State v. Davis

• Decision Date: 22 April 2014
• Docket Number: No. 2011–0538.,2011–0538.
• Citation: 9 N.E.3d 1031,139 Ohio St.3d 122
• Parties: The STATE of Ohio, Appellee, v. DAVIS, Appellant.
• Court: Ohio Supreme Court

139 Ohio St.3d 122

9 N.E.3d 1031

The STATE of Ohio, Appellee,

v.DAVIS, Appellant.

No. 2011–0538.

Supreme Court of Ohio.

Submitted Oct. 22, 2013.

Decided April 22, 2014.

Laurence E. Komp and John P. Parker, Cleveland; and Midwest Center for Justice, Ltd., and Alan M. Freedman, for appellant.

Michael T. Gmoser, Butler County Prosecuting Attorney, and Michael A. Oster Jr., Chief, Appellate Division, for appellee.

PFEIFER, J.

{¶ 1} While on parole from a prior conviction of murder in the second degree, appellant Von Clark Davis shot Suzette Butler to death on December 12, 1983. A three-judge panel found him guilty of aggravated murder with a prior-conviction specification and sentenced him to death.

{¶ 2} On December 12, 1983, Davis offered Mark “Poppa” Lovette $60 in exchange for a favor. He then drove Lovette to a pawn shop, where Lovette bought a Raven P.25 semi-automatic handgun using Davis's money. Lovette gave the gun to Davis. Davis then gave Lovette more money and took him to a different store to buy ammunition.

{¶ 3} When Davis discovered that the ammunition did not fit the Raven, he took Lovette to a local gun store. There, Lovette bought a box of PMC .25–caliber automatic rounds, which he gave to Davis. Davis loaded the Raven and placed it under the driver's seat. After dropping Lovette off, Davis and Wade Coleman rode around drinking beer for 30 minutes to an hour.

{¶ 4} Later that day, Suzette Butler met her friend, Mona Aldridge, at the American Legion post in Hamilton. Shortly thereafter, Davis arrived. Davis and Butler had lived together for a time but had recently separated. Davis spoke with Butler at the bar, and eventually they sat together at a table and Aldridge joined them. Aldridge testified at trial that she did not observe any argument or harsh words between them.

{¶ 5} After a short time, Butler told Aldridge that she would be “right back” and asked Aldridge to watch her jacket, cigarettes, and drink. Davis and Butler then walked out the front door. Several minutes later, Aldridge checked on Butler, saw Davis pointing a gun at Butler's head, and panicked and retreated into the bar. Within moments, several people entered the bar saying that someone had been shot.

{¶ 6} Reginald Denmark and Cozette Massey witnessed the shooting. As they walked in front of the American Legion post, they saw a man and a woman talking. Two shots rang out, and they saw the woman—later identified as Butler—fall. As she fell, another shot was fired. Finally, once Butler was down, the man bent down and shot her in the head. Both Massey and Denmark identified Davis as the shooter.

{¶ 7} An autopsy performed the next day revealed that Butler had died of multiple gunshot wounds to the left side of her head. Stippling around one of the entrance wounds indicated that the muzzle of the murder weapon had been less than 20 inches from Butler's head when the shot causing that wound had been fired.

{¶ 8} Four spent PMC shell casings were collected at the murder scene. Ronald Dye, a criminalist with the Ohio Bureau of Criminal Identification and Investigation, examined the shells and concluded that all four had been chambered in the same gun. Dye examined the four bullets removed from Butler's head and determined that they had been fired from a handgun manufactured by either Raven or Astra.

{¶ 9} The grand jury returned a two-count indictment against Davis. Count One charged him with the aggravated murder of Butler with prior calculation and design, R.C. 2903.01(A), with a firearm specification under R.C. 2929.71. Count One also carried a death specification under R.C. 2929.04(A)(5), alleging that Davis had been previously convicted of an offense an essential element of which was the purposeful killing of, or attempt to kill, another. Count Two charged Davis with having a weapon while under disability, R.C. 2923.13(A)(2). Davis waived his right to a jury trial and was tried to a three-judge panel.

{¶ 10} Davis testified on his own behalf at his 1984 trial. He admitted that Lovette had purchased a gun for him, but claimed that he had given the gun to a man named “Silky Carr” of Lexington, Kentucky. Davis also testified that he left Carr and Butler talking in front of the American Legion on the night of the murder and drove away. “Silky Carr,” however, was never located.

{¶ 11} The panel found Davis guilty of all charges and specifications. After conducting the penalty phase, the panel sentenced Davis to death. The court of appeals affirmed the conviction and death sentence.

{¶ 12} Davis appealed to this court, and we affirmed his conviction. State v. Davis, 38 Ohio St.3d 361, 528 N.E.2d 925 (1988) (“ Davis I ”). We also determined that the panel had improperly weighed a nonstatutory aggravating circumstance against the mitigating factors when it sentenced him to death and that the error could not be cured by independent review. Accordingly, we vacated the death sentence. Id. at 367–373, 528 N.E.2d 925. We further held that when a reviewing court vacates a death sentence imposed by a three-judge panel due to error occurring at the penalty phase, the state may seek a death sentence on remand (with two exceptions not germane to this case). Id. at syllabus. Accordingly, we remanded for resentencing “solely for the purpose of determining whether the remaining aggravating circumstance outweighs the mitigating factors presented by [Davis], beyond a reasonable doubt.” Id. at 373, 528 N.E.2d 925.

{¶ 13} On remand, the same three-judge panel that had originally sentenced Davis conducted the resentencing hearing in August 1989. The panel considered only the evidence presented in mitigation at Davis's 1984 trial. Davis was not permitted to introduce evidence concerning his adjustment to prison life or to present the testimony of a psychologist to provide a “psychological update” of Davis covering the period since his 1984 conviction and sentence.

{¶ 14} The panel again sentenced Davis to death. On appeal, the court of appeals affirmed the sentence. We also affirmed the sentence. State v. Davis, 63 Ohio St.3d 44, 584 N.E.2d 1192 (1992) (“ Davis II ”).

{¶ 15} In 2007, the United States Court of Appeals for the Sixth Circuit granted habeas corpus relief and required that Davis be resentenced, on the ground that the panel on resentencing should have allowed Davis to introduce additional mitigating evidence. Davis v. Coyle, 475 F.3d 761 (6th Cir.2007).

{¶ 16} By the time of the subsequent resentencing, one of the original panel members had died, and the other two were no longer on the bench. Accordingly, the trial court convened a three-judge panel consisting of three new judges. Complying with the Sixth Circuit's decision, the new panel heard further mitigating evidence in September 2009 and sentenced Davis to death. The court of appeals affirmed. State v. Davis, 12th Dist. Butler No. CA2009–10–263, 2011-Ohio-787, 2011 WL 646404.

{¶ 17} The cause is now before this court on appeal as of right. Davis raises five propositions of law challenging his death sentence. For the reasons that follow, we conclude that all five propositions of law lack merit, and we affirm the judgment of the court of appeals.

I. Attempt to Withdraw Jury Waiver

{¶ 18} In his first proposition of law, Davis contends that during his resentencing in 2009, the trial court should have allowed him to withdraw the jury waiver that he had executed before trial in 1984.

A. Factual and Procedural Background

{¶ 19} On May 8, 1984, Davis executed a written waiver of his right to a jury trial and election of trial to a three-judge panel. The waiver states:

I, Von Clark Davis, defendant in the above cause, appearing in open court this 8th day of May, 1984, with my attorneys * * * do hereby voluntarily waive my right to trial by jury and elect to be tried by a court to be composed of three judges, consisting of Judges Henry J. Bruewer, William R. Stitsinger, and John R. Moser, all the same being the elected judges of the General Division of the Court of Common Pleas of Butler County who are engaged in the trial of criminal cases, pursuant to Ohio Revised Code Section 2945.06.

I am waiving said trial by jury, and making this election to be tried by a court to be composed of three judges, with full knowledge of my right under the Constitution of the United States and of Ohio to a trial by a jury consisting of twelve jurors, whose verdict must be unanimous; with full knowledge of the consequences of such waiver and election under the laws of the State of Ohio; and without any compulsion, undue influence, promises or inducements of any kind made to me by anyone.

I further state that I have received the advice and counsel of my attorneys, with which I am satisfied, and being fully advised by them do hereby make this waiver and election of my own free will and accord.

{¶ 20} In Davis I, Davis disputed the voluntariness of his jury waiver. He argued that the trial court's refusal to sever the aggravated-murder charge from the charge of having a weapon under disability “ ‘forced’ him to choose a hearing by a three-judge panel.” 38 Ohio St.3d at 363, 528 N.E.2d 925. We rejected that claim. Id. at 364, 528 N.E.2d 925.

{¶ 21} After we in Davis I remanded the case to the trial court for resentencing, Davis filed a motion to withdraw his jury waiver. The trial court denied the motion. Davis challenged that decision on his subsequentappeal, arguing that his 1984 waiver was not “an ‘informed choice,’ ” because in 1984 he did not realize that his choice could ultimately affect his eligibility to be resentenced to death in the event that his death sentence was vacated. Davis II, 63 Ohio St.3d at 48–49, 584 N.E.2d 1192.

{¶ 22} This argument was advanced, in part, because in 1987, three years after Davis's trial, we held that after a death sentence imposed after a jury trial was vacated, the trial court could not impanel a new jury on remand and therefore that the defendant could...