Judge Rosemary Ledet
This is a juvenile delinquency case. The juvenile, W.B.,
On or about October 16, 2015, Aimee Keife's residence in New Orleans, Louisiana
Thereafter, Ms. Keife's home surveillance camera recorded two individuals attempting to break into her home. On October 21, 2015, Ms. Keife was leaving her home when she saw one of the individuals from the surveillance video — later identified as W.B. — entering her neighbor's house, using a key. Ms. Keife immediately called the NOPD.
NOPD Detectives Serife Davis and Daniel Hyatt promptly were dispatched to Ms. Keife's residence. Ms. Keife provided the detectives with the surveillance video, and she identified W.B. as one of the individuals in the surveillance video.
On November 4, 2015, the State filed a petition charging W.B. with simple burglary, in violation of La. R.S. 14:62. According to the State's petition, on October 21, 2015, W.B. entered Ms. Keife's house without authorization with the intent to commit a theft or felony therein. W.B. pleaded not guilty.
On November 10, 2015, W.B. filed an "Omnibus Motion for Discovery; Motion to Preserve Evidence; and Motion for Suppression of Statements, Evidence, and Identifications." The district court set the motion to suppress and the adjudication hearing for February 2, 2016.
After several continuances, the adjudication hearing occurred on May 3, 2016.
Recently, this court adopted a practice of conducting an error patent review in juvenile delinquency cases. See State in the Interest of S.J., 13-1025, p. 4 (La.App. 4 Cir. 11/6/13), 129 So.3d 676, 679 (citing State in the Interest of A.H., 10-1673, p. 9 (La.App. 4 Cir. 4/20/11), 65 So.3d 679, 685). A review of the record for errors patent in this case reveals one. The district court failed to conduct a disposition hearing.
Louisiana Children's Code Article 892 provides, "[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. Such period may be extended for good cause." Furthermore, La. Ch.C. art. 893 provides in pertinent part as follows:
This court has held that "[t]he purpose of a disposition hearing is to allow the court to hear evidence which will aid it in determining whether the juvenile is in need of treatment or rehabilitation." State in Interest of T.E., 11-1172, p. 2 (La.App. 4 Cir. 9/19/12), 100 So.3d 963, 964 (citing State ex rel. K.H., 98-632 (La.App. 5 Cir. 12/16/98), 725 So.2d 583). "Absent a waiver by the juvenile, the court must conduct a hearing prior to entering a judgment of disposition." Id. (citing State ex rel. K.G., 34,535 (La.App. 2 Cir. 1/24/01), 778 So.2d 716;
After W.B. was adjudicated a delinquent, the following colloquy occurred between defense counsel and the district court judge:
Accordingly, defense counsel did not waive W.B.'s right to present evidence at a disposition hearing. Consequently, we find that the disposition must be vacated and the matter remanded for a disposition hearing in accordance with La. Ch.C. arts. 892 and 893.
W.B. raises several issues on appeal.
W.B. contends that the district court erred in admitting W.B.'s statements into evidence because the State failed to establish his statements were made freely and voluntarily in compliance with La. Ch.C. art. 881.1.
In Louisiana, the admissibility of a juvenile's confession is governed by La. Ch.C. art. 881.1. A child's confession is inadmissible unless the State proves the free and voluntary nature of the statement beyond a reasonable doubt. State in Interest of J.J.M., 16-347, p. 4 (La.App. 3 Cir. 11/9/16), ___ So.3d ___, ___, 2016 WL 6610375, p. *2. Louisiana jurisprudence further provides as follows:
J.J.M., 16-347 at p. 4, ___ So.3d ___ at 2016 WL 6610375 at p. *2 (quoting State v. Fernandez, 96-2719, pp. 3-6 (La. 4/14/98), 712 So.2d 485, 486-87); see State in Interest of S.L., 11-883, pp. 17-18 (La.App. 5 Cir. 4/24/12), 94 So.3d 822, 835 (holding
The Louisiana Supreme Court in Fernandez, supra, further stated as follows:
96-2719 at pp. 5-6, 712 So.2d at 487; see also State in Interest of S.L., supra.
W.B., Sr., testified that the detectives showed him a photograph from the surveillance video and that he identified his son, W.B., as one of the individuals depicted in the photograph. On cross-examination, he testified that he was angry and started threatening W.B. before he knew why W.B. was arrested. W.B., Sr., explained that, at that time, he only glanced at the photograph, which was on the detective's cellphone, and assumed that W.B. was involved. When presented with the photograph in court, W.B., Sr., claimed that he did not recognize anyone. Also on cross-examination, the following colloquy occurred between defense counsel and W.B., Sr.:
During rebuttal, the State introduced and played the detective's body camera video in order to impeachment W.B., Sr. In the video, W.B., Sr., approached the patrol car and yelled into the backseat "[t]hey got your picture looking through the door.... Stop saying what you didn't do; they got you." At this time in the video, one of the detectives explains that they are about to search his bedroom and asks W.B. if they are going to find any of the stolen items in his room or at his
According to La. Ch.C. art. 881.1, the State carries the burden of proving beyond a reasonable doubt that a juvenile's confession was given freely and voluntarily. The State correctly points out that Miranda only applies if the defendant, while in custody, is interrogated by a law enforcement officer or agent. State v. Bernard, 09-1178, p. 5 (La. 3/16/10), 31 So.3d 1025, 1029. As noted above, it is undisputed that W.B. was not advised of his Miranda rights. The State, however, counters that Miranda is inapplicable. The State claims that it is arguable whether W.B. was in custody and that W.B.'s statements were made in response to his father's questioning, not police interrogation. The State contends that the body camera video supports its contention that W.B.'s admission was not the result of police interrogation. Therefore, the State contends that W.B.'s statements were admissible. We disagree.
A suspect is "in custody" when placed under formal arrest or when a reasonable person in the suspect's position would have understood the situation to constitute a restraint of freedom of movement of the degree associated with formal arrest. State v. Stewart, 13-0779, p. 10 (La.App. 4 Cir. 1/22/14), 133 So.3d 166; see also State v. Shirley, 08-2106, pp. 7-8 (La. 5/5/09), 10 So.3d 224, 229;
At the time the statements were made, the detectives had physically removed W.B. from his parents' residence, handcuffed him, and placed him in the back of their patrol car. Although the State contends that W.B. was briefly detained pending an ongoing investigation, the circumstances suggest that a reasonable person would have associated the restraint as placing him in custody for purposes of Miranda. Having made that determination, we now turn to whether W.B. was interrogated by a law enforcement officer or agent.
Contrary to the State's contentions, the body camera video shows the detectives asking W.B. questions while W.B., Sr., confronts his son. Specifically, the video shows one of the detectives attempting to elicit a confession by using the consent to search form. One of the detectives explained to W.B. that his father is about to sign a consent to search form, which is akin to a search warrant, for W.B.'s bedroom. The detective further states, "Nothing's in there? You sure? You understand that a judge is going to know that you're lying if there is something in there." The detectives also ask W.B. where the clothes worn during the crime were located. Furthermore, W.B., Sr., testified that during this confrontation, he was yelling and cursing at his son and threatening him with bodily harm. Therefore, W.B. was subjected to custodial interrogation, which required a Miranda warning.
Considering all the evidence presented, we find that the State did not carry its burden of proving beyond a reasonable doubt that W.B.'s confession was freely and voluntarily given as required by La. Ch.C. art. 881.1. The circumstances demonstrate that W.B. was in custody and his statements were obtained pursuant to the compelling influence of the detectives and his father, W.B., Sr. Therefore, the district court erred in admitting W.B.'s statements into evidence.
Nevertheless, the erroneous admission of a defendant's involuntary confession is subject to harmless error analysis. Arizona v. Fulminante, 499 U.S. 279, 285, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). In Fulminante, the United States Supreme Court held that the admission into evidence of an involuntary confession during trial is a "trial error." Id., 499 U.S. at 307, 111 S.Ct. 1246. "Trial error may be `quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.'" State v. Harris, 11-0941, pp. 19-20 (La.App. 4 Cir. 8/2/12), 98 So.3d 903, 917 (quoting Fulminante, 499 U.S. at 307-08, 111 S.Ct. 1246). In other words, an appellate court must review the remaining evidence against the defendant to determine whether the admission of the involuntary confession at trial was harmless beyond a reasonable doubt. Fulminante, 499 U.S. at 310, 111 S.Ct. 1246; Harris, 11-0941 at p. 20, 98 So.3d at 917.
We find the evidence at trial, exclusive of W.B.'s statements to detectives, was sufficient to convince a rational trier of fact beyond a reasonable doubt that W.B. was guilty of attempted burglary. The still-photographs from the surveillance video were identified by Ms. Keife, Detective Davis, and Detective Hyatt. As discussed elsewhere, Ms. Keife testified that W.B. was one of the individuals in the surveillance video attempting to burglarize her home. Detective Davis testified that on the day of the incident, Ms. Keife recognized W.B. in the back of the patrol car and identified him as one of the perpetrators in the video. Detective Hyatt testified
W.B. contends that the district court erred in denying his motion to suppress statements without conducting a hearing on the motion. He argues that the motion was timely filed and that it is the customary practice in Orleans Parish Juvenile Court to consider motions to suppress during the adjudication hearing.
During the adjudication hearing, Detective Davis testified that W.B. admitted to being one of the individuals in the surveillance video. Defense counsel objected and stated that she "filed a motion to suppress any statements ... made because I do not believe that he [W.B.] was Mirandized at any point." The district court responded, "You did not request to have the motion heard. That motion is denied." Detective Davis further testified that W.B. did not admit that he attempted to burglarize Ms. Keife's home but that W.B. admitted to being in the surveillance video. He also testified that W.B. informed him that the clothes W.B. was wearing in the video were at his sister's house.
In delinquency proceedings, the juvenile may move to suppress evidence obtained in violation of the United States Constitution or the Louisiana Constitution. La. Ch.C. art. 872. "A motion may be granted without a contradictory hearing when mover is clearly entitled thereto without supporting proof. A motion shall not be denied without a contradictory hearing unless, assuming the facts alleged to be true, mover is not entitled to relief." La. Ch.C. Art. 865(C); see also La. C.Cr.P. art. 703.
In the present case, defense counsel's motion to suppress statements fails to allege any specific facts that demonstrate that W.B. is entitled to relief. Rather, W.B.'s motion states, in pertinent part, as follows:
Furthermore, the jurisprudence has recognized that "when a defendant proceeds to trial without raising an issue which was the subject of a pending pretrial motion, he waives his right to have the motion heard or ruled upon." State v. Cooper, 45,568, p. 20 (La.App. 2 Cir. 12/8/10), 55 So.3d 873, 884 (citing State v. Fletcher, 02-707, p. 5 (La.App. 5 Cir. 12/30/02), 836 So.2d 557, 559;
W.B contends that defense counsel was ineffective in failing to demand a hearing on the motion to suppress before the beginning of the adjudication hearing. As a result, he contends that he was denied the right to a fair trial.
Juvenile defendants are entitled to effective assistance of counsel. See State in Interest of D. McK., 589 So.2d 1139, 1142 (La. App. 5th Cir. 1991) (citing State in Interest of Jones, 372 So.2d 779 (La. App. 4th 1979)). In State in Interest of J.D., 14-0551, pp. 7-8 (La.App. 4 Cir. 12/3/14), 154 So.3d 726, 731-32, this court outlined the jurisprudence on ineffective assistance of counsel as follows:
Id. Furthermore, "the defendant must show that there is a reasonable probability that, but for counsel's deficient performance the result of the proceeding would have been different; `[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.'" State v.
In the present case, W.B. failed to demonstrate that he was prejudiced by any deficiency or that the result of his adjudication hearing would have been different. At the adjudication hearing, Ms. Keife testified "I watched two boys trying to, with a hammer and a screwdriver, I guess, some kind of tools, like, trying to get the bolts out of the door and then go into the lock on the door and peeking in through the window." Ms. Keife acknowledged that she did not have a video of the burglary. She testified that "[a]s far as I know he [W.B.] only tried to break and enter my house." She, however, believed that W.B. "is the same person who broke into my house before and took things." Ms. Keife also testified that she was unaware that W.B. lived next door to her, and she later learned that W.B. primarily resided with his sister rather than his parents.
It is well-settled that a positive identification by one witness is sufficient to support a conviction. State v. Carter, 15-99, p. 15 (La.App. 5 Cir. 7/29/15), 171 So.3d 1265, 1276, writ denied, 15-1618 (La. 10/17/16), ___ So.3d ___, 2016 WL 6302189; State v. Cameron, 14-0168, p. (La. App. 4 Cir. 10/15/14), 152 So.3d 196, 198. Given the evidence presented coupled with Ms. Keife's positive identification of W.B. as one of the perpetrators, we do not find that defense counsel's error, if any, undermines confidence in the outcome of the adjudication hearing. This assignment of error is without merit.
W.B. contends that the trial judge erred in imposing a curfew as a condition of probation in the written judgment of disposition that was not articulated at the disposition hearing. W.B. contends that La. Ch.C. arts. 902
In D.D., supra, the transcript prevailed over the minute entry where the minute entry failed to include that the juvenile's confinement was to be served "without benefit of parole, probation, suspension of imposition or execution of sentence, or modification of sentence." D.D., 11-1384 at p.5, 86 So.3d at 175. The appellate court remanded the matter to the trial court for amendment of the minute entry to accurately reflect the transcript. Id.
This court, however, has recognized that the district court has the authority to impose "[b]y written judgment, additional conditions of probation, including a curfew." State in Interest of S.P., 11-1598, p. 2 (La.App. 4 Cir. 5/2/12), 90 So.3d 528, 531; see also State In Interest of A.D., 16-0439, p. 13 (La.App. 4 Cir. 9/28/16, 13), ___ So.3d ___, ___, 2016 WL 5416351, p. *7. Accordingly, we find that the inclusion in the written disposition of curfew as a special condition of W.B.'s probation does not warrant a reversal or a remand for clarification. This assignment of error lacks merit.
For the foregoing reasons, the juvenile's delinquency adjudication is affirmed, but the disposition is vacated and remanded for a disposition hearing.
See also State ex rel. J. F., 03-0321, p. 4 (La.App. 3 Cir. 8/6/03), 851 So.2d 1282, 1285; La.Ch.C. art. 104(1) ("[w]here procedures are not provided in [the Children's] Code, or otherwise by law, the court shall proceed in accordance with ... [t]he Code of Criminal Procedure in a delinquency proceeding.").
