Davis v. People

• Decision Date: 14 March 1994
• Docket Number: No. 92SC788,92SC788
• Citation: 871 P.2d 769
• Parties: Gary Lee DAVIS, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 769

871 P.2d 769

Gary Lee DAVIS, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 92SC788.

Supreme Court of Colorado,

En Banc.

March 14, 1994.

Rehearing Denied May 2, 1994.

Dennis W. Hartley, P.C., Dennis W. Hartley, Colorado Springs, for petitioner.

Gale A. Norton, Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., Robert M. Petrusak, Asst. Atty. Gen., Crim. Enforcement Section, Denver, Steven L. Bernard, Sp. Asst. Atty. Gen., Brighton, for respondent.

Justice MULLARKEY delivered the Opinion of the Court.

We granted certiorari to determine whether the court of appeals in People v. Davis, 849 P.2d 857 (Colo.App.1992) (Davis II ), correctly upheld the trial court's ruling denying the defendant's Crim.P. 35(c) motion for post-conviction relief. Because we agree with the court of appeals that trial counsel for the defendant was an effective advocate, we affirm.

I

The defendant, Gary Lee Davis (Davis), and his now-divorced wife, Rebecca Fincham (Fincham), were prosecuted for the kidnapping, sexual assault and murder of Virginia May. The jury found Davis guilty of murder in the first degree, ¹ felony murder, ² conspiracy to commit murder in the first degree, ³ second degree kidnapping, ⁴ and conspiracy to commit second degree kidnapping. ⁵ Upon completion of the sentencing phase of the trial, the jury returned a death penalty verdict pursuant to the convictions. This court affirmed that verdict on appeal. People v. Davis, 794 P.2d 159, 213 (Colo.1990), cert. denied, 498 U.S. 1018, 111 S.Ct. 662, 112 L.Ed.2d 656 (1991) (Davis I ). Although Fincham was also convicted of murder in the first degree and several other felonies for her role in the killing, she received a life sentence. People v. Fincham, 799 P.2d 419 (Colo.App.1990), cert. denied, No. 90SC447 (Nov. 13, 1990). The facts underlying Davis' convictions are set forth fully in Davis I. 794 P.2d at 167-70.

After this court affirmed the judgments of conviction and death penalty sentence, Davis filed a motion for post-conviction relief under Crim.P. 35(c), and the trial court granted a stay of execution. Davis alleged that he was deprived of his constitutional right to effective assistance of counsel at the guilt and sentencing phases of the trial. At the Rule 35(c) hearing, trial counsel for Davis, Craig Truman (Truman), testified that in his opinion, his representation of Davis had been ineffective. The defense also presented an expert witness, Chief Trial Deputy in the Public Defender's Office Terri Brake (Brake), who testified that the performance rendered by Truman failed to satisfy the constitutional requirement that representation amount to reasonable, competent assistance. Brake based her opinion primarily on her view that Truman failed adequately to investigate potential mitigating factors, such as Davis' 1965 head injury, his alcoholism, his "passive-aggressive personality," and the positive statements some family members and friends may have made about Davis if called to testify.

Truman, an experienced defense attorney who previously had conducted 38 murder trials, including seven capital cases, explained that his strategy at the sentencing phase of the trial was to show that Fincham was equally, if not more, responsible for Virginia May's abduction and murder. He had hoped to persuade the jury that as a matter of equity, since Fincham received a life sentence, Davis should also be spared the death penalty. Truman further testified that when Davis opted, against his advice, to take the stand and testify that he was more responsible for the murder of Virginia May than Fincham, he was not adequately prepared to present any alternative theories of mitigation.

The People contended, however, that Truman's strategy was justified in light of the overwhelming evidence of Davis' guilt. More importantly, in choosing to testify and implicate himself as the more culpable party, Davis contradicted his attorney's clear advice and forced Truman to pursue the trial strategy which Davis now contends was ineffective. In fact, Truman felt compelled to make a sealed record pursuant to People v. Schultheis, 638 P.2d 8 (Colo.1981), in which he explained how Davis had agreed with the facts and theory set forth in the opening statement yet chose to undercut that strategy by claiming that he, and not Fincham, was responsible for the murder. Truman also expressed his concern that his client's latest version of the events was untruthful and contrary to the physical evidence.

Applying the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court denied Davis' Crim.P. 35(c) motion based on its findings that Truman's performance did not fall below an objective standard of reasonableness and that Davis was not prejudiced by Truman's alleged ineffectiveness. The trial court specifically found that Truman's decision not to use certain potential character witnesses "was determined by trial counsel's opinion that they would do more harm than good.... The decision by [Davis] to testify at trial and to repudiate his prior story--more than the representation of [Truman]--led to the jury's decision to sentence [Davis] to death."

The court of appeals affirmed the trial court's ruling, holding that the representation provided by Davis' counsel did not constitute a violation of his right to effective assistance of counsel. Davis II, 849 P.2d at 863. It rejected Davis' claims that Truman was ineffective for his failure (1) to adequately investigate potential mitigating evidence; (2) to contact family and friends of Davis as potential character witnesses; (3) to explore and present Davis' alcoholism as a mitigating factor; and (4) to investigate sufficiently a closed head injury suffered by Davis twenty-five years earlier. The court of appeals also held that Truman did not abandon Davis during closing argument at the sentencing phase when Truman conceded that the crime was "inexcusable" and expressed his distaste for his client. Such comments constituted part of Truman's strategic decision to maintain his "candor and credibility" with the jury in the face of overwhelming evidence of his client's guilt. Id.

Davis does not now contend that Truman's performance at the guilt phase of the trial was constitutionally inadequate. ⁶ Rather, the sole question presented is whether Truman provided effective assistance during the sentencing phase of the trial.

II

A defendant's right in a criminal proceeding to receive the reasonably effective assistance of an attorney acting as his diligent and conscientious advocate is guaranteed by the United States and Colorado Constitutions. U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); People v. Norman, 703 P.2d 1261, 1272 (Colo.1985). In order to obtain relief based on a claim of ineffectiveness of counsel, a defendant must satisfy the test adopted by the United States Supreme Court in Strickland, and followed by this court. See, e.g., People v. Garcia, 815 P.2d 937 (Colo.1991); People v. Drake, 785 P.2d 1257 (Colo.1990); People v. Cole, 775 P.2d 551 (Colo.1989).

Under the two-prong test of Strickland, a defendant must show, first, that "in light of all the circumstances, the identified acts or omissions [of counsel] were outside the wide range of professionally competent assistance." 466 U.S. at 690, 104 S.Ct. at 2066. In determining whether trial counsel's performance was deficient, the relevant inquiry is whether counsel's representation fell below an objective standard of reasonableness as informed by prevailing professional standards. Id. at 688, 104 S.Ct. at 2064-2065. This assessment requires that conduct be evaluated from counsel's perspective at the time the representation occurred, ignoring "the distorting effects of hindsight." Id. at 689, 104 S.Ct. at 2065. Because of the difficulties of such an evaluation, the Strickland Court has directed courts to "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)).

Mere error by counsel, even if professionally unreasonable, does not justify setting aside the judgment of a criminal proceeding if the error had no adverse impact on the defense. Thus, Strickland requires that the defendant also affirmatively prove that he was prejudiced by the deficient performance of counsel. Id. To establish prejudice, the defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. 466 U.S. at 694, 104 S.Ct. at 2068. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id.

Davis advances several arguments in support of his view that Truman's performance was both unreasonable and prejudicial to his defense. We will address each of these arguments in turn.

A

Davis first contends that Truman's failure to investigate adequately prior to the sentencing phase potential mitigating evidence and, more specifically, his decision not to contact certain of Davis' family members, friends, employers, former counselors or neighbors who may have been willing to testify as favorable character witnesses for Davis, amounted to ineffective assistance. We disagree.

A defendant is entitled to a pretrial investigation sufficient to reveal potential defenses and the facts relevant to guilt or penalty. Norman, 703 P.2d at 1272; People v. White, 182 Colo. 417, 422, 514 P.2d 69, 71 (1973). This is so because proper investigation of the case is...