State ex rel. C.D.

69 So. 3d 1219, 2011 La.App. 4 Cir. 0121, 2011 La. App. LEXIS 836, 2011 WL 2581752
CourtLouisiana Court of Appeal
DecidedJune 29, 2011
DocketNo. 2011-CA-0121
StatusPublished
Cited by3 cases

This text of 69 So. 3d 1219 (State ex rel. C.D.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. C.D., 69 So. 3d 1219, 2011 La.App. 4 Cir. 0121, 2011 La. App. LEXIS 836, 2011 WL 2581752 (La. Ct. App. 2011).

Opinion

EDWIN A. LOMBARD, Judge.

_JjThe defendant, C.D., a juvenile, appeals a judgment of the Juvenile Court for the Parish of Orleans, adjudicating him delinquent for the charge of distribution of heroin in violation of La.Rev.Stat. 40:966(A)(1). For the reasons provided below, we reverse the judgment of the trial court.

Procedural History

On June 80, 2010, C.D. was charged by delinquency petition with violating La.Rev. Stat. 40:966, relative to the distribution of heroin. An adjudication hearing was held on September 30, 2010. At the conclusion of the hearing, C.D. was found to be delinquent for the crime of distribution of heroin. The juvenile court held a disposition hearing on November 18, 2010, and C.D. was committed to the Department of Public Safety and Corrections for a period of time not to exceed one year, with the imposition of the sentence suspended pending appeal to this Court.

At the adjudication hearing, Officer Rafael Dobard, an assigned member of the 4th District Narcotics Unit of the New Orleans Police Department, testified that on or around June 28, 2010, he received information based on a confidential informant’s tip that heroin and unidentified pills were being sold from a house located at 2033 Wagner Street in New Orleans, near the Fisher Housing ^Development. At approximately 10:30 a.m., Officer Do-bard elected to set up a surveillance unit on that location to investigate any possible drug trafficking or exchanges at this location. Additional police officers were on standby to assist Officer Dobard in this surveillance action and were to act as the “take-down team” of any individuals who may have just engaged in a transaction from the house under surveillance.

During the surveillance period, Officer Dobard testified that he observed one or two transactions taking place wherein unknown individuals would walk up to the porch on 2033 Wagner Street, engage in brief conversation with a black male with a brown-skinned complexion and wearing a black t-shirt and black shorts. Officer Do-bard could view the approaching individuals and the black male exchange currency for an item, but was unable to determine the denomination of currency or the exact product being exchanged. Officer Dobard was using binoculars during this surveillance of the 2033 Wagner house.

[1221]*1221In the early afternoon, Officer Dobard observed a black female walking up to 2038 Wagner and meeting with the black male wearing black shorts and a black t-shirt. The two individuals walked to the side of the house, where the black male moved his hand into his “crotch” area to retrieve an item. The black female gave him currency for the item. The black female then returned to her vehicle and drove away from the residence.

Officer Dobard notified the standby officers of what he believed to be a narcotics transaction by describing the black female and her vehicle. Officer Dobard testified that he viewed her driving off with the use of binoculars, and did not see any other person in the vehicle with her. Members of the standby team stopped the black female, later determined to be Mary Charles. Two detectives | .¡observed Ms. Charles in possession of a foil pack of heroin that she attempted to throw away. After a field test concluded that the seized item was heroin, the standby team notified Officer Dobard that they seized heroin from Ms. Charles and placed her under arrest.

At this point, Officer Dobard said that he left the surveillance location to secure a search warrant for the 2033 Wagner Street house, and that another officer maintained surveillance during his 30-45 minute absence. At approximately 4:06 p.m., the officers returned to the residence to execute the search warrant. Officer Dobard was part of this police team returning to the house, and while there were individuals in the house at 2033 Wagner, he did not see the black male wearing black shorts and a black t-shirt who was engaging in the transactions he had viewed earlier during surveillance. Officer Do-bard testified that he came out of the house and saw the black male now across the street from 2033 Wagner, and that the person was now wearing a yellow, black, and white plaid shirt and blue jeans. The person identified by Officer Dobard was C.D. C.D. was placed under arrest, and one hundred and thirty-eight dollars were seized from his person as evidence. No drugs or drug contraband was seized from his person. Other individuals, such as the confidential informant or Ms. Charles, were not provided the opportunity by Officer Dobard or any other police officers to identify C.D.

Following the state’s additional police witnesses, who testified as to the arrest of Ms. Charles, defendant moved for acquittal, arguing that only Officer Dobard had identified C.D. as the black male making alleged drug transactions at 2033 Wagner Street, and that the state had presented no evidence tying Ms. Charles’ arrest and possession of heroin to C.D. The trial court denied defendant’s motion, and the defense called C.D.’s mother, K.D., as their first witness.

_JjThe defendant’s mother testified that C.D. was helping her move during the day, and that he had only left her to go to a house known as “the candy lady’s house” on Hendee Street, a house which was across the street from where she was moving from. K.D. testified that she did not see her son go to 2033 Wagner Street. She further testified that C.D. was taken from the “candy lady’s” house and brought to Wagner Street by the police, where they then arrested him.

The defense then called Annaise Esteen, who lives at 2033 Wagner Street and was arrested on June 28, 2010. Ms. Esteen testified that she had pled guilty to possession of a stolen firearm and possession of “pills” stemming from this search. Ms. [1222]*1222Esteen testified that she knows C.D. from the neighborhood, but that C.D. has never been to her house or porch, and that she had never invited C.D. to her house. Ms. Esteen further testified that a different individual, who looks similar to C.D., was selling on her porch. She did not say anything to this individual standing on her porch. She described this man as having a “red” skin complexion and a chipped tooth.

James Baker testified that he was also at the “candy lady’s” house and was arrested at the same time as C.D. Mr. Baker said that he never saw C.D. go to Wagner Street.

C.D. then took the witness stand and said that he was arrested because “they thought I looked like somebody.” When he was arrested, he told police they had the wrong person. He denied being on Wagner Street at any time on June 28, 2010. He testified that he was arrested at the “candy lady’s house” and taken to Wagner Street. C.D.’s mother once again took the stand, and testified that a man named “Earnest” was probably the individual that the police and others around the ^neighborhood confuse her son with. She described “Earnest” to be “red” in skin tone.

Following closing arguments, the trial court found C.D. to be delinquent for the charged offense of distribution of heroin. The trial court sentenced C.D. to one year in the Department of Public Safety and Corrections, but suspended imposition of the sentence pending this appeal. C.D. then brought forth this timely appeal.

Assignments of Error

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Related

State of Louisiana in the Interest of C.N.
Louisiana Court of Appeal, 2022
State in the Interest of C.D.
93 So. 3d 1272 (Supreme Court of Louisiana, 2012)
State ex rel. J.T.
94 So. 3d 847 (Louisiana Court of Appeal, 2012)
State ex rel. A.H.
80 So. 3d 1203 (Louisiana Court of Appeal, 2011)

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Bluebook (online)
69 So. 3d 1219, 2011 La.App. 4 Cir. 0121, 2011 La. App. LEXIS 836, 2011 WL 2581752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-cd-lactapp-2011.