FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 518-289,
SECTION "J" Honorable Darryl A. Derbigny, Judge
A. Cannizzaro, Jr. DISTRICT ATTORNEY Donna Andrieu Assistant
District Attorney, Chief of Appeals Christopher J. Ponoroff
Assistant District Attorney Parish of Orleans COUNSEL FOR
APPELLANT, STATE OF LOUISIANA
Douglas S. Hammel THE HAMMEL LAW FIRM, LLC COUNSEL FOR
DEFENDANT/APPELLEE, NUNZIO MARCHIAFAVA
composed of Judge Terri F. Love, Judge Marion F. Edwards, Pro
Tempore, Judge Terrel J. Broussard, Pro Tempore
F. LOVE JUDGE
appeal arises from the trial court's granting of
defendant's motion to quash the charge of malfeasance. We
find that the trial court did not err by granting the motion
to quash because there was no violation of an affirmative
duty by the defendant, which is required for malfeasance. The
judgment of the trial court is affirmed.
September 26, 2012, a fatal fire occurred at the Willow Creek
Apartments ("Willow Creek"), formerly known as the
Rusty Pelican Motel, in Grand Isle, Louisiana. Two people
were killed in the fire. This appeal concerns allegations
that on September 27, 2012, Nunzio Marchiafava, a now retired
district fire marshal, falsified a daily activity report to
make it appear that he performed a follow-up inspection at
Willow Creek on May 25, 2012. It is alleged that Mr.
Marchiafava destroyed the original activity log from that
date and created a new one documenting traveling to Grand
Isle to inspect the motel.
investigation into this matter was conducted by Inspector
Heath Humble of the Office of the State Inspector General
after a complaint was received from the Metropolitan Crime
Commission ("MCC"). The MCC complaint alleged that
the Office of the State Fire Marshal ("SFM")
received a complaint regarding Willow Creek. The SFM
complaint alleged that Willow Creek had deplorable conditions
and fire safety hazards prior to the fire that occurred on
September 26, 2012. Further, the MCC complaint contended that
Mr. Marchiafava failed to act on the information.
Humble then conducted an investigation to see what efforts
SFM undertook to investigate the complaints that were
received. Inspector Humble collected records from SFM, which
showed that Mr. Marchiafava was tasked with inspecting Willow
Creek. The records showed that Mr. Marchiafava inspected
Willow Creek on April 2, 2012, and again on May 25, 2012.
Marchiafava documented his purported trip to Grand Isle to
inspect Willow Creek by sending a report via email to his
supervisor on September 27, 2012, the day after the fire. In
his special report/email, Mr. Marchiafava stated that on the
morning May 25, 2012, he conducted a follow-up investigation,
but that he was unable to locate anyone in the building and
the management office was closed, but filled with storage
material. Mr. Marchiafava stated that he spoke to the Chief
of the Grand Isle Fire Department to inform him of his
results. Mr. Marchiafava learned that the Chief had tried
unsuccessfully on a number of occasions to contact Jefferson
Parish Code Enforcement to schedule an inspection.
Humble sought to confirm that these inspections occurred by
examining odometer readings from Mr. Marchiafava's
vehicle. Inspector Humble identified a discrepancy with
respect to the odometer readings from May 25, 2012. Inspector
Humble then obtained Mr. Marchiafava's cell phone
records, which documented that Mr. Marchiafava's cell
phone never left the New Orleans area on May 25, 2012.
Humble also interviewed Mr. Marchiafava's
secretary/administrator Rosalyn Philips, who told him that
she helped Mr. Marchiafava change the date on the daily
activity report in question.
Humble applied for and obtained a warrant from the Nineteenth
Judicial District Court for the Parish of East Baton Rouge
for Mr. Marchiafava's arrest for the crime of filing or
maintaining false public records in violation of La. R.S.
Marchiafava alleges that this case is a misunderstanding. He
contends that he neglected to issue the report regarding his
second attempt at inspecting Willow Creek prior to the fire,
and when he did issue his report, he entered the wrong date,
erroneously stating that his inspection occurred on May 25,
2012. Accordingly, Mr. Marchiafava contends that the charges
stem from a simple clerical error.
Marchiafava was charged with filing false public records and
malfeasance in office. Mr. Marchiafava filed a motion to
quash the bill of information, which was withdrawn. The State
responded to Mr. Marchiafava's request for bill of
particulars. A hearing was held on Mr. Marchiafava's
motions to suppress statement and evidence as well as his
request for a preliminary examination. The trial court took
that matter under advisement. Mr. Marchiafava filed a second
motion to quash and memorandum in support. He alleged that
venue was improper and that the charges were legally
trial court denied the motion to quash and the motions to
suppress evidence and statement. Thereafter, Mr. Marchiafava
sought supervisory review from this Court. This Court denied
his application on the showing made. State v.
Marchiafava, 15-0018, unpub., (La.App. 4 Cir. 3/10/15).
Mr. Marchiafava filed a third motion to quash relying in large
part on Hanson v. Steven Caruso, Willow Creek,
L.L.C., 15-449 (La.App. 5 Cir. 12/23/15) 182 So.3d 1187,
a parallel civil case filed by survivors of the two occupants
who died in the Willow Creek fire. Mr. Marchiafava also alleged
that the State had not sufficiently responded to the bill of
State filed a supplemental response to Mr. Marchiafava's
motion for bill of particulars, wherein it specified that the
basis for the charge of malfeasance in office was Mr.
Marchiafava's falsifying records and submitting a false
report. A hearing was held, and counsel for Mr. Marchiafava
called two state fire marshals, who testified about Mr.
Marchiafava's responsibilities in connection with Willow
Creek. The trial court conducted a second hearing on the
matter. Thereafter, Mr. Marchiafava filed a supplemental and
amending motion to quash in response to the supplemental bill
of particulars, maintaining that the charges against him
subjected him to double jeopardy. The same day that the State
filed a response brief, the trial court granted Mr.
Marchiafava's motion and quashed the charge of
malfeasance in office. The State's appeal followed.
State asserts that the trial court erred in granting Mr.
Marchiafava's motion to quash because he was properly
charged with violating lawful duties. La. C.Cr.P. art. 532
provides that "[a] motion to quash may be based on"
the fact that "[t]he indictment fails to charge an
offense which is punishable under a valid statute."
"In considering the motion to quash, the district court
accepts as true the facts contained in the indictment or bill
of information and in the bill of particulars, and determines
as a matter of law and from the face of the pleadings,
whether a crime has been charged." State v.
Petitto, 10-0581, p. 4 (La. 3/15/11), 59 So.3d 1245,
1248. A trial court's ruling granting or denying a motion
to quash is reviewable for an error of law, thus requiring
the use of the de novo standard of review. State
v. Ancalade, 14-0379, p. 10 (La.App. 4 Cir. 1/14/15),
158 So.3d 891, 897. In deciding a motion to quash a bill of
information, a "trial court is not authorized to make
any factual determinations." State v. Landry,
13-1030, p. 5 (La.App. 4 Cir. 5/7/14), 144 So.3d 1078, 1082.
Likewise, factual defenses going to the merits of the charge
are not proper grounds to be considered when deciding a
motion to quash. Id.
Const. Art. I, § 13 requires the state to inform the
accused in a criminal prosecution of the nature and cause of
the accusation against him." State v. DeJesus,
94-0261, p. 3 (La. 9/16/94), 642 So.2d 854, 855. "The
state may provide the information in the indictment alone, or
in its responses to a defense request for a bill of
particulars." Id. "The purpose of the bill
of particulars is to inform the accused more fully of the
nature and scope of the charge against him so that he will be
able to defend himself properly and to avoid any possibility
of ever being charged again with the same criminal
Marchiafava was charged with malfeasance in office, which is
defined in pertinent part by La. R.S. 14:134 as:
A. Malfeasance in office is committed when any public officer
or public employee shall:
(1) Intentionally refuse or fail to perform any duty lawfully
required of him, as such ...