NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
13-1028
STATE IN THE INTEREST OF S.D.
**********
APPEAL FROM THE ABBEVILLE CITY COURT PARISH OF VERMILION, NO. JU-5936 HONORABLE MARIE B. TRAHAN, CITY COURT JUDGE
JIMMIE C. PETERS JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, and John D. Saunders and Jimmie C. Peters, Judges.
ADJUDICATION AFFIRMED; JUDGMENT OF DISPOSITION VACATED IN PART; AND REMANDED.
Michael Harson District Attorney Fifteenth Judicial District P.O. Box 3306 Lafayette, LA 70502-3306 (337) 232-5170 COUNSEL FOR PLAINTIFF/APPELLEE: City of Abbeville Jermaine D. Williams Attorney at Law 1313 Lafayette Street Lafayette, LA 70501-6841 (337) 235-3989 COUNSEL FOR DEFENDANT/APPELLANT: S. D.
Aimee F. Hebert Attorney at Law 613 N. Church St. Kaplan, LA 70548 (337) 643-6800 COUNSEL FOR PLAINTIFF/APPELLEE: City of Abbeville PETERS, J.
S.D. 1 appeals his adjudication as a juvenile delinquent as well as the
disposition of the juvenile court. For the following reasons, we affirm S.D.’s
adjudication as a juvenile delinquent, vacate part of the judgment of disposition,
and remand the matter to the juvenile court for further proceedings consistent with
this opinion.
On January 28, 2013, the State of Louisiana (state) filed a petition charging
S.D. with having committed a delinquent act on January 19, 2013. Specifically,
the state charged S.D. with having committed the armed robbery of Hunter
Orgeron, an offense defined in La.R.S. 14:64. A subsequent hearing held on June
18, 2013, resulted in S.D.’s adjudication as a juvenile delinquent. Thereafter, at
the July 16, 2013 disposition hearing, the juvenile judge entered a judgment of
disposition ordering that S.D. be placed in the custody of the Louisiana
Department of Public Safety and Corrections (DPSC) until his twenty-first
birthday. The juvenile judge further ordered that the disposition be without the
benefit of parole, probation, suspension of imposition or execution of sentence, or
modification of sentence. Counsel for S.D. objected to the disposition at the
hearing, and subsequently perfected this appeal.
In his appeal, S.D. asserts three assignments of error:
1. The [juvenile] court erred by failing to grant a mistrial when newly discovered evidence was presented by the State’s witness at [the adjudication hearing] despite the [Juvenile]’s timely request for discovery.
2. There was insufficient evidence to support [an adjudication as a juvenile delinquent based on] the charge [of armed robbery].2 3. The [disposition] imposed by the [juvenile] court was excessive.
1 The Juvenile’s initials are used in accordance with Uniform Rules—Courts of Appeal, Rule 5-2. 2 S.D.’s brief erroneously identifies the underlying offense as ―Attempted Possession of Cocaine.‖ Errors Patent
Louisiana Code of Criminal Procedure Article 920(2) provides that one of
the two matters which shall be considered on appeal is ―[a]n error that is
discoverable by a mere inspection of the pleadings and proceedings and without
inspection of the evidence.‖ These are commonly referred to as ―errors patent,‖
and although the Louisiana Children’s Code is silent as to whether a juvenile
criminal proceeding is entitled to an error patent review, this court has found that
such a review is mandated by La.Ch.Code art. 104 and La.Code Crim.P. art. 920.
See State in the Interest of J.C.G., 97-1044 (La.App. 3 Cir. 2/4/98), 706 So.2d
1081. After reviewing the record in this matter, we find a number of such errors.
The question thus presented is whether these errors should be recognized as having
affected the ultimate disposition.
We first note that the state did not timely institute the delinquency
proceeding. The record reflects that the juvenile judge held a continued custody
hearing on January 25, 2013, and ordered S.D. continued in the state’s custody.
The state did not institute the delinquency proceeding by filing its petition until
January 28, 2013, or three days later. Louisiana Children’s Code Article 843(A)
provides that ―[i]f a child is continued in custody prior to adjudication, the
delinquency petition shall be filed within forty-eight hours of the hearing to
determine continued custody.‖ If the state fails to timely file the petition, ―the
child shall be released.‖ La.Ch.Code art. 843(B). However, once a juvenile is
adjudicated a delinquent, the issue of timeliness becomes moot. State in the
Interest of J.L., Jr., 592 So.2d 435 (La.App. 5 Cir. 1991), writ denied, 597 So.2d
1031 (La.1992). Given the facts before us, this issue is now moot and did not
affect the ultimate disposition. 2 Next, we note that when S.D. appeared to answer the state’s petition, the
juvenile judge did not advise him of the ―items‖ set forth in La.Ch.Code art.
855(B):
(1) The nature of this delinquency proceeding.
(2) The nature of the allegations of the petition.
(3) His right to an adjudication hearing.
(4) His right to be represented by an attorney, his right to have counsel appointed as provided in Article 809, and his right in certain circumstances authorized by Article 810 to waive counsel.
(5) His privilege against self-incrimination.
(6) The range of responses authorized under Article 856.
(7) The possible consequences of his admission that the allegations are true, including the maximum and minimal dispositions which the court might impose pursuant to Articles 897 through 900.
However, in State in the Interest of K.G., 34,535 (La.App. 2 Cir. 1/24/01), 778
So.2d 716, the second circuit found that the juvenile judge failed to timely advise
the juvenile of the enumerated rights as set forth in La.Ch.Code art. 855(B), but
concluded that the error was harmless given the fact that the juvenile was
represented by counsel and denied the allegations of the petition. See also State in
the Interest of J.G., 94-194 (La.App. 5 Cir. 7/26/94), 641 So.2d 633. In the matter
before us, S.D. was represented by counsel and denied the allegations of the
petition. Following the decision in K.G., we find this error to be harmless.
Therefore, we find that this error did not affect the ultimate disposition.
We next note that there exists a conflict between the juvenile court minutes,
the custody order signed by the juvenile judge, and the disposition hearing
transcript. In the disposition hearing transcript, the juvenile judge stated:
Therefore [S.D.] is hereby sentenced to the custody of the Department of Public Safety and Corrections, to be confined in secure placement 3 for the term of juvenile life. I (inaudible) until he reaches his twenty- first birthday without benefit of parole, probation[,] suspension of this disposition or execution of sentence, or modification of sentence.
(Emphasis added.)
The court minutes arising from the disposition hearing state that S.D. was placed in
the ―custody of the Department of Corrections/Division of Juvenile Justice for
juvenile life, not to exceed the age of 21, without the possibility of parole or
probation.‖ (Emphasis added.) Finally, the custody order arising from the
disposition hearing also indicates that S.D.’s length of disposition was ―NOT TO
EXCEED AGE OF 21,‖ but it does not mention the denial of benefits. Because
this error does affect the ultimate disposition, we order the juvenile judge to amend
the court minutes of the disposition hearing and the custody order arising from the
disposition hearing to correspond to the disposition reflected in the disposition
hearing transcript. See State in the Interest of B.A., 12-659 (La.App. 3 Cir.
12/19/12), 104 So.3d 833.
We next note that the juvenile judge failed to inform S.D. of the two-year
prescriptive period for filing post-conviction relief set forth in La.Code Crim.P. art.
930.8(C). Although the Louisiana Children’s Code contains no similar provision,
this court has previously held that this notice should be given. B.A., 104 So.3d
833, and State in the Interest of J. F., 03-321 (La.App. 3 Cir. 8/6/03), 851 So.2d
1282. Thus, because this error patent does affect the ultimate disposition, we order
the juvenile judge to inform S.D. of the provisions of La.Code Crim.P. art. 930.8
by sending the appropriate written notice to him within ten days of the rendition of
this opinion and to file written proof in the record that S.D. received the notice.
Finally, we find it necessary to address the timeliness of the adjudication
hearing. With regard to that issue, La.Ch.Code art. 877 provides:
4 A. When the child is charged with a crime of violence as defined in R.S. 14:2(B) and the child is continued in custody pursuant to Chapter 5 of this Title, the adjudication hearing shall commence within sixty days of the appearance to answer the petition. In all other cases, if the child is continued in custody pursuant to Chapter 5 of this Title, the adjudication hearing shall commence within thirty days of the appearance to answer the petition.
B. If the child is not continued in custody, the adjudication hearing shall commence within ninety days of the appearance to answer the petition.
C. If the hearing has not been commenced timely, upon motion of the child, the court shall release a child continued in custody and shall dismiss the petition.
D. For good cause, the court may extend such period.
The state charged S.D. with a crime of violence and he was continued in
custody. Applying La.Ch.Code art. 877(A), the adjudication hearing should have
commenced no later than sixty days from his February 7, 2013 appearance to
answer the petition, and it did not commence until June 18, 2013. However, from
February 7, 2013, through June 18, 2013, the following proceedings occurred:
February 7, 2013: S.D. answered the petition and the juvenile judge issued an order for his continued detention, and set the adjudication hearing for March 14, 2013.
February 21, 2013: Jermaine Williams filed a motion to enroll as counsel for S.D.
March 12, 2013: Counsel for S.D. requested a continuance of the adjudication hearing. The state offered no objection, and S.D.’s new counsel waived all time delays.
March 14, 2013: The juvenile judge ordered S.D.’s continued detention pending trial and reset the adjudication hearing for April 23, 2013.
April 4, 2013: A motion for bond reduction was set for this date, but S.D.’s counsel requested a continuance based on S.D.’s absence from the proceeding. The state offered no objection and the juvenile judge granted the continuance.
April 10, 2013: The bond reduction hearing was held, the juvenile judge granted the motion for reduction, and S.D. posted bond. 5 April 23, 2013: S.D.’s counsel moved for a continuance of the adjudication hearing because of a death in his family.
April, 24, 2013: The juvenile judge granted the motion over the objection of the state and reset the adjudication hearing for May 13, 2013.
May 13, 2013: S.D.’s counsel moved to have the juvenile judge recused, and, over the objection of the state, the presiding juvenile judge recused himself and requested that the Louisiana Supreme Court appoint a judge to preside over the litigation. The recusal proceeding required that the adjudication hearing scheduled for that day be continued.
May 17, 2013: The Louisiana Supreme Court appointed Judge Marie Elise Trahan of the Crowley City Court as juvenile judge ad hoc.
June 18, 2013: Judge Trahan conducted the adjudication hearing.
Thus, the adjudication hearing was initially set within the sixty day time
period, but was continued several times either at the request of S.D.’s counsel or as
a direct result of a defense motion. In State in the Interest of Franklin, 95-423
(La.App. 4 Cir. 7/26/95), 659 So.2d 537, writ denied, 95-2162 (La. 11/17/95), 663
So.2d 711, the fourth circuit concluded that the state is not required to seek an
extension of the time period pursuant to La.Ch.Code art. 877(D) where the time
period is extended due to reasons not attributable to the state. Following the
rationale of Franklin, we find that under the facts of the matter before us, there was
good cause for the delay in the holding of the adjudication hearing. Thus, the
failure to comply with La.Ch.Code art. 877(A) did not affect the ultimate
disposition.
Assignment of Error Number Two
We will consider this assignment first because it addresses the sufficiency of
the evidence presented by the state. When issues are raised on appeal as to the
sufficiency of the evidence as well as other trial errors, a reviewing court must first 6 determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731
(La.1992).
In considering the sufficiency issue, we first note that the supreme court has
addressed this issue and set forth the following guidelines:
In a juvenile proceeding, the state’s burden of proof is the same as in a criminal proceeding against an adult—to prove beyond a reasonable doubt every element of the offense alleged in the petition. La. Ch.Code art. 883; In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). ―In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). . . . [T]he appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.‖ State v. Captville, 448 So.2d 676, 678 (La.1984).
State in the interest of D.P.B., 02-1742, pp. 4-5 (La. 5/20/03), 846 So.2d 753, 756.
Louisiana Revised Statutes 14:64(A) provides that ―[a]rmed robbery is the
taking of anything of value belonging to another from the person of another or that
is in the immediate control of another, by use of force or intimidation, while armed
with a dangerous weapon.‖ In this case, the state charged S.D. with having taken
Hunter Orgeron’s cellular telephone from him at gunpoint.
At the adjudication hearing, Hunter Orgeron (Hunter) testified that prior to
the armed robbery, he mentioned to some of his friends that he was interested in
selling a cellular telephone, and that S.D. telephoned him on the day before
January 19, 2013, and inquired about purchasing it from him. According to
Hunter, he and S.D. continued to communicate by text messages, and ultimately
agreed to meet face-to-face at the Willowind Apartments in Abbeville, Louisiana.
Hunter testified that S.D. instructed him to come to the apartment complex
on the evening of Saturday, January 19, 2013, and park next to a silver Pontiac.
7 According to Hunter, S.D. and another male approached his parked Mustang from
the apartment complex, and when he rolled his window down, he was immediately
confronted by S.D. who pointed a gun at his neck. Hunter testified that the other
male then entered his vehicle on the passenger side and began punching him in the
face, and S.D. demanded that he produce his iPad. When Hunter told S.D. that he
did not have the iPad, both S.D. and the other male searched the vehicle. Hunter
testified that they did not find the iPad, but took his cellular telephone from the cup
holder in the center console of the vehicle as well as a hat he had purchased earlier
in the day.
According to Hunter, when S.D. and the other male walked back toward the
apartment complex, he left the scene and traveled to his girlfriend’s house to tell
her he was going to the police station. While at her house, he telephoned his
parents and told them to meet him at the police station. When he arrived at the
Abbeville City Police Station he did not see anyone for approximately thirty
minutes, and it took him an additional forty-five minutes for him to complete a
written statement to Officer Jonathan Touchet. The statement itself reflects that it
was written and signed at approximately 9:40 p.m. on January 19, 2013.
On cross-examination, Hunter acknowledged that he did not initially inform
Officer Touchet of the stolen hat, but stated that in the midst of everything else, he
simply forgot to do so. He also acknowledged that he told Officer Touchet that he
had been robbed approximately thirty minutes before arriving at the police station.
When S.D.’s counsel suggested that the investigating officers placed the time of
the robbery at approximately 5:30 p.m. on January 19, Hunter testified that it could
have been earlier because the sun had gone down about the time of the robbery. At
the same time, he repeated his prior testimony that it was dark when the robbery
8 occurred. S.D.’s counsel further pointed to Hunter’s written statement wherein he
stated that he went to a friend’s house immediately after the robbery, but did not
mention that the friend was his girlfriend. Hunter explained that he did not wish to
involve her in the matter. Additionally, Hunter further explained that the
investigating officers never asked him the name of the friend, and his girlfriend
was never interviewed in the investigation.
With regard to the conflict over the time of the robbery, on redirect the state
produced a copy of a telephone record reflecting that Hunter last used the stolen
telephone at approximately 8:53 p.m. on January 19, 2013.
Hunter also testified on direct that immediately after the robbery, he
observed a woman sitting on a balcony at the apartment complex immediately after
the robbery, and Markelia Guidry (Markelia) testified that she was that woman.
According to Markelia, at approximately 10:45 p.m. on January 19, 2013, two
officers came to her apartment door and she gave them a written statement
concerning what she had seen that evening while sitting on her balcony. She
testified that she observed two males with hoods pulled over their heads come from
the apartment complex, and she overheard one of the two talking on a cellular
telephone directing someone to park next to her silver Pontiac in the parking lot.
She then observed a Mustang automobile pull up next to her vehicle, and observed
the two males approached the Mustang. According to Markelia, one of the two
males walked to the passenger side of the Mustang, and the other walked to the
driver’s side. She heard one of the males say something about an iPhone or iPad,
and observed the male on the passenger side ―swing a couple of licks‖ at the
driver, but assumed that the men were simply playing. From the tone of the
voices, she concluded that they were teenagers, and not ―grown men.‖ When the
9 two males left the automobile, she observed that the male on the passenger side left
with a ―white box or something.‖
Although Markelia had seen S.D. around the apartment complex, she was
not able to identify him as one of the two individuals who approached the
Mustang, although she could not say that it was not him either. Neither the
investigating officers, the state, nor S.D.’s counsel questioned Markelia concerning
the time of the incident.
Max Broussard (Max) testified that he had known S.D. for approximately
one year before the adjudication hearing, having had a high school class with him
the year before. According to Max, sometime before January 19, 2013, S.D.
telephoned him three or four times seeking Hunter’s telephone number. S.D. told
Max he wanted to get in touch with Hunter to purchase a cellular telephone from
him. Max testified that he subsequently texted the telephone number to S.D.
Caldrick Broussard (Caldrick), who was sixteen years of age when he
testified at the adjudication hearing, identified himself as S.D.’s cousin. He
testified that on January, 18, 2013, he and D’Vonte Scott (D’Vonte) were visiting
his sister, Denisha Green (Denisha), who then resided in the Willowind Apartment
complex, and recalled being visited by S.D. on that evening. 3 According to
Caldrick, S.D. had been ―chillin‖ with him and D’Vonte earlier in the evening, but
left and returned around 11:00 p.m. When he returned, S.D. asked about
―[Caldrick and D’Vonte] helping him rob somebody.‖ Caldrick testified that when
S.D. showed him a gun, he told S.D. that he would not become involved and asked
him to leave. According to Caldrick, he and S.D. became involved in a physical
3 He was interviewed by Detective Dan Suire of the Abbeville Police Department on March 13, 2013, and provided Detective Suire with a written statement on that date. 10 altercation which resulted in S.D. being physically evicted from the apartment.
Caldrick testified that Denisha was asleep when the altercation occurred.
On cross-examination, Caldrick acknowledged that he and D’Vonte had
discussed the matter since the robbery. Additionally, he explained that he did not
make the statement for almost two months because that was the first time anyone
asked him about the incident.
Officer Touchet testified that after he interviewed Hunter, he and Officer
Shane Meaux went to the scene and interviewed Markelia. He acknowledged the
when Hunter arrived at the police station on the evening of January 19, 2013, the
officer personnel were involved in bringing a recently arrested individual under
control, and Hunter was not seen immediately. 4 Officer Touchet testified that he
wrote the statement signed by Hunter based on what Hunter dictated to him.
After taking the statements of Hunter and Markelia, Officers Touchet and
Meaux, accompanied by two parish deputies, 5 went to S.D.’s residence and found
only his mother present. Later that evening, S.D.’s mother brought him to the
Abbeville Police Station at approximately 12:25 a.m. and, in the presence of his
mother, Officer Touchet interviewed him. S.D. denied being at the Willowind
Apartments earlier that evening, and denied robbing or even knowing Hunter.
After completing the interview, the investigating officers released S.D. to the
custody of his mother.
When questioned on cross-examination, Officer Touchet testified that
Hunter identified S.D. as one of the individuals who robbed him. However, the
officer could not remember what Hunter told him about the time of the robbery,
4 Officer Touchet estimated that Hunter had to wait fifteen to twenty minutes before anyone could talk to him. 5 Officer Touchet testified that the deputies accompanied them because S.D. lived outside the city limits. 11 although he did recall that Hunter told him he had stopped to telephone his parents
before coming to the police station to report the offense. When S.D.’s counsel
questioned Office Touchet concerning the stolen hat, the officer stated that Hunter
never mentioned the hat.
Zachary Suire (Zachary), who was fifteen years old at the time of the
adjudication hearing, testified that he had been friends with S.D. since early
childhood. In his initial testimony, Zachary testified that on January 21, 2013, he
posted the following message to his Facebook account at the request of S.D.:
―Who want [sic] a red Galaxy S3 from A T & T from two hundred.‖ According to
Zachary, S.D. asked him to post the message a day or two before. However, in
subsequent questioning, Zachary changed his testimony to state that S.D. had only
asked him if he knew anyone who might be interested in purchasing such a
telephone and had not requested that he post the message.
On cross-examination, Zachary seemed to go back to his original testimony
that S.D. had asked him to post the message. Additionally, his memory concerning
the discussions between him and S.D. was rather vague. He acknowledged that in
his February 8, 2013 written statement to the police, he had stated that S.D. was
always asking him to post ―stuff‖ on his Facebook page.
At this point, the state rested and S.D. called a number of witnesses in his
defense, beginning with Detective Stan Suire of the Abbeville Police Department.
Detective Suire testified that at some point in the investigation, he was asked ―to
interview a couple of boys who might have known something about the crime.‖
However, he could not initially identify the individuals he interviewed, did not
remember their names, and testified that his memory was ―terrible.‖ The most he
could remember was that he talked to two ―boys,‖ one who seemed to have a large
12 amount of information about the robbery, and another who knew very little.
Further questioning of the detective revealed that Caldrick was the individual with
the knowledge, and D’Vonte was the other individual. According to Detective
Suire, D’Vonte did not corroborate Caldrick’s version of the altercation on the
evening of January 18, 2013. However, Detective did not say that D’Vonte gave a
different statement. Instead, D’Vonte simply ―didn’t want to talk about‖ the
incident.
Later in his testimony, Detective Suire also acknowledged that he questioned
an individual named Walter (Walter) August as a possible suspect, although he
could not remember where or how he acquired the man’s name. All he
remembered about his encounter with Walter was that when questioned about the
robbery, he denied any involvement, and, according to Detective Suire, ―[t]hat was
it.‖ Detective Suire did not classify his encounter with Walter as an ―interview.‖
Rather, he suggested that he asked only one question and the denial ended the
investigation of Walter.
Finally, Detective Suire testified that he ―might have talked to‖ Markelia. In
fact, Detective Suire recorded a statement from Markelia wherein she was again
questioned concerning what she had seen from her balcony. Detective Suire
testified that he asked Markelia if one of the individuals she saw was Walter
August and she told him that she did not know anyone named Walter August.
Walter August’s name was mentioned in in the videotaped interview of Markelia
which was provided S.D. before the adjudication hearing.
Endia Davis (Endia) is S.D.’s older sister and specifically recalled that on
the evening of Saturday, January 19, 2013, her brother was at their mother’s home
with her. According to Endia, she left home at 1:30 p.m. that day to pick up Taisha
13 Ford’s son she was to babysit that evening,6 and that S.D. was at home when she
left. She returned with the child at approximately 2:00 p.m. and she and S.D.
watched television together until 10:00 p.m., when she left to return the child to its
home. Endia testified that S.D. was still with her when she received a telephone
call from their mother who was looking for S.D.
S.D.’s mother testified that when she returned home from the hairdresser at
approximately 11:30 a.m. on January 19, 2013, Endia and S.D. were home. She
further testified that Taisha Ford dropped her child off before 2:00 p.m. for Endia
and S.D. to babysit. S.D.’s mother testified that her son could not have left home
between 5:00 and 9:30 p.m. without her knowing it,7 and that Endia and S.D. had
brought the child home at approximately 9:30 p.m., returning at 11:00 p.m.
According to S.D.’s mother, the police officers arrived at her residence after Endia
and S.D. left with the child, and that she telephoned Endia. On the first time,
Endia did not answer her telephone, but she answered the second time. By the
time of the second call, the officers had left her home.
S.D. testified at the adjudication hearing, and in his testimony he denied
speaking to Max about Hunter’s cellular telephone; denied having spoken to or
texted Hunter on Friday, January 18, 2013; denied having placed a gun to Hunter’s
head; denied showing Caldrick a gun on Friday night, January 18, 2013; and
denied asking Zachary to post anything on the internet. In fact, he testified that he
would not have known Hunter if he walked past him.
According to S.D., he and his sister went to Denisha Green’s apartment on
Friday, January 18, 2013, and the two of them were there from 1:00 p.m. until 5:00
6 Endia identified Taisha Ford as her second cousin. 7 S.D.’s mother did acknowledge that she, Endia, S.D., and the small child all went to the Abbeville Pizza Hut between 7:00 and 7:45 p.m. to pick up a pizza. 14 p.m. He testified that he did not return to the apartment that night so he could not
have shown Caldrick a weapon. When attempting to explain why Caldrick would
say that he brandished a weapon on that night, he suggested that Caldrick was
responding to an argument they had a few days earlier concerning Caldrick’s
girlfriend.
Concerning his activities on the afternoon of the armed robbery, S.D.
testified that he was home when Endia returned with the child at approximately
2:00 p.m., and that his mother was mistaken when she stated that Taisha Ford had
dropped the child off. According to S.D., the only time he left his mother’s house
was when everyone went to get pizza. On cross-examination, S.D. had no
explanation for the testimony presented by the various witnesses for the state, other
than Caldrick.
On rebuttal, the state called Denisha to testify. She testified that she is
S.D.’s cousin, and that S.D.’s mother telephoned her on January 19, 2013, looking
for S.D. Specifically, S.D.’s mother asked her if S.D. had gone to the movie with
her, and she told her that he had not. On cross-examination by S.D.’s counsel,
Denisha testified that S.D. was at her apartment with Caldrick and D’Vonte on
Friday before the Saturday armed robbery, having come over with Endia, and that
he left sometime around 10:00 p.m.
In her reasons for adjudicating S.D. a juvenile delinquent, the juvenile judge
stated that she believed the testimony of Max, Zachary, Caldrick, Denisha, and
Hunter. S.D. asserts on appeal that the juvenile judge’s credibility determinations
were erroneous. He asserts that the only witness to identify him as the one who
committed the offense was Hunter and that his testimony was not credible.
15 S.D.’s primary argument concerning Hunter’s credibility relates to the
timeline for the robbery set forth in the evidence. He points to Hunter’s initial
testimony that the robbery occurred at approximately 7:00 p.m., and then suggests
that Hunter contradicted himself on cross-examination when confronted by the
assertion that the investigating officers would testify that the robbery occurred
closer to 5:30 p.m. We note that this line of questioning by counsel for S.D. was
not supported by the testimony of the investigating officers. Officer Touchet did
not indicate any time frame for the robbery in his testimony, and the testimony of
Detective Suire on this point is questionable at best. Detective Suire did say that
he concluded the robbery occurred at approximately 5:30 p.m., but he offered
nothing to suggest why he reached this conclusion, and his admissions concerning
his complete lack of memory with regard to all other aspects of his investigation
does not support this conclusion. All of the other evidence with regard to the
timeline supports Hunter’s testimony that the robbery occurred later in the evening.
S.D. also points to the fact that Hunter initially told the investigating officer
that he went to a friend’s house after the robbery, but did not explain that it was his
girlfriend’s house. On cross-examination, he stated that he did not identify the
home as that of his girlfriend’s because he did not want to get her involved. We
find this contradiction to be a distinction without a difference.
Considering the evidence in a light most favorable to the state, we find that
there was sufficient evidence to convince the juvenile judge that all of the elements
of the underlying offense giving rise to the delinquency adjudication were proved
beyond a reasonable doubt. State in the interest of D.P.B., 02-1742 (La. 5/20/03),
846 So.2d 753. We find no merit in this assignment of error.
16 Assignment of Error Number One
We now return to S.D.’s first assignment of error wherein he asserts that the
juvenile judge erred in rejecting his motion for a mistrial based on the testimony of
Detective Suire. This issue arises because of Detective Suire’s reference to having
interviewed D’Vonte Scott and Walter August during his investigation. S.D.
sought a mistrial because, despite discovery requests, the state had not informed
him in advance of the adjudication hearing that Detective Suire had interviewed
D’Vonte and Walter.
As previously stated, Detective Suire was called as a witness for S.D., and,
during his testimony, he referred to his interview with ―a couple of boys‖ whom he
could not identify. After significant subsequent questioning, it was ultimately
determined that the two ―boys‖ were Caldrick and D’Vonte. The end result of his
interview with D’Vonte was not that he directly contradicted Caldrick, but that he
simply did not wish to provide Detective Suire with any information.
Detective Suire’s encounter with Walter also resulted in no information
concerning the robbery. According to Detective Suire, the interrogation went no
further than him asking Walter about his possible involvement in the robbery and
Walter denying any involvement.
While acknowledging that he had been provided both D’Vonte’s and
Walter’s name in discovery through statements of Caldrick and Markelia, S.D.
argues that he was not aware of the extent of the police investigation of the two
individuals. The state argues in response that the information obtained from the
interviews is not exculpatory, the names were made available to S.D. prior to trial,
and it is not the state’s duty to conduct S.D.’s investigation for him.
17 In rejecting S.D.’s motion for a mistrial, the juvenile judge concluded that
evidence provided by Detective Suire was not exculpatory, and, therefore, the
failure of the state to provide it to S.D. was not a ―violation of due process.‖
Specifically, the juvenile judge found that the state is not required to ascertain
every thought that might arise in the head of an investigating officer, and in this
case, it was questionable as to why Detective Suire even brought these names of
these individuals up given the minimal effect their input had on the investigation.
We agree with the juvenile court’s analysis on this point as the state’s
discovery burden in a criminal proceeding is well settled:
Under Louisiana law, the prosecution is not required to provide unlimited discovery. However, the state must disclose all evidence favorable to an accused, material to guilt or punishment. State v. Black, 34,688 (La.App. 2d Cir.5/9/01), 786 So.2d 289, writ denied, 01–1781 (La.5/10/02), 815 So.2d 831.
State v. Turner, 44,920, 44,921, pp. 10-11 (La.App. 2 Cir. 2/3/10), 32 So.3d 277, 284-85, writ denied, 10-680 (La. 3/25/11), 61 So.3d 657.
As stated by the United States Supreme Court in Moore v. Illinois, 408 U.S. 786,
795, 92 S.Ct. 2562, 2568 (1972), ―[w]e know of no constitutional requirement that
the prosecution make a complete and detailed accounting to the defense of all
police investigatory work on a case.‖ See also U.S. v. Agurs, 427 U.S. 97, 96 S.Ct.
2392 (1976).
We find no merit in this assignment of error.
Assignment of Error Number Three
S.D.’s final assignment of error relates to the disposition imposed by the
juvenile court. As previously stated, the juvenile judge ordered that S.D. be placed
in the custody of DPSC in a secure placement until his twenty-first birthday, and
―without benefit of parole, probation suspension of this disposition or execution of
18 sentence or modification of sentence.‖ S.D. asserts that this disposition is
excessive.
Having been adjudicated a juvenile delinquent for the offense of armed
robbery, S.D.’s disposition after adjudication is governed by La.Ch.Code art.
897.1(B) which provides:
After adjudication of a felony-grade delinquent act based upon a violation of R.S. 14:64, armed robbery, the court shall commit the child who is fourteen years of age or older at the time of the commission of the offense to the custody of the Department of Public Safety and Corrections to be confined in secure placement for the length of the term imposed by the court at the disposition hearing without benefit of parole, probation, suspension of imposition or execution of sentence, or modification of sentence.
S.D.’s birthday is August 21, 1996, and therefore he was over fourteen years of age
on January 19, 2013, the date of the underlying offense. The mandatory language
denying benefits is so strong that it has been declared the ―public policy of this
state‖ in La.R.S. 15:906(B) because armed robbery is such a serious offense that
―the protection of society is the primary objective.‖
Still, while the disposition that may be imposed for the offense of armed
robbery is without benefits, the length of confinement under La.Ch.Code art.
897.1(B) is subject to the discretion of the juvenile judge. See State ex rel. A.M.,
98-2752 (La. 7/2/99), 739 So.2d 188. Additionally, La.Ch.Code art. 808 provides
that ―[a]ll rights guaranteed to criminal defendants by the Constitution of the
United States or the Constitution of Louisiana, except the right to jury trial, shall
be applicable in juvenile court proceedings brought under this Title.‖ These
include the right against ―excessive punishment.‖ State in Interest of D.L.S.,
30,322, p. 11 (La.App. 2 Cir. 1/21/98), 706 So.2d 187, 193.
With regard to the consideration of a custodial environment, La.Ch.Code art.
901(A) provides that ―the court shall not remove a child from the custody of his 19 parents‖ absent a finding that ―his welfare or the safety and protection of the public
cannot . . . be adequately safeguarded without such removal.‖ Additionally,
La.Ch.Code art. 901(B) provides that ―[t]he court should impose the least
restrictive disposition authorized by Articles 897 through 900 of this Title which
the court finds is consistent with the circumstances of the case, the needs of the
child, and the best interest of society.‖ Finally, La.Ch.Code art. 901(C) and (D)
sets forth a number of factors for the juvenile judge to consider when considering a
disposition of custody to DPSC. S.D. argues that the juvenile judge erred in not
considering these dispositional guidelines. We find no merit in this argument as
La.Ch.Code art. 901(E) clearly states that ―[t]he general disposition guidelines set
forth in Paragraphs A through D of this Article do not apply when a child has been
adjudicated a delinquent for the violation of . . . R.S. 14:68, armed robbery in
accordance with Article 897.1.‖
We do find one error in the disposition of this matter that requires a remand
for further proceedings. At the disposition hearing, the juvenile judge concluded
that the only disposition available in this matter was a secure placement in the
custody of DPSC until S.D.’s twenty-first birthday. We find that the juvenile
judge erred in this conclusion because, as previously stated, while the disposition
imposed for the offense of armed robbery is without benefits, the length of
confinement under La.Ch.Code art. 897.1(B) is subject to the discretion of the
juvenile judge.
We vacate that portion of the judgment of disposition ordering that S.D.
remain in the custody of DPSC until his twenty-first birthday, and remand the
matter to the juvenile court for a new judgment of disposition on that aspect of the
disposition only, within the discretion of the juvenile judge provided in
20 La.Ch.Code art. 897.1(B). We further instruct the juvenile judge to ―orally inform
[S.D.] and [] state for the record the considerations taken into account and the
factual basis therefor in imposing the particular disposition chosen.‖ La.Ch.Code
903(A)(1). However, nothing in the remand should be construed that this court is
instructing the juvenile judge to impose any particular term of disposition,
including anything less than confinement to S.D.’s twenty-first birthday.
DISPOSITION
For the foregoing reasons, we vacate that portion of the judgment of
disposition ordering S.D. to remain in the custody of the Department of Public
Safety and Corrections until his twenty-first birthday, and remand the matter to the
juvenile court with instructions to impose a new judgment of disposition on this
aspect only; to amend the court minutes of the disposition hearing to correspond to
the disposition reflected in the hearing transcript; and to inform S. D. of the
provisions of La.Code Crim.P. art. 930.8 by sending the appropriate written notice
to him within ten days of the rendition of this opinion and to file written proof in
the record that S.D. received the notice. We affirm S.D.’s adjudication as a
juvenile delinquent as well as the remainder of the judgment of disposition.
ADJUDICATION AFFIRMED; JUDGMENT OF DISPOSITION VACATED IN PART; AND REMANDED.
This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal, Rule 2—16.3.