State ex rel. D.D.

86 So. 3d 171, 11 La.App. 3 Cir. 1384, 2012 La. App. LEXIS 266, 2012 WL 716464
CourtLouisiana Court of Appeal
DecidedMarch 7, 2012
DocketNo. 11-1384
StatusPublished
Cited by3 cases

This text of 86 So. 3d 171 (State ex rel. D.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. D.D., 86 So. 3d 171, 11 La.App. 3 Cir. 1384, 2012 La. App. LEXIS 266, 2012 WL 716464 (La. Ct. App. 2012).

Opinion

AMY, Judge.

liThe State filed a petition charging the juvenile defendant with second degree murder and aggravated battery. After an adjudication hearing, the trial court adjudicated the juvenile as delinquent and imposed a disposition of secure placement until the juvenile attained the age of twenty-one without benefit of parole, probation, suspension of imposition or execution of sentence, or modification of sentence. The juvenile appeals. For the following reasons, we affirm and remand the matter to the trial court with instructions.

[173]*173Factual and Procedural Background

After Joseph Nelson died as a result of a single stab wound to his heart, the juvenile defendant, D.D.,1 was taken into custody. The State filed a petition alleging that D.D. should be adjudicated as delinquent on the basis that he committed second degree murder, a violation of La.R.S. 14:30.1, and aggravated battery, a violation of La.R.S. 14:34. The State subsequently sought to transfer D.D., who was fourteen years old at the time of the incident, to adult court. However, the trial court denied the State’s motion to transfer.

A delinquency hearing was held on May 11 and 12, 2011, and June 24, 2011, on the second degree murder charge.2 The evidence presented at the hearing | awas that, on September 18, 2010, D.D. was hanging out with a group of boys, which included D.K.M., KM., T.S., D.M., M.M., and the victim, Joseph Nelson. The group was playing basketball and rambling around their neighborhood in Lafayette, Louisiana. All of the boys testified that D.D. was “fussing” with Mr. Nelson. There was testimony that D.D. wanted Mr. Nelson’s watch and cell phone. As the boys were walking to a local supermarket, D.D. and Mr. Nelson got into a fistfight after D.D. continued to state that he was going to take the watch and the cell phone. According to the testimony, Mr. Nelson bloodied D.D.’s lip and D.D. lost the fight.

All of the boys, with the exception of D.K.M., testified that, after losing the fight, D.D. left the group and returned with a shotgun. According to those witnesses, D.D. stated that he did not want to shoot Mr. Nelson with the gun, but that he wanted to hit him on the head with it and send him to the hospital. Eventually, some of the group convinced D.D. to put the gun away. D.D. again left the group, but returned a short time later. D.K.M., K.M., and M.M. testified that D.D. was smoking a “blunt,” and that D.D. stated something like after he “hit the weed, [he was] going to kill him.” There was testimony that D.D. approached Mr. Nelson, pulled a knife out of his back pocket, and started swinging it at Mr. Nelson. Although Mr. Nelson attempted to back away, one of D.D.’s blows connected. According to the testimony, D.D. fled and Mr. Nelson started running | ..¡towards Cameron Street, where he eventually collapsed. Although Mr. Nelson was trans[174]*174ported to the hospital, he died as a result of the wound. The autopsy report indicated that Mr. Nelson suffered a single stab wound to the heart.

The trial court adjudicated D.D. delinquent on the count of second degree murder. After a disposition hearing, the trial court ordered D.D. “confined in secure placement until the child attains the age of 21 years, without benefit of parole, probation, suspension of imposition or execution of sentence, or modification of sentence.” The trial court also denied D.D.’s request that he receive credit for time served.

D.D. appeals, asserting that:

1) The juvenile judge erred in concluding that the State proved that the killing was not justified, as defined in La.Code Crim. P. art. 20.
2) The juvenile judge erred in not concluding that D.D.’s voluntary intoxication precluded the presence of specific intent, a necessary element of the crime of second degree murder.

Discussion

Errors Patent

Although the Louisiana Children’s Code is silent as to whether an error patent review is appropriate for a juvenile criminal proceeding, this court has previously found that La.Ch.Code art. 104 and La.Code Crim.P. art. 920 mandate such a review. See State in the Interest of S.M., 11-271 (La.App. 3 Cir. 6/8/11), 67 So.3d 1274; State in Interest of C.D., 95-160 (La.App. 5 Cir. 6/28/95), 658 So.2d 39. We note several errors patent.3

First, the petition does not note D.D.’s place of birth as required by La.Ch. Code art. 845. However, this is a defect as to form only. La.Ch.Code art. [4749(B). Louisiana Children’s Code Article 748(D) provides that “[fjailure to comply with formal requirements of this Article shall not be grounds for dismissal of a petition or invalidation of the proceedings unless it results in substantial prejudice.” D.D. has not alleged any prejudice as a result of the defect. Therefore, we find this error to be harmless. See State ex rel. J.W.D., Jr., 05-1135 (La.App. 3 Cir. 2/1/06), 921 So.2d 1165.

Second, the record does not indicate that D.D. was informed of his rights when he appeared to answer the petition, as required by La.Ch.Code art. 855.4 However, D.D. was represented by counsel and denied all the charges against him. The fifth circuit has found that, in those circumstances, “the juvenile’s rights were adequately protected and the fact that he was not so advised caused him no preju[175]*175dice in connection with his rights.” State in the Interest of J.G., 94-194, p. 10 (La.App. 5 Cir. 7/26/94), 641 So.2d 633, 639. Thus, we find that any error in failing to advise D.D. of his rights in this case was harmless. See also State in the Interest of K.G., 34,535 (La.App. 2 Cir. 1/24/01), 778 So.2d 716.

Third, the record does not indicate that the trial court informed D.D. of the 15two-year prescriptive period for filing an application for post-conviction relief, as required by La.Code Crim.P. art. 930.8. As stated in State ex rel. D.J., 08-345, p. 15 (La.App. 3 Cir. 8/28/08), 995 So.2d 1, 11, “[a]lthough the Children’s Code contains no similar provision, this court has previously held that this notice should be given.” Accordingly, the trial court is ordered to provide appropriate written notice to D.D. within ten days of the rendition of this opinion and to file written proof in the record that D.D. received the notice. See State v. Guillory, 07-422 (La.App. 3 Cir. 10/31/07), 970 So.2d 670.

Fourth, the record indicates that the trial court denied D.D.’s request for credit for time served. Louisiana Children’s Code art. 898(A) requires that “[t]he court shall give a child credit for time spent in secure detention prior to the imposition of disposition.” However, because D.D.’s disposition is secure placement is until he has reached the age of twenty-one years, and not for a term of years, we find this error is harmless. See State in the Interest of D.S., 95-1019 (La.App. 5 Cir. 4/16/96), 673 So.2d 1123, writ denied, 96-1237 (La.6/21/96), 675 So.2d 1086.

Finally, the minutes from D.D.’s disposition hearing require correction. The transcript indicates that the trial court imposed “confinement in secure placement until [D.D.

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Bluebook (online)
86 So. 3d 171, 11 La.App. 3 Cir. 1384, 2012 La. App. LEXIS 266, 2012 WL 716464, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-dd-lactapp-2012.