State v. Cox

• Decision Date: 14 October 2004
• Citation: 337 Or. 477,98 P.3d 1103
• Parties: STATE of Oregon, Respondent, v. David Lee COX, Appellant.
• Court: Oregon Supreme Court

98 P.3d 1103

337 Or. 477

STATE of Oregon, Respondent, v. David Lee COX, Appellant.

(CC 99C46448; SC S48092).

Supreme Court of Oregon, En Banc.

Argued and Submitted July 20, 2004.

Decided October 14, 2004.

Dan Maloney, Deputy Public Defender, Salem, argued the cause and filed the briefs for appellant. With him on the briefs was Peter A. Ozanne, Executive Director of the Office of Public Defense Services.

Erika L. Hadlock, Assistant Attorney General, Salem, argued the cause and filed the briefs for respondent. With her on the briefs were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, Timothy Sylwester and Ryan Kahn, Assistant Attorneys General.

KISTLER, J.

This case is before us on automatic and direct review of defendant's judgment of conviction and sentence of death. Defendant raises 37 assignments of error challenging the trial court's rulings during the guilt and penalty phases of his trial. For the reasons set out below, we affirm the judgment of conviction and sentence of death.

This case arises out of a homicide at the Oregon State Penitentiary (OSP). The relevant facts divide into three parts: defendant's relationship with the victim, Mark Davis; Davis's relationship with the Lakota Club and another inmate, Donnie Graham; and finally the agreement among the Lakota Club, Graham, and defendant to kill Davis. We begin with the relationship between defendant and Davis and set out the facts consistently with the jury's verdict. See State v. Pratt, 309 Or. 205, 207, 785 P.2d 350 (1990), cert. den., 510 U.S. 969, 114 S.Ct. 452, 126 L.Ed.2d 384 (1993) (stating standard of review).

In 1998, a dispute arose between defendant and Davis. Davis asked defendant for permission to use defendant's "rig," a homemade syringe used to inject drugs. Although defendant denied Davis permission, Davis told defendant's cellmate otherwise. The cellmate gave Davis defendant's rig, which contained defendant's drugs. Defendant became upset when he learned what had happened. In an effort to make things right, defendant's cellmate took Davis's sunglasses and gave them to defendant. Later, in front of other inmates, Davis took his sunglasses back from defendant at knife point.

Within the prison, defendant had a reputation as a "heavyweight" convict—someone who demanded respect from the other inmates. Davis enjoyed a lesser reputation. According to one inmate, Davis was a "punk"—someone who was "just a complete scumbag, homosexual, not to be trusted." When Davis took his sunglasses back from defendant at knife point, he undermined defendant's reputation within the prison. As an inmate explained, "if [Davis] does something bad to [defendant] and [defendant] doesn't respond to it, he's now gotten punked by a punk. We call that being a punk's punk." To restore his reputation, defendant needed to retaliate against Davis.

Davis also had problems with other inmates. Davis was involved in trafficking heroin and tobacco within the prison. Davis traded heroin that he obtained from an inmate, Graham, to the Lakota Club¹ for tobacco. Davis in turn traded the tobacco that he received from the Lakota Club to Graham for heroin. The Lakota Club understood that Davis was getting the heroin from a guard, and Graham understood that Davis was getting the tobacco from a guard. Neither was aware that the other was supplying Davis with contraband.

Davis told the Lakota Club that the guard was late in supplying him with heroin and asked the club to "front" or advance him some tobacco until he could get the heroin and pay the club. Davis told a similar story to Graham. The club and Graham advanced respectively tobacco and heroin to Davis on the understanding that he would pay when the guard came through. There was, however, no guard, and Davis did not repay either the club or Graham.

Graham learned that Davis was getting the tobacco from the Lakota Club. Graham spoke with the club members and told them that he, and not a guard, had been supplying Davis with the heroin that Davis had been trading to the Lakota Club. When Graham and the Lakota Club realized that Davis had "burned" them, they were concerned about his actions for two reasons. First, he still owed them a debt. Second, and more importantly to Graham and the Lakota Club, Davis's actions affected their ability to collect from other inmates. A member of the Lakota Club explained:

"[I]f word gets out that, you know, you're selling—you've got a product for sale, but yet you're going to let this guy over here who is considered a nobody to burn you, I mean, you can't expect nobody else to pay their bill because they are going to look at you as being weak."

Graham and the Lakota Club were aware that Davis also had "burned" defendant in a deal and had "disrespected" defendant when he had taken the sunglasses from defendant at knife point. Recognizing that defendant had an interest in retaliating against Davis, Graham proposed that he, the Lakota Club,² and defendant enter into an agreement. Graham offered to give defendant $5,000 worth of heroin, and the Lakota Club offered to give defendant $500 worth of tobacco and supply him with a knife if defendant would agree to "deal with" Davis. Defendant accepted the offer.

Pursuant to their agreement, the Lakota Club and Graham provided defendant with the heroin and tobacco two to three weeks before he stabbed Davis. That way, defendant could "have some fun, get high, smoke cigarettes, sell some heroin and raise some money" before the stabbing. The Lakota Club also provided defendant with a knife. One of the club members gave defendant a shank (a homemade knife) that the club members had sharpened by grinding it on the concrete floor in the clubhouse. The "war chief" of the club explained to the club member who gave defendant the shank how to stab Davis in the back in a way that would kill him.

On September 13, 1998, as the inmates were lined up on the prison yard to return to their cells, defendant came quickly across the yard. Holding the shank with both hands, he stabbed the shank in Davis's back and pushed it up towards Davis's heart. He pushed so hard that one inmate saw Davis "going up on his toes as he was stabbed." Davis stumbled against another inmate and then reached back and pulled the shank out of his back. The shank went between Davis's ribs and into his left lung and aorta, causing him to die from internal bleeding.

A grand jury indicted defendant for aggravated murder and possessing a weapon in a correctional institution. See ORS 163.095(2)(b) (defining aggravated murder as intentional homicide committed by person confined in correctional institution); ORS 166.275 (prohibiting inmates from possessing weapons). The jury convicted defendant of both charges and imposed the death penalty. On review, defendant raises 37 assignments of error challenging his aggravated murder conviction and death sentence. We write to address 23 of the assignments of error. We affirm the other rulings to which defendant has assigned error without further discussion.

EVIDENCE OF THE VICTIM'S CRIMINAL ACTS

At trial, defendant did not dispute that he had stabbed Davis. He argued, however, that he had intended to injure Davis, not kill him. It followed, he concluded, that at most he could be guilty of manslaughter. Defendant's counsel outlined defendant's theory of the case in his opening statement. Defendant claimed that he feared Davis and wanted to stab him so that the prison officials would transfer Davis to another facility. More specifically, defendant understood that, if he stabbed Davis and injured him, Davis would not tell the prison officials who had stabbed him. Not knowing who stabbed Davis, the prison officials would have to transfer Davis to a different facility to protect him.

To establish that he feared Davis, defendant sought to introduce evidence in the guilt phase of his trial that Davis had acted violently (1) towards defendant and (2) towards others in prison. The trial court ruled that defendant could introduce evidence of Davis's violent acts towards him but that he could not introduce evidence of Davis's violent acts towards others. After the trial court made its ruling, defendant made an offer of proof to preserve his objection. He called witnesses who would have testified that: (1) on April 2, 1989, Davis became angry with his cellmate at the Oregon State Correctional Institution (OSCI) and cut him with a razor; (2) on October 27, 1989, Davis used a razor blade to hold a guard hostage at OSCI for approximately an hour; (3) in 1995, Davis stole an inmate's watch at OSP while the inmate was taking a shower and also pulled a weapon on another inmate to take his drugs; (4) in 1994 or 1995, Davis stole an inmate's shoes at OSP and hit the inmate with his fists when he tried to retake the shoes; and (5) in 1996 or 1997, Davis robbed an inmate at OSP with a shank. Also, two of the inmate witnesses would have offered their opinion that Davis was violent, and one inmate witness would have opined that Davis was psychotic.³

After considering defendant's offer of proof, the trial court clarified the basis of its ruling. It stated that evidence of Davis's violent acts towards others had little bearing on whether defendant intended to injure rather than kill Davis. Even if the evidence had some relevance, the court concluded that the prejudicial effect of the evidence outweighed its probative value. The court reasoned that evidence of Davis's violence towards others

"would be misleading to the jury and create a lot of additional evidence that would just become confusing, and I think really would just be a—lead the jurors * * * more down the line [that] the victim deserved to be killed, so we're not going to pay attention to whether or not the defendant was trying to kill the victim or just injure him, which is really what th[e jurors] need to be focused on in this case."

The court also noted that, without testimony...