State of Louisiana In The Interest of C. T. H.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2011 KJ 1904 STATE OF LOUISIANA IN THE INTEREST OF C H T w ct Judgment Rendered Se tember 21 2012 On Appeal from the Juvenile Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court No 99981 Honorable Pamela T Johnson Judge Presiding Hillar C Moore III District Attorney Attorneys for Appellee State of Louisiana Stacy L Wright Assistant District Attorney Baton Rouge LA Katherine M Franks Abita Springs LA Attorney for DefendantAppellant H T C BEFORE WHIPPLE McCLENDON AND HIGGINBOTHAM JJ HIGGINBOTHAM J A seventeenyearold child identified herein as C was alleged to be H T delinquent by a petition filed on April 20 2011 pursuant to the Louisiana s Children Code The petition was based upon the alleged commission of armed robbery a violation of La R 14 After an adjudication hearing the juvenile S 64 court judge adjudicated C a delinquent based on the commission of armed H T robbery as alleged At the disposition hearing the juvenile court judge committed H T C for two years in the secure custody of the State with credit for time served and with certain conditions On appeal C argues that the juvenile court judge erred in determining H T that he was competent to proceed and in adjudicating him a delinquent based on the alleged offense where extraneously buttressed the identification process was suggestive and After a thorough review of the record and the errors assigned we affirm the adjudication and disposition STATEMENT OF FACTS On August 19 2010 around 10 a an armed individual entered 45 m s Sonny Pizza Restaurant in Zachary Louisiana located on Main Street in a strip mall Just before the individual entered the restaurant its owner Dawn Louise Curtis was sitting in the first booth by the front door facing the door looking out onto Main Street Two store cooks and a cashier were also present As Curtis sat in the booth she observed a young male pacing in the parking lot in front of the s restaurant front door The individual then looked towards the front door paced in front of it again approached the door and pulled a knitted mask over his face as he grabbed the door handle and entered the restaurant with a black handgun He The child date of birth is November 28 1994 and he was fifteen years old at the time of the s offense and sixteen years old when the petition was filed On April 18 2011 before the petition in this case was filed the juvenile court found the child to be competent to proceed while presiding over competency hearings initiated in other proceedings R 52 2 pointed the gun toward Curtis daughter Jennifer Evans who was preparing s tables at the time and demanded money She pointed toward the cash register and the assailant insisted that she retrieve the money Evans complied and gave the assailant the cash from the cash register After he indicated he also wanted the money from the other cash register she further complied Curtis estimated that the robber took one hundred and twenty dollars before exiting the restaurant Upon his exit Curtis immediately called 911 police arrived she provided a description of the robber When the Within an hour of the incident the police drove Curtis a block away from the restaurant where she identified the child herein as the robber During the adjudication hearing Curtis again identified the child as the robber ASSIGNMENT OF ERROR NUMBER ONE In the first assignment of error C contends that the juvenile courtjudge H T erred in determining that he was competent to proceed The child notes that he was deemed incompetent on August 1 2010 and referred to a restoration service provider in accordance with the recommendations of the competency commission He further noted that on March 11 2011 the juvenile court judge determined that the child had not been fully restored and was not competent to proceed The child contends that although the juvenile court judge found him competent to proceed on April 18 2011 the judge expressed discomfort with the restorer report and s subsequently acknowledged that the child was developmentally disabled and lacked decision making skills child further contends that The after his commitment his I was determined to be under sixty and estimated possibly as Q low as 51 suggesting that he could not have performed well on the written test previously administered Noting his low I and the additional infirmity of youth Q the child argues that even if he was coached to pass a test it was not established that he could read there was no way that he understood the proceedings or was K able to assist his attorney and the juvenile court judge erred in determining that he could proceed Mental incapacity to proceed exists when as a result of mental disease or defect the accused presently lacks the capacity to understand the proceedings against him or to assist in his defense La Code Crim P art 641 In State v Weber 364 So 952 La 1978 the Supreme Court held that t defendant 2d he carries the burden of establishing by a clear preponderance of the evidence that he lacks the capacity to understand the object nature and consequences of the proceedings against him in a rational as well as factual manner to consult with counsel in a meaningful way and to assist rationally in his defense Weber 364 2d So at 957 citing State v Bennett 345 So 1129 La 1977 State v Morris 2d 340 So 195 La 1976 and State v Veal 326 So 329 La 1976 2d 2d Although the trial court may receive expert testimony on the issue of a defendant s competency to proceed to trial the issue of the defendant mental capacity to s proceed shall be determined by the court La Code Crim P art 647 Additionally a judge determination of a defendant s spresent mental capacity is entitled to great weight on appeal Weber 364 So at 957 2d Louisiana Children Code articles 832 838 determining a child mental capacity to proceed s provide the procedure for Once a child competency s becomes an issue the mental capacity of the child to proceed shall be determined by the court after a contradictory hearing La Ch Code art 836 Louisiana s Children Code article 833 provides in pertinent part that the court shall order A a mental examination of the child when it has reasonable grounds to doubt the mental capacity of the child to proceed A child mental incapacity to proceed s may be raised at any time by the child the district attorney or the court When the question of the child mental incapacity to proceed is raised there shall be no s further steps in the delinquency proceeding except the filing of a delinquency 4 petition until counsel is appointed and notified in accordance with La Ch Code art 809 and the child is found to have the mental capacity to proceed La Ch B Code art 832 If the court determines by a preponderance of the evidence that the child lacks the mental capacity to proceed and the alleged delinquent act is a felony the court may order restoration services for the child and appoint a restoration service provider La Ch Code art 837 4 3 B According to the minutes in this case on October 28 2009 the juvenile court ordered that a psychiatric evaluation be conducted upon motion of counsel for the child when he appeared for a disposition hearing pursuant to a petition alleging the commission of theft Subsequently on May 5 2010 when the child appeared for a detention hearing relating to an attempted first degree robbery allegation the juvenile court ordered that a sanity commission be appointed to determine the child mental condition at the time ofthe alleged offense The court s also ordered a sanity hearing to determine the child mental capacity to proceed s Dr Marc Zimmerman examined the child on June 23 2010 and noted in part in his written assessment that the child was able to read and write and to understand the proceedings and assist in his defense Similarly Dr Brandon Romano evaluated the child on July 2 2010 and noted that while there appeared to be minor gaps in the child ability to fully understand his legal situation andor s assist his counsel in his opinion the child was competent to proceed at that time At the sanity hearing on August 11 2010 despite the two reports indicating determinations of competency by both examining physicians the juvenile court found that counsel for the child met their burden of proving that the child was incompetent to assist counsel in the matter In addition to the reports the court considered testimony presented at the hearing While the hearing transcript is not included in the record before this court the minutes provide that based on the testimony of Dr Romano one of the evaluating physicians the juvenile court W found a substantial possibility that the child competency could be restored in the s future The court ordered that the competency of the child be restored through the Department of Health and Hospitals DHH that the restorer provide its evaluation by September 30 2010 and that the matter be continued to allow the court to determine if the child competency had been restored s The sanity hearing was reset for October 13 2010 also the date of the detention hearing for the instant allegation Based on testimony presented at that hearing it was determined that restoration services had not yet begun As to the instant allegations the matter was reassigned for a status conference pending DHH restoration services At a status hearing on December 16 2010 the DHH attorney informed the court that the child had not yet been fully restored but that they would be willing to continue the restoration efforts Subsequently at a March 1 2011 status hearing the court found insufficient support to declare the child competent despite a February 22 2011 written assessment by the competency restoration provider indicating that the child had been restored The restoration provider Melissa S Martin testified that the child was aware of the allegation attempted first degree robbery and of his legal rights The child had been tested on February 17 2011 and increased his score from the 72 that he received on the prior testing to 100 with the standard goal being 80 Martin testified that test items included roles and functions of court personnel and court procedure She further stated I think he can understand the proceedings against him Um I think that um if he had to um make critical decisions um that they would have to be explained very carefully and concretely to him She later cited decisions surrounding a plea bargain as an example of critical decisions that would have to be carefully explained to the child When questioned as to the child ability to retain the s knowledge demonstrated on the test she stated I don know if I would say that t he wouldn retain most of it but I t I can tsay with great confidence that in three 7 months he would make a hundred percent again The court ordered the continuation of restoration services Finally at a status hearing conducted on April 18 2011 the court determined that the child competency had been fully restored considering a s provider letter and Martin shearing testimony Martin testified in part I guess my finding is the same basically as it was last time but 1 did focus more on each session this time and he is able to um work with his attorney and talking to him about the case relating facts about the case um um relating the the circumstances that he knows about what led to his arrest or what he was told um by the police at that time Um he able to um manage himself in Court um he knows s what happens if you do not behave in Court um he went through decisions um based on scenarios he was able to look at different scenarios related to plea bargains and um work through how to s what important to look at and make and making a decision in those areas The court concluded that the child was able to assist his counsel and was competent to proceed In State v Rogers 419 So 840 La 1982 cited in the child appeal 2d s brief one of the original psychiatrists appointed by the court testified that the defendant therein was severely mentally retarded with an estimated I Q between 50 and 55 and mentally incapable of effectively participating in a criminal prosecution The doctor administered a Kent Emergency Intelligence Test to the defendant and the result indicated that his intelligence level was below that of a three year old child The other psychiatrist originally appointed by the trial court was of the opinion that the defendant was moderately mentally retarded with an Q Iof less than 50 and found that he lacked the mental capacity to stand trial for aggravated rape She stated that she asked the defendant indirect questions to estimate his judgment and intelligence and found that he was lacking in many areas The defendant reported to her that he did not know what happened during periods of time up to an hour and a half He scored below the lowest recordable grade on a Kent E test T I 7 The Louisiana Supreme Court was convinced by the evidence in Rogers that the defense proved by more than a clear preponderance of the evidence that the defendant lacked the mental capacity to proceed The Court noted that two doctors concluded that the defendant was seriously perhaps severely mentally retarded to the extent that he could not effectively participate in his defense The Court further noted the conclusions of these two doctors were based on psychological tests observations and interview questions that were fully described in their testimony The Court found that the lower court acceptance of a third doctor inadequately s s supported conclusion in the face of contrary medical opinion having a substantial factual basis was tantamount to turning the court judicial function over to the s third doctor The Court stated This dereliction by the trial court constituted a failure to observe procedures adequate to protect the defendant right not to be s tried or convicted while incompetent to stand trial Rogers 419 So at 844 2d The circumstances in Rogers are clearly distinguishable from the instant case Herein the juvenile court took painstaking measures to thoroughly assess the s child competency to proceed Despite June 24 2010 and July 2 2010 reports of competency by the sanity commission and a February 22 2011 report that restoration had been completed the juvenile court cautiously ordered the continuation of restoration services and did not find the child competent to proceed until April 18 2011 following a fourth competency determination reported in an April 14 2011 restoration provider letter and in hearing testimony At that time the juvenile court was apparently confident in the child decisional capacity Any s subsequent IQ test result conducted subsequent to the disposition in this case does not negate the evidence before the juvenile court judge at the time of its determination Based on our review of the record we find ample support for the juvenile court conclusion s Accordingly assignment of error number one lacks merit 8 ASSIGNMENT OF ERROR NUMBER TWO In the second assignment of error C notes that the eyewitness H T identified him without being shown any other suspects He contends that the identification was the sole evidence against him The child specifically notes that no gun or money was found although he was detained within fifteen minutes of the robbery He further notes that he was not wearing the clothing described by the victims when he was detained and that the burned clothing the police later discovered believed to be worn by the robber during the offense was never linked to him C concludes that a review of the facts adduced at the hearing supports H T a finding that the judge was clearly wrong and the adjudication should be set aside To adjudicate a child delinquent the State must prove beyond a reasonable doubt that the child committed the delinquent act alleged in the petition La Ch Code art 883 The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not viewing the evidence in the light most favorable to the prosecution a rational trier of fact could conclude that the State proved the essential elements of the crime and the identity of the perpetrator of that crime beyond a reasonable doubt See La Code Crim P art 821 Jackson v Virginia 443 U 307 319 99 S 2781 2789 61 L 560 1979 State v S Ct 2d Ed Wright 980601 La App 1st Cir 2 730 So 485 486 writs denied 99 19 2d 990802 La 10 748 So 1157 2000 0895 La 11 773 So 99 29 2d 00 17 2d 732 The same standard of review applies to a challenge to the sufficiency of evidence adduced to support an adjudication in a juvenile delinquency proceeding La Ch Code art 883 State in the Interest of D 97 0628 La App 1st Cir M 2 The Louisiana Children Code defines child as any person under the age of twenty one s including an emancipated minor who commits a delinquent act before attaining seventeen years of age La Ch Code art 804 A delinquent act is defined as an act committed by a child 1 of ten years of age or older which if committed by an adult is designated an offense under the statutes or ordinances of this state or ofanother state if the act occurred in another state or under federal law except traffic violations La Ch Code art 804 prior to the 2010 amendment 3 Z 97 7 11 704 So 786 789 However in a juvenile delinquency proceeding an 2d appellate court is constitutionally mandated to review the law and facts La Const art V A 10 B See In the Interest of L 962511 La App 1st Cir C 97 20 6 696 So 668 670 2d In a juvenile case when there is evidence before the trier of fact that upon its reasonable evaluation of credibility furnished a factual basis for its finding on review the appellate court should not disturb this factual finding in the absence of manifest error Reasonable evaluation of credibility and reasonable inferences of fact should not be disturbed upon review State in the Interest of Wilkerson 542 2d So 577 581 La App 1st Cir 1989 If there are two permissible views of the evidence the fact finder choice between them cannot be manifestly erroneous or s clearly wrong However where documents or objective evidence so contradict a s witness story or the story itself is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the witness sstory the appellate court may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination See State in the Interest of D 2004 H 2105 La App 1st Cir 2 906 So 554 560 05 11 2d The Jackson v Virginia standard is an objective standard for testing the overall evidence both direct and circumstantial for reasonable doubt When analyzing circumstantial evidence La R 15 provides that assuming every S 438 fact to be proved that the evidence tends to prove in order to convict it must exclude every reasonable hypothesis of innocence State in the Interest of D F 2008 0182 La App 1st Cir 6 991 So 1082 1085 writ denied 2008 08 2d 1540 La 3 5 So 138 In cases involving a claim by the accused that he 09 27 3d was not the person who committed the crime the Jackson rationale requires the 3 Pursuant to La Ch Code art 104 w procedures are not provided in this Code or 1 here otherwise by law the court shall proceed in accordance with in a delinquency proceeding 10 he t Code of Criminal Procedure State to negate any reasonable probability of misidentification in order to carry its burden of proof Positive identification by only one witness is sufficient to support a conviction State v Hughes 2005 0992 La 11 943 So 1047 1051 06 29 2d Even if the identification could be considered to be suggestive that alone does not indicate a violation of the accused right to due s process It is the likelihood of misidentification that violates due process not merely the suggestive identification procedure State v Reed 970812 La App 1st Cir 4 712 98 8 2d So 572 576 writ denied 981266 La 11 729 So 572 An in court 98 25 2d identification may be permissible if there is not a very substantial likelihood of irreparable misidentification State v Martin 595 So 592 595 La 1992 2d See also State v Jones 941098 La App 1st Cir 6 658 So 307 311 95 23 2d writ denied 952280 La 1 666 So 320 As a general rule one onone 96 12 2d identifications are not favored identifications are permissible 1st Cir 1991 However under certain circumstances these State v Thomas 589 So 555 563 La App 2d This is particularly true when the one onone identification is closely associated in time with the commission of the crime and where the suspect is returned to the location of the crime for immediate identification Such identifications promote fairness by assuring reliability and the prompt release of innocent suspects State v Robinson 404 So 907 909 La 1981 2d In Manson v Brathwaite 432 U 98 114 97 S 2243 2253 53 S Ct 2d Ed L 140 1977 the Louisiana Supreme Court listed five factors used to weigh against the corrupting effect of a suggestive identification 1 the witness s opportunity to view the defendant at the time the crime was committed 2 the degree of attention paid by the witness during the commission of the crime 3 the accuracy of any prior description 4 the level of the witness certainty displayed s at the time of the identification and 5 the length of time elapsed between the crime and the identification 11 Herein the child does not contest the fact that an armed robbery took place but contests only his identity as the robber Nonetheless we note at the outset that the testimony presented during the hearing clearly established the following elements of the offense the taking of anything of value belonging to another from the person of another or that is in the immediate control of another by use of force or intimidation while armed with a dangerous weapon La R 14 Thus S 64 A the remaining issue is whether the State carried its burden of negating any reasonable probability of misidentification Curtis testified that her attention was drawn to the individual she observed outside of the restaurant as he was pacing back and forth and she was able to get a good look at him She did not see anyone else outside of the store within the vicinity at the time She described the individual as a black male with hair that was thick on each side wearing plaid blue striped shorts She noted that the blue stripes on the shorts stuck out Curtis further testified that the mask used by the assailant only partially covered his face leaving his eyes and nose exposed Curtis testified that she was afraid the robber might use the gun to shoot someone and was very concerned about her employees including her daughter Curtis recalled that at the time of the initial identification the child was not holding the gun or wearing the shorts that she observed at the time of the robbery However according to her testimony Curtis clearly observed the robber before he put the mask over his face and entered the restaurant and clearly observed the child when she identified him as the robber shortly thereafter Curtis remained in the vehicle with Captain Butch Klean who slowed his vehicle to a near stop as she made the identification while the child was standing behind a vehicle with police officers The child was facing Curtis at the time within close range Curtis also identified the partially burned shorts in a photograph shown to her by Lieutenant David McDavid of the Zachary Police Department ZPD as the shorts worn by the assailant Curtis agreed that 12 she may have previously described the assailant shirt as white stating that it s t wasn black but was a lighter color but she was uncertain as to whether it was gray white or yellow Evans also testified at the trial She was unable to make an identification since unlike her mother she did not see the assailant before he covered his face with the mask However she did testify that she was under the impression that the robber was a child specifically a teenager She stated that he did not have the physical stance of or carry himself like a fullgrown adult male She also identified the shorts depicted in the photograph as the ones that were worn by the assailant at the time of the robbery Chief McDavid promoted by the time of the adjudication hearing testified that he was dispatched to the area following the robbery He ran into the child s mother while travelling in the area and she stated she was looking for the child Chief McDavid asked for a description of her son attire when she last saw him s and she stated that he was wearing a white shirt and plaid pants Chief McDavid recalled the attire as matching the description of the attire of the perpetrator who robbed the pizzeria and informed the child mother that he may be a suspect in a s crime Chief McDavid relayed the information to other officers in the area and began canvassing the area The child was apprehended in an open field located behind Sonny Pizza approximately fifteen to twenty minutes after the robbery s was reported plaid The child was wearing blue shorts at the time but they were not According to Chief McDavid who was present at the time of the showup identification Curtis was about 99 percent sure of the identification and only 9 noted that the child was not wearing the shorts worn at the time of the robbery A canine assisted the officers in tracking from the scene of the crime to a wooded 4 During the hearing the witnesses used the term shorts and pants interchangeably with the clothing in question seemingly being short pants knee length as opposed to fulllength pants R 494 13 area where the partially burned shorts were discovered Defense witness Lieutenant Ray Day of the ZPD brought the fabric evidence to the hearing While he was able to determine that the fabric consisted of lower body attire based on the remaining presence of belt loops he noted that it had been seriously damaged by fire and may not have retained its original coloring The child mother testified that the child was wearing plaid shorts that day s and that they were red orange and yellow with light blue stripes She stated that the shorts were at home She stated that she informed Chief McDavid that she was looking for the child after he told her about the robbery She confirmed that she provided the officer with a description of her son attire s In State v Winfrey 97427 La App 5th Cir 10128197 703 So 63 2d writ denied 98 0264 La 6 719 So 481 the court held that an 98 19 2d identification procedure was not suggestive although the defendant was alone in the backseat of a police car and in handcuffs at the time he was identified Therein the victims were confronted with the defendant approximately thirty to fortyfive minutes after the robbery offense One victim identified the defendant therein as the man who robbed her as soon as she saw him in the back of the police car The court noted that the victim had ample opportunity to view the defendant at the crime scene accurate The Her prior description of the defendant and his car were time between the robbery and confrontation was short Furthermore she positively identified the defendant as the robber at the scene The court concluded the identification was not suggestive and that the identification did not present a substantial likelihood ofmisidentification Similarly in the instant case the victim had ample time to observe the child before he entered the restaurant She identified him near the scene and during the hearing with a high degree of certainty The initial identification took place shortly after the incident Thus even if we were to find that the identification was 14 suggestive the misidentification identification did not present a substantial likelihood of It is well settled that an appellate court cannot set aside a juvenile court findings of fact in the absence of manifest error or unless those s findings are clearly wrong See State in the Interest of D 906 So at 559 H 2d 60 An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to and rationally rejected by the jury State v Calloway 20072306 La 1 1 So 417 09 21 3d 418 per curiam Viewing the evidence in a light most favorable to the prosecution a rational trier of fact could have found the State proved beyond a reasonable doubt to the exclusion of any reasonable hypothesis of innocence and negation of any reasonable probability of misidentification the essential elements necessary to adjudicate the child delinquent based on the commission of armed robbery The second assignment of error lacks merit ADJUDICATION AND DISPOSITION AFFIRMED 15
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