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State v. Davis

Court of Appeals of Louisiana, Second Circuit

May 22, 2019

STATE OF LOUISIANA Appellee
v.
DENNIS R. DAVIS, JR. Appellant

          Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 341453 Honorable Brady D. O'Callaghan, Judge

          LOUISIANA APPELLATE PROJECT By: Chad Ikerd Counsel for Appellant

          DENNIS R. DAVIS, JR. Pro Se

          JAMES E. STEWART, SR. District Attorney Counsel for Appellee

          MEKISHA S. CREAL TOMMY J. JOHNSON Assistant District Attorneys

          Before WILLIAMS, GARRETT, and COX, JJ.

          WILLIAMS, C.J.

         The defendant, Dennis R. Davis, Jr., was charged by bill of information with operating a motor vehicle while intoxicated ("DWI"), fourth offense, in violation of La. R.S. 14:98(D) and 14:98.4. Following a jury trial, the defendant was found guilty as charged. He was sentenced to serve 23 years at hard labor, with two years to be served without the benefit of parole, probation or suspension of sentence. He was also ordered to pay a $5, 000 fine. Further, during the trial, the defendant was held in contempt of court seven times and was sentenced as follows: two six-month periods of confinement in the parish jail, each running consecutively to the sentence imposed for DWI; 10 days' confinement in the parish jail on each of the five remaining counts, for a total of 50 days, all consecutive to any other sentences the defendant may be facing or serving.

         For the following reasons, we affirm the defendant's conviction and sentence for DWI, fourth offense. With regard to the findings of direct contempt, we reverse four findings of contempt, and we vacate the six-month period of confinement and three of the 10-day sentences imposed. The three remaining adjudications of contempt, and the sentences imposed therefor - one six-month sentence and two 10-day sentences - are affirmed.

         FACTS

         At the trial, the defendant opted to represent himself with the assistance of "standby" counsel. The following testimony was elicited at the trial: on May 15, 2016, Detective Logan McDonald and Corporal Jimmie Minor, of the Shreveport Police Department ("SPD"), were assigned to the radar unit of the traffic division. Det. McDonald was operating a stationary radar unit from the parking lot of a funeral home at the intersection of Jewella Avenue and Hollywood Avenue. Det. McDonald testified that he and Cpl. Minor were parked beside each other and they "clocked" the speed of vehicles as the vehicles traveled over a hill on Jewella Avenue. Det. McDonald also testified that his patrol vehicle was equipped with a Mobile Video System ("MVS"), which captures video and audio, and a "two-piece" radar unit, with a radar antenna in the front and rear of the vehicle.

         Det. McDonald further testified as follows: he observed a pickup truck coming over the hill at a high rate of speed; he visually estimated that the vehicle was traveling at approximately 75 miles per hour ("mph") in a 40 mph speed zone; the radar unit confirmed the speed of the vehicle at 75 mph; he activated his lights and pulled out of the parking lot to conduct a traffic stop; both he and the defendant pulled into the parking lot of a gas station located nearby; when he approached the defendant's truck, he detected a strong odor of an alcoholic beverage emitting from the inside of the vehicle; he asked the defendant to exit the truck to verify the source of the odor of alcohol; he detected that the odor was coming from the defendant; he also observed that the defendant was unsteady on his feet, swaying, and his speech was slurred; it took the defendant several minutes to produce his driver's license and proof of insurance; he advised the defendant of his Miranda rights and asked him to perform field sobriety tests; he administered the Horizontal Gaze Nystagmus ("HGN") test and the ABC/Divided Attention test; the defendant performed poorly on the HGN test; he noted nystagmus (jerking activity) in the defendant's eyes; the defendant was unable to follow the pen with his eyes; the defendant performed poorly on the ABC test and was unable to recite the alphabet from A to Z; he observed the defendant "swaying" throughout the tests; the defendant's performance on the field sobriety tests indicated that he was intoxicated; the MVS in his police vehicle was activated at the time of the traffic stop and recorded the encounter;[1] he placed the defendant under arrest and transported him to the police station; when they arrived at the police station, he escorted the defendant to the "DWI interview room," where DWI suspects are usually taken, advised the defendant of his Miranda rights, including his rights in connection with blood alcohol and Breathalyzer testing; the room contains a camera that recorded the interaction between him and the defendant; the defendant refused to undergo additional field sobriety and the Intoxilyzer testing; and he placed the defendant under arrest for DWI, fourth offense.

         Corporal Jimmie Minor, who is employed in SPD's traffic division, testified as follows: on the evening of May 15, 2016; he was positioned in the parking lot of a funeral home at the corner of Hollywood and Jewella Avenues; he was "running radar" with Det. McDonald; he assisted Det. McDonald when he executed the traffic stop of the defendant; he exited his patrol unit when he noticed there was a passenger in the defendant's truck; and his only involvement with the defendant was when he moved the defendant's truck after the defendant was placed under arrest.

         Sergeant Danny Duddy, a supervisor with the SPD's Crime Scene Investigation Unit, testified at trial as an expert in the field of fingerprint identification and comparison. Sgt. Duddy testified that he compared fingerprints from three April 21, 2014 convictions (Caddo Parish District Court docket numbers 311200, 311388, and 321995), for DWI first offense, of a defendant named Dennis R. Davis, Jr., with fingerprints obtained from the defendant in the courtroom. Sgt. Duddy concluded that the defendant was the same person convicted in the three prior offenses in 2014.[2] He also testified that each conviction reflected in the state's exhibits was within ten years of May 15, 2016.

         The defendant was the only witness to testify for the defense. He testified as follows: he was not drinking on the night of May 15, 2016; he had not consumed alcohol in the 48 hours prior to being stopped by the police officers; he did not refuse the sobriety tests offered by Det. McDonald; he did not exhibit signs of intoxication when he was stopped; his eyes were not glossy, his balance was not unsteady, his breath did not smell like alcohol, and he did not stagger or fall during the traffic stop; and he was not traveling at 75 mph when he was stopped.

         During the defendant's testimony, he introduced into evidence an amended bill of information for Caddo Parish District Court docket number 32214, which charged him with DWI, second offense on May 5, 2016.

         After deliberating, the jury found the defendant guilty as charged of DWI, fourth offense. He was sentenced to serve 23 years in prison at hard labor, two of those years to be served without the benefit of parole, probation or suspension of sentence. He was also ordered to pay a $5, 000 fine. Additionally, during the trial, the defendant was held in contempt of court seven times and was sentenced as follows: two six-month confinements in the parish jail, each running consecutively to the other sentences imposed; 10 days' confinement in the parish jail on each of the remaining five counts, for a total of 50 days, all to run consecutive to "any other sentence the defendant may be facing or serving." Subsequently, the trial court denied the defendant's pro se motion to reconsider sentence.

         The defendant appeals.

         DISCUSSION

         The defendant contends the evidence was insufficient to support his conviction for DWI, fourth offense. He argues as follows: the state failed to produce any evidence to show his blood alcohol level; the state relied on circumstantial evidence and "innocuous observations" to prove that he was intoxicated; his alleged swaying and slurred speech could have been caused by another reason, such as standing on his feet all day while wearing boots; Det. McDonald had no baseline to observe how the defendant normally reacted after working all day; the perceived redness in his eyes could have been caused by working all day in the elements; the police officers "allegedly" stopped him for speeding, which is not an indication of intoxication; there was no testimony that he was driving erratically or swerving; the odor of alcohol, alone, does not prove intoxication; Det. McDonald's testimony that he had "odor on the breath" could not be verified by the jury because the jury could not smell the odor just by viewing the videotape; and the state did not exclude every reasonable hypothesis of innocence.

         The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La. 5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Ward, 50, 872 (La.App. 2 Cir. 11/16/16), 209 So.3d 228, writ denied, 2017-0164 (La. 9/22/17), 227 So.3d 827. This standard, now legislatively embodied in La.C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the factfinder. State v. Ward, supra; State v. Dotie, 43, 819 (La.App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La. 11/6/09), 21 So.3d 297. On appeal, a reviewing court must view the evidence in the light most favorable to the prosecution and must presume in support of the judgment, the existence of every fact the trier of fact could reasonably deduce from the evidence. Jackson, supra.

         The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442; State v. Ward, supra. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Ward, supra; State v. Eason, 43, 788 (La.App. 2 Cir. 2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La. 12/11/09), 23 So.3d 913.

         The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La. 1983); State v. Ward, supra; State v. Speed, 43, 786 (La.App. 2 Cir. 1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La. 11/06/09), 21 So.3d 299.

         To convict a defendant based upon circumstantial evidence, every reasonable hypothesis of innocence must be excluded. La. R.S. 15:438; State v. Barakat, 38, 419 (La.App. 2 Cir. 6/23/04), 877 So.2d 223. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Burd, 40, 480 (La.App. 2 Cir. 1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La. 11/9/06), 941 So.2d 35.

         At the time of the defendant's arrest, La. R.S. 14:98 provided, in pertinent part:

A. (1) The crime of operating a vehicle while intoxicated is the operating of any motor vehicle *** when:
(a) The operator is under the influence of alcoholic beverages; or
(b) The operator's blood alcohol concentration is 0.08 percent or more by weight based on grams of alcohol per one hundred centimeters of blood[.]

         In the instant case, the defendant refused to submit to a blood alcohol concentration test. Thus, in order to support the defendant's conviction of DWI, the prosecution must prove that (1) the defendant was operating a vehicle and (2) he was under the influence of alcoholic beverages while doing so. La. R.S. 14:98(A)(1)(a); State v. Pickard, 40, 422 (La.App. 2 Cir. 12/14/05), 918 So.2d 485; State v. Minnifield, 31, 527 (La.App. 2 Cir. 1/20/99), 727 So.2d 1207, writ denied, 99-0516 (La. 6/18/99), 745 So.2d 19.

         On appeal, the defendant does not dispute the evidence presented to prove his prior convictions for DWI. Therefore, we must only determine whether the evidence was sufficient to support the DWI conviction in the instant matter. Further, since the defendant refused to undergo a breath or blood alcohol test, his DWI conviction rests solely upon the observations of the witnesses.

         It is well settled that behavioral manifestations, independent of any scientific tests, are sufficient to support a conviction of DWI. State v. Henix, 46, 396 (La.App. 2 Cir. 8/10/11), 73 So.3d 952; State v. Gage, 42, 279 (La.App. 2 Cir. 8/29/07), 965 So.2d 592, writ denied, 2007-1910 (La. 2/22/08), 976 So.2d 1283; State v. Harper, 40, 321 (La.App. 2 Cir. 12/14/05), 916 So.2d 1252. It is not necessary that the conviction be based upon a breath or blood alcohol test. The observations of an arresting officer may be sufficient to establish guilt. Intoxication is an observable condition about which a witness may testify. State v. Allen, 440 So.2d 1330 (La. 1983); State v. Henix, supra. Furthermore, a defendant's refusal to submit to a breath test is admissible to support a conviction for DWI; the weight of that evidence is left to the trier of fact. La. R.S. 32:666(A); State v. Dugas, 252 La. 345, 211 So.2d 285 (1968), cert denied, 393 U.S. 1048, 89 S.Ct. 679, 21 L.Ed.2d 691 (1969); State v. Henix, supra.

         Herein, during the defendant's trial, Det. McDonald described the defendant's appearance and behavior on the day of the defendant's arrest. He testified that the defendant's behavior was consistent with a person who is intoxicated. According to Det. McDonald, the defendant emitted a "strong odor" of alcohol, and his speech was slurred. Further, the officer testified with regard to administering field sobriety tests to the defendant. According to Det. McDonald, the defendant was unsteady on his feet, swaying, and he failed the field sobriety tests. Based on his observations, Det. McDonald opined that the defendant was intoxicated.

         Further, the video and audio recordings introduced into evidence confirmed Det. McDonald's testimony. A review of those recordings reveals that the defendant was unable to recite the alphabet while he was on the scene of the arrest and that he was swaying while attempting to perform the field sobriety tests.

         It is apparent from the verdict that the jury found the testimony of Det. McDonald to be credible. In addition, the jury was able to view the video evidence of the defendant's arrest. After reviewing the evidence in a light most favorable to the prosecution, we find that the record supports the jury's finding of guilt. Further, the evidence of record excluded every reasonable hypothesis of innocence. The jury had sufficient evidence to conclude that the defendant was driving while intoxicated. This assignment lacks merit.

         The defendant also contends the trial court erred in denying his motion for a new trial. He argues that he was entitled to a new trial because the verdict rendered was "contrary to the law and/or the evidence in that the prosecution failed to prove beyond a reasonable doubt that the defendant committed the crime." La.C.Cr.P. art. 851(B)(1). Further, the defendant argues that the trial court used the "sufficiency of the evidence" standard, as set forth in Jackson v. Virginia, supra, to deny his motion for a new trial, rather than reviewing the matter as the "thirteenth juror," as set forth in Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). According to the defendant, the trial court was required to sit as a thirteenth juror and analyze the case from a juror's perspective, which gives the defendant the presumption of innocence and the state the burden of proof.

         La. C. Cr. P. art. 851 provides, in pertinent part:

The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
B. The court, on motion of the defendant, shall grant a new trial whenever any of the following occur:
(1)The verdict is contrary to the law and the evidence.
(2)The court's ruling on a written motion, or an objection made during the proceedings, shows prejudicial error.

La. C. Cr. P. art. 858 provides:

Neither the appellate nor supervisory jurisdiction of the supreme court may be invoked to review the granting or the refusal to grant a new trial, except for error of law.

         Trial courts are to use the "thirteenth juror" standard when the ground asserted in the motion for new trial is that the verdict is contrary to the law and the evidence, or the court is of the opinion that the ends of justice would best be served by granting a new trial. State v. Watts, 2000-0602 (La. 1/14/03), 835 So.2d 441. In ruling on a motion for new trial pursuant to La.C.Cr.P. art. 851(1), the trial court can only consider the weight of the evidence. The trial court then makes a factual review of the evidence as a thirteenth juror. State v. Steward, 95-1693 (La.App. 1 Cir. 9/27/96), 681 So.2d 1007.[3]

         In State v. Hampton, 98-0331 (La. 4/23/99), 750 So.2d 867, the Louisiana Supreme Court stated:

A motion for new trial presents only the issue of the weight of the evidence, see Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982) *** and is examined under the so-called thirteenth juror standard, under which the judge reweighs the evidence. Id.; State v. Voorhies, 590 So.2d 776, 777 (La.App. 3rd Cir.1991). The question of the sufficiency is properly raised by a motion for post-verdict judgment of acquittal. La.Code Crim. Proc. art. 821; State v. Demery, 28, 396 (La.App.2d Cir.8/21/96); 679 So.2d 518, 522. But see La.Code Crim. Proc. art. 851 cmt. d ("[i]t is the duty of the trial judge to pass upon the sufficiency of the evidence" once ground (1) is raised under art. 851).[4]
We treat the constitutional issue of sufficiency because the denial of a motion for new trial based upon La.Code Crim. Proc. art. 851(1) is not subject to review on appeal. State v. Bartley, 329 So.2d 431, 433 (La. 1976).[5]

Id., 879-80; (footnote added).

         Further, in State v. Gaines, 633 So.2d 293 (La.App. 1 Cir. 11/24/93), the Court stated:

[W]e find it inappropriate to remand for a reconsideration of the motion for new trial. First, when the trial court issued its ruling, defendant did not object on the ground that the court applied the wrong standard. Thus, procedurally he is barred from advancing this argument on appeal. See LSA-C.Cr.P. art. 841. Moreover, the record does not support defendant's claim that the court applied the wrong standard. The court's comments were brief and do not indicate that the court applied the standards of LSA-C.Cr.P. article 821 in ruling on the motion for new trial.

         In the instant case, the trial court ruled on the defendant's motions for a new trial and post-verdict judgment of acquittal simultaneously. In doing so, the court stated:

Pursuant to La.C.Cr.P. art. 851(B)(2), the motion for a new trial is denied. Under La.C.Cr.P. art. 851(B)(1), the court does believe that there was sufficient evidence for a reasonable trier of fact under Jackson v. Virginia to find that the defendant was guilty as charged. And under a motion for post-verdict judgment of acquittal, under the Jackson v. Virginia analysis, the court defers to the jury's assessment of the evidence based on the DWI video that they had the opportunity to review and view repeatedly and the predicate offense evidence that they saw and heard in court. So I will deny both motions by defense counsel at this time for the reasons orally stated.

         Our review of the record reveals that the trial court summarily denied the defendant's motion for new trial without providing reasons. With regard to the defendant's motion for post-verdict judgment of acquittal, the court correctly applied the Jackson v. Virginia, supra, standard of review. The court also addressed the arguments the defendant urged in his motion for new trial and stated that it had reviewed the evidence, including the evidence and arguments the defendant raised ...


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