State ex rel. H.D.
| Docket Number | 23-KA-84 |
| Decision Date | 28 June 2023 |
| Parties | STATE OF LOUISIANA IN THE INTEREST OF H.D., IV |
| Court | Court of Appeal of Louisiana — District of US |
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STATE OF LOUISIANA IN THE INTEREST OF H.D., IV
No. 23-KA-84
Court of Appeals of Louisiana, Fifth Circuit
June 28, 2023
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
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
Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson
FREDERICKA HOMBERG WICKER JUDGE
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
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
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
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
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...
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