State ex rel. D.R.

• Decision Date: 13 October 2010
• Docket Number: No. 2010-CA-0405.,2010-CA-0405.
• Citation: 50 So.3d 927
• Parties: STATE of Louisiana in the Interest of D.R.
• Court: Court of Appeal of Louisiana — District of US

50 So.3d 927

STATE of Louisiana in the Interest of D.R.

No. 2010-CA-0405.

Court of Appeal of Louisiana, Fourth Circuit.

Oct. 13, 2010.

Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Appellant, D.R.

Leon Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.

(Court composed of Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).

PAUL A. BONIN, Judge.

**1 D.R. was adjudicated a delinquent child ¹ for a violation of La. R.S. 40:966 E(1), first offense simple possession of marijuana. The juvenile judge in the judgment of disposition committed D.R. to the custody of the Department of Public Safety and Corrections for two years two months, credit for time served.² D.R. appeals his adjudication as a delinquent child on the grounds that the evidence is insufficient to sustain the adjudication and that the juvenile judge improperly interrogated him while he was on the witness stand; he also appeals the disposition committing him for a period exceeding the maximum period allowed by law. See La. Ch.C. arts. 330 B and 331 A.

Because we conclude that the juvenile judge was not clearly wrong in finding beyond a reasonable doubt that D.R. was in possession of marijuana, and because we find no other reversible error, we affirm his adjudication as a delinquent child. But because we determine that the juvenile judge erred as a matter of law in the disposition committing D.R. to an excessive custodial period **2 on this charge, we vacate the judgment of disposition, and remand the matter with instructions for a new disposition by the juvenile court consistent with our holding.

We explain our decision in the following Parts below. In Part I we consider D.R.'s assignment of error regarding the juvenile judge's examination or interrogation of him during the trial. In Part II we discuss the proper standard of review for sufficiency of evidence in a juvenile adjudication. In Part III we consider the facts developed at trial and the law applicable to the offense for which D.R. was adjudicated, and apply the standard of review to the facts. In Part IV we review the law governing the disposition and period of commitment and set forth our remand instructions.

I

The juvenile judge first questioned D.R. during the direct examination by his attorney; there was no objection to that short series of questions. At the conclusion of D.R.'s very brief cross-examination by the prosecutor, the juvenile judge again began to question D.R. and an objection to this examination was lodged. Counsel for D.R. objected on the grounds that thejuvenile judge was asking D.R. "to possibly incriminate himself." The judge replied that D.R. "possibly incriminated himself by getting on the stand." See Brown v. United States, 356 U.S. 148, 154, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958) (a witness who voluntarily testifies cannot claim a Fifth Amendment "immunity from cross examination on the matters that he himself has put in dispute."). D.R.'s counsel then objected on the grounds of relevancy. The judge overruled the objection to his own line of questions, stating "I'm going to ask the questions, because you put him on the stand."

**3 At the outset, we note that on appeal D.R. argues a different basis for objection. Now D.R. argues that the juvenile judge stepped outside his role as a neutral and impartial factfinder and stepped into the role of adversary and advocate, which role of course is prohibited to the judge. But, "[e]rror may not be predicated upon a ruling which admits ... evidence unless a substantial right of the party is affected, and ... a timely objection ... appears of record, stating the specific ground of objection". La. C.E. art. 103 A(1); see also La.C.Cr.P. art. 841 C. La.C.Cr.P. art. 841 A, which is applicable through La. Ch.C. art. 104(1), provides:

An irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor. (emphasis added)

"It is well settled that [a] defendant must state the basis for his objection when he makes it so that the trial judge has an opportunity to rule on it and prevent or cure an error." State v. Dupar, 353 So.2d 272, 273 (La.1977). Additionally, "a new ground for objection cannot be presented for the first time on appeal." State v. Harris, 414 So.2d 325, 327 (La.1982).

In support of this new argument, D.R. relies on authorities treating the judge's role in jury trials. In jury trials, the judge is prohibited from commenting upon the evidence in the presence of the jury. See La.C.Cr.P. art. 772. The purpose of this rule is to safeguard the role of the jury as the sole judge of the facts. State v. Grainer, 02-0703, p. 16 (La.App. 4 Cir. 12/4/02), 834 So.2d 555, 565. Thus, where a trial judge's extensive questioning of a witness in a jury trial was deemed to be an improper comment upon the facts, the Supreme Court has **4 reversed the conviction. State v. Williams, 375 So.2d 1379, 1385 (La.1979). Of course, there is no jury present in delinquency proceedings. See La. Ch.C. art. 882; In re State ex rel. A.J., 09-0477 (La.12/1/09), 27 So.3d 247. The "no comment" rule of Article 772 is, therefore, not applicable to cases in which the judge, and not a jury, is the trier of fact. In State v. Layssard, 310 So.2d 107, 108 (La.1975), the Supreme Court noted:

Where the judge is the trier of fact he has the right to question the witness to clarify the evidence in his mind. Unless his participation in the trial is to such an extent and of such a nature that it deprives the defendant of a fair trial, there is no error.

Nevertheless, we have reviewed the juvenile judge's interrogation of D.R., which was clearly more aggressive and extensive than the prosecutor's cross-examination of D.R. A trial judge may question witnesses. See La. C.E. art. 614 B. Some of the judge's questions could have been asked by the prosecutor, such as whether D.R. had "any other convictions [sic]" or had previously used marijuana. Others of the questions sought information that a juvenilejudge might want to know post-adjudication at a disposition hearing, such as whether D.R. had previously sold drugs, how long he had been smoking marijuana, and his school performance. Still others, such as "... so where do you get your drugs when you smoke marijuana?" or "Yeah, but if you found drugs you were going to take them, right?" suggest that the judge was morphing into the role of an adversarial advocate. The second circuit observed in Midyett v. Midyett, 32,208 (La.App. 2 Cir. 9/22/99), 744 So.2d 669, 675, that

Comment (c) to La.Code Evid. Art. 614 states, however, that "the power of the court to question witnesses, moreover, does not authorize a court to exercise that power in the same manner as adversary counsel." In other words, the trial judge, while asking a witness **5 questions from the bench, must remain impartial and must not become an "advocate" for one side or the other.

While these questions do seem to go beyond merely clarifying evidence and approach developing evidence adverse to the child's interest, they were generally relevant to the offense charged (possession with intent to distribute marijuana) and, based upon D.R.'s transcribed responses to the judge's questions, he does not seem to have been intimidated, frightened, or cowered by the interrogation. Thus, even if we were to consider D.R.'s objection first raised on appeal, we discern no basis to conclude that the judge's participation in this trial is to such an extent and of such a nature that it deprived D.R. of a fair trial.

II

In this Part we consider the proper standard by which we review D.R.'s adjudication as a delinquent. While delinquency proceedings may in many ways implicate criminal proceedings, sometimes even mimicking them, they are nonetheless civil in nature. In re C.B., 97-2783, p. 17 (La.3/4/98), 708 So.2d 391, 400 ("The hallmark of special juvenile procedures is their non-criminal nature."). Because delinquency proceedings are not criminal proceedings, the scope of review in Louisiana extends to both law and facts. La. Const. art. V, § 10(B) provides in pertinent part:

Except as limited to questions of law by this constitution, or as provided by law in the review of administrative agency determinations, appellate jurisdiction of a court of appeal extends to law and facts ... In criminal cases its appellate jurisdiction extends only to questions of law.

**6 The Louisiana Supreme Court in State in the Interest of Batiste, 367 So.2d 784, 788 (La.1979), specifically decided that

Except as otherwise provided by the constitution, this Court's jurisdiction in civil cases extends to both law and facts; in criminal matters, its criminal jurisdiction extends only to questions of law. La. Const.1974, art. 5, s 5(C). Juvenile delinquency proceedings do not fall within the category of criminal prosecutions, as is evident from long established jurisprudence ..., and the special juvenile provisions within the judiciary article of the constitution. La. Const.1974, art. 5, ss 10, 18 and 19. Accordingly, since the constitution does not provide otherwise, the scope of review of this court in juvenile delinquency proceedings extends to both the law and the facts. (ellipsis indicates citations omitted; emphasis added).

The Batiste court then evaluated the facts of that case and applied the manifest error standard of review:

... [A]side from the inference which possibly could be drawn from Batiste's possession, there was no evidence tendingto prove that he took or misappropriated the bicycle. In opposition to the mere basis for possible inference provided by the state's evidence, Batiste presented

...