State v. Davis

• Decision Date: 28 September 2000
• Docket Number: No. 66537-1.,66537-1.
• Citation: 10 P.3d 977,141 Wash.2d 798
• Parties: STATE of Washington, Respondent, v. Cecil Emile DAVIS, Appellant.
• Court: Washington Supreme Court

10 P.3d 977

141 Wash.2d 798

STATE of Washington, Respondent, v. Cecil Emile DAVIS, Appellant.

No. 66537-1.

Supreme Court of Washington, En Banc.

Argued May 25, 2000.

Decided September 28, 2000.

Ronald D. Ness & Assoc., Ronald Ness, Judith Mandel, Port Orchard, for Appellant.

Cecil Emil Davis, Walla Walla, Pro se.

John Ladenburg, Pierce County Prosecutor, Barbara L. Corey-Boulet, John C. Hillman, Deputies, Tacoma, for Respondent.

SMITH, J.

Appellant Cecil Emile Davis appeals his Pierce County Superior Court conviction and sentence for aggravated first degree murder. The jury, after finding Appellant "guilty" in the guilt phase of trial on February 6, 1998, determined in the penalty phase of trial on February 12, 1998 that he did not merit leniency. The trial court on February 23, 1998 sentenced Appellant to death as required by statute. This Court's mandatory review under RCW 10.95.100 began on March 2, 1998 upon filing of the notice of judgment and sentence imposing death.

QUESTIONS PRESENTED

The questions presented in this case are:

(GUILT PHASE)

(1) Whether, under the Sixth and Fourteenth Amendments to the United States Constitution and article I, sections 3 and 22 of the Washington Constitution, the trial court erred in not sua sponte questioning prospective jurors concerning racial bias during voir dire examination and in not instructing the jury to exclude consideration of race as a factor in the case;

(2) Whether, under the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution, the trial court erred in admitting the testimony of prosecution witness Keith D. Burks; and whether the trial court erred in allowing prosecuting attorneys to ask Mr. Burks on redirect examination, "With the people that you hang out with, is it a good thing or a bad thing to be labeled a snitch?";

(3) Whether, under the Sixth and Fourteenth Amendments to the United States Constitution and article I, sections 3 and 22 of the Washington Constitution, the trial court erred in admitting the testimony of prosecution witness Asil Hubley;

(4) Whether the trial court erred in admitting a videotape of the crime scene;

(5) Whether the trial court erred in refusing to admit unauthenticated Washington State population statistics obtained from the Internet;

(6) Whether the trial court erred in denying Appellant's challenge to juror Number 6 and whether certain prospective jurors were properly excused for cause;

(7) Whether the trial court erred in not inquiring into the potential conflict of interest arising out of possible prior representation of a "jailhouse informer" by defense counsel's public defense office;

(8) Whether the trial court erred in giving jury instruction Number 13 on aggravating circumstances and jury instruction Number 20 on requirements for conviction;

(PENALTY PHASE)

(9) Whether, under the Eighth and Fourteenth Amendments to the United States Constitution and article I, sections 14 and 22 of the Washington Constitution, Appellant was denied a fair trial because of prosecutorial misconduct in statements by prosecuting attorneys during the penalty phase of the trial; and

(10) Whether, under the Fourteenth Amendment to the United States Constitution, Appellant's sentence of death was the result of prejudice which denied him a meaningful proportionality review mandated by RCW 10.95.130.

STATEMENT OF FACTS

On January 25, 1997, the body of sixty-five-year-old Ms. Yoshiko Couch¹ was discovered in the upstairs bathtub of her home in Tacoma, Washington.² Her body was found lying on its back, with the legs apart, submerged in bloody water approximately five to six inches deep.³ In the bathtub were biological tissue (blood clot),⁴ fecal matter,⁵ and Ms. Couch's undergarment.⁶ Wet towels and clothing were piled on top of the head and chest areas emitting a strong chemical odor.⁷ The body was not clothed from the waist down. A gold wedding band Ms. Couch wore on her left ring finger was missing.⁸

The events surrounding Ms. Couch's death began the night before on January 24, 1997. That night there was a gathering of people at the house Appellant Davis lived in which was owned by his mother, Ms. Cozetta L. Taylor, located at 2012 East 57th Street in Tacoma, Washington.⁹ It was across the street and one house over from Ms. Couch's residence at 2007 East 57th Street.¹⁰

At approximately 2:30 o'clock the morning of January 25, 1997, Appellant, Co-defendant George Anthony Wilson, and Keith D. Burks, Appellant's seventeen-year-old friend and a recent acquaintance of Mr. Wilson, were smoking cigarettes on the porch of Ms. Taylor's house.¹¹ Appellant was wearing brown suede gloves at the time.¹² In the presence of Mr. Wilson and Mr. Burks, Appellant said "I need to rob somebody,"¹³ as he looked in the direction of Ms. Couch's residence across the street.¹⁴ Then Ms. Lisa R. Taylor, Appellant's sister, came outside and told the men to come inside because she was locking the house for the night.¹⁵ Shortly after that Appellant said "I need to kill me a motherfucker."¹⁶ Mr. Burks went back inside the house, while Appellant and Mr. Wilson remained outside.¹⁷

About five or six minutes later, Mr. Wilson came to the sliding glass door at the back of the house appearing wide-eyed and scared.¹⁸ Mr. Burks unlocked the door and let him in.¹⁹ According to Mr. Burks, Mr. Wilson told him he and Appellant "went over there to rip the lady off, but [Appellant] just kicked in the door and started beating on her and rubbing [her] all over."²⁰ Mr. Wilson told Mr. Burks the woman was coming down the stairs,²¹ and that Appellant rubbed her breasts.²² He identified Ms. Couch as "the old woman across the street."²³ He also told Mr. Burks that as soon as he realized what Appellant was doing to the woman, he left the Couch residence.²⁴ Mr. Burks went to sleep after listening to Mr. Wilson's statements.²⁵ At a later date, Mr. Burks made two statements to police authorities.²⁶

Later that morning, at approximately 11:00 o'clock, Jack A. Schauf and his wife, Ms. Asako Schauf, arrived at the Couch residence.²⁷ They were scheduled to pick Ms. Couch up to attend a dance recital.²⁸ Ordinarily she would be ready and waiting for them whenever they gave her a ride. But on that day she was not waiting for them.²⁹

The front door opened inward as Ms. Schauf knocked on it.³⁰ There was no damage to the front screen door.³¹ Mr. Schauf entered the Couch residence with his wife.³² The Schaufs noticed wood chips and a striker plate from the doorsill on the floor.³³ They went upstairs and took a cursory look around.³⁴ Ms. Schauf, followed by her husband, proceeded to check on the physically disabled Richard Couch, husband of Ms. Couch, whose bedroom was located downstairs.³⁵ Mr. Schauf then went back upstairs and looked into a bedroom and the living room and noticed a white-powdery substance scattered around.³⁶ Upon entering the bathroom adjacent to the kitchen, he found the body of Ms. Couch in the bathtub.³⁷ Mr. Schauf felt Ms. Couch's stomach and concluded she was dead.³⁸

At the time of the incident, Mr. Couch had a heart condition and was disabled from several strokes.³⁹ The left side of his body was paralyzed.⁴⁰ He was only able to walk a few steps with assistance and was not able to walk up the stairs.⁴¹ He also took prescribed medication to help him sleep.⁴² He was not aware of what happened in his home that morning. When Mr. Schauf went to use the telephone in Mr. Couch's bedroom to call 911, he found the telephone, normally on a table next to the bed, in a closet three to four feet away from the bed.⁴³ Mr. Couch was not informed of his wife's death until after members of the Tacoma Fire Department Paramedic Unit arrived and confirmed she was dead.⁴⁴

Richard Couch was retired from the United States Army. His wife was a homemaker and his primary caregiver.⁴⁵ She did all the household shopping and purchased groceries at military commissaries in Pierce County.⁴⁶ She had recently purchased Kool Mild cigarettes and cans of Pepsi Cola for her husband, and small packages of meat and poultry, enough to feed two people.⁴⁷ At the time of the incident, there were cans of Budweiser Light beer in the home.⁴⁸ Ms. Couch always had cash on her person, either in the inside pocket of her purse or in an envelope.⁴⁹ The Couches kept to themselves and had no African American friends who visited their home.⁵⁰

Tacoma Police Department forensic specialist Ms. Toni Wentland collected some hairs, fibers, and suspected blood from Ms. Couch's mattress and bedcovers.⁵¹ Forensic specialist Eric Berg gathered several pieces of evidence at the crime scene which included a utility box housing the telephone and television cables located on the outer left front corner of the Couch residence—cut marks on the telephone cable indicating an attempt to cut the telephone line;⁵² a completely severed television cable;⁵³ a container of Comet cleanser recovered from the east bedroom;⁵⁴ a white powdery substance, believed to be Comet cleanser, scattered mainly throughout the upstairs area of the house;⁵⁵ a damp sponge with a gritty white powdery residue found on the railing at the top of the stairs;⁵⁶ a similar white powdery residue found on Ms. Couch's body below the waist;⁵⁷ Ms. Couch's open purse, with no money in it, on the hallway floor outside the doorway to the southeast bedroom⁵⁸ and a sleeping bag with a large amount of biological tissue (blood clot) recovered from the bed in the southeast bedroom.⁵⁹ Forensic specialist Eric Berg did a thorough forensic investigation of the upstairs bathroom where Ms. Couch's body was found. He observed a glove print on the bathroom mirror. In his opinion it was left by a leather glove.⁶⁰ No fingerprints were recovered.⁶¹ Mr. Berg noticed a very strong chemical odor in the bathroom and determined the odor was consistent with the household cleanser "Goof-Off."⁶² A can of "Goof-Off" was found on...