The State v. John Steven Gardner

At 11:58 p.m. on January 23, 2005, 911 dispatcher Erin Whitfield received a cell phone call from a woman claiming she had been shot in the head. She was having a difficult time communicating but was able to provide her address, identify her attacker as her estranged husband, and state that he was driving a white pickup truck with Mississippi plates. When deputies arrived, the house was secured with no indication that anyone had broken in. The deputies forced their way into the house and found Tammy Gardner in her bedroom curled up under her covers. Tammy had been shot in the right temple, and the bullet had exited through the left side of her face just under her jaw. A trail of blood led from the bed to the bathroom, where blood-soaked toilet paper filled the trash can. Despite being shot, she had the ability to get her cell phone, call 911, and provide enough information that eventually led to the arrest of her estranged husband, John Steven Gardner. Tammy was taken by helicopter to Parkland Hospital in Dallas where she lapsed into a coma. Two days later, she was removed from life support and died.

The investigation

Based on Tammy’s dying declaration to 911, Collin County Sheriff’s Department Investigator Parrish Cundiff had a place to start. During the early morning hours of January 24, he located Gardner’s father in Mississippi. Investigator Cundiff told him Tammy had been in an accident and obtained Gardner’s cell phone number. At 5:05 a.m., Cundiff called Gardner’s number, but the man who answered immediately hung up.

At 1 p.m. the same day, Investigator Cundiff received a call from the Jones County Sheriff’s Department in Laurel, Mississippi, reporting that Gardner wanted to turn himself in. Since only 13 hours had passed since the investigation had started, a warrant had not been issued. Investigator Cundiff talked to Gardner on the phone. He never admitted shooting his wife, but he said he drove a white pick-up truck with Mississippi plates and gave vague, deceptive answers as to his whereabouts the previous evening.

Cundiff enlisted the assistance of investigator Jason Strickland of the Jones County Sheriff’s Department to lead the Mississippi portion of the investigation. Investigator Strickland went to Gardner’s house and found a .44 Magnum revolver under his brother-in-law’s mattress; the gun was fully loaded except for one empty shell casing. Investigator Strictland took sworn statements from Gardner’s sister and brother-in-law stating the gun was always loaded and that neither had recently fired it.

Investigator Strickland had the truck impounded and processed for evidence. Two important pieces of evidence came from the truck’s cab: Two red fibers and a hangtag from a pair of Brahma work gloves with a red price sticker reading $1.49.

Because Gardner was not talking, Investigator Cundiff sought to corroborate Tammy’s statement that Gardner had been in Texas. He subpoenaed Gardner’s credit card statement, which showed that on the day of the shooting, he made two purchases at an Exxon station in Marshall, Texas, for gas and some other items. When our investigator visited the gas station, he found they sold Brahma work gloves for $1.49; the hangtag exactly matched the one found in Gardner’s truck. An additional credit card purchase in Rayville, Louisiana, the day after the shooting appeared to be for fuel.

Additionally, the red fibers were similar to the robe Tammy was wearing when she was shot. Criminalist Michael Villareal would later testify that the samples were similar in size, color, and composition. He explained to the jury that in analyzing fibers, this was as close to an exact match as possible.

The relationship

As this case transitioned from the sheriff’s department to our office, we discovered information on the abusive relationship between Gardner and Tammy.

The two had married in 1999. During the first couple of years, Tammy became more isolated from both her friends and family. During one incident, a coworker was at the house when Gardner came in and exploded into a rage. He threw Tammy down on the bed, held a gun to her head, and told the coworker to leave. As she left, Tammy pleaded for her friend not to call the police. Although Tammy’s daughter lived with them the first couple of years, Tammy eventually made her move to her father’s house because she was afraid for the child’s safety. This move changed the nature of her relationship with her daughter because she would not allow her daughter to visit if Gardner was around. Tammy’s son and grandchildren lived in a trailer on the same property as she and Gardner. The relationship with these family members also changed, and Tammy got to the point where she would not allow him or her grandkids to come over when Gardner was home.

When Tammy was working, coworkers noticed that she would come to work with various injuries to her face and arms. She would always have an excuse as to their cause. Eventually, Tammy became somewhat outspoken about her relationship with Gardner. For example, when a coworker asked about an injury to her cheek, Tammy told her that Gardner had hit her with a hammer. In addition to Tammy’s injuries, coworkers noticed that Gardner often drove by her workplace or sat across the street partially hidden from view. Tammy avoided going to lunch or out with her coworkers because she was worried about Gardner’s temper. She eventually began telling her friends and coworkers that the only way she was going to get out of this relationship was when he killed her.

A year before the shooting, Tammy was having problems seeing out of her left eye. The optician referred her to a neurologist. She informed the neurologist that she would often get hit in the head by her horse. But after the meeting, she spoke to the officer manager and wife of the doctor, Joy Flavill. Ms. Flavill was a domestic violence counselor from New Mexico and had developed a part-time practice in her husband’s office. Tammy was comfortable with Ms. Flavill and provided detailed information about the type of abuse that she suffered at Gardner’s hands. She talked about the gun that Gardner kept near the bed and that during sex he would take the gun out and caress her body with it. She also told Ms. Flavill that when he got angry, Gardner took out the gun and hit her on the left side of the face and head with the barrel. Tammy was worried that this abuse was causing the problems with her left eye. She also told Ms. Flavill that the only way she was going to get out of the relationship was when Gardner killed her, a sentiment Tammy echoed several times to those around her. Ms. Flavill attempted to get Tammy to go to a shelter, but Tammy never followed through.

In 2003, Tammy wrote a letter to each of her family members asking for forgiveness because of her relationship with Gardner and its effect on her relationships with others. She gave these letters to her ex-husband with instructions to give them to her children upon her death.

The divorce

In December 2004, Tammy and Gardner split up, and Gardner moved out of the house. His parents helped him pack up his belongings and moved him back to Laurel, Mississippi, where he had grown up. Initially, Tammy believed that the break-up might have been her chance to get away from Gardner. She started to spend more time with her daughter and went out with friends from work. Tammy’s friends said that they were finally seeing signs of the carefree person they knew before she became involved with Gardner. She filed for divorce, and he signed a waiver of citation January 13, 2005, 10 days before the shooting. There were many phone calls and text messages between Tammy and Gardner during these last 10 days. Tammy seemed to get more concerned and agitated during these communications.

On the day of the shooting, Tammy went to church and had lunch with her daughter. Throughout lunch and into the early afternoon, Tammy received text messages from Gardner. Her daughter read some of these messages aloud to her mother: The notes asked if she was “going to go through with it?” When Tammy did not respond, the message read “yes or no.” When Tammy still did not respond, the messages’ tone changed to “YES OR NO.” The text messages stopped at about 5 p.m.

That afternoon, Tammy was very concerned about the tone of Gardner’s communications. She went to see a coworker, David Young, for advice. Mr. Young testified that when she arrived, she was all business. She wanted to figure out a way she could disappear that would allow her to maintain contact with her family and pay her bills. After she left Mr. Young’s house, she went home. According to her phone records, she called Young at 11 p.m. and they talked for 13 minutes. She let him know that everything seemed to be all right. The next call that Tammy made was to 911 exactly 45 minutes later.

The death of Rhoda Gardner

We knew early in the investigation that Gardner had a long history of physical abuse toward women in his life. We determined that he had been married five times and had shot his second wife, Rhoda Gardner, in 1982.

In December of that year, Gardner had been having marital problems with his pregnant 18-year-old wife, Rhoda. On December 12, he went to the apartment where she was staying with her girlfriend and attempted to talk to her. He became angry, and the friend called police, who quickly responded, and Gardner left. The next morning, Rhoda left the apartment building to go to work. As she walked to her car, Gardner came from around the corner of the building and called her name. When she turned around, he shot her twice. The first shot grazed her breast, and the second shot hit her abdomen and severed her spinal cord. After she dropped to the ground, Gardner walked over to her and shot her in the face. He then walked away.

Rhoda survived the shooting but was left a paraplegic; she was hospitalized to undergo surgeries to her face and abdomen. Also as a result of the shooting, Rhoda lost the baby. The doctors were required to perform surgery because of the spontaneous abortion and on February 1, 1983, Rhoda Gardner died from complications during surgery.

Gardner was charged with and pled guilty to aggravated assault with a deadly weapon and received eight years in the Mississippi Department of Corrections.

The other wives

Knowing about Gardner’s abusive history, our investigator, Kelly Adley, set out to find his surviving three wives. He had had a child with only the fourth, and we traveled to Mississippi to talk to her. She was not happy that we found her, but she begrudgingly spoke with us. She detailed an abusive relationship with Gardner in which he killed one of her puppies with a hammer as a way of getting back at her when she did something wrong. After they divorced, he was allowed visitation with their son. She eventually refused any visitation because she found out that Gardner was showing their son pornographic photos of women he had been with. We wanted her to testify, but she refused to come to Texas and was still very frightened of her ex-husband.

We located Gardner’s third wife, Margaret Westmoreland, in Tennessee. Their relationship started when Gardner was still serving time for shooting Rhoda. She had known both Gardner and Rhoda before the shooting, but somehow he was able to convince her to overlook his “past indiscretion.” After serving two years, Gardner was paroled and moved into Margaret’s home, and their relationship followed a familiar pattern. She testified that Gardner collected swords, and when they were fighting, she would wake up and he would be sitting nearby rubbing the sword. She told us that she expected that he would kill her one day. She testified that after an attempt to break off the relationship, Gardner went to the restaurant where she worked and took her by knifepoint. Her coworker called the police, and they gave chase until he finally pulled over and released her.

The sexual offenses

In addition to his violent tendencies, we also determined that Gardner had a history of sexual offenses. His criminal history included a conviction in Dallas for indecent exposure in December 1992. During this incident, Irving officers were performing surveillance at the Irving Mall during the Christmas shopping season. Gardner was seen driving around the parking lot masturbating. When he was pulled over, he was found in possession of two illegal knives and a club.

In addition to this conviction, we found a pattern of deviant sexual behavior toward the daughters of the women he was with. We talked to Margaret’s daughter, Rebecca Fetherie, who talked about the relationship she had with Gardner when she was 13. She testified that he acted like a boyfriend. Gardner liked to massage Rebecca and would want to apply her make-up. This grooming process continued to the point where he would tell her if she slept with the devil that she would get magical powers. Then he would start referring to himself as the devil. Fortunately, Gardner was removed from Rebecca’s life prior to any more sexual acts occurring.

During our investigation, we also found that Gardner had been acting out sexually toward Tammy’s daughter before she moved to her father’s house. This culminated in a situation where Gardner threw her down on the bed and attempted to sexually assault her. She kept telling him that she was going to tell, which stopped the assault. It was not long after that incident that she moved out of the home.

The guilt/innocence phase

The cold-blooded way Gardner killed his wife, along with his history of abusing women and children, made this the type of case for which the death penalty was created. The grand jury originally indicted Gardner for committing murder in the course of burglary, but after we continued investigating, we re-indicted Gardner to include committing murder in the course of retaliation for filing the divorce.

As we went through the pre-trial process and even voir dire, the defense was more than willing to plead to a life sentence. Based on the evidence and Gardner’s history, it was not an option. But these conversations led us to believe the defense was going to attack the capital aspect of the case.

We felt that under the burglary theory, the defense was going to focus on the fact that Tammy and Gardner had lived together in the house just a month before, that there was no evidence of any “breaking and entering,” and there was no proof that Tammy did not invite Gardner in. To help shore up our position, we found that Tammy’s mother owned the house; she testified that Tammy had the authority to let whomever she chose enter. We showed that after Gardner moved out, Tammy bagged up all of his property and threw it away. Finally, Tammy’s daughter testified about the text messages Gardner sent on the afternoon of the shooting, and David Young testified about how scared she was those last few hours before the shooting. We felt this testimony provided enough evidence to show that Tammy would not let Gardner in the house if he showed up at the front door. Tammy’s son testified that Gardner gave him a set of house keys before he left but that there was still a missing set, which explained how Gardner may have entered the house without Tammy’s knowledge.

Although before trial, we felt that our retaliation theory was the weaker of the two, Tammy’s daughter did an outstanding job explaining the pattern of Gardner’s calls, what he was texting, and how Tammy reacted. By the end of State’s case-in-chief, the retaliation theory became the stronger of the two.

The jury was out for three and half hours before they returned with their guilty verdict on the capital murder charge.

Punishment

We felt that if we could prove the capital aspect of Tammy’s murder, we would not have any problems showing that Gardner was a future danger. Not only did we want to show Gardner was extremely violent with women in his life, but also that he had a pattern of seducing and taking advantage of women with histories of self-esteem and relationship issues.

We started by proving up the murder of Rhoda Gardner through Dr. William Rohr, the county medical examiner, along with the hospital and autopsy records we received from Mississippi. Of Gardner’s three living ex-wives, we could only get Margaret Westmoreland to testify. She was crucial in providing insight about Gardner’s personality and his ability to initiate this type of intimate relationship with a woman. She explained that once Gardner became a crucial part of her life, he changed and became violent and controlling. Part of his pattern of control included threatening to skin her daughter alive while she watched. The parallel between Margaret’s and Tammy’s relationship with Gardner could not have been more obvious.

Margaret’s daughter, Rebecca Fetherie, also testified about both her and her mother’s relationship with Gardner. She knew about Rhoda’s shooting and testified that Gardner talked to her about it. Once, he explained that after he shot Rhoda, he walked over to her to watch her urinate on herself because that’s how he knew she was dying. Rebecca also had the opportunity to experience Gardner’s wrath. She testified about an incident in April 1987 when her mother called her from work to say she was going to be late. When Rebecca relayed the message Gardner, he flew into a rage and beat her so badly that he split her head open. When Margaret arrived home from work, she found Rebecca in the shower bleeding profusely from her head while Gardner acted as if he had no idea what was happening. In that instance, Gardner pled guilty to injury to a child and his parole was revoked.

Although you never want surprises during trial, we found out during testimony that Margaret continued her relationship with Gardner, which included conjugal visits to the Mississippi State Penitentiary, after his parole was revoked for the assault on her daughter. Such behavior fit our theory showing the power and control Gardner had over women even when he was confined.

We concluded our punishment evidence with testimony about Gardner’s deviant sexual conduct from the Irving police officers who witnessed Gardner exposing himself at the mall and from Rebecca Fetherie and Tammy’s daughter about his inappropriate sexual conduct.

The defense started its case with a few character witnesses who had worked with Gardner in the past but did not provide much relevant information. They also admitted jail records showing Gardner had not had any disciplinary action since he had been incarcerated in Collin County.

Gardner’s elderly parents were not able to come to Texas so his sister, Elaine Holliefield, was the only family member who testified. She told the jury about the harsh childhood that she and her brother suffered at their parents’ hands. Their father was a minister and would get them up early in the morning for daily prayers. Even when they had friends spend the night, the friends would be required to participate in these early morning sessions. Ms. Holliefield also detailed an alcoholic household with regular domestic violence occurring between their parents and said their parents would beat and abuse them. We could counter this testimony on cross-examination by discussing Elaine’s long-term, stable marriage and apparent close relationship she and her children continued to maintain with her parents.

In all our serious cases, we subpoena a defendant’s jail mail. Gardner mostly wrote to his parents, and those letters were religious in nature and only discussed the meaning of various chapters and verses in the Bible. We also knew Gardner was going to use the childhood abuse excuse as part of his mitigation evidence (as that was the theme his defense counsel began during voir dire). We found one letter to his parents where he talked about the great childhood he had and what great parents they were. He went on to thank them for their love and support since he had been incarcerated. During cross of Elaine, she authenticated the letter, and it was admitted into evidence and read to the jury. We felt this letter dealt a serious blow to the only mitigation evidence the defense was able to present.

The experts

We knew the defense had hired Dr. Kate Allen and Dr. Gilda Kessner as experts, and we figured the defense strategy would try to show Gardner could not be a future danger because he would be locked away from women. We asked A.P. Merillat, an investigator with the Special Prosecution Unit, to assist us during rebuttal by countering the defense’s claim that Gardner wouldn’t commit future acts of violence from within the penitentiary. Mr. Merillat sat with us as the defense started calling their punishment witnesses; both Dr. Allen and Dr. Kessner were in the courtroom as well. Following the testimony of Gardner’s sister, the defense asked the court for a recess. When we returned, the defense unexpectedly rested. Apparently, the threat of Mr. Merillat’s testimony about the reality of incarceration in the Texas prison system would have eviscerated Gardner’s argument that he would not be a future danger when he is locked up. The defense’s quick rest allowed defense counsel to argue that we failed to show that Gardner was a future danger because we did not offer any evidence that he had ever committed a violent criminal act while he was incarcerated. Two hours following the conclusion of final arguments, there was a knock at the jury room door. As we sat at the counsel table, we listened as the judge announced that the jury reached the same conclusion we had: John Steven Gardner deserved a sentence of death.

Conclusion

As Gardner was led out of the courtroom, we were not surprised that he showed no reaction. We had watched his lack of emotion when he was found guilty of capital murder. We sat in the same room with him for over five weeks, and he never showed any emotion about the possibility of receiving the death penalty. There were times, outside the jury’s presence, where he would laugh, joke, and even attempt to interject himself in the conversations between the attorneys and judge. During our case, we wanted to show these two faces of John Gardner. The first was that of a friendly, unassuming guy who allows others to feel comfortable around him. We saw this side of him when we talked to his ex-wives and people he worked with—even the jail deputies who had spent time with him told us how polite he was.

But the other face, the one we showed the jury, was the manipulative, controlling, and violent personality of a sociopath. John Steven Gardner is a predator. And thanks to the dedicated work of law enforcement agencies from Texas to Mississippi, Gardner will never have the ability to prey on our community again.