State Of Louisiana in the Interest of D.W. ( 2022 )

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2022 KJ 0187
STATE OF LOUISIANA IN THE INTEREST OF D.wW.
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SEP 2 1 2022
Judgment Rendered:
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KARR KK KKK
Appealed from the
php City Court of East St. Tammany
Juvenile Division
Si In and for the Parish of St. Tammany
State of Louisiana
Case No. 21 JC 2125
The Honorable Bryan Haggerty, Judge Presiding
kee eR KKK
Katherine M. Franks Counsel for Appellant
Louisiana Appellate Project D.W.
Madisonville, LA
Warren L. Montgomery Counsel for Appellee
District Attorney State of Louisiana
J. Bryant Clark, Jr.
Assistant District Attorney
Covington, LA
D. Rex English
Assistant District Attorney
Slidell, LA
RRR KR KK
BEFORE: WELCH, PENZATO, AND LANIER, JJ.
LANIER, J.
On May 19, 2021, the State of Louisiana filed a juvenile delinquency
petition in case number 21 JC 2125 against D.W.,' a sixteen-year-old juvenile,
based on the alleged commission of simple burglary, a violation of La. R.S. 14:62.
D.W. denied the allegation. After an adjudication hearing, the juvenile court
adjudicated D.W. delinquent as alleged.” The juvenile court later heard and denied
a motion for a new trial filed by D.W. The juvenile court committed D.W. to the
custody of the Office of Juvenile Justice (OJJ) until his twenty-first birthday with a
recommendation of secure placement, suspended all but thirty months, and placed
D.W. on parole for the remainder of his sentence. The juvenile court later modified
the disposition to thirty months in the custody of the OJJ, all but twenty-four
months suspended, with the recommendation of secure placement and parole
supervision for the suspended portion of the disposition. D.W. now appeals,
challenging the sufficiency of the evidence and the admission of hearsay testimony
at the adjudication hearing. After a thorough review of the record, we reverse the
adjudication, vacate the disposition, and remand for a new adjudication hearing.
STATEMENT OF FACTS
Based on evidence presented at the adjudication hearing, on or about May
14, 2021, Officer Thomas Swanton of the Slidell Police Department (SPD) was
dispatched to 202 Oriole Drive in response to a vehicle burglary that had just
occurred at that location. SPD officers who arrived on the scene were informed
that a neighborhood resident saw a number of juveniles in the area and observed
one of the juveniles enter a pickup truck equipped with a camper. After learning of
'D.W.’s date of birth is October 1, 2004. Herein, juveniles will be referred to by their initials to
protect their identity. See Uniform Rules of Louisiana Courts of Appeal, Rule 5—2.
* The above allegation was combined at the adjudication proceeding with allegations filed under
petitions 21 JP 2152 and 21 JC 2153. D.W. was not adjudicated as to all allegations under
petition 2153, but was adjudicated delinquent under petition 2152, based upon which he filed a
separate appeal in this court. See State in Interest of D.W., 2022-0188 (La. App. Ist Cir.
_/ /_).
what happened, the owner? looked in his truck and initially observed that his
wallet, which he had left in the center console, was missing. He later found his
wallet on the floor in the back of the truck, though a single dollar bill was missing
from the wallet.
Officer Swanton interviewed witnesses at the scene, including the victim,
while other SPD officers in the area pursued the juveniles. The victim did not see
anything and could only relay “secondhand” information. A juvenile witness, J.O.,
told Officer Swanton that he observed several juveniles going down the street.
J.O. said that one of them was riding a bicycle and one was wearing a red jacket.
J.O. further reported observing one of the juveniles “going into” the truck and then
“taking off.” J.O. told the victim’s son about his observations, who in turn told the
victim. Another witness, Miles Parker, told Officer Swanton that he heard one of
the subjects say, “hurry up.”
The doorbell camera at 202 Oriole Drive captured video footage showing the
front of a white pickup truck in a residential driveway parked facing the street and
four youthful-looking subjects, two riding bicycles followed by two on foot, in the
street, passing by the truck. Three of the subjects were wearing dark clothing, and
one was wearing a reddish top. Subsequent to this video footage, after being
pursued in a foot chase, the four subjects—D.W., his brother C.W., V.R., and
S.G.—were placed under arrest. Officer Swanton testified that a single dollar bill
was found on D.W.’s person after his arrest.
Of the four subjects, only C.W. testified at the hearing. He confirmed the
presence of all four subjects at the scene at the time of the burglary, but stated that
V.R. was the one who reached into the vehicle. Officer Louis Pellissier of the
SPD, who was present when V.R. and S.G. gave statements after their arrests,
* The petition identifies the owner of the pickup truck as Patrick M. Anderson (the victim). The
victim did not testify at the hearing.
testified at the hearing that V.R. and S.G. indicated that it was D.W. and C.W. who
entered the truck and stole items from vehicles on the day in question.
ASSIGNMENT OF ERROR NUMBER ONE
In assignment of error number one, D.W. claims that there was no
identification of him as the perpetrator in this case. He notes that although
witnesses said they saw a group of juveniles in the neighborhood and that one of
them entered the truck, they could not identify anyone or even describe the
perpetrator’s clothing. Further, these witnesses were not subject to cross
examination since they were not called to testify at the hearing. D.W. contends
that the one-dollar bill found on his person at the time of his arrest was “strictly
coincidental.” He argues that the State did not present any direct evidence that he
entered the victim’s truck. D.W. claims that the adjudication was based solely on
the fact that he was seen in the neighborhood and had a single dollar bill in his
pocket at the time of his arrest. He notes that while he was captured on video in
the area with other juveniles, the video was not enough evidence to make him
liable as a principal. D.W. also notes that the State alleged a specific intent crime
in this case and was required to prove beyond a reasonable doubt that he had the
requisite criminal intent. Thus, he concludes the State failed to prove either that he
was the person who entered the truck, or that he aided or abetted the person who
entered the truck.
The State argues that the evidence was sufficient to sustain the adjudication.
The State notes that one of the officers, Officer Pellissier, testified at the hearing
that he was present during the interview of two of the subjects arrested that day and
that both of them implicated D.W. and his brother, C.W., as the perpetrators of the
instant offense.’ The State further argues that the dollar bill recovered from D.W.
* The admission of Officer Pellisier’s hearsay testimony is at issue in assignment of error number
two. We note that the entirety of the evidence, both admissible and inadmissible, must be
considered in determining the sufficiency of the evidence. If the entirety of the evidence, both
was the proceeds of the instant burglary, noting that the victim reported that a
dollar bill was missing from his wallet, which had been moved from the center
console to the back of the truck. The State notes that the juvenile court expressed
some concern about C.W.’s credibility, which the State argues further entitled the
juvenile court to find that D.W. was one of the perpetrators of the instant offense.
Finally, the State contends that the evidence of flight provided further
circumstantial evidence of D.W.’s guilt.
In a juvenile adjudication proceeding, the State must prove beyond a
reasonable doubt that the child committed a delinquent act alleged in the petition.
La. Ch. Code art. 883; State in Interest of D.L., Jr., 2017-0891 (La. App. Ist Cir.
11/1/17), 233 So.3d 671, 676. Accordingly, in juvenile delinquency cases, the
standard of review for the sufficiency of evidence is that enunciated in Jackson v.
Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979),
i.é@., whether viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the State proved the essential elements
of the crime beyond a reasonable doubt. See La. Code Crim. P. art. 821(B); State
v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; State ex rel. J.S.,
2000-2514 (La. App. Ist Cir. 2/16/01), 808 So.2d 459, 461. The Jackson standard
is an objective standard for testing the overall evidence, both direct and
circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La.
R.S. 15:438 provides 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. State ex rel. D.F., 2008-0182 (La. App. Ist Cir. 6/6/08), 991 So.2d
1082, 1085, writ denied, 2008-1540 (La. 3/27/09), 5 So.3d 138.
admissible and inadmissible, was insufficient to support the adjudication, the accused is entitled
to an acquittal and no further inquiry as to trial errors is necessary. See State v. Hearold, 603
So.2d 731, 734 (La. 1992). On the other hand, when the entirety of the evidence, even evidence
erroneously admitted, is sufficient to support the adjudication, the accused is not entitled to an
acquittal, and the reviewing court must consider assignments of trial error to determine whether
the accused is entitled to a new trial. Id.Simple burglary is “the unauthorized entering of any dwelling, vehicle,
watercraft, or other structure, movable or immovable, or any cemetery, with the
intent to commit a felony or any theft therein[.]” La. R.S. 14:62(A). The intent
required for simple burglary is “the specific intent to commit either a felony or a
theft at the time of his unauthorized entry.” State v. Marcello, 385 So.2d 244, 245
(La. 1980). Specific intent is that state of mind which exists when the
circumstances indicate that the offender actively desired the prescribed criminal
consequences to follow his act or failure to act. La. R.S. 14:10(1); State in
Interest of T.C., 2018-1246 (La. App. Ist Cir. 12/21/18), 269 So.3d 716, 719.
Specific intent need not be proven as a fact but may be inferred from the
circumstances of the transaction and the actions of the accused. Specific intent is a
legal conclusion to be resolved ultimately by the trier of fact. State in Interest of
K.H., 2021-0628 (La. App. Ist Cir. 10/4/21), 2021 WL 4551034, at *3
(unpublished).
Louisiana Revised Statutes 14:24 provides that all persons concerned in the
commission of a crime, whether present or absent, and whether they directly
commit the act constituting the offense, aid and abet in its commission, or directly
or indirectly counsel or procure another to commit the crime, are principals. The
accused’s mere presence at the scene is not enough to “concern” him in the crime.
Only those persons who knowingly participate in the planning or execution of a
crime may be said to be “concerned” in its commission, thus making them liable as
principals. A principal may be connected only to those crimes for which he has the
requisite mental state. State in Interest of D.M., 2017-1418 (La. App. Ist Cir.
2/21/18), 2018 WL 1007352, at *4 (unpublished). However, “[i]t is sufficient
encouragement that the accomplice is standing by at the scene of the crime ready
to give some aid if needed, although in such a case it is necessary that the principal
actually be aware of the accomplice’s intention.” State ex rel K.J.C., 2009-0658
(La. App. Ist Cir. 9/11/09), 2009 WL 3162216, at *3 (unpublished) (quoting State
v. Anderson, 97-1301 (La. 2/6/98), 707 So.2d 1223, 1225 (per curiam)).
Where the key issue is the accused’s identity as the perpetrator of the crime,
rather than whether the crime was committed, the State is required to negate any
reasonable probability of misidentification to carry its burden of proof. State in
Interest of T.B., 2020-0929 (La. App. Ist Cir. 2/19/21), 320 So.3d 1143, 1150.
Positive identification by even one witness may be sufficient to support a
conviction. In the absence of internal contradiction or irreconcilable conflict with
physical evidence, one witness’s testimony, if believed by the trier of fact, is
sufficient support for a requisite factual conclusion. D.M., 2018 WL 1007352, at
* 4.
Officer Swanton interviewed witnesses J.O. and Miles Parker, both of whom
did not testify at the hearing. Officer Swanton confirmed that J.O. could not
remember which subject he saw enter the truck and could not specify the number
of subjects he saw on the street at the time. Officer Swanton testified that, based on
his previous experience, he considered the statement heard by Mr. Parker—one of
the subjects telling another one to “hurry up”—to be the typical behavior of a
lookout. Officer Swanton confirmed that he did not recall any distinguishing marks
on the dollar bill found on D.W. at the time of his arrest. Officer Swanton further
confirmed that a number of credit cards that were in the victim’s wallet at the time
of the offense were not stolen. He noted that the foot pursuit took place not long
after the initial call reporting the burglary.
Officer Pellissier also responded to the scene on Oriole Drive and
transported one of the male subjects placed under arrest, V.R. Officer Pellissier
was present when V.R. and S.G. participated in police interviews. While V.R. and
S.G. did not testify at the hearing, Officer Pellissier testified that V.R. stated that
C.W. and his brother D.W. “were inside the vehicle stealing from at least four
vehicles” on that evening. Officer Pellissier further testified that S.G.’s statements
were “concurrent” with V.R.’s statements.
C.W., D.W.’s brother, testified at the hearing. C.W. confirmed that he was
riding bicycles with D.W. and was arrested with D.W. on the day in question in
relation to money missing from a wallet in a truck. He confirmed that V.R. and
S.G. were also with them. He testified that V.R. was the one who reached into the
vehicle. However, C.W. stated that he turned away after he saw V.R. reach into
the vehicle and did not see V.R. take anything. C.W. said he had no knowledge of
any plans of V.R. to take anything from the vehicle. When specifically asked if he
saw V.R. take anything, C.W. said he “wasn’t looking.” He added, “I turned
around and he [V.R.] was reaching in the car.”
Sergeant Joel Hoskins of the SPD obtained a search warrant for D.W.’s cell
phone after his arrest. Pertinent to the instant case, on May 15, 2021, the day after
the instant offense, communications between D.W. and a contact labeled “Vonte”
included a text message by Vonte stating, in part, “i heard u had a gun to yo head
... then i heard yall had hid the wallet ... i swear i had to let my anger out in tears
cuz when they put them in that cop car i had to just walk away, but my mama not
mad ca we aint do nun, shiii these n***** be snitching i swea[.]” D.W. replied,
“Bro I didn’t have the wallet[.]” Vonte replied, “ik[.]”
The trier of fact, in this case, the juvenile court, is charged with making
credibility determinations. Credibility determinations, as well as the weight to be
attributed to the evidence, are soundly within the province of the fact finder.
Moreover, conflicting testimony as to factual matters is a question of weight of the
evidence, not sufficiency. Such a determination rests solely with the trier of fact.
A trier of fact’s determination as to the credibility of a witness is a question of fact
entitled to great weight, and its determination will not be disturbed unless it is
clearly contrary to the evidence. In the absence of internal contradictions and
irreconcilable conflicts with physical evidence, the testimony of one witness, if
believed by the trier of fact, is sufficient to support an adjudication. See T.C., 269
So.3d at 719.
Because a review of the law and facts in a juvenile delinquency proceeding
is constitutionally mandated, an appellate court must review the record to
determine if the juvenile court was clearly wrong in its factual findings. See La.
Const. art. 5, § 10; T.C., 269 So.3d at 719. In a juvenile case, when there is
evidence before the trier of fact that, upon its reasonable evaluation of credibility,
furnished a factual basis for its finding, on review, the appellate court should not
disturb this factual finding in the absence of manifest error. Reasonable
evaluations of credibility and reasonable inferences of fact should not be disturbed
upon review. D.M., 2018 WL 1007352, at *3.
Herein, Officer Pellissier testified that both V.R. and S.G. stated that
brothers D.W. and C.W. entered the vehicle and that they were stealing from at
least four other vehicles that evening. Based on additional testimony presented at
the hearing, D.W. took flight when officers pursued him after the burglary.
Although an individual’s flight does not in and of itself indicate guilt, it can be
considered as circumstantial evidence that the individual has committed a crime as
flight shows consciousness of guilt. State in Interest of M.P., 2017-0892 (La.
App. Ist Cir. 11/1/17), 233 So.3d 633, 641 (citing State v. Williams, 610 So.2d
991, 998 (La. App. Ist Cir. 1992), writ denied, 617 So.2d 930 (La. 1993)).
Furthermore, though he denied having “the wallet[,]” D.W.’s awareness and guilt
were further substantiated by the text messages obtained from his cell phone
records. We further find the fact that the exact amount of money the victim stated
was missing from his wallet, a single dollar bill, was on D.W.’s person when he
was arrested does not appear to be coincidental in context of the other evidence
presented at the hearing.
Finally, the testimony of D.W.’s own brother, C.W., further implicated D.W.
in the instant offense. Specifically, C.W. admitted that he and D.W. were present
when the burglary of the vehicle occurred, though he claimed it was V.R. who
reached into the vehicle. C.W. then claimed that he was not looking and that C.W.
was unaware as to something being stolen from the vehicle. He stated that he was
not questioned by the police. While the juvenile court apparently accepted Officer
Pellissier’s testimony in full, the court expressed concern as to C.W.’s credibility.
The trier of fact may accept or reject, in whole or in part, the testimony of any
witness. T.C., 269 So.3d at 719. An appellate court ordinarily may not substitute
its appreciation of the evidence for that of the fact finder. State in Interest of
T.E., 2012-0517 (La. 6/29/12), 91 So.3d 292, 294-95 (per curiam) (citing, e.g.,
State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 422 (per curiam))
(“[The] due process, rational fact finder test of Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), does not permit a reviewing court to
substitute its own appreciation of the evidence for that of the fact finder or to
second guess the credibility determinations of the fact finder necessary to render an
honest verdict.”).
Viewing the evidence in its entirety, whether admissible or inadmissible, in
the light most favorable to the prosecution, we find that any rational trier of fact
could have found beyond a reasonable doubt and to the exclusion of every
reasonable hypothesis of innocence that D.W. was guilty of simple burglary. Thus,
after undertaking the constitutionally-mandated review of the law and facts, we
find the evidence was sufficient to support the adjudication. Assignment of error
number one lacks merit.
ASSIGNMENT OF ERROR NUMBER TWO
In assignment of error number two, D.W. argues that the juvenile court erred
in overruling his counsel’s objection to hearsay testimony elicited from Officer
10
Pellissier. D.W. contends that Officer Pellissier had no purpose at the hearing
other than to introduce V.R.’s statement. D.W. notes that V.R. did not testify and
was not subpoenaed. D.W. argues V.R.’s statement was clearly testimonial and
that the content of the statement fell within the definition of hearsay. He contends
that since the fact of the statement was not relevant, the testimony was clearly
being offered for its truth. Thus, he argues he was denied his right to confront his
accuser. Finally, D.W. argues that it cannot be said that the error was harmless, as
V.R.’s statement and the fact that others had made consistent statements was the
only evidence offered by the State connecting him with the burglary. The State
concedes that the testimony was inadmissible but argues its admission was
harmless, as it was cumulative to Officer Pellissier’s testimony about S.G.’s
statement, to which the defense “opened the door” and did not object.
Hearsay evidence is evidence of an unsworn, out-of-court statement made by
a person other than the testifying witness which is introduced for the truth of its
content. However, if such a statement is offered for any other purpose, then the
statement is not hearsay. La. Code Evid. art. 801(C). State v. Patton, 2010-1841
(La. App. Ist Cir. 6/10/11), 68 So.3d 1209, 1219-20. Hearsay evidence is
inadmissible except as specified in the Louisiana Code of Evidence or other
legislation. La. Code Evid. art. 802.
The Sixth Amendment to the United States Constitution guarantees an
accused in a criminal prosecution the right to confront the witnesses against him.
The confrontation clause of the Louisiana Constitution specifically and expressly
guarantees an accused the right “to confront and cross-examine the witnesses
against him.” La. Const. art. L, § 16. Confrontation not only means the ability to
confront the witnesses physically but also to secure for the accused the opportunity
of cross-examination, which is its main and essential purpose. Cross-examination
is the principal way to test the believability and truthfulness of the testimony, and it
1]
has traditionally been used to impeach, or discredit, the witness. State v.
Robinson, 2001-0273 (La. 5/17/02), 817 So.2d 1131, 1135.
Traditionally, for purposes of the Confrontation Clause, all hearsay
statements were admissible if (1) the declarant was unavailable to testify, and (2)
the statement fell under a “firmly rooted hearsay exception” or bore “particularized
guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531,
2539, 65 L.Ed.2d 597 (1980) (overruled, in part). But, in Crawford v.
Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United
States Supreme Court overruled Roberts, insofar as it applies to out-of-court
statements that are “testimonial” in nature. The Crawford Court held that the
adequate “indicia of reliability” standard set forth in Roberts is too amorphous to
adequately prevent the admission of “core testimonial statements that the
Confrontation Clause plainly meant to exclude.” Crawford, 541 U.S. at 63, 124
S.Ct. at 1371; State v. Kennedy, 2005-1981 (La. 5/22/07), 957 So.2d 757, 775-76,
rev'd, 554 U.S. 407, 128 S.Ct. 2641, 171 L-Ed.2d 525 (2008) (holding the Eighth
Amendment’s Cruel and Unusual Punishments Claus prohibits imposing the death
penalty for the rape of a child in cases where the victim did not die and death was
not intended), opinion modified on denial of reh’g, 554 U.S. 945, 129 S.Ct. 1, 171
L.Ed.2d 932 (2008).
Article 801(D)(4) incorporates what was formerly La. R.S. 15:447 and 448,
known as the res gestae exception to the hearsay rule. Res gestae is defined as
events speaking for themselves under the immediate pressure of the occurrence,
through the instructive, impulsive, and spontaneous words and acts of the
participants. Patton, 68 So.3d at 1220 (citing State v. Castleberry, 98-1388 (La.
4/13/99), 758 So.2d 749, 765, cert. denied, 528 U.S. 893, 120 S.Ct. 220, 145
L.Ed.2d 185 (1999)). This doctrine includes not only spontaneous utterances and
declarations made before and after commission of a crime, but also includes
12
_ testimony of witnesses pertaining to what they heard or observed before, during, or
after the commission of the crime if the continuous chain of events is evident under
the circumstances. It is possible that a police officer, in explaining his own
actions, may refer to statements made to him by other persons, not to prove the
truth of the out-of-court statements, but to explain the sequence of events leading
to the arrest of the accused from the viewpoint of the investigating officer. Patton,
68 So.3d at 1220.
Generally, an explanation of the officer’s actions should never be an
acceptable basis upon which to admit an out-of-court declaration when the so-
called “explanation” involves a direct assertion of criminal activity against the
accused. Absent some unique circumstances in which the explanation of purpose
is probative evidence of a contested fact, such hearsay evidence should not be
admitted under an “explanation” exception. State v. Hearold, 603 So.2d at 737.
Likewise, such testimony may not, under the guise of asking the police to describe
the course of their investigation, be used by the State as an indirect method of
bringing before the trier of fact the presumptively unreliable statement of a non-
testifying participant implicating the defendant in the crime. See State v.
Broadway, 96-2659 (La. 10/19/99), 753 So.2d 801, 810, cert. denied, 529 US.
1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000) (citing Lee v. Illinois, 476 U.S.
530, 545, 106 S.Ct. 2056, 2064, 90 L.Ed.2d 514 (1986); Bruton v. United States,
391 US. 123, 135-36, 88 S.Ct. 1620, 1628, 20 L.Ed.2d 476 (1968) (“A
codefendant’s confession is presumptively unreliable as to the passages detailing
the defendant’s conduct or culpability because those passages may well be the
product of the codefendant’s desire to shift or spread blame, curry favor, avenge
himself, or divert attention to another”)).
The probative value of the mere fact that an out-of-court declaration was
made is generally outweighed greatly by the likelihood that the trier of fact will
13
consider the statement for the truth of the matter asserted. However, when hearsay
testimony from a police officer is improperly introduced into evidence, it will be
considered harmless error if it is found to be cumulative and corroborative of other
properly admitted evidence. State v. Magee, 2013-1417 (La. App. Ist Cir.
3/24/14), 143 So.3d 532, 537. The test for harmless error is whether the guilty
verdict rendered was surely unattributable to the error. Sullivan v. Louisiana, 508
US, 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); State v. Morgan,
99-1895 (La. 6/29/01), 791 So.2d 100, 104 (per curiam).
Herein, after the State asked Officer Pellissier if V.R. made any statements
during the police interview that took place after his arrest, D.W.’s counsel objected
on the grounds of hearsay. The juvenile court overruled the objection based on the
State’s explanation that the testimony was being presented for “t]he fact that it
was said, not necessarily the fact that it was true.” Officer Pellissier then testified
that V.R. said that C.W. and D.W. “were inside the vehicle stealing... .” Officer
Pellissier subsequently testified that S.G.’s statements were “concurrent” with
V.R.’s statements.
The instant case is comparable to State v. Arbuthnot, 367 So.2d 296(1979). Therein, the Louisiana Supreme Court reversed the defendant’s conviction
on the basis of a police officer’s hearsay testimony regarding a non-testifying
witness’s positive identification of the defendant. Although another eyewitness
identified the defendant, the Court reasoned that the hearsay description of the non-
testifying witness improperly bolstered the State’s identification testimony by its
only identification witness. Id. at 298-99.
Additionally, comparable cases have recognized the inherent unreliability of
hearsay statements by accomplices who do not appear at trial. In Lee, 476 U:S. at
530, the defendant and codefendant were charged with committing a double
murder and were tried jointly in a bench trial in which neither defendant testified.
14
The Court found that the trial court’s reliance on the codefendant’s confession as
substantive evidence against the defendant violated the defendant’s right under the
Confrontation Clause. In finding the codefendant’s statement improperly admitted,
the Court noted: “the arrest statements of a codefendant have traditionally been
viewed with special suspicion. Due to his strong motivation to implicate the
defendant and to exonerate himself, a codefendant’s statements about what the
defendant said or did are less credible than ordinary hearsay evidence.” Id. at 541,
106 S.Ct. at 2062 (quoting Bruton v. United States, 391 U.S. 123, 123, 88 S.Ct.
1620, 1631, 20 L.Ed.2d 476 (1968)).°
In this case, Officer’s Pellissier’s testimony regarding statements made by
two of the subjects after all four subjects were arrested was not needed to show
why the officers reported to the area of the burglary. Thus, Officer Pellisier’s
hearsay identification testimony was not used to show why the officers acted as
they did, but was instead used to prove D.W.’s identity as the perpetrator. Officer
Pellisier’s testimony corroborated the circumstantial evidence and the testimony by
the sole eyewitness at the hearing, C.W., whose testimony standing alone would
not have been enough to establish all of the elements of the offense. Specifically,
while C.W. placed D.W. at the scene at the time of the offense, mere presence at
scene is not enough to concern him in the crime or establish “the specific intent to
commit either a felony or a theft” at the time of the unauthorized entry. See
Marcello, 385 So.2d at 245.
While the State notes that there was no objection to Officer Pellissier’s
testimony regarding S.G.’s police statement, S.G.’s statement was simply
described as being “concurrent” with V.R.’s statement without any specific
testimony as to the content of S.G.’s statement. Therefore, the lack of a
contemporaneous objection in this instance does not defeat D.W.’s claim of
> The Lee Court reversed the defendant’s conviction and remanded the case for the state courts to
consider whether the error in admitting the evidence was harmless. Id. at 547, 106 S.Ct. at 2065.
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substantial prejudice. Unobjected to hearsay that is the exclusive evidence of guilt
is not evidence at all. Magee, 143 So.3d at 538. In this case, outside of the
hearsay testimony by Officer Pellissier, there was no direct evidence of D.W.’s
participation in the unauthorized entry or that D.W. had the specific intent to
commit a felony or a theft.
We find, as the State now concedes, the juvenile court erred in overruling
D.W.’s objection of the ground of hearsay. Further, based on our review of the
record, we find that the juvenile court, in adjudicating D.W. delinquent in this case,
gave evidentiary weight to the hearsay testimony implicating D.W. While C.W.’s
testimony placed D.W. at the scene at the time of the offense, C.W. also presented
the hypothesis of innocence that unbeknownst to him (and presumedly D.W.), the
other two juveniles, V.R. and S.G., committed the burglary. Without the hearsay
testimony that was erroneously admitted, C.W.’s testimony and the remaining
circumstantial evidence, namely, D.W.’s presence at the scene, flight prior to
arrest, possession of a single dollar bill at the time of his arrest, and text messages
sent after his arrest, are insufficient to prove the elements of the offense or to refute
the hypothesis of innocence in this case. Therefore, we cannot say that the
adjudication was surely unattributable to the erroneous admission of hearsay
evidence. Because we do not find that the inadmissible hearsay was harmless in
this case, we hereby reverse D.W.’s adjudication, vacate the disposition, and
remand the matter for a new adjudication hearing.
ADJUDICATION REVERSED; DISPOSITION VACATED; REMANDED
FOR A NEW ADJUDICATION HEARING.
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