DAVIS (GARY WAYNE) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: OCTOBER 10, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
GARY WAYNE DAVIS
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DENISE CLAYTON, JUDGE
ACTION NO. 00-CR-002734
COMMONWEALTH OF KENTUCKY
** ** ** ** **
BEFORE: MOORE AND THOMPSON, JUDGES; HENRY,1 SENIOR JUDGE.
HENRY, SENIOR JUDGE: Gary Wayne Davis appeals from an Opinion and
Order of the Jefferson Circuit Court denying his motion for post-conviction relief
pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. Davis was
convicted of murder and sentenced to 60 years’ imprisonment. He contends that
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
he is entitled to relief from the conviction and sentence based upon the
Commonwealth’s failure to disclose exculpatory material as required by Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and because he
received ineffective assistance of counsel in connection with his murder trial. For
the reasons stated below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
James Edwin Cox was shot and killed at approximately 6:30 p.m. on
November 13, 1998, while standing in front of his residence on Thomas Grove
Road in Jefferson County, Kentucky.2 Immediately prior to the murder, Cox was
talking to his brother on his cellular telephone. During that conversation, Cox told
his brother that a vehicle was driving slowly up and down his street, and that he
was going to see what the driver wanted. Cox then terminated the telephone call.
Shortly thereafter, Cox was found dead with seven gunshot wounds. At the time of
his murder, Christina Levy, Davis’s ex-wife, resided with Cox. Levy was in North
Carolina when the murder occurred.
Robert Rice, Cox’s next-door neighbor, partially witnessed the
murder. He heard a loud noise and went to a window to see what had happened.
He saw a thin person entering a pickup truck in Cox's driveway. The person
backed the truck out of the driveway and parked it on the grass in front of the fence
separating the Rice and Cox properties. Rice noticed Cox lying on the grass in
front of the truck propped up on his elbow with his head hanging down. The
The factual and procedural background section is adopted in part from Justice Cooper’s
narrative in Davis v. Commonwealth, 147 S.W.3d 709 (Ky. 2004).
person exited the truck and shot Cox in the head, causing him to fall completely to
the ground. The shooter next shot Cox in the buttocks. Rice heard a total of four
to five shots, saw the truck back up toward the body, and then heard the truck's
tailgate drop. Because he later observed the body lying in a different position than
when he had seen it from the window, Rice surmised that the shooter had
unsuccessfully attempted to load the body into the pickup truck. Rice could not
determine with certainty the race or gender of the shooter, or the color, make, or
model of the truck, except that the truck was dark in color.
The police suspected Davis of Cox’s murder because of Cox’s
relationship with Levy, who had divorced Davis seven months before the murder.
The police interviewed Davis three times regarding his relationship with Levy and
his activities on the day of the murder. Davis did not testify at trial. However, the
officers who had interviewed him recounted his alibi, and one of the statements
that had been audiotape was played for the jury.
In his statements to police, Davis described his activities on
November 13, 1998, as follows: Sometime between 5:00 and 6:00 p.m., he took
his vehicle to a nearby Michel Tires store to purchase new tires. Because the tire
store needed to keep his car overnight, he rented a dark blue extended-cab pickup
truck from Enterprise Rent-A-Car. Davis claimed that he planned to use the truck
for weekend travel with friends. He left Enterprise at about 6:00 p.m., returned
home to get some exercise gear, and arrived at the gym between 6:30 and 7:00
p.m. He left the gym at approximately 8:00 p.m. Upon remembering that his
sister's birthday party was that weekend, he decided to cancel his travel plans and
returned the rental truck to Enterprise. After returning home again, he drove to his
place of employment, Caesar's casino in Indiana, where he worked from 8:45 p.m.
until approximately 5:00 a.m. the next morning.
Documentation from Enterprise and Michel Tires indicated that Davis
rented the truck at 4:23 p.m. (not 6:00 p.m. as claimed by Davis), and took his car
to Michel Tires at 5:00 p.m. A former Michel Tires employee testified that the tire
store routinely finished tire-changing jobs in about forty-five minutes, and that the
work order indicated a probable finishing time of 6:00 p.m. Further, the Enterprise
employee testified that Enterprise normally closed for business at 7:00 p.m. and
that the truck was returned at approximately 7:15 p.m., not 8:00 p.m. Enterprise
records showed that Davis had driven the rental truck a total of 34 miles.
Commonwealth’s detectives who drove the route that Davis described to police
(from Enterprise to his apartment, to the gym, then back to Enterprise), measured
the total distance at 11.9 miles; however, when combined with an additional 22
miles to and from the murder scene, the hypothetical route totaled 33.9 miles.
The Commonwealth also cast doubt on Davis’s claimed innocence by
focusing on his behavior in the days and weeks following Cox’s murder. Allen
Hall, the Enterprise employee who rented the truck to Appellant, testified that he
took an imprint of Davis’s credit card, intending to charge the rental fee to Davis’s
credit card company the next day. Davis, however, called Hall the next morning
and informed him that he had decided to pay in cash. Later that day, Davis went to
Enterprise, paid the rental fee in cash and had the credit transaction voided. Davis
returned to Enterprise a few weeks later and attempted to “refresh” Hall’s memory
regarding the following matters: (1) that he had first requested a black Jeep
Cherokee automobile instead of a truck; (2) that he had wanted to pay in cash from
the beginning; (3) that he had parked his company van at a lot across the street
from the rental agency and placed a for-sale sign on it; and (4) that he returned the
rental truck on the way home from the gym. Davis informed Hall that it was
extremely important for him to remember what he had just been told “for reasons
that he couldn’t get into.” Before leaving, he gave Hall some coupons for use at
Caesar’s casino. Almost immediately after Davis left, police officers arrived at
Enterprise to question Hall about the rental transaction.
On December 20, 2000, Davis was indicted upon the charges of
murdering Cox, Kentucky Revised Statutes (KRS) 507.020, and of tampering with
physical evidence, KRS 524.100 (for attempting to dispose of Cox’s body).
Following a trial, Davis was convicted of both charges and was sentenced to
concurrent prison terms of fifty years for murder and five years for tampering with
Following Davis’s conviction, his attorney submitted an open records
request for the police files relating to his case. Paralegals researching the files
discovered various documents which were not included in the voluminous
discovery disclosures provided to the defense prior to trial. Davis concluded that
the Commonwealth’s failure to turn over these documents was a violation of Brady
On February 14, 2006, Davis filed a motion for post-conviction relief
pursuant to RCr 11.42. Davis contended that he is entitled to relief based upon
undisclosed Brady material and because he received ineffective assistance of
counsel in connection with his trial. Following an evidentiary hearing, on October
24, 2007, the trial court entered an order denying his motion for post-conviction
relief. This appeal followed.
Davis contends that the Commonwealth violated the exculpatory
evidence disclosure requirements contained in Brady v. Maryland by failing to
give the defense (1) a handwritten statement prepared by Christina Levy; (2) notes
prepared by Detective Sergeant Michael Doughty critiquing the Levy statement;
(3) a letter from Christina to Detective Eddie Robinson; (4) a letter from Levy to
Davis; and (5) police notes and memos concerning the investigation.
Standard of Review
In Brady v. Maryland, the United States Supreme Court held that “the
suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at
87, 83 S.Ct. at 1196-97. In order to prevent a due process violation, Brady requires
the prosecution to provide the defense with all evidence, whether requested or not,
that is material either to the defendant's guilt or punishment. U.S. v. Agurs, 427
U.S. 97, 106-07, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976).
Under the Brady doctrine, evidence is material “if there is a
reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.” Kyles v. Whitley, 514 U.S.
419, 433-34, 115 S.Ct. 1555, 1565, 131 L.Ed.2d 490 (1995); United States v.
Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). A
“reasonable probability” may be defined as “a probability sufficient to undermine
confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 694, 104
S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). Thus, reversal based on a Brady
violation is only justified by an appellate court if such a reasonable probability
exists. Bowling v. Commonwealth, 80 S.W.3d 405, 410 (Ky. 2002).
The duty to disclose exculpatory evidence is applicable regardless of
whether or not there has been a request by the accused, Agurs, 427 U.S. at 107, 96
S.Ct. at 2399, and the duty to disclose encompasses impeachment as well as other
exculpatory evidence. Bagley, 473 U.S. at 676, 105 S.Ct. at 3380. Brady only
applies to information “which had been known to the prosecution but unknown to
the defense.” Agurs, 427 U.S. at 103, 96 S.Ct. at 2397.
We review de novo the question of whether disclosure of the
particular material at issue is required by Brady. United States v. Corrado, 227
F.3d 528, 538 (6th Cir. 2000); Commonwealth v. Bussell, 226 S.W.3d 96, 100 (Ky.
Levy Handwritten Statement/Doughty Notes
In connection with their investigation, police sought to better
understand the background of the relationship between Davis and Levy. To this
end, Levy prepared a 41 page handwritten narrative tracing their relationship from
the time they first met at Crosby Middle School in 1976. The narrative moved
forward from then, through their college years at UK when they first began dating,
through her first marriage, through her marriage and breakup with Davis, on
through the months following their divorce, and concluded with their final contact
a few months prior to the murder. The narrative described the course of their
relationship in detail, including details of their sex life. Most importantly,
however, the narrative described signs of Davis’s jealousy in matters involving her,
particular instances of his violence toward her, his spying on her, and his overall
obsessions with her from the time they were in Middle School when he would
secretly follow her home from school.
Upon Levy’s completion of the narrative and submission to police
investigators, it was reviewed by Detective Mike Doughty. In connection with his
review of the narrative, Doughty made 19 pages of notes. The notes consist
primarily of questions regarding the narrative, and it appears that Doughty, or
someone else, later discussed the narrative with Christina and added her answers to
those questions on the notes. More specifically, the notes contain such comments
as “Why did you remember [feeling] odd about Gary knowing anything about
you?”; “Needs elaboration – why?? – His response & actions!!”; “How did we get
to this – must be more in between.”; “Why did you yell at him?? Elaborate.
Psychically connected.”; “I’m lost in time!!”; “Anger – needs elaboration.”
(Emphasis in original).
Doughty testified that while he did not specifically recollect making
the notes, they reflected his usual work method and were made simply in an effort
to better understand the subject matter of the narrative (the background of the
relationship between Davis and Levy) by noting points and areas that needed
clarification and elaboration and for questioning during his subsequent follow-up
with the witness. As further discussed below, however, Davis interprets the notes
as evidence that Doughty undertook to coach Levy in developing a more
prejudicial narrative of her and Davis’s relationship.
After discussing the initial version with Doughty, Christina produced
a 14 page typewritten version of her narrative. The handwritten version clearly
provided the foundation for the later version, but is more detailed and appears to
have incorporated to some extent Doughty’s ideas concerning areas that needed
clarification and expansion. The typewritten narrative was provided to Davis in
discovery and the prior bad acts contained therein were the basis for a Kentucky
Rules of Evidence (KRE) 404 motion by the Commonwealth requesting leave to
introduce evidence of those acts at trial. The trial court granted the motion, and
thus the material contained in the narrative served as the foundation for Levy’s trial
testimony, and several episodes of Davis’s jealous and violent conduct were
presented to the jury. A discussion concerning the admissibility of this material
comprised the majority of the opinion on direct appeal. See Davis v.
Commonwealth, 147 S.W.3d 709, 715-27 (Ky. 2004).
In summary, Davis contends that the Commonwealth’s failure to turn
over the original narrative together with the notes Doughty made in reviewing it,
prejudiced his defense in several ways. He claims that he was deprived of the
opportunity to impeach Levy’s testimony by showing the extent of her coaching by
Doughty; that he was unable to show the jury that the use of such inflammatory
terms as “stalking” were not in the original version; and that he was denied the
ability to demonstrate that Levy’s final narrative “was the result of a long and
personal collaborative effort with the police.”
Davis’s theory that the Doughty notes reflect that he “coached” Levy
was refuted by both Levy and Doughty at the evidentiary hearing. While Levy did
not have specific recollections concerning the events, she generally recalled
drafting the original narrative, meeting with Doughty to discuss it, and producing
the final version. As relevant to this argument, Levy described her interaction with
Doughty as reflective of his efforts to understand her relationship with Davis. She
denied that she was coached by Doughty in formulating her final version of the
narrative. Doughty likewise did not recall preparing the notes, but testified that
they were not made for the purpose of influencing Levy’s testimony and that he in
fact did not undertake to do so.
Further, an examination of the Doughty notes reflects that the entries
are consistent with the type of questions that would be jotted down for later
clarification, and, moreover, it appears that answers to those questions were later
added to the notes, presumably upon consultation with Levy on the matter of the
In addition, Davis, in his statements to police, admitted to many of the
episodes contained in Levy’s narrative, and the material contained in the
handwritten version was substantially, if not entirely, incorporated into the
typewritten version. When this is coupled with the explanation given for the
handwritten narrative and the Doughty notes, the impeachment value of the
undisclosed material is highly questionable. Even if defense counsel had
possessed the original narrative and Doughty’s notes prior to trial, there is not a
reasonable probability that any impeachment of witnesses based upon the material
would have affected the outcome of the trial.
Regarding the discovery of the Doughty notes, we further note that
RCr 7.24(2) provides as follows:
(2) On motion of a defendant the court may order the
attorney for the Commonwealth to permit the defendant
to inspect and copy or photograph books, papers,
documents or tangible objects, or copies or portions
thereof, that are in the possession, custody or control of
the Commonwealth, upon a showing that the items
sought may be material to the preparation of the defense
and that the request is reasonable. This provision
authorizes pretrial discovery and inspection of official
police reports, but not of memoranda, or other documents
made by police officers and agents of the Commonwealth
in connection with the investigation or prosecution of the
case, or of statements made to them by witnesses or by
prospective witnesses (other than the defendant).
Under the above provisions, it is questionable whether the
Commonwealth had a duty to produce the Doughty notes.
Levy Letter to Robinson
Davis contends that the Commonwealth committed a Brady violation
by failing to disclose a five-page letter Levy wrote to lead detective Eddie
Robinson during the course of the investigation.
The principal topic of the letter is Levy’s rejection of a police
proposal that she attempt to engage in a personal meeting with Davis, presumably
in an attempt to obtain incriminating admissions. The letter also describes her
“endless hours” “day after day” cooperating with the police efforts to solve Cox’s
murder; her efforts to tape record phone calls with Davis at her own expense; and
her efforts in “begging for something I could do [to assist the police].” Levy also
addresses Detective Robinson as “Eddie” in the correspondence.
Davis alleges that the letter is exculpatory because “its tone and its
contents would have provided valuable insight for trial counsel and the jury into
Levy’s role in the investigation and prosecution of Appellant, as well as important
background into other aspects of the investigation.” He further states that “[t]he
letter  reflects the unusually close working relationship between Levy and
Detective Robinson [and] . . . . the intensity and secrecy of the efforts Levy made
to work undercover in other ways with the detectives to convict Appellant.”
At the evidentiary hearing both Levy and Robinson testified
concerning the letter. They characterized the “tone” of the letter as reflecting
nothing more than that Levy felt “comfortable” and “safe” with Robinson and that
they never became friends. In light of this explanation, we are unpersuaded that
Levy’s addressing of Detective Robinson by his first name was, if disclosed to the
jury, of sufficient significance to have resulted in a reasonable probability that the
outcome of the trial would have been changed.
As to the second point – the letter’s disclosure of Levy’s eagerness to
aid the police – we likewise do not believe it of sufficient weight to have changed
the outcome of the trial if the information had been disclosed to trial counsel prior
to the trial. Levy’s credibility was otherwise impeached on cross-examination by
trial counsel’s characterization of her as a liar, a stripper, and a prostitute. And,
moreover, it was self-evident that Levy was a cooperating witness asserting a
motive for Davis to have killed Cox. In light of the foregoing, we do not believe
that the letter’s disclosure of Levy’s willingness to cooperate with the police, if it
had been available to impeach her, would have resulted in a reasonable probability
that the outcome of the trial would have been different.
Levy Letter to Davis
Davis contends that an undisclosed letter written by Levy to Davis
violated Brady. The undated and unsent letter expresses that Levy has been trying
to reach Davis and misses him. The letter states as follows:
I’ve tried several times to reach you but I guess you’re
very busy. I’ve just been wondering how you are and
what you’re up to.
I’m doing okay. Life is pretty weird right now. I’ve
been staying with friends and family all over – I haven’t
been able to settle anywhere yet. I guess I’m just not
really sure what to do right now.
Enough of that, I hope all is well with you! I’ve thought
about you a lot lately and I know you are probably still
angry with me. I just miss talking to you & hanging out
(watching Mad About You).
I never know where I’ll be from day to day so I have a
P.O. Box to get my mail. I’d love to hear from you if
you feel like writing. Take care of yourself – I miss you.
Davis argues that the letter is exculpatory because it could have been
used to impeach the Commonwealth’s theory that Levy was afraid of Davis, didn’t
want to see him, and that his intentions toward her were stalker-like and
The undated letter remains attached in the spiral notebook in which it
was written, and so obviously it was never actually sent to Davis. At the
evidentiary hearing Levy testified that she did not recall the circumstances
surrounding her composition of the letter. She testified that it probably was drafted
in connection with the plan to establish contact with Davis in hopes of extracting
incriminating statements from him, a plan which was never carried out. As such, if
the letter had been available at trial, it would have been useful as neither
exculpatory information nor potent impeachment material.
Thus, contrary to Davis’s argument, the unsent letter would not have
provided effective impeachment of the Commonwealth’s theory that Levy was
afraid of Davis, did not want to see him, and that his intentions toward her were
stalker-like and unreciprocated. The pretrial disclosure of the letter would not have
resulted in a reasonable probability that the outcome of the trial would have been
Police Notes and Memos
Davis contends that the Commonwealth violated Brady and RCr 7.26
by failing to turn over (1) notes written by Detective Robinson relating to the
discovery of a bullet by car rental employee Kenneth McClain in the wash bay
after he cleaned Davis’s rental vehicle the day following Cox’s murder and (2) a
“memo to file” prepared by Robinson describing a telephone call he had with Levy
in which Levy told him about a telephone conversation she had had with a private
investigator hired by the Cox family.
Among the items turned over in the open records request but not
provided during discovery were several pages of notes prepared by Detective
Robinson relating to the investigation. Specifically, we are directed to the
following entry in the notes:
* March 24, 1999
- Informed by Mike Hammond of McClain finding bullet.
* May 14, 1999
- Kenneth McClain oral 1400-1420
Davis contends that this note undermines the Commonwealth’s theory
that the bullet was found the day after the murder. He argues that
[i]t is unlikely, given the comprehensive nature of this
investigation, that, if a bullet had been found the morning
after the murder, it wouldn’t have been reported for four
(4) months, or investigated for six (6) months. It is
apparent that McClain almost certainly did not find a
bullet the morning after the murder when he cleaned
First, we disagree with Davis’s characterization of the exculpatory
nature of this evidence. While it is notable that it took the police so long to
uncover this information, the delay does not establish, as Davis claims, that
“McClain almost certainly did not find a bullet the morning after the murder when
he cleaned Appellant’s truck.”
Although Robinson’s notes were not produced, reports documenting
his interviews with Hammond and McClain, including their dates and subject
matter, were contained in the discovery materials which were turned over.
At page 795 of the record on appeal is a report prepared by Detective
Robinson describing his interview with Mike Hammond, Enterprise Rental Cleanup Manager, which took place on March 24, 1999. In the report Robinson
documents that Hammond told him about the McClain’s discovery of the bullet.
Similarly, at page 457 of the record is a report of Robinson’s May 14, 1999,
interview with McClain in which McClain describes his discovery of the bullet.
In summary, the entry relating to events surrounding the discovery of
the bullet in the undisclosed notes was otherwise contained in the discovery
provided by the Commonwealth. Accordingly, Davis is not entitled to relief upon
the grounds that the Commonwealth failed to provide Detective Robinson’s notes.
Detective Robinson’s undisclosed “Memo to File” concerns a phone
call he received from Levy in which she describes telephone conversations with
the victim’s brother Carl Cox and Larry Ogle, a private investigator hired by the
Cox family, as follows:
Christina said Carl asked if she would talk to Mr. Ogle
about the case and she agreed to do so. Carl immediately
put Mr. Ogle on the phone and he began asking her
questions, which were not relevant to the investigation.
She said he was very rude and accusatory, warning her
that he would get the police files and would find out if
she was being untruthful. She said he asked if he could
get her phone number so that he could contact her if he
needed to ask her additional questions. She told him that
she didn’t want anyone to know how to find her because
she was afraid for her safety. After hanging up, Mr. Ogle
called her back to let her know that it wasn’t that difficult
to find out how to contact her.
Christina said that she called to make me aware that a
private investigator had been hired and to advise us that
he had asked some bizarre questions that were not
pertinent to the investigation. This information was
relayed to Sgt. Tullock, Lt. Wesley and Joe Gutman [the
Assistant Commonwealth’s Attorney who was
prosecuting the case]. Based on this information, it was
decided that no further contact with Mr. Cox or Mr. Ogle
would be advisable to protect the integrity of the
Davis argues that:
[t]his memo describes the decision by police to cease
contact with a representative of the victim’s family
because the family hired a private investigator who was
investigating leads (including perhaps Levy herself) that
were different from those being followed by the police.
This important information was not produced to
Appellant’s trial counsel and as a result his ability to
explore, present evidence and cross-examine witnesses
about those other suspicions and investigative efforts
were denied, in violation of Brady and RCr 7.26.
From the above quoted text it is self-evident that the disclosure of the
memo would not have resulted in a reasonable probability that the outcome of the
trial would have been different. The memo reflects that Levy informed Robinson
that Ogle questioned Levy in a rude and hostile manner and asked “bizarre”
questions, and that in Robinson’s professional judgment his attitude posed a threat
to the integrity of the investigation. We further note that Carl had already been
interviewed regarding his knowledge of the events and, indeed, had expressed
suspicions that Levy may be involved.
Robinson’s decision to avoid the involvement of Ogle in the
investigation reflects a reasonable decision to avoid outside interference by Ogle,
and the information is neither exculpatory nor does it provide productive
impeachment material. There is not a reasonable probability that the outcome of
the trial would have been different if the memo had been disclosed. As such,
Davis is not entitled to relief based upon the Commonwealth’s failure to disclose
INEFFECTIVE ASSISTANCE OF COUNSEL
Davis contends that he received ineffective assistance of counsel on
the basis that trial counsel (1) failed to consult with experts concerning tire tread
analysis and computer file analysis; (2) failed to adequately impeach
Commonwealth’s witness Kenneth McClain, who testified that he found a bullet in
the wash bay the day after the murder when he cleaned the vehicle Davis had
rented; and (3) for failing to present mitigation evidence in the penalty phase of the
Standard of Review
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984), the United States Supreme Court set forth the standard
governing review of claims of ineffective assistance of counsel. Under this
standard, a party asserting such a claim is required to show: (1) that trial counsel's
performance was deficient in that it fell outside the range of professionally
competent assistance; and (2) that the deficiency was prejudicial because there is a
reasonable probability that the outcome would have been different but for counsel's
performance. Id. at 687. This standard was adopted by the Kentucky Supreme
Court in Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985).
A reviewing court must entertain a strong presumption that counsel's
challenged conduct falls within the range of reasonable professional assistance.
Strickland, 466 U.S. at 688-90. The defendant bears the burden of overcoming this
strong presumption by identifying specific acts or omissions that he alleges
constitute a constitutionally deficient performance. Id. at 690. The relevant inquiry
is whether there is 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. Id.
Failure to Retain Experts
Davis contends that he received ineffective assistance of counsel
because trial counsel failed to retain a tire tread expert to rebut the tire tread
testimony of Commonwealth witnesses William T. Bodziak and Detective James
Leisch, and a computer expert to refute the Commonwealth’s forensic computer
analysis evidence presented by Detective Huber.
At the evidentiary hearing, trial counsel testified that he had contacted
two tire tread experts, but that they could offer no testimony contradicting the
Commonwealth’s expert. In substance, the Commonwealth’s tire tread expert
testified that the tires on the truck Davis rented the night of the murder could not
be eliminated as having created the tire tracks discovered at the crime scene, but
that there were over a million tires in the country which would likewise fit the
profile. Thus, the evidence was not particularly inculpatory, and trial counsel
testified that he saw no need to hire an expert to testify to the same thing the
Commonwealth’s expert opined. Accordingly, this was a reasonable trial strategy,
and calling an expert who simply agreed with the Commonwealth’s expert would
not have resulted in a reasonable probability that the outcome of the trial would
have been different.
The Commonwealth’s computer expert testified concerning
techniques for recovering information concerning past internet searches which had
been executed on Davis’s computers. Davis did call a computer expert – a friend
of his – and trial counsel testified that Davis had agreed to use him as his computer
expert witness. Davis has identified no shortcomings in his expert’s testimony or
any expert who could have done better, or what any other expert could have
testified to which would have affected the outcome of the trial. Thus, Davis has
failed to demonstrate that there is a reasonable probability that the outcome of the
trial would have been different if trial counsel had called an alternative expert.
Further, Davis does not allege specific facts illuminating how such
experts could have aided in his defense, what their expected testimony would have
been, or even if there are any such experts who would have testified favorably to
his defense. He called no expert witnesses at the evidentiary hearing to present
theories in contravention to the testimony presented at trial. As such, the
prejudicial effect of trial counsel’s failure to call tire and computer experts is
purely speculative, and Davis has failed to meet his burden under the second prong
Impeachment of McClain
Davis contends that trial counsel provided ineffective assistance by
failing to impeach Kenneth McClain (the worker who found a bullet in the wash
bay the day following the murder after cleaning Davis’s rental truck) with evidence
obtained by the defense’s private investigator, William Cravens. In the course of
his investigation Cravens interviewed McClain and reported to trial counsel that
McClain had told him that during his interview with the police that he felt that they
were trying to get him to say what they wanted to hear. McClain also told Cravens
that the bullet he found was larger than a 9 mm, whereas at trial McClain testified
that the bullet was the same size as a 9 mm. Davis argues that trial counsel
provided ineffective assistance by failing to call Cravens because the foregoing
“would have shed a different light on the alleged bullet and its discovery.”
Cravens was called as a witness at trial and testified regarding such
issues as how the mileage Davis put on his rental truck the day of the murder
comported with the Commonwealth’s theory of the case. Trial counsel testified
that he did not have Cravens testify concerning his interview with McClain
because upon cross-examination McClain admitted that the police pressured him
and testified that the bullet he found did not look like the 9 mm bullets used to
murder Cox, either in size or color. Trial counsel testified that McClain “selfimpeached,” and that he had no need to question Cravens regarding McClain
because McClain testified consistently with what he had told the investigator. In
other words, there were no prior inconsistent statements made by McClain to
Because of the difficulties inherent in making a fair assessment of
a court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances,
the challenged action “might be considered sound trial
Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
In summary, McClain himself testified to the very points raised by
Davis in this argument. As such, it was a reasonable trial strategy for trial counsel
not to have questioned Cravens regarding McClain, and there is not a reasonable
probability that the outcome of the trial would have been different if he had.
Finally, Davis contends that he received ineffective assistance because
trial counsel failed to investigate, prepare, or present a case in mitigation during the
penalty phase of the trial. During the sentencing phase, trial counsel called no
witnesses and limited his closing argument to a five-minute summary of witness
testimony from the guilt phase. Davis notes that trial counsel stated that the case
arose from Davis and Levy’s divorce – which always brings out the “ugliest” in
In his affidavit in support of his RCr 11.42 motion Davis identified
the following as evidence which should have been presented in mitigation during
the penalty phase of the trial:
8. . . . I attended the University of Kentucky and
received a B.B.A. in marketing and B.S. in accounting. I
was a member, and board member, of the Louisville
Thoroughbred Chorus and Louisville Time Chorus, of
which I was a charter member and its 1996 Man of the
Year. I was a vocal instructor and choreographer. I was
a lifelong member of Hurstborne Baptist Church, sang in
that choir and did volunteer work. I became a member of
the Middletown Christian Church in 1999 and was active
there as well. I am extremely close with many members
and the leadership of the Middletown Christian Church.
I was training to be a private pilot in my spare time. I am
a religious and spiritual man. None of this was presented
to the jury.
9. My parents are hard-working people, my father is a
pharmacist and my mother was a registered nurse. I am
close to my siblings and their children with whom I had
spent a considerable amount of time. I have had an
extensive and diverse work and business carrier. . . .
At the evidentiary hearing trial counsel testified that he did not present
mitigation evidence because evidence of Davis’s good character – including such
points as those identified by Davis in his affidavit - had been presented to the jury
during the defense’s case in chief.
Because this evidence had already been otherwise presented to the
jury, it was a legitimate trial strategy for trial counsel to choose not to repeat the
points by calling witnesses during the penalty phase of the trial. The jury was
already aware of the evidence supporting Davis’s good character. Repetition of
this evidence during the penalty phase would not have resulted in a reasonable
probability that the outcome would have been different.
For the foregoing reasons the judgment of the Jefferson Circuit Court
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Marc S. Murphy
Attorney General of Kentucky
Tonya M. Clemons
Julie R. Scott
Assistant Attorney General