Davis v. Zant

• Citation: 36 F.3d 1538
• Decision Date: 21 October 1994
• Docket Number: No. 92-9245,92-9245
• Parties: John Michael DAVIS, Petitioner-Appellant, v. Walter D. ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1538

36 F.3d 1538

John Michael DAVIS, Petitioner-Appellant, v. Walter D. ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee.

No. 92-9245.

United States Court of Appeals Eleventh Circuit.

Oct. 21, 1994.

Donald B. Verrilli, Jr., and Theresa A. Chmara, Jenner & Block, Washington, DC, for appellant.

Mary Beth Westmoreland, Senior Asst. Atty. Gen., Atlanta, GA, for appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before ANDERSON, DUBINA and BLACK, Circuit Judges.

ANDERSON, Circuit Judge:

John Michael Davis appeals the denial of his federal petition for habeas corpus pursuant to 28 U.S.C. Sec. 2254. Davis was convicted by a jury of first degree murder and armed robbery in connection with the death by strangulation of Susan Marlene Isham; he pled guilty to theft arising from the same incident. He was sentenced to death for the murder, twenty years for the armed robbery and ten years for theft. Davis's trial was conducted in June 1985. However, Patricia Underwood, Davis's codefendant, has consistently maintained, since at least November 1984, that she committed the murder. Because we find that prosecutorial misconduct at trial violated constitutional guarantees of due process, we reverse the decision of the district court and order that the writ be granted.

I. FACTS AND PROCEEDINGS BELOW

A jury convicted Davis of murder and armed robbery on June 8, 1985. He was sentenced to death that same day. Davis appealed, and the Georgia Supreme Court affirmed the conviction and sentence. Davis v. State, 255 Ga. 598, 340 S.E.2d 869 (1986), cert. denied, 479 U.S. 870, 107 S.Ct. 245, 93 L.Ed.2d 170 (1986). Davis petitioned for postconviction relief in the Superior Court for Butts County, Georgia, in December 1986. Evidentiary hearings were conducted on October 21, 1988, and November 21, 1988. The petition was subsequently denied. Davis filed a certificate of probable cause to appeal, which was denied by the Georgia Supreme Court on February 21, 1990. The U.S. Supreme Court denied certiorari. Davis v. Kemp, 498 U.S. 881, 111 S.Ct. 217, 112 L.Ed.2d 176 (1990).

Davis then filed a petition for habeas corpus, pursuant to 28 U.S.C. Sec. 2254, in the United States District Court for the Middle District of Georgia. Davis also moved for the right to conduct discovery, for funds for depositions and expert assistance, for an evidentiary hearing, and to expand the record. The district court denied Davis's motions and eighteen months after the petition was filed, the district court denied the habeas petition in a one paragraph order. The court held that all of Davis's claims were unexhausted, procedurally defaulted, or meritless. There were no findings of fact or conclusions of law. This appeal followed.

First we detail the relevant facts. The record before us contains the evidence presented at trial, and evidence presented in the state habeas proceedings. Davis confessed to the murder twice immediately after he and Underwood were arrested. His confession was admitted at trial through the testimony of a police officer who witnessed the confession. Gary Lofton and Wayne Kite were key prosecution witnesses who had interaction with Davis and Underwood immediately before the crime. Lofton testified at trial for the prosecution. He was a friend of the victim, a member of a musical band that played at the bar where the victim met Davis and Underwood, and was bartending at that bar the day Isham was murdered. Wayne Kite was working the front desk of the Nora Faye Motel when Isham was murdered there.

Prior to Davis's trial, Underwood made a detailed tape recorded confession in the presence of Davis and his attorneys. ¹ Underwood also told her attorney, Richard Mobley, that she alone had murdered Isham, that she wished to dismiss him from her case, and that she wanted to speak to Davis's attorneys. ² All extrinsic evidence of Underwood's confession was excluded from the trial, however, and she refused to testify at trial by invoking the Fifth Amendment. Five days after Davis's conviction Underwood pled guilty to the murder and received a life sentence plus twenty years. Davis testified at trial that he had confessed to the murder in order to protect Underwood and that Underwood had actually committed the murder.

The facts up to the day of the murder are essentially undisputed. In December of 1983, Davis and Patricia Underwood, a woman whom he had dated for one month, stole an automobile in Philadelphia. They discovered large quantities of methamphetamine (or "speed") in the car, along with paraphernalia familiar to Davis, used in manufacturing speed. Davis and Underwood determined that they had stolen the car of a drug dealer. Fearing reprisal, they stole the methamphetamine and the drug dealer's identification pieces, abandoned the car, stole another automobile, and drove to Georgia. Davis and Underwood traveled in the stolen vehicle to Ellijay, Georgia, where Underwood's parents lived. After a short stay in Ellijay the couple drove on to Columbus, where they rented a room at the Nora Faye Motel on December 30, 1983. During their travels, Davis and Underwood consumed much of the methamphetamine in a week-long binge.

Davis encountered members of a musical band, including Gary Lofton, who were playing at a bar called the Peachtree Pub located across the street from the Nora Faye motel. The band members invited Davis and Underwood to come to the bar that evening. Davis and Underwood went to the Peachtree Pub for the evening and drank heavily. Underwood left the bar alone, before Davis. At some point Davis left the Pub and wrecked the automobile which he and Underwood had been using.

The next day was December 31, 1983, and the parties' versions of events begin to diverge. It is undisputed that the next afternoon Davis returned to the Peachtree Pub where he met the victim, Susan Marlene Isham, at the bar. Later, Underwood came to the bar to join Davis. The undisputed facts reveal that Davis and Isham conversed at some length and that Isham accompanied Davis to the Nora Faye Motel in a Mercury Marquis belonging to Isham's father. Apparently, Isham decided to purchase some of the remaining drugs from Davis. The evidence shows that Underwood came to the Peachtree Pub that same afternoon after Davis had arrived and left before Davis. The facts also indicate that Underwood spent little time at the Peachtree Pub with Davis.

There is some dispute over the interaction between Davis and Underwood at the Peachtree Pub. According to Davis and Underwood, Underwood became upset at the interaction between Isham and Davis. Underwood and Davis argued, and Underwood left the bar alone. Underwood claims that she was angry and returned to the motel room and began drinking. Lofton testified at trial that he witnessed no confrontation between Underwood and Davis, and that Underwood spent most of her time at the bar separated from Isham and Davis.

Underwood's confession states that Davis returned to the motel with Isham and let himself into the room using a spare key that he had obtained from the front desk. Wayne Kite testified, however, that he witnessed Davis, Isham and Underwood conversing in the doorway of their motel room moments after Davis and Isham drove up to the motel in the Mercury Marquis. Kite testified that Davis came to pick up the spare key a few minutes later, after he had gained entry into the room.

Davis and Underwood maintain that Isham accompanied Davis to the motel in her car in order to purchase drugs before leaving to visit a friend in Atlanta. The state does not dispute the purpose of Isham's visit. According to Davis and Underwood, Underwood and Isham began arguing as soon as Isham entered the room. Underwood states that she was jealous and angry over the attention Davis had given to Isham. Davis testified that he calmed Underwood down in order to consummate the drug transaction. Isham allegedly purchased marijuana and some powdered vitamins that Davis and Underwood had falsely represented was "speed." After taking the money from Isham, Davis then left the room to pay for more lodging at the motel. ³ It is undisputed that Davis spent at least five minutes in the office talking with Wayne Kite while he paid for the room. According to Underwood, she and Isham argued again after Davis left. Underwood states that she was furious at Isham for the attention she had elicited from Davis. Underwood states that Isham was watching television while she went into the bathroom, that she ripped the cord from her electric curling iron, crept up behind Isham and wrapped the cord around her neck and began choking her. The two fell to the floor. Underwood and Davis stated that Isham urinated on Underwood's boots as she died.

Moments later, according to the testimony of Davis and Underwood, Davis returned to find Underwood engaged in strangling Isham. Davis testified that he pushed Underwood off of Isham, checked Isham's pulse and discovered that she had no pulse. Davis assisted Underwood in dragging Isham's body into the bathroom. Underwood left her own soiled boots in the motel room and took Isham's. Underwood stated that no other items were taken from Isham, although Davis admitted at trial that he removed some items from Isham's body before they left. The two fled the Nora Faye Motel in the Mercury Marquis that Isham had been driving. They claim that Davis decided to claim responsibility for the crime so that Underwood could avoid the death penalty.

According to the prosecution, Davis strangled the victim after she entered the motel room, while Underwood stood by. Their version of the events in the motel room is based on Davis's post-arrest confessions. According to those confessions, Davis impulsively ripped the electric cord from the curling iron and strangled Isham in the midst of the drug transaction. The prosecution argued that Davis had picked up the key and...