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State v. Davis

Court of Appeals of Iowa

January 11, 2017

STATE OF IOWA, Plaintiff-Appellee,
BRIAN HEATH DAVIS, Defendant-Appellant.

         Appeal from the Iowa District Court for Fremont County, Timothy O'Grady, Judge.

         A defendant appeals his conviction for murder in the first degree. AFFIRMED.

          Patrick A. Sondag of Sondag Law Office, Council Bluffs, for appellant.

          Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant Attorney General, for appellee.

          Heard by Vogel, P.J., and Tabor and Mullins, JJ.

          TABOR, Judge.

         Following a bench trial, the district court found Brian Davis guilty of first-degree murder in the death of his fiancée, Holly Durben. On appeal, Davis raises four issues: (1) insufficient evidence; (2) improper rulings regarding expert-opinion testimony and prior bad acts; (3) improper denial of his motion for new trial; and (4) ineffective assistance of counsel concerning the recall of a witness, expert-opinion testimony, and prosecutorial error.

         Finding substantial evidence in the record to support the elements of murder in the first degree, we reject Davis's call for acquittal. Discerning no abuse of discretion in the court's evidentiary rulings or in its denial of his new-trial motion, we affirm Davis's conviction. We conclude Davis's trial counsel did not breach an essential duty by failing to object to the State's recall of a witness or to the prosecutors' statements during closing arguments. But because further development of the record is needed to assess Davis's ineffective-assistance-of-counsel claim related to the medical examiner's testimony regarding the location of Durben's shotgun wound, we preserve it for possible postconviction-relief proceedings.

         I. Facts and Prior Proceedings

         On the morning of July 18, 2009, local law enforcement officers arrived at the Shenandoah farmhouse shared by Brian Davis and Holly Durben after Davis reported to dispatch that Durben shot herself in the head. In an upstairs bedroom, two Fremont County deputies found Durben's body prostrate on the bed with a massive gunshot wound to the left side of her head. Durben's left hand was on the pistol grip of a twelve-gauge shotgun with an eighteen-inch barrel, and her left thumb rested on the trigger.[1] Although the gun was in Durben's hand, the only fingerprint suitable for identification on the gun belonged to Davis. In their inspection of the scene, officers saw a broken mirror in a bathroom, Durben's engagement ring on the kitchen floor, and an empty box of ammunition along with a few empty twelve-gauge casings in the yard.

         Paramedics attended to Davis, who was "thrashing" on the highway adjacent to the home. Davis smelled strongly of alcohol and appeared to be losing consciousness. Before transporting Davis to a nearby hospital, paramedics administered oxygen and Narcan, a drug used for narcotic overdoses. His blood alcohol concentration (BAC) measured .245.

         Victor Murillo, an Iowa Division of Criminal Investigation (DCI) criminalist, examined the shotgun found in Durben's hand. He discovered a shell casing still inside the gun, which he noted was consistent with suicide because a shell casing must be manually discharged after firing a shotgun. Murillo testified it was possible to fire the gun one-handed, but it would be more difficult to hold. He concluded the gun's placement was consistent with Durben having shot herself but did not opine on who fired the gun or whether the gun had been manipulated after it was fired.

         Associate State Medical Examiner Dr. Jerri McLemore performed the autopsy on Durben. Dr. McLemore found the entrance wound was consistent with a shotgun fired at very close distance or in contact with the skin on Durben's left cheek. The doctor noticed areas of faint discoloration on both the right and left sides of Durben's jawline and on the lower part of her neck. Dr. McLemore discussed the marks, explaining:

[F]or anyone that comes in with a possible self-inflicted wound, especially if she is a woman, a neck exam is always important to make sure that there is no bruising of the neck that may indicate something that might have happened prior or that might add to the circumstances. In this case, there were areas of discoloration that actually had bleeding into the soft tissue underneath, especially on the left hand side that because of their location, symmetrical on the jawline and down at the . . . lower part of the neck were concerning for a possible pressure against the neck in these areas, such as a what's call[ed] a sleeper hold.[2]

         In addition, Dr. McLemore observed petechaie-pinpoint bleeding-in Durben's right eye crevice.[3] According to the doctor, although petechaie in the eyes may be present in a variety of circumstances, they "most notably [occur] in what we call asphyxia deaths, where the brain and the tissues in the body have been deprived of oxygen in some manner." The doctor acknowledged gunshot wound deaths, particularly when the trauma is close to the eye, could also cause petechaie in the eyes but only "about a quarter of the time." Dr. McLemore found a small number of blunt force injuries on the rest of Durben's body, including a small red bruise on the inside of Durben's left forearm and a small scrape on her right forearm, but Dr. McLemore was unable to determine how or when those injuries occurred. Finally, Dr. McLemore measured Durben's BAC at .034 from her heart blood and .089 from her urine. She noted the urine level was likely higher than Durben's actual concentration at the time of her death. Dr. McLemore concluded:

Because of the location of the shotgun wound, which is highly unusual for a self-inflicted shotgun wound, because of the partial bruising of the neck, which I had no good answer as to why they were there, I could not say one way or the other whether Ms. Durben actually did die of a shotgun wound to the head.
I could not say whether or not she might have been incapacitated beforehand. And so because of that, I could not determine the cause or manner of death. They were both undetermined.

         Agents with the DCI interviewed Davis four times about the events leading up to Durben's death. Three of the interviews were within a week of Durben's death;[4] the last interview occurred over five years later, on October 27, 2014. According to Davis's accounts, his friend, Scott Carpenter, stopped by after work on July 17, 2009, and the two were together until Carpenter left around sunrise on July 18. They began the evening by drinking beer while Davis tended the grill. Later on, Davis and Carpenter took target practice at a stump in the yard with Davis's shotgun. Afterward, Davis stowed the gun, unloaded, under the bed he shared with Durben. Davis and Carpenter played video games for several hours.

         Davis told authorities Durben, who "had drank a lot of . . . bourbon that evening, " became angry when she saw he had a picture of her sitting on a toilet displayed as the background for his video-game console, hit Davis, and called Davis and Carpenter "assholes." At some point Durben broke the bathroom mirror, according to Davis.[5] In the early hours of July 18, Davis and Carpenter left the house to go for a drive and "cut a couple cookies" in a nearby pasture. Soon after they returned to the house, Carpenter left. Davis slept on the couch and got up after a few hours to make breakfast. Davis recalled asking Durben if she wanted anything, "she said 'no' and 'fuck you.'" Davis finished making breakfast, and Durben called for him. He told investigators that as he climbed the stairs, he heard the shotgun go off. He said he ran to Durben's body, moved the gun slightly, and shook her before calling the police.

         On November 7, 2014, a little more than a week after Davis's final interview, the State charged him with first-degree murder. At his bench trial, the State argued Davis killed Durben either by shooting or strangling her and then manipulated the scene to make it appear Durben had committed suicide. The defense maintained Durben took her own life. The district court found Davis guilty, specifically discrediting Davis's statements and placing particular importance on the marks on Durben's neck. The court concluded:

I am firmly convinced that Durben did not kill herself. I am firmly convinced despite the uncertainty in the medical evidence because I have been able to consider all of the evidence including Davis'[s] own statements. I am firmly convinced that Brian Davis choked Holly Durben [and] then shot her.

         Davis now appeals.

         II. Scope and Standards of Review

         We review challenges to the sufficiency of the evidence for correction of legal error. See State v. Hansen, 750 N.W.2d 111, 112 (Iowa 2008). We view the record in the light most favorable to the State, and we make all legitimate inferences and presumptions that may reasonably be inferred from the evidence. See State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005). We will uphold the district court's verdict as long as substantial evidence supports it. See State v. Howse, 875 N.W.2d 684, 688 (Iowa 2016). "Evidence is substantial if it would convince a rational trier of fact the defendant is guilty beyond a reasonable doubt." Hansen, 750 N.W.2d at 112.

         We review evidentiary challenges for an abuse of discretion. State v. Tyler, 867 N.W.2d 136, 152 (Iowa 2015). We find an abuse of discretion "when the district court exercises its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable." See id. (quoting State v. Miller, 841 N.W.2d 583, 586 (Iowa 2014)). "A ground or reason is untenable when it is not supported by substantial evidence or when it is based on an erroneous application of the law." State v. Redmond, 803 N.W.2d 112, 117 (Iowa 2011) (quoting Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000)).

         We also apply the abuse-of-discretion standard to rulings on motions for new trial alleging a verdict is contrary to the weight of the credible evidence. See State v. Ary, 877 N.W.2d 686, 706 (Iowa 2016). "[A] district court may invoke its power to grant a new trial on the ground the verdict was contrary to the weight of the evidence only in the extraordinary case in which the evidence preponderates heavily against the verdict rendered." Id. Unlike under the sufficiency-of-the-evidence standard, the court may weigh the evidence and consider witness credibility. State v. Taylor, 689 N.W.2d 116, 134 (Iowa 2004). But our review is limited to a review of the trial court's exercise of discretion and does not extend to the underlying weight-of-the-evidence question. See Ary, 877 N.W.2d at 707.

         Finally, we review ineffective-assistance-of-counsel claims de novo. See State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).

         III. Analysis

         A. Did the State present substantial evidence to support Davis's conviction?

         To prove Davis was guilty of first-degree murder, the State was required to show that on or about July 18, 2009, Davis "did willfully, deliberately, and with premeditation kill Holly Rae Durben." See Iowa Code § 707.2(1) (2009).

         Davis argues the State did not adequately prove he killed Durben considering the lack of physical evidence linking him to her death. As Davis notes, Dr. McLemore could not determine the cause or manner of death, investigators found no evidence the gun had been wiped of prints, criminalist Murillo cited no evidence related to the gun's position or manner of firing suggesting Durben had not killed herself, and the State did not test Davis or Durben for gunshot residue. Davis claims the district court "sculpted evidence and credibility assessments to support guilt, disregarded or misstated what detracted ...

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