In re Davis

• Decision Date: 04 November 2004
• Docket Number: No. 70834-7.,70834-7.
• Citation: 152 Wn.2d 647,101 P.3d 1,152 Wash.2d 647
• Parties: In re Personal Restraint Petition of Cecil Emile DAVIS, Petitioner.
• Court: Washington Supreme Court

101 P.3d 1

152 Wn.2d 647

152 Wash.2d 647

In re Personal Restraint Petition of Cecil Emile DAVIS, Petitioner.

No. 70834-7.

Supreme Court of Washington, En Banc.

Considered May 6, 2004.

Decided November 4, 2004.

Gilbert Levy and Catherine Chaney, Seattle, for Petitioner

Gerald Horne, Pierce County Prosecutor, John Hillman, Deputy, Tacoma, for Respondent.

IRELAND, J.

This is a personal restraint petition filed by Cecil Emile Davis, a prisoner under sentence of death. On February 6, 1998, a jury in the Pierce County Superior Court convicted him of premeditated murder in the first degree for the death of Ms. Yoshiko Couch, an elderly resident of Tacoma, Washington. The jury found aggravating circumstances of rape, robbery, and burglary, making Petitioner eligible for the death penalty. In the penalty phase¹ the jury recommended that leniency not be granted. The trial court, the Honorable Frederick W. Fleming, on February 23, 1998, sentenced Petitioner to death. This court affirmed his conviction and death sentence on direct appeal in State v. Davis.²

Petitioner now files this personal restraint petition, raising several issues, primarily focusing on ineffective assistance of counsel. In addition, Petitioner claims this State's death penalty scheme constitutes cruel and unusual punishment, and its postconviction procedures for capital cases violate due process. We affirm the Court of Appeals in the guilt phase, finding that Petitioner cannot establish prejudice from his counsel's decision not to object to his being shackled. Because of the overwhelming evidence of Petitioner's guilt, he cannot show there was a reasonable probability that, but for his counsel's deficient performance in failing to object, the outcome of the guilt phase would have been different. However, the prejudice to the Petitioner during a special sentencing proceeding cannot necessarily be overcome by objective and overwhelming evidence, and we grant the petition and remand for a new trial in the penalty phase.

QUESTIONS PRESENTED

In this personal restraint petition, Petitioner raises 17 questions which we identify and discuss in the section captioned "DISCUSSION."

STATEMENT OF FACTS³

On January 25, 1997, the body of 65-year-old Ms. Yoshiko Couch was found in the upstairs bathtub of her home in Tacoma, Washington. She was discovered lying on her back, with her legs apart, submerged in bloody water approximately five to six inches deep. Wet towels and clothing were piled on top of her head and chest areas emitting a strong chemical odor. She was not clothed from the waist down. The gold wedding band she had worn on her left ring finger was missing.

At approximately 2:30 in the morning on January 25, 1997, Petitioner George Anthony Wilson (Davis's codefendant) and Keith D. Burks were outside Petitioner's residence owned by his mother, Ms. Cozetta L. Taylor, and located across the street from Ms. Couch's home. In the presence of Mr. Wilson and Mr. Burks, Petitioner said, "I need to rob somebody," as he looked in the direction of Ms. Couch's home. Petitioner was wearing brown suede gloves at the time. Shortly after that Petitioner said, "I need to kill me a motherfucker." Mr. Burks went inside the house, while Petitioner and Mr. Wilson remained outside.

About five or six minutes later, Mr. Wilson returned to Petitioner's residence, appearing wide-eyed and scared. According to Mr. Burks, Mr. Wilson told him he and Petitioner "went over there to rip the lady off, but [Petitioner] just kicked in the door and started beating on her and rubbing [her] all over." Mr. Wilson said the woman, identifying Ms. Couch as "the old woman across the street," was coming down the stairs and that Petitioner rubbed her breasts. He also stated that he left as soon as he realized what Petitioner was doing to the woman.⁴

In the early morning hours (between 3:30 and 4:00 a.m.) of January 25, 1997, Ms. Jessica Cunningham, Petitioner's 14-year-old niece, who was sleeping at Petitioner's residence, awoke and attempted to locate Petitioner. Mr. Wilson and Mr. Burks were in the house, but she could not find Petitioner Davis.

Later that morning at approximately 11:00 a.m., Jack A. Schauf and his wife, Ms. Asako Schauf, arrived at the Couch residence. They entered the home after noticing the front door was ajar and damaged. After a cursory look around, they proceeded to check on Richard Couch, husband of Ms. Couch, whose bedroom was located downstairs because he was unable to walk up the stairs. Mr. Couch was disabled and partially paralyzed. Because he took prescribed medication to help him sleep, he was not aware of what happened in his home that morning. Mr. Schauf found the body of Ms. Couch in the upstairs bathroom adjacent to the kitchen.

Richard Couch was retired from the United States Army. His wife was a homemaker and his primary caregiver. She did all the household shopping and purchased groceries at military commissaries in Pierce County, from which she had recently purchased Kool Mild cigarettes and cans of Pepsi Cola for her husband, and small packages of meat and poultry, enough to feed two people. There were cans of Budweiser Light beer in the home at the time of Ms. Couch's death. She always had cash on her person, either in the inside pocket of her purse or in an envelope. The Couches kept to themselves and had no African American friends who visited their home.

Later that morning, after police officers arrived at the crime scene, Petitioner was in his kitchen looking out the window at the investigation across the street. Police officers were talking to one of his neighbors, and Petitioner observed the neighbor point toward Petitioner's residence. He remarked, in the presence of his sister, Ms. Lisa Taylor, "that bitch is next."

Later that day, after police officers had visited Petitioner's residence, Petitioner asked his mother for some Comet cleanser because he wanted to do some cleaning. He obtained a different type of cleaning product and cleaned the downstairs area of the house. He threw some items into a trash bag in the backyard. He also at least twice washed the clothing he wore the night of January 24, 1997. That same day, Petitioner offered to sell a gold wedding band to his mother for $10 dollars. She declined and returned it to him. Ms. Lisa Hubley, his niece, observed him wearing a gold wedding band on his "pinky" finger. Petitioner was also observed to have in his possession cash, Kool Mild cigarettes, and cans of Coca-Cola, Pepsi Cola, and Budweiser Light beer. He cooked chicken from a package without a store brand-name on it. None of these items had been observed in his possession the day before on January 24, 1997.

Tacoma Police Department forensic specialist Ms. Toni Wentland collected hairs, fibers, and suspected blood from Ms. Couch's mattress and bedcovers. Another forensic specialist, Eric Berg, gathered several pieces of evidence at the crime scene, including a utility box housing the telephone and television cables located on the outer left front corner of the Couch residence; the telephone cable with cut marks indicating an attempt to cut the telephone line; a completely severed television cable; a container of Comet cleanser recovered from the east bedroom; a white powdery substance, believed to be Comet cleanser, scattered mainly throughout the upstairs area of the house; a damp sponge with a gritty white powdery residue found on the railing at the top of the stairs; a similar white powdery residue found on Ms. Couch's body below the waist; Ms. Couch's open purse, with no money in it, on the hallway floor outside the doorway to the southeast bedroom; and a sleeping bag with a large amount of biological tissue (blood clot) recovered from the bed in the southeast bedroom.

Forensic specialist Berg did a thorough forensic investigation of the upstairs bathroom where Ms. Couch's body was found. Although no fingerprints were recovered, he observed a glove print on the bathroom mirror, which in his opinion was left by a leather glove. Mr. Berg noticed a strong chemical odor in the bathroom and determined the odor was consistent with the household cleanser "Goof Off." A can of "Goof Off" was found on the bathroom floor at the base of the bathtub.

On January 27, 1997, Pierce County Associate Medical Examiner Roberto Ramoso, M.D., performed an autopsy on Ms. Yoshiko Couch. He concluded the cause of her death was asphyxia by suffocation and neck compression and also xylene toxicity. He estimated the time of death at approximately 3:00 a.m. the morning of January 25, 1997. Dr. Ramoso observed that portions of Ms. Couch's face and hands showed deformation of the skin and changes in the structure of the tissue underneath the skin, symptoms that were consistent with skin coming in contact with the chemical xylene. In addition, a whitish dried secretion found on the inside of her nostrils was consistent with inhalation of xylene through the nose with some xylene going into the nostrils. In Dr. Ramoso's opinion, the xylene in Ms. Couch's blood was most likely introduced by inhalation and skin absorption.⁵ He also observed evidence of trauma to Ms. Couch's vagina, consisting of a laceration wound, approximately one and three-quarters of an inch long, caused by a hard object, not a penis, penetrating the vaginal wall.

The Washington State Patrol (WSP) Crime Laboratory examined hairs recovered from the crime scene and determined certain hairs had "Negroid" characteristics. Petitioner and George Anthony Wilson are African American. Control samples of pubic and head hairs from Ms. Couch, Petitioner and Mr. Wilson were compared with the hairs recovered from the Couch residence. Results of a test of a hair sample, recovered from a bedspread found in the east bedroom, were inconclusive when compared to the hair samples provided by Petitioner and Mr. Wilson. Another sample, taken from the bedspread in the southeast bedroom, contained...