Blues for Phyllis Davis

Over the last year or so the Register has been running a series of articles detailing the strenuous efforts that are being made to get one David Flores out of his cell at Fort Madison and into a new trial.

Flores was convicted of first degree murder in the death of Phyllis Davis, a mild mannered woman of no great pretension who worked at a downtown bank and had the bad luck to drive into the middle of a shootout between rival gang members at about 5:25 pm on April 8, 1996.

The bare facts of how Flores got there are pretty simple, but there are a cast of characters and much going on behind the scenes. It's important to keep the names in mind to keep the competing claims separate.

1. Background.

Throughout the 1990s there was warfare between the Blood and Crip franchises in Des Moines. Although remote from their roots in south central Los Angeles, the locals had established the franchises in competition with the Chicago based Vice Lords and Black Gangster Disciples for control of the city's dope traffic and other criminal enterprises.

A precipitating event seems to have been the death of one Jody Stokes, gang member.

Jarmaine Allen, a Blood affiliate was convicted twice of murdering Stokes and is likely to get a third trial for reasons that do not have a lot to do with his guilt or innocence but have more to do with a certain lack of prosecutorial finesse. He maintains that he had nothing to do with Stokes' murder.

Allen was also convicted of murder in the death of Phyllis Davis, because he was one of the combatants in the brown Oldsmobile.

David Flores was a Crip affiliate. David Flores was also intimate with Tina McGarey who owned a black Chevrolet Blazer with a distinctive gold grille. David Flores, it is alleged was a childhood friend of Jody Stokes and was angry about his death.

On the afternoon of the shooting, a rolling gun battle between the occupant or occupants of a black pimped out Blazer and a brown Oldsmobile began at 18th and Atkins in Des Moines, and proceeded north and then east on University Avenue. Phyllis Davis, on her way home from work, was hit and killed by a bullet fired from the black Blazer as she sat in her car at 9th and University. 

The bullet ripped through her rib cage and she drowned in her own blood.

David Flores was tried and convicted of the murder of Phyllis Davis along with several of the other combatants.

2. The case against Flores.

At trial, it was shown that Tina McGarey owned a distinctive black Chevrolet Blazer with a gold grille. A black Chevrolet Blazer with a gold grille was seen by witnesses at the scene and was used in the shootings. It departed west in the direction of the Flores residence on 47th street.

Four .22 caliber shell casings were found at the scene of the Davis shooting which bore firing pin marks. A search warrant served at the Flores residence on 47th Street yielded a spent shell casing with identical firing pin marks. A DCI criminalist testified that they were fired from the same weapon. A bullet was found in the Flores residence that was consistent with the slug that killed Davis although it could not be positively identified as having come from the same weapon.

It is alleged that the slug found in the Flores home was a mere souvenir from a previous drive by shooting.

Testimony at trial also indicated that McGarey had gone to her mother's home the next day, joined in a three way phone conversation with her aunt and mother, and stated "I think I shot that lady that died yesterday." Tina then stated she was in the Blazer with Flores and his brother when she shot Davis. She also asked her aunt to find a way to avoid testifying, because if the truth came out David would go to jail for a long time.

These statements were admitted into evidence over Flores' hearsay objections.

Tina McGarey testified at Flores' trial and refused to answer questions about the murder despite the fact that she had been given immunity. What testimony she gave at trial was supportive of Flores' case.

Most recently, Tina McGarey has said that the reason for all this inconsistency is that she was "playing a game" and trying to protect Flores. 

I'm not at all sure what sort of game this might be or why she thought Flores needed protecting if he was free of complicity in the events of the previous day. Quite simply, the entire idea would never have occurred to a person without guilty knowledge. 

For his part, David Flores' whereabouts on the day of Davis' death are not clear. It was said that he and McGarey stopped somewhere downtown to collect a set of housekeys, that he dropped Tina off around 4:45 pm at her mother's house and headed off to 47th Street-in the distinctive black Blazer. He called the McGarey house at about 5:50 pm and told Tina he'd locked himself out of the Blazer, and could she come get him at 47th Street.

It therefore seems that unless Tina McGarey could be in two places at once, one of the accounts of her whereabouts is false. It also seems that by his own account Flores was in the black Blazer at the time Davis was gunned down.

The shell casings made the connection between the gunfight, the Blazer, and the house on 47th Street where Flores and McGarey lived.

Vincent Cortez Brown, another member of Jarmaine Allen's posse, was the driver of the brown Oldsmobile, and was convicted of murder for the killing of Davis. When he was arrested he stated he was 80 per cent sure that Flores was driving the Blazer, but he later recanted that statement. Brown negotiated a plea to terrorism, going armed with intent and carrying weapons, but he reneged, was tried and convicted of second degree murder.

Brown, currently serving time in prison, is alleged by family members to have been promised early release if he testified against Flores. He was called by police after the Gaines interview described below surfaced, but police deny that a deal was offered. Brown made the same arguments in his appeal for his role in the Davis shooting to little effect. Brown's relatives also allege that he was denied access to an attorney in his initial case, but he made that same argument on appeal to no effect.

In short, the book is closed on Vincent Brown.

3. The case for Flores.

Flores' best chance for a new trial lies in the resolution of the issue of whether his attorney at the time knew of the Calvin Gaines interview and file noted below at the time that Flores went to trial. If it's found to have been suppressed by prosecutors, then Flores most likely gets a new trial on due process grounds.

It would likely also be considered newly discovered evidence.

Evidence that tends to discredit the testimony of the criminalist that the murder bullet and the bullet found in the Flores home were consistent may play a part, but not an important one. It would not be newly discovered evidence as that term is understood because that issue would be impeachment testimony that further was not raised at trial or in Flores' direct appeal or in his Federal habeas corpus appeal.

4. The Gaines interview.

The key pieces of evidence in this case that have resurfaced since the Davis murder were the report of the FBI interview of Calvin Tyrone Gaines conducted in the Polk County Jail on May 22, 1996, in which Gaines said that Rafael Robinson was the man in the Blazer that was involved in the Davis murder. There is also a Des Moines Police Department report that parallels the FBI report.

The police received this report from the FBI and it lay in the Robinson homicide file until it surfaced-or resurfaced, if you will- some time after Flores' appeals were exhausted.

However, the existence of the reports was known to several people who defended various people in the blizzard of cases that landed most of these murderous criminals in prison for long stretches or in the morgue.

William Price, an attorney and now a judge, was given the Gaines report, as was James Benzoni, another attorney who was directly involved in the Flores trial representing Jarmaine Allen in his role as a witness in the case. Jodi Wignall, an assistant to attorney Maggi Moss, also was given the report or reports.

John Wellman's legal assistant Delores Mason says she never saw the reports, and she read all of Wellman's files because he was blind.

What Judge Nickerson will have to decide on March 23 and 24, therefore, is if he can read the mind of a dead man who was also blind.

It's difficult for me to believe that if evidence landed on my desk that tended to exculpate another defendant and did not inculpate my client or anyone else now living, that I would not pick up the phone and say to the guy's attorney "I've got something you should see that helps your client."

On the other hand, one might think that if the evidence could tend to throw suspicion on one's client that would militate against any such back fence disclosure. However, most of the other defendants had already been tried and convicted by the time Flores was himself tried.

It's difficult to see how disclosure could have affected the appellate rights of the clients of the people who knew about the 1996 interview and reports.

a) Potentially exculpatory evidence standard.

Under Brady v. Maryland 373 U.S. 83 (1963) a due process violation occurs when prosecution fails to turn over evidence that is favorable to a defendant. The same evidence can form the basis of a newly discovered evidence claim. A defendant asserting a Brady claim must show that prosecution suppressed evidence that was favorable to the defendant and was material to the issue of guilt.

The core issues here are whether the evidence was suppressed, and whether inadvertent misfiling constitutes suppression for purposes of a Brady analysis. Harrington, cited below, states that nondisclosure is the basis for the violation, and that good faith or the lack thereof is unimportant. It also indicates there is a prosecution duty to learn of potentially exculpatory evidence and whether the prosecutor learns of its existence or not, they bear the responsibility for nondisclosure.

Of critical importance here will be whether John Wellman knew or should have known enough about the Gaines interview and report to have done something about it. If he knew about it, the game is over.

If the Gaines interview was found to have been suppressed within the meaning of Brady, the inquiry then becomes whether it was favorable to the defense and material to the issue of guilt.

There's no doubt the report was favorable to the defense if you believe Calvin Tyrone Gaines has any credibility.

Whether it was material depends on whether there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. Because it was a close case, the materiality threshhold is rather more likely to be reached.

b) Newly discovered evidence and witnesses.

Under Harrington v. State, 659 N.W.2d 509 (Iowa 2003) a newly discovered evidence claimant must show that the evidence was discovered after the verdict, that it could not have been discovered earlier in the exercise of due diligence, that the evidence was material to the issues in the case and not merely impeachment or cumulative evidence, and the evidence probably would have changed the result of the trial.

Whether or not the Gaines report constitutes newly discovered evidence lies mostly in whether it could have been discovered through the exercise of due diligence. At least three attorneys involved in parallel cases knew about it, and presumably the Des Moines homicide squad knew about it.  That's one of the critical points Judge Nickerson will have to decide next month.

Whether it would have changed the results of the trial is a closer call.  

5. A Cast of Thousands That Cecil B. DeMille would be proud of.

Lately we've been hearing "Oooooh! Three people who don't know each other came forward and said Flores wasn't in the Blazer!". 

In particular I saw this in Rekha Basu's column in the Register not too long ago. 

So let's look at the tape. Some cast of witnesses.

Derek Thompson, a witness in the original trial who was wounded by one of the shooters, now says that Robinson was in the Blazer and is now willing to say that he perjured himself at the Flores trial. Considering that the statute of limitations has run out on perjury, that doesn't seem to be much of a giveaway.

Carla Harris  Robinson's former girlfriend,  now says that Robinson admitted that he was the culprit. She says she was unaware that Flores had been convicted of the Davis homicide, but in the hothouse world of gang strife in a small midwestern city where she had a significant relationship with one of Flores' associates, that seems unlikely. Either way, the testimony would be inadmissible hearsay in any retrial of Flores.

Calvin Tyrone Gaines the aforementioned, also says that he helped Robinson flee the territory in the aftermath of the Davis homicide and that Robinson admitted to him that he'd been involved. 

There's some crossover that relates to the Gaines report getting into the Robinson file because at the time of the report, Robinson was not dead yet-he was killed in July 1996. Either way, Robinson's alleged admission to Gaines would also qualify as inadmissible hearsay in a retrial of Flores. 

Interestingly, Gaines alleged that Robinson was subject to a murder contract put out by the Crips because he did not respond appropriately to a homicide wherein one of his associates was murdered. 

If that is so, it would have made Robinson persona non grata among the entire Crip set and that tends to negate the idea that Robinson would have been anywhere near the scene of the Davis murder or involved in a pursuit driving Tina McGarey's Blazer.  Or, for that matter, the story does not explain why a person with a price on his head ordered by Crip fiat would be driving a vehicle belonging to a member of the local Crip set. 

I don't know about you but I'd be reluctant to carry water for people who wanted to kill me, and I'm quite sure they wouldn't be lending me their rides unless you figure that Robinson was working off his passage and attempting to ingratiate himself with the set. Either way, it's speculation that leads to a dead end.

As it turns out, Robinson did not have to wait long for the contract to be carried out.

Gaines currently receives mail through the California Department of Corrections.

Jarmaine Allen now says that he never saw David Flores at the shooting in which Davis was killed. Allen explains that he had no intention of telling authorities the truth about the shootings in 1996 because he was no snitch, wanted to take the fifth and beat feet out of town, and because Vincent Cortez Brown had not yet gone on trial.

The notion of criminal solidarity much less between sworn enemies from opposing clans renders the entire account dubious. In addition, one questions the amount of credibility that can be attached to the proffered testimony of of someone who did not want to be a snitch, wanted to cover for his associate, intended to abscond, and now decides to change his story yet again after spending 12 years in the same prison as Flores. It's equally likely that this liar and perjurer seeks some advantage of his own in the telling and retelling of his account. 

Antonio Speed another member of the Allen posse, pled guilty to a lesser charge for his role in the Davis homicide. He has since been in and out of prison for various offenses.

Rafael Robinson was killed shortly after the Davis murder by person or persons unknown, so perhaps Gaines may have been correct in his analysis.

Dawue Stigler was a suspect in the death of Rafael Robinson. Stigler was beaten, shot to death and dumped in a field by Darrel Smith, Larry Botts, Joseph Houston, Damon Calaway, and Tohamed Fowler.

Smith, Botts, Houston and Calaway are all serving long prison sentences for their role in the death of Stigler.

Fowler is serving time on an unrelated robbery and parole violation beef.

The murder of Rafael Robinson is unsolved and the investigation is ongoing.

David Flores and Tina McGarey still appear as contract buyers of the house at 3427 47th Street in Des Moines, which is depicted above.

John Wellman, David Flores' original attorney at trial, is dead.

Postscript 2/7/09.

I've been thinking about this case for a while-ever since Phyllis Davis became a casualty in this war between homicidal idiots.  

I'm offended by the protagonists and their apologists and sycophants who so casually dismiss the memory of this good and honest woman who was blameless, and did more for the cause pulling weeds in her garden than these pieces of dung ever did in their sorry lives, and drowned in her own blood at their hands. 

They had their stupid assed war and didn't give a tinker's dam who got hurt. Shame on them.

And shame on all those, who if they didn't pull the trigger, waded hip deep in this pigpen.  

Photo credits Google Earth, Des Moines Register, Polk County Assessor

This article is subject to revisions as new information emerges.  Revised 2/7/09.

From the Podiatry, Moral Probity and Dangerous Weapons Desk

Folks, I didn't make this up.

From the Columbus Dispatch, bes' li'l ole scandal sheet around central Ohio we are informed that one Yusuf Evans was seated at the stage in the XTC Lounge nightclub and strip joint in beautiful downtown metropolitan Akron.

When an exotic dancer identified as "Tiara" (why are they not named things like Sue, or Betty or Carol? but I digress) went into her....ahem.... routine her 1970s style platform shoe flew off  and mashed Yusuf in the face, the centrifugal force being too much for the lashings to contain I suppose.

He says he's had trouble breathing ever since and has filed suit against the XTC Lounge for $25,000. He also says that he doesn't frequent strip clubs and it was an exception.

Giving It The Old Heave Ho

State v. Taylor, no. 07-1186 (Iowa Ct. App. Jan. 22, 2009)

Taylor's car was stopped on 63rd Street in Des Moines  for failure to display license plates.  After his girlfriend showed up with his insurance card, he was asked to step out of his car. Taylor then drove off and was chased to the corner of SW Creston and 63rd street where he wiped out and fled on foot.

Nobody saw him throw anything from the vehicle, and nothing of an incriminating nature was found in the car. Another officer who had not witnessed the Taylor vehicle's line of travel saw a baggie in the road between skidmarks and 25 feet behind Taylor's car which contained 12.7 grams of crack.

Taylor was convicted of possession with intent to deliver and tax stamp violations. 

He appealed, arguing that the evidence was insufficient to support the element of possession of the contraband.

The court of appeals found that there was insufficient evidence to show either actual or constructive possession of the narcotics, because the fact that a defendant drove the car was not sufficient to find constructive possession of the contraband. Where the facts only show non exclusive possession of the premises and raw physical ability to exercise control the state was required to provide additional proof of constructive possession. 

Although Taylor did offer to cooperate with police it could not link him to the drugs found in the street.

The object lesson is clear. Tie the suspect to the contraband, either visually or verbally or risk losing the case. 

Battered Spouse Syndrome Gets Another Look In Iowa

State v. Price, no. 07-1659 (Iowa Ct. App. Dec. 17, 2008)

Price stabbed her abusive significant other to death and was charged with voluntary manslaughter. Price pleaded not guilty and noticed the state on a defense of diminished responsibility, whereupon the state amended the trial information upward to second degree murder. Price hired an expert witness who would testify on her behalf about the battered spouse syndrome. 

The state argued that the testimony was irrelevant and the court agreed, finding that the stabbing arose out of a confrontation rather than being a non confrontational homicide. Price testified in her own defense that she feared for her life and had been advised by friends that the boyfriend would stop beating Price if she stabbed him.

After the first jury couldn't return a verdict Price again attempted to introduce battered spouse syndrome evidence with a different expert witness, and the testimony was again refused by the court for the same reasons, that the jury did not need an expert to tell them about the defendant's state of mind.

After the second trial Price was convicted of voluntary manslaughter and appealed. The court of appeals noted that battered spouse syndrome evidence was admissible under State v. Rodriquez, 636 N.W.2d 234 (Iowa 2001) and State v. Griffin, 564 N.W.2d 370 (Iowa 1997). 

The court then reviewed cases from other states where battered spouse syndrome evidence was relevant to a claim of self defense and found them informative and persuasive.

The court concluded that although battered spouse syndrome was not in itself a defense, it could aid the jury in determining whether the defendant's fear and self defense claims were reasonable.

What's the takehome?  First, Price's friends were correct in their assessment that stabbing her boyfriend would cure him of the abuse habit.  

More importantly, we're likely to see more battered spouse syndrome evidence presented in future cases. 

The brutality's unimaginable to those who haven't experienced it. 

It's serious stuff, folks. Educate yourselves.

I Always Feel Like somebody's Watching Me, Part 2.

State v. Athan,  158 P.3d 27, (Wash. 2007).

In this case, a 13 year old girl was murdered and raped in 1982, and dumped in a cardboard box. Athan had been a person of interest because he was known to frequent the area where the girl was abducted from. He was not charged, but a cold case review twenty years later cast an investigative eye on him. 

Detectives created a ruse to get a DNA sample from Athan without alerting him to the reopened investigation because it was determined that he was a flight risk.

What they did was they created a letterhead from a fictitious law firm that was allegedly pursuing a class action lawsuit concerning parking tickets. They sent Athan, now living in New Jersey and a flight risk, a class action authorization with a stamped return envelope. Athan filled out the form and....you guessed it....licked the envelope flap.

The rest is history. He's a guest in a fine Washington correctional facility for the foreseeable future.