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People v. Davis

Court of Appeals of Colorado, First Division

August 9, 2018

The People of the State of Colorado, Plaintiff-Appellee,
Eric Dwight Davis, Defendant-Appellant.

          City 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 Plaintiff-Appellee

          Eric A. Samler, Hollis A. Whitson, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant


          TAUBMAN, JUDGE.

         ¶ 1 Defendant, Eric Dwight Davis, appeals the district court's orders denying his Crim. P. 35(c) motion for postconviction relief. We affirm.

         I. Background

         ¶ 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.[1] 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).[2] 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 those orders.

         II. 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 151, 155.

         ¶ 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 merits.

         III. 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.

         A. Additional Facts

         ¶ 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 request.

         ¶ 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 testified.

         ¶ 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.

         B. 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 (Colo.App. 1996).

         C. Applicable Law

         ¶ 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 457.

         ¶ 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.

         D. Analysis

         ¶ 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 following reasons.

         ¶ 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 ...

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