State v. Davis

• Decision Date: 23 September 2015
• Docket Number: No. 2015–KA–0456.,2015–KA–0456.
• Citation: 176 So.3d 580
• Parties: STATE of Louisiana v. Andre J. DAVIS.
• Court: Court of Appeal of Louisiana — District of US

176 So.3d 580

STATE of Louisiana

v.Andre J. DAVIS.

No. 2015–KA–0456.

Court of Appeal of Louisiana, Fourth Circuit.

Sept. 23, 2015.

Leon A. Cannizzaro, Jr., District Attorney, Christopher J. Ponoroff, Assistant District Attorney, Donna Andrieu, Chief of Appeals Assistant District Attorney, New Orleans, LA, for Appellant, State of Louisiana.

Brad Scott, New Orleans, LA, for Appellee, Andre J. Davis.

Opinion

MAX N. TOBIAS, JR., Judge.

The defendant, Andre J. Davis (“Mr. Davis”), appeals his conviction of the crime of domestic abuse battery involving strangulation, a violation of La R.S. 14:35.3L. He assigns three errors on appeal, asserting the insufficiency of the evidence to sustain his conviction and the ineffective assistance of counsel. Finding that merit exists, in part, to his assignment of error regarding the sufficiency of the evidence to sustain his conviction for domestic abuse battery involving strangulation, we hold that Mr. Davis is guilty of the lesser included offense of simple battery, enter judgment to that effect, and remand this matter to the trial court for imposition of sentence.

PROCEDURAL HISTORY

Mr. Davis was charged by bill of information on 3 December 2012 with the 18 January 2012 domestic abuse battery involving strangulation (“the incident”) of Eugenia Leonard (“Ms. Leonard”), the victim. He entered a plea of not guilty at his 1 February 2013 arraignment, was tried by bench trial¹on 28 June 2013, and found guilty as charged for domestic abuse battery involving strangulation. Mr. Davis waived all legal delays and was sentenced that same day to two years at hard labor, suspended, with two years of active probation.²This appeal followed.

SUMMARY OF TESTIMONY

I. Ms. Leonard's testimony

(A) Direct Examination

Ms. Leonard testified that on 18 January 2012, she was at her apartment with her six-week-old infant daughter and Mr. Davis. Mr. Davis was in Ms. Leonard's bedroom, intending to take a nap, when she asked him to watch her daughter while she took a shower. Mr. Davis refused despite Ms. Leonard's entreaties to do so. She turned on the lights—presumably in her bedroom, where Mr. Davis was located—and told him to get up and leave her apartment. He finally got up and began dressing

. After he dressed, he walked through the doorway to her bedroom, where she was standing, and pushed her against the wall and down the hallway with his body. She turned and ran into the hallway bathroom, whereupon Mr. Davis put his hands around her neck, began choking her, and pushed her head up against the wall; she was holding her baby as she was being choked. She closed her eyes and fell down. When she opened her eyes Mr. Davis was still standing in the doorway. He walked away. She got her keys, went to sit in her car, and telephoned Mr. Davis' parents, thinking that would ultimately result in Mr. Davis leaving.³

The following day, Ms. Leonard went to the police to seek a restraining order against Mr. Davis. She was told she would have to press charges, and she did so.⁴

(B) Cross–Examination and Re–Direct Examination

Ms. Leonard testified on cross-examination that, following the argument, Mr. Davis got dressed in her bedroom. She was standing outside her bedroom door in the hallway. Mr. Davis left her bedroom and turned to walk down the hall toward the living room. She restated that he was pushing her down the hall with his body/chest as he proceeded. She asserted that she was up against the wall and that Mr. Davis could have passed by her without contacting her. She explained that Mr. Davis was six feet nine inches tall, while she was five feet eleven inches tall. As he backed her down the hallway for several feet, she got to a narrow hallway bathroom into which she backed all the way to the rear wall/towel rack thereof, where he began choking her. When asked why she had not continued down the hall to the living room instead of entering the hall bathroom, she explained that it was because Mr. Davis had to leave her apartment through her living room. Ms. Leonard was asked if she fought back—kicked him or scratched him—as he choked her; she did not. When asked if she had put up her hands in a defensive manner, she replied in the negative for she was cradling her baby with both hands for she felt she was protecting her baby. When Ms. Leonard regained consciousness, she was sitting on the floor with her legs extended in front of her and her back against the wall, with her daughter in her arms/lap.

Ms. Leonard stated that she and Mr. Davis had been involved together for three or four years. She confirmed that they had been to counseling before, trying to find a way to work together for the benefit of their daughter. She related that the counselor had told her she should not go to court because she should not ruin his life, she was too old to date him, and it was her fault. She denied that she was angry when Mr. Davis told her he would not take care of the baby, saying she was just tired. When asked why she told him to leave, she replied that she felt that if he did not want to help her with the baby, was not working, paid none of the bills in the house, and contributed nothing to the household, then he should just leave. She said Mr. Davis was a student at Southern University of New Orleans (“SUNO”) at the time, and that he had moved out of his dormitory to “stay with” her. (No time frame for his moving out of the dormitory or why was indicated.) She admitted having attacked Mr. Davis previously, but she denied doing so on the day of the incident.

On redirect examination Ms. Leonard said she had been in a prior physical altercation with Mr. Davis during which he struck her.⁵

II. Mr. Davis' testimony

(A) Direct Examination

Mr. Davis testified that he and Ms. Leonard met when they were both attending SUNO. He did not have a car, so Ms. Leonard would pick him up. He stated that at the time of the incident, he did not want to be involved in an intimate relationship with her; however, he wanted to be around his daughter. He asserted he always had an issue with Ms. Leonard. Nevertheless, he still came over to her apartment. On the day of the incident, Mr. Davis was lying down with the baby and Ms. Leonard came and picked up the baby. He said she went out and did some things, then returned, and asked him to watch the baby “again.” He said he did not want to watch the baby further, at which point Ms. Leonard became irate and told him to leave.

Mr. Davis stated that he got dressed and was getting ready to leave, but Ms. Leonard stood in the doorway, holding the baby in her right arm, and kept pushing him back with her left arm. She kept asking him why he was doing this to her, insinuating that he did not want to help her at all with their daughter. He got past her and walked out of the room toward the front of the apartment. They were still arguing and probably were saying very mean, nasty things to each other. Ms. Leonard went into the bathroom⁶and continued screaming at him. He said he turned around, came back, and tried to enter the bathroom. She continued to try to push him, but fell backwards.

Mr. Davis acknowledged that he and Ms. Leonard had had physical altercations in the past where Ms. Leonard attacked him. However, she usually hurt herself when she did that, giving as an example when Ms. Leonard fell backwards in the bathroom in this instance. He said that after Ms. Leonard fell, he telephoned his own parents; they told him he had to leave the situation, and they would take him to a movie or something similar.

Mr. Davis denied ever choking Ms. Leonard or putting his hands around her neck. He described their prior altercations: Ms. Leonard being the aggressor and he grabbing her and trying to restrain her “or something like that.” He said they never got into shoving matches, but that he had physically restrained her to keep her from hitting him. On the day of the incident, she pushed him, but he denied hitting her back or pushing her down with his baby, averring he would never do anything to hurt her with his child in her arms. His feelings were hurt that it was being said that he did such a thing. He denied ever beating her head against a wall. When asked if Ms. Leonard was aware he was seeing other women, he responded “Yes, yes, yes.” He said he did not know whether at that time of the incident he was seeing anyone else, but that the issue had come up before. He confirmed that Ms. Leonard was angry about him returning to campus life and not participating in his daughter's life. In fact, he corrected Ms. Leonard's testimony, stating that at the time of the incident, the “semester had started back” and he was then living on campus in a dorm room.

(B) Cross–Examination

On cross-examination, Mr. Davis stated that he and Ms. Leonard had joint custody of their daughter, but they had never gone to court concerning it. He paid Ms. Leonard child support in the form of a Wal–Mart money card; he could show the balance on the card was then $400. He asserted that he gave her what a court would make him give her based on what he then presently earned. He noted that “she,” apparently meaning Ms. Leonard, was then (at the time of trial) staying with his family, presumably with their daughter. He did not know whether his daughter was injured when Ms. Leonard fell backward in the bathroom on the day of the incident, but the baby was not crying. Mr. Davis said Ms. Leonard had hit him with a closed fist on two separate occasions, but he had never caused physical harm to her during their entire relationship.

ERRORS PATENT

A review of the record reveals one error patent on the face of the record. Mr. Davis was found guilty of domestic abuse battery involving strangulation, a felony under La. R.S. 14:353L. He was only charged with a violation of that one statute. The sentence imposed upon him (two years at hard labor, suspended, with two years of active probation) does not comply with La.C.Cr.P. art. 895L⁷[now, per La. Acts 2015, No. 705, § 2,...