State Of Washington v. Damien R. Davis & Marcus A. Reed, 48324-6

Background

On March 28, 2013, Damien R. Davis and Marcus A. Reed (tried jointly) participated with co-defendants in planning and executing a motel robbery during which Donald Phily was shot and killed; victims Kathy Devine and Kelsey Kelly were present and frightened. A fourth participant, Daniel Davis, testified against them pursuant to a plea agreement. Ariel Abrejera also participated and later pled guilty in exchange for testimony.
Charges against Davis and Reed included first-degree murder (felony murder), two counts of second-degree assault, first-degree burglary, and firearm enhancements; Reed was also charged with unlawful possession of a firearm. The jury convicted both on murder, assaults, and burglary; Reed alone was convicted for unlawful possession of a firearm. Reed received life without release as a persistent offender; Davis received a lengthy aggregate sentence.
Reed moved to sever, arguing Davis’s post-arrest statement (to police) — even redacted — incriminated him in violation of the Confrontation Clause. The trial court denied severance after redactions and gave a limiting instruction when the redacted statement was played.
The court admitted (1) Daniel’s pre-arrest recorded statement as a prior consistent statement to rebut impeachment from motive to lie (plea deal), and (2) certain testimony from Melynda Sue Davis-Orr; the prosecutor used contested closing arguments including a “puzzle” analogy.
On appeal, Davis raised ineffective assistance for not requesting a WPIC definitional instruction on "knowledge," and argued other trial errors; Reed raised Bruton/redaction, admission errors, and challenged his persistent-offender sentence. The Court of Appeals affirmed, finding some Bruton redactions erroneous but the error harmless beyond a reasonable doubt; other claims failed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admission of co-defendant Davis’s redacted statement; severance / Confrontation Clause (Reed)	State: redactions and limiting instruction were adequate; no prejudice.	Reed: redactions still clearly identified him (pronouns/omissions), violating Bruton/Crawford; severance required.	Some redactions were insufficient and violated confrontation rights, but error was harmless beyond a reasonable doubt because overwhelming independent evidence implicated Reed.
Admission of Daniel’s recorded prior statement as prior consistent statement (both defendants)	State: admissible under ER 801(d)(1)(ii) to rebut implied motive to fabricate; statement predated plea and was made when witness unlikely to foresee legal consequences.	Defendants: trial court failed to consider whether witness could foresee legal consequences; prejudicial/cumulative.	Trial court did not abuse discretion: statement was relevant and properly admitted to rebut motive to lie since it predated the plea; admission not an abuse.
Failure to give WPIC definitional instruction on "knowledge" in accomplice instruction; ineffective assistance (Davis)	Davis: counsel was deficient for not requesting WPIC 10.02 defining "knowledge," prejudicing his defense.	State: "knowledge" is ordinary language; Scott controls; failure to instruct not deficient or prejudicial; defense strategy focused on trying to stop crime, not lack of knowledge.	No ineffective assistance: court need not define "knowledge," counsel’s omission not deficient, and Davis failed to show prejudice.
Imposition of persistent-offender life sentence without jury finding (Reed)	Reed: Alleyne/Apprendi require jury finding of facts that increase penalty; POAA sentence increased punishment without jury.	State: prior-conviction exception permits judge to find prior convictions by preponderance; Witherspoon and Washington precedent uphold judicial factfinding for prior convictions.	Rejected: Washington precedent controls; judge may find prior convictions by preponderance for POAA; sentencing did not violate jury-trial or due-process rights.

Key Cases Cited

Bruton v. United States, 391 U.S. 123 (1968) (a non-testifying codefendant’s confession that incriminates defendant violates the Confrontation Clause)
Crawford v. Washington, 541 U.S. 36 (2004) (out-of-court testimonial statements by non-testifying witnesses are barred unless witness unavailable and defendant had prior opportunity to cross-examine)
Richardson v. Marsh, 481 U.S. 200 (1987) (redacted confession that is not incriminating on its face may avoid Bruton if accompanied by limiting instruction)
Gray v. Maryland, 523 U.S. 185 (1998) (redactions that leave obvious blanks/incomplete edits can still violate Bruton)
State v. Fisher, 185 Wn.2d 836 (2016) (redaction form is not dispositive; key question is whether redaction obviously refers to defendant)
State v. Witherspoon, 180 Wn.2d 875 (2014) (Washington upholds judge’s factfinding of prior convictions for persistent-offender sentencing)
State v. Scott, 110 Wn.2d 682 (1988) (trial court need not define ordinary words like "knowledge")
State v. Vincent, 131 Wn. App. 147 (2005) (rejecting “other guy” redaction where only two accomplices on trial because redaction plainly referred to the co-defendant)
State v. Asaeli, 150 Wn. App. 543 (2009) (witness’s reaction to nearby gunfire can support assault conviction by apprehension)