Opinion
2014 KJ 1786
04-24-2015
STATE OF LOUISIANA IN THE INTEREST OF J.D.K., JR.
Hillar C. Moore, III District Attorney Allison Miller Rutzen Assistant District Attorney Baton Rouge, Louisiana Counsel for Appellee State of Louisiana Katherine M. Franks Abita Springs, Louisiana Counsel for Defendant-Appellant J.D.K., Jr.
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE EAST BATON ROUGE PARISH JUVENILE COURT PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA
NUMBER JU 105988, DIVISION B
HONORABLE PAMELA TAYLOR JOHNSON, JUDGE Hillar C. Moore, III
District Attorney
Allison Miller Rutzen
Assistant District Attorney
Baton Rouge, Louisiana
Counsel for Appellee
State of Louisiana
Katherine M. Franks
Abita Springs, Louisiana
Counsel for Defendant-Appellant
J.D.K., Jr.
BEFORE: PETTIGREW, WELCH, AND CHUTZ, JJ. Disposition: ADJUDICATION AND DISPOSITION AFFIRMED; REMANDED TO JUVENILE COURT WITH INSTRUCTIONS. CHUTZ, J.
The juvenile, J.D.K., Jr., was charged by juvenile petition with aggravated second degree battery, a violation of La. R.S. 14:34.7. He denied the allegation and, following an adjudication hearing, was adjudicated a delinquent for the responsive offense of second degree battery, a violation of La. R.S. 14:34.1. The judge deferred disposition and placed J.D.K. on supervised probation for one year. The juvenile now appeals, designating two assignments of error. We affirm the adjudication and disposition. We remand the matter to allow the juvenile court judge to enter into the record a written judgment of disposition pursuant to La. Ch.C. art. 903.
FACTS
On the evening of February 18, 2014, J.D.K., a student at Broadmoor High School, was at a home basketball game with some friends. The opposing team was Scotlandville. M.W., his brother T.W., and M.W.'s girlfriend were sitting on the Scotlandville side. M.W. and T.W., who were former students at Broadmoor, had been expelled for fighting at school and were not allowed to be on Broadmoor's campus. M.W. thought the expulsion meant they were not allowed on the campus during school hours. The game ended and, as each side was being escorted by Baton Rouge City constables working detail duty out of different exits of the gym, a fight broke out near one exit. The melee swelled to at least twenty people, involving separate fights. The constables rushed to the fracas and began grabbing those who were fighting. Four people were apprehended, including J.D.K. and M.W.
T.W. was found lying on the ground, unresponsive and suffering from a severe head injury. He was transported to Our Lady of the Lake Hospital, where he underwent emergency surgery. T.W.'s mother testified at the adjudication hearing that veins had burst in T.W.'s head, which caused internal bleeding and required doctors to remove a portion of bone from his skull to relieve the pressure. The bone was reattached with forty-six staples, and T.W. spent approximately one week in the intensive care unit. Since the injury, T.W. has experienced speech and memory issues. T.W. testified that he did not remember the basketball game or the fight. S.D., a Broadmoor student who attended the game with J.D.K., testified that J.D.K. was attacked by M.W., T.W., and their friends. She also stated that she did not see J.D.K. hit or kick T.W. M.W. testified that he saw J.D.K. "stomping" on T.W.'s head, after T.W. had fallen to the ground.
J.D.K. did not testify.
ASSIGNMENT OF ERROR NUMBER ONE
In his first assignment of error, J.D.K. argues there was insufficient evidence to adjudicate him delinquent for the offense of second degree battery. Specifically, he contends that the State did not prove that he kicked T.W. in the head or that he even struck T.W.
In a juvenile adjudication proceeding, 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 burden of proof, beyond a reasonable doubt, is no less severe than the burden of proof required in an adult proceeding. State in Interest of S.T ., 95-2187 (La. App. 1st Cir. 6/28/96), 677 So.2d 1071, 1074.
In State in Interest of Giangrosso , 385 So.2d 471, 476 (La. App. 1st Cir. 1980) , affirmed, 395 So.2d 709 (La. 1981), this court stated:
In juvenile proceedings, the scope of review of this court extends to both law and fact. Article 5, Section 10, Constitution of 1974; see State in Interest of Batiste, 367 So.2d 784 (La. 1979). We must, therefore, decide if the trial judge was clearly wrong in his determination that the defendants were proven guilty beyond a reasonable doubt.
Thereafter, in State in Interest of Giangrosso , 395 So.2d 709, 714 (La. 1981) , the Supreme Court affirmed this court, concluding that a rational trier of fact could have found, from the evidence adduced at the trial, proof of guilt beyond a reasonable doubt, citing Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and State in Interest of Batiste , 367 So.2d 784 (La. 1979). See In Interest of L.C ., 96-2511 (La. App. 1st Cir. 6/20/97), 696 So.2d 668, 669-70.
Accordingly, on appeal the standard of review for sufficiency of the evidence enunciated in Jackson v. Virginia is applicable to delinquency cases, i.e., viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the State proved the essential elements of the crime beyond a reasonable doubt,. See La. C.Cr.P. art. 821. Where the issue is the defendant's identity as the perpetrator, the State is required to negate any reasonable probability of misidentification. See State v. Jones , 94-1098 (La. App. 1st Cir. 6/23/95), 658 So.2d 307, 311, writ denied, 95-2280 (La. 1/12/96), 666 So.2d 320. Positive identification by only one witness may be sufficient to support the defendant's conviction. State v. Andrews , 94-0842 (La. App. 1st Cir. 5/5/95), 655 So.2d 448, 453. Further, because a review of the law and facts in a juvenile delinquency proceeding is constitutionally mandated, an appellate court must review the record to determine if the trial court was clearly wrong in its factual findings. See State in Interest of D.M ., 97-0628 (La. App. 1st Cir. 11/7/97), 704 So.2d 786, 789-90.
In the absence of specific procedures provided by the Louisiana Children's Code, the court shall proceed in accordance with the Louisiana Code of Criminal Procedure. See La. Ch.C. art. 803.
Second degree battery is a battery when the offender intentionally inflicts serious bodily injury. La. R.S. 14:34.1(A). "Serious bodily injury" means bodily injury that involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death. La. R.S. 14:34.1(B)(3).
J.D.K. argues in brief that, while the judge did not give reasons for her adjudication at the adjudication hearing, the judge stated at the disposition hearing that she was of the opinion that T.W. fell during the fight and struck his head. According to J.D.K., the judge "did not find that [J.D.K.] had kicked T.W. in the head as M.W. had testified." J.D.K. further asserts that the judge's "remarks specifically negate that [J.D.K.] had any intent to severely injure T.W., much less the specific intent required by law."
These assertions are meritless. First, despite what the judge may or may not have said at the disposition hearing, we find that her ruminations about what she remembered from the adjudication hearing are irrelevant and not controlling in any way. The judge made her findings of fact, albeit brief, at the adjudication hearing, not at the disposition hearing more than a month later. Furthermore, whereas J.D.K. insists the judge "did not find" that T.W. was kicked in the head but sustained the head injury from falling, our review of the record reveals no such "finding" by the judge. What the record reflects is the judge's somewhat cryptic, generalized musings, prior to deferring disposition, about the evidence, fighting, and T.W.'s injuries:
All right. I remember the testimony from all the witnesses that were present and the situation that -- as it relates to this trial. I have a predispositional summary and -- and I am mindful of this situation and everyone's desires here. But, when I look at the totality of the circumstances and have to put some mitigating factors involved here and, yes, there was injury, yes, there -- and -- and based upon the evidence set forth, there's a punch, there's a fall, there's an injury, you can't be responsible -- you can't say what is going to happen when you hit someone and there are things happening and the, you know, cause and fact. The cause and fact is that there was a fight going on. Cause and fact is that there was a punch. Cause and fact is that there was a falling and there was a head injury. Those are just cause. And -- and, I guess, if we were looking at some other things, we begin in the olden days -- and I don't think you-all even had it -- we began to look at the duty, you know, to pull back and arrest that's associated.
So, when you -- so there's a duty on both sides, when you get involved in a fight, things can happen and it can be destructive that the -- although [T.W.'s] life has changed with that brain injury, the positive of that is that with rehabilitation that it can be better probably than it has been previously and, also, with rehabilitation that can happen and -- and, also, the fact he's still alive. That's -- that's a great thing. So it could have been a whole lot worse than it is. But, hopefully, we'll have some rehabilitation on both parts, on [J.D.K.'s] part as well as [T.W.'s]. Now, granted, the rehabilitation is going to be different for each one of them. [T.W.] has to do some medical rehabilitation and some -- and some personality and attitude changes, also.
M.W., T.W.'s brother, specifically testified at the adjudication hearing that he saw J.D.K. kick T.W. in the head during the melee. When asked how many times J.D.K. kicked T.W. in the head, M.W. responded, "Like, he was just stomping him, like." J.D.K. had a hard-shell orthopedic boot on his left foot at the time. The injuries to T.W.'s head were severe and life-threatening.
S.D., a defense witness who attended the basketball game with J.D.K., testified that she had known J.D.K. since kindergarten. Some of S.D.'s testimony conflicted with the testimony of M.W. For example, S.D. testified that she and J.D.K. sat on the Broadmoor side at the game and that M.W. and T.W. sat on the Scotlandville side. S.D. stated that during the game, the brothers saw someone they knew on the other side and moved to the Broadmoor side. S.D. testified that when the game ended, she was at the water fountain getting water when M.W., along with his brother, T.W., and two of their friends approached J.D.K. together and hit him at the same time. S.D. did not remain at the scene long enough to see J.D.K. arrested or to give a statement to the police.
M.W., however, testified that during the game, he separated from his brother; his brother left with his friends, while M.W. remained on the Scotlandville side with his girlfriend. M.W. testified that after the game when the crowd began to gather, he went outside and saw his brother and J.D.K. fighting. Several people were hitting T.W., but M.W. knew only two of them by name, including J.D.K.
In contrast to M.W.'s account of J.D.K. kicking his brother in the head, S.D. testified that, although she did see T.W. fall to the ground, she did not see J.D.K. hit or kick T.W. She stated further that she saw no one hit or kick T.W. after he had fallen.
J.D.K. suggests in brief that because the "brothers" instigated the fights, he should not be held accountable for T.W.'s injuries. According to J.D.K., his actions in fighting were nothing more than self-defense since, according to S.D., J.D.K. was attacked by M.W., T.W., and their friends.
Only if S.D.'s version of events is believed can it be stated that J.D.K. was attacked first. More importantly, however, even assuming J.D.K. was attacked first, any claim of self-defense must fall. Once T.W. was lying on ground, any threat he posed to J.D.K., real or perceived, had passed. J.D.K. was no longer in danger and clearly not acting in self-defense when, according to M.W, he repeatedly kicked his prostrate victim in the head. Even accepting S.D.'s version of events, while T.W. may have been the aggressor when the fight started, the judge could have reasonably determined that J.D.K. became the aggressor when he kicked T.W. in the head as T.W. was laid out on the ground. As such, the judge could have reasonably determined that J.D.K.'s kicking T.W. in the head was not reasonable and apparently necessary to defend himself from T.W. See La. R.S. 14:19 & 14:21; State v. Loston , 03-0977 (La. App. 1st Cir. 2/23/04), 874 So.2d 197, 205, writ denied, 04-0792 (La. 9/24/04), 882 So.2d 1167.
The trier-of-fact, in this case, the juvenile court, is charged with making credibility determinations. Credibility determinations, as well as the weight to be attributed to the evidence, are soundly within the province of the trier-of-fact. State ex rel. T.C ., 09-1669 (La. App. 4th Cir. 2/16/11), 60 So.3d 1260, 1263. Moreover, conflicting testimony as to factual matters is a question of weight of the evidence, not its sufficiency. T.C ., 60 So.3d at 1263; see also Tibbs v. Florida , 457 U.S. 31, 46, 102 S.Ct. 2211, 2220-21, 72 L.Ed.2d 652 (1982). Such a determination rests solely with the trier-of-fact who may accept or reject, in whole or in part, the testimony of any witness. A trier-of-fact's determination as to the credibility of a witness is a question of fact entitled to great weight, and its determination will not be disturbed unless it is clearly contrary to the evidence. T.C ., 60 So.3d at 1263; see also State v. Vessell , 450 So.2d 938, 943 (La. 1984). In the absence of internal contradictions and irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trial court, is sufficient to support a conviction. State ex rel. D.J ., 00-1592 (La. App. 5th Cir. 3/28/01), 783 So.2d 558, 562.
In adjudicating J.D.K. delinquent, the juvenile court judge, as the rational trier-of-fact, clearly accepted the testimony of the State's witnesses and found that the essential elements of second degree battery was proven beyond a reasonable doubt. After a thorough review of the record, we find the evidence supports the judge's adjudication. Additionally, after undertaking the mandated review of the law and facts in a juvenile proceeding, we cannot conclude that the judge was manifestly erroneous or clearly wrong in its adjudication of delinquency based on the commission of second degree battery.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER TWO
In this assignment of error, J.D.K. argues there are two patent errors. First, according to J.D.K., the judge erred in imposing a deferred disposition in excess of that allowed by statute without an extension being requested by the State or supervising agency. Second, J.D.K. contends the judge erred in failing to render a deferred disposition order pursuant to La. Ch.C. art. 903.
Louisiana Children's Code article 896 provides for a deferred disposition, as follows:
A. At any time after the entry of an adjudication order, the court may, on motion of the district attorney or of counsel for the child, suspend further proceedings and place the child on supervised or unsupervised probation, with or without any of the conditions authorized by Article 897(B)(1) or Article 899(B)(1).
B. The child and his parent must consent to this special type of disposition. If the child has waived counsel, the court must advise the child and his parent concerning the consequences of a deferred dispositional agreement and of the child's right to have a disposition imposed by the court in accordance with Articles 897 through 900.
C. A deferred dispositional agreement order shall comply with all the requirements of Article 903.
D. A deferred dispositional agreement shall remain in force for six months unless the child is discharged sooner by the court. Upon application of the district attorney or by any agency supervising the child made before the expiration of the six-month period, a deferred dispositional agreement order may be extended by the court for an additional period not to exceed six months, or for such period in which the child is a full-time participant in a juvenile drug court program operated by a court of this state, whichever period is longer.
E. If prior to the expiration of the order a new petition alleging the commission of a delinquent act is filed against the child, or the child otherwise fails to fulfill the express terms and conditions of the order, the court may proceed to impose any disposition authorized by this Title and the child may be held accountable as if the deferred dispositional agreement order had never been entered.
F. If the child satisfactorily completes the court ordered period of supervision, the court shall discharge the child from any further supervision or conditions, set aside the adjudication, and dismiss the petition with prejudice.
G. Pursuant to the provisions of this Article, the court has the authority to utilize or initiate a teen or youth court program and may assess a fee to a participant in the program to offset costs.
At the disposition hearing, the judge stated, "I'm going to defer the disposition and place him on supervised probation for a period of one year." J.D.K. contends he received "an illegally excessive disposition" because La. Ch.C. art. 896(D) mandates that the initial length of probation for a deferred disposition not exceed six months; and that neither the supervising agency nor the State asked for a longer probation period.
In the predisposition report, the Department of Juvenile Services recommended deferment for six months and that J.D.K. be placed on supervised probation for six months.
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We do not agree. The deferred dispositional agreement is a distinct and separate entity from probation. The six-month period referred to in La. Ch.C. art. 896(D) does not preclude a juvenile from being placed on probation for more than six months. It only means that the judge and counsel are required to meet within that first six-month period to determine if the juvenile is complying with the conditions of probation. In this case, the judge specifically stated they would meet again in about three months to discuss J.D.K.'s status: "So let's look at it in about three months. . . . Let's look at it on January the 8th. That's a Thursday." Thus, if the judge reviewed the juvenile's case three months later and deemed it warranted, she could release the juvenile from probation. The judge could also extend the deferred dispositional agreement by another six months (or longer if a drug court program was involved), pursuant to the language in La. Ch.C. art. 896(D) (a deferred dispositional agreement order may be extended by the court for an additional period not to exceed six months, or for such period in which the child is a full-time participant in a juvenile drug court program ... whichever period is longer). Accordingly, a juvenile could be on probation for well over one year under La. Ch.C. art. 896.
J.D.K. suggests that when the judge imposed the six-month period of deferred disposition, neither the supervising agency nor the State asked for a longer probation period. At that point, however, neither the agency nor the State, would have had any cause to suggest extending the period. J.D.K. had not even begun to serve his probation at this point (the moment the judge gave her ruling), so the agency or the State clearly could not have requested an extension without being able to point to any specifics about how J.D.K. was serving his probation. Only after the juvenile's probation performance has been observed and/or documented can the agency or State apply for an extension. The language of La. Ch.C. art. 896(D), itself, suggests this result: "Upon application of the district attorney or by any agency supervising the child made before the expiration of the six-month period . . . ."
The judge's six-month deferred disposition and placement of J.D.K. on one-year of supervised probation was proper. Accordingly, there is no error pursuant to La. C.Cr.P. art. 920(2) regarding this issue.
J.D.K. also argues the judge erred in failing to "render a deferred disposition order" pursuant to La. Ch.C. art. 903. Article 903 provides in pertinent part:
A. (1) Before entering a judgment of disposition, the court shall orally inform the child and shall state for the record the considerations taken into account and the factual basis therefor in imposing the particular disposition chosen.
(2) In every case or proceeding involving a judgment of disposition of a child, the court shall refrain from manifesting by any words or conduct, bias or prejudice based on race, sex, religion, national origin, age, or disability.
B. The court shall enter into the record a written judgment of disposition specifying all of the following:
(1) The offense for which the child has been adjudicated a delinquent.
(2) The nature of the disposition.
(3) The agency, institution, or person to whom the child is assigned.
(4) The conditions of probation, if applicable.
(5) Any other applicable terms and conditions regarding the disposition.
(6) The maximum duration of the disposition and, if committed to the custody of the Department of Public Safety and Corrections, the maximum term of the commitment.
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D. An extract of the minutes of court specifying the information required by Paragraph B of this Article and signed by the court shall be considered a written judgment of disposition.
A juvenile court errs when it fails to include a written disposition in the record in a juvenile delinquency proceeding. See State ex rel. S.C.J ., 09-1272 (La. App. 3d Cir. 2/3/10), 28 So.3d 1206, 1214-15, writ denied, 10-0496 (La. 4/5/10), 31 So.3d 363. Even if a juvenile court defers disposition, the court is still required to render a judgment of disposition. See State in Interest of Lucas , 543 So.2d 634, 636 (La. App. 1st Cir. 1989) (decided under prior law).
The appellate record contains a document that lists J.D.K.'s conditions of probation and is dated and signed by the judge, the juvenile, and his parent. The document states near the bottom: "IT IS ORDERED that this document be attached and made a part of the Judgment of Disposition." This document does not contain the information required by La. Ch.C. art. 903(B). It appears from the above-quoted language that there is an extant judgment of disposition; however, we have found no such written disposition in the record before us. Further, there is no minute entry of record that complies with La. Ch.C. art. 903(D).
Accordingly, this matter is remanded, and the juvenile court judge is ordered to enter into the record a written judgment of the disposition in accordance with La. Ch.C. art. 903. ADJUDICATION AND DISPOSITION AFFIRMED; REMANDED TO JUVENILE COURT WITH INSTRUCTIONS.