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State ex rel. T. L.

Court of Appeals of Louisiana, Fifth Circuit

February 21, 2018



          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Elizabeth B. Curren Amanda L. Calogero Jody J. Fortunato Ann Kirkpatrick Harris

          COUNSEL FOR DEFENDANT/APPELLANT, T. L. Katherine M. Franks

          Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Marc E. Johnson


         Defendant, T.L., appeals his delinquency adjudications for possession of a handgun by a juvenile and revocation of his probation from the Juvenile Court for the Parish of Jefferson, Section "B".[1] For the following reasons, we affirm.


         On March 23, 2015, the Jefferson Parish District Attorney filed a petition in juvenile court alleging that the juvenile, T.L., possessed marijuana in violation of La. R.S. 40:966(C). The juvenile denied the allegations of the petition on that same date. On May 13, 2015, the hearing on the petition was continued without date, and the juvenile entered into the Diversion Program.

         On February 24, 2016, the Jefferson Parish District Attorney filed a petition in juvenile court alleging that the juvenile obstructed or interfered with members of the staff, faculty, or students of educational institutions in violation of La. R.S. 14:328(B) (petition "A"). On March 30, 2016, the State amended petition "A" to simple battery on a minor child in violation of La. R.S. 14:35, and the juvenile admitted the allegations.[2] The disposition hearing for the simple battery adjudication was set for May 5, 2016. On May 5, 2016, the judge committed the juvenile to the Office of Juvenile Justice (hereinafter referred to as "OJJ") for six months or until his 21st birthday, whichever was sooner, suspended the sentence, and placed the juvenile on active and intensive probation for two years.

         On July 18, 2017, the Jefferson Parish District Attorney filed a petition in juvenile court alleging that the juvenile violated La. R.S. 14:95.8 by committing the offense of illegal possession of a handgun by a juvenile (counts one and two) (petitions "C" and "D").[3] The juvenile denied the allegations of those petitions on that same date. On August 7, 2017, the juvenile filed omnibus motions, including a Motion to Suppress Evidence, Statement, and Identification. On August 16, 2017, the judge held the suppression and the adjudication hearings at the same time. Afterwards, on that same date, the judge denied the Motion to Suppress Evidence and Statement, finding that there was no illegal stop by the officer and that there was no statement taken by the police.

         Deputy Galvin Livers of the Jefferson Parish Sheriff's Office ("JPSO") testified at the suppression/adjudication hearing that on July 11, 2017, at nighttime, he and Deputy Andre Nelson were dispatched "to a reported gunfire." Deputy Livers explained that an anonymous complainant advised them that he observed occupants of a four-door silver vehicle discharging firearms while the vehicle was in motion in the area of Bent Tree Boulevard and Leo Kerner Parkway. Deputy Livers also explained that he heard Deputy Nelson "put out a traffic stop of a silver four-door vehicle, " and that he responded to Deputy Nelson. He asserted that once he arrived on the scene, he removed the driver from the vehicle and spoke with him afterward. He further asserted that he advised the driver that they were there because gunshots were heard in the area and that the reporting person described the vehicle as a silver four-door vehicle, which matched the vehicle that he pulled over. Deputy Livers testified that he asked the driver for permission to search the vehicle for any contraband that would be associated with that crime and that he received verbal consent from the driver to do so.

         Deputy Livers noted that he subsequently conducted a search of the vehicle but did not locate anything in the front passenger compartment. He stated that upon going to the rear passenger compartment, he conducted a search of the floorboard but did not find anything. Deputy Livers testified that upon exiting the backseat of the vehicle on the rear passenger side, he noticed that the padding in the backseat was "loose from the rest of the vehicle." He explained that he lifted it up and observed two firearms underneath the seat, one silver and one black. Deputy Livers asserted that the whole seat was removable and that it took very minimal force to lift it up. He stated that the seat was removed from the vehicle once they discovered the evidence.

         Deputy Livers testified that he discovered a Bersa model .380 handgun when he lifted up the seat. He also testified that he discovered a Ruger model handgun under the backseat of the vehicle as well. Deputy Livers submitted that one of the firearms was located directly under the rear driver's-side seat and that the other firearm was located closer to the middle of the vehicle in the backseat. He noted that they were approximately six inches from each other.

         Deputy Livers testified that the entire seat was removable from the vehicle and that the padding and the fabric of the seat were removable from the metal underneath. He stated that the whole seat could be taken out and that there was a compartment underneath. Deputy Livers did not know if those firearms had ammunition in them when he found them. He maintained that he brought the firearms to Deputy Nelson and that Deputy Nelson handled them afterward. Deputy Livers noted that there was nothing else in the compartment. He testified that if there was weight on top of the firearms, they would not have been able to move if the car had turned sharply. He later testified that he would not describe the place he found the guns as a "compartment" or a storage space. He explained that the area where the guns were found was a flat surface with padding sitting on top of it. Deputy Livers stated that it was easy to tuck items underneath it.

         Deputy Livers positively identified the juvenile in court as one of the passengers in that vehicle. He did not know where the juvenile was sitting in that vehicle. Deputy Livers asserted that he was not there for the initial stop of the car. He testified that when he arrived on the scene, he asked the driver, Guy Robinson, to step out of the vehicle and that everybody else in the vehicle was also asked to step out. He said that there were four individuals in that vehicle.

         Deputy Livers testified that neither he nor Deputy Nelson obtained a signed consent to search the car. He stated that he did not have a warrant to search the vehicle and that he did not observe any weapons in plain view. Deputy Livers maintained that there were no other officers present other than him and Deputy Nelson. He did not take photographs of the guns that he found. Deputy Livers asserted that he did not participate in taking any statements from the other two passengers or the driver. He explained that he searched the vehicle because it matched the description of the vehicle they were looking for. They also searched the vehicle because there were reported gunshots fired in the area, and there was the possibility of evidence being located in the vehicle.

         JPSO Deputy Andre Nelson Jr. testified at the suppression/adjudication hearing that on July 11, 2017, they received an anonymous call from an individual who heard multiple gunshots in the area "between Ames and Barataria all the way to approximately East Ames and Ames" in Jefferson Parish and that individual observed a four-door silver vehicle fleeing the area. Deputy Nelson asserted that after he received that report, he began to patrol the area for that vehicle. He stated that approximately one minute later, he observed a silver four-door vehicle leaving the intersection of Barataria Boulevard and Leo Kerner turning toward Ames. At that time, Deputy Nelson conducted an investigatory stop since it was nighttime and the only vehicle he saw on the road "was that vehicle." He did not know the exact time but recalled that it was very dark, the streetlights were on, and it was "almost close to morning hours."

         Deputy Nelson stated that the vehicle turned into the Brother's Food Mart located at Barataria and Ames. He ordered the driver out of the vehicle and explained to the driver why he was stopped. Deputy Nelson noticed that there were three other occupants in the vehicle. He testified that when Deputy Livers arrived to assist, they asked the other occupants to exit the vehicle for officer safety. He explained that this was done since the investigatory stop was based on gunshots and potential weapons in the vehicle. Deputy Nelson stated that during the stop, he observed a backseat passenger, who was later identified as the juvenile, leaning toward the floorboard of the vehicle. He further stated that the juvenile was in the backseat on the driver's side. Deputy Nelson explained that the juvenile's action of leaning toward the floorboard was enough to alert him that the juvenile might have something in his possession.

         Deputy Nelson testified that after he got everyone out of the vehicle, he began to identify everyone. In the process of doing so, Deputy Livers came to assist him. They asked the driver if he would allow them to search the vehicle since they were investigating it for potential weapons. Deputy Nelson testified that the driver complied. He stated that after he spoke to the driver, he conducted a background check of each individual. Deputy Nelson asserted that Deputy Livers then conducted a search of the vehicle. He recalled that during the search, Deputy Livers came and informed him, so as not to alert anyone, that he had found two firearms in the vehicle.

         Deputy Nelson testified that they subsequently handcuffed everyone, read everyone their rights, and placed them into the police vehicles. He recalled that he placed the juvenile and the other backseat occupant in the backseat of his vehicle and that Deputy Livers placed the driver in his vehicle. During the background checks, Deputy Nelson noticed that the driver and the other backseat passenger were on probation. Deputy Nelson testified that the other backseat occupant told him that he was on probation and that the firearms were not his. He stated that the juvenile then spontaneously told him that both of the "hammers" were his. Deputy Nelson stated that "hammers" was a street slang term used to identify firearms.

         Deputy Nelson explained that the juvenile was "upset, " "irritated, " and "very angry" because the investigation was not going fast enough and Deputy Nelson did not immediately believe his story. He testified that after several times of telling him that the firearms were his, the juvenile continued to ask why he was being arrested. Deputy Nelson told the juvenile to relax, and the juvenile told him that the other occupants were his relatives. He testified that he did not ask the juvenile to sign a waiver of his rights because he was not questioning the juvenile or asking him anything pertaining to the investigation until his parent could be present. However, Deputy Nelson stated that the juvenile never gave them any information regarding who his mother or guardian was.

         At the conclusion of the hearing, the judge then adjudicated the juvenile delinquent as to two counts of illegal possession of a handgun by a juvenile and ordered a pre-disposition investigation (PDI).

         On August 22, 2017, the probation officer filed a "Motion to Modify Judgment of Disposition Revocation of Probation." On September 7, 2017, after a hearing, the judge committed the juvenile to the OJJ for six months each on the offenses in petitions "C" and "D" to run concurrently with each other and consecutively with the disposition in petition "A." On that same date, after a hearing, the judge revoked the juvenile's probation, adjudicated the juvenile delinquent as charged, and imposed the previously suspended disposition of six months to the OJJ (petition "A"). On September 15, 2017, the juvenile filed a Motion for Appeal that was granted on September 18, 2017.


         On appeal, the juvenile alleges: 1) there was insufficient evidence to support the delinquency adjudication; 2) the stop and the search of the vehicle were illegal; 3) the juvenile court judge erred in failing to grant his motion to suppress statement; and 4) the juvenile court judge erred in revoking his probation based upon delinquency adjudications that are not supported by sufficient evidence.


         Sufficiency of the Evidence

         The juvenile argues that the evidence was insufficient to support the delinquency adjudications. He asserts that the handgun must be on the juvenile's person in order to sustain an adjudication of delinquency for illegal possession of a firearm by a juvenile, but that in the instant case, the officer never observed the weapons on the juvenile's person. The juvenile notes that there was no registration check on the guns, no fingerprint or DNA testing done on the guns, and no testimony by either officer or anyone in the car that the juvenile was in actual possession of the guns. He also contends that a person may not be convicted on his uncorroborated statement and that the State failed to produce any corroborating evidence to show possession of the guns on T.L.'s person.

         The State responds that the judge properly adjudicated T.L. delinquent of two counts of illegal possession of a handgun by a juvenile. It further responds that the juvenile admitted that he owned the firearms and that the circumstantial evidence showed that the only way the firearms could have gotten into the car was on T.L.'s person. The State notes that the juvenile was seated on the cushion where the firearms were placed, concealed only by the foam padding. The State also notes that T.L. was observed furtively moving in an apparent attempt to hide the weapons.

         The record reflects that after hearing the testimony and considering the other evidence presented at the adjudication hearing, the juvenile court judge adjudicated the juvenile delinquent as to two counts of illegal possession of a firearm by a juvenile, stating in pertinent part:

While this is a circumstantial case, it is very strong circumstantial case based on the facts of this situation. The deputy testified - - in particular, Deputy Nelson testified - - that within one minute or less of receiving the dispatch that shots had been fired in the exact area where he was, in the Barataria, Ames, Lafitte area, and that there was a four-door silver car fleeing the area.
And, again, within one minute or less, the deputies come upon the only car in the area, which is a four-door silver car. He sees four subjects in there. One of whom, the passenger driver's side person, makes a furtive move forward which caught his attention. Of course, in concern for officer safety based on the fact that this was a weapons call, weapons being fired from a vehicle, late at night, close to the morning hours, according to the testimony, I think he had every right in the world to pull that vehicle over for an investigatory stop.
And then we get to the part about removing the people from the vehicle. This defendant was behind the driver in the back seat driver's side. The seat, which is easily removed from the vehicle, reveals two weapons which have been placed into evidence. I've already ruled on their admissibility. And then we have the excited utterances of this defendant who not only once said that the hammers were his, but repeatedly told the officer in an irritated and angry way that the weapons were his and that he was annoyed that the officer was taking so long to complete his investigation when, in fact, this defendant had already told him that the weapons were his.
The logical conclusion, even though possession of a firearm by a juvenile does require weapons to be on the person of the juvenile, the only logical conclusion is that this individual had the weapons in his possession when he got into the vehicle, when he moved them under the seat. And then, by his own admission, claiming that they were his. I find him guilty as charged.

         In order for the court to adjudicate a child delinquent, the State must prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition. La. Ch.C. art. 883. The constitutional standard for testing the sufficiency of evidence in delinquency proceedings, as in criminal proceedings against an adult, requires that the evidence, direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt, in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). State ex rel. D.W., 09-855 (La.App. 5 Cir. 9/14/10); 47 So.3d 1048, 1053. In a juvenile delinquency proceeding, the State's burden of proof is the same as in a criminal proceeding against an adult, to prove beyond a reasonable doubt every element of the offense alleged in the petition. Id.

         The rule as to circumstantial evidence is that "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." La. R.S. 15:438. This is not a separate test from the Jackson standard but rather provides a helpful basis for determining the existence of reasonable doubt. State v. Wooten, 99-181 (La.App. 5 Cir. 6/1/99); 738 So.2d 672, 675, writ denied, 99-2057 (La. 1/14/00); 753 So.2d 208. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. Id.

         In juvenile proceedings, the scope of review on appeal extends to both law and facts. See La. Const. Art. V, § 10(B); State in the Interest of D.S., 11-416 (La.App. 5 Cir. 12/28/11); 83 So.3d 1131, 1136. The "clearly wrong-manifest error" standard of review should be used to determine whether there is sufficient evidence to satisfy the standard of proof beyond a reasonable doubt. Id. Although appellate review of juvenile cases extends to law and fact, the juvenile court judge observes the conduct and demeanor of the witnesses and is in a better position to determine credibility and weigh the evidence. Id. Thus, the appellate court should afford great deference to the judge's findings of fact and to the judge's ...

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