Davis v. State

• Decision Date: 30 August 2013
• Docket Number: CR-10-0224
• Parties: David Eugene Davis v. State of Alabama
• Court: Alabama Court of Criminal Appeals

David Eugene Davis v. State of Alabama

CR-10-0224

ALABAMA COURT OF CRIMINAL APPEALS

OCTOBER TERM, 2012-2013

Dated: August 30, 2013

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

Appeal from St. Clair Circuit Court

(CC-96-0091.60)

BURKE, Judge.

David Eugene Davis pleaded guilty to capital murder wherein two or more people were murdered by one act or pursuant to one scheme or course of conduct, in violation of § 13A-5-40(a)(10), Ala. Code 1975. As required by § 13A-5-42,Ala. Code 1975, the State presented evidence to a jury in order to prove Davis's guilt beyond a reasonable doubt.¹ The jury returned a guilty verdict and, after the penalty phase of the trial, recommended that Davis be sentenced to death by a vote of 11 to 1. The trial court accepted the jury's recommendation and sentenced Davis to death. This Court affirmed the judgment of the trial court in Davis v. State, 740 So. 2d 1115 (Ala. Crim. App. 1998). The Alabama Supreme Court affirmed this Court's decision in Ex parte Davis, 740 So. 2d 1135 (Ala. 1999), and the United States Supreme Court denied certiorari review. Davis v. Alabama, 529 U.S. 1039 (2000).

On March 16, 2001, Davis filed a timely petition for postconviction relief pursuant to Rule 32, Ala. R. Crim. P. Davis amended his petition three times, and, for variousreasons, the case was assigned to different judges over an 11-year period.² Ultimately, the case was assigned to Judge William Cardwell, who summarily dismissed Davis's third amended petition on November 4, 2010. This appeal follows.

We first note that § 13A-5-42, Ala. Code 1975, provides, in part, that a "guilty plea shall have the effect of waiving all non-jurisdictional defects in the proceeding resulting in the conviction except the sufficiency of the evidence." In Hutcherson v. State, 727 So. 2d 846, 851 (Ala. Crim. App. 1997), this Court interpreted the phrase "proceeding resulting in conviction" to mean the guilt phase of a capital trial. Accordingly, on direct appeal, this Court reviewed the proceedings before and during the guilt phase of Davis's trial for jurisdictional errors. Davis v. State, 740 So. 2d at 1117. Additionally, we reviewed the penalty phase of the proceedings for any error, whether preserved or plain, as required by Rule 45A, Ala. R. App. P., which provides:

"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."

As noted, this Court found no such error and affirmed Davis's conviction and sentence.

We also note that, "'even though this petition challenges a capital conviction and a death sentence, there is no plain-error review on an appeal from the denial of a Rule 32 petition.'" Boyd v. State, 913 So. 2d 1113, 1122 (Ala. Crim. App. 2003), quoting Dobyne v. State, 805 So. 2d 733, 740 (Ala. Crim. App. 2000). "'In addition, "[t]he procedural bars of Rule 32 apply with equal force to all cases, including those in which the death penalty has been imposed."'" Burgess v. State, 962 So. 2d 272, 277 (Ala. Crim. App. 2005), quoting Brownlee v. State, 666 So. 2d 91, 93 (Ala. Crim. App. 1995), quoting in turn State v. Tarver, 629 So. 2d 14, 19 (Ala. Crim. App. 1993).

The facts from Davis's case were set forth in this Court's opinion on direct appeal as follows:

"At around 9 p.m. on June 23, 1996, [Davis] was drinking alcohol with his ex-brother-in-law, Tommy Reed. He told Reed he wanted to kill his ex-wife, from whom he had recently been divorced, and he saidhe knew where he could get a firearm. He left Reed, and around 10 p.m., he asked two people at a service station for directions to the victims' home. At the time, he was aggressive and seemed to be in a hurry. According to his statements to police, he went to the victims' home and spoke to Kenneth Douglas. At some point, he got into a confrontation with Douglas during which he took a firearm from Douglas and shot him. When he heard another person moving in the bedroom, he shot into that room, killing John Fikes. He then started collecting various items belonging to the victims, including several firearms, which he said he intended to sell to obtain crack cocaine. As he was doing so, he noticed a kerosene lantern and decided to set the house on fire.

"Around 1:30 a.m. the following morning, a relative of one of the victims noticed that the victims' house was on fire and telephoned 911. Also around 1:30 a.m., [Davis] went to Louis Dodd's home and attempted to sell Dodd some of the firearms he took from the victims' home. Dodd described [Davis] as being 'scared to death' and said he appeared to be 'drunk and on drugs.' When Dodd told him not to come to his house at that time of the morning asking to sell stolen properly, he told Dodd, 'They come from far away.' Shortly thereafter, the Trussville Police Department received a complaint about a man walking door-to-door, holding a sawed-off shotgun in one hand and a jug in the other, and asking for gasoline for his vehicle. When they arrived at the scene, the officers recognized [Davis's] vehicle and located [Davis]. As the officers were trying to arrest [Davis], he dropped the shotgun behind some bushes. The officers testified that [Davis] was aware of what was happening as they arrested him and that he probably was not intoxicated to such a degree that he could be arrested for driving under the influence. They also testified that the area where they arrested [Davis] was known for drug activity. The officers found numerous items in his vehicle that belonged to the victims.

"Tommy Reed, [Davis's] ex-brother-in-law, testified that, on June 24, 1996, he talked to [Davis] while [Davis] was in the Trussville jail. When Reed asked him how bad it was, [Davis] responded that it was 'real bad' and 'more than life.' He then said, 'I'll see you in heaven.'

"At trial, some of the witnesses speculated that [Davis] was under the influence of drugs and alcohol when he committed the murders.

"The medical examiner testified that the victims died from the gunshot wounds."

Davis v. State, 740 So. 2d at 1118-19. The record also reveals that Davis gave two written statements to the police in which he admitted to shooting Kenneth Douglas and John Fikes, the victims, gathering their belongings, and setting fire to their house. (R1. 260.)³

Standard of Review

Generally, "[t]he standard of review on appeal in a post conviction proceeding is whether the trial judge abused his discretion when he denied the petition." Elliott v. State, 601 So. 2d 1118, 1119 (Ala. Crim. App. 1992). "'A judge abuses his discretion only when his decision is based on anerroneous conclusion of law or where the record contains no evidence on which he rationally could have based his decision.'" Hodges v. State, 926 So. 2d 1060, 1072 (Ala. Crim. App. 2005), quoting State v. Jude, 686 So. 2d 528, 530 (Ala. Crim. App. 1996)(internal citations omitted). However, "when the facts are undisputed and an appellate court is presented with pure questions of law, that court's review in a Rule 32 proceeding is de novo." Ex parte White, 792 So. 2d 1097, 1098 (Ala. 2001). Additionally, in Ex parte Hinton, [Ms. 1110129, November 9, 2012] _ So. 3d __, __ (Ala. 2012), the Alabama Supreme Court held that when a circuit court's decision in a Rule 32 petition is based solely on the "'cold trial record,'" it is "in no better position than ... an appellate court to make the determination it made." Therefore, in that situation, the reviewing court should apply a de novo standard of review. Id. The judge who presided over Davis's Rule 32 proceedings was not the judge who had presided over Davis's trial; and, because the petition was summarily dismissed, no evidentiary hearing was held. Accordingly, we will review the issues raised by Davis de novo.

In his third amended petition, Davis raised multiple issues and subissues. However, we will only address those issues that Davis has argued in his brief on appeal. Allegations that are not expressly argued on appeal are deemed to be abandoned and will not be reviewed by this Court. Brownlee v. State, 666 So. 2d 91, 93 (Ala. Crim. App. 1995).

I.

First, Davis asserted that he was denied the right to be present when the trial court gave supplemental instructions to the jury during the guilt phase of his trial. Specifically, Davis claimed in his third amended Rule 32 petition:

"Outside the presence of Mr. Davis, his counsel, and the prosecution, the trial court stated the following to the jury:

"'Ladies and Gentlemen, you began deliberation yesterday afternoon, and you have been back this morning and you have further deliberated for two hours. The allegations in this case are very serious, and don't get the idea I'm telling you not to deliberate. What I want to make sure is that you stay focused on the issues in this case. Your determination at this point is whether there is proof beyond a reasonable doubt that the defendant committed the offense of capital murder. If you do not find such proof beyond a reasonable doubt of the elements of capital murder as I have explained them to you, then you would also consider if the defendant was guilty of any lesser included offenses or whether the defendant was not guilty. What you are to consider -- and the only things you are to consider in this case is the evidence that has been brought to you from the witness stand, the exhibits that have been introduced. You

...