Through the Window (22 page)

After his testimony, Sells jotted a note to his attorney. “Pope and Allen said I showed no remorse in the afternoon or that night. I called my mom crying my eyes out.”

DR. Jan Garavaglia, Bexar County Medical Examiner, started her testimony with a description of Kaylene’s body. “She was a well-developed, well-nourished post-pubertal
young white female. She’s sixty-three inches in length, five-foot-three, one hundred and fourteen pounds. She looked like she was about thirteen. She’s dressed in a kind of oversized pink tee shirt that’s torn on the front. It is blood-soaked. There is multiple defects in the tee shirt. There is a bra beneath the tee shirt, black bra. The clasp is broken on the front, and also there is a stab wound to the front of the bra. No panties are on the body. There is a necklace about the neck with a little dragonfly medallion and a wrist-watch which had the correct time.”

Sells noted his impressions of this witness: “Too smart for herself. Lots of big words, smiles a lot as she’s talking. All eyes are on her.”

“So when you say there were multiple defects to the tee shirt,” Hernandez inquired, “can you explain what you mean by that?”

“They corresponded to the stab wounds to the body that she had.”

With her testimony, the prosecution submitted one photo after another into evidence. Garcia objected each time, saying that the photographs were “highly prejudicial” and would be presented “merely to inflame the jury and would not be probative in any manner.” Judge Thurmond overruled every objection.

Then, Garavaglia began her description of Kaylene’s injuries in the neck area. “She’s got a five-inch incised wound you could see cut with a sharp force instrument across the neck, almost horizontal. It is five inches across. The lower edge is a sharp, single line. The upper edge is gaping by the time I see it, and it [ . . . ] looks like she has three separate cuts to the skin, more on the right side. The wound is kind of situated about one-and-a-half inches to the left of the mid-line, extends across the neck, across the right side of the neck almost to behind, a little behind the right ear. She has a thinner neck; everything is smaller with her, you know, because she was a small girl. [ . . . ]

“The cut extended just above the thyroid cartilage. You would know that as kind of your Adam’s apple, so it is just
above that. That thyroid cartilage which would be kind of like, you know, our voice box area, that’s just kind of hanging open. It is completely cut. In fact, the top portion is cut in half. [ . . . ] Her carotid artery is cut, and her jugular vein, which is a large vein on the right side, both those are cut on the right side. The left side is not as deep. Now, again, it is cut [ . . . ] on the right, down to the vertebrae, but on the left, the posterior aspect of the larynx is still there, what we call the pharyngeal muscles, but the right side is cut. The left side is there,” she pointed out on the photo, “but behind those, there is another cut, so the knife had to come across and then back in, and it cuts behind that and then actually makes a slit behind those posterior muscles on the left on to the vertebral bodies, which are the vertebrae of the neck.”

Pointing to a photograph, she started with the neck area, explaining, “You don’t see the carotid and jugular because they contract [ . . . ] but what is important [ . . . ]” is that “[ . . . ] the slit doesn’t cut the pharyngeal muscles in the back, but there is another cut beneath the cut, which indicates there is at least one cut across, and then it has to go back behind those muscles and then cut again. There is no way else you can get that.” These incisions were one of three fatal injuries inflicted on Kaylene.

“These pictures are killing me. This lady is killing me,” Sells complained on paper. Then, in large letters, he wrote, “I don’t want to see this shit.”

After completing her description of the incisions to her throat, she embarked on a description of the stab wounds to the young girl’s body. “She had a total of sixteen stab wounds [ . . . ] actually nineteen stab defects, sixteen stab wounds with three of those completely going through the body, having an exit defect to it.”

Following the order of her examination of the body, she listed them all. “The stab wounds to the upper chest area, you can see there are four of them.” Holding up the gruesome autopsy-room photo, she pointed out the injuries one by one. The first two extended deep into the right lung.
The third had crossed the mid-line and then entered the right lung. The fourth penetrated the left lung. “They were so deep that two of them [ . . . ] appear to go completely through the body and exit the back.” The combination of wounds to the lungs was the second fatal injury.

The next stab wound the doctor described is in the upper abdominal region. It passed through the abdominal wall, went through the liver, through the duodenum and about an inch from the stomach. “It is fairly deep. It is, you know, several inches deep. It is going to be about six inches into the abdomen.”

She next detailed wounds under the arm, one just above the left hip, and one on the left hip. This one “[ . . . ] actually hits the bone of the pelvis, stops at the bone and hits it. You can feel the mark on there.” She rubbed her finger on that spot on the photograph and continued her grisly tour of stab wounds—pointing out one on the left lateral thigh, another on the upper left arm and the two exit wounds in Kaylene’s back.

“The next stab wound [ . . . ] is mostly horizontal. [ . . . ] It actually cuts through the renal artery, which is the main blood supply to the kidney on the right. It also cuts the inferior vena cava, and that’s the main vein that drains the bottom portion of your body [ . . . ]. That wound would have been fatal in and of itself.”

“This is bad,” Sells noted.

Dr. Garavaglia explained the superficial and defensive wounds on Kaylene’s hands and arms, including one on the back of the right arm. “That one extends through the arm, actually hits the arm bone and stops at the bone. You can feel the mark on the bone that it left.”

She then enumerated the abrasions and contusions on the body. The prosecution put the focus on the two areas that supported their contention of sexual assault. First, Hernandez questioned Dr. Garavaglia on the injuries to Kay-lene’s legs.

“On the inner aspect of the thigh [ . . . ]” she said,
“[ . . . ] is a nice, discreet, oval contusion, and those kind of locations indicate oftentimes grabbing by fingers or thumbs [ . . . ]. Well, what’s unusual about it is, the stab wounds are up here. They are not down on the leg area [ . . . ] whoever has done this also has an interest in the leg area. I think it is the pattern with the forcible marks on the leg, forcibly torn panties, grabbing of the legs suggests that something else might have been going on.”

“God try to hold me still, this had nothing to do with it,” Sells wrote.

Assistant D.A. Hernandez then led her up to the victim’s genital examination, and Dr. Garavaglia stated, “The acute findings consisted of a very small contusion or bruise [ . . . ] on the internal aspect of the labia minora [ . . . ] and then there is [ . . . ] some reddening. Just where the hymenal ring goes into the labia minora [ . . . ].” The implication the prosecution wanted the jury to reach was clear—these injuries were a direct result of Sells’ finger penetrating Kay-lene’s vagina.

ON cross-examination, Defense Attorney Garcia asked, “And now in reference to [ . . . ] Kaylene’s genitalia [ . . . ] can you tell us with a degree of medical certainty [ . . . ] how that little small contusion got there?”

“No.”

“And you also said there was some reddening; this is on the outer area?”

“In that genital region? No, nothing on the outer area. It is all right at the opening of the vagina,” Dr. Garavaglia responded.

“But you cannot tell us with any medical certainty how the reddening got there?”

“No, sir.”

“You are not telling this jury,” Garcia continued, “that it is your opinion that that was done by anything that might have been penetrating?”

“No. I can’t say that,” she answered.

HERNANDEZ fired back in re-direct, “I have got two questions. You also can’t tell us that it wasn’t penetrated, is that correct?”

“Right. I cannot tell what caused that trauma.” “There is trauma,” he persisted, “but you can’t say whether it was or was not penetrating, is that correct?” “Oh, definitely. There is no way I could tell.” “And as far as the wounds on the knees and the legs, the bruises, is that consistent with somebody trying to open the legs?”

“That could be a reason, too,” Dr. Garavaglia replied.

GARCIA could not let it rest there. He asked her, “Doctor, you are not telling this jury that’s the only way these bruises could have gotten on those legs, by trying to open the legs?”

“Right, just by, as you said, grabbing at her legs, grabbing at the knee area, grabbing at the thighs.”

“Thank you, Doctor,” Garcia concluded.

SELLS’ confessions had been read in court and the videotape of his walk-through of the crime scene had been viewed. The submission of these documents into evidence compelled Garcia to recall Larry Pope to the stand.

He asked him, “Now, then, you come along sometime in the afternoon and you need another confession, right?”

“[ . . . ] I had a question about a statement that was made in the first confession, and I wanted to clear it up,” Pope responded.

“Actually, Mr. Pope, I believe the truth would be that in this confession that you had with him before, you knew that you could not make a capital murder case, and that’s the truth, isn’t it?”

“Mr. Garcia, the truth is what I have been telling you.”

“Isn’t it true that when you went back, the confession number three, you still did not have the answer that you
wanted, that there was, in fact, a sexual assault, and that’s what you needed?”

Pope bristled. “I did not need sexual assault. I didn’t need a capital murder case. I didn’t even need trespassing on this man. If the facts dictated that was the charge, then that would be the facts. You have read that statement and it speaks for itself, I believe, on saying about the capital murder charge.”

“[ . . . ] Were you not thinking at that time that you were having trouble making capital murder?”

“I’m not trying to make capital murder. I’m trying to just make what the facts tell me. If you are asking me, ‘Did I think there was a capital murder charge there?’ there had been a warrant issued for capital murder. I wasn’t sure if it was a capital murder charge, but I’m far from being an attorney.”

“I understand you,” Garcia soothed. “Do you remember when we had a prior proceeding?”

“Yes, sir.”

“Do you remember that—it was one of your answers— that you said at this time, ‘I thought we were having trouble making capital murder in my mind, because I thought that if he gave me this statement he would end up standing trial for capital murder’?”

“After he gave me the statement, I thought he would end up standing trial for capital murder. I just told you, sir, that I did not think in my mind that this was going to be capital murder prior to this statement.”

“So it was not until you got State Exhibit Number Five, which, by the way, is the last one you got?”

“Yes, sir.”

“When you finally got him to tell you that he had some penetration?”

“He did say he had penetration in this statement. The facts, all along, indicated that there has been something sexual tied to this murder.”

“But,” Garcia insisted, “you needed confession number three?”

“I got that. I don’t know if I would say I ‘needed’ anything.”

“You told Tommy Sells that if he would admit penetration that he would more than likely be getting the death penalty?”

“No way in the world [ . . . ]. There is no deal made between me and Tommy Sells about the death penalty.”

“Did you inform him prior to the time that he signed the confession number three that with that certain admission he would, in fact, be getting the death penalty, yes or no?”

“In that statement, as it says, he was brought in and he was asked a question. He answered the question that he had penetrated the girl. I informed him that I could not use [ . . . ] his verbal statement against him in court, that if that was the truth, I would like for him to give me a written statement saying that. But I needed to warn him that if he gave me a written statement saying that, he would be charged with a capital offense and could be given the death penalty. I think I even said, ‘would be given the death penalty,’ because I wanted to make sure he knew how serious this was.”

Garcia continued to press Pope. “Tommy Sells was telling you during this whole time from January second that he wanted to die.”

“January second, Tommy Sells told us he did not want to spend the rest of his life in prison. He wanted to die.”

“You knew that?” Garcia asked.

“I knew he said that.”

“And you had conversations with him all the way up to January seventh when you knew Tommy Sells would do whatever he could because he wanted to die?”

“No, sir, he had quit saying that. On January second when he said that, we talked to him, told him he would be changing his mind on that deal. When he was initially brought in, he was upset, I guess, and I think—I have heard talk before from people first arrested.”