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
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
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
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.
case of Johnny Frank 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."
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.
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
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
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.
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
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."
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.
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
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
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
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
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
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
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
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.
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
"My mom has been torn up about this ever since
Johnny was arrested," Dobbins said. "She just got some relief and
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.
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
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
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
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
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.
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
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,
James A. LYNAUGH, Director, Texas Department of Corrections,
United States Court of Appeals,
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:
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.
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
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
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
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
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.
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'
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
The district court correctly
denied habeas relief on this claim.
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,
James A. COLLINS, Director, Texas Department of Criminal
Justice Institutional Division, Respondent-Appellant.
United States Court of
Jan. 6, 1992.
Appeal from the United
States District Court for the Northern District of Texas.
Before HIGGINBOTHAM, DAVIS
and JONES, Circuit Judges.
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
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
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.
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
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.,
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.