Judgment rendered January 10, 2024. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 55,287-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
DAVARIO XAVIER COLE Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 376470
Honorable John D. Mosely, Jr., Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Chad Ikerd
JAMES E. STEWART, SR. Counsel for Appellee District Attorney
REBECCA ARMAND EDWARDS SAMUEL S. CRICHTON Assistant District Attorneys
Before STEPHENS, ROBINSON, and ELLENDER, JJ. ROBINSON, J.
Davario Xavier Cole (“Cole”) was found guilty as charged by a
Caddo Parish jury of one count each of attempted second degree murder, La.
R.S. 14:30.1 and 14:27, possession of a firearm by a convicted felon, La.
R.S. 14:95.1, and aggravated criminal damage to property, La. R.S. 14:55.
He was sentenced to 25 years at hard labor without benefit of probation,
parole, or suspension of sentence for the attempted murder conviction, 20
years at hard labor without benefit of probation, parole, or suspension of
sentence for the felon in possession of a firearm conviction, and 15 years at
hard labor for the criminal damage to property conviction, all to run
concurrently. The trial court denied Cole’s motion to acquit, motion for a
new trial, and motion to reconsider sentence. Cole appeals his convictions
of attempted second degree murder and aggravated criminal damage to
property based on insufficiency of the evidence.
For the reasons set forth below, we AFFIRM the convictions.
FACTS AND PROCEDURAL HISTORY
On June 16, 2020, a shooting occurred at the home of Vonseca
Woodley (“Woodley”) at approximately 2:00 a.m. An additional alleged
shooting occurred at Woodley’s home later that morning at approximately
7:30 a.m. At the time of the first shooting, Woodley was asleep in her bed
when she was awakened by gunshots into her home, striking the walls and
shattering the glass shower door in the bathroom adjacent to her bedroom.
Her adult daughters, Tia Hudson and Tamera Hudson (“Hudson”), and Tia
Hudson’s boyfriend, were also in the house at the time. No one was injured.
No one witnessed the shooting, but Woodley immediately suspected that the
shooter was Cole, who is Hudson’s ex-boyfriend. Several of Woodley’s other family members had come to the home
early that morning in response to the 2:00 a.m. shooting and were inspecting
the property. Woodley’s brother, James Turner, a.k.a. “Junior” (“Turner”),
Aleka Youngblood (“Aleka”), Woodley’s and Turner’s sister, and Jordan
Youngblood (“Jordan”), Aleka’s son, were all outside of Woodley’s home
when Cole arrived there. Cole testified that he had come over out of concern
for Hudson’s safety because he had heard about the overnight shooting and
another shooting had happened at his cousin’s home. Woodley claimed she
was inside her home when Cole arrived, while Cole claimed she was outside
like the others, but in the front yard. Cole remained in his vehicle and
Turner approached Cole, and the two had a brief conversation. Turner
claimed he saw a gun in the car and that Cole placed his hand on it while the
two spoke. Cole then backed out of the driveway and began driving down
the road, but made a U-turn to come back by the house. Turner yelled out to
his family outside to run because Cole had a gun. Turner claimed he ran
through the garage in the back yard and heard something hitting the house,
which he claimed were gunshots. Aleka also claimed she heard gunshots.
Jordan stated that he did not hear gunshots due to the chaos of people
running and screaming, but that there was a new area of damage to the home
that had not been there prior to the 7:30 a.m. incident. Corporal Adam
McEntee, the Shreveport Police Department detective who responded to the
shots fired call the morning of June 16, 2020, after the second incident,
noted that the damage to the home was consistent with gunfire.
Prior to the shooting incidents, Cole and Hudson had been in a
tumultuous relationship for several years, which included heated arguments,
infidelity, family tension, and multiple occasions of violence by both 2 individuals. In 2019, a protective order was issued prohibiting Cole from
contact with Hudson and Woodley. Despite the protective order, Hudson
and Cole continued to contact each other. At one point, Cole received a
felony conviction for unauthorized entry of an inhabited dwelling,
Woodley’s home. Woodley testified regarding a specific incident with Cole
that occurred just a few weeks prior to the shootings in which Cole had
forced Hudson out of the vehicle they were in, which happened to be owned
by Woodley. Woodley confronted Cole and a heated argument took place,
whereafter Woodley firmly told Hudson she would no longer allow Hudson
to live with her or use her car if she continued to be in a relationship. Cole
repeatedly sent harassing messages to or about Hudson and/or her family
before and after the protective order, as well as after the shooting incidents
while Cole was in jail.
The State originally charged Cole with attempted first degree murder
of Turner, but later amended the bill of information to include an attempted
second degree murder of Woodley along with the gun possession and
criminal property damage charges. Cole pled not guilty. Prior to trial, the
court held an evidentiary hearing on the admissibility and relevance of
phone calls and text messages sent by and received by Cole while he was in
jail. The court found them relevant and admissible, based on the nature of
their content. The defense objected to the ruling and continued to object
throughout trial with a running objection. During trial, the defense also
objected to the admissibility of the existence of a protective order being
disclosed, since Cole was not charged with violating the protective order.
Part of the State’s argument for admission of the protective order was that it
was res gestae to these crimes, and because there was a misdemeanor bill 3 that would be tried. The State did not submit the misdemeanor violation to
the trial court prior to trial, and only raised the issue post-trial.
DISCUSSION
Sufficiency of Evidence
Cole argues that there was insufficient evidence to prove he is guilty
of attempted second degree murder and aggravated criminal damage to
property. He notes that there is no forensic evidence tying him to either
shooting, including DNA, fingerprints, or ballistics. No shell casings were
recovered, no bullets were matched to a gun associated with Cole, there was
no cellphone tower triangulation evidence showing he was in the vicinity of
Woodley’s house during the 2:00 a.m. shooting, and there were no witnesses
to the 2:00 shooting at all or to Cole shooting at the 7:30 incident. He argues
that the messages in which he made terrible statements to Hudson or her
family did not include any threats toward Woodley prior to the incidents,
and that only those negative messages were shown at trial and none that
showed him as thoughtful and apologetic. It is Cole’s position that there
was solely speculation that he was guilty based on his tumultuous
relationship with Hudson.
Cole also argues that the fact that shots were fired into Woodley’s
bedroom and bathroom area does not indicate that she was an intended
victim. He notes in particular that Woodley’s neighborhood is a high-crime
area and it was not uncommon to hear gunshots at night, which was
supported by Woodley’s own testimony, making it a reasonable possibility
that the bedroom could receive inadvertent damage from random gun
violence.
4 Cole claims that it is unclear whether there was even a shooting at the
7:30 a.m. incident because no one saw him fire the gun and it is disputed
what sound was actually heard by Turner and Aleka. He points out that
Linwood Avenue, where the shots were allegedly fired from, is close enough
to the house where everyone outside should have been able to clearly hear
gunshots. He also claims that it does not make sense that he would attempt
to kill Woodley in the middle of the night, flee to avoid being seen, then
return in person a few hours later in broad daylight to shoot again. Cole
notes that Woodley’s family members immediately presumed he was the one
who shot at the house at 2:00 a.m., which was what led Turner to believe
that Cole was a threat when he came to the house later that morning.
Further, it is undisputed that Woodley wasn’t in the area outside with the
rest of the family during the second incident where the alleged shots were
fired, so she could not have been a targeted victim. He also points out that
the State decided not to charge Cole with attempted murder of Turner or
anyone else who had been in the vicinity of the alleged shootings, but only
for the attempted murder of Woodley.
The State argues that, viewed in the light most favorable to the
prosecution, the evidence sufficed to prove beyond a reasonable doubt that
Cole committed attempted second degree murder by shooting at Woodley’s
house multiple times in the area of her bedroom and bath where she would
be sleeping in the early morning hours, and that Cole committed the crime of
aggravated damage to property in connection thereto. Woodley and Turner
both testified regarding Hudson’s and the family’s hostile relationship with
Cole, as evidenced by the texts showing various threats by Cole prior to the
shooting. Cole made numerous threats toward Hudson and her family, both 5 before and after the shooting incidents. Woodley testified that Cole was the
only person who had a problem with her due to her efforts to separate him
from Hudson, and noted that she did not know many people in the area since
she had not lived in Shreveport very long. Woodley and Hudson had a
protective order against Cole. Cole also had a prior conviction for
unlawfully entering Woodley’s home.
The State urges that the jury reasonably rejected the theories that the
first shooting was random gunfire, that Cole did not fire a gun during the
second incident, and that the two incidents were unrelated. The State points
out that the damage to the home from the first shooting was isolated to the
area where Woodley would be sleeping at night, and Cole was admittedly
very familiar with the layout of the home. Both Turner and Aleka, who
were outside the home during the second incident, stated that they heard
gunshots at the exact time that Cole would be driving past the house after he
made a U-turn in the road and sped toward the house. Jordan testified that
he had come to Woodley’s home with a specific purpose, to inspect damage,
and that the damage to the home immediately after the second incident was
not there previously. The officer on the scene following the second incident
testified that the damage to the home was consistent with gunfire. The State
claims that Cole’s involvement in the second incident, and the ongoing,
tumultuous relationship with Hudson and her family, bolstered the
establishment of Cole’s identity as the perpetrator of the 2:00 shooting.
For attempted second degree murder, the State must prove that Cole
had the specific intent to kill a human being and that he committed an overt
act in furtherance of that goal. La. R.S. 14:27; La. R.S. 14:30.1. As defined
by La. R.S. 14:10(1), specific intent is the state of mind existing when 6 circumstances indicate the offender actively desired the prescribed criminal
consequences of his act or failure to act. Specific intent to kill may be
inferred from the circumstances and actions of the defendant, including his
intentional use of a deadly weapon, pointing a gun and firing in the direction
of a person, or firing a gun toward a house where people were standing out
front or where he knew people were present within. State v. Patterson,
50,305 (La. App. 2 Cir. 11/18/15), 184 So. 3d 739, writ denied, 15-2333 (La.
3/24/16), 190 So. 3d 1190. Aggravated criminal damage to property is “the
intentional damaging of any structure, watercraft, or movable, wherein it is
foreseeable that human life might be endangered, by any means other than
fire or explosion.” La. R.S. 14:55. The offense is not a specific intent crime.
The standard by which appellate courts are to review the sufficiency
of evidence in criminal prosecutions is enumerated in Jackson v. Virginia,
443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), as follows:
A conviction must be based on proof sufficient for any rational trier of fact, when viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt.
In conducting a Jackson review, the reviewing court may not “substitute its
own appreciation of the evidence for that of the factfinder,” assess the
credibility of witnesses, or reweigh the evidence. State v. Pigford, 05-0477
(La. 2/22/06), 922 So. 2d 517, State v. Smith, 94-3116 (La. 10/16/95), 661
So. 2d 442, State v. Nelson, 44,762 (La. App. 2 Cir. 10/28/09), 25 So. 3d
905. A jury’s decision to accept or reject the testimony of a witness in
whole or in part is entitled to great deference. State v. Eason, 43,788 (La.
App. 2 Cir. 2/25/09), 3 So. 3d 685. The fact-finder weighs the respective
credibility of the witnesses, and appellate courts will generally not second-
7 guess those determinations. State v. Dabney, 02-0934 (La. 4/9/03), 842 So.
2d 326; State ex rel. Graffagnino v. King, 436 So. 2d 559 (La. 1983).
This standard applies in cases involving both direct and circumstantial
evidence. State v. Prude, 53,193 (La. App. 2 Cir. 3/4/20), 293 So. 3d 183;
State v. Henry, 47,323 (La. App. 2 Cir. 7/25/12), 103 So. 3d 424, writ
denied, 12-1917 (La. 3/8/13), 109 So. 3d 356; State v. Hill, 47,568 (La. App.
2 Cir. 9/26/12), 106 So. 3d 617. 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 find beyond a reasonable doubt that
the defendant was guilty of every essential element of the crime. State v.
Sutton, 436 So. 2d 471 (La. 1983); State v. Taylor, 28,736 (La. App. 2 Cir.
10/30/96), 682 So. 2d 827. Regarding circumstantial evidence, La. R.S.
15:438 requires that “assuming every fact to be proved that the evidence
tends to prove, in order to convict, it must exclude every reasonable
hypothesis of innocence.” State v. Young, 20-1041 (La. 5/13/21), 320 So. 3d
356. The circumstantial evidence rule is neither separate from nor stricter
than the Jackson standard of review. Taylor, supra.
The trial court heard testimony from several witnesses, including
Cole, and was in the best position to assess their credibility. This Court will
not disturb those determinations. Although this case hinges mostly on
circumstantial evidence, when viewed in the light most favorable to the
prosecution, there was sufficient evidence to prove beyond a reasonable
doubt Cole’s identification as the perpetrator and each of the essential
elements of the offenses of attempted second degree murder and aggravated
criminal damage to property, and every reasonable hypothesis of innocence
to find Cole guilty as charged was excluded. 8 Relevance and Admissibility of Jail Calls and Texts
Cole argues that the trial court erred in admitting certain text
messages he sent to Hudson because many were hearsay admitted through a
third party and were not relevant, and their admission was prejudicial and
not harmless due to their inflammatory nature. Many of the messages were
sent while Cole was in jail and did not implicate him in either incident. The
messages also concerned Cole’s relationship with Hudson, not Woodley. He
argues that they did not admit guilt or address any particular facts of the
case, but were merely him lashing out under the circumstances.
The State claims that Cole’s jail texts and calls were highly probative
of his intent, his motivation for the shootings, his consciousness of guilt, and
his apparently successful efforts to deter Hudson from testifying. They were
res gestae of Cole’s abusive, toxic relationship with Hudson that led to the
offenses committed, which also support the credibility of both Woodley and
Turner in their testimony about Cole. Cole made threats to kill Hudson
and/or her family members, which were also relevant to demonstrate why
Hudson was not there to testify. In particular, Cole texted a month prior to
trial to “keep my name out of your mother f***ing mouth or get one of y’all
killed out there.” He also commented about not being able to get convicted
without Turner’s testimony. Further, Cole’s communications include
admissions of guilt. He asks for forgiveness for the “wrong” he did and for
another chance, promising he “won’t act crazy and flash out.” He
specifically threatened that “your momma, your uncle, your daddy, all y’all
going to feel that iron.”
“Relevant evidence” is “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the 9 action more probable or less probable than it would be without the
evidence.” La. C.E. art. 401. All relevant evidence is admissible. La. C.E.
art. 402. However, relevant evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay, or
waste of time. La. C.E. art. 403. The trial court is vested with much
discretion in determining relevance, and its determination regarding the
relevance and admissibility of evidence is not to be overturned on appeal in
the absence of a clear abuse of discretion. State v. Magee, 11-0574 (La.
9/28/12), 103 So. 3d 285; State v. Duck, 54,597 (La. App. 2 Cir. 12/14/22),
352 So. 2d 1097, writ denied, 23-00079 (La. 12/5/23), 2023 WL 8431617.
The jail calls and texts between Cole and Hudson are highly relevant
and probative. They paint a clear picture of the nature of their relationship,
which was essential to showing Cole’s motivation and intent, and it
bolstered the testimony of Woodley and Turner. Although the inflammatory
communications between Cole and Hudson are prejudicial to Cole’s defense,
their value is not outweighed by the danger of unfair prejudice. We find that
there is no clear abuse of discretion by the trial court in its evidentiary ruling
on the relevance and admissibility of the jail communications.
Denial of Witness Based on Sequestration
Cole claims that the trial court also erred in not allowing his mother to
testify, because she was not going to directly contradict a fact previously
testified to by another witness and the concerns of sequestration were not
implicated. Cole’s mother was present during the entirety of the trial after
the rule of sequestration had been invoked, but he argues that she should
have been able to testify regarding the inflammatory messages between Cole 10 and Hudson despite sequestration issues, since he was unable to cross-
examine Hudson to show that he was never serious with any threats and was
merely hotheaded, as evidenced by Hudson’s staying in a relationship with
him for years without any harm to her or her family. Cole argues that
because Hudson did not testify, he was forced to testify himself or have his
mother testify as to his propensity to say extreme things he did not mean.
He asserts that the State continuously attacked Cole’s character and opened
the door so that he should have been able to offer character evidence in
rebuttal. Cole further claims that his mother was only going to generally
address his “reckless mouth” and was not going to testify to directly
contradict any factual questions answered by the State’s witnesses because
no witness had been asked whether Cole tended to act on his threats. Cole
cites State v. Breaux, 12-0555 (La. App. 4 Cir. 2/27/13), 110 So. 3d 281,
writ denied, 13-0699 (La. 10/25/13), 124 So. 3d 1093, in which the Fourth
Circuit stated “presence alone is not enough to warrant a witness’s
disqualification.”
The State argues that testimony by Cole’s mother regarding his
“reckless mouth” in response to the admission of evidence regarding his
threats was exactly the type of scenario for which the sequestration rules
were meant to apply. Because his mother was present for all the testimony
concerning Cole’s communications, she was well aware of what she was
expected to answer in response to Cole’s question. The State notes that Ms.
Cole was not a party, nor was she listed anywhere in connection to the
offenses, and the rule of sequestration was actually requested by the defense.
It also refers to Breaux, claiming a similarity in that court’s ruling to exclude
the defendant’s father from testifying as to defendant’s not residing where he 11 was believed to live, after he had been present during testimony of a police
officer who testified about the execution of a search warrant at that
residence. The State also disputes Cole’s claim that it opened the door to the
introduction of character evidence. It argues that Cole’s various
communications were relevant to establishing intent; therefore, any
testimony regarding Cole’s character would be impermissible.
The State also points out that Cole knew exactly what evidence it
intended to present since it had all been provided timely to the defense and
was the subject of extensive argument prior to any testimony. It also notes
that Hudson’s material witness warrant was recalled prior to opening
arguments; therefore, Cole was aware that Hudson was not being presented
as a witness and could not be cross-examined, yet his mother was allowed to
remain in court throughout the State’s case after the rule of sequestration
was invoked. The State further notes that Cole was not forced to testify;
rather, he was persistent about testifying on his own behalf, seemingly
regardless of whether or not his mother took the stand to answer the question
about his reckless mouth.
The State also urges that Ms. Cole’s excluded testimony, as well the
admitted jail communications, were harmless error if deemed improper. An
error is harmless when the guilty verdict was surely unattributable to the
error. State v. Robertson, 06-1537 (La. 1/16/08), 988 So. 2d 166. The State
claims that there was ample evidence to convict Cole by way of Turner’s
and Woodley’s testimony, the damage to the home, and other circumstantial
evidence outside of the communications with Hudson; and his mother’s
biased testimony would have been inconsequential.
12 This Court agrees with the trial court’s ruling to disallow the
testimony of Cole’s mother after she had been present throughout the
entirety of the trial, because it would be in clear violation of the
sequestration rules. It is clear that her anticipated answer was intended to
directly rebut the testimony of other witnesses regarding the nature of Cole’s
communications with Hudson. In addition, we do not find that Cole’s guilty
verdict would have been impacted in any way by the allowance of the
additional testimony.
CONCLUSION
For the foregoing reasons, this Court AFFIRMS the defendant’s
convictions of attempted second degree murder, La. R.S. 14:30.1 and 14:27,
and aggravated criminal damage to property, La. R.S. 14:55.
AFFIRMED.