Gary Lee Davis
(1944 - 13 October 1997) was a convicted murder and rapist who was
executed by the U.S. state of Colorado in 1997. He is the first
person to have been subject to the death penalty in Colorado since
Davis was born in
Wichita, Kansas; although raised by his mother, he later claimed to
have suffered sexual abuse from an early age at the hands of his
After dropping out
of school in the ninth grade, Davis joined the United States Marine
Corps in 1961; he married Tonya Ann Tatem and had two sons with her
before their divorce. Davis held a succession of jobs before, at the
age of thirty, marrying Leona Coates; at their marriage in 1974, she
was 17 years old. They had four children.
apparently had a history of predatory sexual behavior, which he
later admitted to in various accounts following his conviction for
murder (on one occasion, he estimated that he had raped 15 women),
his criminal record only in convictions for grand larceny and
burglary in Kansas in 1970 and 1971, and menacing in Colorado in
In 1982, Davis was
jailed on a sexual assault conviction in Colorado; during his
imprisonment, he struck up a correspondence with Rebecca Fincham.
The two married in 1984, whild Davis was still in prison. He was
released in 1985 and he and Fincham moved to Byers, Colorado.
Murder, trial, and conviction
On July 21, 1986,
Davis and Fincham kidnapped their neighbor, Virginia May, from in
front of her children; they subsequently drove her to a deserted
field, where Davis raped May and then shot her 14 times with a
At trial, Davis confessed to the murder, despite the advice
of his attorneys; he was sentenced to death exactly one year after
the murder, on July 21, 1987. The jury took only three hours to
reach a verdict.
encouraged and suspended appeals of his death sentence, which was
upheld by state courts in 1990 and federal courts in 1995. During
the time he sat on Colorado's death row, Davis was able to reunite
with some of his family, including his first two wives, and,
according to some witnesses, experienced a dramatic spiritual
conversion during his final years.
Roy Romer refused to grant clemency to Davis, stating, in part: "[T]here
undoubtedly has been some rehabilitation of his character and his
demeanor. But I do not believe that whatever remorse or
rehabilitation that is displayed here justifies reaching that
extraordinary event that would cause this governor to give him
Davis's last meal
before his execution was vanilla and chocolate ice cream. Shortly
before his execution, Davis also requested a cigarette; as a smoking
ban was in place in Colorado prisons, his request was denied. He
made no final statement before being executed by lethal injection.
pronounced dead at the Colorado State Penitentiary in at 8:33 p.m.
on 13 October 1997. As his death was the first execution carried out
by the state of Colorado in approximately three decades, the event
was subject to both intense media coverage; about 200
anti-death-penalty protesters gathered outside the prison as Davis
was executed, as did a smaller group of death penalty supporters.
of 2005, Davis remains the only prisoner executed in the state of
Colorado since 1967; his execution was the 417th carried out in the
United States since the death penalty was reinstated in 1976.
Scenes From an Execution
By Alan Prendergast - WestWord.com
October 16, 1997
With all its bureaucratic ritual and live, up-to-the-minute news
bursts, Monday's execution of Gary Davis was a collective wallowing in
death by media injection.
Not having carried out an execution in thirty years,
officials at the Colorado Department of Corrections were determined to
get it right. Not having covered one, local broadcast and print
reporters struggled to strike the right tone of solemnity and high
drama. The most enterprising TV outfits were so keen on capturing the
moment that they sent their top talent to executions in Texas ahead of
time, as a kind of dry run for the Davis kill--and overkill.
Although only five media observers were allowed to
witness the execution, more than a hundred media representatives,
including some from cable news and national radio networks, squeezed
into a double-wide trailer across the road from the Colorado State
Penitentiary to cover the deathwatch. The highlights and lowlights:
8:18 a.m.: KHOW talk radio has planned
saturation coverage of the event, including on-the-scene programs by
Peter Boyles and Jay Marvin. On Boyles's morning show, reporters
schmooze and prison officials rehearse their jargon. DOC director Ari
Zavaras, who's let the execution team practice inserting IVs into his
arm, informs Boyles that what's going to take place tonight is "a
statutorily mandated function."
2:30 p.m.: After a series of engrossing
bulletins about what Davis had to eat for breakfast and lunch, the
assembled newshounds get their first scrap of real drama. Pueblo
priest Ben Bacino, Davis's spiritual advisor, informs the crowd that
Davis became emotional during a visit with two of his daughters. Radio
crews scramble to add a key detail to their latest reports: Davis "broke
down" and cried.
3:30 p.m.: DOC spokeswoman Liz McDonough
tells the press that Davis has ended all his family visits and is now
talking to Bacino. Question from a minor-market television reporter: "Would
you say his mood has become a little more serious?" McDonough replies
that Davis is "relatively upbeat but thoughtful."
4:30 p.m.: Davis attorney Vicki Mandell-King
has canceled a planned press briefing. A bored KUSA camerawoman tries
to cajole a DOC official to the podium: "Can I get a light balance off
your shirt?" The trailer has become a jungle of cables, camera tripods,
lightstands, laptops and phone lines; reporters trip over equipment
and one another on their way to and from the complimentary buffet.
McDonough stumbles on her way to the podium to announce that Davis has
invited Zavaras, CSP superintendent Donice Neal and other prison
officials to share his last meal of ice cream.
Off to one side, Canon City Daily Record reporter
John Lemons is puzzling over prison regulations that won't allow Davis
a final cigarette but require him to take a last shower. "They're
going to cremate him anyway," Lemons notes. "What's the reason for the
4:45 p.m.: Outside the trailer, television
crews prepare for the five o'clock standups. Like escapees from an
asylum, the wired-up reporters listen and talk back to voices no one
else can hear. Braving the wind in a tasteful black pants suit, KMGH's
Natalie Pujo struggles with her hair and her transmitter. The pending
execution has been knocked off the top of the local news by the death
of another notorious 53-year-old. "So, is John Denver leading?" a
technician asks. People nod glumly.
A man in an MSNBC cap dictates a possible lead-in
over a cell phone. "Nobody knows what Gary Davis is going through in
his last hours better than his spiritual advisor, blah-blah-blah," he
5:02 p.m.: Half a dozen television cameras
switch on at once, and the best of Colorado's broadcasters parrot
virtually the same trivia, distinguished only by their degree of
earnestness. KUSA's Adele Arakawa is particularly emphatic: "He has
requested ice cream, Jim," she reports.
6:30 p.m.: McDonough informs the assembled
faithful that after the execution, they will have little advance
notice before Davis's body is removed in a county coroner's van. "You
will have about five minutes to set up your shots," she cautions. "We
would respectfully request that no one attempt to follow the hearse."
She adds that Davis has had his last meal with Neal
and another CSP official.
"What kind of ice cream?" someone asks.
"Vanilla and chocolate, in little cups," McDonough replies. "He was
allowed to have as much as he wanted."
"How did he sleep?"
"What is his state of mind?"
"I don't know that."
Aspen Times columnist David Chamberlain closes his
notebook. "That was illuminating," he mutters. "I think the ice cream
is going to carry my whole story."
6:41 p.m.: Guy on cell phone, arranging key
photo-op coverage: "Listen, here's the deal on the hearse. They're
going to drive it by here real slow."
7:00 p.m.: Inquiring minds want to know:
Will a grief counselor be available to Davis's ex-wife, Rebecca
Fincham, who's doing life in a prison in Pueblo? McDonough supposes
7:10 p.m.: In a dark field just inside the
gates of the prison complex, more than 200 death-penalty protesters
try to shield their candles from the wind; a smaller group of death-penalty
advocates and victims' advocates has gathered on the other side of the
road. No foot traffic is permitted between the two camps, but the TV
crews move easily from one group to the other in their four-wheelers
and illuminate the ghostly scene with their blazing camera lights. Jim
Sunderland of the Colorado Coalition to Abolish the Death Penalty
moves quietly through the glare, marveling at the size of the crowd.
"There are gobs of reporters," he notes. He
carries a T-shirt he plans to don after the execution: "My Country
Two young women sitting on the ground singing
hymns attract the attention of four photographers, who pop flashes
at them from every side.
7:30 p.m.: Davis has had his shower,
McDonough reports. "The protocol is proceeding as scheduled," she
says, her voice not unlike that of an answering machine.
7:55 p.m.: There's a glitch in the
protocol. Davis has not yet been moved from his holding cell to the
execution room, and the media witnesses are cooling their heels in
the lobby of the penitentiary, wondering what's going on. Tension is
building in the media center--at least, that's the story the radio
reporters are barking into their telephones.
8:18 p.m.: Davis has been strapped on the
table, the IVs inserted, the death warrant read to him. Lights
flicker on every floor of the penitentiary.
8:28 p.m.: Chewing gum and wrapped in a
black trenchcoat, KWGN's Dave Young grimaces at the camera and taps
his earphone. "I hear nothing but hum," he says.
8:34 p.m.: McDonough announces that Davis
was pronounced dead at 8:33. The flickering lights, she explains,
are the work of inmates covering their windows with blankets or
fooling with the light switches. Cameras turn obligingly to the
phenomenon while the trailer erupts with live radio reports.
8:50 p.m.: The media witnesses are
escorted back to the trailer to brief their colleagues. They all
seem a bit numbed by what they saw, although in some cases it's hard
"Everything was fairly peaceful, if that word is
appropriate," says KWGN's Ernest Gurule. "He seemed to be resigned
Davis made no last statement and, except for a
brief glance at lawyer Mandell-King, kept his eyes on the ceiling. "There
was not much to see," explains the Denver Post's Kevin Simpson, who
seems particularly spooked by the experience.
KCNC's Brian Maass is so intent on peppering the
witnesses with three-hankie questions--"What's it like to see
somebody executed? Kevin, do you think the image of Gary Davis dying
will stay with you?"--that witness Judy Kohler of the Associated
Press can hardly get a word in.
Sporting the loudest tie in the room, Adams
County District Attorney Bob Grant takes the podium, his somber
speech about "justice delayed but justice nonetheless" scarcely
concealing his good humor. "I saw a lot better people die a lot
worse deaths in the fields of Vietnam," he harrumphs, adding that
Colorado killers now know that they "will have the opportunity to
look the devil in the eye, just as [Davis] is doing right now."
The hit of the evening, though, is witness Rod
MacLennan, Ginny May's father, who provides an eloquent, understated
defense of the death penalty and pleads for a speedier appeals
process and tighter control of sex offenders. "I can see that this
has drawn a lot of attention, and I'm glad it has," he says. "Some
of you may say we were after revenge. You are wrong. We were just
spectators...Compassion was given, justice was done. It's over. What
more needs to be said?"
Not much, the press decides. By the time Colorado
Attorney General Gail Norton gets to unload a few prepared remarks
about the legal system, she finds herself addressing a half-empty
room; many of the deadline-pressed reporters have gone off to
conduct their own up-close-and-personal interviews with the
9:30 p.m.: A gray Ford Aerostar bearing
the body of Gary Lee Davis heads slowly toward the prison gates. TV
crews and photographers line up along the road to get the shot.
The Killer Inside Him
The twisted life--and lethal secrets--of Gary Davis
By Alan Prendergast - WestWord.com
October 16, 1997
Like hundreds of other men
on death rows across America, Gary Lee Davis paid attention when Ted
Bundy took the juice in Florida's electric chair in 1989.
Just hours before his execution, while the hecklers
gathered outside sang "On Top of Old Sparky," Bundy granted his last
interview to psychologist and evangelist James Dobson, head of Focus
on the Family. The nation's most notorious serial killer told Dobson
that his murderous attacks on women could be traced to his adolescent
fascination with pornography.
Davis thought Bundy was pulling the good doctor's
leg. "I can't see [how] looking at naked pictures would make someone
kill somebody," he wrote in a letter to a friend a few weeks after
Bundy's death. "That's a copout...anyone who believes that shit is
Whatever else he was, Davis wasn't pure stupid.
True, he offered his share of copouts. In the sinking twilight of
death row, condemned men find ready-made explanations for their
horrendous crimes: drugs, childhood abuse, loveless marriages, low
self-esteem, evil companions, the absence of God in their lives--whatever
might play best in the appeals courts.
Davis's excuses ran the gamut, but his favorite
scapegoat was his alcoholism. "Sober, I consider myself a real nice
person," he said. "Drunk, a real live monster."
Yet in his more candid moments, Davis acknowledged
that his drinking was only a catalyst for, not a cause of, his
rampages--a way of unshackling the demons within. In his letter
sneering at Bundy's confession, he added, "I've always had a strong
driving force inside of me for some reason. Alcohol let me go for it."
Davis went for it more than he cared to admit. Like
Bundy, he spent much of his adult life stalking and terrorizing young
women, reveling in their pain, drowning any qualms he might have had
in a sea of booze; in letters to a longtime confidant, made available
to Westword after his bid for clemency failed, he estimated that he'd
raped fifteen women in the course of his sorry existence. Unlike Bundy,
he didn't make a habit of killing his victims--not until one horrific
day in July 1986, when Davis and his third wife, Rebecca Fincham,
kidnapped their neighbor, 32-year-old Virginia May. They took her to a
deserted field outside of Byers, sexually assaulted her, and then,
while May pleaded for her life, shot her fourteen times.
On Monday it was Davis's turn to die. He was the
guest of honor at Colorado's first execution in thirty years--a long-delayed
act of retribution on behalf of the grieving family of Ginny May, a
source of outrage to death-penalty foes, a muted spectacle to feed the
thrill-crazy media and a vengeful public (see related story, p. 20).
The state's executioners strapped him onto a cross-like gurney, opened
his veins and flooded his heart with potassium chloride. They put him
down like a rabid dog.
What he did to Ginny May, Davis admitted, was a "sick,
stupid crime," and he paid the price for it. Yet the "driving force"
he wrote about isn't so easily dispatched. The sickness had been
gnawing at him years before the murder, but Davis rarely spoke of it;
when he did, the truth was often obscured by self-serving lies. As he
wavered between wanting to die and trying to stall his execution,
Davis told several versions of the slaying, sometimes blaming Fincham,
sometimes himself--a routine that infuriated his lawyers and
bewildered his handful of supporters.
Davis "told too many stories to too many people,
and no one really knows what the truth is," Craig Truman, his trial
attorney, told reporters on the day of his sentencing. "I guess I
wonder if he even knows what the truth is."
But Davis knew. He even put it in writing, in
letters from death row, when he figured he had nothing left to lose.
Davis had several pen pals; one, a woman from Ireland, flew to
Colorado for a final visit before his execution and paid for his
cremation. His longest and most enduring correspondence, though, was
with a Denver woman, a prison activist who plied him with questions
about his family and his relationships with women. For more than ten
years, from the time he arrived on death row until a few weeks before
his death, Davis carried on a friendly, occasionally flirtatious and,
at times, surprisingly candid dialogue with her.
The Gary Davis who emerges in these letters--lying,
denying, fantasizing and sporadically confessing--is a different
creature from the wan, soft-spoken ghost who appears in the videotape
his lawyers sent to Governor Roy Romer in his final clemency appeal.
He is smarter and more tortured than his few press interviews would
suggest. He is also, despite his vile crimes, uncomfortably human.
It takes years to make a sexual predator. Davis
started early, and his journey to death row was a particularly grim
and nasty one. That he drew so many others into his private hell--including,
finally, Ginny May, an innocent young mother who had become the object
of his warped fantasies--brought him more grief and self-loathing than
one might expect.
"I'm revealing things that I have kept
closed up all my life," he wrote in one of his first letters
from death row. "Being I'll never come face to face with you I
find it easy to talk. I know some of it may seem like trash,
but I've lived in that trash for years...I've always hated
myself for what I've done."
I want to write you in my own words about
my feelings of needing a woman without her consent. It'll be
like a cleansing for me...For the first time in my life I'm
going to let someone inside my mind. I've tried talking to
doctors but can't really say anything to them. (10/7/87)
At a very young age I thought it was okay
to take pussy if you wanted to. Most girls or women won't turn
you in as long as they don't get hurt. (10/18/87)
A good man will take your thoughts first
and treat you as if you were a baby...I will tell you a few
do's and don'ts to a happier sex life if you like. (10/23/87)
Rapists often consider themselves experts
on the topic of sex. Gary Davis was no exception. He boasted
that he'd lost his virginity at age twelve, in the bed of a
school chum's lusty mother.
The truth was probably much meaner, the
kind of thing you don't want circulating around a prison. In a
1987 letter that he asked to be read and destroyed, as well as
in conversations with psychologists during the appeals process,
Davis claimed that his earliest sexual experiences came at the
hands of two older stepbrothers, who used him like an
Born in 1944 in Wichita, Kansas, Gary Lee
Gehrer was the middle son of three; his mother remarried when
Gary was eight years old. His attorneys and supporters have
made passing references to his absent biological father, his "aloof"
stepfather, his "strict" grandfather, but the alleged sexual
abuse is rarely discussed. Possibly because of his recent
reconciliation with various family members, the subject
received scant mention in his appeals and was scrupulously
avoided in his clemency petition.
Whether the abuse ever took place or was as
severe as Davis described it remains an open question. But
Davis was adamant about it. "I was molested dozens of times as
a child," he wrote, and proceeded to give a graphic account of
how two of his teenaged stepbrothers would return from dates
with girls, make him sniff their crotches and then force him
into oral and anal sex. The alleged abuse continued from the
age of nine to twelve, but he insisted it had little to do
with his later behavior: "I think people use that as a crutch.
Everyone wants to blame what they do on other people or things."
One of his brothers has described the young
Gary as a follower, a kid who "couldn't be aggressive" and "wouldn't
fight nobody." Davis never told his parents about the abuse;
apparently, he never confronted his stepbrothers, either. "I
don't feel any anger towards them," he wrote in 1987. "A
little hurt, but what can I say."
In another letter, Davis detailed his
encounters with "Mary," the insatiable older woman who
supposedly was his first female sexual partner. Mary ravished
him, he wrote, then insisted that he bring girls to her house
and take them by force while she supervised. The account
smacks of sheer fantasy; Davis admitted as much in a later
letter, apologizing for his "sex stories." But it's a
revealing lie, a window into Davis's misogyny--instead of
venting his pain at what his stepbrothers did to him, he
invented an evil, sex-hungry bitch goddess who taught him how
Davis dropped out of school after the ninth
grade. In 1961, at the age of seventeen, he joined the
Marines. After boot camp he married his childhood sweetheart,
Tonya Ann Tatem. The marriage lasted five years and produced
two sons, but it began to fall apart shortly after Davis was
shipped to Okinawa. He became wildly jealous of his wife, whom
he suspected of cheating on him, and began to drink heavily.
His paranoia and alcoholism didn't go
unnoticed in the Marines; the government wanted lean, mean
killing machines, but not with his kinks. Following some loose
talk about bayoneting an officer, he was diagnosed as having "homicidal
tendencies" and an "emotional and unstable personality with
schizoid trends" and given a medical discharge.
Back home, Davis worked as a cook, a meat-cutter
and a factory grunt. He was frequently unemployed as a result
of a series of auto and industrial accidents. His wife left
him, taking the children with her.
He would later claim that the marriage
failed because he found a job traveling around the country as
a male stripper--a dubious assertion at best, although he did
work briefly as part of a nightclub comedy act, playing a go-go
dancer in drag. But if his supposed career as a stripper is
another fantasy (it was "more or less like a dream come true,"
he wrote), it's not far off from the kind of exhibitionism in
which Davis was soon engaging regularly.
"When I got older, early 20s, I found
myself going around showing myself to women wherever I could,"
he wrote. "I'd show myself, and after the woman would see me,
I'd find somewhere to jack off. At this time I had a beautiful
wife at home. I needed this excitement in my life.
"As years went by just showing myself
wasn't enough. I had to touch. I needed some pussy by force.
To hear the girl or woman scream and beg as I did. Every
person I raped I enjoyed."
Booze was a constant part of the equation:
"The more I drank the more I raped. When I wasn't drinking, I
wasn't thinking of pussy. Give me a drink and I had to have it.
Finally a murder took place in Byers...Please don't hate me
It's impossible to know if Davis's claim of
raping fifteen women is accurate or just another grotesque
boast. Doubtless he made more attempts, and probably committed
more assaults, than he was ever charged with. His early
targets tended to be adolescents, underage girls he could
frighten into not reporting him. Prior to 1969, all of his
arrests were alcohol-related--drunk driving, urinating in
public. Even subsequent felony convictions in Kansas for grand
larceny and embezzlement (1969) and burglary (1970) don't
provide much of a picture of what he was becoming.
Yet the darkness was welling up in Davis.
The need to expose himself, to force himself on women--to
touch, to take, to give pain. "I've never thought about
getting into trouble until it's over," he explained. "During
and before it happens all I'd think about was making them do
whatever I wanted...I'd just lay there with a smirk on my face
yelling at them and watching them cry and beg me not to hurt
them. Some of the girls were real young, some were grown women.
I'd treat all of them the same. If they didn't cry or beg it
would take the excitement out of it."
Afterward, he wrote, "sometimes I'd sit
there and cry and want to hold the person and tell 'em how
sorry I was. The next day I'd be right back out looking again."
I have been locked up one time for a rape
charge. That doesn't make me a sex offender. I went to church
once, but that doesn't make me a Christian. (7/27/89)
Everyone told me I'd come off death row.
I've got to quit trusting people...The papers say I have about
five years left, the lawyers say about two. I see the one
paper is still putting rape [of Virginia May] as one of my
charges. As if it's not bad enough already. (3/22/94)
In 1974, at the age of thirty, Davis
married for a second time. His bride was a seventeen-year-old
named Leona Coates. The relationship lasted eight years,
during which Leona gave birth to four children, but it was
doomed from the start. It couldn't offer the excitement Davis
was looking for.
Davis would later claim that Leona was
pregnant when he met her and that the marriage was a rocky one,
"a big mistake." He stayed with her because "she kept shelling
"I really thought I was doing her a favor,"
he wrote in 1987. "Softhearted Gary."
Leona has given different versions of their
marriage. After the murder of Ginny May, she told police
investigators that Davis had abused her in drunken rages,
tried to coerce her into a menage a trois with another woman
and had once pointed a gun at her. Nine years later, in the
course of Davis's federal appeals of his death sentence, she
recanted much of her previous statement, saying that the gun
was plastic and that Davis was a good husband and father who
drank too much on the weekends. (In a 1995 interview with a
California psychologist, Davis admitted to being "physically
and verbally aggressive due to his alcohol consumption" in all
three of his marriages.)
Davis didn't get his threesome; that would
come later, as his quest for variety became increasingly
bizarre and violent. Instead, he spent much of the last three
years of the marriage in trouble with the law. In 1979 he
lured a young female clerk out of a convenience store in Baca
County on the pretext of needing help with the ice machine;
once outside, he held a knife to her neck and dragged her into
an alley. The woman struggled and escaped, sustaining wounds
to her hand and throat.
Clearly, Davis had rape on his mind, but he
wound up copping a plea to felony menacing. He spent less than
a year in prison.
He was out only a matter of months when he
got caught again. This time the victim was a fifteen-year-old
girl, the daughter of one of Leona's friends. Davis claimed
the girl reported him because he'd promised her $300 for sex,
then reneged; prosecutors, though, believed the girl, who said
Davis had pulled a knife on her and raped her.
Incredibly, this time Davis managed to plea-bargain
his way to an eight-year sentence for sexual assault--which
meant that barring bad behavior, he'd be out of prison in less
than four. In hindsight, it's easy to see that he was headed
for worse crimes; both assaults were the unmistakable acts of
a violent predator, a man who chose the most helpless victims
he could find. But in the early 1980s, programs for sex
offenders were still in their infancy. The criminal-justice
system tended to treat men like Davis as poor dumb shlubs who
just needed to keep a sober head on their shoulders.
Corrections officers regarded Davis as a
model prisoner. He kept to himself, earned special privileges,
went through the motions of alcohol treatment--all the while
thinking about that first drink he was going to take the
moment he hit the street. And, like a lot of cons, he began to
collect female pen pals.
One day another inmate gave Davis the
address of Rebecca Fincham, a lonely woman who'd answered the
inmate's personal ad in a newspaper. Davis began to write to
her, too. Fincham wrote back, telling him about her two young
daughters and her unhappy marriage to a man who drank too much.
Davis sympathized and flirted. After two or three letters, she
asked, "Do you miss sex?"
It was not so much a question as an
invitation. Hell, yes, Davis wrote, he missed it. In short
order, Fincham's letters went from coy to teasing to torrid.
To call them "sexually explicit" would be an understatement;
they oozed sex.
Becky Fincham talked a good game, Davis
learned, and had the experience to back it up. As
investigators would later discover, Fincham and her husband
had been involved in wife-swapping on an Army base in West
Germany--the husband claimed it was Becky's idea--and had
returned to the United States with a cache of pornography and
Davis was impressed. Here was a woman who
wasn't shy or prim, a woman whose rich and varied store of
fantasies could keep pace with his own. He had found his match
at last. His mate.
Together they would do terrible things.
This victim in this crime was not touched
by me in no way. That story I told while on the stand was to
get Becky off. It was Becky's crime not mine. (7/27/89)
Davis had to revise his image of Becky
Fincham after she started visiting him in prison. She was
obese and seemed to be missing her eyebrows. She had scars on
her breasts and arms, which she told Davis were the result of
a sexual assault that occurred on an Army base in Georgia
years before. He thought she was repulsive; years later, he
even recalled being "scared of her because she was so
Yet Davis could not have asked for a more
attentive girlfriend. She bought him a television, boots and
expensive silk handkerchiefs; now divorced, she visited every
weekend, bringing her daughters with her, and always provided
him with spending money, ten or twenty bucks a week. Davis
figured she could take care of him during his prison stretch
and maybe afterward, too.
During one visit in 1984, he asked her if
she would marry him. Much to his surprise, she said yes. They
were married over the phone by a minister. Fincham's daughters
began to call him "Daddy."
Not long after the ceremony, another inmate
became interested in Fincham's thirteen-year-old daughter and
asked Davis if he could write to her. Neither he nor Fincham
had any objections. In fact, the ever-helpful Becky sent the
boys a special treat: a photo of herself topless for Davis, a
semi-nude shot of her daughter for his pal. The photos were
intercepted by prison officials. Fincham was charged with
sexual exploitation of a minor, and her visiting privileges
Unable to have any physical contact, the
newlyweds devised a telephone game to keep the fires burning.
As Davis described it, the game involved Fincham trying to act
out fantasies that he requested. Both of them were indifferent,
it seems, to the fact that Davis's collect calls were subject
to monitoring by prison authorities.
"Mr. Davis indicated that he would like to
hear her 'give head,'" a psychologist reported after
interviewing Davis about the relationship. "Ms. Fincham then
brought a male named Jay into the house and did this, while
the telephone receiver was off the hook so that Mr. Davis
could hear. Mr. Davis reports that he had never met a woman
who would say and do these kinds of things, and that he found
this very amazing."
According to Davis, Fincham also described
imaginary scenarios to him over the phone in lurid detail:
picking up and seducing a man who resembled Davis; picking up
a woman at a gay bar; having sex with a friend while the
friend's husband watched; even being raped by "a male who
resembled a prison guard." The fantasies were at the core of
what they had together--more satisfactory, certainly, than the
physical relationship they embarked upon when Davis emerged
from prison in 1985.
His release posed a number of problems for
the couple. Fincham had received three years' probation on the
child-exploitation charge. In order for a rapist like Davis to
parole to her residence, she had to send her daughters out of
state to stay with her parents. And since both she and Davis
were under court supervision, they had to steer clear of his
old habits, such as drinking and pulling knives on underaged
For a few weeks it looked like things might
work out. The couple landed a job managing an Aurora apartment
house, and Davis kept a lid on his boozing. But he couldn't
hide his physical aversion to Fincham, and soon both he and
Fincham were drinking and trolling for new kicks.
"I thought when I married Becky that I
could overlook her being so fat," he later wrote. "She had a
place for me to come out to and I knew I would not be lonely.
But I was wrong, I was lonely, even with her. I took up
drinking again to fill the empty void in my life. Also I drank
to have the stomach to touch that fat broad."
Drunk, Davis had a perfect excuse for
failing in his matrimonial duties: "Yes, I was impotent while
drinking and around Becky towards our last months together. To
be blunt, it was damn hard to even get a hard-on when Becky
would give me a blow job. I just didn't have any feelings for
It was a situation worthy of a Jim Thompson
novel. In prison Davis had met the woman of his dreams, but
now that he was on the outside, he found himself trapped in a
beer-soaked nightmare with a "fat broad" he couldn't stand.
Desperate to live out the fantasies they'd promised each other
for so long, they propositioned other residents of the
apartment complex. Although they were usually turned down, on
occasion Fincham would engage in sex with a female neighbor or
the neighbor's husband while Davis watched.
It wasn't enough. Davis's attention was
drawn to another female tenant, whom he found much more
attractive than his wife or her playmate. He told a buddy that
he wanted to drug the woman and rape her.
Fincham became suspicious of her husband,
demanding a frequent accounting of his activities and
whereabouts. She also started fooling around with his hair,
dyeing it different colors. "I think it made her feel like she
was out with someone different all the time," Davis mused.
After six months the Davises had worn out
their welcome at the apartment house. They were accused of
ripping off tenants, taking money for services and repairs
that were never provided. Their constant lying, drinking and
sex talk were generating other complaints. So Becky answered
an ad for a ranch hand on the eastern plains, faking a resume
that claimed the couple had been married sixteen years and had
extensive farm experience.
In February 1986 they got the job and moved
to Byers. The community was small, the prospects for wife-swapping
quite bleak. As a rule, Davis had to go into town if he wanted
to ogle other women. Fincham often came with him. Sometimes,
Davis would later say, they talked about kidnapping women and
turning them into sex slaves.
In May they went to a discount store in
Fort Morgan and bought a .22 semi-automatic rifle. The
purchase was a violation of Davis's parole, but he didn't
think anyone would notice or care. They didn't.
If anyone asked him what the rifle was for,
Davis had his answer ready. It was for all the snakes around
I think Rebecca could have done a lot more
than just shoot someone. You would have had to of seen her
during the crime. She had so much jealous anger built up that
I didn't even know who she was. (11/10/87)
I would get crazy thoughts in my head and
my friend would give me the courage to live them out. (From "My
Friend," an essay about alcoholism that Davis wrote while on
Gary Davis drank heavily in the weeks
leading up to the murder. Bloated and bleary-eyed, he and
Becky cruised around Fort Morgan, searching for their ideal "playmate."
But as he saw it, the best prospects were located close to
home, on the ranch adjacent to the property where the Davises
lived. He talked often about his slender, attractive neighbors,
Virginia May and her sister-in-law, Sue MacLennan--talk that
made Becky furious.
A ranch hand would later testify that Davis
made coarse remarks about May when they repaired fences close
to her property. One time, while relieving himself, he even
waved his genitals in the direction of her home, saying, "Come
on, Virginia, baby. I'm here. Come to me."
The oldest in a close-knit ranch family,
May was just weeks shy of her 34th birthday. She had a husband,
a young son and daughter and a busy life of her own. She had
no reason to suspect that she'd become a featured player in
the squalid, pornographic movie playing in Davis's head. She
barely knew Gary Davis.
As it turned out, Fincham and Davis
targeted May only after two other attempts failed. On July 18,
1986, a woman named Tammy Beauprez, who lived on a farm south
of Wiggins, was visited by a couple in a car bearing Kansas
plates. While the woman driver asked directions to Byers, the
man got out and tried to move behind Beauprez. When Beauprez's
husband appeared, the man got back in the car and the couple
took off. Beauprez later identified the odd visitors as Becky
and Gary Davis.
Three days later--July 21, the last day of
Davis's parole--Sue MacLennan received a phone call from Becky,
who wanted to know if her husband was home. When MacLennan
said he wasn't, Becky offered to drop off some used clothes
for MacLennan's children. There were no clothes, but shortly
after the call the Davises showed up at MacLennan's house with
the .22 rifle in their car. Seeing a male ranch hand outside
the house, Becky stayed only long enough for a quick iced tea.
Her husband never got out of the car.
Early that evening the Davises showed up at
Virginia May's door. May was expecting them; Becky had called
her, too, offering children's clothes. She came out of the
house with her four-year-old, Krista. Becky lured her to a
tool shed with a request to borrow some wire stretchers. When
they emerged, Gary Davis punched May in the face and dragged
her into the car, while Becky shooed Krista into the house.
What happened next has been recounted many
times, but never with absolute certainty. Davis and Fincham
have made so many conflicting statements about their crime
that none can be accepted as gospel. In one version, Davis
hauls May out of the car, takes her out of sight and goes
berserk while a helpless, terrified Fincham sits in the car,
oblivious even to the shooting because she keeps the windows
rolled up. In another, Davis is painted as a confused, passive
accomplice while Fincham, in a jealous rage, barks orders and
commits most of the violence.
The most credible version, based on
statements Davis made to his own attorneys and physical
evidence presented in court, is a duet of atrocity. May was
stripped and dragged out of the car with a rope around her
neck. Davis attempted, but may have failed, to have sex with
her. (Despite his testimony in court that he assaulted May
repeatedly, for years afterward he insisted he did not "rape"
her--which could be true, but not, it seems, for lack of
trying.) May was then forced to engage in oral sex with
Throughout it all May fought and pleaded
for her life. She offered the couple a thousand dollars to let
her go. But both Davis and Fincham must have known where this
was headed long before they pulled up at May's house. Davis
struck her in the head with the rifle butt, fracturing her
skull. She still had the strength to raise her hands in a
final effort to defend herself as she was shot fourteen times
with hollow-point bullets.
Defense lawyers have speculated that Davis
and Fincham took turns firing the rifle, partners to the end.
A psychologist retained by Davis's appeals team suggested that
the multiple gunshot wounds--nine to the head, four to the
torso, one to the groin--may have been the work of an enraged
woman seeking not only to kill but to disfigure her rival. But
Davis has said that he, and he alone, did the shooting. He
admitted it in his first, fragmentary "confession" to police
and in his final televised apology to May's family, aired a
few weeks ago.
Yet Fincham was hardly an innocent
bystander. It seems unlikely either one could have been
capable of such depravity alone; together they fueled each
other's fantasies, goaded each other into the abyss.
Investigators suspected that much of the sexual paraphernalia
found at their residence after the crime--not just garden-variety
smut but glossy magazines celebrating torture and pain, as
well as a collection of dildos and butt plugs--belonged to
Fincham, who was not above writing long, raunchy letters to
her own daughter detailing her efforts to keep "Daddy"
interested in her. Davis would later claim that she even
offered him her fifteen-year-old offspring as a possible
sexual partner, but he declined.
The two were instant suspects in the
disappearance of Ginny May; when May's husband came home and
found the children alone, they told him their mother was gone
because "Becky took her." As night fell, the police and
frantic family members attempted to question the Davises about
May's whereabouts. Although Davis supposedly had consumed a
case of beer that day (and would eventually blame convenient
alcoholic blackouts for his failure to recall details of the
crime), a sheriff's deputy thought he seemed quite sober. As
she always did, Becky did most of the talking for both of them.
"We want to do everything we can to help
you find your daughter," she told Rod MacLennan, Ginny May's
father. "I know how you feel. I was once raped myself."
Later, at the Strasburg sheriff's
substation, Davis insisted on being allowed to talk to Fincham
before he would make any statements about May. The two were
allowed a brief conversation in a small library at the station.
"The ball game's over, babe," Davis said.
"Don't tell 'em shit," Fincham replied. "We'll get a lawyer."
I hope Bob Grant don't tell everyone he won
my case. I won it for him. (1/20/88)
I have already contacted a lawyer about
putting a stop to my appeals. It has NOTHING to do with being
chicken. I don't think a chicken could do it. Sitting in this
little square hole for a decade isn't my bag of tea. I was
raised in the outdoors and this is really getting to me. Even
if I had a life term, big deal...I don't want a natural life
in here...This is not a death wish it's what I feel best for
Trying to get executed a few years ago put
me about three years ahead of Frank [Rodriguez]. You know one
good thing about being executed first is, the needle would be
On July 21, 1987, a year to the day after
the murder of Ginny May, Davis found out he was headed for
death row. It took the jury only three hours to find him
guilty of kidnapping and murder. It took another three hours
to sentence him to death.
The verdict was no surprise. Two days
earlier, Davis had sabotaged his own defense counsel by taking
the stand and insisting on taking all the blame for the crime.
Attorney Craig Truman had tried to save him from the death
penalty by arguing that Rebecca Fincham, who'd already been
convicted of murder and was facing a life sentence, was just
as culpable as Davis, so Davis should receive life, too.
Davis, though, was the prosecution's best
witness. He'd received a ten-page letter from Becky, who'd
divorced him, urging him to "do the right thing." He decided
that meant meekly answering "Yes, sir" every time Adams County
prosecutor Bob Grant asked him if he'd kidnapped, raped and
murdered May. Truman's frustration with his client was evident
in his closing remarks.
"There are times in this case when I hate
Gary Davis," he said. "Gary Davis has lied to me...In a lot of
respects he has set me up for failure."
Davis had told Truman several different
tales about his role in the slaying. In a letter to a
psychiatrist seeking an evaluation of Davis, written a few
weeks before the trial, Truman stated that he believed his
client "fits the old sexual psychopath standard in that he is
very twisted sexually... There is no question as to 'who done
it.' Mr. Davis is tied up in this thing far beyond that which
he is occasionally willing to admit. He has admitted the
killing and most of the sexual acts to me."
In a packed courtroom, he admitted it again,
sealing his fate. In fact, Davis was in a tremendous hurry to
end his life. Shortly after his trial, he wrote a letter to
Governor Romer, urging an immediate decision on clemency in
his case rather than waiting for the automatic appeals process
to run its course. "If you decide death," he asked, "can't we
please get it done?"
His impatience probably had less to do with
any pangs of remorse than with an old con's weariness at being
locked up with himself. His early letters from death row exude
a steady stream of self-pity and disgust, but despite his
testimony, he was still quick to deny murdering Ginny May.
Death was simpler than coming to terms with the devastation
Later, Davis would come to see his yearning
for death as another kind of copout. For the first few years
he was on death row, he wrote, he was "dry" but not yet sober--and
heavily medicated at one point with Xanax, an anti-anxiety
"He told me he wasn't drinking like an
alcoholic, but he was still thinking like one," says Vicki
Mandell-King, the federal public defender who worked closely
with Davis on his last three years of appeals. "Then he began
to wake up."
The turning point came in 1990, after the
Colorado Supreme Court affirmed his sentence. That summer
Davis dismissed his lawyer and directed his new one, Dennis
Hartley, not to file any more appeals. Hartley argued
vigorously with him, pointing out that there were several
avenues still worth exploring, such as the issue of
ineffective counsel at trial. Truman had presented only two
witnesses during the penalty phase. Hartley believed that the
jury should have heard more about various "mitigating factors"--including
Davis's alcoholism, the possible mental effects of a bad car
accident in the 1960s, his "passive-aggressive personality"
and Fincham's supposedly "dominant" role in the homicide--before
imposing the death penalty. (Truman assisted in this appeal,
but the federal courts ruled that the veteran defense attorney
had done the best that he could, given his client's refusal to
cooperate with him.)
Davis relented and gave Hartley the green
light, but only after a call from one of his daughters, who
reportedly told him that he wouldn't see his grandchild unless
he kept the appeals going. In the course of researching the
appeals, Hartley was able to bring Davis back into contact
with several estranged family members, including his first two
wives and their children, and that gave him further impetus to
Of course, Ginny May didn't have the luxury
of choosing to live, even for a few more moments; but the
decision was surprisingly difficult for Davis. Death can seem
a blessing, he noted in his clemency interview, compared to
life in the solitary confines of a maximum-security prison: "To
me, that's a worse sentence than the death penalty."
In 1993 Davis was moved into the state's
new supermax, the Colorado State Penitentiary. Designed to
hold unruly inmates in total lockdown 23 hours a day, CSP has
also become the home of all five of the state's murderers
slated for execution. Caged in an eighty-square-foot cell,
with few privileges and no opportunity to breathe fresh air,
Davis wasn't exactly living it up.
"Been over here one year today," he wrote
in the fall of 1994. "Seems like ten. I've got a lot of years
to go in this hole...Some days I wish I could lay down and die.
I think that's what the prison wants us to do. They loved it
in 1990 when I tried to get executed. You should have seen how
nice they treated me back then. To hell with them."
After his federal appeals failed, he
probably could have delayed his fate by making another run at
the state courts, but the prospect of stretching out his stay
in CSP was unthinkable. "I want out of this place either by
walking or in a box," he declared in 1995. "Lately I've
started to pace like the animals in a zoo. People are sent to
this building for short-term punishment, not long-term housing.
They break your spirit here so they can control you."
He added, as if an afterthought, "Hell,
I've been broken long before I came here."
I received over a dozen letters today from
Colorado Christians saying how much they want me dead.
By all accounts, Davis's last years were
suffused with bitter ironies. He finally emerged from his
alcoholic fog, only to be plagued by heart troubles and other
health problems. (Prison officials, he joked, worked hard to
save him so they could kill him.) After he lost forty pounds
and his vision blurred, he was diagnosed as diabetic.
He reunited with members of his family,
just in time to lose some of them for good. He received news
of the death of his father and his favorite brother, as well
as a phone call from a son who was in a Texas prison for child
abuse. A few months ago came the worst blow of all, the death
of a 24-year-old daughter from a brain tumor. "I have never
had pain before like that when they said my daughter is dying,"
he wrote last spring; in his clemency appeal to Romer, he said
the loss had finally brought home to him what he'd done to
Ginny May's family.
He made a public apology for his crimes,
admitting full responsibility for the murder--but that was
rebuffed as too little, too late. Although Jim Sunderland, the
Jesuit priest and anti-death-penalty advocate who'd counseled
Davis for years, insisted that he'd undergone a "very genuine
and thorough" spiritual conversion, those who wanted him dead
couldn't help but dismiss his claims of having discovered his
conscience as a cynical bid for sympathy.
Yet those who saw most of Davis in his
final months tended to be impressed by him. He had changed,
they say. No longer whining or filling the air with lies, he
talked earnestly about life and death. He expressed more
concern about how his lawyers were handling their constant
defeats than about his own fate; he took solace in the fact
that, as the execution date approached, the prison staff was
treating him with dignity and respect--"like a human being,"
he said. He seemed focused on dying a good death.
"Gary, it sounds like these last few years
have been a prayer for forgiveness," attorney Vicki Mandell-King
"No," Davis told her, "they've been the
answer to my prayers."
He was no longer an eager volunteer for the death penalty;
always a follower, he was more like a resigned conscript than
anything else. He did agree to make one last videotaped bid
for clemency, on the theory that he still might be able to "help
people" if he were allowed to live, but it was an oddly low-key
Shackled and meek, he spoke blandly of the
mess he'd made of things--"It's hurt a whole bunch of people,
this crime. A whole bunch. On both sides"--and choked up a bit
at mention of the recent death of his daughter. When asked
what he would do if the governor spared his life, he spoke
vaguely about being a cook and spending time with his family,
as if the question were too hypothetical to take seriously.
He wasn't his own best advocate. But then,
it was important to him that he not be seen as a coward, the
kind of man who'd be caught on videotape begging for life--or
death. When he found out that Romer had turned him down, he
couldn't even be outraged. "I kind of agree with him," he told
Mandell-King. "How I've changed does not make up for what I've
Nothing could. He'd taken too much from too
many people. By his own lights, he poured the poison in his
own veins the moment he set out with Becky Fincham to make
their wretched fantasy come true, and nothing he'd done since
could take that moment back. His final victim was himself.
The day after he learned that Romer had
denied him clemency, Davis found time to write a final letter
to his friend:
Well, the bomb has blown up on my life.
Can't really believe it's going to happen. If I forget later
down the road, I want to thank you for your support...I need
to close this and get started on a stack of mail six inches
deep. I can't say goodbye, so I'll say see you later.
The Last Writes
By Patricia Calhoun - WestWord.com
September 25, 1997
Gary Davis was ready to die in 1990.
Mark Thomas had just come to town as the
director of the Colorado Press Association when he got a call
from the Colorado Department of Corrections. Davis, convicted
in 1987 of the brutal rape and murder of Virginia May, was
suspending any further appeal of his death sentence. And so
the state was gearing up for its first execution since 1967,
when Luis Monge was strapped into the gas chamber. And it was
gearing up fast.
This was December 1990, and the execution
was set for the week of January 5, 1991. The DOC had set aside
five seats for witnesses from the media, who would serve as
pool reporters for the rest of the state's broadcast and print
outlets. The Colorado Broadcasters Association would choose
one representative each from radio and television. It fell to
Thomas, as CPA director, to pick three newspaper
representatives--anyone would do, he was told, besides "that
reporter at the News." DOC director Frank Gunter didn't like
what he'd been writing.
"That bothered me," Thomas now remembers,
although he doesn't recall the unwanted reporter's name. "I
was offended that they would rule somebody out."
So he got on the phone with Jay Ambrose,
then the editor of the Rocky Mountain News, and asked Ambrose
how he felt about the News being excluded from the execution
witness list. "He said it was no big deal," Thomas recalls. "Essentially,
it was a 'throw the Post a bone' sort of attitude."
This was December 1990, after all, and a
lot of people didn't think the Post was going to be around
much longer. The News had the bigger circulation and the
stronger reputation, and the Post, which Dean Singleton had
purchased three years earlier, was limping along. The bone was
thrown to Post columnist Kevin Simpson, who immediately
started using his column to gnaw over the weighty matter of
watching a man die.
Fast forward to spring 1997. Not only is
the Post still around, but its circulation has surpassed--far
surpassed--that of the News, which has pulled back its
distribution to focus on the Front Range. Gary Davis is still
around, too--but not for long.
Soon after he suspended the appeals process,
Davis changed his mind. The execution was off, and Davis was
back on the long legal road of challenges. But that road
reached a dead end this spring, when the U.S. Supreme Court
refused to hear his appeal. Once again, the DOC started
singing the executioner's song. Who could guess it would
inspire a game of musical chairs?
In May the DOC sent a letter to the media,
advising that there might be an execution in the fall of 1997,
"the first capital punishment carried out in thirty years. It
is expected that this occurrence will attract tremendous news
coverage." The advisory included the list of media witnesses
chosen back in 1990: the Post, KUSA-TV, KOA, the Associated
Press and the Canon City Daily Record, the hometown paper for
the state prison.
The list was the same, but the media
organizations themselves are not. Ambrose is gone from the
News, replaced by editor Bob Burdick. The Post has a different
editor, Dennis Britton, and a different publisher, Ryan
McKibben. But Kevin Simpson is still in residence, and he was
soon back chewing on that bone again.
The broadcast outlets have changed, too,
enough so that rumblings about the seven-year-old selection
process soon reached Colorado Broadcasters Association
director Doug Wayland--that's right, he wasn't there seven
years ago, either--who consulted the bylaws and called a
meeting. The sixteen-member CBA board agreed that the initial
picks should be tossed and conducted a new lottery with
interested outlets that met the qualifications. Radio stations,
for example, had to have a significant news operation--which
pretty much narrowed the field to a Jacor property. In the
drawing, KOA retained its seat--but KUSA's Paula Woodward lost
hers, replaced by Channel 2 and Ernest Gurule (whose brother,
oddly enough, was an inmate in Canon City during the last
execution). "Channel 9 was incredibly dignified about it all,"
Wayland says. (The fact that Channel 2 was picked, rather than
hot competitors Channel 4 or Channel 7, probably helped soothe
the hurt.) "It was extraordinary the way they conducted
Over at the Colorado Press Association, the
scene was getting rather extraordinary, too. After receiving a
call from the News, CPA director Ed Otte--yep, he's new to the
job since 1990--started trying to untangle ancient history. "It
was a surprise to find out the CPA had any involvement," he
says. Not that it was easy to track down exactly what that
involvement entailed, or why the News had been excluded. By
the end of July, the CPA board realized "nobody had anything
on file," Otte says; Thomas, now the director of the Oklahoma
Press Association, filled in some blanks. That was enough to
prompt boardmembers to write a two-page letter to Ari Zavaras,
the current director of the DOC. The board met twice with
Zavaras, looking for solutions. The easiest, of course, would
simply have been to find the News an extra seat--but that was
out of the question: State statutes limit witnesses to fifteen,
and certain slots are reserved for officials and relatives of
the victim. "When it became apparent we just couldn't resolve
this thing, Zavaras asked the CPA to poll member dailies,"
Otte said. Most of them were for opening up the selection
Guess which paper wasn't? In fact, the Post
was so peeved at the thought of losing its seat that it
threatened to pull out of the organization. "The CPA was
caught in the middle of two big papers," Otte says, as
diplomatically as he can. "The board tried to correct what
needed to be corrected."
So on September 10, the CPA threw
everything back at Zavaras. Two days later he announced that
the AP and the Daily Record would keep their seats and that he
would hold a drawing between the Post, the News and the
Colorado Springs Gazette, the state's only other daily with a
circulation over 100,000, on September 16.
Late on the afternoon of September 15, the
Post took its case to court. In its request for an injunction
to stop the drawing, it called Zavaras's decision "arbitrary
and capricious, and in violation of the Denver Post's
constitutional and property rights to continue to be the large
market newspaper witness." The Post's lawyers included Don
Bain, former candidate for Denver mayor, and Manuel Martinez,
who, as Denver's manager of safety seven years ago, supervised
Zavaras when he was the city's chief of police.
Augmented by editors from the News and
Post, the group met again in Denver District Court last
Thursday to argue whether a newspaper's opportunity to watch a
man die constituted a valid "property right."
Judge Frederick Alvarez concluded that it
did and upheld the Post's position. "The Denver Post has been
advising its readers that its reporter, Kevin Simpson, will
witness the execution of Gary Lee Davis," Alvarez ruled. "The
Denver Post argues that it will lose credibility if [Zavaras]
will vacate its selection and thus convert the Denver Post's
representation into an inaccuracy. The court concurs." As for
Thomas's claims of impropriety concerning the DOC's insistence
that the News be excluded, the judge was "dubious."
"The DOC got me to do their dirty work,"
responds Thomas, who stands by his story. "I feel terrible
about how it's turned out. It's torn apart the membership."
Like Channel 9, the News now says it will
surrender and accept the current lineup.
And so when, sometime in the next three
weeks, Gary Davis is led into the death chamber and given a
lethal injection, Kevin Simpson will be in one of the seats,
"In retrospect," Simpson wrote back in
1991, "it seems a morbid and macabre lottery, a solemn blind
draw that selected me to witness a murder."
Usually the vultures wait until a body is
dead before they tear it apart.
100 F.3d 750
Executive Director of Department of Corrections, as Head of
the Department of Corrections, Ari Zavaras, Respondent-Appellee.
Federal Circuits, 10th
December 23, 1996
Appeal from the United States District
Court for the District of Colorado, (D.C. NO. 94-Z-1931) Vicki
Mandell-King, Assistant Federal Public Defender, Denver, CO;
and Dennis W. Hartley, Colorado Springs, CO (Michael G. Katz,
Federal Public Defender, Denver, CO, with them on the briefs),
Robert M. Petrusak, Senior Assistant
Attorney General, Denver, CO; and Steven Bernard, Adams County
Attorney's Office, Brighton, CO (Gale A. Norton Attorney
General, with them on the brief) for Respondent-Appellee.
Before ANDERSON, BALDOCK, and HENRY,
STEPHEN H. ANDERSON, Circuit Judge.
Gary Lee Davis appeals from the district
court's denial of his first petition for a writ of habeas
corpus, in which he seeks to overturn his sentence of death.
We granted Mr. Davis's request for a certificate of probable
cause and a stay pending appeal.
We hold as follows: (1) Mr. Davis was not abandoned by his
attorney in the closing argument of the penalty phase of his
trial; (2) Mr. Davis suffered no prejudice from his attorney's
failure to pursue and present certain additional mitigating
evidence in the penalty phase; (3) the statutory aggravators
presented to the jury were either valid or, if invalid or
otherwise erroneously submitted to the jury, were harmless;
(4) the penalty phase jury instructions neither misled nor
confused the jury concerning its evaluation of mitigating
evidence; and (5) no error occurred in the removal for cause
of three prospective jurors. We therefore affirm the denial of
Mr. Davis's habeas petition.
In July 1986, in Byers, Colorado, Gary
Davis and his then-wife, Rebecca Fincham Davis, kidnaped,
sexually assaulted and murdered Virginia May. Mr. Davis has
never challenged his conviction for that crime, nor does he
dispute his involvement in it. The tragic facts concerning
this crime have been fully set out in the state court opinions
affirming Mr. Davis's conviction and sentence on direct appeal
and in state post-conviction proceedings. People v. Davis, 849
P.2d 857 (Colo. Ct. App. 1992) (Davis II), aff'd, 871 P.2d 769
(Colo. 1994) (Davis III); People v. Davis, 794 P.2d 159 (Colo.
1990) (Davis I), cert. denied,
498 U.S. 1018 (1991). We refer to facts
concerning the crime only as necessary in our discussion of
Mr. Davis and Ms. Fincham were tried
separately. The state sought the death penalty against Mr.
Davis but not Ms. Fincham. When Mr. Davis's appointed state
public defender had to withdraw because of a conflict of
interest, Craig Truman was appointed Mr. Davis's counsel.
Against Mr. Truman's advice, Mr. Davis testified before the
jury during the guilt/innocence phase of the trial, stating
that he had kidnaped, assaulted and murdered Ms. May, and
emphasizing his own culpability over that of Ms. Fincham. The
jury found Mr. Davis guilty of murder in the first degree
after deliberation; felony murder; conspiracy to commit murder
in the first degree; second degree kidnaping; and conspiracy
to commit second degree kidnaping. He was sentenced to life
imprisonment on the conspiracy and second degree kidnaping
The penalty phase for the murder
convictions began the day after the guilt/innocence phase
concluded. The jury was presented with six aggravating factors
and eight mitigating factors. It found all six aggravating
circumstances proven and made no findings on the existence of
any mitigating factors. The jury concluded beyond a reasonable
doubt that death was the proper punishment.
In his direct appeal, Mr. Davis challenged
his sentence on numerous grounds. The Colorado Supreme Court
affirmed the sentence, with three justices dissenting. Davis
I. Mr. Davis then filed a motion for post-conviction relief,
arguing that Mr. Truman provided ineffective assistance of
counsel during the penalty phase of the trial. Mr. Davis
sought additional time to investigate this claim of
ineffectiveness. The court conducted a hearing, after which it
denied his ineffectiveness claim. The Colorado Court of
Criminal Appeals affirmed, with one judge dissenting, Davis II,
and the Colorado Supreme Court affirmed. Davis
After exhausting state remedies, Mr. Davis
brought this federal habeas petition arguing: (1) Mr. Truman
rendered ineffective assistance of counsel during the penalty
phase because he (a) abandoned Mr. Davis in his closing
argument; and (b) failed to conduct adequate investigation
into, and failed to present, mitigating evidence in Mr.
Davis's background; (2) the jury was permitted to consider
unconstitutional statutory aggravators; (3) various errors
occurred in the penalty phase instructions; and (4) the trial
court erroneously excluded three prospective jurors because of
their stated qualms about the death penalty. The district
court denied his habeas petition. Davis v. Executive Dir., 891
F. Supp. 1459 (D. Colo. 1995). Mr. Davis appeals.
We review de novo the district court's
legal conclusions in dismissing a petition for a writ of
habeas corpus. Harvey v. Shillinger, 76 F.3d 1528, 1532 (10th
Cir. 1996), cert. denied, ___ U.S. ___, 117 S.Ct. 253, 136
L.Ed.2d 179 (1996). We review the district court's factual
findings for clear error. Edens v. Hannigan, 87 F.3d 1109,
1113-14 (10th Cir. 1996). State court factual findings are
presumptively correct and are therefore entitled to deference.
Medina v. Barnes, 71 F.3d 363, 369 (10th Cir. 1995); 28 U.S.C.
I. Effective Assistance of Counsel.
Mr. Davis first argues that his attorney,
Mr. Truman, effectively abandoned him during closing arguments
in the penalty phase of his trial, thereby leaving him without
counsel at all. The obligation to provide effective assistance
of counsel extends to a capital sentencing hearing. Brecheen
v. Reynolds, 41 F.3d 1343, 1365 (10th Cir. 1994), cert. denied,
_____ U.S. _____, 115 S. Ct. 2564, 132 L.Ed.2d 817 (1995). "A
defense attorney who abandons his duty of loyalty to his
client and effectively joins the state in an effort to attain
a conviction or death sentence suffers from an obvious
conflict of interest," and thereby fails to provide effective
assistance. Osborn v. Shillinger, 861 F.2d 612, 629 (10th Cir.
Usually, when a defendant claims
ineffective assistance of counsel because his attorney's
performance was inadequate, he must show both constitutionally
deficient performance and that he was prejudiced by his
attorney's errors. Brecheen, 41 F.3d at 1365. In the event of
an actual conflict of interest occasioned by abandonment,
prejudice is presumed. Osborn, 861 F.2d at 626; see also
United States v. Williamson, 53 F.3d 1500, 1510-11 (10th
Cir.), cert. denied, _____ U.S. _____, 116 S. Ct. 218, 133
L.Ed.2d 149 (1995); Brecheen, 41 F.3d at 1364 n.17.
Mr. Truman began his closing argument in
the penalty phase with the following:
Now it's my turn to come and ask you for
Gary Davis's life. That's what I'm here to do. For 14 long
years I have practiced law in these criminal courts and up and
down these mean halls. You think you have seen just about
everything. You think you have seen everything once. I have
never seen a case like this. I never have, and I hopefully
R. Vol. V, Vol. 33 at 51. He went on to
There are times in this case that I hate
Gary Davis, I am going to tell you that, and I think you know
it. There are times I hate the things that he has done, and I
have told him, and I tell you, there's no excuse for it.
There's no excuse for it whatsoever.
In the times that we have seen these cases
come and go, they get worse and worse instead of better, and
I'm not kidding anybody, this is one of the worst ones I have
ever seen or heard of. I can't recall a case where I have
never made a closing argument, and I can't recall a case where
we have spoken as little to you as we have this one, and
there's a reason for it. That reason is that in December, when
I first saw Gary Davis, I knew that sometime or other I was
going to be standing here asking for 12 people's mercy. That's
all he has got. That's all we can seek. . . . I, too, think
killing is wrong, and it's killing, whether it's the state,
and it's killing, whether it's Gary Davis. . . . It says, "Thou
shalt not kill," and if I or you . . . or anybody who was
there, and if Ginny May would have lived -- she didn't, she
died -- and if I thought -- if I thought that Brandon and
Krista May would have five seconds of peace by Gary Davis's
death, I would choke the life out of him right now, and he
knows it, but it won't help. . . .
Some of the times I hate Gary Davis is
because of what he has done to me. I have been on this case
since December, when the public defender got off. The public
defender got off because of Gary Davis's lies, and Gary Davis
has lied to me. Gary Davis set up the public defender for
failure. In a lot of respects he set me up for failure. I
guess I'm too prideful, worried about my reputation. Maybe
that's why I hated him the other day.
Id. at 51-53. Mr. Truman then discussed at
some length the relationship between Mr. Davis and Ms. Fincham,
reiterating the theme of the guilt/innocence phase of the
trial, that Ms. Fincham was the more culpable of the two. Mr.
Truman told the jury:
As bad as Gary Davis is -- and you won't
hear me say otherwise -- there's someone equally as bad, maybe
worse. That someone continues to lie. . . . Anything to save
Becky Davis [Fincham]. That demonstration alone, of watching
him testify, I submit to you shows who's wearing the pants in
this family. I'm not saying that forgives Gary Davis. Nothing
forgives Gary Davis. He deserves to get what she got. Sauce
for the goose is sauce for the gander. They're in the same
position, I submit to you, and I submit to you that both ought
either to look at the gas chamber, or both ought to spend the
rest of their lives in the penitentiary.
Id. at 55. He concluded with the following:
I have never had a case like this before,
and I have never been able not to talk to juries, as I almost
wasn't able to talk to you at the start. I guess I'm a
prideful man. I have been doing this a long time and I think
I'm good at it, and I haven't said anything during this trial
and I have watched you, some of you looking at me, wondering,
when are you going to get started? When are you going to start
representing your client? When are you going to get up? I have
seen that in your eyes. I know what you mean. You can't change
what's happened and I am not going to twist or fudge anything
for you. Now's the time for me to be heard. Now's the time I'm
talking to you, and each one of you has it in your hand to
spare Gary Davis or to kill him, for if one of you says no,
stop the killing, there's been too much, that's the way it
will be. And if all of you believe that the only thing for
Gary Davis is to put him in the gas chamber, drop those
pellets into the cyanide bath, watch him choke to death,
that's what will happen.
Is there a man so bad that he's
irredeemable? That's the question here. There's no question
about what happened. It's a question about what's going to
happen. I have never begged a jury before for anything, but
I'm begging you now, and I am asking you please not to kill
Id. at 56.
Mr. Davis relies heavily on our decision in
Osborn, calling this case "virtually indistinguishable" from
Osborn, in which we held that the defendant's attorney at the
sentencing hearing "so abandoned" his duty to advocate on
behalf of his client "that the state proceedings were almost
totally non-adversarial." Osborn, 861 F.2d at 628. Among the
statements and actions upon which we based that conclusion
were the following: "Osborn's counsel made statements to the
press indicating that Osborn had no evidence to support his
claims" and "although counsel knew or should have known that
the prosecutor's office had conveyed ex parte information to
the sentencing court, counsel never sought to discover its
contents or counteract its effect." Id. Moreover, the district
court described the attorney's arguments at the sentencing
phase as follows:
Counsel's arguments at the sentencing
hearing stressed the brutality of the crimes and the
difficulty his client had presented to him. At the beginning
of the hearing, counsel referred to the difficulty of
presenting mitigating circumstances when evidence against a
client is overwhelming. In closing, counsel referred to the
problems Osborn's behavior had created for counsel throughout
the representation. Counsel described the crimes as horrendous.
He analogized his client and the co-defendants to "sharks
feeding in the ocean in a frenzy; something that's just animal
in all aspects."
Id. (quoting Osborn v. Shillinger, 639 F.
Supp. 610, 617 (D. Wyo. 1986), aff'd, 861 F.2d 612 (10th Cir.
1988)). We concluded that Osborn's attorney did more than "make
poor strategic choices;" rather, "he acted with reckless
disregard for his client's best interests and, at times,
apparently with the intention to weaken his client's case." Id.
In our view, Mr. Truman's closing argument
did not constitute abandonment of Mr. Davis, such that the
adversarial process was undermined.
As the district court observed, Mr. Truman was placed in a
very difficult position because of Mr. Davis's own decision,
against Mr. Truman's advice, to testify at the end of the
guilt/innocence phase of the trial and take full
responsibility for the crime, contrary to the strategy,
pursued up to that point, of portraying Mr. Davis as less
culpable than Ms. Fincham. That testimony made it even more
difficult to explain why Mr. Davis did not deserve the death
penalty, while maintaining credibility with the jury.
Moreover, while Mr. Truman expressed in
general terms how horrible the case was -- "one of the worst
ones I have ever seen" -- and expressed his hatred of Mr.
Davis and his crimes, that is significantly different from "stress[ing]
the brutality of the crimes . . . . describ[ing] the crimes as
horrendous . . . [and] analogiz[ing] his client and the co-defendants
to `sharks feeding in the ocean in a frenzy; something that's
just animal in all aspects.'" Osborn, 861 F.2d at 628 (quoting
Osborn, 639 F. Supp. at 617)). Mr. Davis has never disputed
that he participated in a crime which was undeniably horrific.
Mr. Truman's statements about Mr. Davis's
lies, to him and to others, while blunt and unflattering to Mr.
Davis, were in part a response to Mr. Davis's decision to
testify. His testimony itself, which completely undermined the
strategy pursued by Mr. Truman, with Mr. Davis's apparent
approval, revealed the obvious: that Mr. Davis had been at
least deceptive towards Mr. Truman. Mr. Truman's remarks were
at least an attempt to cast doubt on the veracity of Mr. Davis,
who had just testified in a manner virtually guaranteed to
condemn him to a sentence of death.
Furthermore, a substantial portion of the
closing argument was devoted to stressing the deceptiveness of
Ms. Fincham and her control over Mr. Davis, and suggesting
that Mr. Davis's testimony accepting full responsibility for
the crime was yet another example of that control. Mr. Truman
emphasized that Mr. Davis should receive the same sentence as
Ms. Fincham, who had been sentenced to life imprisonment. This
was a reiteration of the "equal justice" defense pursued
throughout the trial, but substantially undermined by Mr.
Davis's testimony. That had always been the most viable
strategy for Mr. Davis to avoid the death penalty, and Mr.
Truman effectively pursued it again in closing argument.
Finally, Mr. Truman closed his argument
with a plea for Mr. Davis's life: "I have never begged a jury
before for anything, but I'm begging you now, and I am asking
you please not to kill Gary Davis." R. Vol. V, Vol. 33 at 56.
That was a powerful plea, coming from a man who had just
expressed his own dislike of Mr. Davis and his crime.
In sum, this case is distinguishable from
Osborn, both because the actual closing argument in this case
was qualitatively different and because the circumstances of
this case left Mr. Truman with little room to maneuver. We
therefore hold that Mr. Davis was not abandoned by Mr. Truman
in his closing argument.
B. Presentation of Mitigating Evidence:
Mr. Davis also argues that Mr. Truman was
ineffective in failing to adequately investigate potential
evidence in mitigation and in failing to present certain
mitigating evidence which was available. To establish
ineffective assistance of counsel, a defendant "must first
show that counsel `committed serious errors in light of "prevailing
professional norms"' in that the representation fell below an
objective standard of reasonableness." Brecheen, 41 F.3d at
1365. See Strickland v. Washington, 466 U.S. 668, 688 (1984).
There is a "strong presumption" that counsel has acted
reasonably and represented his client effectively. Id. at 689.
We review an attorney's performance with substantial deference.
Id.; see also Brecheen, 41 F.3d at 1365; Stafford v. Saffle,
34 F.3d 1557, 1562 (10th Cir. 1994), cert. denied, 115 S. Ct.
Once a defendant has shown constitutionally
deficient performance, he must demonstrate prejudice from that
performance. The defendant bears the burden of proving both
deficient performance and prejudice. Brecheen, 41 F.3d at
1365. We review an ineffectiveness claim de novo, as it
presents a mixed question of law and fact. Brewer v. Reynolds,
51 F.3d 1519, 1523 (10th Cir. 1995), cert. denied, _____ U.S.
_____, 116 S. Ct. 936, 133 L.Ed.2d 862 (1996).
We review the district court's factual
findings for clear error. Id. In some cases, we proceed
directly to the issue of prejudice: "[t]he Supreme Court has
observed that often it may be easier to dispose of an
ineffectiveness claim for lack of prejudice than to determine
whether the alleged errors were legally deficient." United
States v. Haddock, 12 F.3d 950, 955 (10th Cir. 1993); see also
Strickland, 466 U.S. at 697; Brewer, 51 F.3d at 1523; United
States v. Smith, 10 F.3d 724, 728 (10th Cir. 1993). This is
such a case. We accordingly express no opinion on whether Mr.
Truman's performance was deficient.
To establish prejudice under Strickland, Mr.
Davis must show there exists "a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the
outcome." Strickland, 466 U.S. at 694; Brewer, 51 F.3d at
As applied to the penalty phase of a
capital case, a petitioner alleging prejudice from counsel's
ineffectiveness must show "a reasonable probability that,
absent the errors, the sentencer -- including an appellate
court, to the extent it independently reweighs the evidence --
would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death." Strickland,
466 U.S. at 695. We must "keep in mind the strength of the
government's case and the aggravating factors the jury found
as well as the mitigating factors that might have been
presented." Stafford, 34 F.3d at 1564; see also Brewer, 51
F.3d at 1523.
Mr. Davis's specific allegations of error
are that Mr. Truman: (1) failed to contact to solicit
information and possible testimony from family members,
including Tonya Tatem, Mr. Davis's first wife; Glenn Davis, a
stepbrother; Adeline Davis, Mr. Davis's mother; and Mr.
Davis's children and stepchildren; (2) failed to follow up and
pursue initial cursory contacts with Mr. Davis's brother,
Wayne Gehrer, and with Mr. Davis's second wife, Leona Coates;
(3) failed to adequately investigate and present expert
testimony on Mr. Davis's alcoholism; (4) failed to explore Ms.
Fincham's psyche, personality and background, including
contacting her first husband, Charles Ledbetter, and
presenting expert testimony from Dr. Chris Hatcher, a
psychologist who was an expert on relative accomplice
liability; (5) failed to contact and adequately develop
possible testimony from former employers and acquaintances,
including people who lived in the same apartment complex as
the Davises; and (6) failed to present favorable prison
records from which mitigating evidence might have been derived.
Mr. Davis argues that, had the jury heard all of this evidence,
it would have viewed him in a different light and probably
sentenced him to life imprisonment rather than death.
1. Family Members:
Mr. Davis argues Mr. Truman failed to
follow up on initial contacts with Mr. Davis's brother, Wayne
Gehrer, and with Mr. Davis's second wife, Leona Coates, as
well as failing to contact at all his first wife, Tonya Tatem,
his children and stepchildren, his stepbrother, and his mother.
Investigator William Martinez had prepared a report for Mr.
Truman's office, detailing his investigation, conducted in
July 1986, into Mr. Davis's background. It includes a
description of a conversation with Wayne Gehrer, in which Mr.
Gehrer described Mr. Davis as "always a little bit different,
devil-may-care type attitude, always had an alcohol problem."
R. Vol. II, Doc. 54, tab 20.
Mr. Martinez's report indicates "[w]hen
asked how he felt about the homicide and about Gary and what
he thought of it, his (almost quote) words were -- it was the
inevitable conclusion to his life's story." Id. That
assessment of Mr. Davis was not likely to be viewed by the
jury as mitigatory; rather, it suggests he was a reckless and
irresponsible man, whose life story was appropriately
concluded by the tragic murder of Ms. May. Further discussion
with Mr. Gehrer was likely to produce evidence at least as
damaging, perhaps more so, than helpful to Mr. Davis. Mr.
Davis thus suffered no prejudice from Mr. Truman's failure to
call Wayne Gehrer to testify in the penalty phase of the trial.
Mr. Davis similarly challenges Mr. Truman's
failure to pursue Leona Coates as a possible mitigation
witness. At the time of Mr. Davis's trial, she had been
interviewed by another investigator, Sherry Garner, to whom Ms.
Coates stated that Mr. Davis had a drinking problem and that
there "were times that he was violent with [her.]" Statement
of Leona Coates dated 8/7/86, R. Vol. VI. Additionally, she
stated that Mr. Davis pointed a rifle at her head one time,
and tried to choke her twice. Id.
When she testified, nine years later, in Mr.
Davis's habeas proceeding, she stated that Mr. Davis was never
violent towards her, that the gun to which she referred in
1986 was a plastic gun, and that she was "under a lot of
pressure" in 1986 when she gave the statement about the gun
being held to her head. R. Vol. X at 88. The district court
described that testimony as "equivocal and contradictory with
previous statements given to the police at the time of Davis'
arrest." Davis, 891 F. Supp. at 1468.
The court further observed that Ms. Coates
was "not clear that she would have made herself available to
testify at the trial because she had moved out of state in
order to protect her children from the publicity." Id. Given
the damaging nature of her statements about Mr. Davis in 1986,
as well as the uncertainty as to whether she would even have
been available to testify, we see no prejudice to Mr. Davis
from Mr. Truman's failure to call her as a mitigation witness.
Mr. Davis also argues he suffered prejudice
from the failure to procure testimony from Tonya Tatem, his
children and stepchildren, his mother, and a stepbrother. He
argues they would have testified about his troubled childhood,
his passivity and tendency to be a follower, his devotion to
his children, and his recurrent problems with alcohol.
The district court responded to this
argument as follows: "[p]resenting testimony from family,
friends, or other associates could have invited inquiry by the
prosecution into Davis' history of violence towards his former
wives, his vengeful motives behind the sexual assault of an
adolescent girl, his general dishonesty and his sexual
exploitativeness." Davis, 891 F. Supp. at 1467.
For the following reasons, we agree with the district court
that such testimony was as likely to open the door to damaging
evidence as it was to helpful evidence.
Tonya Tatem's affidavit and deposition
testimony both described Mr. Davis as a loving and good
husband, when he was not drinking. Both also described him as
increasingly abusive when drinking. Again, the potentially
positive effect of such testimony on the jury is offset by the
potentially negative effect of a description of a man who
routinely became abusive towards his spouse when drinking, and
whose drinking ultimately destroyed their marriage.
Various of Mr. Davis's children and
stepchildren testified, either at the habeas hearing or by way
of affidavit. Their testimony recalled vague general childhood
memories of Mr. Davis as a loving father, as well as more
detailed accounts of how he has reestablished his relationship
with them since his imprisonment for the murder of Ms. May,
and how he is currently helping them. The district court
described the direct testimony of three of Mr. Davis's
children as follows:
Davis' three children would have had very
little to offer at the trial. Although they each testified as
to how important Davis was to them now, they could offer
little testimony about the kind of father he had been. Davis
spent four of the five years prior to the murder of Virginia
May in prison. He did not see his children between the time he
was released from prison and he was arrested for the murder.
The only "fatherly" story that each child was able to relate
was a well rehearsed anecdote about a family fishing trip
which probably occurred before the two youngest children would
have had any conscious memories.
Id. at 1468. We agree with the district
court's characterization of that testimony, noting that the
district court, not we, was in the position to evaluate the
credibility of those witnesses. Their testimony about Mr.
Davis, both at the hearing and by way of affidavit, concerning
his character prior to and at the time of the murder was, of
necessity, vague and non-specific, simply because they were
either fairly young and/or Mr. Davis had spent little time
with them. Their testimony about their relationship with him
now, and since his conviction and sentence for the May murder,
is less significant. We conclude that such testimony would
have had very little impact on the jury in this case.
Finally, Mr. Davis argues that Mr. Truman
should have presented testimony from Glenn Davis, the
stepbrother to whom Mr. Davis was closest, as well as from Mr.
Davis's mother. Glenn Davis's deposition portrays Mr. Davis as
a passive follower, but concedes that, if drunk, he might be
capable of committing a crime like the murder of Ms. May: "I
will say that for him to do that he had to be drunk. . . . [I]f
he was sober and wasn't drinking that night, in my belief I
don't think Gary would have gone along with it." Glenn Davis
Dep. at 24, R. Vol. IX.
Mr. Davis's mother, Adeline Davis, was not
contacted for possible testimony at the time of Mr. Davis's
trial, partially because Wayne Gehrer told Investigator
Martinez that Mr. Davis's parents were experiencing poor
health, and he worried that contacting them to testify on
their son's behalf might worsen their health. Adeline Davis's
deposition confirms that she was experiencing severe health
problems in 1986 and 1987.
Additionally, Mr. Truman testified, at the
hearing on the Rule 35(c) motion, that he was aware that after
Mr. Davis's conviction and imprisonment for first-degree
sexual assault of the 15-year-old, "his mother indicated that
he was no longer welcome at their home and that he was an
embarrassment to the family." R. Vol. IV, Vol. 40 at 50.
In sum, we agree with the district court
that a decision to present mitigation testimony from family
members was fraught with peril, because Mr. Davis's background
contained numerous instances of conduct that was more likely
to make a jury feel unsympathetic towards him, than
sympathetic towards him. See Brewer, 51 F.3d at 1527 ("[W]hile
testimony from a family member may generally be beneficial to
a capital defendant at sentencing, we believe that, in this
case, the totality of [the family member's] revelations could
have been devastating.").
The Colorado Supreme Court correctly
concluded that "[t]he testimony of such witnesses, if
presented, would have constituted, in Truman's own words, `a
two-edged sword' at best." Davis III, 871 P.2d at 774. We
therefore conclude that he suffered no prejudice from the
failure to present such testimony.
2. Expert Testimony:
Mr. Davis also argues that he was
prejudiced by the failure to investigate and present expert
testimony on the nature and effects of Mr. Davis's severe
alcoholism, as well as on the relationship between Mr. Davis
and Ms. Fincham. At the time of the trial, Mr. Truman sought
the assistance of a psychiatrist, Dr. Seymour Z. Sundell.
After examining Mr. Davis, Dr. Sundell concluded that Mr.
Davis's history and background, including his history of
alcoholism, were not useful in mitigation.
Mr. Davis introduced in his federal habeas
proceeding reports by Dr. Gary Forrest, an expert on the
effects of alcoholism, and by Dr. Chris Hatcher, an expert on
relative accomplice liability. He claims comparable reports
should have been submitted in the penalty phase of his trial,
and that the failure to do so prejudiced him. Dr. Forrest's
report described Mr. Davis as "clearly a chronic alcoholic
with a concurrent personality disorder" and further opined
that "it is highly probable that Mr. Davis was both
intoxicated and mentally impaired when Virginia May was
murdered." Pet'r's Ex. No. 111, Appellee's Addendum.
Aside from the fact that the report itself
contains some descriptions of Mr. Davis that might not evoke
sympathy at all from a jury,
the mitigatory thrust of Dr. Forrest's report -- that Mr.
Davis was both intoxicated and mentally impaired when Ms. May
was murdered -- was undermined by the fact that there was no
actual evidence of intoxication when the Davises were first
stopped by police on the road, following the murder, as well
as by Mr. Davis's own testimony in which he specifically
recalled the murder and his involvement in it.
Moreover, the jury already knew that Mr.
Davis had a drinking problem, and that he had been drinking
the day of the murder. Thus, Dr. Forrest's conclusions in his
report would have either been unsupported by direct evidence
at the time of the murder, or would have been duplicative of
other evidence already before the jury.
Mr. Davis further argues that, besides Dr.
Forrest's expert report and testimony, Mr. Truman should have
more generally explored Mr. Davis's alcoholism as a mitigating
circumstance. Mr. Truman testified in the Rule 35(c)
proceeding that one reason he declined to explore alcoholism
as a mitigator is because the jury might have reacted
negatively to the fact that Mr. Davis had been treated
numerous times for alcoholism. See Jones v. Page, 76 F.3d 831,
846 (7th Cir. 1996) (noting that failure to introduce evidence
of petitioner's long history of substance abuse "was a
reasonable tactical choice because such evidence was a `double-edged
sword,' that is, it could easily have been considered either
aggravating or mitigating evidence"), petition for cert. filed,
(U.S. June 28, 1996) (No. 96-5064). We agree that it is just
as likely the jury would react negatively to Mr. Davis's
repeated failures to effectively address his alcoholism.
Similarly, Dr. Hatcher's report examines in
considerable detail the history of the relationship between Mr.
Davis and Ms. Fincham. He draws the conclusion that the
evidence leads to "serious questions as to who was the
dominant individual in the commission of this abduction/homicide."
Pet'r's Ex. No. 112, Appellee's Addendum.
However, any implication or persuasive
suggestion that Ms. Fincham was the dominant actor in the
crime was wholly undermined by Mr. Davis's own statement that
he was the main actor and that Ms. Fincham was much less
culpable. Even if Dr. Hatcher's report permits the inference
that Mr. Davis was simply lying when he testified against
himself, the jury was nonetheless confronted with that clear
testimony, under oath, in which Mr. Davis recounted the crime
in a manner completely contrary to the way Dr. Hatcher's
report suggests the crime occurred.
It is important to note that the jury was
able to evaluate Mr. Davis's credibility and demeanor when he
testified, as we, an appellate court, cannot. They were
further able to evaluate his credibility in context -- that is,
having observed him sitting in the courtroom throughout the
duration of his trial. We therefore cannot conclude that there
is a reasonable probability that, were those two expert
reports presented to the jury, the jury would have concluded
that death was not the appropriate sentence.
3. Other Acquaintances:
Mr. Davis also asserts he suffered
prejudice from Mr. Truman's failure to call other mitigation
witnesses, such as people who lived for awhile in the same
apartment building as the Davises, and the Davises' employer.
Such evidence was, however, either as likely to harm as help
Mr. Davis in front of the jury, or was also directed at
showing that Ms. Fincham was the dominant figure in the Davis
relationship, and by implication the dominant figure in the
murder, a proposition which Mr. Davis's own testimony
Among the items of testimony Mr. Davis now
claims should have been presented was testimony from Clint and
Victoria Hart, who at one time lived in the same apartment as
the Davises. In an interoffice memorandum prepared for Mr.
Davis's first attorneys, public defenders, an investigator
reported a conversation he had with the Harts, in which they
said the following things about the Davises:
". . . [T]hey [the Davises] were ripping
everybody off, they would borrow money and never paid it back,
they were charging for services at the apartments giving
receipts for the services and pocketing the money then blaming
the owner for having to charge for the services.
. . . Gary drank a lot and . . . they were
swingers and tried to get people to swap partners and even
jokingly approached them about doing it. . . .
. . . .
. . . [B]oth Gary and Becky were bull
shitters but Becky seemed to have the upper hand on that and .
. . they both lied consistently about everything . . . .
. . . Becky acted like she was [in charge]
but Gary was the one that really was, he was more subdued
where as Becky was talkative and would just rattle on
especially when she was lieing [sic]."
Interoffice Mem. dated 9/10/86, Appellee's
Addendum. Such negative information about the Davises was
obviously more likely to harm rather than help Mr. Davis in
front of the jury, and certainly suggested that finding truly
helpful mitigating testimony from acquaintances was going to
be extremely difficult. We therefore see no prejudice from Mr.
Truman's decision not to present testimony from the Harts.
Mr. Davis also argues Mr. Truman should
have presented testimony from Robert Russell, an acquaintance
of Mr. Davis and Leona Coates. In a memorandum prepared for Mr.
Davis's first attorneys, Investigator Jim Smith described an
interview with Mr. Russell, in which Mr. Russell generally
described how he and Mr. Davis used to go drinking together,
and stated that Mr. Davis was not unfaithful to Leona Coates
during their marriage. Mr. Russell also said he was "surprised"
to hear of Mr. Davis's involvement in the murder. Interoffice
Mem. dated 10/9/86, R. Vol. VI.
In another memorandum prepared in
connection with Mr. Davis's habeas petition, Mr. Russell
described Mr. Davis as a good, kind and dependable father and
worker, without "a mean bone in his body." Pet'r's Ex. No.
107, R. Vol. IX. He further offered his opinion that "the
murder had to do with alcohol and someone else's influence."
Id. We again see no prejudice to Mr. Davis from the failure to
present testimony from Mr. Russell, given its generality and
vagueness in 1986 (merely expressing "surprise" about Mr.
Davis's involvement in the murder).
Even as elaborated nine years later, Mr.
Russell's characterization of Mr. Davis as lacking "a mean
bone in his body" is flatly inconsistent with a multitude of
other evidence about Mr. Davis, and the reference to alcohol
does little to help Mr. Davis other than to raise once again
all of the problems discussed above with using alcoholism as a
mitigating circumstance in Mr. Davis's particular case.
Finally, Mr. Davis argues he suffered
prejudice from the failure to present testimony from Pauline
Cowell, the woman for whom the Davises worked at the time of
the May murder. In the same memorandum prepared in 1986 by
Investigator Jim Smith, Mr. Smith described an interview with
Ms. Cowell, in which she said that Mr. Davis "was usually very
shy around her," and that she "does not believe that Gary
killed Ginny [May], she is not sure what role he played in it
but she does not believe he did it." Interoffice Mem. dated
10/9/86, R. Vol. VI. She also said that "the stories they,
especially Becky told, turned out to be half truths or out
right lies." Id.
As with the other acquaintance
testimony, it is hard to see how this would have made any
difference with the jury. Ms. Cowell said she did not believe
Mr. Davis killed Ms. May, but her otherwise unsupported belief
was completely contradicted by Mr. Davis's own testimony. Ms.
Cowell also offered that both the Davises told "half truths or
out right lies."
That is hardly likely to positively impact the jury
deliberating Mr. Davis's fate.
In sum, we find no prejudice from the
failure to call these various acquaintances of Mr. Davis to
testify in the penalty phase of the trial.
4. Prison Records:
Mr. Davis also argues that Mr. Truman
should have presented more testimony supportive of the
statutory mitigator that Mr. Davis would not be a continuing
threat to society. Mr. Truman did present testimony in the
penalty phase from Lieutenant Allen, who had supervised Mr.
Davis while he was in the Adams County jail awaiting trial,
and who testified to his good conduct during his incarceration.
Mr. Davis argues a better witness
concerning his conduct while in prison would have been Leonard
Foster, who supervised Mr. Davis while he was in prison for
his prior sexual assault conviction. Mr. Foster told an
investigator from the Federal Public Defender's office that Mr.
Davis was a model prisoner during that time. He further stated
that, had he been asked to testify at the time of Mr. Davis's
trial, he would have stated his opinion that "Gary Davis could
successfully serve a term of life imprisonment." Sholl Aff.
Para(s) 11, Pet'r's Ex. No. 109, R. Vol. IX.
Although Mr. Davis for some reason now
believes that Mr. Foster would have provided the better
testimony in mitigation, Mr. Foster's testimony basically
duplicates that of Lieutenant Allen. Thus, Mr. Davis's conduct
while incarcerated was already before the jury. The failure to
present Mr. Foster to provide essentially the same testimony
did not prejudice Mr. Davis.
Moreover, additional testimony as to Mr.
Davis's ability to function well and adjust comfortably to
prison life might have negatively affected jurors who wished
to see that Mr. Davis received a severe penalty for an
admittedly horrible crime. Details from Mr. Davis's prison
records would also, of course, have reminded the jury of Mr.
Davis's criminal history, with its increasingly violent
Furthermore, against all of this evidence
which Mr. Davis presented in the federal district court, and
which he claims Mr. Truman erroneously failed to present in
the penalty phase of his trial, we must weigh the aggravating
factors present in this case. Although Mr. Davis challenges
five of the six aggravating factors found by the jury, as we
explain below, we find four of the five were constitutional
and supported by the evidence, and the submission of the
unconstitutionally vague aggravator was harmless error.
As we have stated before, the sentence in
this case was not "`only weakly supported by the record.'"
Brewer, 51 F.3d at 1527 (quoting Strickland, 466 U.S. at 694).
Indeed, Mr. Davis's own words, detailing his participation in
the crime and his assumption of full responsibility for it,
were fresh in the jurors' minds. See Thompson v. Calderon, 86
F.3d 1509, 1525 (9th Cir. 1996) ("The State's case against [petitioner]
was strong . . . . [Petitioner] himself made it much stronger
by testifying after counsel advised him not to testify."). As
we stated in Brewer:
Given the State's overwhelming case against
him, the number and gravity of the aggravating circumstances
found by the jury, and the nature of the crime itself, we do
not believe that the speculative, conclusory, and possibly
damaging mitigating evidence offered now . . . would have
resulted in the imposition of a sentence other than death.
Brewer, 51 F.3d at 1527. We are equally
confident that the speculative, cumulative and almost
certainly damaging evidence offered now in this case would not
have resulted in the imposition of a different sentence. See
Marek v. Singletary, 62 F.3d 1295, 1300-01 (11th Cir. 1995) ("Given
the particular circumstances of this case and the overwhelming
evidence against Marek, evidence of an abusive and difficult
childhood would have been entitled to little, if any,
mitigating weight."), cert. denied, _____ U.S. _____, 117 S.Ct.
113, 136 L.Ed.2d 65 (1996) Bonin v. Calderson, 59 F.3d 815,
836 (9th Cir. 1995) ("`[I]n cases with overwhelming evidence
of guilt, it is especially difficult to show prejudice from a
claimed error on the part of trial counsel.'") (quoting United
States v. Coleman, 707 F.2d 374, 378 (9th Cir.), cert. denied,
464 U.S. 854 (1983)), cert. denied, _____ U.S.
_____, 116 S. Ct. 718, 133 L.Ed.2d 671 (1996); Andrews v.
Collins, 21 F.3d 612, 624 (5th Cir. 1994) (holding that in
light of evidence that defendant stood over victim and shot
him directly in forehead with a bullet altered to cause more
devastation on impact, defendant suffered no prejudice from
counsel's alleged ineffectiveness), cert. denied, 115 S. Ct.
908 (1995); People v. Rodriguez, 914 P.2d 230, 296 (Colo.
1996) ("Given the brutal circumstances surrounding the murder
of [the victim] and the overwhelming evidence of aggravation
against [defendant], . . . trial counsel's failure to present
the proposed mitigating evidence of child abuse [did not]
materially affect the imposition of" the death penalty.).
II. Statutory Aggravators.
The trial court instructed the jury on six
The jury found the existence of all six beyond a reasonable
doubt. Mr. Davis challenges five of the six.
Colorado's capital sentencing scheme
involves four steps. The Colorado Supreme Court has described
it as follows:
First, the jury must determine if at least
one of the statutory aggravating factors exists. Section(s)
16-11-103(2)(a)(I), -(6). If the jury does not unanimously
agree that the prosecution has proven the existence of at
least one statutory aggravator beyond a reasonable doubt, the
defendant must be sentenced to life imprisonment.
16-11-103(1)(d),-(2)(b)(I), -(2)(c). Second, if the jury has
found that at least one statutory aggravating factor has been
proven, the jury must then consider whether any mitigating
factors exist. 16-11-103(2)(a)(II), -(5). "There shall be no
burden of proof as to proving or disproving mitigating factors,"
Section(s) 16- 11-103(1)(d), and the jury need not unanimously
agree upon the existence of mitigating factors. Third, the
jury must determine whether "sufficient mitigating factors
exist which outweigh any aggravating factor or factors found
to exist." Section(s) 16-11-103(2)(a)(II). Fourth, and finally,
if the jury finds that any mitigating factors do not outweigh
the proven statutory aggravating factors, it must decide
whether the defendant should be sentenced to death or to life
imprisonment. Section(s) 16-11-103(2)(a)(III).
People v. Tenneson, 788 P.2d 786, 789 (Colo.
1990) (citations omitted); see also People v. White, 870 P.2d
424, 438 (Colo.), cert. denied, _____ U.S. _____, 115 S. Ct.
127, 130 L.Ed.2d 71 (1994).
"The constitutional validity of aggravating
factors is a question of law subject to de novo review."
United States v. McCullah, 76 F.3d 1087, 1107 (10th Cir.
1996). What happens when an unconstitutional aggravator has
been submitted to the sentencer depends, in part, on whether
the state sentencing scheme involves weighing of aggravating
and mitigating circumstances.
In a weighing state, "after a jury has
found a defendant guilty of capital murder and found the
existence of at least one statutory aggravating factor, it
must weigh the aggravating factor or factors against the
mitigating evidence." Stringer v. Black, 503 U.S. 222, 229
(1992). By contrast, in a non-weighing state "the jury must
find the existence of one aggravating factor before imposing
the death penalty, but aggravating factors as such have no
specific function in the jury's decision whether a defendant
who has been found to be eligible for the death penalty should
receive it under all the circumstances of the case." Id. at
229-30, 112 S.Ct. at 1136.
If an unconstitutional aggravating factor
has been submitted to the jury in a weighing state, an
appellate court may independently reweigh the aggravating and
mitigating factors, omitting the unconstitutional one, and
determine if the sentence is nonetheless appropriate. Clemons
v. Mississippi, 494 U.S. 738, 750, 110 S.Ct. 1441, 1449, 108
L.Ed.2d 725 (1990). Alternatively, the appellate court may
conduct a harmless error analysis, determining whether the
submission to the jury of the unconstitutional aggravator was
harmless. Id. at 752, 110 S.Ct. at 1450.
Additionally, the Supreme Court has
indicated that "a state appellate court may itself determine
whether the evidence supports the existence of the aggravating
circumstance as properly defined," Walton v. Arizona, 497 U.S.
639, 654, 110 S.Ct. 3047, 3057, 111 L.Ed.2d 511 (1990), and on
federal habeas review of such a decision, "the state court's
application of the narrowing construction should be reviewed
under the `rational factfinder' standard of Jackson v.
Virginia, 443 U.S. 307 [99 S.Ct. 2781, 61 L.Ed.2d 560]
(1979)." Richmond v. Lewis, 506 U.S. 40, 47, 113 S.Ct. 528,
121 L.Ed.2d 411 (1992).
In a non-weighing state, by contrast, so
long as the sentencing body finds at least one valid
aggravating factor, the fact that it also finds an invalid
aggravating factor does not infect the formal process of
deciding whether death is an appropriate penalty. Assuming a
determination by the state appellate court that the invalid
factor would not have made a difference to the jury's
determination, there is no constitutional violation resulting
from the introduction of the invalid factor in an earlier
stage of the proceeding.
Stringer, 503 U.S. at 232; see also Tuggle
v. Netherland, _____ U.S. _____, 116 S. Ct. 283, 133 L.Ed.2d
251 (1995); Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77
L.Ed.2d 235 (1983); Tuggle v. Netherland, 79 F.3d 1386 (4th
Cir. 1996) (applying harmless error analysis to Ake v.
Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985),
error in capital sentencing proceeding in a non-weighing state),
cert. denied, _____ U.S. _____, 117 S.Ct. 237, 136 L.Ed.2d 166
Step three of Colorado's four-step capital
sentencing scheme clearly requires weighing of aggravating and
mitigating circumstances. Step four, however, "require[s] the
jury to make an independent decision whether to impose a
sentence of life imprisonment or death where mitigating
factors did not outweigh aggravating factors." People v.
District Court, 834 P.2d 181, 185 (Colo. 1992); see also
People v. Young, 814 P.2d 834, 841 (Colo. 1991). It thus is
more similar to the sentencing decision made in a non-weighing
The Supreme Court has not specifically indicated whether the
Clemons reweighing/harmless-error analysis or the Zant
analysis applies to states having "hybrid" systems like
Colorado's. See Flamer v. Delaware, 68 F.3d 736, 769 (3d Cir.
1995) (Lewis, J., dissenting), cert. denied, _____ U.S. _____,
116 S. Ct. 807, 133 L.Ed.2d 754 (1996).
Mr. Davis suggests that a harmless error
analysis is not possible under Colorado's capital sentencing
scheme, apparently because of the fourth step. While he is not
completely clear, we assume his argument is that a harmless-error
analysis is unavailable in a non-weighing scheme, and
therefore unavailable in Colorado because of that fourth step.
We disagree with his characterization of
Colorado's capital sentencing scheme. While the fourth step in
the sentencing process does indeed appear to give the jury the
opportunity to consider any and all reasons for imposing a
sentence of life or death, the third step clearly and
specifically requires the jury to weigh aggravating and
mitigating factors. The jury does not reach the fourth step
unless it has determined that any mitigating factors do not
outweigh the proven statutory aggravators. Because weighing
thus performs a critical function in the jury's sentencing
scheme, we apply, where appropriate, the Clemons harmless
error analysis.18 We turn now to the specific allegations of
A. Aggravating Factor of "Avoiding or
Preventing Lawful Arrest or Prosecution":
One of the statutory aggravators presented
to the jury was the following:
The class I felony was committed for the
purpose of avoiding or preventing a lawful arrest or
prosecution or effecting an escape from custody. This factor
shall include the intentional killing of a witness to a
Colo. Rev. Stat. Section(s)
16-11-103(6)(k). Mr. Davis objected to the instruction on the
ground that the aggravator should only apply when a witness of
a crime is killed to prevent the investigation or prosecution
of that other, separate, crime or when a law enforcement
officer is killed while attempting to arrest someone. The
trial court overruled the objection.
To be constitutional, an aggravating
circumstance must "not apply to every defendant convicted of a
murder; it must apply only to a subclass of defendants
convicted of murder." Tuilaepa v. California, 512 U.S. 967,
_____, 114 S. Ct. 2630, 2635, 129 L.Ed.2d 750 (1994). "If the
sentencer fairly could conclude that an aggravating
circumstance applies to every defendant eligible for the death
penalty, the circumstance is constitutionally infirm." Arave
v. Creech, 507 U.S. 463, 474 (1993). Additionally, "the
aggravating circumstance may not be unconstitutionally vague."
Tuilaepa, 512 U.S. at _____, 114 S. Ct. at 2635.
The Colorado Supreme Court agreed with the
state's interpretation of this aggravator, that it "is
appropriate if the evidence indicates that a defendant has
murdered the victim of a contemporaneously or recently
perpetrated offense and the reason for the murder was to
prevent the victim from becoming a witness." Davis I, 794 P.2d
at 187. The "antecedent crime must be one which is not
inherent or necessarily incident to murder such as assault or
battery, otherwise every murder would be punished by death."
Id. at 187 n.22. The Colorado court observed that "[b]y
putting the focus on the purpose of the murder, this
aggravating factor cannot be said to include all murder
victims because they are all potential witnesses." Id. at 187.
Mr. Davis argues this interpretation fails
to effectively narrow the class of defendants subject to the
death penalty, because all murder victims are thereby
prevented from testifying against their murderers. He argues "Mrs.
May was not a witness to a criminal offense independent of the
murder. Rather, the crimes upon her that she had witnessed
were part of the same continuous criminal transaction as the
murder." Appellant's Opening Br. at 78.
We agree with the Colorado Supreme Court,
whose analysis the district court adopted, that the statutory
aggravator sufficiently narrows the class of defendants to
whom it applies. Several other states have a similar statutory
aggravating circumstance. Arkansas, for example, includes
among its aggravating circumstances that "[t]he capital murder
was committed for the purpose of avoiding or preventing an
arrest or effecting an escape from custody." Ark. Code Ann.
Section(s) 5-4-604(5). The Eighth Circuit recently rejected an
argument that the provision "does not genuinely narrow the
class of persons eligible for the death penalty." Wainwright
v. Lockhart, 80 F.3d 1226, 1231 (8th Cir. 1996), cert. denied,
_____ U.S. _____, 117 S.Ct. 395, 136 L.Ed.2d 310 (1996).
In Wainwright, the court held that the
aggravator was properly applied to a murder which was
committed in the course of a robbery, in order to prevent the
murderer's identification by the victim. See also Joubert v.
Hopkins, 75 F.3d 1232, 1247 (8th Cir.) (upholding validity of
Nebraska statutory aggravator that the killing was committed
to hide the perpetrator's identity where defendant kidnaped
victims before killing them), cert. denied, _____U.S.
_____,116 S. Ct. 2574, 135 L.Ed.2d 1090 (1996); Ruiz v. Norris,
71 F.3d 1404, 1408 (8th Cir. 1995), cert. denied, _____ U.S.
_____, 177 S.Ct. 384, 136 L.Ed.2d 301 (1996); Miller v. State,
605 S.W.2d 430, 439-40 (Ark. 1980) (upholding validity of
statutory aggravator that murder was committed for purpose of
avoiding arrest where defendant robbed victim before killing
him), cert. denied,
450 U.S. 1035 (1981); Thompson v. State, 648
So.2d 692, 695 (Fla. 1994) (upholding validity of statutory
aggravator that murder was committed for purpose of avoiding
arrest where defendant kidnaped and robbed victims before
murdering them), cert. denied, _____ U.S. _____, 115 S. Ct.
2283, 132 L.Ed2d 286 (1995); Walker v. State, 671 So.2d 581,
602 (Miss. 1995) (upholding validity of statutory aggravator
that murder was committed for purpose of avoiding or
preventing a lawful arrest where defendants kidnaped and raped
victim before murdering her), petition for cert. filed, (U.S.
July 16, 1996) (No. 96-5259); State v. Hightower, 680 A.2d
649, 663 (N.J. 1996) (upholding validity of statutory
aggravator that murder was committed to avoid apprehension
where victim was robbed prior to murder, and observing that "[t]he
fact that a murder occurs contemporaneously with the witnessed
underlying crime does not mitigate the evil of killing a
potential witness"); State v. Gregory, 459 S.E.2d 638, 664 (N.C.
1995) (upholding validity of statutory aggravator that murders
were committed for the purpose of avoiding or preventing a
lawful arrest where defendants had kidnaped and raped victims
prior to killing them), cert. denied, _____U.S. _____,116 S.
Ct. 1327, 134 L.Ed.2d 478 (1996). In each of these cases, the
aggravating circumstance was applied where an antecedent crime
(rape or kidnaping or robbery) occurred, and the murderer
killed the victim to prevent the victim's identification of
the murderer for the antecedent crime.
That is exactly what occurred in this case:
Mr. Davis testified that he killed Ms. May so she would not be
a live witness. R. Vol. V, Vol. 32 at 73. Further, the
evidence in this case concerning the Davises' motivation for
murdering Ms. May, which Mr. Davis does not dispute, supports
the conclusion that their motivation for kidnaping Ms. May was
to subject her to various sexual abuses, and she was then
murdered so she would not identify them. We find nothing
unconstitutional in the application of this aggravator to Mr.
B. Application of the "Party to an
Mr. Davis also challenges the statutory
aggravator that Mr Davis "has been a party to an agreement to
kill another person in furtherance of which a person has been
intentionally killed." Colo. Rev. Stat. Section(s)
16-11-103(6)(e). He argues, as he did at his trial, that this
aggravator should only apply to contract killings, not to
"simple conspiracy." Appellant's Opening Br. at 87.
As the Supreme Court has stated, "[s]tates
must properly establish a threshold below which the [death]
penalty cannot be imposed." Romano v. Oklahoma, 114 S. Ct.
2004, 2009 (1994); McCleskey v. Kemp, 481 U.S. 279, 305
(1987). To that end, they must "establish rational criteria
that narrow the decisionmaker's judgment as to whether the
circumstances of a particular defendant's case meet the
threshold." Id. We have recognized that "aggravating
circumstances must be described in terms that are commonly
understood, interpreted and applied.
To truly provide guidance to a sentencer
who must distinguish between murders, an aggravating
circumstance must direct the sentencer's attention to a
particular aspect of a killing that justifies the death
penalty." Cartwright v. Maynard, 822 F.2d 1477, 1485 (10th
Cir. 1987), aff'd, 486 U.S. 356 (1988). An aggravating
circumstance cannot be so vague that it fails to effectively
channel the sentencer's discretion, and it must contribute to
the kind of individualized sentencing necessary for the
imposition of the death penalty. "Beyond these limitations, .
. . the Court has deferred to the State's choice of
substantive factors relevant to the penalty determination."
California v. Ramos, 463 U.S. 992, 1001 (1983).
Mr. Davis makes no specific argument why
the "party to an agreement" aggravator is not a rational
criterion by which Colorado could select those for whom the
death penalty is permissible. He simply argues that the
Colorado legislature did not intend it to apply other than to
contracts for hire, an argument the Colorado Supreme Court
rejected, and that no other state includes such an aggravator
in its capital sentencing scheme. Neither argument persuades
us that habeas relief is necessary.
The Colorado Supreme Court examined the
legislative history behind the statute, and determined that it
was not limited to "contract-murders," as Mr. Davis argues.
Absent some compelling argument that that interpretation
violates the federal constitution, we will not disturb it. See
Bowser v. Boggs, 20 F.3d 1060, 1065 (10th Cir.) ("We will not
second guess a state court's application or interpretation of
state law on a petition for habeas unless such application or
interpretation violates federal law."), cert. denied, _____U.S.
_____,115 S. Ct. 313, 130 L.Ed.2d 275 (1994); Hamm v. Latessa,
72 F.3d 947, 954 (1st Cir. 1995) (same), cert. denied, _____U.S.
_____, 117 S.Ct. 154, 136 L.Ed.2d 275; see also Mansfield v.
Champion, 992 F.2d 1098, 1100 (10th Cir. 1993) ("In a habeas
corpus proceeding under section 2254, a federal court should
defer to a state court's interpretation of state law in
determining whether an incident constitutes one or more than
one offense for double jeopardy purposes."). And the fact that
Colorado may be the only state which permits such an
aggravator by itself indicates no constitutional infirmity.
As the Supreme Court has made clear, unless
the aggravator is unconstitutionally vague on its face, or
otherwise impedes the requirement that sentencing
determinations be individualized, states are free to select
whatever substantive criteria they wish to determine who is
eligible for the death penalty. See Spaziano v. Florida, 468
U.S. 447, 464 (1984) ("The Eighth Amendment is not violated
every time a State reaches a conclusion different from a
majority of its sisters over how best to administer its
C. Consideration of the "Especially
Heinous, Cruel or Depraved" Aggravator:
The jury was also instructed on the
aggravating factor that "[t]he defendant committed the offense
in an especially heinous, cruel, or depraved manner." Colo.
Rev. Stat. Section(s) 16-11-103(6)(j). The trial court offered
no elaboration of the language of the statute, and overruled
Mr. Davis's objection to the aggravator as unconstitutionally
The United States Supreme Court in Maynard
v. Cartwright, 486 U.S. 356 (1988), held that Oklahoma's "especially
heinous, atrocious or cruel" statutory aggravator, if
presented to a jury without further elaboration and
explication, was unconstitutionally vague. The Colorado
Supreme Court in Davis I correctly concluded that, under
Cartwright, the trial court improperly permitted the jury to
consider the "especially heinous, cruel or depraved"
The Colorado court further held that, under
Proffit v. Florida,
428 U.S. 242 (1976), "the prosecutor could prove
the existence of this aggravator by showing that the defendant
committed the crime in a `conscienceless or pitiless' manner
which was `unnecessarily torturous to the victim.'" Davis I,
794 P.2d at 176-77. The court went on to determine whether, "beyond
a reasonable doubt, . . . had the aggravator properly been
narrowed the jury would have returned a verdict of death." Id.
at 179. It concluded that it would have, and that the error
was therefore harmless beyond a reasonable doubt.
Mr. Davis argues the Colorado Supreme Court
erred in two respects: (1) it emphasized heavily the evidence
supporting the "heinous, cruel or depraved" aggravator, while
failing to mention or discuss any mitigating evidence in
conducting its harmless error review; and (2) harmless error
review is impossible because of Colorado's peculiar capital
sentencing scheme. We have already rejected this second
argument and concluded that harmless error analysis is
available. We must still determine whether the Colorado
Supreme Court properly cured the error, either by correctly
applying a narrowing construction or otherwise conducting a
harmless error analysis.
The Colorado Supreme Court held that the
properly narrowed definition of the "heinous, cruel or
depraved" aggravator was the one set out in Proffit. Mr. Davis
does not dispute the validity of that narrowed definition. He
simply disagrees with the way the Colorado court applied that
standard, arguing it is "`nothing but a facile guess at what
the jury would have found under a totally hypothetical set of
instructions that realistically could not possibly have been
within the contemplation of any juror when this case was
decided.'" Appellant's Opening Br. at 81 (quoting Davis I, 794
P.2d at 222 (Quinn, C.J., dissenting)). He further argues the
court made no reference to the mitigating evidence presented
to the jury.
When reviewing a state court's application
of a properly narrowed definition of a facially vague
aggravator, we "uphold the state court's finding so long as a
rational factfinder could have found the elements identified
by the construction -- here, that the crime involved [conscienceless
or pitiless conduct and was unnecessarily torturous to the
victim]." Hatch v. Oklahoma, 58 F.3d 1447, 1469 (10th Cir.
1995), cert. denied, _____U.S. _____,116 S. Ct. 1881, 135 L.Ed.2d
176 (1996); see also Richmond v. Lewis, 506 U.S. 40, 47
(1992); Jackson v. Virginia, 443 U.S. 307, 319 (1979).
The Colorado Supreme Court found the
necessary facts to establish that the murder was committed in
a conscienceless or pitiless manner, and was unnecessarily
torturous to the victim. Davis I, 794 P.2d at 179-80. It then
held that, because a jury given a properly narrowed definition
of the "heinousness" aggravator would still have found the
aggravator established, it was harmless error beyond a
reasonable doubt to instruct the jury without that narrowed
definition. Under Richmond, Walton and our Hatch decision, we
perceive no error in the Colorado Supreme Court's "curing" the
submission to the jury of the vague aggravator.
Alternatively, were we to agree that,
despite its use of the term "harmless error," the Colorado
Supreme Court did not properly conduct a harmless error
analysis because it did not explicitly consider mitigating
evidence, we could apply the harmless error standard of Brecht
v. Abrahamson, 507 U.S. 619, 637 (1993). Under Brecht, federal
courts on habeas review of trial errors must ask "whether the
error `had substantial and injurious effect or influence in
determining the jury's verdict.'" Id. (quoting Kotteakos v.
United States, 328 U.S. 750, 776 (1946)). In making that
evaluation, the Supreme Court has indicated that "where the
record is so evenly balanced that a conscientious judge is in
grave doubt as to the harmlessness of an error," the error is
not harmless. O'Neal v. McAninch, ___ U.S. ___, ___, 115 S. Ct.
992, 995, 130 L.Ed.2d 947 (1995).
Thus, under Brecht, we would inquire
whether the submission of the vague aggravator had a
substantial and injurious effect on the jury's verdict. As we
have previously stated, "our task is not merely to determine
whether there was sufficient evidence to convict . . . in the
absence of [the error]." Tuttle v. Utah, 57 F.3d 879, 884
(10th Cir. 1995). Rather, it is to "determine, in light of the
entire record, whether [the error] so influenced the jury that
we cannot conclude that it did not substantially affect the
verdict, or whether we have grave doubt as to the harmlessness
of the error alleged." Id.
Applying that standard, we conclude that
the submission to the jury of the vague "heinousness"
aggravator was harmless error. The jury was given six
statutory aggravators. Mr. Davis does not dispute the
applicability of one of the six (that the crime was committed
while he was on parole for another crime). We have just held
that two other aggravators, that the murder was committed to
avoid arrest and that Mr. Davis was a party to an agreement to
murder, were properly submitted to the jury and supported by
the evidence. Thus, three valid aggravators were clearly
before the jury.
In discussing the "heinous, cruel or
depraved" aggravator in his closing argument, the prosecutor
did not allude to any evidence or facts not already properly
before the jury. Nor was that particular aggravator emphasized
disproportionately in that closing argument. The valid
aggravators, in our view, powerfully outweighed the mitigating
evidence before the jury. In light of the entire record, we
conclude that the submission of the unconstitutionally vague "heinousness"
aggravator to the jury did not have a "substantial and
injurious effect or influence in determining the jury's
verdict." Brecht, 507 U.S. at 637, 113 S.Ct. at 1722.
D. Consideration of "Felony Murder" and
Two additional aggravating factors
submitted to the jury were that Davis committed the felony of
second degree kidnaping, and "in the course of or in
furtherance of such or immediate flight therefrom, he
intentionally caused the death of a person other than one of
the participants," Colo. Rev. Stat. Section(s)
16-11-103(6)(g), and that he "intentionally killed a person
kidnapped or being held as a hostage by him or by anyone
associated with him." Colo. Rev. Stat. Section(s)
16-11-103(6)(d). Mr. Davis argues that these two aggravating
circumstances "involve the same indivisible course of conduct,"
Appellant's Opening Br. at 84, and that the submission of both
to the jury fails to genuinely narrow the class of defendants
eligible for the death penalty.
The Colorado Supreme Court in Davis I found
that Mr. Davis "did not object to the presentation to the jury
of the `felony murder' aggravator[,] [n]or did he present a `doubling
up' argument to the court during the presentation of the `kidnaping'
aggravator." Davis I, 794 P.2d at 188. The court went on to
observe that it was aware of no federal cases addressing the
constitutionality, under federal law, of overlapping or
duplicative aggravators, but found no error in Mr. Davis's
case "[b]ecause, by the plain language of our statute, both
aggravators applied under the facts of this case." Id. at 189.
The court also observed that the jury was instructed that it
was the weight assigned each aggravating factor, not their
mere number, that guided the jury's deliberation. Id. Thus,
the Colorado court found no error.
Since Davis I, our court has held that the
submission of duplicative aggravating factors is
constitutional error, at least under the weighing scheme of
the federal death penalty statute, 21 U.S.C. Section(s) 848.
United States v. McCullah, 76 F.3d 1087, 1111-12 (10th Cir.
1996); see also United States v. Tipton, 90 F.3d 861, 899 (4th
Cir. 1996). In McCullah, we remanded for a "reweighing of the
aggravating and mitigating factors." McCullah, 76 F.3d at
The state responds that Colorado's
particular capital sentencing scheme includes both a weighing
and a non-weighing component, and the fourth and last step in
the sentencing process makes it ultimately a non-weighing
state in which, under Zant v. Stephens, 462 U.S. 862 (1983),
duplicative aggravators are not a problem. As we have
indicated, in our view, Colorado's capital sentencing scheme
contains a crucial weighing component. We thus treat it as a
weighing state. In federal habeas review of a state court
trial in which an error occurred in the submission of
aggravating factors to a jury which must weigh aggravating and
mitigating factors, we may conduct a harmless error analysis.
See Clemons, 494 U.S. at 750; see also Brecht, 507 U.S. at
Applying the Brecht standard, we must
determine whether, in light of the entire record, the
submission of the two aggravators addressing the same basic
conduct had a "substantial and injurious effect or influence"
on the jury's verdict. Id. As we stated above in discussing
the effect of the "heinousness" factor on the jury, the jury
had three valid aggravating factors before it. It also had Mr.
Davis's own statement describing his involvement in the crime,
and taking full responsibility for it. The jury was further
specifically instructed that it could "assign any weight you
wish to each aggravating and mitigating factor. It is the
weight assigned to each factor, and not the number of factors
found to exist that is to be considered." Jury Instruction No.
2, R. Vol. IV, Vol. 2 at 389.
Similarly, Instruction No. 5 directed the
jury that the weighing of mitigating and aggravating factors "is
not a mere counting process in which numbers of aggravating
factors are weighed against numbers of mitigating factors. The
number of the factors found is not determinative. . . . You
must consider the relative substantiality and persuasiveness
of the existing aggravating and mitigating factors in making
this determination." Jury Instruction No. 5, id. at 394.
We assume that the jury did not blindly or
unthinkingly add up the total number of aggravators, and weigh
that number against the number of mitigators. Rather, we
assume they followed the instructions to critically evaluate
each factor, applying their "common sense understanding" to
their obligation to weigh aggravating and mitigating factors.
See Boyde v. California, 494 U.S. 370, 381 (1990).
An instruction that the weighing process is
not simply a mathematical exercise, but instead requires
critical evaluation of the factors, can help to countervail
any improper influence occasioned by the submission of
duplicative aggravators. See United States v. Chandler, 996
F.2d 1073, 1093 (11th Cir. 1993) (noting that an instruction
that "the weighing process was not a mechanical one and that
different factors could be given different weight" can
alleviate concern that the jury would be influenced by the
number of aggravating factors), cert. denied, 114 S. Ct. 2724
(1994); United States v. Bradley, 880 F. Supp. 271, 289 n.8 (M.D.
Pa. 1994) (noting that a curative instruction might
countervail "any unfairness inherent in the weighing of a
duplicative factor."); see also Parsons v. Barnes, 871 P.2d
516, 528-30 (Utah) (finding no prejudice to defendant from
improper double-counting of aggravators where the jury was
instructed "not in terms of the relative numbers of the
aggravating and mitigating factors, but in terms of their
respective substantiality and persuasiveness."), cert. denied,
115 S. Ct. 431 (1994). In light of the entire record, we
cannot conclude that the submission of both the felony murder
and the kidnaping aggravators substantially influenced the
III. Jury Instructions.
Mr. Davis next argues that the trial
court's instructions to the jury in the penalty phase of the
trial misled the jury as to how it could evaluate mitigating
evidence. In evaluating the impact on the jury of an ambiguous
jury instruction, "the proper inquiry . . . is whether there
is a reasonable likelihood that the jury has applied the
challenged instruction in a way that prevents the
consideration of constitutionally relevant evidence." Boyde v.
California, 494 U.S. 370, 380 (1990). In assessing this "reasonable
likelihood," we must remember the context in which juries
utilize such instructions:
Jurors do not sit in solitary isolation
booths parsing instructions for subtle shades of meaning in
the same way that lawyers might. Differences among them in
interpretation of instructions may be thrashed out in the
deliberative process, with common sense understanding of the
instructions in the light of all that has taken place at the
trial likely to prevail over technical hairsplitting.
Id. at 380-81. Additionally, we "`must
focus initially on the specific language challenged.'"
California v. Brown, 479 U.S. 538, 541 (1987) (quoting Francis
v. Franklin, 471 U.S. 307, 315 (1985)). "If the specific
instruction fails constitutional muster, we then review the
instructions as a whole to see if the entire charge delivered
a correct interpretation of the law." Id.; see also McDougall
v. Dixon, 921 F.2d 518, 533 (4th Cir. 1990), cert. denied,
501 U.S. 1223 (1991).
A. Mr. Davis's Plea for Mercy:
Mr. Davis exercised his right of allocution
during the closing argument of the penalty phase. He
apologized for his commission of the crime, again stated that
he, not Ms. Fincham, was the guilty one, and asked for life.
The court correctly instructed the jury that they must
"determine the facts from the evidence you have heard during
the entire trial including any additional evidence presented
during the penalty phase hearing." Jury Instruction No. 1, R.
Vol. IV, Vol. 2 at 386. It further instructed the jury that "[t]he
unsworn statement of the defendant is not evidence." Id. at
In instructing the jury on mitigation, the
court stated that the jury "should consider all of the
evidence presented at the trial and the sentencing hearing as
it relates to mitigating factors." Jury Instruction No. 4, id.
at 392. Mr. Davis argues that these instructions amounted to a
direction "not to give any independent mitigating weight to
Davis' expressions of remorse and his plea for mercy,"
Appellant's Opening Br. at 93, and that the jury was thereby
precluded from considering relevant and powerful mitigating
evidence. We note, however, Mr. Davis made no objection to the
instructions when given.
The Colorado Supreme Court, whose analysis
the district court adopted, held that, considering the
instructions as a whole and in the context of the sentencing
hearing, there was no reasonable likelihood that the jury
applied them in a way to prevent it from considering
constitutionally relevant evidence. Davis I, 794 P.2d at 193.
First, considering the particular language
of Instruction No. 1, the court told the jury that it was its
"duty to determine the facts from the evidence" it had heard.
The court went on the discuss objections by lawyers, reminding
the jury that it should not "draw any conclusions from such
objections or from [the court's] rulings on the objections."
Instruction No. 1, R. Vol. IV, Vol. 2 at 386-87.
The court then instructed the jury, "[w]hen
I told you not to consider a particular statement, you were
told to put that statement out of your mind, and you may not
consider any statement in your deliberations which you were
instructed to disregard. The unsworn statement of the
defendant is not evidence." Id. at 387. That instruction
plainly told that jury that there were certain statements made
throughout the trial which it was specifically told to
disregard. When the jury was told to disregard a statement, it
was to "put that statement our of your mind." Id. The jury was
not told to disregard Mr. Davis's unsworn statement. Rather,
it was simply reminded that the statement was not "evidence."
Moreover, both the state and Mr. Truman
alluded to Mr. Davis's statement in their closing arguments,
and referred to particular statements he made therein. And Mr.
Truman echoed Mr. Davis's plea for mercy at the end of his
closing statement. Viewed both individually and in context, we
are satisfied that there is no "reasonable likelihood" that
the jury interpreted the court's instructions to prevent it
from considering Mr. Davis's statement for what it was -- an
unsworn personal plea from the defendant, echoed by his own
attorney, for life rather than death.
B. Instructions on Mitigating Factors:
Mr. Davis argues that other instructions
erroneously conveyed to the jury that they must find any
mitigating circumstances unanimously and beyond a reasonable
doubt. He particularly challenges Instruction No. 5:
If in the first two steps of your
deliberations you have made unanimous findings that the
prosecution has proven beyond a reasonable doubt that one or
more aggravating factors exist and that no mitigating factors
exist, or that a mitigating factor or factors exist, you must
now decide whether the prosecution has proven that any factors
in aggravation outweigh any factors in mitigation.
In the third step of your deliberations you
must weigh the aggravating factor or factors found to exist
against any and all mitigating factors. . . .
Your deliberations during this step of the
proceeding can lead to one of two results:
1. If all, or one or more of the jurors
believe that a mitigating factor or factors outweigh the
aggravating factor or factors found to exist, then the jury
shall enter a verdict of life imprisonment.
2. If all jurors unanimously agree that the
aggravating factor or factors found to exist outweigh the
mitigating factors or that there are no mitigating factors,
then you shall continue your deliberations in accordance with
R. Vol. IV, Vol. 2 at 394-95 (emphasis
added). Instruction No. 6 provided:
Each of you must also decide for yourself
what weight to give each mitigating circumstance that you find
exists. Your decision as to what weight to give any mitigating
circumstances does not have to be unanimous. You do not have
to take the decisions, opinions or feelings of any other juror
into account, although you may do so if you wish.
Id. at 396. While, read in isolation, the
first paragraph of Instruction No. 5 could be read to require
unanimity in the existence of mitigating factors, and that
they must be found beyond a reasonable doubt, Instruction No.
6 makes it clear that there is no such unanimity requirement,
nor is there a requirement that they be established beyond a
reasonable doubt. This is reinforced by the third paragraph of
Instruction No. 5, which referred to "one or more of the
jurors," as well as Instructions 2, 3, and 4, which stated
repeatedly that aggravating factors must be proven beyond a
reasonable doubt, but stated no such requirement for
mitigating factors. Instruction No. 4 specifically stated that
"[t]here is no burden of proof as to proving or disproving
mitigating factors." Id. at 392.
Moreover, in his closing argument to the
jury, after reminding the jury that it must find that
aggravating circumstances exist beyond a reasonable doubt, the
prosecutor stated, "we discussed the fact that you [the jury]
decide what weight to give mitigating circumstances, whether
or not any mitigating circumstances exist." R. Vol. V, Vol. 33
at 41. Considered as a whole, there is no "reasonable
likelihood" that the jury interpreted the instructions to
require it to find mitigating factors unanimously or beyond a
reasonable doubt. Nothing in the jury instructions rendered Mr.
Davis's trial and sentencing so fundamentally unfair that
habeas relief is required.
C. Mitigating and Aggravating Factors in
Mr. Davis argues that the weighing process
mandated by Colorado's capital sentencing statute, as
reflected in the court's jury instructions, permitted the jury
to return a sentence of death if mitigating and aggravating
factors were of equal weight.
Mr. Davis argued to the Colorado Supreme
Court that the capital sentencing statute impermissibly
authorized a death sentence when the aggravating and
mitigating circumstances were of equal weight. The Colorado
court noted that it had already rejected that very argument in
People v. Tenneson, 788 P.2d 786 (Colo. 1990). Thus,
Colorado's highest court has held that the statute itself does
not permit the imposition of death when the aggravating and
mitigating circumstances are in equipoise. The question
remains whether the instructions in this case permitted such a
While Mr. Davis points to a few selected
places where the instructions refer to mitigating factors "outweighing"
aggravating ones, he neglects to point out the five other
places throughout the jury instructions where the jury was
clearly told that it must find that one or more specified
aggravating factors "outweigh" the mitigating factors.
Furthermore, the prosecutor in his closing
argument reminded the jury that he, representing the people,
bore the "burden of proof as to the weighing process, as to
whether the aggravating factors outweigh the mitigating
factors." R. Vol. V, Vol. 33 at 40. In discussing the law, he
told the jurors they must put mitigating circumstances "into
this equation, and then you determine whether or not the
aggravating circumstances you found beyond a reasonable doubt
outweigh the mitigating circumstances." Id. at 41. In sum,
there can be no doubt the jury knew that it had to find that
aggravating circumstances outweigh mitigating before it could
return a death sentence.
IV. Exclusion of Three Prospective
Mr. Davis's final argument in support of
his habeas petition is that the trial court erroneously
excluded three prospective jurors from the panel because of
their stated qualms about capital punishment. "[A] juror may
not be challenged for cause based on his views about capital
punishment unless those views would prevent or substantially
impair the performance of his duties as a juror in accordance
with his instructions and his oath." Wainwright v. Witt,
469 U.S. 412 , 420 (1985) (quoting Adams v.
Texas, 448 U.S. 38, 45 (1980)). A trial judge's determination
of a potential juror's bias under the Witt/Adams standard is a
factual finding entitled to the presumption of correctness
contained in 28 U.S.C. 2254(d). Witt, 469 U.S. at 428-29; see
also Antwine v. Delo, 54 F.3d 1357, 1369 (8th Cir. 1995), cert.
denied, _____U.S. _____,116 S. Ct. 753, 133 L.Ed.2d 700
(1996). In making a determination as to impartiality, the
trial judge's "predominant function . . . involves credibility
findings whose basis cannot be easily discerned from an
appellate record." Witt, 469 U.S. at 429; see also United
States v. Tipton, 90 F.3d 861, 880 (4th Cir. 1996) ("Because
what is being inquired into is a state of mind whose
determination turns largely on assessments of demeanor and
credibility, matters peculiarly within the province of trial
judges, our review of those determinations is appropriately
Three prospective jurors were excused for
cause: Thelma Wolfe, Michael Bradbury and Abie Olivas. We have
carefully read the entire transcript of the voir dire of each
prospective juror. Although Ms. Wolfe did state that, if under
oath, she would follow the law, in response to more detailed
questioning from the prosecutor and the judge, she stated at
least nine times that she did not believe in the death penalty
and did not think she could impose it on anyone. R. Vol. V,
Vol. 21 at 1085, 1086, 1089, 1090, 1092, 1093, 1097. Mr.
Bradbury similarly responded that he could make various
findings if his oath to follow the law so required it, but he
stated quite clearly at least seven times that he did not
believe in the death penalty and could not impose it on anyone.
R. Vol. IV, Vol. 17 at 222, 223, 225, 226, 232. He even
expressed his disagreement with the Colorado law permitting
the imposition of the death penalty. Id. at 223. Given the
deferential standard with which we review the trial judge's
finding that these two jurors were not impartial, we cannot
say that the court erred in excusing them for cause.
Prospective juror Olivas was also excused
for cause, not because of stated views generally about the
death penalty, but because he stated that his experience with
and his views about alcohol would prevent him from ever
imposing the death penalty in an alcohol-related crime. Mr.
Davis argues that the removal of Mr. Olivas from the jury pool
amounted to the removal of a juror who would consider alcohol
as a mitigating factor. However, Mr. Olivas's views went
further than that:
MR. GRANT: If you hear evidence about him
being under the influence of alcohol, is it a situation where
you're not going to be able to consider whether aggravating
MR. OLIVAS: No, I won't be able to.
MR. GRANT: You won't be able to think about
any aggravating factors, all you have to hear is alcohol as a
mitigating factor and you won't weigh anything against it, you
will automatically vote for life?
Mr. OLIVAS: That's right.
R. Vol. V, Vol. 23 at 1503. Later in his
voir dire, Mr. Olivas reiterated his views:
MR. TRUMAN: If the judge were to instruct
you what the law is concerning alcohol as a mitigating factor,
could you follow the law?
Mr. OLIVAS: Yes, only to a certain extent.
Life in prison, 200 years in prison, but not the death penalty.
MR. TRUMAN: So it's your opinion that if a
man's drinking or drunk when he does something, that he ought
not to get the death penalty?
MR. OLIVAS: That's right, because if
alcohol is involved, I don't think the death penalty.
Id. at 1510. Again, given our deferential
standard for reviewing a trial court finding of bias, we
cannot conclude that the trial court erred in excusing Mr.
For the foregoing reasons, the district
court order denying Mr. Davis's petition for a writ of habeas
corpus is AFFIRMED.
Other courts have been reluctant to apply
the Cronic exception broadly. See, e.g., Scarpa v. Dubois, 38
F.3d 1, 11- 15 (1st Cir. 1994) (discussing cases), cert.
denied, 115 S. Ct. 940 (1995). The Scarpa court described our
decision in Osborn as an "isolated case." Id. at 5; see also
Toomey v. Bunnell, 898 F.2d 741, 744 n.2 (9th Cir.) ("We have
applied the Cronic exception very sparingly."), cert. denied,
498 U.S. 960 (1990).
Officer Reedy Lash, accompanied by Ms.
May's husband, initially stopped the Davises in their car some
four hours after the murder occurred. Officer Lash briefly
questioned the Davises concerning Ms. May, but did not arrest
them at that time. He testified that Mr. Davis did not appear
to be under the influence of alcohol at that time. R. Vol. V,
Vol. 24 at 91- 92. Furthermore, no roadside sobriety tests
were done, and there was therefore no actual evidence at all
concerning Mr. Davis's physical and mental state at or near
the time of the murder. See Davis II, 849 P.2d at 862. This
circumstance renders any argument about whether Mr. Davis was
actually intoxicated or mentally impaired at the time of the
murder purely speculative.
(a) The class 1 felony was committed by a
person under sentence of imprisonment for a class 1, 2, or 3
felony as defined by Colorado law or United States law . . . .
. . .
(d) The defendant intentionally killed a
person kidnapped or being held as a hostage by him or by
anyone associated with him; or
(e) The defendant has been a party to an
agreement to kill another person in furtherance of which a
person has been intentionally killed; or
. . .
(g) The defendant committed a class 1, 2,
or 3 felony and, in the course of or in furtherance of such or
immediate flight therefrom, he intentionally caused the death
of a person other than one of the participants; or
. . .
(j) The defendant committed the offense
in an especially heinous, cruel, or depraved manner; or
(k) The class 1 felony was committed for
the purpose of avoiding or preventing a lawful arrest or
prosecution or effecting an escape from custody. This factor
shall include the intentional killing of a witness to a
Colo. Rev. Stat. Section(s) 16- 11-