State of Louisiana in the Interest of K.B. Vs.
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Opinion
STATE OF LOUISIANA IN * NO. 2023-CA-0409 THE INTEREST OF K.B. * COURT OF APPEAL * FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPEAL FROM JUVENILE COURT ORLEANS PARISH NO. 2022-339-02-DQ-C, SECTION “C” Honorable Candice Bates Anderson, Judge ****** Judge Dale N. Atkins ****** (Court composed of Judge Rosemary Ledet, Judge Dale N. Atkins, Judge Nakisha Ervin-Knott)
Jason Rogers Williams DISTRICT ATTORNEY, ORLEANS PARISH Patricia Amos ASSISTANT DISTRICT ATTORNEY, ORLEANS PARISH 619 South White Street New Orleans, LA 70119
COUNSEL FOR APPELLEE, The State of Louisiana
Katherine M. Franks LOUISIANA APPELLATE PROJECT P.O. Box 220 Madisonville, LA 70447
COUNSEL FOR APPELLANT, K.B.
AFFIRMED IN PART; VACATED IN PART; AND REMANDED WITH INSTRUCTIONS SEPTEMBER 26, 2023 DNA RML
NEK This is a juvenile delinquency matter. Appellant, K.B.,1 seeks review of the
trial court’s March 20, 2023 judgment, which adjudicated him delinquent of two
counts of armed robbery with the use of a firearm and rendered a disposition of
juvenile life regarding both counts. For the following reasons, we affirm K.B.’s
adjudication of delinquency but vacate his disposition and remand with
instructions.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
According to its Appellee Brief, the State of Louisiana (“State”) originally
filed a delinquency Petition against juvenile D.J.2 However, when D.J. appeared in
court to answer the Petition, the juvenile court also permitted the State to amend
the Petition to reflect a co-perpetrator, K.B. The State followed up by filing an
Amended Petition, which included counts relative to K.B. and the location of the
offenses.3 The charges alleged against K.B. were:
1 Pursuant to the requirements of confidentiality in juvenile proceedings as set forth in
La. Ch. C. Art. 412, as well as in Uniform Rules, Courts of Appeal, Rules 5-1 and 5-2, the juvenile is referred to by his initials only, K.B. 2 As discussed further in this Opinion, the juvenile court adjudicated D.J. delinquent in a
joint adjudication hearing with K.B. on March 20, 2023. D.J. has separately appealed, and his appeal is on this Court’s docket under a different docket number. 3 The Amended Petition contained in the record before this Court lacks a file stamp and a
signature from the District Attorney’s Office. Also, the Amended Petition in the record before
1 COUNT 1: LA R.S. 14:64.3[4] relative to ARMED ROBBERY WITH THE USE OF A FIREARM, to wit: [D.J.] and [K.B.], on or about November 29, 2022, did commit armed robbery upon YVETTE ALFONSO [(“Ms. Alfonso”)][5] with the use of a firearm, at or near the INTERSECTION OF SOUTH CORTEZ STREET and GRAVIER STREET, in the Parish of Orleans.
....
COUNT 4: LA R.S. 14:64.3 relative to ARMED ROBBERY WITH THE USE OF A FIREARM, to wit: [K. B.], on or about November 29, 2022,[6] did commit armed robbery upon ANTHONY WILLHIDE [(“Mr. Willhide”)] while armed with a dangerous weapon, at or near 3443 ESPLANADE AVENUE, in the Parish of Orleans.
K.B. ultimately pled not guilty to these counts.7 The juvenile court held the
adjudication hearing for both K.B. and D.J. on March 20, 2023. K.B. and D.J. were
represented by separate counsel at the hearing.
March 20, 2023 Adjudication Hearing
this Court is dated December 4, 2022. However, in a pleading filed with the juvenile court by the State, the State explains that it “submitted an amended petition into PBK on December 30, 2022.” (The State does not explain to what “PBK” refers.) Further, according to the juvenile court as transcribed during the March 20, 2023 hearing, the State filed the Amended Petition on January 3, 2023. A copy of the Amended Petition dated January 3, 2023, is not in the record though. 4 Louisiana Revised Statutes 14:64.3 is titled “[a]rmed robbery; attempted armed robbery;
use of firearm; additional penalty.” 5 In his Appellant Brief, K.B. uses the spelling “Alphonso.” This Opinion will use the
spelling “Alfonso” as in the Amended Petition in the record. 6 The record is unclear as to which date the armed robbery with the use of a firearm as
committed against Mr. Willhide occurred. The Amended Petition in the record lists the date as November 29, 2022; but during their testimony, as discussed more fully later in the Opinion, Mr. Willhide and Detective Anthony Lunn both stated that the incident occurred on November 28, 2022. 7 At the March 20, 2023 adjudication hearing, which is discussed more fully throughout
the Opinion, counsel for K.B. explained that she had never received a copy of the Amended Petition. After receiving a copy at the hearing, she entered a denial on K.B.’s behalf to both counts.
2 Mr. Willhide’s Testimony
The State’s first witness was Mr. Willhide, who testified that he worked part
time as a driver for Uber and that he was working in this capacity on the evening of
November 28, 2022. Regarding that evening, Mr. Willhide explained that around
10:00-11:00 PM, he was on a break in the parking lot of the Esplanade at City Park
apartments in New Orleans. Mr. Willhide testified that during his break, he was
sitting in his vehicle with the doors locked and a window cracked when someone
approached the vehicle and said to him, “[G]ive me all of your stuff or [I am]
going to shoot you in the face.” Further, Mr. Willhide testified that a second voice
said, “Yeah” and that guns were pointed at him from the direction of both voices.
Mr. Willhide described both guns as handguns: he testified that one had “an
extended magazine” and the other was a “very heavy handgun.” At that point,
according to Mr. Willhide, he began “handing [over his] stuff,” and the two
individuals ultimately drove his vehicle out of the parking lot. Further, Mr.
Willhide testified that one of the individuals was wearing a “solid black hoodie”
while the other wore a “black hoodie with red.” Additionally Mr. Willhide testified
that, on the date of the armed carjacking, his vehicle had a dashboard camera “for
insurance purposes and for recording the safety of . . . passengers and to have a
transparent third-party operation of what was to go on in [the] vehicle at all 360-
degree angles frontwards, inside the cab, and outside the rear.” When asked
whether it was recording on the night of the armed carjacking, Mr. Willhide
responded that “[a]s soon as my car [went] into park it automatically start[ed]
recording.”
The juvenile court asked Mr. Willhide whether he “g[a]ve anyone
permission to approach [his] vehicle;” “g[a]ve anyone permission to enter [his]
3 vehicle;” and “g[a]ve anyone permission to use [his] vehicle” during his break on
the date of the armed carjacking. Mr. Willhide stated that he did not give anyone
permission to approach his vehicle, enter his vehicle, or use his vehicle while he
was on his break that day. Mr. Willhide explained that although his vehicle was
eventually recovered, “[t]here was nothing left in the vehicle when [he] got it, not
even a car battery.”
Detective Anthony Lunn’s Testimony
As its next witness, the State called Detective Anthony Lunn (“Detective
Lunn”), who explained that he worked in the Third District Investigations Unit of
the New Orleans Police Department (“NOPD”). Detective Lunn testified that he
was working in that capacity when he conducted a follow-up investigation8 of an
armed carjacking that had occurred on November 28, 2022, at 3443 Esplanade
Avenue in New Orleans. Regarding the follow-up investigation, Detective Lunn
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STATE OF LOUISIANA IN * NO. 2023-CA-0409 THE INTEREST OF K.B. * COURT OF APPEAL * FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPEAL FROM JUVENILE COURT ORLEANS PARISH NO. 2022-339-02-DQ-C, SECTION “C” Honorable Candice Bates Anderson, Judge ****** Judge Dale N. Atkins ****** (Court composed of Judge Rosemary Ledet, Judge Dale N. Atkins, Judge Nakisha Ervin-Knott)
Jason Rogers Williams DISTRICT ATTORNEY, ORLEANS PARISH Patricia Amos ASSISTANT DISTRICT ATTORNEY, ORLEANS PARISH 619 South White Street New Orleans, LA 70119
COUNSEL FOR APPELLEE, The State of Louisiana
Katherine M. Franks LOUISIANA APPELLATE PROJECT P.O. Box 220 Madisonville, LA 70447
COUNSEL FOR APPELLANT, K.B.
AFFIRMED IN PART; VACATED IN PART; AND REMANDED WITH INSTRUCTIONS SEPTEMBER 26, 2023 DNA RML
NEK This is a juvenile delinquency matter. Appellant, K.B.,1 seeks review of the
trial court’s March 20, 2023 judgment, which adjudicated him delinquent of two
counts of armed robbery with the use of a firearm and rendered a disposition of
juvenile life regarding both counts. For the following reasons, we affirm K.B.’s
adjudication of delinquency but vacate his disposition and remand with
instructions.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
According to its Appellee Brief, the State of Louisiana (“State”) originally
filed a delinquency Petition against juvenile D.J.2 However, when D.J. appeared in
court to answer the Petition, the juvenile court also permitted the State to amend
the Petition to reflect a co-perpetrator, K.B. The State followed up by filing an
Amended Petition, which included counts relative to K.B. and the location of the
offenses.3 The charges alleged against K.B. were:
1 Pursuant to the requirements of confidentiality in juvenile proceedings as set forth in
La. Ch. C. Art. 412, as well as in Uniform Rules, Courts of Appeal, Rules 5-1 and 5-2, the juvenile is referred to by his initials only, K.B. 2 As discussed further in this Opinion, the juvenile court adjudicated D.J. delinquent in a
joint adjudication hearing with K.B. on March 20, 2023. D.J. has separately appealed, and his appeal is on this Court’s docket under a different docket number. 3 The Amended Petition contained in the record before this Court lacks a file stamp and a
signature from the District Attorney’s Office. Also, the Amended Petition in the record before
1 COUNT 1: LA R.S. 14:64.3[4] relative to ARMED ROBBERY WITH THE USE OF A FIREARM, to wit: [D.J.] and [K.B.], on or about November 29, 2022, did commit armed robbery upon YVETTE ALFONSO [(“Ms. Alfonso”)][5] with the use of a firearm, at or near the INTERSECTION OF SOUTH CORTEZ STREET and GRAVIER STREET, in the Parish of Orleans.
....
COUNT 4: LA R.S. 14:64.3 relative to ARMED ROBBERY WITH THE USE OF A FIREARM, to wit: [K. B.], on or about November 29, 2022,[6] did commit armed robbery upon ANTHONY WILLHIDE [(“Mr. Willhide”)] while armed with a dangerous weapon, at or near 3443 ESPLANADE AVENUE, in the Parish of Orleans.
K.B. ultimately pled not guilty to these counts.7 The juvenile court held the
adjudication hearing for both K.B. and D.J. on March 20, 2023. K.B. and D.J. were
represented by separate counsel at the hearing.
March 20, 2023 Adjudication Hearing
this Court is dated December 4, 2022. However, in a pleading filed with the juvenile court by the State, the State explains that it “submitted an amended petition into PBK on December 30, 2022.” (The State does not explain to what “PBK” refers.) Further, according to the juvenile court as transcribed during the March 20, 2023 hearing, the State filed the Amended Petition on January 3, 2023. A copy of the Amended Petition dated January 3, 2023, is not in the record though. 4 Louisiana Revised Statutes 14:64.3 is titled “[a]rmed robbery; attempted armed robbery;
use of firearm; additional penalty.” 5 In his Appellant Brief, K.B. uses the spelling “Alphonso.” This Opinion will use the
spelling “Alfonso” as in the Amended Petition in the record. 6 The record is unclear as to which date the armed robbery with the use of a firearm as
committed against Mr. Willhide occurred. The Amended Petition in the record lists the date as November 29, 2022; but during their testimony, as discussed more fully later in the Opinion, Mr. Willhide and Detective Anthony Lunn both stated that the incident occurred on November 28, 2022. 7 At the March 20, 2023 adjudication hearing, which is discussed more fully throughout
the Opinion, counsel for K.B. explained that she had never received a copy of the Amended Petition. After receiving a copy at the hearing, she entered a denial on K.B.’s behalf to both counts.
2 Mr. Willhide’s Testimony
The State’s first witness was Mr. Willhide, who testified that he worked part
time as a driver for Uber and that he was working in this capacity on the evening of
November 28, 2022. Regarding that evening, Mr. Willhide explained that around
10:00-11:00 PM, he was on a break in the parking lot of the Esplanade at City Park
apartments in New Orleans. Mr. Willhide testified that during his break, he was
sitting in his vehicle with the doors locked and a window cracked when someone
approached the vehicle and said to him, “[G]ive me all of your stuff or [I am]
going to shoot you in the face.” Further, Mr. Willhide testified that a second voice
said, “Yeah” and that guns were pointed at him from the direction of both voices.
Mr. Willhide described both guns as handguns: he testified that one had “an
extended magazine” and the other was a “very heavy handgun.” At that point,
according to Mr. Willhide, he began “handing [over his] stuff,” and the two
individuals ultimately drove his vehicle out of the parking lot. Further, Mr.
Willhide testified that one of the individuals was wearing a “solid black hoodie”
while the other wore a “black hoodie with red.” Additionally Mr. Willhide testified
that, on the date of the armed carjacking, his vehicle had a dashboard camera “for
insurance purposes and for recording the safety of . . . passengers and to have a
transparent third-party operation of what was to go on in [the] vehicle at all 360-
degree angles frontwards, inside the cab, and outside the rear.” When asked
whether it was recording on the night of the armed carjacking, Mr. Willhide
responded that “[a]s soon as my car [went] into park it automatically start[ed]
recording.”
The juvenile court asked Mr. Willhide whether he “g[a]ve anyone
permission to approach [his] vehicle;” “g[a]ve anyone permission to enter [his]
3 vehicle;” and “g[a]ve anyone permission to use [his] vehicle” during his break on
the date of the armed carjacking. Mr. Willhide stated that he did not give anyone
permission to approach his vehicle, enter his vehicle, or use his vehicle while he
was on his break that day. Mr. Willhide explained that although his vehicle was
eventually recovered, “[t]here was nothing left in the vehicle when [he] got it, not
even a car battery.”
Detective Anthony Lunn’s Testimony
As its next witness, the State called Detective Anthony Lunn (“Detective
Lunn”), who explained that he worked in the Third District Investigations Unit of
the New Orleans Police Department (“NOPD”). Detective Lunn testified that he
was working in that capacity when he conducted a follow-up investigation8 of an
armed carjacking that had occurred on November 28, 2022, at 3443 Esplanade
Avenue in New Orleans. Regarding the follow-up investigation, Detective Lunn
stated that “[w]hen we were on scene, we did find a dash[board] camera that was . .
. laying in the middle of the street when we got there, and we collected that and
confirmed that it was from [Mr. Willhide]’s car.” Counsel for the State asked
Detective Lunn how he confirmed that the dashboard camera was from Mr.
Willhide’s car, and Detective Lunn began to respond, “I believe my sergeant
noticed it was a dash[board] camera, so he contacted the officer and asked him if
he had - - .” At that point, counsel for K.B. objected on hearsay grounds.9
Thereafter, counsel for the State instead asked Detective Lunn whether he
had the opportunity to review the footage recovered from the dashboard camera, 8 When asked what constituted his follow-up investigation, Detective Lunn explained that
this entailed “anything after the first incident report. . . . [An] officer [took] the first incident report and then everything afterwards I handled that from there on.” 9 The transcript reveals that the juvenile court did not rule on the objection. Instead,
counsel for the State asked a different question of Detective Lunn.
4 and Detective Lunn answered affirmatively. Detective Lunn described what he saw
when he reviewed the dashboard camera footage:
So the video footage showed -- it had three angles in the car. One angle was at the driver seat, the other showed basically the front of the vehicle, and then the last one showed the back, like, rear - - rear seats. And the [camera angle] showing the driver seat showed the victim kind of sitting in his car listening to music and then a male walks up to the window, points a gun in his face, demands him out of the car. And then . . . a second subject come[s] up basically both of them demanding him out of the car. And then the front video showed - - you could hear them having the altercation and then you see one of the males go across the front of the car. This one I guess was actually in color and you could see a red hoodie and he was armed with a firearm as he walked around the car and then got into the passenger seat.
I guess they knew that it was a dash[board] camera video because one of them said, “oh, make sure you throw that out”, and he ripped it off. And in the process of ripping [the dashboard camera] off it actually got a picture of one of their faces. He was wearing a mask, but from his nose to his forehead was - - [visible] . . . .
Detective Lunn testified that he was able to capture a still image from the
dashboard camera footage and eventually identified the individual “through some
other districts [sic] investigations.” At that point, Counsel for K.B. objected to
“any additional investigations” on Prieur grounds,10 but counsel for the State
responded, “[it is] specifically investigation of this particular case.” The juvenile
court allowed Detective Lunn to continue testifying. Detective Lunn then
explained that he identified the individual in the image from the dashboard camera
footage as K.B. When asked “[i]s he present in Court today,” Detective Lunn
identified K.B. in the courtroom.
10 See State v. Prieur, 277 So.2d 126, 128 (La. 1973) (stating, in pertinent part, that
“[e]vidence of crimes related to the offense with which a defendant is charged is inadmissible except under special exceptions,” namely “acts relevant to show intent, knowledge or system.”)
5 Detective Lunn further explained that he did not conduct a line-up with Mr.
Willhide because Mr. Willhide had informed officers “that he [was not] able to
really see” the perpetrator, such that “he [would not] be able to recognize” the
perpetrator “because he was wearing a mask and it happened so quick[ly].”
Detective Lunn stated that despite the lack of a line-up identification, “we had the
camera view . . . to see.”
Detective Anita McKay’s Testimony
The next witness to testify for the State was Detective Anita McKay
(“Detective McKay”), who identified herself as an employee of the First District
Investigative Unit for the NOPD. Detective McKay testified that on December 5,
2022, she was working in that capacity to investigate an armed carjacking that had
occurred on November 29, 2022, at South Cortez and Gravier Streets in New
Orleans.11 When asked whether she collected any evidence during the course of her
investigation, Detective McKay replied, “[O]nce I read the initial police report
written [by] Officer Jones I went to the actual location of occurrence and the
victim was no longer there because of the timeframe. However, the supervisor was,
and she advised me that the building was equipped with video - - .” Counsel for
K.B. and D.J. both objected on hearsay grounds, arguing “[she is] talking about
somebody [that is] not present and what their out of [c]ourt statements are.” Before
the juvenile court ruled on the objection, counsel for the State replied that he would
rephrase the question.
Subsequently, counsel for the State asked Detective McKay whether she
knew to “go to the location of South Cortez” and if she collected any evidence
11 Based on her testimony, Detective McKay became involved in the investigation on the
same day as the carjacking. She testified that “[t]he actual crime happened at about 6 - - between 6 and 6:30. I got in about 9 and was assigned the case via my supervisor.”
6 while she was there. In response, Detective McKay answered both questions
affirmatively, explaining that she was able to collect video surveillance footage at
the location of the carjacking. Further, Detective McKay testified she reviewed that
video surveillance footage and began to describe what she had seen in the footage,
stating that “[t]he victim arrived at the location and prior to her exiting the vehicle
another vehicle pulled alongside of her vehicle. A male exited the . . . passenger
side of that vehicle, opened up her door - - .” Counsel for K.B. and D.J. both
objected on the basis that Detective McKay was “testifying to what is in this video
and the video has not been introduced into evidence.” K.B.’s counsel also argued
that the video itself “would be the best evidence.” The juvenile court overruled the
objection and permitted Detective McKay to proceed with her testimony, at which
point she continued describing what she had seen on the video surveillance
footage:
So there was a gentleman clad in a red hoodie/shirt and he opened up the driver door of the victim’s vehicle and he was armed with a firearm, reached in and pulled her from the vehicle. The victim began to scream in a panic. Another guy exited the driver seat who had on a very distinctive face mask. He came around as if he was going to assist the other gentleman. And there was a third person who had his arm reached out of a partially cracked window from the rear seat. Once the victim was fully out of her vehicle, the guy in the red shirt, he gets in her vehicle and the two vehicles fled the location behind one another.
Thereafter, when asked whether she would be able to identify that footage if
it were shown to her, Detective McKay answered affirmatively, and counsel for
K.B. objected on the basis that there was “no foundation laid by the custodian of
this particular video,” such that its authenticity was in question because the
“foundation ha[d] not been laid.” The juvenile court noted the objection for the
record, and the following colloquy occurred:
7 [COUNSEL FOR D.J.]:
And, Judge, I think at this point she can look at it. I would ask as the trier [of] fact, obviously, that you cannot see it until it is offered and admitted at which point if the State attempts to do that I have an objection I would like to make, but I think [it is] premature at this time.
THE COURT:
Okay. It is. Thank you, Counselor.
Subsequently, counsel for the State asked questions of Detective McKay “to
authenticate the video” while showing video surveillance footage on a screen, at
which point counsel for the State asked Detective McKay the following questions:
Q Would you, please, describe to me what you see on the screen?
A The white vehicle that was for the victim properly parked at the corner of Gravier and South Cortez.
Q Okay. Did you have the actual opportunity to see the specific road?
A Yes.
Q Okay. During that day when you got the surveillance video?
Q Okay. So how are you able to identify [it as] being that street?
A I work in the area. [I am] familiar with the area.
Q Okay. But, like, what things in the video help you to identify that?
A The building that the camera is affixed on and it being in the area — [it is] right across from the Entergy building. I have knowledge of the entire area.
Q And is there a time stamp on the video?
Q Okay. What date and time does it display?
8 A [It is] saying November 29, 2022, 7:26 a.m.
Then, the State offered the video surveillance footage into evidence, at which time
counsel for K.B. and counsel for D.J. objected again. They argued that, under La.
C.E. art. 901, “without having the actual person who maintains the video system
and can testify to the accuracy and the maintenance thereof, this video cannot
come into evidence.” The juvenile court overruled their objections and admitted
the video surveillance footage into evidence.
Thereafter, when asked what the next step in her investigation was,
Detective McKay responded, “Once we got the video surveillance [footage], we
also began to get phone calls from detectives across our city with our [Violent
Crime Abatement Investigation Team (“VCAIT Unit”)12] as well.” Counsel for
K.B. and counsel for D.J. both objected on the basis of Prieur and contended that
Detective McKay’s testimony constituted hearsay. Before the juvenile court ruled
on that objection, counsel for the State asked Detective McKay whether she had
been able to identify the suspects in the video surveillance footage. Again, counsel
for K.B. objected on the basis of hearsay, but the juvenile court stated, “[It is]
premature. [I am] going to allow [Detective McKay] to answer the question.” In
response to the question as to whether she was able to identify the individuals in
the video surveillance footage, Detective McKay answered affirmatively,
12 We note that Detective McKay used the acronym “VCAIT” during her testimony, but
she did not explain what those letters represent. However, this Court may take judicial notice of government websites. Mendoza v. Mendoza, 2017-0070, p. 6 (La. App. 4 Cir. 6/6/18), 249 So.3d 67, 71 (citing Felix v. Safeway Ins. Co., 2015-0701, p. 7 (La. App. 4 Cir. 12/16/15), 183 So.3d 627, 632 & n.10). See also La. C.E. art. 201. A press release on the website for the United States Attorney’s Office for the Eastern District of Louisiana states that “VCAIT” stands for “Violent Crime Abatement Investigation Team.” See U.S. Attorney’s Office, Eastern District of Louisiana Joins Its Federal, State and Local Law Enforcement Partners in Addressing Violent Crime, JUSTICE.GOV (Feb. 16, 2022), https://www.justice.gov/usao-edla/pr/us-attorney-s-office-eastern- district-louisiana-joins-its-federal-state-and-local-law.
9 explaining that she and the other investigating officers “learned of a social media
account” after having obtained the video surveillance footage. Counsel for K.B.
and counsel for D.J. again objected, contending that any social media evidence
constituted hearsay and that the State had not authenticated the evidence. The
juvenile court noted the objection for the record but allowed the State and
Detective McKay to proceed. When shown State’s Exhibit 3, Detective McKay
identified it as a “still image that [she and other investigating officers] obtained
from social media” and described it as displaying a “young man wearing a very
distinctive full[-]faced mask.” Detective McKay explained that during “[her]
investigation with additional detectives that came on board to assist [her]” she
identified the social media user as D.J.13
Detective McKay then testified that “[t]hrough [her] investigation with other
detectives [she] obtained a still image photo of the other subject,” which image
came from the “car dash[board] cam[era] from another vehicle that was violently
taken in an armed carjacking.” Thereafter, the State asked for permission to
authenticate, which the juvenile court granted: the State showed State’s Exhibit 4
to Detective McKay, and she identified it as “[a] still image photo from the in car
dash[board] cam[era] that [she and the other investigating officers] received during
[their] investigation.” When asked to expand further on the identification process,
Detective McKay explained that “[they] were working together as detectives on
these cases and the photo was provided to further [her] investigation.” When asked
who was in the still image, Detective McKay responded, “K.B.” and identified
13 Counsel for D.J. objected to this identification based on “the lack of foundation” and
argued that Detective McKay could not “testify to something that other detectives have done.” Overruling the objection, the juvenile court responded, “[Detective McKay] just stated that she was part of the investigation.”
10 K.B. in the courtroom. Counsel for K.B. objected to the photo being admitted into
evidence on the basis that “[i]t was received from another detective that never
authenticated it.” The juvenile court noted the objection but admitted the photo into
evidence.
On cross-examination, counsel for K.B. asked Detective McKay whether she
conducted “a line-up procedure” with the complaining witness, Ms. Alfonso, and
Detective McKay responded that she did not conduct a line-up. Further, when
asked if “conduct[ing] a line-up to get confirmation of the actual complainant” is
standard procedure, Detective McKay responded, “[n]ot all the time.” When
pressed why she did not conduct a line-up, Detective McKay answered: “In this
particular case because we had so many hands-on detectives and the two persons
that were involved and identified were not strangers to the system in being
identified by myself and other detectives from previous cases.”
Detective April Augustine’s Testimony
Finally, the State called Detective April Augustine (“Detective Augustine”)
as a witness, and she testified that she was a police officer with the NOPD assigned
to the VCAIT Unit. Detective Augustine explained that she was working in this
capacity on November 30, 2022, at which time she investigated an armed
carjacking that had occurred on November 29, 2022, at approximately 6:20 a.m. at
South Cortez and Gravier Streets. When asked how she became involved in the
investigation, Detective Augustine explained that she and her partners “spotted the
[stolen] vehicle” and “decided to follow it until it became stationary so [that they]
could try to make an apprehension on the person that was driving the stolen
vehicle.” Detective Augustine testified that “[o]nce [the vehicle] was parked” she
and her partners “observed [a] . . . male” and “had knowledge of the person
11 through . . . previous investigation.” Thereafter, according to Detective Augustine,
the individual went into a barber shop, at which time she assisted with securing the
perimeter. Detective Augustine testified that “[a]fter he exited the barber shop, [the
individual] was apprehended” and “then [she] . . . secured the stolen [vehicle].”
Further, Detective Augustine explained that other “[o]fficers . . .
confiscate[d] [a] gun and then they brought it to [her] and [she] secured the firearm
in [her] vehicle temporarily.” When the State showed State’s Exhibit 5 to Detective
Augustine, she identified it as a “[b]lack semi-automatic handgun with an extended
magazine.” She testified that it had a label containing an item number that matched
the number assigned to the carjacking at South Cortez and Gravier Streets, and she
stated that was the firearm collected on November 30, 2022, outside of the barber
shop. Detective Augustine clarified that another officer handed her the gun on
November 30, 2022, and that although she was on the scene, she was not present
when that gun was actually recovered by a member of the NOPD because she was
securing the perimeter at that time.
Detective Augustine’s testimony reveals that the individual detained on
November 30, 2022, was D.J.; however, Detective Augustine clarified that she did
not see D.J. driving the stolen vehicle, did not see D.J. park the stolen vehicle, and
did not see D.J. get out of the stolen vehicle. Rather, Detective Augustine testified
that she saw D.J. walk toward the barber shop and that she was located on a side
street when D.J. exited the barber shop.
March 20, 2023 Judgment
After hearing closing arguments, the juvenile court proceeded to adjudicate
K.B. delinquent on Count 1 and Count 4. After the juvenile court stated D.J.’s
adjudication too, the following colloquy occurred:
12 THE COURT:
. . . Do you wish to waive delays?
[COUNSEL FOR D.J.]:
Yes.
All right. With [K.B.] it is ordered, adjudged, and decreed that you are a juvenile for proper placement with the Office of Juvenile Justice. You are hereby placed with the Office of Juvenile Justice. How old are you? Where are you? How old?
[K.B.]:
17.
17. On the one count of armed robbery; juvenile life. On the second count of armed robbery with the use of a firearm; juvenile life. All to run concurrent.
The same day as the hearing, March 20, 2023, the juvenile court signed a
judgment, which stated in pertinent part:
DELINQUENT ADJUDICATION
It is [ORDERED, ADJUDGED AND DECREED] that [K.B.] was a child under seventeen (17) years of age . . . at the time of the offense(s) herein and is within the purview of the Children’s Code and hereby found to be DELINQUENT as a result of having committed the following offense(s):
COUNT NUMBER OFFENSE 14:64 Armed robbery; use of firearm (2 counts) (Count 1 and 4)
DISPOSITION
It is [ORDERED, ADJUDGED, and DECREED] that the juvenile is a proper person for placement with the Office of Juvenile Justice and is hereby with the Office of Juvenile Justice for JUVENILE LIFE as to each count. Said sentences are to run concurrent and run concurrent with any other open cases.
13 On April 19, 2023, K.B. filed a Motion for Appeal regarding the March 20, 2023
judgment.
ASSIGNMENTS OF ERROR
K.B. asserts the following four assignments of error:
1. The [juvenile court] erred in admitting the video of the carjacking of the person identified as Ms. Alphonso [sic] when the State failed to lay the proper foundation for its admission. As Ms. Alphonso [sic] did not testify, the video was the sole evidence that an offense even occurred. The error therefore was not a harmless one.
2. It was error for the [juvenile court] to allow Detective McKay to testify as to the content of the inadmissible video allegedly depicting the carjacking of Ms. Alphonso [sic]. Not only was the testimony, in light of the lack of evidence of the original video’s loss or destruction, not the “best evidence” as to the content of the video, Detective McKay was also incompetent to testify as to the video’s content.
3. The [juvenile court] erred in allowing both Detective McKay and Detective Lunn to offer hearsay testimony regarding the identification of K.B. as the perpetrator of both offenses charged in the delinquency petition. The testimony of both detectives made it clear that the identifications were made by unidentified third parties. The use of hearsay to establish identity was so prejudicial that a new trial is mandated.
4. Patent Error - The [juvenile court] erred in failing to conduct a disposition hearing and then imposing a non-mandatory maximum disposition without a waiver of the hearing by either K.B. or his counsel.
Before discussing K.B.’s assignments of error, we must address some preliminary
matters.
PRELIMINARY MATTERS
Whether K.B.’s Appeal Was Timely Filed
As noted previously, the juvenile court signed the subject judgment on
March 20, 2023, and K.B. filed the instant appeal on April 19, 2023. Louisiana
Children’s Code Article 332(A) provides that “appeals shall be taken within fifteen
14 days from the mailing of notice of the judgment.”14 Because the record before this
Court did not contain a notice of judgment, on August 7, 2023, this Court ordered
the Clerk of Court for the Orleans Parish Juvenile Court (“Juvenile Court Clerk”)
to supplement the record with the notice of judgment regarding the March 20, 2023
judgment, so that we could determine whether this appeal was timely filed. In
response, this Court received a March 21, 2023 email chain, and the Juvenile Court
Clerk explained to this Court’s Clerk that this is the email by which counsel for
K.B. received the March 20, 2023 judgment. The Juvenile Court Clerk did not file
with this Court anything demonstrating that the Juvenile Court Clerk mailed the
judgment to K.B. and his counsel. In order to resolve whether K.B.’s appeal was
timely filed, we must determine whether the March 21, 2023 email was sufficient
to initiate the fifteen-day deadline for filing an appeal under La. Ch. C. art. 332(A):
if it was sufficient, then K.B.’s appeal was untimely.
In State in Interest of A.S., the juvenile court signed the subject judgment on
November 14, 2016, and on the next day, November 15, 2016, the sheriff’s office
14 Regarding the computation of time in juvenile matters, La. Ch. C. art. 114 provides:
A. In computing a period of time allowed or prescribed by law or by order of court, the date of the act, event, or default after which the period begins to run is not to be included. The last day of the period is to be included, unless it is a legal holiday, in which event the period runs until the end of the next day which is not a legal holiday.
B. A half-holiday is considered as a legal holiday.
C. A legal holiday is to be included in the computation of a period of time allowed or prescribed, except in any one of the following instances:
(1) It is expressly excluded.
(2) It would otherwise be the last day of the period, except that, for purposes of calculating a release date from an order of commitment, a legal holiday shall be included if it is the last day of the period.
(3) The period is less than seven days.
D. All Saturdays and Sundays are also considered as legal holidays.
15 “walked” the judgment to counsel for the appellant. 2017-0028, p. 4 (La. App. 4
Cir. 5/10/17), 220 So.3d 179, 183. Counsel for the appellant filed a motion for
appeal on December 5, 2016. Id. In response, the Department of Children and
Family Services (“DCFS”) argued that the appeal was untimely and that subject
matter jurisdiction had lapsed as a result. Id. In response to that argument, this
Court held:
Article 332 of the Louisiana Children’s Code states, in pertinent part, that “appeals shall be taken within fifteen days from the mailing of the notice of the judgment.” (Emphasis added). The “starting point for interpreting a statute is the language of the statute itself.” Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). The legislature is presumed to mean what it plainly says in the text of a statute. Cat’s Meow v. City of New Orleans, [19]98-0601, p. 15 (La. 10/20/98), 720 So.2d 1186, 1198. “Courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” State v. Williams, [20]10-1514, p. 6 (La. 3/15/11), 60 So.3d 1189, 1192. “When a law is clear and unambiguous, and its application does not lead to absurd consequences, it shall be applied as written.” Id. In the instant matter, the mailing of the judgment, not the custom or practice of the Sheriff’s Office, marked the start of the time delay for filing a Notice of Appeal. Therefore, DCFS’s argument that subject matter jurisdiction lapsed is without merit. We find the Notice of Appeal timely and as such, will consider the merits of [a]ppellant’s appeal.
Id. at pp. 5-6, 220 So.3d at 183-84 (footnote omitted).
In addition to that precedent, we have not located any cases in which a court
has held that an email is sufficient to initiate the fifteen-day period outlined in La.
Ch. C. art. 332(A). As emphasized in State in Interest of A.S., La. Ch. C. art.
332(A) specifies that the time period begins upon mailing of the judgment and
does not provide emailing as an alternative method even if that is the custom of the
Orleans Parish Juvenile Court. Additionally, “[a]ppeals are favored in law and any
doubt shall be resolved in favor of maintaining, rather than dismissing an appeal.”
Modicue v. Prince of Peace Auto Sale, LLC, 54,095, p. 9 (La. App. 2 Cir. 9/22/21),
16 328 So.3d 1239, 1246 (citing Morice v. Alan Yedor Roofing & Constr., 2016-532,
p. 10 (La. App. 5 Cir. 2/8/17), 216 So.3d 1072, 1079). Accordingly, “[u]nless the
grounds for dismissal are free from doubt, the appeal should be maintained.” Id.
See also State v. Fin. Cas. & Sur., 2017-1014, 2018-0242, p. 7 (La. App. 4 Cir.
11/7/18), 318 So.3d 713, 717 (quoting Garco, Inc. v. Rob’s Cleaning &
Powerwash, Inc., 2008-1249, p. 3 (La. App. 4 Cir. 4/22/09), 12 So.3d 386, 388)
(noting that “[i]n the absence of the clerk’s certificate showing the date of the
mailing of the judgment and to whom it was mailed, doubt should be resolved in
favor of the right to appeal”). In the matter sub judice, mailing of the judgment, not
the custom or practice of the Juvenile Court Clerk of emailing the judgment, would
have marked the start of the time delay for filing an appeal.
Therefore, we find that K.B. timely filed this appeal, and we will consider
the merits of his appeal. Before proceeding with the merits, we must discuss two
more preliminary matters.
Applicability of the Louisiana Code of Criminal Procedure
At the outset, we note that La. Ch. C. art. 104 states that “[w]here procedures
are not provided in this Code, or otherwise by law, the court shall proceed in
accordance with” the Louisiana “Code of Criminal Procedure in a delinquency
proceeding and in a criminal trial of an adult.” Additionally, La. Ch. C. art. 803,
which is in the section of the Louisiana Children’s Code labeled “Title VIII.
Delinquency,” provides that “[t]he provisions of this Title shall govern and
regulate delinquency proceedings of courts exercising juvenile jurisdiction.” If
“procedures are not provided in this Title, or otherwise by [the Louisiana
Children’s] Code” though, “the court shall proceed in accordance with the Code of
Criminal Procedure.” La. Ch. C. art. 803. See also State in Interest of C.H., 2021-
17 0516, p. 17 (La. App. 4 Cir. 1/26/22), 335 So.3d 451, 462. Thus, this Opinion will
apply the Louisiana Children’s Code when possible and the Louisiana Code of
Criminal Procedure in the absence of an applicable Children’s Code provision.
Errors Patent Review
In accordance with La. C.Cr.P. art. 920, we review appeals for errors patent.
An error patent is one “that is discoverable by a mere inspection of the pleadings
and proceedings and without inspection of the evidence.” La. C.Cr.P. art. 920(2).
Though the Louisiana Children’s Code does not specify whether a juvenile
proceeding is entitled to an errors patent review, this Court has found that La. Ch.
C. art. 104 and La. C.Cr.P. art. 920, when read in conjunction with each other,
mandate an errors patent review. State in Interest of C.H., 2021-0516, p. 19, 335
So.3d at 463 (citing State in Interest of A.P., 2020-0623, p. 6 (La. App. 4 Cir.
4/21/21), 317 So.3d 887, 890). Accordingly, in juvenile delinquency cases, this
Court has adopted the practice of conducting an errors patent review. Id. (citing
State in Interest of W.B., 2016-0642, p. 4 (La. App. 4 Cir. 12/7/16), 206 So.3d 974,
978).
A review of the record for errors patent in this case reveals one: the juvenile
court failed to conduct a disposition hearing. See State in Interest of W.B., 2016-
0642, pp. 4-6, 206 So.3d at 978-79 (wherein this Court held that the juvenile
court’s failure to conduct a disposition hearing prior to entering a judgment of
disposition in the absence of a valid waiver constituted an error patent). We note
that K.B. labels his fourth assignment of error as a “[p]atent [e]rror.” Therein, he
asserts that “the [juvenile] judge erred in failing to conduct a disposition hearing
and then imposing a non-mandatory maximum disposition without a waiver of the
hearing by either K.B. or his counsel.” Accordingly, we will address this error
18 patent in our discussion of K.B.’s fourth assignment of error. Moreover, we note
that K.B.’s first, second, and third assignments of error concern his adjudication of
delinquency: if we were to determine that the trial court committed reversible error
in adjudicating K.B. delinquent, then this would render moot any error regarding
K.B.’s disposition.
Assignment of Error Number One: Whether the Juvenile Court Erred in Permitting the Admission of the Videotape of the Carjacking of Ms. Alfonso Because the State Did Not Properly Authenticate or Identify the Video Surveillance Footage
In his first assignment of error, K.B. contends that the juvenile court “judge
erred in admitting the video of the carjacking of the person identified as Ms.
Alphonso [sic] when the State failed to lay the proper foundation for its
admission.” Further, he asserts that because “Ms. Alphonso [sic] did not testify, the
video was the sole evidence that an offense even occurred. The error therefore was
not a harmless one.”
19 Standard of Review
As this Court has explained, a trial court has great discretion in determining
if a party has laid a sufficient foundation for the admission of evidence, and an
appellate court reviews a ruling on the admissibility of evidence for an abuse of
that discretion. State v. Groves, 2020-0450, p. 29 (La. App. 4 Cir. 6/10/21), 323
So.3d 957, 975 (citing State v. Ashford, 2003-1691, p. 14 (La. App. 4 Cir. 6/16/04),
878 So.2d 798, 806; State v. Wright, 2011-0141, pp. 10-11 (La. 12/6/11), 79 So.3d
309, 316). See also State v. Chambers, 2016-0712, pp. 12-13 (La. App. 4 Cir.
2/15/17), 212 So.3d 643, 651 (citing Wright, 2011-0141, pp. 10-11, 79 So.3d at
316); State in Interest of J.H., 2022-0324, pp. 11-12 (La. App. 4 Cir. 8/9/22), 2022
WL 3210100, at *6 (citing State v. Cosey, 1997-2020, p. 13 (La. 11/28/00), 779
So.2d 675, 684; Ashford, 2003-1691, p. 14, 878 So.2d at 806).
Authentication or Identification of Evidence
“Authentication of evidence is required in order for evidence to be
admissible at trial.” State v. Smith, 2015-1359, p. 6 (La. App. 4 Cir. 4/20/16), 192
So.3d 836, 840. Louisiana Code of Evidence Article 901 is titled “[r]equirement of
authentication or identification.” It states, in pertinent part, that “[t]he requirement
of authentication or identification as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the matter in question is
what its proponent claims.” La. C.E. art. 901(A). Louisiana Code of Evidence
Article 901(B) “provides an illustrative, though not exhaustive, list of examples of
authentication or identification that conforms with the requirements of the article.”
Smith, 2015-1359, p. 6, 192 So.3d at 840. It states, in pertinent part:
B. Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this Article:
20 (1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.
(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.
(9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.
La. C.E. art. 901(B). Additionally, this Court has held that “[t]he identification of
the evidence may also be satisfied ‘by chain of custody, that is, by establishing the
custody of the object from the time it was seized to the time it was offered in
evidence.’” State in Interest of J.H., 2022-0324, p. 11, 2022 WL 3210100, at *6
(quoting State v. Martin, 2013-0115, pp. 9-10 (La. App. 4 Cir. 12/4/13), 131 So.3d
121, 128).
A party establishes a sufficient foundation for the admission of a piece of
evidence “when the evidence as a whole shows it is more probable than not that the
object is one connected with the crime charged.” State v. Parks, 2007-655, p. 17
(La. App. 5 Cir. 1/22/08), 977 So.2d 1015, 1028 (citing State v. Arita, 2004-39, p.
9 (La. App. 5 Cir. 3/1/05), 900 So.2d 37, 43). “The identification can be visual,
through testimony.” Id. “Generally, the standard applied by state and federal courts
alike with respect to the authentication of a document is whether there is sufficient
evidence from which a reasonable juror could find the proposed evidence is what
the proponent claims it to be.” Smith, 2015-1359, p. 6, 192 So.3d at 840 (citing
State v. Lee, 2001-2082, p. 9 (La. App. 4 Cir. 8/21/02), 826 So.2d 616, 624).
21 This Court has held that “a photograph need not be identified by the person
who took it to be admissible” and that “[t]he proper foundation for the admission
of a photograph into evidence is laid when a witness having personal knowledge of
the subject depicted by the photograph identifies it as such.” State v. Doucette,
2017-0501, 0768, pp. 18-19 (La. App. 4 Cir. 5/23/18), 243 So.3d 704, 715 (citing
State v. LeBlanc, 2010-1484, p. 22 (La. App. 4 Cir. 9/30/11), 76 So.3d 572, 586).
See also S.L.B. v. C.E.B., 2017-0978, 0979, 0980, p. 28-30 (La. App. 4 Cir.
7/27/18), 252 So.3d 950, 969-70. Similarly, the person who authenticates video
footage need not be the one who originally recorded the video if the person has
knowledge that the video is what the proponent claims it to be and can provide
information about the content of the footage. See Groves, 2020-0450, pp. 28-32,
323 So.3d at 975-77; State v. Gray, 2016-1195, pp. 21-30 (La. App. 4 Cir.
6/28/17), ___ So.3d ___, ___, 2017 WL 3426021, at *11-16. For example, in Gray,
the State sought to introduce certain YouTube videos into evidence and attempted
to authenticate the videos by presenting the testimony of a detective who
investigated social media evidence in search of crimes and gang activities. 2016-
1195, p. 23, ___ So.3d at ___, 2017 WL 3426021, at *12. The detective identified
the videos and made an in-court identification of the defendant as the person in the
videos. Id. at pp. 23-25, ___ So.3d at ___, 2017 WL 3426021, at *12-13. The
detective also provided the location of the videos and estimated that the videos
were filmed sometime between 2010 and 2013. Id. On appeal, this Court
concluded that the detective’s testimony provided sufficient support for the district
22 court’s finding that the YouTube videos were what the State claimed them to be
and thus admissible. Id. at p. 30, ___ So.3d at ___, 2017 WL 3426021, at *16.15
Likewise, in the matter sub judice, Detective McKay recalled that she
obtained the video surveillance footage in the course of her investigation of the
carjacking of Ms. Alfonso, which occurred on November 29, 2022. Detective
McKay explained that when she viewed the video surveillance footage that she
obtained from the location of the carjacking (South Cortez and Gravier Streets), it
showed one individual “in a red hoodie/shirt” who “opened up the driver door of
the victim’s vehicle” while “armed with a firearm” and “reached in and pulled [the
victim] from the vehicle.” Detective McKay testified that in the footage was
“[a]nother guy . . . who had on a very distinctive face mask” and “came around as
if he was going to assist the other gentleman.” Continuing, Detective McKay
explained that “[o]nce the victim was fully out of her vehicle, the guy in the red
shirt, he gets in her vehicle and the two vehicles fled the location behind one
another.” Thereafter, when the State played the video surveillance footage,
Detective McKay identified Ms. Alfonso’s “white vehicle that was . . . parked at
the corner of Gravier and South Cortez” Streets. Detective McKay testified that she
recognized the location not only because she visited it during her investigation but
also because she works in that area and is “familiar” with it. Specifically, Detective
McKay identified the building on which the surveillance camera was affixed as
“right across from the Entergy building.” Detective McKay also identified the date
and time stamp of the video as “November 29, 2022, 7:26 a.m.,”16 thereby
15 Though the discussion sections in Groves and Gray noted that these were social media
videos, the reasoning and analyses found in those cases are applicable here too.
23 corresponding with the date and time of the carjacking of Ms. Alfonso.
Additionally, Detective McKay stated that she subsequently identified the
individuals in the video surveillance footage as D.J. and K.B.
Considering the foregoing, we find that Detective McKay’s testimony was
that “of [a] witness with knowledge” that the video is “what it is claimed to be”
and that she provided “[d]istinctive characteristics and the like.” See La. C.E. art.
901(B)(1),(4). Her testimony provided sufficient evidence from which a reasonable
juror could find the video surveillance footage is what the proponent claims it to
be. Thus, the juvenile court did not err in admitting the video surveillance footage
into evidence based on Detective McKay’s testimony serving as the basis for its
authentication or identification.
Case Cited by K.B.: State in Interest of J.H.
We further note that, in support of his first assignment of error, K.B. cites to
State in Interest of J.H., 2022-0324, 2022 WL 3210100. Therein, a panel of this
Court reviewed the juvenile court’s admission of video surveillance footage
obtained by Detective Amit Bidichandani (“Detective Bidichandani”) from the
director of a housing development. Id. at pp. 2-3, 10-14, 2022 WL 3210100, at *1,
6-7. The Court summarized the detective’s testimony as follows:
Det[ective] Bidichandani obtained video surveillance footage from the director of the . . . [h]ousing [d]evelopment, Mr. Pollard. Det[ective] Bidichandani stated that, from his previous experience working in that area, he knew that the . . . [h]ousing [d]evelopment had surveillance cameras recording video in the area where the incident occurred. Det[ective] Bidichandani obtained from Mr. Pollard a video recording from the date, location, and approximate time of the reported incident. In the video, Det[ective] Bidichandani viewed a person, who fit the description from the witnesses, pulling a firearm from his waistband.
16 We note that during her testimony at the March 20, 2023 hearing, Detective McKay
estimated that the incident had occurred between “6 and 6:30.”
24 Id. at pp. 2-3, 2022 WL 3210100, at *1. In holding that the juvenile court abused
its discretion in admitting the footage into evidence, the Court emphasized that
Detective Bidichandani “received a copy of an excerpt of a video recording from a
third party who did not testify regarding the process or system by which the video
was created” and that there was thus “no testimony regarding the accuracy of the
video.” Id. at p. 13, 2022 WL 3210100, at *7. The Court also observed that
because “Det[ective] Bidichandani received this from a non-testifying third party,
the chain of custody [was] not . . . properly established.” Id.
However, we find the reasoning of State in Interest of J.H. distinguishable
from the matter sub judice. First, as explained previously, the Court in State in
Interest of J.H. concluded that the juvenile court abused its discretion because no
one testified regarding the process or system by which the video was created.
2022-0324, p. 13, 2022 WL 3210100, at *7. Though La. C.E. art. 901(B)(9) lists
“process or system” as a method of authenticating or identifying evidence, La. C.E.
art. 901(B) specifically states that the list contained therein is “[b]y way of
illustration only, and not by way of limitation” and that it constitutes a list of
“examples of authentication or identification.” Moreover, in other cases this Court
has emphasized that La. C.E. art. 901(B) is not an “exhaustive” list. See Smith,
2015-1359, p. 6, 192 So.3d at 840. Thus, we find that citing to a party’s failure to
authenticate or identify evidence via one of the specific listed methods is an
improper interpretation of La. C.E. art. 901(B).
Second, in so holding, the Court in State in Interest of J.H., also stated that
the State had not properly established the chain of custody. 2022-0324, p. 13, 2022
WL 3210100, at *7. However, in discussing chain of custody, the Court in State in
Interest of J.H. also specifically stated that “[t]he identification of the evidence
25 may also be satisfied ‘by chain of custody, that is, by establishing the custody of
the object from the time it was seized to the time it was offered in evidence.’” Id. at
p. 11, 2022 WL 3210100, at *6 (emphasis added). Thus, like “process or system,”
the chain of custody is just another potential method for identifying or
authenticating evidence. That is, the failure to authenticate or identify evidence in
this matter does not mean that the evidence has not been properly or sufficiently
authenticated or identified; therefore, the failure to authenticate or identify
evidence via one of these listed methods should not automatically be deemed fatal
by a court.
Additionally, it is worth noting that although the Court in State in Interest of
J.H. listed La. C.E. art. 901(B)(1) and (4) in one of its opening rule statements
about authentication and identification of evidence, the Court did not appear to
consider whether these examples of methods of authentication or identification
were applicable in the matter (i.e., (1) testimony of witness with knowledge and (4)
distinctive characteristics and the like). 2022-0324, p. 11, 2022 WL 3210100, at
*6). Yet, the Court summarized the State’s argument about the authentication or
identification of the footage in this regard:
Det[ective] Bidichandani testified that he was familiar with the neighborhood of the . . . [h]ousing [d]evelopment, where the incident occurred; he knew to contact Mr. Pollard, the security director, about video surveillance; he retrieved the video footage from Mr. Pollard; and, from “previous experience collecting video footage from this area”, he knew “that their camera systems and layout is accurate.”
Id. at p. 13, 2022 WL 3210100, at *6. However, the Court did not discuss La. C.E.
art. 901(B)(1) and (4) in its analysis or explain why Detective Bidichandani’s
testimony to this effect failed to satisfy La. C.E. art. 901(B)(1) and/or La. C.E. art.
901(B)(4).
26 Finally, the Court in State in Interest of J.H. appears to have relied in its
reasoning on distinguishing its facts from the situation the Louisiana Supreme
Court addressed in State v. Rice, 2017-0446 (La. 6/29/17), 222 So.3d 32. 2022-
0324, pp. 12-13, 2022 WL 3210100, at *6. In Rice, the district court concluded that
the State had not sufficiently authenticated video surveillance footage and
sustained an objection to the footage lodged by the prosecution. 2017-0446, pp. 1-
2, 222 So.3d at 32-33. The Louisiana Supreme Court disagreed, explaining:
[T]he defense called Shelby Williams, who lives across the street from defendant and whose video surveillance system captured defendant at, according to Mr. Williams’s testimony, times pertinent to when the offenses occurred. . . .
The requirement of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. La. C.E. art. 901(A). Such evidence may come in the form of testimony by a witness with knowledge that the matter is what it is asserted to be; indications of the item’s distinctive characteristics, including its contents, substance, internal patterns, and other distinctive characteristics; or evidence describing the process or system used to produce the item and showing that the process or system produces an accurate result. See La.C.E. art. 901(B)(1), (4), and (9).
Such a showing was made by Mr. Williams’s testimony. Contrary to the prosecutor’s objection—urging that there was no custodian who could testify about the process by which the video was produced—Mr. Williams explained that he had personally designed and managed the video surveillance system at his home (for security purposes) and knew the video at issue to be what it was asserted to be. He also described the process and system by which the video was created and testified to the accuracy of that system
Id. at pp. 1-3, 222 So.3d at 33-34 (footnotes omitted).
After summarizing Rice, the Court in State in Interest of J.H. distinguished it
by observing that “the State offered no testimony from a person who maintained
the surveillance video system that recorded the video, to describe the process or
27 system by which the video was created and to attest to the accuracy of the system.”
2022-0324, p. 13, 2022 WL 3210100, at *6. However, as the above excerpt from
Rice demonstrates, the Louisiana Supreme Court addressed the narrow issue of
whether the footage could be authenticated by Mr. Williams in light of Mr.
Williams’ testimony that his video surveillance system had captured the defendant
at times pertinent to when the offenses occurred, as well as Mr. Williams’
testimony that he designed and managed the video surveillance system. 2017-0446,
pp. 1-3, 222 So.3d at 33-34. Notably, the Louisiana Supreme Court did not say that
this was the only way the footage could have been authenticated or identified or
that Mr. Williams was the only witness who could have authenticated or identified
the footage. Id.
Assignment of Error Number Two: Whether the Juvenile Court Erred in Permitting Detective McKay to Testify as to the Content of the Video Surveillance Footage
“Best Evidence” Rule
In his second assignment of error, K.B. asserts, in part, that “[i]t was error
for the [juvenile court] to allow Detective McKay to testify as to the content of the
inadmissible video allegedly depicting the carjacking of Ms. Alphonso [sic].” In
this assignment of error, K.B. contends that Detective McKay’s testimony was
“not the ‘best evidence’ as to the content of the video,” especially “in light of the
lack of evidence of the original video’s loss or destruction.” In his Appellant Brief,
K.B. argues that because “the video at issue was available, there was no need for a
witness to testify as to its content.” In so arguing, K.B. appears to conflate the
older, broader version of the “best evidence rule” with the current version of the
rule.
As the Louisiana First Circuit Court of Appeal explained in State v. Francis:
28 The repeal of La. R.S. 15:436 and the adoption of the Code of Evidence resulted “in the demise of any broad ‘best evidence’ rule of exclusion of evidence.” La.C.Ev. Chapter 10, Introductory Note, p. 127 (West 1991). Even under the jurisprudence cited by defendant, defendant’s arguments are without merit. Prior to its repeal, La. R.S. 15:436 provided that “[t]he best evidence which from the nature of the case must be supposed to exist, and which is within a party’s control, must be produced.” Jurisprudence prior to adoption of the Code of Evidence provided that the best evidence of a tape recording was the unaltered tape. An accurate transcription of the tape would be better evidence than oral testimony based on a recollection of a witness to the conversation. See State v. Sterling, 444 So.2d 273, 281 (La. App. 1st Cir. 1983).
597 So.2d 55, 59 (La. App. 1st Cir. 1992) (alteration in original). In contrast to the
broad best evidence rule found in the now repealed La. R.S. 15:436, “[t]he current
Louisiana Code of Evidence provides that ‘[t]o prove the content of a writing,
recording, or photograph, the original writing, recording, or photograph is required,
except as otherwise provided by this Code or other legislation.’” State v. Mattire,
2011-2390 (La. App. 1 Cir. 9/21/12), 2012 WL 4335432, at *9 (second alteration
in original) (quoting La. C.E. art. 1002).
In State v. Scott, the defendant asserted that the trial court erred by allowing
a deputy to testify concerning the contents of his arrest or police report. 27,104, p.
6 (La. App. 2 Cir. 6/21/95), 658 So.2d 251, 255. Instead, defendant contended that
“the best evidence of the ‘arrest report’ was the report itself.” Id. On appeal, the
Louisiana Second Circuit Court of Appeal found the defendant’s reliance on the
best evidence rule to be “inappropriate,” because “[t]he broad best evidence rule
upon which defendant relie[d] no longer exists.” Id. at p. 7, 658 So.2d at 255.
Similar to the defendant in Scott, K.B. asserts in his Appellant Brief that because
“the video at issue was available, there was no need for a witness to testify as to its
content.” Like in Scott, K.B.’s argument is misguided because it relies on the
version of the best evidence rule that no longer exists. That is, the juvenile court
29 did not err in admitting Detective McKay’s testimony about the video surveillance
footage on the ground that the footage itself was also available.
Moreover, La. C.E. art. 1002 applies when a party is attempting “[t]o prove
the content” of the evidence. As the analysis regarding K.B.’s first assignment of
error reveals, Detective McKay’s testimony about the video surveillance footage
served to lay the foundation for its admissibility under La. C.E. art. 901, not as a
summary of its contents. Instead, the State offered the video surveillance footage
itself into evidence as proof of the content therein contained.
Competency of Detective McKay to Testify
In his second assignment of error, K.B. also asserts that Detective McKay
was not a competent witness. He contends that “[i]t does not appear the [sic]
Detective McKay developed personal knowledge so as to be a competent witness
to testify as to the contents of the video.” Also, more broadly, K.B. argues that
“[i]n this case there was no evidence introduced that Detective McKay had any
personal knowledge of the case.”
Louisiana Code of Evidence Article 601 provides for a “[g]eneral rule of
competency” by stating that “[e]very person of proper understanding is competent
to be a witness except as otherwise provided by legislation.” One exception is that
“[a] witness may not testify to a matter unless evidence is introduced sufficient to
support a finding that he has personal knowledge of the matter. Evidence to prove
personal knowledge may, but need not, consist of the testimony of the witness
himself.” La. C.E. art. 602. “A key determination to be made is whether the
witness is able to understand the difference between truth and falsehoods.” State v.
Woodberry, 2014-0476, p. 22 (La. App. 4 Cir. 6/3/15), 171 So.3d 1082, 1096
(quoting State v. Deutor, 2002-1869, pp. 6-7 (La. App. 4 Cir. 3/19/03), 842 So.2d
30 438, 442). “[G]reat weight is given to the trial judge’s determination of
competency because of his [or her] opportunity to see and hear the witness. The
trial court’s decision should not be overturned absent manifest error.” State v.
Willars, 27,394, p. 10 (La. App. 2 Cir. 9/27/95), 661 So.2d 673, 682 (citing State v.
Bean, 582 So.2d 947, 952 (La. App. 2nd Cir. 1991)).
For example, in State v. Williams, the State showed a video from the time of
the subject shooting to the jury, and “Detective [Shonndell] Fields [(“Detective
Fields”)] simply described what the video depicted: one person pursuing another
from the Scotts’ house across the street to the AutoZone parking lot. Detective
Fields then identified the two people in the video as [the defendant, Tremaine]
Williams and Freddie Scott.” 2022-0710, p. 7 (La. App. 4 Cir. 5/15/23), ___ So.3d
___, ___, 2023 WL 3450945, at *4. On appeal, the defendant argued that Detective
Fields lacked the requisite personal knowledge to testify regarding the events
depicted in the video because she was not an eye-witness to the crime, and the
defendant cited La. C.E. art. 602 in support of his argument. Id. at p. 8, ___ So.3d
at ___, 2023 WL 3450945, at *4. This Court concluded that the district court had
not erred in permitting Detective Fields to testify about the video, explaining that
her “testimony demonstrated that, through her investigation, she gained adequate
personal knowledge of the scene of the shooting, the events of the shooting, and
the persons involved to testify to the contents of the . . . video.” Id.
Likewise, in this matter, the record does not support a finding that the
juvenile court committed manifest error in permitting Detective McKay to testify
about the video surveillance footage. Like Detective Fields, Detective McKay’s
testimony demonstrated that, through her investigation, she gained adequate
personal knowledge to testify about the video surveillance footage. In particular,
31 Detective McKay testified that she visited the scene of the carjacking; collected the
video surveillance footage herself; recounted what she had viewed in the footage;
and explained how her investigation eventually led to identifying the perpetrators
in the footage as D.J. and K.B. Moreover, though K.B. argues that Detective
McKay lacked competency “to testify as to the contents of the video,” as discussed
previously, Detective McKay’s testimony served to authenticate the video
surveillance footage, not to prove its contents. In the latter regard, the State entered
the video surveillance footage itself into evidence.
In sum, we conclude that the juvenile court did not err in permitting
Detective McKay to testify about the video surveillance footage. K.B.’s second
assignment of error is without merit.
Assignment of Error Number Three: Whether the Juvenile Court Erred in Allowing Hearsay Testimony
In his third assignment of error, K.B. contends that the juvenile court “erred
in allowing both Detective McKay and Detective Lunn to offer hearsay testimony
regarding the identification of K.B. as the perpetrator of both offenses charged in
the delinquency petition.” According to K.B., “[t]he testimony of both detectives
made it clear that the identifications were made by unidentified third parties. The
use of hearsay to establish identity was so prejudicial that a new trial is mandated.”
K.B. argues that this deprived him “of his constitutional rights to confront his
accusers and to a fair trial.”
Standard of Review
As with a district court’s ruling on the admissibility of other types of
evidence, the abuse of discretion standard of review applies to a district court’s
ruling on the admissibility of hearsay evidence. State v. Clanton, 2019-0316, p. 8
32 (La. App. 4 Cir. 11/6/19), 285 So.3d 31, 37 (citing State v. Randolph, 2016-0892,
p. 11 (La. App. 4 Cir. 5/3/17), 219 So.3d 425, 433; State v. Brown, 1997-2260, p. 8
(La. App. 4 Cir. 10/6/99), 746 So.2d 643, 648).
Applicable Hearsay Principles
Louisiana Code of Evidence Article 801(C) defines “hearsay” as “a
statement, other than one made by the declarant while testifying at the present trial
or hearing, offered in evidence to prove the truth of the matter asserted.” “Hearsay
is not admissible except as otherwise provided by this Code or other legislation.”
La. C.E. art. 802. However, this Court has held that “[a] police officer, in
explaining his own actions, may refer to statements made to him by other persons
involved in the case. Such statements are admitted not to prove the truth of the
assertion, but to explain the sequence of events leading to the arrest of the
defendant from the viewpoint of the investigating officer.” State v. Keelen, 1995-
0668, p. 6 (La. App. 4 Cir. 2/29/96), 670 So.2d 578, 582 (quoting State v. Watson,
449 So.2d 1321, 1328 (La. 1984)). “A police officer’s testimony may include
information provided by another individual without constituting hearsay only when
it is offered to explain the course of the investigation or the officer’s actions.” State
in Interest of M.B., 2019-0931, p. 11 (La. App. 4 Cir. 2/12/20), 292 So.3d 930,
938-39 (citing Randolph, 2016-0892, p. 12, 219 So.3d at 434).
For example, in State v. Mitchell, the district court upheld the testimony of
Detective Ben Bourgeois (“Detective Bourgeois”) and described it as providing
answers and statements in which he explained that he showed surveillance footage
to the victim’s mother, who stated that she thought that the footage showed the
defendant with her son. 2016-0834, pp. 18-20 (La. App. 1 Cir. 9/21/17), 231 So.3d
710, 725-26. The Louisiana First Circuit Court of Appeal affirmed, concluding that
33 Detective Bourgeois’ testimony did not constitute hearsay and summarizing his
testimony as follows:
The questioning by the State was to elicit the steps Detective Bourgeois took to develop the defendant as a possible suspect. The detective explained that he had gotten information that [the victim] was last seen at the bar, and that he had gotten a copy of the bar surveillance video. The detective observed [the victim] and an unknown person leave the bar parking lot around 10:10 p.m. The State then stated, “Okay. And based on that information, what happened next, Detective.” Responding in a somewhat extended narrative, Detective Bourgeois explained that he was able to copy some of the surveillance video to his cell phone, and showed this video to the [victim]’s parents. He then stated that [the victim]’s mother saw who appeared to be the defendant on the video, and that she gave him the defendant’s cell phone number. The detective then continued to explain, in narrative form, how he pursued his investigation with the defendant’s number.
We find, as well, based on the foregoing, that what [the victim’s mother] told Detective Bourgeois was not hearsay because it was not offered for the truth of the matter asserted. See La. [C.E.] art. 801(C). Detective Bourgeois was merely setting out how, during his investigation, each bit of information led to new information, which led finally to all evidence pointing to the defendant. There is no indication that Detective Bourgeois’s statement about what [the victim’s mother] told him was made in order to prejudice the defendant, but rather how his investigation unfolded. See State v. Tribbet, 415 So.2d 182, 184-85 (La. 1982); State v. Henson, 351 So.2d 1169, 1170-71 (La. 1977). Such testimonial evidence of a police officer is admitted not to prove the truth of the out-of-court statements, but to explain the sequence of events leading to the arrest of the defendant from the viewpoint of the investigating officer. See State v. Patton, 2010-1841 (La. App. 1[] Cir. 6/10/11), 68 So.3d 1209, 1220; State v. Taylor, 2007-93 (La. App. 5[] Cir. 11/27/07), 973 So.2d 83, 98, writ denied, 2007-2454 (La. 5/9/08), 980 So.2d 688.
Id. at pp. 19-20, 231 So.3d at 725-26.
Detective McKay
Turning to the testimony in the matter sub judice, when asked whether she
was able to identify the individuals in the video surveillance footage that she had
obtained in her investigation into the carjacking of Ms. Alfonso, Detective McKay
answered affirmatively. After describing how she and other investigating officers
34 identified D.J. as one of the individuals in the video surveillance footage via a
social media account, Detective McKay then testified about her identification of
K.B., and the following colloquy occurred:
Q Detective, I placed before you what State is going to mark as Exhibit 4. What have I presented to you?
A A still image photo from the in car dash[board] cam[era] that we received during our investigation.
Q How do you know that?
A We were working together as detectives on these cases and the photo was provided to further my investigation.
Q And were you able to identify who was in that still image?
Q Who was that?
A [K.B.]
As evidenced by the above colloquy, counsel for the State asked Detective McKay
whether she was able to identify who was in the image from the dash camera
footage, and she answered affirmatively. That is, contrary to K.B.’s contention,
Detective McKay never testified that another unidentified officer or third party
identified K.B. for her. Rather, and analogous to the detective’s testimony in
Mitchell, she merely described the sequence of events leading to her identification
of K.B. from her viewpoint as the investigating officer.
Detective Lunn
Turning to K.B.’s contention regarding Detective Lunn, we note at the outset
that counsel for K.B. did not object on hearsay grounds after Detective Lunn
testified that he ultimately identified the individual in the still image from Mr.
35 Willhide’s dashboard camera as K.B. Rather, counsel for K.B. objected on Prieur
grounds to Detective Lunn’s reference to “other districts [sic] investigations” but
did not lodge a hearsay objection following Detective Lunn’s testimony that he
identified K.B. The only time counsel for K.B. objected on hearsay grounds during
Detective Lunn’s testimony is when counsel for the State asked Detective Lunn
how he confirmed that the dashboard camera was from Mr. Willhide’s car, and
Detective Lunn began to respond, “So when we found it - - I believe my sergeant
noticed it was a dash[board] camera, so he contacted the officer and asked him if
he had - - .” The juvenile court did not have a chance to rule on this objection
before counsel for the State instead asked Detective Lunn whether he had an
opportunity to review the footage obtained from Mr. Willhide’s dashboard camera,
and Detective Lunn responded in the affirmative and then described what he had
viewed on the footage. On appeal, however, K.B.’s contention that hearsay
occurred during Detective Lunn’s testimony is centered on the argument that “the
identifications [of K.B.] were made by unidentified third parties,” not about
Detective Lunn’s confirmation that the dashboard camera came from Mr.
Willhide’s car. (Emphasis added).
As stated in La. C.Cr.P. art. 841, “[a]n irregularity or error cannot be availed
of after verdict unless it was objected to at the time of occurrence.” In interpreting
La. C.Cr.P. art. 841, this Court has explained that “[a] new basis for objection
cannot be raised for the first time on appeal.” State in Interest of C.H., 2021-0516,
p. 18, 335 So.3d at 462 (quoting State v. Magrini, 2019-0951, p. 26 (La. App. 4
Cir. 5/27/20), 301 So.3d 525, 540). Thus, we find that the issue of whether
Detective Lunn’s identification of K.B. constituted hearsay was not preserved for
36 review. See State ex rel. L.T., 1999-487, p. 8 (La. App. 3 Cir. 10/13/99), 747 So.2d
148, 153 (citing La. C.Cr.P. art. 841).
Regardless, we note that Detective Lunn never testified that another officer
or anyone else identified K.B. for him. Rather, Detective Lunn explained that after
recovering Mr. Willhide’s dashboard camera, he was able to capture an image of
one of the two perpetrators from the footage. Thereafter, the following colloquy
occurred:
Q Okay. So you were able to capture the images -- you were able to capture that image?
A Yes, it should be saved to a disc and everything.
Q Okay. Were you able to identify that person?
A I was later on through some other districts investigations as well.
Q And were you able to identify the person in that still shot?
A Yes, I was.
Q And who was that person?
Like the detective in Mitchell and like Detective McKay, Detective Lunn laid out
how the course of his investigation led to identifying K.B. Again, contrary to
K.B.’s assertion, Detective Lunn did not testify that someone else identified K.B.
for him.
Similarly, we find that the juvenile court did not err in failing to sustain the
hearsay objection lodged to Detective Lunn’s response to how he confirmed that
the dashboard camera came from Mr. Willhide’s car. Like in Mitchell, Detective
Lunn’s testimony about how he confirmed that the dashboard camera came from
37 Mr. Willhide’s car was an explanation about the course of his investigation. See
also State v. Coleman, 32,906, p. 27 (La. App. 2 Cir. 4/5/00), 756 So.2d 1218,
1239 (wherein a deputy testified that “[w]e learned that through the course of
investigation. The day of the murder he has three other witnesses to count [sic] for
his whereabouts, where he was at the approximate time of the murders;” and the
Louisiana Second Circuit Court of Appeal concluded that this did not constitute
hearsay, explaining that “[t]he State correctly argues that [the deputy] was
testifying as to the results of his investigation.”)
Accordingly, we conclude that that K.B’s third assignment of error lacks
merit.
Assignment of Error Number Four: Whether the Juvenile Court Committed an Error Patent in Failing to Conduct a Disposition Hearing Without a Waiver from K.B. or His Counsel
In his fourth and final assignment of error, K.B. contends that “[t]he
[juvenile court] erred in failing to conduct a disposition hearing and then imposing
a non-mandatory maximum disposition without a waiver of the hearing by either
K.B. or his counsel.” K.B. points out that although counsel for his co-defendant
waived the disposition hearing, neither he nor his counsel waived it. For the
following reasons, we agree.
Louisiana Children’s Code Article 892 provides, in pertinent part, that
“[p]rior to entering a judgment of disposition, the court shall conduct a disposition
hearing. The disposition hearing may be conducted immediately after the
adjudication and shall be conducted within thirty days after the adjudication.” The
purpose of the hearing is to ascertain whether the juvenile needs treatment or
rehabilitation. State in Interest of W.B., 2016-0642, p. 5, 206 So.3d at 978 (citing
State in Interest of T.E., 2011-1172, p. 2 (La. App. 4 Cir. 9/19/12), 100 So.3d 963,
38 964). See also State in Interest of J.A.J., 2013-245, p. 9 (La. App. 5 Cir. 10/30/13),
128 So.3d 449, 454-55 (citing State in Interest of C.D., 1995-160, p. 6 (La. App. 5
Cir. 6/28/95), 658 So.2d 39, 41-42). The juvenile can waive the disposition
hearing. State in Interest of W.B., 2016-0642, p. 5, 206 So.3d at 978. However, the
waiver must be clear. See State in Interest of R.J.H., 2021-20, p. 37 (La. App. 3
Cir. 5/5/21), 319 So.3d 964, 985; State in Interest of C.C.H., 2021-19, p. 40 (La.
App. 3 Cir. 5/5/21), 319 So.3d 940, 963; State ex rel. T.W., 2009-532, p. 9 (La.
App. 3 Cir. 10/7/09), 21 So.3d 465, 472 (citing State ex rel. K.G., 34,535, p. 15
(La. App. 2 Cir. 1/24/01), 778 So.2d 716, 726). Additionally, neither silence on the
part of the juvenile’s counsel nor a failure to object constitutes a waiver. State in
Interest of W.B., 2016-0642, p. 5, 206 So.3d at 978-79 (citing State in the Interest
of O.R., 1996-890, p. 6 (La. App. 5 Cir. 2/25/97), 690 So.2d 200, 202; State ex rel.
K.G., 34,535, p. 15, 778 So.2d at 726; State in Interest of T.H., 2014-179, pp. 12-
18 (La. App. 3 Cir. 6/4/14), 140 So.3d 911, 919-23).
Moreover, a juvenile “[j]udge’s familiarity with the juvenile does not
dispense with the need for a disposition hearing.” State in Interest of O.R., 1996-
890, p. 6, 690 So.2d at 202. The Louisiana Fifth Circuit Court of Appeal has held
that even if a juvenile court judge is “well acquainted with [the juvenile] and his
‘long and lengthy history with the court,’” the juvenile court must hold a
disposition hearing prior to entering a judgment of disposition. Id. at p. 5, 690
So.2d at 202 (citing La. Ch. C. art. 892). Likewise, the Louisiana Third Circuit
Court of Appeal has held “that familiarity with a juvenile and a lengthy history
with the [juvenile] court does not absolve the [juvenile] court from conducting a
disposition hearing.” State ex rel. T.W., 2009-532, pp. 9-10, 21 So.3d at 472. If a
juvenile court fails to conduct a disposition hearing, this constitutes an error patent,
39 and the appellate court should remand the matter for the juvenile court to conduct a
disposition hearing. State in Interest of W.B., 2016-0642, pp. 5-6, 206 So.3d at
978-79.
Our review of the transcript of the March 20, 2023 hearing reveals that K.B.
is correct that neither he nor his counsel waived La. Ch. C. art. 892’s requirement
of a disposition hearing. Instead, when the juvenile court asked about “waiving
delays,” only counsel for D.J. responded in the affirmative. K.B. and his counsel
did not say anything in response. Additionally, although the juvenile court noted its
familiarity with K.B., jurisprudence has held that this does not absolve the court of
conducting the hearing. Thus, we conclude that the juvenile court erred in failing to
conduct a hearing prior to entering a judgment of disposition regarding K.B. and
that this constituted an error patent. Accordingly, we remand this matter for the
juvenile court to conduct a disposition hearing.
DECREE
For the foregoing reasons, we affirm K.B.’s adjudication of delinquency;
vacate his disposition; and remand for further proceedings consistent with this
Opinion.
AFFIRMED IN PART; VACATED IN PART; AND REMANDED WITH INSTRUCTIONS
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