Executed July 31, 2008 06:19 p.m. CDT by Lethal Injection in Texas
16th murderer executed in U.S. in 2008
1115th murderer executed in U.S. since 1976
4th murderer executed in Texas in 2008
409th murderer executed in Texas since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
Larry Donnell Davis
B / M / 27 - 40
W / M / 26
Davis v. Quarterman, 237 Fed.Appx. 903 (5th Cir. 2007) (Habeas).
A hamburger with cheese and jalapenos and a vanilla shake.
"Blessed are they that mourn, for they shall be comforted. It is finished."
Texas Department of Criminal Justice - Executed Offenders (Larry Davis)Inmate: Larry Donnell Davis
Prior Prison Record: 02/03/92 2-year sentence for 1 count each of Possession of a Prohibited Weapon and Theft Over $750; 07/06/92 released on Parole; 08/11/93 returned from Parole; 05/11/94 released on Mandatory Supervision; 07/01/94 returned from Parole with a new conviction, remainder of sentence is concurrent. TDCJ-ID #670805, 4-year sentence for 1 count of Theft; 05/03/95 released on Mandatory supervision.
Summary of incident On 08/28/95, in Amarillo, Texas, the subject and co-defendants, Raydon Drew, Donald Drew, Jr. and Christie Castillo caused the death of an adult white male. The offense took place at the victim's residence in Amarillo, Texas. According to Amarillo Law Enforcement, the offense was a committed to earn co-defendant Raydon Drew a tear drop from the Crips. The Drew brothers were familiar with the victim. They entered the home under the pretense of visiting. Lookouts were parked in vehicles at each end of the street. The victim was stabbed numerous times with knives and an ice pick. The victim was also beaten with a pipe. The subject and codefendants removed a VCR, a camcorder, a stereo system, a cordless phone, a television, and jewelry from the residence. Shoes later found in Davis’ home had Barrow’s blood on them. Prints from the shoes were consistent with shoe impressions found at the scene. Davis attempted to pawn several of the items days after the murder. Ray-Ray also gave a statement to the police confirming that he and Davis had killed Barrow.
Texas Attorney General
Monday, July 28, 2008
Media Advisory: Larry Davis Scheduled For Execution
AUSTIN – Texas Attorney General Greg Abbott offers the following information about Larry Donnell Davis, who is scheduled to be executed after 6 p.m.Thursday, July 31, 2008. Larry Donnell Davis was convicted of capital murder and sentenced to death for the August 1995 murder and robbery of Michael Barrow in Amarillo. A summary of the evidence presented at trial follows.
FACTS OF THE CRIME
Larry Donnell Davis gave a fourteen-page confession, which was admitted at his trial and which contained the following details:
Davis said he was approached by his friends, brothers Ray (“Ray-Ray”) and Donald Drew (“Drew”), who had a plan to rob Michael Barrow, an acquaintance of the men. Drew asked Davis if they could use his car. In exchange for his help, Davis was promised the wheels from Barrow’s car and a stereo system; Davis agreed. Ray-Ray, Drew, Davis and two “youngsters” rode in two separate cars to Barrow’s house. Ray-Ray, Drew, and Davis knocked on the door and entered Barrow’s house under the guise that they were there to visit.
While Barrow was sitting on a couch, Davis distracted him; Drew then hit Barrow in the back of the head with a dumbbell. Barrow fell to one knee on the floor; Davis helped him back to the couch and tied his hands behind his back with Drew’s bandana. Ray-Ray stood over Barrow trying to get the nerve to kill him. While Davis searched through Barrow’s closet for things to steal, he told Ray-Ray to “take care of his business.” Ray-Ray then stabbed and punched Barrow. Barrow began to struggle and the knife broke. Then Davis handed Ray-Ray a “little ice pick” and Ray-Ray continued to stab Barrow.
Davis and Ray-Ray next began looking around the house and Barrow’s car for speakers but did not find them. They were gathering a TV and VCR when they heard Barrow cough. Davis and Ray-Ray went back to Barrow and discovered that he had undone his feet which had also been tied. At this point Barrow tried to put up a fight. Davis hit him in the mouth and held him down while Ray-Ray hit him with a pipe. When Barrow continued to crawl around, Davis retrieved a butcher knife out of one of the kitchen drawers and gave it to Ray-Ray who began to stab Barrow with it. They were still not sure that Barrow was dead so Ray-Ray started kicking him in the ribs. Davis told Ray-Ray to “do what I say.” He instructed Ray-Ray to position himself on Barrow’s neck; Ray-Ray complied.
Davis admitted that both he and Ray-Ray got blood on their shoes during the murder. They then left with Barrow’s property. In the remainder of his confession, Davis gave details about the days immediately following Barrow’s murder, including his attempts to pawn some of the property and conceal other property.
The State introduced evidence indicating that shoes found in Davis’ home had Barrow’s blood on them. Prints from the shoes Davis wore were consistent with shoe impressions found at the scene of the crime, on the victim’s clothing, and on the victim’s body. These prints were impressed on the skin of the deceased and over his heart.
Cynthia Green testified that she was living with Davis at the time of the offense. On the night of the murder, Davis came home late at night nervous and upset, with blood on his face and leg. The next day Davis brought a TV, VCR, some jewelry, and a tape rewinder into their house, and told Green that he had been with Ray-Ray.
Ray-Ray gave a statement to the police confirming that he and Davis had killed Barrow.
At the punishment phase of trial, the State presented evidence of Davis’ abusive treatment of women. Specifically, Davis’ former wife, Mary Cornelius, testified that Davis was mentally and physically abusive during their marriage. Davis monitored her every move, and would not allow her to use the phone or leave the house. On occasion Davis held her at knifepoint; other times he required her to stand before him for great lengths of time, sometimes naked, not allowing her to sit down or to leave the house. Davis also kicked her and beat her. This abuse occurred even while she was pregnant; Cornelius miscarried after one such beating, during which she was kicked in the stomach. Cornelius testified that Davis would rub her with alcohol because he thought it would keep her from bruising when he hit her. On one occasion, Cornelius stole a car for Davis by telling the car dealership she wanted to take it for a test-drive. Davis, who said he needed the car to get out town quickly, took the car and left with the couple’s daughter. Cornelius was to join Davis, but went into labor a few hours later and went into the hospital, where she was questioned about the stolen car. Cornelius, who was still in the hospital, agreed to take responsibility for the stolen car so that Davis would not get into trouble. However, she eventually attributed the theft to Davis after he suggested that she abandon the newborn baby in the hospital – stating that they “could have another baby”– and get out of town. Davis was later convicted and went to prison. Cornelius finally left him when Davis became abusive toward their children.
Davis’ former girlfriend and mother of one of his children, Sherry Morrison, also testified regarding Davis’ abusive treatment of her. Morrison met and moved in with Davis when she was fifteen. Davis became physically and verbally abusive towards her. Davis would lock her in the house and mark the door so that he would know if she had tried to leave. After she became pregnant, Davis kicked her in the stomach, telling her he did not want her to keep the baby. When Morrison left him shortly thereafter, Davis refused to return her belongings.
While in jail awaiting trial, Davis had an altercation with members of the Potter County Sheriff’s Department. Deputy Johnny Cox testified that on May 23, 1997, the officer received word that another inmate was in danger and that he would have to be moved to another cell; the officers attempted to switch Davis and this inmate, but Davis refused to be moved. When the officers attempted to put handcuffs on Davis and forcibly move him, he resisted and struck a female deputy, knocking her to the ground, then struck another officer in the chest. Davis was holding an uncapped Bic pen (considered a weapon in this context) in his fist in a “stabbing” manner. Deputy Cox struggled with Davis until another officer knocked them both to the ground, at which time Davis was placed in handcuffs and leg irons. Officer Cox was struck in the face and received several bumps and bruises on his knees and elbows. Deputy Gregory Gill received scratches and cuts to his arms during this altercation, and Davis unsuccessfully tried to strike Gill in the face and chest and kick him between the legs. A search of Davis’ cell revealed several ink pens hidden with his socks; inmates are only allowed to have two pens in their cells.
Davis was convicted on March 19, 1999, and sentenced to death on March 27, 1999. His conviction and sentence were affirmed by the Texas Court of Criminal Appeals. The Supreme Court denied certiorari review on April 28, 2003. The Texas Court of Criminal Appeals denied state habeas relief on December 18, 2002. The district court denied federal habeas relief on July 31, 2006. The district court granted Davis’ application for COA on August 31, 2006, however the Fifth Circuit Court of Appeals denied relief on June 19, 2007. Davis did not seek certiorari review of this decision.
PRIOR CRIMINAL HISTORY
• Davis plead guilty to unauthorized carrying of a weapon, namely a club and an 8 1/4 inch hunting knife, on April 10, 1986, for which he was fined and sentenced to three days in jail.
• Davis plead guilty and was sentenced to three years in TDCJ for the offense of possession of a prohibited weapon, but was given a probated sentence on June 26, 1989. Davis’ probation was revoked in February, 1990, for violating the terms, and Davis was re-sentenced to two years in TDCJ.
• Davis plead guilty to theft by check on February 6, 1991, and received a probated sentence of five years. Davis’ probation was again revoked on March 11, 1992, for not following the terms, and he was sentenced to two years in TDCJ.
• Davis again plead guilty to theft committed on June 26, 1993, for which he was sentenced to four years in state prison.
• Davis was identified as the assailant in the armed robbery of a children’s clothing consignment shop. Davis was identified by the victim, by his fingerprints, and when items from the robbery were discovered at his home. Davis has not been convicted of this crime.
• Davis has been charged with a second capital murder for another murder in the course of a robbery, but has not been convicted.
Texas Execution Information Center by David Carson.
Larry Donnell Davis, 40, was executed by lethal injection on 31 July 2008 in Huntsville, Texas for the murder and robbery of a man in his home.
On 28 August 1995, Davis, then 27, and brothers Donald Drew Jr., 28, and Raydon "Ray-Ray" Drew, 20, went to the Amarillo home of Michael Barrow. Barrow, who was acquainted with the Drew brothers, allowed the group inside. While Barrow was sitting on a couch, Davis distracted him. Donald then hit Barrow in the back of the head with a dumbbell. Barrow fell to the floor. Davis placed him back on the couch, tied his hands behind his back with Donald's bandanna, and tied his feet. Ray-Ray stood over the victim while Davis searched Barrow's closet for items to steal. Davis then told Ray-Ray to "take care of his business," meaning he should kill him. Ray-Ray then stabbed and punched Barrow.
When Ray-Ray's knife broke, Davis handed him an ice pick, and Ray-Ray continued stabbing him. The group then continued looking for more items to steal. They were gathering a TV and VCR when they heard Barrow cough. Davis and Ray-Ray discovered that he had untied his feet. Barrow tried to fight back as Davis and Ray-Ray hit him on the mouth and beat him with a pipe. Davis then took a butcher knife from a kitchen drawer and gave it to Ray-Ray, who began stabbing him with it. When it appeared that the victim might be dead, Ray-Ray kicked him in the ribs. Finally, Davis directed Ray-Ray to step on Barrow's throat so he would die of asphyxiation.
After Davis was arrested, he gave a fourteen-page confession describing the crime. He stated that the Drew brothers approached him with their plan to rob and kill Barrow so that Ray-Ray could get a teardrop tattoo, a gang symbol. In exchange for his help and for the use of his car, the Drews promised him the wheels from Barrow's car and a stereo system. Davis' confession also gave details about the days following Barrow's murder, including his attempts to pawn and hide the stolen property. Raydon Drew also gave a statement confirming that he and Davis killed Barrow.
At Davis' trial, the state introduced evidence showing that shoes found in Davis' home had the victim's blood on them, and that prints from these shoes were found at the scene and on the victim's body.
Davis had prior convictions for theft and weapons possession. He was in an out of prison three times between 1992 and 1994, each time receiving parole and then being returned for violating it. He was on parole at the time of the murder. In addition, his ex-wife, Mary Cornelius, testified that he mentally and physically abused her during their marriage. She testified that he kicked and beat her in the stomach - including once when she was pregnant, which resulted in a miscarriage - and that he sometimes held her at knife point or forced her to stand still before him, naked. Sherry Morrison, an ex-girlfriend and mother of one of his children, also testified that he physically and mentally abused her, including an incident when he kicked her in the stomach while she was pregnant.
Prosecutors also presented evidence implicating Davis for a 1993 murder in Dallas where the victim was beaten with the top of a toilet tank. While in jail awaiting trial, Davis had an altercation with members of the Potter County Sheriff's Department. When officers were attempting to move him, he resisted, striking at least two officers and attempting to stab them with a pen.
A jury convicted Davis of capital murder in March 1999 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in October 2002. All of his subsequent appeals in state and federal court were denied.
Raydon Doen Drew pleaded guilty to murder and was sentenced to 50 years in prison. He remains in prison as of this writing.
Donald Drew Jr. pleaded guilty to conspiracy to commit murder and received a 5-year sentence. Since completing that sentence, he has received two convictions for assault causing bodily injury to a family member. For the first conviction in 2001, he was sentenced to 250 days in jail. For the second conviction in 2004, he was sentenced to 5 years in prison. He also remains in prison as of this writing.
Two juveniles who served as lookouts were also charged and pleaded guilty. "Blessed are they that mourn, for they shall be comforted," Davis said, quoting from Jesus' Sermon on the Mount in the New Testament book of Matthew. He did not acknowledge his victims' parents, who watched from an observation room. Davis concluded his last statement with another verse from the New Testament, "It is finished." The lethal injection was then started. He was pronounced dead at 6:19 pm.
"Killer in Amarillo robbery executed," by Michael Graczyk. (AP Aug. 1, 2008, 12:01AM)
HUNTSVILLE, Texas — With the parents of his slaying victim standing a few feet away, convicted killer Larry Donnell Davis recited a brief biblical verse and then quietly went to his death. "Blessed are they that mourn, for they shall be comforted," Davis, 40, said, using a verse from the famous Sermon on the Mount as his final statement from the Texas death chamber gurney Thursday evening. "It is finished," he added. Eight minutes later, he was pronounced dead.
He never looked at or acknowledged the presence of the parents of Michael Barrow, 26, who was attacked, beaten and fatally stabbed at his own home in Amarillo 13 years ago. Barrow's parents found their son's body. "When you lose a family member the way we lost one, it's the first thing on your mind in the morning and the last thing at night. It doesn't ever escape your mind," Robert Mares, the victim's father, said after watching Davis die. Davis never looked at Mares or his wife. Mares said he wasn't surprised and never expected an apology, adding that he thought the lethal injection "by all means" was too easy for Davis.
Davis' appeals were exhausted and no late appeals were filed to try to halt the lethal injection, the fourth in Texas this year and the second in as many weeks. Two more scheduled for next week are among six executons set for August in the nation's busiest capital punishment state.
Executions were on hold in Texas and around the country for more than seven months until the U.S. Supreme Court in April rejected an appeal from two Kentucky prisoners who argued lethal injection was unconstitutionally cruel. Texas then resumed lethal injections in June.
By the time he was charged with capital murder, Davis had multiple convictions for theft and weapons convictions and had violated terms of his paroles several times. "He had an extensive criminal history stretching over his entire adult life," said Warren Clark, one of his trial lawyers. "It makes him look dangerous and perhaps he is. I just think in a prison setting he does quite well." "This is a bad dude," Pat Murphy, a Potter County assistant district attorney who prosecuted Davis, said. "How bad? If you really want to know, the confession is the thing."
In a detailed 14-page confession to police, Davis said he tied Barrow's hands, held him down while an accomplice stabbed him and handed his accomplice the weapons, including an ice pick, a knife and a lead pipe. "He talks about how he got the knife, told him how to do it, stuck his foot across the guy's throat to show how to asphyxiate him," Murphy said. "It's pretty chilling."
Four others were arrested for the August 1995 slaying, one of them a juvenile. They took plea deals. Davis said he refused a deal because he didn't kill Barrow. A jury in Amarillo disagreed and decided he should die.
Davis also was accused but never tried for another murder in Dallas in 1993, where authorities said the victim was fatally beaten with the top of a toilet tank. Prosecutors cited that slaying during the punishment phase of his trial to illustrate his future dangerousness, one of the elements a jury considers when deliberating a death sentence.
Davis told police Barrow's death was a plot by two friends, brothers Raydon and Donald Drew, who needed money so at least one of them could get a teardrop tattoo, a gang symbol that can represent involvement in a killing or loss of a loved one in a slaying. Two others serving as lookouts also were involved. In his confession, Davis said he supplied the knife and an ice pick used by Raydon Drew to kill Barrow. Police recovered items stolen from the home, mostly electronics and some jewelry, at pawn shops.
Two executions are set for next week, beginning with Jose Medellin, set to die Tuesday for his participation in the gang rape and beating deaths of two Houston girls.
Medellin's case has attracted international attention after the International Court of Justice, informally known as the World Court, said the Mexican-born Medellin and some 50 other Mexicans on death rows around the nation should have new hearings in U.S. courts to determine whether a 1963 treaty was violated with their arrests. The Vienna Convention provides that people arrested can have access to their home country's consular officials. President Bush has asked states to review the cases. Texas has refused.
On Thursday, the Texas Court of Criminal Appeals, the state's highest criminal court, rejected an appeal from Medellin, whose attorneys argued his execution should be stopped because of the Vienna Convention provision.
"Davis executed for murder, robbery," by Kristin Edwards. (July 31, 2008 11:28 pm)
Larry Donnell Davis was executed at the Texas Department of Criminal Justice Walls Unit Thursday for murder and robbery, marking the fourth execution held in Texas this year. Davis, who was originally convicted of capital murder in 1999, was pronounced dead at 6:19 p.m. after he made a very brief last statement.
“Larry Davis was executed Thursday for the Aug. 28, 1995 murder and robbery of Michael Barrow in Amarillo,” said Michelle Lyons, TDCJ public information officer. “In his last statement, Davis recited a Bible verse — ‘Blessed are they who mourn, for they shall be comforted’ — but did not speak to the victim’s family.
“Both the victim’s mother and father were present for the execution, but Davis had no personal witnesses present.” Following the execution, Barrow’s father Robert Mares said he had not expected Davis to make a formal apology. “I never expected that,” he said. “In my opinion, he had 12, almost 13, years to make an apology. He could have very easily contacted someone from the system to make some kind of an apology, but no.”
Mares said he wished to thank several law enforcement agencies from the Amarillo area including the district attorney’s office, the Amarillo Police Department and several forensic investigators who worked on the case. “I would also like to thank the state of Texas, because I’m very happy and thankful we do have the death penalty,” he said. “It’s something we definitely need in our society. “When you lose a family member like we lost, it never escapes your mind. It’s the first thing on your mind in the morning and the last thing on your mind at night.”
According to information released by the Texas Attorney General’s Office, Davis gave a 14-page confession which was admitted at his trial and contained many details about his alleged 1995 crimes. Davis said he was approached by his friends, brothers Ray Drew and Donald Drew, who had a plan to rob Barrow. In exchange for the use of his car, Davis said he was promised the wheels and stereo system from Barrow’s car.
Davis and the Drew brothers entered Barrow’s house under the pretense that they were there to visit, then Donald Drew hit Barrow with a dumbbell as Davis distracted him. When Barrow fell to one knee on the floor, Davis helped him back to the couch and tied his hand behind his back with Drew’s bandana. After Davis told him to “take care of business,” Ray Drew stabbed and punched Barrow until his knife broke, at which point Davis handed him a “little ice pick” and Drew continued.
Following their initial attack, Ray Drew and Davis began to look around the house, gathering a television, a VCR and other items. When they heard Barrow cough, Davis hit Barrow in the mouth and Ray Drew hit him with a pipe. Finally, Davis retrieved a butcher knife which he gave to Ray Drew to stab Barrow with. Davis said both he and Ray Drew got blood on their shoes during the murder, and prints from the shoes Davis wore were consistent with shoe impressions found at the scene of the crime, on the victim’s clothing and on the victim’s body.
While Davis was in jail awaiting trial, he also had an altercation with members of the Potter County Sheriff’s Department. While resisting to change cells, Davis struck a female deputy, knocking her to the ground, and struck another officer in the chest.
Between 1986 and 1993, Davis pled guilty to unauthorized carrying of a weapon, multiple counts of theft and possession of a prohibited weapon. During that period, he was sentenced to more than one term in the Texas Department of Criminal Justice.
Following Davis’ execution, a total of six executions are scheduled for the month of August.
"Texas executes man for gang-related slaying." (Fri Aug 1, 2008 9:17am EDT)
DALLAS (Reuters) - Texas executed a convicted killer by lethal injection on Thursday for the gang-related 1995 murder of a man during a robbery in his home. Larry Davis, 40, was condemned to die for the murder of Michael Barrow in the Texas panhandle town of Amarillo. Barrow's parents found his body in his home after he had been beaten and stabbed to death.
Four accomplices received lesser sentences for the slaying and prosecutors maintained Davis was the leader of the pack who directed the attack so his friends could earn a coveted gang tattoo.
According to the Death Penalty Information Center, Davis was the fourth person executed in Texas and the 16th nationwide since the U.S. Supreme Court lifted a temporary moratorium on capital punishment in April when it rejected a challenge to the three-drug cocktail used in most lethal injections.
Davis was executed at the death chamber in Huntsville, Texas. In his last statement, he said: "Blessed are they that mourn, for they shall be comforted. It is finished." His last meal request was a hamburger with cheese and jalapenos and a vanilla shake.
Texas is America's most active death penalty state. Davis was the 409th inmate executed in Texas since 1982, when the state resumed executions six years after the U.S. Supreme Court reinstated capital punishment. Texas has 15 more executions scheduled for this year and one early in 2009.
On August 28, 1995, an Amarillo police officer was dispatched to a house in reference to a report that a body had been found in a house. The victim, Michael Barrow, had been beaten and slashed about the throat. The crime scene investigation revealed shoe impressions left on the floors of the residence. It was theorized that there had been more than one assailant. In addition, it was determined that numerous items, such as jewelry, a television and other electronics had been taken from the residence.
Interviews with the victim’s known friends revealed evidence which led to the arrest of two persons, Kristy Castillo and Donald Drew. These individuals were later indicted for the murder of Barrow, along with Davis. Further investigation into the case led to the arrest of Ray Drew, brother of Donald Drew. Ray Drew provided a written statement whereby he implicated himself and Davis in the murder and robbery of Barrow. Based upon the confession of Drew, Davis was arrested. Following his arrest, Davis provided a lengthy, detailed written confession to law enforcement. His statement implicated himself and the Drew brothers. Davis described the manner of the robbery which he and the Drew brothers carried out as well the beating and stabbing that Ray Drew inflicted on Barrow.
Davis also described the taking of various items from the house and where these items were taken for storage. He also described efforts at selling the stolen items and the money realized from fencing the loot. Davis’s confession ran fourteen single-spaced pages. It did not contain a single reference to Kristy Castillo nor did it implicate Donald Drew as having participated in the actual murder of Barrow.
Cynthia Green, Davis’s paramour during the relevant time span, described Davis’s appearance and state of mind on the night of Barrow’s murder. According to Green, Davis came home that night nervous. He had blood stains on his clothes. He also had a bruise on his forehead and scratches on his face. Later that day, Davis brought to Green’s residence items taken from the Barrow residence. Davis and Green pawned most of these items at a local pawn shop.
Green later provided consent to the Amarillo Police Department to search her residence. The search of the Green residence turned up bloody clothing linked to the slaying. Green also testified at trial about a visitation she had with Davis at the Potter County Correctional Facility where Davis was incarcerated while awaiting trial. At that meeting, Davis, according to Green, allegedly made an admission to her that he had pinned the victim down while others committed the murder. Green was also permitted to testify that Davis was a known gang member. Davis’s written statement had confirmed that the murder of Barrow was gang-related.
One of Davis’s co-defendants, Kristy Castillo, provided law enforcement with a written confession. This statement was read to the jury. It directly implicated Castillo, Donald Drew and two other individuals in the burglary of the Barrow residence, the resulting robbery of the victim and his murder. Castillo recounted in the statement that she held the knife with Drew as the victim’s throat was cut. Castillo also described the beating that the other actors inflicted on Barrow prior to the stabbing murder. Castillo also described the theft of many items from the Barrow residence. At no time in any portion of the written statement did Castillo ever mention Davis by name or implicate him in the burglary, robbery, theft of items or murder. Castillo did not testify live before the jury.
A pathologist established that the victim had sustained multiple blunt force injuries to the skull. There was other blunt force trauma to the chest, sufficient to cause rupture of the heart. There were knife wounds to the body as a whole, particularly two sharp wounds to the neck. The hands displayed defensive wounds. Cause of death was multiple blunt force and sharp force injuries with massive internal injuries.
A criminalist identified footprints left at the scene of the crime, more specifically on the floor and on the body of the victim, which were consistent with the prints lifted from tennis shoes identified by Cynthia Green as belonging to Davis. The guilt-innocence phase of the trial lasted six days. The essence of the defensive theory was that Davis had been recruited by Castillo and the Drew brothers to assist in the robbery of the victim and the fencing of the loot taken from the residence but that the original conspiracy to break into the victim’s home and kill him in order to carry out the burglary originated with Castillo and the Drew brothers only and that Davis could not be considered an accomplice to those acts.
The defense final argument highlighted the irreconcilable inconsistencies between Davis’s confession and the physical evidence recovered from the crime scene. Defense final argument called for the jury to find Davis guilty of the lesser included offense of murder.
Davis had an extensive criminal record prior to this murder. In February of 1992, Davis received a 2-year sentence for 1 count each of Possession of a Prohibited Weapon and Theft Over $750. In July of 1992, Davis was released on Parole. He was returned from Parole in August of 1993 and on 05/11/94 was released on Mandatory Supervision. Less than three months later, on July 1, 1994 Davis was returned from Parole with a new conviction, a 4-year sentence for 1 count of Theft. On May 3, 1995, Davis was again released on Mandatory supervision. Less than four months later, Larry Davis and his co-defendants, Raydon Drew, Donald Drew, Jr. and Christie Castillo committed the capital murder of Michael Barrow.
UPDATE: Larry Donnell Davis was executed for the robbery and the stabbing and beating death of a man in Amarillo 13 years ago. In his final statement, Davis said, "Blessed are they that mourn, for they shall be comforted. It is finished." Michael Barrow's parents witnessed the execution but Davis did not speak to or acknowledge them.
Art by Larry Donell Davis # 999316, Polunsky Unit DR, 3872 FM 350 South, Livingston, Texas 77351 USA
Davis v. Quarterman, 237 Fed.Appx. 903 (5th Cir. 2007) (Habeas).
Background: After conviction and death sentence for capital murder was affirmed on direct appeal, petitioner filed petition for writ of habeas corpus. The United States District Court for the Northern District of Texas, 2006 WL 2161613, denied petition, and granted certification to appeal. Petitioner appealed.
Holding: The Court of Appeals, E. Grady Jolly, Circuit Judge, held that petitioner was not entitled to federal habeas corpus relief on violation of right to remain silent. Affirmed.
Larry Donnell Davis was convicted of capital murder and sentenced to death in March 1999 for the August 1995 murder of Michael Barrow during the course of a robbery. The district court denied federal habeas relief, but granted a certificate of appealability (“COA”) authorizing Davis to appeal his claim that the prosecutor violated his Fifth and Fourteenth Amendment rights by commenting, during closing argument at the guilt-innocence phase of trial, on Davis's failure to testify. We AFFIRM the district court's denial of habeas relief.
On August 28, 1995, Michael Barrow's parents found him dead inside his house in Amarillo, Texas. He had suffered blunt force trauma to his face and head, as well as puncture and laceration wounds on his head, neck, and chest. Bloody footprints were found on his upper torso. An autopsy revealed that while Barrow was still alive, his sternum had been broken and his heart wall had been ruptured. According to the medical examiner, it was likely that the rupture was caused by a stomp or kick to Barrow's chest.
The State introduced into evidence Davis's confession, in which he admitted his involvement in a gang plot to murder Barrow and steal his property. In his confession, Davis stated that he was approached by Raydon (“Ray-Ray”) Drew, and his brother, Donald Drew. The Drew brothers needed money, and Ray-Ray wanted to earn a “teardrop” tattoo as a member of the Crips street gang. They planned to kill Barrow, who was an acquaintance of theirs, and they offered Davis Barrow's stereo and chrome wheels from Barrow's car in exchange for his help.
Davis confessed that on the night of the murder he, Ray-Ray, and Donald Drew went to Barrow's house, along with two “look-outs”. Davis, Ray-Ray, and Donald Drew went inside Barrow's house and visited with him, then Ray-Ray hit Barrow on the head with a weight. They tied his feet and moved him toward the bathroom. Donald Drew left. Ray-Ray asked Davis for his knife, and Davis gave it to him. Ray-Ray then repeatedly stabbed Barrow with the knife. When the knife handle broke, Ray-Ray continued stabbing Barrow with the blade. Davis handed Ray-Ray an ice pick, and Ray-Ray then attacked Barrow with the ice pick. While Davis and Ray-Ray were gathering Barrow's property to steal, they heard Barrow cough. They discovered that he had untied his feet. Davis hit Barrow in the mouth and held him down while Ray-Ray hit Barrow with a pipe. Davis then got a butcher knife from Barrow's kitchen and gave it to Ray-Ray, who began to stab Barrow with it. Despite all of these efforts, they still were not sure Barrow was dead, so Davis instructed Ray-Ray to stand on Barrow's neck. Davis said that both he and Ray-Ray got blood on their shoes.
In his confession, Davis said that Ray-Ray acted alone in inflicting Barrow's fatal injuries. He admitted, however, that he tied Barrow's hands with a bandanna, supplied Ray-Ray with each of the weapons he used to attack Barrow, and held Barrow down while Ray-Ray attacked him. He further admitted that he encouraged Ray-Ray and gave him instructions on how to accomplish the killing. He also admitted that he took some of Barrow's property and pawned it.
Acting on information provided by Davis, the police found the bloody shoes and clothing Davis had worn on the night of the murder in the attic of his girlfriend, Cynthia Green. Green testified that on the night of the murder, she observed scratches on Davis's face, arms, and legs, and a bruise on his forehead. She testified further that she pawned jewelry, a television, a VCR, and a tape rewinder that Davis gave to her. She testified that he told her those items belonged to Ray-Ray. The items were identified as having been stolen from Barrow's home. Barrow's bank card was found in Davis's wallet, along with a pawn ticket that had belonged to Barrow.
Davis's former wife, Katherine Davis, testified that Davis confessed his involvement in the murder to her when she visited him in jail shortly after his arrest. The State introduced photographs of a shoe print on Barrow's chest, in the spot where Barrow's sternum was broken. It also presented testimony that the shoe print on Barrow's chest matched the pattern on the bottom of the shoes worn by Davis on the night of the murder.
The defense strategy was to attempt to convince the jury that Davis was guilty of aggravated robbery or murder, but not capital murder, because he was only a passive participant. The prosecution, however, argued that the jury could convict Davis of capital murder, either by finding him to be a party to a felony murder, or by finding that Davis personally delivered the blow to Barrow's chest that ruptured his heart.
The jury found Davis guilty of capital murder. His conviction and sentence were affirmed on direct appeal. Davis v. State, No. 73,458, 2002 WL 34082308 (Tex.Crim.App. October 23, 2002) (unpublished), cert. denied, 538 U.S. 1004, 123 S.Ct. 1910, 155 L.Ed.2d 834 (2003). The Texas Court of *906 Criminal Appeals adopted the state court's findings of fact and conclusions of law and denied state habeas relief in December 2002. Ex parte Davis, No. 54,457-01 (Tex.Crim.App. December 18, 2002).
Davis filed an application for federal habeas relief in July 2003. The district court denied relief, Davis v. Quarterman, No. 2:03-CV-001, 2006 WL 2161613 (N.D.Tex. July 31, 2006). It granted a COA authorizing Davis to appeal its holding that the state court did not unreasonably apply federal law in holding that the prosecutor's improper, unconstitutional comment on Davis's silence was harmless error.
Davis is not entitled to habeas relief unless the state court's adjudication of his prosecutorial misconduct claim “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding.” 28 U.S.C. § 2254(d).
Davis's claim is based on the following argument made by the prosecutor during rebuttal closing argument in the guilt-innocence phase of trial:
And what you will determine is Larry Donell Davis' shoes stepped on that boy three times. Maybe more. There was even one of his prints on the pants. Let me tell you, when this man with the teardrop on his eye, who sits here silently-
MR. CLARK: Your Honor-
MR. MURPHY:-and sits there and watches while-
MR. CLARK: That is a direct comment on his failure to testify, and we object.
THE COURT: I will sustain the objection.
MR. CLARK: Please instruct the jury to disregard that last comment.
THE COURT: Ladies and gentlemen, please disregard the last statement.
MR. CLARK: Move for a mistrial.
THE COURT: and the Motion to-
MR. CLARK: For mistrial is denied?
THE COURT: Is denied.
MR. MURPHY:-watches while his attorneys get up here, and say: What's going on here? Has the state caused you to tell you this lie? No. The physical evidence brings you here. And let me tell you what he did. He instructed him. He provided him with three weapons, according to his own mind, and they talked about earning a teardrop just like he wears on his eye, before they ever got there. He provides him three weapons, as a party to this crime, and then he stoops down and he bursts the heart of this boy. That's what the physical evidence shows you. You want to get theatric? I'm going to win the Oscar for the Best Actor or Best Attorney in a Prosecuting Role. Because I am right.
Davis filed a motion for new trial claiming, inter alia, that the prosecutor's comment on his failure to testify violated his Fifth and Fourteenth Amendment rights. The trial court conducted an evidentiary hearing, at which three witnesses testified for the defense. According to these witnesses, the prosecutor pointed his finger directly at Davis while making the challenged comments, his face was very red, he was speaking in a loud voice, and he was trembling and shaking when he finished his argument. The only witness for the state was the jury foreman, who testified that the jury was instructed not to consider Davis's failure to testify as evidence against him; that the court instructed the jury to disregard what the prosecutor said; and that, to his knowledge, the jury followed the trial court's instructions. The trial court denied the motion for new trial.
Davis raised the claim again on direct appeal. The Texas Court of Criminal Appeals held that the prosecutor made a direct comment on Davis's failure to testify and emphasized the comment when he raised his voice, walked toward Davis, and pointed directly at Davis. The court assumed, arguendo, that the trial court's instruction to disregard the improper comment did not cure the error. However, the court concluded that the comment amounted to harmless error because none of the criteria set forth in Anderson v. Nelson, 390 U.S. 523, 524, 88 S.Ct. 1133, 20 L.Ed.2d 81 (1968) were met: The comment on Davis's failure to testify “entailed a single comment, the emphasis of the State's argument was the evidence, and there was no evidence that supported acquittal.” Davis v. State, No. 73,458, at 5.
Davis presented this claim again in his state habeas application. The state habeas trial court concluded that the claim was not cognizable in the state habeas proceeding because it had been raised and rejected by the Court of Criminal Appeals on direct appeal. The Texas Court of Criminal Appeals held that the state habeas trial court's findings and conclusions were supported by the record, and denied state habeas relief.
Davis raised the claim again in his federal habeas application. The district court accepted the conclusion of the Texas Court of Criminal Appeals that the prosecutor's comment violated Davis's Fifth and Fourteenth Amendment rights, but held that the Texas court's decision that the prosecutor's error did not substantially and injuriously affect the verdict of guilt was not an unreasonable application of federal law. The district court reasoned:
Given the brevity of the comment, the lack of evidence to support an acquittal and the overwhelming evidence of guilt in this case, it is not likely that the prejudicial effect of the prosecution's comment was significant. It was merely a single comment by the prosecution, and the trial court promptly ordered the jury to disregard the comment. The emphasis of the State's case, as well as the emphasis of the comment itself, was on the strength of the evidence. The prosecution did not rely on an inference of guilt from Davis's silence. To the contrary, the great thrust of the prosecution's case was the strength of the evidence, including evidence given by Davis himself in his confession. There is virtually no evidence that would have supported acquittal. Davis v. Quarterman, No. 2:03-CV-001, at 15-16.
The district court held that Davis had failed to exhaust the issue of the effect of the improper comment on the punishment phase of his trial and, therefore, any claim regarding the punishment phase was procedurally defaulted. FN1 The district court stated further that, even if it were to consider the merits of the claim, the prosecutor's comment did not have a substantial and injurious effect on the punishment *908 phase. We now turn to consider the clearly established federal law governing claims such as this, and then consider whether the Texas courts' resolution of Davis's claim is contrary to, or an unreasonable application of, that law.
FN1. On appeal, Davis persists in asserting that the error also affected the outcome of the punishment phase of his trial. The district court's grant of a COA is limited to the guilt-innocence phase of trial. Accordingly, we will not consider Davis's argument that the prosecutor's improper comment during closing argument at the guilt-innocence phase affected the verdict at the punishment phase. See Goodwin v. Johnson, 224 F.3d 450, 459 & n. 6 (5th Cir.2000).
In Griffin v. California, the Supreme Court held “that the Fifth Amendment, in its direct application to the Federal Government and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.” 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the Court held that Griffin error is subject to harmless-error analysis. Id. at 25, 87 S.Ct. 824; see also United States v. Hasting, 461 U.S. 499, 505, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983) (holding that the court of appeals erred by asserting its supervisory powers, and by not applying the harmless error doctrine, in reviewing claim of Griffin error). In 1968, the Court held that “comment on a defendant's failure to testify cannot be labeled harmless error in a case where such comment is extensive, where an inference of guilt from silence is stressed to the jury as a basis of conviction, and where there is evidence that could have supported acquittal.” Anderson v. Nelson, 390 U.S. at 523-24, 88 S.Ct. 1133. In Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), the Court held that in habeas proceedings, the test for harmless error is “whether the error ‘had substantial and injurious effect or influence in determining the jury's verdict.’ ” Id. at 623, 113 S.Ct. 1710 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)).
The error of which Davis complains falls into the category of trial error, which “ ‘occur[s] during the presentation of the case to the jury,’ and is amenable to harmless-error analysis because it ‘may ... be quantitatively assessed in the context of other evidence presented in order to determine [the effect it had on the trial].’ ” Id. at 629, 113 S.Ct. 1710 (quoting Arizona v. Fulminante, 499 U.S. 279, 307-08, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). Accordingly, Griffin errors, such as the one claimed by Davis, are reviewed for harmless error in the context of the entire record. See United States v. Robinson, 485 U.S. 25, 33, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988).
As we have noted, the Texas Court of Criminal Appeals applied Anderson v. Nelson, and concluded that the Griffin error in this case was harmless, because the comment was not extensive, an inference of guilt from silence was not stressed to the jury as a basis of conviction, and there was no evidence that could have supported acquittal. Based on our review of the entire record, we are satisfied that the state court's conclusion is neither contrary to, nor an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States.
During individual voir dire, each person who was selected to serve on the jury was advised by the prosecutors that Davis had a constitutional right not to testify and that his failure to testify could not be considered as evidence of his guilt. All but one of those jurors was questioned on voir dire by the prosecutor who made the comments at issue.
At the close of all the evidence in the guilt-innocence phase, the trial court instructed the jury, orally and in writing, that:
Our law provides that a defendant may testify in his own behalf if he elects to do so. This, however, is a privilege accorded a defendant, and in the event he elects not to testify, that fact cannot be taken as a circumstance against him. In this case, the defendant has elected not to testify, and you are instructed that you cannot and you must not refer or allude to that fact throughout your deliberations, or take into consideration for any purpose whatsoever as a circumstance against the defendant.
The improper comment was an incidental statement in an argument by the prosecution that focused on the strength of the evidence against Davis. FN2 The trial court promptly sustained defense counsel's objection to the improper comment and instructed the jury to disregard it. The prosecution did not urge the jury to infer that Davis was guilty because he failed to testify. Instead, the prosecution argued that Davis should be found guilty of capital murder based on the strength of the evidence against him, which included his confession. As the district court observed, and as we have confirmed based on our review of the record, there is virtually no evidence that would have supported acquittal. We fully agree with the district court that, considering the brevity of the comment, the very strong evidence of guilt, and the absence of evidence that would have supported an acquittal, the improper comment did not have a substantial and injurious effect or influence in determining the jury's verdict. Accordingly, the state court did not unreasonably apply clearly established federal law when it concluded that the error was harmless.
FN2. The State argues that the prosecutor's comment was an invited reply to the defense closing argument and therefore did not violate the Fifth and Fourteenth Amendments. The Texas Court of Criminal Appeals held, however, that the comment was improper, and that “[t]he prosecutor's statement in conjunction with his physical actions was of such character that the jury would naturally and necessarily take it as such.” Davis v. State, No. 73,458, at 4. That conclusion is neither contrary to, nor an unreasonable application of, clearly established federal law. Accordingly, we defer to the state court's conclusion that the challenged comment violated the rule established in Griffin.
For the foregoing reasons, the judgment of the district court denying federal habeas relief is AFFIRMED.