Judge Bars Defendant’s Tape in Murder Trial

Dealing a serious blow to the prosecution in the case of a Vista woman charged with killing her brother, a Vista Superior Court judge on Wednesday threw out a tape recording made on a microcassette player in her purse at the time of the crime.

After a two-day hearing, Superior Court Judge Herbert Hoffman said the recording, which revealed that Evanna Cavanaugh fired five shots at Charles Phegley in their mother’s Leucadia home, must be suppressed because sheriff’s detectives failed to obtain a search warrant before they listened to it.

Wednesday’s ruling followed another key twist in the case. On Friday, Hoffman excluded the tape-recorded confession Cavanaugh made to sheriff’s detectives shortly after the killing, ruling that the officers pressured her into talking after she had asked to see an attorney.

The twin rulings delighted defense attorney Charles Goldberg of San Diego and have left Wade Abbott, the deputy district attorney handling the case, with a greatly diminished arsenal of evidence.

“This really hurts us and weakens the case, no question,” Abbott said. “The tape (made on Cavanaugh’s recorder) was very important because it did not corroborate the defendant’s contention that she acted in self-defense. As far as we can tell, there is nothing on it to suggest that she was in imminent peril.”

Cavanaugh, 47, has pleaded not guilty to charges of first-degree murder in the Nov. 19, 1985, shooting. Goldberg argued that although his client may have fired the shots, she was merely protecting herself from Phegley, who had a history of mental illness and had demonstrated violent behavior toward family members in the past.

After the shooting, Cavanaugh told investigators she had brought a loaded .38-caliber pistol to her mother’s house so the elderly woman would have some protection against Phegley, 44, who lived in a guest house on the property.

Prosecutors, however, contend that Cavanaugh, former head of the Vista Crime Prevention Commission and a Sunday school teacher, planned to kill her brother. They said the shooting occurred while the siblings were arguing over a disputed check from rental property the two owned jointly.

In court Wednesday, Abbott attempted to persuade the judge that detectives--who had obtained consent from Cavanaugh to listen to the recording in her purse--would inevitably have sought and received a search warrant and heard the tape anyway.

But Hoffman disagreed, reasoning that there was not sufficient evidence to ensure that such a warrant would be issued. Moreover, Hoffman noted that Cavanaugh’s consent was tainted because of the illegally obtained confession.

“We’re pleased,” Goldberg said after the ruling. “Now if the case is tried it will be resolved on evidence obtained legally at the scene.”

A third tape remains the last key piece of evidence still admissible by prosecutors. That tape is of a call Cavanaugh made to the 911 emergency line after she had shot Phegley four times. While talking hysterically to the 911 dispatcher, Cavanaugh suddenly drops the phone and fires a final shot at Phegley, according to the tape, recorded automatically.

In the tape of the call, Cavanaugh says: “I’m sorry, he tried to get up. He started to get up. He started to come. . . . “

Despite the existence of that tape, prosecutors said they probably will meet with Goldberg in the next few days to discuss a plea bargain for Cavanaugh, who is undergoing treatment for cancer.

Meanwhile, both the district attorney’s office and the Sheriff’s Department are investigating allegations of misconduct and perjury by the detectives who handled the case.

Goldberg made the charges against the officers outside Hoffman’s courtroom Tuesday after two detectives changed their testimony. Phil Walden, supervising deputy district attorney in North County, said he is “very concerned” about the allegations and briefed Dist. Atty. Edwin Miller about them Wednesday.

“These are very serious allegations, and in light of the court’s rulings, we have an obligation to determine in our own mind whether there is any substance to them,” Walden said. “Obviously, this matter has hurt the viability of the case.”