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State v. Marchiafava

Court of Appeals of Louisiana, Fourth Circuit

August 30, 2017

STATE OF LOUISIANA
v.
NUNZIO MARCHIAFAVA

         APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 518-289, SECTION "J" Honorable Darryl A. Derbigny, Judge

          Leon 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

          Court composed of Judge Terri F. Love, Judge Marion F. Edwards, Pro Tempore, Judge Terrel J. Broussard, Pro Tempore

          TERRI F. LOVE JUDGE

         This 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.

         FACTUAL BACKGROUND

         On 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.

         The 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.

         Inspector 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.

         Mr. 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.

         Inspector 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.

         Inspector 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.

         Inspector 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. 14:133.

         Mr. 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.

         PROCEDURAL HISTORY

         Mr. 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 insufficient.

         The 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).

         Subsequently, Mr. Marchiafava filed a third motion to quash[1] 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.[2] Mr. Marchiafava also alleged that the State had not sufficiently responded to the bill of particulars.

         The 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.

         MOTION TO QUASH

         The 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.

         "La. 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 conduct." Id.

         Mr. 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 ...

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