Houston Chronicle Article Jan 2015

From http://www.houstonchronicle.com/news/houston-texas/houston/article/Condemned-man-s-second-thoughts-about-execution-6010286.php

Condemned man’s second thoughts about execution gain no traction

By Allan Turner January 12, 2015 Updated: January 12, 2015 9:14pm

Richard Masterson’s lawyers told him not to testify, but the newly convicted Houston capital killer wouldn’t listen. Under questioning by the prosecutor, he told jurors they would send him to death row if they followed the law and that he likely would become violent behind bars within weeks. Jurors took him at his word and sentenced him to die.

Now, after almost 13 years on death row, Masterson, 42, has changed his mind. In a recent petition to the 5th U.S. Circuit Court of Appeals, Masterson charged, among other things, that his lawyers provided an insufficient defense by failing to develop and present mitigating evidence in his trial’s punishment phase. A three-judge panel of the New Orleans court on Friday rejected the appeal.

Masterson was convicted of the 2001 murder of Darin Honeycutt, 35, a female impersonator known by the stage name “Brandi Houston.” Testimony indicated that Masterson left a Montrose bar with his victim, then robbed and strangled him. The victim’s friends found his nude body in his Montrose apartment two days later. Masterson later was arrested in Florida.

“Masterson’s counsel faced an uphill battle in trying to save his life because Masterson, against their advice, insisted on testifying and then told the jury he was a future danger and that there was nothing to mitigate his offense,” the New Orleans judges wrote in their ruling. The question of an inmate’s future dangerousness is one of two special issues jurors must consider before handing down a death sentence.

New Orleans judges also determined that Masterson’s first lawyers took a number of steps to develop helpful testimony, including questioning his sister about their abusive father.

“Counsel hired an investigator; they also hired a future dangerousness expert whom they ultimately did not use because he found Masterson to be a future danger,” the judges wrote, “and because the state agreed not to call its expert if they did not call their expert. They also presented the testimony of two deputies to the effect that Masterson was compliant and unthreatening in their custody.”

Other testimony during the punishment phase was more problematic for Masterson.

In the portion of a trial in which a convicted capital killer’s fate – death or life behind bars – is determined, jurors learned that Masterson had been a member of the violent Aryan Brotherhood prison gang.

Houston Police Detective David Null, who intercepted Masterson in Florida, testified that the killer had expressed no remorse.

“He wasn’t upset about it,” Null told jurors, “because he didn’t know him and it didn’t matter.”

A Harris County Jail officer testified that Masterson had threatened to choke him “like I choke my victims.”

Masterson never admitted on the stand that he murdered Honeycutt, asserting that the death occurred accidentally during sex. But, for jurors, Masterson had said enough.

The appeals court panel also rejected Masterson’s claims that his confession to police was obtained in an unconstitutional manner, his lawyers failed to investigate and prepare a rebuttal against prosecution’s use of juvenile criminal records and his lawyers failed to introduce evidence that he suffered from organic brain dysfunction.

A date has not been set for Masterson’s execution.