Davis v. State

• Decision Date: 28 August 2014
• Docket Number: SC13–424.,Nos. SC12–115,s. SC12–115
• Citation: 136 So.3d 1169
• Parties: Toney Deron DAVIS, Appellant, v. STATE of Florida, Appellee. Toney Deron Davis, Petitioner, v. Michael D. Crews, etc., Respondent.
• Court: Florida Supreme Court

136 So.3d 1169

Toney Deron DAVIS, Appellant,

v.STATE of Florida, Appellee.

Toney Deron Davis, Petitioner,

v.Michael D. Crews, etc., Respondent.

Nos. SC12–115, SC13–424.

Supreme Court of Florida.

April 10, 2014.

Rehearing Denied SC12-115 Aug. 28, 2014.

Richard Adam Sichta, Jacksonville, FL, for Appellant.

Pamela Jo Bondi, Attorney General, and Stephen R. White, Assistant Attorney General, Tallahassee, FL, for Appellee.

PER CURIAM.

Toney Deron Davis appeals an order of the circuit court denying his motion to vacate his convictions and sentences—including a conviction for first-degree felony murder and sentence of death—filed under Florida Rule of Criminal Procedure 3.851. Davis also petitions this Court for a writ of habeas corpus. We have jurisdiction. Seeart. V, § 3(b)(1), (9), Fla. Const. For the reasons expressed below, we affirm the postconviction court's order and deny Davis's habeas petition.

I. BACKGROUND

In 1995, Davis was convicted of first-degree felony murder, aggravated child abuse, and sexual battery, stemming from the murder of two-year-old Caleasha Cunningham on December 9, 1992. Davis v. State, 703 So.2d 1055, 1056 (Fla.1997). On appeal, this Court set out the facts of the crimes:

On the day of the murder, the mother [Gwen Cunningham] 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.

Id. at 1056–57. At the penalty phase, the State relied on the guilt phase evidence and Cunningham read a victim impact statement. The defense called Davis's parents as mitigation witnesses.

The jury recommended the death penalty by a vote of eleven to one, and after conducting a hearing in accordance with Spencer v. State, 615 So.2d 688 (Fla.1993), the trial court imposed the death penalty. The trial court found two aggravating factors: (1) the murder was committed during the course of a sexual battery; and (2) the murder was heinous, atrocious, or cruel (HAC). Based on Davis's three prior convictions—which included a crime of violence—the trial court rejected the asserted mitigating factors of “no significant prior criminal history,” “good person,” and “not violent.” The trial court also determined that Davis's claim to be a good student was not proven and that his abstention from smoking and drinking and the circumstantial nature of the case were irrelevant. The trial court did give “some weight” to the factor of Davis's background, based on evidence that Davis was a good child, had musical talent, wrote poetry, and attended church. Davis, 703 So.2d at 1057.

Davis raised eight claims on direct appeal: (1) it was error not to follow Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), and Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), when Davis moved to discharge counsel; (2) it was error to deny his motion for a judgment of acquittal; (3) the sexual battery conviction should be reversed; (4) it was error to admit the victim impact evidence; (5) the court erred in considering and finding HAC where the jury did not consider that aggravating factor; (6) it was error to find HAC proven; (7) it was error to find the aggravating factor that the murder was committed during the course of a sexual battery; and (8) the death penalty is disproportionate. Davis, 703 So.2d at 1057–58. This Court determined that sufficient evidence supported the convictions, claim five was unpreserved, and that all of Davis's claims were without merit. Id. at 1058–61.

In May 1999, Davis filed a shell motion for postconviction relief with a request for leave to amend. Davis filed an amended postconviction motion in May 2004, and in July 2006, Davis filed a “Third Motion, as Amended, to Vacate Judgments of Conviction and Sentences with Special Request for Leave to Amend or Supplement.” Davis's third motion asserted: (1) trial counsel was ineffective for failing to ensure that Davis received a Nelson hearing, and appellate counsel was ineffective for failing to raise this issue and ensure a complete record on appeal; (2) the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); (3) trial counsel was ineffective for failing to investigate whether Gwen Cunningham could have been the source of the blood found on Davis and at the scene; (4) it was fundamental error to conduct voir dire prior to administering an oath to the jury; (5) it was fundamental error to conduct a pretrial conference without Davis being present; (6) trial counsel was ineffective for failing to sufficiently investigate and present evidence at the penalty phase; (7) trial counsel was ineffective for failing to conduct an adequate voir dire and exercise strikes; (8) trial counsel was ineffective for failing to object to improper evidence and argument, failing to present evidence, and arguing the wrong theory of defense; (9) Davis was denied a fair trial due to unobjected-to comments made by the prosecutor about Davis's defense; (10) Davis was denied a fair trial due to unobjected-to comments made by the prosecutor that attempted to evoke sympathy from the jurors; (11) a previously raised claim that was abandoned in Davis's third motion; (12) Davis was denied a reliable sentencing when the jury's role was diminished in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); (13) Davis was denied a reliable sentencing when the jury's role was diminished in violation of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); and (14) cumulative error denied Davis a fair trial.

In 2010, the postconviction court conducted an evidentiary hearing. Davis called two of his first cousins, Felicia Cotman and Latoya Johnson Davis; his trial attorney, Charlie Adams; Dr. Edward Willey; and retired Detective Michael Earl Hallam. Davis also testified on his own behalf. In rebuttal, the State called Dr. Randall Curtis Alexander and the victim's biological father, Rickey Love. In 2011, the postconviction court entered an order denying Davis's motion for postconviction relief. State v. Davis, No. 16–1992–CF–13193–AXXX–MA (Fla. 4th Jud. Cir. Dec. 19, 2011) (PC Order).

Davis appeals the postconviction court's order. Davis contends that the postconviction court erred by denying his claims that: (1) the State violated Brady and Giglio; (2) defense counsel was ineffective for failing to present Dr. Willey; (3) defense counsel was ineffective regarding his choice of defense theory; (4) defense counsel was ineffective for failing to impeach several witnesses; (5) defense counsel was ineffective for failing to object to prosecutorial misconduct; (6) defense counsel was ineffective for failing to investigate and present witnesses at the penalty phase; (7) defense counsel was ineffective for failing to object to comments that denigrated the role of the jury; and (8) cumulative error deprived Davis of a fair trial. In addition, Davis filed a petition for a writ of habeas corpus, asserting that appellate counsel provided ineffective assistance by: (1) failing to challenge comments made by the prosecution; and (2) failing to argue that Davis was entitled to a Nelson hearing based on two letters written by Davis to the trial court.

II. MOTION FOR POSTCONVICTION RELIEF

On appeal, Davis contends that because the State violated Brady and Giglio and because Davis's trial counsel did not provide effective assistance of counsel as...