What the dog-catchers saw

Stephen Rancourt

Assistant Criminal District Attorney in ­Wichita County

Dobie Kosub

Assistant Criminal District Attorney in ­Wichita County

Unattended children led Animal Control officers to stumble upon a violent domestic assault in progress. How a bizarre sequence of events and a difficult trial ultimately resulted in justice.

    “My dad is trying to kill my mom!” Those were the first words Officer Donald Cole with the Wichita Falls Police Department heard upon knocking on the front door of a house, where he’d been sent—not by a victim or neighbor, as is typical in most family violence cases, but by the most unlikely of sources: Animal Control officers.
    Amber Bernal and Chad Parker with Wichita Falls Animal Control were on patrol at the intersection of Avenue F and Fillmore just after noon on August 21, 2015, when they saw something concerning: twin toddler boys, clad only in diapers, wandering in the front yard of a house. Assuming they simply didn’t see the adults on the wraparound porch, the two officers circled the block and parked directly across the street from the small, two-story Craftsman. When they saw the toddlers wander between the porch and sidewalk unsupervised, they called dispatch and asked for a peace officer to check welfare.
    Seven minutes after Animal Control appeared on scene, Officer Cole arrived in his patrol unit. Having patrolled the rough area of town known as “The Avenues” for nearly a quarter of a century, he was used to these types of calls. “I was just going up there to let the parents know that their kids had gotten outside,” Cole later testified. He had no idea what was actually going on inside that house.
    Upon knocking, the door immediately opened, and two children, ages 10 and 12, rushed passed him. “My dad is trying to kill my mom!” screamed the girl. “In the kitchen!” cried the boy. The children rushed passed the officer and fled, barefoot, down the street. Stunned, Amber Bernal and Chad Parker stood next to their patrol unit and watched as the children turned the corner and disappeared.
    Officer Cole drew his duty weapon and slowly entered the cluttered house. In the back hallway, adjacent to the kitchen, he was met by Scott Paul Wayne, a 40-year-old unemployed HVAC technician. “My wife went crazy and tried to stab me,” Wayne declared, as he vigorously shook his hand in pain. Unable to see into the kitchen from where he was standing, Cole ordered Wayne to the front room and made his way toward the kitchen.
    Lying partially under a fold-up card table in a kitchen covered in a combination of trash, dirty dishes, and debris, was Lacy Shoffit (not her real name), Scott Wayne’s wife. She was on her back, shaking, with her hands clenched above her and a look of terror on her face. Cole would later say that it took Lacy the better part of 10 minutes to open her hands, almost as if they had been locked shut into half-closed fists. Wayne’s pinkie fingernail would later be found in Lacy’s hair. Officer Cole tended to the woman for a few moments before returning to the front room. Scott Wayne, however, was nowhere to be found. Seconds earlier, Animal Control had witnessed Wayne scoop the two toddlers off the porch, walk them to his pickup, place them in the backseat without car seats or even seat belts, and drive off.

A marriage in crisis
Lacy Shoffit and Scott Wayne had met at a motorcycle ride on Memorial Day weekend 2010 and were married that same Halloween. Lacy had two children from previous relationships, Michael and Ashley (the 10- and 12-year-olds who fled the house), and Wayne treated his new stepchildren as his own. It wasn’t long, however, before things began to go downhill. Wayne’s HVAC business struggled, and after the death of his best friend in late 2011, Wayne became increasingly erratic and difficult to be around. Not long after their twin boys were born in December 2012, Wayne began living in the travel trailer parked in the backyard. He also grew increasingly paranoid, delving into various conspiracy theories and installing security cameras on the house. By 2015, Scott and Lacy were barely on speaking terms.
    The toddlers were often a point of contention. One time, Wayne took their single set of car seats from Lacy’s van, loaded his sons in the pickup, and took off for their lake cabin while Lacy was in the bathroom. Upon seeing her husband and toddlers missing, Lacy and her two older children made the hour drive to Lake Kemp and confronted her husband, who acted as though nothing was wrong. When Wayne tried to take the twins to the lake in July 2015 instead of accompanying the family to Lacy’s grandmother’s funeral, Lacy drew a line in the sand.  After Lacy threatened divorce, Wayne finally acquiesced to her insistence and silently brooded in the backseat of the van as the family made the trip to Alabama.
    On August 18, the two had another blowup. Through a series of texts, Wayne brought up the divorce his wife had warned him of, and for the next two days he stayed at the lake by himself, with no communication between the two. By the time he arrived home in the late morning of August 21, he was ready for a fight.
    Lacy and her son Michael were in the kitchen when Scott Wayne walked through the back door. Without acknowledging his wife or stepson, Wayne found his toddler boys in the front room and asked them if they were ready to go to the lake. Overhearing this, and knowing that the only set of car seats were in her vehicle, Lacy grabbed her key fob and locked the van. When Wayne found the car seats inaccessible, he was enraged. He went back inside to confront his wife, barely noticing that his toddlers had followed him outside. They watched as their father shut the front door behind him and disappeared. Not five seconds later, Animal Control officers made their first pass by the house.
    In the kitchen, an infuriated Wayne screamed at his wife. When Lacy reached for her phone to call the police, he snatched it out of her hand. The two were struggling over the phone when Wayne reached up and grabbed Lacy’s hair. Michael ran upstairs to his sister when he saw Wayne yank his mother’s head back, forcing her to the ground.
    Ashley was watching TV when Michael came into her room. They had seen plenty of arguments between their mom and stepdad, but it had never been physical. When they heard a loud bang, however, they rushed downstairs. Ashley peered into the kitchen doorway to see Wayne on top of her mother, screaming profanities. In his hand was a kitchen knife. “Call 911!” Lacy cried to her daughter. Wayne turned and looked at Ashley. “No!” he commanded. “If you call 911, I’ll kill your mom, and you’re next!” Wayne ordered his stepdaughter to sit on the couch, and Michael, who had fled back upstairs, came down and sat with her. The two pre-teens sat there, unsure what to do, when moments later Officer Cole knocked on the door.

The investigation
The case was assigned to Detective John Laughlin, a 21-year WFPD veteran who had spent the past nine years in the Crimes Against Persons unit. Detective Laughlin, a dogged and meticulous investigator, took detailed statements from Lacy, Ashley, and Michael, as well as the Animal Control officers and other family members. Detective Laughlin also obtained audio recordings from CPS investigator Amanda Moreno, who interviewed the children nine days after Laughlin.
    Scott Wayne was arrested two weeks after the incident, and five days after going into custody, Detective Laughlin paid a visit. After waiving Miranda, Wayne insisted that his wife had pulled a knife on him after he threatened to call CPS based on the state of the house and Lacy’s lack of proper supervision of his children. After Lacy pulled the knife, Wayne used the hand-to-hand combat techniques he learned during his time in the Air Force to take her to the ground and disarm her. During this struggle, daughter Ashley came into the doorway of the kitchen, and Wayne claimed she simply misinterpreted what she had seen. He denied threatening the child and insisted the struggle had begun only after his stepson Michael had left the kitchen. He also contended that he had picked up his twins and set them down inside the house and had never left them outside unsupervised.
    Most importantly, Wayne mentioned a piece of evidence that patrol officers had overlooked: the surveillance videos taken from cameras on the home’s roof. The videos, Wayne insisted, would prove his innocence. Laughlin tracked down the DVR, now in Lacy’s possession, and obtained consent to search from both Wayne and Lacy. It wasn’t until nearly a month after the incident that Detective Laughlin was able to review those videos, which would prove to be Wayne’s downfall.

A problematic victim
By the time the case was submitted to our office, Lacy Shoffit had already come in and applied for a protective order. Unfortunately, the misdemeanor prosecutor who handled the protective order had allowed Lacy to testify at both the ex-parte and final hearings instead of simply asking for a stay-away order as a condition of the bond. Defense counsel had two separate transcripts of her testimony.
    The protective order suits were not the only hearings at which Lacy testified before trial. After Wayne was arrested, she followed through on her divorce threats, and by January 2016, against the wishes of our office, she testified once again at her divorce proceeding. Lacy had now given no fewer than six statements: to patrol officers, CPS investigators, WFPD detectives, and then three in-court statements under oath. We knew that each facet of her portrayal of events would be scrutinized in detail.
    We were thankful that each account of her ordeal was almost universally consistent. After Wayne forced her to the ground by her hair, he had pulled a foot-long bread knife from the butcher block and attempted to stab her with it. With all her might she grasped his wrist with her hands, as Wayne continued to move the knife from her face to her chest, stomach, and back to her throat. “I thought that was the end. That my children would find me dead in a puddle of blood on the kitchen floor,” Lacy testified at trial.
    Lacy’s problems as a witness did not end with her multiple statements. When her son Michael’s father had died years before, Lacy became the trustee for the boy’s inheritance: a $250,000 life insurance policy and monthly veteran’s survivor benefits. Instead of investing the money for her son’s benefit, Lacy used the money to purchase the lake cabin, jet skis, a travel trailer, and nearly a dozen assorted mini-bikes and four-wheelers. Even their house was in the boy’s name. The jury later heard that information, as it played to the defense’s theory that Lacy was the aggressor when Wayne threatened to call CPS: If the children were removed from the home, they argued, Lacy’s main source of income would dry up, and the misappropriation of her son’s money would be exposed. There was no way around it: The jury was not going to like her.
    Lacy’s detailed account of her marriage to Wayne also presented a third problem. In most family violence cases, there is a trajectory of abuse that escalates into increasingly violent behavior. The “cycle of violence,” as many of us know it, is the reason that Code of Criminal Procedure Art. 38.371 exists: Most family violence cases require the jury to understand all relevant circumstances, including the nature of the relationship between the defendant and victim. Normally, that opens the door to other acts of the defendant’s physical abuse. Here, however, there was no allegations of any other physical abuse: Scott Wayne had just snapped in a one-time fit of murderous rage. A family violence expert, normally vital in these types of cases, would be of no value here. We had to make the jury focus elsewhere.
    We decided to concentrate on Ashley’s excited utterances and make the case about what the meek and reserved 12-year-old had witnessed. Although Detective Laughlin had done an excellent job conducting his investigation, we realized we needed to talk to one more person. When the children fled down the street, they headed to a relative’s house three blocks away. It took our investigator, Donnie Cavinder, a half day to find her the week before trial. Brenda Rodriguez still remembered the exact words Ashley screamed when Brenda swung the door open: “He’s got a knife to her throat! He told me he would kill her and me if I called 911!” We supplemented our witness list with Brenda’s name two hours before the court-ordered deadline.
    Lacy wasn’t the only one who had provided multiple statements. In addition to Scott Wayne’s statement to Detective Laughlin, Wayne had also testified at the divorce hearing. He again lied about leaving the toddlers in the yard, but his claims of self-defense were mostly consistent with his custodial interrogation. After going back and forth, we decided that his statements were too self-serving to let the jury hear, and we moved to exclude them under Allridge v. State.1 If the defense wanted the jury to consider Wayne’s version of events, he would have to take the stand.
    The defense also knew the timeline limited its options. Arguing that Lacy conspired with her children to set up Wayne would fall flat, so the defense focused instead on concept of memory and children’s misperceptions. By the time they gave notice of a psychologist expert, we knew that the theory of “false memories” was going to be a major point of contention. Fortunately, Stephen had recently tried a child sex abuse case where the concept of false memories was at issue with another well-known forensic psychologist defense expert. And thanks to the generosity of the Dallas County Criminal District Attorney’s Office, which had compiled nearly 1,300 pages of opposition research on the topic, we were prepared. Tailoring a cross-examination to fit this particular set of facts only took a few days of brushing up.

The trial
When the time came for trial, we knew that we needed to get as much evidence out as possible before calling Lacy to the stand. We decided to mostly follow a linear sequence of events. Animal Control Officer Amber Bernal was first, followed by Officer Cole. Michael and Ashley followed. We decided not to show the children their prior statements, not wanting their testimony to be tainted by any allegation they were overly coached by our office. Two years later, Michael remembered only seeing his mom taken to the ground and not much else. He was, however, appropriately emotional on the stand. Ashley did better, remembering the knife in her stepdad’s hand, that the blade was silver, and one of the words Scott yelled repeatedly after ordering Ashley to sit on the couch: “whore.” The defense cross of the children was relatively short and passive.
    During trial prep, we had gone over just about everything with Lacy. On cross, we told her, be respectful, not argumentative. Don’t disagree when confronted with a transcript of your prior statements. And above all else, sit up straight, make eye contact, and tell the jury what happened.
    All our preparation, however, went out the window the moment Lacy took the stand. For the entirety of her testimony, she sat hunched, angling away from her husband, her eyes closed tight. Even preliminary questions took her many seconds to answer, as she trembled in a kind of faux-horror. She was clearly under a lot of stress, and perhaps we’re just cynical people by nature, but it was almost as if Lacy was embracing the moment and milking the attention. And though we had requested she wear her “Sunday best” to court, the pink leopard-print tank top she chose for the day of her testimony did us no favors. In our combined 22 years as prosecutors, she was the most challenging victim-witness we had seen take the stand. A juror would later tell us that, within moments of retiring to deliberate, they decided to discount Lacy’s testimony in its entirety.
    On a positive note, Lacy was not our last witness. Brenda Rodriguez, to whose house the children had fled, testified to what Ashley told her, giving us two excited utterances to hammer home at close. After calling the arresting officer and an ID tech to explain why there were no prints on the knife, we ended with Detective Laughlin.
    For an hour, the detective walked the jury through his investigation, concluding with the piece of evidence we had teased the jury with during opening statements: the surveillance video from Wayne’s own home. Using a demonstrative timeline, Laughlin walked the jury through every bit of that video and its two camera angles. The jury watched the defendant attempting to get the car seats from his wife’s vehicle, then disappearing into the house and leaving his toddler sons in the yard. Eight minutes later, they saw Ashley and Michael emerge from the house and run south. And approximately one minute after that, they observed footage of the defendant walking deliberately to his pickup with a child in each arm, place the children in his back seat, and drive off. Eleven seconds after Wayne turned the corner, the jury saw Officer Cole’s backup arrive.
    The wealth of material from the Dallas DA’s Office was sufficient to neutralize defense expert Dr. David Sabine. Although affable and charming, the doctor had to admit that children’s memories are, generally speaking, as good as adults by the time they reach age 10. Based on the timeline, he also conceded that there was no way Lacy had either conspired with or pressured her children into bearing false witness. At most, the stress of witnessing the events combined with the children’s love of their mother and dislike of Wayne had resulted in a false memory: Ashley and Michael were testifying to their perceptions of the truth, he surmised, but their perception could be different from reality.
    After going back and forth, Scott Wayne elected not to testify. Because we had kept all the defendant’s statements out of evidence, the jury was not provided a self-defense instruction.
    The jury was out four and a half hours before returning their guilty verdicts on both counts. Although probation-eligible from the jury, the defense decided to take the risk that our visiting judge would be more lenient. After proving up some minor misdemeanor convictions and the defense calling two character witnesses, the judge sentenced Wayne to 10 years on the aggravated assault with a deadly weapon and five years on the obstruction count. At our request and pursuant to CCP Art. 42.013, a family violence finding was included in the judgment.

Conclusion
Domestic violence cases are among the most difficult cases to win. Usually, victims either don’t want to testify, or they have something to gain from their abuser’s conviction. Because protective order hearings will come more quickly than trial, our office has taken measures to ensure we catch these cases when victims come into our office to apply for protective orders, and we have worked to add bond conditions in lieu of allowing multiple opportunities for in-court cross-examination.
    Ultimately, however, cases need to be won with victims. Lacy is a victim of a horrible crime, but we underestimated how unlikeable she would come across to the jury. In retrospect, we didn’t do nearly enough to make Lacy fully appreciate how her demeanor, eye contact, and physical appearance would be as critical to her credibility as the words coming out of her mouth. In closing argument, we acknowledged her faults but redirected the focus to the children and what they had witnessed. Their testimony was powerful. However, if not for the unexpected presence and decisive action of Animal Control officers that day, this unfortunate sequence of events might have had a more sinister ending.

Endnote

1  762 S.W.2d 146 (Tex. Crim. App. 1988).