State Of Louisiana v. Dawune R. Lee

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2020 KA 0390

STATE OF LOUISIANA

VERSUS

DAWUNE R. LEE

Judgment Rendered:
FEB 2 2 2021
Appealed from the
Twentieth Judicial District Court
In and for the Parish of West Feliciana
State of Louisiana
Docket Number 18- WFLN- 523

Honorable William G. Carmichael, Judge Presiding

Samuel C. D' Aquilla Counsel for Appellee,
Stewart B. Hughes State of Louisiana
Haley Major Green
St. Francisville, LA

Tiffany B. Ashley
Clinton, LA

Lieu T. Vo Clark Counsel for Defendant/Appellant,
Mandeville, LA Dawune R. Lee

C. James Rothkamm, Jr.
Laura A. Signorelli
Baton Rouge, LA

BEFORE: WHIPPLE, C.J., WELCH, AND CHUTZ, JJ.

WHIPPLE, C.J.

The defendant, Dawune R. Lee, was charged by an amended bill of

information' with attempted second degree murder, a violation of LSA-R.S.

14: 30. 1 and LSA-R.S. 14: 27, and pled not guilty. After a bench trial, the

defendant was found guilty of the responsive offense of aggravated assault with a

firearm, a violation of LSA- R.S. 14: 37.4.2 The trial court sentenced the defendant

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to seven years imprisonment at hard labor. The trial court denied a motion to

reconsider sentence filed by the defendant. The defendant now appeals, assigning

as error the denial of his motion to reconsider sentence and the constitutionality of

the sentence. For the following reasons, we conditionally affirm the conviction

and sentence, and remand with instructions to the trial court for an evidentiary

hearing.

STATEMENT OF FACTS

On the evening of June 19, 2018, around midnight, Deputy Mike Woods and

Sergeant Bryan Herrin of the West Feliciana Sheriffs Department ( WFSD) were

dispatched to 7149 Woodpecker Drive in St. Francisville, due to a report of

gunshots being fired. When the officers arrived on the scene, they observed a

black male, identified as the defendant, standing at the end of the driveway. The

officers talked to witnesses at the scene, including the defendant and his sister,

Tytianna Lee, who lived at the residence. The defendant advised that he had fired

The defendant was originally charged with aggravated second degree battery, a violation
of LSA-R.S. 14: 34. 7.

The minutes indicate that the trial court found the defendant guilty of attempted second
degree murder, as charged in the amended bill of information. However, the trial transcript
reveals that the trial court found the defendant guilty of the responsive offense of aggravated
assault with a firearm. It is well- settled that in the event of a discrepancy between the minutes
and the transcript, the transcript prevails. See State v. Lynch, 441 So. 2d 732, 734 ( La. 1983).

3A the initial sentencing hearing, the trial court inadvertently stated that the defendant
had been found guilty of aggravated second degree battery and read the sentencing provision for
that offense before imposing a sentence of seven years imprisonment at hard labor. The trial
court later resentenced the defendant on the correct offense, aggravated assault with a firearm,
with the same sentence being imposed.

gunshots and that the gun, a black Glock, . 40 caliber, semiautomatic handgun, was

on the ground at the end of the driveway. The defendant explained that several

vehicles had driven down his road, that one of them hit him, causing hien to fall on

the hood, and that he pulled out his gun to get the driver to stop. The defendant

further stated that in the process of trying to stop the driver, his finger hit the

trigger and the gunshots were fired into the vehicle. The officers secured the gun,

read the defendant his rights, placed the defendant under arrest, and transported the

defendant to the West Feliciana Parish Jail. The defendant had no visible injuries

at the time.

The defendant provided a handwritten statement at the substation, wherein

he contended that his sister, Tytianna Lee, had a conflict with Whitney Davis and

Davis' s associates. The defendant noted that he was informed that Davis and her

associates threatened to hurt his sister and claimed to have " bats and stuff." The

defendant indicated that an hour after he received this information, Davis and her

cousin, Shieda Perkins, drove down his street, almost striking three people who

were standing outside. The defendant indicated he was inside at that time. When

he got outside, he saw four carloads of people. The defendant noted that he had his

gun in his pocket, " Just in case something happen [ sic]," and he walked to the end

of his driveway. The defendant further wrote,

Shieda] was coming around the [ corner] kinda fast so I try to move
out the way. But I couldn' t cause I can' t run I had got shot like 10 yrs
ago. So when [ Shieda] coming I try to move fast enough so she
wouldn' t hit me she hit my left leg So I pull my gun out my pocket to
make her stop and before I knew It I let off 3 shot to get off her hood
of her car.

Handwritten statements, consistent with the defendant' s account of the incident,

were also provided by Tytianna Lee, James Soileau, and Davionne Mullen.

Mullen and Soileau also testified at trial, both indicating that they were

outside with Tytianna Lee when the vehicle first came down the street, nearly

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hitting them, and then kept going as they jumped out of the way to avoid being hit.

Mullen stated that she went inside and told the defendant that they were almost hit

by a car. She noted that the car came back around and stopped, as the defendant

came outside and walked toward the driveway. According to Mullen, " after the

situation escalated and he [ the defendant] was walking around the car, and I

remember him putting his hands up and the car went. And then that' s when we

heard gunshots and everybody was running all over the place." Soileau similarly

contended that after they were nearly hit by the car, the defendant came outside

and said, " What' s going on?" He stated that by then, the car approached again and

stopped in front of the house. Soileau stated that the driver accelerated, striking

the defendant, and that the defendant fired shots, " as he was coming down from the

air."

Carmette Hall, a neighbor who lived across the street in front of a cul- de- sac,

called 911 to report the incident. Hall was watching television when he heard " a

lot of talking outside." He looked out his window and saw a car making a circle.

He added, " And what made me call, I thought he, you know, I thought the car had

hit him..." Hall further testified that he heard at least two gunshots and backed

away from the window at that point.

Deputy Wayne Tanner of the WFSD went to the hospital after being advised

that a red Chevrolet sedan was en route to the hospital with a gunshot victim.

Upon his arrival, he observed the vehicle in the parking lot with four bullet holes to

the windshield. He photographed the damages to the vehicle. Deputy Tanner also

took statements from witnesses at the hospital, including Whitney Davis and

Marcus Harris, both of whom testified at the trial, along with Shieda Perkins, the

victim and driver of the vehicle.

Davis and Harris testified that they were at Perkins' residence when they

decided to take a ride. Davis sat in the front passenger seat while Harris sat in the

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back, behind Perkins. Davis and Harris indicated that once they arrived in the

defendant' s neighborhood, Perkins drove down the street, made the circle and

came back up the street before turning around and going back down the street.

Davis added, " And once we were trying [ sic] come around that last loop, then

that' s when we got shot at." Davis confirmed that the defendant' s sister and

Mullen were among the people who were outside at the time.' Davis stated that

when the gunshots came through the windshield, she was looking at the

defendant' s sister, who she thought was trying to open the passenger -side door.

Harris stated, " well, when we came around the circle the second time, he [ the

defendant] was standing in the middle of the street." He added, " And that' s when

Perkins] start hitting the brakes because you can feel that car hitting brakes

because all of a sudden it was leaning me forward ... Then, like I said, I heard four

to five gunshots into the windshield." He confirmed that the defendant was the

shooter.

Perkins testified that earlier that day, before the shooting, Tytianna Lee and

her sister were driving down her " strip" ( the dead- end street that she lived on) and

harassing Davis. After dark, " strange cars" started passing by and there was a lot

of traffic in the area. Perkins suggested that they " take a ride to see what' s going

on." However, they did not leave right away. Later, after Davis received a phone

call from Tytianna Lee, Davis asked Perkins if she still wanted to take a ride, and

they subsequently did so. Perkins stated that as they approached the area, she saw

a lot of people at the end of the driveway of the Lee residence. She stated, " As I' m

Toward the end of her testimony, Davis admitted that she and Tytianna Lee had had a
dispute prior to the shooting and that when they stopped in front of the Lee residence, she
believed at the time that Lee wanted to have a fight with her, so she rolled down the window and
suggested that they " get it resolved" up the street, away from the Lee residence. She explained

that she wanted to discuss the matter surrounding their dispute and " get this over," but did not
want to have a confrontation in front of the residence, so she suggested, " let' s just go up the
street or something like that, just so we won' t be around, anywhere around your property or
anything like that, you know."

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Perkins
coming out of the circle, I can see Tytianna, like, flagging the car down."

stated that when she went around the circle, apparently the second time around, her

car was " ambushed." She stated that she saw " multiple fingers" in the window of

her car and that Davis repeatedly told her to put the windows up. She added, " I

heard the firecracker noise and I ... felt something, like, pop me." She stated that

Davis screamed, " Hit the lock button." She added, " And then after I hit the lock

button, all I can remember is hearing the gunshot go off, seeing Dawune standing

in front of me with his, with his gun facing me, with his teeth showing his golds,

pointing at me like this, biting his lip." She stated that she closed her eyes, adding

I think I passed out." Perkins testified that she was shot in her stomach, chest,

wrist, and elbow.5

ASSIGNMENTS OF ERROR

In a combined argument for his assignments of error, the defendant contends

that the trial court imposed a constitutionally excessive sentence considering the

the totality of the evidence." He notes that he has a very minor criminal record

with no prior felony convictions. He contends the trial court convicted him of

aggravated assault with a firearm because the court was unclear whether it was

actually the defendant who caused the victim' s injuries. The defendant notes that

the trial court did not find that he, in fact, shot the victim and caused her injuries,

although he concedes that the trial court found that he pointed a gun at the victim' s

vehicle. He argues that the trial court subsequently erred, abused its discretion,

and contradicted itself at sentencing in considering, as a " major aggravating

factor," that the defendant' s actions " resulted in the serious injury to the victim."

The defendant introduced a grainy, black -and -white video surveillance of the Lee
The brief footage shows an individual, presumably the defendant, standing in
residence at trial.

front of an approaching vehicle, extending his arms ( his hands are not in clear view) and
stepping backwards, as the vehicle appears to slowly bump into him. At that point, the vehicle
and the defendant exceed the view of the camera. Just before the footage ends, the defendant
reappears, walking away from the vehicle.

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The defendant further argues that the trial court failed to consider mitigating

evidence, specifically noting that: ( 1) as recognized by the trial court, the victim in

this case, came to the neighborhood looking for trouble; ( 2) the video of the

incident shows that the defendant was struck by the victim' s vehicle; and ( 3) the

events leading to this incident were initiated by the victim and her friends.

Finally, the defendant notes that the offense for which he was convicted allows for

a probated sentence and that he, as a first-time felony offender, is eligible for

probation. Thus, he argues that the seven- year, " closer to the maximum" sentence

is excessive in this case.

The State, in its appellee brief, argues that the trial court complied with the

sentencing guidelines and adequately considered the defendant' s background and

the facts of the offense. The State notes that the record is devoid of any evidence

that anyone else, other than the defendant, fired gunshots into the victim' s vehicle

that night. The State further notes that the trial court did not impose a maximum

sentence in the case and argues that the trial court was within its broad discretion in

imposing the sentence within the statutory sentencing range.

The Eighth Amendment to the United States Constitution and Article I,

Section 20 of the Louisiana Constitution prohibits the imposition of excessive

punishment. Although a sentence may be within statutory limits, it may violate a

defendant' s constitutional right against excessive punishment and is subject to

appellate review. State v. Sepulvado, 367 So. 2d 762, 767 ( La. 1979); State v.

Honea, 2018- 0018 ( La. App. 1st Cir. 12/ 21/ 1. 8), 268 So. 3d 1117, 1120, writ not

considered, 2019- 00598 ( La. 8/ 12/ 19), 279 So. 3d 915. A sentence is

constitutionally excessive if it is grossly disproportionate to the severity of the

offense or is nothing more than a purposeless and needless infliction of pain and

suffering. State v. Hurst, 99- 2868 ( La. App. 1st Cir. 10/ 3/ 00), 797 So. 2d 75, 83,

writ denied, 2000- 3053 ( La. 10/ 5/ 01), 798 So. 2d 962. A sentence is grossly

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disproportionate if, when the crime and punishment are considered in light of the

harm done to society, it shocks the sense of justice. A trial court is given wide

discretion in the imposition of sentences within statutory limits, and the sentence

imposed by it should not be set aside as excessive in the absence of manifest abuse

of discretion. State v. Collins, 2009- 161.7 ( La. App. 1st Cir. 2/ 12/ 10), 35 So. 3d

1103, 1108, writ denied, 2010- 0606 ( La. 10/ 8/ 10), 46 So. 3d 1265.

Louisiana Code of Criminal Procedure article 894. 1 sets forth the factors for

the district court to consider when imposing sentence. While the entire checklist of

Article 894. 1 need not be recited, the record must reflect that the district court

adequately considered the criteria. In light of the criteria expressed by article

894. 1, a review for individual excessiveness should consider the circumstances of

the crime and the trial court' s stated reasons and factual basis for its sentencing

decision. State v. Brown, 2002- 2231 ( La. App. 1st Cir. 5/ 9/ 03), 849 So. 2d 566,

569. Remand is unnecessary when a sufficient factual basis for the sentence is

shown. State v. Lanclos, 419 So. 2d 475, 478 ( La. 1982); State v. Graham, 2002-

1492 ( La. App. 1 st Cir. 2/ 14/ 03), 845 So. 2d 416, 422. Additionally, this court has

stated that maximum sentences permitted under statute may be imposed only for

the most serious offenses and the worst offenders, or when the offender poses an

unusual risk to the public safety due to his past conduct of repeated criminality.

State v. Parker, 2012- 1550 ( La. App. 1st Cir. 4/ 26/ 13), 116 So. 3d 744, 754, writ

denied, 2013- 1200 ( La. 11/ 22/ 13), 126 So. 3d 478.

At the initial sentencing hearing in this case, the victim testified that she

suffered from depression and PTSD after watching the video of herself being shot.

She stated that she had been living in fear since the night of the shooting, reliving

the moment that the defendant " tried to take my life, take me away from my two

young kids." She stated that she had an unrealistic sense of safety in St.

Francisville before the shooting and did not realize the danger that she was putting

herself in. She stated that as a mother, she would never intentionally place herself

in danger or go looking for trouble. She asked the trial court to impose the

maximum sentence allowed by law.

Prior to imposing the sentence, the trial court noted its consideration of the

sentencing guidelines and the presentence investigation report ( PSI). b The trial

court noted that it found no mitigating factors, though the court also noted that the

defendant had a very minor history of criminal activity, with nothing as serious as

the instant offense. As to the facts of the instant offense, the trial court noted that

the defendant walked out of his house to a disturbance armed with a weapon and

fired it into an oncoming vehicle. The trial court stated that while the defendant

claimed to have been struck by the vehicle, such a fact was not clear from the

evidence and further noted that the defendant, nonetheless, placed himself in front

of the vehicle. The court also found the defendant knowingly created a risk of

danger or harm to more than one person by firing his weapon into the driver' s side

of the vehicle. The trial court noted that the defendant used actual violence and a

dangerous weapon in the commission of the offense. The trial court further

considered, as an aggravating factor, the injuries suffered by the victim. In

resentencing the defendant ( after discovering the trial court error in naming the

offense incorrectly prior to the original imposition of sentence, as previously noted

herein), the trial court noted that the same sentencing reasons were applicable.

While the defendant describes his sentence as " closer to the maximum," we

note that the applicable statute provides the following sentencing exposure: " fined

not more than ten thousand dollars or imprisoned for not more than ten years, with

6The PSI indicates that the defendant is a first felony offender. His criminal record

includes previous arrests for theft in 2005, simple battery in 2006, and domestic abuse battery in
2011. The report further contains handwritten notes indicating that the theft charge was
dismissed and that no record was found for the simple battery arrest. On the domestic abuse
battery charge, the defendant pled nolo contendere to simple battery and was sentenced to thirty
days in parish prison.

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or without hard labor, or both." LSA-R.S. 14: 37.4( C). Thus, the defendant was

exposed to an additional three years of imprisonment at hard labor as well as a

significant fine. We find that the trial court provided well -thought-out reasons for

its sentencing that did not conflict with the reasons for the trial court' s verdict in
this case. In light of the circumstances, the trial court, having presided over the

trial and having heard all relevant facts and arguments, concluded that the

aggravating circumstances outweighed any mitigating circumstances in this case.

A thorough review of the record reveals that the trial court adequately considered

the criteria of Article 894. 1 and did not abuse its discretion in imposing the

sentence herein. Therefore, we find no error in the trial court' s denial of the

motion to reconsider sentence. In accordance with the above, assignments of error

numbers one and two lack merit.

PATENT ERROR REVIEW

Pursuant to LSA-C. Cr.P. art. 920, this court routinely conducts a review for

errors discoverable by mere inspection of the pleadings and proceedings and

without inspection of the evidence. After a careful review of the record, we have

found a patent error.

Both the Sixth Amendment to the United States Constitution and La. Const.

art. 1, § 17( A) guarantee an accused the right to a trial by jury in felony and certain

misdemeanor cases. Except in capital cases, a defendant may knowingly and

intelligently waive his right to trial by jury and elect to be tried by the judge. La.

Const. art. 1, § 17( A); LSA-C. Cr.P. art. 780( A); LSA- C. Cr.P. art. 782( B).

Accordingly, if a defendant is tried and convicted by a judge when he is entitled to

a trial by jury, the record must show that a jury trial was knowingly and

intelligently waived. See State v. Cappel, 525 So. 2d 335, 336- 37 ( La. App. 1st

Cir.), writ denied, 531 So. 2d 468 ( La. 1988).

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The punishment for attempted second degree murder is confinement at hard

labor. LSA-R.S. 14: 30. 1( B) and LSA-R.S. 14: 27( D)( 1)( a). Thus, the defendant

was entitled to a jury trial on the charge in this case. La. Const. art. 1, § 17( A);

LSA- C. Cr.P. art. 782( A).

The September 6, 2018 minutes of the arraignment reflect that the defendant

was informed that he could be tried by the court alone or by a jury and that the case

was assigned for the jury week of March 8, 2019. At the February 7, 2019 re -

arraignment after the amendment of the bill of information, the trial court again

informed the defendant that he could be tried by the court alone or by a jury and

the defendant " maintained the trial by jury date for the week of March 18, 2019."

On March 18, 2019, the matter was continued to the jury week of July 15, 2019.

On July 18, 2019, the matter was tried by a bench trial. The record, however, does

not contain a jury -trial waiver.

It is well settled that the waiver of a criminal defendant' s right to trial by

jury is not presumed; there operates, in fact, a presumption against such waiver that

must be rebutted. Cappel, 525 So. 2d at 337. When the record does not clearly

indicate a valid waiver of the right to a jury trial, the tendency has not been to

reverse, but to remand the case to the trial court for an evidentiary hearing on the

issue of whether a valid jury waiver was obtained. See State v. Nanlal, 97- 0786

La. 9/ 26/ 97), 701 So. 2d 963; State v. Chavis, 2011- 1685 ( La. App. lst Cir.

5/ 2/ 12), 2012 WL 1550868, at * 2. In Cappel, this Court noted that when the

record is insufficient to determine whether the defendant knowingly and

intelligently waived his right to a jury trial, testimony by the defendant and

defense counsel at an evidentiary hearing would certainly be relevant, if not

dispositive of the issue. Cappel, 525 So. 2d at 337 n. 3.

Accordingly, the defendant' s conviction and sentence are conditionally

affirmed. We remand this case for the trial court to conduct an evidentiary hearing

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within thirty days to determine whether the defendant knowingly and intelligently

waived his right to a jury trial. If the evidence shows that the defendant did not

execute such a waiver, the trial court is instructed to set aside the conviction and

sentence and grant a new trial. We note that double jeopardy does not preclude the

State from retrying a defendant whose conviction is set aside because of judicial

error. See State v. Mayeax, 498 So. 2d 701, 705 ( La. 1986). If, on the other hand,

the trial court concludes that the defendant did waive his right to a jury trial, the

defendant may appeal only that decision to this court. See State v. Welch, 2012-

1531 ( La. App. 1st Cir. 3/ 22/ 13), 115 So. 3d 490, 503- 04; see also State v.

Howard, 2009- 928 ( La. App. 5th Cir. 5/ 25/ 10), 37 So. 3d 1099, 1105.

Within ten days after the hearing, the trial court shall supplement the appeal

record with the minutes and transcript of the evidentiary hearing, so that the

defendant' s appeal can continue to final disposition. State v. Lane, 2016- 0942 ( La.

App. 1st Cir. 12/ 22/ 16), 2016 WL 7409682, at * 2.

CONVICTION AND SENTENCE CONDITIONALLY AFFIRMED;
REMANDED WITH INSTRUCTIONS FOR DETERMINATION OF
WHETHER DEFENDANT KNOWINGLY AND INTELLIGENTLY
WAIVED HIS RIGHT TO A TRIAL BY JURY.

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