Davis v. Executive Director of Dep't of Corrections

• Decision Date: 13 November 1996
• Docket Number: No. 95-1285,95-1285
• Parties: GARY LEE DAVIS, Petitioner-Appellant, v. EXECUTIVE DIRECTOR OF DEPARTMENT OF CORRECTIONS, as head of the Department of Corrections, Ari Zavaras, Respondent-Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 750

100 F.3d 750

GARY LEE DAVIS, Petitioner-Appellant, v. EXECUTIVE DIRECTOR OF DEPARTMENT OF CORRECTIONS, as head of the Department of Corrections, Ari Zavaras, Respondent-Appellee.

No. 95-1285

United States Court of Appeals, Tenth Circuit

November 13, 1996

Rehearing Denied December 23, 1996

Appeal from the United States District Court for the District of Colorado, (D.C. NO. 94-Z-1931) Vicki Mandell-King, Assistant Federal Public Defender, Denver, CO; and Dennis W. Hartley, Colorado Springs, CO (Michael G. Katz, Federal Public Defender, Denver, CO, with them on the briefs), for Petitioner-Appellant.

Robert M. Petrusak, Senior Assistant Attorney General, Denver, CO; and Steven Bernard, Adams County Attorney's Office, Brighton, CO (Gale A. Norton Attorney General, with them on the brief) for Respondent-Appellee.

Before ANDERSON, BALDOCK, and HENRY, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Gary Lee Davis appeals from the district court's denial of his first petition for a writ of habeas corpus, in which he seeks to overturn his sentence of death. We granted Mr. Davis's request for a certificate of probable cause and a stay pending appeal.¹ We hold as follows: (1) Mr. Davis was not abandoned by his attorney in the closing argument of the penalty phase of his trial; (2) Mr. Davis suffered no prejudice from his attorney's failure to pursue and present certain additional mitigating evidence in the penalty phase; (3) the statutory aggravators presented to the jury were either valid or, if invalid or otherwise erroneously submitted to the jury, were harmless; (4) the penalty phase jury instructions neither misled nor confused the jury concerning its evaluation of mitigating evidence; and (5) no error occurred in the removal for cause of three prospective jurors. We therefore affirm the denial of Mr. Davis's habeas petition.

BACKGROUND

In July 1986, in Byers, Colorado, Gary Davis and his then-wife, Rebecca Fincham Davis, kidnaped, sexually assaulted and murdered Virginia May. Mr. Davis has never challenged his conviction for that crime, nor does he dispute his involvement in it. The tragic facts concerning this crime have been fully set out in the state court opinions affirming Mr. Davis's conviction and sentence on direct appeal and in state post-conviction proceedings. People v. Davis, 849 P.2d 857 (Colo. Ct. App. 1992) (Davis II), aff'd, 871 P.2d 769 (Colo. 1994) (Davis III); People v. Davis, 794 P.2d 159 (Colo. 1990) (Davis I), cert. denied, 498 U.S. 1018 (1991). We refer to facts concerning the crime only as necessary in our discussion of particular issues.

Mr. Davis and Ms. Fincham were tried separately. The state sought the death penalty against Mr. Davis but not Ms. Fincham. When Mr. Davis's appointed state public defender had to withdraw because of a conflict of interest, Craig Truman was appointed Mr. Davis's counsel. Against Mr. Truman's advice, Mr. Davis testified before the jury during the guilt/innocence phase of the trial, stating that he had kidnaped, assaulted and murdered Ms. May, and emphasizing his own culpability over that of Ms. Fincham. The jury found Mr. Davis guilty of murder in the first degree after deliberation; felony murder; conspiracy to commit murder in the first degree; second degree kidnaping; and conspiracy to commit second degree kidnaping. He was sentenced to life imprisonment on the conspiracy and second degree kidnaping convictions.²

The penalty phase for the murder convictions began the day after the guilt/innocence phase concluded. The jury was presented with six aggravating factors and eight mitigating factors. It found all six aggravating circumstances proven and made no findings on the existence of any mitigating factors. The jury concluded beyond a reasonable doubt that death was the proper punishment.

In his direct appeal, Mr. Davis challenged his sentence on numerous grounds. The Colorado Supreme Court affirmed the sentence, with three justices dissenting. Davis I. Mr. Davis then filed a motion for post-conviction relief, arguing that Mr. Truman provided ineffective assistance of counsel during the penalty phase of the trial. Mr. Davis sought additional time to investigate this claim of ineffectiveness. The court conducted a hearing, after which it denied his ineffectiveness claim. The Colorado Court of Criminal Appeals affirmed, with one judge dissenting, Davis II, and the Colorado Supreme Court affirmed. Davis

III.

After exhausting state remedies, Mr. Davis brought this federal habeas petition arguing: (1) Mr. Truman rendered ineffective assistance of counsel during the penalty phase because he (a) abandoned Mr. Davis in his closing argument; and (b) failed to conduct adequate investigation into, and failed to present, mitigating evidence in Mr. Davis's background; (2) the jury was permitted to consider unconstitutional statutory aggravators; (3) various errors occurred in the penalty phase instructions; and (4) the trial court erroneously excluded three prospective jurors because of their stated qualms about the death penalty. The district court denied his habeas petition. Davis v. Executive Dir., 891 F. Supp. 1459 (D. Colo. 1995). Mr. Davis appeals.

DISCUSSION

We review de novo the district court's legal conclusions in dismissing a petition for a writ of habeas corpus. Harvey v. Shillinger, 76 F.3d 1528, 1532 (10th Cir. 1996), cert. denied, ___ U.S. ___, 117 S.Ct. 253, 136 L.Ed.2d 179 (1996). We review the district court's factual findings for clear error. Edens v. Hannigan, 87 F.3d 1109, 1113-14 (10th Cir. 1996). State court factual findings are presumptively correct and are therefore entitled to deference. Medina v. Barnes, 71 F.3d 363, 369 (10th Cir. 1995); 28 U.S.C. Section(s) 2254(d).

I. Effective Assistance of Counsel.

A. Abandonment:

Mr. Davis first argues that his attorney, Mr. Truman, effectively abandoned him during closing arguments in the penalty phase of his trial, thereby leaving him without counsel at all. The obligation to provide effective assistance of counsel extends to a capital sentencing hearing. Brecheen v. Reynolds, 41 F.3d 1343, 1365 (10th Cir. 1994), cert. denied, _____ U.S. _____, 115 S. Ct. 2564, 132 L.Ed.2d 817 (1995). "A defense attorney who abandons his duty of loyalty to his client and effectively joins the state in an effort to attain a conviction or death sentence suffers from an obvious conflict of interest," and thereby fails to provide effective assistance. Osborn v. Shillinger, 861 F.2d 612, 629 (10th Cir. 1988). Usually, when a defendant claims ineffective assistance of counsel because his attorney's performance was inadequate, he must show both constitutionally deficient performance and that he was prejudiced by his attorney's errors. Brecheen, 41 F.3d at 1365. In the event of an actual conflict of interest occasioned by abandonment, prejudice is presumed. Osborn, 861 F.2d at 626; see also United States v. Williamson, 53 F.3d 1500, 1510-11 (10th Cir.), cert. denied, _____ U.S. _____, 116 S. Ct. 218, 133 L.Ed.2d 149 (1995); Brecheen, 41 F.3d at 1364 n.17. ³

Mr. Truman began his closing argument in the penalty phase with the following:

Now it's my turn to come and ask you for Gary Davis's life. That's what I'm here to do. For 14 long years I have practiced law in these criminal courts and up and down these mean halls. You think you have seen just about everything. You think you have seen everything once. I have never seen a case like this. I never have, and I hopefully never will.

R. Vol. V, Vol. 33 at 51. He went on to state:

There are times in this case that I hate Gary Davis, I am going to tell you that, and I think you know it. There are times I hate the things that he has done, and I have told him, and I tell you, there's no excuse for it. There's no excuse for it whatsoever.

In the times that we have seen these cases come and go, they get worse and worse instead of better, and I'm not kidding anybody, this is one of the worst ones I have ever seen or heard of. I can't recall a case where I have never made a closing argument, and I can't recall a case where we have spoken as little to you as we have this one, and there's a reason for it. That reason is that in December, when I first saw Gary Davis, I knew that sometime or other I was going to be standing here asking for 12 people's mercy. That's all he has got. That's all we can seek. . . . I, too, think killing is wrong, and it's killing, whether it's the state, and it's killing, whether it's Gary Davis. . . . It says, "Thou shalt not kill," and if I or you . . . or anybody who was there, and if Ginny May would have lived -- she didn't, she died -- and if I thought -- if I thought that Brandon and Krista May would have five seconds of peace by Gary Davis's death, I would choke the life out of him right now, and he knows it, but it won't help. . . .

Some of the times I hate Gary Davis is because of what he has done to me. I have been on this case since December, when the public defender got off. The public defender got off because of Gary Davis's lies, and Gary Davis has lied to me. Gary Davis set up the public defender for failure. In a lot of respects he set me up for failure. I guess I'm too prideful, worried about my reputation. Maybe that's why I hated him the other day.

Id. at 51-53. Mr. Truman then discussed at some length the relationship between Mr. Davis and Ms. Fincham, reiterating the theme of the guilt/innocence phase of the trial, that Ms. Fincham was the more culpable of the two. Mr. Truman told the jury:

As bad as Gary Davis is -- and you won't hear me say otherwise -- there's someone equally as bad, maybe worse. That someone continues to lie. . . . Anything to save Becky Davis [Fincham]. That demonstration alone, of watching him testify, I submit to you shows who's wearing the pants in this family. I'm not saying that forgives Gary Davis. Nothing forgives Gary Davis. He deserves to get what she got. ...