People v. Davis, 91CA0586

• Decision Date: 24 September 1992
• Docket Number: No. 91CA0586,91CA0586
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Gary Lee DAVIS a/k/a Gary Lee Gehrer, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 857

849 P.2d 857

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Gary Lee DAVIS a/k/a Gary Lee Gehrer, Defendant-Appellant.

No. 91CA0586.

Colorado Court of Appeals,

Div. II.

Sept. 24, 1992.

Rehearing Denied Oct. 29, 1992.

Certiorari Granted March 29, 1993.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Robert Mark Russel, First Asst. Atty. Gen., Robert M. Petrusak, Asst. Atty. Gen., Denver, Steven Bernard, Sp. Asst. Atty. Gen., Brighton, for plaintiff-appellee.

Dennis W. Hartley, P.C., Dennis W. Hartley, Lari J. Trogani, Colorado Springs, for defendant-appellant.

Opinion by Judge PLANK.

Defendant, Gary Lee Davis, appeals the order of the trial court denying his motion for post-conviction relief under Crim.P. 35(c) in which he alleged ineffective assistance of counsel. Defendant further appeals the trial court's denial of his motion for a continuance to obtain additional evidence for his post-conviction relief hearing. We affirm.

Defendant was prosecuted based on evidence that he and his wife had kidnapped, sexually assaulted, and then killed a woman. A jury found the defendant guilty of murder in the first degree, felony murder, conspiracy to commit murder in the first degree, second degree kidnapping, and conspiracy to commit second degree kidnapping. The jury returned a death penalty verdict pursuant to the convictions, and that verdict was affirmed on appeal. People v. Davis, 794 P.2d 159 (Colo.1990), cert. denied, 498 U.S. 1018, 111 S.Ct. 662, 112 L.Ed.2d 656 (1991).

Defendant murdered the victim with the assistance of his now-divorced wife, Rebecca Fincham. Fincham received a life sentence for her role in the killing. People v. Fincham, 799 P.2d 419 (Colo.App.1990).

The evidence presented in People v. Davis, supra, demonstrated that the following events led to the charges here at issue.

Defendant and Fincham planned to kidnap a woman in order to satisfy their sexual desires. After an unsuccessful attempt to abduct a woman and the failure of a scheme in which Fincham sought to arrange that she and Davis would gain entry to the home of an acquaintance of hers while the woman was there alone, Fincham contacted the victim, also an acquaintance.

Fincham offered to bring the victim some children's clothing. The victim accepted the couple's apparent generosity, and, accompanied by her four-year-old daughter, greeted them as they drove up to her home. Fincham lured the victim toward a tool shed where defendant punched her in the face and forced her into the couple's car.

Fincham drove the car to a secluded area while the defendant held the victim in the back seat. The defendant sexually assaulted the victim and subsequently forced her to engage in sexual relations with Fincham.

The victim pleaded for her life and offered her assailants $1000 for her release. The defendant ignored her plea and struck her on the head with the rifle butt. The blow fractured the victim's skull and caused hemorrhaging; however, it apparently did not render her unconscious. Defendant then emptied his rifle into the victim's face and torso, including her breasts and pubic region, with a barrage of some fourteen hollow point bullets which exploded on impact. The defendant and Fincham then covered the corpse with a bale of hay and left.

The victim was soon reported missing, and the deputy who took the initial report began to patrol the area. He stopped a car occupied by Davis and Fincham and inquired about the whereabouts of the victim. The couple denied having seen her, and having no reason to hold them, he allowed them to leave. The officer specifically noted that there were no signs that the couple was under the influence of alcohol. Subsequent investigation lead to the couple's arrest the following morning.

After that affirmance, defendant filed a motion for post-conviction relief under Crim.P. 35(c), and a stay of execution was granted by the trial court.

A hearing on the post-conviction relief motion was set for February 4, 1991. The defendant requested a continuance of the hearing, asking for more time to prepare. The trial court granted the continuance and the hearing was reset for February 19, 1991.

Shortly before the new hearing date, defendant filed for another continuance asserting that he needed an additional sixty days to prepare. After a hearing on that request, the trial court denied the motion, but it allowed the defendant an opportunity to present an offer of proof that would justify the taking of additional evidence within sixty days of the hearing.

After the February 19, 1991, hearing, the trial court found the defendant's arguments on his ineffective assistance of counsel unconvincing and denied his motion for post-conviction relief. The defendant then filed a notice of appeal to this court and a verified motion to reopen evidence in the trial court. In response, the People filed a motion for a limited remand on the motion to reopen evidence which this court granted. Based on the defendant's offer of proof, the trial court found no new evidence and denied the motion to reopen.

I.

Defendant first contends that the trial court erred in concluding that the representation he had received was not a violation of his constitutional right to effective assistance of counsel. We disagree.

The right to counsel guaranteed by the Sixth Amendment and Colo. Const. art. II § 16, entitles a defendant in a criminal proceeding to the reasonably effective assistance of an attorney acting as his diligent and conscientious advocate. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); People v. Tackett, 742 P.2d 957 (Colo.App.1987).

The standard of reasonableness is an objective one measured by prevailing professional norms, and the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland v. Washington, supra.

In a Crim.P. 35(c) proceeding, the burden rests on the defendant to show not only that counsel's performance was deficient, but that it also prejudiced his defense. Strickland v. Washington, supra; People v. Tackett, supra.

In assessing a claim of ineffective assistance, a reviewing court should focus on two issues. First, it must determine whether the defendant has established that particular acts or omissions of his counsel fell outside the wide range of "reasonably competent assistance demanded of attorneys practicing criminal law." Strickland v. Washington, supra; People v. Dillon, 739 P.2d 919 (Colo.App.1987). However, while so doing, the reviewing court:

[m]ust indulge a strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that under the circumstances, the challenged action 'might be considered sound trial strategy.' [Michel v. Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83 (1955) ].

Strickland v. Washington, supra.

Second, the reviewing court must ascertain whether the accused has demonstrated in a tangible manner that the acts or omissions of his counsel prejudiced him. To show such prejudice, defendant must demonstrate that under the totality of circumstances there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Strickland, supra; People v. Tackett, supra.

A.

Defendant asserts that his counsel's decision not to investigate and present limited, mitigating evidence during the penalty phase of his trial was based upon an uninformed opinion that was outside the range of professionally reasonable judgment. We reject this contention.

After discussions with defendant, defendant's counsel, an experienced criminal attorney, devised a strategy to present evidence that Fincham was equally if not more culpable than defendant in the commission of the crime. Because the wife had received a life sentence instead of the death penalty, defendant's counsel believed he could save defendant's life based on such a theory.

Defense presented this theory in his opening argument at trial; however, during the guilt phase, against his counsel's advice, defendant changed his mind and testified before the jury and accepted full responsibility for the crime. Accordingly, counsel could no longer reasonably pursue his theory of lesser culpability.

Defendant's allegations focus on his counsel's ineffective representation during the penalty phase of trial. In particular, the defendant alleges that: 1) an inadequate social history was taken from the defendant; 2) no specific efforts were made to locate friends, family, ex-counselors, and ex-employers to testify on behalf of the defendant; 3) alcoholism was not explored adequately as a mitigating factor; and 4) there was an insufficient investigation as to the effect of a closed-head injury sustained by defendant in 1965.

As to his allegations that an insufficient social and psychiatric history was taken by his counsel, the defendant presented expert testimony that his counsel's performance was below professional standards because he failed to do a thorough investigation into defendant's social and psychological history. The trial court, however, found that defendant's counsel did sufficient investigation into the defendant's family and relevant medical records to make an informed tactical decision not to use the evidence. It further determined that counsel decided not to use such evidence because of its potential detrimental effect. We perceive no error in that finding.

A defendant is entitled to a pretrial investigation of sufficient thoroughness to develop potential defenses and uncover facts...