State of Louisiana v. Tyrone Davis, Sr.

• Court: Louisiana Court of Appeal
• Decided: May 3, 2006
• Docket: KA-0005-1629
• Status: Unknown

Opinion

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

05-1629

VERSUS

TYRONE DAVIS, SR.

************

APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST. MARTIN NO. 03-226867 HONORABLE PAUL J. DEMAHY, DISTRICT JUDGE

JAMES T. GENOVESE JUDGE

Court composed of Michael G. Sullivan, Billy H. Ezell, and James T. Genovese, Judges.

CONVICTIONS AFFIRMED; REMANDED FOR RESENTENCING

Edward K. Bauman Louisiana Appellate Project P.O. Box 1641 Lake Charles, Louisiana 70602-1641 (337) 491-0570 COUNSEL FOR DEFENDANT/APPELLANT: Tyrone Davis, Sr. Phil Haney - District Attorney ADA Chester R. Cedars St. Martin Parish Courthouse Second Floor St. Martinville, Louisiana 70582 (337) 394-2220 COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana GENOVESE, Judge.

In this case, the only issue before this court is Defendant’s appeal of the trial

court’s order denying his motion for change of venue. For the following reasons, we

affirm the trial court’s ruling but remand this matter back to the trial court for

resentencing of Defendant on the conviction of possession of a firearm by a convicted

felon due to the illegally lenient sentence given on that conviction.

On August 27, 2003, the St. Martin Parish grand jury indicted Defendant,

Tyrone Davis, Sr., for second degree murder, in violation of La.R.S. 14:30.1; second

degree kidnaping, in violation of La.R.S. 14:44.1; and possession of a firearm by a

convicted felon, in violation of La.R.S. 14:95.1. On October 28, 2003, the

prosecution filed a Motion and Order to Determine Propriety of Venue with the

district court, requesting that the trial court conduct a “dry run” voir dire in order to

determine whether it would be able to select a fair and impartial jury in St. Martin

Parish under State v. Bell, 315 So.2d 307 (La.1975). The trial court granted the

request, conducted a “dry run” voir dire beginning on November 11, 2003, and after

hearing argument from both sides, the trial court ruled that a change of venue was

unnecessary.

Defendant’s trial commenced on March 1, 2004 and continued through March

4, 2004. At the conclusion of trial, the jury found Defendant guilty of all charges.

On April 14, 2004, the trial court sentenced Defendant to life imprisonment at hard

labor for the second degree murder conviction, to forty years at hard labor for the

second degree kidnaping conviction, and to fifteen years at hard labor for the

possession of a firearm by a convicted felon conviction. The district court ordered

all of the sentences to be served without benefit of probation, parole, or suspension

of sentence and decreed that the sentences were to run consecutively with each other

with Defendant being given credit for time served.

1 On April 28, 2005, Defendant filed an application for post-conviction relief

with the trial court, alleging ineffective assistance of appellate counsel for failure to

file an appeal and seeking an out-of-time appeal. On June 30, 2005, the trial court

conducted a hearing on Defendant’s application for post-conviction relief, granted

relief, and referred Defendant’s case to the Louisiana Appellate Project. Defendant

appeals, arguing that the trial court erred in finding that no change of venue was

warranted in his case.

STATEMENT OF FACTS

On December 28, 1997, sixteen-year-old Allison Castex (Allison) and her

boyfriend were riding four-wheeler all terrain vehicles in the sugarcane fields across

from Allison’s home in St. Martin Parish, Louisiana. While there, two men wearing

masks accosted them. One assailant held the boyfriend at gunpoint, while the other

took Allison away and murdered her. The police were able to recover DNA evidence

from Allison’s clothing, but the police were unable to immediately identify and

apprehend the assailants.

In August 1999, the police were able to obtain a positive DNA match to the

evidence recovered from Allison’s body. The matching DNA profile came from a

man named Brian Keith Francis (Francis), who had submitted to a court-ordered

blood test due to his involvement in another incident in Lafayette Parish. A grand

jury indicted Francis for first degree murder, and the prosecution prepared to seek the

death penalty. The man who held Allison’s boyfriend at gunpoint, while she was

being murdered, was still unidentified. Prior to his trial, Francis, on July 18, 2003,

accepted a plea bargain wherein he promised to reveal the name of his accomplice in

exchange for a life sentence. Acting in accordance with his plea agreement, Francis

named Defendant as his co-perpetrator.

2 As a result, Defendant was subsequently charged with and convicted of second

degree murder, second degree kidnaping of Allison’s boyfriend, and possession of a

firearm by a convicted felon for the events that occurred on December 28, 1997.

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 that there

is one error patent only as to the sentence imposed for possession of a firearm by a

convicted felon.

The trial court failed to impose a fine on the conviction of possession of a

firearm by a convicted felon as mandated by the penalty provision for said crime.

La.R.S. 14:95.1(B). That penalty provision mandates a fine of not less than

$1,000.00 nor more than $5,000.00. Thus, the trial court imposed an illegally lenient

sentence on Defendant’s conviction of possession of a firearm by a convicted felon.

Addressing an identical error, this court has stated the following:

The Defendant did not receive a fine although one is mandated by the penalty provision of La.R.S. 40:967(F)(1)(a). That provision mandates a fine of not less than $50,000.00 nor more than $150,000.00. Thus, the Defendant received an illegally lenient sentence for the possession of twenty-eight grams but less than two hundred grams of cocaine. Both statutory law and jurisprudence allow an appellate court to recognize an illegally lenient sentence on its own. La.Code Crim.P. art. 882 and State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790. This court has recognized the trial court’s failure to impose a mandatory fine as an error patent and has, in its previous cases, remanded the cases for resentencing. State v. August, 03-1478 (La.App. 3 Cir. 4/7/04), 870 So.2d 553, State v. Figueroa, 03-1390 (La.App. 3 Cir. 3/31/04), 869 So.2d 957, and State v. Cedars, 02-861 (La.App. 3 Cir. 12/11/02), 832 So.2d 1191. Thus, the Defendant’s sentence for possession of twenty- eight to two hundred grams of cocaine is remanded for resentencing since the trial court has discretion as to the amount of the fine to be imposed. See State v. Gregrich, 99-178 (La.App. 3 Cir. 10/13/99), 745 So.2d 694.

State v. Phillips, 04-827, pp. 1-2 (La.App. 3 Cir. 11/10/04), 887 So.2d 670, 672.

Accordingly, this court affirms Defendant’s conviction on the charge of

3 possession of a firearm by a convicted felon, but vacates his sentence on that charge

as illegally lenient as above set forth, and remands this case to the trial court for

resentencing on that charge only.

ASSIGNMENT OF ERROR

Defendant argues that the trial court erred in finding that a change of venue was

not warranted in his allegedly “highly publicized” case. Defendant contends that the

trial court abused its discretion because nearly half of the jurors at the actual voir dire

could have been challenged for knowing about the case, because eleven of the

potential jurors in the first panel and all of the potential jurors in the second panel had

heard about the case prior to trial, and because three of the eleven potential jurors in

the first panel, who knew about the case, were chosen to sit on the jury.

Defendants are constitutionally guaranteed an impartial jury and fair trial which

may be attained by changing venue if a defendant can establish that the original venue

will not provide an impartial jury or fair trial. State v. Frank, 99-553 (La. 1/17/01),

803 So.2d 1; La.Const. art. 1, § 16. The party applying for a change of venue has the

burden of proving that the change is necessary under the rule set forth in La.Code

Crim.P. art. 622, which provides:

A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.

In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.

Public knowledge of the facts surrounding the offense is not, by itself,

sufficient to entitle an offender to a change of venue; actual prejudice resulting from

the knowledge of the case must be demonstrated. Frank, 803 So.2d 1; State v. Clark,

442 So.2d 1129 (La.1983); State v. Vaccaro, 411 So.2d 415 (La.1982). Some of the

4 factors used in determining whether a change of venue is necessary are:

(1) the nature of [the] pretrial publicity and the particular degree to which it has circulated in the community, (2) the connection of government officials with the release of the publicity, (3) the length of time between the dissemination of the publicity and the trial, (4) the severity and notoriety of the offense, (5) the area from which the jury is to be drawn, (6) other events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward the defendant, and (7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire.

Bell, 315 So.2d at 311. The trial court’s determination of whether the requisite

showing has been made to qualify for a change of venue “will not be disturbed on

review in the absence of an affirmative showing of error and abuse of discretion.”

Vaccaro, 411 So.2d at 424.

In the instant case, the State moved for a “dry run” voir dire in order to

determine whether a fair and impartial jury could be empaneled in the original venue,

St. Martin Parish. Defendant filed no independent motion to change venue prior to

the “dry run” voir dire. After the sample jurors in two separate panels, each

consisting of fourteen members, were interviewed on November 11, 2003, the State

argued that Defendant could receive a fair and impartial trial in St. Martin Parish, but

it asked the district court to issue subpoenas for 200 potential jurors. In response,

defense counsel objected to having the trial take place in St. Martin Parish and

requested that the venue be transferred to an area more remote from the crime. After

hearing argument from both sides, the trial court held:

Based on the responses of the jurors with regard to their knowledge of the case, their knowledge of the persons involved and their families, out of the 28 jurors questioned, it was my determination that of that 28, only 12 could possibly be challenged for that reason, and not all of those would necessarily be successful challenges depending on any further questioning in more detail that would be done if [you] were, in fact, selecting a jury. For that reason, I find that there is no need to transfer venue, that we would be able to select an appropriate jury in St. Martin Parish. And for that reason, the court will not enter an order transferring venue.

5 The defense neither objected to the district court’s ruling nor filed an independent

motion for change of venue prior to the date actual voir dire occurred.

Actual voir dire took place on March 1, 2004, and questioning of the potential

jurors commenced without the defense making an independent motion to change

venue. Prior to selecting actual jurors from each nineteen-person panel of potential

jurors, the trial court, the State, and the defense all took turns questioning the

potential jurors. At the conclusion of the interview process for each panel, both

parties were allowed to challenge the placement of the jurors from that panel. The

jurors were not only queried as to whether they had heard or read about the case, they

were also asked whether they knew either of the victims, the victims’ family

members, the potential witnesses, Defendant, Defendant’s family, Defendant’s

co-assailant, or the co-assailant’s family. Each juror was repeatedly asked whether

their knowledge of the facts or the people involved would prevent them from being

fair and impartial jurors. Only one of Defendant’s challenges for cause was denied,

and Defendant was allowed to dismiss that juror using one of his peremptory

challenges. The potential juror had a working relationship with several of the officers

testifying as witnesses. Once again, Defendant did not ask to revisit the issue of

venue either during or after actual voir dire.

Thus, other than arguing in favor of a change of venue at the conclusion of the

"dry run" voir dire, Defendant did not independently seek to change venue from St.

Martin Parish. Moreover, although Defendant participated in questioning the

potential jurors, he failed to address the several factors listed in Bell, such as the type

of media coverage of the crime; the amount of media coverage; the number of days,

months, or years the media issued stories about the crime; whether the media

coverage was biased against Defendant; whether there was a public outcry against

Defendant; what rumors were circulating about Defendant’s involvement in the

6 crime; whether there was a significant amount of negative sentiment in the

community against Defendant that would affect the potential jurors’ candor and

veracity during voir dire; whether there was governmental involvement in any

negative publicity about Defendant; whether the area from which the jury was drawn

was a tightly knit community; and whether the potential jurors themselves had made

statements implicating Defendant in the crime.

Therefore, as the party requesting a change of venue, Defendant failed to meet

his burden of proving that the widespread knowledge of the facts surrounding the

crime created such a community prejudice against him that he was prevented from

receiving a fair and impartial trial in St. Martin Parish. Accordingly, this assignment

of error is without merit.

DISPOSITION

The trial court’s order denying Defendant a change of venue is affirmed.

Defendant’s sentence, only as it applies to the conviction of possession of a firearm

by a convicted felon, is vacated. This case is remanded to the trial court solely for the

purpose of resentencing Defendant on the conviction of possession of a firearm by

a convicted felon and imposing a fine as required by La.R.S. 14:95.1(B).

CONVICTIONS AFFIRMED; REMANDED FOR RESENTENCING.