Davis v. State, 86363
| Decision Date | 06 November 1997 |
| Docket Number | No. 86363,86363 |
| Citation | 703 So.2d 1055 |
| Parties | 22 Fla. L. Weekly S701, 23 Fla. L. Weekly S7 Toney Deron DAVIS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Nancy Daniels, Public Defender; and Bill Salmon, Special Assistant Public Defender, Gainesville, for Appellant.
Robert A. Butterworth, Attorney General and Mark S. Dunn, Assistant Attorney General, Tallahassee, for Appellee.
We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Toney Deron Davis. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.
Davis was charged with and convicted of first-degree felony murder, aggravated child abuse, and sexual battery for the murder of Caleasha Cunningham on December 9, 1992.
The sentencing order states that the victim was two years old when she was killed. Davis was twenty-two. Davis first met the victim's mother, Gwen Cunningham, in 1992 and lived with her from September 1992 until he was arrested on December 9, 1992. On the day of the murder, the mother left her child--then in good health and without injuries--in Davis's care while she ran an errand.
Thomas Moore, an acquaintance of Davis's, testified that he arrived at the apartment at around 12:45 p.m. and that Davis answered the door with the victim draped over his arm. Moore said Davis told him Caleasha had choked on a french fry. Moore said that after he called 911 and returned to the apartment, Davis was giving the victim mouth-to-mouth resuscitation. Moore went to the hospital with Gwen Cunningham when she returned.
Davis testified that he had left Caleasha and his friend Moore alone in the apartment at about 12:30 p.m. and went to make some phone calls. He said that when he returned, Moore was gone and Caleasha was having a seizure. He says he administered CPR, put her in the shower to revive her, and accidentally dropped her in the shower. Davis said that when Moore returned, he had him call 911. Davis said that Moore asked him not to mention that he had been with Caleasha because Moore had marijuana in his possession. Sergeant Phillips testified that Davis told him he was alone with the child.
A neighbor, Janet Cotton, testified that she heard a child crying in Cunningham's apartment and a lot of thumping noises coming from the apartment at approximately noon. She heard Davis say in a loud, angry voice, "Sit down." She said that thirty minutes after the "ruckus" ended, rescue personnel arrived.
The victim was wet, unconscious, and had blood in her mouth when she was examined in the apartment. She was naked from the waist down, although she had been fully clothed when left with Davis. Davis said that the victim was choking on a french fry and he had been trying to revive Caleasha.
The emergency-room doctor who treated the victim, Doctor DeNicola, testified that the victim was brought in at around 1:40 p.m. with bruising, swelling of the brain, and pools of blood in the skull. Doctor Whitworth, who examined the child at the request of state child welfare authorities, testified that the injuries indicated vaginal penetration by a penis, a finger, or an object. The medical examiner, Doctor Floro, testified that there was no injury to the vaginal area, but that it could have healed quickly. He said the victim had suffered four separate blows to the head, causing cerebral hemorrhage. This was the cause of death.
There was additional bruising, and there was a large collection of blood at the back of the head which was not consistent with being accidentally dropped. The child was revived but died shortly afterward on December 10, 1992.
In the bed shared by Davis and Gwen Cunningham, police found a hair bow which had been placed in the victim's hair before she was left with Davis. There was blood on the toilet seat and tank, on a sheet in the bedroom, and on the floor where the victim had been lying. There was also blood on the sink counter, on a grocery bag, on a washcloth, and on a blanket and pillowcase. There was blood which was found to be the victim's on the crotch region of the shorts Davis was wearing and on his underwear.
Gwen Cunningham testified that there were no blood stains anywhere when she left, that Caleasha did not sleep in bed with her, and that there were no hair ribbons in the bed when she left. She said Caleasha was clothed when she left.
The jury recommended the death penalty by a vote of eleven to one. After considering a presentence report and memoranda from both sides, the court followed the jury's recommendation and imposed the death penalty.
The judge found two aggravators: that the murder was committed during the course of a sexual battery and that it was heinous, atrocious, or cruel (HAC). The judge rejected the statutory mitigator of "no significant prior criminal history," based on Davis's three prior convictions. The judge evaluated the following nonstatutory mitigating factors suggested by the defense: Davis's family background (from evidence offered to show Davis was a good student, was a good child, had musical talent, wrote poetry, and attended church), that he was a good person who did not smoke or drink, that he was not violent, and that the evidence against him was circumstantial only. The judge found that the "good student" mitigating circumstance was not established, but considered the rest of the family background factors and gave them some weight. He found that the prior criminal history disproved the contention that Davis was a "good person," and that his not smoking and drinking were irrelevant. Also, the prior history included a crime of violence, so the "not violent" factor was not found to exist. Also, the circumstantial evidence mitigator was found not proven and irrelevant as a mitigator or an aggravator.
Davis raises eight issues in this appeal. He argues (1) it was error not to follow Nelson v. State 1 and Faretta v. California 2 when he moved to discharge court-appointed counsel before trial; (2) it was error to deny his motion for judgment of acquittal; (3) because the evidence failed to prove the victim was alive when vaginal penetration occurred, the sexual battery conviction should be reversed; (4) it was error to admit victim impact evidence which did not satisfy the statute; (5) the court erred in considering and finding HAC where there was no evidence on or jury consideration of the aggravator; (6) it was error to find HAC proven; (7) it was error to find the "committed during the course of sexual battery" aggravator; and (8) the death penalty is disproportionate.
We have conducted an independent review of the record, and we find competent and substantial evidence to support the convictions and sentence. We address Davis's arguments below.
As his first argument, Davis asserts that the court erred by not following the procedures set out in Nelson and Faretta when he moved to discharge his court-appointed counsel before trial. Davis's "motion to discharge" was ambiguous at best. At different points in the proceedings, he expressed dissatisfaction with his attorney. At the March 21, 1994, pretrial conference, he stated:
If you want somebody else then, you can discuss it at that time, but I'll have to have him here. But I will talk to you about it.
On April 5, 1994, the matter was brought up again:
Mr. Davis, the last time we had you over, you had indicated that you were not happy with the way things were proceeding?
At this point, Davis's attorney detailed the work he was currently doing to prepare for Davis trial. The judge continued:
THE COURT: Mr. Davis, it sounds like they're doing everything they can to get it ready. It doesn't sound like it's going to be a real simple case to get tried.
....
It's a--you know, it's a case where the state is seeking to put you in the electric chair, so it's not one where you should be in any rush for Mr. Adams to go to trial before he's ready. It's only going to be one trial, and the outcome of it is of absolute[ly] vital importance to all of us, but to you more than anybody.
He may not be at the jail as frequently as you would like to see him, but he's definitely working on your case, he's not just sitting.
The judge proceeded to set an additional pretrial date without further comment from Davis.
Under Nelson, an inquiry is appropriate when an indigent defendant attempts to discharge current court-appointed counsel and obtain new court-appointed counsel prior to trial due to ineffectiveness. Branch v. State, 685 So.2d 1250, 1252 (Fla.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1709, 137 L.Ed.2d 833 (1997). As in Branch, here we find Nelson inapplicable because it is not clear that Davis was seeking to discharge his counsel, and "Branch's comments seemed to be a general complaint, not a formal allegation of incompetence." Branch, 685 So.2d at 1252; see also Windom v. State, 656 So.2d 432, 437 (Fla.1995) (); Bowden v. State, 588 So.2d 225, 230 (Fla.1991) (). Davis never made an unequivocal request to discharge his cour...
To continue reading
Request your trial
-
Morrison v. State
...complaints about defense counsel's trial strategy and no formal allegations of incompetence have been made. See Davis v. State, 703 So.2d 1055, 1058-59 (Fla. 1997); Gudinas v. State, 693 So.2d 953, 962 n. 12 (Fla.1997); Branch v. State, 685 So.2d 1250, 1252 (Fla.1996). Similarly, a trial co......
-
Holland v. Tucker
...no view of the evidence which the jury might take favorable to the opposite party that can be sustained under the law.” Davis v. State, 703 So.2d 1055, 1059 (Fla.1997). Holland points out that witness Dorothy Horne testified that neither Officer Winters nor Holland had control over the gun.......
-
King v. Moore
...See, e.g., Jones v. State, 569 So.2d 1234 (Fla.1990), cert. denied, 510 U.S. 836, 114 S.Ct. 112, 126 L.Ed.2d 78 (1993); Davis v. State, 703 So.2d 1055 (Fla. 1997), cert. denied, 524 U.S. 930, 118 S.Ct. 2327, 141 L.Ed.2d 701 (1998); Sims v. State, 681 So.2d 1112 (Fla.1996), cert. denied, 520......
-
Gaston v. State
...general complaints about defense counsel's trial strategy and no formal allegations of incompetence have been made. SeeDavis v. State, 703 So.2d 1055, 1058–59 (Fla. 1997) ; Gudinas [v. State], 693 So.2d [953] at 962 n.12 [ (Fla. 1997) ] ; Branch v. State, 685 So.2d 1250, 1252 (Fla. 1996). S......