People v. Davis, 87SA288

CourtSupreme Court of Colorado
Citation794 P.2d 159
Docket NumberNo. 87SA288,87SA288
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Gary Lee DAVIS, a/k/a Gary Lee Gehrer, Defendant-Appellant.
Decision Date14 May 1990

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Robert M. Petrusak, Hope P. McGowan, Asst. Attys. Gen., Appellate Section, Denver, Steven L. Bernard, Sp. Asst. Atty. Gen., Adams County Dist. Atty.'s Office, Brighton, for plaintiff-appellee.

Shelley Gilman, Pozner Hutt Gilman Kaplan, P.C., Denver, for defendant-appellant.

Mary G. Allen, Colorado Springs, for amicus curiae Colorado Crim. Defense Bar.

Justice MULLARKEY delivered the Opinion of the Court.

This is a direct appeal pursuant to section 16-11-103(7)(a), 8A C.R.S. (1986), of a death sentence imposed on the defendant Gary Lee Davis following his trial and convictions on charges of first-degree murder, felony murder, conspiracy to commit murder in the first degree, second-degree kidnapping, and conspiracy to commit second-degree kidnapping. Davis does not challenge the guilt phase of his trial but raises numerous points of error in the sentencing phase and challenges the facial constitutionality of the Colorado death sentencing statute. We affirm.

I. Factual Background

In the summer of 1986, Gary and Virginia May and their two children, seven-year-old Brandon and four-year-old Krista, lived on a ranch 25 miles northeast of Byers, Colorado in Adams County. The Mays, together with Virginia May's father Rod MacLennan, and her brothers Scott, Dan and Dave MacLennan, were in the ranching business. In February of 1986, the defendant was hired as a ranch hand to work on a ranch which adjoined the ranch operated by the Mays and the MacLennans. The defendant and his wife Becky Davis 1 took up residence in a house owned by the defendant's employer. The Mays lived on the portion of the MacLennan ranch closest to the Davises. According to testimony presented at trial, the Davises met Virginia May at church. The defendant had met Gary May on occasion when the two men worked on a fence line between the properties. The People presented evidence at trial indicating that the defendant often spoke to a fellow employee of his sexual desire for Virginia May, as well as his desire for various other women, including May's sister-in-law Sue MacLennan. The co-worker testified that whenever he and Gary Davis repaired the fence closest to the May residence or were otherwise working in that area, Davis made obscene remarks about his sexual desires for various women. On at least one occasion, according to that witness' testimony, Davis urinated towards the May home and said "[c]ome on, Virginia, baby. I'm here. Come to me." (v. 26, p. 470)

According to the testimony of the defendant, his marital relationship with his wife Becky had been sexually unsatisfactory. (v. 15, p. 19) Their sexual relationship failed to improve after Davis took the ranch hand job, and the couple began renting pornographic videotapes and cruising about the countryside looking for "a pretty girl." (v. 15, p. 28) The couple sometimes drove around Fort Morgan looking for women and at one point considered, in the defendant's own words, "picking them up and taking them out in the country and ... raping them." (v. 15, p. 30) On this basis, the prosecution argued to the jury that the defendant and his wife, prior to the criminal act here at issue, had determined to kidnap and rape a local woman when the opportunity presented itself. (v. 26, pp. 578-80)

On July 18, 1986, Tammy Beauprez, who lived on a farm ten miles south of Wiggins, Colorado, was visited by a man and woman driving a green four-door sedan with Kansas license plates. After the car pulled into Beauprez's driveway, the woman in the car asked for directions to Byers and inquired of Beauprez whether her husband was home. (v. 26, p. 450) At one point, as Beauprez stood next to the Kansas automobile, the man in the car maneuvered himself into position behind her. However, when Beauprez's husband appeared, the man returned to the car and soon thereafter the couple departed. (v. 26, p. 456) Beauprez identified the couple as Becky and Gary Davis.

In the late afternoon of the following Monday, July 21, 1986, Becky Davis called Sue MacLennan, Virginia May's sister-in-law, and asked whether her husband was home. (v. 26, p. 412) When MacLennan answered that he was not, Becky Davis offered to come by and drop off some used clothes which might be of use to MacLennan's children. The Davises left their home without any children's clothes, the existence of which Gary Davis admitted to have been contrived, but they were in possession of a .22 caliber rifle. (v. 15, pp. 36-37) When they pulled into the MacLennans' driveway, they noted the presence of a male ranch hand, which prompted Becky Davis to state to MacLennan that "I thought your husband wasn't home." Becky Davis stopped briefly to drink iced tea with Sue MacLennan, while Gary Davis stayed in the car. Shortly thereafter, their apparent plan to kidnap Sue MacLennan having been frustrated, the Davises left. (v. 26, p. 418)

At some time between 6:20 and 7:00 p.m., the Davises drove to the nearby May residence. Earlier, Becky Davis had called Virginia May just as she had called Sue MacLennan. Becky Davis told May that they had some children's clothes to give her and promised to deliver the clothes later. (v. 15, p. 32) As the Davises entered the driveway leading to the May home, Virginia May came from the house to greet them, accompanied by her four-year-old daughter Krista. Becky Davis got out of the car and walked with Virginia May around the side of the Mays' tool shed. The defendant then drove the car down to the shed, got out of the vehicle and, as Becky Davis was walking out of the shed, followed by Virginia May, the defendant punched May in the face and forced her into the car. (v. 15, pp. 36-37) Meanwhile, Becky Davis told Krista to go inside; then the Davises, with May as their captive, drove away at a high rate of speed. While Becky Davis drove, the defendant held Virginia May down in the back seat of the car, removed her clothing, and sexually assaulted her.

The Davises took May to a secluded area nearby where the defendant tied a rope around her neck and, leading her by the rope and threatening her with a knife, proceeded to sexually assault her. Subsequently, he forced May to perform oral sex on his wife. After this assault was completed, the defendant struck May in the head with the butt of his rifle; the blow was sufficient to fracture May's skull and to cause hemorrhaging. (v. 26, pp. 496-97). The blow, however, apparently did not cause May to be rendered unconscious. When the defendant shot May, according to expert testimony, the gunpowder residue on May's hands indicated that they were extended toward the defendant in a defensive gesture. (v. 25, p. 390) The defendant shot May several times in the head despite her pleas for her life and her offer to pay him $1,000 if she were released. (v. 15, p. 73) When questioned by his wife Becky whether Virginia May was dead, the defendant emptied his rifle into Virginia May, including shots into her left breast and pubic region. (v. 15, p. 37) The defendant and his wife then covered May's corpse with a bale of hay, and returned to their house to pick up their beer cooler because "it had a few more beers in it." (v. 15, p. 38) (testimony of Gary Davis).

Meanwhile, Virginia May's husband Gary, who had been attending a marketing strategy meeting at the Scott MacLennan ranch, returned home at about 8 p.m. He became alarmed when he found his two small children frightened and alone and noticed signs that his wife had left the home abruptly. When informed by his children that his wife was not there because "Becky took her," Gary May attempted to locate his wife. First he called his in-laws, and later, with their assistance, he began to search for her. (v. 26, pp. 46-48) Suspicion immediately focused on the Davises, especially after Sue MacLennan told of her earlier encounter with them. Eventually, May's relatives called the Adams County Sheriff's Department, and a deputy arrived on the scene at about 11 p.m. After taking statements from May's relatives and conducting an initial survey of the Davis residence, the deputy continued to patrol the area when he noted the lights of a car in the distance. After driving to that vehicle, the deputy pulled it over, and, following questioning of its occupants, identified them as the Davises. The deputy questioned the Davises about the May disappearance, and was told that they knew nothing of her whereabouts. (v. 26, pp. 90-91) The deputy allowed the Davises to leave and they then returned home, where for the rest of the night into the next morning, they were under the observation of several of May's relatives. Early that next morning, several of the relatives spoke with the Davises, who denied any knowledge of May's disappearance. They claimed that May was at her home when they left her to go fishing. Becky Davis volunteered her sympathy to the family and expressed the hope that Virginia May would be found. (v. 24, pp. 140-41) On the basis of the children's statement as well as the suspicious behavior of the Davises, that morning Becky and Gary Davis were arrested. (v. 25, p. 219)

On July 23, 1986, Gary Davis, through his court-appointed counsel, reached an agreement with Adams County prosecutors. (v. 11, p. 9) Apparently, Davis represented to his counsel from the Public Defender's office that Virginia May might still be alive. (v. 11, p. 34) Concerned that May might be alive and in need of medical assistance, defense counsel contacted the Adams County District Attorney. In general terms, the prosecutors agreed to allow Davis to plead guilty and to not seek the death penalty in exchange for information on...

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