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State ex rel. D.S.

Court of Appeals of Louisiana, Fourth Circuit

October 3, 2018

STATE OF LOUISIANA IN THE INTEREST OF D.S.

          APPEAL FROM JUVENILE COURT ORLEANS PARISH NO. 2017-205-02-DQ-E, SECTION "E" HONORABLE Desiree Cook-Calvin, JUDGE

          LEON A. CANNIZZARO, JR. DISTRICT ATTORNEY ORLEANS PARISH MICHAEL DANON ASSISTANT DISTRICT ATTORNEY COUNSEL FOR STATE/APPELLEE

          TENEE FELIX LOUISIANA CENTER FOR CHILDREN'S RIGHTS COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Chief Judge James F. McKay III, Judge Sandra Cabrina Jenkins, Judge Dale N. Atkins

          JAMES F. MCKAY III CHIEF JUDGE.

         This is a juvenile delinquency case. D.S. appeals the judgment of the Juvenile Court, adjudicating him delinquent of Simple Battery. Finding no error we affirm the adjudication and sentence.

         STATEMENT OF THE CASE

         On July 21, 2017, D.S. was petitioned in Juvenile Court with one count of simple battery in violation of La. R.S. 14:35, to wit: The intentional use of force or violence upon Demar Carter without consent. On August 1, 2017, D.S. was arraigned, whereby the court ordered the defense to file pleadings. On August 8, 2017, the defense filed an omnibus motion for discovery and bill of particulars. On September 27, 2017, the defense was granted a continuance of the adjudication hearing. On February 28, 2018, the day of the adjudication hearing, the defense filed two motions in limine, one to exclude in-court identification, and one to exclude the appellant's statement to law enforcement. The defense motions were denied. The appellant was adjudicated delinquent and sentenced to fifteen days in the custody of the Office of Juvenile Justice, with credit for time served.

         FACTS

         On March 12, 2016, at approximately 11:30 a.m., the victim, Demar Carter ("Carter"), was walking in the 2000 block of St. Bernard Avenue after leaving the Dollar General Store when he was struck from behind by the appellant, D.S. Just prior to the attack he had been walking with two friends, Tatiyana Williams ("Williams") and her unnamed female friend. At some point, after Carter left the Dollar General Store, D.S. attempted to engage Carter in conversation concerning an incident that had occurred the day before; the record is unclear as to what the incident was. Carter testified that D.S. hit him in the head from behind. Carter was subsequently brought to the hospital by ambulance where it was determined that as a result of the battery he had sustained a concussion. D.S was sixteen years old at time of the incident; Carter was nineteen years old.

         On Saturday, March 12, 2016, at 12:30 P.M., New Orleans Police Officer Terry Bean was directed by Lieutenant M. Brenckle via two-way radio to meet him at the intersection of Kerlerec Street and North Galvez Street, in reference to a simple battery that had occurred in the 2000 block of St. Bernard Avenue. Lieutenant Brenckle stated that he was flagged down by Tatiyana Williams ("Williams"). Williams advised Lieutenant Brenckle her friend Carter had been jumped. She also advised him that Carter could be found at the intersection of North Broad and Esplanade Avenue. Based on his complaints and injuries, Carter was transported to University Hospital by an EMS Unit.

         Officer Bean relocated to University Medical Center where he spoke to Carter about the incident. Carter told Officer Bean that he was walking northbound in the 2000 block of St. Bernard Avenue when he was approached by D.S. Carter said that D.S. questioned him about an incident that had occurred on March 11, 2016, the night before. He said that he ignored D.S. and continued to walk, at which point D.S. struck him with a closed fist to the back of his head, causing him to fall to the ground. He said that after he fell to the ground D.S. kicked him in the back several times. He then got up, ran away from D.S. and went to the intersection of North Broad Street and Esplanade Avenue. Officer Bean did not see any visible signs of injury but noted that Carter complained of pain to his neck and back. Carter remained at that location until he was treated by an EMS and transported to University Medical Center.

         After interviewing Carter at University Medical Center and learning that D.S. was the perpetrator, Officer Bean went in search of D.S. Based on his familiarity with D.S., from patrolling the neighborhood, Officer Bean went to D.S.'s residence. At the residence, Officer Bean spoke to D.S.'s mother L.B. L.B. confirmed that D.S. was also known by the nickname of "Lucky."[1] Officer Bean and L.B. went to the 2400 block of New Orleans Street where D.S. was found. After questioning D.S., with L.B. being present and without objection from L.B., D.S. was taken into custody and placed under arrest. D.S. was then transported to the Juvenile Bureau where he was processed.

         STANDARD ...


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