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In re Personal Restraint of Davis

Supreme Court of Washington, En Banc

May 18, 2017

In the Matter of the Personal Restraint of CECIL EMILE DAVIS, Petitioner.

          GONZALEZ, J.

         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

         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 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 again. Id.

         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 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.

         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.

         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 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.

         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

         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). 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.O3O(2)(c)).

         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). 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).

         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 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 unconstitutional.

         Davis 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 briefly, noting:

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.[4] 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 require reversal.
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.

         But 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.

         Essentially, 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.

         But all 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 found:

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.

         Davis has not established that our death penalty statute, or his sentence, was unconstitutional under Hall.[5]

         2. Apprendi

         Generally, 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.

         But 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.

         Briefly, 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).[6]

         Not 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).

         Those 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).

         We 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.

         3. Aunts' Testimony

         Davis 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.

         After 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 observed:

[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.

         But 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 227).

         Davis 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).

         Davis has not shown ineffective assistance for failing to get his ...


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