In re Davis

188 Wash.2d 356

395 P.3d 998

In the MATTER OF the Personal Restraint of Cecil Emile DAVIS, Petitioner.

No. 89590-2

Supreme Court of Washington.

Filed May 18, 2017

Reconsideration Denied July 20, 2017

Reconsideration Denied November 13, 2017

Roger A. Hunko, Attorney at Law, 13720 W. Raven Ln., Bremerton, WA, 98312, Paula Tuckfield Olson, Law Office of Paula T. Olson, 4020 N. Vassault St., Tacoma, WA, 98407-1106, for Petitioner.

Mark Evans Linquist, Michelle Hyer, Pierce County Prosecutor's Office, 930 Tacoma Ave. S., Rm. 946, Tacoma, WA, 98402-2102, Kathleen Proctor, Pierce County Prosecutor's Office, 930 Tacoma Ave. S., Rm. 946, Tacoma, WA, 98402-2171, for Respondent.

González, J. ¶1 Cecil Emile Davis was sentenced to death for brutally murdering Yoshiko Couch. His direct appeal was unsuccessful. He now challenges his death sentence in a personal restraint petition. He argues that Washington's death penalty system unconstitutionally fails to protect defendants with intellectual disabilities from execution. He also contends our death penalty system is unconstitutional because it does not require a jury to find, beyond a reasonable doubt, that a defendant facing the death penalty does not have an intellectual disability. Finally, he contends his trial counsel was ineffective for failing to offer certain witnesses. We find his arguments unpersuasive and dismiss the petition.

FACTS

¶2 Davis raped, robbed, and killed 65-year-old Couch in her home in 1997. Davis was convicted of aggravated first degree murder and sentenced to death. State v. Davis , 175 Wash.2d 287, 300, 290 P.3d 43 (2012). His first death sentence was set aside for error. Id. (citing In re Pers. Restraint of Davis , 152 Wash.2d 647, 101 P.3d 1 (2004) ). In 2007, the State successfully sought the death penalty again. Id.

¶3 Both Washington law and the United States Constitution prohibit executing anyone who is intellectually disabled. RCW 10.95.030(2), .070(6); U.S. CONST. amend. VIII ; Atkins v. Virginia , 536 U.S. 304, 311-12, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Davis moved to strike the death penalty proceeding on the grounds that the lack of intellectual disability is a fact that should be proved to the jury beyond a reasonable doubt, not found by a judge. The trial judge denied the motion, noting that while intellectual disability was a mitigating factor the defendant could offer to the jury, no case had ever required the State to prove the lack of an intellectual disability to the jury as a prerequisite to a death sentence. The trial judge also excluded video recordings of two of Davis's aunts discussing his childhood and family background on the grounds of hearsay, lack of personal knowledge, relevance, and "because the interviewees were not subject to cross-examination." Davis , 175 Wash.2d at 317, 290 P.3d 43. The aunts were not under oath during the video interviews, but they did sign declarations substantially summarizing their recorded statements. Davis unsuccessfully challenged the exclusion of the videos on direct review.

¶4 At sentencing, Davis's counsel did not argue that Davis was excluded from the death penalty due to an intellectual disability presently or at the time of the murder, but did argue for mercy based on Davis's difficult childhood, early learning deficits and learning disorder, low intelligence, cognitive disorder, major depression with psychotic features, and posttraumatic stress disorder, and mercy itself. The jury rejected Davis's arguments and recommended a death sentence. Id. at 300, 290 P.3d 43.

¶5 After the jury returned its verdict, the trial judge made an independent assessment of whether Davis was intellectually disabled and thus exempt from the death penalty. Largely based on the testimony of medical experts offered at trial, the judge concluded Davis was eligible for the sentence. The judge specifically noted that Davis's intelligence quotient (I.Q.) tests on record ran from 68 to 82, but that "not one single witness testified that the defendant was mentally retarded,^{[1 ]} so there is in fact no substantive evidence of mental retardation." Clerk's Papers (CP) at 1260; Report of Proceedings (RP) (May 8, 2007) at 3100. Davis did not challenge this finding on direct review. Davis , 175 Wash.2d at 374, 290 P.3d 43 (noting that "Davis does not claim he is intellectually disabled or that he was intellectually disabled at the time of the crime"). We affirmed his sentence on appeal. Id. at 300, 290 P.3d 43.

¶6 After our opinion was released, we appointed counsel for Davis's collateral attack against his death sentence and set October 11, 2014, as the deadline for filing his personal restraint petition.

Order Granting Stay of Execution, In re Pers. Restraint of Davis , No. 89590-2 (Wash. Dec. 12, 2013). Meanwhile, the United States Supreme Court found Florida's death penalty system created an unconstitutional risk that persons with intellectual disabilities would be executed. Hall v. Florida , ––– U.S. ––––, 134 S.Ct. 1986, 2000, 188 L.Ed.2d 1007 (2014). Perhaps partially because of Hall , Davis moved for an extension of time to file his personal restraint petition. When the State did not timely respond to Davis's motion under RAP 17.4(e), we granted it. Order, State v. Davis , No. 89590-2 (Wash. Sept. 25, 2014). The next day, the State objected, contending we lacked authority to extend the deadline. The objection was placed in the file without action as untimely. Davis timely filed his opening brief and successfully moved for an order specifying that the court had extended the statutory time limitations.² Order, State v. Davis, No. 89590-2 (Wash. May 19, 2015).

ANALYSIS

1. HALL

¶7 Davis contends that Washington's death penalty system is unconstitutional under the Eighth Amendment, U.S. CONST. amend. VIII. Under the Eighth Amendment, "persons with intellectual disability may not be executed." Hall , 134 S.Ct. at 1992 (citing Atkins , 536 U.S. at 321, 122 S.Ct. 2242 ). After Davis was sentenced to death, the United States Supreme Court found that Florida's death penalty statutes (which are facially similar to our death penalty statutes) unconstitutionally ignored the consensus of the relevant scientific community on the appropriate criteria for intellectual disability and failed to safeguard those with intellectual disabilities from execution. Id. at 2001 (citing FLA. STAT. § 921.137 );³ Cherry v. State , 959 So.2d 702, 711-14 (Fla. 2007), abrogated by Hall , 134 S.Ct. 1986. The Court noted that while "[o]n its face [the Florida] statute could be interpreted consistently with Atkins ," Florida's highest court had interpreted it in an unconstitutional manner that prevented courts from considering "substantial and weighty evidence of intellectual disability." Hall , 134 S.Ct. at 1994. The Court specifically noted that Washington's statute "could [also] be interpreted to provide a bright-line cutoff" for presenting evidence of intellectual disability which would make it unconstitutional under Hall. Id. at 1996 (citing RCW 10.95.030(2)(c) ).

¶8 Following the United States Supreme Court's invitation, Davis argues that RCW 10.95.030(2) creates an unacceptable barrier to proof of intellectual disability that violates the Eighth Amendment's ban on "cruel and unusual punishment." Am. Pers. Restraint Pet. at 10 (Am. Pet.) (citing Atkins , 536 U.S. at 318, 122 S.Ct. 2242 ). Our statute says in relevant part:

In no case, however, shall a person be sentenced to death if the person had an intellectual disability at the time the crime was committed, under the definition of intellectual disability set forth in (a) of this subsection. A diagnosis of intellectual disability shall be documented by a licensed psychiatrist or licensed psychologist designated by the court, who is an expert in the diagnosis and evaluation of intellectual disabilities. The defense must establish an intellectual disability by a preponderance of the evidence and the court must make a finding as to the existence of an intellectual disability.

(a) "Intellectual disability" means the individual has: (i) significantly subaverage general intellectual functioning; (ii) existing concurrently with deficits in adaptive behavior; and (iii) both significantly subaverage general intellectual functioning and deficits in adaptive behavior were manifested during the developmental period.

(b) "General intellectual functioning" means the results obtained by assessment with one or more of the individually administered general intelligence tests developed for the purpose of assessing intellectual functioning.

(c) "Significantly subaverage general intellectual functioning" means intelligence quotient seventy or below.

(d) "Adaptive behavior" means the effectiveness or degree with which individuals meet the standards of personal independence and social responsibility expected for his or her age.

(e) "Developmental period" means the period of time between conception and the eighteenth birthday.

RCW 10.95.030(2).

¶9 While Davis may be correct that our statute could be interpreted to suffer from the same constitutional infirmity found in Hall , he does not show it has been in his case or any other. The trial court did not require Davis to make the sort of threshold showing that his I.Q. was 70 or lower as a prerequisite for offering evidence of intellectual disability that the Hall court found objectionable. Instead, counsel offered considerable evidence that Davis suffered from impaired intellectual capacity. Davis , 175 Wash.2d at 322, 290 P.3d 43 ; RP (May 8, 2007) at 3108. The jury considered this evidence at sentencing, and the trial court considered it separately when considering whether Davis was eligible for the death sentence. Merely because a statute could be interpreted in an unconstitutional manner does not make it unconstitutional.

¶10 Davis also seems to suggest our statutorily mandated review of his death sentence and intellectual ability under RCW 10.95.130 was...