State of Louisiana v. Demon'tay Deon Dunbar

• Court: Louisiana Court of Appeal
• Decided: September 25, 2024
• Docket: KA-0024-0073
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

24-73

STATE OF LOUISIANA

VERSUS

DEMON’TAY DEON DUNBAR

**********

APPEAL FROM THE SEVENTH JUDICIAL DISTRICT COURT PARISH OF CONCORDIA, NO. 2022-1511 HONORABLE JOHN C. REEVES, DISTRICT JUDGE

CHARLES G. FITZGERALD JUDGE

Court composed of Elizabeth A. Pickett, Charles G. Fitzgerald, and Wilbur L. Stiles, Judges.

AFFIRMED. Jacob Longman Kathryn Jakuback Burke F. Richard Sprinkle Jeanna Wheat Jennifer Carpenter Cameron Longman Jakuback, APLC 830 Main Street Baton Rouge, Louisiana 70802 (225) 383-3644 Counsel for Defendant/Appellant: Demon’tay Deon Dunbar

Bradley R. Burget District Attorney, Seventh Judicial District Joseph A. Boothe First Assistant District Attorney 4001 Carter Street, Suite 9 Vidalia, Louisiana 71373 (318) 336-5526 Counsel for Appellee: State of Louisiana FITZGERALD, Judge.

Defendant, Demon’tay Deon Dunbar, appeals his conviction for possession of

a firearm by a convicted felon.

On June 3, 2022, law enforcement received a report of shots fired in Ferriday,

Louisiana. A few hours later, they received information that Defendant and an

accomplice had been pointing guns at individuals. They also received a description

of Defendant’s vehicle. A few hours after that, Defendant’s vehicle was stopped and

searched.

The search of Defendant’s vehicle revealed two loaded guns: the first was a

“ghost gun” comprised of parts without serial numbers; the second was an automatic

rifle. Defendant was arrested and ultimately charged by bill of information with

possession of a firearm by a convicted felon in violation of La.R.S. 14:95.1.

The matter proceeded to jury trial in October 2022. At the close of evidence,

the jury unanimously found Defendant guilty as charged. Defendant was then

sentenced to serve twenty years at hard labor without the benefit of probation, parole,

or suspension of sentence. Defendant now appeals his conviction.

On appeal, Defendant asserts three assignments of error:

1. The Court violated [Defendant’s] right to due process when it excluded felons from the jury venire, in violation of La. C. Cr. P. art. 401, which was amended by the legislature in 2021.

2. The State violated [Defendant’s] right to due process when it did not release the evidence and witness list in this case to defense counsel before trial in violation of Brady [v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963)] and Kyles [v. Whitley, 514 U.S. 419, 115 S.Ct. 1555 (1995)].

3. [Defendant’s] trial counsel was ineffective for not filing a Motion to Quash the illegal jury venire and not ensuring that he had access to the evidence to be presented by the [S]tate prior to trial so he could effectively prepare to present a defense on [Defendant’s] behalf. LAW AND ANALYSIS

Pursuant to La.Code Crim.P. art. 920, we find no errors patent on the face of

the record that require correction.

First Assignment of Error

Defendant initially asserts that he was denied due process because felons were

excluded from the jury venire in violation of La.Code Crim.P. art. 401, as amended

in 2021.

Defendant makes two arguments in support of this assignment. First,

Defendant argues that the trial court relied on outdated law to excuse prospective

juror Melissa Adams. Specifically, during the trial court’s discussion to the jury

about juror qualifications, the court relied on the pre-amended version of La.Code

Crim.P. art. 401 (2010) and said, “[Y]ou must not be under indictment for a felony

or have been convicted of a felony for which you have not been pardoned.” 1 The

trial court then asked for anyone not meeting the qualification requirements to

approach the bench. Prospective juror Adams, in turn, stepped forward and informed

the court that she was a felon. The court then asked whether anyone had any

questions, and defense counsel replied that he did not. Ms. Adams was excused from

service at that point. In essence, Defendant argues that the trial court’s

misapplication of law violated his due process rights.

In response, the State argues that Defendant failed to preserve this issue for

appeal, pointing to La.Code Crim.P. art. 841 and State v. Gassenberger, 23-148

(La.App. 5 Cir. 12/20/23), 378 So.3d 820.

1 La.Code Crim.P. art. 401 was amended and reenacted by 2021 La. Acts No. 121, § 1. The amended version of Article 401(A)—which was in effect at the time of jury selection in this case—states that to serve on a jury, a person shall “[n]ot be under indictment, incarcerated under an order of imprisonment, or on probation or parole for a felony offense within the five-year period immediately preceding the person’s jury service.” 2 In Gassenberger, 378 So.3d at 834, the fifth circuit provided the following

statement of law:

To preserve the right to seek appellate review, a party must state an objection contemporaneously with the occurrence of the alleged error as well as the grounds for that objection. La. C.Cr.P. art. 841. A new ground for an objection cannot be presented for the first time on appeal. State v. Housley, 05-502 (La. App. 5 Cir. 1/31/06), 922 So.2d 659, 664– 65, writ denied, 06-1183 (La. 11/17/06), 942 So.2d 531. The Louisiana Supreme Court has consistently held that when a defendant fails to timely raise an objection to irregularities in the jury selection process, review of those irregularities are waived. State v. Parker, 04-1017 (La. App. 5 Cir. 3/29/05), 901 So.2d 513, 524, writ denied, 05-1451 (La. 1/13/06), 920 So.2d 235 (citing State v. Snyder, 98-1078 (La. 4/14/99), 750 So.2d 832).

In our case, like Gassenberger, Defendant raises the issue of juror

disqualification for the first time on appeal. Because Defendant failed to make this

objection at the time prospective juror Adams was excused, the issue is waived and

not before this court.

Now to Defendant’s second argument. This argument is based entirely on the

trial court’s previously quoted statement to the jury venire about juror qualifications:

that “you must not be under indictment for a felony or have been convicted of a

felony for which you have not been pardoned.” As Defendant puts it, “That

comment [by the trial court] during the qualification of the venire and the resulting

dismissal of only a single juror, further demonstrates that the venire itself likely did

not include felons drawn from the public either.” We disagree. Indeed, Ms. Allen—

an admitted felon—was subpoenaed and appeared for jury duty. Thus, felons were

obviously not excluded from the jury venire. There is simply nothing in the record

that supports this argument.2

2 By extension, Defendant argues that his grand jury indictment was also illegally obtained and should be quashed. Yet this case was never presented to a grand jury; the case was initiated by the filing of a bill of information. Hence, the argument is misplaced.

3 Second Assignment of Error

In this assignment, Defendant asserts that the State violated his right to due

process by not releasing its evidence and witness list before trial. Indeed, just prior

to opening statements, defense counsel stated, “Judge, this is a Ferriday case and

you know Ferriday cases are all screwed up. I have to wait and see what the evidence

is, if they took any statements.” The judge responded, “Well, I know that. I know

that. You—you—on opening statements, you don’t have to do an opening.”

On appeal, Defendant argues that this acknowledgement by the trial court

shows that it was aware of “a culture of Brady violations within the local

government.” Yet here, according to Defendant, there is no way to analyze a Brady

violation because there is no indication of what evidence, if any, was made available

to defense counsel during open file discovery. In other words, this assignment is

based entirely on defense counsel’s statement at trial that they would “have to wait

and see what the evidence is.” And based on that statement, Defendant now seeks

reversal of his conviction under Brady.

The Louisiana Supreme Court addressed the requirements for a successful

Brady claim in State ex rel. Robinson v. Vannoy, 21-812 (La. 1/26/24), 378 So.3d 11,

rehearing granted, 21-812 (La. 3/21/24), 382 So.3d 27. There, the supreme court

explained:

In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court held that suppression by the prosecution of evidence favorable to the accused after receiving a request for the evidence violates a defendant’s due process rights where the evidence is material either to guilt or punishment, without regard to the good or bad faith of the prosecution. For purposes of the State’s due process duty to disclose, no difference exists between exculpatory evidence and impeachment evidence. State v. Kemp, 00-2228, p.7 (La. 10/15/02), 828 So.2d 540, 545. The Brady rule encompasses evidence which impeaches the testimony of a witness when the reliability or credibility of that witness may determine guilt or innocence, and applies whether a general, specific or even no request at all is made for the evidence. United States v. Bagley, 473 U.S. 667, 676, 682, 105 S.Ct.

4 3375, 87 L.Ed.2d 481 (1985); State v. Knapper, 579 So.2d 956, 959 (La. 1991).

....

To prevail on his Brady claim, defendant was required to demonstrate that (l) the State suppressed evidence, (2) the evidence was favorable to the defense, and (3) the evidence was material. LaCaze v. Warden Louisiana Correctional Institute for Women, 645 F.3d 728, 735 (5th Cir. 2011).

Id. at 27–29.

Additionally, in State v. Taylor, 12-25, pp. 18–20 (La.App. 5 Cir. 6/28/12), 97

So.3d 522, 535–36, the fifth circuit explained:

While the United States Supreme Court has emphasized the prosecution’s duty to disclose exculpatory evidence, it has not specifically spoken on the timing of such disclosures. But the Louisiana Supreme Court has held that late disclosure as well as non- disclosure of exculpatory evidence may deprive the defendant of a fair trial. Kemp, supra; State v. Williams, 448 So.2d 659, 665 (La.1984). See also State v. Lande, 06-24, pp. 23–24 (La.App. 5 Cir. 6/28/06), 934 So.2d 280, 296, writ denied, 06-1894 (La. 4/20/07), 954 So.2d 154.

Moreover, discovery violations are not grounds for reversal unless they have actually prejudiced the defendant. State v. Garrick, 03- 0137, p. 5 (La.4/14/04), 870 So.2d 990, 993 (per curiam); State v. Strickland, 398 So.2d 1062, 1067 (La. 1981). Even a discovery violation involving the State’s failure to disclose exculpatory evidence does not require reversal under the Due Process Clause “unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict.” Strickler v. Greene, 527 U.S. 263, 281, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999).

In the instant case, Defendant does not identify any evidence that was withheld

by the State. This omission is fatal to Defendant’s Brady claim. In other words,

Defendant failed to demonstrate that the State suppressed evidence, that the evidence

was favorable to the defense, and that the evidence was material. Hence,

Defendant’s second assignment is without merit.

5 Third Assignment of Error

In his final assignment, Defendant asserts that his trial counsel was ineffective

because he did not file a motion to quash the illegal jury venire and did not obtain

access to the State’s evidence prior to trial.

At the outset, we note that an ineffective-assistance-of-counsel claim is more

appropriately addressed in an application for post-conviction relief. State in the

Interest of A.B., 09-870 (La.App. 3 Cir. 12/9/09), 25 So.3d 1012. This is especially

true when the claim is based on evidence not in the record. State v. Kendrick, 96-

1636 (La.App. 3 Cir. 6/25/97), 699 So.2d 424, writ denied, 98-2159 (La. 12/18/98),

731 So.2d 280. However, when the record is sufficient, the claim may be resolved

on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528

(La.1982). In our case, the record is sufficient to review Defendant’s claim on

appeal.

In assessing a claim of ineffectiveness of counsel, the defendant must show

two things: (1) that his attorney’s performance was deficient, and (2) that the

deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052 (1984). Both elements must be proven. State v. Chandler, 22-1506 (La.

5/5/23), 362 So.3d 347. Here, because Defendant failed to establish prejudice, we

need not address whether Defendant proved deficient performance.

As to the standard for determining prejudice, the error is prejudicial if it was

“so serious as to deprive the defendant of a fair trial, a trial whose result is

reliable.” Strickland, 466 U.S. at 687. Stated differently, “[t]he defendant must

show that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id.

at 694.

6 Defendant here contends that his trial counsel should have been aware of the

change to La.Code Crim.P. art. 401 and should have objected when Ms. Allen was

excused as a juror. Yet Defendant never explains how this deficiency deprived him

of a fair trial. Defendant next contends that when his trial counsel realized the jury

venire did not include felons, he should have filed a motion to quash the venire. But

as addressed previously, this contention is conceptually flawed. And finally,

Defendant contends that his counsel was ineffective by not obtaining the State’s

evidence prior to trial. According to Defendant, his trial counsel was unprepared

and thus should have asked for a continuance. But again, there is no showing that

the State had any evidence that was favorable to the defense.

On the contrary, the record evidence of Defendant’s guilt includes Ferriday

Chief of Police Sam King’s testimony that he found Defendant alone in his

(Defendant’s) vehicle on June 3, 2022. Chief King identified Defendant in open

court. The chief also testified about finding the two firearms during the search of

Defendant’s vehicle. Those firearms were admitted into evidence. And finally, it is

undisputed that Defendant was a felon: he had been previously convicted of

aggravated assault with a firearm on April 12, 2017. The documents establishing

this fact were admitted in evidence through the testimony of Deputy Clerk of Court

Becky Perrault.

In the end, even if Defendant had proven deficient performance by counsel,

there is nothing in the record to suggest that the outcome of trial would have been

different. Defendant thus failed to show that the alleged deficiencies of counsel

prejudiced his defense. And his third assignment of error is without merit.

DISPOSITION

For the above reasons, Demon’tay Deon Dunbar’s conviction is affirmed.

AFFIRMED.