State Of Louisiana v. Michael Damonte Diggs ( 2019 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2019 KA 0956
STATE OF LOUISIANA
VERSUS
MICHAEL DAMONTE DIGGS
Judgment Rendered: DEC 2 7 2019
On Appeal from the
32nd Judicial District Court
In and for the Parish of Terrebonne
State of Louisiana
Trial Court No. 756, 226
Honorable Juan W. Pickett, Judge Presiding
Joe Waitz Attorneys for Appellee,
District Attorney State of Louisiana
J. Christopher Erny
Ellen Daigle Doskey
Assistant District Attorneys
Houma, LA
Gwendolyn K. Brown Attorney for Defendant -Appellant,
Louisiana Appellate Project Michael Damonte Diggs
Baton Rouge, LA
BEFORE: HIGGINBOTHAM, PENZATO, AND LANIER, JJ.
HIGGINBOTHAM, J.
The defendant, Michael Damonte Diggs, was charged by grand jury
indictment with first degree murder on counts one and two, violations of La. R.S.
14: 30( A)(3), and with attempted first degree murder on counts three, four, five, and
six, violations of La. R.S. 14: 30( A)(3) and La. R.S. 14: 27. 1 He pled not guilty and,
after a trial by jury, was found guilty as charged on each count. The defendant filed
a motion for postverdict judgment of acquittal and a motion for new trial. The trial
court denied the motion for new trial. The motion for postverdict judgment of
acquittal was granted on count three, and denied on the other counts.2 On counts
one and two, the trial court imposed life imprisonment at hard labor on each count.
On counts four, five, and six, the trial court imposed fifty years imprisonment at hard
labor on each count. The trial court ordered that the sentences run concurrently,
without the benefit of probation, parole, or suspension of sentence. The defendant
now appeals, assigning error to the trial court' s rulings on the following: ( 1) his
challenge for cause of a prospective juror during voir dire; ( 2) his objection to trial
testimony regarding Facebook messages; and ( 3) his motion for new trial.
STATEMENT OF FACTS
During the evening hours of June 28, 2016, Roderick Smith ( the victim of
count six) and Troy Deroche ( the victim of count one) were riding around " druggin'
it" and were ultimately joined by the defendant. Sometime after midnight, Troy and
Roderick agreed to drop off the defendant, who was sitting in the backseat of the
vehicle, in the Village East neighborhood in Houma. Once they arrived at Thomas
Drive in Village East, gunshots were fired from the backseat of the vehicle. John
Darjean ( the victim of count two), Jaquan Smith ( the victim of count four), and
1 The State did not seek the death penalty in this case.
Z The trial court found that there was insufficient evidence that the alleged victim of count three,
Jakai Smith, was present at the scene of the related shooting.
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Malik Pharr ( the victim of count five) were outside on Thomas Drive at the time of
the shooting. John was fatally shot in the head, Jaquan was struck in the leg two
times, and Malik escaped without injury.
Roderick testified at trial that after hearing the gunfire, he went into a state of
shock, accelerated the vehicle, and questioned the defendant, who was the only
person in the backseat, what he was doing. The defendant did not respond. Roderick
testified that he had no doubt that the defendant was the person who fired a gun from
the backseat of the vehicle.
After the initial gunshots, Roderick drove to Samuel Street in the
Mechanicville area, hoping that the defendant would exit the vehicle in that area.
Once they approached the intersection at Senator Street, the defendant exited the
vehicle. Roderick then heard more gunshots, and he and Troy were struck several
times. At the time of the trial, Roderick still had bullets in his body, including one
that was lodged near his heart. While Roderick survived, Troy died from his gunshot
injuries.
The defendant participated in a pretrial interview. After being advised of his
Miranda' rights, he stated that he " heard about" the shootings and repeatedly denied
that he was in the vehicle or committed the shootings. At about an hour and twenty-
two minutes into the interview, he finally admitted that he was in the vehicle. At
that point, the defendant indicated that he was the driver, Troy was the front
passenger, and Roderick was in the backseat using the defendant' s gun (a. 40 caliber
Glock handgun) to commit the shootings on Thomas Drive.' After further
questioning, the defendant stated that a fourth occupant, a " kind of heavy -set" black
3 Miranda v. Arizona, 384 U. S. 436, 444, 86 S. Ct. 1602, 1612, 16 L.Ed.2d 694 ( 1966).
Cheryl Swearingen of the Louisiana State Police Crime Lab ( LSPCL), an expert witness in
firearms, determined that all fourteen of the . 40 caliber cartridge casings in evidence were fired
from the Glock model 22, . 40 caliber handgun in evidence. Elizabeth Hamilton of the LSPCL, an
expert in DNA analysis, matched a DNA sample removed from the gun to the defendant' s DNA
reference sample, but did not find a match for Roderick or Troy.
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male that he did not know, was in the backseat with Roderick. The defendant stated
that he sped off after the gunfire and drove to Samuel Street. After Roderick gave
him his gun back, the defendant then exited the vehicle, at which point the defendant
heard more gunshots coming from the vehicle. When asked who shot Roderick and
Troy, the defendant indicated, " I think the big boy shot them, the fat boy." The
defendant did not testify at trial.
ASSIGNMENT OF ERROR NUMBER ONE
In assignment of error number one, the defendant argues that the trial court
erred in denying his challenge for cause to exclude James Belanger, a prospective
juror on panel two. The defendant argues that Mr. Belanger complained of a host of
medical issues that precluded his ability to serve competently as a juror. He contends
that while the prosecutor and trial court made light of Mr. Belanger' s professed
short-term memory loss, such an issue could have hindered his ability to recall
testimony presented over the multi -day trial. Defendant argues that he was
prejudiced by the trial court' s erroneous denial of his challenge for cause, noting that
he was forced to use a peremptory challenge to remove Mr. Belanger and ultimately
exhausted all of his peremptory challenges.
An accused in a criminal case is constitutionally entitled to a full and complete
voir dire examination and to the exercise of peremptory challenges. La. Const. art.
I, § 17( A); La. Code Crim. P. art. 786. The purpose of voir dire examination is to
determine prospective jurors' qualifications by testing their competency and
impartiality and discovering bases for intelligent exercise of cause and peremptory
challenges. State v. Mills, 2013- 0573 ( La. App. 1st Cir. 8/ 27/ 14), 153 So. 3d 481,
486, writs denied, 2014- 2027 ( La. 5/ 22/ 15), 170 So. 3d 982 & 2014- 2269 ( La.
9/ 18/ 15), 178 So. 3d 139. Louisiana Code of Criminal Procedure article 797( 1)
provides that the State or the defendant may challenge a juror for cause on the ground
that the juror lacks a qualification required by law. When a defendant is forced to
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utilize a peremptory challenge to correct an error in denying a challenge for cause
and thereafter exercises all available peremptory challenges on other prospective
jurors, a substantial right of the defendant, guaranteed by the Louisiana constitution,
is affected. State v. Mickelson, 2012- 2539 ( La. 9/ 3/ 14), 149 So. 3d 178, 184- 85. In
such cases, a defendant need make only two showings to establish error warranting
reversal of a conviction and sentence: ( 1) the district court erred in refusing to
sustain a challenge for cause; and ( 2) the defendant exhausted all of his peremptory
challenges. Mickelson, 149 So. 3d at 185. In this case, the defendant exhausted all
of his peremptory challenges and used one of his peremptory challenges to remove
Mr. Belanger. Therefore, we need only determine whether the trial court erred in
denying the defendant' s challenge for cause of Mr. Belanger.
In order to qualify to serve as a juror, a person must not be under interdiction
or incapable of serving as a juror because of a mental or physical infirmity. La. Code
Crim. P. art. 401( A)(4). A person may be challenged for cause on any incapacity
which satisfies the court that the challenged person is incapable of performing the
duties of a juror in the particular action without prejudice to the substantial rights of
the challenging party. La. Code Crim. P. art. 401( B)( 1). Further, a person may be
challenged for cause when reasonable doubt exists as to the competency of the
prospective juror to serve. La. Code Crim. P. art. 401( B)( 2); see also La. Code Crim.
P. art. 787. The question of a juror' s qualifications is addressed to the sound
discretion of the trial judge within the bounds prescribed by law; and, although the
trial judge' s ruling in these matters is subject to review, it will not be disturbed in
the absence of clear abuse. Mills, 153 So. 3d at 488.
A trial court is afforded broad discretion in determining whether to strike a
juror for cause because of the trial court' s ability to form a first -person impression
of prospective jurors during voir dire. State v. Brown, 2005- 1676 ( La. App. 1 st Cir.
5/ 5/ 06), 935 So. 2d 211, 214, writ denied, 2006- 1586 ( La. 1/ 8/ 07), 948 So. 2d 121.
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The trial court " has the benefit of seeing the facial expressions and hearing the vocal
intonations of the members of the jury venire" as they respond to questioning,
whereas the reviewing court reviews the matter only on a transcript in a record.
State v. Dorsey, 2010- 0216 ( La. 9/ 7/ 11), 74 So. 3d 603, 627, cert. denied, 566 U.S.
930, 132 S. Ct. 1859, 182 L.Ed.2d 658 ( 2012). Therefore, the trial court' s rulings
will not be disturbed unless a review of the voir dire as a whole indicates an abuse
of that discretion. State v. Folse, 2018- 0153 ( La. App. 1st Cir. 9/ 21/ 18), 258 So. 3d
188, 197, writ denied, 2018- 1743 ( La. 4/ 22/ 19), 268 So. 3d 300; State v. Tucker,
49, 950 ( La. App. 2d Cir. 7/ 8/ 15), 170 So. 3d 394, 425, writ not considered, 2015-
1517 ( La. 3/ 9/ 18), 237 So. 3d 1193. Likewise, the trial court is vested with great
discretion in determining whether a juror suffering from a physical infirmity is
competent to serve as a juror. State v. Johnson, 36, 014 ( La. App. 2d Cir. 6/ 12/ 02),
821 So. 2d 652, 660. A decision by a trial court that a juror is not so impaired as to
make him incompetent to serve as a juror should not be disturbed unless a review of
the voir dire as a whole indicates an abuse of discretion. Johnson, 821 So. 2d at 660.
Herein, the prospective juror at issue, James Belanger, stated that he was a
fifty -one -year-old high school graduate. When the potential jurors were asked if
there was any reason why they could not serve, Mr. Belanger responded that he has
some health problems" and stated the following: ( 1) he sometimes gets light-
headed and dizzy; ( 2) he takes medication to regulate his heartbeat, diabetes,
cholesterol, blood clotting, and blood pressure; ( 3) and he sometimes has short-term
memory loss.' In expounding on his medication and health issues, Mr. Belanger
noted that he sometimes has to take frequent restroom breaks and that it was hard to
concentrate during spells of dizziness or light-headedness. Regarding his " short-
term" memory loss, when asked if it was an on- going problem, he stated, " Kind of
5 Mr. Belanger also stated that he had no transportation for getting to court every day. However,
this was not the basis for the defendant' s motion for cause below, nor does he raise this issue on
appeal.
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yeah, because I can have a conversation with a person and an hour later, not
remember the conversation." When further asked if his problems were strictly due
to age or other factors, he stated, " Not sure what' s causing all the problems."
In challenging Mr. Belanger for cause, the defense attorney noted his
complaint of dizziness and need for frequent bathroom breaks, but stated that the
biggest concern was his short-term memory loss. In response, the prosecutor
reiterated the issue could be caused by aging, noting that he was about the same age
as Mr. Belanger and had similar experiences at times. Conceding that Mr. Belanger
had some health issues, the prosecutor argued that Mr. Belanger should not
necessarily be excused, noting that numerous people with worse conditions had
served as jurors. In response, the defense attorney argued that prior to deliberations,
Mr. Belanger could possibly forget the evidence presented during the trial. In
denying the challenge for cause, the trial court stated that it listened to Mr.
Belanger' s responses and that it did not seem as though his professed short-term
memory loss was affecting him during voir dire. The court concluded that there was
no indication that Mr. Belanger' s issues would be prejudicial to anyone.
In according great deference to the trial court' s determination, a reviewing
court should not attempt to reconstruct the voir dire by a microscopic dissection of
the transcript in search of magic words or phrases that automatically signify the
juror' s qualification or disqualification. State v. Magee, 2004- 1887 ( La. App. 1st
Cir. 5/ 6/ 05), 916 So. 2d 191, 199, writ denied, 2006- 0028 ( La. 6/ 16/ 06), 929 So. 2d
1277. In this case, we find that the trial court' s denial of the challenge for cause at
issue, based on its observation of Mr. Belanger' s behavior during voir dire, was
within its great discretion. The trial court was in a superior position to observe the
potential juror. There is no indication that Mr. Belanger presented a doctor' s excuse
or that the trial court was unwilling to accommodate him if necessary. Upon
reviewing the voir dire in its entirety, we cannot say that the trial court abused its
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discretion in denying the challenge for cause. See Johnson, 821 So. 2d at 660
wherein a juror claimed she may be inattentive during trial due to attention deficit
hyperactivity disorder ( ADHD); the trial court, nonetheless, denied the defendant' s
challenge to the juror for cause based on its observation that the juror had a " very
attentive"
demeanor during voir and the juror' s failure to submit a doctor' s excuse
documenting her ADHD). Accordingly, we find no merit in assignment of error
number one.
ASSIGNMENTS OF ERROR NUMBERS TWO AND THREE
In a combined argument for assignments of error numbers two and three, the
defendant argues that the trial court erred in allowing the State to elicit testimony
regarding his Facebook messages and subsequently in denying his motion for new
trial based, in part, on the admission ofthe contested testimony. The defendant notes
that the messages were sent after the shootings and were exchanged between the
defendant and several friends, none of whom testified at trial. Though the defendant
admittedly acquiesced in the admission of his own Facebook statements, he objected
to the introduction of statements by his friends as hearsay. While the trial court ruled
otherwise, he argues that the precise purpose of the statements was to prove the truth
of the matter asserted. Noting that the messages were conveyed in dialect, he argues
that they were quite inculpatory and that there was no basis for their admission other
than to prove the defendant' s guilty knowledge. He further contends that Detective
Ryan Trosclair volunteered his opinion that the slang spoken within the messages
included an admission that the defendant had killed someone. The defendant
contends that the testimony was not properly admitted and was highly inflammatory.
The defendant argues that it cannot be said that the guilty verdicts rendered were
surely unattributable to the erroneous admission of the hearsay evidence at issue,
contending that Roderick' s testimony was the only direct evidence of his guilt.
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All relevant evidence is admissible, and evidence that is not relevant is not
admissible. La. Code Evid. art. 402. Louisiana Code of Evidence article 401 defines
relevant evidence as " evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence." Louisiana Code of Evidence article
403 states: " Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay, or waste of time." In
questions of relevancy, much discretion is vested in the trial court, and its rulings
will not be disturbed on appeal in the absence of a showing of manifest abuse of
discretion. State v. Kitts, 2017- 0777 ( La. App. 1st Cir. 5/ 10/ 18), 250 So. 3d 939,
965.
Hearsay is a statement, other than one made by the declarant while testifying
at the present trial or hearing, offered in evidence to prove the truth of the matter
asserted. La. Code Evid. art. 801( C). Hearsay is not admissible except as otherwise
provided by the Code of Evidence or other legislation. La. Code Evid. art. 802. The
Louisiana Supreme Court has long held that the admission of hearsay testimony is
harmless error where the effect is merely cumulative or corroborative of other
testimony adduced at trial and did not contribute to the verdict. State v. Johnson,
389 So. 2d 1302, 1306 ( La. 1980); State v. McIntyre, 381 So. 2d 408, 411 ( La.), cert.
denied, 449 U.S. 871, 101 S. Ct. 209, 66 L.Ed.2d 90 ( 1980); State v. Hilton, 99- 1239
La. App. 1st Cir. 3/ 31/ 00), 764 So. 2d 1027, 1035, writ denied, 2000- 0958 ( La.
3/ 9/ 01), 786 So. 2d 113.
The Sixth Amendment to the United States Constitution guarantees an
accused in a criminal prosecution the right to confront the witnesses against him.
The right of confrontation does not merely allow the defendant to physically
confront the witnesses against him but secures the defendant' s right to cross examine
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the prosecution' s witnesses. Davis v. Alaska, 415 U. S. 308, 315- 16, 94 S. Ct. 1105,
1110, 39 L.Ed.2d 347 ( 1974); State v. Robinson, 2001- 0273 ( La. 5/ 17/ 02), 817
So. 2d 1131, 1135; State v. White, 2017- 0308 (La. App. 1st Cir. 9/ 15/ 17), 228 So. 3d
213, 219. Also, the confrontation clause ofLouisiana' s Constitution specifically and
expressly guarantees the accused the right to confront and cross examine the
witnesses against him. See La. Const. art. I, § 16.
Confrontation errors, however, are subject to a harmless error analysis.
Delaware v. Van Arsdall, 475 U. S. 673, 684, 106 S. Ct. 1431, 1438, 89 L.Ed.2d 6741986); State v. Burbank, 2002- 1407 ( La. 4/ 23/ 04), 872 So. 2d 1049, 1051 ( per
curiam). The correct inquiry is whether the reviewing court, assuming that the
damaging potential of the cross- examination was fully realized, is nonetheless
convinced that the error was harmless beyond a reasonable doubt. Factors to be
considered by the reviewing court include the importance of the witness' testimony
in the prosecution' s case, whether the testimony was cumulative, the presence or
absence of evidence corroborating or contradicting the testimony of the witness on
material points, the extent of cross- examination otherwise permitted, and the overall
strength of the prosecution' s case. Van Arsdall, 475 U.S. at 684, 106 S. Ct at 1438;
State v. Wille, 559 So. 2d 1321, 1332 ( La. 1990). The verdict may stand if the
reviewing court determines that the guilty verdict rendered in the particular trial is
surely unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 279, 113
S. Ct. 20785 2081, 124 L.Ed.2d 182 ( 1993); State v. Broadway, 96- 2659 ( La.
10/ 19/ 99), 753 So. 2d 801, 817, cert. denied, 529 U.S. 1056, 120 S. Ct. 1562, 146
L.Ed.2d 466 ( 2000).
Herein, the defense attorney objected when Detective Trosclair began reading
the defendant' s Facebook messages. Specifically, the defendant' s objection was
made as the State questioned Detective Trosclair as follows:
Q. And what does the message say?
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A. it' s him telling this other individual, `` what' s hap, bro', I
Uh,
would take it as `` whatsup, bro'.
Q. Okay?
A. And `` I' m booling this bitch, blowin' this gas, we gotta run it.' And it
says -
The defense attorney objected at this point. The defense attorney specifically
contested the admission of statements that were not made by the defendant, but
instead made in response to statements made by the defendant. The State repeatedly
noted that the Facebook messages had already been admitted into evidence and that
the responses were in context of the defendant' s own statements. The trial court
overruled the defense attorney' s objection, finding that the responses were not being
offered for the truth of the matter asserted.6
The defendant further, on appeal, references Detective Trosclair' s response
elicited on cross- examination, when the defense attorney asked, " In those text
messages, you say that Michael doesn' t deny; does he ever admit that he shot
somebody in those text messages?" Prior to the detective' s response, the prosecutor
inquired, " You' re asking him for his opinion? I just want to be clear?" Detective
Trosclair then stated, " I can give you my opinion, about him killing a bug." At that
point, after the defense attorney told Detective Trosclair that he did not want his
opinion, but only wanted an answer as to whether the defendant ever said that he
shot someone. Detective Trosclair then responded, " No."
Louisiana' s contemporaneous objection rule provides that an irregularity or
error cannot be availed of after the verdict unless it was objected to at the time of
occurrence. See La. Code Crim. P. art. 841( A); La. Code Evid. art. 103( A)( 1); State
v. Mitchell, 2016- 0834 (La. App. 1st Cir. 9/ 21/ 17), 231 So. 3d 710, 722, writ denied,
6 After the trial court overruled the defense attorney' s objection, Detective Trosclair continued to
read the Facebook messages, in part, as follows: "``( Inaudible) you just caught a body, shit —you
ain' t gotta say that' `` You know whatsup' ... `` Already bro, I' m a piss on that boy for real. I had
killed a bug on live — that' s what I was talking about ( laugh emoji)."' The defense attorney
objected on the grounds of relevancy as Detective Trosclair read the following statement by
someone identified as `` SG Diggs' to the jury: "`` You know Tootie dead, he got shot in his face
five times'; `` I know ( emoji) ( emoji)."'
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2017- 1890 ( La. 8/ 31/ 18), 251 So. 3d 410; State v. Hatfield, 2013- 0813 ( La. App.
4th Cir. 7/ 2/ 14), 155 So. 3d 572, 603, writ denied, 2014- 1648 ( La. 3/ 27/ 15), 162
So. 3d 383. Accordingly, a contemporaneous objection is necessary to preserve the
issue for appellate review. Additionally, it is well settled that defense counsel must
state the basis for his objection when making it and point out the specific error of the
trial court. The grounds of the objection must be sufficiently brought to the attention
of the trial court to allow it the opportunity to make the proper ruling and correct any
claim of prejudice. A defendant is limited on appeal to grounds for an objection
articulated at trial. State v. Patton, 2010- 1841 ( La. App. 1st Cir. 6/ 10/ 11), 68 So. 3d
1209, 1216.
As the State noted during trial and in its reply brief on appeal, the defendant
did not object when the Facebook messages were admitted into evidence prior to the
testimony of Detective Trosclair. Detective Trosclair' s testimony was merely
cumulative of the statements that were already admitted without objection. See
Mitchell, 231 So. 2d at 722. Thus, even assuming that Detective Trosclair' s
testimony contained hearsay, it was cumulative and corroborative of other
uncontested evidence,
and any error in admitting it was harmless. Moreover,
Detective Trosclair' s brief reference to an opinion that he garnered from the
Facebook messages as to whether the defendant admitted to shooting anyone was
not only absent an objection by the defendant, but was further elicited by the defense
attorney and quickly corrected once the question was clarified. Specifically, the
defense attorney interrupted Detective Trosclair before he stated his opinion on the
matter. We further note that the members of the jury were allowed to read the
statements and could draw their own reasonable inferences therefrom. Considering
the foregoing, we find no merit in assignments of error numbers two and three.
CONVICTIONS AND SENTENCES AFFIRMED.
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