State of Louisiana Court of Appeal, Fourth Circuit

Case Number: 2016-KA-0350

Judge: Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins

Court: State of Louisiana Court of Appeal, Fourth Circuit

Plaintiff's Attorney: Leon A. Cannizzaro, Jr., District Attorney
Donna Andrieu, Assistant District Attorney
Donald G. Cassels, III, Assistant District Attorney

Defendant's Attorney: Katherine M. Franks
LOUISIANA APPELLATE PROJECT

Description: On March 21, 2012, the State filed a bill of information charging defendant
with one count of armed robbery with a firearm, in violation of La. R.S. 14:64, one
count of contributing to the delinquency of a juvenile, in violation of La. R.S.
14:92 E(1), and one count of illegal possession of stolen things, in violation of La.
R.S. 14:69. On March 26, 2012, defendant entered pleas of not guilty on all
counts. Subsequently, the count of illegal possession of stolen things was severed
and defendant entered a plea of guilty to that charge. As to the remaining charges,
the case proceeded to a jury trial.
On January 8, 2013, at the conclusion of a two-day jury trial, defendant was
found guilty as charged of armed robbery and of contributing to the delinquency of
a juvenile [to wit, J.W.]. On January 25, 2013, the trial court sentenced defendant
on the respective convictions to seventy years at hard labor without benefits and
five years at hard labor, to run concurrently. The State then filed a multiple bill
charging defendant as a fourth felony offender as to his armed robbery conviction.
On February 25, 2013, the trial court adjudicated defendant a fourth felony
offender and sentenced him to life imprisonment without benefits. Defendant then


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timely appealed his convictions, habitual offender adjudication, and sentences to
this Court.
In ruling on defendant‘s prior appeal, on February 19, 2014, this Court
remanded the case to the trial court to review J.W.‘s juvenile record and make it
part of the record (under seal). In addition, this Court vacated defendant‘s habitual
offender adjudication and sentence, because the exhibits introduced at the multiple
bill proceeding were not made a part of the record and could not be located.
On remand, on April 16, 2014, the trial court held a hearing pursuant to this
Court‘s decree. At that hearing, the trial court reviewed J.W.‘s juvenile record and
found no error in denying defendant discovery and use at trial of J.W.‘s juvenile
record; thus, the trial court found no trial error and upheld defendant‘s convictions.
Also following the remand from this Court, the State filed another multiple
bill charging defendant as a third felony offender as to his armed robbery
conviction. On December 8, 2016, the trial court held a multiple bill hearing,
adjudicated defendant a third felony offender, and sentenced him to seventy years
without benefits. That same day, defense counsel filed a motion to reconsider
sentence, which remains pending in the trial court, and a motion for appeal, which
was granted.1 This timely appeal follows.
STATEMENT OF FACTS
The facts of this case, as set forth in this Court‘s previous opinion, are as
follows:

1 As there has been no ruling on defendant‘s motion to reconsider sentence, defendant does not raise any sentencing issues in this appeal.


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At a motion hearing on 8 June 2012, and at the jury trial on 8 January 2013, Detective Travis Ward testified that he was employed at the Eighth District of the New Orleans Police Department (―NOPD‖) in the Violent Crimes Unit when he was called to investigate an armed robbery on 2 January 2012. He explained that the victim was walking in the 1000 block of Ursulines Street in New Orleans, while talking on her cell phone, when she was approached by a young male. According to Detective Ward, the young male began to question the victim as to what she was doing, et cetera. The victim motioned for the young man to leave her alone. At that time, a white van pulled up, and the driver got out. The driver told the young male something to the effect of showing him how to do it; the driver took a gun from the young male and robbed the victim of her bag and cell phone. The victim watched as the two suspects got into the white van, sat for a short moment, and then drove away. During trial, the detective identified Henderson in the courtroom as the suspect who had exited the white van and took the victim's belongings. Detective Ward also testified that he viewed a bad quality video surveillance film of the crime. He stated that he learned from the victim that her cell phone was used after it was stolen. The victim was able to obtain the number that was called from her phone, and she provided him with that information. He also testified that he called the phone number provided by the victim and linked the call to the home of a Ms. Karen Elzey in New Orleans. Detective Ward testified that he and Detective Willie Jenkins went to the home of Ms. Elzey and, with Ms. Elzey's permission, questioned her daughter, Alicia Elzey, who explained that the phone number called from the victim's stolen cell phone was her phone number and that she remembered receiving a call from J.W., a minor who at the time of trial was held in a juvenile detention program, and who she knew attended Marrero Middle School.

Detective Ward testified that he searched the database for J.W. and located him at Marrero Middle School. He and Detective Michael Flores went to the school and retrieved six photographs of students, one being of J.W. He stated that an identification of J.W. was made by the victim after he showed her the six photographs. Thereafter, Detective Ward went to the home of J.W., where J.W. admitted to the events and told the detective that an air pistol, not a real (gunpowder) gun, was used during the crime. J.W. also stated that he was accompanied by Travis Henderson at the time of the crime. After investigating the matter further, Detective Ward learned that Henderson had been recently arrested in the French Quarter for a simple robbery. He obtained a photograph of Henderson and returned to J.W., who identified Henderson as ―the person who was teaching him to rob people.‖



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At the jury trial on 7 January 2013, Detective Troy Williams testified that he was a sergeant with the NOPD for approximately nineteen years. He stated that in July of 1999, while a detective in the Eight District, he was called to investigate an armed robbery at the intersection of Burgundy Street and Ursulines Avenue. He testified that two females were robbed at gunpoint. A few days later a suspect, fitting the description of the armed robber in this case, was stopped in close proximity to where the crime occurred. Detective Williams explained that after the female victims identified Henderson in a photographic lineup, Henderson was convicted for that 1999 robbery.

Miranda Culp of Perm Valley, California, testified that she lived in New Orleans in 1999 and worked as a cocktail waitress in the French Quarter when she was robbed at gunpoint at the intersection of Burgundy Street and Ursulines Avenue by Henderson.

Sergeant Nicholas Gernon testified that he was assigned to the Eighth District of the NOPD in the Crimes Unit at the time of the subject crime. He stated that he searched for surveillance video of the 1000 block of Ursulines Street and was able to obtain video from a residence located in the 900 block of Ursulines Street and from the WWL television station at the corner of North Rampart Street and Ursulines Avenue. (The WWL video was played for the jury).

J.W. testified that he was sixteen years old, stationed at Camp Beauregard in Pineville, Louisiana, for the Youth Challenge Program, a Louisiana program aimed to assist at-risk kids, and working on obtaining his GED. He stated that on 2 January 2012 he was in eighth grade at Marrero Middle School and was friends with Henderson. He identified Henderson sitting in the courtroom. J.W. testified that on 2 January 2012, after he walked to his friend Trey's house and learned that Trey was not home, he ran into Henderson, who gave him a ride home in a blue Chevrolet Impala automobile. J.W. stated that he later returned to Trey's house, but Trey was still not home. J.W., seeing Henderson again, accepted a ride with Henderson, who was now driving a white van. He stated that he and Trey enjoyed playing with BB guns and that Henderson knew that J.W. had a BB gun that he purchased from Wal–Mart.

J.W. testified that he and Henderson ate at Henderson's mother's house, and thereafter proceeded to the French Quarter in the white van. He stated that he was instructed by Henderson to rob a group of people on Canal Street, but did not do so. He said that Henderson circled the block and instructed him to ―get out, get her,‖ meaning an African–American female who was walking down the street talking on a cell phone with a purse across her body. J.W. approached the victim and asked her some questions that he could not then recall. Henderson then jumped from the van with J.W.'s BB gun and yelled at J.W. for not knowing what to do. J.W. headed back to the van, and


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Henderson soon approached and asked J.W., who was then sitting in the driver's seat, if he knew how to drive. Henderson then crossed over J.W. and drove away.

J.W. stated that Henderson took a cell phone, a computer, and some paperwork from the victim. He also testified that when Henderson returned to the van he saw the handgun. J.W. used the stolen cell phone to call his girlfriend, Alicia Elzey, to ask her for gas money. He stated that Henderson attempted to pawn and sell the computer. J.W. testified that he saw the video of the armed robbery, and he could see himself and Henderson therein. He corroborated Detective Ward's testimony that he picked Henderson out of a photographic line-up when the police came to his house.

Margaret Padaya testified that on 2 January 2012 she worked as a special education teacher in the French Quarter at KIPP NOLA Leadership Primary, a school. She testified that she was walking to her home on Ursulines Street while talking to her co-worker on her cell phone. She explained that at first she ignored the young male who approached her until she realized that something was not right about the situation. At that time, she put her hands up and said ―back up.‖ She stated that the young man backed away from her as an older man got out of a white truck, and she observed a gun being exchanged between the two men. She said the older man stated ―let me show you how this is done,‖ whereupon he took a bag out of her hand and drove past her. Ms. Padaya identified herself in the video played at trial. (footnotes omitted).
Henderson, 13-0526, pp. 2-5, 136 So.3d at 225-27.
DISCUSSION
In this appeal, defendant maintains that he was denied his Sixth Amendment
right to confront the main witness against him at trial due to the inability to cross
examine J.W. about his juvenile record. See Henderson, 13-0526, p. 8, 136 So.3d
at 228-29. In his first assignment of error, defendant argues that the trial court
erred in determining, on remand, that J.W.‘s juvenile record was not discoverable
or admissible at trial for impeachment purposes or to show a motive or bias for
testifying. In his second assignment of error, defendant argues that the trial court
erred by failing to determine that denying the discovery and admission of J.W.‘s


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juvenile record was not harmless error. We address these assignments of error
simultaneously.
In the original appeal, this Court thoroughly reviewed the relevant law and
jurisprudence as to a defendant‘s right to confront and cross-examine a witness
with evidence of the witness‘s juvenile record. Henderson, 13-0526, pp. 6-13, 136
So.3d at 227-231. Based on the relevant law and jurisprudence, this Court
concluded that the trial court erred in summarily denying defendant discovery and
use of J.W.‘s juvenile record without first examining that juvenile record, as
mandated by the Louisiana Supreme Court in Perkins:

When a defendant moves for production of the juvenile records of a witness the trial court is called upon to determine whether the impeachment value of these adjudications is outweighed by the state‘s interest in maintaining the confidentiality of juvenile records. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); State v. Toledano, 391 So.2d 817 (La. 1980). As we have explained: ―The critical question in cases involving a witness‘s juvenile record and the sixth amendment right to confrontation is whether the defendant will be precluded from utilizing a method of impeachment that would be effective in the circumstances of his case were the juvenile record available to defendant.‖ State v. Smith, 437 So.2d 802, 804 (La. 1983). In reviewing juvenile records, the issue thus becomes whether the witness‘s juvenile adjudications have such discrediting value that there is a reasonable likelihood it would affect the verdict. State v. Toledano, supra, 391 So.2d at 820. That determination can only be made after an examination of the juvenile record by the trial court and preservation of that record for review. State v. Hillard, 398 So.2d 1057, 1060 (La. 1981). In the instant case, the Court of Appeal denied the defendant‘s application for writs from the trial court‘s ruling denying production of the juvenile records of two of the State‘s primary witnesses without first reviewing those records, under seal, to determine if the trial court‘s ruling with respect to the materiality of the prior juvenile adjudications was the correct one. This was error.
03-1680, pp.1-2, 852 So.2d at 989-90; see also, State v. Rubens, 10-1114, pp. 38
42 (La. App. 4 Cir. 11/30/11), 83 So.3d 30, 55-57. Then finding that the record in


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the previous appeal was insufficient ―to determine whether failing to allow
Henderson to cross-examine J.W. in regard to his criminal record was harmless
error or not,‖ this Court remanded the matter to the trial court to review J.W.‘s
juvenile record and make a determination as to whether the trial court‘s denial of
discovery and admission of J.W.‘s record was proper in light of the relevant
jurisprudence. Henderson, 13-0526, p. 13, 136 So.3d at 231.
On remand, at the April 16, 2014 hearing, the trial court reviewed J.W.‘s
juvenile record, which showed two adjudications—one for obscenity2 and the other
for simple battery. After reviewing J.W.‘s record, the trial court maintained its
denial of defense counsel‘s motion for discovery and admission of J.W.‘s juvenile
record and stated the following finding:

[T]he Court finds as a matter of law that those two convictions do not go to veracity. Those two convictions do not go to credibility. Had those convictions been for forgery, theft, obstruction of justice, or any other crime in this book that would have gone to credibility or veracity, I may have ruled otherwise. But the Court is convinced that neither one of those convictions are the sort of convictions that go to one‘s veracity.

In this appeal, defendant argues that J.W.‘s juvenile record—which has been
made part of the appellate record, under seal—does not support the trial court‘s
ruling and the denial of discovery and admission of J.W.‘s record precluded
defendant from impeaching J.W.‘s credibility, in violation of defendant‘s Sixth
Amendment right to confrontation. Relying primarily on Davis v. Alaska, supra,
defendant argues that the exposure of a witness‘s motivation in testifying through

2 As explained by the trial court, the petition originally charged J.W. with one count of sexual battery, a violation of La. R.S. 14:43.1 A(1), but the charge was reduced to obscenity, a violation of La. R.S. 14:106, to which J.W. pled guilty.


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the introduction of and cross-examination regarding the witness‘s criminal
convictions is a permissible and relevant way of discrediting the witness and
affecting the weight of his testimony.
In Davis, Richard Green was a crucial witness for the prosecution at the
defendant‘s trial for grand larceny and burglary.3 Before Green‘s testimony at
trial, the prosecution moved for a protective order to prevent any reference to
Green‘s juvenile record by the defense during cross-examination. At the time of
trial and at the time of the incident about which Green testified, he was on
probation for a juvenile adjudication for burglary. In opposing the protective
order, the defense sought to show or argue that Green had a possible bias or motive
to have hastily identified defendant out of fear of possible probation revocation or
in order to shift suspicion away from himself. But the trial court granted the
protective order to prevent admission of Green‘s juvenile record and any reference
to it during cross-examination, relying on the Alaska Rule of Children‘s Procedure
prohibiting the admission of juvenile records as evidence. On appeal of his
conviction, the defendant asserted a violation of his Sixth Amendment right of
confrontation.
The United States Supreme Court granted certiorari on the limited question
of whether petitioner was denied his right under the Confrontation Clause to

3 Under the facts of that case, Green was running an errand for his mother when he saw two African-American men on the side of the road close to his house. The men were standing next to a Chevrolet. The first time Green passed the men he had limited conversation with them, and the second time he passed them on his return home, he saw that one of the men had a crowbar. Later, it was learned that a safe was stolen from a bar in Anchorage and that the empty safe was found near Green‘s home. The Alaskan State Troopers went to Green‘s home, questioned him, and Green subsequently identified the two men he saw on the side of the road. Once the Chevrolet was found and paint shavings from the safe were identified in the truck of the Chevrolet, the troopers arrested the men.


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adequately cross-examine Green, and the Court first looked at the Sixth
Amendment:
The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution ‗to be confronted with the witnesses against him.‘ This right is secured for defendants in state as well as federal criminal proceedings under Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Confrontation means more than being allowed to confront the witness physically. ‗Our cases construing the (confrontation) clause hold that a primary interest secured by it is the right of cross-examination.’ Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965). Professor Wigmore stated:

‗The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. The opponent demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of crossexamination, which cannot be had except by the direct and personal putting of questions and obtaining immediate answers.‘ (citation omitted).

Davis, 415 U.S. at 315-16, 94 S. Ct. at 1110, (1974).

The Court in Davis reversed and remanded the matter, reasoning:

We do not and need not challenge the State's interest as a matter of its own policy in the administration of criminal justice to seek to preserve the anonymity of a juvenile offender. Cf. In re Gault, 387 U.S. 1, 25, 87 S.Ct. 1428, 1442, 18 L.Ed.2d 527 (1967). Here, however, petitioner sought to introduce evidence of Green's probation for the purpose of suggesting that Green was biased and, therefore, that his testimony was either not to be believed in his identification of petitioner or at least very carefully considered in that light. Serious damage to the strength of the State's case would have been a real possibility had petitioner been allowed to pursue this line of inquiry. In this setting we conclude that the right of confrontation is paramount to the State's policy of protecting a juvenile offender. Whatever temporary embarrassment might result to Green or his family by disclosure of his juvenile record—if the prosecution insisted on using him to make its case—is outweighed by petitioner's right to probe into the influence of possible bias in the testimony of a crucial identification witness.
Davis, 415 U.S. at 319, 94 S. Ct. at 1112, (1974).


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In this case, defendant relies on the holding in Davis to argue that any
statutory right to confidentiality of juvenile records must yield to defendant‘s right
to confrontation to secure a fair trial. Defendant acknowledges that Louisiana law
protects the confidentiality of juvenile records and that evidence of juvenile
adjudications are generally not admissible,4 but he argues that the Louisiana
Supreme Court‘s decision in Toledano, supra, determined that the disclosure of
juvenile records is essential to a fair trial when the discrediting value of those
records could affect the weight of testimony and the outcome of trial.5
In Toledano, the Louisiana Supreme Court considered the admissibility of
the juvenile witness‘s rap sheet for purposes of cross-examination where the
defense argued that it contained impeachable, potentially exculpatory evidence. In
remanding the case for submission of the juvenile record to the trial judge for an in
camera inspection to determine its materiality, the Court reasoned as follows:
[T]he trial court, in understandable reliance upon the statutory confidentiality and the past decisions of this court did not determine whether the co-participant witness had a record of prior adjudications and whether the impeachment value of those adjudications outweighed the witness‘ statutory interest in the confidentiality of those records. In such a determination a balance must always be struck based upon the facts and circumstances of an individual case. Obviously, not all juvenile adjudications of all state witnesses have a discrediting value which is sufficient to require disclosure and admissibility for impeachment purposes. (emphasis added)

Toledano, 391 So.2d at 821.
In this case, the trial court followed the mandate from this Court, based on
the holding of Toledano, to review J.W.‘s juvenile record and make a

4 La. Ch.C. art. 412; La. C.E. art. 609.1 F. 5 Defendant also contends that the Court in Toledano determined that the failure of the prosecution to disclose J.W.‘s juvenile record violated the principles set out in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The Court in Toledano made no finding of a Brady violation but found it was necessary for the trial court to examine the juvenile


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determination of whether the potential impeachment value of J.W.‘s adjudications
outweighed the State‘s interest in the confidentiality of juvenile records. Under the
circumstances of this case, the trial court found that J.W.‘s juvenile record would
have little impeachment or discrediting value considering his admission to the
involvement in the armed robbery. The trial court also noted that there is no
indication in J.W.‘s juvenile record that his adjudications for subsequent, unrelated
offenses were in any way affected by his testimony against defendant in this case.
Upon review of the trial court‘s ruling, J.W.‘s record, and in light of the relevant
jurisprudence, we agree.
Whereas in Davis, the witness whose juvenile record the defense sought to
introduce was on probation for burglary at the time he witnessed the crime of
burglary about which he testified, in this case, the factually dissimilar offenses in
J.W.‘s juvenile record occurred after the incident about which he testified. The
armed robbery about which J.W. testified at defendant‘s trial occurred on January
2, 2012. The incident leading to J.W.‘s adjudication for obscenity occurred at his
school on January 23, 2012; the incident leading to his adjudication for simple
battery occurred at his home on October 25, 2012. Furthermore, as brought out
through the testimony of the police officers and J.W., J.W. admitted his
involvement in the armed robbery and identified defendant as the person who was
showing him how to rob people. Under the facts and circumstances of this case,
unlike in Davis, J.W.‘s adjudications do not provide any more discrediting value
than his own testimony to his involvement in the crime and they are not

record to determine its materiality, including whether it contained potentially exculpatory information that might have affected the verdict.


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sufficiently probative of his veracity to outweigh the State‘s interest in maintaining
the confidentiality of juvenile records.
However, now that the record before this Court includes J.W.‘s juvenile
records and the trial court‘s findings and given this Court‘s finding in the original
appeal that the trial court erred in summarily denying the discovery and admission
of J.W.‘s records for trial, we now review the trial court‘s ruling for harmless error.
See Henderson, 13-0526, p. 13, 136 So.3d at 231.
Confrontation errors are subject to the harmless error analysis. State v.
Broadway, 96-2659, p. 24 (La. 10/19/99), 753 So.2d 801, 817; State v. Patterson,
15-0775, p. 10 (La. App. 4 Cir. 3/16/16), 191 So.3d 620, 627; see also State v.
Chester, 97-2790, pp. 16-17 (La. 12/1/98), 724 So.2d 1276, 1286-87. The
Louisiana Supreme Court set forth the harmless error analysis for confrontation
errors in Broadway, stating:
The correct inquiry is whether the reviewing court, assuming that the damaging potential of the cross-examination were fully realized, is nonetheless convinced that the error was harmless beyond a reasonable doubt. Id. at 684, 106 S.Ct. 1431. Factors to be considered by the reviewing court include ―the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contracting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.‖ Id. at 684, 106 S.Ct. 1431; State v. Wille, 559 So.2d at 1332. The verdict may stand if the reviewing court determines that the guilty verdict rendered in the particular trial is surely unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).

96–2659, p. 24, 753 So. 2d at 817.
Applying the harmless error analysis set forth in Broadway, assuming the
damaging potential of the cross-examination by the admission of J.W.‘s juvenile
record were fully realized, we are nonetheless convinced that any error in denying


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the disclosure and admission of J.W.‘s records was harmless beyond a reasonable
doubt. The testimony elicited at trial from J.W., the victim, and the police officers
revealed to the jury that J.W. was involved in the armed robbery and, thus,
sufficiently raised the issue of his credibility with the jury. The introduction of
J.W.‘s adjudications for obscenity and simple battery, which occurred after the
incident in this case, would not have undermined the cumulative testimony and
evidence presented against defendant. The details about defendant‘s actions in
robbing the victim, as testified to by J.W., were corroborated by the victim‘s trial
testimony, during which she identified defendant as the perpetrator, and by the
surveillance video shown to the jury. Given the corroborating testimony and
evidence presented against defendant at trial, we find that even if the trial court
erred in denying defendant discovery and admission of J.W.‘s juvenile record for
purposes of impeachment, the guilty verdict rendered was surely unattributable to
the error.

Outcome: For the foregoing reasons, we find no merit in defendant‘s arguments raised
in this appeal and we affirm his convictions

Plaintiff's Experts:

Defendant's Experts:

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