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BILLY J. MCMAHON AND BOBBY F. MCCORMICK v. STATE TEXAS (11/22/78)

November 22, 1978

BILLY J. MCMAHON AND BOBBY F. MCCORMICK, APPELLANTS,
v.
THE STATE OF TEXAS, APPELLEE.



COUNSEL

Lawrence R. Scroggins, D. Jennings Bryant, Jr., and Barry Barton Kieval, Houston, for appellants.

William S. Warren, Dist. Atty., Center, for the State.

Author: Douglas

DOUGLAS, Judge. OPINION

Following a change of venue from Shelby County, appellants McMahon and McCormick were convicted in a joint trial for the offense of capital murder. Each appellant was assessed the death penalty.

The State alleged and proved that appellants murdered Earl Hammond for remuneration. See V.T.C.A., Penal Code, Section 19.03. The sufficiency of the evidence to support the convictions is not challenged.

The deceased's wife, Becky Hammond, and her lover, Tony Bohannon, hired appellants to execute the deceased. Bohannon first offered to employ appellant McMahon in this regard in May, 1976, when they met in a store in Center. McMahon rejected this offer and returned to his home in Houston. McMahon subsequently discussed the matter with appellant McCormick who agreed to assist him in the event an agreement with Bohannon could be reached.

Thereafter, McMahon went to Center on several occasions and discussed the murder contract with Bohannon. On one of those occasions McMahon told Bohannon that he would commit the murder for twenty-five thousand dollars. Bohannon responded that he would have to discuss the terms with another party (Becky Hammond) and then contact him again. No agreement was made at that time.

McMahon met Bohannon again in mid-June of 1976 whereupon the agreement was finally consummated. McMahon told Bohannon that he and another person would commit the murder in exchange for ten thousand dollars or more. Several days later Bohannon talked to McMahon and instructed him to kill the deceased on June 19, 1976. Appellants left Houston on that date and drove to Center. McMahon took a.32 caliber revolver with him.

When they arrived in Center, Bohannon gave the gunmen further instructions and money for the purchase of a.12 gauge shotgun. They bought such a gun in Center. McMahon gave the clerk his operator's license "for identification" and she made a photograph of it. McMahon asked for buckshot. When he was told that they had none, he stated that he wanted shot that would kill. That evening appellants hid in the woods behind the deceased's house. When the deceased returned home from work appellants executed him.

The death was caused by multiple pistol and shotgun wounds. An autopsy revealed no evidence of a struggle on the part of the deceased.

After the offense was committed, appellants met Bohannon at a predetermined location. He gave them between ten and fifteen thousand dollars in cash. This money belonged to the owners of a store where the deceased was manager and where Becky Hammond and Bohannon worked. Instead of making the deposit of the cash, it was delivered to the killers. Appellants returned to Houston the same night and fled to Mississippi the next day. They eventually went to Mobile, Alabama, where they surrendered to officers of the local police department.

Becky Hammond and Tony Bohannon testified about their roles in the offense. Both of them had been convicted for the murder and were serving their time.

A half-brother of Billy McMahon testified that Bobby McCormick and Billy McMahon came to his house in Mobile, Alabama and gave him some $1400 and a.12 gauge shotgun and told him that they had killed a "dude" with it.

Appellants waived extradition on August 9, 1976, and were returned to this State on August 11. McCormick gave a written confession to investigating officers on August 16 while he was in custody in Center. McMahon gave a written confession to officers the next day.

McCormick's first contention is that the trial court erred in ruling that his confession was voluntary and in admitting into evidence the fruits thereof. The question of the voluntariness and admissibility of the written statement, however, is not before us because it was not introduced into evidence. Ex parte Parker, 485 S.W.2d 585 (Tex.Cr.App.1972). See also Perbetsky v. State, 429 S.W.2d 471 (Tex.Cr.App.1968).

Further, McCormick does not specify what, if any, evidence was obtained as the result of the confession. The record discloses no objections by him on this basis to the evidence introduced. Moreover, McMahon's confession related the events surrounding the crime in a very detailed fashion. Assuming that McCormick's confession was obtained in violation of his constitutional rights, it is apparent that the relevant evidence would have been obtained by means sufficiently distinguishable from the underlying illegality to be purged of the primary taint. See Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); Santiago v. State, 444 S.W.2d 758 (Tex.Cr.App.1969).

McMahon contends that the trial court erred in ruling that his written confession was voluntary and admissible. He argues that the confession was the product of compulsion and inducement.

In compliance with the requirements of Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), and Article 38.22, V.A.C.C.P., the court held a hearing outside the presence of the jury to determine whether the confession was voluntary. Evidence introduced at the hearing showed that appellants were transported from Alabama to Center immediately after they were taken into custody on August 11, 1976, by three Center police officers and a Texas Ranger. McMahon was questioned during the trip by Jimmy Matthews, a policeman of Center, but he made no incriminating statements at that time and there is no indication that this questioning affected his confession which was made six days later. Compare Farr v. State, 519 S.W.2d 876 (Tex.Cr.App.1975).

McMahon testified at the hearing that when appellants and the officers arrived in Center he was taken before a justice of the peace and warned in accordance with Article 15.17, V.A.C.C.P. McMahon stated that he was interviewed on August 17 by Officer Matthews and Ranger Maurice Cook. According to McMahon, the officers told him that McCormick had confessed and that their intention was to give McMahon an opportunity to avoid the electric chair. He also testified that, before this, his father told him that he understood that McCormick had confessed. McMahon told them that he would not make a statement unless his attorney was present. McMahon testified that the officers produced McCormick's written statement and began reading from it. McMahon then gave a written statement to the officers.

On cross-examination, McMahon testified that he had stopped attending school in the tenth grade but that he had developed fair reading and writing skills. He further testified that he was not mistreated by any of the officers before he gave the confession.

Both Officer Matthews and Ranger Cook testified. Ranger Cook testified that he read McMahon his Miranda warning, had him execute a written waiver of his rights and finally obtained a signed statement. While Ranger Cook was examined extensively by both the prosecution and defense concerning McCormick's confession, he gave no further testimony concerning McMahon. Matthews testified that he made no promise to McMahon that the giving of the confession would keep him from getting the electric chair. Ranger Cook testified that he was with McMahon during the questioning except for a period of some five minutes and that Matthews made no promise to him.

The confession itself recites that Matthews and Ranger Cook were the officers that took the confession. Matthews also warned McMahon of his rights. The statement at the top of the first page recites that no promises were made to the appellant. Cook testified that he did read parts of McCormick's confession to McMahon before McMahon made his statement, but only because McMahon had already been told by his father that McCormick had confessed. Cook further testified that McMahon asked to see McCormick's confession and that when the officers refused McMahon asked them to read part of it to him. Cook denied that either he or Officer Matthews ever promised McMahon that he could avoid the death penalty by making the confession.

A confession based upon an inducement, such as a promise that the State would not seek the death penalty, would be inadmissible. Sherman v. State, 532 S.W.2d 634 (Tex.Cr.App.1976). Relying upon Farr v. State, 519 S.W.2d 876 (Tex.Cr.App.1975), appellant urges that since Matthews and Cook did not controvert McMahon's testimony at the suppression hearing the confession is inadmissible as a matter of law. When the State fails to controvert evidence of coercion, and there is no showing that the individuals who could controvert such statements are unavailable, we have long held that the confession is inadmissible as a matter of law. Farr v. State, supra; Prince v. State, 155 Tex. Crim. 108, 231 S.W.2d 419 (1950).

However, in the instant case, we cannot agree that the evidence was uncontradicted. The confession did contain a statement that McMahon had not been promised anything in return for making the confession. McMahon himself had testified that this portion of the confession had been read aloud to him. The statement in the confession and the testimony of Cook constituted evidence of the lack of any such promise. Matthews controverted McMahon's testimony during the trial.

The trial court is the sole judge of the weight and credibility of the evidence. Aranda v. State, 506 S.W.2d 221 (Tex.Cr.App.1974); Myre v. State, 545 S.W.2d 820 (Tex.Cr.App.1977). He was able to observe the demeanor of McMahon as he testified. He had before him all of the circumstances concerning the confession. He chose to disbelieve McMahon. We ...


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