STATE of Louisiana in the Interest of D.W.

• Decision Date: 29 October 2010
• Docket Number: No. 09–KA–855.,09–KA–855.
• Citation: 47 So.3d 1048
• Parties: STATE of Louisiana in the Interest of D.W.
• Court: Court of Appeal of Louisiana — District of US

47 So.3d 1048

STATE of Louisiana in the Interest of D.W.

No. 09–KA–855.

Court of Appeal of Louisiana,Fifth Circuit.

Sept. 14, 2010.

Rehearing Denied Oct. 29, 2010.

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Paul D. Connick, Jr., District Attorney, Twenty–Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Juliet Clark, Jeffrey Lagarde, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.

Katherine M. Franks, Attorney at Law, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellant.

Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.

CLARENCE E. McMANUS, Judge.

Defendant, D.W., was adjudicated delinquent for two counts of attempted first degree murder and sentenced to the Office of Youth Development until his 21st birthday. He now appeals this adjudication. For the reasons which follow, we affirm the adjudication and sentence imposed by the juvenile court.

STATEMENT OF THE CASE

On February 25, 2009, D.W., age 15, was charged by petition in juvenile court with two allegations of attempted first degree murder on minors, A.W. and J.D., in violation of LSA–R.S. 14:27; 14:30. ¹ The juvenile denied the allegations on February 27, 2009. The adjudication hearing was held on May 20 and 21, 2009. The following facts were elicited from the trial in this matter.

On February 19, 2009, Detectives Eric Hunt and Willie Jones of the Jefferson Parish Sheriff's Office investigated shootings that occurred that day at a school bus stop in the 6700 block of Millender between Lincolnshire and Betty Streets in Marrero. Upon their arrival, they found two victims, J.D. and A.W., who had been shot. Detectives also interviewed witnesses who identified D.W. and J.F. as the “suspects.” However, at trial, those witnesses testified that they did not see D.W. or J.F. shoot the victims.

Captain Timothy Scanlan, an expert in the field of firearms and tool mark examination, testified that D.W.'s hands were tested for gunshot residue approximately five or six hours after the shooting, and the tests were negative. He explained that the negative gunshot residue test did not exclude the fact that he may have handled or fired a weapon, because gunshot residue was a highly transient material that left the skin very quickly. Captain Scanlan also testified that he examined a small caliber projectile that was taken from one of the victims, and that it was consistent with .22 caliber class ammunition. He stated that for a .22, the explosion is a lot less, so there would be less gunpowder on the skin.

A.W., one of the victims, testified at trial that on the day in question, he got off the school bus and was walking home when someone called his name. He looked back and saw someone running towards him with a gun. That person started shooting at him, and he ran. A.W. testified that he was hit in his right lower leg. He explained that he was shot that day by someone who called his name, but that he did not see the shooter.

A.W. testified that he was in two “clicks,” the “shireboys” and the “money gang,” and that he had “shireboy” tattooed on his arm, which meant he was from Lincolnshire. He testified that “money gang” did not have any “beef” with any other people, and that he did not know why he was shot. A.W. testified that he did not know if he was the target, and that when he was shot, he was running away. A.W. asserted that J.D. was with him that day, and that J.D. also got shot.

J.D., the other victim, testified that, on the day in question, he rode the bus to get home from school. When the bus pulled up to the stop in question, A.W. got off before he did. J.D. heard somebody say, “hey, [A.W.].” After that, J.D. heard a lot of gunshots, and he started running. J.D. testified that he was in the “money gang.” He explained that he got shot in the arm, and that the doctors removed the bullet. He said he knew D.W., J.F., and A.W. from school. J.D. testified that he did not see D.W. with a gun that day, nor did he see J.F. there. He testified that he did not know who shot him.

Preston Gassery, the principal of Westbank Alternative School, testified that he went to the scene of the shooting on the day in question and talked to several of his students, B.J., C.B., and D.A. He further testified that he did not force them to give statements or talk to detectives, and he did not threaten any of them.

Detective Ricardo Ramos, Jr. testified at trial, although he was not involved with this case. He was sitting in the waiting room on the day of trial when he overheard an unnamed witness in the instant case say that, when he came into court, he was not going to say anything and that he did know anything. A woman later said, “you're going to rat,” and a young man said he was not going to do that.

On May 21, 2009, the juvenile defendant, D.W., was adjudicated delinquent for two allegations of attempted first degree murder. On June 18, 2009, D.W. was sentenced to the Office of Youth Development until his 21st birthday. D.W. filed a timely motion for appeal that was granted.

On appeal, D.W. asserts two assignments of error: 1) the evidence is legally insufficient to meet due process standards because the trial judge erroneously based her adjudication upon exhibits never formally admitted into evidence and upon impeachment evidence improperly utilized as substantive evidence of guilt, and 2) the maximum available disposition in this case is both constitutionally excessive and violative of the precepts governing delinquency dispositions. For the following reasons, we affirm D.W.'s adjudication of delinquency for attempted first degree murder and affirm the sentence imposed by the juvenile court.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, D.W. argues that the evidence was insufficient to support the convictions. He contends that the trial judge erroneously based her adjudication upon exhibits never formally admitted into evidence. He also contends that the trial judge based the adjudication upon impeachment evidence improperly utilized as substantive evidence of guilt.

The State responds that the evidence was sufficient to support the adjudications. The State further responds that testimony concerning prior inconsistent statements of C.B. and other witnesses was not hearsay and could be used as substantive evidence of D.W.'s guilt under LSA–C.E. art. 801(D)(1)(a).

[1] [2] [3] When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). If the reviewing court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. Id. Alternatively, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the defendant is not entitled to an acquittal, and the reviewing court must consider the assignments of trial error to determine whether the accused is entitled to a new trial. Id. Therefore, the sufficiency of the evidence is addressed first.

[4] [5] 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, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In a juvenile delinquency proceeding, the State's burden of proof is the same as in a criminal proceeding against an adult, to prove beyond a reasonable doubt every element of the offense alleged in the petition. State ex rel. B.L., 02–923, p. 3 (La.App. 5 Cir. 1/28/03), 839 So.2d 246, 247–48.

[6] 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.” LSA–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, p. 4 (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.

Defendant was adjudicated delinquent for two counts of attempted first degree murder in violation of LSA–R.S. 14:30 and R.S. 14:27. First degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm upon more than one person. LSA–R.S. 14:30 A(3). Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose. LSA–R.S. 14:27.

[7] [8] To prove an attempted murder, whether first or second degree, the State must establish, beyond a reasonable doubt, that the defendant specifically intended to kill a human being and that he committed an overt act in furtherance of that goal. LSA–R.S. 14:27, 14:30; State v. Fauchetta, 98–1303, p. 7 (La.App. 5 Cir. 6/1/99), 738 So.2d 104, 108, writ denied, 99–1983 (La.1/7/00), 752 So.2d 176. Although specific intent to inflict great bodily harm may support a murder conviction, attempted murder requires a specific intent to kill. Id.

In this case, witnesses from the scene gave statements to detectives implicating D.W. in the shootings. One witness...