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State ex rel. M.B.

Court of Appeals of Louisiana, Fourth Circuit

April 19, 2017

STATE OF LOUISIANA IN THE INTEREST OF M.B.

         APPEAL FROM JUVENILE COURT ORLEANS PARISH NO. 2016-014-02-DQ-E, SECTION "E" HONORABLE Desiree Cook-Calvin, JUDGE

          Leon A. Cannizzaro, Jr. DISTRICT ATTORNEY, ORLEANS PARISH Scott Vincent ASSISTANT DISTRICT ATTORNEY, ORLEANS PARISH COUNSEL FOR APPELLEE/STATE OF LOUISIANA

          Katherine M. Franks LOUISIANA APPELLATE PROJECT COUNSEL FOR DEFENDANT/APPELLANT

          (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Regina Bartholomew Woods)

          Joy Cossich Lobrano Judge

         In this juvenile delinquency case, M.B., [1] appeals his May 17, 2016 delinquency adjudication on charges of attempted carjacking and attempted purse snatching. Finding that there is sufficient evidence to support the delinquency adjudication, and that no error in the proceedings below merits reversal, we affirm the judgment of the juvenile court.

         M.B. was arrested on January 11, 2016, following an incident at the Mardi Gras Museum. On that day, V.E. and her child K.E. attended a tour at the museum, after which they returned to their vehicle. Upon entering the vehicle, a voice from the back seat, later identified as M.B., ordered V.E. and K.E. out of the car. They did not comply, and instead ordered M.B. out of their vehicle.

         M.B. left the back seat and attempted to drag V.E. from the car. K.E. grabbed V.E., keeping her inside the car. After a struggle, M.B. ceased trying to remove V.E. from the car and instead attempted to grab V.E.'s purse, which was sitting on the center console. This attempt was unsuccessful, and M.B. fled.

         V.E. drove out of the area quickly, and flagged down NOPD[2] Officer Jermell Taylor ("Officer Taylor"). V.E. described her assailant to Officer Taylor, who broadcast a description of the suspect. Officer Taylor began searching for an individual who met the description V.E. had provided. Officer Taylor saw M.B., who ran from the police car. M.B. was apprehended and returned by officers to the area near the Mardi Gras Museum where V.E. had flagged down Officer Taylor. There, V.E. and K.E. both identified M.B. as the person who attempted to carjack V.E.'s car and snatch her purse.

         When V.E. and K.E. identified him, M.B. was handcuffed beside a police car about twenty feet from where V.E. and K.E. were parked in their vehicle. Officer Taylor approached V.E. and K.E., and said "we caught the subject."[3] V.E. then indicated to Officer Taylor that M.B. was the individual who attempted to carjack her and snatch her purse. K.E. also identified M.B.

         On January 14, 2016, the State of Louisiana ("State") filed a delinquency petition charging M.B. with attempted carjacking and attempted purse snatching. On January 29, 2016, as part of pretrial discovery, the prosecutor transmitted the thirteen body camera videos associated with this incident's NOPD item number to defense counsel.[4]

         M.B.'s adjudication hearing began on April 11, 2016. The State called V.E. and K.E. to testify, after which the juvenile court called for a recess for the weekend. The adjudication hearing resumed on April 14, 2016. When the adjudication hearing resumed, the State called Officer Taylor and NOPD Sergeant Travis Brooks ("Sgt. Brooks") to testify. Near the beginning of his direct examination, Sgt. Brooks revealed that in addition to reviewing his own body camera footage in preparation for the hearing, he had also reviewed Officer Taylor's body camera footage. Upon hearing that testimony, M.B. moved for a mistrial on the grounds that M.B. had not been provided with Officer Taylor's body camera footage. The State countered that M.B. was provided all body camera footage associated with the relevant item number through Evidence.com. The juvenile court reserved ruling on the motion until the conclusion of Sgt. Brooks' testimony. After Sgt. Brooks finished testifying, the State rested.

         A brief bench conference took place following Sgt. Brooks' testimony, and the prosecutor accessed Evidence.com. She then discovered that two additional body camera videos were present under the relevant item number. These files were not present when the body camera footage was sent on January 29, 2016. The prosecutor then sent the defense the fifteen files associated with the relevant item number through Evidence.com. The defense noted that she received the additional videos, and the juvenile court recessed for the weekend.[5]

         On April 18, 2016, the adjudication hearing resumed. At that time, the defense re-addressed the mistrial motion, stating that the material was "Brady"[6]and that she wished to re-cross examine Officer Taylor, V.E., and K.E.[7] in light of the contents of the two additional videos. After hearing these arguments, [8] the juvenile court declared a mistrial. The defense attorney then attempted to withdraw the motion for a mistrial, after the juvenile court had already ruled, stating "I'd ask the State to agree that we would just bring everyone back for the purposes of the Defense specifically being crossed on the information…." The juvenile court refused to reconsider its ruling.

         On May 17, 2016, the second adjudication hearing took place. M.B. was found delinquent for attempted carjacking and attempted purse snatching. He was sentenced to three years in the custody of Office of Juvenile Justice, with one year suspended.[9]

         This appeal timely follows.

         Admission of the Identifications and Sufficiency of the Evidence

         First, M.B. argues that his delinquency adjudication should be reversed because the juvenile court should have granted his motions to suppress both the out-of-court and in-court identifications. Alternatively, M.B. argues that because the identification was unreliable, the evidence was insufficient to support the adjudication, and thus, the adjudication should be reversed.

         "A trial court's determination of the admissibility of identification evidence is entitled to great weight and will not be disturbed on appeal in the absence of an abuse of discretion." State v. Kimble, 2010-1559, p. 12 (La.App. 1 Cir. 3/25/11), 62 So.3d 782, 790. When determining whether an out of court identification should be admitted, courts focus on whether police used an "impermissibly suggestive procedure" to obtain the identification. Manson v. Brathwaite, 432 U.S. 98, 107, 97 S.Ct. 2243, 2249, 53 L.Ed.2d 140 (1977). In so deciding, courts must determine if the procedure gave rise to a substantial likelihood of misidentification under a totality of the circumstances. Id. Factors to consider when making this determination include the victim's opportunity to view the defendant, their level of attention, the accuracy of the prior description, their level of certainty, and the time between the crime and the identification. Id. "Even a suggestive out-of-court identification will be admissible if it is found reliable under the totality of the circumstances." State v. Guy, 95-0899, pp. 9-10 (La.App. 4 Cir. 1/31/96), 669 So.2d 517, 523. This analysis applies in juvenile cases as well as criminal cases. See State ex. rel. C.J., 2010-1350, p. 5 (La.App. 4 Cir. 2/9/11), 60 So.3d 46, 50.

         One-on-one identification procedures, [10] like the one used in the case sub judice, are not favored, but are permissible when they are justified by the overall circumstances. State v. Nogess, 98-0670, p. 3 (La.App. 4 Cir. 3/3/99), 729 So.2d 132, 134 (citations omitted); see also State ex rel. W.H., 2010-1418, p. 7-8 (La.App. 4 Cir. 4/6/11), 62 So.3d 839, 845 (applying this principle when reviewing a show-up identification that was admitted in a juvenile delinquency adjudication). One-on-one identifications are considered particularly justified when the accused is apprehended within a relatively short period of time after the crime has been committed and has been returned to the crime scene. Id. This Court has rejected the idea that one-on-one identifications are per se suggestive. S ...


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