State of Louisiana v. Dennis Davis, Jr.

• Court: Louisiana Court of Appeal
• Decided: December 15, 2021
• Docket: 54.116-KA
• Status: Published

Opinion

Judgment rendered December 15, 2021. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.

No. 54,116-KA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

DENNIS DAVIS, JR. Appellant

Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 342,728

Honorable Charles G. Tutt, Judge

LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Douglas Lee Harville

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

KODIE SMITH ALEXANDRA L. PORUBSKY Assistant District Attorneys

Before MOORE, GARRETT, and THOMPSON, JJ. MOORE, C.J.

Defendant, Dennis Davis, Jr. (“Davis”), was charged with attempted

first degree murder and armed robbery with a firearm enhancement. The

court granted Davis’s motion to proceed pro se, and he also waived his right

to a jury trial. A four-day bench trial split over two months was held on

October 1 and 2, 2019, and December 17 and 18, 2019, and presided over by

the Honorable Charles Tutt. Following trial, the court found Davis guilty of

armed robbery with a firearm enhancement and guilty of the responsive

charge of aggravated battery. Sentencing was set for February 20, 2020.

Prior to sentencing, Davis filed several motions, including multiple

motions for a new trial, a motion in arrest of judgment, and a motion for a

post-verdict judgment of acquittal. Following a hearing on February 19,

2020, the trial court denied the motions; however, prior to his sentencing,

Davis also filed a motion to recuse Judge Tutt on grounds of bias, prejudice,

and a personal interest in his conviction.1 Sentencing was delayed nearly

eight months pending a hearing on this motion. After a hearing on the

motion to recuse held before Judge Katherine Dorrah, the motion was denied

on July 14, 2020. Sentencing was set for August 10, 2020, by Judge Tutt.

At the sentencing hearing, Judge Tutt sentenced Davis to 10 years at

hard labor for the aggravated battery, and 20 years at hard labor without

benefit of probation, parole, or suspension of sentence for the armed robbery

conviction. The court ordered the two sentences to run concurrently

1 Davis contends the motion was filed on February 18. Judge Tutt said he received it on the evening of the 19th, and the clerk said it was filed on the 20th. In any case, the motion precluded sentencing scheduled for February 20, 2020. with each other and also concurrently with the felony sentence Davis was

currently serving. For the firearm enhancement, the court sentenced Davis

to five years without benefit of probation, parole, or suspension of sentence

and ordered the sentence to be served consecutively to the 20-year armed

robbery sentence.

This appeal followed.

FACTS

Around 2:00 a.m. on July 29, 2016, Davis approached Delbert

Washington (“Washington”), an unarmed security guard for the Baymont

Inn & Suites on Monkhouse Drive near the Shreveport Airport. Davis told

Washington, who was standing outside the building, that he wanted to rent a

room at the motel. Washington recognized Davis as a frequent customer

over the past two years, and he accompanied Davis into the locked motel

lobby. The front desk clerk, Jermaine Stephens (“Stephens”), informed

Davis that there were no available rooms. Davis then asked if he could use

the lobby telephone. After using the telephone, he pulled out a black

handgun and fired it into the air. He demanded money from Stephens and

shot Washington in the leg. Washington fled the building and called police.

Davis took the motel cash drawer and fled the scene. Both Stephens and

Washington said that Davis fired the pistol three times.

Washington identified Davis to the police as the person who

committed the robbery and fired the shots. Both Washington and Stephens

picked Davis out from a six-person lineup, and each identified him as the

perpetrator in open court.

Three spent cartridge shell casings were found in the lobby area of the

motel. A few days after the robbery, a black handgun was found in the

2 bushes in the same area where earlier police discovered the discarded empty

cash drawer taken from the motel.

Davis was arrested and charged with attempted first degree murder

and armed robbery. After a bench trial, the court returned a responsive

verdict of aggravated battery on the murder charge, finding that Davis

intentionally shot Washington in the leg. The court also found that Davis

was guilty of armed robbery and the enhancement of armed robbery with a

firearm.

On appeal, Davis’s sole assignment of error alleges that the trial court

abused its discretion by not ordering a second recess of the trial in order to

obtain the presence of one of the defendant’s witnesses. The witness whose

testimony he seeks, a Leroy Graham (“Graham”), lived in Minnesota and

refused to travel to Shreveport to testify in the trial. Graham, who was

staying at the motel a few days after the shooting, saw a firearm near some

bushes while he was walking his dogs. He reported what he saw and

directed the police to the firearm. The following facts pertain to Graham’s

involvement in the matter.

On August 2, 2019, four days after the crime, Corporal Henry Burak

of the Shreveport Police Department was dispatched to the Baymont Inn to

follow up a report that a guest at the motel, Graham, had spotted a firearm in

some bushes outside the motel when he was walking his dogs. Cpl. Burak

testified that Graham directed him to some bushes located at the southwest

corner right behind a Waffle House. Cpl. Burak saw a small black handgun

in the bushes and retrieved the firearm. When Cpl. Burak was shown the

handgun in court, he identified it as the same handgun he found at the

Baymont Inn in the area where Graham directed him. He placed the firearm

3 along with an ATF trace form and other department paperwork in the

property room.

Graham was initially issued a subpoena by the state to testify

regarding finding the pistol while walking his dogs. However, the state later

concluded that it did not need Graham’s testimony to get the handgun into

evidence since Cpl. Burak was the person who found it. There is no

evidence that Graham ever touched or had custody of the gun. Nevertheless,

Davis decided that he wanted to subpoena Graham, so he requested the court

to issue a subpoena.

There was no return slip indicating Graham was served. However,

Graham did call the Caddo Parish D.A.’s office regarding the subpoena.

Kodie Smith, the prosecutor in this case, spoke with Graham on the

telephone and advised him to contact Michael Enright at the IDB because he

(Graham) was on the defendant’s witness list; according to Enright, Graham

never contacted him. Graham did not appear on October 1, 2019, for trial as

directed by the initial subpoena. In fact, none of Davis’s witnesses appeared

on that date. The court advised the state and the defendant that it would

keep the record open for Graham’s testimony “if we can’t get him here

today, tomorrow, [or] before we finish trial.” The court further stated: “And

if he’s the guy that supposedly found the gun, I personally want to hear from

him.”

The issue came up again on the second day of trial when, after cross-

examining Cpl. Burak, the pro se defendant asked the court if it had made

“any substantial steps to get Mr. Graham here.” Judge Tutt responded: “I

can’t get on the phone and have him jump on a plane and come down here if

he’s refused to come down here. If he’s not here, I told you we would see

4 what we could do to get him here if necessary.” (Emphasis supplied). Since

none of the witnesses that the defendant subpoenaed were present to testify,

and Judge Tutt had no return slips to know who was not present and where

they were located, he told Davis: “When the state finishes its case, I am

going to go over your witness list with you and I’m going to try to see if we

can get them here, okay.”

At the end of the second day of trial, the court suggested that the state

and defendant pick a future date to resume the trial. Judge Tutt stated he

would allow Davis to issue new subpoenas to the local witnesses to appear

on that future date. In the meantime, Judge Tutt said he would try to get in

touch with Graham in Minnesota to find out if he was ever served and “see if

we can get him here or at least get him on the telephone, okay.”

The trial was set to resume on December 17-18, 2019. Because Davis

appeared to be unprepared to cross-examine the state’s witnesses, the court

admonished him to “get ready to question your witnesses. * * * You’ve had

four years to get ready.”

Davis had submitted to the court a list containing 41 witnesses (pared

down from at least 56) he wanted to subpoena for his defense. The court

reviewed the list and ultimately approved 25 of the 41 requested subpoenas.

Judge Tutt also wrote Davis a letter explaining his reasons for each one of

the 16 witnesses he did not approve being subpoenaed.

On December 17, 2019, trial resumed. Davis complained that some of

his witnesses were not present due to incorrect addresses. He also requested

a continuance because he needed more time to prepare. Implicitly denying

the motion, the court told Davis to call his first witnesses.

5 After Davis examined eight witnesses, he asked the court where

Graham was, his out-of-town witness. The court replied that Graham was

ordered by a judge in Minnesota on December 5 to be here, but he has not

heard from him. The court then told Davis:

All right. Mr. Davis, I don’t know what the – I’ve done everything I humanly can. I and Chief Deputy Clerk Dianne Dougherty bothered the Minnesota authorities to death and finally got that subpoena served on the witness. He refused to voluntarily come. He went to court, and he was ordered to be here. I don’t know what your remedy is because I’ve never been in this situation before.

Regarding Graham, Judge Tutt noted that the defendant had not given

him any reason to try to have Graham arrested in Minnesota and brought

here to testify. He asked Davis what testimony he expected to obtain from

Graham to see if the state would stipulate to it. Davis responded that he

wanted Graham to give an “account to his visit at the Baymont Inn, what

type of people and activities that was[.]” Realizing where Davis was headed

with this line of questioning, Judge Tutt stopped him, telling him that he had

already shown, and the court had already acknowledged, that there were

drugs and prostitutes and human trafficking all up and down Monkhouse

Drive. Davis said he wanted to know if Graham met Washington, the

security guard, while staying at the motel; he claims that Washington used

drugs and was involved with prostitutes on Monkhouse Drive. He also

wanted to ask Graham how he found the firearm, namely, how it was

positioned or whether it was buried in the dirt.2 The court concluded that the

defendant had not given a sufficient reason to require Graham to testify

regarding the position of the gun.

2 On cross-examination of Cpl. Burak, the SPD officer who retrieved the gun from the bushes, Davis asked if the gun was buried, or covered in dirt; Cpl. Burak said it was not, but he could not say how long the gun had been there based on its appearance. 6 DISCUSSION

By his sole assignment of error, Davis alleges that the trial court

abused its discretion by failing to recess the bench trial to obtain the

presence of Graham. Graham saw the firearm in some bushes around the

motel while he was walking his dogs a few days after the offense. He

reported what he saw and pointed Cpl. Henry Burak to the location where he

saw the handgun. Cpl. Burak retrieved the firearm and placed it in the

property room of the SPD.

Counsel for the defense argues that, although Davis was unable to

supply to the trial court sufficient reasons for it to compel Graham’s

appearance, it was critically important to allow him to confront Graham

since Graham inexplicably refused to comply with a court order to appear.

Furthermore, it would have allowed the trial court to hear from a witness

that the trial court previously said it wanted to hear from.

Counsel notes that neither the defendant nor the state would have been

prejudiced if the court ordered a recess until Graham could be brought in to

testify. Davis states he was not being held in jail on the instant charges, but

rather for another felony offense, and the state had already rested its case.

Therefore, Davis argues that his convictions should be reversed, the

sentences vacated, and the matter remanded for further proceedings.

The state contends that Davis never requested or filed a motion for a

recess, which would also be the second recess granted by the court to obtain

the appearance of Graham. Furthermore, Davis offered only conjecture and

hypotheses regarding what facts to which Graham might testify. The state

further argues that Davis never requested the court to recess or continue trial

at a later date. He asked the court to issue writs of attachment to each of the

7 witnesses who were subpoenaed and not present on December 17. The court

went through each witness with Davis to determine if their testimony was

relevant or would aid in his defense. After considering the testimony Davis

expected to obtain from each of the missing witnesses, the court issued writs

of attachment to two of them, not including Graham. The defendant did not

object to the court’s refusal to issue a writ of attachment for Graham. The

state contends that Davis’s failure to object to the trial court’s failure to issue

a writ of attachment for Graham, and his failure to move for a recess,

renders the assignment of error meritless.

Counsel argues that this court has construed ambiguous statements by

an attorney as an oral motion for a continuance or recess, citing State v.

Ford, 42,928 (La. App. 2 Cir. 2/13/08), 976 So. 2d 321, writ denied, 08-

0605 (La. 10/3/08), 992 So. 2d 1010. Since Graham was an out-of-state

witness, obtaining his presence would have required a recess. Counsel

argues that Davis should not be deprived of questioning Graham simply

because he did not utter the correct words.

The decision to grant or deny a motion for continuance rests within

the sound discretion of the trial court and a reviewing court will not disturb

the trial court’s determination absent a clear abuse of discretion. State v.

Brown, 52,501 (La. App. 2 Cir. 1/16/19), 264 So. 3d 697, writ denied, 19-

0297 (La. 6/3/19), 272 So. 3d 892; State v. Free, 48,260 (La. App. 2 Cir.

11/20/13), 127 So. 3d 956, writ denied, 13-2978 (La. 5/30/14), 140 So. 3d

1174.

A defendant must satisfy the three-pronged test in La. C. Cr. P. art.

709 to obtain a continuance or recess based upon an absent witness. The

statute reads:

8 A. A motion for a continuance based upon the absence of a witness shall state all of the following:

(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial.

(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred.

(3) Facts showing due diligence used in an effort to procure attendance of the witness.

In State v. Ray, 42,096 (La. App. 2 Cir. 6/7/07), 961 So. 2d 607, the

trial court denied the defendant’s second motion to recess trial (after

granting the first recess motion) due to the absence of three of his witnesses

who were subpoenaed. The trial court initially recessed trial for several

weeks to allow the defendant a chance to get the witnesses. When trial

resumed, only one of the subpoenaed witnesses showed up. After the court

confirmed that the witnesses had been served, it denied the request for a

recess. On appeal, this court affirmed the trial court decision finding no

abuse of discretion because the defense failed to show that the absent

witnesses’ testimony was material, or show that they would be available at a

later date.

In this case, the defendant could not articulate material facts to which

Graham would testify that would aid in his defense. Davis did not show that

the trial court could even get Graham to Louisiana to testify. Finally, it was

the court, not the defendant, who made a diligent effort to get Graham to

Shreveport, even going so far as to call the clerk in Minnesota several times

resulting in a judge ordering Graham to obey the subpoena.

We further note that our review of this voluminous record reveals that

the trial court considered all the defendant’s 180-plus motions and

9 maintained commendable patience with him throughout all hearings and trial

proceedings. In addition to the numerous motions, Davis made several writ

applications to state and federal courts, and alleged numerous conspiracies

against him by the district attorney’s office, the trial judge, the victims, the

witnesses, and others.

Regarding the testimony of Graham, the court initially expressed a

desire to hear his testimony since it appeared that he “found” the gun.

However, as the facts of the case came out at trial indicating that Graham

simply saw the gun in the bushes and led police to it, his testimony was not

critical. Additionally, Davis failed to show that Graham’s testimony would

aid in his defense of the charges, since two witnesses identified him as the

armed robbery and shooter. As the state argues, the crux of the defense is

whether Davis was the perpetrator of the crime. This fact was not

established by the handgun, but rather by the security guard and front desk

clerk, each of whom independently identified the defendant as the shooter

and armed robber. No fingerprints connected Davis to the gun; however, the

empty cartridge casings found by police in the motel lobby from the

shooting connected the handgun to the crime.

We therefore conclude that the trial court did not abuse its discretion

by not recessing trial a second time on its own motion because Graham did

not respond to the subpoena. Clearly, as the facts of the case unfolded, it

became clear that Graham’s testimony was not necessary for the defendant’s

defense, inasmuch as neither Davis, nor his stand-by counsel, could

articulate how Graham’s testimony would aid in his defense. Davis failed to

show that he was prejudiced. Additionally, there was no assurance that

10 Graham would be available to testify at a future date. Accordingly, this

assignment is without merit.

ERROR PATENT REVIEW

Our error patent review reveals a discrepancy between the sentencing

transcript and the minute entry regarding the sentences imposed. The

transcript shows that the trial court sentenced Davis to 10 years at hard labor

for the aggravated battery conviction and 20 years at hard labor for the

armed robbery conviction, the latter conviction to be served without benefit

of probation, parole, or suspension of sentence. Additionally, the court

ordered the sentences to be served concurrently with each other and any

other sentence the defendant was currently serving. However, the minute

entry mistakenly reverses the years and manner of serving the sentences by

incorrectly stating that the defendant was sentenced to 20 years at hard labor

for aggravated battery without benefit of probation, parole, or suspension of

sentence, and 10 years at hard labor for the armed robbery.

La. C. Cr. P. art. 871(A) requires that a “[s]entence shall be

pronounced orally in open court and recorded in the minutes of the court.”

When there is a discrepancy between the minutes and the transcript, the

transcript prevails. State v. Lynn, 52,125 (La. App. 2 Cir. 8/15/18), 251 So.

3d 1262, writ denied, 18-1529 (La. 4/15/19), 267 So. 3d 1129. Accordingly,

we order that the August 10, 2020, minute entry be amended to reflect that

the defendant was sentenced to 10 years at hard labor for the aggravated

battery conviction and 20 years at hard labor without benefit of probation,

parole, or suspension of sentence for the armed robbery conviction.

We note that the minute entry correctly reflects the sentencing

transcript regarding the armed robbery penalty enhancement in which Davis

11 was sentenced to five years at hard labor without benefit of parole,

probation, or suspension of sentence to be served consecutive to the

concurrent sentences already imposed. The court also ordered that the

minutes reflect that the armed robbery was a crime of violence described in

La. R.S. 14:2(3).

Further, we hereby correct the court’s omission of the word

“conviction” in the sentencing court’s notice to the defendant of the time

limitations for post-conviction relief. The defendant has two years from the

date his conviction and sentence are final to apply for post-conviction relief.

CONCLUSION

For the reasons stated hereinabove, we conclude that the trial court did

not abuse its discretion by failing to call a recess a second time when one of

Davis’s out-of-state witnesses did not appear to testify. Accordingly, we

affirm the defendant’s conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.