Judgment rendered June 29, 2022. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 54,523-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Plaintiff-Appellee
versus
QUINTRAVUIS HOLLOWAY Defendant-Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 377,548
Honorable Donald E. Hathaway Jr., Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Mary C. Hanes
JAMES E. STEWART, SR. Counsel for Appellee District Attorney
TOMMY J. JOHNSON JASON W. WALTMAN TRINICIA S. LEONARD Assistant District Attorneys
Before STEPHENS, HUNTER, and MARCOTTE, JJ. MARCOTTE, J.
This appeal arises following a jury trial of defendant Quintravuis
Holloway, from the First Judicial District Court, Caddo Parish, the
Honorable Donald E. Hathaway, Jr. presiding.1 Holloway was convicted of
attempted possession of a firearm by a convicted felon and was sentenced to
six years at hard labor. Holloway now appeals his conviction and sentence.
His appellate counsel has filed a motion to withdraw along with a brief
pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d
493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So. 2d 241,
alleging there are no nonfrivolous issues upon which to base his appeal.
This Court held the motion to withdraw in abeyance and allowed Holloway
30 days within which to file a pro se brief. As of this date, no pro se brief
has been filed. For the following reasons, appellate counsel’s motion to
withdraw is granted, and Holloway’s conviction is affirmed; his sentence is
vacated and remanded to the trial court for re-sentencing.
FACTS
On August 31, 2020, Holloway was charged by bill of information
with possession of a firearm or carrying of a concealed weapon by a
convicted felon, in violation of La. R.S. 14:95.1. The offense occurred on
July 31, 2020. His bill of information states he was previously convicted of
manslaughter on April 26, 2012. Holloway waived arraignment and pled not
guilty to the charge.
On January 6, 2021, a free and voluntary hearing was held to
determine the voluntariness of statements Holloway made to the police.
1 Prior to trial, this case was presided over by the Honorable Katherine C. Dorroh. Officer Nyiesha Key (“Off. Key”),2 of the Shreveport Police Department
(“SPD”), testified that on July 31, 2020, she was called to an “armed person
call,” and when she arrived on the scene, Holloway was there, and another
officer took possession of a firearm. Off. Key testified that Holloway said
that he was a convicted felon and that he knew he wasn’t supposed to have a
weapon.
When asked if prior to Holloway stating that he was a convicted felon
he was Mirandized, Off. Key stated, “He was Mirandized, handcuffed, and
transported to the city jail.” Off. Key affirmed that Holloway stated that he
understood his Miranda rights and that he agreed to waive his rights and
speak with the police. Off. Key testified that Holloway did not appear to be
under the influence of drugs or alcohol. Off. Key testified that Holloway’s
confession was recorded on “our mike box and dash cam in our units.”
Judge Dorroh found that Holloway’s statements were freely and voluntarily
made and were admissible at trial.
On April 21, 2021, a jury trial presided over by Judge Hathaway
commenced. Just prior to the trial, Lieutenant Skylar VanZandt (“Lt.
VanZandt”), of SPD, fingerprinted Holloway in open court to use as a
known sample for later comparison to fingerprints taken in relation to
Holloway’s prior felony conviction.
Officer Adam Miller (“Off. Miller”), of SPD, gave the following
testimony. On July 31, 2020, he was working patrol when he received a call
2 The transcript of the free and voluntary hearing identifies the officer testifying as “Officer N. Key.” A dash cam video of SPD officers’ investigation and arrest of Holloway, which was admitted at trial, provides that it is from the patrol unit of “Officer Nyiesha Key.” Presumably Officer N. Key and Officer Nyiesha Key are the same person.
2 about an armed person in the area of West Canal Boulevard and Meadow
Avenue in Shreveport, Louisiana. The armed person was described as a
black male, wearing a red hat and blue jeans, carrying a shotgun wrapped in
a blue shirt. Off. Miller drove his patrol car to Meadow Ave. and observed a
person matching the suspect’s description standing in the yard of 2706
Meadow. Off. Miller stated that the person in the yard was wearing a red hat
and blue jeans, he was not wearing a shirt, and he had a “blue sweatshirt
wrapped around a rigid object.”
Off. Miller proceeded in his patrol car a few houses down from 2706
Meadow and turned around to park his patrol unit. Off. Miller then saw that
the individual who matched the suspect’s description no longer had an object
in his hands. Off. Miller saw the object wrapped in the blue sweatshirt on
the porch of 2706 Meadow. The suspect, Holloway, and Off. Miller started
walking toward each other, and Off. Miller engaged the suspect in
conversation. Another officer, Officer Sass, retrieved the object wrapped in
the sweatshirt from the porch. The object was a “single action break-open
12-gauge shotgun” loaded with one shell of birdshot. Officer Sass also
retrieved a bag with 12 shotgun shells that was found with or near the
shotgun on the porch. Off. Miller identified the shotgun and bag of shells in
court. Off. Miller also identified Holloway as the suspect.
Off. Miller identified statements made by Holloway to the police; an
audio and visual recording of the statements was captured by the dash cam
from one of the patrol units on the scene and was entered into the record.
Defense counsel objected to the admission of Holloway’s statements,
because there was no foundation for admitting them, as the state had not
shown that they were voluntary or that he had been informed of his rights 3 pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
The assistant district attorney responded that Holloway was not under
arrest when Off. Miller asked him about the shotgun, and that Off. Miller did
not know that Holloway was a convicted felon at that time; therefore, there
was no need to Mirandize him. Defense counsel argued Holloway had been
detained during questioning as evidenced by the fact that the video showed
him with his hands on a patrol unit and three officers surrounding him. The
assistant district attorney pointed out that a free and voluntary hearing was
held by Judge Dorroh, who determined that Holloway’s statements were
voluntary. The trial court overruled Holloway’s objection, finding that his
statements were made prior to his arrest and were made freely and
voluntarily.
Holloway can be seen in the video wearing a red hat, no shirt, and
blue jeans. There were four SPD officers present when questioning
Holloway. Holloway stated that he heard shots nearby, so he exited the
house with a shotgun. The video shows an officer retrieving the object from
the porch and identifying it as a shotgun; the officer can be heard stating that
there was one shell loaded into the firearm. Holloway stated that he had a
prior conviction for manslaughter and he knew he was not supposed to have
a gun. Holloway was then Mirandized and taken into custody. The shotgun
and shells were seized. Off. Miller testified that he was unsure if the
shotgun was processed for fingerprints and that if the shotgun was wrapped
in a sweatshirt, it would not necessarily have fingerprints on it. The shotgun
and bag of shells were entered into the record.
4 Lt. VanZandt gave the following testimony. Lt. VanZandt stated that
he had been with SPD for over 26 years, and is currently commander of the
crime scene, domestic violence, and the digital forensics units. Lt.
VanZandt testified to his education and training and was tendered, without
objections, and accepted as a fingerprint identification expert. Lt. VanZandt
compared Holloway’s fingerprints taken prior to the commencement of trial
to those attached to the bill of information for his previous conviction for
manslaughter and confirmed that the prints matched. The bill of information
for his prior conviction states that Holloway committed manslaughter on
July 11, 2010, and the transcript of his guilty plea for that crime confirms
that he pled guilty to that offense on April 26, 2012. The state rested.
Holloway elected not to testify in his own defense, and the defense
rested. On April 22, 2021, a unanimous jury found Holloway guilty of the
responsive verdict of attempted possession of a firearm by a convicted felon.
The trial court did not order a presentencing investigation report.
On May 19, 2021, a sentencing hearing was held. Just prior to his
sentencing, Holloway filed a post-verdict judgment of acquittal which was
denied. Holloway then affirmed that he was ready to proceed with
sentencing. The trial court did not mention the aggravating and mitigating
factors found in La. C. Cr. P. art. 894.1. The consideration the trial court
gave to Holloway’s sentence consists of the following:
THE COURT: Anything from the defense?
[DEFENSE COUNSEL]: Just from the facts of the case, Your Honor, no one got hurt. I know it was a shotgun, and it was a lot of ammunition, but he gave that away to someone else. No one was hurt or injured, and there was no loss to anyone. 5 THE COURT: My problem is that I just don’t know why he had a firearm. Why was he walking down the street with a loaded shotgun? I haven’t had that answered yet.
[DEFENSE COUNSEL]: Well, Your Honor, he’s not that bright. It was a foolish thing to do, walking down the street with a shotgun in the middle of the day even if you’re not, you know, possession – even if you don’t have a prior conviction.
THE COURT: All right. It’s going to be the sentence of the court that you serve six years at hard labor. You will pay a $1,500.00 fine, court costs, and a $50.00 fee for the Indigent Defender’s Office representation of you. You’ll be given credit for time served.
The trial court then advised Holloway of his post-conviction relief
time limits. On June 21, 2021, Holloway filed a motion to reconsider
sentence, arguing that his sentence was excessive and that the trial court did
not provide adequate reasons for his sentence under La. C. Cr. P. art. 894.1.
On July 29, 2021, the trial court denied the motion without addressing the
claims Holloway made concerning the trial court’s insufficient reasons for
his particular sentence under La. C. Cr. P. art. 894.1, or whether his sentence
was excessive. Holloway now appeals his conviction and sentence.
DISCUSSION
On February 9, 2022, Holloway’s appellate counsel filed a motion to
withdraw and a brief pursuant to Anders v. California, supra, and State v.
Jyles, supra, alleging that after a thorough review of the record, she could
find no non-frivolous issues to raise on appeal. The brief outlines the
procedural history and facts of the case, and includes a detailed and 6 reviewable assessment for both Holloway and this Court as to whether the
appeal is worth pursuing. The brief reviews whether Holloway’s pre-arrest
statements were freely and voluntarily given, whether there is sufficient
evidence upon which to base his conviction, and whether his sentence is
excessive. Appellate counsel verified that she mailed copies of the motion
to withdraw and her brief to Holloway, who has not filed a pro se brief. By
this Court’s order, the motion to withdraw was held in abeyance and
Holloway was granted additional time to file a pro se brief. Holloway has
not filed a pro se brief, and the state declined to file a brief.
Sufficiency of the Evidence
It is unlawful for any person who has been convicted of manslaughter
to possess a firearm or carry a concealed weapon. To support a conviction
for possession of a firearm by a convicted felon, the state must prove: (1) the
possession of a firearm; (2) a previous conviction of an enumerated felony;
(3) absence of the 10-year statutory period of limitation; and (4) general
intent to commit the offense. State v. Johnson, 53,086 (La. App. 2 Cir.
11/20/19), 285 So. 3d 1168. Attempted possession of a firearm by a
convicted felon is a responsive verdict to a charge of possession of a firearm
by a convicted felon under La. R.S. 14:95.1. State v. Morris, 05-290 (La.
App. 5 Cir. 11/29/05), 917 So. 2d 633.
The proper test for determining a claim of insufficiency of evidence in
a criminal case is whether, on the entire record, a rational trier of fact could
find the defendant guilty beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v.
Johnson, supra. A reviewing court must consider whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of 7 fact could have found the essential elements of the crime proven beyond a
reasonable doubt. Jackson v. Virginia, supra; State v. Tate, 01-1658 (La.
5/20/03), 851 So. 2d 921, cert. denied, 541 U.S. 905, 124 S. Ct. 1604, 158 L.
Ed. 2d 248 (2004); State v. Johnson, supra.
The court does not assess the credibility of witnesses or reweigh
evidence, and accords great deference to the trier of fact’s decisions to
accept or reject witness testimony in whole or in part. State v. Lensey,
50,242 (La. App. 2 Cir. 11/18/15), 182 So. 3d 1059, writ denied, 15-2344
(La. 3/14/16), 189 So. 3d 1066. Where there is conflicting testimony about
factual matters, the resolution of which depends upon a determination of the
credibility of the witnesses, the matter is one of the weight of the evidence,
not its sufficiency. State v. Glover, 47,311 (La. App. 2 Cir. 10/10/12), 106
So. 3d 129, 134, writ denied, 12-2667 (La. 5/24/13), 116 So. 3d 659.
The record provides sufficient evidence to support a conviction of
attempted possession of a firearm or carrying a concealed weapon by a
convicted felon. Here, Off. Miller testified that he witnessed Holloway in
the yard at 2706 Meadow with a rigid object wrapped in a blue shirt or
sweatshirt. Off. Miller stated that, after turning his patrol unit around and
parking, he saw that Holloway no longer had the rigid object wrapped in the
shirt, but he saw the object on the porch of 2706 Meadow. Another officer
retrieved the rigid object and identified it as a firearm. Lt. VanZandt
matched Holloway’s fingerprints to those taken following his guilty plea to
manslaughter which occurred in 2012. Holloway also stated that he had a
prior conviction for manslaughter.
It is clear that the jury believed the testimony of the officers, which
established that Holloway was in possession of a firearm; had the general 8 intent to commit the offense; and had a previous conviction for
manslaughter, which occurred within ten years of the instant offense.
Holloway’s Pre-arrest Statements
Before what purports to be a confession can be introduced in
evidence, it must be affirmatively shown that it was free and voluntary, and
not made under the influence of fear, duress, intimidation, menaces, threats,
inducements or promises. La. R.S. 15:451. Voluntariness is determined on
a case-by-case basis, under a totality of the circumstances standard. State v.
Garner, 52,047 (La. App. 2 Cir. 6/27/18), 250 So. 3d 1152, writ denied, 18-
1290 (La. 2/25/19), 266 So. 3d 288.
The admissibility of a confession is a question for the trial court. Id.;
State v. Holder, 50,171 (La. App. 2 Cir. 12/9/15), 181 So. 3d 918, writs
denied, 16-0092 (La. 12/16/16), 211 So. 3d 1166, 16-0056 (La. 12/16/16),
212 So. 3d 1176. When determining admissibility, the trial court’s
conclusions on the credibility and weight of testimony relating to the
voluntary nature of the confession will not be overturned on appeal unless
they are not supported by the evidence. Id. Great weight is placed upon the
trial court’s factual determinations because of its opportunity to observe
witnesses and assess credibility. State v. Garner, supra. The testimony of
the interviewing police officers alone may be sufficient to prove that the
defendant’s statement was given freely and voluntarily. Id.; State v. Jordan,
50,002 (La. App. 2 Cir. 8/12/15), 174 So. 3d 1259, writ denied, 15-1703 (La.
10/10/16), 207 So. 3d 408.
Miranda warnings are not required when officers conduct
preliminary, non-custodial, on-the-scene questioning to determine whether a
crime has been committed, unless the accused is subjected to arrest or a 9 significant restraint short of formal arrest. State v. Shirley, 08-2106 (La.
5/5/09), 10 So. 3d 224. Thus, an individual’s responses to on-the-scene and
noncustodial questioning, particularly when carried out in public, are
admissible without Miranda warnings. Id. Although an individual detained
in a Terry3 stop based on reasonable suspicion has had his freedom of
movement curtailed in a significant way, until an arrest actually occurs,
these Fourth Amendment seizures do not constitute custody for Miranda
purposes. State v. Shirley, supra.
Here, Off. Miller approached and questioned Holloway, because he
matched the description given in the armed person call, and Off. Miller
observed him holding what appeared to be a shotgun wrapped in a blue shirt
or sweatshirt. Holloway can be seen on the dash cam video leaning on the
front of a police unit speaking with SPD officers who are asking him
questions about the firearm and his criminal history. Holloway was not
handcuffed. While Off. Key gave conflicting statements at the free and
voluntary hearing, Judge Hathaway was not the ruling judge at that hearing,
and he did not rely on Off. Key’s statements in making his determination
that Holloway’s pre-arrest statements were freely and voluntarily made. We
concur that Holloway’s statements to the police were freely and voluntarily
made.
Excessive Sentence
La. R.S. 14:95.1(B) provides the following sentencing range for
attempted possession of a firearm by a convicted felon:
Notwithstanding the provisions of R.S. 14:27, whoever is found guilty of attempting to violate the provisions of this Section
3 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
10 shall be imprisoned at hard labor for not more than seven and one-half years and fined not less than five hundred dollars nor more than two thousand five hundred dollars.
An appellate court utilizes a two-pronged test in reviewing a sentence
for excessiveness. First, the record must show that the trial court took
cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge
is not required to list every aggravating or mitigating circumstance so long
as the record reflects that he adequately considered the guidelines of the
article in particularizing the sentence to the defendant. State v. Smith, 433
So. 2d 688 (La. 1983); State v. West, 53,526 (La. App. 2 Cir. 6/24/20), 297
So. 3d 1081. The articulation of the factual basis for a sentence is the goal
of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its
provisions. State v. Lanclos, 419 So. 2d 475 (La. 1982); State v. West,
supra.
However, criminal sentences must be individualized to be compatible
with offenders as well as offenses. State v. Jones, 398 So. 2d 1049 (La.
1981). The important elements which should be considered are the
defendant’s personal history (age, family ties, marital status, health,
employment record), prior criminal record, seriousness of the offense, and
the likelihood of rehabilitation. Id.; State v. West, supra.
There is no requirement that specific matters be given any particular
weight at sentencing. State v. Shumaker, 41,547 (La. App. 2 Cir. 12/13/06),
945 So. 2d 277, writ denied, 07-0144 (La. 9/28/07), 964 So. 2d 351. Where
the record clearly shows an adequate factual basis for the sentence imposed,
remand is unnecessary even where there has not been full compliance with
La. C. Cr. P. art. 894.1. State v. Lanclos, supra; State v. DeBerry, 50,501
11 (La. App. 2 Cir. 4/13/16), 194 So. 3d 657, writ denied, 16-0959 (La. 5/1/17),
219 So. 3d 332.
Second, the court must determine whether the sentence is
constitutionally excessive. A sentence violates La. Const. art. I, § 20, if it is
grossly out of proportion to the seriousness of the offense or nothing more
than a purposeless and needless infliction of pain and suffering. State v.
Dorthey, 623 So. 2d 1276 (La. 1993); State v. Bonanno, 384 So. 2d 355 (La.
1980). A sentence is considered grossly disproportionate if, when the crime
and punishment are viewed in light of the harm done to society, it shocks the
sense of justice. State v. Weaver, 01-0467 (La. 1/15/02), 805 So. 2d 166;
State v. Meadows, 51,843 (La. App. 2 Cir. 1/10/18), 246 So. 3d 639, writ
denied, 18-0259 (La. 10/29/18), 254 So. 3d 1208.
The sentencing court has wide discretion in imposing a sentence
within statutory limits, and such a sentence will not be set aside as excessive
in the absence of manifest abuse of that discretion. State v. Williams, 03-
3514 (La. 12/13/04), 893 So. 2d 7; State v. Duncan, 47,697 (La. App. 2 Cir.
1/16/13), 109 So. 3d 921, writ denied, 13-0324 (La. 9/13/13), 120 So. 3d
280. Nevertheless, this discretion is not unbridled. State v. Quebedeaux,
424 So. 2d 1009 (La. 1982). When considered in light of the particular
defendant and the circumstances of the particular crime, a sentence may be
found to be excessive even if it falls within the statutory limit. Id.
Maximum sentences are generally reserved for the most egregious and
blameworthy offenders in a class. State v. Cozzetto, 07-2031 (La. 2/15/08),
974 So. 2d 665; State v. Sandifer, 54,103 (La. App. 2 Cir. 12/15/21), 330 So.
3d 1270; State v. Cotten, 50,747 (La. App. 2 Cir. 8/10/16), 201 So. 3d 299.
The trial court nevertheless remains in the best position to consider the 12 aggravating and mitigating circumstances of a particular case and, therefore,
is given broad discretion in sentencing. State v. Cook, 95-2784 (La.
5/31/96), 674 So. 2d 957, cert. denied, 519 U.S. 1043, 117 S. Ct. 615, 136 L.
Ed. 2d 539 (1996); State v. Jackson, 51,575 (La. App. 2 Cir. 9/27/17), 244
So. 3d 764.
For his conviction of attempted possession of a firearm by a convicted
felon, Holloway faced a term of imprisonment at hard labor of up to 7 1/2
years, and a fine of $500.00 to $2,500.00.
The record in this case does not show the trial court considered the
guidelines of La. C. Cr. P. art. 894.1 in particularizing the sentence to
Holloway, as the court did not mention the article in any respect during
Holloway’s sentencing. While the trial court was not required to consider
each and every factor or apply certain weight to specific factors, the record
does not reflect which, if any, factors the trial court considered.
Moreover, the record contains little to no information about
Holloway, including his personal life, family, education, employment
background, or any other possible mitigating or aggravating factors. The
trial court did not avail itself of a presentence investigation to aid its
sentencing of Holloway. Therefore, we must conclude that Holloway’s
sentence was imposed in violation of La. C. Cr. P. art. 894.1.
Because the first prong of this court’s analysis regarding the
excessiveness of Holloway’s sentence is clearly not satisfied, discussion of
the second prong is pretermitted. We cannot determine whether or not
Holloway is the worst and most egregious offender worthy of the near
maximum sentence he received without knowing the basis on which the trial
court imposed that sentence. Accordingly, Holloway’s conviction is 13 affirmed, and his sentence is vacated; the matter is remanded to the trial
court for resentencing.
CONCLUSION
For the foregoing reasons, the conviction of defendant, Quintravuis
Holloway, is affirmed; his sentence is vacated, and the matter is remanded to
the trial court for resentencing. Appellate counsel’s motion to withdraw at
attorney of record is granted.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING; MOTION TO WITHDRAW GRANTED.