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Not in My Name

...but they're dead just the same...

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#200 - Darryl Elroy Stewart - TX - 5/4/1993

Each said the other one committed the crime.  One gets sentenced to death, one gets 20 years.  That’s not ever going to be okay with me.

Victim:  Donna Kate Thomas (22)               2/6/1980

Codefendant:  Kelvin Kelly – Testified against Stewart.  Sentenced to 20 years.  He is no longer listed
                                                   in the Texas Department of Criminal Justice’s prisoner database, so
                                                   he’s probably been paroled.

Source:  The New York Times
Texas Executes Man Who Killed a Young Mother
May 5, 1993

A killer who shot his victim while her 4-year-old daughter hid in a closet was executed by lethal injection early today. 

The inmate, Darryl Stewart, 38, died just after midnight for killing a neighbor in a $50 burglary and attempted rape. He was the 200th person executed since the 1976 Supreme Court ruling that allowed states to resume the use of the death penalty. 

An hour before Mr. Stewart went to his death, the High Court refused a reprieve by a vote of 7 to 2. Justices Harry A. Blackmun and John Paul Stevens dissented. 

Asked whether he had a final statement, Mr. Stewart stared at the ceiling, closed his eyes and said nothing. 

He shot and killed Donna Kate Thomas, 22, in 1980 at her Houston apartment in the same complex where Mr. Stewart lived with Kelvin Kelley, an accomplice in the crime. Mr. Kelley testified against Mr. Stewart in exchange for a 20-year prison sentence. 

Mrs. Thomas had left her apartment door open to keep an eye on her daughter, also named Donna, who was playing outside. Mr. Stewart and Mr. Kelley walked in looking for something to steal so they could buy drugs, according to trial testimony. 

Mr. Stewart tried to rape Mrs. Thomas, and when she cried and resisted, according to court records, he put a pillow over her head and shot her twice in the head. Her daughter, who had entered the apartment, hid in a closet. 

Mr. Stewart and Mr. Kelley were arrested later in the day. 

Mr. Stewart blamed Mr. Kelley for the shooting, but young Donna testified that she saw Mr. Stewart, who was thin while Mr. Kelley was tall and burly, holding the gun after her mother was shot. 

"The skinny man shot my mama," the girl testified. 

Source:  murderpedia.org

Darryl Stewart was executed May 4, 1993 after testimony from accomplice convicted him of the 1980 murder of a Houston woman. He became the 200th prisoner executed since the Supreme Court reinstated the death penalty in 1976.

Stewart and his accomplice, Kelvin Kelley, walked into the apartment of Donna Kate Thomas looking for something to steal so they could sell it and buy drugs. Thomas had left the door open because she was watching her four-year-old daughter, Donna Faye, while she was playing outside. Stewart noticed Thomas in the house and, according to Kelley's statements during the trial, Stewart tried to force Thomas to perform oral sex on him. 

When she refused, Stewart put a pillow over Thomas’ daughter’s face and left her in the closet. Kelley left the apartment at that moment, but court records show that Stewart then proceeded to shoot Thomas twice in the face. Kelley was very eager to testify against Stewart saying, "I go to bed every night and hear that woman screaming." Kelley avoided the death penalty and received a 20-year prison term in exchange for his testimony.

Authorities at first didn't know who had actually killed Thomas but Donna Faye identified Stewart. Stewart was taller and thinner than Kelley and the little girl told police, "The skinny man shot my mama."

Stewart tried to appeal his case. The jury that convicted him was an all-white jury. Stewart felt the jury may not have been impartial seeing as he was black. However, the victim's mother, Ponzella Johnson, said, "He murdered her in cold blood. I don't know how he can think they were prejudiced."

Shirley Cornelius, Harris County assistant district attorney, feels the jury was fair in Stewart's case. Although she admits racism is a common complaint on appeals in cases with uni-racial juries, most lawyers concentrate on looking for strong jurors. She also thinks similar races actually tend to be harder on their own. When asked about Stewart, Cornelius said the offense speaks for itself and "the facts would have been just as bad if the jury had been black or if Stewart had been white."

With his final appeal exhausted, Stewart was brought to the execution chamber almost 14 years after the murder. When the warden asked if Stewart had any last words, he just looked up at the ceiling. He was injected with the lethal dose at 12:18 a.m. and the official time of death was announced as 12:25 a.m. on May 4, 1993.

Ponzella Johnson had no sympathy for Stewart before, during or after his execution because he had no sympathy for her daughter. She said, "I hope he had the same terror in him that my daughter had when she died."

Donna Kate Thomas' brother, Larry Johnson, also still lives with the memory of the tragedy in 1980. He was disgusted with the entire process and feels although justice was served, it took far too long. He said, "The wound has healed, but the scar will never go away. Loneliness and sorrow still remain and always will."

Source:  Court docs

At his murder trial, petitioner Darryl Elroy Stewart and his accomplice Kelvin Kelly provided conflicting theories about the crime. According to Stewart's statement, which the State introduced at trial, he and Kelly were walking past the deceased's apartment when Kelly saw through the open door a stereo that he wanted to steal. Kelly told Stewart that he was going to run in and grab the stereo, and instructed Stewart to stand guard at the door. Stewart heard a woman scream; heard Kelly attempt to force sexual relations on her; saw glimpses of a struggle; and heard two shots. 

Thus, Stewart's statement indicated that he agreed to assist in Kelly's theft of the stereo; that Kelly strayed from the plan to steal the stereo and attempted to commit a sexual offense against the occupant of the apartment; and that during the course of this offense Kelly killed the victim. If Stewart's account of the crime is accepted, he did not himself kill, did not attempt to kill, and did not intend that a killing would take place. 

According to Kelly, however, it was Stewart who entered the apartment to commit burglary, Stewart who had the gun, Stewart who attempted a sexual assault on the victim, and Stewart who killed her, while Kelly waited at the door; the State introduced some evidence corroborating this story. Kelly was promised, in exchange for his testimony, that he would receive no more than 50 years in prison. 

Source:  Court docs

Stewart and an accomplice, Kelvin Kelley, decided to rob Donna Kate Thomas in her apartment after they noticed her apartment door ajar. During the course of the burglary the men attempted a sexual offense and ultimately murdered the victim. Each man confessed to a version of the offense in which the other was implicated as the principal actor. Stewart's prosecution was based on Kelley's testimony which was corroborated by the testimony of the victim's young daughter and other state witnesses.

Stewart was convicted by a jury for capital murder committed during the burglary of a habitation. During the sentencing phase of the trial, the jury responded affirmatively to the two special issues submitted and punishment was assessed at death. 

Stewart argues on appeal, that in responding to the statutory punishment phase issues, the jury was unable to consider and give mitigating effect to his self-described, non-triggerman role in the commission of the offense. Stewart characterized himself as a lookout man who did not intend to kill the victim and did not assume an active role in the murder. The district court correctly concluded that, if the jury believed that Stewart was not the triggerman, the jury could give effect to that understanding of the evidence in answering the punishment phase issues.