David Lee Cox

Marion County

Born: 11/17/64

Sentenced to death: 2000

Cox stabbed inmate Mark Dean Davis, 31, in the back as convicts were filing into the Oregon State Penitentiary from the recreation yard in 1998. Davis later died in a Salem hospital. Cox claimed he did not mean to kill Davis. At the time, Cox was serving time on charges of robbery, attempted murder, kidnapping, attempted assault and burglary.

Interesting fact: Cox was convicted in 1994 of robbing a convenience store in Milwaukie and stealing a Milwaukie police car, which he later crashed.

Status: Death Row.

Oregon high court rejects Death Row inmate's appeal

Less than three months after arguments, justices uphold David Lee Cox's sentence for killing a man in prison

By Ashbel S. Green

Friday, October 15, 2004

The Oregon Supreme Court on Thursday affirmed the death sentence of a man convicted of stabbing to death a fellow prison inmate.

David Lee Cox, 40, also known as "Rooster," was convicted by a Marion County jury in 2000 of killing Mark Davis because of a dispute largely revolving around drugs.

The unanimous court rejected several arguments for a new trial, including that the judge should have allowed Cox's attorneys to tell jurors about Davis' extensive record of violence behind bars.

The court also rejected Cox's claim that the judge should not have told the jury to disregard his testimony after he refused to answer some questions the prosecutors posed.

In addition, the court refused to consider two claims about the right to confront witnesses and the right to have any issue at trial put in the indictment. Both issues stemmed from recent U.S. Supreme Court decisions. But the Oregon Supreme Court said Cox's attorneys failed to raise the issues at trial.

Cox is one of 28 men on Oregon's Death Row.

According to witness testimony, Davis had stolen drugs from Cox. He later robbed Cox at knifepoint over a pair of sunglasses. Davis also stole drugs and tobacco from other inmates.

Cox was considered a "heavyweight" in prison, while Davis was a "punk." According to witnesses, Cox had to retaliate.

As an inmate explained, if Cox "doesn't respond to it, he's now gotten punked by a punk. We call that being a punk's punk," according to the court ruling.

Stephen E. Dingle, a Marion County deputy district attorney, said that at the time of the killing, Cox was serving a sentence that amounted to life without the possibility of parole for robbery and attempting to kill a Portland police officer.

This is "the type of case that makes clear why you have to have the death penalty," Dingle said. Without a death sentence, "what would you do to him?"

The Supreme Court reached its decision less than three months after hearing the case argued. The last 10 death penalty cases have taken an average of more than nine months from oral arguments to decisions.

Supreme Court Justice Michael Gillette said the court has made it a priority to speed up death penalty appeals, which historically have moved slowly through the system.

Oregon voters reinstated capital punishment 20 years ago. Since then, juries have sentenced 51 men to death, but none has been executed against his will.

The state has executed two men after they abandoned their appeals.

Of the rest, three are awaiting new death penalty trials after their sentences were reversed. One died while his case was on appeal. One was released on the grounds that the state violated his right to a speed trial.

In addition, 15 men agreed to life sentences after their death sentences were reversed.

One cannot be retried on capital murder charges and is seeking to reverse the kidnapping and assault charges that are keeping him in prison.

Davis also had problems with other inmates. Davis was involved in trafficking heroin and tobacco within the prison. Davis traded heroin that he obtained from an inmate, Graham, to the Lakota Club for tobacco. Davis in turn traded the tobacco that he received from the Lakota Club to Graham for heroin. The Lakota Club understood that Davis was getting the heroin from a guard, and Graham understood that Davis was getting the tobacco from a guard. Neither was aware that the other was supplying Davis with contraband.

Davis told the Lakota Club that the guard was late in supplying him with heroin and asked the club to "front" or advance him some tobacco until he could get the heroin and pay the club. Davis told a similar story to Graham. The club and Graham advanced respectively tobacco and heroin to Davis on the understanding that he would pay when the guard came through. There was, however, no guard, and Davis did not repay either the club or Graham.

Graham learned that Davis was getting the tobacco from the Lakota Club. Graham spoke with the club members and told them that he, and not a guard, had been supplying Davis with the heroin that Davis had been trading to the Lakota Club. When Graham and the Lakota Club realized that Davis had "burned" them, they were concerned about his actions for two reasons. First, he still owed them a debt. Second, and more importantly to Graham and the Lakota Club, Davis's actions affected their ability to collect from other inmates. A member of the Lakota Club explained:

"[I]f word gets out that, you know, you're selling -- you've got a product for sale, but yet you're going to let this guy over here who is considered a nobody to burn you, I mean, you can't expect nobody else to pay their bill because they are going to look at you as being weak."

Graham and the Lakota Club were aware that Davis also had "burned" defendant in a deal and had "disrespected" defendant when he had taken the sunglasses from defendant at knife point. Recognizing that defendant had an interest in retaliating against Davis, Graham proposed that he, the Lakota Club, and defendant enter into an agreement. Graham offered to give defendant $5,000 worth of heroin, and the Lakota Club offered to give defendant $500 worth of tobacco and supply him with a knife if defendant would agree to "deal with" Davis. Defendant accepted the offer.

Pursuant to their agreement, the Lakota Club and Graham provided defendant with the heroin and tobacco two to three weeks before he stabbed Davis. That way, defendant could "have some fun, get high, smoke cigarettes, sell some heroin and raise some money" before the stabbing. The Lakota Club also provided defendant with a knife. One of the club members gave defendant a shank (a homemade knife) that the club members had sharpened by grinding it on the concrete floor in the clubhouse. The "war chief" of the club explained to the club member who gave defendant the shank how to stab Davis in the back in a way that would kill him.

On September 13, 1998, as the inmates were lined up on the prison yard to return to their cells, defendant came quickly across the yard. Holding the shank with both hands, he stabbed the shank in Davis's back and pushed it up towards Davis's heart. He pushed so hard that one inmate saw Davis "going up on his toes as he was stabbed." Davis stumbled against another inmate and then reached back and pulled the shank out of his back. The shank went between Davis's ribs and into his left lung and aorta, causing him to die from internal bleeding.

A grand jury indicted defendant for aggravated murder and possessing a weapon in a correctional institution. See ORS 163.095(2)(b) (defining aggravated murder as intentional homicide committed by person confined in correctional institution); ORS 166.275 (prohibiting inmates from possessing weapons). The jury convicted defendant of both charges and imposed the death penalty.

On review, defendant raises 37 assignments of error challenging his aggravated murder conviction and death sentence. We write to address 23 of the assignments of error. We affirm the other rulings to which defendant has assigned error without further discussion.

At trial, defendant did not dispute that he had stabbed Davis. He argued, however, that he had intended to injure Davis, not kill him. It followed, he concluded, that at most he could be guilty of manslaughter. Defendant's counsel outlined defendant's theory of the case in his opening statement.

Defendant claimed that he feared Davis and wanted to stab him so that the prison officials would transfer Davis to another facility. More specifically, defendant understood that, if he stabbed Davis and injured him, Davis would not tell the prison officials who had stabbed him. Not knowing who stabbed Davis, the prison officials would have to transfer Davis to a different facility to protect him.

To establish that he feared Davis, defendant sought to introduce evidence in the guilt phase of his trial that Davis had acted violently (1) towards defendant and (2) towards others in prison. The trial court ruled that defendant could introduce evidence of Davis's violent acts towards him but that he could not introduce evidence of Davis's violent acts towards others.

After the trial court made its ruling, defendant made an offer of proof to preserve his objection. He called witnesses who would have testified that: (1) on April 2, 1989, Davis became angry with his cellmate at the Oregon State Correctional Institution (OSCI) and cut him with a razor; (2) on October 27, 1989, Davis used a razor blade to hold a guard hostage at OSCI for approximately an hour; (3) in 1995, Davis stole an inmate's watch at OSP while the inmate was taking a shower and also pulled a weapon on another inmate to take his drugs; (4) in 1994 or 1995, Davis stole an inmate's shoes at OSP and hit the inmate with his fists when he tried to retake the shoes; and (5) in 1996 or 1997, Davis robbed an inmate at OSP with a shank. Also, two of the inmate witnesses would have offered their opinion that Davis was violent, and one inmate witness would have opined that Davis was psychotic.

After considering defendant's offer of proof, the trial court clarified the basis of its ruling. It stated that evidence of Davis's violent acts towards others had little bearing on whether defendant intended to injure rather than kill Davis. Even if the evidence had some relevance, the court concluded that the prejudicial effect of the evidence outweighed its probative value. The court reasoned that evidence of Davis's violence towards others

"would be misleading to the jury and create a lot of additional evidence that would just become confusing, and I think really would just be a -- lead the jurors * * * more down the line [that] the victim deserved to be killed, so we're not going to pay attention to whether or not the defendant was trying to kill the victim or just injure him, which is really what th[e jurors] need to be focused on in this case."

The court also noted that, without testimony that defendant was aware of Davis's violent acts towards others, evidence of those acts would not be relevant. The court accordingly permitted defendant to introduce evidence only of Davis's violent acts towards defendant.

Under OEC 404(3), three-part test applies when a party seeks to introduce other crimes or bad acts evidence to prove motive:

"'(1) The evidence must be independently relevant for a noncharacter purpose [such as, in this case, proof of motive]; (2) the proponent of the evidence must offer sufficient proof that the uncharged misconduct was committed and that [the victim] committed it; and (3) the probative value of the uncharged misconduct evidence must not be substantially outweighed by the dangers or considerations set forth in OEC 403. Each of these requirements must be satisfied before uncharged misconduct evidence is admissible under OEC 404(3).'"

State v. Hampton, 317 Or 251, 254, 855 P2d 621 (1993) (quoting State v. Johnson, 313 Or 189, 195, 832 P2d 443 (1992)) (first brackets in original). The state does not dispute that defendant satisfied the second step in the test. It focuses instead on the first and third steps.

The first step in the test combines two analytically separate questions -- whether the evidence is relevant and, if so, whether it is relevant for a purpose that OEC 404(3) permits. In this case, the state contends that defendant's evidence was not relevant, but it does not dispute that, if the evidence was relevant, OEC 404(3) permits its admission to prove defendant's motive. We pause briefly to explain why we agree that defendant's proffered evidence, if relevant, is admissible under OEC 404(3).

Under that rule, other crimes evidence "is not admissible to prove the character of a person in order to show that the person acted in conformity therewith." OEC 404(3). "It may, however, be admissible for other purposes, such as proof of motive." Id.; see State v. Johns, 301 Or 535, 544, 725 P2d 312 (1986) (explaining that OEC 404(3) is rule of inclusion).

Here, defendant sought to introduce evidence of Davis's other crimes to show that Davis had a propensity for violence. But he did not seek to prove that character trait to show that Davis had acted in conformity therewith, which is what OEC 404(3) prohibits. See Johns, 301 Or at 548 (stating that OEC 404(3) prohibits admission of other crimes evidence only if it is offered to prove both "(1) the character of a person, and (2) that the person acted in conformity therewith"). Rather, defendant sought to introduce evidence that Davis had acted violently to prove his own motive for stabbing Davis -- that defendant reasonably believed that he needed to protect himself from Davis. OEC 404(3) permits the admission of other crimes evidence for that purpose. See Laird C. Kirkpatrick, Oregon Evidence § 404.06, Art IV-59 (4th ed 2002) (explaining proposition).

Having concluded that OEC 404(3) permits the admission of defendant's evidence, we turn to the question whether the evidence is relevant. Evidence is relevant if it increases or decreases, even slightly, the probability of the existence of any material fact in issue. Hampton, 317 Or at 255. In this case, the state argues that the proffered evidence was not relevant for two reasons. It observes initially that evidence of Davis's violent acts against others is relevant to prove defendant's motive only if defendant knew of those acts. On this record, the state contends, a reasonable juror could not find that defendant knew what Davis had done to others.

We agree that Davis's violent acts towards others are relevant to prove that defendant feared Davis only if defendant was aware of those acts. See State v. Horseman, 52 Or 572, 579, 98 P 135 (1908) (recognizing principle). As the state notes, without defendant's testimony, the jury could infer defendant's knowledge only from circumstantial evidence. On that point, defendant argues that one witness testified that the "prison grapevine is very accurate and very fast." Defendant contends that, given that evidence, a reasonable juror could infer that defendant was aware of Davis's violent acts both at OSCI and at OSP.

Two of the incidents concerning Davis that defendant included in his offer of proof occurred at OSCI approximately nine years before defendant stabbed Davis. Both incidents were remote in time; they occurred at a different correctional institution, and it would be mere speculation to conclude, on this record, that defendant was aware of those incidents. The other incidents occurred at OSP from 1994 to 1997. Although somewhat distant in time, they did occur in the same penitentiary where defendant was incarcerated. We assume, without deciding, that evidence of the prison grapevine was sufficient to permit a weak inference that defendant was aware of the incidents at OSP.

The state advances an alternative reason why the evidence was not relevant. It argues that evidence that defendant feared Davis did not make it more likely that defendant intended to injure rather than kill Davis. In the context of this case, we reach a different conclusion. Evidence that defendant feared Davis made it more likely that defendant would take some action to protect himself from Davis. Given the more serious consequences that would result from murder, the jury reasonably could agree with defendant's theory and find that he sought to injure rather than kill Davis in order to get the prison officials to move him. In sum, evidence of Davis's other crimes at OSP was relevant to prove that defendant feared Davis.

The remaining question is whether, even if relevant, the evidence's "probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." OEC 403; Hampton, 317 Or at 254 n 4. We review the trial court's resolution of that issue for abuse of discretion. See State v. Barone, 328 Or 68, 87, 969 P2d 1013 (1998), cert den, 528 US 1135 (2000) (employing that standard of review).

In reviewing the trial court's ruling, we note that the court did not preclude defendant from introducing any evidence to prove that he feared Davis. Rather, it permitted him to introduce evidence of Davis's violent acts toward defendant. There was also evidence that another inmate had told defendant, when Davis tried to take his glasses back from defendant at knife point, that "you already know the guy is fucking crazy, man. He gets on them drugs and he wants more, you know. He's crazy." Similarly, another inmate testified that he did not have "any dealings" with Davis. He had explained that the "guy was a serious dope fiend, maniac. To have any dealings with Mark Davis would be jeopardizing your well -- safety * * *."

In deciding whether to admit additional other crimes evidence, the trial court reasonably could conclude that the probative value of defendant's proffered evidence was minimal. There was, at best, only a weak inference that defendant was even aware of Davis's other crimes at OSP. Some of those crimes involved thefts with no threat of violence.

The remainder involved two or three incidents similar to the one that defendant experienced -- the threatened use of a weapon or fists to take or retain someone else's property. Although evidence of those incidents would have advanced defendant's case, the trial court reasonably could conclude that they would not have added greatly to the evidence already before the jury.

The trial court also identified two potential risks of introducing defendant's evidence. First, the court noted that allowing defendant to prove and the state to disprove Davis's acts towards others would "create a lot of additional evidence that would just become confusing" to the jury. As we understand the trial court, it was concerned about the potential for a series of mini-trials to determine what Davis had or had not done on other occasions and whether it was likely that defendant had or had not known of those acts. Second, the court reasoned that evidence of Davis's crimes towards others could cause the jury to focus on whether Davis "deserved to be killed" rather than on whether defendant intended to injure or kill Davis when he stabbed him. See John W. Strong, 1 McCormick on Evidence § 193 at 681 ((1999) (observing that admitting evidence of victim's bad character poses that risk of prejudice).

Weighing the potential for prejudice against the relevance of defendant's proffered evidence, the trial court explained in some detail why the prejudicial effect of the evidence substantially outweighed its probative value. This court has recognized that "trial judges are granted broad discretion when findings are made on the record to back up this discretionary call." State v. Mayfield, 302 Or 631, 647, 733 P2d 438 (1987); accord Hampton, 317 Or at 260. Here, the trial court persuasively explained why it reached its conclusion. In light of the weak inference that defendant had any knowledge of Davis's acts towards others, we cannot say that the court abused its discretion.

Defendant testified during the guilt phase of the trial. Much of his testimony repeated, in greater detail, evidence that already was in the record. Defendant testified concerning his drug use in prison, recounted his confrontations with Davis, and described how Davis had taken the sunglasses from him at knife point. He testified that, as a result of Davis's actions, he feared him.