State of Louisiana v. Davontay Trashun Davis

• Court: Louisiana Court of Appeal
• Decided: April 5, 2023
• Docket: KA-0022-0739
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

22-739

STATE OF LOUISIANA

VERSUS

DAVONTAY TRASHUN DAVIS

**********

APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 351,173 HONORABLE MARY LAUVE DOGGETT, DISTRICT JUDGE

SHARON DARVILLE WILSON JUDGE

Court composed of Sharon Darville Wilson, Gary J. Ortego, and Wilbur L. Stiles, Judges.

AFFIRMED. Hon. J. Phillip Terrell, Jr., District Attorney Kelvin G. Sanders, Assistant District Attorney Charles Johnson, Jr., Assistant District Attorney Ninth Judicial District Court, Parish of Rapides P. O. Box 7358 Alexandria, La 71306-7358 (318) 473-6650 COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana

Annette Roach Louisiana Appellate Project P. O. Box 6547 Lake Charles, LA 70606-6547 (337) 436-2900 COUNSEL FOR DEFENDANT/APPELLANT: Davontay Trashun Davis WILSON, Judge.

A jury found Defendant, Davontay Trashun Davis, guilty of

manslaughter, a violation of La.R.S. 14:31. Defense counsel filed both a motion for

judgment of acquittal and a motion for new trial. The motions were heard and

denied. The trial court sentenced Mr. Davis to four years at hard labor and

recommended him for reentry programs and work release. Mr. Davis now appeals.

For the reasons expressed below, we affirm the conviction and sentence.

I.

ISSUES

In this appeal we must decide whether the evidence introduced at trial

was insufficient to rebut Mr. Davis’s assertion that he reasonably believed that he

was in imminent danger of receiving great bodily harm and that the force used was

necessary to save himself and others from harm.

II.

FACTS AND PROCEDURAL HISTORY

On January 30, 2021, Nicholas Smith and his then girlfriend, Ashairen

Gaines, went to the home of Mr. Davis and his girlfriend, Kaitlin Smith. Nicholas

Smith is the teenage brother of Katlin Smith. Mr. Smith and Ms. Gaines were driven

to the residence by Ms. Gaines’ grandfather, Shelvey Mark Dunkley. Mr. Smith had

previously resided with his sister and Mr. Davis and arrived at the residence to

retrieve a bed which allegedly belonged to him. When they arrived, Mr. Smith was

let into the house by his sister, and he proceeded to his bedroom. After he began

disassembling the bed, an argument began between Mr. Smith and his sister about

removing the bed. Mr. Davis informed Mr. Smith he could not take the bed because it had been sold to Mr. Davis’s brother. At some point, Mr. Dunkley backed his

pickup truck to the front door of the residence at the instruction of Mr. Smith and

Ms. Gaines. Mr. Smith managed to remove one piece of the bed from the home and

placed it onto the back of Mr. Dunkley’s truck. Mr. Davis and Mr. Smith continued

arguing about the bed and Mr. Smith was told to leave along with Ms. Gaines and

Mr. Dunkley.

Mr. Smith and Ms. Gaines returned to the truck and informed Mr.

Dunkley that they had been told to leave without the bed. After they exited the

home, the front door was closed. Mr. Dunkley then decided to see what was going

on and knocked on the front door. Mr. Davis opened the front door, and a brief

verbal exchange took place between the two men at the entrance of the home. Mr.

Dunkley walked toward Mr. Davis, and Mr. Davis pushed him into a brick wall near

the front door. In response, Mr. Dunkley punched Mr. Davis. Mr. Davis then took

out his pistol and shot Mr. Dunkley five times. After killing Mr. Dunkley, Mr. Davis

drove away with his girlfriend. Shortly after fleeing, Mr. Davis, called 9-1-1 and

turned himself in to the Alexandria Police Department.

On March 30, 2021, Mr. Davis was indicted and charged with the

second degree murder of Mr. Dunkley. Mr. Davis pled not guilty, and the matter

proceeded to trial on May 17, 2022. The jury returned a responsive verdict of guilty

of manslaughter. On July 19, 2022, defense counsel filed motions for judgment of

acquittal and new trial. The motions were heard and denied on July 20, 2022. On

the same day, the trial court sentenced Mr. Davis to four years at hard labor and

recommended him for re-entry programs and work release. Mr. Davis filed a motion

to reconsider sentence on August 9, 2022, which the trial court denied on August 12,

2 2022. Mr. Davis now appeals his conviction challenging the sufficiency of the

evidence.

III.

LAW AND DISCUSSION

ERRORS PATENT

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

for errors patent on the face of the record. After reviewing the record, we find there

are no errors patent, but the minutes of sentencing and Uniform Commitment Order

need correction. The court minutes reflect that Mr. Davis’s sentence was imposed

without the benefit of parole, probation, or suspension of sentence. Although the

trial court did not suspend any portion of Mr. Davis’s sentence and did not place him

on probation, the sentencing transcript contains no restriction of parole. “[I]t is well

settled that when the minutes and the transcript conflict, the transcript prevails.”

State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ

denied, 00-2051 (La. 9/21/01), 797 So.2d 62. Accordingly, we instruct the trial court

to amend the court minutes to correctly reflect that the trial court did not deny parole.

Likewise, the Uniform Commitment Order indicates that the sentence is to be served

without benefit of parole. As such, it should also be corrected in accordance with

the transcript.

SUFFICIENCY OF THE EVIDENCE

In his sole assignment of error, Mr. Davis argues that the force used to

ward off the advancing trespasser at the threshold of his home was reasonable under

the particular facts of the case; therefore, the evidence introduced at trial was

insufficient to rebut the assertion that Mr. Davis acted in self-defense. After

3 reviewing the evidence, we find there was sufficient evidence to convict Mr. Davis

of manslaughter.

The general analysis for insufficiency of the evidence claims is well-

established:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Mr. Davis does not deny that he shot and killed Mr. Dunkley; rather, he

argues that the state failed to disprove that he acted in self-defense. When a

homicide defendant claims self-defense, the State has the affirmative burden of

proving beyond a reasonable doubt that the homicide was not perpetrated in self-

defense; a defendant does not assume the burden of proving self-defense. State v.

Lynch, 436 So.2d 567 (La. 1983).

Killing in self-defense is governed by La.R.S. 14:20(A), which

provides, in pertinent part, “A homicide is justifiable: (1) When committed in self-

defense by one who reasonably believes that he is in imminent danger of losing his

4 life or receiving great bodily harm and that the killing is necessary to save himself

from that danger.” (Emphasis added). Under La.R.S. 14:20(A)(2), a homicide is

justifiable “when it is committed for the purpose of preventing a violent or forcible

felony involving danger to life or of great bodily harm by one who reasonably

believes that such an offense is about to be committed and that such action is

necessary for its prevention.” This statute goes on to provide that the “circumstances

must be sufficient to excite the fear of a reasonable person that there would be serious

danger to his own life or person if he attempted to prevent the felony without the

killing.” Id. Mr. Davis was charged with second degree murder but was convicted

of the lesser included offense of manslaughter. Manslaughter is defined as a

homicide which would be murder, but the offense is committed in sudden passion

or heat of blood immediately caused by provocation sufficient to deprive an average

person of his self-control and cool reflection. La.R.S. 14:31.

Mr. Davis contends that the killing was justified because Mr. Dunkley

did not leave the property, continued to approach Mr. Davis who was in the doorway,

and had punched Mr. Davis in the face. He argues that he was afraid of Mr. Dunkley

and only acted to protect himself and his girlfriend. In discussing the factors to be

considered in examining a self-defense claim, this court has stated:

“In examining a self-defense claim, it is necessary to consider: (1) whether the defendant reasonably believed that he was in imminent danger of death or great bodily harm; (2) whether the killing was necessary to prevent that death or great bodily harm; and (3) whether the defendant was the aggressor in the conflict.” State v. Mayes, 14-683, pp. 2-3 (La.App. 3 Cir. 12/23/14), 154 So.3d 1257, 1259, writs denied, 15-178, 15-220 (La.11/16/15), 184 So.3d 24. Additionally, in determining whether the defendant had a reasonable belief that the killing was necessary, it is appropriate to consider “the excitement and confusion of the situation, the possibility of using force or violence short of killing, and the defendant’s knowledge of the

5 assailant’s bad character.” State v. Thomas, 43,100, p. 5 (La.App. 2 Cir. 4/30/08), 981 So.2d 850, 854, writ denied, 08-1276 (La.2/6/09), 999 So.2d 769.

State v. Fox, 15-692, p. 4 (La.App. 3 Cir. 2/3/16), 184 So.3d 886, 890, writ denied,

16-404 (La. 3/13/17), 216 So.3d 800.

At trial, the State called Nicholas Smith and Ashairen Gaines who

witnessed the events leading up to the shooting in the doorway. The State also called

Detective Thomas Rodney, who investigated the crime and interviewed Mr. Davis,

Detective Chris Jenkins, who photographed and secured the crime scene, and Dr.

Christopher Tape, who completed the autopsy report on Mr. Dunkley. Photos of the

scene and recordings of Mr. Davis’s interview, along with the various 9-1-1 calls

made concerning the shooting, were admitted into evidence. The defense called

Kaitlin Smith, Mr. Davis’s girlfriend, who was also a witness to the events.

In the instant case, the witnesses indicated that Mr. Smith had

previously lived in the apartment with his sister in some capacity. Mr. Smith went

to retrieve a bed and had his girlfriend’s grandfather drive them all to the residence.

There was conflicting testimony about whether Ms. Gaines entered the apartment,

and the extent of the fight at the door. When there is conflicting testimony about

factual matters, the resolution of which depends upon a determination of the

credibility of witnesses, this is a matter of the weight of the evidence, not its

sufficiency. State v. Williams, 05-59, p.5 (La.App. 5 Cir. 5/31/05), 904 So.2d 830,

833. However, the testimony of all the witnesses established that there was an

argument amongst everyone, which resulted in Kaitlin shutting the door and Mr.

Smith walking outside. Mr. Smith and Ms. Gaines stated that Mr. Dunkley wanted

to talk to Mr. Davis to see what was going on with all the yelling. All three witnesses

confirmed that there was a confrontation at the door, and the consensus from the

6 testimony was that: the group was asked to leave; Mr. Dunkley approached the door

to knock; Mr. Davis opened the door; Mr. Davis pushed Mr. Dunkley into the wall;

Mr. Dunkley responded by punching Mr. Davis in the face with his fist once; and

Mr. Davis pulled out his gun and shot Mr. Dunkley five times. Detective Rodney

testified that he searched Mr. Dunkley’s vehicle and person and did not locate any

weapons. Mr. Davis admitted in his police interview that he did not see a weapon

in Mr. Dunkley’s hands when he felt threatened and pushed him.

In light of this evidence, we find that the state met its burden of proving

that Mr. Davis did not act in self-defense. In his statement to the police, Mr. Davis

indicated that he did not know Mr. Dunkley, Mr. Dunkley and the group had been

asked to leave, and he could not fight. He repeatedly stated that he was afraid and

felt threatened by Mr. Dunkley. Mr. Davis may very well have been of the belief

that he was in danger, however, considering the evidence, it was not reasonable for

Mr. Davis to have believed he was in immediate danger of death or great bodily

harm. The testimony indicated that Mr. Dunkley remained outside, even though the

door was open until Nicholas was asked to leave. The testimony further indicated

that Mr. Dunkley only began approaching the doorway after Nicholas was refused

access to his bed. There was no testimony that Mr. Dunkley approached in an

aggressive or irrational manner. There was no testimony that Mr. Dunkley used his

hands first. Instead, Mr. Davis admitted that he was the one who pushed Mr.

Dunkley, which prompted Mr. Dunkley to respond with a single punch.

Not only was it unreasonable for Mr. Davis to believe he was in

immediate danger, but the killing was also not necessary to prevent death or great

bodily harm. Mr. Davis contends that he had a right to defend himself with force

under La.R.S. 14:20(C) which provides,

7 A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using deadly force as provided for in this Section, and may stand his or her ground and meet force with force. This court has explained,

Moreover we weigh the proportionality of Defendant's response to the threat to determine whether Defendant had a reasonable belief that the killing was necessary. State v. Mincey, 08-1315 (La.App. 3 Cir. 6/3/09), 14 So.3d 613. Though no unqualified duty of retreat exists, as noted in State v. Ingram, 45,546, p. 10 (La.App. 2 Cir. 6/22/11), 71 So.3d 437, 445, writ denied, 11–1630 (La.1/11/12), 77 So.3d 947, “[t]he unavailability of the retreat defense does not end the inquiry into the reasonableness of the use of force even when the accused is in his own home.”

State v. Steinle, 12-53, p. 8 (La.App. 3 Cir. 10/3/12), 98 So.3d 973, 978, writ denied,

2012-2390 (La. 5/31/13), 118 So.3d 387.

Although Mr. Davis had a right to meet force with force, the use of

force must be proportional. In the instant case, Mr. Davis used deadly force against

an unarmed attack which consisted of a single punch. There was no indication that

Mr. Dunkley was attempting to force his way inside Mr. Davis’s home. The

testimony revealed that Mr. Dunkley only acted with force in response to being

shoved into a wall by Mr. Davis. Additionally, from both Dr. Tape’s testimony and

Mr. Davis’s statement to police, the record shows that Mr. Davis and Mr. Dunkley

were close to the same height, but Mr. Davis was twenty-years old and weighed

approximately 290 lbs. while Mr. Dunkley was forty-eight and weighed about 180

lbs. Under these facts, Mr. Davis used a disproportionate amount of force to defend

himself after being punched once.

8 In State v. Mincey, 08-1315, (la.App. 3 Cir. 6/3/09), 14 So.3d 613, the

victim was in a nightclub when the defendant bumped into him. Words were

exchanged, and the defendant walked out of the club followed by victim’s friends

who confronted Defendant about the bumping incident. An argument ensued, and

Defendant advised them that he was in possession of a gun. At this point, the victim

exited the club and confronted the defendant and attempted to punch him. Defendant

then shot the victim in the chest. This court acknowledged that the defendant may

have genuinely felt endangered, since the victim had two friends with him, and that

some level of fear was objectively reasonable. However, this court concluded

“responding to an oncoming punch by shooting the other person in the chest is an

excessive response.” Id. at 616.

This court likewise concluded that shooting the victim in response to

an oncoming punch was excessive in State v. Domingue, 17-786 (La.App. 3 Cir.

4/18/18), 244 So.3d 489. In Domingue, the victim and his girlfriend lived in a trailer

owned by the defendant. An argument between the victim and his girlfriend took

place. The defendant exited his room with a gun and ordered the victim to leave,

but the victim refused, and the argument escalated. At some point the victim pulled

his hoodie off, a gesture interpreted as the beginning of a fight, and advanced toward

the defendant. The defendant then fired a lethal shot at the victim. This court found

that the defendant used disproportionate force against an unarmed victim.

In the instant case, Mr. Davis shot Mr. Dunkley at point-blank range

both in the head and chest in response to a punch by an older, smaller man. This

force was vastly disproportionate to the force used by Mr. Dunkley. Thus, we find

that the jury’s determinations in the present case were not unreasonable, and the

9 State presented sufficient evidence to disprove Mr. Davis’s claim of self-defense.

Accordingly, we affirm Mr. Davis’s conviction and sentence.

IV.

CONCLUSION

For the foregoing reasons, Mr. Davis’s conviction and sentence are

affirmed. The trial court is instructed to amend the court minutes and the Uniform

Commitment Order to correctly reflect that the trial court did not deny parole and

defendant be provided with notice of said amendment to the minutes within thirty

(30) days.

AFFIRMED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3 Uniform Rules, Court of Appeal.