Davison v. State

Decision Date19 November 2020
Docket NumberCase No. D-2018-373
Citation478 P.3d 462
Parties Dustin Melvin DAVISON, Appellant v. The STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

APPEARANCES AT TRIAL

MELANIE FREEMAN-JOHNSON, JAMES ROWAN, 320 ROBERT S. KERR, STE. 400, OKLAHOMA CITY, OK 73102, ATTORNEYS FOR DEFENDANT

GAYLAND GIEGER, KELLY COLLINS, ASST. DISTRICT ATTORNEYS, 320 ROBERT S. KERR, STE. 505, OKLAHOMA CITY, OK 73102, ATTORNEYS FOR THE STATE

APPEARANCES ON APPEAL

MARVA BANKS, 320 ROBERT S. KERR, STE. 400, OKLAHOMA CITY, OK 73102, ATTORNEY FOR APPELLANT

MIKE HUNTER, ATTORNEY GENERAL, JENNIFER J. DICKSON, ASHLEY L. WILLIS, ASST. ATTORNEYS GENERAL, 313 N.E. 21ST STREET, OKLAHOMA CITY, OK 73105, ATTORNEYS FOR APPELLEE

OPINION

LEWIS, PRESIDING JUDGE:

¶1 Dustin Melvin Davison, Appellant, was tried by jury and found guilty of first degree murder, in violation of 21 O.S.Supp.2012, § 701.7(C), in the District Court of Oklahoma County, Case No. CF-2015-3992. The jury found as aggravating circumstances that the murder was especially heinous, atrocious, or cruel, and that there exists a probability that Appellant would commit criminal acts of violence that would constitute a continuing threat to society, and sentenced him to death. The Honorable Cindy H. Truong, District Judge, pronounced judgment and sentence accordingly. Mr. Davison appeals.

FACTS

¶2 On the afternoon of May 18, 2015, K.B., the two-year-old son of Jennifer Young, died at Children's Hospital in Oklahoma City. Earlier that day, K.B. had suffered multiple blunt force traumas to his head

and torso, resulting in fifty or more areas of external bruising; a broken mandible; a fracture of the skull behind his right ear; internal damage and hemorrhaging from the liver, pancreas, and intestinal mesentery; hemorrhages of the scalp, subgaleal, subdural and subarachnoid areas of the head; retinal hemorrhage ; and edema throughout the brain. K.B.'s fatal injuries involved the application of substantial force inconsistent with typical play or accidents. The State's medical experts later testified that K.B.'s injuries indicated he had been beaten to death.

¶3 On the day K.B. died, he and his mother, Jennifer Young, were living with the Appellant, Dustin Davison, in an apartment paid for by Ms. Young. Appellant was Ms. Young's ex-boyfriend, but they remained roommates, and Appellant watched K.B. while Ms. Young worked. Around 11:00 a.m. that morning, Appellant and K.B. dropped off Ms. Young at work. Appellant and K.B. then returned to the apartment and apparently remained there until Appellant called 911 seeking emergency assistance for K.B.

¶4 During the investigation of K.B.'s death, Appellant gave investigators several conflicting accounts of the events leading up to his 911 call. Appellant first claimed he came out of the shower to find K.B. lying on the floor, bleeding from his nose and mouth. He later claimed that K.B. fell and hit his head on a coffee table during a pillow fight, or that the family dog had knocked him into the table. He also stated that K.B. had bumped his forehead in the bathtub the previous day.

¶5 Appellant told police at one point that K.B.'s extreme bruising was caused by Jennifer Young's brother. He also stated at various times that K.B. had fallen from the apartment balcony, been struck by a soccer ball, had a chair pulled out from under him, or fallen to the ground at 7-11. Appellant admitted being a "straight up asshole" to K.B. when K.B. "pissed him the fuck off." Appellant also admitted throwing K.B. to the ground, probably causing K.B.'s skull fracture

, and waiting twenty minutes or more to call 911.

¶6 Contrary to these statements, Appellant took the stand at trial against the advice of counsel and testified that a man named Jeremy Walker had killed K.B. after coming to the apartment to buy drugs that day. Appellant claimed that he had injected methamphetamine while Walker was there and temporarily lost consciousness. When he woke up, Walker had left the apartment and K.B. was lying on the floor seriously injured. Appellant told the jury that Jeremy Walker had "aggressively killed and murdered" the victim. Appellant had "tried to save" K.B., and had "wasted time trying to revive him" instead of calling 911.

¶7 Appellant said that he "didn't know how to explain" the injuries inflicted by Jeremy Walker to investigators, which "made me out to be—to look like a liar." Appellant said he "would never hurt" K.B. because he "loved that child." Appellant claimed he "had to make up more stories" only because he wanted to tell Jennifer Young "what truly happened" before he told investigators. He "wanted to tell [the investigating detective] the truth, but I didn't know how to."

¶8 On cross-examination, the State established that Appellant was not selling drugs to Jeremy Walker every weekend, as he had claimed in his testimony. According to phone records, Appellant hadn't spoken to Walker in more than two and a half months before the homicide. Appellant acknowledged that he had waited a year and a half after being charged with this murder to name Jeremy Walker as the real perpetrator.

¶9 Appellant admitted on cross-examination that he had repeatedly lied to investigators, his parents, and his siblings about the facts of K.B.'s death as he tried to deflect suspicion from himself, but had waited almost eighteen months to name the real killer. Appellant also admitted that when naming Jeremy Walker as the murderer didn't work, Appellant offered to implicate a fellow jail inmate in the murder in exchange for a deal. Appellant also agreed when the prosecutor asked him if he thought he was the real victim in this case.

¶10 Additional facts will be related in connection with the individual propositions of error.

ANALYSIS

¶11 In Proposition One, Appellant argues that he was denied the effective assistance of trial counsel in violation of the Sixth, Eighth, and Fourteenth Amendments and Article II, sections 7, 9, and 20 of the Oklahoma Constitution. We address these complaints applying the test required by the Supreme Court in Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), by initially presuming that counsel rendered reasonable professional assistance. Appellant must establish the contrary by showing that trial counsel's performance was unreasonably deficient and that he was prejudiced by the deficient performance. Spears v. State , 1995 OK CR 36, ¶ 54, 900 P.2d 431, 445.

¶12 To determine whether counsel's performance was deficient, we ask whether the representation was objectively reasonable under prevailing professional norms. In this inquiry, Appellant must show that the trial attorney made errors so serious that the attorney was not functioning as the counsel guaranteed by the Constitution. Browning v. State , 2006 OK CR 8, ¶ 14, 134 P.3d 816, 830. The overriding concern in judging trial counsel's performance is "whether counsel fulfilled the function of making the adversarial testing process work." Hooks v. State , 2001 OK CR 1, ¶ 54, 19 P.3d 294, 317.

¶13 Where the Appellant shows counsel's performance was objectively deficient under prevailing professional norms, he must further show that he suffered prejudice as a result. The Supreme Court in Strickland defined prejudice as a reasonable probability that, but for counsel's unprofessional errors, the outcome of the trial or sentencing would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland , 466 U.S. at 694, 104 S.Ct. 2052. If the record permits resolution of an ineffective counsel claim on the ground that Strickland's prejudice prong has not been satisfied, we will ordinarily follow this course. Phillips v. State , 1999 OK CR 38, ¶ 103, 989 P.2d 1017, 1043.

¶14 Appellant challenges several aspects of trial counsel's representation as deficient. He first alleges that trial counsel's failure to develop and utilize expert neuropsychological evidence deprived him of a fair trial on the issues of guilt and sentence. In connection with this claim, he has filed a Notice Of Extra-record Evidence Supporting Propositions I And II Of The Brief Of Appellant And, Alternatively, Rule 3.11 Motion To Supplement Direct Appeal Record Or For An Evidentiary Hearing (hereafter the Rule 3.11 Motion), as permitted by Rule 3.11(B), Rules of the Oklahoma Court of Criminal Appeals , Title 22, Ch. 18, App (2020).

¶15 We review a Rule 3.11 motion and the attached extra-record materials in light of the existing record, in conjunction with the appellant's corresponding claim(s) of ineffective assistance. Rule 3.11(B)(3)(b)(i) requires the appellant to present "sufficient information to show this Court by clear and convincing evidence there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence."

¶16 If the Court finds that a strong possibility of ineffectiveness is shown, we will remand the matter for an adversarial evidentiary hearing and direct the trial court to make findings of fact and conclusions of law on the issues and evidence raised in the application. Rule 3.11(B)(3)(b)(ii). The resulting evidence and judicial findings and conclusions on remand may then be considered in adjudicating Appellant's corresponding claim(s) of ineffective counsel. Rule 3.11(B)(3) and (C).

¶17 This standard is less demanding than the two-prong test for ineffective assistance imposed by Strickland : It is easier to show clear and convincing evidence of a strong possibility that counsel was ineffective than to show that counsel's performance was deficient, and that a reasonable probability exists that the result of the proceeding would have been different. When the Court grants a request for an evidentiary hearing under Rule 3.11(B), we have decided only that the appellant has shown a strong possibility that counsel was ineffective, and should be afforded a further opportunity to develop this...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT