State of Louisiana in the Interest of K.B. Vs.

STATE OF LOUISIANA IN * NO. 2023-CA-0409
THE INTEREST OF K.B.
*
COURT OF APPEAL
*
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
JUVENILE COURT ORLEANS PARISH
NO. 2022-339-02-DQ-C, SECTION “C”
Honorable Candice Bates Anderson, Judge
******
Judge Dale N. Atkins
******
(Court composed of Judge Rosemary Ledet, Judge Dale N. Atkins, Judge Nakisha
Ervin-Knott)

Jason Rogers Williams
DISTRICT ATTORNEY, ORLEANS PARISH
Patricia Amos
ASSISTANT DISTRICT ATTORNEY, ORLEANS PARISH
619 South White Street
New Orleans, LA 70119

COUNSEL FOR APPELLEE, The State of Louisiana

Katherine M. Franks
LOUISIANA APPELLATE PROJECT
P.O. Box 220
Madisonville, LA 70447

COUNSEL FOR APPELLANT, K.B.

AFFIRMED IN PART; VACATED IN PART; AND REMANDED WITH
INSTRUCTIONS
SEPTEMBER 26, 2023

DNA
RML

NEK
This is a juvenile delinquency matter. Appellant, K.B.,1 seeks review of the

trial court’s March 20, 2023 judgment, which adjudicated him delinquent of two

counts of armed robbery with the use of a firearm and rendered a disposition of

juvenile life regarding both counts. For the following reasons, we affirm K.B.’s

adjudication of delinquency but vacate his disposition and remand with

instructions.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

According to its Appellee Brief, the State of Louisiana (“State”) originally

filed a delinquency Petition against juvenile D.J.2 However, when D.J. appeared in

court to answer the Petition, the juvenile court also permitted the State to amend

the Petition to reflect a co-perpetrator, K.B. The State followed up by filing an

Amended Petition, which included counts relative to K.B. and the location of the

offenses.3 The charges alleged against K.B. were:

1 Pursuant to the requirements of confidentiality in juvenile proceedings as set forth in

La. Ch. C. Art. 412, as well as in Uniform Rules, Courts of Appeal, Rules 5-1 and 5-2, the
juvenile is referred to by his initials only, K.B.
2 As discussed further in this Opinion, the juvenile court adjudicated D.J. delinquent in a

joint adjudication hearing with K.B. on March 20, 2023. D.J. has separately appealed, and his
appeal is on this Court’s docket under a different docket number.
3 The Amended Petition contained in the record before this Court lacks a file stamp and a

signature from the District Attorney’s Office. Also, the Amended Petition in the record before

1

COUNT 1: LA R.S. 14:64.3[4]
relative to ARMED ROBBERY WITH THE USE OF A
FIREARM,
to wit:
[D.J.] and [K.B.], on or about November 29, 2022, did commit armed
robbery upon YVETTE ALFONSO [(“Ms. Alfonso”)][5] with the use
of a firearm, at or near the INTERSECTION OF SOUTH CORTEZ
STREET and GRAVIER STREET, in the Parish of Orleans.

....

COUNT 4: LA R.S. 14:64.3
relative to ARMED ROBBERY WITH THE USE OF A
FIREARM,
to wit:
[K. B.], on or about November 29, 2022,[6] did commit armed robbery
upon ANTHONY WILLHIDE [(“Mr. Willhide”)] while armed with a
dangerous weapon, at or near 3443 ESPLANADE AVENUE, in the
Parish of Orleans.

K.B. ultimately pled not guilty to these counts.7 The juvenile court held the

adjudication hearing for both K.B. and D.J. on March 20, 2023. K.B. and D.J. were

represented by separate counsel at the hearing.

March 20, 2023 Adjudication Hearing

this Court is dated December 4, 2022. However, in a pleading filed with the juvenile court by the
State, the State explains that it “submitted an amended petition into PBK on December 30,
2022.” (The State does not explain to what “PBK” refers.) Further, according to the juvenile
court as transcribed during the March 20, 2023 hearing, the State filed the Amended Petition on
January 3, 2023. A copy of the Amended Petition dated January 3, 2023, is not in the record
though.
4 Louisiana Revised Statutes 14:64.3 is titled “[a]rmed robbery; attempted armed robbery;

use of firearm; additional penalty.”
5 In his Appellant Brief, K.B. uses the spelling “Alphonso.” This Opinion will use the

spelling “Alfonso” as in the Amended Petition in the record.
6 The record is unclear as to which date the armed robbery with the use of a firearm as

committed against Mr. Willhide occurred. The Amended Petition in the record lists the date as
November 29, 2022; but during their testimony, as discussed more fully later in the Opinion, Mr.
Willhide and Detective Anthony Lunn both stated that the incident occurred on November 28,
2022.
7 At the March 20, 2023 adjudication hearing, which is discussed more fully throughout

the Opinion, counsel for K.B. explained that she had never received a copy of the Amended
Petition. After receiving a copy at the hearing, she entered a denial on K.B.’s behalf to both
counts.

2

Mr. Willhide’s Testimony

The State’s first witness was Mr. Willhide, who testified that he worked part

time as a driver for Uber and that he was working in this capacity on the evening of

November 28, 2022. Regarding that evening, Mr. Willhide explained that around

10:00-11:00 PM, he was on a break in the parking lot of the Esplanade at City Park

apartments in New Orleans. Mr. Willhide testified that during his break, he was

sitting in his vehicle with the doors locked and a window cracked when someone

approached the vehicle and said to him, “[G]ive me all of your stuff or [I am]

going to shoot you in the face.” Further, Mr. Willhide testified that a second voice

said, “Yeah” and that guns were pointed at him from the direction of both voices.

Mr. Willhide described both guns as handguns: he testified that one had “an

extended magazine” and the other was a “very heavy handgun.” At that point,

according to Mr. Willhide, he began “handing [over his] stuff,” and the two

individuals ultimately drove his vehicle out of the parking lot. Further, Mr.

Willhide testified that one of the individuals was wearing a “solid black hoodie”

while the other wore a “black hoodie with red.” Additionally Mr. Willhide testified

that, on the date of the armed carjacking, his vehicle had a dashboard camera “for

insurance purposes and for recording the safety of . . . passengers and to have a

transparent third-party operation of what was to go on in [the] vehicle at all 360-

degree angles frontwards, inside the cab, and outside the rear.” When asked

whether it was recording on the night of the armed carjacking, Mr. Willhide

responded that “[a]s soon as my car [went] into park it automatically start[ed]

recording.”

The juvenile court asked Mr. Willhide whether he “g[a]ve anyone

permission to approach [his] vehicle;” “g[a]ve anyone permission to enter [his]

3

vehicle;” and “g[a]ve anyone permission to use [his] vehicle” during his break on

the date of the armed carjacking. Mr. Willhide stated that he did not give anyone

permission to approach his vehicle, enter his vehicle, or use his vehicle while he

was on his break that day. Mr. Willhide explained that although his vehicle was

eventually recovered, “[t]here was nothing left in the vehicle when [he] got it, not

even a car battery.”

Detective Anthony Lunn’s Testimony

As its next witness, the State called Detective Anthony Lunn (“Detective

Lunn”), who explained that he worked in the Third District Investigations Unit of

the New Orleans Police Department (“NOPD”). Detective Lunn testified that he

was working in that capacity when he conducted a follow-up investigation8 of an

armed carjacking that had occurred on November 28, 2022, at 3443 Esplanade

Avenue in New Orleans. Regarding the follow-up investigation, Detective Lunn

stated that “[w]hen we were on scene, we did find a dash[board] camera that was . .

. laying in the middle of the street when we got there, and we collected that and

confirmed that it was from [Mr. Willhide]’s car.” Counsel for the State asked

Detective Lunn how he confirmed that the dashboard camera was from Mr.

Willhide’s car, and Detective Lunn began to respond, “I believe my sergeant

noticed it was a dash[board] camera, so he contacted the officer and asked him if

he had - - .” At that point, counsel for K.B. objected on hearsay grounds.9

Thereafter, counsel for the State instead asked Detective Lunn whether he

had the opportunity to review the footage recovered from the dashboard camera,
8 When asked what constituted his follow-up investigation, Detective Lunn explained that

this entailed “anything after the first incident report. . . . [An] officer [took] the first incident
report and then everything afterwards I handled that from there on.”
9 The transcript reveals that the juvenile court did not rule on the objection. Instead,

counsel for the State asked a different question of Detective Lunn.

4

and Detective Lunn answered affirmatively. Detective Lunn described what he saw

when he reviewed the dashboard camera footage:

So the video footage showed -- it had three angles in the car. One
angle was at the driver seat, the other showed basically the front of the
vehicle, and then the last one showed the back, like, rear - - rear seats.
And the [camera angle] showing the driver seat showed the victim
kind of sitting in his car listening to music and then a male walks up
to the window, points a gun in his face, demands him out of the car.
And then . . . a second subject come[s] up basically both of them
demanding him out of the car. And then the front video showed - -
you could hear them having the altercation and then you see one of
the males go across the front of the car. This one I guess was actually
in color and you could see a red hoodie and he was armed with a
firearm as he walked around the car and then got into the passenger
seat.

....

I guess they knew that it was a dash[board] camera video because one
of them said, “oh, make sure you throw that out”, and he ripped it off.
And in the process of ripping [the dashboard camera] off it actually
got a picture of one of their faces. He was wearing a mask, but from
his nose to his forehead was - - [visible] . . . .

Detective Lunn testified that he was able to capture a still image from the

dashboard camera footage and eventually identified the individual “through some

other districts [sic] investigations.” At that point, Counsel for K.B. objected to

“any additional investigations” on Prieur grounds,10 but counsel for the State

responded, “[it is] specifically investigation of this particular case.” The juvenile

court allowed Detective Lunn to continue testifying. Detective Lunn then

explained that he identified the individual in the image from the dashboard camera

footage as K.B. When asked “[i]s he present in Court today,” Detective Lunn

identified K.B. in the courtroom.

10 See State v. Prieur, 277 So.2d 126, 128 (La. 1973) (stating, in pertinent part, that

“[e]vidence of crimes related to the offense with which a defendant is charged is inadmissible
except under special exceptions,” namely “acts relevant to show intent, knowledge or system.”)

5

Detective Lunn further explained that he did not conduct a line-up with Mr.

Willhide because Mr. Willhide had informed officers “that he [was not] able to

really see” the perpetrator, such that “he [would not] be able to recognize” the

perpetrator “because he was wearing a mask and it happened so quick[ly].”

Detective Lunn stated that despite the lack of a line-up identification, “we had the

camera view . . . to see.”

Detective Anita McKay’s Testimony

The next witness to testify for the State was Detective Anita McKay

(“Detective McKay”), who identified herself as an employee of the First District

Investigative Unit for the NOPD. Detective McKay testified that on December 5,

2022, she was working in that capacity to investigate an armed carjacking that had

occurred on November 29, 2022, at South Cortez and Gravier Streets in New

Orleans.11 When asked whether she collected any evidence during the course of her

investigation, Detective McKay replied, “[O]nce I read the initial police report

written [by] Officer Jones I went to the actual location of occurrence and the

victim was no longer there because of the timeframe. However, the supervisor was,

and she advised me that the building was equipped with video - - .” Counsel for

K.B. and D.J. both objected on hearsay grounds, arguing “[she is] talking about

somebody [that is] not present and what their out of [c]ourt statements are.” Before

the juvenile court ruled on the objection, counsel for the State replied that he would

rephrase the question.

Subsequently, counsel for the State asked Detective McKay whether she

knew to “go to the location of South Cortez” and if she collected any evidence

11 Based on her testimony, Detective McKay became involved in the investigation on the

same day as the carjacking. She testified that “[t]he actual crime happened at about 6 - - between
6 and 6:30. I got in about 9 and was assigned the case via my supervisor.”

6

while she was there. In response, Detective McKay answered both questions

affirmatively, explaining that she was able to collect video surveillance footage at

the location of the carjacking. Further, Detective McKay testified she reviewed that

video surveillance footage and began to describe what she had seen in the footage,

stating that “[t]he victim arrived at the location and prior to her exiting the vehicle

another vehicle pulled alongside of her vehicle. A male exited the . . . passenger

side of that vehicle, opened up her door - - .” Counsel for K.B. and D.J. both

objected on the basis that Detective McKay was “testifying to what is in this video

and the video has not been introduced into evidence.” K.B.’s counsel also argued

that the video itself “would be the best evidence.” The juvenile court overruled the

objection and permitted Detective McKay to proceed with her testimony, at which

point she continued describing what she had seen on the video surveillance

footage:

So there was a gentleman clad in a red hoodie/shirt and he opened up
the driver door of the victim’s vehicle and he was armed with a
firearm, reached in and pulled her from the vehicle. The victim began
to scream in a panic. Another guy exited the driver seat who had on a
very distinctive face mask. He came around as if he was going to
assist the other gentleman. And there was a third person who had his
arm reached out of a partially cracked window from the rear seat.
Once the victim was fully out of her vehicle, the guy in the red shirt,
he gets in her vehicle and the two vehicles fled the location behind
one another.

Thereafter, when asked whether she would be able to identify that footage if

it were shown to her, Detective McKay answered affirmatively, and counsel for

K.B. objected on the basis that there was “no foundation laid by the custodian of

this particular video,” such that its authenticity was in question because the

“foundation ha[d] not been laid.” The juvenile court noted the objection for the

record, and the following colloquy occurred:

7

[COUNSEL FOR D.J.]:

And, Judge, I think at this point she can look at it. I would ask
as the trier [of] fact, obviously, that you cannot see it until it is offered
and admitted at which point if the State attempts to do that I have an
objection I would like to make, but I think [it is] premature at this
time.

THE COURT:

Okay. It is. Thank you, Counselor.

Subsequently, counsel for the State asked questions of Detective McKay “to

authenticate the video” while showing video surveillance footage on a screen, at

which point counsel for the State asked Detective McKay the following questions:

Q Would you, please, describe to me what you see on the screen?

A The white vehicle that was for the victim properly parked at the
corner of Gravier and South Cortez.

Q Okay. Did you have the actual opportunity to see the specific
road?

A Yes.

Q Okay. During that day when you got the surveillance video?

A Yes.

Q Okay. So how are you able to identify [it as] being that street?

A I work in the area. [I am] familiar with the area.

Q Okay. But, like, what things in the video help you to identify
that?

A The building that the camera is affixed on and it being in the
area — [it is] right across from the Entergy building. I have
knowledge of the entire area.

Q And is there a time stamp on the video?

A Yes.

Q Okay. What date and time does it display?

8

A [It is] saying November 29, 2022, 7:26 a.m.

Then, the State offered the video surveillance footage into evidence, at which time

counsel for K.B. and counsel for D.J. objected again. They argued that, under La.

C.E. art. 901, “without having the actual person who maintains the video system

and can testify to the accuracy and the maintenance thereof, this video cannot

come into evidence.” The juvenile court overruled their objections and admitted

the video surveillance footage into evidence.

Thereafter, when asked what the next step in her investigation was,

Detective McKay responded, “Once we got the video surveillance [footage], we

also began to get phone calls from detectives across our city with our [Violent

Crime Abatement Investigation Team (“VCAIT Unit”)12] as well.” Counsel for

K.B. and counsel for D.J. both objected on the basis of Prieur and contended that

Detective McKay’s testimony constituted hearsay. Before the juvenile court ruled

on that objection, counsel for the State asked Detective McKay whether she had

been able to identify the suspects in the video surveillance footage. Again, counsel

for K.B. objected on the basis of hearsay, but the juvenile court stated, “[It is]

premature. [I am] going to allow [Detective McKay] to answer the question.” In

response to the question as to whether she was able to identify the individuals in

the video surveillance footage, Detective McKay answered affirmatively,

12 We note that Detective McKay used the acronym “VCAIT” during her testimony, but

she did not explain what those letters represent. However, this Court may take judicial notice of
government websites. Mendoza v. Mendoza, 2017-0070, p. 6 (La. App. 4 Cir. 6/6/18), 249 So.3d
67, 71 (citing Felix v. Safeway Ins. Co., 2015-0701, p. 7 (La. App. 4 Cir. 12/16/15), 183 So.3d
627, 632 & n.10). See also La. C.E. art. 201. A press release on the website for the United States
Attorney’s Office for the Eastern District of Louisiana states that “VCAIT” stands for “Violent
Crime Abatement Investigation Team.” See U.S. Attorney’s Office, Eastern District of Louisiana
Joins Its Federal, State and Local Law Enforcement Partners in Addressing Violent Crime,
JUSTICE.GOV (Feb. 16, 2022), https://www.justice.gov/usao-edla/pr/us-attorney-s-office-eastern-
district-louisiana-joins-its-federal-state-and-local-law.

9

explaining that she and the other investigating officers “learned of a social media

account” after having obtained the video surveillance footage. Counsel for K.B.

and counsel for D.J. again objected, contending that any social media evidence

constituted hearsay and that the State had not authenticated the evidence. The

juvenile court noted the objection for the record but allowed the State and

Detective McKay to proceed. When shown State’s Exhibit 3, Detective McKay

identified it as a “still image that [she and other investigating officers] obtained

from social media” and described it as displaying a “young man wearing a very

distinctive full[-]faced mask.” Detective McKay explained that during “[her]

investigation with additional detectives that came on board to assist [her]” she

identified the social media user as D.J.13

Detective McKay then testified that “[t]hrough [her] investigation with other

detectives [she] obtained a still image photo of the other subject,” which image

came from the “car dash[board] cam[era] from another vehicle that was violently

taken in an armed carjacking.” Thereafter, the State asked for permission to

authenticate, which the juvenile court granted: the State showed State’s Exhibit 4

to Detective McKay, and she identified it as “[a] still image photo from the in car

dash[board] cam[era] that [she and the other investigating officers] received during

[their] investigation.” When asked to expand further on the identification process,

Detective McKay explained that “[they] were working together as detectives on

these cases and the photo was provided to further [her] investigation.” When asked

who was in the still image, Detective McKay responded, “K.B.” and identified

13 Counsel for D.J. objected to this identification based on “the lack of foundation” and

argued that Detective McKay could not “testify to something that other detectives have done.”
Overruling the objection, the juvenile court responded, “[Detective McKay] just stated that she
was part of the investigation.”

10

K.B. in the courtroom. Counsel for K.B. objected to the photo being admitted into

evidence on the basis that “[i]t was received from another detective that never

authenticated it.” The juvenile court noted the objection but admitted the photo into

evidence.

On cross-examination, counsel for K.B. asked Detective McKay whether she

conducted “a line-up procedure” with the complaining witness, Ms. Alfonso, and

Detective McKay responded that she did not conduct a line-up. Further, when

asked if “conduct[ing] a line-up to get confirmation of the actual complainant” is

standard procedure, Detective McKay responded, “[n]ot all the time.” When

pressed why she did not conduct a line-up, Detective McKay answered: “In this

particular case because we had so many hands-on detectives and the two persons

that were involved and identified were not strangers to the system in being

identified by myself and other detectives from previous cases.”

Detective April Augustine’s Testimony

Finally, the State called Detective April Augustine (“Detective Augustine”)

as a witness, and she testified that she was a police officer with the NOPD assigned

to the VCAIT Unit. Detective Augustine explained that she was working in this

capacity on November 30, 2022, at which time she investigated an armed

carjacking that had occurred on November 29, 2022, at approximately 6:20 a.m. at

South Cortez and Gravier Streets. When asked how she became involved in the

investigation, Detective Augustine explained that she and her partners “spotted the

[stolen] vehicle” and “decided to follow it until it became stationary so [that they]

could try to make an apprehension on the person that was driving the stolen

vehicle.” Detective Augustine testified that “[o]nce [the vehicle] was parked” she

and her partners “observed [a] . . . male” and “had knowledge of the person

11

through . . . previous investigation.” Thereafter, according to Detective Augustine,

the individual went into a barber shop, at which time she assisted with securing the

perimeter. Detective Augustine testified that “[a]fter he exited the barber shop, [the

individual] was apprehended” and “then [she] . . . secured the stolen [vehicle].”

Further, Detective Augustine explained that other “[o]fficers . . .

confiscate[d] [a] gun and then they brought it to [her] and [she] secured the firearm

in [her] vehicle temporarily.” When the State showed State’s Exhibit 5 to Detective

Augustine, she identified it as a “[b]lack semi-automatic handgun with an extended

magazine.” She testified that it had a label containing an item number that matched

the number assigned to the carjacking at South Cortez and Gravier Streets, and she

stated that was the firearm collected on November 30, 2022, outside of the barber

shop. Detective Augustine clarified that another officer handed her the gun on

November 30, 2022, and that although she was on the scene, she was not present

when that gun was actually recovered by a member of the NOPD because she was

securing the perimeter at that time.

Detective Augustine’s testimony reveals that the individual detained on

November 30, 2022, was D.J.; however, Detective Augustine clarified that she did

not see D.J. driving the stolen vehicle, did not see D.J. park the stolen vehicle, and

did not see D.J. get out of the stolen vehicle. Rather, Detective Augustine testified

that she saw D.J. walk toward the barber shop and that she was located on a side

street when D.J. exited the barber shop.

March 20, 2023 Judgment

After hearing closing arguments, the juvenile court proceeded to adjudicate

K.B. delinquent on Count 1 and Count 4. After the juvenile court stated D.J.’s

adjudication too, the following colloquy occurred:

12

THE COURT:

. . . Do you wish to waive delays?

[COUNSEL FOR D.J.]:

Yes.

THE COURT:

All right. With [K.B.] it is ordered, adjudged, and decreed that
you are a juvenile for proper placement with the Office of Juvenile
Justice. You are hereby placed with the Office of Juvenile Justice.
How old are you? Where are you? How old?

[K.B.]:

17.

THE COURT:

17. On the one count of armed robbery; juvenile life. On the
second count of armed robbery with the use of a firearm; juvenile life.
All to run concurrent.

The same day as the hearing, March 20, 2023, the juvenile court signed a

judgment, which stated in pertinent part:

DELINQUENT ADJUDICATION

It is [ORDERED, ADJUDGED AND DECREED] that [K.B.] was a
child under seventeen (17) years of age . . . at the time of the
offense(s) herein and is within the purview of the Children’s Code and
hereby found to be DELINQUENT as a result of having committed
the following offense(s):

COUNT NUMBER OFFENSE
14:64 Armed robbery; use of firearm (2 counts) (Count 1 and 4)

DISPOSITION

It is [ORDERED, ADJUDGED, and DECREED] that the juvenile
is a proper person for placement with the Office of Juvenile Justice
and is hereby with the Office of Juvenile Justice for JUVENILE
LIFE as to each count. Said sentences are to run concurrent and
run concurrent with any other open cases.

13

On April 19, 2023, K.B. filed a Motion for Appeal regarding the March 20, 2023

judgment.

ASSIGNMENTS OF ERROR

K.B. asserts the following four assignments of error:

1. The [juvenile court] erred in admitting the video of the carjacking
of the person identified as Ms. Alphonso [sic] when the State failed to
lay the proper foundation for its admission. As Ms. Alphonso [sic] did
not testify, the video was the sole evidence that an offense even
occurred. The error therefore was not a harmless one.

2. It was error for the [juvenile court] to allow Detective McKay to
testify as to the content of the inadmissible video allegedly depicting
the carjacking of Ms. Alphonso [sic]. Not only was the testimony, in
light of the lack of evidence of the original video’s loss or destruction,
not the “best evidence” as to the content of the video, Detective
McKay was also incompetent to testify as to the video’s content.

3. The [juvenile court] erred in allowing both Detective McKay and
Detective Lunn to offer hearsay testimony regarding the identification
of K.B. as the perpetrator of both offenses charged in the delinquency
petition. The testimony of both detectives made it clear that the
identifications were made by unidentified third parties. The use of
hearsay to establish identity was so prejudicial that a new trial is
mandated.

4. Patent Error - The [juvenile court] erred in failing to conduct a
disposition hearing and then imposing a non-mandatory maximum
disposition without a waiver of the hearing by either K.B. or his
counsel.

Before discussing K.B.’s assignments of error, we must address some preliminary

matters.

PRELIMINARY MATTERS

Whether K.B.’s Appeal Was Timely Filed

As noted previously, the juvenile court signed the subject judgment on

March 20, 2023, and K.B. filed the instant appeal on April 19, 2023. Louisiana

Children’s Code Article 332(A) provides that “appeals shall be taken within fifteen

14

days from the mailing of notice of the judgment.”14 Because the record before this

Court did not contain a notice of judgment, on August 7, 2023, this Court ordered

the Clerk of Court for the Orleans Parish Juvenile Court (“Juvenile Court Clerk”)

to supplement the record with the notice of judgment regarding the March 20, 2023

judgment, so that we could determine whether this appeal was timely filed. In

response, this Court received a March 21, 2023 email chain, and the Juvenile Court

Clerk explained to this Court’s Clerk that this is the email by which counsel for

K.B. received the March 20, 2023 judgment. The Juvenile Court Clerk did not file

with this Court anything demonstrating that the Juvenile Court Clerk mailed the

judgment to K.B. and his counsel. In order to resolve whether K.B.’s appeal was

timely filed, we must determine whether the March 21, 2023 email was sufficient

to initiate the fifteen-day deadline for filing an appeal under La. Ch. C. art. 332(A):

if it was sufficient, then K.B.’s appeal was untimely.

In State in Interest of A.S., the juvenile court signed the subject judgment on

November 14, 2016, and on the next day, November 15, 2016, the sheriff’s office

14 Regarding the computation of time in juvenile matters, La. Ch. C. art. 114 provides:

A. In computing a period of time allowed or prescribed by law or by order
of court, the date of the act, event, or default after which the period begins to run
is not to be included. The last day of the period is to be included, unless it is a
legal holiday, in which event the period runs until the end of the next day which is
not a legal holiday.

B. A half-holiday is considered as a legal holiday.

C. A legal holiday is to be included in the computation of a period of time
allowed or prescribed, except in any one of the following instances:

(1) It is expressly excluded.

(2) It would otherwise be the last day of the period, except that, for
purposes of calculating a release date from an order of commitment, a legal
holiday shall be included if it is the last day of the period.

(3) The period is less than seven days.

D. All Saturdays and Sundays are also considered as legal holidays.

15

“walked” the judgment to counsel for the appellant. 2017-0028, p. 4 (La. App. 4

Cir. 5/10/17), 220 So.3d 179, 183. Counsel for the appellant filed a motion for

appeal on December 5, 2016. Id. In response, the Department of Children and

Family Services (“DCFS”) argued that the appeal was untimely and that subject

matter jurisdiction had lapsed as a result. Id. In response to that argument, this

Court held:

Article 332 of the Louisiana Children’s Code states, in pertinent part,
that “appeals shall be taken within fifteen days from the mailing of
the notice of the judgment.” (Emphasis added). The “starting point for
interpreting a statute is the language of the statute itself.” Consumer
Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100
S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). The legislature is presumed
to mean what it plainly says in the text of a statute. Cat’s Meow v.
City of New Orleans, [19]98-0601, p. 15 (La. 10/20/98), 720 So.2d
1186, 1198. “Courts must presume that a legislature says in a statute
what it means and means in a statute what it says there.” State v.
Williams, [20]10-1514, p. 6 (La. 3/15/11), 60 So.3d 1189, 1192.
“When a law is clear and unambiguous, and its application does not
lead to absurd consequences, it shall be applied as written.” Id. In the
instant matter, the mailing of the judgment, not the custom or practice
of the Sheriff’s Office, marked the start of the time delay for filing a
Notice of Appeal. Therefore, DCFS’s argument that subject matter
jurisdiction lapsed is without merit. We find the Notice of Appeal
timely and as such, will consider the merits of [a]ppellant’s appeal.

Id. at pp. 5-6, 220 So.3d at 183-84 (footnote omitted).

In addition to that precedent, we have not located any cases in which a court

has held that an email is sufficient to initiate the fifteen-day period outlined in La.

Ch. C. art. 332(A). As emphasized in State in Interest of A.S., La. Ch. C. art.

332(A) specifies that the time period begins upon mailing of the judgment and

does not provide emailing as an alternative method even if that is the custom of the

Orleans Parish Juvenile Court. Additionally, “[a]ppeals are favored in law and any

doubt shall be resolved in favor of maintaining, rather than dismissing an appeal.”

Modicue v. Prince of Peace Auto Sale, LLC, 54,095, p. 9 (La. App. 2 Cir. 9/22/21),

16

328 So.3d 1239, 1246 (citing Morice v. Alan Yedor Roofing & Constr., 2016-532,

p. 10 (La. App. 5 Cir. 2/8/17), 216 So.3d 1072, 1079). Accordingly, “[u]nless the

grounds for dismissal are free from doubt, the appeal should be maintained.” Id.

See also State v. Fin. Cas. & Sur., 2017-1014, 2018-0242, p. 7 (La. App. 4 Cir.

11/7/18), 318 So.3d 713, 717 (quoting Garco, Inc. v. Rob’s Cleaning &

Powerwash, Inc., 2008-1249, p. 3 (La. App. 4 Cir. 4/22/09), 12 So.3d 386, 388)

(noting that “[i]n the absence of the clerk’s certificate showing the date of the

mailing of the judgment and to whom it was mailed, doubt should be resolved in

favor of the right to appeal”). In the matter sub judice, mailing of the judgment, not

the custom or practice of the Juvenile Court Clerk of emailing the judgment, would

have marked the start of the time delay for filing an appeal.

Therefore, we find that K.B. timely filed this appeal, and we will consider

the merits of his appeal. Before proceeding with the merits, we must discuss two

more preliminary matters.

Applicability of the Louisiana Code of Criminal Procedure

At the outset, we note that La. Ch. C. art. 104 states that “[w]here procedures

are not provided in this Code, or otherwise by law, the court shall proceed in

accordance with” the Louisiana “Code of Criminal Procedure in a delinquency

proceeding and in a criminal trial of an adult.” Additionally, La. Ch. C. art. 803,

which is in the section of the Louisiana Children’s Code labeled “Title VIII.

Delinquency,” provides that “[t]he provisions of this Title shall govern and

regulate delinquency proceedings of courts exercising juvenile jurisdiction.” If

“procedures are not provided in this Title, or otherwise by [the Louisiana

Children’s] Code” though, “the court shall proceed in accordance with the Code of

Criminal Procedure.” La. Ch. C. art. 803. See also State in Interest of C.H., 2021-

17

0516, p. 17 (La. App. 4 Cir. 1/26/22), 335 So.3d 451, 462. Thus, this Opinion will

apply the Louisiana Children’s Code when possible and the Louisiana Code of

Criminal Procedure in the absence of an applicable Children’s Code provision.

Errors Patent Review

In accordance with La. C.Cr.P. art. 920, we review appeals for errors patent.

An error patent is one “that is discoverable by a mere inspection of the pleadings

and proceedings and without inspection of the evidence.” La. C.Cr.P. art. 920(2).

Though the Louisiana Children’s Code does not specify whether a juvenile

proceeding is entitled to an errors patent review, this Court has found that La. Ch.

C. art. 104 and La. C.Cr.P. art. 920, when read in conjunction with each other,

mandate an errors patent review. State in Interest of C.H., 2021-0516, p. 19, 335

So.3d at 463 (citing State in Interest of A.P., 2020-0623, p. 6 (La. App. 4 Cir.

4/21/21), 317 So.3d 887, 890). Accordingly, in juvenile delinquency cases, this

Court has adopted the practice of conducting an errors patent review. Id. (citing

State in Interest of W.B., 2016-0642, p. 4 (La. App. 4 Cir. 12/7/16), 206 So.3d 974,

978).

A review of the record for errors patent in this case reveals one: the juvenile

court failed to conduct a disposition hearing. See State in Interest of W.B., 2016-

0642, pp. 4-6, 206 So.3d at 978-79 (wherein this Court held that the juvenile

court’s failure to conduct a disposition hearing prior to entering a judgment of

disposition in the absence of a valid waiver constituted an error patent). We note

that K.B. labels his fourth assignment of error as a “[p]atent [e]rror.” Therein, he

asserts that “the [juvenile] judge erred in failing to conduct a disposition hearing

and then imposing a non-mandatory maximum disposition without a waiver of the

hearing by either K.B. or his counsel.” Accordingly, we will address this error

18

patent in our discussion of K.B.’s fourth assignment of error. Moreover, we note

that K.B.’s first, second, and third assignments of error concern his adjudication of

delinquency: if we were to determine that the trial court committed reversible error

in adjudicating K.B. delinquent, then this would render moot any error regarding

K.B.’s disposition.

Assignment of Error Number One: Whether the Juvenile Court Erred in
Permitting the Admission of the Videotape of the Carjacking of Ms. Alfonso
Because the State Did Not Properly Authenticate or Identify the Video
Surveillance Footage

In his first assignment of error, K.B. contends that the juvenile court “judge

erred in admitting the video of the carjacking of the person identified as Ms.

Alphonso [sic] when the State failed to lay the proper foundation for its

admission.” Further, he asserts that because “Ms. Alphonso [sic] did not testify, the

video was the sole evidence that an offense even occurred. The error therefore was

not a harmless one.”

19

Standard of Review

As this Court has explained, a trial court has great discretion in determining

if a party has laid a sufficient foundation for the admission of evidence, and an

appellate court reviews a ruling on the admissibility of evidence for an abuse of

that discretion. State v. Groves, 2020-0450, p. 29 (La. App. 4 Cir. 6/10/21), 323

So.3d 957, 975 (citing State v. Ashford, 2003-1691, p. 14 (La. App. 4 Cir. 6/16/04),

878 So.2d 798, 806; State v. Wright, 2011-0141, pp. 10-11 (La. 12/6/11), 79 So.3d

309, 316). See also State v. Chambers, 2016-0712, pp. 12-13 (La. App. 4 Cir.

2/15/17), 212 So.3d 643, 651 (citing Wright, 2011-0141, pp. 10-11, 79 So.3d at

316); State in Interest of J.H., 2022-0324, pp. 11-12 (La. App. 4 Cir. 8/9/22), 2022

WL 3210100, at *6 (citing State v. Cosey, 1997-2020, p. 13 (La. 11/28/00), 779

So.2d 675, 684; Ashford, 2003-1691, p. 14, 878 So.2d at 806).

Authentication or Identification of Evidence

“Authentication of evidence is required in order for evidence to be

admissible at trial.” State v. Smith, 2015-1359, p. 6 (La. App. 4 Cir. 4/20/16), 192

So.3d 836, 840. Louisiana Code of Evidence Article 901 is titled “[r]equirement of

authentication or identification.” It states, in pertinent part, that “[t]he requirement

of authentication or identification as a condition precedent to admissibility is

satisfied by evidence sufficient to support a finding that the matter in question is

what its proponent claims.” La. C.E. art. 901(A). Louisiana Code of Evidence

Article 901(B) “provides an illustrative, though not exhaustive, list of examples of

authentication or identification that conforms with the requirements of the article.”

Smith, 2015-1359, p. 6, 192 So.3d at 840. It states, in pertinent part:

B. Illustrations. By way of illustration only, and not by way of
limitation, the following are examples of authentication or
identification conforming with the requirements of this Article:

20

(1) Testimony of witness with knowledge. Testimony that a
matter is what it is claimed to be.

....

(4) Distinctive characteristics and the like. Appearance,
contents, substance, internal patterns, or other distinctive
characteristics, taken in conjunction with circumstances.

....

(9) Process or system. Evidence describing a process or system
used to produce a result and showing that the process or system
produces an accurate result.

La. C.E. art. 901(B). Additionally, this Court has held that “[t]he identification of

the evidence may also be satisfied ‘by chain of custody, that is, by establishing the

custody of the object from the time it was seized to the time it was offered in

evidence.’” State in Interest of J.H., 2022-0324, p. 11, 2022 WL 3210100, at *6

(quoting State v. Martin, 2013-0115, pp. 9-10 (La. App. 4 Cir. 12/4/13), 131 So.3d

121, 128).

A party establishes a sufficient foundation for the admission of a piece of

evidence “when the evidence as a whole shows it is more probable than not that the

object is one connected with the crime charged.” State v. Parks, 2007-655, p. 17

(La. App. 5 Cir. 1/22/08), 977 So.2d 1015, 1028 (citing State v. Arita, 2004-39, p.

9 (La. App. 5 Cir. 3/1/05), 900 So.2d 37, 43). “The identification can be visual,

through testimony.” Id. “Generally, the standard applied by state and federal courts

alike with respect to the authentication of a document is whether there is sufficient

evidence from which a reasonable juror could find the proposed evidence is what

the proponent claims it to be.” Smith, 2015-1359, p. 6, 192 So.3d at 840 (citing

State v. Lee, 2001-2082, p. 9 (La. App. 4 Cir. 8/21/02), 826 So.2d 616, 624).

21

This Court has held that “a photograph need not be identified by the person

who took it to be admissible” and that “[t]he proper foundation for the admission

of a photograph into evidence is laid when a witness having personal knowledge of

the subject depicted by the photograph identifies it as such.” State v. Doucette,

2017-0501, 0768, pp. 18-19 (La. App. 4 Cir. 5/23/18), 243 So.3d 704, 715 (citing

State v. LeBlanc, 2010-1484, p. 22 (La. App. 4 Cir. 9/30/11), 76 So.3d 572, 586).

See also S.L.B. v. C.E.B., 2017-0978, 0979, 0980, p. 28-30 (La. App. 4 Cir.

7/27/18), 252 So.3d 950, 969-70. Similarly, the person who authenticates video

footage need not be the one who originally recorded the video if the person has

knowledge that the video is what the proponent claims it to be and can provide

information about the content of the footage. See Groves, 2020-0450, pp. 28-32,

323 So.3d at 975-77; State v. Gray, 2016-1195, pp. 21-30 (La. App. 4 Cir.

6/28/17), ___ So.3d ___, ___, 2017 WL 3426021, at *11-16. For example, in Gray,

the State sought to introduce certain YouTube videos into evidence and attempted

to authenticate the videos by presenting the testimony of a detective who

investigated social media evidence in search of crimes and gang activities. 2016-

1195, p. 23, ___ So.3d at ___, 2017 WL 3426021, at *12. The detective identified

the videos and made an in-court identification of the defendant as the person in the

videos. Id. at pp. 23-25, ___ So.3d at ___, 2017 WL 3426021, at *12-13. The

detective also provided the location of the videos and estimated that the videos

were filmed sometime between 2010 and 2013. Id. On appeal, this Court

concluded that the detective’s testimony provided sufficient support for the district

22

court’s finding that the YouTube videos were what the State claimed them to be

and thus admissible. Id. at p. 30, ___ So.3d at ___, 2017 WL 3426021, at *16.15

Likewise, in the matter sub judice, Detective McKay recalled that she

obtained the video surveillance footage in the course of her investigation of the

carjacking of Ms. Alfonso, which occurred on November 29, 2022. Detective

McKay explained that when she viewed the video surveillance footage that she

obtained from the location of the carjacking (South Cortez and Gravier Streets), it

showed one individual “in a red hoodie/shirt” who “opened up the driver door of

the victim’s vehicle” while “armed with a firearm” and “reached in and pulled [the

victim] from the vehicle.” Detective McKay testified that in the footage was

“[a]nother guy . . . who had on a very distinctive face mask” and “came around as

if he was going to assist the other gentleman.” Continuing, Detective McKay

explained that “[o]nce the victim was fully out of her vehicle, the guy in the red

shirt, he gets in her vehicle and the two vehicles fled the location behind one

another.” Thereafter, when the State played the video surveillance footage,

Detective McKay identified Ms. Alfonso’s “white vehicle that was . . . parked at

the corner of Gravier and South Cortez” Streets. Detective McKay testified that she

recognized the location not only because she visited it during her investigation but

also because she works in that area and is “familiar” with it. Specifically, Detective

McKay identified the building on which the surveillance camera was affixed as

“right across from the Entergy building.” Detective McKay also identified the date

and time stamp of the video as “November 29, 2022, 7:26 a.m.,”16 thereby

15 Though the discussion sections in Groves and Gray noted that these were social media

videos, the reasoning and analyses found in those cases are applicable here too.

23

corresponding with the date and time of the carjacking of Ms. Alfonso.

Additionally, Detective McKay stated that she subsequently identified the

individuals in the video surveillance footage as D.J. and K.B.

Considering the foregoing, we find that Detective McKay’s testimony was

that “of [a] witness with knowledge” that the video is “what it is claimed to be”

and that she provided “[d]istinctive characteristics and the like.” See La. C.E. art.

901(B)(1),(4). Her testimony provided sufficient evidence from which a reasonable

juror could find the video surveillance footage is what the proponent claims it to

be. Thus, the juvenile court did not err in admitting the video surveillance footage

into evidence based on Detective McKay’s testimony serving as the basis for its

authentication or identification.

Case Cited by K.B.: State in Interest of J.H.

We further note that, in support of his first assignment of error, K.B. cites to

State in Interest of J.H., 2022-0324, 2022 WL 3210100. Therein, a panel of this

Court reviewed the juvenile court’s admission of video surveillance footage

obtained by Detective Amit Bidichandani (“Detective Bidichandani”) from the

director of a housing development. Id. at pp. 2-3, 10-14, 2022 WL 3210100, at *1,

6-7. The Court summarized the detective’s testimony as follows:

Det[ective] Bidichandani obtained video surveillance footage from the
director of the . . . [h]ousing [d]evelopment, Mr. Pollard. Det[ective]
Bidichandani stated that, from his previous experience working in that
area, he knew that the . . . [h]ousing [d]evelopment had surveillance
cameras recording video in the area where the incident occurred.
Det[ective] Bidichandani obtained from Mr. Pollard a video recording
from the date, location, and approximate time of the reported incident.
In the video, Det[ective] Bidichandani viewed a person, who fit the
description from the witnesses, pulling a firearm from his waistband.

16 We note that during her testimony at the March 20, 2023 hearing, Detective McKay

estimated that the incident had occurred between “6 and 6:30.”

24

Id. at pp. 2-3, 2022 WL 3210100, at *1. In holding that the juvenile court abused

its discretion in admitting the footage into evidence, the Court emphasized that

Detective Bidichandani “received a copy of an excerpt of a video recording from a

third party who did not testify regarding the process or system by which the video

was created” and that there was thus “no testimony regarding the accuracy of the

video.” Id. at p. 13, 2022 WL 3210100, at *7. The Court also observed that

because “Det[ective] Bidichandani received this from a non-testifying third party,

the chain of custody [was] not . . . properly established.” Id.

However, we find the reasoning of State in Interest of J.H. distinguishable

from the matter sub judice. First, as explained previously, the Court in State in

Interest of J.H. concluded that the juvenile court abused its discretion because no

one testified regarding the process or system by which the video was created.

2022-0324, p. 13, 2022 WL 3210100, at *7. Though La. C.E. art. 901(B)(9) lists

“process or system” as a method of authenticating or identifying evidence, La. C.E.

art. 901(B) specifically states that the list contained therein is “[b]y way of

illustration only, and not by way of limitation” and that it constitutes a list of

“examples of authentication or identification.” Moreover, in other cases this Court

has emphasized that La. C.E. art. 901(B) is not an “exhaustive” list. See Smith,

2015-1359, p. 6, 192 So.3d at 840. Thus, we find that citing to a party’s failure to

authenticate or identify evidence via one of the specific listed methods is an

improper interpretation of La. C.E. art. 901(B).

Second, in so holding, the Court in State in Interest of J.H., also stated that

the State had not properly established the chain of custody. 2022-0324, p. 13, 2022

WL 3210100, at *7. However, in discussing chain of custody, the Court in State in

Interest of J.H. also specifically stated that “[t]he identification of the evidence

25

may also be satisfied ‘by chain of custody, that is, by establishing the custody of

the object from the time it was seized to the time it was offered in evidence.’” Id. at

p. 11, 2022 WL 3210100, at *6 (emphasis added). Thus, like “process or system,”

the chain of custody is just another potential method for identifying or

authenticating evidence. That is, the failure to authenticate or identify evidence in

this matter does not mean that the evidence has not been properly or sufficiently

authenticated or identified; therefore, the failure to authenticate or identify

evidence via one of these listed methods should not automatically be deemed fatal

by a court.

Additionally, it is worth noting that although the Court in State in Interest of

J.H. listed La. C.E. art. 901(B)(1) and (4) in one of its opening rule statements

about authentication and identification of evidence, the Court did not appear to

consider whether these examples of methods of authentication or identification

were applicable in the matter (i.e., (1) testimony of witness with knowledge and (4)

distinctive characteristics and the like). 2022-0324, p. 11, 2022 WL 3210100, at

*6). Yet, the Court summarized the State’s argument about the authentication or

identification of the footage in this regard:

Det[ective] Bidichandani testified that he was familiar with the
neighborhood of the . . . [h]ousing [d]evelopment, where the incident
occurred; he knew to contact Mr. Pollard, the security director, about
video surveillance; he retrieved the video footage from Mr. Pollard;
and, from “previous experience collecting video footage from this
area”, he knew “that their camera systems and layout is accurate.”

Id. at p. 13, 2022 WL 3210100, at *6. However, the Court did not discuss La. C.E.

art. 901(B)(1) and (4) in its analysis or explain why Detective Bidichandani’s

testimony to this effect failed to satisfy La. C.E. art. 901(B)(1) and/or La. C.E. art.

901(B)(4).

26

Finally, the Court in State in Interest of J.H. appears to have relied in its

reasoning on distinguishing its facts from the situation the Louisiana Supreme

Court addressed in State v. Rice, 2017-0446 (La. 6/29/17), 222 So.3d 32. 2022-

0324, pp. 12-13, 2022 WL 3210100, at *6. In Rice, the district court concluded that

the State had not sufficiently authenticated video surveillance footage and

sustained an objection to the footage lodged by the prosecution. 2017-0446, pp. 1-

2, 222 So.3d at 32-33. The Louisiana Supreme Court disagreed, explaining:

[T]he defense called Shelby Williams, who lives across the street
from defendant and whose video surveillance system captured
defendant at, according to Mr. Williams’s testimony, times pertinent
to when the offenses occurred. . . .

....

The requirement of authentication as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding
that the matter in question is what its proponent claims. La. C.E. art.
901(A). Such evidence may come in the form of testimony by a
witness with knowledge that the matter is what it is asserted to be;
indications of the item’s distinctive characteristics, including its
contents, substance, internal patterns, and other distinctive
characteristics; or evidence describing the process or system used to
produce the item and showing that the process or system produces an
accurate result. See La.C.E. art. 901(B)(1), (4), and (9).

Such a showing was made by Mr. Williams’s testimony.
Contrary to the prosecutor’s objection—urging that there was no
custodian who could testify about the process by which the video was
produced—Mr. Williams explained that he had personally designed
and managed the video surveillance system at his home (for security
purposes) and knew the video at issue to be what it was asserted to be.
He also described the process and system by which the video was
created and testified to the accuracy of that system

Id. at pp. 1-3, 222 So.3d at 33-34 (footnotes omitted).

After summarizing Rice, the Court in State in Interest of J.H. distinguished it

by observing that “the State offered no testimony from a person who maintained

the surveillance video system that recorded the video, to describe the process or

27

system by which the video was created and to attest to the accuracy of the system.”

2022-0324, p. 13, 2022 WL 3210100, at *6. However, as the above excerpt from

Rice demonstrates, the Louisiana Supreme Court addressed the narrow issue of

whether the footage could be authenticated by Mr. Williams in light of Mr.

Williams’ testimony that his video surveillance system had captured the defendant

at times pertinent to when the offenses occurred, as well as Mr. Williams’

testimony that he designed and managed the video surveillance system. 2017-0446,

pp. 1-3, 222 So.3d at 33-34. Notably, the Louisiana Supreme Court did not say that

this was the only way the footage could have been authenticated or identified or

that Mr. Williams was the only witness who could have authenticated or identified

the footage. Id.

Assignment of Error Number Two: Whether the Juvenile Court Erred in
Permitting Detective McKay to Testify as to the Content of the Video
Surveillance Footage

“Best Evidence” Rule

In his second assignment of error, K.B. asserts, in part, that “[i]t was error

for the [juvenile court] to allow Detective McKay to testify as to the content of the

inadmissible video allegedly depicting the carjacking of Ms. Alphonso [sic].” In

this assignment of error, K.B. contends that Detective McKay’s testimony was

“not the ‘best evidence’ as to the content of the video,” especially “in light of the

lack of evidence of the original video’s loss or destruction.” In his Appellant Brief,

K.B. argues that because “the video at issue was available, there was no need for a

witness to testify as to its content.” In so arguing, K.B. appears to conflate the

older, broader version of the “best evidence rule” with the current version of the

rule.

As the Louisiana First Circuit Court of Appeal explained in State v. Francis:

28

The repeal of La. R.S. 15:436 and the adoption of the Code of
Evidence resulted “in the demise of any broad ‘best evidence’ rule of
exclusion of evidence.” La.C.Ev. Chapter 10, Introductory Note, p.
127 (West 1991). Even under the jurisprudence cited by defendant,
defendant’s arguments are without merit. Prior to its repeal, La. R.S.
15:436 provided that “[t]he best evidence which from the nature of the
case must be supposed to exist, and which is within a party’s control,
must be produced.” Jurisprudence prior to adoption of the Code of
Evidence provided that the best evidence of a tape recording was the
unaltered tape. An accurate transcription of the tape would be better
evidence than oral testimony based on a recollection of a witness to
the conversation. See State v. Sterling, 444 So.2d 273, 281 (La. App.
1st Cir. 1983).

597 So.2d 55, 59 (La. App. 1st Cir. 1992) (alteration in original). In contrast to the

broad best evidence rule found in the now repealed La. R.S. 15:436, “[t]he current

Louisiana Code of Evidence provides that ‘[t]o prove the content of a writing,

recording, or photograph, the original writing, recording, or photograph is required,

except as otherwise provided by this Code or other legislation.’” State v. Mattire,

2011-2390 (La. App. 1 Cir. 9/21/12), 2012 WL 4335432, at *9 (second alteration

in original) (quoting La. C.E. art. 1002).

In State v. Scott, the defendant asserted that the trial court erred by allowing

a deputy to testify concerning the contents of his arrest or police report. 27,104, p.

6 (La. App. 2 Cir. 6/21/95), 658 So.2d 251, 255. Instead, defendant contended that

“the best evidence of the ‘arrest report’ was the report itself.” Id. On appeal, the

Louisiana Second Circuit Court of Appeal found the defendant’s reliance on the

best evidence rule to be “inappropriate,” because “[t]he broad best evidence rule

upon which defendant relie[d] no longer exists.” Id. at p. 7, 658 So.2d at 255.

Similar to the defendant in Scott, K.B. asserts in his Appellant Brief that because

“the video at issue was available, there was no need for a witness to testify as to its

content.” Like in Scott, K.B.’s argument is misguided because it relies on the

version of the best evidence rule that no longer exists. That is, the juvenile court

29

did not err in admitting Detective McKay’s testimony about the video surveillance

footage on the ground that the footage itself was also available.

Moreover, La. C.E. art. 1002 applies when a party is attempting “[t]o prove

the content” of the evidence. As the analysis regarding K.B.’s first assignment of

error reveals, Detective McKay’s testimony about the video surveillance footage

served to lay the foundation for its admissibility under La. C.E. art. 901, not as a

summary of its contents. Instead, the State offered the video surveillance footage

itself into evidence as proof of the content therein contained.

Competency of Detective McKay to Testify

In his second assignment of error, K.B. also asserts that Detective McKay

was not a competent witness. He contends that “[i]t does not appear the [sic]

Detective McKay developed personal knowledge so as to be a competent witness

to testify as to the contents of the video.” Also, more broadly, K.B. argues that

“[i]n this case there was no evidence introduced that Detective McKay had any

personal knowledge of the case.”

Louisiana Code of Evidence Article 601 provides for a “[g]eneral rule of

competency” by stating that “[e]very person of proper understanding is competent

to be a witness except as otherwise provided by legislation.” One exception is that

“[a] witness may not testify to a matter unless evidence is introduced sufficient to

support a finding that he has personal knowledge of the matter. Evidence to prove

personal knowledge may, but need not, consist of the testimony of the witness

himself.” La. C.E. art. 602. “A key determination to be made is whether the

witness is able to understand the difference between truth and falsehoods.” State v.

Woodberry, 2014-0476, p. 22 (La. App. 4 Cir. 6/3/15), 171 So.3d 1082, 1096

(quoting State v. Deutor, 2002-1869, pp. 6-7 (La. App. 4 Cir. 3/19/03), 842 So.2d

30

438, 442). “[G]reat weight is given to the trial judge’s determination of

competency because of his [or her] opportunity to see and hear the witness. The

trial court’s decision should not be overturned absent manifest error.” State v.

Willars, 27,394, p. 10 (La. App. 2 Cir. 9/27/95), 661 So.2d 673, 682 (citing State v.

Bean, 582 So.2d 947, 952 (La. App. 2nd Cir. 1991)).

For example, in State v. Williams, the State showed a video from the time of

the subject shooting to the jury, and “Detective [Shonndell] Fields [(“Detective

Fields”)] simply described what the video depicted: one person pursuing another

from the Scotts’ house across the street to the AutoZone parking lot. Detective

Fields then identified the two people in the video as [the defendant, Tremaine]

Williams and Freddie Scott.” 2022-0710, p. 7 (La. App. 4 Cir. 5/15/23), ___ So.3d

___, ___, 2023 WL 3450945, at *4. On appeal, the defendant argued that Detective

Fields lacked the requisite personal knowledge to testify regarding the events

depicted in the video because she was not an eye-witness to the crime, and the

defendant cited La. C.E. art. 602 in support of his argument. Id. at p. 8, ___ So.3d

at ___, 2023 WL 3450945, at *4. This Court concluded that the district court had

not erred in permitting Detective Fields to testify about the video, explaining that

her “testimony demonstrated that, through her investigation, she gained adequate

personal knowledge of the scene of the shooting, the events of the shooting, and

the persons involved to testify to the contents of the . . . video.” Id.

Likewise, in this matter, the record does not support a finding that the

juvenile court committed manifest error in permitting Detective McKay to testify

about the video surveillance footage. Like Detective Fields, Detective McKay’s

testimony demonstrated that, through her investigation, she gained adequate

personal knowledge to testify about the video surveillance footage. In particular,

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Detective McKay testified that she visited the scene of the carjacking; collected the

video surveillance footage herself; recounted what she had viewed in the footage;

and explained how her investigation eventually led to identifying the perpetrators

in the footage as D.J. and K.B. Moreover, though K.B. argues that Detective

McKay lacked competency “to testify as to the contents of the video,” as discussed

previously, Detective McKay’s testimony served to authenticate the video

surveillance footage, not to prove its contents. In the latter regard, the State entered

the video surveillance footage itself into evidence.

In sum, we conclude that the juvenile court did not err in permitting

Detective McKay to testify about the video surveillance footage. K.B.’s second

assignment of error is without merit.

Assignment of Error Number Three: Whether the Juvenile Court Erred in
Allowing Hearsay Testimony

In his third assignment of error, K.B. contends that the juvenile court “erred

in allowing both Detective McKay and Detective Lunn to offer hearsay testimony

regarding the identification of K.B. as the perpetrator of both offenses charged in

the delinquency petition.” According to K.B., “[t]he testimony of both detectives

made it clear that the identifications were made by unidentified third parties. The

use of hearsay to establish identity was so prejudicial that a new trial is mandated.”

K.B. argues that this deprived him “of his constitutional rights to confront his

accusers and to a fair trial.”

Standard of Review

As with a district court’s ruling on the admissibility of other types of

evidence, the abuse of discretion standard of review applies to a district court’s

ruling on the admissibility of hearsay evidence. State v. Clanton, 2019-0316, p. 8

32

(La. App. 4 Cir. 11/6/19), 285 So.3d 31, 37 (citing State v. Randolph, 2016-0892,

p. 11 (La. App. 4 Cir. 5/3/17), 219 So.3d 425, 433; State v. Brown, 1997-2260, p. 8

(La. App. 4 Cir. 10/6/99), 746 So.2d 643, 648).

Applicable Hearsay Principles

Louisiana Code of Evidence Article 801(C) defines “hearsay” as “a

statement, other than one made by the declarant while testifying at the present trial

or hearing, offered in evidence to prove the truth of the matter asserted.” “Hearsay

is not admissible except as otherwise provided by this Code or other legislation.”

La. C.E. art. 802. However, this Court has held that “[a] police officer, in

explaining his own actions, may refer to statements made to him by other persons

involved in the case. Such statements are admitted not to prove the truth of the

assertion, but to explain the sequence of events leading to the arrest of the

defendant from the viewpoint of the investigating officer.” State v. Keelen, 1995-

0668, p. 6 (La. App. 4 Cir. 2/29/96), 670 So.2d 578, 582 (quoting State v. Watson,

449 So.2d 1321, 1328 (La. 1984)). “A police officer’s testimony may include

information provided by another individual without constituting hearsay only when

it is offered to explain the course of the investigation or the officer’s actions.” State

in Interest of M.B., 2019-0931, p. 11 (La. App. 4 Cir. 2/12/20), 292 So.3d 930,

938-39 (citing Randolph, 2016-0892, p. 12, 219 So.3d at 434).

For example, in State v. Mitchell, the district court upheld the testimony of

Detective Ben Bourgeois (“Detective Bourgeois”) and described it as providing

answers and statements in which he explained that he showed surveillance footage

to the victim’s mother, who stated that she thought that the footage showed the

defendant with her son. 2016-0834, pp. 18-20 (La. App. 1 Cir. 9/21/17), 231 So.3d

710, 725-26. The Louisiana First Circuit Court of Appeal affirmed, concluding that

33

Detective Bourgeois’ testimony did not constitute hearsay and summarizing his

testimony as follows:

The questioning by the State was to elicit the steps Detective
Bourgeois took to develop the defendant as a possible suspect. The
detective explained that he had gotten information that [the victim]
was last seen at the bar, and that he had gotten a copy of the bar
surveillance video. The detective observed [the victim] and an
unknown person leave the bar parking lot around 10:10 p.m. The State
then stated, “Okay. And based on that information, what happened
next, Detective.” Responding in a somewhat extended narrative,
Detective Bourgeois explained that he was able to copy some of the
surveillance video to his cell phone, and showed this video to the
[victim]’s parents. He then stated that [the victim]’s mother saw who
appeared to be the defendant on the video, and that she gave him the
defendant’s cell phone number. The detective then continued to
explain, in narrative form, how he pursued his investigation with the
defendant’s number.

We find, as well, based on the foregoing, that what [the
victim’s mother] told Detective Bourgeois was not hearsay because it
was not offered for the truth of the matter asserted. See La. [C.E.] art.
801(C). Detective Bourgeois was merely setting out how, during his
investigation, each bit of information led to new information, which
led finally to all evidence pointing to the defendant. There is no
indication that Detective Bourgeois’s statement about what [the
victim’s mother] told him was made in order to prejudice the
defendant, but rather how his investigation unfolded. See State v.
Tribbet, 415 So.2d 182, 184-85 (La. 1982); State v. Henson, 351
So.2d 1169, 1170-71 (La. 1977). Such testimonial evidence of a
police officer is admitted not to prove the truth of the out-of-court
statements, but to explain the sequence of events leading to the arrest
of the defendant from the viewpoint of the investigating officer. See
State v. Patton, 2010-1841 (La. App. 1[] Cir. 6/10/11), 68 So.3d 1209,
1220; State v. Taylor, 2007-93 (La. App. 5[] Cir. 11/27/07), 973 So.2d
83, 98, writ denied, 2007-2454 (La. 5/9/08), 980 So.2d 688.

Id. at pp. 19-20, 231 So.3d at 725-26.

Detective McKay

Turning to the testimony in the matter sub judice, when asked whether she

was able to identify the individuals in the video surveillance footage that she had

obtained in her investigation into the carjacking of Ms. Alfonso, Detective McKay

answered affirmatively. After describing how she and other investigating officers

34

identified D.J. as one of the individuals in the video surveillance footage via a

social media account, Detective McKay then testified about her identification of

K.B., and the following colloquy occurred:

Q Detective, I placed before you what State is going to mark as
Exhibit 4. What have I presented to you?

A A still image photo from the in car dash[board] cam[era] that
we received during our investigation.

....

Q How do you know that?

A We were working together as detectives on these cases and the
photo was provided to further my investigation.

Q And were you able to identify who was in that still image?

A Yes.

Q Who was that?

A [K.B.]

As evidenced by the above colloquy, counsel for the State asked Detective McKay

whether she was able to identify who was in the image from the dash camera

footage, and she answered affirmatively. That is, contrary to K.B.’s contention,

Detective McKay never testified that another unidentified officer or third party

identified K.B. for her. Rather, and analogous to the detective’s testimony in

Mitchell, she merely described the sequence of events leading to her identification

of K.B. from her viewpoint as the investigating officer.

Detective Lunn

Turning to K.B.’s contention regarding Detective Lunn, we note at the outset

that counsel for K.B. did not object on hearsay grounds after Detective Lunn

testified that he ultimately identified the individual in the still image from Mr.

35

Willhide’s dashboard camera as K.B. Rather, counsel for K.B. objected on Prieur

grounds to Detective Lunn’s reference to “other districts [sic] investigations” but

did not lodge a hearsay objection following Detective Lunn’s testimony that he

identified K.B. The only time counsel for K.B. objected on hearsay grounds during

Detective Lunn’s testimony is when counsel for the State asked Detective Lunn

how he confirmed that the dashboard camera was from Mr. Willhide’s car, and

Detective Lunn began to respond, “So when we found it - - I believe my sergeant

noticed it was a dash[board] camera, so he contacted the officer and asked him if

he had - - .” The juvenile court did not have a chance to rule on this objection

before counsel for the State instead asked Detective Lunn whether he had an

opportunity to review the footage obtained from Mr. Willhide’s dashboard camera,

and Detective Lunn responded in the affirmative and then described what he had

viewed on the footage. On appeal, however, K.B.’s contention that hearsay

occurred during Detective Lunn’s testimony is centered on the argument that “the

identifications [of K.B.] were made by unidentified third parties,” not about

Detective Lunn’s confirmation that the dashboard camera came from Mr.

Willhide’s car. (Emphasis added).

As stated in La. C.Cr.P. art. 841, “[a]n irregularity or error cannot be availed

of after verdict unless it was objected to at the time of occurrence.” In interpreting

La. C.Cr.P. art. 841, this Court has explained that “[a] new basis for objection

cannot be raised for the first time on appeal.” State in Interest of C.H., 2021-0516,

p. 18, 335 So.3d at 462 (quoting State v. Magrini, 2019-0951, p. 26 (La. App. 4

Cir. 5/27/20), 301 So.3d 525, 540). Thus, we find that the issue of whether

Detective Lunn’s identification of K.B. constituted hearsay was not preserved for

36

review. See State ex rel. L.T., 1999-487, p. 8 (La. App. 3 Cir. 10/13/99), 747 So.2d

148, 153 (citing La. C.Cr.P. art. 841).

Regardless, we note that Detective Lunn never testified that another officer

or anyone else identified K.B. for him. Rather, Detective Lunn explained that after

recovering Mr. Willhide’s dashboard camera, he was able to capture an image of

one of the two perpetrators from the footage. Thereafter, the following colloquy

occurred:

Q Okay. So you were able to capture the images -- you were able
to capture that image?

A Yes, it should be saved to a disc and everything.

Q Okay. Were you able to identify that person?

A I was later on through some other districts investigations as
well.

....

Q And were you able to identify the person in that still shot?

A Yes, I was.

Q And who was that person?

A [K.B.]

Like the detective in Mitchell and like Detective McKay, Detective Lunn laid out

how the course of his investigation led to identifying K.B. Again, contrary to

K.B.’s assertion, Detective Lunn did not testify that someone else identified K.B.

for him.

Similarly, we find that the juvenile court did not err in failing to sustain the

hearsay objection lodged to Detective Lunn’s response to how he confirmed that

the dashboard camera came from Mr. Willhide’s car. Like in Mitchell, Detective

Lunn’s testimony about how he confirmed that the dashboard camera came from

37

Mr. Willhide’s car was an explanation about the course of his investigation. See

also State v. Coleman, 32,906, p. 27 (La. App. 2 Cir. 4/5/00), 756 So.2d 1218,

1239 (wherein a deputy testified that “[w]e learned that through the course of

investigation. The day of the murder he has three other witnesses to count [sic] for

his whereabouts, where he was at the approximate time of the murders;” and the

Louisiana Second Circuit Court of Appeal concluded that this did not constitute

hearsay, explaining that “[t]he State correctly argues that [the deputy] was

testifying as to the results of his investigation.”)

Accordingly, we conclude that that K.B’s third assignment of error lacks

merit.

Assignment of Error Number Four: Whether the Juvenile Court Committed an
Error Patent in Failing to Conduct a Disposition Hearing Without a Waiver
from K.B. or His Counsel

In his fourth and final assignment of error, K.B. contends that “[t]he

[juvenile court] erred in failing to conduct a disposition hearing and then imposing

a non-mandatory maximum disposition without a waiver of the hearing by either

K.B. or his counsel.” K.B. points out that although counsel for his co-defendant

waived the disposition hearing, neither he nor his counsel waived it. For the

following reasons, we agree.

Louisiana Children’s Code Article 892 provides, in pertinent part, that

“[p]rior to entering a judgment of disposition, the court shall conduct a disposition

hearing. The disposition hearing may be conducted immediately after the

adjudication and shall be conducted within thirty days after the adjudication.” The

purpose of the hearing is to ascertain whether the juvenile needs treatment or

rehabilitation. State in Interest of W.B., 2016-0642, p. 5, 206 So.3d at 978 (citing

State in Interest of T.E., 2011-1172, p. 2 (La. App. 4 Cir. 9/19/12), 100 So.3d 963,

38

964). See also State in Interest of J.A.J., 2013-245, p. 9 (La. App. 5 Cir. 10/30/13),

128 So.3d 449, 454-55 (citing State in Interest of C.D., 1995-160, p. 6 (La. App. 5

Cir. 6/28/95), 658 So.2d 39, 41-42). The juvenile can waive the disposition

hearing. State in Interest of W.B., 2016-0642, p. 5, 206 So.3d at 978. However, the

waiver must be clear. See State in Interest of R.J.H., 2021-20, p. 37 (La. App. 3

Cir. 5/5/21), 319 So.3d 964, 985; State in Interest of C.C.H., 2021-19, p. 40 (La.

App. 3 Cir. 5/5/21), 319 So.3d 940, 963; State ex rel. T.W., 2009-532, p. 9 (La.

App. 3 Cir. 10/7/09), 21 So.3d 465, 472 (citing State ex rel. K.G., 34,535, p. 15

(La. App. 2 Cir. 1/24/01), 778 So.2d 716, 726). Additionally, neither silence on the

part of the juvenile’s counsel nor a failure to object constitutes a waiver. State in

Interest of W.B., 2016-0642, p. 5, 206 So.3d at 978-79 (citing State in the Interest

of O.R., 1996-890, p. 6 (La. App. 5 Cir. 2/25/97), 690 So.2d 200, 202; State ex rel.

K.G., 34,535, p. 15, 778 So.2d at 726; State in Interest of T.H., 2014-179, pp. 12-

18 (La. App. 3 Cir. 6/4/14), 140 So.3d 911, 919-23).

Moreover, a juvenile “[j]udge’s familiarity with the juvenile does not

dispense with the need for a disposition hearing.” State in Interest of O.R., 1996-

890, p. 6, 690 So.2d at 202. The Louisiana Fifth Circuit Court of Appeal has held

that even if a juvenile court judge is “well acquainted with [the juvenile] and his

‘long and lengthy history with the court,’” the juvenile court must hold a

disposition hearing prior to entering a judgment of disposition. Id. at p. 5, 690

So.2d at 202 (citing La. Ch. C. art. 892). Likewise, the Louisiana Third Circuit

Court of Appeal has held “that familiarity with a juvenile and a lengthy history

with the [juvenile] court does not absolve the [juvenile] court from conducting a

disposition hearing.” State ex rel. T.W., 2009-532, pp. 9-10, 21 So.3d at 472. If a

juvenile court fails to conduct a disposition hearing, this constitutes an error patent,

39

and the appellate court should remand the matter for the juvenile court to conduct a

disposition hearing. State in Interest of W.B., 2016-0642, pp. 5-6, 206 So.3d at

978-79.

Our review of the transcript of the March 20, 2023 hearing reveals that K.B.

is correct that neither he nor his counsel waived La. Ch. C. art. 892’s requirement

of a disposition hearing. Instead, when the juvenile court asked about “waiving

delays,” only counsel for D.J. responded in the affirmative. K.B. and his counsel

did not say anything in response. Additionally, although the juvenile court noted its

familiarity with K.B., jurisprudence has held that this does not absolve the court of

conducting the hearing. Thus, we conclude that the juvenile court erred in failing to

conduct a hearing prior to entering a judgment of disposition regarding K.B. and

that this constituted an error patent. Accordingly, we remand this matter for the

juvenile court to conduct a disposition hearing.

DECREE

For the foregoing reasons, we affirm K.B.’s adjudication of delinquency;

vacate his disposition; and remand for further proceedings consistent with this

Opinion.

AFFIRMED IN PART; VACATED IN PART; AND REMANDED WITH
INSTRUCTIONS

40