State ex rel. T.H.

52 So. 3d 275, 2010 La.App. 4 Cir. 0962, 2010 La. App. LEXIS 1614
CourtLouisiana Court of Appeal
DecidedNovember 24, 2010
DocketNo. 2010-CA-0962
StatusPublished
Cited by3 cases

This text of 52 So. 3d 275 (State ex rel. T.H.) 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. T.H., 52 So. 3d 275, 2010 La.App. 4 Cir. 0962, 2010 La. App. LEXIS 1614 (La. Ct. App. 2010).

Opinion

PAUL A. BONIN, Judge.

|;T.H. appeals his adjudication of delinquency for second degree kidnapping, a violation of La. R.S. 14:44.1 B(l), for which he was committed to secure care for a period not to exceed two years. In this appeal, T.H. argues that the prosecution misrepresented a response to the Bill of Particulars that resulted in prejudice to his defense. T.H. also argues that there was insufficient evidence to support his delinquency adjudication for second degree kidnapping beyond a reasonable doubt. Because we agree with the juvenile judge that the prosecution supplemented its answer to the Bill of Particulars the week prior to the adjudication hearing, and because we find that the juvenile judge was not clearly wrong in finding beyond a reasonable doubt that T.H. committed the offense, we affirm the adjudication as well as the disposition. We explain our decision below.

I

Sometime after midnight Ali Yencha, a young tourist in New Orleans, was headed toward her Mid-City hostel. Walking on the neutral ground of Canal Street, she crossed paths with T.H., who called out to her. Ignoring him, Ms. ^Yencha continued on. The next moment, T.H. had grabbed her from behind, and she began to struggle and scream. To stop her screaming, T.H. placed one hand over her mouth. T.H. kept his other arm across her throat, lifted her off her feet, and carried and dragged her across Canal Street and then some distance down North Rocheblave Street. The next thing Ms. Yencha knew, T.H. was running away. She sustained an injury to the back of her head in the struggle.

This attack was witnessed by Detective Harry Stovall, who was driving down Ca[277]*277nal Street at the time. Detective Stovall, who was off-dnty on that early morning, observed T.H. approach Ms. Yencha from behind, lift her off her feet, and carry her away as she struggled against him. Detective Stovall made a U-turn and followed T.H. and Ms. Yencha to North Rocheblave Street, where T.H. had by that time thrown Ms. Yencha to the ground. He was punching and choking her. When Detective Stovall pulled his vehicle to the area where T.H. was attacking Ms. Yen-cha, T.H. jumped up and ran back toward Canal Street. Detective Stovall initially pursued T.H. on foot and called for assistance.

T.H. was soon discovered hiding behind a large bush or tree near the 100-block of South Rocheblave Street by Officer Isiah Shannon and his partners. Once T.H. had been apprehended, both Detective Stovall and Ali Yencha identified him near the scene as the perpetrator.

II

In order to adequately review T.H.’s allegation that his defense has been prejudiced by a discovery violation, we look more closely at the procedural history of this case. After his arrest on November 28, 2009, T.H. was charged by ^^delinquency petition on December 8, 2009, with one count of second degree kidnapping. On December 10, 2009, a Motion for Pre-Trial Discovery and Bill of Particulars was filed by T.H.’s prior trial counsel, requesting information regarding “Identifications of Youth and Others,” particularly the names and addresses of “all witnesses who have made an out-of-court identification.” On December 30, 2009, the prosecution responded to the motion, stating in part that, “[a]t this time, the state is not aware of any identifications of the youth or others.” The police report, which contains information of out-of-court identifications of T.H., however, had also been given to defense “counsel of record” by this date.

On January 20, 2010, T.H.’s present counsel enrolled as his trial counsel. On February 24, 2010, the prosecution amended its discovery answer with respect to out-of-court identifications, instructing the defense to “[pjlease see police report regarding any identifications made of youth and others.”

At the adjudication hearing on March 2, 2010, defense counsel gave an opening statement in which he related that reasonable doubt exists because there were no out-of-court identifications of T.H. During the hearing he continued to object to the introduction of any testimony of any out-of-court identifications made on the morning of the attack. Arguing surprise, defense counsel denied ever being served with the prosecution’s supplemental answer to the bill of particulars.

T.H. argues that the prosecution’s failure to reference the police report in its first answer to the bill of particulars, coupled with his own counsel’s failure to receive the supplemental answer, constitutes a discovery violation that prejudiced his defense. “The trial court’s discretion in rulings related to discovery and the dynamics of a trial is considerable.” State v. Taylor, 98-2243, p. 5 (La.App. 4 Cir. 1/26/00), 759 So.2d 112, 115. Reversal of the trial court is warranted Ronly when there has been an abuse of discretion and resulting prejudice suffered by the defendant. Id. at 114.

Here, the juvenile judge made a factual finding that the supplemental answer had been filed by the prosecution with someone from Juvenile Regional Services, the organization providing counsel to T.H., on February 24, 2010, which was the week [278]*278prior to the adjudication hearing.1 Citing ongoing problems with JRS procedure, the juvenile judge noted that once filings were given to someone from that office, it is that person’s responsibility to ensure that appropriate counsel receives it. We see no reason for finding that the juvenile judge abused his discretion in finding that the prosecution’s supplemental answer was served, the week prior to the adjudication hearing, on someone with authority to receive it, from the JRS office. Accordingly, there has been no “misrepresentation” by the prosecution that would require reversal. Cf. State v. Allen, 94-2262 (La.1995), 663 So.2d 686.

Additionally, we note that the information sought by T.H. was contained in the police report that was turned over to defense counsel on December 30, 2009. The defense may have learned of the two identifications from the police report, which has not been included in the record but which the defense admits contains this information. The defense may have also learned of Ms. Yencha’s identification of T.H. during a phone call made to her by a defense investigator.

T.H. nonetheless asserts that this was an error by the juvenile judge and that his defense was prejudiced as a result. He suggests that the prosecution’s introduction of eyewitness identification evidence was a “surprise.” We are not | ^persuaded by the claim of surprise. First, as we noted above, the out-of-court identifications were actually recorded in the police report and thus actually known (or surely should have been known) to T.H.’s counsel well before the adjudication hearing. Second, there was no effort to preserve for our review any proffered evidence of surprise, such as T.H.’s investigator’s having been furnished with misleading or contradictory information concerning the out-of-court identifications in his pretrial telephone interview with Ms. Yencha. And third, counsel for T.H., upon being “surprised”, did not seek a recess of the hearing to prepare for this turn of events. La.C.Cr.P. art. 708 (applicable through La. Ch.C. art. 803). The only remedy sought was the exclusion of the relevant and probative evidence of the out-of-court identifications, see La. C.E. arts. 401 et seq., without the burden of showing that the identifications were either unfairly suggestive or unreliable. See Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct.

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Bluebook (online)
52 So. 3d 275, 2010 La.App. 4 Cir. 0962, 2010 La. App. LEXIS 1614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-th-lactapp-2010.