ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF PLAQUEMINES.
For Applicant: Hon. James D. Caldwell, Attorney General, LOUISIANA DEPARTMENT OF JUSTICE; Hon. Charles J. Ballay, District Attorney, Edward Robert McGowan, Assistant District Attorney, PLAQUEMINES PARISH DISTRICT ATTORNEY'S OFFICE.
For Respondent: Sherry Watters, O'BRYON & SCHNABEL, APLC.
[2014-0432 La. 1] PER CURIAM:
Defendant was charged with two counts of simple burglary in violation of La.R.S. 14:62. After trial before a six-person jury in August 2012, he was found guilty of unauthorized entry of a place of business on count one and not guilty on count two. The trial court sentenced him to six years at hard labor. On appeal, the Fourth Circuit pretermitted other assignments of error and reversed defendant's conviction and sentence on grounds of insufficient evidence. State v. Taylor, 13-0265 (La.App. 4 Cir. 12/18/13), 130 So.3d 439. We granted the state's application to review the decision below and reverse for the reasons that follow.
On March 10, 2010, the Plaquemines Parish Government (PPG) acquired ownership of the state school located at 251 F. Edward Hebert Blvd. in Plaquemines Parish from the Department of Health and Hospitals. The location is a sprawling 341-acre site comprised of several building complexes located close to the line separating Orleans from Plaquemines on the west bank of the Mississippi just across the Intracoastal Waterway and not far from English Turn in Orleans Parish. In January 2011, contractors working at the site reported that the power was off and that copper wire had been removed from one or more of the buildings over the weekend. Detective Paul Durnin responded to the report and determined that [2014-0432 La. 2] the copper wire to three buildings grouped together in one of the complexes on the grounds had been pulled out " from the breakers, all the way through the walls and through the ceiling." It appeared that a vehicle had been used to pull the wire out of the three buildings. " I guess it's too much to pull by hand," the detective testified, " so, actually, [they] hooked up a car to it, and they would run the car maybe 50 or 60 feet and they would pull all the wire out of the building. Go back; do it again." A cigarette lighter was found at the scene near the location of the break-in, along with a pole normally used to shut off electricity by pulling the breakers and isolating the system from the utility grid. In the opinion of Lieutenant Tom Morovich who found the lighter, the evidence appeared to have been a " fresh drop," as the lighter was lying on top of some grass and did not appear to have any rust on it. The police sent the lighter to the Louisiana State Police Laboratory and enough testable DNA was found to develop a profile then uploaded into CODIS [Combined DNA Index System]. The profile matched defendant's DNA profile in CODIS entered after his conviction in 2008 for unauthorized entry of a business.
Less than a month later, a second incident also involving the massive loss of electrical copper wiring occurred at the site in one of the five buildings comprising the Beech Grove complex at the back of the sprawling grounds and farthest away from the entrance on F. Edward Hebert Blvd. Lieutenant Brett Ricks investigated this incident and took a series of photographs documenting the damage to one of the buildings in the complex. One side wall " was almost pulled . . . completely down." The door on that side had been forced inward leaving it barely hanging on its hinges. At a nearby outside transformer, three electrical lines combined in a pipe running underneath the complex had been severed at the box. Inside, at the breaker box controlling the electrical feed to all of the buildings in the Beech Grove complex, the wires had been severed and also stripped out. Holes also had been punched in the ceiling to access conduit
pipes that were then cut to pull out [2014-0432 La. 3] electrical wiring. Left behind was some sort of remote vehicle key pad access device. Also left behind were spots of blood on the otherwise clean linoleum floor inside the building and samples were taken. The DNA found in the sample was matched to defendant's DNA profile in CODIS and a warrant for his arrest issued on the basis of the two preliminary DNA matches. Although he did not photograph any tire tracks on the scene, Ricks thought it likely a vehicle had been used to help strip out the wire in the February 2011 break-in as in the earlier January incident.
Defendant was not arrested for several months, however, and in the interim Detective Durnin did not find any indication that defendant had the authority to be at the scene, that he had been employed by PPG, or that he worked for a contractor for PPG. For that matter, the detective also failed to find any of the missing copper wire. Detective Durnin was present when defendant was taken into custody, advised of his rights, and booked on two counts of simple burglary. Defendant refused to give a statement but indicated he would answer one question. When asked by Lieutenant Ricks if he had ever been in Plaquemines Parish before, defendant replied that he had not. Defendant further explained: " The only time that I've been on the west bank would have been Manhattan Boulevard."
Buccal samples were taken from defendant following his arrest and the DNA profile developed from the swabs confirmed the preliminary CODIS match to defendant's profile developed from the evidence collected after the January and February 2011 incidents. According to Dr. Leslie Son, a forensic DNA analyst for the Louisiana State Police Crime Laboratory, the probability of finding the same DNA profile in the blood samples taken after the February 2011 incident from an unrelated random individual other than defendant was " 1 in 11.2 quadrillion." As for the DNA on the cigarette lighter, Erica Sparacino, another DNA analyst at the state police crime lab, testified that the sample revealed the DNA of at least two individuals and defendant could not be excluded as one of the donors. According [2014-0432 La. 4] to Sparacino, defendant's profile " was present" and " the numerical value for this case was that it is three times more likely to be a profile from Wayne Taylor and a random individual than two unknown unrelated individuals." The state's case on both counts turned on this DNA evidence as it had no other evidence, direct or circumstantial, placing defendant on the scene of either incident.
Defendant did not testify at trial and initially defense counsel sought to establish on cross-examination of Detective Durnin that the complex at 251 F. Edward Hebert Boulevard is located so close to the parish line that anyone might step unwittingly across the line without realizing that he had left Orleans and entered Plaquemines Parish. Counsel thereby sought to minimize the significance of defendant's statement at booking that he had never been in Plaquemines Parish. But the defense that emerged ultimately drew on evidence provided by Scott Lott, Director of Operations at the complex. Lott conceded that security at the site, which was not fenced off but was posted with " No trespass signs" across the front, could not keep pace with " [p]eople trespassing, people hunting, people breaking in. . . . Burglarizing, cutting wire." R., Vol. 2, p. 439. In one such instance, only days after the February 2011 break-in, a black male in a truck who claimed to be going ...