Tape Recording of Slaying Is Played in Court

A 47-year-old Vista woman Thursday was ordered to stand trial in Superior Court on a first-degree murder charge in the fatal shooting of her brother--a shooting dramatically captured on a tape recording of emergency calls to the Sheriff’s Department.

Evanna Marie Cavanaugh sat calmly in a courtroom here as Municipal Judge William Draper ordered her bound over for trial in a shooting that has left friends and acquaintances of Cavanaugh shocked and disbelieving.

The most dramatic twist in the story came Thursday when prosecutors played the tape in court to buttress their claims that Cavanaugh--mother, Sunday school teacher, civic activist--intended to kill her 44-year-old brother, Charles Phegley, on Nov. 19. They argued that she wanted to end their persistent disagreements over income from rental property they owned jointly in El Cajon.

At one point on the tape, Cavanaugh dropped the phone, grabbed a .38-caliber handgun from a kitchen counter, screamed and fired a final shot at her brother. Then, she resumed her conversation with a sheriff’s dispatcher.

“I’m sorry, he tried to get up,” Cavanaugh said. “He started to get up. He started to come, I thought he started to come . . . . He hit me the other . . . he hit me the other day so hard.”

Deputy Dist. Atty. Susan Biery contends that the final shot recorded on the tape may have been the one that killed Phegley.

Cavanaugh is a mother of four who has been an active participant in church and civic affairs such as teaching Sunday school at the Community Church of Vista. She has also been involved with initiatives to limit growth in Vista and has worked on the Vista Crime Prevention Commission.

After Cavanaugh’s arrest, friends rallied to her support, starting a fund to help the family with legal costs. Two people even offered up the deeds to their homes as security for her release.

But on April 17, Cavanaugh will be arraigned in Superior Court and a date will be set for her to go on trial for murder.

Cavanaugh’s attorney, Charles Goldberg of San Diego, argued that Cavanaugh was acting in self-defense when she shot her brother at their mother’s home in Leucadia. Goldberg argued that Phegley was mentally disturbed and had acted violently toward Cavanaugh and other relatives in the past.

Sheriff’s deputies said that Cavanaugh told them she brought a gun to the house on Andrews Street so her elderly mother would have protection against Charles, who was living in a guest house at the rear of the property.

Prosecutors disagreed. To prove she acted with intent, they relied on a tape recording of the 911 emergency telephone call Cavanaugh made to Deputy Marshal Nickey the morning of the shooting.

Nickey played the dramatic tape for the judge and courtroom audience, which included Cavanaugh’s mother and several friends. The recorded conversation between the two, which spans about 10 minutes, is punctuated by the hysterical screaming, stuttering and sobbing of Cavanaugh.

A second tape, made on a tape recorder Cavanaugh was carrying in her purse the day of the shooting, was also introduced as evidence by prosecutors. This tape was not heard by the courtroom audience, but a transcript was made available to reporters.

Cavanaugh’s tape covers not only the shooting and conversation with Nickey, but also the argument with Phegley that preceded his death. It was not clear why Cavanaugh made the tape.

According to the transcript, Cavanaugh was attempting to discuss business interests the two share; Phegley refused to address that topic and instead told his sister he intended to commit suicide.

Finally, the transcript indicates, Phegley became angry and screamed at Cavanaugh to “get out of my life.” Then, a shot was fired; a second shot followed soon after, and Cavanaugh said, “You aren’t going to hit me anymore.” A third shot was fired, and then Cavanaugh dialed the 911 emergency line.

Goldberg had argued that Cavanaugh should be charged, at most, with involuntary manslaughter because the tapes showed that his client had a reasonable fear for her life and safety.

“Here was a large man, with severe mental and emotional problems, who had previous attacks,” Goldberg said.”(The tapes show) she appeared to be afraid of him. Listen to it: ‘Yes he’s done it before,’ ‘He’s come after my mother,’ ‘He’s hit me,’ clearly shows a state of mind of reasonable fear.”

Goldberg also argued that the firing of the last shot was not relevant, saying that there was “no evidence that that shot caused the death.”

Biery, however, argued that while Phegley appeared upset, the tapes did not indicate that he intended to attack Cavanaugh. She also questioned why Cavanaugh brought the gun with her to the house.

“Why did she bring the gun at a time her mother was not going to be there but when she knew the victim was going to be there?” Biery asked rhetorically. “It was to shoot him and to end the arguments that had gone on. There was no evidence that the victim hit her at any time that day yet she uses deadly force. Clearly, by the time we get to the fifth shot there was malice involved.”

After the hearing Goldberg expressed disappointment with the ruling.

“I think the evidence shows there was a reasonable fear on her part to support the charge of manslaughter,” he said.

Cavanaugh remains free pending the trial.