The Killer Inside Him
The twisted life--and lethal secrets--of Gary Davis
By Alan Prendergast - WestWord.com
October 16, 1997
Like hundreds of other men on death rows across
America, Gary Lee Davis paid attention when Ted Bundy took the juice
in Florida's electric chair in 1989.
Just hours before his execution, while the hecklers
gathered outside sang "On Top of Old Sparky," Bundy granted his last
interview to psychologist and evangelist James Dobson, head of Focus
on the Family. The nation's most notorious serial killer told Dobson
that his murderous attacks on women could be traced to his adolescent
fascination with pornography.
Davis thought Bundy was pulling the good doctor's
leg. "I can't see [how] looking at naked pictures would make someone
kill somebody," he wrote in a letter to a friend a few weeks after
Bundy's death. "That's a copout...anyone who believes that shit is
Whatever else he was, Davis wasn't pure stupid.
True, he offered his share of copouts. In the sinking twilight of
death row, condemned men find ready-made explanations for their
horrendous crimes: drugs, childhood abuse, loveless marriages, low
self-esteem, evil companions, the absence of God in their
lives--whatever might play best in the appeals courts.
Davis's excuses ran the gamut, but his favorite
scapegoat was his alcoholism. "Sober, I consider myself a real nice
person," he said. "Drunk, a real live monster."
Yet in his more candid moments, Davis acknowledged
that his drinking was only a catalyst for, not a cause of, his
rampages--a way of unshackling the demons within. In his letter
sneering at Bundy's confession, he added, "I've always had a strong
driving force inside of me for some reason. Alcohol let me go for it."
Davis went for it more than he cared to admit. Like
Bundy, he spent much of his adult life stalking and terrorizing young
women, reveling in their pain, drowning any qualms he might have had
in a sea of booze; in letters to a longtime confidant, made available
to Westword after his bid for clemency failed, he estimated that he'd
raped fifteen women in the course of his sorry existence. Unlike
Bundy, he didn't make a habit of killing his victims--not until one
horrific day in July 1986, when Davis and his third wife, Rebecca
Fincham, kidnapped their neighbor, 32-year-old Virginia May. They took
her to a deserted field outside of Byers, sexually assaulted her, and
then, while May pleaded for her life, shot her fourteen times.
On Monday it was Davis's turn to die. He was the
guest of honor at Colorado's first execution in thirty years--a
long-delayed act of retribution on behalf of the grieving family of
Ginny May, a source of outrage to death-penalty foes, a muted
spectacle to feed the thrill-crazy media and a vengeful public (see
related story, p. 20). The state's executioners strapped him onto a
cross-like gurney, opened his veins and flooded his heart with
potassium chloride. They put him down like a rabid dog.
What he did to Ginny May, Davis admitted, was a
"sick, stupid crime," and he paid the price for it. Yet the "driving
force" he wrote about isn't so easily dispatched. The sickness had
been gnawing at him years before the murder, but Davis rarely spoke of
it; when he did, the truth was often obscured by self-serving lies. As
he wavered between wanting to die and trying to stall his execution,
Davis told several versions of the slaying, sometimes blaming Fincham,
sometimes himself--a routine that infuriated his lawyers and
bewildered his handful of supporters.
Davis "told too many stories to too many people,
and no one really knows what the truth is," Craig Truman, his trial
attorney, told reporters on the day of his sentencing. "I guess I
wonder if he even knows what the truth is."
But Davis knew. He even put it in writing, in
letters from death row, when he figured he had nothing left to lose.
Davis had several pen pals; one, a woman from Ireland, flew to
Colorado for a final visit before his execution and paid for his
cremation. His longest and most enduring correspondence, though, was
with a Denver woman, a prison activist who plied him with questions
about his family and his relationships with women. For more than ten
years, from the time he arrived on death row until a few weeks before
his death, Davis carried on a friendly, occasionally flirtatious and,
at times, surprisingly candid dialogue with her.
The Gary Davis who emerges in these letters--lying,
denying, fantasizing and sporadically confessing--is a different
creature from the wan, soft-spoken ghost who appears in the videotape
his lawyers sent to Governor Roy Romer in his final clemency appeal.
He is smarter and more tortured than his few press interviews would
suggest. He is also, despite his vile crimes, uncomfortably human.
It takes years to make a sexual predator. Davis
started early, and his journey to death row was a particularly grim
and nasty one. That he drew so many others into his private
hell--including, finally, Ginny May, an innocent young mother who had
become the object of his warped fantasies--brought him more grief and
self-loathing than one might expect.
"I'm revealing things that I have kept closed up
all my life," he wrote in one of his first letters from death row.
"Being I'll never come face to face with you I find it easy to talk. I
know some of it may seem like trash, but I've lived in that trash for
years...I've always hated myself for what I've done."
I want to write you in my own words about my
feelings of needing a woman without her consent. It'll be like a
cleansing for me...For the first time in my life I'm going to let
someone inside my mind. I've tried talking to doctors but can't really
say anything to them. (10/7/87)
At a very young age I thought it was okay to take
pussy if you wanted to. Most girls or women won't turn you in as long
as they don't get hurt. (10/18/87)
A good man will take your thoughts first and treat
you as if you were a baby...I will tell you a few do's and don'ts to a
happier sex life if you like. (10/23/87)
Rapists often consider themselves experts on the
topic of sex. Gary Davis was no exception. He boasted that he'd lost
his virginity at age twelve, in the bed of a school chum's lusty
The truth was probably much meaner, the kind of
thing you don't want circulating around a prison. In a 1987 letter
that he asked to be read and destroyed, as well as in conversations
with psychologists during the appeals process, Davis claimed that his
earliest sexual experiences came at the hands of two older
stepbrothers, who used him like an inflatable doll.
Born in 1944 in Wichita, Kansas, Gary Lee Gehrer
was the middle son of three; his mother remarried when Gary was eight
years old. His attorneys and supporters have made passing references
to his absent biological father, his "aloof" stepfather, his "strict"
grandfather, but the alleged sexual abuse is rarely discussed.
Possibly because of his recent reconciliation with various family
members, the subject received scant mention in his appeals and was
scrupulously avoided in his clemency petition.
Whether the abuse ever took place or was as severe
as Davis described it remains an open question. But Davis was adamant
about it. "I was molested dozens of times as a child," he wrote, and
proceeded to give a graphic account of how two of his teenaged
stepbrothers would return from dates with girls, make him sniff their
crotches and then force him into oral and anal sex. The alleged abuse
continued from the age of nine to twelve, but he insisted it had
little to do with his later behavior: "I think people use that as a
crutch. Everyone wants to blame what they do on other people or
One of his brothers has described the young Gary as
a follower, a kid who "couldn't be aggressive" and "wouldn't fight
nobody." Davis never told his parents about the abuse; apparently, he
never confronted his stepbrothers, either. "I don't feel any anger
towards them," he wrote in 1987. "A little hurt, but what can I say."
In another letter, Davis detailed his encounters
with "Mary," the insatiable older woman who supposedly was his first
female sexual partner. Mary ravished him, he wrote, then insisted that
he bring girls to her house and take them by force while she
supervised. The account smacks of sheer fantasy; Davis admitted as
much in a later letter, apologizing for his "sex stories." But it's a
revealing lie, a window into Davis's misogyny--instead of venting his
pain at what his stepbrothers did to him, he invented an evil,
sex-hungry bitch goddess who taught him how to rape.
Davis dropped out of school after the ninth grade.
In 1961, at the age of seventeen, he joined the Marines. After boot
camp he married his childhood sweetheart, Tonya Ann Tatem. The
marriage lasted five years and produced two sons, but it began to fall
apart shortly after Davis was shipped to Okinawa. He became wildly
jealous of his wife, whom he suspected of cheating on him, and began
to drink heavily.
His paranoia and alcoholism didn't go unnoticed in
the Marines; the government wanted lean, mean killing machines, but
not with his kinks. Following some loose talk about bayoneting an
officer, he was diagnosed as having "homicidal tendencies" and an
"emotional and unstable personality with schizoid trends" and given a
Back home, Davis worked as a cook, a meat-cutter
and a factory grunt. He was frequently unemployed as a result of a
series of auto and industrial accidents. His wife left him, taking the
children with her.
He would later claim that the marriage failed
because he found a job traveling around the country as a male
stripper--a dubious assertion at best, although he did work briefly as
part of a nightclub comedy act, playing a go-go dancer in drag. But if
his supposed career as a stripper is another fantasy (it was "more or
less like a dream come true," he wrote), it's not far off from the
kind of exhibitionism in which Davis was soon engaging regularly.
"When I got older, early 20s, I found myself going
around showing myself to women wherever I could," he wrote. "I'd show
myself, and after the woman would see me, I'd find somewhere to jack
off. At this time I had a beautiful wife at home. I needed this
excitement in my life.
"As years went by just showing myself wasn't
enough. I had to touch. I needed some pussy by force. To hear the girl
or woman scream and beg as I did. Every person I raped I enjoyed."
Booze was a constant part of the equation: "The
more I drank the more I raped. When I wasn't drinking, I wasn't
thinking of pussy. Give me a drink and I had to have it. Finally a
murder took place in Byers...Please don't hate me for this."
It's impossible to know if Davis's claim of raping
fifteen women is accurate or just another grotesque boast. Doubtless
he made more attempts, and probably committed more assaults, than he
was ever charged with. His early targets tended to be adolescents,
underage girls he could frighten into not reporting him. Prior to
1969, all of his arrests were alcohol-related--drunk driving,
urinating in public. Even subsequent felony convictions in Kansas for
grand larceny and embezzlement (1969) and burglary (1970) don't
provide much of a picture of what he was becoming.
Yet the darkness was welling up in Davis. The need
to expose himself, to force himself on women--to touch, to take, to
give pain. "I've never thought about getting into trouble until it's
over," he explained. "During and before it happens all I'd think about
was making them do whatever I wanted...I'd just lay there with a smirk
on my face yelling at them and watching them cry and beg me not to
hurt them. Some of the girls were real young, some were grown women.
I'd treat all of them the same. If they didn't cry or beg it would
take the excitement out of it."
Afterward, he wrote, "sometimes I'd sit there and
cry and want to hold the person and tell 'em how sorry I was. The next
day I'd be right back out looking again."
I have been locked up one time for a rape charge.
That doesn't make me a sex offender. I went to church once, but that
doesn't make me a Christian. (7/27/89)
Everyone told me I'd come off death row. I've got
to quit trusting people...The papers say I have about five years left,
the lawyers say about two. I see the one paper is still putting rape
[of Virginia May] as one of my charges. As if it's not bad enough
In 1974, at the age of thirty, Davis married for a
second time. His bride was a seventeen-year-old named Leona Coates.
The relationship lasted eight years, during which Leona gave birth to
four children, but it was doomed from the start. It couldn't offer the
excitement Davis was looking for.
Davis would later claim that Leona was pregnant
when he met her and that the marriage was a rocky one, "a big
mistake." He stayed with her because "she kept shelling out kids."
"I really thought I was doing her a favor," he
wrote in 1987. "Softhearted Gary."
Leona has given different versions of their
marriage. After the murder of Ginny May, she told police investigators
that Davis had abused her in drunken rages, tried to coerce her into a
menage a trois with another woman and had once pointed a gun at her.
Nine years later, in the course of Davis's federal appeals of his
death sentence, she recanted much of her previous statement, saying
that the gun was plastic and that Davis was a good husband and father
who drank too much on the weekends. (In a 1995 interview with a
California psychologist, Davis admitted to being "physically and
verbally aggressive due to his alcohol consumption" in all three of
Davis didn't get his threesome; that would come
later, as his quest for variety became increasingly bizarre and
violent. Instead, he spent much of the last three years of the
marriage in trouble with the law. In 1979 he lured a young female
clerk out of a convenience store in Baca County on the pretext of
needing help with the ice machine; once outside, he held a knife to
her neck and dragged her into an alley. The woman struggled and
escaped, sustaining wounds to her hand and throat.
Clearly, Davis had rape on his mind, but he wound
up copping a plea to felony menacing. He spent less than a year in
He was out only a matter of months when he got
caught again. This time the victim was a fifteen-year-old girl, the
daughter of one of Leona's friends. Davis claimed the girl reported
him because he'd promised her $300 for sex, then reneged; prosecutors,
though, believed the girl, who said Davis had pulled a knife on her
and raped her.
Incredibly, this time Davis managed to plea-bargain
his way to an eight-year sentence for sexual assault--which meant that
barring bad behavior, he'd be out of prison in less than four. In
hindsight, it's easy to see that he was headed for worse crimes; both
assaults were the unmistakable acts of a violent predator, a man who
chose the most helpless victims he could find. But in the early 1980s,
programs for sex offenders were still in their infancy. The
criminal-justice system tended to treat men like Davis as poor dumb
shlubs who just needed to keep a sober head on their shoulders.
Corrections officers regarded Davis as a model
prisoner. He kept to himself, earned special privileges, went through
the motions of alcohol treatment--all the while thinking about that
first drink he was going to take the moment he hit the street. And,
like a lot of cons, he began to collect female pen pals.
One day another inmate gave Davis the address of
Rebecca Fincham, a lonely woman who'd answered the inmate's personal
ad in a newspaper. Davis began to write to her, too. Fincham wrote
back, telling him about her two young daughters and her unhappy
marriage to a man who drank too much. Davis sympathized and flirted.
After two or three letters, she asked, "Do you miss sex?"
It was not so much a question as an invitation.
Hell, yes, Davis wrote, he missed it. In short order, Fincham's
letters went from coy to teasing to torrid. To call them "sexually
explicit" would be an understatement; they oozed sex.
Becky Fincham talked a good game, Davis learned,
and had the experience to back it up. As investigators would later
discover, Fincham and her husband had been involved in wife-swapping
on an Army base in West Germany--the husband claimed it was Becky's
idea--and had returned to the United States with a cache of
pornography and sex toys.
Davis was impressed. Here was a woman who wasn't
shy or prim, a woman whose rich and varied store of fantasies could
keep pace with his own. He had found his match at last. His mate.
Together they would do terrible things.
This victim in this crime was not touched by me in
no way. That story I told while on the stand was to get Becky off. It
was Becky's crime not mine. (7/27/89)
Davis had to revise his image of Becky Fincham
after she started visiting him in prison. She was obese and seemed to
be missing her eyebrows. She had scars on her breasts and arms, which
she told Davis were the result of a sexual assault that occurred on an
Army base in Georgia years before. He thought she was repulsive; years
later, he even recalled being "scared of her because she was so
Yet Davis could not have asked for a more attentive
girlfriend. She bought him a television, boots and expensive silk
handkerchiefs; now divorced, she visited every weekend, bringing her
daughters with her, and always provided him with spending money, ten
or twenty bucks a week. Davis figured she could take care of him
during his prison stretch and maybe afterward, too.
During one visit in 1984, he asked her if she would
marry him. Much to his surprise, she said yes. They were married over
the phone by a minister. Fincham's daughters began to call him
Not long after the ceremony, another inmate became
interested in Fincham's thirteen-year-old daughter and asked Davis if
he could write to her. Neither he nor Fincham had any objections. In
fact, the ever-helpful Becky sent the boys a special treat: a photo of
herself topless for Davis, a semi-nude shot of her daughter for his
pal. The photos were intercepted by prison officials. Fincham was
charged with sexual exploitation of a minor, and her visiting
privileges were revoked.
Unable to have any physical contact, the newlyweds
devised a telephone game to keep the fires burning. As Davis described
it, the game involved Fincham trying to act out fantasies that he
requested. Both of them were indifferent, it seems, to the fact that
Davis's collect calls were subject to monitoring by prison
"Mr. Davis indicated that he would like to hear her
'give head,'" a psychologist reported after interviewing Davis about
the relationship. "Ms. Fincham then brought a male named Jay into the
house and did this, while the telephone receiver was off the hook so
that Mr. Davis could hear. Mr. Davis reports that he had never met a
woman who would say and do these kinds of things, and that he found
this very amazing."
According to Davis, Fincham also described
imaginary scenarios to him over the phone in lurid detail: picking up
and seducing a man who resembled Davis; picking up a woman at a gay
bar; having sex with a friend while the friend's husband watched; even
being raped by "a male who resembled a prison guard." The fantasies
were at the core of what they had together--more satisfactory,
certainly, than the physical relationship they embarked upon when
Davis emerged from prison in 1985.
His release posed a number of problems for the
couple. Fincham had received three years' probation on the
child-exploitation charge. In order for a rapist like Davis to parole
to her residence, she had to send her daughters out of state to stay
with her parents. And since both she and Davis were under court
supervision, they had to steer clear of his old habits, such as
drinking and pulling knives on underaged girls.
For a few weeks it looked like things might work
out. The couple landed a job managing an Aurora apartment house, and
Davis kept a lid on his boozing. But he couldn't hide his physical
aversion to Fincham, and soon both he and Fincham were drinking and
trolling for new kicks.
"I thought when I married Becky that I could
overlook her being so fat," he later wrote. "She had a place for me to
come out to and I knew I would not be lonely. But I was wrong, I was
lonely, even with her. I took up drinking again to fill the empty void
in my life. Also I drank to have the stomach to touch that fat broad."
Drunk, Davis had a perfect excuse for failing in
his matrimonial duties: "Yes, I was impotent while drinking and around
Becky towards our last months together. To be blunt, it was damn hard
to even get a hard-on when Becky would give me a blow job. I just
didn't have any feelings for her."
It was a situation worthy of a Jim Thompson novel.
In prison Davis had met the woman of his dreams, but now that he was
on the outside, he found himself trapped in a beer-soaked nightmare
with a "fat broad" he couldn't stand. Desperate to live out the
fantasies they'd promised each other for so long, they propositioned
other residents of the apartment complex. Although they were usually
turned down, on occasion Fincham would engage in sex with a female
neighbor or the neighbor's husband while Davis watched.
It wasn't enough. Davis's attention was drawn to
another female tenant, whom he found much more attractive than his
wife or her playmate. He told a buddy that he wanted to drug the woman
and rape her.
Fincham became suspicious of her husband, demanding
a frequent accounting of his activities and whereabouts. She also
started fooling around with his hair, dyeing it different colors. "I
think it made her feel like she was out with someone different all the
time," Davis mused.
After six months the Davises had worn out their
welcome at the apartment house. They were accused of ripping off
tenants, taking money for services and repairs that were never
provided. Their constant lying, drinking and sex talk were generating
other complaints. So Becky answered an ad for a ranch hand on the
eastern plains, faking a resume that claimed the couple had been
married sixteen years and had extensive farm experience.
In February 1986 they got the job and moved to
Byers. The community was small, the prospects for wife-swapping quite
bleak. As a rule, Davis had to go into town if he wanted to ogle other
women. Fincham often came with him. Sometimes, Davis would later say,
they talked about kidnapping women and turning them into sex slaves.
In May they went to a discount store in Fort Morgan
and bought a .22 semi-automatic rifle. The purchase was a violation of
Davis's parole, but he didn't think anyone would notice or care. They
If anyone asked him what the rifle was for, Davis
had his answer ready. It was for all the snakes around his house.
I think Rebecca could have done a lot more than
just shoot someone. You would have had to of seen her during the
crime. She had so much jealous anger built up that I didn't even know
who she was. (11/10/87)
I would get crazy thoughts in my head and my friend
would give me the courage to live them out. (From "My Friend," an
essay about alcoholism that Davis wrote while on death row.)
Gary Davis drank heavily in the weeks leading up to
the murder. Bloated and bleary-eyed, he and Becky cruised around Fort
Morgan, searching for their ideal "playmate." But as he saw it, the
best prospects were located close to home, on the ranch adjacent to
the property where the Davises lived. He talked often about his
slender, attractive neighbors, Virginia May and her sister-in-law, Sue
MacLennan--talk that made Becky furious.
A ranch hand would later testify that Davis made
coarse remarks about May when they repaired fences close to her
property. One time, while relieving himself, he even waved his
genitals in the direction of her home, saying, "Come on, Virginia,
baby. I'm here. Come to me."
The oldest in a close-knit ranch family, May was
just weeks shy of her 34th birthday. She had a husband, a young son
and daughter and a busy life of her own. She had no reason to suspect
that she'd become a featured player in the squalid, pornographic movie
playing in Davis's head. She barely knew Gary Davis.
As it turned out, Fincham and Davis targeted May
only after two other attempts failed. On July 18, 1986, a woman named
Tammy Beauprez, who lived on a farm south of Wiggins, was visited by a
couple in a car bearing Kansas plates. While the woman driver asked
directions to Byers, the man got out and tried to move behind
Beauprez. When Beauprez's husband appeared, the man got back in the
car and the couple took off. Beauprez later identified the odd
visitors as Becky and Gary Davis.
Three days later--July 21, the last day of Davis's
parole--Sue MacLennan received a phone call from Becky, who wanted to
know if her husband was home. When MacLennan said he wasn't, Becky
offered to drop off some used clothes for MacLennan's children. There
were no clothes, but shortly after the call the Davises showed up at
MacLennan's house with the .22 rifle in their car. Seeing a male ranch
hand outside the house, Becky stayed only long enough for a quick iced
tea. Her husband never got out of the car.
Early that evening the Davises showed up at
Virginia May's door. May was expecting them; Becky had called her,
too, offering children's clothes. She came out of the house with her
four-year-old, Krista. Becky lured her to a tool shed with a request
to borrow some wire stretchers. When they emerged, Gary Davis punched
May in the face and dragged her into the car, while Becky shooed
Krista into the house.
What happened next has been recounted many times,
but never with absolute certainty. Davis and Fincham have made so many
conflicting statements about their crime that none can be accepted as
gospel. In one version, Davis hauls May out of the car, takes her out
of sight and goes berserk while a helpless, terrified Fincham sits in
the car, oblivious even to the shooting because she keeps the windows
rolled up. In another, Davis is painted as a confused, passive
accomplice while Fincham, in a jealous rage, barks orders and commits
most of the violence.
The most credible version, based on statements
Davis made to his own attorneys and physical evidence presented in
court, is a duet of atrocity. May was stripped and dragged out of the
car with a rope around her neck. Davis attempted, but may have failed,
to have sex with her. (Despite his testimony in court that he
assaulted May repeatedly, for years afterward he insisted he did not
"rape" her--which could be true, but not, it seems, for lack of
trying.) May was then forced to engage in oral sex with Fincham.
Throughout it all May fought and pleaded for her
life. She offered the couple a thousand dollars to let her go. But
both Davis and Fincham must have known where this was headed long
before they pulled up at May's house. Davis struck her in the head
with the rifle butt, fracturing her skull. She still had the strength
to raise her hands in a final effort to defend herself as she was shot
fourteen times with hollow-point bullets.
Defense lawyers have speculated that Davis and
Fincham took turns firing the rifle, partners to the end. A
psychologist retained by Davis's appeals team suggested that the
multiple gunshot wounds--nine to the head, four to the torso, one to
the groin--may have been the work of an enraged woman seeking not only
to kill but to disfigure her rival. But Davis has said that he, and he
alone, did the shooting. He admitted it in his first, fragmentary
"confession" to police and in his final televised apology to May's
family, aired a few weeks ago.
Yet Fincham was hardly an innocent bystander. It
seems unlikely either one could have been capable of such depravity
alone; together they fueled each other's fantasies, goaded each other
into the abyss. Investigators suspected that much of the sexual
paraphernalia found at their residence after the crime--not just
garden-variety smut but glossy magazines celebrating torture and pain,
as well as a collection of dildos and butt plugs--belonged to Fincham,
who was not above writing long, raunchy letters to her own daughter
detailing her efforts to keep "Daddy" interested in her. Davis would
later claim that she even offered him her fifteen-year-old offspring
as a possible sexual partner, but he declined.
The two were instant suspects in the disappearance
of Ginny May; when May's husband came home and found the children
alone, they told him their mother was gone because "Becky took her."
As night fell, the police and frantic family members attempted to
question the Davises about May's whereabouts. Although Davis
supposedly had consumed a case of beer that day (and would eventually
blame convenient alcoholic blackouts for his failure to recall details
of the crime), a sheriff's deputy thought he seemed quite sober. As
she always did, Becky did most of the talking for both of them.
"We want to do everything we can to help you find
your daughter," she told Rod MacLennan, Ginny May's father. "I know
how you feel. I was once raped myself."
Later, at the Strasburg sheriff's substation, Davis
insisted on being allowed to talk to Fincham before he would make any
statements about May. The two were allowed a brief conversation in a
small library at the station.
"The ball game's over, babe," Davis said.
"Don't tell 'em shit," Fincham replied. "We'll get a lawyer."
I hope Bob Grant don't tell everyone he won my
case. I won it for him. (1/20/88)
I have already contacted a lawyer about putting a
stop to my appeals. It has NOTHING to do with being chicken. I don't
think a chicken could do it. Sitting in this little square hole for a
decade isn't my bag of tea. I was raised in the outdoors and this is
really getting to me. Even if I had a life term, big deal...I don't
want a natural life in here...This is not a death wish it's what I
feel best for myself. (5/24/90)
Trying to get executed a few years ago put me about
three years ahead of Frank [Rodriguez]. You know one good thing about
being executed first is, the needle would be clean. (2/15/94)
On July 21, 1987, a year to the day after the
murder of Ginny May, Davis found out he was headed for death row. It
took the jury only three hours to find him guilty of kidnapping and
murder. It took another three hours to sentence him to death.
The verdict was no surprise. Two days earlier,
Davis had sabotaged his own defense counsel by taking the stand and
insisting on taking all the blame for the crime. Attorney Craig Truman
had tried to save him from the death penalty by arguing that Rebecca
Fincham, who'd already been convicted of murder and was facing a life
sentence, was just as culpable as Davis, so Davis should receive life,
Davis, though, was the prosecution's best witness.
He'd received a ten-page letter from Becky, who'd divorced him, urging
him to "do the right thing." He decided that meant meekly answering
"Yes, sir" every time Adams County prosecutor Bob Grant asked him if
he'd kidnapped, raped and murdered May. Truman's frustration with his
client was evident in his closing remarks.
"There are times in this case when I hate Gary
Davis," he said. "Gary Davis has lied to me...In a lot of respects he
has set me up for failure."
Davis had told Truman several different tales about
his role in the slaying. In a letter to a psychiatrist seeking an
evaluation of Davis, written a few weeks before the trial, Truman
stated that he believed his client "fits the old sexual psychopath
standard in that he is very twisted sexually... There is no question
as to 'who done it.' Mr. Davis is tied up in this thing far beyond
that which he is occasionally willing to admit. He has admitted the
killing and most of the sexual acts to me."
In a packed courtroom, he admitted it again,
sealing his fate. In fact, Davis was in a tremendous hurry to end his
life. Shortly after his trial, he wrote a letter to Governor Romer,
urging an immediate decision on clemency in his case rather than
waiting for the automatic appeals process to run its course. "If you
decide death," he asked, "can't we please get it done?"
His impatience probably had less to do with any
pangs of remorse than with an old con's weariness at being locked up
with himself. His early letters from death row exude a steady stream
of self-pity and disgust, but despite his testimony, he was still
quick to deny murdering Ginny May. Death was simpler than coming to
terms with the devastation he'd caused.
Later, Davis would come to see his yearning for
death as another kind of copout. For the first few years he was on
death row, he wrote, he was "dry" but not yet sober--and heavily
medicated at one point with Xanax, an anti-anxiety drug.
"He told me he wasn't drinking like an alcoholic,
but he was still thinking like one," says Vicki Mandell-King, the
federal public defender who worked closely with Davis on his last
three years of appeals. "Then he began to wake up."
The turning point came in 1990, after the Colorado
Supreme Court affirmed his sentence. That summer Davis dismissed his
lawyer and directed his new one, Dennis Hartley, not to file any more
appeals. Hartley argued vigorously with him, pointing out that there
were several avenues still worth exploring, such as the issue of
ineffective counsel at trial. Truman had presented only two witnesses
during the penalty phase. Hartley believed that the jury should have
heard more about various "mitigating factors"--including Davis's
alcoholism, the possible mental effects of a bad car accident in the
1960s, his "passive-aggressive personality" and Fincham's supposedly
"dominant" role in the homicide--before imposing the death penalty.
(Truman assisted in this appeal, but the federal courts ruled that the
veteran defense attorney had done the best that he could, given his
client's refusal to cooperate with him.)
Davis relented and gave Hartley the green light,
but only after a call from one of his daughters, who reportedly told
him that he wouldn't see his grandchild unless he kept the appeals
going. In the course of researching the appeals, Hartley was able to
bring Davis back into contact with several estranged family members,
including his first two wives and their children, and that gave him
further impetus to live.
Of course, Ginny May didn't have the luxury of
choosing to live, even for a few more moments; but the decision was
surprisingly difficult for Davis. Death can seem a blessing, he noted
in his clemency interview, compared to life in the solitary confines
of a maximum-security prison: "To me, that's a worse sentence than the
In 1993 Davis was moved into the state's new
supermax, the Colorado State Penitentiary. Designed to hold unruly
inmates in total lockdown 23 hours a day, CSP has also become the home
of all five of the state's murderers slated for execution. Caged in an
eighty-square-foot cell, with few privileges and no opportunity to
breathe fresh air, Davis wasn't exactly living it up.
"Been over here one year today," he wrote in the
fall of 1994. "Seems like ten. I've got a lot of years to go in this
hole...Some days I wish I could lay down and die. I think that's what
the prison wants us to do. They loved it in 1990 when I tried to get
executed. You should have seen how nice they treated me back then. To
hell with them."
After his federal appeals failed, he probably could
have delayed his fate by making another run at the state courts, but
the prospect of stretching out his stay in CSP was unthinkable. "I
want out of this place either by walking or in a box," he declared in
1995. "Lately I've started to pace like the animals in a zoo. People
are sent to this building for short-term punishment, not long-term
housing. They break your spirit here so they can control you."
He added, as if an afterthought, "Hell, I've been
broken long before I came here."
I received over a dozen letters today from Colorado
Christians saying how much they want me dead. (7/20/95)
By all accounts, Davis's last years were suffused
with bitter ironies. He finally emerged from his alcoholic fog, only
to be plagued by heart troubles and other health problems. (Prison
officials, he joked, worked hard to save him so they could kill him.)
After he lost forty pounds and his vision blurred, he was diagnosed as
He reunited with members of his family, just in
time to lose some of them for good. He received news of the death of
his father and his favorite brother, as well as a phone call from a
son who was in a Texas prison for child abuse. A few months ago came
the worst blow of all, the death of a 24-year-old daughter from a
brain tumor. "I have never had pain before like that when they said my
daughter is dying," he wrote last spring; in his clemency appeal to
Romer, he said the loss had finally brought home to him what he'd done
to Ginny May's family.
He made a public apology for his crimes, admitting
full responsibility for the murder--but that was rebuffed as too
little, too late. Although Jim Sunderland, the Jesuit priest and
anti-death-penalty advocate who'd counseled Davis for years, insisted
that he'd undergone a "very genuine and thorough" spiritual
conversion, those who wanted him dead couldn't help but dismiss his
claims of having discovered his conscience as a cynical bid for
Yet those who saw most of Davis in his final months
tended to be impressed by him. He had changed, they say. No longer
whining or filling the air with lies, he talked earnestly about life
and death. He expressed more concern about how his lawyers were
handling their constant defeats than about his own fate; he took
solace in the fact that, as the execution date approached, the prison
staff was treating him with dignity and respect--"like a human being,"
he said. He seemed focused on dying a good death.
"Gary, it sounds like these last few years have
been a prayer for forgiveness," attorney Vicki Mandell-King told him.
"No," Davis told her, "they've been the answer to
He was no longer an eager volunteer for the death
penalty; always a follower, he was more like a resigned conscript than
anything else. He did agree to make one last videotaped bid for
clemency, on the theory that he still might be able to "help people"
if he were allowed to live, but it was an oddly low-key appeal.
Shackled and meek, he spoke blandly of the mess
he'd made of things--"It's hurt a whole bunch of people, this crime. A
whole bunch. On both sides"--and choked up a bit at mention of the
recent death of his daughter. When asked what he would do if the
governor spared his life, he spoke vaguely about being a cook and
spending time with his family, as if the question were too
hypothetical to take seriously.
He wasn't his own best advocate. But then, it was
important to him that he not be seen as a coward, the kind of man
who'd be caught on videotape begging for life--or death. When he found
out that Romer had turned him down, he couldn't even be outraged. "I
kind of agree with him," he told Mandell-King. "How I've changed does
not make up for what I've done."
Nothing could. He'd taken too much from too many
people. By his own lights, he poured the poison in his own veins the
moment he set out with Becky Fincham to make their wretched fantasy
come true, and nothing he'd done since could take that moment back.
His final victim was himself.
The day after he learned that Romer had denied him
clemency, Davis found time to write a final letter to his friend:
Well, the bomb has blown up on my life. Can't
really believe it's going to happen. If I forget later down the road,
I want to thank you for your support...I need to close this and get
started on a stack of mail six inches deep. I can't say goodbye, so
I'll say see you later.
Duane Woodard, Atty. Gen., Charles
B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Hope
P. McGowan, Asst. Atty. Gen., Denver, for plaintiff-appellee.
David F. Vela, Colorado State Public
Defender, Barbara S. Blackman, Chief Appellate Deputy State Public
Defender, Denver, for defendant-appellant
Opinion by Judge MARQUEZ.
Defendant, Rebecca Fincham, appeals the judgment of conviction entered
upon jury verdicts finding her guilty of first degree murder after
deliberation, first degree felony murder, conspiracy to commit first
degree murder after deliberation, second degree kidnapping, conspiracy
to commit second degree kidnapping, and accessory to crime. We affirm
in part, vacate in part, and remand for further proceedings.
Defendant and her former husband, Gary Davis, were convicted and
sentenced in separate trials in the kidnapping and murder of Virginia
May. See People v. Davis,794 P.2d 159 (Colo.1990). The record reflects
that defendant was with Gary Davis during the time he took the victim
from her home to the location where he eventually shot her several
times. At issue at trial and on appeal are the existence and degree of
defendant's complicity in these acts.
Defendant contends that the admission into evidence of the statements
of Gary Davis, who did not testify at her trial, violated her
constitutional right of confrontation. Davis' statements, which were
made to members of the sheriff's office, had been redacted to omit
references to defendant. We conclude that any error was harmless
beyond a reasonable doubt.
Whether a defendant's
right to confront the witnesses against him or her has been violated
requires a two-step analysis. First, the People must establish that
the declarant is "unavailable." Second, the
P.2d 422 ]
statement must bear indicia of
reliability sufficient to make it trustworthy without subjecting the
declarant to cross-examination. See Nunez v. People,737 P.2d 422
(Colo.1987); People v. Dement,661 P.2d 675 (Colo.1983).
The trial court found that, by virtue of having asserted his Fifth
Amendment privilege against self-incrimination, Gary Davis, for
purposes of CRE 804, was "unavailable." On appeal, this finding is not
disputed, and therefore, for purposes of a Confrontation Clause
analysis, we also conclude that Gary Davis was "unavailable." See
United States v. Inadi,475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390
(1986); Douglas v. Alabama,380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934
(1965); People v. Rosenthal,670 P.2d 1254 (Colo.App.1983).
After determining that the declarant was "unavailable," the trial
court should have inquired whether his statements contained sufficient
"indicia of reliability" to overcome their presumptive unreliability.
People v. Drake,785 P.2d 1253 (1989). Instead, the trial court ruled
only that the statements "having to do with [Gary] Davis himself"
would be admissible since they were statements against his penal
interest. The statement was redacted to omit references to the
defendant. However, no express finding of reliability was made by the
court with respect to Gary Davis' confession.
it is true that reliability may be inferred where the evidence falls
within a firmly rooted hearsay exception, People v. Dement, supra, a
declaration against penal interest is too large a class for meaningful
Confrontation Clause analysis. Lee v. Illinois,476 U.S. 530, 106 S.Ct.
2056, 90 L.Ed.2d 514 (1986); see also People v. Drake, supra (trial
court should make reliability finding even though statement was
admissible under CRE 804(b)(3) as against his interest). However, we
conclude that even if the absence of appropriate findings concerning
the reliability of Davis' statements make their admission into
evidence erroneous, such error was harmless beyond a reasonable doubt.
Here, defendant chose to testify at trial, and she admitted that she
was present when the victim was placed in the car and that she drove
the vehicle to the location where the victim's body was later found.
Thus, by her own testimony, defendant related many of the same facts
that were contained in Gary Davis' statement. And, references to
defendant were excised from Gary Davis' statement. See People v.
Rosenthal, supra. Accordingly, we are persuaded that any error in
admitting the statement was harmless beyond a reasonable doubt. Cf.
People v. Dement, supra; People v. Smith,790 P.2d 862 (Colo.App. 1989)
(reversible error occurred in admission of two complicitors'
statements that did not "interlock" on extent of defendant's
Defendant next contends that the trial court erred in refusing to
permit defense witnesses to testify regarding her dependent
personality as it related to culpable mental states of the offenses
charged and to available defenses. We disagree.
Defendant sought to present the testimony of two psychiatrists tending
to establish that she exhibited a dependent personality disorder. The
trial court disallowed the evidence on the ground that defendant had
failed to raise the affirmative defense of impaired mental condition,
which must be raised at arraignment or, upon good cause shown, at any
time prior to trial. Section 16-8-103.5, C.R.S. (1986 Repl. Vol. 8A);
People v. Low,732 P.2d 622 (Colo.1987). We agree with the trial court
that the testimony was inadmissible.
asserts that the evidence was introduced not to prove an impaired
mental condition, but "to establish that she lacked the required
culpable mental state due to her tendency to yield to persons
perceived as in charge or to only weakly resist their actions." No
offer of proof was given as to the distinction, and we are not
persuaded by defendant's argument that this is different from the
affirmative defense of impaired mental condition.
799 P.2d 423 ]
Section 16-8-102(2.7), C.R.S. (1986
Repl. Vol. 8A) defines impaired mental condition as:
"a condition of mind, caused by mental disease or
defect, which does not constitute insanity but, nevertheless,
prevents the person from forming a culpable mental state which is an
essential element of a crime charged." (emphasis added)
Despite defendant's arguments to the contrary, the
evidence sought to be introduced was evidence of mental condition
rather than state of mind. Inasmuch as defendant waived this defense,
her arguments for admissibility under the rules of evidence are also
Defendant next argues that the trial court erred in admitting hearsay
statements of the victim's children. We disagree.
Courts look primarily to the effect of a particular event upon the
declarant and, if satisfied that the event was sufficient to cause
adequate excitement, the inquiry is ended. The passage of time, though
significant, is not conclusive on the question of admissibility, since
the element of trustworthiness in the case of young children finds its
source primarily in the lack of capacity to fabricate, rather than the
lack of time to fabricate. Nor does the fact that some general
questions preceded the hearsay declarations destroy their character as
excited utterances. People in Interest of O.E.P.,654 P.2d 312
Here, there is no question that the
children's statements concerned a sufficiently startling event, the
violent kidnapping of their mother from their home. The statements
were made less than two hours after the event, and in response only to
very general questions by their father. According to the father, upon
making the statements, one of the children started to cry.
Moreover, the substance of the children's statements was corroborated
by the defendant's own testimony at trial placing her at the victim's
ranch with Gary Davis at the time of the abduction.
Under all the circumstances, we find no error in the admission of the
children's statements. The trial court is in the preferred position to
determine whether a particular event causes sufficient excitement in a
declarant to render a statement admissible, People in Interest of
O.E.P., supra, and we are satisfied that the trial court did not err
in admitting the children's statements to their father. See CRE
contends that the trial court abused its discretion in failing to
declare a mistrial or preclude further testimony when an advisory
witness twice referred to inadmissible evidence. We disagree.
Although a trial court has broad discretion to declare a mistrial when
it appears that because of irregularities in the proceeding either
party will not receive a fair trial, People v. Erickson, 194 Colo.
557, 574 P.2d 504 (1978), declaration of a mistrial constitutes a
drastic action and is warranted only when the prejudice to the accused
is too substantial to be remedied by other means. People v. Abbott,690
P.2d 1263 (Colo.1984).
The advisory witness'
testimony that he went with the victim's children to the tool shed and
"had them describe what happened" is not hearsay and is not at all
inculpatory of defendant, and therefore, a finding of prejudice may
not be based thereon.
As to the witness' testimony
that in searching defendant's bedroom he noticed "there was a lot of
sexual paraphernalia and magazines," the trial court found for the
record that the witness' violation of the court's prior orders
limiting certain testimony had not been aggravated or intentional and
offered to give a cautionary instruction to the jury. The defense
rejected that offer. The court also stated that it would consider
defendant's request to prohibit the witness from testifying further if
[ 799 P.2d 424 ]
another violation occurred, and
cautioned the witness not to mention sexual items.
Under all of the circumstances, we conclude that the two statements by
the witness did not amount to prejudice against defendant such as
would warrant reversing the trial court's denial of her motion for a
mistrial. See People v. Abbott, supra.
We also reject defendant's contention that prejudice arose by virtue
of the prosecutor's comments during his closing argument. The
defendant did not object to this argument, and since the jury is
presumed to have followed the court's instruction, the defendant has
failed to make any showing of unfair prejudice resulting from the
prosecutor's comments. See People v. Smith,620 P.2d 232 (Colo.1980).
contends that the trial court erred in rejecting the pattern jury
instruction on affirmative defenses. We determine that, considered as
a whole, the court's instructions did not constitute reversible error.
The general instruction on affirmative defenses tendered by defendant
quoted the language of COLJI-Crim. No. 7:01 (1983), which provides:
"The evidence presented in this case has raised
an affirmative defense.
The prosecution has the
burden of proving the guilt of the defendant to your satisfaction
beyond a reasonable doubt as to the affirmative defense, as well as
to all the elements of the crime charged.
considering the evidence concerning the affirmative defense, with
all the other evidence in this case, if you are not convinced beyond
a reasonable doubt of the defendant's guilt, you must return a
verdict of not guilty." (emphasis added)
The trial court rejected defendant's proposed
"The instruction ... makes comment on the
evidence, an affirmative defense has been presented by evidence.
Court feels this is an issue for the jury to determine." (emphasis
Instead, the court instructed the jury as follows:
"If you find that the evidence presented in this
case has raised an affirmative defense, the prosecution has the
burden of proving the guilt of the defendant to your satisfaction
beyond a reasonable doubt as to the affirmative defense...."
The court's instruction otherwise was identical to
the pattern instruction.
We agree with defendant's
assertion that the threshold determination of whether an affirmative
defense has been raised by the evidence must be made by the court and
not the jury. An affirmative defense basically admits the doing of the
act charged but seeks to justify, excuse, or mitigate it. People v.
Huckleberry,768 P.2d 1235 (Colo.1989).
argues that the instruction deprived her of due process and trial by
jury, since the prosecution was relieved of its burden of proving
beyond a reasonable doubt that the affirmative defenses did not exist.
We agree that the instruction given by the trial court should not have
been given and that the court should have used the pattern
instruction. See Wilcox v. People, 152 Colo. 173, 380 P.2d 912 (1963),
cert. denied, 376 U.S. 931, 84 S.Ct. 702, 11 L.Ed.2d 652 (1964).
Nevertheless, we conclude that the court's instructions, as a whole,
did not constitute reversible error.
of any one instruction must be determined by considering all of the
instructions as a whole, and, absent a contrary showing, it is
presumed that the jury understood the instructions and heeded them.
People v. Bogle,743 P.2d 56 (Colo.App.1987).
purpose of the instruction at issue is to inform the jury, when an
affirmative defense has been raised, that the prosecution has the
burden of proving the guilt of the defendant beyond a reasonable doubt
as to the affirmative defense raised. See § 18-1-407(2), C.R.S. (1986
Repl. Vol. 8B).
[ 799 P.2d 425 ]
Here, in addition to several instructions on various affirmative
defenses, the jury was specifically instructed on the presumption of
innocence and the prosecution's burden of proving all of the elements
beyond a reasonable doubt. It was instructed repeatedly that it must
find defendant guilty as to every element beyond a reasonable doubt in
order to find her guilty. Among the elements of each crime charged
were included, as an element, the words "without the affirmative
defense in instruction number __." Thus, as to every crime charged,
the jury was instructed in essence that the prosecution must prove
beyond a reasonable doubt that defendant was "without the affirmative
defense." In our view, the instructions as a whole adequately informed
the jury that the prosecution must disprove the affirmative defense
beyond a reasonable doubt.
Moreover, the court also
instructed the jury, in connection with the lesser included offense
instructions, that the law never imposed upon a defendant in a
criminal case the burden of producing any evidence.
Hence, reading all the instructions together, we conclude that they
did not relieve the prosecution of its burden of proof on the
Defendant contends lastly that the sentences imposed must be vacated
and the case remanded for resentencing. Except as to the judgment of
conviction for felony murder, we find no error.
reject defendant's argument that the consecutive thirty-year sentence
for conspiracy should be vacated. If a defendant is convicted of
multiple offenses, the trial court's traditional discretion to impose
either consecutive or concurrent sentences, depending upon the gravity
of the accused's criminal conduct, remains intact under § 18-1-408,
C.R.S. (1986 Repl. Vol. 8B), if the multiple counts are not supported
by identical evidence. Oureshi v. District Court,727 P.2d 45
(Colo.1986). Our review of the record reveals evidence supportive of
the conspiracy which is distinct from evidence of the underlying
crimes. The record also reflects sufficient aggravating conduct by the
defendant. Thus, we find no abuse of discretion in this regard.
Defendant also argues that only one life sentence could have been
imposed, and only one conviction entered, for the three charges of
premeditated murder, felony murder, and second degree kidnapping.
The jury found defendant guilty of both the first degree murder counts
and second degree kidnapping, the felony underlying the felony murder
count. The trial court entered judgments of conviction on each count
and determined that the two murder counts "merge into a single
sentence of life." On the kidnapping count, the court sentenced
defendant to a term of sixteen years, stating that:
"since one of the underlying crimes is that of
Felony Murder, and that part of that Felony Murder is the
Kidnapping, that it is necessary under the law that that sentence be
a concurrent sentence."
We conclude that this matter must be remanded for
resentencing. Only one judgment of conviction may be imposed for first
degree murder when there is only one victim. People v. Lowe,660 P.2d
1261 (Colo.1983). Also, the conviction of the defendant for the felony
murder, predicated as it is on the kidnapping, precludes her
simultaneous conviction of the lesser included offense of kidnapping.
See People v. Bartowsheski,661 P.2d 235 (Colo.1983).
However, the People correctly argue that since the kidnapping is not a
lesser included offense of first degree murder after deliberation, the
defendant could be simultaneously convicted of those two offenses. See
People v. Bartowsheski, supra. Hence, we determine that the trial
court should have entered judgments of conviction for first degree
murder after deliberation and for second degree kidnapping, but not
also for first degree felony murder. See People v. Saathoff,790 P.2d
804 (Colo. 1990); People v. Bartowsheski, supra.
Defendant's other contentions are without merit.
799 P.2d 426 ]
The judgments of conviction and
sentences for first degree murder after deliberation, second degree
kidnapping, conspiracy to commit first degree murder after
deliberation, conspiracy to commit second degree kidnapping, and
accessory to crime are affirmed. The judgment of conviction for first
degree felony murder is vacated, and the cause is remanded for
resentencing and amendment of the mittimus, consistent with the views
STERNBERG and CRISWELL, JJ.,