RANDALL DALE ADAMS, Adams v. THE STATE OF TEXAS, Appellee

No. 60037

COURT OF CRIMINAL APPEALS OF TEXAS

577 S.W.2d 717; 1979 Tex. Crim. App. LEXIS 1836

January 31, 1979

This is an appeal from a conviction for capital murder. The punishment was assessed at death.

Adams's brief contains forty grounds of error in which he contends that: (1) the trial court erred in refusing to admit evidence of extraneous criminal offenses committed by the State's chief witness, David Harris, and in restricting Adams's cross-examination of another State witness, Teresa Turko; (2) the prosecutor improperly withheld a statement made to the police by witness Emily Miller; and (3) the evidence is insufficient to support the jury's affirmative answer to the second punishment issue.

Adams was found guilty of the murder of Dallas police officer Robert Wood, who was fatally shot by the driver of an automobile he had stopped for failing to have on its headlights. The shooting occurred at approximately 12:30 a. m. on November 28, 1976, in the 3400 block of North Hampton Road in Dallas.

The State's principal witness was David Harris, who at the time of the offense and trial was sixteen years of age. Harris testified that he ran away from his home in Vidor on November 26, 1976, after stealing money and a car from the house of a neighbor. He also took with him a .22 caliber pistol and ammunition.

Harris drove to Houston, where he spent the night in a shopping center parking lot. On the morning of November 27, Harris drove to Dallas. In Dallas, Harris picked up Adams, who was hitchhiking. Harris and Adams spent the afternoon and evening of November 27 riding around Dallas in the car Harris had stolen, smoking marihuana and drinking beer. That night they went to a drive-in movie.

Harris and Adams left the movie at approximately midnight. Adams was driving. As they drove south on the street Harris later identified as Hampton Road toward the motel at which Adams was living, they were stopped by a police patrol car. Harris, fearing that he would be identified, slumped down in the front seat so that he would not be seen. As the officer, Robert Wood, approached the driver's window of the car, Adams reached under the front seat where he knew the pistol was located, removed the pistol, shot the officer several times, and rapidly drove away.

After the shooting, Adams drove to his motel, where he and Harris separated. Harris spent the rest of the night in a parking lot, and then returned to Vidor. Harris spent the next several days with friends, to whom he stated that he had shot a Dallas police officer. Harris testified that he made this claim in an effort to impress his friends. Harris was arrested on December 5, 1976, for the theft of the car and was released to the custody of his parents. He was rearrested on December 20, after the Vidor police learned of the incriminating statements he had made with regard to the Dallas murder. Following this arrest, Harris gave a statement detailing his activities in Dallas and identifying Adams as the person who shot Wood.

Adams, in his testimony, admitted spending the day of November 27 with Harris. But Adams claimed that he and Harris left the movie at approximately 9:30 p. m. and that they separated at a convenience store next door to his motel. Adams testified that he returned to his motel room no later than 10:00 p. m. and was asleep there at the time of the murder. Adams's defensive theory was that Harris had shot Wood and was attempting to shift the blame to him.

LEGAL ANALYSIS

I. Harris’ Crimes

[Adams claimed that the failure to allow the jury to hear of some of Harris’ crimes at or about the time of the murder was a serious error.] Through Harris' own testimony and that of other witnesses, it was established that Harris had committed several burglaries and a car theft during 1975. It was also established that Harris had been adjudicated a juvenile delinquent following another burglary in April, 1976, and was on juvenile probation at the time of Adams's trial. The trial court ruled that this testimony was admissible, and it was subsequently introduced before the jury. However, the trial court refused to permit the introduction of testimony concerning a burglary and a robbery committed by Harris on December 4 and 5, after his return to Vidor from Dallas, because evidence of past crimes is not probative regarding future crimes. We shall hereafter refer to these offenses as the "December offenses."

Adams contends that this testimony was admissible to establish Harris' bias and motive for testifying against Adams. Adams argues that the failure of the Orange County authorities to take any action against Harris based on the December offenses affords the basis for an inference that a bargain had been made with Harris in exchange for his testimony.

However, Adams' trial counsel did not raise the contention now made on appeal – that Harris was disposed to lie to obtain lenient treatment from the State. Rather, the contention made before the trial court was that the evidence concerning the December offenses showed that Harris was on a criminal spree during the time period in question, and that Harris had a propensity to blame others for his own criminal conduct. Such evidence is inadmissible for the reason stated above.

II. Turko’s Truthfulness

[Adams contends that the trial court erred by refusing to allow the jury to hear of questions regarding the truthfulness of Officer Teresa Turko.] Officer Turko was Wood's partner. Turko testified that she was standing near the right rear corner of the assailant's car at the time Wood was shot and that she saw only one person in the car. Turko could not identify this person since she saw only the back of his head, but she did testify that Adams's hair was the same color and worn in the same style as that of the man in the car.   Turko also testified that Harris' hair was not similar in either color or style to that of the man she saw.

Outside the presence of the jury, Turko testified that an internal affairs investigation of her conduct on the night of the shooting was conducted by the Dallas Police Department after questions were raised as to the truthfulness of her original report. Although she was not formally suspended, Turko was relieved of her duties for ten days while this investigation took place. As a result of the investigation, the charges against Turko were determined to be unfounded.

The trial court granted the State's motion prohibiting Adams  from introducing evidence of the investigation of Turko's conduct.

III. Emily Miller’s Changed Testimony

[Adams also argues that the failure to allow the jury to hear of Emily Miller’s changed testimony constituted serious error.] Three witnesses testified that they drove past the scene of the shooting after the assailant's car had been stopped but before Wood was shot. Emily and Robert Miller testified that they saw only one person in the suspect car and identified Adams as that person. Michael Randall testified that he saw two people in the suspect car and identified Adams as the driver.

Each of these witnesses gave a written statement to the police soon after the shooting. In Emily Miller's statement, she describes the assailant as "a Mexican or a very light skinned black man." Adams contends that, since he is neither black nor of Mexican descent, this prior statement was relevant to the issue of Emily Miller's credibility and that the prosecutor improperly withheld the statement from Adams’ attorney.

Adams learned of the existence of Emily Miller's statement when, three days after she testified and after Adams had waived her further appearance, Adams's  trial counsel asked the prosecutor to see the written statements of the three identification witnesses. At this point in the trial, both sides had rested and Emily Miller had moved to an unknown address believed to be in Illinois. Given the uncertainty as to whether and when Emily Miller could be located, the trial court refused Adams's request to introduce her statement into evidence.

Prior to trial, Adams filed a motion for the disclosure of evidence favorable to the accused in which he requested, among other things, the statements of witnesses. Adams contends that the failure of the prosecutor to comply with this motion with respect to Emily Miller's statement denied him due process of law. A defendant is entitled to examine the prior statements of a State witness only if he makes a timely and specific request to do so following the witness' direct testimony. Adams did not specifically request to see Emily Miller's written statement until three days after she had testified. This was not a timely request, and Adams may not complain of the failure of the prosecutor to disclose the statement earlier.

IV. Psychiatric Testimony of Dangerousness

In his final ground of error, Adams contends that the evidence is insufficient to support the jury's affirmative answer to the second punishment issue [the death penalty]. At the punishment hearing, Dr. John Holbrook, a psychiatrist, testified that he had examined Adams and determined that he has the profile and characteristics of a sociopath. Holbrook also testified that he would expect little or no change in this diagnosis in the future and that, in his opinion, Adams would commit criminal acts of violence in the future that would constitute a continuing threat to society. Dr. James Grigson, another psychiatrist, gave similar testimony. This testimony, when considered with the evidence of the crime itself, which was a particularly senseless and motiveless killing, is sufficient to support the jury's determination that Adams would constitute a continuing threat to society.

The judgment is affirmed.