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Johnny Frank GARRETT

 
 
 
 
 

 

 

 

 
 
 
Classification: Homicide
Characteristics: Juvenile (17) - Rape
Number of victims: 1
Date of murder: October 31, 1981
Date of arrest: November 9, 1981
Date of birth: December 24, 1963
Victim profile: Sister Tadea Benz, 76 (Roman Catholic nun)
Method of murder: Stabbing with knife
Location: Potter County, Texas, USA
Status: Executed by lethal injection in Texas on February 11, 1992
 
 

 
 

 

Johnny Frank Garrett (December 24, 1963 February 11, 1992) was a Texas inmate executed for the rape and murder of Sister Tadea Benz, on October 31, 1981. His notoriety stems from the fact that he was only 17 years old when sentenced and has also been described by many human rights organizations as severely mentally handicapped. The state of Texas has come under heavy criticism for allowing both a juvenile and mentally handicapped individual to be executed.


Last words

I'd like to thank my family for loving me and taking care of me. And the rest of the world can kiss my ass.

Executed by injection, Texas.~~ Johnny Frank Garrett, Sr., d. February 11, 1992


Texas executes killer of a nun

The New York Times

February 12, 1992

A month after winning a reprieve from the Governor, a man who raped and killed a Roman Catholic nun when he was 17 years old was executed by lethal injection at the state prison here early today.

The execution of the prisoner, Johnny Frank Garrett, 28 years old, came after the United States Supreme Court's rejection of two appeals on Monday night and a third about an hour before he was put to death.

Mr. Garrett was convicted of killing Sister Tadea Benz, 76, at the St. Francis Convent in Amarillo in 1981. He came within an hour of execution on Jan. 6 when Gov. Ann W. Richards issued a month's reprieve at the urging of Pope John Paul II.

Governor Richards's rare use of her authority to grant a reprieve prompted an equally unusual hearing last week by the Texas Board of Pardons and Paroles to consider whether to recommend to the Governor that Mr. Garrett's sentence be commuted to life. But at the hearing, the board voted by 17 to 0, with one abstention, for the death sentence.

Mr. Garrett's case had become the focus of efforts by opponents of the death penalty. The Catholic Diocese of Amarillo, 16 Catholic bishops and the human rights group Amnesty International had opposed his execution.

At issue was the contention of his lawyers that Mr. Garrett was insane and suffered from multiple personality syndrome as a result of physical and sexual abuse he had endured as a child. "I think he's simply too crazy to kill," one of those lawyers, Warren Clark, had said.

The Supreme Court has ruled that a person who is insane and cannot comprehend an execution or the reasons behind it cannot be put to death.

But prosecutors had insisted that while Mr. Garrett might not be normal, he was aware of his crime and understood the punishment.

Mr. Garrett was the 44th killer put to death in Texas since the Supreme Court allowed the resumption of capital punishment in 1976. The total is the highest of any state.


The case of Johnny Frank Garrett

Garrett was extremely mentally impaired, chronically psychotic and brain-damaged... a mental health expert described Garrett as "one of the most virulent histories of abuse and neglect...I have encountered in 28 years of practice."

Johnny Frank Garrett was executed in Texas on 11 February 1992 for the murder of a nun, a crime committed when he was 17-years-old. The execution proceeded despite his long history of severe mental illness and childhood abuse.

As a youth, Garrett was raped by his stepfather, who then hired him to another man for sex. From the age of 14 he was forced to perform bizarre sexual acts and participate in pornographic homosexual films. He was first introduced to alcohol and other drugs by members of his family at the age of ten and subsequently indulged in serious substance abuse involving brain-damaging substances such as paint-thinner and amphetamines. Garrett was regularly beaten and on one occasion was put upon the burner of a stove, resulting in severe scarring.

Information on Johnny Frank Garrett's abusive upbringing and mental health problems were not made available to the jury. According to three mental health experts who examined him between 1986 and 1982, Garrett was extremely mentally impaired, chronically psychotic and brain-damaged as the result of several severe head injuries he sustained as a child. He suffered from paranoid delusions, including a belief that the lethal injection would not kill him. One of the experts described Garrett's case as "one of the most virulent histories of abuse and neglect...I have encountered in over 28 years of practice."

Following appeals for clemency from Pope John Paul and the nuns from the victim's convent, then-Governor Ann Richards granted Garrett a rare 30-day executive reprieve. However, after a grossly inadequate clemency hearing, the Texas Board of Pardons and Paroles voted unanimously not to recommend commutation of his death sentence and the execution of Johnny Frank Garrett was allowed to proceed.

Amnesty International


Lawyer takes executed man's case

He says evidence will clear Garrett of nun's murder

By Betsy Blaney - Associated Press

December 4, 2004

Sister Tadea Benz was sound asleep in her second-story bedroom in the St. Francis Convent in Amarillo on Halloween night in 1981 when Johnny Frank Garrett slipped into the room.

According to his confession, which he never signed, Garrett raped the 76-year-old Roman Catholic nun and choked her to death. Garrett, 17 at the time, told police that the Swiss-born nun recited the Lord's Prayer during the attack.

Now, 22 years after jurors convicted him and 12 years after Garrett was executed for the slaying, an Amarillo attorney is trying to prove his innocence.

"No reasonable mind would believe otherwise," Jesse Quackenbush said. "The old and newly discovered evidence of Johnny Frank Garrett's innocence is so compelling it will cause even the most bloodthirsty proponents of the death penalty to shake their heads in doubt."

Retesting evidence

Quackenbush, hired by Garrett's family, questions whether evidence was ignored, the authenticity of the confession and the handling of DNA evidence. He wants to retest DNA evidence on a man charged with a similar rape and killing.

Quackenbush asked Potter County District Attorney Rebecca King in a Nov. 23 letter to release evidence for testing. King said her office will provide whatever evidence a judge finds should be released.

"But there are procedures of criminal and civil law that have to be met," she said. "We're not trying to hide anything. It's whether the case needs to be reopened or not. That's for a judge to determine."

Leroy Matthiesen, the former bishop of the Amarillo diocese who knew Benz for decades, said the sisters at the convent are "distressed" that the case is being revisited.

"I know it upsets the sisters very much," he said. "If the wrong person was convicted, that has to be recognized and his good name restored."

Garrett had reprieve

Garrett proclaimed his innocence to the end. He did not write or sign the confession, Quackenbush said. In the confession, Garrett indicated he was drunk and high on LSD when he broke out a convent window to steal a stereo.

At the urging of Pope John Paul II, Gov. Ann Richards granted Garrett a 30-day reprieve shortly before his 1992 execution. It was the first time since Texas resumed executions in 1982 that a governor intervened.

But the Texas Board of Pardons and Paroles voted against commutation despite arguments that Garrett was mentally ill as a result of physical and sexual abuse as a child. His sister, Janet Dobbins, said her brother didn't finish high school and had a history of petty crimes. He was "always a little slow" and was a follower, she said.

Quackenbush's letter draws comparisons between Benz's slaying and that of Narnie Box Bryson, 77. The two were slain three months apart in a similar manner in the same part of town, the letter states.

The similarities were so striking that the district attorney at the time, Danny Hill, and detectives were convinced the same man killed both women, the letter states.

Leoncio Perez Rueda, 54, remains in jail in Bryson's slaying. Quackenbush said that during a recent interview, Rueda described raping and beating a nun on Halloween night in 1981. Rueda, a Cuban refugee, was indicted in July after authorities matched his DNA with semen samples collected during Bryson's autopsy, the letter states. Rueda's attorney, Maria Lopez, declined to comment.

Forensic problems

Quackenbush said Amarillo police at the time concluded a Hispanic raped and beat 10 women in their homes. Also, black hairs were found at the scene of both slayings; Garrett was white and had brown hair.

But police deny that assertion.

"I was the chief here then, and I don't know where he's coming up with that," Amarillo Police Chief Jerry Neal said.

Garrett's case involved Ralph Erdmann, West Texas' main forensic pathologist in the 1980s who pleaded no contest to falsifying autopsies and tampering with evidence after serious omissions were found in about 100 cases. Erdmann's felony conviction raised questions in dozens of cases he had handled.

Quackenbush said Erdmann discarded semen samples taken during Benz's autopsy. At Garrett's trial, Erdmann testified he threw the samples away because no one told him to save them, Quackenbush's letter states.

Erdmann, who lives in San Antonio, said Friday that he does not recall the case.

Quackenbush said he will pursue a civil case against several government agencies if King does not release the evidence.


'The Last Word': A film by Jesse Quackenbush

Documentary seeks truth

By Aaron Phillips - Amarillo.com

On Halloween morning 1981 a Roman Catholic nun was raped, stabbed and strangled to death in her St. Francis Convent bedroom on Northeast 18th Avenue in Amarillo. Eleven years later, Johnny Frank Garrett, who lived across the street from the convent, was executed for the crime.

Garrett claimed innocence until his death. Now, 16 years after his execution, local attorney Jesse Quackenbush has released a documentary aiming to exonerate Garrett.

"The Last Word" details the murder of Sister Tadea Benz, 76, and the investigation that led to Garrett's execution, while making a case for his innocence. Regional retail distribution of the film begins this week.

"This kid got dealt a crummy hand and his appellate lawyers were mostly uninspired, incompetent or simply didn't care," Quackenbush said.

During Garrett's trial, prosecutors argued plenty of evidence linked him to Benz's rape and murder.

Evidence was gathered by a unit that combined deputies from Potter and Randall counties and Amarillo police. It was the first multi-agency cooperative law enforcement investigation in Amarillo and led to the creation of a Special Crimes Unit in 1981.

Amarillo police Sgt. Claude Stephens testified that fingerprints found in the room of the slain nun could "not have been made by any other person" than Garrett. And a steak knife found at Garrett's home was similar to the weapon found in the driveway of the convent. Hair and semen samples also were collected, but experts testified the samples could not be linked exclusively to Garrett.

A gruesome murder

Benz's body was found about 7:30 a.m. Oct. 31, 1981, after another sister in the convent noticed her absence at 6:30 a.m. Mass. The death was first considered accidental, but an autopsy performed by pathologist Ralph Erdmann revealed the macabre details of her death. Investigators initially thought the killing was tied to the July 9, 1981, rape and murder of Narnie Cox Bryson, 77, in her home in the 700 block of North Houston Street in Amarillo.

News reports in the days following that murder show officials searching for a Cuban refugee.

But on Nov. 9, 1981, Amarillo police Sgt. Walter Yerger linked Garrett, then 17, to fingerprints in Benz's room.

Danny Hill, the 47th district attorney at the time, had told the Globe-News that Yerger knew Garrett and "knew some of his habits." Yerger already was familiar with the teen because he'd been identified as a suspect in a burglary case Yerger investigated.

Garrett was tried and received the death penalty for the crime in Sept. 1982.

Garrett's case sparked an outcry among death penalty opponents in Texas, including leaders of the Roman Catholic church. Amnesty International appealed to Pope John Paul II on Garrett's behalf, and the pope's representative in the United States, Archbishop Agostino Cacciavillan, sent the appeal on to then-Gov. Ann Richards. Richards gave Garrett a 30-day reprieve just before his execution date to "exhaust if there was another remedy" for the sentence. But all appeals were unsuccessful.

Garrett was executed Feb. 11, 1992, at age 28.

Leoncio Perez Rueda, a Cuban refugee living in Amarillo in 1981, pleaded guilty in 2005 to the rape and murder of Bryson. "The Last Word" points to Rueda as Benz's likely killer.

The documentary also looks at the work done by Erdmann, West Texas' main pathologist in the 1980s. He performed autopsies for 48 counties, but would plead no contest in 1994 to six felonies tied to falsified evidence and botched autopsies in three counties.

Quackenbush argues that Garrett was failed by a dysfunctional family life, incompetent trial lawyers, politicized judges and district attorneys, zealous media, and lazy and incompetent appellate lawyers.

"There was so many multi-system failures happening at once. Then ultimately he paid the price for all those failures," he said.

"I would not hesitate to estimate that there are probably dozens of cases out there where bodies need to be dug up. But who's going to do it? Nobody has the money or time. So I'm hoping with just this one case people will start to realize that was just a bad era in Amarillo and the Panhandle, and not just here, but Lubbock as well."

In 2004, Quackenbush sent letters to the 47th district attorney at the time, Rebecca King, and to the city of Amarillo asking that evidence in the Garrett case be subjected to modern testing methods. His requests were denied.

The wheels of justice

Current 47th District Attorney Randall Sims said there is a legal procedure to subject evidence, if it still exists, to further testing. But such a filing must contain strong evidence for the court to approve such an order, he said.

"I'm willing to acknowledge anything is possible, but you're going to have to support it with facts and circumstances to be able to get anywhere," Sims said.

Sims said since he's been in the office, no one has come forward to present such a case.

"We would be ethically obligated to release any evidence that would exonerate anybody," he said. "There's two reasons to do it - No. 1, it's the right thing to do, and if that's the case then you want to go and get the person that did do it."

"The fact of the matter is there is not a system in the world that is perfect - and ours is not - but it is the best system in the world. The wheels of justice grind slow, but they grind finely."

Potter County District Clerk Caroline Woodburn confirmed her office has the evidence from Garrett's trial, including hair samples. But she said much of it has not been well preserved.

Also, Lt. Gary Trupe, current coordinator of the Potter-Randall Special Crimes Unit, said the Amarillo Police Department has the case file from the Benz murder, though he's not sure what evidence it holds.

"Generally, anything to do with a capital murder isn't going to be destroyed," Trupe said.

Seeking closure

For Garrett's family, "The Last Word" is one step closer to the outcome they sought.

"The most important thing to me is Johnny's innocence and for it to be known no matter what," said Janet Dobbins, Garrett's sister who was 12 at the time of his arrest.

The film has brought some closure to the family, which still lives in Amarillo, including Garrett's mother, Charlotte Jo Cameron.

"My mom has been torn up about this ever since Johnny was arrested," Dobbins said. "She just got some relief and some closure."

Dobbins said she's not bitter anymore, has grown and survived, but she can't forgive those who sent Garrett to the death chamber until there is an official apology.

If there is one lesson Dobbins wants people to take from Garrett's case and from "The Last Word," it's that the death penalty is final.

"If you are going to sentence somebody to death, you need to make sure they're guilty of that crime," she said.

'The Last Word'

Garrett proclaimed his innocence until death and his last act was one of vengeance against the people who sent him to the death chamber. He declared a curse on those involved.

"It's really not a celebration of vengeance. It's looking at it and understanding that what he was doing was actually a reflection of what society was doing to him," Quackenbush said.

"It's a dramatic story, I mean for God's sake ... the Pope is involved, a curse is involved, there's a wrongful execution of a teenage boy," he said.

*****

Key players

Johnny Frank Garrett: Garrett was arrested Nov. 9, 1981, for the Oct. 31, 1981, murder of Sister Tadea Benz, 76. He was 17 at the time. Garrett was executed Feb. 11, 1992.

Danny Hill: Hill was 47th district attorney at the time and sought the death penalty against Garrett. He committed suicide April 9, 1995. Hill was elected to office in 1980, but was under scrutiny in 1995 after pleading guilty to a misdemeanor charge of driving while intoxicated.

Jimmy Don Boydston: Led a team of detectives and identification technicians from the sheriff's offices in Randall and Potter County and Amarillo Police Department charged with investigating the Benz slaying. The group was a precursor to the Potter-Randall Special Crimes Unit. He was elected Potter County sheriff in 1983, the position he held until retirement in 2000. He died July 17, 2007.

Walt Yerger: The Amarillo police detective reportedly checked fingerprints in a number of burglaries and matched Garrett's prints with those found at St. Francis Convent.

George Dowlan: 181st State District Court judge who presided over Garrett's trial.

Ralph Erdmann: Erdmann served as pathologist in the Benz murder. He pleaded no contest in 1994 to six felonies tied to falsified evidence and botched autopsies in three counties. Dozens of bodies were exhumed for new autopsies following his conviction. A news report in 1998 said a 1992 investigation showed at least 100 of his 300 autopsies were flawed.

Road to execution

  • July 9, 1981: Narnie Cox Bryson, 77, is raped and murdered in her home in the 700 block of North Houston Street.
     

  • Oct. 31, 1981: Sister Tadea Benz, 76, is raped and murdered in her bedroom at St. Francis Convent, 4301 N.E. 18th Ave. Investigators find similarities to Bryson's killing.
     

  • Nov. 1-9, 1981: Police initially focus their investigation of the Benz murder on a number of Cuban refugees living in Amarillo. The two murders are thought to be connected.
     

  • Nov. 9, 1981: Johnny Frank Garrett, 17, is arrested and charged with the murder of Benz.
     

  • August-September 1982: Garrett is tried and convicted for Benz's murder and is sentenced to death.
     

  • Feb. 11, 1992: With all appeals exhausted, Garrett, now 28, is executed for the Benz murder.
     

  • March 2004: Amarillo police connect Leoncio Perez Rueda to the Bryson murder, matching his DNA with that on a bed sheet from the crime scene.
     

  • Jan. 3, 2005: Rueda, 55, pleads guilty to the rape and murder of Bryson.

The author

Jesse Quackenbush, 46, is from Albany, N.Y. He moved to Amarillo in 1987 after accepting a job out of law school with Amarillo attorney Jeff Blackburn.

He started college in New York as a radio-television major before moving to journalism and political science. He graduated from the University of Houston Law School in Houston in 1987.

He is in pre-production on a second documentary, "Conspiracy of Silence," about medical malpractice in America. He also is writing a screenplay, a teen comedy.


842 F.2d 113

Johnny Frank GARRETT, Petitioner-Appellant,
v.
James A. LYNAUGH, Director, Texas Department of Corrections,
Respondent- Appellee.

No. 87-1680.

United States Court of Appeals,
Fifth Circuit.

March 31, 1988.

Appeal from the United States District Court For the Northern District of Texas.

Before GEE, JOHNSON, and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Petitioner, Johnny Frank Garrett, appeals from the denial of his habeas corpus petition under 28 U.S.C. Sec. 2254. Garrett is under a sentence of death on his conviction for murder committed during the course of rape and burglary. The district court denied habeas relief but granted a stay of execution and a certificate of probable cause. After thorough consideration of petitioner's contentions, we affirm the denial of the writ of habeas corpus and dissolve the stay of execution.

I.

The nude body of Sister Tadea Benz was found in her bedroom on the second floor of the St. Francis Convent in Amarillo, Texas, at approximately 7:00 a.m. on October 31, 1981. Sister Benz was seen alive late the previous evening.

Although there was blood on Sister Benz' face, the nun who discovered her body did not suspect foul play and the body was transported to a funeral home. An hour or so later the sisters found a broken window, unlatched and open, in the community room located on the first floor of the convent and called the Amarillo police. The police arrived at approximately 9:00 a.m. and secured the crime scene. The police recovered bed linens, the victim's night clothes, and a kitchen knife under the bed. Fingerprints and palm prints were lifted from the knife blade and handle and from the bed headboard. Also, the cut window screen and a second knife--a steak knife--were found in the convent driveway.

By the time the body was recovered from the funeral home it had been partially cleansed and arterial embalming completed. The autopsy revealed multiple injuries, including contusions to the head, stab wounds to the chest, and excoriation and abrasive injuries to the front and back of the neck. The pathologist, Dr. Erdmann, determined that death was caused by manual strangulation.

The autopsy also revealed evidence of forcible rape. Dr. Erdmann found signs of external bleeding and internal trauma in the vaginal area. Tests of vaginal contents revealed the presence of sperm and prostate secretions. No test was conducted from the vaginal contents designed to determine the assailant's blood type.

The evidence against the accused was overwhelming. Garrett was seen running from the direction of the convent on the night of the murder. Prints found on the handle and blade of the kitchen knife recovered from under the victim's bed and prints from the bed headboard matched Garrett's. Pubic hairs recovered from the scene were determined to have the same individual characteristics as Garrett's. The steak knife found in the driveway of the convent was of the same manufacture, design and make, and had the same degree of use as another steak knife recovered from Garrett's residence.

The state also offered the testimony of Lonnie Watley, an inmate and trusty of the Potter County Jail during Garrett's pretrial incarceration. Watley testified that Garrett originally denied committing the offense, but eventually admitted to breaking into the convent and killing the nun.

Garrett testified in his own defense and denied raping or murdering Sister Benz. Garrett testified that he entered the convent two days before the murder looking for items to steal. According to his testimony, he entered the convent through the front door shortly after noon and proceeded into the medication room and the cafeteria, where he picked up the kitchen knife. He testified that he then went into several of the bedrooms. In one bedroom he bent the knife in prying open a locked drawer. He explained his fingerprints on the headboard of Sister Benz' bed by stating that he grabbed the headboard so he could lean over and reach a cross on the wall. He testified that he heard a noise in the convent and fled. Garrett testified that he went to his mother's house at approximately 10:20 p.m. on October 30 and did not leave until later the next morning.

The state sought to impeach Garrett with an oral statement that he allegedly gave the police shortly after his arrest on November 9, 1981. Two police officers testified that, after they reduced Garrett's statement to writing, Garrett agreed that it was true but refused to sign it until after he consulted counsel. After consulting counsel, Garrett declined to sign the statement. In the statement attributed to Garrett by the police, Garrett admitted breaking into the convent by knocking out a window on the bottom floor. He admitted going into a nun's room. He stated that:

There was a nun in bed and she acted as if she was going to scream. I covered her mouth so she couldn't make any noise.

I started choking her until she passed out. I had sex with her. I left the convent the way I came in.

Garrett denied making the statement. He testified that the police officer would "say something, and I would say, 'put it down,' he would say something else and I said 'go ahead and put it down.' Then he said 'sign this.' I said, 'I ain't signing nothing.' "

On rebuttal Sister Bernice Noggler testified that, contrary to Garrett's testimony, the front door of the convent is ordinarily locked and no one could enter the cafeteria around the noon hour without being noticed. She also denied that any of the chests in the convent were locked or that any valuables had been reported missing. She also denied that Sister Benz ever had a cross hanging above her headboard. The state also presented rebuttal witnesses who lived near Garrett's mother. One neighbor testified that Garrett was seen prowling around an elderly woman's home in the neighborhood on the night of the murder. The second neighbor testified that Garrett came to his house at approximately 11:00 the same evening.

At the punishment phase of the trial the government offered testimony of Garrett's bad reputation in the community and his past acts of aggression. The defense presented Garrett's mother, who made a personal plea for mercy on Garrett's behalf and testified about his relationship with his brothers and sisters. The defense also called several officers who testified that Garrett had caused no trouble while awaiting trial in the Potter County jail.

As required by the jury's verdict, the trial court imposed a death sentence. The conviction and sentence were affirmed by the Texas Court of Criminal Appeals. Garrett v. State, 682 S.W.2d 301 (Tex.Crim.App.1984). A petition for writ of certiorari was denied by the United States Supreme Court. Garrett v. Texas, 471 U.S. 1009, 105 S.Ct. 1876, 85 L.Ed.2d 168 (1985). Garrett then sought habeas relief in the state court on a number of grounds. All relief was denied by the trial court and the Texas Court of Criminal Appeals. The instant federal petition for habeas relief was initially filed in the Southern District of Texas. A stay of execution was entered and the action was transferred to the Northern District of Texas. Following an evidentiary hearing, the district court denied habeas relief on all claims. The trial court rescheduled Garrett's execution for October 30, 1987, but the district court granted a stay of that execution pending appeal and also granted petitioner's application for a certificate of probable cause.

Although Garrett sought habeas relief on a number of claims in the district court, he restricts his appeal to this court to a single claim: By destroying potentially exculpatory evidence, the state denied him a fair trial and deprived him of due process of law.

II.

Garrett argues that the state deprived Garrett of potentially exculpatory evidence because the state pathologist failed to test the deceased's vaginal contents for the rapist's blood type or to preserve the specimen so that the defense could have those tests conducted.

The district court held a hearing on the facts surrounding the autopsy. When Sister Benz' body was recovered from the funeral home it was sent to Dr. Ralph Erdmann, a pathologist on retainer with Potter County, for an autopsy. After Dr. Erdmann found external evidence of a rape he injected saline solution into the vaginal vault and recovered a small quantity of fluid. From these vaginal washings Dr. Erdmann tested for the presence of sperm and prostate secretions and found both. In making these tests, Dr. Erdmann used the entire vaginal contents sample he recovered from Sister Benz' body.

Garrett's argument is straightforward: If Dr. Erdmann had tested the samples for the assailant's blood type and those tests had revealed that the assailant had a blood type different from Garrett's, the evidence would have been absolutely exculpatory. Garrett argues that under California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), the failure of the state to make this test or preserve enough of the sample for Garrett to conduct the test denied him a fundamentally fair trial.

In Trombetta the Court considered whether the due process clause requires law enforcement agencies to preserve breath samples of suspected drunken drivers for later inspection and tests by the accused in order for the state to admit the results of breath analysis tests in criminal prosecutions. The Court held that the Constitution requires a state to preserve "[material] evidence that might be expected to play a significant role in the suspect's defense." Id. at 489, 104 S.Ct. at 2534. Evidence meets the materiality standard for these purposes if it possesses an "exculpatory value that was apparent before the evidence was destroyed, and be of such nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id.

Garrett's reliance on Trombetta is misplaced. No evidence was destroyed in the Trombetta sense. Dr. Erdmann completely used the available sample in making the tests that he considered necessary. Stated another way, there was in this case no evidence (whether or not potentially exculpatory) left for the state to preserve once Dr. Erdmann had used up the sample. Trombetta does not require a state to conduct its investigation in any particular way or perform tests on raw data in any particular order. Nor does it require a state to conduct additional or more comprehensive tests.

The district court correctly denied habeas relief on this claim.

CONCLUSION

The district court's denial of habeas corpus relief to the petitioner is affirmed; the stay of execution is vacated.

AFFIRMED. STAY VACATED.


951 F.2d 57

Johnny Frank GARRETT, Petitioner-Appellee,
v.
James A. COLLINS, Director, Texas Department of Criminal
Justice Institutional Division, Respondent-Appellant.

No. 92-1013.

United States Court of Appeals,
Fifth Circuit.

Jan. 6, 1992.

Appeal from the United States District Court for the Northern District of Texas.

Before HIGGINBOTHAM, DAVIS and JONES, Circuit Judges.

PER CURIAM:

James A. Collins, Director, Texas Department of Criminal Justice, appeals the district court's order staying the execution of Johnny Frank Garrett. That execution is scheduled for January 7, 1992, between midnight and dawn.

The district court's order of January 5 outlines in detail the critical steps which have been taken in this case. In summary, Garrett was sentenced to death following a guilty verdict in a capital murder case and after the jury answered affirmatively the special issues submitted under the Texas Code. That sentence was affirmed by the Texas Court of Criminal Appeals, 682 S.W.2d 301, and the U.S. Supreme Court denied application for a writ of certiorari, 471 U.S. 1009, 105 S.Ct. 1876, 85 L.Ed.2d 168.

Garrett unsuccessfully prosecuted his first federal habeas corpus petition. Relief under that petition was denied by the district court and that denial was affirmed by this court. See 842 F.2d 113 (5th Cir.1988). Garrett raised the following claims for relief in his first federal habeas petition:

1. Denial of his Sixth Amendment right to trial before a jury drawn from a representative cross-section of society through the exclusion for cause of persons with conscientious objections to the death penalty;

2. Denial of the effective assistance of counsel for failure to raise the above issue on appeal;

3. The state suppressed material exculpatory evidence in failing to conduct blood tests on the deceased;

4. Denial of the effective assistance of counsel at trial in failing to seek a competency examination; and

5. Fundamentally defective jury charge, in that it authorized conviction on proof less than that alleged in the indictment.

On January 3, 1992, Garrett filed his second federal habeas petition and motion for stay of execution scheduled for January 7, 1992. In his second habeas petition Garrett sought relief on four claims which are enumerated on page 2 of the district court's January 5 order.

The district court denied relief on all of Garrett's claims presented in his second petition. The court in its January 5 order rejected the first three claims because of abuse of the writ. We agree entirely with the district court's careful analysis in support of its conclusion on these claims. With respect to Garrett's fourth claim that he is mentally incompetent and may not be executed under the standard announced in Ford v. Wainwright, the district court also denied habeas relief. 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). The district court concluded, however, that difficult substantial questions were presented with respect to whether Garrett's condition prevented his execution under the Ford standard. Accordingly, the court stayed Garrett's execution and issued a certificate of probable cause.

As stated above, we agree with the conclusions and reasons advanced by the district court in support of denial of habeas relief. Our review of the record and our reading of the Ford v. Wainwright standard, however, leads us to disagree with the district court's conclusion that substantial questions exist with respect to the correctness of the court's conclusion on Garrett's Ford v. Wainwright claim.

As the district court noted, the psychiatric testimony makes it clear that Garrett (1) understands the nature of the proceedings against him and (2) understands that the state is seeking to execute him and the reasons the state seeks this penalty. Garrett's counsel argues however that Garrett is not fully aware of the consequences of the death penalty because he believes his dead aunt will protect him from the effects of the sedative and toxic agents used.

For reasons that follow, we are persuaded that this belief or hope Garrett holds does not prevent the state from executing him under the Ford v. Wainwright standard.

First, the state habeas court rejected Garrett's contention that he is incompetent to be executed under Ford v. Wainwright. The state court held a complete hearing on Garrett's second habeas petition in February 1989, and heard testimony of Dr. Wendell Dickerson concerning his report attached as an exhibit to Garrett's second federal petition. The state court's findings are entitled to a presumption of correctness under 28 U.S.C. Section 2254(d). Ford. The state habeas court found: "9. The court finds the applicant's ninth allegation totally without merit based on the testimony of applicant's own witness, who testified at the evidentiary hearing that the applicant was then and is presently competent. The court having found the applicant to be presently competent, his execution would not violate his right to due process of law." This finding is supported by the evidentiary record. Garrett's principal psychiatric witness admitted that while Garrett was buffered by his belief that his aunt would save him, Garrett knew that "when that needle goes into his arm that it's possible for him to suffer death." (Rec. I, page 185.)

We are persuaded that the state habeas court was entitled to find as a matter of fact that despite the hope of being saved by his aunt, Garrett was not so incompetent that the state could not execute him. The court was entitled to find that he "comprehends the nature of the penalty" and had no mental illness which "prevents him from comprehending the reasons for the penalty or its implication." Ford, 477 U.S. at 417, 106 S.Ct. at 2606. We are also persuaded that the hope of escaping death through the supernatural intervention of his aunt does not prevent him from preparing for his passing. Thus, we do not view Garrett's hope of being saved from death by his aunt as sufficient to prevent his execution under the standard set forth by Justice Powell in his concurring opinion in Ford. "If the defendant perceives the connection between his crime and his punishment, the retributive goal of the criminal law is satisfied, and only if the defendant is aware that his death is approaching can he prepare himself for his passing. Accordingly, I would hold that the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it." Id. at 422, 106 S.Ct. at 2608 (Powell, J., concurring).

In summary, in this successive federal habeas petition, we are unable to find a substantial ground upon which relief might be granted. See Barefoot v. Estelle, 463 U.S. 880, 895, 103 S.Ct. 3383, 3395-3396, 77 L.Ed.2d 1090 (1983); Delo v. Stokes, 495 U.S. 320, 110 S.Ct. 1880, 109 L.Ed.2d 325 (1990). Accordingly, we grant Collins' motion to vacate the stay of execution entered by the district court on January 5, 1992. We also vacate as improvidently granted the certificate of probable cause entered by the district court on that same date.



Johnny Frank Garrett

 

 

 
 
 
 
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