The State Of Tex. v. Krizan-wilson

321 S.W.3d 619

The STATE of Texas, Appellant,

v.Carolyn Sue KRIZAN-WILSON, Appellee.

No. 14-09-00475-CR.

Court of Appeals of Texas,Houston (14th Dist.).

June 22, 2010.

Rehearing Overruled Sept. 23, 2010.

Peyton Peebles III, Houston, for appellant.

Jessica Akins McDonald, Houston, for appellee.

Panel consists of Chief Justice HEDGES and Justices ANDERSON and CHRISTOPHER.

OPINION

ADELE HEDGES, Chief Justice.

Appellee, Carolyn Sue Krizan-Wilson, was indicted on July 14, 2008 for the murder of her husband, Roy McCaleb, who had been killed on September 22, 1985. Appellee filed a motion to dismiss the indictment based on the nearly twenty-three year prosecutorial delay between the alleged offense and the filing of charges. The trial court granted the motion and dismissed the case. The State of Texas now appeals the order of dismissal. We reverse the trial court's order and remand for further proceedings in accordance with this opinion.

I. Background

In her motion to dismiss the indictment and in a subsequent hearing on the motion, appellee asserted that the State's delay in bringing charges violated her right to due process as guaranteed under the Fifth Amendment to the United States Constitution. Appellee additionally argued that the pre-indictment delay violated her rights to (1) a speedy trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, article I, section 10 of the Texas Constitution, and article 1.05 of the Texas Code of Criminal Procedure; (2) due course of law under article I, section 19 of the Texas Constitution; (3) a fair trial pursuant to the Sixth Amendment; and (4) testify and present a defense, as guaranteed by the Fifth and Sixth Amendments, article 1, sections 10 and 19 of the Texas Constitution, and the Texas Code of Criminal Procedure. Appellee finally asserted that the indictment was barred by the doctrine of laches. The trial court suggested sua sponte that the delay may have violated her right to effective representation under the Sixth Amendment and article I, section 10 of the Texas Constitution. Except for the speedy trial ground, the trial court entered findings of fact and conclusions of law in support of each of these grounds for dismissal.

Numerous witnesses were called by each side during the hearing on the motion to dismiss. Waymon Allen, a private investigator hired by appellee's current counsel, testified that in 1985, appellee had hired attorney Clarence Thompson to represent her. Thompson died in 1988, and Allen testified that his attempts to locate Thompson's files relating to appellee were unsuccessful. Allen additionally stated that Thompson had hired Rafael Gonzalez as an investigator in the case. Gonzalez did not now recall the case, and the evidence Gonzalez turned over to Thompson had been lost. Thompson had also hired a forensic examiner, Floyd McDonald, who is also now deceased. Allen, the current investigator, recounted that around the time of her husband's murder, appellee made outcry statements that she had been sexually assaulted ten days before the murder. It was a theory of the defense that the rapist later returned and murdered Roy McCaleb. The vehicle in which the sexual assault allegedly occurred apparently had never been processed for evidence by the Houston Police Department (“HPD”) and presumably was no longer available for such processing. Allen reported that records pertaining to appellee's outcry to a fellow employee were unavailable.

Allen testified that medical records were also not available regarding a worker's compensation claim McCaleb made not long before his death. According to Allen, this evidence would have been relevant to rebut the State's theory that appellee's motive for murdering McCaleb was to collect life insurance proceeds because the expected workers' compensation recovery called into question the alleged motive.

Allen further discussed several other problematic witnesses: Carl Fuller, who was at appellee's house on the day of the murder, had a “bad” memory; Gary Bunker, who “heard gunshots and some voices” on the night of the shooting, was now deceased; Harry Krater, a former next door neighbor whom appellee reportedly “told ... everything,” could not be located. Allen concluded by stating that he had not seen any “newly discovered facts, witnesses, [or] physical evidence” in the case since 1985.

Jon DeFrance, a neuropsychologist and neuroscientist, testified regarding appellee's mental faculties, her ability to testify, and her ability to aid counsel in her defense. Specifically, he stated that compared to her abilities in 1986, she would now be at a “tremendous disadvantage” in terms of assisting her counsel at trial. DeFrance performed an in-depth evaluation of appellee and concluded that she had “deficits” compared to age norms in four areas: processing speed, memory, attention, and “executive functioning”; the latter facility DeFrance described as a “general control over the person's behavior.” He said that appellee reported suffering a “very significant head trauma” when she was in high school and that this event might explain her comparatively decreased functioning. DeFrance additionally suggested that appellee should not testify due to the inherent stress involved, coupled with her propensity to become confused and her lack of memory precision. He acknowledged, however, that she was competent to stand trial.

Appellee's son, Lloyd Gregory Krizan, testified that before retirement he was an HPD lieutenant. He explained that appellee's mental abilities, including her memory, have progressively deteriorated since 1985. He said, for example, that she regularly repeats herself and cannot “tell a story and keep her facts straight.”

Robert Parrish, one of the homicide investigators who worked on the murder investigation in 1985, testified that appellee was not arrested for or charged with McCaleb's murder at that time because the police investigators and the assistant district attorney (“A.D.A.”) assigned to the case “were all in agreement [that] they just didn't have enough to go forward with a winnable case.” He did not believe that any additional evidence regarding the case had been developed in the intervening years despite additional forensic testing. He denied that the delay in prosecution was for the purpose of gaining a tactical advantage or to be unfair to appellee. Lastly, he stated that his opinion with regard to whether murder charges should be brought against appellee had not changed.

D.S. Wilker testified that she is a retired police officer who had been “brought back” to work on the HPD Cold Case Squad. In 2007, Wilker reexamined the McCaleb murder case. She requested that DNA testing be performed on certain evidence, but no new evidence was developed. She did not bring the case to the attention of the district attorney's office or otherwise seek to have charges filed.

Victor Wisner testified that he formerly worked at the Harris County District Attorney's Office. He stated that while he was there, Wilker regularly contacted him regarding cold case files. When she called him regarding the McCaleb murder investigation, they arranged a meeting with the two of them, a D.A.'s office investigator, a police captain, and a police lieutenant. After that meeting, Wisner decided to file murder charges against appellee. He understood that the original A.D.A. on the case in 1985 did not think the case was worth pursuing but that he [Wisner] and two other current A.D.A.s believed otherwise. According to Wisner, the police captain who attended the meeting explained that charges were not filed in 1985 because of a perceived inability to disprove appellee's version of events ( i.e., that the rapist who had previously attacked her returned and murdered her husband). Wisner felt this concern to be unimportant; he thought that the case against appellee was “a lot better than a lot of cases that are tried here every day.” He stated that in 1985 prosecutors filed a “ludicrous bigamy case” against appellee, which was subsequently dismissed. He opined that embarrassed prosecutors did not wish to further pursue any case against appellee. In his opinion, no one in the D.A.'s office or HPD delayed the case in order to gain a tactical advantage.

At the conclusion of the hearing, the trial court granted appellee's motion to dismiss. In comments accompanying the ruling, the trial judge concentrated on the Fifth Amendment due process issue. The court further suggested that if the charges proceeded to trial, appellee would be denied effective assistance of counsel due to the loss of evidence and the loss of appellee's ability to effectively communicate with counsel.

After the hearing, the trial court entered findings of fact as follows: DeFrance was an expert, and based on his testimony, appellee's mental state had deteriorated more rapidly than average, rendering her “effectively unable to testify,” and “severely disadvantaged in assisting her counsel.” Greg Krizan's testimony was credible concerning appellee's mental deterioration and lessened ability to recall details. Based on Allen's testimony, Thompson (appellee's former counsel) and McDonald (the forensic examiner hired by Thompson) were deceased, and Gonzalez (appellee's former investigator) did not recall the work he performed on the case. Various items relating to Thompson's representation and Gonzalez's investigation had been lost, as had medical records relating to appellee and McCaleb. Other potential witnesses, including Fuller, Bunker, and Krater, were either deceased, unable to be found, or suffering from poor memory. Based on Wilker and Wisner's testimony, HPD had conducted no additional investigation and had discovered no new evidence since “1985 or 1986.” The State was prosecuting appellee despite prosecutors' knowledge that evidence favorable to the defense had been lost or destroyed and that “the original lead...