State ex rel. S.L.
MARC E. JOHNSON, Judge.
^Defendant, S.L.,
IsPROCEDURAL HISTORY
On May 26, 2011, defendant was charged by petitions in juvenile court with possession оf marijuana in violation of La. R.S. 40:966(C) (Petition “G”); resisting an officer by flight in violation of La. R.S. 14:108 (Petition “H”); illegal possession of a handgun by a juvenile in violation of La. R.S. 14:95.8 (Petition “I”); simple burglary of a vehicle in violation of La. R.S. 14:62 (Petition “J”); and possession of a firearm while in possession of a controlled dangerous substance in violation of La. R.S. 14:95(E) (Petition “K”). Defendant proceeded to trial on June 22, 2011, and was adjudicated delinquent on all five counts.
At the time S.L. was charged with the present offenses, he was on probation for an unrelated obstruction of justice adjudication (Petition “C”). After his adjudication for the present offenses, S.L.’s probation officer filed a motion to revoke probation. On July 21, 2011, an ad hoc judge revoked S.L.’s probation and ordered that the suspended disрosition of six months be imposed. On the same day, the ad hoc judge held a disposition hearing on the present adjudications and imposed two-year dispositions on each of the five offenses to run concurrently with each other and consecutively to the six-month disposition imposed as a result of the probation revocation on Petition “C.”
One week later on July 28, 2011, the trial judge who entered the adjudications on Petitions “G-K” entered an “Order Correcting Illegal Sentence.” In her order, the trial judge vacated S.L.’s two-year disposition as to the possession of marijuana adjudication on the basis of double jeopardy.
FACTS
On May 28, 2011, Joshua Franklin noticed his 2001 Honda Accord, which had been parked at the Westwind Apartment complex in Kenner, had been burglarized. He testified the vehicle’s back door was cracked and his hair pins were scattered on the driver’s side. He further stated items from inside his car were missing. Mr. Franklin did not call the police, but rather reported the burglary to a security guard because he was running late for work.
The record does not reflect who called the police.
Within one to two minutes of the dispatch call, Sergeant Richie Arnold saw two juveniles matching the description of the perpetrators entering the eastbound ramp to the 1-10 on bicycles. He activated his lights and sirens and approached the juveniles, who turned and acknowledged his presence but refused to stop. According to Sgt. Arnold, the juveniles, one of whom was S.L., dropped their bicycles and began running down an alley separаting the Ken-ner Police Complex and Susan Park playground towards Veterans Blvd. He yelled for the juveniles to stop, identified himself as “police,” and proceeded to chase the juveniles to [¡¡Veterans Blvd. where two other officers, Nicholas Hoffman and Charles Donovan, were waiting.
After Officer Hoffman heard the call that the suspects were running, he responded to the area and saw the juveniles cut through the parking lot of the Susan Park gym followed by Sgt. Arnold, who yelled “That’s them; that’s them.” Officers Hoffman and Donovan then “rode [the juveniles] to the ground” and detained them.
Within the next two to three minutes, Officer Hoffman walked the path the suspects had run and observed a black pistol in some bushes four to five feet off the side of the gym. The gun had six rounds in the magazine but nothing in the chamber. Another officer responding to the scene, but who arrived after the juveniles were detained, found a clear cellophane bag with green vegetable matter approximately seven feet from where the juveniles were detained. The contents of the bag later tested positive for 5.1 grams of marijuana.
Officer Donovan subsequently transported S.L. to lockup. Officer Donovan testified that S.L. appeared nervous and scared. As they waited for the officer in charge of the case to arrive at the police station, Officer Donovan developed a rap
ISSUES
Defendant raises several issues on appeal. He first challenges the sufficiency of the evidence as to his adjudications for resisting arrest, illegal possession of a handgun by a juvenile, simple burglary, and possession of a firearm while in possession of a controlled dangerous substance. Second, he contends his adjudications for illegal possession of a firearm by a juvenile and possession of a firearm while in possession of a controlled dangerous substance violates double jeopardy. Third, S.L. argues the trial court erred in allowing inadmissible hearsay and using the hearsay as substantive evidence of his guilt. Fourth, defendant contends his two-year dispositions on all his adjudications are excessive. And, finally, defendant asserts he received ineffective assistance of counsel because his counsel failed to conduct discovery, failed to file a motion to suppress his statement, failed to file a motion to quash the petition on the basis of double jeopardy, and failed to object to illegal dispositions.
DISCUSSION
Double Jeopardy
We address the issue of double jeopardy before sufficiency of the evidence because we find it has merit and results in the reversal of defendant’s adjudication for illegal possession of a handgun by a juvenile, which renders a review of the sufficiency of evidence on this charge moot.
Defendant was adjudicated a delinquent on both charges of illegal possession of a handgun by a juvenile and possession of a firearm while in possession of a controlled dangerous substance. Defendant argues these adjudications violate double jeopardy. The State concedes this point and agrees |7S.L.’s adjudication and disposition for illegal possession of a handgun by a juvenile (Petition “I”) should be vacated.
The Double Jeopardy Clause of the United States Constitution and the Louisiana Constitution protects defendants from being punished or prosecuted twice for the same offense. State v. Sandifer, 95-2226 (La.9/5/96),
In the present case, prosecution of S.L. for the illegal possession of a handgun by a juvenile required use of the same evidence presented against him under La. R.S. 14:95(E); specifically, possession of the same firearm. As such, the prohibition against double jeopardy was violated.
Where multiple punishments have been erroneously imposed in violation оf double jeopardy, the proper appellate pro
Sufficiency of Evidence
We now turn to defendant’s challenge of the sufficiency of the evidence as to the remaining three adjudications: resisting arrest, simple burglary, and possession of a firеarm while in possession of a controlled dangerous substance.
hWe review sufficiency of the evidence first because if the entirety of the evidence, both admissible and inadmissible, was insufficient to support the conviction, the defendant is entitled to an acquittal and no further inquiry as to trial errors is necessary. State v. Hearold,
“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 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,
Resisting Arrest
S.L. was adjudicated delinquent for resisting an officer by flight in violation of La. R.S. 14:108. S.L. argues the evidence presented at trial was insufficient to convict him because the record is devoid of proof that he took any action that could be considered “resisting Officer Matise.”
IflThe Petition filed by the District Attorney charged that “on or about the 23rd day of May, 2011, [S.L.] did intentionally violate R.S. 14:108, in that [S.L.] did intentionally oppose and resist an officer of the law, Officer Michael Matise, by flight before the arresting officer can [sic] restrain him and after notice is [sic] given that he is [sic] under arrest.” S.L. contends that the evidence showed Officer Matise did not arrive on the scene until after S.L. had been taken into custody and, therefore, the State failed to prove that he resisted Officer Matise.
Under La. R.S. 14:108, the crime of resisting an officer is “the intentional interference with, opposition or resistance to, or obstruction of an individual acting in his official capacity and authorized by law to make a lawful arrest, lawful detention ... when the offender knows or has reason to know that the person arresting,
The record shows that Officer Matise arrived at the scene after S.L. had already been taken into custody. Although Officer Matise prepared the police report for the incident and was considered the arresting officer because the incident occurred in his “area,” he had absolutely no intеraction with S.L. Accordingly, we find the State failed to prove S.L. resisted Officer Matise as charged in the Petition. Because we find insufficient evidence, we reverse S.L.’s adjudication and disposition for resisting árrést.
Simple Burglary
Defendant contends the only evidence of his identity as the perpetrator was the inadmissible hearsay radio broadcast description of the suspects and his inadmissible inculpatory statement. As stated above, for purposes of sufficiency of | inthe evidence, we must consider both admissible and inadmissible evidence to determine whether all the essential elements of the offense were proven beyond a reasonable doubt. When the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the defendаnt is not entitled to an acquittal, and we must then consider the assignments of trial error to determine whether the defendant is entitled to a new trial. Hearold,
Simple burglary is the unauthorized entering of any structure, movable or immovable, with the intent to commit a felony or theft therein. La. R.S. 14:62. In order to convict a defendant of simple burglary, the State must prove the defendant entered a structure, either movable or immovable, without authorization, and had the intent to commit a felony or theft therein. La. R.S. 14:62; State v. Vortisch,
In addition to proving the statutory elements of the charged offense, the State is required to prove the identity of the perpetrator. State v. Searls,
To prove its case, the State presented the testimony of the victim, Mr. Franklin, who testified his car had been burglarized. He explained his car’s back door was cracked, his hair pins had been scattered on the driver’s side, and items were missing. He further stated he had not given anyone permission to enter his car. The State also presented the testimony of Sgt. Arnold who stated he received [ na dispatch call of a vehicle burglary involving two young black men, one wearing a black t-shirt and blue jeans and the other a black t-shirt and camouflage shorts, who were fleeing the area on bicycles. Approximately one to two minutes after the dispatch call, Sgt. Arnold observed two juveniles, matching the description, on bicycles in the vicinity of the location of the burglary. When Sgt. Arnold attempted to stop the two juveniles, one of whom was defendant, they fled on foot and were subsequently apprehended. S.L. subsequently admitted to attempting to break into five cars by lifting the door handles, but denied actually entering any of the cars.
Possession of a Firearm while in Possession of a Controlled Dangerous Substance
Regarding his adjudication for possession of a firearm while in possession of marijuana, defendant contends the evidence was insufficient to show actual possession, and that the State failed to prove a connection between the firearm possession and the drug offense for purposes of cоnstructive possession sufficient to convict under La. R.S. 14:95(E).
The State responds S.L.’s inculpatory statement established that he was in actual possession of the firearm and marijuana, negating the necessity to prové a “nexus” between the firearm and marijuana under La. R.S. 14:95(E). Although |12S.L. challenges the admissibility of his confession in a later assignment of error relating to ineffective assistance of counsel, for purposes of determining the sufficiency of evidence, we consider both admissible and inadmissible evidence.
To adjudicate S.L. delinquent for violating La. R.S. 14:95(E), the State must have proven that he (1) knowingly or intentionally possessed a firearm, while at the same time (2) knowingly or intentionally possessed a controlled dangerous substance. “Possession” under La. R.S. art. 14:95(E) includes both actual and constructive possession. State v. Blanchard, 99-3439 (La.1/18/01),
The evidence showed S.L. fled from the police and was eventually apprehended. A loaded firearm and marijuana were found near the path where S.L. had just run. After being arrested, S.L. told Officer Donovan where he had obtained the gun, that he threw it down while he was running, and that the marijuana found on the ground next to him at the time of his arrest was his. This evidence sufficiently shows S.L. was in actual possession of the marijuana and firearm. However, for reasons discussed below, we find S.L. is entitled to a new trial on this charge based on his trial counsel’s failure to file a motion to suppress his confession.
Inadmissible Hearsay as Substantive Evidence of Guilt
Defendant next argues that the only evidence of his identity as the perpetrator of the simple burglary was the description offered by the police dispatch, which he contends is inadmissible hearsay. He further asserts the admission of the hearsay evidence was not harmless because it was the only evidence establishing his identity as the perpetrator and the use of it violated his constitutional right to confront his accusers.
[ 1sThe State responds that the information in the police dispatch was properly admitted to prove the course and conduct of the police investigation which led to S.L.’s arrest. The State further asserts defendant’s right to confrontation was not violated because a police dispatch is not testimоnial.
Hearsay is an oral or written assertion, other than one made by the de-clarant while testifying at the present trial, offered in evidence to prove the truth of
Police officers may refer to statements made to them by other persons involved in the case in order to explain their actions. State v. Watson,
In State v. Broadway, 96-2659 (La.10/19/99),
Admission of information received by a police officer in the investigation of a crime, on the basis that such information explains the officer’s presence and conduct and therefore does not constitute 114hearsay evidence, is an area of widespread abuse. McCormick on Evidence § 249 (E. Cleary 3d ed.1984). Such information frequently has an impermissible hearsay aspect as well as a permissible nonhearsay aspect, and the court in determining admissibility should balance the need of the evidence for the prоper purpose against the danger of improper use of the evidence by the jury. Id. The fact that an officer acted on information received in an out-of-court assertion may be relevant to explain his conduct, but this fact should not become a passkey to bring before the jury the substance of the out-of-court information that would otherwise be barred by the hearsay rule. G. Pugh, Louisiana Evidence Law 429-431.(1974).
When an out-of-court statement, such as information received by a police officer during an investigation of a crime, has both an impermissible hearsay aspect and a permissible nonhearsay aspect, the issue of relevancy becomes significantly interrelated with the hearsay issue. If the nonhearsay content of the statement has little or no rеlevance, then the statement should generally be excluded on both relevance and hearsay grounds. Marginally relevant nonhear-say evidence should not be used as a vehicle to permit, the introduction of highly relevant and highly prejudicial hearsay evidence which consists of the substance of an out-of-court assertion that was not made under oath and is not subject to cross-examination at trial.
The police dispatcher’s physical descriptions of the juvenile suspects were not needed to show why the officers reported to the area of the burglary. The officers’ testimony was used to show not only why the officers acted as they did, but also to prove identity of the perpetrators. When Sgt. Arnold spotted S.L. riding his bike towards the eаstbound ramp of 1-10, he recognized that S.L. fit the description he had heard over the police radio. When the officers apprehended S.L. in the parking lot of the Susan Park playground, they did so because S.L. met the clothing description relayed by the police dispatcher who
In State v. Arbuthnot,
In this case, both Officer Matise and Sgt. Arnold were notified of the offense and the suspects’ descriptions by a police dispatcher, who received the information from an unidentified caller. Other than the police officers who responded to the dispatch call, Mr. Franklin, the victim of the simple burglary, was the only other witness to testify and his testimony was very limited. He did not testify that he observed the individuals who burglarized his car, and he did not testify that he provided a description of the suspects to the police. Further, Mr. Franklin did not make an in-court, or out-of-court, identification of S.L. as the individual who burglarized his car. The State called no other witnesses to explain the origin of the police transmission or to identify S.L. as the perpetrator.
The erroneous admission of hearsay testimony is subject to a harmless error analysis. State v. Wille,
|1fiWe cannot say the erroneous admission of hearsay evidence was harmless error in this case. The State’s case against defendant was circumstantial. The physical description given by an unknown person to the police dispаtcher was clearly used to link S.L., who was not in possession of any stolen goods at the time of his arrest, to the burglary of Mr. Franklin’s car. Accordingly, we find the erroneous admission of the police dispatch regarding the physical description of the perpetrators was not harmless because it was used to directly link defendant to the crime.
In his final assignment of error, defendant argues he was denied effective assistance of counsel because his attorney failed to file discovery requests, failed to file a motion to suppress S.L.’s inculpatory statement, failed to file a motion to quash the charges which violated the double jeopardy clause, and failed to objeсt to the illegal dispositions.
La. Ch. C. art. 809(A) provides that “[a]t every stage of proceedings under this Title, the accused child shall be entitled to counsel.” Juvenile defendants as well as adults are entitled to effective assistance of counsel. State in Interest of D. McK,
A claim of ineffective assistance of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington,
Second, defendant must show that counsel’s deficient performance prejudiced his defense. This element requires a showing that the errors were so serious as to deprive the defendant of a fair trial, i.e., a trial which result is reliable. The defendant must show actual prejudice before relief will be granted. It is not sufficiеnt for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra.
No pre-trial or post-trial motions were filed on behalf of S.L. Defendant contends that his trial counsel was deficient in failing to file a motion to suppress his inculpa-tory statement. The State responds that the outcome would have been the same even if the statement had been excluded because the trial court expressly disregarded the confession and found sufficient evidence to convict S.L.
Our first inquiry is whether trial counsel’s failure to file a motion to suppress S.L.’s statement was deficient. We find it was.
In Miranda v. Arizona,
The obligation to provide Miranda warnings attaches when a person is questioned by law enforcement after he has been taken into custody or otherwise deprived of his freedom of action in any significant way. Miranda,
| ^Spontaneous and voluntary statements, not given as a result of police interrogation or compelling influence, are admissible without Miranda warnings even where a defendant is in custody. State v. Castillo,
A determination of whether a waiver of constitutional rights was knowing and voluntary is made on a case-by-case basis, and such a determination rests upon the totality of the circumstances. State v. McGee,
In the instant matter, S.L., a 16-year-old juvenile, who had a history of criminal behavior at the time of his arrest, admitted to Officer Donovan that he possessed the gun and the marijuana. He gave the statement without having been advised of his Miranda rights and without being provided an opportunity to speak with his mother. Officer Donovan described S.L. as being scared and nervous. Although Officer Donovan testified that he did not “interrogate” S.L. to obtain a confession, he admitted that he conversed with S.L. for 30-60 minutes and asked |2qS.L. rebuttal questions in response to the information S.L. provided. ■ Officer Donovan could not say even how the conversation began.
We find these circumstances show S.L.’s statement was obtained pursuant to Officer Donovan’s compelling influence and, thus, would have been suppressed had trial counsel filed such a motion.
We further find defendant was prejudiced by his trial counsel’s deficient performance and, thus, is entitled to a new trial. Specifically, without S.L.’s confession, actual possession cannot be proven. Thus, the State would have been required to prove constructive possession and a nexus between the possession of the firearm and the possession of marijuana. To establish constructive possession, the State must show a defendant had dominion and control over the contraband. A connection between the gun and the drug offense may be established by сonsidering (1) the type of firearm involved; (2) the type of controlled dangerous substance involved; (3) the quantity of drugs involved; (4) the proximity of the |⅞1 firearm to the drugs; (5) whether the firearm is loaded; and (6) any other relevant evidence. State v. Blanchard, 99-3439 (La.1/18/01),
In this case, Sgt. Arnold testified that the two juvenile suspects attempted to avoid apprehension by fleeing on foot down an alley containing bushes between the Susan Park playground and the Kenner Police Department. When Sgt. Arnold finally caught up to them, they had been apprehended by two other officers. Sgt. Arnold did not observe S.L. discard any objects while he was in pursuit of S.L.
Officer Hoffman testified that he first observed the suspects running through the parking lot in front of the gym where they were apprehended. He also did not observe S.L. discard any objects. A search of the alley where the suspects had run revealed a gun located in some bushes. The distance between the gun and the location where S.L. was arrested was approximately 30 to 40 yards. The bag of marijuana as found approximately seven feet from where S.L. had been arrested. Both juveniles, S.L. and his co-defendant, were arrested; however, because of his confession, only S.L. was charged with possession of the gun and marijuana.
Although the trial court indicated it did not consider S.L.’s statement in its adjudication of S.L., we were obligated to consider it when addressing the sufficiency of the evidence because it was introduced as evidence at trial, and we must consider all admissible and inadmissible evidence. Without S.L.’s confession, we believe thеre was insufficient evidence to adjudicate S.L. delinquent on the possession of a firearm while in possession of marijuana charge. We do not find the above evidence sufficiently establishes S.L. had constructive possession of the firearm found in the
TERRORS PATENT
This Court has determined a juvenile is entitled to an errors patent review under La.C.Cr.P. art. 920. State in Interest of C.D.,
Upon review, we note S.L. is correct in his argument on appeal that the trial court erred in only vacating the disposition for the offense of possession of marijuana after determining there was a double jeopardy violation. Tо remedy a violation of double jeopardy, the court is required to vacate the conviction and sentence for the less severely punishable offense. State v. Garcia,
DECREE
For the reasons discussed above, we vacate S.L.’s adjudication for possession of marijuana and reverse his adjudications and dispositions for illegal possession of a handgun by a'juvenile and resisting arrest. We further vacate his adjudications and dispositions on the charges of simple burglary and possession of a firearm while in possession of a controlled dangerous substance and remand the matter for a new trial on these two' charges.
REVERSED IN PART; VACATED IN PART; REMANDED FOR FURTHER PROCEEDINGS
Notes
. Due to the requirements of confidentiality of juvenile proceedings аs set forth in La. Ch.C. art. 412, defendant, age 16 at the time of the charge offenses, is referred to by initials only.
. We note that two of these adjudications, illegal possession of a handgun by a juvenile and resisting an officer, are misdemeanors. Under La. Ch.C. art. 330, a juvenile may appeal any final judgment of the juvenile court to the court of appeal. Thus, a juvenile is entitled to an appeal whether he has been adjudicated on a felony-grade offense, a misdemeanor-grade offense, or both. Therefore, all charges are properly before this Court on appeal. See State in re J.L., 08-538, *3 (La.App. 3 Cir. 10/1/08),
.The trial cоurt failed to vacate defendant’s adjudication for possession of marijuana,
. During Officer Michael Matise's testimony, he stated that he took a statement from "the guy that notified the police.” However, the prosecutor responded, "[w]e don't need to go further into that,” and the identification of that person was never presented into evidence.
. Miranda v. Arizona,
.See also State v. Broussard,
. As previously noted, Officer Matise indicated during his testimony that he interviewed the individual who provided the description of the simple burglary suspects to the police dispatcher; however, the individual was never called to testily.
. Although defendant admitted in his statement that he attempted to break into five cars, we find his statement inadmissible for reasons discussed infra in our discussion of ineffective assistance of counsel.
. "... the compulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investigations, where there are often impartial observers to guard against intimidation or trickery.” Miranda,
. We note the trial court seemed to recognize the inadmissibility of S.L.’s statement when it specifically disregarded the statement in adjudicating defendant a delinquent.