State of Louisiana v. Davin Ryan Hanks

• Court: Louisiana Court of Appeal
• Decided: June 5, 2013
• Docket: KA-0012-1440
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

12-1440

STATE OF LOUISIANA

VERSUS

DAVIN RYAN HANKS

**********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. CR 123776 HONORABLE GLENNON P. EVERETT, DISTRICT JUDGE

JOHN E. CONERY JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Elizabeth A. Pickett, and John E. Conery, Judges.

AFFIRMED.

Christopher Albert Aberle Louisiana Appellate Project Post Office Box 8583 Mandeville, Louisiana 70470 (985) 871-4084 COUNSEL FOR DEFENDANT/APPELLANT: Davin Ryan Hanks Davin Ryan Hanks Winn Correctional Center Elm C-2 Post Office Box 1260 Winnfield, Louisiana 71483-1260 (318) 628-3971 COUNSEL FOR DEFENDANT/APPELLANT: Davin Ryan Hanks

Michael Harson District Attorney 15th Judicial District Court Post Office Box 3306 Lafayette, Louisiana 70502-3306 (337) 232-5170 COUNSEL FOR APPELLEE: State of Louisiana

Allan P. Haney Assistant District Attorney 15th Judicial DistrictCourt Post Office Box 4308 Lafayette, Louisiana 70502-4308 (337) 291-7009 COUNSEL FOR APPELLEE: State of Louisiana CONERY, Judge.

Defendant, Davin Ryan Hanks, appeals his conviction for second degree

kidnapping, a violation of La.R.S. 14:44. After reviewing the record, we affirm the

conviction.

FACTS

On February 8, 2009, the victim, Megan Colon, went to the Belly to Belly

bar in Lafayette to meet a friend who worked there. She sat in her car, “putting

[her] stuff in [her] purse,” when someone opened the car door, grabbed her neck,

and dragged her into the passenger seat. The victim’s written statement given to

the investigating officer on the night of the incident showed that Defendant poked

her with something, but at the time, she did not know what it was. She verbally

told the officer that Defendant brandished a knife and poked her with it during the

attack. She testified at trial that Defendant poked her with a knife that looked a lot

like the knife found on the seat of her car after Defendant’s arrest.

After forcing the victim to the passenger seat, Defendant began driving and

asking her a lot of questions. Defendant asked where she lived and indicated, at

first, that he would release her there, but then he passed by her apartment without

stopping. He then told the victim he would not let her go because she would call

the cops. She tried to unlock the car door, but he grabbed her. The victim then

tried to get out of the car at a red light, but he pulled her back inside and started

choking her. She tried to escape at another red light, but Defendant pulled her, and

she “was still half way out the car.” Finally, her shirt ripped as Defendant was

holding her by it, and she was able to get away and call the police. After the victim was free and able to call the police, the responding officer

put out a BOLO1 for her vehicle. Around the same time that the responding officer

put out the BOLO, Officer Chris Cormier of the Lafayette Police Department

stopped a black Honda Accord in the same area because the driver was operating it

erratically. Corporal Aaron McNair of the Lafayette Police Department came upon

the traffic stop and saw a six-inch blade knife on the driver’s seat that he identified

as Exhibit S-17 at trial. While at the traffic stop, Officer Cormier and Corporal

McNair “heard a dispatch sending two patrol units to a report of an armed robbery

in progress with a knife,” and Corporal McNair left to go to the scene of the

robbery. Another dispatch gave “some information about a victim saying she was

robbed with a knife and the person stole her car in the process.” The officers

responding to the robbery contacted Officer Cormier and informed him that they

believed the vehicle he stopped was the vehicle that was taken, a dark Honda

Accord. Officer McNair took the victim to the scene of the traffic stop, where she

identified Defendant as her assailant. She again identified Defendant at trial as the

man who had kidnapped her at knifepoint. She claimed she had never seen

Defendant before the night of the incident.

Sergeant Dewitt Dwayne Sheridan testified he took the photographs that

were introduced into evidence showing a knife on the seat of the car. When asked

whether anyone moved the knife to the driver’s seat of the car, Sergeant Sheridan

replied, “[n]ot to my knowledge. Sometimes we secure an item on the seat and we

ask where the item was located. We take the picture and then I put the item back

where they found it.” Sergeant Sheridan said, regarding this occasion, “[i]t could

have happened. We dealt with a knife, a weapon.” Defendant’s counsel asked

1 “Be on the lookout.”

2 Sergeant Sheridan if he recalled why a picture taken a few minutes earlier showed

car keys on the seat while the picture taken later showed the knife and not the keys.

He replied, “I don’t have that recollection with the situation and I suppose we saw

the knife. The officers will tell me where it was located so we can deal with the

exact location.”

Jamie LeBlanc testified at trial that she dated Defendant “[o]ver a year but

most of it was while [they] were both in jail.” She testified that Defendant told her

he stole the car and put a knife to the victim’s cheek to get her into the car.

The victim testified at trial that Defendant had a knife when he got in the

car. She “didn’t look at it good,” but she said, “[i]t was metal and it was black.”

She could not say whether the metal and black knife admitted into evidence at trial

was the exact same knife Defendant used, but it looked like it. She denied all

questions from Defendant’s counsel suggesting that she met Defendant at the bar

and got in the car willingly with Defendant in order to purchase pills from him.

The initial police report of February 8, 2009, indicates that the victim told police

that Defendant was “brandishing a knife.” As previously indicated, however, the

victim’s written statement makes no mention of a knife.

Defendant also testified at trial after the trial judge correctly explained his

right not to testify. His story was that he first sold pills to the victim on New

Year’s Eve prior to this incident. On the night of the incident, he called the victim

at work at Hooter’s and arranged to sell her more pills after she finished her shift.

The victim drove to the parking lot at Belly to Belly, and Defendant approached

her car. He startled the victim when she opened the car door, and he “poked her

sort of as a gesture to scoot over and [he] got into the driver’s seat.” They sat in

her car, and, after a few minutes, he “produced the pills,” and she gave him $100.

3 According to Defendant, the victim then offered to let him borrow her car in

order for him to get more pills to sell her. He would have to return the car to her

by 4:00 p.m. so she could go to work. Defendant was going to take the victim to

her apartment, but she changed her mind. The victim took some of the pills and

“started getting her temper . . . her attitude just changed.” She then “started getting

violent and difficult,” and Defendant had a difficult time staying on the road while

trying to calm her. When the victim jumped from the car, he looked in the rear

view mirror, saw her get up, and thought “she was okay.” He was planning to go

back and pick her up, “driving . . . a little reckless,” when Officer Cormier stopped

him. Defendant said he did not make the marks on the victim’s neck and back as

shown in the photos taken of the victim on the night of the incident. He did not

recall a knife in the car. He testified that the knife shown in the photographs filed

into evidence was not his, and he did not know where it came from.

PROCEDURAL HISTORY

Defendant was indicted for aggravated kidnapping, a violation of La.R.S.

14:44, armed robbery, a violation of La.R.S. 14:64, and unauthorized use of a

vehicle, a violation of La.R.S. 14:68.4, on April 8, 2009. The State severed the

charge of unauthorized use of a vehicle and tried the aggravated kidnapping and

armed robbery charges together.

Defendant originally pled not guilty to all charges, but he changed his plea

to not guilty and not guilty by reason of insanity on November 3, 2009. The trial

court found Defendant competent to stand trial on March 1, 2012. Defendant

properly waived his right to trial by jury and went to trial before the judge alone on

March 30, 2012.

4 The trial judge rendered a verdict of guilty of the lesser offense of second

degree kidnapping and not guilty of armed robbery. On September 24, 2012, he

sentenced Defendant to forty years at hard labor, with the first two years to be

served without benefit of probation, parole, or suspension of sentence. Defendant

filed a timely appeal.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by

this court for errors patent on the face of the record. After reviewing the record,

we find no errors patent.

DISCUSSION

Ineffective Assistance

Defendant first argues that counsel rendered ineffective assistance by failing

to object to the improper elicitation of prejudicial details of his prior armed robbery

conviction. He contends that counsel should have objected to the State’s questions

or moved for a mandatory mistrial. Counsel’s failure to do so led the trial judge to

improperly find that Defendant was armed with a dangerous weapon during this

offense. Without that finding, Defendant argues, he could be convicted only of

simple kidnapping. Further, Defendant claims that the questions to which his

counsel failed to object referred to inadmissible subject matter because he did not

have proper notice of the specific evidence the State intended to use at trial.

The issue of ineffective counsel is more appropriately addressed in an

application for post-conviction relief, where an evidentiary hearing can be

conducted in the trial court. State in the Interest of A.B., 09-870 (La.App. 3 Cir.

12/9/09), 25 So.3d 1012. However, where an ineffective assistance claim is raised

on appeal, this court may address the merits of the claim if the record discloses

5 sufficient evidence to rule on it. Id. If this court considers a claim of ineffective

counsel on appeal, Defendant must satisfy a two-part test. First, Defendant must

show that counsel’s performance was deficient; next, he must show the deficiency

prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984).

To show prejudice, he must establish “that but for counsel’s unprofessional errors,

there is a reasonable probability the outcome of the trial would have been

different.” State v. Jones, 33,657, p. 11 (La.App. 2 Cir. 8/23/00), 765 So.2d 1191,

1199, writ denied, 00-2779 (La. 6/29/01), 794 So.2d 825 (citing Strickland and

State v. Pratt, 26,862 (La.App. 2 Cir. 4/5/95), 653 So.2d 174, writ denied, 95-1398

(La. 11/3/95), 662 So.2d 9).

The record here is sufficient to determine whether Defendant’s counsel was

ineffective. It reflects the entire colloquy to which Defendant objects, and it

contains the pre-trial notice informing Defendant of the State’s intent to offer

evidence of other crimes.

Second degree kidnapping is:

(1) The forcible seizing and carrying of any person from one place to another; or

(2) The enticing or persuading of any person to go from one place to another; or

(3) The imprisoning or forcible secreting of any person.

La.R.S. 14:44.1(B). Additionally, the victim must be:

(1) Used as a shield or hostage;

(2) Used to facilitate the commission of a felony or the flight after an attempt to commit or the commission of a felony;

(3) Physically injured or sexually abused;

(4) Imprisoned or kidnapped for seventy-two or more hours . . . or

6 (5) Imprisoned or kidnapped when the offender is armed with a dangerous weapon or leads the victim to reasonably believe he is armed with a dangerous weapon.

La.R.S. 14:44.1(A). Defendant claims that the trial judge “likely relied on

subsection (5) [of Subparagraph A]” in order to find him guilty of second degree

kidnapping.

During cross-examination of Defendant, the State’s attorney brought up

Defendant’s 1998 conviction for armed robbery:

Q. The funny thing is that your history is more that you’re a robber, right? Because you got an armed robbery conviction back in 1998, right?

A. Yes, sir.

Q. Yes? In fact, that armed robbery is eerily similar to this one, right? In that armed robbery you came behind a woman with a knife and you took her car, right? Isn’t that right?

A. Yes, it is.

Q. That’s right. Okay. I want to make sure this is abundantly clear. What you’re saying is that although in 1998 you committed armed robbery, an armed robbery that was very similar to what happened here, that in fact, that’s not what happened. That this was a drug deal. Is that what you’re saying? That is your testimony?

A. Well, sir, the circumstances revolving around this are different than those back in 1998. That was youthful indiscretion in ’98. I mean, the circumstances surrounding this incident aren’t the same as those in ’98.

The record shows that the State did use the other crimes evidence during

cross-examination of the defendant for impeachment purposes. Therefore, his

counsel was not ineffective for not objecting. See La.Code Evid. art. 609.1(C).

Moreover, there was ample evidence of the victim’s physical injuries, as

contemplated by La.R.S. 14:44.1(B)(3). The victim suffered injuries to her neck,

back, and knees as a result of the kidnapping, as shown by the photos introduced at

7 trial. Thus, the evidence also supports a conviction for second degree kidnapping

because Defendant forcibly carried the victim from one place to another and

caused her to sustain physical injury. The record shows that the elements of

second degree kidnapping are present without any consideration of the

involvement vel non of a dangerous weapon.

Further, Defendant admits “the evidence may have been sufficient to support

the conclusion that a knife was involved in the crime.” Indeed, the victim’s

testimony, Jamie LeBlanc’s testimony, and the police report clearly show that a

knife was used during the commission of this crime. Hence, the failure to object to

the “other crimes” evidence is not grounds for reversal as there is more than

adequate evidence in the record to support that the kidnapping occurred while the

victim was held at knifepoint. Defendant admitted that he used a knife in the

statement he made to his girlfriend. He also admitted to using a knife in the

commission of the crime in a phone call he made to “apologize” to the victim:

MISS COLON:

You stuck me with a knife in my ribs in my car. You took my car. I had to pay money to fix that old car and I lost money and I didn't know who you are. Why would you do that to me?

MALE VOICE:

I know. I know, Megan. I know. Let me explain.

Okay.

It was a foolish mistake. You have my word that I was -- I wish I had time to explain but I'm using the phone here on the wall. I've been trying to get in touch with you to apologize and I need you to forgive me.

8 Assuming arguendo that counsel was ineffective for failing to object to

improper other crimes evidence, Defendant was not prejudiced in any manner by

the questioning about the details of his prior offense. The evidence is clear that the

State proved beyond a reasonable doubt that the victim was physically injured

during the course of the kidnapping. The victim’s testimony about her struggles to

free herself and Defendant’s choking her was especially corroborated by the photos

of her injuries taken shortly after the incident in question. Because prejudice is an

essential part of a claim of ineffective assistance of counsel, Defendant’s

assignment of error lacks merit.

Notice of Other Crimes Evidence

Next, Defendant argues that evidence of the details of his prior armed

robbery conviction were not admissible because the State failed to provide

reasonable notice of its intent to offer the evidence. The record shows that the

State filed notice of its intent to offer evidence of other crimes on May 13, 2009,

and again on November 30, 2010. Defendant filed a request for a hearing pursuant

to State v. Prieur, 277 So.2d 126 (La.1973) on May 15, 2009, but, apparently, no

hearing was ever scheduled.

[N]ot every violation of pre-trial procedures, including Prieur violations, requires reversal. Before a defendant can complain of such a violation, he must show prejudice. State v. Sanders, 93–0001, p. 14 (La.11/30/94), 648 So.2d 1272, 1284 (citing State v. Hooks, 421 So.2d 880 (La.1982)); State v. Strickland, 398 So.2d 1062 (La.1981).

State v. Blank, 04-204, p. 40 (La. 4/11/07), 955 So.2d 90, 124, cert. denied, 552

U.S. 994, 128 S.Ct. 494 (2007). For the same reasons discussed above, Defendant

was not prejudiced by the failure of the trial court to conduct an “other crimes”

evidence hearing. The record fully supports the elements of second degree

9 kidnapping based on the physical injuries to the victim. This assignment of error

lacks merit.

Prosecutorial Misconduct

Defendant claims in his pro se brief that the State committed prosecutorial

misconduct by knowingly using and coercing testimony it knew to be false or

perjured. Apparently, according to Defendant, because the victim’s written

statement, given at the time of the offense, failed to mention that Defendant had a

knife and that she offered him money, her testimony about those matters amounted

to the State’s procurement and use of testimony the State knew to be false or

perjured. Defendant seems to argue that any testimony or questioning about

anything outside the victim’s written statement was improper, false, and coerced.

Absent this improper testimony, Defendant believes “[t]here is a reasonable

probability that the District Court would have been constrained to order a mistrial

or to find [Defendant] guilty of simple kidnapping.”

Defendant cites no law or jurisprudence that limits the scope of questioning

of a witness to what was contained in his/her previous written statement. His

argument seems to be simply that the victim did not tell the truth.

The factfinder’s role is to weigh the credibility of witnesses. State v. Ryan,

07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than insuring the

sufficiency evaluation standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781

(1979), “the appellate court should not second-guess the credibility determination

of the trier of fact.” Ryan, 969 So.2d at 1270 (quoting State v. Lambert, 97-64 pp.

4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27).

The trial judge specifically mentioned he “didn’t believe a word that came

out of [Defendant’s] mouth.” Apparently, he found the victim credible. Defendant

10 has offered nothing to support his argument or to challenge the trial judge’s

credibility determinations. This assignment of error lacks merit.

Trial Transcripts

Defendant contends the trial transcripts are flawed and deficient and are

missing several objections made by defense counsel as to the State’s leading of its

witness. Defendant does not identify any location in the record where these

alleged omissions occurred. He does not indicate any way in which he was

prejudiced, even if his argument is true. This assignment of error lacks merit.

DISPOSITION

For the reasons stated above, we affirm the conviction of Defendant, Davin

Ryan Hanks, for second degree kidnapping.