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Mario S. MARQUEZ

 
 
 
 
 

 

 

 

 
 
 
Classification: Homicide
Characteristics: Mentally retarded - Rape
Number of victims: 2
Date of murders: January 27, 1984
Date of birth: August 22, 1958
Victims profile: Rebecca, 18 (his estranged wife) and Rachel Gutierrez, 14 (his wife's niece)
Method of murder: Strangulation
Location: Bexar County, Texas, USA
Status: Executed by lethal injection in Texas on January 17, 1995
 
 
 
 
 
 

clemency petition

 
 
 
 
 
 

 

Date of Execution:
January 17, 1995
Offender:
Marquez, Mario #776
Last Statement:
Thank you for being my Lord Jesus and Savior and I am ready to come home. Amen.

 

Mental Retardation and the Death Penalty

Dudley Sharp, Justice For All,

October 18, 2001

During Texas' last legislative session, in the spring of 2001, supporters of HB236, a bill to ban execution of the mentally retarded, held a public rally at the capital in Austin and invoked the case of Mario Marquez, executed in 1995, as one of those 6 cases and stated that Marquez was exactly that kind of murderer which HB236 was designed to protect. Supporters of that bill could not have provided a better case for Texans to oppose this bill and for Governor Perry to veto it.

Marquez was angry that his wife was leaving him, so, in retaliation, he murdered his wife's 14-year-old niece, Rachel and his 18-year-old estranged wife, Rebecca. They were beaten and raped, orally, anally and vaginally, then strangled to death. Rebecca was sodomized with a large perfume bottle which was forced into her anus. Blood loss from both victims indicated that they were alive during these acts. Marquez then waited for his mother-in-law, to return home, beat and sexually assaulted her -- then presented the two brutalized bodies of the two girls to her -- as trophies for his anger.

There is little doubt but that he was also going to murder his mother-in-law, but Marquez' continued assault on her was interrupted and he fled from the scene.

Marquez's performance IQ was measured at 75 -- 16 points above the minimum number required to establish that arbitrary "mental retardation" standard, using the plus or minus 10 point variable. And Marquez's life and crimes, spanning many years, fully support that Marquez knew exactly what he was doing.

When given the facts of specific crimes, like Marquez's, many would agree with the jury -- that such mentally competent, guilty capital murderers should face the death penalty, as a sentencing option.

 
 

Texas Executes Man in Slaying Of His Niece

The New York Times

January 17, 1995

Texas early today put to death a man who raped and strangled his 14-year-old niece but whose lawyers said should be spared because he is retarded.

The man, Mario Marquez, 36, died by injection just after midnight. A sixth-grade dropout with an I.Q. of 65, he was also accused of raping and strangling his estranged wife in the attack but was never tried for the crime.

Mr. Marquez's lawyers argued that retarded people should not be put to death. "The public in the country overwhelmingly does not want mentally retarded people to be executed," one lawyer, Robert McGlasson, said. "We believe there is plenty of evidence now to show that evolution has come about."

Edwin Springer, who prosecuted Mr. Marquez, argued that the defendant was not "so mentally retarded he didn't know right from wrong."

"He's a very dangerous individual," Mr. Springer said.

The United States Supreme Court rejected the appeal on Monday without comment and without any recorded dissent.

In 1989, the Supreme Court, in a 5-to-4 decision, said the Constitution's ban on cruel and unusual punishment does not prohibit the execution of juveniles as young as 16 or adults with the reasoning capacity of children.

At least four other convicted killers who were considered retarded or contended that they were retarded have been put to death in recent years in Texas, which has executed 86 men since 1982.

Defense lawyers argued that Mr. Marquez was beaten by a father who thought he was "slow." Once abandoned to the streets at age 12, he turned to sniffing paint and taking drugs.

He was arrested in the 1984 slayings of his wife, Rebecca, 19, and her niece, Rachel Gutierrez. Testimony indicated that Mr. Marquez killed his estranged wife because he believed she had been unfaithful. The bodies were found at the Gutierrez home in a San Antonio housing project, where Mrs. Marquez was living with her mother.

 
 

Argument Escalates on Executing Retarded

By Raymond Bonnet - The New York Times

July 23, 2001

WASHINGTON, July 22 - Mario Marquez did not deny raping and murdering his 18-year-old wife and her 14-year-old niece, the crimes for which he was convicted in 1984 and executed 11 years later.

But on appeal, Mr. Marquez's lawyers presented evidence that he was mentally retarded and suffered from severe brain damage, the result of beatings by his father, with sticks, whips and clubs. When he was 25, Mr. Marquez had difficulty counting money and thought the five largest cities in the United States were Montana, Oregon, Wisconsin, New York and New Orleans, according to a test given to him by a state-appointed psychologist.

The State of Texas did not dispute any of this. A Texas district court, in ruling on one of Mr. Marquez's appeals, found that he was "a damaged child functioning in an adult life" and that he was "mildly mentally retarded," with an intelligence quotient of 65 to 70, compared with a normal I.Q. of about 100.

Mr. Marquez was one of six retarded inmates executed since 1990 by Texas, according to the Death Penalty Information Center, a nonprofit organization in Washington. Alabama, Florida, Louisiana and Virginia each executed four retarded inmates and South Carolina executed three, according to the center. In all, the center lists 35 such cases in 12 states.

The debate about whether any mentally retarded person should be executed has intensified recently, as state governments and the Supreme Court are addressing the issue.

In June, Gov. Rick Perry of Texas went against the trend in other states when he vetoed a bill that would have barred the execution of the mentally retarded. Mr. Perry denied that Texas had executed anyone who was mentally retarded.

This month, when he signed legislation that prohibits the execution of the mentally retarded, Gov. Bob Holden of Missouri said, "I realize this is now a national issue since the governor of Texas refused to sign a similar bill, but I believe this is the right thing to do." Two weeks later, Connecticut
enacted a similar law.

Of the 38 states with the death penalty, 17 prohibit the execution of the mentally retarded, as do the federal government and the District of Columbia.

In the fall, the Supreme Court will hear arguments from the lawyers who say that executing someone who is mentally retarded is cruel and unusual punishment, in violation of the Eighth Amendment. The death row inmate in the case is Ernest P. McCarver, who was convicted in North Carolina for the murder of a fellow cafeteria worker. Mr. McCarver has an I.Q. of 67. In general terms, people are considered mentally retarded if they have I.Q.'s below 70, have difficulty performing everyday tasks and have shown signs of the condition before age 18.

In 1989, when only two states barred the execution of the retarded, the Supreme Court ruled, in the case of Johnny Paul Penry, a Texas death row inmate whose I.Q. is 51 to 63, that the Eighth Amendment does not proscribe execution of the mentally retarded. But the court said procedural flaws in Mr. Penry's case precluded his execution, and this year, after he was sentenced to death again, the court again spared him, ruling that the jury had not been properly instructed on how to consider the evidence of Mr. Penry's retardation when deciding on the sentence.

One month after the 1989 decision in the Penry case, Alabama executed Horace Dunkins, who had been convicted of raping and murdering a 26-year-old mother of four. Mr. Dunkins had an I.Q. of 69 and the reasoning skills of a 12-year-old, but this evidence was never presented to a jury. After one juror learned of it later, she signed an affidavit saying she never would have voted for the death penalty had she known of Mr. Dunkins's mental retardation.

The first state to pass a law to protect the mentally retarded was Georgia, largely because of a public outcry following the execution in 1988 of Jerome Bowden, who was convicted of robbing and killing a 55-year old woman and severely beating her mother. Mr. Bowden's school records showed he had an I.Q. of 59. As an adult he could not count to 10, and he worked mopping floors at Goodwill Industries, in a program for the mentally retarded.

At trial, Mr. Bowden's lawyers presented none of the evidence of his mental retardation to the jury. When his appellate lawyers, who found the school records and other evidence of retardation, tried to raise the issue in federal court, they were barred from doing so, because the issue had not been
raised during the trial.

In rejecting Mr. Bowden's appeal for clemency, the Georgia Board of Pardons and Paroles said he "knew right from wrong." That is often the standard that officials give when they assert that no mentally retarded person has been executed in their states. Governor Perry of Texas said the six inmates executed in his state who experts say were mentally retarded were not because they "knew what they were doing was wrong."

But this is confusing two tests of a defendant's mental state. Whether a defendant knows right from wrong is the test for criminal insanity - a defendant who does not know right from wrong may be found not guilty by reason of insanity. Most mentally retarded people are not insane, and they know right from wrong. In states that prohibit the execution of the mentally retarded, the question of whether a person is mentally retarded is raised in the sentencing phase of the trial, after the defendant has been found guilty.

Although there is no question of his sanity, Mr. Bowden's appellate lawyers say there is a good chance he was innocent.

An accomplice received a life sentence in exchange for testifying against Mr. Bowden. Initially, Mr. Bowden denied having killed the woman, saying his friend had done it. But then the police brought a document to him in his cell. He could not read it. But he signed it. It was a confession.

Confessions by a person who is mentally retarded are highly problematic, mental health experts say, because retarded people often are susceptible to suggestion and eager to please the authorities.

"You can talk them into things," said Timothy Derning, a psychologist who has been an expert witness in capital cases around the country. "They may know right from wrong, but they don't trust their own opinions. For this reason, they often confess."

The execution of Mr. Bowden, in 1988, was "such a hideous occurrence that it shamed the Legislature into passing the retardation law," said August Siemon, an Atlanta lawyer who represented Mr. Bowden in his appeals. But it is not a very satisfactory law from the view of defendants who are mentally retarded, Mr. Siemon said, because it requires them to prove their retardation beyond a reasonable doubt.

Most of the states that have laws banning the execution of the mentally retarded, including New York, only require defendants to prove their condition by a "preponderance of the evidence."

The law in Arizona, which the governor signed in April, requires the court to appoint a psychologist to examine a defendant in a capital case, and if the defendant's I.Q. is below 75, then further testing by psychologists is required. Ultimately, the judge, not the jury, decides if a defendant is mentally retarded.

In 1996, Arizona executed Luis Mata, who was convicted of rape and murder. He had been born with water on the brain, and he fractured his skull when he was 6. He had an I.Q. of between 65 and 70, and as an adult he could only count on his fingers. None of this evidence was presented to the
jury, and years later, when the prosecutor learned of it, he said he was "shocked and upset."

In an affidavit, the prosecutor, Michael Donovan, said that had he been aware of the evidence of Mr. Mata's mental retardation, "I would not have requested or pursued a death sentence."

 
 

Outrage follows execution of Mario Marquez in Texas

By Allen Harris

"I do want to say that I am not responsible for all that has happened in my life. I am truly sorry and I am paying with my life."

Those were the last words of Mario Marquez before he was put to death on January 17 at the end of 36 years of misery, torture and abandonment.

They included a declaration of love for his two brothers who were witnessing his execution on Texas' lethal injection machine. Marquez also expressed his forgiveness for "those who brought me here tonight."

Mario Marquez exhaled deeply and died shortly after midnight. One of the witnesses to the state-sponsored murder was Ted Koppel of the ABC News program "Nightline."

Marquez became the second person to be executed in Texas in 1995 and the 87th in 13 years. Texas killed him knowing fully that he was retarded. Texas has executed more people than any other state.

There are 19 men scheduled for execution between now and June 1.

Outraged reactions came from many quarters.

"They executed a five-year-old child last night," said Maria Elena Castellanos of the Binational Network Against the Death Penalty (Mexico-USA) to the People's Tribune later that morning.

"We are appalled that Texas is about to execute Mario Marquez, who is mentally retarded, severely brain damaged and the victim of child abuse so severe that it was child torture," said Jimmy Dunne of the Death Penalty Education Center late on January 16. "Has Texas no compassion, no humanity?"

Marquez' lawyer, Robert L. McGlasson, said on "Nightline" January 17 that the death penalty is not being used against the Ted Bundys of society, but against whoever the state decides to kill.

"The government is carrying out a much more cold-blooded, premeditated murder" than any that the accused were being put to death for, said Castellanos.

She said that the main goal of Texas is not punishment and retribution, but genocide and repression against a rising class of Texans and Americans crushed by poverty and forced to fight for their survival.

Marta Glass, a leading death penalty abolitionist in Texas, told the People's Tribune:

"The Marquez case was an absolute tragedy all around. He was born retarded and absolutely tortured as a child and the state of Texas executed him to put a cap on a hard life."

"We ask everyone of conscience to appeal to Texas politicians by fax, telephone and show that we're mad.

"Bill Clinton holds this country up as the moral leader of the world and yet there is no atrocity that you can name that's taking place in a Third World country that is not taking place in the United States of America," said Glass.

As one form of protest, Glass proposed:

"If anyone has plans to visit Texas or do business, we want you to write the governor and tell them you're canceling your trip and canceling your business and are doing it because of the death penalty. Say that you will not buy Texas products as long as you continue this outrage."

  


 

The execution of Mario Marquez: An american tragedy

By Robert L. Mcglasson

[Editor's note: Below we reprint a statement issued by the attorney for Mario Marquez. The statement was sent to us just days before Marquez was executed in Texas on January 17.]

Mario Marquez is a mentally retarded, severely brain-damaged, illiterate Hispanic man scheduled to be executed by the state of Texas on January 17, 1995. All parties involved in the case agree as to Mr. Marquez' mental condition: indeed, the San Antonio court in which he was tried and sentenced to death found as fact that Mr. Marquez is mentally retarded and brain-damaged. The only dispute concerns whether Mario Marquez, a man with the emotional and intellectual functioning of a five-year-old child, should be put to death.

Mr. Marquez' mental impairments are not the only problems he has had in life. Although the jury that sentenced him to die had no information about his mental problems or his past, it is now clear that Mr. Marquez' seemingly inexplicable conduct in this offense was rooted in violent fits of torture meted out to him by his own father routinely since infancy.

Mr. Marquez was convicted of the murder of his niece during an outburst of jealous anger toward his wife, who was also killed during the incident. Throughout his childhood, Mario's father beat him mercilessly, using boards, sticks, and fists. Occasionally, he whipped him with a horsewhip. And on several occasions, his father bound his hands and legs and hung him from a pole or tree and horsewhipped him until he was unconscious.

This torture was a daily experience for Mario. It appears the father's horrendous conduct toward Mario was prompted by the fact that Mario was "slower" than the other children, a fact the significance of which was lost on this poor, uneducated family: Mario was singled out among the other 16 children in his family for his father's wrath because of his mental retardation.

Despite his deficits, Mario contributed as best he could to the family's meager livelihood. From before he was born and throughout his childhood, the family worked as migrant farm laborers picking cotton and other crops throughout the southwestern part of the United States. Mario worked in the fields himself from the time he was a small child.

When he was 12 years old, Mario's parents separated and abandoned him. For the remainder of his childhood, from the age of 12 on, Mario was left to raise himself. He had no parenting or adult supervision of any kind. Mario lived in an abandoned house during this time. For at least a year after his parents separated and left him, Mario was required to take care of several younger children as well as himself. At some point, local county authorities came to the house and retrieved the other children; inexplicably, they left Mario alone to fend for himself, without adult care or supervision of any kind.

The father's ritual horsewhippings, hangings and beatings, which frequently left Mario unconscious, not only permanently arrested his emotional development; they also severely damaged Mario's cerebral cortex. Contributing to the severe brain damage was Mario's addiction to sniffing spray paint, which began soon after he was abandoned by his parents at age 12. This addiction acted as a psychological anesthetic for Mario's desperate situation.

As a result of his mental retardation, brain damage, and arrested emotional development stemming from severe childhood trauma, Mario Marquez has the emotional and intellectual maturity of a five-year-old. His mental deficiencies rendered him incapable of exercising judgment and learning from past mistakes and behaviors, and impaired his control over strong emotions, especially in stressful situations.

The jury that sentenced Mario Marquez to die knew nothing about his background or character and virtually nothing about why the crime was committed.

At the time of his trial, his attorneys were faced with an impossible Catch-22 situation: They could either present this information to the jury, and under the existing Texas capital sentencing statute (which was later found unconstitutional by the U.S. Supreme Court) guarantee a finding of "future dangerousness" (which automatically results in a death sentence), or they could fail to present the information and leave the jury with no understanding of who Mario was or why he could have committed the violent offenses he was convicted of. The trial attorneys chose the latter, and the jury was left with no reason to spare his life.

Appeals courts have refused to consider any of the above information as relevant to the legal claim that Mario should be allowed to have a jury consider this information before he is executed.

Instead, the courts have ruled that, because the trial attorneys failed to present this information at trial, no reviewing tribunal should consider it either. In short, Mario Marquez is about to die despite the fact that no tribunal or body with sentencing authority has ever considered his mental retardation, his severe childhood abuse, his other intellectual impairments, or any of the other facts mentioned above in deciding his appropriate punishment.

Citizens of the state of Texas, consistent with national polls, overwhelmingly disfavor the execution of the mentally retarded. A 1989 independent poll found that over 70 percent of Texans were against the execution of the mentally retarded. Consistent with public opinion, many states, such as Georgia, Arkansas, Tennessee and Kentucky now prohibit the execution of the mentally retarded. The Texas legislature has yet to pass a bill prohibiting the execution of the mentally retarded, despite substantial public support for such a law.

  


 


Huntsville Execution

From Nightline Jan. 17, 1995:

KOPPEL: It's five minutes before midnight when the witnesses to the Marquez execution are escorted into a holding room of an imposing old building that is used now as a prison-processing center. There are two kinds of witnesses, those who have seen an execution before, and those who have not. Among our group, several of us are first-timers. Three of those are already inside. Two are brothers of the condemned man, the third is his lawyer.

As the witnesses are searched - more for hidden microphones than for weapons, one of the officers tells me - as we're being searched, the condemned, Mario Marquez, is having a needle inserted into his right forearm, inside the actual execution chamber, he is strapped to a gurney, straps across his chest and waist, thighs and shins, another strap around each ankle, both wrists strapped to boards that stick out on either side of the gurney.

Texas law requires that executions be carried out on the specified day, but before the hour of sunrise. After midnight, then, but before dawn. The family members and the lawyer have been kept apart from the reporters and other witnesses, but when word comes that Marquez has been secured on the gurney and that the intravenous tube has been attached to the needle in his arm, the witnesses are summoned to the death use.

Marquez is lying on his back, a microphone suspended over his head so that his final words can be heard in the observation room, where we stand. We're just a few feet away, separated by a sheet of glass. When he tilts his head to the right, Marquez can see his brothers, arms draped around one another, and next to them, his lawyer.

Inside the execution chamber, the warden stands near the head of the condemned; the prison chaplain stands by his feet. The executioners - there are three of them - who will release a mixture of three chemicals into the IV, are invisible behind one-way glass.

Much has been made of the fact that Marquez is mildly retarded, with the mind of a seven year old, but his final words are composed and organized. He apologizes to his brothers for the pain he has caused them and the family. He apologizes to the family of the victims. 'I hold nothing against anyone,' He says, 'not even the prosecutors. I just want to come home to Him. Thank you, Lord Jesus.'

With that, the signal is given to the executioners. Marquez released a short explosion of breath, like an involuntary cough. That was it. That was all there was to be seen. The brothers wept softly. The attorney, Robert McGlasson, looked crushed. Inside the chamber, there was no movement for several minutes. Then a doctor examined the body and at 12:21 am, pronounced Mario Marquez dead.

Compared to the death that he inflicted on his victims, Marquez dies painlessly and, apparently, at peace with himself and his god. Life in prison seems a far more devastating punishment than this relatively tranquil death.

As we left the death house on the way back to our own lives, there was absolute silence. If I had been expecting a moment of revelation, it did not come.

 
 

11 F.3d 1241

Mario Marquez, Petitioner-appellant,
v.
James A. Collins, Director, Texas Department of Criminal Justice,
Institutional Division, et al.,respondents-appellees

No. 92-56-42

United States Court of Appeals, Fifth Circuit.

Jan. 10, 1994

Appeal from the United States District Court for the Western District of Texas.

Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

In his first federal habeas petition, Mario Marquez urges that his conviction of capital murder and sentence of death imposed by a Texas jury must be set aside for four constitutional errors. He first contends that he has been denied due process and a fundamentally fair trial because he was handcuffed behind his back and forced to wear leg irons during the sentencing phase of his trial, arguing that the district court failed to hold a required hearing and that there was no justification for the restraints. Second, Marquez urges that his trial counsel was precluded from presenting mitigating evidence by the structure of the Texas capital sentence jury questions. Third, Marquez urges that the jury was precluded from considering mitigating evidence contrary to Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).

Finally, he contends that the trial judge allowed the jury to consider prior unadjudicated offenses during the sentencing phase of his trial without requiring that the jury find that the state had proven their factual basis beyond a reasonable doubt, denying his rights under the Fifth, Eighth, and Fourteenth Amendments.

I.

A.

The Texas Court of Criminal Appeals on direct appeal rejected Marquez's contentions regarding the trial restraints, and we reject his contentions for essentially the same reasons. Marquez v. State, 725 S.W.2d 217, 226-231 (Tex.Crim.App., cert. denied, 484 U.S. 872, 108 S.Ct. 201, 98 L.Ed.2d 152 (1987). We agree with Marquez that the appearance of a defendant in shackles and handcuffs before a jury in a capital case requires careful scrutiny. Shackling carries the message that the state and the judge think the defendant is dangerous, even in the courtroom. It is not that shackling signals the prosecutor's opinion--indeed, there is nothing subtle about the prosecutor's view. A jury knows and understands that. It is obvious that an accused does not enjoy unfettered freedom and may in fact not be on bail. It follows that because an accused is led away each day does not unduly tax his claim of innocence.

Apart from the risk of prejudice to the defendant, the indecorous appearance of a shackled defendant in an American trial demands close scrutiny of the practice. Solemnity and that indefinable but knowable ambiance of evenhanded judicial disinterest and respect for the dignity of individuals are components of a fair trial. Rules will not alone create them but rules can maintain the conditions in which they flourish.

When the complained of restraint comes only in the sentencing phase of a capital charge, a jury has just convicted of a violent crime--so the risk of prejudice is lessened from the risk of such events during the guilt phase. At the same time, the defendant's life turns on the same jury's answer to the question of future dangerousness, so the risk, although less, is not eliminated. Restraint at trial may carry a message that a defendant continues to be dangerous.

On the other hand, shackling a defendant may be necessary to preserve the dignity of the trial and to secure the safety of its participants. It is immediately apparent that any rule that would accommodate these competing interests rests on the word "necessary". The required scrutiny must balance the state's interest of safety and decorum against these concerns. Simply put, a defendant must not be shackled before his jury unless the restraint is necessary to protect the safety of the trial participants or the sanctity of the trial itself.

We need not detail the images conjured by the range of restraints of a defendant in the courtroom to conclude that the threats to a fair trial posed by visible restraints are sufficiently large and sufficiently likely that due process secures to the defendant a right to contest their necessity. Elledge v. Dugger, 823 F.2d 1439, 1451-52 (11th Cir.1987), cert. denied, 485 U.S. 1014, 108 S.Ct. 1487, 99 L.Ed.2d 715 (1988); Zygadlo v. Wainwright, 720 F.2d 1221, 1223-24 (11th Cir.1983), cert. denied, 466 U.S. 941, 104 S.Ct. 1921, 80 L.Ed.2d 468 (1984).

The process due must reflect the inherent case-specific character of the trial court's decision to restrain a defendant and the reality that the issue is usually collateral to the trial itself. Relatedly, because the trial judge is uniquely situated to make this judgment call he must be given considerable discretion. Given this discretion, it is not a question of whether, looking back, lesser restraints might have been adequate, although that is relevant.

Rather, it is a question of whether it was reasonable to conclude at the time that the restraint was necessary. Put another way, necessity does not here trigger a type of "least means" analysis. That in retrospect some lesser restraint might have sufficed is not determinative. The trial judge must only have acted reasonably in responding to the scene before him using no more restraint than appeared necessary.

Finally, in this federal habeas context we will not upset a state trial judge's decision absent a clear abuse of discretion. In a practical sense, our review is analogous to review of a state trial judge's ruling on a Witherspoon objection. See Wainwright v. Witt, 469 U.S. 412, 426-30, 105 S.Ct. 844, 854, 83 L.Ed.2d 841 (1985).

B.

The Texas Court of Criminal Appeals described the events leading to shackling Marquez as follows:

[D]uring the afternoon session of the first day of the punishment phase, the trial judge ordered that appellant be handcuffed and shackled for the remainder of the trial. The judge made the following findings as justification for the order on November 26, 1984, just prior to instructing the jury on punishment.

THE COURT: ... I will go ahead and make my findings of fact at this time. The defendant has been found guilty of choking the complainant to death. At the same time he choked his former wife to death. The defendant while in jail has carried deadly weapons on his person. The Defendant while in jail stabbed a fellow inmate with a ballpoint pen. The Defendant while in jail choked a fellow prisoner. In 1983 the Defendant attempted to murder a uniformed officer driving a marked autombiles [sic] while trying to evade arrest for four burglaries. The Defendant endangered the lives of many innocent people while trying to evade arrest by driving on the wrong side of the freeway.

Since being found guilty of capital murder while being transferred from the courtroom the Defendant attacked a television cameraman by knocking his television camera to the floor and on the same occasion, spit on another cameraman or spit on a camera. In fact, since being found guilty of capital murder the Defendant threatened prosecutor Ed Garcia in the courtroom.

The Defendant on numerous occasions since being found guilty of capital murder has threatened to run and cause the officers to have to shoot him and kill him. Unless his legs are chained there is a danger he will do so.

The Defendant is young, powerful and very quick and there is a grave danger he might grab the firearms of an officer and kill officers of the court and onlookers unless he is kept in handcuffs.

MR. SPRINGER: May I add something to the court's findings, Your Honor?

THE COURT: Yes, sir.

MR. SPRINGER: I believe that the Court was correct that the Defendant did have the leg brace on at the time that he assaulted the cameraman.

THE COURT: That failed to restrain him from assaulting a cameraman who was anywhere from three to five feet away and while counsel for Defendant has frequently referred to the situation as being a circus atmosphere, the court finds that no such atmosphere has existed either in the courtroom or in the hall except that which was brought on by the Defendant himself when he attacked the cameraman.

In fact, two disputes took place in the hall and the court immediately removed people that [sic] engaged the defendant in an argument. And there has been absolutely no circus atmosphere tolerated and none will be tolerated. All right. Anything else?

MR. SPRINGER: Yes. I believe that the Defendant has told the court that he was thinking about committing suicide and has told the bailiffs and everybody he wasn't afraid of the needle and he was not afraid to die, which shows that he is an extremely dangerous individual.

THE COURT: Well, the court adopts those statements as part of the findings and there is at least one more in the courtroom that has four young children that [sic] is an officer of the court whose life would be in danger. There's several others with children to be raised. There's numerous officers of the court, bystanders, people whose lives would be in danger if this Defendant were allowed to not be handcuffed. There is no doubt in this court's mind that he is a grave danger to the people in this courtroom as well as to himself.

At the time the trial judge made his findings he had already heard all of the evidence presented at both the guilt/innocence and punishment phases of trial. Some of his findings were based on the evidence then presented and summarized at the outset of this opinion. In the interests of time and space we will not review that evidence here. However, certain other evidence, presented close to the time and at the time of trial, obviously bore on the judge's findings and it will be reviewed.

On July 12, 1984, a hearing was held on a motion for withdrawal of appellant's counsel because of appellant's inability to pay. During that hearing the following testimony was elicited.

THE COURT: Obviously you don't have the money so I'm going to appoint a lawyer to represent you.

MR. MARQUEZ: That's okay, sir, because I ain't got to talk to him. I ain't got to talk to no State's attorney. I would rather be dead than talk to a State's attorney.

THE COURT: That may be exactly the problem you face. You understand you are charged with capital murder which could result in the death penalty for you?

MR. MARQUEZ: That's okay.THE COURT: So its not one of these things that can be taken lightly. It is a very--

MR. MARQUEZ: Anyway I was going to take my life last night. I was about to do it last night.

THE COURT: I see you didn't do it. All right. I want to thank you all very much.

On October 18, 1984, a pretrial hearing was held on appellant's motion to suppress certain oral statements made while in custody. During the course of that hearing Detective Anton Michalec testified as to remarks made by appellant at the police station shortly after his arrest.

Q. [by the State's Attorney]: Did he say anything else about--

A. Well, he did indicate that the police officer that [sic] apprehended him where he was apprehended was yellow for not shooting him and he said he wished he would have shot him and just got it over with and he indicated that--by his actions and so forth that--I took it he might try to commit suicide, and I called the jail and notified the jail that he may have some suicidal tendencies at the time, so 'watch him.'

Q. Did he say whether or not he told the officer that the officer was yellow for not shooting him?

A. No, sir.

Q. What did he say?

A. He just told me in his own words that he felt that the officer should have shot him when he apprehended him and just gotten it over with then and there.

Q. Did he say why the officer should have shot him?

A. No, he said he wasn't a man, though, for not shooting him ...

* * * * * *

Q. [by appellant's counsel] All right. 'He said after this he wanted to commit suicide and would hang himself?'

A. Yes.

Q. He did say that.

A. Yes.

Q. Did he specifically mention that he wanted to hang himself?

A. Yes, ma'am. It would not be in my report if he didn't.

Q. All right. What did you say to that?

A. Well, I made no reply, but like I said earlier, I did call the jail because he made those threats. I was concerned that he might try to harm himself and I told him what he said.

Q. All right. Then also he talked of how he wanted the police officer that caught him to shoot him?

A. Yes.

Later during the hearing evidence was presented to show that appellant was the subject of a prior outstanding arrest warrant for robbery involving a bodily injury. The outstanding warrant was issued three weeks before the murder in the instant case.

On November 26, 1984, one of the State's Attorneys, Edward Garcia, stated in closing argument that,

[A]fter the altercation that was had Monday at the doorway1 when Mr. Marquez was brought in and sat down by the bailiffs, he was cursing in Spanish and he said something to the effect that 'I'm tired of people treating me like an animal.' And I was sitting to his left and Mr. Marquez looked at me and glared at me and said, 'That goes for that guy sitting at the table there.'

Earlier on November 26, 1984, the court, outside the presence of the jury heard the following testimony from Lieutenant Billhartz of the Bexar County Sheriff's Department.

THE COURT: All right. Have you been supervising the handling of the Defendant, Mario Marquez, through the time he has been charged with the capital offense?

MR. BILLHARTZ: Yes, I have.

THE COURT: All right. Let me ask you this. In your opinion are the threats and actions of the Defendant such that you feel it is necessary that he be handcuffed and have leg irons during the rest of this trial?

MR. BILLHARTZ: Yes, I believe they are.

* * * * * *

Q. [by appellant's counsel]: Are you familiar with the leg brace Mr. Marquez is wearing right now?

A. Yes, I am.

Q. What is the purpose of that leg brace?

A. To keep a person from running.

Q. Okay. Do you have any information that Mr. Marquez has actually run off anytime during this trial?

A. Not yet, but he's made statements to the effect.

Q. Okay. But no actual running?

MR. STEVENS: That's all we have.

THE COURT: If he were not handcuffed, would there not be a danger of his grabbing the pistol of one of these bailiffs.

MR. BILLHARTZ: I think that is true.

THE COURT: And would the lives of all the court officers be endangered?

MR. BILLHARTZ: It would.

After this testimony the trial judge made the findings above and overruled appellant's final objection to the handcuffs and leg irons. Appellant was not displayed to the jury in leg irons and handcuffs prior to their convicting him of capital murder.

Marquez, 725 S.W.2d at 228-31.

C.

Marquez's able counsel argues that the prior acts of violence were not so violent, but does not rest there. Rather, Marquez contends that he was denied an opportunity to be fully heard before he was shackled. The argument points out that Marquez was ordered shackled in the afternoon of the first day of the sentencing phase of the trial; that the state trial judge did not make his findings regarding the safety risks of an unshackled Marquez until shortly before instructing the jury at the close of the sentencing phase.

The argument goes that this was a shackle now, explain later, approach that denied Marquez a fair arbiter. When the trial court made his findings he was justifying a decision earlier made, it is said, and therefore was not about the business of fair decisions. We are not persuaded. The trial court did decide to shackle Marquez before he issued his reason from the bench. There is nothing untoward about that--if Marquez had a reasonable opportunity to be heard on the subject of restraint before it was a fact.

Marquez never requested a hearing. We doubt that the state trial judge was constitutionally obliged to conduct a hearing in the absence of a request for one. We do not rest here because we further conclude that the state judge had a reasonable basis for the order to put on leg irons and handcuff Marquez at the time he ordered it. We are also convinced that Marquez had a constitutionally adequate opportunity to participate in the development of the facts underpinning the state judge's decision.

The state trial judge had, in Marquez's presence and with his full opportunity to cross-examine, heard the following evidence in open court before ordering the shackling: (i) Marquez pleaded guilty on January 11, 1984 to four separate indictments for burglary and an earlier theft in 1977; (ii) defendant fled police in an automobile and exchanged gunfire with the pursuing police while going the wrong way on a major thoroughfare at speeds up to 100 mph; (iii) as a juvenile Marquez was charged with "robbery by assault, strongarm, ungovernable, unlawfully carrying a knife, paint sniffing and burglary of a nonhabitation"; (iv) he had that morning assaulted television cameramen in the hallway while wearing leg braces; and (v) he said he was going to run and the bailiffs would have to shoot him.

The trial judge knew that the bailiffs were each armed; that the defendant had the quickness and strength to seize a bailiff and perhaps take his weapon placing at risk persons in the courtroom. The possibility of this occurring loomed large in the trial judge's thinking. Less may have been enough, but we are persuaded that these facts, with the fresh conviction for capital murder entailing proof of two vicious murders and a violent sexual assault, were enough.

II.

Marquez also asserts that the Texas capital sentencing scheme violated the Eighth Amendment by restricting his opportunity to present mitigating evidence. See Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). He also claims that this constraint deprived him of his right to effective assistance of counsel guaranteed by the Sixth Amendment by unduly narrowing the options available to him at sentencing. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). He asserts that he had no meaningful opportunity to present mitigating evidence that, inter alia, he is mentally retarded and was abused as a child.

We cannot reach the merits of Marquez's claims because he made the tactical decision not to present the mitigating evidence on which he bases this appeal. "We have previously ruled that a defendant's deliberate failure to introduce mitigating evidence as a tactical decision ... does not come within the requirements announced in Penry." May v. Collins, 904 F.2d 228, 232 (5th Cir.1990), cert. denied, 498 U.S. 1055, 111 S.Ct. 770, 112 L.Ed.2d 789 (1991) (citations and internal quotation marks omitted).

Marquez argues that he made this decision under troubling circumstances. At the time of his trial, the only use that the jury could have made of his evidence would have been adverse to his case and he had no reason to believe he was entitled to a special instruction to the jury. This circuit has considered this argument already, however, and has ruled in a manner that offers Marquez no relief under the Eighth Amendment. The same is true of Marquez's Sixth Amendment claim. See May v. Collins, 948 F.2d 162, 166-68 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 907, 116 L.Ed.2d 808 (1992).

III.

Marquez also argues that the trial court did not afford the jury the opportunity to consider all of the mitigating evidence that Marquez proffered. In particular, the trial court refused to submit to the jury the issue "whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased."

Marquez wanted the jury to consider whether he perpetrated his heinous acts of physical and sexual violence in response to infidelity by his wife. As Marquez stood accused of murdering his niece, not his wife, under Texas law there was no provocation "by the deceased" and therefore no basis for submitting the issue to the jury. See Hernandez v. State, 643 S.W.2d 397, 401 (Tex.Crim.App.1982), cert. denied, 462 U.S. 1144, 103 S.Ct. 3128, 77 L.Ed.2d 1379 (1983).

Marquez argues that the fact that he was in a jealous rage could have mitigated the wrong he committed by inflicting physical and sexual violence on his innocent niece. Whether or not this claim has merit, he is wrong in asserting that the jury had no vehicle for considering it.

The jury could have concluded that Marquez killed in an angry response to infidelity and therefore that he would be unlikely to be dangerous in the future. We have noted in the past that "Penry does not require that a sentencer be able to give effect to a defendant's mitigating evidence in whatever manner or to whatever extent the defendant desires." White v. Collins, 959 F.2d 1319, 1322 (5th Cir.1992).

In light of this standard, we have held that the special issue addressing future dangerousness meets the constitutional requirements for considering the relevance of youth, even though no special provision is made to reflect the fact that the young may be less culpable. Id. at 1324. We conclude that the jury had an adequate opportunity to consider that infidelity may have prompted Marquez's violent acts.

IV.

Finally, Marquez argues that the trial court erroneously allowed the court to hear evidence of various of Marquez's misdeeds that were unrelated to the murder for which he stood trial. As the jury had no obligation to find that the state had proven beyond a reasonable doubt that Marquez had committed these acts, Marquez asserts that consideration of this evidence was unconstitutional. We have rejected this claim in the past. Milton v. Procunier, 744 F.2d 1091, 1097 (5th Cir.1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 323 (1985). We need not consider it again now. We AFFIRM the district court's dismissal of Marquez's petition and VACATE the stay pending appeal.

 

 

 
 
 
 
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