Second Tape by Vista Community Leader Questioned : Confession Thrown Out in Leucadia Slaying

In a move that prosecutors say could dilute their case against a Vista woman charged with killing her brother, a Vista Superior Court judge this week threw out a tape-recorded confession she made to investigators shortly after the crime.

But the judge agreed to give prosecutors a second chance to argue against suppression of another tape considered key to the case--a recording accused killer Evanna Cavanaugh made of the November, 1985, shooting.

Judge Herbert Hoffman ruled Thursday that Cavanaugh’s confession that she shot Charles Phegley, 44, during an argument at their mother’s Leucadia home was inadmissible because detectives pressured her into talking after she asked to see an attorney.

Hoffman also threatened to throw out the tape recording Cavanaugh made of the shooting, saying prosecutors learned of it during the confession and then pressured her to sign a release form.

But the judge agreed to give prosecutors a second chance Monday to argue for use of the tape during the trial, which is scheduled to begin Jan. 20.

Wade Abbott, the deputy district attorney handling the case, said he planned to stress that the tape ultimately would have been obtained by investigators even if Cavanaugh hadn’t signed the consent form.

Abbott said that if the 47-year-old woman had refused to turn over the tape, investigators would have sought and received a search warrant to seize the recording.

Investigators say they discovered the tape shortly after the shooting when a detective spotted a small recorder inside Cavanaugh’s purse, which was sitting open on a counter. A light on the machine indicated the tape recorder was running, investigators said.

Abbott said the tape would likely prove important in the case against Cavanaugh, a longtime community leader in Vista and former head of the city’s crime commission.

“That tape is the only physical evidence there is of what happened out there,” Abbott said. “She claims she acted in self-defense. I’m saying there’s nothing on the tape that bears that out.”

A third tape also exists from the night of the killing. Cavanaugh called the Sheriff’s Department on the 911 emergency line and, in the midst of asking for help, fired a shot at her brother.

In the tape of the call, which was recorded automatically, Cavanaugh said “I’m sorry, he tried to get up. 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.”

Cavanaugh has pleaded innocent to first-degree murder charges in the case. Her defense attorney, Charles Goldberg of San Diego, could not be reached for comment Friday.

But in court, Goldberg has maintained that while his client may have fired the shots, it was only to protect herself from Phegley, who was mentally disturbed and had a history of violent behavior toward family members.

After the shooting, Cavanaugh told sheriff’s deputies that she had brought the gun to her mother’s house so the elderly woman would have protection against Cavanaugh’s brother, who lived in a guest house at the rear of the property.

Prosecutors say the shooting occurred during an argument over $34 Cavanaugh said Phegley owed her for rental property they jointly owned.

In his ruling that the tape-recorded confession should be thrown out, Hoffman agreed with Cavanaugh’s defense attorney that the statement was made only under pressure from detectives.

Cavanaugh was questioned by investigators at the sheriff’s substation in Encinitas after the shooting. When Cavanaugh asked for an attorney, investigators turned off their tape recorder.

Seven minutes later, however, they began recording again, saying Cavanaugh had decided to make a statement confessing to the crime.

Later, however, defense attorneys learned that a master tape machine in the Encinitas substation had recorded what was said during the seven minutes the detectives’ recording device was off.

The master tape revealed that during the seven-minute gap, detectives attempted to convince Cavanaugh to tell them about the killing, promising at one point that any statement she made would not be used against her in court, although answers to questions could be introduced as evidence.

Hoffman said it was clear the investigators had induced Cavanaugh to continue talking. Instead, all discussion should have been halted once Cavanaugh asked to see an attorney, he said.