and County of Denver District Court No. 86CR2489 Honorable
Brian Whitney, Judge.
Cynthia H. Coffman, Attorney General, Elizabeth Rohrbough,
Senior Assistant Attorney General, Denver, Colorado, for
A. Samler, Hollis A. Whitson, Alternate Defense Counsel,
Denver, Colorado, for Defendant-Appellant
1 Defendant, Eric Dwight Davis, appeals the district
court's orders denying his Crim. P. 35(c) motion for
postconviction relief. We affirm.
2 In 1986, when Davis was seventeen years old, he and Thomas
McGrath robbed the victim, McGrath's former coworker. The
victim was transporting money to a bank from the restaurant
at which he and McGrath had worked. In the course of the
robbery, the victim was shot and killed.
3 Davis was charged with and convicted by a jury of first
degree murder after deliberation, felony murder, aggravated
robbery, aggravated motor vehicle theft, conspiracy to commit
first degree murder, and conspiracy to commit aggravated
robbery. As required by statute, the trial court sentenced
him to life in the custody of the Department of Corrections
with the possibility of parole after forty years (LWPP-40) on
the murder after deliberation count. Additionally, the trial
court imposed a consecutive sentence of eight years and one
day on the aggravated robbery count. The sentences imposed
for the remaining counts were ordered to run concurrently
with the sentences to life plus eight years and a day.
4 On direct appeal, a division of this court concluded that
the trial court had erred in entering two murder convictions
for the death of the same victim. Thus, the division remanded
to the trial court to merge the felony murder conviction with
the conviction for murder after deliberation. People v.
Davis, (Colo.App. No. 87CA0713, July 6, 1989) (not
published pursuant to C.A.R. 35(f)). In all other respects,
the division affirmed.
5 In 2003, Davis filed a Crim. P. 35(c) motion. The district
court did not rule on that motion, but appointed Davis
counsel at his request. In 2013, Davis filed a second motion
under Crim. P. 35(a) and (c). The 2013 motion, as relevant
here, raised three claims: (1) the trial court erred in
denying Davis's motion to suppress statements made during
police interrogation, a renewal of an argument he first
raised in his 2003 motion; (2) Davis did not validly waive
his right to testify; and (3) Davis's sentence violated
the Eighth Amendment to the United States Constitution.
6 In a series of three orders and following an evidentiary
hearing on Davis's claim regarding his right to testify,
the district court denied Davis's motion. The district
court also denied Davis's request to reconsider one of
Standard of Review
7 The denial of a Crim. P. 35 motion is an issue of law we
review de novo. People v. Davis, 2012 COA 14, ¶
6, 272 P.3d 1167, 1169. To the extent we review the district
court's findings of fact, we defer to those findings
"so long as they are supported by the record."
People v. Stovall, 2012 COA 7M, ¶ 18, 284 P.3d
8 With respect to the constitutional arguments raised in
Davis's Crim. P. 35(c) motion, "we address the
claims using the same standards that would have applied had
the issues been raised on direct appeal." Dunlap v.
People, 173 P.3d 1054, 1062 (Colo. 2007), as
modified on denial of reh'g (July 2, 2007).
9 At the outset, we note that Davis contends, the People
concede, and we agree that the district court erred in
concluding that any of his claims were procedurally barred by
Crim. P. 35(c)(3)(VII) because Davis could have raised them
on direct appeal. When Davis filed his motion in 2003, that
section had not yet been added to Crim. P. 35(c). See
Dunlap, 173 P.3d at 1062 n.4. Therefore, that provision
does not bar his claim, and we review his contention on the
Motion to Suppress
10 Davis contends that the trial court violated his
constitutional rights when it denied his motion to suppress
statements he made during police interrogation. We perceive
no basis for reversal.
11 Davis was arrested in Miami, Florida, about two weeks
after the murder. A Miami detective advised him of his rights
under Miranda v. Arizona, 384 U.S. 436 (1966), which
he waived. During the subsequent interrogation, Davis
maintained that he had not been at the scene of the murder
and did not know that the victim had been killed. Instead, he
averred that McGrath had come to a hotel at which Davis was
staying and the two had decided to move to Miami to start a
business. Davis admitted that he and McGrath had attempted to
rob the victim about a week before the murder, but stated
that he had changed his mind and did not go through with the
plan. Before the Miami detective audio recorded any of
Davis's statements, Davis asked to speak to a lawyer. The
Miami detective stopped the interrogation following that
12 A week later, Davis was transferred to the Denver jail. A
Denver detective went to the jail to speak with Davis. The
detective did not know that Davis had invoked his right to
counsel while speaking with the Miami detective.
13 When the Denver detective arrived at Davis's cell,
Davis "indicated that he had been involved with quite a
number of different detectives and police personnel" and
wanted to clarify the Denver detective's role. After the
detective confirmed that he was leading the homicide
investigation, Davis asked whether McGrath had been arrested.
The detective told Davis that McGrath had been arrested and
had given a video-recorded statement. After Davis asked what
McGrath had said, the Denver detective responded that he
could not discuss the case until they reached the Denver
Police Department. Davis then indicated that he wanted to
"tell . . . his side of the story."
14 After they arrived at the police headquarters, the
detective advised Davis of his Miranda rights, which
he waived. Davis then made video-recorded statements. He once
again denied any involvement in the murder, but admitted
stealing the car the shooters were seen driving (as well as
other cars) and helping McGrath buy the murder weapon.
15 Davis moved to suppress the statements made to the Denver
detective, arguing that the Denver detective had violated his
right to counsel by continuing the interrogation after he
asked for an attorney. Following a suppression hearing, the
trial court denied the motion. The trial court found that the
statements were admissible because Davis had voluntarily
reinitiated the interrogation by asking the Denver detective
whether McGrath had been arrested. The video of his
interrogation with the Denver detective was played to the
jury at trial, and both the Miami and Denver detectives
16 With respect to this issue, the district court denied
Davis's postconviction claim on procedural grounds
because Davis could have raised the suppression issue on
direct appeal. See Crim. P. 35(c)(3)(VII). Thus, the
district court did not address the claim on the merits.
Standard of Review
17 In considering a trial court's ruling on a motion to
suppress, we review questions of law de novo but defer to its
findings of fact. People v. Bradshaw, 156 P.3d 452,
455 (Colo. 2007).
18 We review preserved errors of constitutional dimension for
constitutional harmless error. Hagos v. People, 2012
CO 63, ¶ 11, 288 P.3d 116, 119. Under that standard, we
will not reverse if the error was harmless beyond a
reasonable doubt. Id. In assessing whether the
erroneous admission of a defendant's statement was
harmless, "an appellate court should consider a number
of factors, including the importance of the statements to the
prosecution's case, whether the statements were
cumulative, and the overall strength of the prosecution's
case." People v. Melanson, 937 P.2d 826, 833
19 The Fifth Amendment privilege against self-incrimination
includes the right to have counsel present during custodial
interrogation. Miranda, 384 U.S. at 470; see
also People v. Redgebol, 184 P.3d 86, 99 (Colo. 2008).
When a suspect unequivocally and unambiguously invokes his or
her right to counsel during interrogation, the police must
scrupulously honor that request and cease all interrogation
until the suspect has consulted with counsel or voluntarily
reinitiates communication with the police. See Edwards v.
Arizona, 451 U.S. 477, 484-85 (1981); see also
Redgebol, 184 P.3d at 99; Bradshaw, 156 P.3d at
20 For a suspect to reinitiate communication, he or she must
"evince a willingness and a desire for a generalized
discussion about the investigation." Oregon v.
Bradshaw, 462 U.S. 1039, 1045-46 (1983). In contrast,
the suspect's comment or question cannot constitute
"merely a necessary inquiry arising out of the incidents
of the custodial relationship." Id. at 1046.
21 Davis contends that his constitutional rights under the
Fifth Amendment were violated by the admission of his
statements to the Denver detective.
22 Even if we assume that the trial court erred in admitting
Davis's statements to the Denver detective, we conclude
that any error was harmless beyond a reasonable doubt for the
23 First, Davis does not challenge the admissibility of his
statements to the Miami detective. The statements to the
Denver detective were partially duplicative of his statements
made to the Miami detective. To the extent the statements
overlapped, any error in admitting the Denver statements was
harmless beyond a reasonable doubt because the Miami
statements were admissible in any event.
24 Second, the statements were exculpatory as to the most
serious offenses. While Davis admitted to stealing the Camaro
the shooters were seen driving and attempting to rob the
victim a week before the shooting, he consistently denied any
involvement in the murder.
25 Third, as the People contend, the evidence against Davis
on all of the charges was overwhelming. According to an
eyewitness's testimony, two men were riding in a blue
Camaro on the morning of October 27, 1986. They drove next to
the victim's car, a white Corvette. Shots were fired from
the passenger side of the Camaro toward the driver of the
Corvette. After the Corvette came to a stop, the man in the
passenger side of the Camaro ran to the Corvette, leaned into
the car, and ran back to the Camaro. The eyewitness
identified Davis as the Camaro passenger. A second eyewitness
also identified Davis as the man who had run from the
Corvette to the Camaro after the shooting.
26 The People also presented testimony from patrons of a
fitness center. Those witnesses' testimony tended to show
that McGrath and a friend matching Davis's description
had stolen the blue Camaro from the fitness center parking
lot a week before the murder. Further, numerous witnesses
testified that they had seen Davis and sometimes McGrath
driving the stolen Camaro. A witness testified that, shortly
after the murder, he saw McGrath throw an object into the
Platte River from the passenger side of a dark vehicle. The
object was later confirmed to be the pistol that had been
used as the murder weapon.
27 Additionally, a former classmate of Davis testified that,
about an hour after the murder, she saw Davis and McGrath at
Stapleton Airport, where the witness worked as a ticket
counter agent. Davis showed the former classmate a wad of
cash in his pocket, asked for a ticket to Miami, and said
that he and McGrath needed to leave Colorado quickly. The
People also called two witnesses with whom Davis had stayed
in Miami before his arrest. Both witnesses said that Davis
told them he had killed someone. The first witness
acknowledged that immediately after Davis admitted committing
the murder, he changed his statement and said that his friend
had killed someone.
28 Moreover, the defense stipulated to several key pieces of
evidence. The parties stipulated that Davis had used a
borrowed driver's license to purchase the murder weapon
two days before the murder. They also stipulated that
Davis's fingerprints were found in the blue Camaro,
though the ...