State ex rel. J.T.

94 So. 3d 847, 2011 La.App. 4 Cir. 1646, 2012 WL 1744175, 2012 La. App. LEXIS 676
CourtLouisiana Court of Appeal
DecidedMay 16, 2012
DocketNo. 2011-CA-1646
StatusPublished
Cited by12 cases

This text of 94 So. 3d 847 (State ex rel. J.T.) 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. J.T., 94 So. 3d 847, 2011 La.App. 4 Cir. 1646, 2012 WL 1744175, 2012 La. App. LEXIS 676 (La. Ct. App. 2012).

Opinion

ROSEMARY LEDET, Judge.

_|_lThis is a juvenile delinquency case. The juvenile, J.T.,1 appeals his delinquency adjudications for resisting an officer, a violation of La. R.S. 14:108, and illegal possession of a handgun by a juvenile, a violation of La. R.S. 14:95.8, and the related dispositions. For the reasons that follow, we affirm the delinquency adjudications, vacate the dispositions, and remand with instructions.

FACTUAL AND PROCEDURAL BACKGROUND

On March 2, 2011, the State filed a petition charging J.T. with two misdemeanor offenses: illegal possession of handgun by a juvenile and resisting an officer. J.T. pled not guilty. Following four defense continuances and several changes in appointed counsel, the adjudication hearing was held on September 7, 2011. At the hearing, the state’s sole witness was New Orleans Police Department (“NOPD”) Officer Brian Bissell.2 J.T.’s sole witness was Lynndrell Varise, a NOPD communications officer.

Officer Bissell testified that on February 28, 2011, he responded to a dispatch call regarding a “suspicious person” in the area of 1700 block of Urquhart |2Street. According to Officer Bissell, the dispatch call indicated there were “[t]wo suspicious peo-pie, black males, clad in black t-shirts and jeans selling drugs within the block.” When he arrived in the area, Officer Bis-sell observed J.T., who he recognized from previous interactions,3 sitting on the porch of an obviously blighted property, wearing a black t-shirt. Because J.T. matched the dispatch call description and because he was on blighted property, Officer Bissell attempted to conduct an investigatory stop. At that time, Officer Bissell was still seated in the marked police unit he was driving and clad in a NOPD uniform. Officer Bissell testified that he requested J.T. to come to the police unit. In response, J.T. looked right into Officer Bis-sell’s eyes, got up, and ran. Officer Bissell called for back-up assistance and then chased J.T.

While he was running, J.T. grabbed at his waistband and removed a pistol. J.T. threw the pistol about twenty feet into the air. He apparently was attempting to throw the pistol on top of a residence so that Officer Bissell would have trouble reaching it. The pistol landed in some overgrowth on the ground. J.T. then climbed over a fence. As he was climbing over the fence, J.T. dropped his cell phone on the ground. J.T. went into a backyard and escaped to an alley.

Officer Bissell recovered the cell phone and the pistol from the ground. The pistol was loaded when it was recovered. Officer Bissell called a number on the cell phone and verified that it was J.T.’s cell phone. Officer Bissell then contacted the juvenile division because he was aware that J.T. was on probation and was wearing an ankle monitoring bracelet. The juvenile division provided Officer RBissell with J.T.’s [851]*851location. Officer Bissell then obtained a warrant for J.T.’s arrest.

On cross-examination, Officer Bissell acknowledged that when he arrived in the area he saw J.T. sitting alone and that he did not see J.T. selling drugs. He testified that the incident occurred at about 5:30 p.m., which was still daylight. Although there were multiple people in the area, Officer Bissell acknowledged that he did not interview any potential witnesses or take any statements. As to the dispatch call, Officer Bissell did not know whether or not the tip regarding a suspicious person was from an anonymous caller. In response to the question whether a dispatch call actually existed, Officer Bissell replied: “I received a call, a dispatch to the location in regard to a signal 107, which is a police department code for a suspicious person in regards to two black males selling drugs, narcotics in the block.”

J.T.’s sole witness was Lynndrell Varise, a NOPD communications officer who answers 911 calls and also serves as custodian of records.' Ms. Varise identified the incident recall, which is a printout of an incident, and the dispatch tape associated with the item number under which J.T. was arrested. She testified that the incident recall did not reference either a 911 call or a description that dispatch sent out regarding a suspicious person. Rather, the incident recall showed only a “unit generated item”; she explained: “a unit called over the air and asked for this item, it was a unit generated item and he gave his location and what he wanted it to be made.”

Ms. Varise acknowledged that the suspicious person dispatch call could have been made but not recorded as associated with the item number under which J.T. was arrested. Ms. Varise further acknowledged that an operator may get a 911 call, I ¿send out the information, and the officer may call in for another item number for a signal. She agreed that this is what “it sounds like” occurred in this case. She noted that on the dispatch tape in question, which was for the unit generated item, the officer referred in the beginning to a suspicious person.

Ms. Varise testified that she was unsure if an officer would have recorded another item number that was associated with an incident. She also testified that “there’s such a thing as a unit history that is recorded in our systems where everything that a police officer goes out on it’s recorded.” She indicated that obtaining the unit history was a possible way. to get the missing information regarding whether there actually was a dispatch call.4

Following the hearing, the trial court adjudicated J.T. delinquent on both counts. The trial court noted that Officer Bissell was “an eye witness to the defendant throwing a handgun in the air and finding that [handgun] along with a cell phone.”

On September 28, 2011, a disposition hearing was held. The trial court imposed a disposition of placement with the Office of Juvenile Justice for a period of one year as to the illegal possession of handgun by a juvenile adjudication, La. R.S. 14:95.8, and six months as to the resisting an officer adjudication, La. R.S. 14:108. Both dispositions were made to run concurrent with each other and concurrent with a disposition imposed on J.T. in St. Bernard Parish. On October 7, 2011, the trial court issued a Supplemental and Amending Judgment, which changed the dispositions on the two counts at issue from running | ^concurrently to consecutively, resulting in an eighteen [852]*852month sentence, but maintained that the dispositions in this case were to run concurrent with the disposition in the St. Bernard case. This appeal followed.

DISCUSSION

On appeal in juvenile delinquency cases, this court’s review extends to both the law and the facts. State ex rel. C.J., 10-1350, p. 4 (La.App. 4 Cir. 2/9/11), 60 So.3d 46, 49 (citing State in Interest of Batiste, 367 So.2d 784, 788 (La.1979)); State in the Interest of C.D., 11-0121, p. 6 (La.App. 4 Cir. 6/29/11), 69 So.3d 1219, 1223 (noting that under La. Const, art. V, § 10(B) appellate courts review both law and facts in juvenile delinquency cases). Like in civil cases, “a factual finding made by a trial court in a juvenile adjudication may not be disturbed by an appellate court unless the record evidence as a whole does not furnish a basis for it.” State in the Interest of C.D., supra (citing Batiste, supra). Like in civil cases, the clearly wrong or manifest error standard of review applies in determining whether sufficient evidence exists to meet the beyond a reasonable doubt burden of proof.

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Cite This Page — Counsel Stack

Bluebook (online)
94 So. 3d 847, 2011 La.App. 4 Cir. 1646, 2012 WL 1744175, 2012 La. App. LEXIS 676, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-jt-lactapp-2012.