State ex rel. T. B.
| Decision Date | 19 February 2021 |
| Docket Number | NO. 2020 KJ 0929,2020 KJ 0929 |
| Citation | 320 So.3d 1143 |
| Parties | STATE of Louisiana IN the INTEREST OF T. B., Jr. |
| Court | Court of Appeal of Louisiana — District of US |
Bertha M. Hillman, Covington, Louisiana, Counsel for Appellant/Appellee T.B., Jr.
Hillar C. Moore, III, District Attorney, Andrea "Andi" Neal, Assistant District Attorney, Baton Rouge, Louisiana, Counsel for Appellee/Appellant State of Louisiana
BEFORE: THERIOT, WOLFE, AND HESTER, JJ.
The State of Louisiana filed a delinquency petition in case number 114188 against T.B., Jr.,1 (hereafter referred to as ("T.B.") a seventeen-year-old juvenile, based upon the alleged commission of two counts of armed robbery (counts one and two), violations of La. R.S. 14:64, and one count of illegal possession of a handgun by a juvenile (count three), a violation of La. R.S. 14:95.8. T.B. denied the allegations. The juvenile court denied T.B.'s motion to suppress global positioning system (GPS) records. Over the course of two separate adjudication hearing dates, the juvenile court entered judgments of acquittal finding T.B. not to be delinquent under counts 1 and 3, but adjudged T.B. to be delinquent as to count 2. After a disposition hearing, T.B. was committed to the Department of Public Safety and Corrections (DPSC) for twenty-four months. The juvenile court denied the State's motion to reconsider the disposition. T.B. now appeals, challenging the sufficiency of the evidence to support the adjudication and the juvenile court's denial of his motion to suppress GPS records. The State also appeals, challenging the juvenile court's denial of its motion to reconsider the disposition. After a thorough review of the record and the assignments of error, we affirm the adjudication and disposition.
On October 5, 2019, at about 10:30 p.m., Carley Davis encountered four young males near the Belle of Baton Rouge Casino and Hotel, while she was at a stop sign, and agreed to give them a ride. Davis testified that the youths were sitting outside of the hotel's administration building when she first spoke to them. Davis was driving at the time, and her friend, Asia Nguyen, was sitting in the front passenger seat of the vehicle.2 The youths asked for a ride to the Choctaw Drive and Scenic Highway area and agreed to give Davis money in exchange for the ride. During the ride, they told Davis that she could instead bring them to wherever she was going that night and that they would walk home from there. Davis decided to drop them off close to their home, as they were "kids," and she did not want them to be out, far from home. She allowed one of them to use her cell phone to call his mother. She took them to a side street behind a Dollar General Store located off Mohican Street and Plank Road and entered a parking lot. The youths were in Davis's vehicle for fifteen minutes or more.
Davis further testified that when they entered the parking lot of a business behind the Dollar General Store, she asked for the gas money, and the youths were hesitant to pay. Three of the youths exited her vehicle while one, unbeknownst to Davis, remained in the backseat, acting as if he were asleep. As Davis began to drive away, the three youths who exited the vehicle signaled for her to stop. One of the youths stated, "Hold on, my brother is in the car with you." Davis then turned around and realized that one of the youths was still in her vehicle. As Davis abruptly stopped her vehicle, one of the youths approached the passenger side of the vehicle, followed by another who approached the driver's door. The young male on the passenger side opened the door, put a gun to Nguyen's face, and snatched her bag. The other male opened Davis's door and pressed a gun against her left arm. He then leaned into the vehicle and snatched her purse from the floor by the driver's door and her cell phone that was connected to an auxiliary cord. The youths then fled the parking lot.
After initially driving away from the scene, Davis drove back to the scene to look for her belongings. She proceeded down Plank Road, in the direction that the youths were running when she last saw them and located them at a gas station at Evangeline Street and Plank Road. Davis chased the four youths in her car in the parking lot. She followed them for about five blocks, exited her vehicle, and chased one of them on foot with a hammer. Davis testified that the individual she chased on foot was not in the courtroom at the time of the hearing, but she noted that he "kind of favors" M.J. and was dressed similarly. Davis was unable to catch up with the unidentified youth and immediately went back to her car when she heard one of the other youths fire their gun. Davis further testified that Nguyen called the police while Davis was driving.
On October 6, 2019, the day after the incident, Davis began tracking the location of her stolen cell phone and called the police after determining that her cell phone was at Spanish Arms Apartments (Spanish Arms), located at 4343 Denham Street, Baton Rouge, Louisiana.3 Corporal David Bourque and Corporal J. Hollis of the Baton Rouge Police Department (BRPD) met Davis initially at the McDonald's next to Spanish Arms before proceeding to the apartment complex. About fifteen to thirty minutes after the officers responded, met with Davis, and unsuccessfully looked for her phone, Davis was contacted by someone she did not know who left her and Nguyen's phones at a gas station, a block away from the McDonald's and Spanish Arms. Davis went to the gas station and got both phones back. She noted that when she retrieved her cell phone, the name in the phone, under an email account, had been changed to "Munchie Jones."
Detective Justin Becnell with the BRPD was assigned to the case as the lead detective. Detective Becnell reviewed prior police reports including the original offense report submitted by BRPD Officer James Crockett, which included statements provided by the victims on the night of the initial complaint. According to Detective Becnell, a series of robberies occurred in the same area as the instant incident. After reviewing police reports and conducting a query in a law enforcement database, Detective Becnell developed four suspects: M.J., his brother D.J., T.B., and J.J. M.J., D.J., and T.B. lived in Spanish Arms, and J.J. lived near the apartment complex. The apartment complex was less than a mile from the parking lot where the robbery took place.
In photographic lineups conducted on October 17, 2019, consisting of four separate six-person photo arrays, and, subsequently in court at the adjudication hearing, Davis identified M.J. as the person who approached her side of the vehicle and stole her items at gunpoint and identified T.B. as the person who approached and robbed Nguyen at gunpoint.4 On October 24, M.J. and T.B. were arrested.
According to Detective Becnell, J.J. confessed to his involvement but named three other individuals as co-perpetrators who were not considered suspects in this case. However, at the adjudication hearing, J.J. testified that he did not recall his statement and that he had "[n]o memory" of this.
In assignment of error number one, T.B. argues that Davis's identification was the result of a "suggestive procedure" that created a substantial likelihood of misidentification. T.B. concludes that because the identification was tainted, the evidence was insufficient to establish his identity as the perpetrator beyond a reasonable doubt. T.B. argues that he should be discharged due to the lack of sufficient evidence to support the adjudication. Citing State v. Jones, 94-1098 (La. App. 1st Cir. 6/23/95), 658 So.2d 307, writ denied, 95-2280 (La. 1/12/96), 666 So.2d 320,5 T.B., alternatively, argues that this court should reverse the adjudication and remand for a new adjudication hearing without the out-of-court and in-court identification or the GPS records challenged in his second assignment of error.
T.B. alleges that Davis conducted her own social media investigation and claims that Davis and Nguyen could not describe the youthful perpetrators without looking at their cell phones. He further claims that Davis contacted the police on the morning after the robbery to report that she saw T.B. and M.J. on the balcony of apartment 908, M.J.'s mother's apartment, at Spanish Arms, but when the police arrived at the apartment, T.B. and M.J. were not there. Noting that Davis incorrectly identified one suspect and could not identify another, T.B. maintains, "it appears that [Davis] could only identify the youths whose photographs she had previously seen on [I]nstagram." T.B. contends that it is likely that the three males named by J.J. as co-perpetrators were the actual perpetrators in this case. He notes that M.J. was mistakenly identified as a perpetrator in one of the other robberies in the area.
T.B. contends that this court is required to determine the reliability of the photographic lineup according to the factors set forth in Manson v. Brathwaite, 432 U.S. 98, 114-15, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977), which include: 1) the opportunity of the witness to view the criminal at the time of the crime, 2) the witness’ degree of attention, 3) the accuracy of the prior description of the criminal, 4) the level of certainty demonstrated at the confrontation, and 5) the time between the crime and the confrontation.6 T.B. argues the incident took place at night and argues Davis could not have had an opportunity to view the youths. He also contends that since Davis was driving, she was unable to pay attention to the youths. He notes that Davis only described the offenders as young black males between fourteen and eighteen years old. He argues that while Davis was certain that she saw him and M.J. on Instagram, there was no evidence that the Instagram photographs were photographs of the robbers. T.B. again notes that Davis misidentified one of...
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