Arrested on suspicion of rape in 1976, Kenneth Granviel confessed to assaulting four women, fatally stabbing two others, and slaughtering two children in a series of brutal, random attacks.
Convicted of murdering two-year-old Natasha McLendon, Granviel was sentenced to die, but the sentence was set aside by a federal appeals court on September 12, 1981.
Finding that two prospective jurors had been improperly excluded from Granviel's trial on the basis of their opposition to capital punishment, the court ordered imposition of a lighter sentence in the case.
Michael Newton - An Encyclopedia of Modern Serial
Killers - Hunting Humans
Killer of 7 Executed After a 20-Year
Stay On Texas Death Row
The New York Times
February 28, 1996
A man who confessed to
killing seven people, including a 2-year-old
girl, by stabbing them with a butcher knife in
two murderous rampages more than 21 years ago,
was executed here this evening.
The man, Kenneth Granviel,
45, was executed by injection for the fatal
stabbing of the girl. He had tied and gagged her
and four members of her family, then stabbed
them all with a butcher knife.
Mr. Granviel, a former
machinist, declined to give a last statement. He
was pronounced dead at 6:20 P.M., eight minutes
after the lethal drugs began flowing into his
Defense lawyers argued that
Mr. Granviel should not have been executed
because he was mentally incompetent and because
the state failed to provide for a defense
psychiatrist at his trial, at which he raised an
He was tried only for the
murder of 2-year-old Natasha McClendon, who was
stabbed to death along with her mother and three
other relatives in Fort Worth on Oct. 7, 1974.
Mr. Granviel, a family friend,
said he could not stop himself from killing
Natasha. "I could see it happening, but there
was nothing I could do about it," he testified.
"I could see myself stabbing this little girl I
used to play with, I used to buy candy for."
He surrendered to the police
on Feb. 8, 1975, after raping a woman and
abducting another and holding several people
hostage at a house in Fort Worth. He later
admitted killing two female friends who had been
raped and stabbed with a knife.
Mr. Granviel, who spent 20
years and three months on death row, was the
longest-serving condemned inmate in Texas to be
He was originally scheduled
to become the state's first prisoner to be
executed by lethal injection in September 1977.
The date was blocked as lawyers challenged the
constitutionality of the then-new execution
method. Since then, 105 convicted killers have
been executed in Texas.
881 F.2d 185
James A. Lynaugh, Director Texas Department of
United States Court of Appeals,
Aug. 28, 1989.
Rehearing Denied Sept. 28, 1989
Appeal from the United States
District Court for the Northern District of Texas.
Before CLARK, Chief Judge, and
WILLIAMS and GARWOOD, Circuit Judges.
CLARK, Chief Judge:
Granviel appeals from
the federal district court's denial of habeas
corpus relief from his death sentence imposed by
a Texas court. We affirm.
On February 8,
Granviel confessed to
the inhuman torture and murder of six women and
one of the victim's two-year-old son. Seven
years later in July of 1982,
Granviel was indicted for one of these
murders, the murder of Natasha McClendon
committed in the course of aggravated rape. His
trial began in March of 1983, and on May 5,
1983, the jury found Granviel
guilty of capital murder. After a separate
punishment proceeding before the same jury, the
jury answered affirmatively the special issues
needed to impose a death sentence under Texas
law. Tex.Code Crim.Proc.Ann. art 37.071 (Vernon
1981). (This statute was amended after
Granviel's trial. Id.
at Supp.1989). Granviel's
conviction was affirmed on appeal, 723 S.W.2d
141, and the United States Supreme Court denied
certiorari in October of 1987. He was then
denied collateral relief in state court. On
December 7, 1987, Granviel
filed his petition for writ of habeas corpus in
the United States District Court of the Northern
District of Texas, Fort Worth Division. After an
evidentiary hearing was held on two of
Granviel's claims, the
district court denied the requested relief and
dismissed the petition in August of 1988. This
Granviel raises a
number of claims concerning the conduct of his
trial. He also questions his present sanity. We
address each claim individually.
Granviel argues that
two prospective jurors, the Reverend Edgar
Lincoln Curry and Pamela Norene Copeland, were
improperly excused for cause on the basis of
their opposition to the death penalty.
Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844,
83 L.Ed.2d 841 (1985); Adams v. Texas, 448 U.S.
38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980);
Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct.
1770, 20 L.Ed.2d 776 (1968).
juror may be excused for cause on the basis of
the venireperson's opposition to capital
punishment only if "those views would prevent or
substantially impair the performance of his
duties as a juror in accordance with his
instructions and his oath." Adams, 448 U.S. at
45, 100 S.Ct. at 2526. Because of the difficulty
of divining a prospective juror's state of mind,
particularly on a cold record, we pay deference
to the trial court's factual determination that
a potential juror is disqualified. The fact
determination is presumed correct. Witt, 469
U.S. at 424-26, 105 S.Ct. at 852-53. Applying
this presumption to the facts of this case, we
see no grounds for disturbing the decision of
the lower court. Both venirepersons in question
were unequivocally opposed to the death penalty
and gave inconsistent responses regarding their
ability to follow the trial court's instructions.
See Ellis v. Lynaugh, 873 F.2d 830, 832-37 (5th
Reverend Edgar Lincoln Curry
conclusion of a long voir dire examination, the
Reverend Curry stated that he did not wish to
take the oath of a juror because of his
opposition to the death penalty.
Granviel contends that
Curry was persuaded to take this position by the
prosecuting attorney's suggestion that he could
thereby avoid the unpleasant task of sitting in
a capital case. In Granviel's
view, Curry was improperly encouraged to abandon
his clear statement that he would follow his
oath and answer truthfully to all issues
presented to him. Reviewing the transcript of
the voir dire, however, we conclude that the
prosecutor was properly fulfilling his duty to
flush out Curry's true position.
Curry's responses to questions make it clear
that service on a death penalty case placed him
in a moral dilemma. This was particularly true
under the Texas procedure, which mandates a
death sentence if the jury affirmatively answers
three special issues or questions. The Reverend
Curry strongly opposed the death penalty due to
long held moral and religious beliefs and stated
explicitly that he could not conscientiously
participate in its imposition. These same
convictions, however, also compelled him to
follow his oath and answer truthfully all
questions presented to him; he would not lie.
Therefore, when asked if he would truthfully
answer the special issues that Texas law
utilizes in the penalty stage of capital cases,
Curry stated unequivocally that he would answer
as the evidence dictated. The dilemma created by
the Texas procedure thus became apparent:
assuming the facts of the case warranted the
death penalty, Curry had either to answer the
questions falsely or answer them as the facts
dictated, and thereby sentence another to death.
Curry could abide by neither result.
Q. Now, earlier you said that
your opinions about the death penalty were so
firm that you would automatically vote against
the death penalty regardless of the facts of the
Now, is what
you're telling the judge, then, that even if you
were convinced beyond a reasonable doubt, for
example, that the defendant acted deliberately
and there was a reasonable expectation that his
actions would result in the death of another,
that you might answer no to that question when
in fact in your heart you knew the answer was
A. Oh, no, I wouldn't do that.
I wouldn't lie about it.
Q. Now, the second question [special
issue] is--we're talking about whether there's a
probability he would commit criminal acts of
violence?.... If you were convinced of that
beyond a reasonable doubt, could you answer yes
to that knowing that you have already answered
yes to the first question and knowing that the
two yes answers just--
A. Two yes answers would give
Q. -- give him the death
A. I would answer it
truthfully if I was on the jury, yes.
Now, here is
the--the oath that you'll have to take as a
And what that
oath says is that you will a true verdict render
according to the law and the evidence, so help
Q. Okay, so if you take that
oath, then you're telling--I guess what you are
telling us now is that even though you're--you're
adamant in your opposition of the death penalty,
if you take an oath to render a true verdict,
then you will render a true verdict and it won't
matter to you whether death results or not?
A. I'm liable to be put in
the position by telling the truth of what I have
heard and what I understand that would transpire
as a juror would place me in this position that
I couldn't--I would have to go against what I
believe, staunchly believe in, and that I would
demand then that he be given capital punishment
and whatever you said it was, an injection or
something, lethal injection, and I don't want to
be placed in that position.
record, the district court could properly
conclude that the facially inconsistent answers
of Curry did not result from any inconsistency
in Curry's personal views but from the Texas
death penalty procedure. Curry's position did
not change during the lengthy voir dire. He and
the court were made to recognize the dilemma he
was being placed in and an appropriate solution
Reverend Curry, Pamela Norene Copeland was
adamant in both her opposition to the death
penalty and her insistence that she would answer
all questions presented to her truthfully. Only
after an extensive examination by the attorneys
for the prosecution and the defense, and the
court did Copeland realize the contradiction in
her answers. For example:
Q. [by the court] Mrs.
Copeland, there's a matter that we need to clear
up at this point.
You have told
Mr. Wilson in response to his questions by the
State in essence that your feeling about the
death penalty is such that you could never serve
on a jury in which you could vote for the
imposition of the death penalty in any case,
regardless of what the facts are; right?
A. I'm sorry. I'm getting
Q. Okay. I'm trying to
You have told
Mr. Wilson that you have a very strong feeling
in opposition to the death penalty in any
Q. That you feeling is so
strong in that regard that you could not serve
on a jury and vote in such a manner that the
death penalty would be imposed as a juror,
regardless of what the facts are; right?
Q. Okay. You have now told
Mr. Beatty that you could answer those two or
three questions in the penalty phase of a
capital murder case yes if the evidence said
that you should answer them yes?
A. This was if I was on the
Q. Uh-huh. All right. Go
A. Did I just cross my
have told the State you cannot and told the
defense you can, and all we need to know is
which way it is?
A. Okay. If I was on, which I
know--I could never say that he should die,
whoever, but I could listen--this is where I
thought the questions were coming from. I
thought I could listen to the evidence and
answer these questions yes, but when it came to
the point of saying I thought he should die, I
In both these
cases, the prospective juror was emphatic in
stating that he or she could never impose a
death sentence. Nor was there any hint that they
were seeking to avoid jury service. Copeland, as
the mother of a nine year old son, had a
statutory exemption from jury service that she
declined to invoke. Any conflict in their
answers resulted from the structure of
questioning required by the Texas death penalty
procedure. The strong opposition to the death
penalty of these prospective jurors was properly
found by the trial court to prevent their jury
punishment phase of the trial, the trial court
refused to permit an expert witness to testify
on Granviel's behalf
that the death penalty does not deter crime.
Granviel contends that
this exclusion prevented him from presenting
mitigating evidence that should have been
considered by the jury. See Eddings v. Oklahoma,
455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1
The eighth and
fourteenth amendments require that the defendant
in a capital case be permitted to present for
the jury's consideration during the punishment
phase any mitigating evidence regarding the
defendant's character, prior record, or the
circumstances of the defendant's crime. Lockett
v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954,
2964-65, 57 L.Ed.2d 973 (1978). However,
evidence that does not bear on the defendant's
character, record, or crime may properly be
excluded by the trial court. Id. at 604 n. 12,
98 S.Ct. at 2965 n. 12; Brock v. McCotter, 781
F.2d 1152, 1158 (5th Cir.), cert. denied, 476
U.S. 1153, 106 S.Ct. 2259, 90 L.Ed.2d 704
(1986). The evidence proffered by
Granviel concerning the
efficacy of Texas capital statutes was
irrelevant to the defendant or his crime, and
therefore, the exclusion of such evidence was
not constitutional error.
Granviel raised an
insanity defense at trial. In response to the
defense, the state introduced the testimony of
two psychiatrists, Drs. Holbrook and Groves, who
had previously examined
Granviel. Dr. Holbrook originally had
examined Granviel to
determine his competency to stand trial on
related charges and had concluded that
Granviel was sane at
the time of his examination. Dr. Holbrook died
during the period between the first trial and
the trial in issue, so his testimony was
introduced through the trial transcript of the
earlier trial. Dr. Groves examined
Granviel when he was a
contends that the admission of the testimony of
both psychiatrists violated his right against
self-incrimination and to the effective
assistance of counsel because he was not given
Miranda warnings prior to the psychiatrists'
examinations. Estelle v. Smith, 451 U.S. 454,
101 S.Ct. 1866, 68 L.Ed.2d 359 (1981); Miranda
v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966). Granviel
again objected at the punishment phase of his
trial. He asserted that the introduction of this
evidence violated the strictures of Estelle v.
Smith, 451 U.S. 454, 101 S.Ct. 1866. He asked
that the jury be instructed not to consider the
testimony. The objection and requested
instruction were denied.
Granviel's Fifth Amendment Claim
Granviel waived any
fifth amendment privilege against the
introduction of the psychiatric testimony. He
raised the question of his sanity. The
prosecution rebutted that claim with the
testimony of these examining psychiatrists.
Raising an insanity defense constitutes a waiver
of the defendant's protection against self-incrimination
with regard to psychiatric testimony. Buchanan
v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906,
2917-18, 97 L.Ed.2d 336 (1987); Schneider v.
Lynaugh, 835 F.2d 570, 577 (5th Cir.), cert.
denied, --- U.S. ----, 109 S.Ct. 87, 102 L.Ed.2d
63 (1988). Here, as in Buchanan, the
psychiatrists' reports were introduced to rebut
the defendant's insanity defense. The
psychiatrists did not reveal any admissions of
the defendant concerning his crime. Therefore,
the admission of their testimony, despite the
fact that Granviel was
not given Miranda warnings prior to either
examination, did not constitute a violation of
amendment rights. Buchanan, 107 S.Ct. at 2918.
B. Granviel's Sixth
amendment right, his sixth amendment right to
the assistance of counsel was not automatically
waived by his insanity defense. Powell v. Texas,
--- U.S. ----, ----, 109 S.Ct. 3146, 3148-50,
106 L.Ed.2d 551 (1989) (per curiam). In Powell,
the Supreme Court clarified the distinction
between a defendant's fifth and sixth amendment
rights in regard to psychiatric testimony. The
Court recognized the inherent inequity in
permitting a defendant to raise an insanity
defense while objecting to disclosure of
psychiatric evaluations. The Court reasoned,
however, that such inequity did not justify
denying the defendant assistance of counsel
during such examination. Id. --- U.S. at ----,
109 S.Ct. at 3148-49.
Granviel had no sixth
amendment claims as to the admission of Dr.
Grove's testimony. Dr. Groves examined
Granviel in 1969, five
years prior to Granviel's
crime and well before adversary proceedings were
initiated against him. Therefore,
amendment rights had not attached, and he was
not entitled to the assistance of counsel during
Dr. Groves' examination. Kirby v. Illinois, 406
U.S. 682, 689-90, 92 S.Ct. 1877, 1882-83, 32
L.Ed.2d 411 (1972).
was initially retained by
Granviel's counsel in preparation for a
trial on charges related to one of
Granviel's seven other
victims and while Granviel
was under arrest for the present murder. Dr.
Holbrook interviewed Granviel
twice, on both occasions
Granviel was accompanied by defense
counsel. After these examinations, defense
counsel petitioned the court to appoint Dr.
Holbrook as a court psychiatrist, in order to
have him paid by the State.
appointment was made pursuant to article 46.02
of the Texas Code of Criminal Procedure. On the
day that the appointment was requested, article
46.02 provided that the "court may at its
discretion appoint disinterested qualified
experts to examine the defendant with regard to
his present competency to stand trial and as to
his sanity...." The statute prohibits the court-appointed
psychiatrist from testifying concerning
statements made by the defendant. Id. As
interpreted by the Texas Court of Criminal
Appeals, this statute contemplates the
appointment of a disinterested expert for the
court, who will not serve as a partisan for
either side. Granviel
v. State, 552 S.W.2d 107, 115 (Tex.Crim.App.1976),
cert. denied, 431 U.S. 933, 97 S.Ct. 2642, 53
L.Ed.2d 250 (1977). Prior to the time of trial,
the relevant statute was amended so as to
require that a copy of the disinterested
expert's report be furnished to the court and
opposing counsel. Tex.Code of Crim.Proc. art.
46.02, Sec. 3(d) (effective June 19, 1975).
Under Texas law, an amendment to a procedural
statute governs the conduct of a trial from its
effective date. Granviel,
552 S.W.2d at 116.
the amended statute, the trial court ordered Dr.
Holbrook to release a copy of his report to the
State. Dr. Holbrook complied, over the objection
of defense counsel. Counsel also objected to the
use of Dr. Holbrook's report on both fifth and
sixth amendment grounds prior to its use at
Granviel's first trial
on related charges, by motion prior to the
instant trial, and during the course of the
instant trial when the report was introduced and
prior to the punishment phase of the trial.
amendment challenges were waived by his
counsel's voluntary decision to seek to have Dr.
Holbrook appointed as a disinterested qualified
expert pursuant to the Texas procedure. Even
under the statute's earlier formulation, the
expert to be appointed was not to be a private
consultant of either party. Rather, he was to be
the court's disinterested expert. As such, it
was proper for his opinions to be made available
to either party equally.
Granviel, 552 S.W.2d at 115.
Granviel moved to have
Dr. Holbrook appointed as a court expert with
the advice of counsel who had been present
during the doctor's examination and were thus
aware of the nature and scope of the expert's
examination and opinion.
Granviel's counseled requests obviate any
basis for objection that the availability of Dr.
Holbrook's testimony might have violated his
challenges the constitutionality of the Texas
procedure requiring the disclosure of an
appointed psychiatrist's report. Tex.Code
Crim.Proc. art. 46.02. Prior to his trial on the
instant offense, Granviel
requested that the court appoint an independent
expert to assist him in his defense. He
specifically requested that the expert be
unavailable to the prosecution or the court. The
request for such confidential expert assistance
was denied, although the court did appoint a
disinterested expert whose report would be
available to prosecution and defense alike.
Granviel alleges that
the unavailability of an independent expert
denied him the opportunity to meaningfully
defend himself. Granviel
has a fourteenth amendment right to psychiatric
assistance, and the state must provide such
assistance to an indigent defendant such as
Granviel if the
defendant's sanity is likely to be a significant
factor at trial. Ake v. Oklahoma, 470 U.S. 68,
105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). As
Granviel's sanity was
certainly in genuine dispute, the only remaining
question is whether the Texas procedure that
provides an indigent defendant with the
assistance of a court-appointed psychiatrist,
whose opinion and testimony is available to both
sides, satisfies Granviel's
rights. We hold that it does.
As the Texas
Court of Criminal Appeals has noted, "A
psychiatrist's examination is not an adversary
proceeding. Its purpose is not to aid in the
establishment of facts showing that an accused
committed certain acts constituting a crime;
rather its sole purpose is to enable an expert
to form an opinion as to an accused's mental
capacity to form criminal intent." Stultz v.
State, 500 S.W.2d 853, 855 (Tex.Crim.App.1973),
quoted in Granviel, 552
S.W.2d at 115. Granviel's
ability to uncover the truth concerning his
sanity is not prejudiced by a court-appointed,
neutral expert. Availability of a neutral expert
provides defendants with "the raw materials
integral to the building of an effective defense."
Ake, 105 S.Ct. at 1093. The state is not
required to permit defendants to shop around for
a favorable expert. Granviel
had been provided with an unbiased expert of his
own choosing in the first trial and examination
at the facility of his choice before the second.
He does not contend that the chosen experts were
incompetent. He has no right to the appointment
of a psychiatrist who will reach biased or only
[W]hen a defendant
demonstrates to the trial judge that his sanity
at the time of the offense is to be a
significant factor at trial, the State must, at
a minimum, assure the defendant access to a
competent psychiatrist who will conduct an
appropriate examination and assist in evaluation,
preparation, and presentation of the defense.
This is not to say, of course, that the indigent
defendant has a constitutional right to choose a
psychiatrist of his personal liking or to
receive funds to hire his own. Our concern is
that the indigent defendant have access to a
competent psychiatrist for the purpose we have
discussed, and as in the case of the provision
of counsel we leave to the State the decision on
how to implement this right.
Id. at 1096.
The Texas procedure complies with the mandate of
Granviel alleges that
his confession was obtained in violation of his
right to counsel because the prosecutor ignored
his request for counsel during his interrogation.
The clear factual record before this court,
however, belies that conclusion.
On February 8,
1975, hours after he murdered one of his seven
voluntarily entered the police station,
accompanied by his pastor, and requested to
speak to an officer. He orally confessed to
committing seven murders and five rapes. He and
two detectives then went to the apartment
latest victims, neither of whom was Natasha
McClendon. After returning to the station,
confession was reduced to writing, and
Granviel was asked to
sign the typed confession.
It was after
his voluntary oral confession and prior to
signing the written confession that
invoked his right to counsel. Prior to signing
the statement, after having been told again of
his right to have a lawyer appointed to
represent him, Granviel
stated that he wanted to ask a lawyer a legal
question regarding the title to his car.
Granviel was provided a
phone book and a phone.
Granviel shrugged off the phone, saying
it was not important, and signed the written
confession. At trial, defense counsel objected
to the introduction of the confession on the
ground that it was given involuntarily and
without the assistance of counsel. The trial
court conducted a hearing outside the presence
of the jury and overruled the objection. See
Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774,
12 L.Ed.2d 908 (1964).
right to counsel during interrogation is an
important element of an effective right against
statement did not invoke the right.
unambiguously referred to matters unrelated to
his confession and interrogation. He was
apparently concerned with the disposition of his
property while incarcerated, not with admitting
his crime. The State is not required to provide
a free attorney to answer such a request, and it
does not render his confession involuntary. See
Edwards v. Arizona, 451 U.S. 477, 101 S.Ct.
1880, 68 L.Ed.2d 378 (1981).
punishment phase of the trial, the State offered
the testimony of two bailiffs. The bailiffs had
striking his attorney during a confidential
argues that the admission of such testimony
violated the attorney-client privilege and
rendered his counsel ineffective.
The essence of
Granviel's objection is
the confidentiality of the attorney-client
relationship. While incarcerated, a defendant is
subject to state supervision, so attorney-client
confidentiality must be jealously protected.
action in striking his attorney was not related
to the rendering of legal representation and
thus was not protected by the attorney-client
privilege or the Constitution. The attorney-client
privilege protects only those communications
"made in confidence for the purposes of
obtaining legal advice." Wells v. Rushing, 755
F.2d 376, 379 n. 2 (5th Cir.1985). Likewise,
Granviel's right to
counsel was not compromised by the revelation of
an act unrelated to his defense.
amendment prohibition against cruel and unusual
punishment condemns the execution of an insane
prisoner. Ford v. Wainwright, 477 U.S. 399, 106
S.Ct. 2595, 2602, 91 L.Ed.2d 335 (1986).
Accordingly, a prisoner is entitled to an
adjudication of his sanity prior to execution.
Id., 106 S.Ct. at 2602-03.
Granviel contends that he is presently
insane and that the Texas procedures for
determining his sanity are constitutionally
Prior to his
scheduled date of execution,
Granviel filed a writ of habeas corpus in
the state convicting court. The state court held
a hearing in which Granviel
was represented by counsel, presented witnesses,
and was permitted cross-examination. A
psychiatrist was also appointed by the court.
refused to respond to the psychiatrists'
questions, the doctor testified that he
concluded through observation alone that
Granviel was sane and
points to no part of this procedure as defective,
other than his voluntary refusal to answer
questions. The state procedure constitutionally
sanity. See Evans v. McCotter, 805 F.2d 1210
Granviel's rights were
further protected by the federal courts. An
evidentiary hearing on the issue of
sanity was held by the federal court below. The
requested relief was denied.
Granviel is sane.
Based on the
foregoing, the judgment of the district court is