In the early morning hours Johnson approached Fulk and McCaffrey at
a Tomball convenience store and asked the two teens for a ride. The
store clerk saw Fulk and McCaffrey leave in Fulk’s pickup, with
Johnson seated between them.
When they were about 4 miles
from the store, Johnson forced the pair out of the vehicle at
gunpoint and shot each of them several times. Leroy "Punkin"
McCaffrey ran away from the scene but Johnson chased him for a
distance of about 350 feet before catching and killing him.
Johnson then stole Sean's
truck and drove to Austin to see his girlfriend. He told her that he
had killed two boys. He later dumped the stolen truck in San Marcos,
Texas, and sold the murder weapon for cocaine.
He was arrested after two
weeks and he claimed that he killed the boys in self-defense. The
bodies of Fulk and McCaffrey were found beside a rural road. Fulk
had been shot four times, and McCaffrey twice.
Johnson v. State, 871 S.W.2d 744 (Tex.Crim.App. 1994.) (Suppression
Johnson v. Quarterman, 204 Fed.Appx. 367 (5th Cir. 2006)
"It's been a joy and a blessing. Give everybody my regards. I love
you, and I'll see you in eternity. Father, take me home. I'm gone,
baby. I'm ready to go."
Texas Department of
Inmate: Johnson, Lonnie Earl
Date of Birth: 03/09/63
Date Received: 1/27/95
Education: 11 years
Date of Offense: 8/15/90
County of Offense: Harris
Native County: HarrisCounty, Texas
Hair Color: Black
Eye Color: Brown
Height: 05' 09"
Weight: 219 lb
Prior Prison Record: None
Texas Attorney General
Tuesday, July 17, 2007
Media Advisory: Lonnie Earl Johnson scheduled for
AUSTIN – Texas Attorney General Greg Abbott
offers the following information about Lonnie Earl Johnson, who is
scheduled to be executed after 6 p.m. Tuesday, July 24, 2007.
Johnson was sentenced to death for the robbery
and slayings of two teenagers, Gunar Nelson “Sean” Fulk and Leroy
FACTS OF THE CRIME
In the early morning hours of August 15, 1990,
Fulk and McCaffrey approached Lonnie Johnson at a Tomball
convenience store. Johnson asked the two teens for a ride. The store
clerk saw Fulk and McCaffrey leave in Fulk’s pickup, with Johnson
seated between them. Later that morning, motorists found the bodies
of Fulk and McCaffrey beside a rural road. Fulk had been shot four
times, and McCaffrey twice.
Investigators later determined that Johnson shot
Fulk and McCaffrey, then drove the pickup to Austin to visit his
girlfriend. Johnson abandoned the truck in a restaurant parking lot
in San Marcos. About two weeks later, on August 31, Johnson was
arrested in Austin. He admitted shooting the two teens.
Dec. 13, 1990 – A Harris County grand jury
indicted Johnson for capital murder.
Nov. 14, 1994 – A Harris County jury found Johnson guilty of capital
Nov. 17, 1994 – After a separate punishment hearing, the court
sentenced Johnson to death.
April 30, 1997 – The Texas Court of Criminal Appeals affirmed the
conviction and sentence.
Oct. 15, 1998 – In the trial court, Johnson filed a state
application for writ of habeas corpus.
Mar. 20, 1998 – The Texas Court of Criminal Appeals issued an
opinion on Johnson’s motion for rehearing, affirming the trial court
Oct. 4, 1999 – The U.S. Supreme Court denied certiorari review.
Oct. 8, 2003 – The Texas Court of Criminal Appeals denied an
application for writ of habeas corpus.
Oct. 7, 2004 – Johnson filed a petition for writ of habeas corpus in
federal district court.
Aug. 31, 2005 – The federal district court denied relief.
Sept. 7, 2005 – A notice of appeal was filed in federal district
Oct. 26, 2006 – The 5th U.S. Circuit Court of Appeals denied a
certificate of appealability.
EVIDENCE RELATED TO PUNISHMENT
At the punishment phase of his trial, evidence
was introduced that Johnson had been sentenced to a year’s probation
for misdemeanor assault on a female relative. And when he was
seventeen, he punched his teenage girlfriend in the face when she
spoke to another man, and he struck her with a brick on another
Another girlfriend testified that Johnson struck
her in the face, and stole her car.
A friend of Johnson’s testified that on a road
trip he and Johnson had taken, Johnson on two separate occasions
brandished a handgun and stated his intention to kill two
individuals, one a college kid at a convenience store, the other a
While in Harris County Jail awaiting trial in the
capital murders, Johnson hit a fellow inmate during an argument over
a newspaper, fought with another inmate over cleaning supplies,
struck an inmate with a writing pen, piercing the inmate’s lip, and
broke a broom handle over the head of another inmate.
Condemned killer executed for slaying of two
By Michael Graczyk - Houston Chronicle
Associated Press - July 25, 2007
HUNTSVILLE, Texas — Condemned inmate Lonnie Earl
Johnson had told prison officials he was sure he'd be spared the
executioner. "He was pretty confident his appeals would keep him
alive," said Texas Department of Criminal Justice spokesman Jason
Clark, who saw Johnson when he arrived at the death house.
Johnson got about an extra 30 minutes Tuesday
evening while the U.S. Supreme Court considered his final appeal.
Then the appeal was rejected, and the 44-year-old Johnson became the
19th Texas prisoner put to death this year.
Johnson didn't deny killing Sean Fulk Schulz, 16,
and his friend Leroy McCaffrey Jr., 17, and taking their pickup
truck, but insisted the slayings 17 years ago outside Tomball in
northwest Harris County were in self-defense after the pair pulled a
gun and made racial threats against him. Johnson was black, his two
victims white. "It's been a joy and a blessing," he told a friend
who watched through a window in the death chamber. "Give everybody
my regards and my love. I'll see you in eternity." Eight minutes
later, he was pronounced dead.
Six relatives of his victims, including each of
their mothers, watched through another window but Johnson never
looked at them. They declined to speak with reporters following the
lethal injection. "We're being punished," Chris Schulz, whose son
was one of the slain teens, said earlier. "We're going through our
own prison sentence here. We're going to go through it all our lives.
"All I can do for him is to go to his grave and make sure he can be
remembered ... If it wasn't for the victims, there wouldn't be an
execution. People need to remember that."
Lawyers for Johnson had contended Harris County
prosecutors withheld evidence favorable to him and jurors who
decided he should die never heard about the racial slurs that he
said led to the shootings. State lawyers denied the allegations. The
5th U.S. Circuit Court of Appeals earlier Tuesday afternoon also had
dismissed Johnson's appeal. "Johnson's claims are too tenuous," the
appeals court said. "Although Johnson alleges that the two victims
were racist, he makes no such showing."
Johnson contended the teens offered him a ride
home from a convenience store in Tomball and he accepted. During the
ride, Johnson said they pulled a gun on him and threatened him. He
said he when he wrestled with the pair to grab the weapon, they were
The bodies of McCaffrey, known as "Punkin," and
Schulz, known to his family and friends as "Bubba," were spotted the
next morning by a motorist. Johnson acknowledged taking their pickup
truck and driving to Austin to see his girlfriend, who worked at a
topless club. He traded the gun to buy some drugs, he said. He was
arrested about two weeks later in Austin.
McCaffrey and Schultz attended Magnolia High
School in Montgomery County. The night of Aug. 15, 1990, McCaffrey
met his friend getting off work as a grocery store stocker, and the
pair stopped at the convenience store to see a girl they knew.
According to the store clerk, Johnson said he needed a lift because
his car had broken down. Johnson said from death row he was out
jogging and had no car. Prosecutors said the story about the
disabled car was a ruse.
"What I got wasn't justice," Johnson said last
week from death row. "I feel like I was betrayed." Johnson had no
previous prison record, but evidence at trial indicated a history of
aggressive behavior, including fights with other inmates at the
Harris County Jail while awaiting trial.
Death penalty opponents noted Johnson was the
100th person executed after being given a death sentence by a Harris
County jury. The total for the county is more than any other state
except Texas, where Johnson became the 398th convicted killer to
receive lethal injection since the state resumed capital punishment
in 1982. "A grim milestone for a system that is costly, racially
biased and may have put innocent men to death," said Jared Feuer,
southern regional director for the human rights group Amnesty
International, which opposes capital punishment in all instances.
The next Texas inmate scheduled to die is Kenneth
Parr, convicted of the January 1998 rape-slaying of Linda Malek, 28,
at her Matagorda County home. The Aug. 15 punishment is one of five
lethal injections set for the month in Huntsville.
Inmate put to death for killing teens
Dallas Morning News
Associated Press - Wednesday, July 25, 2007
HUNTSVILLE, Texas – Convicted murderer Lonnie
Earl Johnson was executed Tuesday evening for the fatal shootings of
two Harris County teenagers 17 years ago. Mr. Johnson expressed love
to a friend. "It's been a joy and a blessing. Give everybody my
regards. I love you, and I'll see you in eternity," he said in a
final statement. "Father, take me home. I'm gone, baby. I'm ready to
He never looked at six relatives of the victims –
including the mothers of Sean Fulk Schulz, 16, and Leroy McCaffrey
Jr., 17 – who witnessed the execution. He was pronounced dead at
6:44 p.m., eight minutes after the lethal drugs began to flow.
Mr. Johnson, 44, didn't deny killing the youths
and taking their pickup in the 1990 incident, but he had insisted
the slayings were in self-defense after the pair pulled a gun and
made racial threats against him. Mr. Johnson is black, his two
The execution was the 19th this year in Texas.
Death penalty opponents said he was the 100th person executed after
being given a death sentence by a Harris County jury. That's more
than any state except Texas, which has executed 398 convicted
killers since resuming capital punishment in 1982.
Lonnie Earl Johnson, 44, was executed by lethal
injection on 24 July 2007 in Huntsville, Texas for the murder and
robbery of two teenage boys.
On 15 August 1990, Johnson, then 27, approached
Leroy "Punkin" McCaffrey, 17, and Gunar "Sean" Fulk, who was also
known as "Bubba," 16, at a convenience store in Tomball in north
Harris County. Johnson asked the boys to give him a ride, and they
agreed. The boys' bodies were found later that morning on the side
of the road, about four miles away. Fulk was shot three times in the
head and once in the chest. McCaffrey was found entangled in a fence
about 350 feet away. His spinal cord was severed by a single gunshot.
A knife was in his hand.
Following the killings, Johnson stole Fulk's
truck and drove to Austin to visit his girlfriend. He later
abandoned the truck in San Marcos, between Austin and San Antonio.
He traded the gun used in the killings for cocaine. He was arrested
in Austin on 29 August. At the time of his arrest, Johnson claimed
that he killed the youths in self-defense. He maintained this
position throughout his trial and appeals.
Prosecutors said that Johnson pulled the gun and
forced the boys out of the pickup. He shot Fulk multiple times, but
McCaffrey was able to run away. Johnson chased him and caught up
with him as he tried to make his way through a fence, then shot him.
Johnson had a history of violent behavior. At age
17, he punched his girlfriend in the face on one occasion, and
struck her with a brick on another occasion. Another girlfriend
testified that he struck her in the face and stole her car. At the
time of the capital murder, he was on probation for a misdemeanor
conviction for assaulting a female relative. He also had previous
convictions for burglary and larceny. While in jail awaiting his
capital murder trial, Johnson assaulted fellow inmates on three
separate occasions: hitting one, striking another in the lip with a
pen, and breaking a broom handle on another one's head.
A jury convicted Johnson of capital murder in
November 1994 and sentenced him to death. The Texas Court of
Criminal Appeals affirmed the conviction and sentence in April 1997.
All of his subsequent appeals in state and federal court were denied.
"I am innocent by reason of self-defense,"
Johnson said in an interview from death row the week before his
execution. "The only difference between me and James Byrd Jr. is
that I lived," he said. Byrd was a black man who was dragged to
death behind a pickup truck in Jasper County in 1998. Juries found
three white men guilty of capital murder in Byrd's killing. Two were
sent to death row, and the third was given a life sentence.
Johnson said that after he got in the pickup,
McCaffrey and Fulk drove him to a remote location, where they forced
him from the truck at gunpoint, urinated on him, and threatened to
kill him. When the teens relaxed their guard, Johnson said, he
wrestled with the pair to grab the pistol, and they were shot. "You
do what you have to do," Johnson said. "If I could have run, I'd
have done that."
He admitted stealing the pickup truck and trading
the gun for drugs after the killings. "I did a few knucklehead
things. When things like this are going on, you're not going to
think clearly. I was not thinking clearly." Johnson also said that
the assaults he committed in the Harris County Jail were for his own
Johnson's execution was delayed for about 30
minutes as the U.S. Supreme Court considered his final appeal. In
his last statement, Johnson expressed love to his friend, Carrie
Christensen, who watched from an adjacent room. He did not
acknowledge his victims' relatives, who were watching from another
room. The lethal injection was started, and he was pronounced dead
at 6:30 p.m. "A beautiful soul was killed today," Christensen said
after the execution. "His only crime was to defend himself against
racist aggressors." Both of the victims' mothers denied that their
children were racists.
Johnson was the 100th prisoner from Harris County
to be executed since capital punishment resumed in 1982 following a
nationwide moratorium. The occasion was marked by about a half-dozen
anti-death-penalty protestors, who stood on the sidewalk outside
District Attorney Chuck Rosenthal's home for about an hour Tuesday
Lonnie Earl Johnson was convicted and sentenced
to death for the double murders of two teenage boys. Johnson
approached the boys outside of a convenience store in Tomball, a
small suburb northwest of Houston, and asked for a ride. They agreed,
but when they were about 4 miles from the store, Johnson forced the
pair out of the vehicle at gunpoint and shot each of them several
times. Leroy "Punkin" McCaffrey ran away from the scene but Johnson
chased him for a distance of about 350 feet before catching and
killing him. Johnson then stole Sean's truck and drove to Austin to
see his girlfriend. He told her that he had killed two boys. He
later dumped the stolen truck in San Marcos, Texas, and sold the
murder weapon for cocaine. He was arrested after two weeks and he
claimed that he killed the boys in self-defense.
Chris Schultz and Laura McCaffrey are the boys'
mothers and they were outraged when they found a web page dedicated
to their sons' killer. The mothers said Johnson is still victimizing
their sons from his cell on death row. Chris Schultz, mother of Sean
Fulk, told a local Houston reporter, "When something like this comes
up, you start thinking of all the horrible things they had to go
through." Punkin McCaffrey's mom, Laura agreed. "Then when you read
all that, you start re-hashing it all in your mind, it brings it all
back to you. And it hurts." Johnson's web page says that the women's
sons were racists, and says he was simply fighting his own "lynching."
Chris Schultz said of the web site, "He's being allowed to say
anything about these kids."
On Texas Death Row for Fighting his Lynching ?
" This is the end of the ride for you' Nigger.'
When the truck stopped, he was forced out onto the ground and the 2
teenagers kicked him in the head and stomped on his back, all the
time laughing and saying, 'Nigger you gonna die. I hate Niggers.
We're gonna cut you up.' When he was ordered, 'Get your black Nigger
arse up," Lonnie got up slowly, and then made a grab for the guy
holding a gun. He said he was mad with fear and rage and struggled
against this teenager who was bigger than him. The smaller youth
jumped on Lonnie's back. The gun went off. "The big guy falls. I
have the pistol now. The other guy comes at me with a knife. So I
pull the trigger."
- From Lonnie's account (See "From The Inside"
INFORMATION PROVIDED BY LONNIE JOHNSON AND HIS SUPPORTERS....
Writing By Lonnie
TEXAS DEATH ROW HOTEL
Poetry By Lonnie
You're Not So Heavy
FROM THE WILLIAMS REPORT By Nanon Williams -
Death Row Texas - September 5, 2000
Prisoner-to-Prisoner Interview with Lonnie Johnson
From: http://www.deathrow.at "... because Human Rights are
Lonnie Johnson's European Webpage
"FROM THE INSIDE"
by Australian author Daffie Bidwell...
LONNIE EARL JOHNSON , an Afro-American born in
Texas in 1963, is under sentence of death by the State of Texas. He
and I have been pen friends since early 1995, but only recently has
he written about the realities of living on Death Row. Infuriated
when the American media portrayed it as a hotel - with murderers
living in luxury at taxpayers' expense - he wrote an insider's view:
Lonnie was born in Houston. His family was poor
but both parents were employed. He graduated from high school and
went to college. Tall and athletic, he was a football star, but
dropped out because his mother needed financial support. In 1990. as
a 27-year-old with a son and a daughter, he was working in his small
landscaping business by day and training by night to get back into
football. He wrote that he was out jogging late one hot August night
when he met 2 teenagers, complete strangers who offered him a lift
home in their truck. Despite the racism of the area he felt safe
with them because of their youth.
He told me that when he questioned the route they
were taking, he suddenly felt a gun pressed into the side of his
head and heard 'This is the end of the ride for you' Nigger.' When
the truck stopped, he was forced out onto the ground and the 2
teenagers kicked him in the head and stomped on his back, all the
time laughing and saying, 'Nigger you gonna die. I hate Niggers.
We're gonna cut you up.'
When he was ordered, 'Get your black Nigger arse
up," Lonnie got up slowly, and then made a grab for the guy holding
a gun. He said he was mad with fear and rage and struggled against
this teenager who was bigger than him. The smaller youth jumped on
Lonnie's back. The gun went off. "The big guy falls. I have the
pistol now. The other guy comes at me with a knife. So I pull the
Two weeks later he was arrested. He describes the
experience as like 'having someone stick a thousand knives in my
heart.' He said that until then he hadn't realized that his
assailants had died. One of them had been found still clutching a
knife with a 20 cm blade. He strongly maintains that he acted in
self defense; that he had no weapon; that one teenager had a gun and
the other a knife 'If you 'd been in my situation,' he asked, 'what
would you have done?'
Lonnie claims that he spent 4 1/2 years in jail
in Houston before his case came to and that his state appointed
(legal aid) attorney visited him only twice in all that time. On one
of those occasions it was to offer him a deal - to plead guilty and
receive a 60 year sentence. Not surprisingly he refused. Later he
was offered a 50 year sentence and refused, saying 'Why should I do
all that time when I'm innocent?'
He wrote, 'My family and friends were in court
every day. Everyone expected me to be acquitted. But my attorney
didn't call any witness on my behalf. The jury heard only the
prosecution side. Because of this I had a gut feeling I'd be found
guilty but I tried to stay positive. I kept saying to myself, "they
can free me. " I didn't take the stand. I wanted to, but my attorney
said ft was better not to.
'The verdict was read out. Found guilty of
capital murder - I was totally devastated. Numb and angry at the
same time. Angry because this was the justice system I had been
taught to believe in. The government I'd voted for. And here it was,
condemning me to death... I was allowed to see my mother and father,
one at a time, after the verdict I came to Death Row in January 95.'
New laws have recently cut the period during
which appeals may be lodged, and Lonnie's time limit is almost up.
Understandably after his experience with his trial lawyer, he
doesn't want another state appointed attorney to handle his appeal,
saying that they are employees of the justice system that has
condemned him - and he has no evidence that he would be properly
represented. He has had an interview with a private Appellant
Attorney who has achieved the release of other Death Row prisoners
on appeals, and this man will take his case if Lonnie can raise $75,
000 for the fees. It is an impossibly large sum for a family that
has always been poor.
But Lonnie keeps up his hope through days of what
would seem demoralizing sameness, deadening predictability. In some
letters he rages against the injustice of his conviction and the
racial hatred he has always lived wit, but says, "I can do now is
stay and be real with myself and others... I keep in shape with push-ups,
and mentally, physically and spiritually I'm the best in my entire
life. My routine is getting up at 2.30 a.m. to eat breakfast, saying
my prayers, and if I have some very important letters to answer I
turn my radio on, brush my teeth and get busy while irs nice and
calm. Or just sit and listen to the birds sing outside my window,
thinking about my children. Read the Holy Koran or law cases, write
more letters, pray, eat, go outside for 2 hours, watch a little TV,
eat, read, pray, write a few more letters, and that's the whole day.
Very exciting, huh?'
He wrote in March '97, 'My mother came to visit
me, bringing my son and daughter. The visit was very very emotional
because my friend Barefield's family were there too. They were
spending their last hours, minutes and seconds with him before his
execution. But as I was trying to help them keep strong, my mother
started to cry. It really hurts me inside to see my mother cry like
that and there's nothing I can do. My son and I tried to comfort her,
and I gave her encouraging words that if we work hard we can prevent
this awful thing from happening to me. Barefield went to his death
protesting his innocence. In fact it was his brother who had
committed the murder.'
'Letters help me mentally, keeping my mind out of
this crazy place for a while. I really enjoy the poems you send and
look forward to reading many many more. Henley's poem stuck in my
mind. Very strong and inspiring I say it as I walk. "I thank
whatever gods may be/ For my unconquerable soul .. . In the fell
clutch of circumstance / I have not winced nor cried aloud / Under
the bludgeonings of chance/ My head is bloody, but unbowed. "
But sadly - for a man on Death Row, with no money
and no influence - courage may not be enough to save his life.
Lonnie Johnson 999135
Polunsky Unit D.R.
3872 FM 350 South
Livingston, Texas 77351 USA
His appeal account is:
INMATE DEFENSE TRUST FUND
LONNIE EARL JOHNSON
COMERICA BANK - Account 7887906589-20
P.O. BOX 660332
DALLAS TEXAS 75266-9675
Friends of Lonnie's have asked me for more
background information, so I went back through letters and came up
with the following, some of which may interest you also. I don't
know whether you know that Lonnie has two children - a daughter
Carleshia,15, who lives with her mother. Son Damian Earl aged 16
lives with his mother. Lonnie says it was a past girl-friend who
told the police about him and the shooting. He said it was revenge.
'If can't have you, no one else can.' She told the police he killed
the teenagers because they owed him money for drugs. He denies any
connection with drugs, either as a user or a dealer.
Lonnie's family was poor but both parents worked.
Mother was housekeeper to a family. Father worked in a racing stable.
There's one brother - older than L. I don't know where he is. but I
understand he is not supportive of L at present. As children they
spent a lot of time with their grandfather because of parents
working. Mother is a strong woman & great influence on L. She is
aged 55 and is a Christian - as I think L was until he became a
Muslim in prison. He had not been to prison before.
Landscape business was just Lonnie and one other
man. He didn't have any training -just picked up garden knowledge
from watching mother & grandmother. Lonnie makes jewelry boxes. I
don't know what sort or how many. He asked me if I could help him by
selling them. Can't be done from Australia because of taxation rules
He lists his interests as his children, nature,
animals, training bull terriers & horses, crafts, ancient
civilizations, reading, arts. Doesn't watch much TV. He is 6 ft tall
& weighs 225 lbs.Lonnie wrote, "I know only the strong survive, & if
you don't stay strong in this situation, then you're executed
mentally long before it takes place physically. You can believe I
will stay strong in every area possible because it's not over until
it's over & I will be fighting every step of the way.'
Pen Pal Request:
Hello! My name is Lonnie Earl Johnson, a 36 year
old african american male, currently imprisoned on death row, in the
state of Texas, and I am very interested in gaining correspondence
from people all over the world.
I'm also a member of the Anthroposphical Society
in America. I can understand the reluctance of people to get
involved with prisoners on death row, for the emotional baggage is
very difficult for everyday people to deal with, but I do invite all
that are willing to write me.
Some of my interests are reading, writing,
building hand made craft items, studying case law, exercising my
body, mind and soul, and listening to my radio. I'm the father of 2
beautiful children that I love with all my heart and soul. I'm
extremely proud of them and the way they have stayed focused on
their education through this tragic ordeal for us all. My case is
still in the state courts, but I can use help with my legal issues
such as investigators and adequate attorneys, because I did not get
a fair trial. Nevertheless I would still like to hear from you and
please enclose a photo.
I would like to thank you for taking the time to
read my letter to you, and for your time and assistance in the above
matter! Your help will be greatly appreciated! Yours sincerely,
USA (Texas): Death penalty / Legal concern:
Lonnie Earl Johnson (m)
PUBLIC AI Index: AMR 51/124/2007
19 July 2007
UA 188/07 Death penalty / Legal concern
USA (Texas) Lonnie Earl Johnson (m), black, aged
Lonnie Johnson is scheduled to be executed in
Texas on 24 July. He was sentenced to death in 1994 for the murder
of two white teenagers in 1990. He has consistently maintained that
he acted in self-defence, and an appeal newly filed on his behalf
alleges that the prosecution withheld evidence that supported his
The bodies of Gunar Nelson Fulk, aged 16, and
Leroy McCaffrey, aged 17, the latter with a knife in his hand, were
found near a rural road in Tomball in Harris County, eastern Texas,
on 15 August 1990. Both had been shot. Police interviewed a woman,
Tammy Durham, who said that she had asked the teenagers to come to
the store where she worked after she saw a black man, wearing cut-off
jeans and a dirty shirt and carrying a rolled up newspaper, acting
suspiciously near the store. After the teenagers arrived, she saw
them approach a black man who was using a payphone outside the store
and she said they left with him in their vehicle, after asking for a
can of petrol.
The police identified Lonnie Johnson, a 27-year-old
man with no criminal record, as a suspect. They obtained a statement
from his girlfriend who said that he had arrived at her hotel room
in the city of Austin in Gunar Fulk’s vehicle in the early hours of
16 August 1990, and said that he had shot the two teenagers. They
subsequently took Lonnie Johnson into custody, without a warrant,
and obtained a statement which stated that he had acted in self-defence
after a gun was pulled on him and that he had not known the two
teenagers prior to that evening.
Lonnie Johnson was charged with capital murder.
The defence lawyer sought to have Lonnie Johnson’s police statement
suppressed on the grounds that it was the product of an unlawful
arrest. The trial judge agreed and ruled that the statement was not
admissible. However, the state appealed and a higher court
overturned the trial judge’s ruling. The trial continued in
According to the appeal just filed, at the trial
the prosecution "seemed to argue that either Mr Johnson did not know
the men and feigned car trouble, or the men knew Mr Johnson in the
context of drug dealing. The state argued that Mr Johnson either
shot the men in order to steal Fulk’s truck, or shot the men over
money owed for a drug debt."
Although Tammy Durham was unable to positively
identify Lonnie Johnson, the prosecution argued that he was the man
whom she had seen and suggested that he had been carrying a gun
wrapped in the newspaper. Johnson was found guilty of capital murder
and after the prosecution produced numerous witnesses to testify
that the defendant was violent, had a bad temper, and hated whites,
he was sentenced to death.
After the trial, one of the witnesses who had
testified in support of the prosecution’s argument that Lonnie
Johnson would pose a future danger to society if allowed to live – a
prerequisite for a death sentence in Texas – recanted his testimony.
In an affidavit, the witness said that: "The statements that I made
at trial about Lonnie displaying a handgun and wanting to kill a
motorist were all false. These were statements made to make the
District Attorney happy, so she would secure my early release from
prison". However, the courts have ruled that this witness had not
been promised anything in return for testifying, and that his
testimony had not affected the outcome of the trial.
According to the appeal just filed in the state
courts, Lonnie Johnson continues to maintain that he had been out
running on the evening of the shooting. At the store in which Tammy
Durham was working, he had accepted an offer of a lift from the two
teenagers. He maintains that he was not wearing cut-off jeans or a
dirty shirt or carrying a newspaper. He says that after a few miles
in the truck, Leroy McCaffrey had produced a gun, saying something
like "nigger, this is the end of the ride for you", and Gunar Fulk
had pulled the truck over to the side of the road.
Lonnie Johnson claims that he was ordered out of
the vehicle, made to lie face down on the ground, and that he was
kicked, racially abused and urinated upon. He was then ordered to
stand up. Johnson says that, although his memory of what happened
next is not clear, he remembers managing to wrestle the gun from
Gunar Fulk and shooting him and then Leroy McCaffrey, who was armed
with a knife and had apparently begun to flee the scene. Lonnie
Johnson says that he then took the truck and fled to Austin.
At the trial, the defence had little or no
evidence that the two teenagers were the aggressors, or that the gun
belonged to them rather than Johnson. However, according to the
appeal just filed, Lonnie Johnson’s lawyer claims that various
documents found in the Harris County District Attorney’s Office in
two of four boxes of evidence to which she was permitted access in
early June 2007 are exculpatory and yet were apparently not
disclosed to the defence at the time of the trial.
The appeal argues that these documents provide
evidence of prosecutorial and investigative misconduct in the case;
of the unreliability of the ballistics testing done on the alleged
murder weapon (the ballistics expert who conducted the testing has
been discredited in other cases); that the gun may have belonged to
one of the two teenagers; that DNA was taken from under Fulk’s
fingernails but that any test results had not been released to the
defence (any such testing, it is argued, could lend support to
Johnson’s claim that he struggled with Fulk and had been urinated on
by McCaffrey); and that the black man whom Tammy Durham had seen
outside the store was an individual other than Lonnie Johnson,
potentially discrediting the prosecution’s theory of Johnson having
a gun in a newspaper. The appeal brief claims that the original
trial judge, now in private legal practice, has been approached and
agreed that such evidence could support Lonnie Johnson’s claim of
In another case in June 2007, a judge on the
Texas Court of Criminal Appeals (TCCA) noted that the court had "repeatedly
held that flight is evidence of a circumstance from which an
inference of guilt may be drawn." Lonnie Johnson’s newly filed
appeal to the TCCA provides evidence of the racially charged climate
and examples of racist violence in east Texas which could help to
explain his flight from the crime scene. In this climate, the appeal
argues, "common sense dictates that if a black person found
themselves in a position where they needed to explain the deaths of
two white ‘boys’, they may be scared that they would not survive
long enough to exercise any due process rights afforded them by the
United States Constitution."
Amnesty International opposes all executions
unconditionally. Today, 129 countries are abolitionist in law or
practice. In contrast to this, the USA has carried out 1,087
executions since resuming judicial killing in 1977. Texas accounts
for 397 of these executions. If Lonnie Johnson is executed, he would
become the 100th person convicted in Harris County to be put to
death since executions resumed in Texas in 1982.
Lonnie Johnson, TX, July 24
Do Not Execute Lonnie Johnson!
The state of Texas is set to execute Lonnie
Johnson on July 24, for the August 1990 murders of Gunar Nelson Fulk
and Leroy McCaffrey.
The state of Texas should not execute Lonnie
Johnson for his role in this crime. Executing Johnson would violate
the right to life as declared in the Universal Declaration of Human
rights and constitute the ultimate cruel, inhuman and degrading
punishment. Furthermore, Johnson claims that he only killed Fulk and
McCaffrey out of self-defense.
Please write to Gov. Rick Perry on behalf of
Johnson v. State, 871 S.W.2d 744 (Tex.Crim.App.
1994.) (Suppression Appeal).
Defendant was charged with capital murder. The
183rd Judicial District Court, Harris County, J. Burnett, J.,
granted defendant's motion to suppress his postarrest written
statement to police, and the state appealed. The Texarkana Court of
Appeals, Grant, J., 843 S.W.2d 252, reversed and remanded. Both
defendant and the state sought discretionary review. The Court of
Criminal Appeals, Overstreet, J., held that attenuation doctrine is
applicable to statutory prohibition against evidence “obtained” in
violation of the law. Affirmed. Clinton, J., dissented.
Appellee was indicted for the offense of capital murder, alleged to
have occurred on or about August 15, 1990. The trial court granted
his motion to suppress his written statement. The State appealed
that suppression ruling. The Texarkana Court of Appeals reversed the
suppression ruling and held that the statement is admissible. State
v. Johnson, 843 S.W.2d 252 (Tex.App.-Texarkana 1992). Both appellee
and the State appealed the court of appeals' ruling and sought
discretionary review by this Court.
I. SUMMARY OF PERTINENT FACTS
The trial court conducted a hearing on appellee's
suppression motion. Thereafter the trial court entered findings of
fact and conclusions of law. Based upon that hearing and the trial
court's fact-findings, the record reflects that on August 15, 1990,
police discovered two bodies in Harris County. During the course of
investigation, appellee emerged as a suspect. Information was
received that he was possibly in Austin. Harris County investigators
received assistance from police in Austin.
On August 29, Austin investigators located
appellee's girlfriend in Austin. She gave oral and written
statements implicating appellee in the Harris County murders. Around
midnight, her written statement was FAXed to Harris County
investigators, who proceeded to try to obtain a warrant for
In the meantime during the early morning hours of
August 30, Austin investigators, in returning the girlfriend to her
car located in the parking lot of her place of employment, observed
appellee enter her car. Police moved in and arrested him there on
that parking lot in Austin.
At that time, Harris County investigators were
still in the process of securing an arrest warrant; thus the arrest
was made without a warrant. Subsequently, in response to police
interrogation, appellee gave the written statement which is the
subject of the suppression claim. The Harris County investigators
were able to get an arrest warrant issued that morning, whereupon
they then drove to Austin.FN1
FN1. More specifically, the record reflects that
appellee was arrested at approximately 1:30 a.m. in Austin, and that
the arrest warrant was signed at 3:50 a.m. in Harris County. One of
the Harris County investigators testified that they then contacted
one of the Austin investigators, and indicated that they remained in
contact with Austin investigators via mobile phone on the way to
Austin. The record also reflects that Appellee's written statement
began at approximately 5:00 a.m. and was witnessed and signed at
approximately 7:00 a.m.
II. THE STATE'S GROUND
As noted above, the State successfully appealed
the trial court's order suppressing appellee's written statement.
However, we granted one of the State's grounds for review
challenging a portion of the Texarkana Court of Appeals' decision.
Specifically, that ground asked “[w]hether the court of appeals
misinterpreted the trial court's findings of fact by concluding that
the trial court ‘made no finding that [appellee] burglarized [his
girlfriend]'s car, and no such inference can be made from the facts
that the trial court found.’ ”
Particularly, the State takes issue with the
court of appeals' statement that the trial “court did not indicate
acceptance of anything that [the officer-in-question] testified to
as fact.” State v. Johnson, 843 S.W.2d at 255. The State insists
that such a conclusion arose from a misinterpretation of the trial
court's findings of fact, including placing undue emphasis on the
format of the findings, misreading a particular finding, and
ignoring the legal conclusions. It adds that the format of the
findings, which referenced the record and denoted which witnesses
testified to which facts, “does not transmogrify the findings into
Johnson v. Quarterman, 204 Fed.Appx.
367 (5th Cir. 2006) (Habeas).
Background: State prisoner, who was convicted of
capital murder, filed petition for a writ of habeas corpus,
challenging his death sentence. The United States District Court for
the Southern District of Texas denied petition. Prisoner sought
certificate of appealability (COA).
Holdings: The Court of Appeals held that:
(1) even assuming prosecution knew that witness would fabricate his
testimony or made a “deal” that resulted in his lies, state habeas
court could have concluded that witness's testimony about prisoner's
violent threats was not material under the Brady standard;
(2) district court's conclusion, that habeas review of claim
regarding parole instruction was procedurally barred, was not
(3) district court's disposition of state prisoner's claim that
Texas sentencing scheme was unconstitutional was not debatable.
Petitioner Lonnie Earl Johnson, convicted of capital murder in Texas
and sentenced to death, requests this Court to issue a Certificate
of Appealability (COA) pursuant to 28 U.S.C. § 2253(c)(2). Johnson
challenges only his death sentence. He raises the following issues:
(1) the prosecution suppressed material exculpatory evidence during
the sentencing phase in violation of due process; (2) due process
and equal protection required that his jury be instructed regarding
parole laws; and (3) the Texas capital sentencing scheme's failure
to require the prosecution to prove beyond a reasonable doubt future
dangerousness and the absence of mitigation evidence violates due
process and is in conflict with Supreme Court precedent. Finding
that Johnson has not made a substantial showing of the denial of a
constitutional right, we DENY the COA.
* * *
II. SUPPRESSION OF EVIDENCE
Johnson argues that the State failed to disclose
exculpatory evidence relating to a State's witness who testified
during the punishment phase. See Brady v. Maryland, 373 U.S. 83, 83
S.Ct. 1194, 10 L.Ed.2d 215 (1963). The State has a duty to disclose
evidence favorable to the accused that is material to guilt or
punishment. See id. at 86-87, 83 S.Ct. at 1196-97. To establish this
due process violation, an accused must show that the State withheld
evidence, that the evidence was favorable, and that the evidence was
material to the defense. Little v. Johnson, 162 F.3d 855, 861 (5th
Cir.1998). “ Brady applies equally to evidence relevant to the
credibility of a key witness in the state's case against a defendant.”
Graves v. Dretke, 442 F.3d 334, 339 (5th Cir.2006) (citing Giglio v.
United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)),
cert. denied, --- U.S. ----, 127 S.Ct. 374, 166 L.Ed.2d 253 (2006).
However, a new trial is not automatically required “whenever a
combing of the prosecutors' files after the trial has disclosed
evidence possibly useful to the defense but not likely to have
changed the verdict.” Giglio, 405 U.S. at 154, 92 S.Ct. at 766 (quotation
marks and citation omitted).
The standard for determining “materiality is a
‘reasonable probability’ of a different result.” Kyles v. Whitley,
514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995). In
assessing Brady materiality, “[t]he question is not whether the
defendant would more likely than not have received a different
verdict with the evidence, but whether in its absence he received a
fair trial, understood as a trial resulting in a verdict worthy of
confidence. A ‘reasonable probability’ of a different result is
accordingly shown when the [State's] evidentiary suppression
‘undermines confidence in the outcome of the trial.’ ” Id. (citation
During the punishment phase of Johnson's capital
murder trial, the State called Donald Richardson to testify
regarding violent threats Johnson made during a motorcycle trip from
Tomball, Texas to Austin. Richardson testified that Johnson, who was
armed with a gun, threatened to kill a man for his car. Subsequent
to Johnson's conviction, Richardson recanted his trial testimony in
an affidavit, stating that it was “all false” and he “consented to
do this on the grounds that [the Harris County District Attorney's
Office] would contact the Texas Board of Pardons and Parole and
secure my early release from prison.”
During Johnson's state habeas proceedings, his
attorney submitted a note that had been handwritten by Richardson to
Diana Lynn Glaeser, one of the prosecutors at Johnson's trial.
Apparently, Johnson's habeas attorney had discovered the following
note in the prosecution file:
I need to see you as soon as possible, please
come see me at the jail. I am at 1301 Franklin 7th Floor at the
moment. I am having some problems that I need fixed right now. If
you can't make it today please send someone else to assist me. Thank
you. Sincerely Donald Richardson [address omitted] P.S. Pertaining
to Lonnie E. Johnson case.
With respect to the chronology of events, the
note was written on October 10, 1994. The jury found Johnson guilty
of both capital murders on November 14, 1994, and three days later
the judge accepted the jury's punishment verdict of a death sentence.
On January 30, 1995, the prosecutor informed Johnson's trial
attorney that Richardson disavowed his testimony and wanted to
“change his testimony, or words to that effect.”
During Johnson's state habeas proceedings, his
counsel submitted an affidavit from Richardson, which provided as
follows: “The statements I made at trial about Lonnie displaying a
handgun and wanting to kill a motorist were all false. These were
statements made to make the district attorney happy, so she would
secure my early release from prison.”
The state habeas trial court made the ensuing
findings of fact with respect to the instant claim based upon the
“credible affidavit of Di Glaeser, the trial prosecutor in the
primary case.” In 1990, Richardson contacted a law enforcement
agency and provided information about Johnson. In October of 1990,
Richardson spoke to an investigator with the Harris County District
Attorney's Office and the information provided in that interview was
consistent with Richardson's trial testimony. The “State's file was
always open to the applicant's trial counsel, and that trial counsel
went to the State's office to inspect the file.”
The court further found: that Donald Ray
Richardson contacted the Harris County District Attorney's Office
several times in the days leading up to the trial of the primary
case; that Richardson was serving concurrent prison sentences for
auto theft and burglary at the time of trial and was bench warranted
from TDC to the Harris County Jail prior to trial; that Richardson
indicated that he was having problems in the jail and wanted to be
moved; that Glaeser passed this information on to *371 her
investigator, who in turn contacted the county jail personnel; and
that Richardson was ultimately moved within the jail.
Additionally, the court found that after
Richardson was moved once within the jail, any other requests he
made, including to be moved again, were ignored by the State.
Richardson was informed that he would not receive any “deals” in
exchange for his testimony against Johnson. The court expressly
found that Glaeser neither made a deal with Richardson nor
instructed or encouraged him to lie at trial.
The court also found credible the affidavits of
Rob Kepple, an assistant district attorney who was involved in the
pretrial proceedings, and D.C. Wells, an investigator for the Harris
County District Attorney's office. Both affiants stated that
Richardson received no deal or agreement in exchange for his
testimony. In a nutshell, the state habeas court found that the
prosecution did not promise anything in exchange for Richardson's
testimony. The only “benefit” Richardson received was being
relocated away from Johnson within the jail. As the court below
stated, the state habeas court's factual findings “destroyed
Johnson's habeas claims.”
Johnson contends that he did not have a “fair
opportunity to challenge the credibility of the prosecutors” and
that “all credibility decisions were made from a cold record.” Prior
to AEDPA, this Court has explained that “the presumption of
correctness does not become inapplicable for the sole reason that no
live evidentiary hearing has been held.” May v. Collins, 955 F.2d
299, 311 (5th Cir.1992) (emphasis in original). Thus, this challenge
to the factual findings would have failed even pre-AEDPA. AEDPA
“jettisoned all references to a ‘full and fair hearing’ from the
presumption of correctness accorded state court findings of fact.”
Valdez v. Cockrell, 274 F.3d 941, 949 (5th Cir.2001). “The
presumption of correctness erected in its place at § 2254(e)(1), now
simply provides that unless the petitioner can rebut the findings of
fact through clear and convincing evidence, those findings of fact
are presumed to be correct.” Id. Johnson has failed to marshal clear
and convincing evidence to rebut the presumption of correctness
afforded the state court's findings of fact.
Moreover, as the district court concluded,
“[e]ven if the prosecution knew that Richardson would fabricate his
testimony or made a ‘deal’ that resulted in his lies-and Johnson has
not made either showing-the evidence against Johnson would allow the
state habeas court to conclude that Richardson's testimony was not
material under the Brady standard.” “The materiality of Brady
material depends almost entirely on the value of the evidence
relative to the other evidence mustered by the state.” Edmond v.
Collins, 8 F.3d 290, 293 (5th Cir.1993) (internal quotation marks
and citation omitted). Johnson does not dispute the state court's
finding that “there were twenty-three punishment phase witnesses
other than Donald Richardson who testified concerning at least nine
incidents of actual violence by [Johnson] as well as many other
incidents of threatened violence.”
Moreover, numerous witnesses (both prison guards
and inmates) testified to Johnson's continuing violent behavior
after his incarceration for the instant capital murders. In view of
the other evidence of Johnson's future dangerousness, combined with
the instant execution-style murders of the two teenage boys who
apparently were attempting to help Johnson with his feigned car
trouble, we conclude that there is no reasonable probability that
disclosure of the allegedly suppressed evidence would have resulted
in a different outcome at sentencing. Accordingly, because we
conclude that jurists of reason would not find the district court's
disposition of this claim debatable, we deny a COA.
III. PAROLE INSTRUCTION
Johnson next contends his due process and equal
protection rights require that a jury be instructed with respect to
parole laws and the “implication of a life sentence.” Johnson did
not request that the jury be so instructed, and the state habeas
court found that the claim was procedurally barred. The district
court therefore found that it was procedurally barred from
considering this claim.
Johnson acknowledges that no objection was made.
Nonetheless, relying on Texas state law, he argues that he was not
required to object based on the “right not recognized” exception.
When faced with this precise argument, this Court has explained that
“it is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions.” Rosales v. Cockrell, 48
Fed.Appx. 103 (5th Cir.2002) (unpublished) (quoting Estelle v.
McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)).
As such, the district court's conclusion that habeas review of
Johnson's claim is procedurally barred is not debatable among
reasonable jurists. Johnson has not demonstrated either cause or
prejudice, or that imposition of the bar would constitute a
miscarriage of justice. He thus has failed to show that jurists of
reason would find the district court's procedural bar debatable.
In any event, our precedent squarely precludes
Johnson from making a substantial showing regarding the denial of
due process or equal protection rights with regard to this claim.
See, e.g., Coleman v. Quarterman, 456 F.3d 537, 544-45 (5th
Cir.2006) (rejecting claim that the equal protection clause is
violated by the discretionary ability of Texas trial judges to
instruct a jury regarding a defendant's parole eligibility); Miller
v. Johnson, 200 F.3d 274, 290 (5th Cir.2000) (rejecting claim that
due process required parole instruction regarding petitioner's
parole eligibility). The district court's disposition of this claim
is not debatable, and thus, we deny a COA.
IV. UNCONSTITUTIONAL SENTENCING SCHEME
In his final claim, Johnson argues that the Texas
sentencing scheme is “unconstitutional because there is no
requirement that the State prove beyond a reasonable doubt that the
answers to the special issues presented to the jury must be answered
‘yes.’ ” In support of this argument, Johnson principally relies on
United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d
621 (2005), Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159
L.Ed.2d 403 (2004), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct.
2428, 153 L.Ed.2d 556 (2002). The district court denied relief,
stating, inter alia, that it could not grant relief without creating
a new rule in violation of Teague v. Lane, 489 U.S. 288, 109 S.Ct.
1060, 103 L.Ed.2d 334 (1989).
With respect to Johnson's reliance on Booker and
Blakely, “[t]his argument is foreclosed before this court by United
States v. Gentry, 432 F.3d 600, 605 (5th Cir.2005), and In re Elwood,
408 F.3d 211, 212-13 (5th Cir.2005) (per curiam), both of which hold
that the Blakely/Booker line of *373 cases does not apply
retroactively to cases on collateral review.” United States v.
Edwards, 442 F.3d 258, 268 (5th Cir.2006).FN1 With respect to his
reliance on Ring, the Supreme Court has explicitly held that “ Ring
announced a new procedural rule that does not apply retroactively to
cases already final on direct review.” Schriro v. Summerlin, 542 U.S.
348, 358, 124 S.Ct. 2519, 2526, 159 L.Ed.2d 442 (2004).FN2 Moreover,
this Court recently rejected the claim that the State is
constitutionally required to prove beyond a reasonable doubt the
absence of mitigating circumstances. Granados v. Quarterman, 455
F.3d 529, 536-37 (5th Cir.), petition for cert. filed (Sept. 28,
2006)(NO. 06-6932). The district court's disposition of this claim
is not debatable and thus, we deny a COA.
FN1. Although Edwards involved a section 2255
motion, its holding is applicable to the instant section 2254
proceeding. See United States v. Orozco-Ramirez, 211 F.3d 862, 864
n. 4 (5th Cir.2000). “ ‘Because of the similarity of the actions
under sections 2254 and 2255, they have traditionally been read in
pari materia where the context does not indicate that would be
improper.’ ” Id. (quoting United States v. Flores, 135 F.3d 1000,
1002 n. 7 (5th Cir.1998)).
FN2. Johnson also cites Victor v. Nebraska, 511
U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994), in which the Supreme
Court held that an instruction defining “reasonable doubt” did not
violate the due process clause. We agree with the district court's
conclusion that Victor is inapposite because Johnson is not
challenging any definition of “reasonable doubt” contained in the
For the above reasons, the request for a COA is
Lonnie Earl Johnson