The People v. Davis
| Decision Date | 26 January 2011 |
| Docket Number | A126092,No. 157461,157461 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JESSE A. DAVIS, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Jesse A. Davis appeals from a judgment of conviction and sentence imposed after a jury found him guilty of second degree murder and found true the allegations that he used a deadly weapon and inflicted great bodily injury. He contends: (1) at a hearing on his motion to suppress evidence of his incriminating statements to police officers, the court erroneously excluded testimony concerning one of the officer's alleged coercion of other interviewees in other cases; (2) the court erred by excluding such testimony at trial; (3) the court should have redacted references to Davis' uncharged bad acts from his audiotaped statements to police; and (4) trial counsel rendered ineffective assistance by failing to request a limiting instruction on the use of the evidence of Davis' prior bad acts. Davis also urges us to review the sealed record of the court's in camera review of police personnel files in order to determine if the court erred in deciding what material from those files was discoverable. Lastly, Davis asserts that the court erred by limiting his conduct credits to 15 percent of his actual credits.
We will modify the judgment to correct the credits and affirm the judgment as so modified.
In 2008, Davis was indicted for the 1990 murder of Janet Harp. (Pen. Code, § 187, subd. (a).) The indictment included a special circumstance allegation that he committed the murder while engaged in the crime of rape. (Pen. Code, § 190.2, subd. (a)(17)(iii).) It was further alleged that Davis intentionally inflicted great bodily injury (§ 1203.075) and that he personally used a deadly and dangerous weapon. (Pen. Code, § 1022(b)(1).)
Davis filed a motion to obtain the personnel records of the police officers who questioned him, pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) and Brady v. Maryland (1963) 373 U.S. 83 (Brady). The motion was granted. He filed a supplemental Pitchess/Brady motion, which was granted as well. By these motions, Davis obtained the names and addresses of individuals who complained about one of the officers involved in Davis' interrogation, as well as certain additional information.
Before trial, Davis filed a motion to suppress evidence of incriminating statements he made to the officers, on the ground that he was coerced by one of the officer's promises and threats. As discussed ante, the court precluded some of defense counsel's evidence of the officer's alleged misconduct in other cases, denied the suppression motion after a hearing, and precluded the defense from introducing any of the evidence of the officer's alleged misconduct at the ensuing jury trial.
Evelyn Ayers was the assistant manager of Apollo Housing, a housing project in Oakland. Around 4:00 p.m. on March 1, 1990, she investigated a resident's report of an unusual smell coming from apartment 307. The apartment was normally occupied by Richard Patrick, but he was away at the time and Harp was staying there instead. Ayers knocked on the door and, when she received no response, unlocked the door with a master key and entered. Ayers saw a body and left the apartment immediately.
Oakland Police Officer Mike Reilly was the first officer on the scene at 4:18 p.m. He entered the apartment with a key obtained from Ayers and saw Harp's naked body ina pool of blood. Her feet and hands were pulled back and bound together at the wrists and ankles; a telephone cord ran from this binding to and around her neck. A couple of feet from her head was a frying pan.
Oakland Police Evidence Technician Griffin arrived at the scene around 4:48 p.m. He saw no signs of forced entry. He confirmed that Harp's nude bloody body was hog-tied, with cordage wrapped around her neck and integrated into the binding of her hands and feet. Her face was badly injured. Near her head were two teeth, a broken bottleneck, and a frying pan. A lamp had been destroyed, and broken glass was scattered on the floor and around the body.
Also near the body was a dismantled syringe. A razor blade was on a desk top, and a broken "crack pipe" was on top of the refrigerator. The words "fuck you" were written on the refrigerator door.
One of 21 fingerprint lifts yielded a bloody fingerprint on a belt that was used to tie Harp's wrists and ankles. The print was not in sufficient condition to be entered into the automated system for fingerprint identification, but was sufficient to compare against another individual's fingerprints. No match was ever found.
Davis appeared at the crime scene at 6:20 p.m. He identified himself to Oakland Police Officer Encinas as "Jesse Dunnerway," the victim's father, and claimed his wife (Barbara Davis) had told him Harp was dead. In a written statement to police officer Encinas, Davis said he last saw Harp on February 26 at 6:30 a.m., when she left his house. He also told Encinas about several men with whom Harp associated. According to Davis, Harp had been living in the apartment with her boyfriend, Richard Patrick. After Patrick returned to prison, Harp had been staying in the apartment with "Allen," a black male, for two or three months. Davis said he had not seen Allen in about two weeks, but Harp and Allen argued a lot. Davis also described another black male called "New York," who had been at Davis' house looking for Harp at 11:00 p.m. the night before. Davis said Harp and New York used heroin and were good friends.
Around 10:15 p.m. on March 1, 1990, Sergeant Lacer took a statement from Davis at the police station. Davis again said he had last seen Harp on February 26, at 6:00 a.m. where he was staying. He repeated that Patrick was in prison, mentioned the young man "New York," and claimed Harp and Allen had problems and were involved with drugs.
Dr. Thomas Rogers performed an autopsy on March 2, 1990. When Rogers first saw the body, it was still bound around the ankles, hands, and neck. One of the bindings around the hands and ankles was a belt. Rigor mortis had passed, and the body was in the early stages of decomposition; Rogers could not tell when Harp died.
Dr. Rogers identified over 60 injuries to Harp's body, all of which were inflicted before she died, and which he grouped into stab wounds, blunt injuries including abrasions, and lacerations. It was possible Harp was struck 30 to 40 times. She sustained fractures to her lower jaw, upper jaw, a cheekbone, and her nose, and her upper front teeth were missing. An internal examination revealed that three stab wounds near her left armpit punctured her left lung, and a stab wound to the groin penetrated two and a half inches. The stab wounds were consistent with a single edge weapon such as a knife, but could also have been caused by a broken glass bottle. Glass found on Harp's body could have come from one of the broken glass bottles found at the scene.
Dr. Rogers determined that the cause of Harp's death was "multiple stab wounds, multiple incised wounds, and multiple blunt injuries in a female bound tightly about the neck with electrical cords." Rogers was unable to tell if Harp had been strangled due to the decomposition of the body.
Dr. Rogers obtained smears and swabs from Harp's oral, vaginal, and rectal cavities and took sample of her pubic hair and blood. A toxicology test indicated that Harp was under the influence of a small to moderate amount of heroin and cocaine when she died.
Sergeant Lacer and another investigator confirmed that Patrick was in prison at the time of Harp's death. The investigators learned that "Allen" was Allen McGriff, who hadbeen in jail since February 8, 1990. They determined that "New York" was Michael White or Lawrence Hayes, and "New York" did not appear to be involved. Patrick, Allen, and Hayes were among the persons excluded as the source of the bloody fingerprint.
In 2004, a criminalist for the Oakland Police Department examined the vaginal swab taken from Harp in 1990 for the presence of sperm cells, as part of the department's "cold hit" program. The swab was found to contain sperm. The DNA profile from the sperm, when compared to DNA profiles in the statewide "CODIS" database, matched the DNA profile of Davis.
On February 10, 2005, Sergeant Robert Nolan, in charge of the cold case unit, assigned Sergeant Derwin Longmire as the lead homicide investigator in Harp's case. Longmire acknowledged that, at the time of the trial, he was on paid administrative leave because of his actions in an unrelated case, and the Oakland Police Department was attempting to terminate his employment for misconduct.
On March 1, 2005, Sergeants Longmire and Nolan located Davis at St. Mary's homeless shelter in Oakland. They told him they were investigating the death of his daughter and asked if he would speak with them. He agreed. By this time, Davis was 64 years old, limped and used a cane, and was nearly toothless. Longmire and Nolan drove Davis to the police station without discussing the case.
At 5:08 p.m., Davis was placed in an interview room. The officers put away their weapons before interviewing him. In accord with the policy and protocol of the Oakland Police Department at the time, Longmire determined that some of the interview would be recorded by audiotape, and some would not.1 The untaped portions of the interview were memorialized instead by the contemporaneous handwritten notes of Sergeant Longmireand Sergeant Nolan. The audiotapes, transcripts of the audiotapes, and the officers' notes were introduced as...
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