the State acknowledged that the line-up was "potentially
tainted," and the judge concluded that "everybody has agreed [it]
is tainted." Assuming the line-up procedure was impermissibly
suggestive based on these facts, we must next determine whether
the procedure gave rise to a very substantial likelihood of
irreparable misidentification.
We consider several non-exclusive factors when determining whether
there was a very substantial likelihood of irreparable
misidentification.
(33) These
factors are: (1) the witness's opportunity to view the criminal
act; (2) the witness's degree of attention; (3) the accuracy of
the suspect's description; (4) the level of certainty at the time
of confrontation; and, (5) the time between the crime and
confrontation.
(34) These
factors are weighed against the corrupting effect of any
suggestive identification procedures.
(35)
Shiner
testified that when he saw Freeney exit the motel room, he "had a
glance at the person, but it was probably the best glance that
[he] ever took." He testified that the area was lighted, that he
and Freeney were less than two feet apart when he saw his face,
and that he had additional time to view Freeney's physique when he
followed him down the stairs. He testified that the man he saw was
bald-headed, 5'11" in height, had a dark complexion, and was
wearing a blue T-shirt and sweating. Shiner testified that he not
only viewed Freeney when he exited the motel room, but also had a
short verbal exchange with him and wrote down his license plate
number as he drove away.
Shiner
identified Freeney in a photospread shortly after Jones's murder.
Miller testified that Shiner made a "tentative identification" of
Freeney in the photospread, meaning that he was "fairly sure" but
"not positive." Shiner testified that he was "certain" Freeney was
the man he saw exiting the motel room when he viewed him in the
line-up about two weeks later, and that he was able to identify
him before he saw the scratches on his wrists. Finally, Shiner
testified that he was able to identify Freeney at trial based on
his view of Freeney when he exited the motel room, and not because
he remembered him from the line-up.
Given this
evidence, we conclude that the line-up procedure was not so
suggestive as to present a very substantial likelihood of
irreparable misidentification. Shiner viewed Freeney in a lighted
area from a few feet away, paid a good amount of attention during
his interaction with Freeney, was "fairly certain" when he
identified Freeney in the photospread shortly thereafter, and was
even more certain when he identified Freeney in the line-up about
two weeks later. Shiner testified that he identified Freeney in
the line-up before seeing the scratches, and that his in-court
identification of Freeney was based on seeing him at the time of
the offense. The trial court did not abuse its discretion in
permitting the in-court identification. Point of error four is
overruled.
ADMISSION OF PHOTOGRAPHS
In point of
error eight, Freeney argues that the trial court violated Rule 403
when it admitted gruesome photographs at the guilt or innocence
phase of the trial.
(36)
He specifically complains about State's Exhibits 43, 44, and 45,
three photographs of Jones's body as it was found in the motel
bathroom.
Rule 403 requires that a photograph have some probative value and
that its probative value not be substantially outweighed by its
inflammatory nature.
(37) A court may
consider many factors in determining whether the probative value
of photographs is substantially outweighed by the danger of unfair
prejudice. These factors include: the number of exhibits offered,
their gruesomeness, their detail, their size, whether they are in
color or black-and-white, whether they are close-up, whether the
body depicted is clothed or naked, the availability of other means
of proof, and other circumstances unique to the individual case.
(38) The
admissibility of photographs over an objection is within the sound
discretion of the trial judge.
(39)
The photographs were admitted during the testimony of Officer
Christopher Phillips, who observed Jones's body lying in the
bathtub when he arrived at the crime scene. Phillips testified
that the photographs were representative of her body as he found
it. The 8" x 10" color photographs depict Jones's partially
clothed body lying face-up in the bathtub. State's Exhibit 43
shows Jones's body from the neck down. It is neither close-up nor
detailed. State's Exhibit 44 offers a closer view of Jones's
entire body. State's Exhibit 45 depicts Jones's head, shoulders,
and upper chest, and also shows a pair of underwear and an empty
bottle of Dial soap floating in the water. Some blood is visible
in the photographs, but none of the photographs offer detailed
views of Jones's injuries. The photographs depict no more than the
gruesomeness of the crime scene as found by the police.
(40)
Freeney also argues that the photographs were "duplicative" of
State's Exhibit 46, the scene videotape. A videotape, however,
offers a panoramic view of the scene that still photographs often
do not offer.
(41) The
videotape aided the jury's understanding of the entire crime scene,
while the photographs focused on the location and condition of
Jones's body as it was found by police.
(42)
The danger
of unfair prejudice did not substantially outweigh the probative
value of the photographs. The trial court did not abuse its
discretion in admitting State's Exhibits 43, 44, and 45. Point of
error eight is overruled.
EXECUTION OF THE MENTALLY ILL
In point of
error nine, Freeney argues that "[t]he application of the death
penalty to Freeney was unconstitutional under Atkins v.
Virginia because he is mentally ill." The Supreme Court in
Atkins held that it is unconstitutional to execute the
mentally retarded.
(43)
Freeney urges us to extend this holding to the mentally ill, but
cites no authority and presents no argument persuading us to do
so.
(44)
Point of error nine is overruled.
TEXAS
DEATH PENALTY SCHEME
Freeney's
remaining points of error are multiple challenges to the Texas
death-penalty scheme. In point of error ten, he alleges that the
statutory Penry
(45)
special issue is unconstitutional because it fails to place the
burden of proof on the State regarding aggravating evidence. In
point of error eleven, he asserts that the statutory Penry
special issue is unconstitutional because it permits the very type
of open-ended discretion condemned by the United States Supreme
Court in Furman v. Georgia, 408 U.S. 238 (1972). In point
of error twelve, he contends that the Texas death-penalty scheme
is unconstitutional because it does not permit meaningful
appellate review of the sufficiency of the evidence supporting the
Penry special issue. In point of error thirteen, he
claims that the Texas capital sentencing statute's definition of "mitigating
evidence" is unconstitutional because it limits the Eighth
Amendment concept of "mitigation" to factors that render a capital
defendant less morally "blameworthy" for the commission of the
capital murder. In point of error fourteen, he argues that the
death penalty as presently administered in Texas is cruel and
unusual punishment in violation of the United States and Texas
Constitutions. In point of error fifteen, he alleges that the
"10-12" rule violates the Eighth Amendment. In point of error
sixteen, he asserts that the Texas death-penalty statute is
unconstitutional because it fails to inform the jury that a single
holdout juror on any special issue would result in an automatic
life sentence. We have previously rejected all of these arguments,
and we decline to reconsider our existing precedents in the
instant case.
(46)
Points of error ten through sixteen are overruled.
5. Miller testified that
Dean had no criminal history of being a prostitute.
6. The location was revealed
at the punishment phase to be the apartment of Kimberly Bolden.
The State introduced evidence at the punishment phase that Freeney
stabbed and attempted to rape Bolden in her apartment on April 21,
2002.
8. Corwin v. State,
870 S.W.2d 23, 28-29 (Tex. Crim. App. 1993), cert. denied,
513 U.S. 826 (1994).
9. See Feldman v. State,
71 S.W.3d 738, 753 (Tex. Crim. App. 2002) (holding that a
rational jury could conclude that the murders occurred pursuant to
the same scheme or course of conduct when defendant killed two
truck drivers and later attacked a third person whom he thought
was a truck driver).
21. See Purkett,
514 U.S. at 768 (holding that "[u]nless a discriminatory intent is
inherent in the prosecutor's explanation, the reason offered will
be deemed race neutral.").
