State ex rel. L.V.

66 So. 3d 558, 2010 La.App. 4 Cir. 1789, 2011 La. App. Unpub. LEXIS 336, 2011 WL 2228337
CourtLouisiana Court of Appeal
DecidedMay 25, 2011
DocketNo. 2010-CA-1789
StatusPublished

This text of 66 So. 3d 558 (State ex rel. L.V.) 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. L.V., 66 So. 3d 558, 2010 La.App. 4 Cir. 1789, 2011 La. App. Unpub. LEXIS 336, 2011 WL 2228337 (La. Ct. App. 2011).

Opinion

EDWIN A. LOMBARD, Judge.

|2The juvenile defendant, L.V., appeals his adjudication as a delinquent. After review of the record in light of the applicable law and arguments of the parties, we affirm the judgment of the juvenile court.

Relevant Facts and Procedural History

On September 4, 2010, Eugene Hanson reported his Ford F350 stolen. Later that evening, Officers Tony Burrell and Gernell Taylor of the New Orleans Police Department (NOPD) observed the stolen vehicle in a Rite Aid parking lot at the intersection of Elysian Fields Avenue and Milton Street. The officers, along with three other police units, set up surveillance of the parking lot and, after watching L.V. and two other individuals get into the vehicle and exit the parking lot, followed it down Elysian Fields Avenue. Officers Burrell and Taylor activated the light of their patrol unit as a signal to stop and the stolen truck accelerated. Officer Burrell saw the front seat passenger jump out of the moving vehicle. The driver of the truck then attempted an illegal right turn onto St. Denis Street, but hit a tree. The driver and the rear seat passenger jumped out of the vehicle and began running. Officer Burrell chased the driver down St. Denis Street. When he failed to stop after repeated orders to do so, Officer Burrell electrically stunned the driver |3with a ta-ser gun as he was attempting to climb a fence. The driver, subsequently identified [561]*561as L.V., was transported to a hospital for treatment of a laceration on his head before being taken to the police station.

Several days later, on September 9, 2010, L.V. was charged by delinquency petition with violations of La.Rev.Stat. 14:68.4, unauthorized use of a motor vehicle, and La.Rev. Stat. 14:108.1(0, aggravated flight from an officer. The adjudication hearing was held on November 29, 2010. Mr. Hanson and Officer Burrell testified on behalf of the State and the juvenile’s fifteen year old sister testified for the defense.

Officer Burrell testified to the events of September 4, 2010, identifying L.V. as the driver of the vehicle he chased and arrested. He conceded on cross-examination that L.V. received a laceration on his head requiring stitches but asserted that the laceration was the result of falling from the fence, not from being beaten with a baton. Officer Burrell stated that the police unit camera was inoperable on the evening of the incident because it had not been properly downloaded by personnel at the police station. He conceded that, although the taser gun automatically shoots high resolution video when engaged, he had not personally insured that the assistant district attorney in this matter received a copy of the taser video in this case. Finally, Officer Burrell admitted that there was an inconsistency in the police report as to the color and type of pants L.V. was wearing on the day of his arrest, but he insisted L.V. was the driver of the stolen vehicle.

Mr. Hanson testified that his truck was stolen from his residence between 4 and 4:30 p.m. on September 4, 2010. He stated that he did not know L.V. and had|4not given him authority to drive his truck. He further stated that examination of the truck after it was recovered indicated that it had been started without a key.

Defense counsel moved for a judgment of acquittal at the close of the State’s case, arguing that the State failed to prove the charges beyond a reasonable doubt because Officer Burrell testified that L.V. was wearing blue shorts and the police report indicated L.V. was wearing tan shorts on the night of the incident. The motion was denied. The sole witness presented by the defense was the juvenile’s sister who testified that the night her brother was arrested, she attended the same party and, shortly after he left the party, someone called and told her he was being chased down the street by the police. She walked outside and saw her brother being “tazed” and beaten by police. She conceded she did not know who was giving the party or how her twelve-year old brother got to the party or planned to get home.

The juvenile court adjudicated L.V. a delinquent as charged on the offense of unauthorized use of a motor vehicle in violation of La.Rev.Stat. 14:68.4 and on the lesser charge of flight from an officer in violation of La.Rev.Stat. 14:108.1. L.V. was placed on active probation for periods of, respectively, one year and six months. This appeal follows.

Assignment of Error 1

The defense first argues that the juvenile was denied due process in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) because the State did not turn over film from the police unit or taser videos. Brady did not, however, establish a general rule of criminal discovery and, accordingly, “the Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense.” Kyles v. Whitley, 514 U.S. 419, 436-437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (citation omitted); State v. Anderson, 2011-0189 (La.3/4/2011), 56 [562]*562So.3d 236. Rather, for constitutional purposes, the issue is materiality which requires a “showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 435, 115 S.Ct. 1555. Although, as noted in Anderson, supra, a prudent prosecutor will resolve doubtful questions in favor of disclosure, in the absence of a showing of materiality, there is no sanction for the failure to turn over evidence. In this case, there has been no showing that the taser video or police unit videos will undermine confidence in the verdict. The taser video, taken after the stolen truck was abandoned and at the end of the flight from an officer, clearly could not produce exculpatory evidence related to the charge of flight from an officer. With respect to the unauthorized use offense, to the extent defense counsel suggests that the police unit videos might show someone other than L.V. driving the stolen truck, this is clearly immaterial. He was apprehended jumping out of the stolen truck and does not deny he was in truck and, thus, using it for transportation, so whether his use of the vehicle was as a driver or merely as a passenger does not appear in these circumstances to be material to the issue of whether it was unauthorized. Accordingly, the juvenile’s due process rights were not denied in violation of Brady, supra, and this assignment of error is without merit.

Assignment of Error 2

Next, the defense challenges the sufficiency of the evidence, arguing that the State failed to establish that the truck was owned by Mr. Hanson or that the juvenile had the requisite intent.

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Related

Brady v. Maryland
373 U.S. 83 (Supreme Court, 1963)
Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
Kyles v. Whitley
514 U.S. 419 (Supreme Court, 1995)
State v. Dunbar
978 So. 2d 899 (Supreme Court of Louisiana, 2008)
State v. Brown
907 So. 2d 1 (Supreme Court of Louisiana, 2005)
State, in Interest of Hn
717 So. 2d 666 (Louisiana Court of Appeal, 1998)
State in Interest of Batiste
367 So. 2d 784 (Supreme Court of Louisiana, 1979)
Jenkins v. Baldwin
801 So. 2d 485 (Louisiana Court of Appeal, 2001)
State v. Anderson
56 So. 3d 236 (Supreme Court of Louisiana, 2011)

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Bluebook (online)
66 So. 3d 558, 2010 La.App. 4 Cir. 1789, 2011 La. App. Unpub. LEXIS 336, 2011 WL 2228337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-lv-lactapp-2011.