State of Louisiana in the Interest of H.D., IV ( 2023 )

STATE OF LOUISIANA IN THE INTEREST NO. 23-KA-84
OF H.D., IV
FIFTH CIRCUIT
COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE JEFFERSON PARISH JUVENILE COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 20-JU-372, DIVISION "B"
HONORABLE AMANDA L. CALOGERO, JUDGE PRESIDING
June 28, 2023
FREDERICKA HOMBERG WICKER
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and Robert A. Chaisson
ADJUDICATION AND DISPOSITION REVERSED; PROBATION
REVOCATION REVERSED
FHW
JGG
RAC
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Elizabeth B. Curren
Ashton Robinson
Douglas E. Rushton, Jr.
COUNSEL FOR DEFENDANT/APPELLANT,
HARRISON DAVIS, IV
Katherine M. Franks
WICKER, J.
Defendant, H.D.1, appeals his delinquency adjudication from the Juvenile
Court for the Parish of Jefferson for illegal possession of a handgun in violation of
La. R.S. 14:95.8 and the subsequent revocation of his probation. Because we find
that the State failed to meet its burden to prove the requirement that H.D. illegally
possessed a handgun “on his person” as required under La. R.S. 14:95.8, we
reverse the adjudication and disposition for illegal possession of a handgun.
Consequently, because the probation revocation was based upon the adjudication
for illegal possession of a handgun, we also reverse the revocation of H.D.’s
probation.
STATEMENT OF THE CASE
On September 22, 2020, the Jefferson Parish District Attorney filed a
petition in juvenile court alleging that the juvenile, H.D., committed the crime of
accessory after the fact of armed robbery with a firearm in violation of La. R.S.
14:25 and 14:64.3. On April 15, 2021, H.D. admitted the allegations of the
petition against him. On May 15, 2021, the juvenile court imposed a disposition of
two years in the Office of Juvenile Justice (OJJ) or until H.D.’s twenty-first
birthday, whichever was sooner. The juvenile court suspended the disposition and
placed H.D. on active probation for two years.
On June 29, 2022, the Jefferson Parish District Attorney filed a petition in
juvenile court alleging in count “A” that the juvenile, H.D., illegally possessed a
handgun as a juvenile in violation La. R.S. 14:95.8.2 On September 28, 2022,
following an adjudication hearing, the juvenile court adjudicated H.D. delinquent
1
Pursuant to Uniform Rules–Courts of Appeal, Rules 5-1 and 5-2, the initials of the juvenile will be used
to protect his identity. See State in Interest of C.L., 15-593 (La. App. 5 Cir. 12/23/15), 184 So.3d 187, 188
n.1.
2
The petition also alleged, in count “B” that the juvenile, H.D., also violated La. R.S. 14:94, illegal use of
dangerous weapons or instrumentalities. On September 28, 2022, the State dismissed count “B” of the
petition.
23-KA-84 1
on count “A,” illegal possession of a handgun as a juvenile.3 The juvenile court
imposed a disposition of six months in the OJJ.
On October 5, 2022, the Jefferson Parish District Attorney filed a Rule to
Revoke Probation, arguing that H.D.’s probation should be revoked based on the
September 28, 2022 adjudication for illegal possession of a handgun by a juvenile.
On October 20, 2022, following a hearing, the juvenile court revoked H.D.’s
probation under La. Ch.C. art. 914 based upon his prior adjudication. On that same
date, the juvenile court imposed the previously suspended disposition of two years
in the OJJ for his accessory after the fact with a firearm adjudication, and ordered
the disposition to run consecutively to the six-month disposition imposed for
illegal possession of a handgun by a juvenile in violation of La. R.S. 14:95.8. This
appeal followed.
FACTUAL BACKGROUND
At the adjudication hearing, Detective Jeffery Fitzmorris with the Kenner
Police Department testified that on June 26, 2022, at 11:48 p.m., the Kenner Police
Department received a report of shots fired in the area of 42nd Street and Newport
Street. Detective Fitzmorris testified that when he arrived at the scene on June 27,
2022, at approximately 1:00 a.m., he found numerous bullet casings on the ground.
He explained that there was an alleyway between 42nd and Newport Streets, with
apartment buildings on each side. He stated that the two groups of casings were
approximately twenty feet apart and that it appeared there had been a gunfight
between two groups of people using at least two firearms.
Detective Fitzmorris testified that there had been a number of recent
shootings in that area and that a couple of groups of specific individuals seemed to
3
On August 23, 2022, H.D. filed a motion to suppress statement. On September 28, 2022, the State and
the defense entered into a stipulation that only a portion of H.D.’s statement would be admissible—that he
had been shot at Newport Street—rendering the motion to suppress moot.
23-KA-84 2
be commonly associated with gunshot-related cases in that area. Detective
Fitzmorris asserted that H.D. was known to him before H.D.’s arrest in the instant
case and that he became aware of H.D. from prior investigations of the pattern of
criminal activity in that area.
Detective Joann Gallagher of the Kenner Police Department testified that on
June 26, 2022, she was working overtime patrol on the south side of Kenner. She
further testified that at approximately 11:40 p.m., she received a report of shots
fired and drove to the scene in the 1600 block of Newport Street. Approximately
five to ten minutes after she arrived, she received information over the radio that
Detective Arthur Cole, who was working a detail at the Off Track Betting (OTB)
Casino at 1700 Joe Yenni Blvd., had seen a male subject, later identified as H.D.,
wearing red pants and a white shirt, possibly carrying a black or dark-colored shirt.
She got into her marked unit and traveled toward the casino. She explained that
when she got to Joe Yenni Blvd., she looked eastbound to her right and saw a
subject matching Detective Cole’s description of the subject.
Detective Gallagher followed behind the subject and, as she approached, she
turned on her overhead lights. She testified that the subject glanced at her, and as
she opened her door to speak with him, the subject subsequently ran east into the
OTB casino parking lot. Detective Gallagher explained that she jumped back into
her unit, went over the grass, and followed the subject into the parking lot until she
observed Detective Cole apprehend him nearby. She observed the subject comply
and get “on the ground.” She exited her vehicle and handcuffed the subject while
he was on the ground. She noticed the subject had an injury that appeared to be a
graze wound from a gunshot. When questioned, the subject told Detective
Gallagher that he had been shot on Newport Street.
Detective Gallagher testified that the subject identified himself as H.D. and
stated that he was sixteen years old. She testified that at the time she pursued
23-KA-84 3
H.D., handcuffed him on the ground, and subsequently moved him to sit on the
nearby curb to await EMS, she did not notice any firearms in his possession or on
the ground nearby.
Detective Cole with the Kenner Police Department testified that on June 26,
2022, he was working an off-duty detail at the OTB Casino and that he normally
worked that detail from 6:00 p.m. on Sundays to between 1:00 and 1:30 a.m. on
Mondays. Detective Cole pointed out that he was wearing a full police uniform and
that he had his police radio with him on that night. At some point, he heard over
the radio that there had been a shooting in the Newport Street area but he was
unable to respond because he was working a detail. Detective Cole stated that
Newport Street is approximately three or four blocks south of the location of his
detail. He recalled that Detective Gallagher broadcasted that there were
approximately four subjects running northbound on Alabama, near the casino.
Detective Cole explained that he stepped outside the front door of the casino and
saw a black male wearing red pants and a white tank top carrying another shirt or
“something,” while walking westbound on Joe Yenni. Detective Cole stated that he
broadcasted that information over the radio.
Detective Cole stated that while outside the casino, he observed a police unit
making a U-turn near the parking lot, which illuminated the area so that he could
see the silhouette of the subject running toward the casino parking lot. Detective
Cole ran down the casino ramp and into the parking lot. He drew his weapon and
ordered the subject to stop. Detective Cole testified that the subject followed
commands and went down to the ground.
Detective Cole testified that other responding officers arrived and that
ultimately, after Officer Cusimano pointed it out to him, he observed a firearm on
the parking lot ground approximately three to five feet from where H.D. had been
apprehended. He testified that the incident occurred approximately one hour
23-KA-84 4
before casino closing time and that the parking lot had been busy throughout the
day. He testified however that he had never found a firearm in that parking lot
before, that there was no criminal activity in that parking lot to his knowledge, and
that he had worked that shift detail every other Sunday for the past four or five
years. He further provided that no one reported the presence of a firearm in the
parking lot throughout the day in question while he was working.
Officer Cusimano with the Kenner Police Department testified that on the
night of June 26, 2022, he was patrolling the north side of Kenner when he
received a report of shots fired. When he arrived on the scene, other officers were
already present and the subject was detained and sitting on a curb in the casino
parking lot. He testified that he walked around the scene, pacing back and forth
looking at the ground, when he observed a Ruger 9mm pistol on the ground no
more than five feet away from where the subject sat on the curb. Officer
Cusimano further testified that the gun appeared to be dry, but that it had been
“raining, drizzling on and off all night” while he had been on duty in Kenner.
DISCUSSION
On appeal, H.D. first challenges the sufficiency of the evidence presented
against him for his adjudication for possession of a handgun by a juvenile in
violation of La. R.S. 14:95.8. H.D. contends that the State failed to meet its burden
to prove that he knowingly possessed a firearm “on his person” as required to
prove possession under La. R.S. 14:95.8. Upon review of the record and for the
reasons below, we find that the juvenile court was manifestly erroneous in
determining that the State met its burden to prove that H.D. knowingly possessed a
handgun on his person and in adjudicating H.D. delinquent for violating La. R.S.
14:95.8.
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.
23-KA-84 5
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.
The burden of proof in a juvenile delinquency case is “no less stringent than the
proof required in criminal proceedings against an adult.” State ex rel. T.J., 01-384
(La. App. 5 Cir. 10/17/01), 800 So.2d 969, 971, quoting State ex. rel. T.J., 00-1723
(La. App. 5 Cir. 4/11/01), 786 So.2d 777, 780.
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.F., 08-0182 (La.
App. 1 Cir. 6/6/08), 991 So.2d 1082, 1084, 1085, writ denied, 08-1540 (La.
3/27/09), 5 So.3d 138. 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. State in Int. of T. L., 17-579 (La.
App. 5 Cir. 2/21/18), 240 So.3d 310, 320; State in Int. of C.M., 13-28 (La. App. 5
Cir. 10/30/13), 128 So.3d 1118, 1125, writ denied, 13-2796 (La. 5/30/14), 140
23-KA-84 6
So.3d 1172, quoting State ex rel. C.N., 11-0074 (La. App. 4 Cir. 6/29/11), 69 So.3d
711, 714.
In this case, H.D. was adjudicated delinquent for illegal possession of a
handgun by a juvenile. La. R.S. 14:95.8 provides that “[i]t is unlawful for any
person who has not attained the age of eighteen years knowingly to possess any
handgun on his person.” The statutory language “on his person” is clear and
unambiguous. Where the words of a statute are clear and free from ambiguity,
they are to be applied as written. State v. Bedford, 01-2298 (La. 1/28/03), 838
So.2d 758, 760. This Court has interpreted the statutory language “on his person”
in the context of La. R.S. 14:95.8 to mean that “an adjudication of a juvenile as
delinquent for illegal possession of a handgun requires a finding that the juvenile
had actual, not merely constructive, possession of a gun.” State in Int. of T. L., 17-
579 (La. App. 5 Cir. 2/21/18), 240 So.3d 310, 320-21, citing State ex rel. C.M., 13-
128 (La. App. 5 Cir. 10/30/13), 128 So.3d 1118, 1125, writ denied, 13-2796 (La.
5/30/14), 140 So.3d 1172; State in Int. of R.P., 14-0468 (La. App. 4 Cir. 9/10/14),
150 So.3d 76, 79.4
At the adjudication hearing, the State put forth no evidence to prove that
H.D. had actual possession of the firearm at issue. Detective Gallagher, who
initially made contact with H.D. and attempted to speak with him from her patrol
unit while he ran across the casino parking lot, testified that she never observed
H.D. carrying any weapon. She further testified that, during the process of
handcuffing H.D. and physically moving H.D. to sit on a nearby curb to await
EMS, she did not observe any firearm on H.D.’s person or on the ground nearby
4
See also State in the Interest of T.M., 11-1238 (La. App. 4 Cir. 3/28/12), 88 So.3d 1228, 1234-35, writ
granted in part, judgment reversed in part on other grounds, 12-964 (La. 12/14/12), 104 So.3d 418(discussing the two distinguishable provisions of La. R.S. 14:95(A) and 14:95(E)—where one provision
requires proof of concealment of a firearm “on one’s person” and the other requires proof only of a
firearm “under his immediate control”—and applying that analysis in a juvenile case to interpret the “on
his person” language provided in La. R.S. 14:95.8).
23-KA-84 7
during that time. The State did not introduce any fingerprint or DNA evidence to
link H.D. to the firearm. No witness testified that he or she observed H.D. carrying
a firearm, making any suspicious movements to dispose of a firearm, or observing
H.D. in any manner to be in actual possession of a firearm. Although Officer
Cusimano, who discovered the firearm at some point in time after H.D. had been
apprehended, testified that the weapon was found no more than five feet from
where defendant had been placed on the curb and that the firearm appeared dry
even though it had been “drizzling” off and on throughout the evening, the
evidence also reflected that the firearm was found in a public casino parking lot
approximately one hour before closing time. Further, such testimony, although
relevant to a constructive possession analysis, is not sufficient to prove that H.D.
had actual possession of a firearm “on his person” as required under La. R.S.
14:95.8.5
Upon review of the record and all testimony and evidence introduced at the
adjudication hearing, we find that the juvenile court was manifestly erroneous in
adjudicating H.D. delinquent for illegal possession of a handgun by a juvenile in
violation of La. R.S. 14:95.8. We therefore reverse the adjudication and
disposition.
Next, H.D. contends on appeal that because the revocation of his probation
was based solely on his adjudication for illegal possession of a handgun by a
5
The State points to State in the Interest of T.L., supra, for the proposition that constructive possession in
addition to other corroborating circumstantial evidence can be sufficient to support an adjudication for
possession of a handgun by a juvenile in violation of La. R.S. 14:95.8. That case, however is
distinguishable. In that case, firearms were located underneath a vehicle’s seat padding in the backseat
directly where the juvenile had been seated when the officer conducted a traffic stop and ordered the
occupants out of the vehicle. In affirming the juvenile’s adjudication for possession of a handgun by a
juvenile, this Court found the evidence demonstrated that “the juvenile admitted several times that he
owned the firearms” at issue. State in Int. of T. L., 240 So.3d at 321. This Court found that the evidence
of the presence of the firearms directly where the juvenile had been seated in addition to his multiple
confessions to the crime constituted sufficient evidence to support the adjudication. In the instant case,
H.D. filed a motion to suppress an inculpatory statement made after his arrest. The State and defense
entered into a stipulation that a portion of H.D.’s statement would not be admitted into evidence. The
State and defense entered into a stipulation that H.D. admitted he had been shot on Newport Street—a
statement that does not support a finding that he was in actual possession of a firearm. Thus, we find
State in the Interest of T.L. to be distinguishable from the instant case.
23-KA-84 8
juvenile and, because he contends the evidence was insufficient to support that
adjudication, his revocation consequently should also be set aside.
On October 5, 2022, the State filed a Rule to Revoke Probation. In its rule,
the State asserted: “Inasmuch as the juvenile was found delinquent of illegally
possessing a firearm while he was on probation for Accessory after the Fact of
Armed Robbery with a Firearm, the State submits his probation should be revoked
and the balance of the juvenile’s sentence imposed.” Thus, the State’s Rule to
Revoke was based solely upon the adjudication for possession of a handgun by a
juvenile in violation of La. R.S. 14:95.8.
At the revocation hearing, probation officer Sheena Campbell testified that
she was aware that H.D. was previously adjudicated for accessory after the fact to
armed robbery involving the use of a firearm on April 15, 2021.6 Officer Campbell
stated that she was aware that H.D. was on probation at the time he was
adjudicated delinquent for illegal possession of a handgun and that, according to
La. Ch.C. art. 914, possession of a handgun while on probation is grounds for
revocation.
After arguments by the State and the defense concerning the statutory
language in La. Ch.C. art. 914—mandating revocation of probation for an
adjudication for possession of a handgun by a juvenile—the juvenile court revoked
H.D.’s probation and reinstated the two-year disposition for his accessory after the
fact of armed robbery with a firearm adjudication in violation of La. R.S. 14:25
and 14:64.3. The juvenile court ordered that the two-year disposition be served
consecutively to the six-month disposition imposed for his possession of a handgun
by a juvenile adjudication in violation of La. R.S. 14:95.8.
6
Officer Campbell further testified that H.D. was on probation in St. Charles Parish when he was initially
arrested for illegal possession of a handgun. She testified that H.D.’s case was transferred in its entirety to
St. Charles Parish at that time; the record appears to indicate the transfer was initiated because H.D.
moved to St. Charles Parish for a period of time. The matter was subsequently transferred back to
Jefferson Parish when he returned to Jefferson Parish.
23-KA-84 9
A juvenile’s probation may be modified or revoked by motion filed pursuant
to La. Ch.C. arts. 913 and 914. Unless the juvenile waives his right, the court shall
conduct a contradictory hearing. La. Ch.C. art. 913(B); Int. of A.H., 18-0389 (La.
App. 1 Cir. 12/21/18), 2018 WL 6718582.
In this case, the State filed its Rule to Revoke pursuant to La. Ch.C. art. 913
and La. Ch.C. art. 914 based, however, solely on H.D.’s adjudication for
possession of a firearm by a juvenile in violation of La. R.S. 14:95.8. La. Ch.C.
art. 913, in pertinent part, provides:
A. A motion filed to revoke a child’s probation shall be accompanied
by a supporting affidavit specifying the claimed violations which form
the basis of the revocation. The child shall be entitled to a copy of the
motion and supporting affidavit.
B. Unless the child waives his right, the court shall conduct a
contradictory hearing. At this hearing, the child shall be entitled to:
(1) The right to confront and cross-examine adverse witnesses.
(2) The right to appear in person and to present witnesses in his own
behalf.
(3) The right to have the state bear the burden of providing by clear and
convincing evidence that he violated a condition of his probation which
was contained in the order of disposition.
La. Ch.C. art. 914, in pertinent part, provides:
A. Except as provided in Paragraph B of this Article, if the court finds
that the child has violated a condition of his probation, it may,
consistent with the best interests of the child and the public, do any of
the following:
(1) Reprimand and warn the child.
(2) Order that supervision be intensified.
(3) Impose additional conditions to the probation.
(4) Extend the period of probation, provided the total amount of time
served by the child on probation for any one offense shall not exceed
the maximum period of probation authorized by Articles 898 and 900.
(5) Order that probation be revoked and execute the suspended
sentence.
B. If the probation violation is the illegal or unlawful possession of a
firearm, probation revocation is mandatory, and the child shall be
committed to the custody of the Department of Public Safety and
Corrections.
23-KA-84 10
La. Ch.C. art. 914(B) provides that if the probation violation is the illegal or
unlawful possession of a firearm, probation revocation is mandatory and the child
shall be committed to the custody of the Department of Public Safety and
Corrections. State in Int. of T. L., 17-579 (La. App. 5 Cir. 2/21/18), 240 So.3d 310,
331.
Following the revocation hearing, the juvenile court, applying the mandatory
provisions of La. Ch.C. art. 914, revoked H.D.’s probation based solely on his
adjudication for possession of a handgun by a juvenile. Because this Court, by
way of this Opinion, has reversed H.D.’s adjudication for illegal possession of a
handgun by a juvenile in violation of La. R.S. 14:95.8 for lack of sufficient
evidence to support the adjudication, we find the juvenile court erred in revoking
H.D.’s probation on that basis. We therefore reverse the revocation of H.D.’s
probation.7
DECREE
Accordingly, for the reasons stated herein, we reverse H.D.’s adjudication
and disposition for illegal possession of a handgun by a juvenile in violation of La.
R.S. 14:95.8. Further, because H.D.’s probation revocation was based solely on
his adjudication for illegal possession of a handgun by a juvenile, we further
reverse the juvenile court’s revocation of H.D.’s probation.
ADJUDICATION AND DISPOSITION
REVERSED; PROBATION REVOCATION
REVERSED
7
We point out however that under La. Ch.C. art. 913, the juvenile court has discretion to impose
additional restrictions for conduct that violates conditions of probation that may not rise to the level of
conduct required to prove an adjudication of a crime. Our opinion does not preclude a proceeding to
revoke H.D.’s probation on grounds other than an adjudication for possession of a firearm by a juvenile.
State in Int. of Pigott, 413 So.2d 659, 664 (La. Ct. App. 1st Cir. 1982).
23-KA-84 11
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
JUNE 28, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:
23-KA-84
E-NOTIFIED
JUVENILE COURT (CLERK)
HONORABLE AMANDA L. CALOGERO (DISTRICT JUDGE)
AMANDA L. CALOGERO (APPELLEE) DOUGLAS E. RUSHTON, JR. (APPELLEE) ELIZABETH B. CURREN (APPELLEE)
THOMAS J. BUTLER (APPELLEE) KATHERINE M. FRANKS (APPELLANT)
MAILED
ASHTON ROBINSON (APPELLEE) HONORABLE PAUL D. CONNICK, JR.
ATTORNEY AT LAW (APPELLEE)
1546 GRETNA BOULEVARD DISTRICT ATTORNEY
HARVEY, LA 70058 TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053