Executed June 6, 2007 06:18 p.m. CST by Lethal Injection in Texas
22nd murderer executed in U.S. in 2007
1079th murderer executed in U.S. since 1976
15th murderer executed in Texas in 2007
394th murderer executed in Texas since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
Michael Durwood Griffith
W / M / 44 - 56
|Deborah Jean McCormick
W / F / 44
Griffith also was convicted of two violent robberies involving women — one at a savings and loan office and another at a bridal shop — the same month as the McCormick slaying. Both women survived their attacks and testified against him. Griffith was a 10 year veteran officer of the Harris County Sheriff's Department before his termination in 1993 due to domestic abuse. According to Prison officials, Griffith may have been the first ex-officer to be executed since the state resumed carrying out executions in 1982.
Griffith v. Quarterman, 196 Fed.Appx. 237 (5th Cir. 2006) (Habeas)
Griffith v. State, 983 S.W.2d 282 (Tex.Cr.App. 1998) (Direct Appeal).
Breakfast food, including fried eggs.
"Please take my spirit to the Lord."
Texas Department of Criminal Justice - Executed Offenders (Michael Griffith)Inmate: Griffith, Michael Durwood
Texas Attorney General
Wednesday, May 30, 2007 - Media Advisory: Michael Griffith scheduled for execution
AUSTIN – Texas Attorney General Greg Abbott offers the following information about former Harris County sheriff’s deputy Michael Griffith, who is scheduled to be executed after 6 p.m. Wednesday, June 6, 2007. Griffith was convicted and sentenced to death for the Houston robbery and murder of Deborah McCormick.
FACTS OF THE CRIME
Deborah McCormick and her mother Mary Ringer worked together at the Always and Forever Florist Shop and Wedding Chapel, located in Houston. On the morning of October 10, 1994, Mary left Deborah in the shop alone, locking the door behind her. The two women had agreed to keep the door locked if only one of them was in the store, and no one was to be admitted unless the customer was known to them.
When Mary returned to the shop about 30 minutes later, she found her daughter’s body lying in a pool of blood and naked from the waist up. She had been stabbed eleven times. Missing were four hundred dollars that had been hidden in a makeup bag and the mother’s credit cards that had been in the victim’s purse. The mother’s missing credit cards were used later that day at a gas station more than eighteen miles away from the murder scene, and they were also used at three department stores.
Griffith was arrested a month after the murder in a hotel room. Police discovered the stolen credit cards and an envelope containing money and a knife. In Griffith’s car, police found a receipt for a dozen red roses from the Always and Forever Florist Shop.
Mary Ringer testified that Griffith had been in the shop on three other occasions to purchase roses, and she recognized him as a customer.
The medical examiner identified the knife recovered from Griffith’s hotel room as consistent with the knife that inflicted the wounds on Deborah McCormick’s body. DNA testing indicated that the knife had a mixture of two different blood types – that of Deborah McCormick and Griffith.
At the punishment phase of the trial, a former co-worker from the Harris County Sheriff’s Department testified that Griffith had a reputation for not being a peaceful and law abiding person, that Griffith was prone to spontaneous eruptions, and that Griffith was terminated from the sheriff’s department on January 21, 1993, for a violation of departmental policy regarding domestic abuse.
The State also presented evidence of two other violent robberies Griffith committed shortly after the murder of Deborah McCormick. Griffith robbed a Guardian Savings and Loan in Harris County on October14, 1994, four days after the murder. During the robbery, Griffith made the lone employee walk to the restroom in the back of the building, at which time Griffith shot her in the back of the head. The first shot grazed her head, but a second shot lodged and fragmented into her skull. The victim, who survived, was still conscious and saw Griffith shoot a security camera. Griffith also robbed a bridal salon and sexually assaulted the salesperson on October 28, 1994.
The State presented numerous examples of Griffith’s abusive treatment of his ex-wives and girlfriends. Specifically, Griffith’s first wife testified that Griffith began hitting her very early on in their marriage; that Griffith was unfaithful to her, and when she confronted him with the affairs, he broke several of her ribs; and that she finally left him when he injured their oldest daughter in a fight.
Another ex-wife testified Griffith was charming and often gave her gifts while they were dating but became violent on the day they were married. During the three-year marriage, Griffith was physically abusive and began beating her four or five months into the marriage. Griffith once threatened to kill her for wearing a dress he thought was too tight. After they had separated, Griffith attacked her when she attempted to take money out of their bank account; during the attack, Griffith broke down her front door, broke her car windows, and took the money she had withdrawn.
Griffith began dating a co-worker from the Harris County Sheriff’s Department in October 1992. At first, Griffith was charming and sent flowers and gifts frequently, but soon became very possessive, jealous, and temperamental. On one occasion, Griffith choked her and threatened her with a gun. In January 1993, Griffith, who was despondent over losing his job, held the girlfriend hostage at his apartment for twelve hours, during which time he threatened her with a pair of scissors and told her he should kill her. At one point, Griffith told her “it’s a good day for you to die” and that she could say goodbye to her children before he killed her. The girlfriend escaped, and Griffith was arrested for assault.
Hilda Garcia testified that, when they first began dating, Griffith treated her well and gave her flowers, but soon became very possessive and temperamental. Griffith struck her on two occasions, one time chipping her tooth. On September 19, 1994, Griffith became angry and destroyed some things in Garcia’s home, then attacked her when she tried to throw him out. Garcia filed assault charges against Griffith for this incident.
As a rebuttal witness, the State called Allan Brantley, an FBI agent who works at the National Center for the Analysis of Violent Crimes. Brantley testified that there was a high probability that Griffith would engage in future acts of violence that were consistent with his past behavior. Brantley opined that Griffith’s actions were motivated by a sexual drive, and that such sexual drives do not go away. Brantley compared Griffith to a sexual predator who enjoys both the sexual aspect of his actions, as well as the power, control, and domination of a weaker individual. Such a predator will continue to look for similar outlets for sexual gratification, and, if isolated from females, he will look for a similar victim within the available population, which could include weaker males.
Griffith was convicted and sentenced to death in December 1995 for the capital murder of Deborah McCormick. The Texas Court of Criminal Appeals affirmed his conviction and sentence. The U.S. Supreme Court denied certiorari review of this decision. The Texas Court of Criminal Appeals denied state habeas corpus relief on October 8, 2003, after adopting the trial court's findings of fact and conclusions of law.
Griffith’s federal petition for writ of habeas corpus was denied on September 27, 2005. The district court also denied a certificate of appealability (COA) in the same opinion. Griffith filed a notice of appeal on October 5, 2005. Griffith’s request for COA was denied by the 5th U.S. Circuit Court of Appeals on July 21, 2006. The Supreme Court denied certiorari review of this decision on January 8, 2007.
PRIOR CRIMINAL HISTORY
Griffith has no prior prison record. However, in addition to his death sentence, Griffith was also sentenced to 60 years in prison on two counts of aggravated robbery. Griffith has committed numerous unadjudicated crimes, as described in the section regarding the punishment phase evidence.
"Ex-deputy executed for Houston woman's slaying," by Michael Graczyk. (AP June 7, 2007)
HUNTSVILLE, Texas — A former sheriff's deputy who killed a Houston woman during a robbery, sexual assault and stabbing attack took away the glue that held their family together, the daughter of the murder victim said after the man was put to death. "We will never be the same," Dawn Kirkland said after Michael Griffith quietly was executed Wednesday evening for the slaying of her mother, Deborah McCormick, at her family's flower shop nearly 13 years ago.
Griffith, 56, one of the rare ex-lawmen on death row in Texas, made no final statement from the death chamber gurney, replying to the warden with a "No, sir" when asked if he had anything to say. But as the lethal drugs began flowing, he whispered, "Please take my spirit to the Lord."
Nine minutes later he was pronounced dead, making him the 15th condemned prisoner executed this year in Texas, the nation's most active death penalty state. Four other inmates — including a woman — are set for lethal injection over the next three weeks.
Prison officials said Griffith, convicted and sentenced to die for killing McCormick, 44, in October 1994, may have been the first ex-officer to receive injection since the state resumed carrying out executions in 1982. A former Amarillo rookie police officer, Jim Vanderbilt, was condemned for killing the daughter of a state lawmaker in 1975 but he died of natural causes in 2002. Robert Fratta, a former officer in the Houston suburb of Missouri City, is awaiting execution after he was convicted of arranging the murder of his wife in 1994.
Kirkland was among five relatives of McCormick to watch the execution. "We came here today with justice on our minds and heaviness in our hearts," Kirkland said in a statement released after Griffith's death. "This is merely the end of another chapter in our story and with this end may it bring peace to our family."
Griffith had been a repeat customer at the shop run by McCormick and her mother, and he was known to the victim who was alone at the time of the attack. McCormick and her mother, who discovered her daughter's body, had a policy of not opening the door for people they didn't know if either was away.
The U.S. Supreme Court in January refused to review his case and Griffith's lawyer filed no additional appeals to try to block the execution.
Griffith rose to the rank of sergeant over his 10-year career with the Harris County Sheriff's Department but lost his job in 1993 when he was charged with assault, a violation of the department policy on domestic abuse.
At his capital murder trial, former wives and girlfriends testified how he courted them with flowers but later abused them, including one who said he became violent with her on their wedding day. Griffith also was convicted of two violent robberies involving women — one at a savings and loan office and another at a bridal shop — the same month as the McCormick slaying. Both women survived their attacks and testified against Griffith.
When Griffith was arrested after the robbery and attack at the bridal shop, police found him with credit cards belonging to McCormick's mother that were taken in the flower shop robbery. They also found a knife and a receipt for roses he'd purchased that day from the store. A medical examiner and DNA evidence identified the knife as the murder weapon. "The evidence against him was overwhelming," said David Cunningham, one of his trial lawyers. "When you focus on the circumstances of his arrest — they find him with the credit cards, the knife with her DNA on it, they had him on at least two other crimes — there really wasn't much. We didn't contest the issue of guilt-innocence. It was a punishment case from the start."
A defense psychologist said Griffith had a borderline personality disorder that showed up against wives and girlfriends. Defense lawyers said he was scarred by a neglectful mother who often was angry and violent when drunk and they believed the mitigating evidence presented to a Harris County jury was good enough to spare Griffith's life. The jury disagreed and voted for the death penalty.
After Griffith, scheduled to die next is Cathy Henderson, facing lethal injection June 13 for the 1994 slaying of Brandon Baugh, a 3-month-old Austin-area child she was baby-sitting. The child's skull was crushed in what Henderson said was an accident. His body was buried in a wine cooler box and was found 18 days after she and the child disappeared.
"Texas executes former deputy sheriff for '94 murder." (Thu Jun 7, 2007 8:14AM EDT)
HUNTSVILLE, Texas (Reuters) - Texas executed a former deputy sheriff on Wednesday for the murder of a Houston woman during the robbery of a wedding chapel and flower shop she owned with her mother.
Michael Griffith, 56, was the 15th person executed this year and the 394th by Texas since the state restored the death penalty in 1982, six years after the U.S. Supreme Court lifted a national capital punishment ban. Both totals lead the nation.
Griffith, who was fired in 1993 by the Harris County Sheriff for domestic abuse, was condemned for the murder of Deborah McCormick, 44, on October 10, 1994.
McCormick, a mother of two, was found stabbed to death in the Always and Forever Florist Shop and Wedding Chapel by her mother, Mary Ringer. Ringer had been away from the store for 30 minutes. Police arrested Griffith about a month after the murder and found credit cards taken during the robbery and a knife. DNA tests showed McCormick's blood was on the knife blade.
Griffith never admitted to the crime, but in the days leading up to the execution he asked his lawyers to stop appealing his sentence.
While strapped to a gurney in the Texas death chamber, Griffith was asked if he had a final statement. "No, sir," he said.
For his last meal, Griffith requested breakfast food including fried eggs. Texas has 14 more executions scheduled through October.
"Former Harris sheriff’s deputy executed," by Robbie Byrd. (June 07, 2007 12:27am)
A former Harris County sheriff’s deputy was executed in quiet but emotional fashion Wednesday night for the murder and sexual assault of a Houston woman more than 12 years ago. Michael Durwood Griffith, 56, was pronounced dead at 6:18 p.m., nine minutes after the lethal drugs hit his veins.
Griffith is one of only a handful of former police officers on death row. While prison officials could not confirm, Griffith is the only police officer in recent memory to be executed since they resumed in Texas in 1982.
Griffith was executed for the 1994 murder of flower shop clerk Deborah McCormick. McCormick was stabbed to death 11 times with a butcher knife; twice the wounds pierced straight through her heart.
Both of McCormick’s two grown daughers and her brother, son-in-law and ex-husband witnessed Griffith’s execution. “Michael Griffith will meet his judgment today and not only here on earth,” Dawn Kirkland, McCormick’s daughter, said in a written statement released after the execution. “We pray for his daughters and family at this time. “As hard as this is for our family to live through, we can only imagine the heartache this causes them as well. May God bless and comfort you.”
Griffith offered only “no, sir” as his final statment, glancing over briefly at his daughter, Michelle Clark, ex-wife Cheryl Stanley and spiritual adviser witnessing the execution from the right-side viewing chamber. As the drugs began taking effect, Griffith said in a barely audible whisper, “Please take my spirit to the Lord.”
Clark hesitated until just before Griffith was asked for his last statement before entering the execution viewing room, pleaing for “a moment” before stepping up to the glass and pale green bars that separate the chamber from witnesses. “He looks so stubborn,” Clark said of her father only moments after the lethal dose had completed.
Griffith was silent during the execution, prompting his daughter to ask “is it done?” “It’s a very peaceful thing,” said Ron Cloutier, a spiritual adviser for the family. “He’s waited for this for a long time. The fact that the two of you were here was very important. It made it a lot easier. It really did.”
Friends and family of McCormick fought back tears during the execution, but did not speak, only staring forward at Griffith’s body.
Griffith was the 15th inmate to be executed this year and the first of five executions scheduled for June, including Cathy Henderson, who is set to die next week. He spent the three days preceeding his execution on frequent visits with family and friends. For his last meal at around 4 p.m. Wednesday, Griffith requested a breakfast.
Stanley, along with other ex-wives and girlfriends, testified during the punishment phase of Griffith’s trial that he was charming and abusive, pervading a “Jekyl-and-Hyde” personality. Griffith broke several of Stanley’s ribs during their marriage, she testified, and at one point held a gun to her head. Other romantic interests of Griffith testified he was abusive, including a former co-worker from the Harris County Sheriff’s Office. In January 1993, a little over a year and a half before McCormick’s murder, Griffith held the woman hostage, threatening her with a pair of scissors, reportedly telling her “it’s a good day for you to die.” The incident ultimately ended his career in law enforcement.
But other co-workers of Griffith recalled him as a model policeman. "He was a good officer," said Bay County, Fla., Sheriff Frank McKeithen, who worked with Griffith in the mid-1970s. "Everybody liked him, his supervisors liked him. ... It just came as a total shock when I read what had happened. It was gut-wrenching to see his picture. It's like two different people."
McKeithen said Griffith even received Bay County officer of the year, though he could not recall the exact year. The dual personality of Griffith was a shining hope for defense attorney’s during his trial.
A defense psychologist said Griffith suffered from borderline personality disorder that showed up against wives and girlfriends whose actions reminded him of growing up in Los Angeles where his neglectful mother was described as often angry and violent, often drunk.
A Harris County jury found no sympathy for Griffith and voted for the death penalty. FBI Agent Allan Brantley, a member of the National Center for the Analysis of Violent Crimes, testified that there was a high probabilty that Griffith’s acts of violence would continue, comparing him to a sexual predator. “Such a predator will continue to look for similar outlets for sexual gratification, and, if isolated from females, he will look for a similar victim within the available population, which could include weaker males,” Brantley told jurors, according to a release from the Texas Attorney General’s office.
Griffith then sexually assaulted McCormick, forcing her to perform sexual acts on him, according to information from the TDCJ. Griffith was found in a hotel room three weeks after the murder. In his posession were Ringer’s credit cards, a receipt from Always and Forever and the knife police later proved to be the murder weapon.
“The evidence against him was overwhelming,” said David Cunningham, one of his trial lawyers. “When you focus on the circumstances of his arrest — they find him with the credit cards, the knife with her DNA on it, they had him on at least two other crimes — there really wasn’t much. We didn’t contest the issue of guilt-innocence. It was a punishment case from the start.”
Texas Execution Information Center by David Carson.
Michael Durwood Griffith, 56, was executed by lethal injection on 6 June 2007 in Huntsville, Texas for the sexual assault, murder, and robbery of a flower shop operator.
Deborah McCormick, 44, and her mother, Mary Ringer, operated the Always and Forever Flower Florist Shop and Wedding Chapel in Houston. The two women followed a policy that if only one of them was in the store, the door would be locked, and no one unfamiliar would be admitted.
On the morning of 10 October, Ringer left McCormick in the shop alone and locked the door on her way out. While she was gone, Griffith, then 44, came to the store. Griffith had purchased flowers at the store at least three times, so McCormick let him in. He purchased six long-stemmed roses. He then drew a pistol and ordered McCormick into a room where he forced her to perform sex acts. He then used a butcher knife to stab her eleven times. Ringer returned about thirty minutes after she left and found her daughter's body in a pool of blood, naked from the waist up. Some credit cards and an envelope containing about $400 in cash were missing from her purse.
On 14 October, Griffith robbed a savings and loan in Harris County. He made the lone employee walk to the restroom in the back of the building, then shot her in the back of the head. That victim survived. Griffith also robbed a bridal salon and sexually assaulted the salesperson on 28 October.
Griffith was arrested in a motel room about three weeks after the murder. He had Mary Ringer's stolen credit cards, a knife, and an envelope containing cash in his posession. A receipt from the Always and Forever shop, bearing the date of the murder, was in his car.
At Griffith's trial, the medical examiner testified that the knife found in Griffith's motel room was consistent with the wounds inflicted on McCormick's body. DNA testing indicated that it had both McCormick's and Griffith's blood on it.
Griffith had no prior criminal convictions, but he had a history of violent acts against women. At his punishment hearing, his first wife, Cheryl Stanley, testified that he hit her very early on in their marriage and once held a gun to her head. When she confronted him about an affair he was having, he broke several of her ribs. She left him when he injured their daughter in a fight.
Another ex-wife testified that Griffith was generous and charming when they were dating, but became violent the day they were married. She testified that he began beating her four or five months into their three-year marriage, and once threatened to kill her for wearing a tight dress. After they separated, he broke down her front door and broke her car windows and took some money she had withdrawn from their bank account.
In October 1992, Griffith, who was a sergeant in the Harris County Sheriff's Department, began dating a co-worker. This woman testified that at first, he was charming and generous and sent flowers frequently, but soon became possessive, jealous, and temperamental. On one occasion, he choked her and threatened her with a gun. He was fired from the sheriff's department in January 1993 after receiving a misdemeanor conviction for domestic violence. He had been with the department for ten years. Despondent over losing his job, he held his girlfriend hostage at his apartment for twelve hours, repeatedly threatening to kill her. The girlfriend escaped, and Griffith was arrested for assault.
Hilda Garcia testified that, when they began dating, Griffith gave her flowers, but that he soon became possessive and temperamental. He struck her on two occasions, one time chipping her tooth. On 19 September 1994 - three weeks before the murder - he destroyed some items in Garcia's home and tried to attack her. Garcia filed assault charges.
Griffith's attorneys, who did not contest their client's guilt, presented a psychologist who testified that his violence towards women was rooted in having neglectful mother who was angry and violent when drunk. The defense also presented testimony from law enforcement officers who had worked with Griffith in Texas and Florida and who described him as a model law enforcement officer.
A jury convicted Griffith of capital murder in December 1995 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in December 1998. All of his subsequent appeals in state and federal court were denied.
He also received a 60-year prison sentence for the savings and loan and bridal shop robberies.
Griffith did not speak with reporters while he was on death row. When asked at his execution if he wanted to make a last statement, he replied, "No, sir." As the lethal injection was being administered, he faintly whispered, "Please take my spirit to the Lord." He was pronounced dead at 6:18 p.m.
Griffith may have been the first former law enforcement officer to be executed in Texas since executions resumed in 1982 after a national moratorium. Texas Department of Criminal Justice spokeswoman Michelle Lyons said that there are other former peace officers currently on Texas' death row, but she was not aware of any previous executions.
In December 1995, former sheriff's deputy Michael Durwood Griffith was convicted and sentenced to death for the fatal stabbing, rape and robbery of a woman at a northwest Houston floral shop where he was a regular customer. He was arrested after using credit cards stolen from the victim. Griffith stabbed Debra McCormick multiple times after he sexually assaulted and robbed her.
During the penalty phase, the State proved that Griffith 1) was a former Sheriff’s Deputy; 2) had a poor reputation for being peaceful and law-abiding; 3) had a volatile temper; 4) was fired from the Sheriff’s Department following a misdemeanor conviction for domestic abuse; 5) was angry, physically and verbally abusive, and extremely possessive and controlling toward two ex-wives and two ex-girlfriends; and 6) was violent with his children.
Griffith was fired from his deputy's job in 1993 after complaints from his ex-wives and a girlfriend of violence and torture. The State also demonstrated that Griffith had committed a bank robbery in which he shot a teller in the back of the head, and a bridal shop robbery during which he sexually assaulted a sales clerk.
Billy Ringer, Jr., the brother of Debra McCormick, had a close relationship with his sister. At one time, she worked for him at his medical practice and was much-loved by all his patients. McCormick and her mother, Mary Jane Ringer, were also very close; the two enjoyed running the family wedding chapel business together. Billy said that McCormick’s death adversely affected their father, Billy Ringer, Sr.; Deborah McCormick was the heart of the family who planned birthday, holiday, and family events; and she was a good Christian. Billy added his belief that, because of his sister’s death, their father gave up his fight against cancer and passed away. He said that his father showed progress before Deborah’s murder but stopped eating on news of the murder and died shortly thereafter.
National Coalition to Abolish the Death Penalty
Michael Griffith, TX, June 6
Do Not Execute Michael Griffith!
Texas is scheduled to execute Michael Griffith on June 6 for the 1995 murder of Deborah McCormick in Houston.
The state of Texas should not execute Griffith for his role in this crime. Executing Griffith would violate the right to life as declared in the Universal Declaration of Human Rights and constitute the ultimate cruel, inhuman and degrading punishment. During the sentencing phase of his trial, two psychologists testified that Griffith would not be a threat to any person while incarcerated. The state did not rebut with competent psychological evidence, but resorted to testimony from an expert whose background was in the pseudo-science of criminal profiling. Studies have shown that these future dangerousness predictions are not reliable.
Please write to Gov. Rick Perry on behalf of Michael Griffith!
Griffith v. State, 983 S.W.2d 282 (Tex.Cr.App. 1998) (Direct Appeal).
Defendant was convicted in the trial court, Harris County, Mary Lou Keel, J., of capital murder and was sentenced to death. On automatic appeal, the Court of Criminal Appeals, McCormick, P.J., held that: (1) search of defendant's hotel room at time of his arrest was legal; (2) defendant was not entitled to appointment of a particular psychologist as an expert witness; (3) state psychologist's expert testimony was admissible on issue of future dangerousness; and (4) sufficiency of mitigation evidence was not reviewable. Affirmed. Meyers, J., concurred in the judgment and filed opinion. Mansfield, J., concurred and filed opinion. Keller, J., concurred and filed opinion in which Holland and Womack, JJ., joined. Baird, J., concurred and dissented and filed opinion in which Overstreet and Price, JJ., joined.
McCORMICK, P.J., delivered the opinion of the Court, in which MANSFIELD, KELLER, HOLLAND and WOMACK, JJ., joined.
Appellant was convicted in December 1995 of a capital murder committed in October 1994. V.T.C.A., Penal Code, Section 19.03(a)(2). Pursuant to the jury's answers to the statutory punishment issues set forth in Texas Code of Criminal Procedure Article 37.071, Sections 2(b) and 2(e), the trial judge sentenced appellant to death.FN1 Article 37.071, Section 2(g). Direct appeal is automatic. Article 37.071, Section 2(h). We will affirm.
Appellant raises twelve points of error. He raises challenges to the sufficiency of the mitigation evidence. However, for the reasons put forth under those points, we need not set out a comprehensive recitation of the facts. Hence, only those facts necessary to address appellant's points will be included. Appellant's points will be addressed in the order in which he raises them on appeal.
Appellant advances in his first point of error that the trial court erred in failing to suppress the evidence seized from the hotel room following his arrest.FN2 Specifically, appellant asserts not that his arrest was illegal, but that the State failed to carry its burden at the suppression hearing to show that it was lawful. Because of this, appellant contends that the evidence should be suppressed notwithstanding the fact that he signed a consent to search form.
FN2. This evidence included the murder weapon, credit cards taken from the victim, and credit card receipts.
The record reveals that several credit cards were stolen from the victim. Upon investigation, the police began to suspect appellant. Furthermore, outstanding warrants for other crimes not related to the capital murder charge already existed for appellant's arrest. In pursuing the investigation of the capital murder, officers were led to a Holiday Inn where a room had been secured by one of the stolen cards. The police knocked on the door of the room and appellant answered. According to officers' testimony at the suppression hearing, the police arrested appellant pursuant to the outstanding warrants and quickly conducted a protective search of the room. Within five minutes of entry, appellant was presented with a consent to search form which he signed.FN3
FN3. According to officers' testimony, appellant was read his Miranda warnings prior to being given the consent to search form. However, appellant disputes this.
At the motion to suppress hearing, appellant admitted on cross-examination that he knew what the consent to search form was,FN4 he signed it “knowingly and voluntarily,” and he knew that he could have refused to sign it. Appellant further admitted that he knew a warrant was out for his arrest on an assault charge and that police officers “had a lawful right to arrest” him on that charge. Given this testimony, we hold that the trial judge acted within her discretion in overruling appellant's motion to suppress. See Baker v. State, 956 S.W.2d 19 (Tex.Cr.App.1997). Point of error one is overruled.
FN4. Appellant had been a peace officer for a number of years.
In his second point of error, appellant asserts that the trial court erred in “failing to provide funds with which to employ an expert witness.” Specifically, appellant claims he was entitled to funds to hire a particular psychologist, Dr. Theodore Blau, to rebut the testimony of State's witness, psychologist Dr. Allan Brantley, of the Federal Bureau of Investigation's (FBI's) Behavioral Sciences Unit. To properly address this point of error, we must briefly set out the facts underlying the claim.
The record reflects that appellant filed a motion on November 1, 1995, requesting the appointment of psychiatrist Mitchell Young and psychologist Ed Friedman. The trial court granted this request, but limited the funds available to $6,000.00. According to Dr. Young's letter to defense counsel, psychologist David Hopkinson would also be helping with the case.FN5 On November 22, 1995, appellant filed two additional motions requesting the appointment of “expert assistance.” Each of these motions specifically asked for the appointment of psychologist Dr. Theodore Blau. Appellant urged his motion be granted because Blau was needed to respond to State's expert, FBI Special Agent Dr. Allan Brantley, who was going to use a “threat assessment technique” (apparently similar to a future dangerousness analysis) and “compare the defendant to profiles of certain serial killers and discuss [appellant's] similarity to such individuals.” Blau was apparently needed to show why such testimony was not “scientifically validated” and should, therefore, be held inadmissible. No affidavits or other evidence of need were included with the motion.
Prior to Brantley's testimony at punishment, the trial court held a hearing pursuant to Texas Rules of Criminal Evidence 702-705 to determine Brantley's qualifications and the bases for his testimony. Brantley told the judge that he was going to render an opinion on appellant's probability for being a future danger and that he was going to base that opinion upon crime scene photographs, investigative reports, interviews, autopsy photographs, school records, work records, and “everything that [he] could get [his] hands on.” Brantley stated that he was not testifying from a psychological perspective per se, but rather from his experience in the criminal justice field. Brantley also told the judge that he did not intend to use the “profiling” technique of which appellant complained. Appellant challenged Brantley's testimony asserting that it was based on novel methodology and was cumulative because the State had established the same information through the cross-examination of appellant's experts. The judge held the testimony admissible. After Brantley's testimony, appellant re-urged his motion to be allowed to hire Dr. Blau. However, the judge also overruled this request.
In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the United States Supreme Court explained that due process requires access to the raw materials integral to the building of an effective defense. Id. at 77, 105 S.Ct. 1087. In other words, the State must provide a defendant with the basic tools to present his defense within our adversarial system. Id. While the Ake case dealt with the appointment of a psychiatrist, it is now without question that Ake requires the appointment of an expert regardless of his field of expertise. Rey v. State, 897 S.W.2d 333, 338 (Tex.Cr.App.1995). As we set out in Rey:
“There is no principled way to distinguish between psychiatric and nonpsychiatric experts. The question in each case must be not what field of expert knowledge is involved, but rather how important the scientific issue is in the case, and how much help a defense expert could have given.” 897 S.W.2d at 338.
Hence, the nature of an expert's field and the importance and complexity of the issue will bear directly upon whether the appointment of an expert will be helpful. Id. The type of expert is also relevant to the determination of whether the trial was fundamentally unfair without the expert's assistance. Id.
However, this does not mean that the State must “purchase for an indigent defendant all the assistance that his wealthier counterparts might buy.” Ake, supra. Nor does it mean that a defendant has a constitutional right to choose an expert of his personal liking. Ake, supra; Cantu v. State, 939 S.W.2d 627, 638-639 (Tex.Cr.App.1997). Rather, the purpose of the appointment is to level the playing field; to give a defendant access to a competent expert who can assist in the evaluation, preparation, and presentation of the defense. See Rey, 897 S.W.2d at 337.
In implementing this right to receive an expert, the burden is on the defendant to make a sufficient threshold showing of the need for the expert's assistance. Rey, 897 S.W.2d at 339. In the instant case, it is not entirely clear exactly what type of expert appellant was seeking. The State's expert, Brantley, told the court that he was going to testify on the issue of appellant's future dangerousness, obviously a significant factor at trial. Furthermore, he specifically stated that he was not going to utilize the complained-of “profiling” technique, but instead was going to evaluate the evidence and make an assessment from that material. Whether from a psychological perspective or a criminal justice one, Brantley's actual testimony was akin to the testimony of a forensic psychologist.
Appellant asserted he needed Blau (a psychologist) to discount Brantley's testimony concerning the “profiling” technique because he had helped to develop the technique.FN6 However, Brantley specifically indicated he was not going to utilize the technique. Even if Brantley had used the technique, it is unclear whether or not any of appellant's other experts were versed in the use of “profiling” and, therefore, could have rendered competent assistance. The fact that appellant requested a third psychologist and not some criminal justice or other forensic expert weighs against his being able to show need for this particular expert. Given the facts and the testimony presented, we cannot say that the trial judge was outside of the zone of reasonable disagreement in refusing to appoint Blau. See Rey, supra. Appellant's second point of error is overruled.
FN6. Appellant also said he needed Blau to respond to Brantley's testimony. However, as stated previously, appellant told the judge that he did not think Blau was going to listen to that testimony.
In point of error three, appellant posits that the trial court erred in allowing Brantley to testify “without first holding a Rule 702 hearing to determine whether Brantley's theories were sufficiently reliable to be admissible.” In his fourth point, he contends that the trial court erred in admitting Brantley's testimony. The testimony at trial reveals the following exchange:
“THE COURT: Can I look at that; and then the other thing you want a hearing on- “[DEFENSE COUNSEL:] Allen [sic] Brantley's qualifications to testify under rule 701, 702 and 705. “THE COURT: Okay. We'll do that after we break. * * * “So we'll play the tape, break, do the hearing and you can put on Brantley.”
The record further shows, prior to Brantley's testimony before the jury, the judge did hear from both attorneys and Brantley concerning Brantley's qualifications to testify and the basis of his testimony. There is no indication in the record that appellant was prohibited from calling witnesses for this “hearing,” nor did appellant make any complaint that this was not a sufficient hearing for purposes of qualifying the witness and establishing the basis of his testimony. Appellant's third point of error is not supported by the record and is, therefore, overruled.
With regard to point of error four, appellant claims that: 1) Brantley's testimony was based upon novel scientific theory and was, therefore, unreliable, and 2) the testimony was further not admissible because it did not assist the jury by providing any specialized knowledge. Appellant's allegations correspond with the trial court's task in assessing the admissibility of evidence under Rule 702. Pursuant to Rule 702, the trial court must determine whether the scientific evidence offered is sufficiently reliable and relevant to help the jury in reaching accurate results. Hartman v. State, 946 S.W.2d 60, 62 (Tex.Cr.App.1997).FN7 The admission of such scientific evidence is within the sound discretion of the trial court and its decision regarding such will not be set aside absent an abuse of that discretion. Clark v. State, 881 S.W.2d 682, 698 (Tex.Cr.App.1994), cert. denied, 513 U.S. 1156, 115 S.Ct. 1114, 130 L.Ed.2d 1078 (1995). FN7. Furthermore, it is not necessary that this evidence be novel. Hartman, supra.
To be considered reliable, evidence must have its basis in sound scientific methodology. Id. Evidence that is not reliable is not helpful to the jury because it frustrates rather then promotes intelligent evaluation of the facts. Jordan v. State, 928 S.W.2d 550, 554 (Tex.Cr.App.1996). With respect to the relevance consideration, expert testimony must “assist the trier of fact to understand the evidence or to determine a fact in issue.” Jordan, 928 S.W.2d at 555. Expert testimony that does not relate to a fact in issue is not helpful. Id.
The thrust of appellant's argument seems to concentrate on Brantley's use of the “profiling” technique. Appellant claims that this technique is not grounded in sound scientific theory and, therefore, should not have been admitted. However, during the hearing on Brantley's qualifications, the witness expressly stated that he would “not offer testimony about a profile.” Because the witness did not offer the complained-of testimony, the majority of appellant's argument is moot. Alternatively, appellant argues that the witness's testimony was not relevant because it offered no expertise outside of the jury's own capabilities and it was cumulative “because [the prosecution has] established [the same information] by cross examination of the three psychologists [the defense] put on. All three said yes in free society he's dangerous.”
In Clark, 881 S.W.2d at 698, we reaffirmed that psychological and psychiatric testimony is admissible during the punishment phase of a capital trial. However, the proponent of the evidence still has the burden to show that the witness possesses the requisite expertise required by Rule 702 and that the witness's testimony will assist the fact-finder. Appellant does not attack Brantley's qualifications as an “expert,” therefore, the only remaining question is whether the trial judge could have reasonably determined that his testimony would be of benefit to the fact-finder.
An appellant's potential for being a future danger is a question of fact which the jury must answer. See Article 37.071, Section 2(b). Furthermore, this Court has previously recognized that testimony from mental health experts is relevant to that issue. McBride v. State, 862 S.W.2d 600, 608 (Tex.Cr.App.1993), cert. denied, 512 U.S. 1246, 114 S.Ct. 2765, 129 L.Ed.2d 879 (1994).
In the instant case, Brantley testified that prior to becoming a special agent with the FBI, he had worked as a psychologist in a maximum security prison for about six years. Among other duties, Brantley stated that he was responsible for assessing and evaluating the adult male felon population for potential dangerousness or future threat to the community should they be released on parole. Brantley told the jury that he reviewed “hundreds” of such cases during his time in that position.
After leaving that post, Brantley became the senior psychologist and Mental Health Director for a three prison unit complex where he continued to perform future threat evaluations in addition to supervising other psychologists. Brantley further stated that he had taught “criminal psychology” at the FBI Academy for a number of years. Finally, Brantley told the jury that, before developing an opinion of appellant's future dangerousness in the instant case, he reviewed the investigative reports, crime scene photos, autopsy photos, witness statements, and appellant's school and personnel records, among other information.FN8
FN8. The record reveals that this was much the same material that appellant's experts reviewed before making their assessments.
Given Brantley's specialized education and experience, and the effort he took to “fit” his evaluation to this particular case, we cannot say that the trial judge abused her discretion in determining that Brantley's testimony would be helpful to the jury.FN9 See Clark and McBride, both supra. Point of error four is overruled.
FN9. Additionally, we have consistently defined “society” as encompassing both the prison population and the free population. See Morris v. State, 940 S.W.2d 610, 613 (Tex.Cr.App.1996). Although appellant's experts testified that appellant would be a danger to free society, the State was entitled to put on evidence that he would also be a danger in prison.
In his fifth point of error, appellant complains that the trial court erred in allowing the victim's brother to testify at the punishment stage of trial about the impact his sister's death in the instant offense had on their family. Specifically, the witness testified to the relationship the victim had with him and his family. He told the jury that his sister had been the planner and coordinator for all of the holidays the family celebrated. He also related how their father had been diagnosed with cancer before the victim's death, how the victim had helped to take care of him, and how their father quit fighting the disease after the victim was killed. Appellant did not cross-examine the witness.
The trial court did not abuse its discretion to admit this evidence under this Court's majority decision in Mosley v. State, 983 S.W.2d 249 (Tex.Cr.App.1998) (op. on reh'g). Point of error five is overruled.
Appellant complains in points of error six through nine about issues relating to the requirement that, if sentenced to life in prison, he must spend at least forty years in jail before becoming eligible for parole. See Article 42.18, Section 8(b)(2). Specifically, appellant asserts in his sixth point of error that the trial court erred in not submitting an instruction to the jury informing them that he would have to spend at least forty years in prison if sentenced to life. In his seventh point, appellant avers that he should have been allowed to voir dire the jury on this issue. And finally, in his eighth and ninth points of error, appellant complains that his expert witnesses should have been allowed to testify that appellant's threat of being a future danger would be substantially reduced given the required minimum incarceration time.
Appellant contends these issues are controlled by the United States Supreme Court case of Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994). He concedes that this Court has already decided the issues against him. However, he “respectfully disagrees with this Court's reasoning” and urges us to consider his argument.
In Smith v. State, 898 S.W.2d 838 (Tex.Cr.App.1995)(plurality opinion), cert. denied, 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995), this Court engaged in a comprehensive discussion of Simmons as it relates to the law in Texas. We reiterated that parole is traditionally not a matter for jury consideration in a Texas capital murder trial. And, thus, it is not error for a trial court to refuse to admit testimony concerning parole. See Jones v. State, 843 S.W.2d 487, 495 (Tex.Cr.App.1992), cert. denied, 507 U.S. 1035, 113 S.Ct. 1858, 123 L.Ed.2d 479 (1993). Further, we “absolutely reject [ed]” the premise that Simmons has been extended to parole eligible defendants. Smith, 898 S.W.2d at 848. As such, we hold that the requested instruction, voir dire, and testimony which is the subject of these points were appropriately refused by the trial court. Smith, supra; Shannon v. State, 942 S.W.2d 591, 594 (Tex.Cr.App.1996); Broxton v. State, 909 S.W.2d 912, 918-919 (Tex.Cr.App.1995). Points six through nine are overruled.
Appellant asserts in his tenth point of error that the evidence is insufficient to sustain the jury's negative finding to the mitigation issue. Similarly, in his eleventh point of error, he challenges the factual sufficiency of the mitigation evidence. Appellant notes his awareness that this Court has consistently refused to address such points. However, he advances that such review is mandated under due process.
We have previously held that the sufficiency of mitigation evidence is not reviewable by this Court. Lawton v. State, 913 S.W.2d 542, 557 (Tex.Cr.App.1995), cert. denied, 519 U.S. 826, 117 S.Ct. 88, 136 L.Ed.2d 44 (1996). We have also previously held that such a review is not constitutionally required. McFarland v. State, 928 S.W.2d 482, 499 (Tex.Cr.App.1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997). We decline to readdress the issue here. Points of error ten and eleven are overruled.
Appellant attests in his final point of error that the trial court erred in allowing the State to introduce evidence that two Harris County Sheriff's Office Supervisors who wrote positively of appellant were fired because of criminal convictions. During the punishment stage of trial, the State called Ruben Diaz to testify. Diaz, a lieutenant in the Harris County Sheriff's Department, told the jury that he served as appellant's immediate supervisor at one point in time. As a result of this relationship, Diaz testified that he formed the opinion that appellant had a bad reputation.
While cross-examining Diaz, defense counsel introduced appellant's Harris County personnel file. Discussing the contents of this file with Diaz, defense counsel revealed to the jury several documents generated by appellant's past supervisors and colleagues chronicling his career as a peace officer. Among these were documents from deputies G. Poindexter and B. Mathis. Poindexter had conducted a check of appellant's references when appellant submitted an employment application to the Sheriff's Department and placed documents in appellant's file indicating that the people he had contacted spoke positively of appellant. Mathis had been one of appellant's superiors in the early 1980's and had given him several positive evaluations.FN10
FN10. The file apparently revealed that at least nine of appellant's superiors had given him positive evaluations and commendations in the past.
On the State's redirect of Diaz, the prosecutor elicited testimony that Poindexter and Mathis had both been fired from the sheriff's department after being convicted of criminal offenses. It is this testimony of which appellant now complains.
The State responds that the complained-of statements were admissible under Tex.R.Crim.Evid. 806. Rule 806 states in pertinent part: “When a hearsay statement, ..., has been admitted in evidence, the credibility of the declarant may be attacked, ..., by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, offered to impeach the declarant, is not subject to any requirement that he may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine him on the statement as if under cross-examination.”
While the State did not complain of the admission of appellant's personnel file and its contents, the trial judge could have reasonably concluded that the documents contained within the file were hearsay. In other words, the judge could have determined that the documents were statements, other than ones made by the declarant while testifying at trial, which had been offered in evidence to prove the truth of the matters asserted within. See Tex.R.Crim.Evid. 801(d).
Because we conclude the statements qualified as hearsay, the credibility of each declarant could then be attacked pursuant to the dictates of Rule 806. If the declarants had testified as witnesses, the State would have been allowed to impeach their credibility with a felony conviction or the conviction of a crime involving moral turpitude.FN11 See Tex.R.Crim.Evid. 609(a). Hence, this same impeachment evidence could be used pursuant to Rule 806. Furthermore, the trial judge apparently engaged in the proper balancing test required under Rule 609(a) as evidenced by the fact that she made the State refrain from mentioning the specific crime of which each person was convicted. Given this, we cannot say that the trial judge abused her discretion in allowing the impeachment testimony. Point of error twelve is overruled.
FN11. Mathis' prior conviction was for the felony of rape. Although the record does not appear to set out what conviction was used to impeach Poindexter's credibility, appellant has not met his burden on appeal to show that the judge abused her discretionary authority in allowing the impeachment of Poindexter. In effect, appellant's entire argument is that “the trial court should not have admitted evidence of a conviction for someone who did not testify.” Rule 806 expressly contradicts this assertion and appellant has failed to offer other relevant authority concerning his point of error. See Tex.R.App.Proc. 38.1(f)-(h) (formerly Tex.R.App.Proc. 74(f)).
Finding no reversible error, we affirm the conviction and sentence of the trial court.
Griffith v. Quarterman, 196 Fed.Appx. 237 (5th Cir. 2006) (Habeas).
Background: State prisoner sought petition for writ of habeas corpus. The United States District Court for the Southern District of Texas, Houston Division, 2005 WL 2372044, denied relief. Prisoner sought certificate of appealability (COA).
Holdings: The Court of Appeals held that:
(1) claim challenging testimony of FBI special agent was procedurally defaulted;
(2) testimony of special agent, that prisoner would present a threat to the prison population, was relevant to the future dangerousness special issue;
(3) refusing request to fund fourth expert did not violate defendant's due process or confrontation rights; and
(4) victim impact testimony of murder victim's brother did not violate prisoner's due process rights. Certificate of appealability denied.
Petitioner Michael Durwood Griffith was convicted and sentenced to death in Texas state court for murdering Deborah McCormick while attempting to rob her. After he exhausted state remedies, Griffith sought a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied relief and refused to grant a certificate of appealability (“COA”). Griffith now requests a COA on three issues: 1) whether the trial court's admission of FBI Special Agent Alan Brantley's expert testimony violated the Eighth Amendment; 2) whether the trial court's denial of Griffith's request to provide additional expert assistance violated due process or the Sixth Amendment; and 3) whether Billy Ringer, Jr.'s victim impact testimony violated due process. Because no reasonable jurist could find the district court's resolution of these issues debatable or conclude that Griffith's arguments deserve to proceed further, we deny the request for a COA on all issues.
Griffith's guilt is not at issue in this appeal. The jury convicted him of capital murder for stabbing Debra McCormick multiple times after he sexually assaulted and robbed her. During the penalty phase, the State proved that Griffith 1) was a former Sheriff's Deputy; 2) had a poor reputation for being peaceful and law-abiding; 3) had a volatile temper; 4) was fired from the Sheriff's Department following a misdemeanor conviction for domestic abuse; 5) was angry, physically and verbally abusive, and extremely possessive and controlling toward two ex-wives and two ex-girlfriends; and 6) was violent with his children. The State also demonstrated that Griffith had committed a bank robbery in which he shot a teller in the back of the head, and a bridal shop robbery during which he sexually assaulted a sales clerk.
The defense countered that Griffith's mother had a drinking problem, was often angry and violent when drunk, and favored his brother. Further, Griffith received numerous professional awards, as well as praise from supervisors and people in the community. Griffith's former coworkers testified that Griffith was highly competent and professional, and a compassionate supervisor and friend, and that he was devastated after being fired.
Both the defense and the State introduced evidence regarding Griffith's future dangerousness. The defense presented testimony from Dr. Toby Meyers, Dr. Edward Friechman, Dr. David Hopkinson, and Dr. Mitch Young. Dr. Meyers, the director of a program for people who have engaged in violence against an intimate partner, testified that he had worked with Griffith in the past, that Griffith had acknowledged that he had a problem as a domestic abuser, and that Griffith worked diligently in the group and benefitted from the experience.
Dr. Friechman, a clinical psychologist, testified that Griffith had borderline personality disorder and/or dissociative disorder. He noted that Griffith's violence toward his wives and girlfriends was triggered by actions that reminded him of his neglectful mother. He also opined that Griffith's identity had been connected to his job as a law enforcement officer, that his job was the “glue” that held him together emotionally, and that when he lost his job, his sense of reality became chaotic, resulting in intense anger. Friechman further opined that the structure of prison life would serve as a “glue” for Griffith, although he conceded that Griffith would be dangerous if he ever escaped. Dr. Hopkinson's testimony was similar.
Dr. Young, a psychiatrist, also diagnosed Griffith as exhibiting borderline personality disorder, and opined that as long as Griffith was in a structured environment, he would function normally. If he had no contact with women, Griffith would not be dangerous in prison.
In rebuttal, the State called Allan Brantley, a Special Agent at the FBI's National Center for the Analysis of Violent Crime. After analyzing Griffith's background and crimes, Brantley concluded that Griffith's actions were motivated by his sexual drive. Brantley also noted that such sexual drives do not go away, and therefore there was a high probability that Griffith would engage in future acts of violence. Brantley compared Griffith to a sexual predator, and concluded that, if isolated from females, Griffith would look for similar victims within the available population, which could include weaker males. Additionally, Brantley noted that prisoners encounter women and children within prison systems.
Finally, the State called Billy Ringer, Jr., the brother of Debra McCormick, to testify. Ringer, Jr. had a close relationship with his sister. At one time, she worked for him at his medical practice and was much-loved by all his patients. McCormick and her mother, Mary Jane Ringer, were also very close; the two enjoyed running the family business together. Ringer, Jr. said that McCormick's death adversely affected their father, Billy Ringer, Sr.; McCormick was the heart of the family who planned birthday, holiday, and family events; and she was a good Christian. Ringer, Jr. added his belief that, because of his sister's death, their father gave up his fight against cancer and passed away.
The jury found that, if sentenced to life imprisonment, Griffith would constitute a continuing threat to society, and that the mitigating evidence was not sufficient to justify a life sentence. The judge then sentenced Griffith to death. The Texas Court of Criminal Appeals affirmed Griffith's conviction and sentence, Griffith v. State, 983 S.W.2d 282 (Tex.Crim.App.1998), and denied Griffith's petition for a writ of habeas corpus. Ex Parte Griffith, No. 56,987-01 (Tex.Crim.App. Oct. 8, 2003). Griffith's subsequent federal petition for writ of habeas corpus also was denied. Griffith v. Dretke, 2005 WL 2372044, at 9 (S.D.Tex. Sept.27, 2005).
To obtain a COA under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which governs this case, Griffith must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). Thus, he “must demonstrate that reasonable jurists could find the district court's resolution of his constitutional claims debatable or that reasonable jurists could conclude that the issues presented are adequate to deserve encouragement to proceed further.” Martinez v. Dretke, 404 F.3d 878, 884 (5th Cir.2005) (citing Miller-El, 537 U.S. at 336, 123 S.Ct. at 1039). “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims.” Id. Rather, it only “requires an overview of the claims in the habeas petition and a general assessment of their merits.” Id. Nevertheless, “[b]ecause the present case involves the death penalty, any doubts as to whether a COA should issue must be resolved in [the defendant's] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000).
Against these background criteria, we address each of Griffith's issues.
A. The admission of Brantley's expert testimony
Griffith argues that FBI Special Agent Allan Brantley's testimony during the penalty phase of Griffith's trial violated his Eighth and Fourteenth Amendment rights. Griffith contends that, by associating him with homosexual conduct, the State created a substantial danger that the jury would use the testimony to conclude that he would be a future danger simply because they find such conduct morally reprehensible. The district court determined that this claim was procedurally defaulted because Griffith had not presented it to the state courts.
AEDPA requires that a habeas petitioner exhaust available state remedies before raising a claim in a federal habeas petition. See 28 U.S.C. § 2254(b)(1). To exhaust state remedies, a petitioner “must have fairly presented the substance of his claim to the state courts.” Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir.1997). “It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state-law claim was made.” Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) (internal citation omitted). Therefore, the exhaustion requirement is not satisfied “where petitioner advances in federal court an argument based on a legal theory distinct from that relied upon in the state court.” Vela v. Estelle, 708 F.2d 954, 958 n. 5 (5th Cir.1983).
On direct appeal in state court, Griffith relied upon Rule 702 of the Texas Rules of Evidence and Aguilar v. State, 887 S.W.2d 27 (Tex.Crim.App.1994), to argue that Brantley's testimony was not reliable and would not assist the jury in deciding the future dangerousness issue because Brantley could offer no more expertise in deciding the issue than the jury already possessed on its own. This is not the issue Griffith raised in the district court. For the first time, Griffith contended that the State violated his rights because, by associating him with homosexual conduct, the State created a substantial danger that the jury would use the testimony to find Griffith would be a future danger simply because it found such conduct morally reprehensible. We agree with the district court that Griffith did not fairly present the substance of this claim to the state courts, and that it was procedurally defaulted. Reasonable jurists could not debate the district court's resolution of this claim.
Additionally, the district court dismissed Griffith's unexhausted claim with prejudice because it determined that, on the merits, pursuing the claim in the state forum would be futile. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”). Griffith contends that Brantley's testimony invited the jury to impose a death sentence based on lawful conduct, and therefore, in light of Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), violated his Eighth Amendment rights. The district court noted that Brantley never implied that Griffith should be sentenced to death because he was homosexual; rather, Brantley testified that Griffith would present a threat to the prison population because he is a sexual predator who, in the absence of women, would sexually assault weaker fellow inmates. The district court determined that it was the likelihood of sexual assault, not the fact that the victim of the assault may be the same sex, that was the subject of Brantley's testimony. Accordingly, the court found that Griffith's argument was without merit, and thus dismissed it with prejudice.
Brantley's testimony was relevant to the future dangerousness special issue. The Eighth and Fourteenth Amendments require that a jury “must be allowed to consider on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed.” Jurek v. Texas, 428 U.S. 262, 271, 96 S.Ct. 2950, 2956, 49 L.Ed.2d 929 (1976). In Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992), the Supreme Court “emphasiz[ed] that ‘the sentencing authority has always been free to consider a wide range of relevant material.’ ” Id. at 164, 112 S.Ct. at 1097 (citing Payne v. Tennessee, 501 U.S. 808, 820-21, 111 S.Ct. 2597, 2606, 115 L.Ed.2d 720 (1991)). Furthermore, although it is well settled that the State may not limit consideration of any relevant mitigating circumstance, Payne, 501 U.S. at 824, 111 S.Ct. at 2608, neither is the State prevented from rebutting the mitigating evidence of the defendant. Dawson, 503 U.S. at 167, 112 S.Ct. at 1098-99. Thus, because defense experts hypothesized that Griffith would no longer present a future danger to society in prison because he would no longer have access to women, evidence that Griffith would continue to be a sexual predator regardless of the sex of the victim was certainly relevant to the issue of future dangerousness, and the State was entitled to offer such evidence. Furthermore, Brantley testified that Griffith was likely to encounter women and children inside the prison, indicating that, as an incurable sexual predator, he was likely to have some opportunities to assault females and juveniles in addition to weaker male prisoners.
Reasonable jurists could not debate the district court's conclusion that this claim is both unexhausted and meritless, nor could they conclude that this issue is adequate to deserve encouragement to proceed further; therefore, we will not issue a COA. See Martinez, 404 F.3d at 884.
B. Trial court's denial of additional expert assistance
Griffith next argues that the trial court violated his rights when it refused to fund Dr. Theodore Blau as an expert witness. Griffith contends that the court's refusal violated his due process, confrontation, and effective assistance of counsel rights. Griffith asserts that, without the appointment of Dr. Blau, he was unable to cross-examine Brantley or rebut Brantley's testimony with defense expert testimony.
The Texas Court of Criminal Appeals set forth the facts relevant to this issue in its opinion on direct appeal:
[A]ppellant filed a motion on November 1, 1995, requesting the appointment of psychiatrist Mitchell Young and psychologist Ed Friedman. The trial court granted this request, but limited the funds available to $6,000.00. According to Dr. Young's letter to defense counsel, psychologist David Hopkinson would also be helping with the case. On November 22, 1995, appellant filed two additional motions requesting the appointment of “expert assistance.” Each of these motions specifically asked for the appointment of psychologist Dr. Theodore Blau. Appellant urged his motion be granted because Blau was needed to respond to State's expert, FBI Special Agent Dr. Allan Brantley, who was going to use a “threat assessment technique” (apparently similar to a future dangerousness analysis) and “compare the defendant to profiles of certain serial killers and discuss [appellant's] similarity to such individuals.” Blau was apparently needed to show why such testimony was not “scientifically validated” and should, therefore, be held inadmissible. No affidavits or other evidence of need were included with the motion.
In considering the motion prior to trial, the trial judge asked appellant whether, if she granted his motion and appointed Blau, Blau was going to listen to Brantley's testimony. Appellant responded that he did not think so. The judge also asked appellant why one of the psychologists or the psychiatrist that had already been appointed could not rebut Brantley's testimony. Appellant responded that Brantley's testimony was not psychological in nature, but instead was based upon a forensic analysis. Appellant asserted that Blau was necessary because he was one of the people who developed the techniques about which Brantley would be testifying and he was the only non-FBI person counsel was aware of who utilized them. The judge overruled his request.
Prior to Brantley's testimony at punishment, the trial court held a hearing pursuant to Texas Rules of Criminal Evidence 702-705 to determine Brantley's qualifications and the bases for his testimony. Brantley told the judge that he was going to render an opinion on appellant's probability for being a future danger and that he was going to base that opinion upon crime scene photographs, investigative reports, interviews, autopsy photographs, school records, work records, and “everything that [he] could get [his] hands on.” Brantley stated that he was not testifying from a psychological perspective per se, but rather from his experience in the criminal justice field. Brantley also told the judge that he did not intend to use the “profiling” technique of which appellant complained. Appellant challenged Brantley's testimony asserting that it was based on novel methodology and was cumulative because the State had established the same information through the cross-examination of appellant's experts. The judge held the testimony admissible. Griffith v. State, 983 S.W.2d 282, 285-86 (Tex.Crim.App.1998).
1. Due Process
Although the trial court had already appointed three experts to assist Griffith-two psychologists and a psychiatrist-Griffith argues that these experts were insufficient because they did not have a law enforcement background; and the court was obliged to provide funding for a defense expert who was familiar with the basis for Brantley's testimony and could provide rebuttal.
An indigent defendant is entitled to funding for psychiatric expert assistance when he “demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial.” Ake v. Oklahoma, 470 U.S. 68, 82-83 105 S.Ct. 1087, 1097, 84 L.Ed.2d 53 (1985). This circuit has extended this rule to apply to the assistance of nonpsychiatric experts where the evidence at issue is “both critical to the conviction and subject to varying expert opinion.” Yohey v. Collins, 985 F.2d 222, 227 (5th Cir.1993) (internal quotation marks omitted). However, an indigent defendant does not have an automatic right to expert assistance upon demand. See id. Rather, he must “establish a reasonable probability that the requested experts would have been of assistance to the defense and that denial of such expert assistance resulted in a fundamentally unfair trial.” Id.
The district court determined that Dr. Blau's assistance was not necessary because 1) the specific issue in which Blau is an expert, “profiling,” did not come up in Brantley's testimony; and 2) the other defense experts could adequately rebut Brantley's testimony. Accordingly, essentially the same state court rulings were not unreasonable applications of clearly established federal law.
Griffith asserts that Dr. Blau was needed to combat Brantley's testimony involving a “profiling” technique. However, Brantley informed the trial court, prior to his testimony, that he would not be presenting testimony based upon the “profiling” technique, and the judge determined that Brantley did not rely upon profiling in forming his opinion. Additionally, Griffith argues that his three appointed experts could not adequately assist with the cross-examination or rebuttal of Brantley's testimony. Although Griffith complained that his experts were unfamiliar with Brantley's techniques, Brantley's opinion of future dangerousness was based upon his evaluation of the evidence. The defense experts also provided future dangerousness testimony based upon their evaluation of Griffith and the evidence. The experts' frames of reference and methodologies may have differed, but all of them relied to some extent on Griffith's prior conduct to predict his future propensity for violence; therefore, it is unclear why Griffith's expert testimony could not provide assistance in rebutting Brantley's testimony.
Finally, Griffith has failed to establish a reasonable probability that the court's denial of Dr. Blau's assistance resulted in a fundamentally unfair trial. See Yohey, 985 F.2d at 227. The trial court provided Griffith three experts; the State countered in rebuttal with one expert. The fact that Griffith did not have a fourth expert to rebut Brantley's testimony does not render his trial fundamentally unfair, given that three of the four experts who testified agreed that Griffith would not be a future danger in prison. Additionally, the State's case for future dangerousness, even without Brantley, was extremely strong: The facts of the crime were horrific and brutal; Griffith's former supervisor testified that Griffith had a bad reputation for being a peaceful and law abiding citizen, was prone to spontaneous eruptions, and was terminated from his job for domestic abuse; Griffith threatened and physically abused wives and girlfriends; and Griffith sexually assaulted one woman and shot another during the course of prior robberies.
Griffith next contends that the trial court's denial of funds for the appointment of Dr. Blau violated his Sixth Amendment right to confront Brantley. “The Confrontation Clause of the Sixth Amendment guarantees the right of an accused in a criminal prosecution ‘to be confronted with the witnesses against him.’ ” Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986)(quoting U.S. Const. amend. VI). This right includes the right to cross-examination, but “trial judges retain wide latitude ... to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.” Id. at 679, 106 S.Ct. at 1435.
This issue is meritless. The trial court did not prohibit cross-examination or inquiry into Brantley's techniques or methods for arriving at his conclusion. The record reflects that Griffith's counsel cross-examined Brantley thoroughly. The district court also determined, as noted supra, that Dr. Blau “had nothing relevant to offer that could not be presented through the testimony of Griffith's other ... experts.” Griffith v. Dretke, 2005 WL 2372044, at *9 (S.D.Tex. Sept.27, 2005).
In light of the lack of relevance of Dr. Blau's proposed testimony on “profiling,” Griffith's admission that Dr. Blau was not going to be present during Brantley's cross-examination, and the extensiveness of the cross-examination of Brantley, reasonable jurists could not debate the district court's conclusion that Griffith's Sixth Amendment right to confront Brantley was not violated by the trial court's denial of funds for the appointment of Dr. Blau.
3. Effective Assistance
Griffith next attempts to reargue his expert assistance claim under the guise of a Strickland claim. Griffith contends that the trial court's refusal to appoint Dr. Blau rendered defense counsel ineffective and prejudiced Griffith because counsel was unable to adequately prepare for the punishment phase or cross-examine Brantley.
To establish a violation of the Sixth Amendment right to counsel, Griffith must show that his counsel's representation was deficient, and the deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The district court found that Griffith could not meet Strickland's requirements for his ineffective assistance of counsel claim because Dr. Blau's testimony presented nothing relevant that Griffith's other psychological experts could not address. Griffith, 2005 WL 2372044, at *9.
Although Griffith claims ineffective assistance of counsel, he sets forth no act or omission on the part of trial counsel that rendered his assistance ineffective. In fact, his counsel made every effort to obtain Dr. Blau's assistance and to prevent or discredit Brantley's testimony. Counsel moved twice for the appointment of Dr. Blau, setting forth reasons why his assistance was necessary; counsel objected to the admission of Brantley's testimony in a hearing pursuant to Rules 702-05 of the Texas Rules of Criminal Evidence; and counsel extensively cross-examined Brantley. Therefore, in the absence of any deficiency by counsel, or any prejudice caused by a deficiency, Griffith cannot make a prima facie case under Strickland. Reasonable jurists could not debate the district court's resolution of this claim. No COA is appropriate for Griffith's claims relating to the trial court's refusal to appoint Dr. Blau as an expert.
C. Billy Ringer Jr.'s victim impact testimony
Finally, Griffith argues that the victim impact testimony of Billy Ringer, Jr., McCormick's brother, violated the Due Process Clause. Specifically, Griffith objects to Ringer, Jr.'s statement that the victim's death caused their father, Billy Ringer, Sr., to lose his will to live; he believes the jurors punished him for the death of Ringer, Sr. The Supreme Court has held that the Eighth Amendment does not bar the admission of victim impact testimony. Payne, 501 U.S. at 827, 111 S.Ct. at 2609. However, if the evidence “is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.” Id. at 824, 111 S.Ct. at 2608.
Griffith contends that Ringer, Jr.'s testimony was false and therefore unduly prejudicial. Griffith's only support for his proposition is citations to medical journals for generic examples of the typical low survival rates for people with the type of cancer Ringer, Sr. suffered from. Ringer, Jr., however, testified simply that his father showed progress before Deborah's murder but stopped eating on news of the murder and died shortly thereafter. The district court found that there was no evidence that Ringer, Jr.'s testimony was false or misleading, and therefore determined that it was admissible under Payne. Griffith, 2005 WL 2372044, at *9.
Griffith also contends that after hearing Ringer, Jr.'s testimony, the jurors punished him not only for the death of McCormick, but for the death of her father as well. But as the district court held, Ringer, Jr.'s testimony was not so emotionally charged as to make it inadmissible under Payne. The case presented by the prosecution supports the district court's conclusion. Ringer, Jr. was the only witness to provide victim impact testimony. Furthermore, the prosecution made only one passing reference to that testimony in closing arguments, focusing instead on the brutal facts of the crime, Griffith's brutal attacks on other women, the numerous threats and physical abuse Griffith inflicted upon his wives and girlfriends, the other evidence admitted at punishment, and the jury charge. Reasonable jurists could not debate the district court's resolution of this claim, and could not conclude that the issues presented are adequate to deserve encouragement to proceed further; thus we will not grant a COA. See Martinez, 404 F.3d at 884.
For the reasons discussed above, we deny Griffith's request for a COA on all claims and as such lack jurisdiction to review the district court's denial of habeas relief on these claims. See Miller-El, 537 U.S. at 335-36, 123 S.Ct. at 1039. COA DENIED.