State ex rel. D.S.

83 So. 3d 1131, 11 La.App. 5 Cir. 416, 2011 WL 6821390, 2011 La. App. LEXIS 1616
CourtLouisiana Court of Appeal
DecidedDecember 28, 2011
DocketNo. 11-KA-416
StatusPublished
Cited by11 cases

This text of 83 So. 3d 1131 (State ex rel. D.S.) 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.S., 83 So. 3d 1131, 11 La.App. 5 Cir. 416, 2011 WL 6821390, 2011 La. App. LEXIS 1616 (La. Ct. App. 2011).

Opinion

CLARENCE E. McMANUS, Judge.

| gDefendant appeals from his adjudication as a delinquent for armed robbery in violation of LSA-R.S. 14:64, and his disposition of placement in the Office of Juvenile Justice, Secure Care, for three years. For the reasons that follow, we affirm the adjudication and the disposition.

On November 24, 2010, D.S.,1 age 16, was charged by petition in juvenile court with armed robbery in violation of LSA-R.S. 14:64. The adjudication hearing was held on January 19, 2011. During the hearing, D.S. moved for a directed verdict, which was denied. At the conclusion of the hearing, the judge adjudicated D.S. delinquent as charged. After the denial of defendant’s motion for new trial, the court entered a judgment of disposition that D.S. be placed in the Office of Juvenile Justice, Secure Care, for three years.2 Following the denial of his motion to reconsider and reduce his sentence as excessive, defendant’s motion for appeal was granted.

The following facts were elicited from the trial in this matter. On November 17, 2010, Herman Stevens, an employee of Domino’s Pizza, went to 1641 42nd Street, Apartment B, to deliver pizzas and was the victim of an armed robbery.

|sThe order for the pizza was placed at 5:55 p.m. from phone number (504) — 487— 9752. Mr. Stevens testified that he was supposed to deliver two large pizzas to someone named “Corey.” The total was $30.96, which would be paid for with cash upon delivery. He testified that he arrived at the address and a young black male, who was approximately 16 years old, was standing outside of the apartment. The person asked Mr. Stevens if they were hiring and then asked about the price of the pizzas. Mr. Stevens told him the price was $30.96, and the young person put his hand in his pocket and kept it there.

Mr. Stevens testified that while waiting for the person to hand him the money for the pizzas, he observed two other individuals come from the walkway off of “Newport.” He described the individuals, who were both wearing “hoods.” One of the individuals was black and was described as “kind of tall.” He appeared to be about 18 years old. The other individual was short, about 5'6", and appeared to be either 16 or 18 years old. Mr. Stevens described him as having light skin and weighing between 150 and 175 pounds. He believed the individual was smaller than him. Mr. Stevens said his own weight was 260 and that he was 6'3". He described the individual’s clothing as a cotton white or gray hooded jacket with black pants or jeans. He explained the jacket as a “sweatshirt type” with a zipper. Mr. Stevens testified that he realized that this individual was Spanish when he began speaking with an accent and said, “Give that shit up.”

Mr. Stevens testified that the Spanish individual pointed a gun at him the entire time he was making the delivery. He explained that he went into his bag and got the pizzas. The gunman told him to give the pizzas to the person who had been standing in front of the apartment door. Mr. Stevens gave the pizzas to him and walked away. While walking away, he [1134]*1134heard the robber say ‘You give that shit up too.”

14Mr. Stevens testified that he was mostly concerned with the black gun and, therefore, was not looking at the gunman’s face. Mr. Stevens was not able to identify the robber in a photographic lineup because he did not see the robber’s face, but he was able to identify the robber by his voice. At the adjudication hearing, D.S. repeated the statements three times each that Mr. Stevens testified that the Spanish male said during the robbery. Mr. Stevens testified that D.S.’s voice sounded like the voice he heard the night of the robbery. Also, D.S. stood up and Mr. Stevens agreed that D.S. had the same build and was the same height as the Spanish male that robbed him. On cross-examination, Mr. Stevens was asked if he would be surprised to learn that D.S. was 5'2" and weighed 145 pounds, noting that he said earlier that the robber was 5'6" and between 150 and 175 pounds.

Detective Harold Pendergast of the Kenner Police Department was involved in the robbery investigation. He testified that the investigation into the phone number used to order the pizza delivery revealed that the cell phone used belonged to Reinaldo Delgado Sanchez, D.S.’s father. The phone records showed that the number (504)-487-9752 called Domino’s. The records revealed that the address of D.S.’s father was 4201 Arkansas. The records showed that the first call into Domino’s came at 5:45 and then the second call was at 5:52. Domino’s then called the number back at 5:56.

Detective Pendergast went to meet with D.S.’s father at 4201 Arkansas. The homeowner informed him that the father had been renting from her but had since moved out. However, at that time, D.S.’s father pulled up in his vehicle. Officer Junie Munoz was able to serve as a Spanish translator. The State presented a map that included the 4201 Arkansas location as well as the location of the robbery. Detective Pendergast testified that the two locations were both “within the block.” | ^Detective Pendergast learned from D.S.’s father that he had a new phone and gave his other phone to his son who lived at 4111 Delaware Avenue, Apartment 28, with his mother.

Detective Pendergast testified that he went to this address to look for the phone, the clothing described in the robbery, and a possible weapon. He testified that D.S. fit the description of the Spanish male who committed the robbery. Also, this address was about two-tenths of a mile from the location of the robbery.

D.S.’s mother consented to a search of the residence. Detective Pendergast recovered clothing from the residence. He found a gray sweatshirt upstairs on the stair rail near D.S.’s bedroom and a pair of dark jeans or blue jeans inside of D.S.’s bedroom. He believed the sweatshirt, could be cotton, but noted that the sweatshirt did not have a zipper. Although no weapon was discovered, a projectile was found. D.S.’s cell phone was also retrieved. Detective Pendergast testified that this was the phone that was used to make the calls to Domino’s.

D.S. was arrested on charges of armed robbery. Detective Pendergast testified that D.S. told him that they “couldn’t prove anything with his phone number.”

D.S.’s father testified that he had transferred his phone to his son, who lived at 4111 Delaware, Apartment 11, about seven months before. It was transferred to his son before November 17, 2010. The phone number was (504)^487-9752.

Officer Mark Stein of the Kenner Police Department testified that he was a patrol officer assigned to investigate the robbery. He learned from other officers and from [1135]*1135the investigation that the location where the robbery occurred was a vacant residence.

D.S. testified that he weighs 145 pounds and is about 5'2" or 5'2 ½". D.S. testified that he never had a gun. He explained the bullet that was found in his |fihouse was from when he was shot in the leg with a “40 Gloek” when he was 14 or 15 years old. He explained that he went to a party and got into an argument with someone. D.S. said that about 5:00 on November 17th, he was playing basketball in the parking lot next to his house with his friend, J.B., against others for money. He said that there was one light, but no big lights to play after dark. He agreed that the time had changed and it would have been dark when he was still playing at 5:55 p.m. He then said there were lights on each side.

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Bluebook (online)
83 So. 3d 1131, 11 La.App. 5 Cir. 416, 2011 WL 6821390, 2011 La. App. LEXIS 1616, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-ds-lactapp-2011.