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STATE of Louisiana v. Donald Timothy DARDAR, Jr.
The defendant, Donald Timothy Dardar, Jr., was charged by bill of information with one count of aggravated second degree battery, a violation of La. R.S. 14:34.7, and pled not guilty.1 Following a jury trial, he was found guilty as charged. He moved for a post-verdict judgment of acquittal and a new trial, but the motions were denied. Thereafter, the State filed a habitual offender bill of information against the defendant, alleging he was a third-felony habitual offender.2 ,3 The defendant pled not guilty to the allegations of the habitual offender bill. Following a hearing, he was adjudged a third-felony habitual offender. He was sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. He now appeals, challenging the denial of his motion for a mistrial and the sufficiency of the evidence. For the following reasons, we affirm the conviction, habitual offender adjudication, and sentence.
Early in June of 2015, Robert Lee Authement 4 went to the Music Cove, a bar in Terrebonne Parish, with Keith Brunet and the defendant. After the defendant's wife, Mandy Chaisson, entered the bar, the defendant told Authement and Brunet that he and the men “had to leave,” and the men went to Half Moon (another bar). However, the defendant and Brunet were refused entry at Half Moon, so all three men returned to the Music Cove.
According to Authement, the victim, Samuel Verrett, approached the defendant at the Music Cove to “see what was up with him.” Thereafter, the defendant offered Authement $100 to “go knock [the victim] out.” Authement followed the victim into the bathroom, but decided not to strike him because Authement did not want to go to jail. Authement did, however, inform the victim of the offer by the defendant. After exiting the bathroom, the victim returned to the barroom where he was dancing and “hanging out” with Chaisson. Authement testified that the defendant and the victim “kept on giving one another eye contact.”
According to Authement, after the Music Cove closed, the defendant received a telephone call and began “fussing” with the caller. Thereafter, Authement, the defendant, and Crystal (someone the defendant met at the Music Cove) got into the defendant's car. Authement thought the defendant was driving to the Waffle House, but the defendant drove towards “an address” on his phone in Ashland, in the direction of Dulac in Terrebonne Parish.
Prior to reaching the address, the defendant pulled the car over, and Authement began driving. Thereafter, the defendant told Authement to stop the car. The defendant jumped out of the car and grabbed the driver of a truck, “Screech,”5 the bouncer from the Music Cove, by the shirt. Chaisson was in the truck with Screech.
Chaisson and Screech then drove to the victim's residence in Screech's truck. The defendant and Authement followed the truck to the residence. Authement claimed that when they arrived, the victim was in his front yard with a shovel. The defendant and the victim began arguing. Authement told the victim to put the shovel down and fight the defendant “like a man.” According to Authement, the defendant “went to see what was going on on the other side,” and the victim swung the shovel at Authement. Authement testified he did not feel threatened by the victim's action.
According to Authement, the defendant returned and told the victim the defendant had “a gun in the trunk.” The victim replied he was going inside to get a gun. The defendant then started looking in the truck for a tire tool. Authement armed himself with a car amplifier. Authement claimed he approached the victim to “go up behind him and grab the shovel,” but the victim's father warned the victim, and the victim began chasing Authement with the shovel. Authement claimed he dropped the amplifier after the victim “tapped” him on the shoulder with the shovel. Authement also claimed he lost his footing because of dew on the grass. Authement testified that if the victim had wanted to hurt him, “he would have hurt [Authement].” Authement claimed the defendant then told him to “duck,” and Authement heard a sound like a gunshot. He heard a “pow,” saw a cloud of dust, and saw the victim “going back with a shovel in his hand.” Thereafter, the defendant ran away.
According to Authement, when the defendant yelled “duck,” the defendant was in the back of Screech's truck, which was parked on the edge of the road almost in front of the victim's trailer. Authement had previously seen the defendant accurately throw from farther away than that distance.
Richard Saltzman was working as a “bouncer,” i.e., as security, at the Music Cove on the night of the incident. After the bar closed, the victim and Chaisson waited inside for Saltzman to complete his duties because he had agreed to give them rides home. As Saltzman, the victim, Chaisson, and another bouncer were leaving the Music Cove, Saltzman noticed that the defendant and his friends were still in the parking lot and appeared to be watching “to see whenever [Saltzman would be leaving].”
On the way to the victim's residence, Chaisson had an argument with someone on the phone. Saltzman dropped the victim off at his residence and drove to the end of the street to turn around to take Chaisson home. He paused while passing back by the victim's residence to see if the victim had gone inside. Saltzman testified he saw the defendant and his friends stop on the opposite side of the street. They were “looking for [the victim].” The defendant approached Saltzman and told him he “was wrong.”
According to Saltzman, the victim came out of his house and grabbed a shovel. He held the shovel on his shoulder and was “walking like he was about ready to swing[.]” The victim, the defendant, and another man with the defendant began arguing and chasing each other. Saltzman testified that the defendant then threw an amplifier at the victim. Saltzman also testified that the victim chased the defendant out of the yard, but then the defendant chased the victim onto his porch and into his trailer. Subsequently, the defendant again approached Saltzman and told him he “was wrong.” Saltzman asked the defendant what he was doing. The defendant replied he was “looking for something.” He then removed a baseball-sized piece of dried cement from the back of Saltzman's truck. Saltzman testified that the defendant then walked to the end of the victim's driveway and threw the cement at the victim. The cement hit the victim above his forehead and “exploded” into dust. The victim “went down.” The impact sounded “like a cannon.” The defendant and his friends then “took off.” Saltzman went to assist the victim and saw “a pile of blood behind his head.” The victim's eyes were also “rolling,” and he was gasping for air. Saltzman did not see the victim swing his shovel during the incident.
Terrebonne Parish Sheriff's Office Deputy Desmond Moore was the first officer to arrive at the crime scene. He discovered a pick-up truck with concrete in its bed parked on the roadway at the scene. The vehicle was less that fifty feet away from where the victim was lying. Following the incident, the victim was admitted to the emergency room of Chabert Hospital (Chabert) for treatment. After being resuscitated at Chabert, he was transferred to Ochsner Hospital (Ochsner) in New Orleans.
The trial court accepted Dr. Roger D. Smith, the victim's treating physician at Ochsner, as an expert in neurological medicine. Dr. Smith testified the victim was in a coma when he arrived at Ochsner. He had several comminuted, i.e., broken into multiple pieces rather than linear, fractures of the skull. He also had a subdural hematoma (accumulation of blood between the skull and the brain). Dr. Smith stated the victim's injuries were consistent with blunt trauma to the cranium. Dr. Smith indicated a large object, such as a piece of concrete, thrown at the victim would cause a fracture in one area. According to Dr. Smith, the location of fractures on both sides of victim's head and multiple breaks suggested the victim “probably had more than one blow to the head, probably several.” Dr. Smith testified the victim “had quite severe damage to his brain.”
Amanda Price and the victim had two daughters together. Following the incident, Price had not seen the victim walk. She testified the victim was unable to sit up by himself, had completely lost use of one of his arms, and had only partial use of the other. The State and the defense stipulated the victim was unable to testify at trial due to his physical disabilities.
SUFFICIENCY OF THE EVIDENCE
In assignment of error number 2, the defendant contends the evidence was insufficient to prove his specific intent to inflict serious bodily injury on the victim. He argues the victim was in possession of a dangerous weapon (a shovel) and fully intended to use it against the unarmed Authement. The defendant claims his actions in striking the victim were necessary and reasonable given the imminent danger facing Authement.
When issues are raised on appeal contesting the sufficiency of the evidence and alleging one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La. 1992); State v. Duhon, 2018-0593 (La. App. 1st Cir. 12/28/18), 270 So.3d 597, 609, writ denied, 2019-0124 (La. 5/28/19), 273 So.3d 315. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 43, 101 S.Ct. 970, 972, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the essential elements of the offense have been proven beyond a reasonable doubt. Hearold, 603 So.2d at 734; Duhon, 270 So.3d at 609. When the entirety of the evidence is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion of trial error issues as to that crime would be pure dicta since those issues are moot. However, when the entirety of the evidence is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the other assignments of error to determine whether the accused is entitled to a new trial. If the reviewing court determines that there has been trial error (which was not harmless) in cases in which the entirety of the evidence was sufficient to support the conviction, then the accused will be granted a new trial, but is not entitled to an acquittal. See Hearold, 603 So.2d at 734, Duhon, 270 So.3d at 609.
A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. See La. Code Crim. P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660. In conducting this review, we also must be expressly mindful of Louisiana's circumstantial evidence test, which states in part, “assuming every fact to be proved that the evidence tends to prove, in order to convict” every reasonable hypothesis of innocence is excluded. La. R.S. 15:438; State v. Gilley, 2019-1543 (La. App. 1st Cir. 7/17/20), 308 So.3d 1194, 1199-1200, writ denied, 2020-01067 (La. 12/22/20), 307 So.3d 1026.
Aggravated Second Degree Battery
Louisiana Revised Statutes 14:34.7(A) defines aggravated second degree battery as “a battery committed with a dangerous weapon when the offender intentionally inflicts serious bodily injury.” A battery is defined, in pertinent part, by La. R.S. 14:33 as “the intentional use of force or violence upon the person of another.” Pursuant to La. R.S. 14:2(A)(3), a “[d]angerous weapon” includes “any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.” Prior to repeal by 2019 La. Acts, No. 2, § 3,6 La. R.S. 14:34.7(B)(3) defined “[s]erious bodily injury” as “bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.” Aggravated second degree battery is a crime requiring specific criminal intent. Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Such state of mind can be formed in an instant. Specific intent need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of a defendant. The intent to inflict serious bodily injury may be inferred from the extent and severity of the victim's injuries. The existence of specific intent is an ultimate legal conclusion to be resolved by the trier of fact. State v. Cornwell, 2017-0044 (La. App. 1st Cir. 9/27/17), 2017 WL 4314372, *3.
Justifiable Use of Force or Violence in Defense of Others
Louisiana Revised Statutes 14:21 provides:
A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.
Louisiana Revised Statutes 14:22, in pertinent part, provides:
It is justifiable to use force or violence ․ in the defense of another person when it is reasonably apparent that the person attacked could have justifiably used such means himself, and when it is reasonably believed that such intervention is necessary to protect the other person.
In a non-homicide case where justification is asserted, a dual inquiry is employed: an objective inquiry into whether the force was reasonable under the circumstances; and, a subjective inquiry into whether defendant believed that force was apparently necessary. See La. R.S. 14:19. State v. Jones, 2018-0479 (La. App. 1st Cir. 11/2/18), 2018 WL 5779773, *3.
Any rational trier of fact, viewing the evidence in this case in the light most favorable to the State, could find that the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of aggravated second degree battery and the identity of the defendant as the perpetrator of that offense against the victim. The verdict returned in this matter indicates the jury accepted the testimony of the State witnesses while rejecting the defendant's attempts to discredit those witnesses. Gilley, 308 So.3d at 1200.
The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt. We are constitutionally precluded from acting as a “thirteenth juror” in assessing what weight to give evidence in criminal cases. The fact that the record contains evidence which conflicts with the testimony accepted by the trier of fact does not render the evidence accepted by the trier of fact insufficient. Gilley, 308 So.3d at 1200-01; State v. Nixon, 2017-1582 (La. App. 1st Cir. 4/13/18), 250 So.3d 273, 291, writ denied, 2018-0770 (La. 11/14/18), 256 So.3d 290.
A rational juror could have reasonably concluded the defendant had abandoned the role of defender and taken on the role of an aggressor at the time of the incident and, as such, was not entitled to claim justifiable use of force or violence in defense of Authement. See La. R.S. 14:21. Further, Authement went with the defendant to confront the victim at his trailer. Thus, Authement, a fellow aggressor, could not have “justifiably used such means himself[.]” See La. R.S. 14:22. See State v. Bacon, 578 So.2d 175, 179 (La. App. 1st Cir. 1991), writ denied, 93-0694 (La. 3/30/95), 651 So.2d 857 (“Because Guy was the aggressor in this situation, the defendant was not entitled to kill the victim in defense of Guy.”). The evidence indicated the defendant was so angry with the victim for being with Chaisson at the Music Cove, that the defendant offered Authement $100 to “go knock [the victim] out.” Thereafter, the defendant waited for the victim to leave the Music Cove and then took Authement with him to confront the victim at his trailer. After arguing and chasing the victim at his home, the defendant took a piece of dried cement from the back of Saltzman's truck, moved closer to the victim, and threw the cement at the victim, striking him in the head and causing him serious bodily injury.
Moreover, even if the defense of justifiable use of force or violence in defense of others was available to the defendant, a rational juror could have reasonably concluded that the defendant's use of force or violence on the victim was not necessary to protect Authement. Saltzman testified he never saw the victim swing his shovel during the incident. Authement testified that although the victim swung his shovel at him, he did not feel threatened by the victim's actions.
Additionally, the defendant's act of leaving the scene of the incident and failing to report it are inconsistent with a theory of self-defense. Flight following an offense reasonably raises the inference of a “guilty mind.” See State v. Taylor, 2014-0432 (La. 3/17/15), 166 So.3d 988, 995 (per curiam); State v. Rosario-Colon, 2019-0406 (La. App. 1st Cir. 9/27/19), 289 So.3d 126, 135, writ denied, 2019-01806 (La. 1/28/20), 291 So.3d 1055, cert. denied, ––– U.S. ––––, 140 S.Ct. 2727, 206 L.Ed.2d 859 (2020); State v. Jenkins, 2013-1723 (La. App. 1st Cir. 3/24/14), 2014 WL 1177593, *5.
Accordingly, in reviewing the evidence, we cannot say that the jury's determination was irrational under the facts and circumstances presented to them. See Ordodi, 946 So.2d at 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). To otherwise accept a hypothesis of innocence that was not unreasonably rejected by the fact finder, a court of appeal impinges on a fact finder's discretion beyond the extent necessary to guarantee the fundamental protection of due process of law. See State v. Mire, 2014-2295 (La. 1/27/16), 269 So.3d 698, 703 (per curiam).
This assignment of error is without merit.
MOTION FOR A MISTRIAL
In assignment of error number 1, the defendant contends the trial court erred in denying the motion for a mistrial. He argues Authement's unsolicited comment or remark that the defendant forced Authement to run errands for him in exchange for drugs should be attributed to the State because the State offered full immunity to a convicted felon who was willing to say anything to place criminal culpability at the defendant's feet.
Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by La. Code Crim. P. arts. 770 or 771. See La. Code Crim. P. art. 775. The determination as to whether or not a mistrial should be granted under Article 775 is within the sound discretion of the trial court, and a denial of a motion for mistrial will not be disturbed on appeal absent an abuse of discretion. State v. Young, 569 So.2d 570, 583 (La. App. 1st Cir. 1990), writ denied, 575 So.2d 386 (La. 1991).
Louisiana Code of Criminal Procedure article 770(2) provides for a mandatory mistrial when a remark, within the hearing of the jury, is made by the judge, the district attorney, or a court official, and such remark refers to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. However, remarks by witnesses fall under the discretionary mistrial provisions of La. Code Crim. P. art. 771. State v. Redmond, 2010-0072 (La. App. 1st Cir. 7/14/10), 2010 WL 2773352, *2, writ denied, 2010-1829 (La. 2/4/11), 57 So.3d 310.
Louisiana Code of Criminal Procedure article 771, in pertinent part, provides:
In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.
A mistrial pursuant to the provisions of Article 771 is at the discretion of the trial court and should be granted only where the prejudicial remarks of the witness make it impossible for the defendant to obtain a fair trial. The jurisprudence interpreting Article 771(2) has held that unsolicited and unresponsive testimony is not chargeable against the State to provide a ground for mandatory reversal of a conviction. Redmond, 2010 WL 2773352 at *2.
During direct examination of Authement by the State at trial, the following colloquy occurred:
Q. How do you know [the defendant]?
A. Just from [Chaisson] after they got married.
Q. Did you consider [the defendant] a friend?
A. He always used me, like I was a gofer or something, paid me money or give me drugs to do things.
The defense moved for a mistrial, arguing the State had elicited inadmissible other crimes testimony from Authement. The State denied it had elicited the statement from Authement. The State argued it had merely asked Authement how he knew the defendant, a question it had not asked him in previous meetings. The State noted when it previously discussed with Authement how he knew the defendant, he had indicated they played football together. The State set forth, “[w]e assumed to know the answer, but we cannot always predict one hundred percent what a witness is going to say on the stand.” The State thought an admonishment to the jury to disregard Authement's response would be proper. The defense argued, “[y]our Honor, you can't un-ring a bell, once [Authement] said that[,] no admonishment is going to cure that problem. That is clearly grounds for a mistrial under the Code.”
The court found Authement's response had implicated the defendant in “some sort of illegal drug activity.” The court noted, under Article 770 of the Louisiana Code of Criminal Procedure, if such a prejudicial remark about another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible is made within the hearing of the jury by the judge, the district attorney, or a court official, then a mandatory mistrial is required. The court further noted, under Article 771 of the Louisiana Code of Criminal Procedure, when the remark or comment is made by a witness or a person other than the judge, district attorney, or a court official, then, upon the request of the defendant or the State, the court shall promptly admonish the jury to disregard the remark or comment made. Additionally, the court noted, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.
The court did not fault the State for “what appeared to be Mr. Authement's spontaneous remark.” The court noted the question posed to Authement was whether the defendant was his friend, but Authement's answer “veer[ed] off into all sorts of reason why he thinks [the defendant] may not have been his friend[.]” Thus, the court concluded, Authement's response “wasn't a direct response to a direct question.” The court ruled it would admonish the jury to disregard Authement's remark and not consider it at all as part of the evidence in the case. The defense objected to the court's ruling.
There was no abuse of discretion in the denial of the motion for a mistrial. Authement's response did not make it impossible for the defendant to obtain a fair trial. Further, the trial court's findings that the challenged response was “spontaneous,” and “wasn't a direct response to a direct question” are supported by the record. Thus, Authement's unsolicited and unresponsive response was not chargeable against the State to provide a ground for mandatory reversal of the conviction.
This assignment of error is without merit.
CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED.
1. The trial court ordered this matter, Docket #778972, consolidated with the proceedings under an earlier Docket #701430.
2. Predicate #1 was set forth as the defendant's June 14, 1999 guilty plea to 32nd Judicial District Court Docket #326219, charging simple burglary, a violation of La. R.S. 14:62. Predicate #2 was set forth as the defendant's September 14, 2001 guilty pleas to 32nd Judicial District Court Docket #357026, charging two counts of carnal knowledge of a juvenile, violations of La. R.S. 14:80, and 32nd Judicial District Court Docket #374562, charging carnal knowledge of a juvenile, a violation of La. R.S. 14:80.
3. The trial court ordered this matter consolidated with the proceedings under the habitual offender bill.
4. Authement and the defendant were initially jointly charged with attempted second degree murder, a violation of La. R.S. 14:27 and La. R.S. 14:30.1.
5. Authement testified he knew the bouncer as “Screech.” The bouncer, Richard Saltzman, testified his nickname was “Shrek.”
6. See now La. R.S. 14:2(C).
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Docket No: DOCKET NUMBER 2021 KA 0860
Decided: February 25, 2022
Court: Court of Appeal of Louisiana, First Circuit.
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