State v. Davis
| Decision Date | 15 August 2017 |
| Docket Number | No. 48324-6-II,c/w No. 48520-6-II,48324-6-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. DAMIEN RAPHAEL DAVIS, Appellant. STATE OF WASHINGTON, Respondent, v. MARCUS ANTHONY REED, Appellant. |
MELNICK, J. — Damien R. Davis and Marcus A. Reed were tried together and a jury convicted them of murder in the first degree, two counts of assault in the second degree, and burglary in the first degree, all with firearm enhancements. The jury also found Reed guilty of unlawful possession of a firearm. Both Davis and Reed appeal their convictions, and Reed also appeals his sentence as a persistent offender. They raise numerous other issues. We affirm.
On March 28, 2013, Davis and Daniel Davis1 helped Reed's sister move to a new apartment. Subsequently, Davis received a call from his child's mother, Kelsey Kelly. Davis, Daniel, and Reed went to the Morgan Motel. Daniel and Reed went into a nearby store while Davis went to the motel.
Kelly had been staying with Donald Phily at the Morgan Motel. When Davis visited Kelly, Phily was also present. Phily and Kelly had electronic devices, including cell phones and computers, and heroin out in the open. With Davis present, Kelly spoke to Phily about his friend Keith. After Davis left, Kelly used heroin and fell asleep.
Davis, Daniel, and Reed returned to Davis and Daniel's apartment.2 On the way there, Davis told them that his child was not at the motel, but he saw electronics in the room. That evening, a man wanting to buy Percocet from Daniel, text messaged him. Daniel, Davis, and Reed discussed robbing the man.
Reed and Davis went to Reed's house to get a gun. They returned to the apartment with a black 9 mm handgun. Daniel took the gun and placed it in Melynda Sue Davis-Orr's purple backpack. At some point, the three men left to pick up Reed's friend, Ariel Abrejera,3 to have her drive them around. When they realized the man seeking the Percocet from Daniel would notactually buy anything that evening, they returned to the apartment. They discussed robbing Phily "because there was talk about how there was drugs and money in there, and we could sell the electronics for money, too." 6 Report of Proceedings (RP) at 745.
At some point, Reed had switched cars with his wife, and he took his yellow Crown Victoria from her. Abrejera got into the car and drove. Reed sat in the front passenger seat, Daniel sat behind the driver's seat, and Davis sat in the other backseat. Daniel carried the loaded gun. They brought the gun to intimidate Phily into giving them whatever he had. When they arrived at the motel, Reed wanted the gun, and Daniel gave it to him. Davis told Daniel and Reed to knock on the door and use the name Keith, a person Phily knew.
After parking at a nearby store, Abrejera and Davis stayed in the car. The plan was for Daniel to enter the room first with Reed following while brandishing the gun. For about a minute, Reed knocked on the door of Phily's room and claimed he was Keith. The door opened, Daniel pushed his way in, and Reed followed. Daniel and Phily began to scuffle and "the next thing [Daniel knew, he] heard a gun go off." 6 RP at 769.
Earlier in the evening, Phily's friend, Kathy Devine, went to the motel with Mark McGlothlen to visit Phily. While they were there, Kelly remained asleep on the bed. After hearing a loud knocking on the motel door, Phily yelled to the people to leave. Kelly heard someone say it was Keith. The door opened and two men entered. Devine saw one man with a gun against McGlothlen's head, and the other man with a gun struggle with Phily and shoot him.4 The gunshot killed Phily.
After Phily got shot, the shooter held the gun to McGlothlen's face and said, "Give me anything you got." 3 RP at 377. The other man had Devine and Kelly gather electronics. Devine stated that the gun was pointed at her, but she did not know if he meant to point it at her. She was shocked and scared. She feared for her safety.
Kelly awoke around midnight to banging on the door of the motel room. Almost immediately after the door opened, she heard a gunshot. Before that, Kelly turned and ran into the bathroom because she was scared. One of the men came in and asked for some items, and she responded that she did not know where they were located. Kelly stated that the man held a gun, but she could not remember whether he pointed the gun at her. She feared for her safety. After the man exited the bathroom, Kelly grabbed some of her belongings and ran out to her mother's house.
A few seconds after taking cell phones, laptops, and a wicker basket filled with miscellaneous items, Daniel and Reed returned to the vehicle. Daniel had a gash on his arm. Reed bragged about shooting Phily and apologized for hitting Daniel's arm when he fired the shot. Days later, Abrejera hid the gun.
The State charged Davis and Reed as principals, and in the alternative as accomplices, with murder in the first degree (count I); robbery in the first degree (count II); two counts of assault in the second degree (counts III, V); burglary in the first degree (count VI); unlawful possession of afirearm in the second degree (count VII).5 All counts included firearm enhancements, with the exception of count VII.6
In anticipation of the State offering Davis's post-arrest statement to law enforcement, Reed moved to sever defendants. Davis confessed to law enforcement that Reed had the idea to rob someone, that they used Reed's gun and car in the crime, that Reed and Daniel robbed the occupants of the motel room, and that Reed shot Phily. Davis also stated that Reed bragged about shooting Phily and apologized to Daniel for injuring him when he fired the shot.
Reed argued that the State's redactions were insufficient to eliminate prejudice to him because the statements still clearly referred to him. Davis did not object to the severance. The State's redactions changed references to Reed to, "the other guy," "this one guy," and "he." See e.g., Clerk's Papers (CP) (Reed) at 76.
The trial court found that the redacted interview did not include direct reference to Reed, and the statements did not violate the confrontation clause. The trial court denied Reed's motion to sever with the condition that the State redact any reference to the precise number of participants in the crime. After the State made the ordered redactions, Reed maintained his objection. The final redactions changed references to Reed to "he" or were omitted.
Before the trial court played Davis's redacted statement to the jury, Reed renewed his objection. The court gave a limiting instruction that the jury could consider the statement as evidence against Davis, but not Reed.
A different judge than the one trying the case held a hearing on the admissibility of Davis's confession and ruled it admissible. The State told the trial judge that the findings of fact and conclusions of law from the hearing had not been entered. The State noted that the parties did not dispute the facts. It provided the trial judge with proposed findings and conclusions and a copy of the transcript from the hearing. The trial court stated, 2 RP at 155-56. Davis did not object and his lawyer signed the order entered by the trial court.
On April 2, 2013, Daniel provided a taped statement to police. When he made the statement, Daniel was under arrest for a Department of Corrections violation. Daniel gave the following story to the police.
After Davis told Reed and Daniel about visiting Kelly and Phily, Reed tried to convince Daniel to rob Phily, but Daniel refused. Eventually, Reed scared Daniel into robbing Phily. Abrejera and Davis stayed in the car. When Reed and Daniel reached the motel room, Daniel entered first, and a few seconds later the gun went off. Reed shot Phily. Reed pointed the gun at Daniel to grab whatever he could, and Daniel feared Reed would shoot him. Daniel grabbed whatever he could from the room and ran back to the car. When they returned to the apartment, Reed bragged that he shot Phily.
Daniel testified at trial that he participated in planning the crime to rob Phily. He claimed Davis originated the idea. Daniel admitted that he and Reed were the men who entered the motel room, but claimed Reed carried the gun and shot Phily. He admitted that they took cell phones and laptops from the motel room.
On cross-examination, Daniel admitted that the State offered him a plea agreement with a significantly lesser sentence if he testified truthfully at trial. He admitted that he initially lied to police when he told them that he participated in the crimes because Reed threatened him and he believed Reed would kill him if he did not participate. He admitted he lied to the police because he hoped they would make him a deal.
Both Davis and Reed cross-examined Daniel on whether his plea agreement allowed him to reduce a potential sentence of 60 to 70 years of confinement. Davis asked, "And what you are really hoping to do is convince the prosecutor that you are a helpful witness, so that you can get the deal, right? . . . Aren't you just saying things that you think are going to help to keep you from going to prison for a long time?" 7 RP at 992.
The State moved to admit the audio recording of Daniel's arrest statement as a prior consistent statement. Davis conceded that the statement in question occurred before the proffer or the plea agreement. The trial court admitted the statement as a prior consistent statement, because the defendants challenged the credibility of the witness and the...
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