State v. Davis, No. 80209-2

CourtUnited States State Supreme Court of Washington
Writing for the CourtALEXANDER
Decision Date20 September 2012
PartiesSTATE OF WASHINGTON, Respondent, v. CECIL EMILE DAVIS, Appellant.
Docket NumberNo. 80209-2


No. 80209-2


Filed September 20, 2012

ALEXANDER, J.*—In 1997, Cecil Davis raped, robbed, and murdered 65-year-old Yoshiko Couch. A jury found Davis guilty of aggravated first degree murder and unanimously agreed that no mitigating factors warranted leniency. State v. Davis, 141 Wn.2d 798, 807, 10 P.3d 977 (2000). Davis was sentenced to death. On direct appeal, we upheld the conviction and sentence. We later granted Davis's personal restraint petition (PRP), reversing his sentence because jurors had seen him in shackles. In re Pers. Restraint of Davis, 152 Wn.2d 647, 101 P.3d 1 (2004). At the new penalty proceeding, the jury found no mitigating factors warranting leniency and Davis was again sentenced to death. This appeal followed. See RCW 10.95.130.

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Finding no reversible error in Davis's second penalty proceeding, we again affirm the sentence of death.


At approximately 2:30 a.m. on January 25, 1997, Cecil Davis was partying with friends outside his mother's home in the city of Tacoma when he said, "I need to rob somebody" and "I need to kill me a motherfucker." Report of Proceedings (RP) (Apr. 30, 2007) at 2638, 2641. Accompanied by his friend, Anthony Wilson, Davis proceeded to a home across the street from the party. Once there, Davis kicked open the door and started "beating on" and rubbing the breasts of an occupant of the home, Yoshiko Couch. Id. at 2643. At this point, Wilson left.

At approximately 11:30 a.m. the same day, friends of Couch found her dead in her bathtub, naked from the waist down, surrounded by bloody water and fecal matter. Wet towels were wrapped around Couch's head, and her vagina was red, raw, and covered in a white, powdery household cleanser. The bathroom smelled strongly of chemicals, and opened household cleansers were found within the room. Couch's wedding ring was missing from her ring finger, and her purse was lying open in a hallway.

An autopsy revealed that while alive, Couch's vagina had been lacerated by a hard object, not a penis; her face was bruised and marked in a manner consistent with manual suffocation; and her skin was degraded from xylene, a chemical found in cleaning agents. The physician who conducted the autopsy concluded that Couch died

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of asphyxia by suffocation and chemical toxicity.

Yoshiko Couch's husband, Richard Couch, who was disabled from a number of strokes and unable to walk, was downstairs in his bed when the crime occurred. The telephone that was usually on his nightstand had been moved to a closet and, thus, was out of his reach.

Extensive evidence connected Davis to the crime, including blood, hair, and fingerprint samples. Meat and cigarettes that were believed to have belonged to the Couches were found in Davis's possession. The morning after the crime, Davis offered to sell his mother a gold wedding band matching the description of Couch's wedding ring. Davis also made incriminating statements. Upon seeing a neighbor pointing toward his mother's home and talking to police, Davis told his sister "[t]hat bitch was next." RP (Apr. 30, 2007) at 2605. In addition, upon hearing that the newspaper reported that he killed and raped Couch, he told a cellmate that "he might have killed the old bitch, but he didn't rape the old bitch." RP (May 2, 2007) at 2842-43.


Davis was charged in Pierce County Superior Court with premeditated first degree murder with aggravating circumstances of rape, robbery, and burglary. Davis, 141 Wn.2d at 821. In 1998, a jury found him guilty as charged. At the conclusion of the penalty phase of the trial, the jury found that there were no mitigating circumstances warranting leniency. Based on the jury's verdict, the trial judge, Frederick Fleming, sentenced Davis to death.

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Davis filed a PRP challenging his conviction and sentence on several grounds, including that he received ineffective assistance of counsel because his attorney failed to object when jurors saw him in shackles. Davis, 152 Wn.2d at 757-60. We affirmed Davis's conviction but vacated the sentence, remanding for a new penalty phase based on our conclusion that shackling may have tainted the penalty proceeding and that his counsel was ineffective in not raising an objection to the shackling.

The second penalty proceeding took place in 2007 before a new jury. Judge Fleming again presided. Although the evidence presented at this penalty proceeding was similar to that presented in the first proceeding, the jury learned an additional fact—that in 2006, Davis had been convicted of second degree intentional murder for a killing that occurred the year before the murder of Couch. The jury did not find sufficient mitigating circumstances to warrant leniency, and Davis was again sentenced to death. Davis appealed, raising numerous issues that we address hereafter in addition to the issues this court is mandated to review pursuant to RCW

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In general, errors at a capital penalty proceeding are subject to heightened scrutiny. State v. Stenson, 132 Wn.2d 668, 743-44, 940 P.2d 1239 (1997). This requires a more careful look at the record but does not raise the standard of review.

Issues Raised by Davis

1. Did the trial court abuse its discretion by failing to recuse itself after communicating ex parte with prosecutors?

After this court reversed the death sentence that had been imposed at Davis's first trial, the case returned to Judge Fleming's court for a new penalty phase. Upon agreement between Davis and the State, the trial court initially set trial for September 2005. By April 2005, Davis's counsel realized that they needed more time to prepare and, thus, sought a continuance. The trial court granted the defense request to continue the trial to April 2006.

On January 20, 2006, the defense again moved for a continuance, this time on the basis that it could not be ready for trial in April 2006 because its mitigation specialist would not be available. Faced with this motion, Judge Fleming expressed frustration and said that the conviction had been

reversed because they may have seen somebody walking—may have seen somebody walking in shackles.
. . . .
And now we are eight years hence and back—I just think that everyone—litigants, society, everyone has a right to have these matters resolved in a reasonable period of time.

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RP (Jan. 20, 2006) at 10-11.

Despite these concerns, Judge Fleming continued the trial to January 8, 2007, noting that he was continuing the penalty phase "for the final time." Clerk's Papers (CP) at 621. He went on to say:

I want to be responsible and fair to both sides. And as you can tell I don't think we are being now. But after listening to you, Mr. [Ronald] Ness and Mr. [John] Neeb, I'll give you almost—well, it will be another year. To me, that is wrong. But maybe the state of our law now in this state requires it, and maybe it's the fair and just thing to do. But I'm not so sure.

RP (Jan. 20, 2006) at 18.

In October 2006, on his own and without consulting the parties, Judge Fleming decided to accelerate the trial date, apparently realizing that the penalty hearing would conflict with his scheduled February 2007 vacation. He envisioned a new schedule with voir dire beginning on December 4, 2006, and opening statements on January 2, 2007. To that end, Judge Fleming arranged for a courtroom, 150 potential jurors, and the necessary security to be available on December 4, 2006.2

On October 24, 2006, a court reporter told Deputy Prosecuting Attorney John Neeb that Judge Fleming wanted Neeb to come to courtroom 550 at 1:30 p.m. Shortly before 1:30, Judge Fleming saw another deputy prosecuting attorney, John Hillman, in a hallway in the Pierce County Courthouse. Judge Fleming asked Hillman to prepare a scheduling order according to the new schedule, approve it, and then give defense

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counsel a copy for signature. Hillman did as he was told and approved the order. Deputy Prosecuting Attorney Neeb arrived shortly thereafter, received the same instructions,3 and also signed the order. Soon thereafter, a deputy prosecutor delivered the order to Davis's counsel, who signed it, noting an objection to the changed date for trial.

Davis's counsel then moved to reschedule the trial date and for Judge Fleming to recuse himself based on what they alleged was improper ex parte contact. The State joined in the motion to reschedule the trial date but opposed the recusal motion. Following a hearing, Judge Fleming agreed to continue trial until April 2007 but denied the motion to recuse.

Davis contends that Judge Fleming's ex parte communication with the deputy prosecuting attorneys violated former Canons 1 (1995), 2(A) (1995), and 3(A)(4) (1995) of the Code of Judicial Conduct (CJC)4 and that these violations required Judge Fleming to recuse himself under former Canon 3(D)(1) (1995). The State concedes that ex parte contact occurred when Judge Fleming asked the deputy prosecutors to approve the scheduling order and deliver it to defense counsel for signature. It does not agree, however, that the contact required Judge Fleming to recuse. A trial judge's decision of whether to recuse himself or herself is reviewed for abuse of discretion.

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State v. Leon, 133 Wn. App. 810, 812, 138 P.3d 159 (2006) (citing In re Marriage of Farr, 87 Wn....

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