Man, wrongfully imprisoned in '06, avoids long sentence for latest run-in

By SUSAN SPENCER-WENDEL

Palm Beach Post Staff Writer

Saturday, December 27, 2008

WEST PALM BEACH — There he was again in the criminal courtroom, another in a long line of anonymous accused.

There he was, recognizable by the tattoo on the left side of his neck: "Cody," his name in swirly script.

The tattoo that linked him to a barroom robbery, to his conviction for it, to an extraordinary break in the case that proved his innocence - making him one of only nine men in Florida exonerated by DNA.

Victims identified Cody Davis, 23, as the man with a tattoo on his neck who held up the Foster's Too pub on Okeechobee Boulevard in 2006.

But he wasn't.

What he was: a victim of suggestive police procedures and mistaken eyewitness identification, far and away the leading cause of wrongful convictions in the United States.

Davis is one of 226 people in the nation exonerated by DNA, as documented by the Innocence Project.

Yet there he was, pleading guilty to firearm charges, headed back to prison.

But when time came for his sentencing this month, there was another extraordinary break in store for Davis.

Ultimate justice, if you will.

But first, his wrongful conviction.

After Foster's was robbed in February 2006, employees reported that a gunman - a white male with short black hair and a tattoo on his neck - held them up and ran out with the cash register.

They recalled a tattoo on his neck, one saying it looked like Chinese characters, another remembering a tattoo on the gunman's hand. They gave different accounts of the robber's size.

Davis - already a felon with a pack of prior arrests, mostly for drugs - was no stranger to law enforcement. His name was first mentioned to sheriff's investigators by an informant who knew Davis from the street and told deputies they should check him out.

Investigators put together a photo lineup. Six mug shots included Davis, who was the only one with a tattoo distinctly visible on his neck.

A lineup clearly suggestive of him.

A lineup clearly in violation of Department of Justice guidelines designed to help quell the rising swarm of mistaken IDs.

Investigators showed it to the Foster's bartender. She pointed right to Davis, declaring: "That's definitely him."

There was no physical evidence in Davis' trial, just employees' eyewitness IDs.

Defense attorney Sim Gershon attacked the discrepancies in their descriptions of the gunman, argued Davis had no tattoo on his hand, and the tattoo on his neck didn't look like Chinese characters. Davis had an alibi: He was with family that night and had nothing to do with the crime, his attorney said.

Yet jurors convicted Davis of robbery in October 2006, and he was sentenced to three years in prison.

"We were in shock and greatly disappointed," Gershon said. "From the first day in my office, he always said he didn't do it, and I believed him."

'We may have the wrong guy'

Serendipity was already afoot, though.

Months before, sheriff's investigators had sent out for DNA testing of a gray ski mask found in an alley near Foster's. It was not introduced by prosecutors at Davis' trial because the robber had not worn it during the holdup there.

Detective Kyle Haas requested that Cody Davis' DNA be compared with the ski mask results as he investigated the robbery of a nearby Dollar General on the same night as the one at Foster's. The Dollar General robber had worn the mask.

Haas was familiar with the Foster's robbery, but did not arrest Davis or compose the photo lineup.

Four months after Davis went to prison, Haas got the mask results: Cody Davis' DNA was not on it.

But the Florida Department of Law Enforcement reported a match. From its massive repository of criminals' DNA samples, it matched the mask DNA to 35-year-old Jeremy Prichard's DNA.

Haas looked at Prichard's mug shot.

"Lo and behold, he had a tattoo on the left side of his neck," Haas said. "I was like 'Wow! There cannot be a coincidence like that.''"

Prichard's tattoo says "No Fear" in jagged letters that could be construed as Chinese.

Haas immediately called then-Assistant State Attorney Shannon Rountree, who had prosecuted Davis.

"It was very unnerving for both of us ... that 'Hey, we may have the wrong guy in prison,' " Haas said.

They decided Haas should interview Prichard. Quickly.

Haas visited him on March 8, 2007, at the Martin County jail.

Where serendipity was afoot as well.

Everyone has a tatoo in new lineup

Prichard confessed to a string of robberies that day, including the one that landed Cody Davis in prison.

The next day, March 9, prosecutors dropped the charge against Davis.

And the day after that, he walked out of prison.

"I guess happy endings do happen sometimes," he told a reporter at the time.

The sheriff's investigators made some new lineups for the Foster's robbery victims.

This time, everyone in the lineup had a tattoo on his neck.

The bartender picked out Prichard as the robber.

"It questions the value of eyewitness identification. It really does," Gershon said. "You are so sure, but then you see a picture of somebody else and are convinced it's him, too."

Prichard later pleaded guilty to the Foster's robbery and others and is serving seven years in prison.

Haas said it felt good to right the wrong.

"Cody Davis is no angel, but he definitely should not serve time in prison for something he didn't do," he said.

Haas, now a road patrol sergeant, said the wrongful conviction of Davis has led him to caution the deputies he trains about eyewitness identification and to give long pause in cases where the only evidence is one person identifying another.

"We know it's happened in the past and may still happen in the future," Haas said.

Run-ins with law continue

The happy ending did not last.

In April of this year, police arrested Davis outside E.R. Bradley's restaurant in West Palm Beach.

His brother, a Bradley's employee, had reported Davis, a felon, had a handgun and was parked outside the restaurant.

The two had argued earlier at home, and Davis had shot a silver revolver at their grandparents' vehicle, his brother told police.

When officers approached Davis, he consented to a search of the car. They found a bag of pot, the anti-anxiety medication Xanax and a silver revolver in the glove box, according to a police record.

He told police the gun was not his, but admitted firing it earlier in the day.

They charged him with felon in possession of a firearm.

Less than three weeks later, Lake Worth police arrested Davis again. They were called to a scene where a man had been beaten with a tire iron. The man said Davis had pointed a gun at him and demanded money, then beat him about the head and shoulders.

Davis, arrested nearby, told police he had been supplying the man with crack cocaine, that the man had first pulled the gun out and he had responded in self-defense, grabbing the gun from him.

Whichever way, Davis was looking at prison.

But he would never, ever go to trial again, under any circumstances, even if he was innocent, Davis has said. No, not after one wrongful conviction.

In November, Davis pleaded guilty and guilty-in-his-best-interest to two counts of felon in possession of a firearm.

Circuit Judge Lucy Chernow Brown sentenced him to 15 years in prison, but then released Davis on a furlough until 8:30 a.m. Dec. 11. If he reported back to court having committed no new crimes, she would reduce his sentence to 20 months.

During the furlough, Davis married his girlfriend, Kayleigh Molloy, 19, at the courthouse.

Well before 8:30 a.m. Dec. 11, they came to court, along with his sister and mother, clutching each other in the hallway, crying.

Davis spoke with his public defender, Marie Calla. He told her that during the furlough he had been pulled over by police for running a stop sign and was cited for driving with a suspended license, which he didn't know he had.

A new crime, which could trigger up to a 15-year sentence.

In the packed courtroom that morning, Calla negotiated with a prosecutor who decided Davis should serve a 36-month sentence instead. More than a year tacked on in an instant.

Calla minced no words as she asked Judge Brown to keep Davis' sentence at 20 months. "It's a begging situation," she said, but did not mention at all Davis' wrongful conviction.

His mother, Debbie Giuffra, watched from the back row of the courtroom, her hands folded as if in prayer, visibly shaking.

Brown is a stickler for people obeying orders of the court, and those who don't rarely get a benefit of the doubt.

But in that instant she judged Davis' case, having no idea of his wrongful conviction, and she gave him an extraordinary break.

"I believe you didn't know your license was suspended," she told him and ordered his sentence kept to 20 months.

Handing back to Davis far more time than was robbed from him originally.

Ultimate justice, if you will.

No anger, no resentment

But why was Cody Davis back there at all?

Was he not scared straight?

Those are questions he doesn't want to answer, he said during a recent jail interview.

Questions with no easy answer.

But Davis did say this: He has no anger, no resentment toward the jury or the system.

"It was all just a mistake," Davis said of his wrongful conviction. "People make mistakes. I make mistakes."

That, and he would like to thank Judge Brown.

He said he wants to put it all behind him, focus on finishing his sentence, getting out, starting a family with his new wife.

Who also has a tattoo on her neck.

"Cody" in swirly script.

Seemingly unmistakable.