Green v. Davis
| Decision Date | 27 September 2019 |
| Docket Number | Civil Action No. 3:15-CV-2197-M |
| Citation | 414 F.Supp.3d 892 |
| Parties | Gary GREEN, TDCJ No. 999561, Petitioner, v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent |
| Court | U.S. District Court — Northern District of Texas |
Michael Mowla, Michael Mowla PLLC, Cedar Hill, TX, for Petitioner.
Ellen Stewart-Klein, Edward L. Marshall, Office of the Texas Attorney General, Austin, TX, for Respondent.
Petitioner Gary Green ("Petitioner") filed this federal habeas corpus action pursuant to 28 U.S.C. § 2254, challenging his 2010 Dallas County conviction for capital murder and sentence of death. For the reasons discussed below, Petitioner is not entitled to federal habeas corpus relief or a Certificate of Appealability.
On September 21, 2009, after Petitioner wrote a letter to his wife Lovetta Armstead, expressing his anger with her and explaining his plan to murder her and her three children, and then to take his own life. He then fatally stabbed Lovetta, and asphyxiated and drowned her six-year-old daughter, Jazzmen Montgomery. Petitioner cleaned himself, changed clothes, and went to church to pick up Lovetta's sons, Petitioner drove the two boys home, where he stabbed nine-year old Jarrett Armstead in the stomach and attempted to stab twelve-year-old Jerome Armstead. The boys convinced Petitioner not to kill them. After Petitioner left the scene in their mother's vehicle, the boys went next door to alert a neighbor. Jarrett received emergency medical treatment and survived his wound
. Jarrett and Jerome testified at trial that Petitioner confessed to them that he killed their mother and sister. Petitioner turned himself in to authorities and gave a videotaped confession, which was admitted into evidence at trial as State Exhibit 91. He confessed he stabbed Lovetta about thirty times and drowned Jazzmen.
On October 30, 2009, a Dallas County grand jury indicted Petitioner in cause no. F09-59380-S, on a single count of capital murder – that he intentionally and knowingly caused the death of Lovetta Armstead by fatally stabbing her with a knife during the same criminal transaction in which he intentionally and knowingly caused the death of Jazzmen Montgomery by asphyxia
and drowning.2
The guilt-innocence phase of Petitioner's capital murder trial commenced on October 26, 2010.
In addition to viewing Petitioner's videotaped confession, the jury heard the testimony of Jarrett and Jerome Armstead. Jerome testified that on the evening of the murders, Petitioner entered the church dressed in a black dress shirt, black slacks, and black dress shoes, and waited for them. Petitioner told them their mother was out clubbing with her friend, and that their sister was staying with their grandmother. Jerome noticed nothing unusual about Petitioner's behavior. When they arrived at home, Petitioner informed them that he had spoken with their mother, and she did not want him to take them to their grandmother's home. Petitioner told Jerome to take a shower or a bath. Jerome went to take a bath, and Jarrett went to their bedroom. While in the bath tub, Jerome heard Jarrett screaming, "help, he's trying to kill me." Jerome got out of the tub and grabbed his clothes. Petitioner entered the bathroom, holding the screaming Jarrett by the collar. Jerome jumped back into the tub. Petitioner threw Jarrett on to the toilet and said, "give me some reasons why I shouldn't kill y'all." Jarrett said, "we're too young to die." Petitioner then stabbed Jarrett and told him to shut up. Petitioner tried to stab Jerome but missed. Petitioner then said, "come on, I got to show y'all something." Holding a knife to Jarrett's neck, Petitioner said he would not kill them and led them to their mother's room, where he unlocked their mother's bedroom door and opened it. When they saw their mother lying on the floor, not breathing, both boys fell to their knees crying. The boys glanced in the bathroom and saw their sister's body lying against the tub with her hands duct taped behind her back and blood all over the bathroom. Their sister did not appear to be breathing. Petitioner told Jarrett to get him some clothes and instructed Jerome to get some pills on the dresser. Petitioner threw their mother's cell phone on the bed and told them to call the police once he left. When Jerome attempted to dial the phone, Petitioner ordered him to wait until he left. Petitioner said he had killed their mother and sister, and that he loved their mother to death. Petitioner made both boys give him a hug before he left. Just before he drove away, Petitioner said he was going to kill himself. The boys ran next door to alert the neighbor. Jarrett Armstead's trial testimony largely mirrored that of his older brother. 46 Tr. 98-148.
The jury heard testimony from the medical examiners who performed the autopsies on Lovetta and Jazzmen. Dr. Jill Urban, the forensic pathologist who performed the autopsy on Lovetta, testified that Lovetta suffered thirty stab wounds
. Her body also showed signs of asphyxia, including a bruise to the side of the neck that could have been made by fingers, petechiae to the surface of the eye, and hemorrhage around the cartilage in the larynx. The manner of Lovetta's death was homicide, and the cause of her death was the thirty stab wounds, none of which would have been fatal individually. Dr. Urban opined that the stab wounds would have been sufficient to cause death without Lovetta's other injuries. 47 Tr. 97-109.
Dr. Meredith Lann, who performed the autopsy on Jazzmen, testified Jazzmen's ankles and wrists were bound with duct tape, and there was adhesive residue on Jazzmen's left cheek. There was a hemorrhage to the top of Jazzmen's skull. Petechiae
were present in the eyelids, overlying the thymus (lower neck), the lining of the lungs, and the epiglottis, A small tear and small scrapes were present on the lower left lip. There was a small hemorrhage of the deep muscle on the right side of the neck as well as a hemorrhage in the back left shoulder muscles. Jazzmen's lungs showed signs of pulmonary edema, which the medical examiner testified was likely from a lack of oxygen. A pink frothy substance was present in the nose and mouth, suggesting pulmonary edema and a reaction to hypoxia. A telephone cord was also wrapped around the ankles and tied in a knot. Dr. Lann opined that Jazzmen was asphyxiated to death, her death was not instantaneous, and her injuries were consistent with Petitioner's confession. 47 Tr. 110-22.
Lovetta's mother, Margarita Brooks, identified both her daughter's handwriting and Petitioner's handwriting on the notes they wrote and apparently exchanged on the day of the murders. 46 Tr. 36-59. The neighbor to whose home Jarrett and Jerome went after Petitioner left the scene, Latasha Bradfield, testified she went next door and observed Lovetta's and Jazzmen's bloodied bodies. 46 Tr. 59-99. Dr. Joseph Martinez, an emergency room physician who treated Petitioner for his injuries after he turned himself in, testified that Petitioner confessed that he had stabbed his wife with a kitchen knife. 46 Tr. 89-98. The police detective who took Petitioner's videotaped confession testified he gave Petitioner Miranda warnings before taking the statement, and he identified the video recording of Petitioner's confession that was admitted into evidence and played in open court for the jury. 47 Tr. 25-77. Several other law enforcement officers who either processed the crime scene or accompanied Petitioner to the hospital to obtain medical treatment for the superficial injuries he sustained in his confrontation with Lovetta testified as to what they observed at the crime scene or following Petitioner's arrest. The defense presented no witnesses.
On October 28, 2010, the jury returned its verdict, finding Petitioner guilty of capital murder as charged in the indictment.3 48 Tr. 33-34.
The punishment phase of Petitioner's capital murder trial commenced on November 1, 2010.
The prosecution introduced evidence showing Petitioner had pleaded guilty in Dallas County in 1989 to a charge of aggravated assault and in 1990 to a charge of aggravated robbery. 49 Tr. 6-8 (State Exhibits 140-41). A Dallas police officer who arrested Petitioner in 1989 for possession with intent to distribute crack cocaine testified about his pursuit and arrest of Petitioner. 49 Tr. 24-30. The victim of Petitioner's 1989 aggravated assault testified regarding the circumstances of the assault and her injuries, which required her to be hospitalized for a week. 49 Tr. 30-54. A Texas Department of Criminal Justice ("TDCJ") Parole Division case worker testified he interviewed Petitioner in prison in 1992; during that interview, Petitioner stated he sold crack cocaine for about six months to see if he could get away with it, and committed an armed robbery of the grocery store where he had been employed as an act of revenge for his termination. 49 Tr. 76-84. Belinda Lacy, a former correctional officer at a TDCJ facility where Petitioner was incarcerated, testified Petitioner married her and then abandoned her shortly after she helped convince state parole officials to release him. 49 Tr. 103-16. Shulonda Ransom, the mother of two of Petitioner's children, testified to Petitioner's propensity to anger easily and to choke her to the point of unconsciousness. 49 Tr. 121-36. A former correctional officer testified about an incident during Petitioner's incarceration in which Petitioner threw a food tray and struck him. 50 Tr. 6-24. Petitioner's former supervisor at the grocery store that Petitioner robbed testified regarding the extreme violence, including firing shots...
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