Davis v. State, S-16-0291

Decision Date13 April 2018
Docket NumberS-16-0291
Parties Donald Clyde DAVIS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Representing Appellant: Julianne M. Gern* , Faculty Director; Thomas Fleener, Faculty Director; Catherine M. Young, Student Director; and Alyssa Clegg, Student Intern, of the Defender Aid Program, University of Wyoming. Argument by Ms. Clegg.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Christyne Martens, Senior Assistant Attorney General; Joshua C. Eames , Assistant Attorney General. Argument by Mr. Eames.

Before BURKE, C.J., and HILL , DAVIS, FOX, and KAUTZ, JJ.

DAVIS, Justice.

[¶1] In 1982, when Donald Clyde Davis was seventeen years old, he and a friend picked up a hitchhiker, robbed, and then murdered him. Mr. Davis pled guilty to first degree murder, felony murder, and aggravated robbery. He was sentenced to life imprisonment with a consecutive twenty-to-fifty-year sentence for aggravated robbery. Following the decisions of Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), Montgomery v. Louisiana , ––– U.S. ––––, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), Bear Cloud v. State , 2013 WY 18, 294 P.3d 36 (Wyo. 2013) ( Bear Cloud II ), and the Wyoming Legislature's amendment to Wyo. Stat. Ann. § 6-10-301(c), after serving over thirty-three years, Mr. Davis was granted parole from his life sentence, began serving his consecutive twenty-to-fifty-year sentence, and received a new individualized sentencing hearing. After the hearing, the district court declined to modify his original sentence. Mr. Davis appeals and raises a number of issues regarding his sentence. We will reverse and remand with instructions to conduct a new individualized sentencing hearing.


[¶2] We address the following issues:

1. Is Mr. Davis' aggregate sentence a de facto life without parole sentence in violation of the Eighth Amendment of the United States Constitution?
2. Would it be appropriate for this Court to accept the United States Supreme Court's invitation to handle the retroactive application of Miller by keeping in place Mr. Davis' sentence and deeming him eligible for parole?
3. Is Mr. Davis' aggregate sentence a de facto life without parole sentence in violation of Article 1, § 14 of the Wyoming Constitution ?
4. What procedures are required for an individualized sentencing hearing under Miller and Montgomery ?
a. What presumptions, burdens and standards of proof should be applied at a Miller hearing?
b. Are specific findings required to support a Miller determination?
c. Is expert evidence required to support a Miller determination?
d. What evidence may the sentencing court consider in making retroactive Miller determinations?
e. What standard of review should this Court apply to its review of a Miller determination?
5. Did the district court abuse its discretion when it conducted the individualized sentencing hearing and sentenced Mr. Davis to his original sentence?
The Offenses

[¶3] In February of 1983, Mr. Davis pled guilty to one count of first degree murder, one count of felony murder, and one count of aggravated robbery, crimes he committed when he was seventeen years old. The Presentence Investigation Report (PSI) described the events. According to Mr. Davis, he had consumed Yukon Jack and "eight or nine beers" with a friend when he met up with Robert Cotton at approximately 4:00 p.m. on September 5, 1982. They stopped at a liquor store, where they purchased a six-pack of beer and a bottle of MD 20-20. Mr. Davis drank "two or three beers and some of the MD 20-20" (a high alcohol content wine). He and Mr. Cotton then picked up a hitchhiker between Gillette and Buffalo, intending to rob him. Mr. Davis explained, "We couldn't think of how to go about this, so I told him not to worry about it, I'll think of something."

[¶4] Mr. Cotton stopped the car, pretending he had to urinate. Mr. Davis and Mr. Cotton exited the vehicle to discuss how they were going to get the victim out of the car. Mr. Cotton "pulled him out of the car" and "threw him down on the ground," and said, "If you try to fight, I will break your neck." Mr. Cotton ordered Mr. Davis to retrieve a set of handcuffs from the vehicle and asked Mr. Davis for his knife, which Davis gave to him. Mr. Davis got the cuffs, and Mr. Cotton handed him his knife and handcuffed the victim. Mr. Davis stated that he was going to put the knife away then, but "didn't for some reason."

[¶5] Mr. Cotton went through the victim's pockets, retrieving "a bunch of things," including money and a lighter. They decided to uncuff the victim and send him down the road on foot. However, as Mr. Cotton went to uncuff him, he had one hand behind the victim's head, pulling his hair, while Mr. Davis held the knife "over his neck." The victim "raised up and the knife stuck in his throat." Mr. Davis explained that "the guy was screaming and bleeding pretty good. Mr. Cotton suggested, 'Finish him off because he is going to die anyway. Just put him out of his misery.' " Mr. Davis then "knelt down, pushed the knife in as far as [he] could and slit his throat ... in only one motion."1 Mr. Davis got into the car, and Mr. Cotton followed a little later, with "blood all over his arms and hands." Mr. Davis stated that "[i]f I hadn't been drinking, it never would have happened."

The Original Sentencing and the Presentence Investigation Report

[¶6] Mr. Davis was originally sentenced on February 22, 1983. The court did not receive testimony before sentencing Mr. Davis, but the PSI was filed in the court on the day he was sentenced. The PSI provided some history of Mr. Davis' life before prison.

[¶7] Mr. Davis' father drowned at the age of nineteen, when Mr. Davis was an infant. When he was two, his mother married Richard Johnson, his primary father figure. Mr. Davis' mother and his stepfather had two additional sons, one born when he was four years old and the other when he was nine. Mr. Johnson was an alcoholic. Mr. Davis' mother and Mr. Johnson divorced in 1978, but reunited shortly thereafter and maintained a relationship characterized as "unstable, primarily due to Mr. Johnson's past alcohol abuse."

[¶8] Mr. Davis had a juvenile record that consisted of several non-violent charges, including burglary/petty theft in 1980, shortly after his family relocated from Michigan to Arizona, possession of a stolen vehicle when he was fourteen, and resisting arrest in 1981. In 1980, after the burglary/petty theft, he was placed at the Adobe Mountain School and underwent psychological and educational evaluation. He participated in a treatment program designed "to meet his needs for individual and group therapy." There he had "trouble relating effectively with both peers and staff and it was felt this stemmed from an extremely poor self concept." He attempted suicide several times. By the summer and fall of 1980, "his behavior and attitudes showed improvement" and he was released to the custody of his parents.

[¶9] Approximately three months later, Mr. Johnson reported to correctional authorities that Mr. Davis had been suspended from school for fighting and that he was in possession of marijuana. Mr. Davis was apprehended, charged with resisting arrest, and sent to the Catalina Mountain School. He remained there for four months until he was "given a full discharge." While he was incarcerated, his family returned to Michigan; and upon his discharge Mr. Davis joined them. The family moved to Gillette, Wyoming in 1982 for a brief period, and then returned to Michigan. Mr. Davis joined them in Michigan for a short time before returning to Gillette.

[¶10] Prior to the events that resulted in the charges in this case, Mr. Davis had several psychological examinations: one in 1975 conducted by the Diagnostic Center, one in 1979, one conducted in Michigan in 1980, and one conducted at the Adobe Mountain School in 1980. None of the reports from these examinations are contained in the record, but the PSI quotes from them. The 1975 Diagnostic Center report "noted that '[Mr. Davis] sometimes would fly into a rage and do destructive things without any apparent trigger, and that he frequently left home for several hours at a time, always returning at night.' " The 1979 examination, which was referred to in the 1980 Michigan report, found Mr. Davis "to be a 'very angry boy who is attempting to get even with his parents.' " The 1980 Michigan report referred to the 1975 Diagnostic Center report and described Mr. Davis as "a disturbing element in the classroom from the first grade through the fifth grade."

[¶11] The 1980 Adobe Mountain School evaluation "depicted [Mr. Davis] as seeing himself as 'a total failure in life and that he was such a miserable person, that he and everyone else in the world necessarily should dump on him because of his badness.' " The Adobe Mountain School evaluator felt that "some of [Mr. Davis'] behavioral and academic problems might be neurological in nature" and that "additional sources of stress appear to include 'his highly ambivalent home situation.' " That evaluator also indicated that Mr. Davis was

highly emotionally constricted and confused in terms of how to work his way out of his current problems. The belief of [Mr. Davis] that he is a bad person and must act out that way, or if he wishes to follow what appears to be at least some well-defined positive instincts and engage in desirable behavior, creates a great deal of tension in [him]. Thus, he is very easily triggered-off to engage in very impulsive acts.

[¶12] The PSI summarized Mr. Davis' educational background: he completed eleventh grade, and attended public schools where he had "most of his difficulties" and consequently spent "considerable time in special educational classes." His public school teachers observed problems such as truancy, acting out, moodiness, and a lack of motivation....

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