194 So. 3d 92
La. Ct. App.2016Background
- Defendant David D. Dove, age 16 at the time, was convicted by a jury of second‑degree murder (one victim killed) and attempted second‑degree murder (one victim wounded) for a November 25, 2009 shooting in Algiers, New Orleans.
- Two eyewitnesses (Terenika Barton, the surviving victim, and Jason Daniels) identified Dove as the shooter; Barton made a photographic lineup ID 11 days after the shooting and later identified Dove at trial.
- No physical evidence (fingerprints or DNA) linked Dove to the crime; ballistics connected the casings at the scene to a gun later seized from Jamal Jones, not directly to Dove.
- Dove moved to suppress Barton’s identification as tainted by a group photo shown by her sister; the trial court denied the motion. The court also admitted jailhouse phone calls recorded while Dove was incarcerated.
- Dove was sentenced to life imprisonment without parole for second‑degree murder and 35 years for attempted second‑degree murder (consecutive; both hard labor, no parole/probation/suspension). He argued insufficient evidence, unreliable identification, improper admission of jail calls, and that his juvenile LWOP sentence violated Miller/Montgomery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to convict | State: eyewitness identifications plus forensic and circumstantial facts suffice for conviction | Dove: defense witnesses placed him at home; argue ID and evidence insufficient | Affirmed—viewing evidence in light most favorable to prosecution, jury reasonably found guilt beyond reasonable doubt |
| Suppression of Barton's ID | State: pretrial photo shown by sister was not police‑suggestive; reliability is jury question | Dove: sister’s photo tainted the later police photo lineup; ID should be suppressed | Denied—court found no impermissible police suggestion; reliability factors (opportunity, attention, certainty) support admission |
| Admission of jailhouse phone calls | State: calls were relevant and probative of gang affiliation/identity | Dove: calls prejudicial, contained others’ statements, poor audio, unfairly portrayed him as gang member | Denied as harmful—court found evidence admissible and, in context of overwhelming ID evidence, any error harmless |
| Juvenile life sentence (Miller/Montgomery) | State: sentencing judge considered juvenile‑specific mitigation and aggravation; discretion supports LWOP here | Dove: age 16; mandatory LWOP excessive and required Miller‑style individualized mitigation | Denied—court held sentencing considered Miller factors; life without parole not constitutionally excessive given facts; Miller/Montgomery guidance satisfied |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (establishes standard for sufficiency of evidence review)
- Manson v. Brathwaite, 432 U.S. 98 (sets factors for reliability of identification challenged as suggestive)
- Perry v. New Hampshire, 565 U.S. 228 (eyewitness reliability generally for jury unless police-arranged suggestiveness)
- Miller v. Alabama, 567 U.S. 460 (prohibits mandatory juvenile LWOP without individualized consideration of mitigators)
- Montgomery v. Louisiana, 577 U.S. 190 (Miller applied retroactively; requires opportunity to show lack of irreparable corruption)
- State v. Green, 84 So.3d 573 (LA App. guidance cited on sentencing delay waiver and sufficiency principles)