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Russell v. Davis

United States District Court, S.D. Texas, Houston Division

July 23, 2019

PETE RUSSELL, Petitioner,
v.
LORIE DAVIS, Respondent.

          MEMORANDUM AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS

          Kenneth M. Hoyt, United States District Judge

         Pete Russell, Jr., has been on Texas' death row since 2003 for the capital murder of Tanjala Brewer. After unsuccessfully challenging his conviction and sentence on state appellate and habeas review, Russell petitions for federal habeas corpus relief. (Docket Entry No. 37). Respondent Lorie Davis has filed an answer and moved for summary judgment. (Docket Entry No. 47). Traditional limitations on federal review of state court judgments guide adjudication of Russell's petition. In particular, the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) defines both the scope and nature of this Court's review. Having reviewed the record, the pleadings, and the applicable law, the Court will deny Russell's federal petition. The Court will not certify any issue for appellate review.

         FACTUAL BACKGROUND

         On August 13, 2001, family members found the body of forty-year-old Tanjala Brewer lying on the floor of her kitchen. Her throat had been slit and blood pooled by her neck. Her body had been posed in a spread-eagle position with her skirt raised. A crack pipe had been placed in her hand.

         When first responders entered they discovered the gas on and lit candles throughout the house. Bloody drag marks from the bedroom to the kitchen suggested that her body had been moved. Blood pooled in Ms. Brewer's bed and was spattered across the headboard. A machete was lying nearby. Someone had apparently written on the bedroom mirror with blood. The words: “She is a devil. I am God” had also been scrawled across the closet doors in blood.

         An autopsy counted twenty-three sharp-force injuries on Ms. Brewer's hands, neck, and torso. One stab wound had penetrated at least seven inches into her left breast. Hemorrhaging in her eye suggested that she had suffered asphyxiation. Footprints indicated that the assailant had stomped on her legs and stomach.

         I. The Prosecution

         The police quickly identified Russell as a suspect. A witness, in fact, had seen Russell watching first responders from across the street as they investigated the grizzly scene. The police located Russell a few days later at a motel. When the police entered his room, a pornographic movie was playing on the television and the bathroom door was closed. The police opened the door to find Russell in the bathtub, foaming at the mouth and holding a bottle of rat poison.

         The police subsequently recorded two oral statements, both of which served as the basis for charging Russell with capital murder. Under Texas law, “the gravamen of capital murder is intentionally (or knowingly) causing a death, plus any one of various different types of aggravating elements.” Gardner v. State, 306 S.W.3d 274, 302 (Tex. Crim. App. 2009). In the subsequent trial, the defense did not dispute that Russell had murdered Ms. Brewer.[1] In fact, trial counsel told jurors in closing: “From day one, we have never tried to hide the ball from you. The issue in this case is not who did it. It has never been who did it. It has always been why.” Tr. Vol. 18 at 17. The defense focused its efforts on disproving the aggravator that made the killing a capital crime.

         The State of Texas charged Russell with capital murder “in the course of committing or attempting to commit . . . obstruction or retaliation” under Tex. Penal Code § 19.03(a)(2). To secure a conviction, the State had to prove that Russell murdered the victim in retaliation, that is, he “intentionally or knowingly harm[ed] or threaten[ed] to harm another . . .: (1) in retaliation for or on account of the service or status of another as a . . . person who has reported or who the actor knows intends to report the occurrence of a crime; or . . . to prevent or delay the service of another as a . . . person who has reported or who the actor knows intends to report the occurrence of a crime.” Tex. Penal Code § 36.06(a); Clerk's Record at 350. The State of Texas argued that Russell killed Ms. Brewer because she had informed the police of his drug dealing; the defense argued that he slashed and stabbed her in a jealous rage. Both versions of the murder sprang from statements Russell made to the police in the hospital.

         II. Russell's Statements

         Houston Police Department Sergeant Hal Kennedy arrested Russell after finding him in the motel. Tr. Vol. 17 at 11-14. Sergeant Kennedy obtained an audiotaped statement in the hospital emergency room. Russell waived his rights and agreed to speak with the police officers. Tr. Vol. 17 at 13-14. Sergeant Kennedy asked Russell to tell “[i]n [his] own words . . . what happened and why [he] did what [he] did.” Russell answered:

Russell: She . . . she set-she set me up -- she set me up with the police.
Sgt. Kennedy: Who is she?
Russell: Her name is [Tanjala] Bull.
Sgt. Kennedy: Okay and how did she set you up with the police?
Russell: She brought an undercover to my house saying it was her nephew, that her nephew wanted to buy some drugs, so she got out the truck, and I took her home, and about fifteen or thirty minutes later her nephew, which is the undercover, call me and I met him up there at Family Dollar -- McDonald's and that's when I got busted.
Sgt. Kennedy: Okay, but wasn't she doing some other things to you too? Wasn't she like . . .? Were y'all going together. Were y'all hanging out together?
Russell: Right. Right we use to go together.
. . .
Russell: We used to go together off of . . . I met her on the streets. I tried to take her off drugs. She was stealing from her. She had a lot of debts. I was paying them off and we were together about a year -year and a half. And then you know what I'm saying we broke up and that's when she set me up with the laws.
Sgt. Kennedy: But why did she set you up just to be mean? Or was there a purpose for it? Or . . .?
Russell: All I know cause I basically knows I left her alone and she basically had anywhere to go basically. You know.
Sgt. Kennedy: Okay ah now tell me how it is - how it is that she got killed whatever.
Russell: Basically ah I went over her house and you know since she let me in and she was smoking some drugs whatever and you know we were just talking whatever you know about the things we used to do and I was basically asking her “Why did you set me up?” “Why did you set me up?” and she kept on denying it talking bout I ain't set you up. I ain't set you up. Saying if you would have stayed with me, none of this would have happened whatever. And basically you know what I'm saying I just . . . I just went off. I just snapped.
Sgt. Kennedy: Had you been doing any drugs Pete?
Russell: No sir.
Sgt. Kennedy: Did you thing [sic] it would ever happen? Or you just . . . you just. . . why don't you tell me what happened.
Russell: It just . . . I just happened all the while she was smokin you know what I'm saying and the last thing she said “If you would have stayed with me it would have never happened. And the next thing I know I just snapped like that you know there was a knife on the lit dresser right there and I just grabbed it and jumped on her right there.
Sgt. Kennedy: What kind of knife was it Was it . . .?
Russell: A lil . . . A lil kitchen knife.
Sgt. Kennedy: What color . . . what color was the handle?
Russell: Black.
Sgt. Kennedy: Was that (inaudible) machete (inaudible) . . . Anybody use the machete? Or was that your her machete or your machete (inaudible)?
Russell: That was her machete I remember it being in her house..
Sgt. Kennedy: But did it have anything to do with all this?
Russell: Naw.
Sgt. Kennedy: What happened after - after she got killed? What did you do?
Russell: I basically (ah) inaudible we tussled you know what I'm saying to the ah to the kitchen or whatever.
Sgt. Kennedy: Okay.
Russell: And Ah you know ah you know I was talking to her while she was still you know living or come dead whatever I don't know.
Sgt. Kennedy: What you say to her?
Russell: Know what I'm saying you know nobody didn't you know what I'm saying make me do it. Nobody to set me up and ah (inaudible) and ah I had ah turned on ah in the bedroom you know what I'm saying was lighting a cigarette . . .

Tr. Vol. 21, SX 1A at 2-4. The next morning Russell gave another brief statement to Sgt. Kennedy after he had been transferred to jail:

Sgt. Kennedy: Okay. Now what else would you like to tell us about this thing?
Russell: I really like to say though that I'm sorry and that I really loved [the victim] and if ah I could do it all over again, It wouldn't have happened.
Sgt. Kennedy: You didn't mean to kill her?
Russell: No sir.
Sgt. Kennedy: You lost your temper didn't you?
Russell: Yes sir I just snapped and like a say I loved her, I loved the family you know what I'm saying the son and everything and If I had the chance to do it over again, I wouldn't have done it. I want her family to know that I'm sorry and her friends you know that I'm sorry and that ah I would always love her and everything.

Tr. Vol. 22, SX 175A. Russell's statements provided the basis for the case presented by both the prosecution and the defense.

         III. The Prosecution's Case

         The State placed Russell's statement into a broader story involving Ms. Brewer's role in his conviction for selling narcotics to a police officer. Ms. Brewer was a paid confidential informant for the Houston Police Department. Ms. Brewer and Russell dated for about a year but had ended their relationship in early 2001 when he met another woman, Karen Foster. Russell and Ms. Brewer, however, continued to see each other after their romantic relationship ended.

         On May 2, 2001, Ms. Brewer introduced Russell to undercover narcotics officer D. K. Bush. She told Russell that Officer Bush was her nephew and that he wanted to buy crack cocaine. A few hours later, Officer Bush called Russell and arranged to buy drugs. When Russell and Ms. Foster made the delivery, the police arrested both for delivery of a controlled substance.

         Russell faced serious prison time because he had prior felony convictions. The parties dispute at what point Russell became aware that Ms. Brewer set him up. The State argued that Russell knew that Ms. Brewer was a confidential informant well before he killed her. While out on bond, Russell accompanied her to pick up payment for her services in an unrelated case. Officer Bush was surprised to see Ms. Brewer with Russell; he had warned her to keep secret her status as a confidential informant. Russell told a friend that “a lot of people in the neighborhood told him” that Ms. Brewer had turned him in. Tr. Vol. 16 at 86.

         As Russell's sentencing approached, he displayed animosity toward his former girlfriend. On August 3, 2001, Ms. Brewer received a handwritten letter from Russell which stated, in part, “I cannot trust you no more. You are evil and out to hurt me. . . . I don't need you no more. So go back to your X X X X X [sic].” Tr. Vol. 16 at 48. Ms. Brewer told a friend that Russell scared her.

         Russell pleaded guilty on August 9, 2001, to delivery of a controlled substance. He received a ten-year sentence. The judge gave him until September 7, 2001, to report to serve his sentence. Ms. Foster, though, remained in custody. Tr. Vol. 16 at 174.

         Around this same time, Ms. Brewer began dating Wilbert Reed. Shortly before midnight on August 12, 2001, Mr. Reed stopped by Ms. Brewer's house on his way to work a night shift. They had sexual intercourse. Mr. Reed called Ms. Brewer repeatedly during his shift, but her phone was busy. Mr. Reed was angry and assumed that she had taken her phone off the hook.

         Sometime after midnight, Russell came to Ms. Brewer's house. According to the State's version of events, Russell was not a jealous lover because of the victim's relationship with other men, but an angry criminal convict because of the victim's relationship with the police. The State relied on Russell's statement to argue that, in a rage of anger for his narcotics conviction, Russell repeatedly stabbed the victim. The prosecution premised its argument on how Russell had described the killing. Russell said that he confronted the victim with having “set him up, ” and then he “just snapped” when she told him: “if you would have stayed with me, none of this would have happened . . . .”

         Russell then dragged her body to the kitchen and placed it close to the stove. After posing the corpse, Russell turned on the gas and lit candles. The State argued that Russell hoped the house would catch on fire. The State argued that the evidence proved retaliation, not jealousy, drove Russell to kill.

         IV. The Defense's Case

         Trial counsel[2] elected to proceed with a defense also based on Russell's statement to the police. In doing so, trial counsel did not dispute Russell's identity as the killer. Instead, counsel relied on ambiguity in Russell's statement to argue that, because he did not attack Mr. Brewer in retaliation for turning him in, this was not a capital crime. Trial counsel summarized this theory in his state habeas affidavit:

In order to rebut the element of retaliation, the defense theory of the case was that the defendant and [Tanjala] Brewer had been in a relationship but that Brewer, who used cocaine, was also involved with other men. The night of the murder, the defendant and Brewer argued with each other and the defendant snapped when Brewer pulled a knife. As the defense said in our opening statement, this was not a case of retaliation, it was a case of jilted and unfaithful love. The defendant testified to this at guilt-innocence - that he snapped when Brewer told him she had sex with another man.

         State Habeas Record at 510. As trial counsel told jurors in closing arguments: “The issue of this case is not who did it. It has never been who did it. It has always been why. . .. And I think when you bring it all down, it comes down to the issues of jealousy.” Tr. Vol. 18 at 17-18.

         The defense, however, faced a difficult challenge in convincing jurors that the murder was the impassioned act of a rejected lover. The strongest support for the defense's case came from Russell himself. In addition to relying on his statement to the police, the defense called Russell as a witness to describe why he killed Ms. Brewer.

         Consistent with the defense's chosen strategy, Russell testified that he killed Ms. Brewer in a jealous rage for flaunting another relationship in his face as she attacked him with a knife. Russell explained that he and Ms. Brewer had been dating for a “a year, a year and a half” during which time he came to trust her “very much.” Tr. Vol. 17 at 89. The relationship “broke down” after Russell “got busted” for narcotics. Tr. Vol. 17 at 90. Russell claimed that, before that night, he did not know that Ms. Brewer had set him up. Tr. Vol. 17 at 117.

         Russell testified that he was jealous because he thought Ms. Brewer had a relationship with Donald Ray Hawkins, a man from whom she bought drugs. Tr. Vol. 17 at 93-94. Russell felt angry about their relationship, especially after he found her alone in a motel room with Mr. Hawkins. Tr. Vol. 17 at 95. Russell did not know that Ms. Brewer was also dating Wilbert Reed, but he was suspicious about their relationship. Tr. Vol. 17 at 100.

         Russell said he went to Ms. Brewer's house because she wanted him to buy her some drugs. Russell took with him a diamond ring which he had purchased with the intent of proposing marriage to her. Tr. Vol. 17 at 96-98. Soon after Russell arrived, however, they began arguing when Ms. Brewer said she was going to purchase drugs from Mr. Hawkins. As the argument intensified, Russell said that Ms. Brewer picked up a knife and confessed to relations with Mr. Hawkins. Tr. Vol 17 at 104-06, 118-119. As she came toward him, Russell became enraged, picked up a knife, and began stabbing Ms. Brewer. Tr. Vol. 17 at 106.

         Russell also explained some of the bizarre elements of the crime. Russell said that, after killing Ms. Brewer he fainted and, when he came to, heard a voice saying “Tell them who I am, tell whom I am.” Tr. Vol. 17 at 108, 110. He then wrote with the victim's blood on the wall. Tr. Vol. 17 at 108, 110-111. He testified that he left symbols in the crime scene: he positioned the victim's body and lit candles with the natural gas running to represent the elements of the universe. Tr. Vol. 17 at 111-13. Russell admitted that he stepped on Ms. ...


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