State v. Davis

• Decision Date: 24 July 1996
• Docket Number: No. 95-1556,95-1556
• Citation: 76 Ohio St.3d 107,666 N.E.2d 1099
• Parties: The STATE of Ohio, Appellee, v. DAVIS, Appellant.
• Court: Ohio Supreme Court

Page 107

76 Ohio St.3d 107

666 N.E.2d 1099

The STATE of Ohio, Appellee, v. DAVIS, Appellant.

No. 95-1556.

Supreme Court of Ohio.

Submitted March 20, 1996.

Decided July 24, 1996.

Early in the morning of November 26, 1991, two days before Thanksgiving, Amy Perkins, the wife of a popular Cleveland radio personality, was kidnapped from a downtown Cleveland parking lot. She was found fatally shot through the head, thrown out of her car, naked, unconscious, and left for dead. In connection with this incident, a Cuyahoga County jury convicted appellant, Wiley Davis, of aggravated murder and sentenced him to death.

At approximately 8:15 a.m. that day, Mattie Baker saw Davis pacing back and forth in the parking lot where she parked her car. Because Baker recognized him as an employee of a restaurant where she often lunched, she would have spoken to Davis, but he disappeared before she exited her car.

Baker went to pay for her parking space, but had to walk back to her car because she forgot the number assigned to her space. While approaching her car, Baker again saw Davis, who was now sitting on the driver's side of a gray Toyota with Texas plates parked in the space next to her car. A white female with a "terrified look" was sitting in the passenger seat. Assuming that the woman was in trouble, Baker tried to summon help, but was unsuccessful.

Around 9:00 a.m., Gwendolyn Brice looked out the window of her house and observed a small gray four-door car with Texas plates sitting at a stop sign, with a white female inside making a motion with her hands as if "[p]ushing away" something. Brice then heard a "pop," saw glass shatter on the passenger side, and saw the woman's head drop.

Moments later, Brice's aunt, Marjorie Johnson, arrived at the house and parked behind the gray car. Johnson saw a black male with "a full head of hair" as the driver of the car, and a white female in the passenger seat with her head hanging out the window. When the driver looked at his rear-view mirror and saw Johnson, he "pulled off" at high speed.

The next person to see Davis was Nancy Brown, who was parked in her car while waiting with her son and his friends for the school bus to arrive. As she and the children sat in the car, Brown witnessed a blue or dark gray Toyota moving very slowly across the intersection. The driver, whom Brown described as "a dark male" with a "Jheri curl," was leaning over the passenger seat, trying to close the passenger-side door "as if it was stuck, or jammed."

After the car passed, the children drew Brown's attention to a person lying behind some bushes. Brown immediately went down the street to investigate. She discovered a nude white female, unconscious, and "barely living." The woman was trying to speak, "but nothing was coming out." Brown ran to a nearby house to call 911. When she returned, she covered the victim with a borrowed blanket and waited with the victim for the ambulance to arrive. Brown specifically testified that the victim was wearing no jewelry. The victim was taken to a hospital, where she died. David Perkins later identified the victim as his wife, Amy Perkins.

About twenty-five minutes after the shooting, the owner of a nearby deli noticed a gray Toyota with Texas plates parked in his lot. When he later went out to look at the car and saw its broken windshield and blood in the car, he called the police. When the police arrived, they found a Federal brand .32 caliber shell casing five to ten feet from the driver's side of the car. In the car, police found the victim's clothing, a checkbook, some personal items that appeared to have been rifled through, and fresh blood on the floor.

Davis did not report to work on November 26 and did not answer the phone when his boss called his home at 8:45 a.m. Later that morning, however, Davis went to his sister Annette's house, which is located approximately three hundred yards from where the victim's car was discovered. When Davis arrived, his sweatsuit had bloodstains on the right side, which Davis explained by claiming that he accidentally shot someone in an altercation. Davis asked Annette's boyfriend, Alfonso Herring, Jr., to loan him a pair of pants and keep the gun for him. Herring hid the gun in a closet and gave Davis a pair of work pants and a sweatshirt. Davis changed and washed the blood off his sweatsuit, which he left hanging in the bathroom. Davis left his sister's house at 9:40 a.m. with his mother.

Later that afternoon, Cleveland police arrested Davis at his girlfriend's house. When the officers executed a warrant to search the house, they found a right shoe with bloodstains on its right-hand side, above the heel, a box of Federal brand .32 caliber ammunition and loose bullets of the same type, but no gun.

After being warned that the police had asked for Annette's address, Herring took Davis's clothes and the gun from the closet, put them in the trunk of his car, and left. Despite a request from Davis not to turn over the gun and clothes to the police, on November 29, upon the advice of an attorney and his father, Herring turned the items over to police.

A Cleveland police firearms examiner test-fired the gun turned in by Herring and after considerable analysis determined that the casing found in the deli parking lot had been fired from the gun turned over by Herring. Further, the county coroner's office found Group O blood on Davis's right shoe and the right sleeve of his sweatsuit. However, both Davis and Perkins had Group O blood. Yellow stains on the sweatsuit's right shoulder and left leg could not be identified as blood, but a stain on the right leg tested positive for "human protein."

Amy's husband, David, identified the car as Amy's and testified that his wife always wore a custom-made engagement wedding ring and a woman's Rolex watch. He further testified that the jewelry has been missing since Amy's death.

Davis was ultimately charged on four counts. Counts One and Two charged aggravated murder under R.C. 2903.01(A) and (B). Each count carried three felony-murder capital specifications--kidnapping, aggravated robbery and rape/attempted rape. Davis was also charged separately with kidnapping and aggravated robbery. The jury convicted Davis of all counts listed above and all specifications thereto and recommended death sentences on Counts One and Two. The trial court sentenced Davis to death and ordered him held in solitary confinement on the twenty-sixth day of each month until his execution. The court of appeals affirmed the convictions and the sentence except for the solitary confinement provision.

The cause is now before this court upon an appeal as of right.

Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, Frank Gasper and Diane Smilanick, Assistant Prosecuting Attorneys, for appellee.

David L. Doughten and John P. Parker, Cleveland, for appellant.

COOK, Justice.

Davis has presented this court with sixteen propositions of law pertaining to both the guilt and sentencing phases of his trial. Pursuant to the mandate of R.C. 2929.05(A), we have considered each of appellant's propositions of law and have reviewed the sentence for appropriateness and proportionality.

We have previously held that R.C. 2929.05 does not require this court to address and discuss, in opinion form, each and every proposition of law raised in a capital case. See, e.g., State v. Allen (1995), 73 Ohio St.3d 626, 628, 653 N.E.2d 675, 680; State v. Poindexter (1988), 36 Ohio St.3d 1, 3, 520 N.E.2d 568, 570. Accordingly, we continue to adhere to our view on this issue and address only those issues that warrant discussion. For the following reasons, we affirm the court of appeals' judgment and uphold Davis's death sentence.

I

The Guilt Phase

A Venue/Pretrial Publicity

The critical issue in Davis's first proposition of law is whether the trial court's refusal to change venue violated Davis's fair trial rights. In order to safeguard the fair trial rights of a defendant, a trial court can change venue "when it appears that a fair and impartial trial cannot be held" in that court. Crim.R. 18; R.C. 2901.12(K). In State v. Lundgren (1995), 73 Ohio St.3d 474, 479, 653 N.E.2d 304, 313, we reaffirmed our position that " ' "[a] change of venue rests largely in the discretion of the trial court, and * * * appellate courts should not disturb the trial court's [venue] ruling * * * unless it is clearly shown that the trial court has abused its discretion." ' " (Citing State v. Maurer [1984], 15 Ohio St.3d 239, 250, 15 OBR 379, 388-389, 473 N.E.2d 768, 780, quoting State v. Fairbanks [1972], 32 Ohio St.2d 34, 37, 61 O.O.2d 241, 243, 289 N.E.2d 352, 355.)

Davis asserts that constant and excessive prejudicial media coverage before and during his trial made it impossible to seat an impartial jury, in spite of the trial court's precautions and efforts during voir dire. The majority of the publicity about this case was disseminated in November and December 1991. The trial did not take place until May 1992. Compare State v. Landrum (1990), 53 Ohio St.3d 107, 559 N.E.2d 710 (delay of trial to February from September arraignment found to have helped dissipate any effects from the pretrial publicity). While newspaper articles did reference Perkins's murder following a similar incident in March 1992, two months prior to trial, the articles mentioned the murder only briefly, and with no details.

Pretrial print and electronic media coverage of the crime, while significant, did not act to deprive Davis of a fair trial. In State v. Bayless (1976), 48 Ohio St.2d 73, 98, 2 O.O.3d 249, 262, 357 N.E.2d 1035, 1051, we concluded that "a careful and searching voir dire provides the best test of whether prejudicial pretrial publicity has prevented obtaining a fair and impartial jury from the locality." The transcript of voir dire indicates that publicity in this case, while significant, was not pervasive. Moreover, the trial court took substantial...