David Lee Cox

Case record: David Lee Cox

Timeline

• 1998 — A dispute arose between David Lee Cox and Mark Davis; Davis asked Cox for permission to use Cox's homemade syringe (“rig”) used to inject drugs, and Cox denied permission.
• On September 13, 1998 — Cox stabbed Mark Davis in the back while inmates were lined up on the prison yard to return to their cells.
• 2000 — A Marion County jury convicted Cox of aggravated murder and possessing a weapon in a correctional institution, and the jury imposed the death penalty.
• July 20, 2004 — The case was argued and submitted before the Oregon Supreme Court.
• October 14, 2004 — The Oregon Supreme Court filed its decision.

Background

David Lee Cox, also known as “Rooster,” was a prisoner at the Oregon State Penitentiary (OSP) at the time of the homicide involving Mark Davis. The Oregon Supreme Court described the relevant facts as dividing into three parts: Cox’s relationship with Davis; Davis’s relationship with the Lakota Club and another inmate, Donnie Graham; and an agreement among the Lakota Club, Graham, and Cox to kill Davis.

The court set out facts consistently with the jury’s verdict.

The offence

Cox stabbed Mark Davis on the prison yard at the Oregon State Penitentiary on September 13, 1998. The court described Cox as holding a shank with both hands, stabbing Davis in Davis’s back and pushing it up towards Davis’s heart. One inmate saw Davis “going up on his toes as he was stabbed.” Davis stumbled against another inmate, reached back, and pulled the shank out of his back. The shank went between Davis’s ribs and into Davis’s left lung and aorta, and Davis died from internal bleeding.

Cox did not dispute that he had stabbed Davis at trial. He argued that he intended to injure Davis, not kill him, and that at most he could be guilty of manslaughter.

Investigation

A grand jury indicted Cox for aggravated murder and possessing a weapon in a correctional institution. The indictment cited ORS 163.095(2)(b), defining aggravated murder as intentional homicide committed by a person confined in a correctional institution, and ORS 166.275, prohibiting inmates from possessing weapons.

Trial

Charges and verdict

The jury convicted Cox of both:

• aggravated murder
• possessing a weapon in a correctional institution

The jury imposed the death penalty.

Cox raised 37 assignments of error challenging the trial court’s rulings during the guilt and penalty phases of his trial. The Oregon Supreme Court wrote to address 23 of the assignments of error, and it affirmed the other rulings without further discussion.

Cox’s relationship with Davis; motive for retaliation

The dispute described in the case began in 1998, when Davis asked Cox for permission to use Cox’s “rig,” a homemade syringe used to inject drugs. Cox denied Davis permission. Davis told Cox’s cellmate otherwise, and the cellmate gave Davis Cox’s rig, which contained Cox’s drugs.

Cox became upset when he learned what had happened. In an effort to make things right, Cox’s cellmate took Davis’s sunglasses and gave them to Cox. Later, in front of other inmates, Davis took the sunglasses back from Cox at knife point.

Within the prison, Cox had a reputation as a “heavyweight,” someone who demanded respect from other inmates. Davis had a lesser reputation. One inmate described Davis as a “punk”—someone who was “just a complete scumbag, homosexual, not to be trusted.”

When Davis took the sunglasses back from Cox at knife point, Cox’s reputation was undermined. The court quoted an inmate explanation about prison retaliation: “if [Davis] does something bad to [defendant] and [defendant] doesn't respond to it, he's now gotten punked by a punk. We call that being a punk's punk,” according to the court’s quotation. To restore his reputation, Cox needed to retaliate against Davis.

The Oregon Supreme Court also described Davis’s involvement in trafficking heroin and tobacco within the prison. The court said Davis traded heroin obtained from Graham to the Lakota Club for tobacco, and Davis traded the tobacco received from the Lakota Club to Graham for heroin. The Lakota Club understood that Davis was getting the heroin from a guard, and Graham understood that Davis was getting the tobacco from a guard. Neither was aware that the other was supplying Davis with contraband.

The court stated that Davis told the Lakota Club that the guard was late in supplying him with heroin and asked the club to “front” or advance him some tobacco until he could get the heroin and pay the club. Davis told a similar story to Graham. The club advanced tobacco and Graham advanced heroin to Davis on the understanding Davis would pay when the guard came through. The court stated there was, however, no guard and Davis did not repay either the club or Graham.

Graham learned that Davis was getting the tobacco from the Lakota Club. Graham spoke with the club members and told them that he, and not a guard, had been supplying Davis with the heroin Davis traded to the Lakota Club. When the Lakota Club and Graham realized Davis had “burned” them, they were concerned for two reasons: Davis still owed them a debt, and Davis’s actions affected their ability to collect from other inmates.

A member of the Lakota Club explained in a quotation: “[I]f word gets out that, you know, you're selling -- you've got a product for sale, but yet you're going to let this guy over here who is considered a nobody to burn you, I mean, you can't expect nobody else to pay their bill because they are going to look at you as being weak.”

The court stated that the Lakota Club and Graham were aware that Davis had “burned” Cox in a deal and had “disrespected” Cox when Davis took the sunglasses at knife point.

Agreement to kill Davis

Because Cox had an interest in retaliating against Davis, Graham proposed that Graham, the Lakota Club, and Cox enter into an agreement. Graham offered to give Cox $5,000 worth of heroin. The Lakota Club offered to give Cox $500 worth of tobacco and supply him with a knife if Cox agreed to “deal with” Davis. Cox accepted the offer.

The court stated that pursuant to the agreement, the Lakota Club and Graham provided Cox with heroin and tobacco two to three weeks before Cox stabbed Davis so Cox could “have some fun, get high, smoke cigarettes, sell some heroin and raise some money” before the stabbing. The Lakota Club also provided a knife. One of the club members gave Cox a shank (a homemade knife) sharpened by grinding it on the concrete floor in the clubhouse. The court stated that the “war chief” of the club explained to the club member how to stab Davis in the back in a way that would kill him.

Evidence of the victim’s criminal acts (guilt phase)

In the guilt phase, Cox sought to introduce evidence to support his theory that he intended to injure rather than kill Davis. Cox feared Davis and claimed he wanted to stab him so prison officials would transfer Davis to another facility. Cox argued that if he stabbed Davis and injured him, Davis would not tell prison officials who had stabbed him. Cox said that without knowing who stabbed Davis, prison officials would have to transfer Davis to a different facility to protect Davis.

To establish his fear of Davis, Cox sought to introduce evidence of Davis’s violent acts:

1. towards Cox
2. towards others in prison

The trial court ruled that Cox could introduce evidence of Davis’s violent acts towards Cox, but could not introduce evidence of Davis’s violent acts towards others in prison.

After the ruling, Cox made an offer of proof to preserve his objection. Cox proposed that witnesses would have testified to several incidents:

• On April 2, 1989, Davis became angry with his cellmate at the Oregon State Correctional Institution (OSCI) and cut him with a razor.
• On October 27, 1989, Davis used a razor blade to hold a guard hostage at OSCI for approximately an hour.
• In 1995, Davis stole an inmate’s watch at OSP while the inmate was taking a shower and also pulled a weapon on another inmate to take his drugs.
• In 1994 or 1995, Davis stole an inmate’s shoes at OSP and hit the inmate with his fists when he tried to retake the shoes.
• In 1996 or 1997, Davis robbed an inmate at OSP with a shank.

Cox’s offer of proof also included anticipated opinions:

• Two of the inmate witnesses would have offered their opinion that Davis was violent.
• One inmate witness would have opined that Davis was psychotic.

After considering the offer of proof, the trial court clarified the basis of its ruling. The court stated that evidence of Davis’s violent acts towards others had little bearing on whether Cox intended to injure rather than kill Davis. Even if relevant, the court found the prejudicial effect outweighed probative value. The court reasoned that evidence of Davis’s violence toward others “would be misleading to the jury and create a lot of additional evidence that would just become confusing, and I think really would just be a -- lead the jurors * * * more down the line [that] the victim deserved to be killed, so we're not going to pay attention to whether or not the defendant was trying to kill the victim or just injure him, which is really what th[e jurors] need to be focused on in this case.”

The trial court also noted that without testimony that Cox was aware of Davis’s violent acts towards others, evidence of those acts would not be relevant. The trial court therefore permitted Cox to introduce evidence only of Davis’s violent acts towards Cox.

The Oregon Supreme Court discussed OEC 404(3) and the three-part test for admission of other crimes or bad acts evidence to prove motive, quoting: “'(1) The evidence must be independently relevant for a noncharacter purpose [such as, in this case, proof of motive]; (2) the proponent of the evidence must offer sufficient proof that the uncharged misconduct was committed and that [the victim] committed it; and (3) the probative value of the uncharged misconduct evidence must not be substantially outweighed by the dangers or considerations set forth in OEC 403. Each of these requirements must be satisfied before uncharged misconduct evidence is admissible under OEC 404(3).’”

The Oregon Supreme Court explained why it agreed the evidence, if relevant, was admissible under OEC 404(3) for motive. The court noted that OEC 404(3) prohibits admitting other crimes evidence to show character in order to show conduct in conformity, but it may be admissible for other purposes such as proof of motive. The court stated it agreed the evidence would be relevant to prove Cox feared Davis only if Cox knew of Davis’s acts towards others. The court discussed the evidence of prison grapevine accuracy as argued by Cox and the remoteness and different institution timing of some incidents, while the court also assumed without deciding that prison grapevine could support a weak inference of Cox’s awareness for incidents at OSP.

The court then concluded the evidence of Davis’s other crimes at OSP was relevant to prove fear and addressed OEC 403 balancing. The court concluded the trial court did not abuse its discretion in excluding evidence of Davis’s violent acts towards others because the inference of Cox’s knowledge was weak and the trial court reasonably found minimal additional probative value, with risks of confusion, mini-trials, and distracting the jury from intent.

Striking Cox’s testimony (guilt phase)

Cox testified during the guilt phase. His testimony repeated evidence already in the record. Cox testified about his drug use in prison, his confrontations with Davis, and how Davis had taken sunglasses from him at knife point. He said Davis’s actions caused him to fear Davis. Cox also testified about events surrounding the stabbing, including that:

• the Lakota Club had not given him the shank
• he tore a metal bar out of a cart and “a guy that works out in [the prison] industries * * * took it out and sharpened it, brought it back to me the very next day.”
• he denied that either Graham or the Lakota Club had given him anything in exchange for attacking Davis
• when asked about intent to kill, he testified: “No way, no way, never. I wanted to hurt the guy and I wanted the worm -- I wanted the wound to be serious and noticeable, but I didn't want that wound to be fatal.”

During cross-examination, the trial court excused the jury. The state asked questions; outside the presence of the jury, Cox answered some questions but refused to answer three questions:

• identifying the person Cox testified had helped him make the weapon used to stab Davis
• identifying the persons to whom Cox sold drugs in prison
• identifying the persons who supplied him with those drugs

The trial court advised defense counsel that if Cox refused to answer questions on cross-examination, “then his testimony will be stricken.” The court added, “I don't know if you want to talk to him, but that's the rule.”

The trial court gave defense counsel an opportunity to speak privately with Cox. The court confirmed Cox understood that refusal to answer the three questions would lead the court to strike his testimony. Defense counsel then raised whether striking all testimony was the appropriate remedy, directing the court to a Court of Appeals case about discretion.

The trial court advised counsel it would tell the jury it was striking Cox’s testimony and instructed that if Cox changed his position over the weekend, counsel should notify the court.

When the jury returned, the trial court told the jury: “The State is unable to cross-examine the defendant on all of his direct testimony; therefore, the defendant's entire testimony is stricken. You're not to consider it in your deliberations at all.”

The trial court excused the jury for the weekend. Cox moved for a mistrial arguing the remedy was greater than necessary to address the state’s inability to cross-examine Cox on the particular points. The trial court denied the motion.

When trial resumed, the trial court adhered to striking all of Cox’s testimony. The court explained it had reviewed defense counsel’s cited case about parceling some parts of testimony and stated it struck all of the defendant’s testimony in that situation.

The Oregon Supreme Court addressed Cox’s appellate arguments and concluded the trial court did not abuse its discretion in striking Cox’s testimony, noting Cox’s refusal undermined the primary intent issue and deprived the state of testing his account regarding the shank creation and any agreement-related exchange of contraband, as well as questioning the drug purchase and supply events.

The court also addressed Cox’s due process argument under Rock v. Arkansas and found Cox’s premise did not hold because the state had no reason to ask other inmates similar questions given the evidence context.

Witness’s comment on Davis (rebuttal)

During Cox’s case-in-chief, Cox introduced evidence that he had reason to fear Davis. On rebuttal, the state called a witness who testified that over several conversations the witness heard Cox tell another inmate that he was angry at Davis, intended to retaliate, and “that he was seriously thinking about shanking [him].”

The state then asked: “Q. During any of these conversations did [defendant] ever express any fear towards Mark Davis? ”

The witness answered: “A. I'm sorry. No. ”

The state then asked: “Q. You laugh. That seems a little unusual. Why -- why are you laughing? ”

The witness answered: “A. Because [Davis] was a fly. It would be like a fly being scared of a spider or -- you know.”

Defense counsel moved to strike the witness’s answer and moved for a mistrial on the ground that referring to Davis as a fly constituted impermissible character evidence. Counsel argued that because the witness’s testimony had opened the door, Cox could introduce evidence of Davis’s violent acts towards others.

The trial court denied the motion to strike and denied the motion for a mistrial. The trial court also adhered to its earlier ruling that Cox could ask about Davis’s violent acts towards Cox but could not ask about Davis’s violent acts towards others.

On review, the Oregon Supreme Court held that the witness’s comparison did not interject a new issue into the case and concluded the same exclusion principles applied.

Pleading sentencing facts in the indictment

The grand jury indicted Cox for aggravated murder, but the indictment did not refer to the facts a jury must find in the penalty phase before deciding whether to impose the death penalty. Cox argued that under Ring v. Arizona those facts had to be pleaded in the indictment. Cox did not raise the issue below and asked review under the plain error doctrine, ORAP 5.45(6).

The Oregon Supreme Court reaffirmed that the perceived error was not apparent and discussed Apprendi v. New Jersey and Ring v. Arizona, including Apprendi’s reservation of the indictment question tied to Almendarez-Torres. The court concluded the federal constitutional error Cox perceived was not apparent, obvious, or not reasonably in dispute.

Confrontation Clause claims

Cox identified 15 instances during the trial in which witnesses testified about another person’s out-of-court statements. Cox argued that admitting that testimony violated his rights under the federal Confrontation Clause and referenced Crawford v. Washington and its interpretation of the Confrontation Clause. Cox did not object below and asked for plain error review.

The Oregon Supreme Court declined to exercise its discretion to reach the unpreserved issues, stating that if Cox had raised a timely objection the state could have found other ways to prove the facts or avoided the issue.

Sentencing

Cox was convicted in 2000 and the jury imposed the death penalty. The Oregon Supreme Court affirmed the judgment of conviction and sentence of death.

Appeals

The Oregon Supreme Court reviewed Cox’s case on automatic and direct review of the judgment of conviction and sentence of death imposed by the Marion County Circuit Court. It addressed 23 of Cox’s 37 assignments of error and affirmed the other rulings without further discussion, ultimately affirming the judgment of conviction and sentence of death.

Outcome

Aftermath

The Oregon Supreme Court’s discussion included additional contextual information about Oregon death penalty cases and reinstatement of capital punishment, noting that juries had sentenced 51 men to death and describing executions and reversals in other cases, as well as some cases awaiting new death penalty trials and others changed due to procedural or evidentiary grounds. It also included references to proceedings for another defendant regarding kidnapping and assault charges keeping him in prison, and seeking to reverse those charges.

Other details

• The homicide occurred at the Oregon State Penitentiary (OSP).
• The court described Mark Davis as trafficking heroin and tobacco within the prison, and the court described Davis trading contraband among the Lakota Club and Donnie Graham.
• Cox was described as a “heavyweight” convict; Davis was described as a “punk.”
• The case was before the Oregon Supreme Court en banc.
• Terry Ann Leggert was the judge of the Marion County Circuit Court.
• Dan Maloney, Deputy Public Defender, argued for appellant and filed briefs for Cox, with Peter A. Ozanne, Executive Director of the Office of Public Defense Services, on the briefs.
• Erika L. Hadlock, Assistant Attorney General, argued for respondent and filed briefs for the state, with Hardy Myers, Attorney General; Mary H. Williams, Solicitor General; Timothy Sylwester and Ryan Kahn, Assistant Attorneys General, on the briefs.
• Justice Kistler authored the opinion.
• The Oregon Supreme Court decision included a statement: “The judgment of conviction and sentence of death are affirmed.”