RED OAK — A Shenandoah man convicted in 2015 of the first-degree murder of his girlfriend had his post-conviction relief hearing Friday morning and argued key elements of the investigation and prosecution were flawed.
According to Fremont County Sheriff’s Office reports, on the morning of July 18, 2009, Brian Davis reported to local dispatch that his girlfriend, Holly Durben, shot herself in the head. When deputies arrived at the Highway 59 farmhouse shared by Davis and Durben, deputies found Durben’s body in an upstairs bedroom.
She was lying on the bed with a massive gunshot wound to the left side of her head, near her cheek. Her left hand was on the pistol grip of a 12-gauge shotgun with an 18-inch 3 barrel, and her left thumb rested on the trigger. The only identifiable fingerprints on the gun belonged to Davis and Durben was right-handed.
In the 2015 case, Davis was accused of murdering his girlfriend, who had allegedly been choked and shot in the head. Davis claims that she shot herself.
In court during the trial several years later, Judge Timothy O’Grady said there was credible evidence submitted that showed Durben was not suicidal on July 18, 2009, but had been seeking safety instead. He added that Davis issued four different statements and his reactions regarding that evening’s conflict between the couple were contrived and minimized. On top of that, O’Grady commented Davis had manipulated the crime scene by moving the gun.
O’Grady sentenced Davis to life in prison in April 2015, with Davis filing a written notice of appeal with the clerk of court not long after.
In his appeal, Davis contended there was insufficient evidence, improper rulings and that his counsel was ineffective. His conviction was upheld in 2017.
The hearing Friday was held with Davis appearing by telephone from prison. In person at the courthouse was Judge James Heckerman, Davis’ attorney Katherine Murphy, Davis’ mother Mary Lou Davis and Fremont County Attorney Brenna Bird.
On Friday, Brian Davis again argued the case against him had been flawed.
His mother presented a live shotgun shell in a plastic bag from her purse. She said she found it in the bedroom where Durben was found.
“I told his attorney that I found it but they didn’t think much about it, I guess,” Mary Lou Davis said about the first trial. The shell was placed as an exhibit for the trial.
Brian Davis also argued blood found on his clothes was not used as evidence — but was referenced as evidence by an expert witness hired by the state.
Brian Davis’ counsel for the initial trial and his appeal were ineffective and did not retain expert witnesses on his behalf, he said.
Bird asked Davis only two questions: did he testify at his trial and did he direct his legal team to hire expert witnesses.
Brian Davis said he did not testify and that he had “inquired about it, but they did not get back to me.”
“I believe for the most part, most of the time the public defender’s office gets it right. But I think this is one of the few times they were not,” Brian Davis said. “The state played fast and loose with the facts and my counsel did not conduct themselves accordingly.”
After both sides presented their case, Heckerman ruled they submit orders by Oct. 1. After the hearing, Heckerman said he will render his decision in early October.