Davis v. State

• Decision Date: 05 April 2016
• Docket Number: No. SC 94622,SC 94622
• Citation: 486 S.W.3d 898
• Parties: Richard D. Davis, Appellant, v. State of Missouri, Respondent.
• Court: Missouri Supreme Court

486 S.W.3d 898

Richard D. Davis, Appellant,

v.State of Missouri, Respondent.

No. SC 94622

Supreme Court of Missouri, en banc .

Opinion issued April 5, 2016

Rehearing Denied May 24, 2016

Davis was represented by Kent Denzel of the public defender's office in Columbia, (573) 777–9977

The state was represented by Richard A. Starnes of the attorney general's office in Jefferson City, (573) 751–3321.

George W. Draper III, Judge

Richard D. Davis (hereinafter, “Movant”) was convicted by a jury of first-degree murder and multiple counts of first-degree assault, forcible rape, and forcible sodomy in connection with the deaths of Marsha Spicer (hereinafter, “Spicer”) and Michelle Huff Ricci (hereinafter, “Ricci”). The circuit court adopted the jury's recommendation and sentenced Movant to death for Spicer's murder and sentenced Movant to thirteen life sentences as a persistent sex offender, nine life sentences as a persistent offender, and two additional fifteen-year sentences as a persistent offender on the remaining counts. This Court affirmed Movant's convictions. State v. Davis, 318 S.W.3d 618 (Mo. banc 2010). Movant filed a motion for post-conviction relief pursuant to Rule 29.15, which the motion court overruled after an evidentiary hearing. Movant appeals. This Court has exclusive jurisdiction over this appeal because a death sentence was imposed. Mo. Const. art. V, sec. 10. See also Standing Order, June 16, 1988 (effective July 1, 1988). This Court affirms the motion court's judgment.

Factual and Procedural History

In May 2006, police discovered Spicer's body in a shallow grave in Lafayette County. Movant was identified as a suspect in that investigation. Search warrants executed on Movant's apartment and workplace recovered numerous items, including a video camera and several videotapes. The videotapes depicted Movant and his girlfriend repeatedly physically and sexually assaulting Spicer and Ricci. One videotape recorded the moment of Spicer's death while being sexually assaulted by Movant's girlfriend. Movant confessed to killing Spicer during the sexual assault, cleaning her body with bleach, and dumping her body in the shallow grave.

The state filed a twenty-six count amended information charging Movant with first-degree murder for Spicer's death and multiple counts of first-degree assault, forcible rape, and forcible sodomy of Spicer and Ricci. Movant did not testify or present witnesses during the guilt phase of his trial. Instead, Movant's counsel cross-examined the state's witnesses to show that Movant got “caught up” in the moment and did not deliberate during Spicer's murder. The jury convicted Movant of all counts except one count of first-degree assault against Ricci.¹

The state submitted three statutory aggravators: (1) that Movant had one or more serious assaultive convictions; (2) that Spicer's murder involved depravity of mind; and (3) that Spicer's murder occurred while Movant was engaged in the perpetration of rape. The state presented evidence that Movant and his girlfriend took Ricci to a remote area, murdered her, and set her body on fire in an attempt to destroy evidence. Additional evidence showed that, while evading arrest, Movant and his girlfriend kidnapped, sexually assaulted, sodomized, and beat a five-year-old child. The state presented further evidence of other crimes, including that Movant previously raped and sodomized a woman at knifepoint.

During the penalty phase, Movant presented mitigation testimony from a psychologist, Dr. Steven Mandracchia (hereinafter, “Dr. Mandracchia”). Dr. Mandracchia evaluated Movant's mental condition, at the time of the crimes and at trial, and assessed whether developmental issues contributed to his conduct. Dr. Mandracchia testified that physical and sexual abuse, including beatings by his stepfather, lack of interpersonal connections in Movant's family, as well as his exposure to inconstant adult figures, prevented normal development. Dr. Mandracchia testified that by the age of six, family members were setting up real or simulated sexual acts for Movant and his sister to engage in, and by age ten, Movant was engaging in sexual activity with a number of people. By age fifteen, regular sexual activity had become “routine,” and Movant became involved in anal sex, rough sex, and group sex. An aunt made him engage in sexual activity with his sister. There was evidence indicating that Movant was molested by his stepfather. Medical records revealed that Movant was depressed, was anxious, had low self-esteem, and that his anger and his sexuality became associated. Dr. Mandracchia concluded that Movant had several severe personality disorders, including antisocial personality disorder, narcissism, and paranoid personality disorder.

Movant testified during the penalty phase. Movant expressed sorrow for what he had done to his victims and explained the history of abuse in his family. Movant also called a former girlfriend, another friend, and his sister to testify on his behalf.

After hearing all of the evidence, the jury found all three statutory aggravators were met and recommended Movant be sentenced to death for Spicer's murder. The circuit court sentenced Movant in accordance with the jury's recommendation. This Court affirmed Movant's conviction and sentence. Davis, 318 S.W.3d at 618.

Movant then filed a pro se motion to vacate his first-degree murder conviction and sentence pursuant to Rule 29.15. Appointed counsel filed an amended motion. Movant submitted a 218–page document as an attachment to the amended motion, raising a number of additional ineffective assistance of counsel claims. Attached to the 218–page document was a separate thirty-seven page document raising arguments related to the suppression issues presented at trial. After a six-day evidentiary hearing, the motion court entered a 135–page judgment overruling Movant's motion. Movant appeals.

Standard of Review

This Court reviews the denial of post-conviction relief to determine whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k). “A judgment is clearly erroneous when, in light of the entire record, the court is left with the definite and firm impression that a mistake has been made.” Swallow v. State, 398 S.W.3d 1, 3 (Mo. banc 2013). The motion court's findings are presumed correct. Johnson v. State, 406 S.W.3d 892, 898 (Mo. banc 2013). This Court defers to “the motion court's superior opportunity to judge the credibility of witnesses.” Barton v. State, 432 S.W.3d 741, 760 (Mo. banc 2014) (quoting State v. Twenter, 818 S.W.2d 628, 635 (Mo. banc 1991) ).²

To be entitled to post-conviction relief for ineffective assistance of counsel, a movant must show by a preponderance of the evidence that his or her trial counsel failed to meet the Strickland test in order to prove his or her claims.

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, Movant must demonstrate that: (1) his trial counsel failed to exercise the level of skill and diligence that a reasonably competent trial counsel would in a similar situation, and (2) he was prejudiced by that failure. Id. at 687, 104 S.Ct. 2052.

Movant must overcome the strong presumption that trial counsel's conduct was reasonable and effective. Johnson, 406 S.W.3d at 899. To overcome this presumption, a movant must identify “specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professional competent assistance.” Zink, 278 S.W.3d at 176. Trial strategy decisions may be a basis for finding ineffective assistance of counsel only if that decision was unreasonable. Id. “[S]trategic choices made after a thorough investigation of the law and the facts relevant to plausible opinions are virtually unchallengeable[.]” Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006) (quoting Strickland, 466 U.S. at 690, 104 S.Ct. at 2052 ).

“To establish relief under Strickland, a movant must prove prejudice.” Johnson, 406 S.W.3d at 899. Prejudice occurs when “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Deck v. State, 68 S.W.3d 418, 429 (Mo. banc 2002) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052 ). Prejudice in a death penalty case is “a reasonable probability that, but for counsel's deficient performance, the jury would have concluded the balance of aggravating and mitigating circumstances did not warrant death.” Forrest v. State, 290 S.W.3d 704, 708 (Mo. banc 2009) (quoting State v. Kenley, 952 S.W.2d 250, 266 (Mo. banc 1997) ).

Point I—Retention of a Male Trauma Expert

In his first point, Movant alleges the motion court clearly erred in denying his claim that trial counsel were ineffective for failing to call an appropriate expert to present Movant's complete psychosocial, psychosexual, and trauma history in the penalty phase of the trial as mitigating evidence. Movant argues Dr. Mandracchia had no expertise in assessing or evaluating males with trauma stemming from sexual abuse. Movant claims that if the jury had heard testimony from an expert that specialized in evaluating males who suffered sexual abuse, there is a reasonable probability he would have received a life sentence because the jury would have been provided with a reason for Movant's behavior.

In a death penalty case, trial counsel has an obligation to investigate and discover all reasonably available mitigating evidence. Johnson v. State, 388 S.W.3d 159, 165 (Mo. banc 2012). Trial counsel's selection of which expert witnesses to call at trial is generally a question of trial strategy and is virtually unchallengeable. Goodwin v. State, 191 S.W.3d 20, 29 (Mo. banc 2006). To show ineffective assistance of counsel based on failure to present an expert witness, a movant is required to show what the evidence would have been if called. Twenter, 818 S.W.2d at 636....