In the Matter of the Personal Restraint of CECIL EMILE DAVIS, Petitioner.
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
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 Wn.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 Wn.2d 647, 101 P.3d 1 (2004)).
In 2007, the State successfully sought the death penalty
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 Wn.2d at 317. 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.
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.
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,  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 Wn.2d at 374 (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.
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.Order, State v. Davis, No. 89590-2
(Wash. May 19, 2015).
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). 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); 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.O3O(2)(c)).
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). 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
(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
(c) "Significantly subaverage general intellectual
functioning" means intelligence quotient seventy or
(d) "Adaptive behavior" means the effectiveness or
degree with which individuals meet the standards of personal
independence and social responsibility expected for his or
(e) "Developmental period" means the period of time
between conception and the eighteenth birthday.
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
Wn.2d at 322; 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
also seems to suggest our statutorily mandated review of his
death sentence and intellectual ability under RCW 10.95.130
was constitutionally inadequate. That statute requires us to
consider (among other things) "[w]hether the defendant
had an intellectual disability within the meaning of RCW
10.95.030(2)." RCW 10.95.l3O(2)(d). Since Davis himself
did not raise the issue in his appeal, we disposed of it
To have an intellectual disability considered by RCW
10.95.l3O(2)(d), the defendant's IQ must be 70 or below.
RCW 10.95.O3O(2)(a), (c). At trial, no mental health expert
testified that Davis's IQ was 70 or below. On appeal, Davis
does not claim he is intellectually disabled or that he was
intellectually disabled at the time of the
crime.78 RCW 10.95.l3O(2)(d) therefore does not
78At trial, Davis moved to dismiss based on a
challenge to Washington's statutory scheme regarding
mentally retarded defendants convicted of aggravated murder.
The court denied the motion. The court also entered findings
of fact that the defendant was not mentally retarded at the
present time or at the time of the crime. On appeal, Davis
does not challenge the denial of the motion to dismiss or the
court's findings and conclusions on mental retardation.
Davis, 175 Wn.2d at 374. Davis contends that under
Hall, this is "an erroneous application of the
current law on what evidence should be shown to demonstrate
that a capital defendant is intellectually disabled [and
that] RCW 10.95.030(2) is unconstitutional as in violation of
the Eighth Amendment." Am. Pet. at 10.
even if this were true (which Davis does not show), Davis
fails to explain why this court's failure to make a more
rigorous analysis on direct review of an issue his counsel
did not raise was improper or why Hall requires the
appellate court to do a sua sponte, searching inquiry of an
issue the defendant does not raise. Nor does he show that as
applied to him, RCW 10.95.030(2) is unconstitutional.
Davis argues that he is entitled to resentencing since
Hall makes clear that using a 70 I.Q. as an
evidentiary cutoff is unconstitutional because it ignores the
judgment of "'[t]he relevant clinical
authorities.'" Id. at 12-13 (internal
quotation marks omitted) (quoting Hall, 134 S.Ct. at
1994). He cites as evidence of his disability that he was
enrolled in special education; that the doctors who examined
him found his I.Q. ranged from 68 to 74; that his medication,
drug use, and diabetic conditions potentially affected his
mental state; and that his family history indicated that he
was treated poorly as a result of being "slow."
Id. at 15-18.
this evidence was presented to the 2007 jury and
considered by the trial court in determining whether Davis
must be excluded from the death penalty. Unlike in Florida
before Hall, here Davis's evidence of
intellectual disability was not excluded. See
Cherry, 959 So.2d at 714. The jury considered medical
testimony, family history, school performance, and other
factors. Davis, 175 Wn.2d at 346-47. The defense
offered the testimony of Richard Kolbell, PhD, Barbara
Jessen, MD, Zakee Matthews, MD, Kenneth Muscatel, PhD, and
the State's witness, Police Sergeant Tom Davidson. Three
of these medical experts conducted I.Q. tests, reviewed
previous I.Q. tests and medical records, and spoke to family
members concerning Davis's school and family history. In
reviewing the defense's expert testimony, the trial court
The three mental health witnesses who testified in this
proceeding did not have significant differences in their
opinions. All of them concluded the defendant has a
"cognitive disorder, not otherwise specified." The
defendant's voluntary abuse of drugs and alcohol likely
exacerbated this condition. The defendant's cognitive
disorder essentially makes him "slower" than
"normal" people when it comes to processing
information, but he processes it the same as
"normal" people once he assimilates the
information. No witness at this proceeding gave the opinion
that the defendant was mentally retarded, either now, at the
time of the offense, or ever.
CP at 1264. The trial judge also considered Sergeant
Davidson's testimony that "the defendant showed no
signs of intoxication, confusion, or any other mental
distraction or deficiency during his interview with the
detectives [six days after the murder]." Id. at
1265. The trial court also found that
[t]he defendant presented no affirmative evidence that he is
now or ever has been mentally retarded. Each of the witnesses
who testified at the penalty phase hearing and was
specifically asked said the defendant is not mentally
retarded and has never been formally diagnosed as mentally
retarded during his lifetime.
Id. Davis has not shown that this conclusion was
based on an unconstitutional understanding of RCW
10.95.030(2). Nor has he made any effort to show that had the
trial court followed the procedures he now advocates, a
different result would have occurred. Finally, he has not
offered any evidence that should have been admitted at trial
that was not.
has not established that our death penalty statute, or his
sentence, was unconstitutional under Hall.
any fact that increases the sentence a defendant might face
must be charged and proved to a jury beyond a reasonable
doubt. Apprendi v. New Jersey, 530 U.S. 466, 485-86,
120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Davis argues that the
lack of an intellectual disability that would make him exempt
from the death penalty is such a fact, at least when
intellectual disability has been raised. Am. Pet. at 18-20
(citing Apprendi, 530 U.S. at 485-86; Blakely v.
Washington, 542 U.S. 296, 296, 124 S.Ct. 2531, 159
L.Ed.2d 403 (2004); State v. Few, 125 Wn.App. 84,
98, 104 P.3d 49 (2005)). Essentially, he argues that a death
penalty is an enhanced sentence that can be based only on
facts admitted by the defendant or found by a jury beyond a
reasonable doubt, that he is eligible for the death penalty
only if he is not intellectually disabled, and that the lack
of an intellectual disability effectively increases the
punishment he is exposed to and thus a jury must make the
decision. He also contends that once he raised his
intellectual disability, the State had the burden, beyond a
reasonable doubt, of proving that he was not intellectually
disabled. Id. at 21.
Davis fails to establish that Atkins's exemption
of intellectually disabled persons from the death penalty is
a sentence "enhancer" under the Apprendi
line of cases, and thus the first step of his argument fails.
Davis is blending two lines of cases that interpret different
provisions of the United States Constitution without showing
why we should mix them in the way he proposes. Accepting his
argument would require us to merge the Atkins line,
which concerns the constitutional limitations on cruel and
unusual punishment in the Eighth Amendment, with the
Apprendi line, which concerns due process and the
notice and jury trial rights embodied in the Sixth Amendment,
U.S. Const, amend. VI. Atkins, 536 U.S. at 307;
Apprendi, 530 U.S. at 476. He makes no meaningful
effort to show us that it is appropriate to detach the Eighth
Amendment limitation on executing a person with intellectual
disabilities from its Eighth Amendment roots and graft it
into the Sixth Amendment and due process limitations
articulated by Apprendi and its progeny. The State
has elected not to brief this issue, depriving us of valuable
argument on which to make our judgment.
Apprendi held that "[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable
doubt." Apprendi, 530 U.S. at 490. But
Hall (and Atkins before it) does not
suggest that the lack of intellectual disability is
a fact that increases the penalty to which a defendant is
exposed under Apprendi. Instead, Hall and
Atkins held that those who are intellectually
disabled are not subject to the death penalty categorically,
left it to the states to develop appropriate enforcement
mechanisms, and found that one state's mechanisms were
inadequate. Atkins, 536 U.S. at 317; Hall,
134 S.Ct. at 2001. Neither case suggests that the lack of
intellectual disability is the functional equivalent of an
element of a crime that must be charged and proved to a jury
under the Sixth Amendment. Indeed, the Supreme Court
expressly left '"to the State[s] the task of
developing appropriate ways to enforce the constitutional
restriction upon [their] execution of sentences.'"
Atkins, 536 U.S. at 317 (alterations in original)
(quoting Ford v. Wainwright, 477 U.S. 399, 405, 106
S.Ct. 2595, 91 L.Ed.2d 335 (1986)). Most notably, in
Schriro v. Smith, the Supreme Court admonished the
Ninth Circuit for ordering an Arizona state court to conduct
proceedings and a jury trial on the issue of "mental
retardation" notwithstanding its decision to leave to
the states' discretion the enforcement of
Atkins. 546 U.S. 6, 7-8, 126 S.Ct. 7, 163 L.Ed.2d 6
(2005) (per curiam).
surprisingly, courts that have considered the possible
intersection of Apprendi and Atkins have
unanimously rejected it, finding the Atkins
exemption acts as a conclusive sentence mitigator rather than
as a sentence enhancer. State v. Agee, 358 Or. 325,
364-66, 364 P.3d 971 (2015), as amended, 358 Or.
749, 370 P.3d 476 (2016); Hurst v. State, 147 So.3d
435, 445 (Fla. 2014) (per curiam), rev'don other
grounds, ___U.S.___, 136 S.Ct. 616, 193 L.Ed. 2D 504
(2016); Pruitt v. State, 834 N.E.2d 90, 112-13 (Ind.
2005), rev'd on other grounds, 788 F.3d 248 (7th
Cir. 2015); State v. Were, 118 Ohio St.3d 448,
477-79, 890 N.E.2d 263 (2008); State v. Grell, 212
Ariz. 516, 526-27, 135 P.3d 696 (2006); State v.
Laney, 367 S.C. 639, 647-49, 627 S.E.2d 726 (2006);
Walker v. True, 399 F.3d 315, 326 (4th Cir. 2005);
Bowling v. Commonwealth, 163 S.W.3d 361, 378-81 (Ky.
2005); Winston v. Commonwealth, 268 Va. 564, 616-17,
604 S.E.2d 21 (2004); State v. Flores,
2004-NMSC-021, 135 N.M. 759, 762-63, 93 P.3d 1264; Howell
v. State, 151 S.W.3d 450, 465-67 (Tenn. 2004);
Russell v. State, 849 So.2d 95, 146-48 (Miss. 2003);
In re Johnson, 334 F.3d 403, 404-05 (5th Cir. 2003)
(per curiam); Head v. Hill, 277 Ga. 255, 258-59, 587
S.E.2d 613 (2003) (per curiam); State v. Williams,
831 So.2d 835, 860 n.35 (La. 2002).
few state courts that have allocated the Atkins
finding of intellectual disability to the jury have done so
as a matter of state law and expressly disclaimed
any federal constitutional mandate. Commonwealth v.
Sanchez, 614 Pa. 1, 53, 36 A.3d 24 (2011) (citing
Commonwealth v. Bracey, 604 Pa. 459, 488-90, 986
A.2d 128 (2009)); State v. Jimenez, 188 N.J. 390,
405-06, 408, 908 A.2d 181 (2006); see also State v.
Johnson, 244 S.W.3d 144, 150-51 (Mo. 2008).
reject Davis's request that we collapse Atkins
and Apprendi. Davis has not shown that he was
entitled to have the sentencing jury determine, beyond a
reasonable doubt, whether he was intellectually disabled.
argues that he received ineffective assistance of counsel
when his attorney did not ensure that his aunts'
testimony was presented to the jury. Am. Pet. at 22. We
review ineffective assistance of counsel claims de novo.
State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916
(2009) (citing In re Pers. Restraint of Fleming, 142
Wn.2d 853, 865, 16 P.3d 610 (2001)). To prevail, Davis must
establish that (1) counsel's performance was deficient
and (2) the performance prejudiced the defendant's case.
State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d
1251 (1995) (citing Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). For
counsel's performance to be deficient, it must fall below
an objective standard of reasonableness. State v.
Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). Our
scrutiny of this performance is deferential, and we strongly
presume reasonableness. State v. Grier, 171 Wn.2d
17, 33, 246 P.3d 1260 (2011). To rebut this presumption, a
defendant must establish an absence of any legitimate trial
tactic that would explain counsel's performance.
Id., In the context of counsel's investigation
into mitigating factors, the Supreme Court held that "we
must conduct an objective review of their performance,
measured for 'reasonableness under prevailing
professional norms, ' which includes a context-dependent
consideration of the challenged conduct as seen 'from
counsel's perspective at the time.'" Wiggins
v. Smith, 539 U.S. 510, 523, 123 S.Ct. 2527, 156 L.Ed.2d
471 (2003) (citation omitted) (quoting Strickland,
466 U.S. At 688, 689). For the defendant to prove that the
deficient performance prejudiced the defense, the defendant
must "prove that, but for counsel's deficient
performance, there is a 'reasonable probability' that
the outcome would have been different." State v.
Hicks, 163 Wn.2d 477, 486, 181 P.3d 831 (2008) (quoting
State v. Cienfuegos, 144 Wn.2d 222, 227, 25 P.3d
1011 (2001)). "A reasonable probability is a probability
sufficient to undermine confidence in the outcome."
Strickland, 466 U.S. at 694.
jury selection began, Davis offered recordings of interviews
his mitigation specialist had with his two elderly aunts
living in Kansas City, Missouri. After the State objected to
showing the videos on hearsay grounds, Davis made an offer of
proof. The judge watched the recordings with counsel and
granted the State's motion. The judge found the video
recordings were hearsay, minimally relevant, and duplicative,
explaining that "[t]he relevant information is going to
be available through other witnesses that are here and
present, and the defense will have the benefit of
those." RP (May 7, 2007) at 3057. On direct appeal, we
found that exclusion of the videos was within the trial
judge's discretion. Davis, 175 Wn.2d at 322. We
[T]he trial court correctly determined that the vast majority
of Jones's and Brooks's offerings were not relevant
mitigating evidence.. ..
. . .
A few facts offered by Davis's aunts probably meet the
low bar for relevance. Jones's observation that Davis had
a difficult and troubled childhood is a relevant mitigating
factor. See Eddings v. Oklahoma, 455 U.S. 104, 116,
102 S.Ct. 869, 71 L.Ed.2d 1 (1982). In addition, the
aunts' concern had relevance on the issue of mercy, their
testimony showing that two family members were willing to be
interviewed on Davis's behalf. In Stenson, we
held that the trial court did not err in excluding on
relevance grounds testimony concerning the potential impact
an execution would have on the defendant's family, but we
noted with approval that the trial court had admitted
testimony from family members indirectly showing that the
defendant had a caring family. Here, in contrast, the
exclusion of Davis's aunts' interviews completely
eliminated the views of two family members from the
jury's consideration, a fact that was underscored by the
State's comment in closing argument that only two members
of Davis's large family (his mother and brother)
testified on Davis's behalf.
Id. at 319-20. Davis asserts that "[t]he only
reason why this court did not find the aunts' exclusion
as reason for reversal was because of the error of defense
counsel in failing 'to present the relevant portions ...
in a reliable form'" and suggests counsel was
deficient for not sending the investigator to interview the
aunts until after the trial had begun. Am. Pet. at 25
(alteration in original). While not interviewing the aunts
until after jury selection began may have been deficient,
Davis's contention that the only reason this court did
not reverse was because counsel erred in failing to present
the information in a reliable form is not well taken. We
reviewed the recording and found that most of the information
was not relevant and "the few relevant parts of the
interviews" were not presented in a reliable form.
Davis, 175 Wn.2d at 321-22. Davis has not shown that
counsel's performance was deficient for failing to find a
way to submit the aunts' testimony of the "few
relevant parts" of the interviews.
even assuming (without deciding) that counsel was deficient
in failing to find a way to get his aunts' testimony
admitted, Davis fails to show that he was prejudiced. As the
trial court noted in excluding the tapes, "The relevant
information is going to be available through other witnesses
that are here and present, " RP (May 7, 2007) at 3057.
Davis's counsel submitted the medical testimony of four
experts, testimony from other family members regarding
Davis's family history, information about his school
performance, and other mitigating evidence. Davis makes no
effort to show the judge was wrong in his assessment that the
evidence would be introduced in other ways. Nor does he
specifically identify some additional fact that was excluded
that, had the aunts' testimony been admitted, would have
been offered to the jury. He contends:
In this case, defense counsel knew that many family members
were not forthcoming about Davis'[s] problems growing up
but his aunts were prepared to talk about them. That
knowledge should have motivated Davis'[s] attorneys to
jump on the opportunity to bring the aunts' memories to
the jury as a top priority. Potentially, if other family
members had seen or heard the aunts' recollections, they
might have been more willing to come forward with more
information from Davis'[s] troubled past.
Am. Pet. at 27. This is entirely too speculative to meet his
burden of showing that "but for counsel's deficient
performance, there is a 'reasonable probability' that
the outcome would have been different." Hicks,
163 Wn.2d at 486 (quoting Cienfuegos, 144 Wn.2d at
also contends that the aunts' "presence would have
taken away the [S]tate's argument that few family members
were interested in Davis'[s] life." Am. Pet. at
28-29, In the prosecutor's lengthy closing argument, he
did devote a few lines to Davis's family, although he did
not mention any aunts. Specifically, the prosecutor argued:
The defendant's family, Cozetta Taylor and Donnie
Cunningham[, ] . . . [b]oth of them told you that they love
this defendant unconditionally. ...
. . . .
. . . What you got in this case was the best that could be
said for Cecil Davis. He has a mother, six brother and
sisters, 30-pfus nieces and nephews. His mother said she also
has 30-plus grandchildren, which means he has 30-plus
grandnieces and nephews. You heard from two.
RP (May 15, 2007) at 3518-19. This was part of a lengthy
closing by the State that paints a warm picture of Couch;
graphically details Davis's assault, rape, and murder of
her; graphically details her death; graphically details the
state in which her body was found; details his methodical
conduct after her murder; discusses theories of justice,
deterrence, and compassion; paints Davis as the "worst
of the worse"; details his criminal history; discusses
his mental health and intellectual capacity; and discusses
why he should not be given mercy. Id., at 3492-3540.
Davis has not shown that "but for counsel's
deficient performance, there is a 'reasonable
probability' that the outcome would have been
different" because the prosecutor would have had to
argue that only four relatives testified on his behalf,
Hicks, 163 Wn.2d at 486 (quoting
Cienfuegos, 144 Wn.2d at 227).
has not shown ineffective assistance for failing to get his