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State ex rel. J.D.

Court of Appeal of Louisiana, Fourth Circuit

December 3, 2014


Page 727




KATHERINE M. FRANKS, LOUISIANA APPELLATE PROJECT, Abita Springs, Louisiana, Counsel for Appellant.

(Court composed of Chief Judge James F. McKay III, Judge Dennis R. Bagneris, Sr., Judge Sandra Cabrina Jenkins). JENKINS, J., DISSENTS AND ASSIGNS REASONS.



Page 728

[2014-0551 La.App. 4 Cir. 1] J.D. was charged by petition with one count of theft of Black Beats headphones and a Samsung tablet valued at greater than or equal to one thousand dollars. On April 22, 2014, the Orleans Parish Juvenile Court adjudicated J.D. delinquent for the offense of misdemeanor theft. The written judgment provides that J.D. was adjudicated delinquent of theft pursuant to La. R.S. 14:67. However, the judgment is silent as to the grade of theft.

J.D. was committed to the Department of Public Safety and Corrections for six (6) months. The sentence was suspended, and J.D. was placed on one (1) year of inactive probation. For the reasons set forth below, we affirm and remand.


At the adjudication hearing, the trial court heard testimony from one witness, Deputy George West (" Deputy West" ) with the Orleans Parish Sheriff's Office. Deputy West stated that on July 7, 2014, he was assigned to the James Singleton Charter School in New Orleans to provide security. On that date, Deputy West and Deputy S. Reddick responded to a theft call from the school, wherein a student [2014-0551 La.App. 4 Cir. 2] reported items missing from his gym bag while playing basketball. The deputies, the victim, and a school staff member watched the school's surveillance video from the time in question. Deputy West testified that the victim identified J.D. as the individual seen on the video taking his gym bag. J.D.'s mother was called to the school to view the video. J.D. was not present at this time. At the request of

Deputy West, J.D.'s mother brought J.D.

Page 729

back to the school. Deputy West stated that when J.D. arrived, the situation was explained to him, and J.D. confessed to the theft in the presence of his mother. When asked where the items were, J.D. stated that he sold the headphones for thirty (30) dollars. Deputy West gave no testimony regarding the Samsung tablet, which was the other item allegedly missing from the victim's gym bag. Deputy West testified that the statements made by J.D. were not referenced in the police report. Deputy West was asked to testify as to what he saw on the surveillance video. Defense counsel objected on the basis that the video was not made available to view at trial. Deputy West stated that the video he reviewed for the trial did not show the incident in question. Thus, it was not the same footage viewed by Deputy West at the school. The objection was overruled.

Deputy West testified that the video he viewed at the school showed the victim playing basketball and J.D. standing around watching. He could see J.D. pick up a bag; walk towards a bench area; stand there a few seconds; and then leave without the bag. This testimony differed somewhat on cross-examination, where Deputy West stated that he observed J.D. carrying a school bag; pick up the [2014-0551 La.App. 4 Cir. 3] gym bag identified by the victim; and leave with two bags. This discrepancy was not questioned.

Following the testimony of Deputy West, the trial court rendered judgment from the bench, adjudicating J.D. delinquent of " theft of property having a value of $300.00 or more, but less than $500.00." The written judgment provides that J.D. was adjudged delinquent of theft in violation of La. R.S. 14:67, but it does not indicate the grade of theft.


In State in the Interest of J.J., 2013-0548, pp. 2-3 (La.App. 4 Cir. 9/25/13), 125 So.3d 1248, 1250, this Court recently reiterated the appellate standard of review in juvenile cases as follows:

In order to adjudicate a child delinquent, the State must prove beyond a reasonable doubt that the child committed the delinquent act alleged in the petition. La. Ch.C. art. 883. The standard for the State's burden of proof in a juvenile delinquency proceeding is " no less strenuous then the standard of proof required in a criminal proceeding against an adult." State in the Interest of J.W., p. 3 (La.App. 4 Cir. 6/6/12), 95 So.3d 1181, 1184. As a court of review, we grant great deference to the juvenile court's factual findings, credibility determinations, and assessment of witness testimony. State ex rel. W.B., 2008-1458, p. 1 (La.App. 4 Cir. 4/22/09), 11 So.3d 60, 61.
In evaluating the sufficiency of evidence to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. State in the Interest of T.E., 2000-1810, p. 4 (La.App. 4 Cir. 4/11/01), 787 So.2d 414, 417, citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Jackson standard of review is applicable in juvenile delinquency cases. Id.
In addition, La. Const. art. V, § 10(B) mandates that an appellate court review both law and facts when reviewing juvenile adjudications. " While delinquency proceedings may in many ways [2014-0551 La.App. 4 Cir. 4] implicate criminal proceedings, sometimes even mimicking them, they are nonetheless civil in nature." State in the Interest of D.R., 2010-0405, p. 5 (La.App. 4 Cir. 10/13/10), 50 So.3d 927, 930. (Emphasis in the original). Therefore,

Page 730

as in the review of civil cases, a factual finding made by a trial court in a juvenile adjudication may not be disturbed by an appellate court unless the record evidence as a whole does not furnish a basis for it, or it is clearly wrong. State in Interest of K.G., 2011-1559, p. 4 (La.App. 4 Cir. 3/21/12), 88 So.3d 1205, 1207, citing State in the Interest of Batiste, 367 So.2d 784 (La.1979); State ex rel. E.D.C., 39,892 (La.App. 2 Cir. 5/11/05), 903 So.2d 571; State in the Interest of S.S., 557 So.2d 407 (La.App. 4 Cir.1990). In sum, we apply the " clearly wrong-manifest error" standard of review to determine whether there is sufficient evidence to satisfy the standard of proof beyond a reasonable doubt.


J.D. asserts four assignments of error: 1) The trial court erred in permitting Deputy West to testify as to the contents of the video when the video was not produced at trial; 2) The State failed to offer evidence that J.D.'s statements were made freely and voluntarily with the benefit of Miranda [1] warnings; 3) Trial counsel was ineffective for failing to suppress J.D.'s statements and failing to object to the introduction of the statements at trial; and 4) The judgment does not reflect the grade of the offense.

Assignment of Error No. 1:

J.D. argues that the trial court erred in permitting Deputy West, over the objection of defense counsel, to testify as to the content of the surveillance video, which was not produced at trial. J.D. submits that this action denied him the right of confrontation in violation of both the Sixth Amendment of the United States Constitution and the confrontation clause set forth in La. Const. Art. I, § 16.

[2014-0551 La.App. 4 Cir. 5] The Sixth Amendment to the United States Constitution guarantees an accused in a criminal prosecution the right to be confronted with the witnesses against him. The confrontation clause of the Louisiana Constitution specifically and expressly guarantees the accused the right " to confront and cross-examine the witnesses against him." La. Const. Art. I, § 16. See also State v. Robinson, 2001-0273, (La. 5/17/02); 817 So.2d 1131, 1135. Confrontation not only means the ability to confront the witnesses physically but also to secure for the opponent the opportunity of cross-examination, which is its main and essential purpose. Id.

In the present case, Deputy West testified that he viewed the video in the presence of the victim, a school staff member, and J.D.'s mother. He stated that the video showed J.D. taking the victim's bag. It is evident from the record that Deputy West was thoroughly cross-examined by defense counsel as to what he saw on the video. Certainly a video of the incident would have been helpful evidence. However, under the circumstances, its unavailability does not create a Confrontation Clause issue where full cross-examination occurred and the trial court heard testimony from the investigating officer.

J.D. further argues in this assignment of error that to prove the content of the video, the State was required to present the original video pursuant to La. C.E. art. 1002. We disagree.

While La. C.E. art. 1002 requires the original document to prove the contents therein, under La. C.E. art. 1004(1), the original of a writing, recording or photograph is not always required to prove its contents, and other evidence of the contents

Page 731

of a writing, recording or photograph is admissible if all originals are lost [2014-0551 La.App. 4 Cir. 6] or have been destroyed, unless the proponent lost or destroyed them in bad faith. See State v. Sartain, 98-0378, (La.App. 4 Cir. 12/1/99), 746 So.2d 837, 848. The " best evidence" rule is to be applied sensibly and with reason. State v. Gaskin, 412 So.2d 1007, 1011 (La. 1982). Absent a showing of prejudice to the defendant, a conviction will not be reversed on the ground that the best evidence was not produced. Id. The " best evidence" rule does not mandate production of an original taped statement when testimony shows that the original is not available and there is no bad faith by the State. State v. Sartain, supra at 848.

Here, it is undisputed that the video of the incident in question was not available at trial, and the record does not suggest bad faith on the State's part. Also, as previously stated, J.D. had the opportunity to cross-examine Deputy West at trial. Thus, we find that J.D. failed to prove any prejudice suffered as a result of the original video not being produced. This assignment of error lacks merit.

Assignment of Error No. 2.

J.D. asserts that the State failed to offer evidence that his statements were made freely and voluntarily with the benefit of Miranda warnings. Thus, J.D. submits that the admission of the statements was erroneous.

At the outset we note that J.D. failed to file a motion to suppress the statements and never raised this issue during his trial. Louisiana courts have long held a defendant may not raise new grounds for suppressing evidence on appeal that he did not raise at the trial court in a motion to suppress. State v. Butler, 2012-2359, p. 4-5 (La. 5/17/13), 117 So.3d 87, 89 (citing State v. Montejo, 2006-1807, p. 22 (La. 5/11/10), 40 So.3d 952, 967-68). La. C.Cr.P. art. 703(F) provides that " [f]ailure to file a motion to suppress evidence in accordance with this Article prevents the defendant from objecting to its admissibility at the trial on the merits [2014-0551 La.App. 4 Cir. 7] on a ground assertable by a motion to suppress." A defendant cannot avail himself of an alleged error unless he made a contemporaneous objection at the time of the error. La. C.Cr.P. art. 841(A), See State v. Martin, 2013-0015, p. 8 (La.App. 4 Cir. 10/4/13), 131 So.3d 121, 127.

Because the admissibility of J.D.'s statements was not objected to in the trial court, this issue has not been preserved for appeal. Accordingly, this assignment of error has no merit.

Assignment of Error No. 3

In this assignment of error, it is argued that defense counsel was ineffective in failing to move for the suppression of J.D.'s statements and in failing to object to their introduction at trial. J.D. submits that his defense counsel should have objected to the admissibility of the statements, given the fact that they were made in a custodial environment without the benefit of Miranda warnings.

The general rule is that an ineffective assistance of counsel claim is more appropriately raised in an application for post-conviction relief than on appeal. State v. Brown, 2012-0626, p. 12 (La.App. 4 Cir. 4/10/13), 115 So.3d 564, 572, 573 (citing State v. Leger, 2005-0011, p. 44 (La. 7/10/06), 936 So.2d 108, 142). The exception is when the record on appeal contains sufficient evidence to permit the appellate court to decide the issue, and the issue properly is raised by an assignment of error. Id. Under these circumstances, an appellate court may consider the issue in the interest of judicial economy. Id.

To support a claim for ineffective assistance of counsel, a defendant must show

Page 732

that counsel's performance was deficient and that he was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Brooks, 94-2438, p. 6 (La. 10/16/95), 661 So.2d 1333, 1337 [2014-0551 La.App. 4 Cir. 8] (on rehearing). The defendant must prove both elements to establish that his attorney was so ineffective as to require reversal. State v. Hongo, 96-2060, p. 5 (La. 12/2/97), 706 So.2d 419, 422. Counsel's performance is ineffective when it is shown that he made errors so serious that counsel was not functioning as the " counsel" guaranteed by the Sixth Amendment. Strickland at 686, 104 S.Ct. at 2064.

Here, J.D. maintains that his counsel failed to object to the statements that he made while in custody and without the benefit of Miranda warnings. It is well recognized that the prosecution may not use a statement, whether exculpatory or inculpatory, stemming from custodial interrogation of a defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. State v. Hunt, 2009-1589 (La. 12/1/09), 25 So.3d 746, 750, n. 2 (citing Miranda, supra ). The constitutional privilege against self-incrimination and the right to counsel apply equally to juveniles and adults. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); State in the Interest of D.J., 2001-2149, p. 10 (La. 5/14/02), 817 So.2d 26, 30. In State v. Hankton, 2012-0466, p. 13 (La.App. 4 Cir. 4/30/14), 140 So.3d 398, 407, this Court stated:

The obligation to provide Miranda warnings attaches only when a person is questioned by law enforcement after he has been taken " into custody or otherwise deprived of his freedom of action in any significant way." Miranda, supra, 384 U.S. at 444, 86 S.Ct. at 1612 (1966). Custody is decided by two distinct inquiries: an objective assessment of the circumstances surrounding the interrogation to determine whether there is a formal arrest or restraint on freedom of the degree associated with formal arrest; and, second, an evaluation of how a reasonable person in the position of the interviewee would gauge the breadth of his freedom of action. Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 1529, 128 L.Ed.2d 293 (1994), (citing California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983)( per curiam )); [2014-0551 La.App. 4 Cir. 9] State v. Manning, 03--1982, p. 24 (La.10/19/04), 885 So.2d 1044, 1074 (citations omitted).

In J.D.B. v. North Carolina (2011) U.S., 131 S.Ct. 2394, 180 L.Ed.2d 310, the United States Supreme Court addressed custody determinations for purposes of requiring Miranda warnings in juvenile cases. In that case, the Court held that a child suspect's age, when known to the interrogating officer or objectively apparent to a reasonable officer, is relevant to the determination whether, considering all the objective circumstances of an interrogation, a reasonable person in the suspect's position would understand his freedom to terminate police questioning and leave. Id. at 2406. The Court further noted that " [i]n the specific context of police questioning, events that " would leave a man cold and unimpressed can overawe and overwhelm a teen." Id. at 2397 (citing Haley v. Ohio, 332 U.S. 596, 599, 68 S.Ct. 302, 92 L.Ed. 224 ).

In the present case, at Deputy West's request, J.D.'s mother brought him to the school, thus limiting J.D.'s control over being there and rendering his presence ostensibly involuntary. Once present, J.D. was confronted and questioned by Deputy West, an officer with the Orleans Parish Sheriff's Office. J.D. confessed. Bearing this in mind, at fifteen years of age, a

Page 733

reasonable juvenile in J.D.'s position would, in all likelihood, be intimidated and overwhelmed. Thus, the evidence tends to suggest that a reasonable fifteen-year-old would believe that his freedom of movement had been significantly restricted.

The facts presented here weigh in favor of a finding that J.D.'s statements were made during a custodial interrogation without the benefit of Miranda warnings. Thus, there is some merit in J.D.'s assertion that defense counsel acted deficiently in failing to file a motion to suppress J.D.'s statements and in failing to [2014-0551 La.App. 4 Cir. 10] object to their introduction at trial. However, the limited record before us does not adequately provide a basis for assessing the adequacy of the representation provided by defense counsel. Accordingly, we find that a review of the claim of ineffective assistance of counsel is better reserved for post-conviction relief, which allows for a full evidentiary hearing thereby creating an adequate record for appellate review.

Assignment of Error no. 4

In his final assignment of error, J.D. asserts, and the State agrees, that the record reflects a patent error in that the written judgment does not state the grade of the offense pursuant to La. R.S. 14:67. This assignment of error has merit.

On the record, the juvenile judge specifically found J.D. guilty of misdemeanor theft. The written judgment provides that J.D. was adjudicated delinquent for theft, but fails to reflect the grade of theft. Thus, the judgment must be amended to reflect the misdemeanor status of the offense.


For the foregoing reasons, we affirm J.D.'s adjudication and disposition. We remand the matter to the juvenile court for the sole purpose of amending the judgment to reflect the misdemeanor status of the adjudication pursuant to La. R.S. 14:67. J.D.'s claim of ineffective assistance of counsel is relegated to post-conviction relief.




I respectfully dissent.

Although the juvenile defendant did not assign as error the insufficiency of evidence to sustain his adjudication, " [w]hen the state's case is devoid of evidence of an essential element of the charged offense, the conviction and sentence must be set aside 'regardless of how the error is brought to the attention of the reviewing court.'" State v. Thacker, 14-0418, p.2 (La. 10/24/14), 150 So.3d 296, 2014 WL 5509657 (quoting State v. Raymo, 419 So.2d 858, 861 (La. 1982)). While I recognize that insufficiency of evidence is not an error patent on the face of the record, it also must not be overlooked when it becomes apparent from a review of the record. See State ex. rel. Womack v. Blackburn, 393 So.2d 1216, 1219 (La. 1981); State v. Schaffer, 99-0766 (La.App. 4 Cir. 4/12/00), 767 So.2d 49, 55-56 (Plotkin, J. concurring in part and dissenting in part).

In order for a juvenile to be adjudicated delinquent, the State must prove beyond a reasonable doubt that the child committed the delinquent act charged. State in the Interest of R.L., 11-1721, p. 3 (La.App. 4 Cir. 5/30/12), 95 So.3d 1147, 1150. In this case, the trial court's adjudication of J.D. as a delinquent is based solely on the testimony of Deputy West, which fails to establish the essential elements of the offense of theft. In reviewing the sole testimonial evidence against [2014-0551 La.App. 4 Cir. 2] defendant, Deputy

Page 734

West does not testify to any facts within his personal knowledge that establish the elements of the offense. Deputy West's testifies to the substance of the non-testifying victim's identification of the defendant without any corroborating evidence. Deputy West also testifies regarding the uncorroborated confession of the defendant that was obtained during a custodial interrogation without the benefit of Miranda warnings. Other than the problematic testimony of Deputy West, the State did not introduce any evidence at the adjudication proceeding, such as the victim's testimony, the video surveillance, the defendant's statements, or a police report. From my review of the record,[1] the State failed to prove the essential elements of the offense of theft beyond a reasonable doubt. Thus, I find there is insufficient evidence to sustain the adjudication of the juvenile defendant, J.D., for theft.[2]

The offense of theft is defined in La. R.S. 14:67 as follows:

A. Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.

In order to convict a defendant of the offense of theft, the State must prove the following essential elements beyond a reasonable doubt: (1) the defendant misappropriated or took without consent or by fraudulent conduct; (2) a thing of value; (3) that belonged to another; and (3) defendant had the intent to deprive the owner permanently of the thing misappropriated or taken. State v. McMillian, 10-0812, p. 7 (La.App. 4 Cir. 5/18/11), 65 So.3d 801, 805 (citing State v. Pittman, 368 So.2d 708 (La. 1979) [2014-0551 La.App. 4 Cir. 3]. Further, the State must prove the value of the thing taken, " for upon this proof depends the determination of the severity of the theft, and the punishment for a convicted offender." Id. (citing State v. Monterroso, 96-376 (La.App. 5 Cir. 11/14/96), 685 So.2d 249, 251).

At the adjudication hearing, Deputy West was the sole witness to testify. He testified that he was working at the James Singleton Charter School on July 17, 2013, when he received a call that a student was missing some items. Deputy West stated that he, his partner, and the alleged victim viewed a video. As to his own observations of the contents of that video, Deputy West stated,

A: Well, ..., we actually observed the victim playing basketball with a couple other people. During that time, there were several people standing in the area while they were playing basketball. Shortly after that, the alleged subject had picked up an item, a bag. As he picked up the bag, he walked towards a bench area, stood there for a few seconds, left without the bag, and exited toward O.C. Haley.

Page 735

Subsequently, in direct examination, Deputy West testified as follows:

Q: Did you see the juvenile, [J.D.]? Do you know [J.D.]?
A: I don't know him personally. I just know that there was a victim and, of course, there was a subject.
Q: The individual that took the bag?
A: Yes.
Q: Did he leave with two bags?
A: Yes, he did.
Q: How did you determine the individual that took the bag and left on that video? How did you learn his identity?
A: Well, once we were able to get the victim and his parents together, they actually saw the video as well, the victim identified who the subject was.

The State relies upon Deputy West to provide the identification of the defendant as the person who took the bag. This identification testimony, however, [2014-0551 La.App. 4 Cir. 4] is based wholly on the statement of a non-testifying witness.[3] Deputy West acknowledged that he had no personal knowledge of defendant. He also did not provide testimony establishing the ownership of the bag, its value, its contents, or the value of the bag's contents. The alleged victim did not testify; and the State did not introduce any evidence establishing the ownership of the bag, its contents, or the

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value of either. From his personal observations and knowledge, Deputy West's testimony does not establish that any thing of value was misappropriated without consent of the owner and with an intent to deprive the owner permanently of the thing.

Deputy West then testified that he obtained a confession from defendant. He stated that he contacted the defendant's mother and had her bring defendant to the [2014-0551 La.App. 4 Cir. 5] school. Deputy West " explained to [defendant] his situation and he did, in fact, confess" to taking and selling headphones for $30 to a store. Deputy West " interviewed" defendant in the presence of his mother and separately from his mother. Deputy West did not state that he provided Miranda warnings to defendant at any time prior to or during the interview. A review of this record indicates that defendant's statements were obtained during a custodial interview without the benefit of Miranda warnings to inform defendant of his constitutional right against self-incrimination and his right to counsel. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State in the Interest of McGinnis, 244 So.2d 336 (La. 1971) (finding " [s]ince [defendant] and his parent were not informed of [his] right to counsel and his privilege against self-incrimination, the judgment of the Juvenile Court in which he was found to be delinquent was rendered without due process of law..." ).

Although I agree with the majority that the issue of the admissibility of defendant's statement in this case was not preserved for review on appeal, the testimony regarding defendant's confession must be considered as it pertains to the sufficiency of the evidence. The State relies solely on Deputy West's testimony to establish all essential elements of the offense. The testimony regarding defendant's confession was offered presumably to establish defendant's intent to deprive the owner permanently of the thing taken and the value of the thing. The State, however, does not introduce any other testimony or any evidence at the adjudication to corroborate the testimony regarding defendant's confession.[4] Thus, I find that the State's reliance on defendant's uncorroborated confession violates Louisiana's corpus delicti rule, which requires corroboration of the reliability of an [2014-0551 La.App. 4 Cir. 6] inculpatory statement. State v. Collins, 10-1181, pp.9-10 (La.App. 4 Cir. 3/23/11), 62 So.3d 268, 274; State v. Martin, 93-0285 (La. 10/17/94), 645 So.2d 190. Although the State is not required to show independent evidence of every element of the charged crime, the State is required to provide corroborating evidence to show that the injury specified occurred and that the injury was caused by criminal activity. Martin, 93-0285, p.7, 645 So.2d at 195. As stated previously, the State did not offer any evidence or testimony to corroborate Deputy West's testimony. Deputy West's testimony that defendant confessed to taking headphones and selling them at a store cannot stand alone as both the proof and corroboration of the elements of the charged crime.

In an appeal from a delinquency proceeding, the appellate court reviews the facts and evidence and applies the law as it does in an adult proceeding; thus, the trier of fact's credibility determinations and findings of fact are due great deference. State in the Interest of G.E., 11-1558, p.6 (La.App. 4 Cir. 5/16/12), 94 So.3d

Page 737

863, 867-68. However, where the record as a whole reveals a lack of sufficient evidence to establish the essential elements of the offense and sustain the adjudication, the adjudication must be set aside. See Raymo, 419 So.2d at 861. In my review of the record, I find the State failed to establish the essential elements of the offense of theft beyond a reasonable doubt and there is not sufficient evidence in this record to sustain the adjudication of defendant as a delinquent. Therefore, I would reverse the trial court's adjudication.

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