State in the Interest of J.C.R.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-1146

STATE IN THE INTEREST OF

J.C.R.

**********

APPEAL FROM THE
OPELOUSAS CITY COURT
PARISH OF ST. LANDRY, NO. JV9886
HONORABLE VANESSA HARRIS, CITY COURT JUDGE

**********

DAVID KENT SAVOIE
JUDGE

**********

Court composed of Marc T. Amy, John E. Conery, and David Kent Savoie, Judges.

ADJUDICATION AND DISPOSITION VACATED. REMANDED FOR
FURTHER PROCEEDINGS.

Annette Roach
Louisiana Appellate Project
P. O. Box 1747
Lake Charles, LA 70602-1747
(337) 436-2900
COUNSEL FOR DEFENDANT/APPELLANT:
J. C. R.

C.J. “Rusty” Ashley, II
Assistant District Attorney
P. O. Box 1999
Opelousas, LA 70571
(337) 948-2570
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

SAVOIE, Judge.

On February 28, 2014, the State filed a petition alleging that the Juvenile,

J.C.R., had violated La.R.S. 14:54.6, communication of false information

regarding a planned bombing on school property.1 Thus, the petition prayed that

he be adjudicated a delinquent. On July 16, the adjudication hearing began in

Opelousas City Court, and the second day of the hearing was July 24. The final

day of the hearing was August 13.

On September 3, 2014, the court held a dispositional hearing and ordered the

Juvenile to serve thirty-six months, suspended, with active supervised probation

for twenty-four months and a number of special conditions, including an 8 p.m.

curfew.

The Juvenile now seeks review by this court, assigning four errors. For the

following reasons, J.C.R.’s adjudication and disposition is vacated and the case is

remanded for further proceedings.2

FACTS

On February 26, 2014, an Opelousas 911 operator received a telephone call

that indicated there was a bomb at Opelousas Junior High School. One of the

Juvenile’s classmates testified that the Juvenile borrowed his phone on the day the

bomb threat was made. The Juvenile took the phone into the school’s locker room;

when he returned it, its screen showed that it was in “emergency mode.” Another

classmate testified he was in the locker room and heard the Juvenile make the

bomb threat.

1
The Juvenile is referenced by use of initials per Uniform Rules-Courts of Appeal, Rule
5-2.
2
It should be noted that we have reviewed the record for errors patent and find several,
however, our ruling regarding the assignments of error render the errors patent moot.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the Juvenile argues the evidence adduced

against him at the hearing below was insufficient to support his adjudication as a

delinquent. The analysis for such claims is settled:

When the issue of sufficiency of evidence is raised on appeal,
the critical inquiry of the reviewing court is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100
S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King,
436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982);
State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact
finder to weigh the respective credibility of the witnesses, and
therefore, the appellate court should not second guess the credibility
determinations of the triers of fact beyond the sufficiency evaluations
under the Jackson standard of review. See State ex rel. Graffagnino,
436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228
(La.1983)). In order for this Court to affirm a conviction, however,
the record must reflect that the state has satisfied its burden of proving
the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

We are unable to conduct the analysis, as video and audio exhibits played

during the adjudication hearing were not entered into evidence and thus are not

part of the record on appeal. The recordings were clearly important. Various

witnesses were asked by the State to identify themselves and the Juvenile on the

video recording or to identify his voice on the audio recording from 911. His

parents testified that the voice on the 911 tape was not his. The supreme court has

stated:

Both this court and the United States Supreme Court have made
clear that a criminal defendant has a right to a complete transcript of
the trial proceedings, particularly where appellate counsel was not
counsel at trial. State v. Deruise, 98-0541, p. 11 (La.4/3/01), 802
So.2d 1224, 1234, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151
L.Ed.2d 208 (2001), citing Hardy v. United States, 375 U.S. 277, 84
S.Ct. 424, 11 L.Ed.2d 331 (1964) and State v. Robinson, 387 So.2d

2

1143 (La.1980). The Louisiana State Constitution guarantees that
“[n]o person shall be subjected to imprisonment ... without the right of
judicial review based upon a complete record of all evidence upon
which the judgment is based.” LSA-La. Const. art. I § 19.
Additionally, in all felony cases, the clerk or court stenographer shall
record all of the proceedings, including the examination of
prospective jurors, the testimony of witnesses, statements, rulings,
orders, and charges by the court, and objections, questions,
statements, and arguments of counsel. LSA-C.Cr.P. art. 843. The
court reporter shall record all portions of the proceedings required by
law and shall transcribe those portions of the trial proceedings
required. LSA-R.S. 13:961(C).

Material omissions from the transcript of the proceedings at
trial bearing on the merits of an appeal require reversal. State v.
Landry, 97-0499 (La.6/29/99), 751 So.2d 214; Robinson, 387 So.2d at
1144. Although this court has found reversible error when material
portions of the trial record were unavailable or incomplete, a “slight
inaccuracy in a record or an inconsequential omission from it which is
immaterial to a proper determination of the appeal” does not require
reversal of a conviction. State v. Brumfield, 96-2667, pp. 14-16
(La.10/28/98), 737 So.2d 660, 669, cert. denied, 526 U.S. 1025, 119
S.Ct. 1267, 143 L.Ed.2d 362 (1999); State v. Parker, 361 So.2d 226,
227 (La.1978). A defendant is not entitled to relief because of an
incomplete record absent a showing of prejudice based on the missing
portions of the transcript. State v. Castleberry, 98-1388, p. 29
(La.4/13/99), 758 So.2d 749, 773, cert. denied, 528 U.S. 893, 120
S.Ct. 220, 145 L.Ed.2d 185 (1999); State v. Hawkins, 96-0766, p. 8
(La.1/14/97), 688 So.2d 473, 480.

State v. Boatner, 03-485, pp. 4-5 (La. 12/3/03), 861 So.2d 149, 152-53.

The supreme court has also stated:

[I]n State v. Landry, 97-0499 (La.6/29/99), 751 So.2d 214, a
combination of loud construction noise at the courthouse and audio
recording problems on the part of the court reporter rendered the
record grossly incomplete in several respects, including the failure to
record peremptory strikes and challenges for cause made at the bench.
Landry, 97-0499 at 1-2, 751 So.2d at 215. This Court reversed the
defendant’s capital conviction and sentence and remanded for a new
trial because the deficiencies deprived the defendant of his
constitutional right of appeal and judicial review. Landry, 97-0499 at
4, 751 So.2d at 216. The Court thereby reaffirmed that “it is not the
defendant’s obligation to insure an adequate record . . . . it is the duty
of the court . . . . to see that the court reporter makes a true, complete
and accurate record of the trial.” Landry, 97-0499 at 3, 751 So.2d at
216 (citing American Bar Association Standards Relating to the
Function of the Trial Judge, § 2.5 (1972)).

3

In the present case, the trial court and not defense counsel had
the duty to insure that the bench conferences involving jury selection
were properly recorded because La.C.Cr.P. art. 795(B)(2) required
that counsel for the state and defense exercise their peremptory
challenges in side bar conferences out of the hearing of jurors, and
further required that the court refrain from attributing the strikes to
either side on the record when excusing the jurors. Counsel therefore
could reasonably assume that the court had taken adequate steps to
preserve the record of the side-bar conferences for appeal just as
counsel could reasonably assume that the evidentiary portions of trial
were also adequately recorded and preserved for review. Counsel
could also reasonably assume that the court had discharged its
correlative duty of insuring that the minutes of the proceedings would
conform to the requirements for the lodging of appeals in criminal
cases in the courts of appeal and this Court. . . .

State v. Pinion, 06-2346, pp. 9-10 (La. 10/26/07), 968 So.2d 131, 135.

It is not possible to perform a genuine sufficiency review without the video

and audio recordings that were used at trial. Even if the city court could provide

this court with the recordings, we could not review them because they were not

entered into the record. Evidence outside the record may not be reviewed by

appellate courts. See, e.g., State v. Hilaire, 216 La. 972, 45 So.2d 360 (1950).

Viewing the clear practical difficulty presented by the incomplete record in

light of Pinion, Landry, and Boatner, the Juvenile’s adjudication and disposition is

vacated and the case is remanded for further proceedings.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, the Juvenile alleges that his trial counsel

was ineffective for failing to seek relief in the city court due to the untimeliness of

the adjudication hearing. Regarding ineffective assistance, a sister circuit has

explained:

The right of a defendant in a criminal proceeding to the
effective assistance of counsel is mandated by the Sixth Amendment
to the U.S. Constitution. State v. Wry, 591 So.2d 774 (La.App. 2d
Cir.1991). A claim of ineffectiveness of counsel is analyzed under the

4

two-prong test developed by the United States Supreme Court in
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984).

To establish that his attorney was ineffective, the defendant first
must show that counsel’s performance was deficient. The assessment
of an attorney’s performance requires his conduct to be evaluated
from counsel’s perspective at the time of the occurrence. A reviewing
court must give great deference to trial counsel’s judgment, tactical
decisions and trial strategy, strongly presuming he has exercised
reasonable professional judgment. State v. Moore, 575 So.2d 928
(La.App. 2d Cir.1991).

Second, the defendant must show that counsel’s deficient
performance prejudiced his defense. This element requires defendant
to establish that but for counsel’s unprofessional errors, there is a
reasonable probability the outcome of the trial would have been
different. Strickland, supra[.]

State v. Kinsey, 42,935, p. 9 (La.App. 2 Cir. 2/13/08), 976 So.2d 315, 320.

In his attempt to demonstrate trial counsel’s ineffectiveness, the Juvenile

cites La.Ch.Code art. 877:

A. When the child is charged with a crime of violence as
defined in R.S. 14:2(B) and the child is continued in custody pursuant
to Chapter 5 of this Title, the adjudication hearing shall commence
within sixty days of the appearance to answer the petition. In all other
cases, if the child is continued in custody pursuant to Chapter 5 of this
Title, the adjudication hearing shall commence within thirty days of
the appearance to answer the petition.

B. If the child is not continued in custody, the adjudication
hearing shall commence within ninety days of the appearance to
answer the petition.

C. If the hearing has not been commenced timely, upon motion
of the child, the court shall release a child continued in custody and
shall dismiss the petition.

D. For good cause, the court may extend such period.

The Juvenile notes that he answered the petition on March 12, 2014, and he

was released back to his parents, with electronic monitoring. The matter was set

for hearing on April 23, but on that date, it was reset to July 16. On the latter date,

5

two witnesses testified, and the matter was recessed until July 24. More witnesses

testified at the July hearing, then the matter was recessed until August 13; on this

final date, the city court adjudicated the Juvenile a delinquent.

The Juvenile cites an opinion from this court which recognized a violation of

La.Ch.Code 877 as an error patent:

Commenting upon Article 877 of the Louisiana Children’s
Code, Justice Marcus, writing for the majority, stated:

[T]he Children’s Code builds in a mechanism in
La.Ch.Code art. 877(D) for the state to obtain an
extension of the time limits to commence the
adjudication hearing by making a showing of good cause.
Under this article, there is no need for the state to dismiss
and then justify its refiling after the period has run;
rather, it is incumbent on the state to make a showing
of good cause and obtain an extension before the
period has run. In the event that a good cause
extension is not granted and the period runs out, the state
may not refile its petition. Otherwise, the good cause
requirement of La.Ch.Code art. 877(D) would be
rendered meaningless, since the state could always
circumvent an adverse decision by simply dismissing and
refiling the petition.

State in Interest of R.D.C., Jr., 93-1865 (La. 2/28/94), 632 So.2d
745,748 (bold emphasis added) (footnote omitted).

As provided in La.Ch.Code art. 107, “[t]he word ‘shall’ is
mandatory, and the word ‘may’ is permissive.” See e.g., State ex rel.
L.A., 09-1029, 09-1030 (La.App. 4 Cir. 12/9/09), 28 So.3d 515.
Accordingly, from our review of the pleadings and the proceedings in
the record before us, K.E.C.’s adjudication hearing was required
under La.Ch.Code art. 877 to have commenced within ninety days of
January 5, 2010, because K.E.C. was not continued in custody. It was
actually set for and took place on April 27, 2010, one hundred eleven
days after he appeared to answer the petition, twenty-one days in
excess of the ninety-day limitation. Moreover, the record further
shows that at no time prior to the expiration of the period in which the
State was required to commence the adjudication hearing did it seek
to extend the period.

Having found that the State failed to seek an extension on the
grounds of good cause before the period for commencing adjudication
ran, we find it readily apparent on the face of the record that the

6

adjudication hearing was not timely commenced as mandated in
La.Ch.Code art. 877. Therefore, under the holding of State in Interest
of R.D.C., Jr., 632 So.2d at 749, particularly its determination that
“La.Ch.Code art. 877 sets out mandatory time limits within which the
adjudicatory hearing must be commenced,” we are compelled to
reverse, vacate, and set aside the trial court’s adjudication of K.E.C. as
delinquent, together with its dispositional ruling, and dismiss the
petition against K.E.C.

State ex rel. K.E.C., 10-953, pp. 4-5 (La.App. 3 Cir. 12/8/10), 54 So.3d 735, 738-

39 (footnotes omitted).

As the Juvenile observes, the record does not show that the State made any

attempt to show good cause or that the city court found that good cause existed to

extend the period for holding the adjudication hearing. However, defense counsel

acknowledges having contacted the city court clerk’s office for clarification of the

record. Counsel states the deputy clerk verbally informed her that the hearing was

reset from April 23 because a State witness was not present for the hearing because

he was in Youth Challenge. The deputy clerk also informed counsel that the

reason the hearing was held on three separate dates was due to unavailability of

witnesses.

As the deputy clerk’s statements to appellate counsel are outside the record,

the city court is ordered to hold a hearing to clarify whether the original

adjudication complied with La.Ch.Code 877. If it did not, then the petition must

be dismissed and cannot be re-filed, as shown by the jurisprudence already

discussed.

In light of the foregoing, the two remaining assignments need not be

discussed.

7

DECREE

As key exhibits from the adjudication hearing were not entered into the

record, the sufficiency of the evidence claim cannot be properly reviewed.

Therefore, J.C.R.’s adjudication and disposition is vacated and the case is

remanded for further proceedings. Further, the city court is ordered to hold a

hearing to clarify whether the original adjudication hearing complied with

La.Ch.Code art. 877. If it did not, then the petition must be dismissed and cannot

be re-filed.

ADJUDICATION AND DISPOSITION VACATED. REMANDED FOR
FURTHER PROCEEDINGS.

8