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State v. Handy

Court of Appeals of Louisiana, Fourth Circuit

September 13, 2017

STATE OF LOUISIANA
v.
TYRONE HANDY

          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 514-685, SECTION "C" Honorable Benedict J. Willard, Judge.

          LEON A. CANNIZZARO, JR. DISTRICT ATTORNEY, ORLEANS PARISH DONNA ANDRIEU Assistant District Attorney Chief of Appeals J. TAYLOR GRAY Assistant District Attorney COUNSEL FOR STATE/APPELLEE

          ANTHONY J. IBERT J.C. LAWRENCE & ASSOCIATES COUNSEL FOR DEFENDANT/APPELLANT.

          Court composed of Chief Judge James F. McKay III, Judge Edwin A. Lombard, Judge Daniel L. Dysart

          JAMES F. MCKAY, III CHIEF JUDGE.

         The defendant appeals his conviction and asserts numerous assignments. Based on the record before this Court, vital portions of the voir dire transcript are unavailable, which warrants the vacating of the defendant's conviction and sentence and the remanding of the matter for a new trial. A full analysis and discussion follows below.

         STATEMENT OF CASE

         On January 16, 2013, the State charged Tyrone Handy (defendant) with possession with intent to distribute cocaine, a violation of La. R.S. 40:967(B)(1); possession of marijuana, third or subsequent offense, a violation of La. R.S. 40:966(E)(c)(i); and misdemeanor possession of drug paraphernalia, a violation of La. R. 40:1023(C).

         The defendant pled not guilty to all charges at his arraignment on January 22, 2013.

         On October 25, 2013, the court granted the State's Prieur motion.

         On February 6, 2014, the trial court denied the defendant's motions to suppress the statement and evidence and found probable cause for possession with intent to distribute cocaine, possession of marijuana and misdemeanor possession of drug paraphernalia.

         On May 20, 2015, the trial court denied the defendant's Motion to Reveal the Identities of the Confidential Informants ("CI").

         On May 21, 2015, the jury found the defendant guilty of attempted possession with intent to distribute cocaine and possession of marijuana, second offense. The trial judge found the defendant guilty of misdemeanor possession of drug paraphernalia.

         On June 29, 2015, the defendant filed a Motion for New Trial, which the court denied July 9, 2015.

         On September 4, 2015, the judge sentenced the defendant to thirteen years for attempted possession with intent to distribute cocaine; two years at hard labor for possession of marijuana, second offense; and six months for misdemeanor possession of drug paraphernalia, sentences to run concurrently. That same day, pursuant to La. R.S. 15:529.1 (Louisiana Habitual Offender Law), the State multiple billed the defendant charging him as a fourth felony offender.

         On March 3, 2016, the defendant was adjudicated a third felony offender based upon one prior conviction for distribution of cocaine and another prior conviction for attempted possession with intent to distribute cocaine. The trial judge vacated the defendant's previous sentences and resentenced him to thirty years.

         STATEMENT OF FACT

         Detective Gabriel Favaroth of the Major Case Narcotics Division recounted that his investigation in the instant prosecution began on November 14, 2012, when he received information from a "CI" that "Brother" (A.K.A. Tyrone Handy) was selling crack cocaine at the LaQuinta Inn on the I-10 Service Road in New Orleans East. Detective Favaroth set up a controlled buy from "Brother," who was dealing from room 408. Detective Favaroth drove the CI to the location, searched him for contraband and then provided the CI with marked bills to make the purchase. Detective Favaroth accompanied the CI to the fourth floor of the inn to observe the purchase from a concealed vantage point in the hallway. The CI gave the suspect $200.00 in marked bills. The suspect handed narcotics to the CI, who then returned to Detective Favaroth, surrendered the narcotics and left the area. Detective Favaroth relocated to police headquarters and deposited the contraband in Central Property and Evidence under item number K19419-12. Two days after the controlled buy, Detective Favaroth obtained a search warrant for the room from which the defendant, aka "Brother," sold the narcotics to the CI.

         Detective Favaroth learned the defendant would frequent the LaQuinta Inn between noon and 10:00 p.m. and drove a white Tundra truck, which had red cardboard mounted in the area the license plate should have been, so Detective Favaroth positioned officers in the 12000 block of the I-10 service road, while he waited near the Bullard Avenue off-ramp, to intercept the defendant before he could make it to the LaQuinta Inn. When Detective Favaroth spotted the defendant's vehicle, he radioed the other officers. Detective Henly stopped the defendant on the service road and relocated him to the inn's parking lot. Detective Favaroth gave the defendant the warrant to search room 408. The defendant surrendered the room key to Detective Favaroth.[1] The defendant remained with Sergeant Anthony Rome in the parking lot while Detective Favaroth and other officers proceeded to search room 408. Detective Favaroth knocked on the door. When he received no reply, he entered the room. After confirming the room was empty, Detective Favaroth radioed Detective Henly to bring a narcotics dog to the room. Officers confiscated a digital scale, a razorblade, baking soda, one glass beaker and five plastic sandwich bags containing white rock-like substances. Detective Favaroth retrieved one bag of vegetable matter plus $531.00 from the defendant's pocket, all of which were deposited in Central Property and Evidence. Detective Derrick Burke also assisted Detective Favaroth in securing room 408, and in the execution of the search warrant obtained for that room. Detective Burke testified that based on his observation, expertise and training he concluded that the defendant was making crack cocaine and packaging it for distribution.

         Detective Joseph Hazelett of the NOPD Major Case Narcotics Unit participated in this investigation. Detective Hazelett and other officers accessed room 408 with a key given to them by the defendant. Several days after the defendant's arrest, Detective Hazelett accompanied Detective Favaroth and Sergeant Rome to the LaQuinta Inn, seeking footage from video surveillance of the inn; however, the surveillance camera on the fourth floor was not working at the time of the incident.

         Sergeant Anthony Rome of the Major Narcotics Unit was part of the takedown unit, which apprehended the defendant driving a white Toyota Tundra truck. Sergeant Rome transported the defendant to the LaQuinta Inn. Sergeant Rome testified that several days after the search and the defendant's arrest, he returned to the LaQuinta Inn in search of security camera footage, but none was located because the video system on the fourth floor was not operational during the time period.

         Deputy Chris Henly, was an NOPD Major Case Narcotics Detective in 2012. He assisted in the operation by stopping the defendant's vehicle. He also relocated to room 408 at the LaQuinta with his canine who alerted to the presence of narcotics in the entertainment center where four bags of crack cocaine were retrieved.

         Glen Gilyot testified by stipulation as an expert in the examination and analysis of controlled substances. Gilyot tested the contraband containing varying amounts of rock-like substances - cocaine, and one bag of vegetative material -marijuana. Gilyot also said that a scale and razorblade seized in this case contained cocaine residue.

         The defense witness Ms. Anastasia Brown testified that she was the front desk manager of the LaQuinta Inn in New Orleans East in November 2012. She testified that room 408 was not rented to the defendant on that day but rather to a woman whose name she could not recall. Ms. Brown stated that the video surveillance system for the entire inn, contrary to the officer's testimony, was operational on November 19, 2012, and that the police did not ask to view any surveillance videos. She said she was sure the system was working because she was responsible for its maintenance.

         Mr. Gene Durand testified that he was the general manager of the LaQuinta Inn in November 2012. Durand said his employment at the inn began at the beginning of November 2012, and at that time the surveillance cameras were not recording the activity on the premises, only monitoring the area. He verified that there were incidents of prostitution at the inn. He added that the lock on the back door to the inn did not lock properly in November 2012 so that anyone could access the inn undetected.

         NOPD Detective Darren Brazley testified that from June 2012 to the time of the trial there were approximately one hundred 911 calls concerning the La Quinta Inn reporting drug activity.

         ERRORS PATENT

         A review for errors patent on the face of the record reveals one. The defendant's sentence is illegally lenient. The defendant was adjudicated a third felony offender for his conviction of attempted possession with intent to distribute cocaine, La. R.S. 40:(979)967(A)(1), and was sentenced to thirty years.

         Louisiana's Habitual Offender Law provides that any sentence imposed thereunder shall be without benefit of probation or suspension of sentence. See La. R.S. 15:529.1(G). In this case, the trial judge failed to restrict those benefits when sentence was imposed. However, La. R.S. 15:301.1(A) provides that in instances where the statutory restrictions are not recited at sentencing, they are deemed contained in the sentence whether or not specified by the sentencing court, and are therefore statutorily effective. Pursuant to State v. Williams, 2000-1725, pp. 10-11 (La.11/28/01), 800 So.2d 790, 798-799, the sentence is deemed to have been imposed with the restriction of benefits even in the absence of the district court delineating them. Accordingly, there is no need for corrective action.

         ASSIGNMENT OF ERROR NUMBER 1

         In his first assignment of error, the defendant argues he is entitled to reversal of his conviction and sentence, and a new trial, because the record in this matter is incomplete, given that the voir dire transcript does not provide a basis upon which it can be determined whether his challenge for cause was improperly denied by the trial court.

         La. Const. art. I § 19 guarantees defendants a right of appeal "based upon a complete record of all evidence upon which the judgment is based." Additionally, La. C.Cr.P. art. 843 provides in pertinent part:

In 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.

         Nonetheless, an incomplete record may be adequate for full appellate review. State v. Thomas, 92-1428, 93-2083, p. 2 (La.App. 4 Cir. 5/26/94), 637 So.2d 1272, 1274.

         The Louisiana Supreme Court enunciated a three-part standard for reviewing incomplete record claims. State v. Frank, 99-0553, pp. 20-21 (La. 1/14/01), 803 So.2d 1, 19-20. First, "[m]aterial omissions from the transcript of the proceedings at trial bearing on the merits of an appeal will require reversal." id., 99-0553, p. 20-21, 803 So.2d at 19-20 (citing State v. Robinson, 387 So.2d 1143 (La. 1980) (finding omissions material as substantial portions of the record were missing, including the testimony of four state witnesses, voir dire examination of prospective jurors, and the prosecutor's opening statements)); See also State v. Diggs, 93-0324 (La.App. 4 Cir. 6/29/95), 657 So.2d 1104 (finding unavailability of witness testimony required a new trial because it could not be determined whether the missing testimony was substantial or inconsequential).

         Second, "inconsequential omissions or slight inaccuracies do not require reversal." Frank, 99-0553, p. 21, 803 So.2d at 20 (citing State v. Goodbier, 367 So.2d 356, 357 (La. 1979) (declining to reverse when record did not include voir dire examination transcript and the court reporter's affidavit indicated that no objections were made by the attorneys during voir dire); See also State v. Lyons, 597 So.2d 593 (La.App. 4th Cir. 1992).

         Third, "a defendant is not entitled to relief because of an incomplete record absent a showing of prejudice based on the missing portions of the transcripts. Frank, 99-0553, p. 21, 803 So.2d at 20 (citing State v. Castleberry, 98-1388, p. 29 (La. 4/13/99), 758 So.2d 749, 773). "Prejudice is presumed when a defendant's challenge for cause is erroneously denied by a trial court and that defendant exhausts his peremptory challenges." State v. Thomas, 14-0510, p. 17 (La.App. 4 Cir. 5/20/15), 171 So.3d 959, 971 (citing State v. Odenbaugh, 10-0268, p. 24 (La. 12/6/11), 82 So.3d 215, 237).

         In this case, the court reporter filed a certificate dated January 25, 2017, attesting that she was unable to provide a transcript of the in-chamber proceedings regarding the preemptory and cause challenges because her computer "crashed." The portions of the voir dire that are transcribed concern objections during the panel questioning. However, the portions of the record pertaining to the trial court's consideration of peremptory and cause challenges are not included. The record contains an affidavit from defendant's trial counsel certifying the defense exercised all of its preemptory challenges on potential jurors 2, 9, 10, 12, 16, 20, 25, 28, 30, 32 and 34 of the venire; the defense challenged potential juror 20 for cause, which was denied by the court; and the State challenged potential juror 21 for cause which was granted, over defense objection.

         In State v. Pinion, 2006-2346 (La. 10/26/07), 968 So.2d 131, the record contained neither a transcript of the bench conferences nor any documentation showing which jurors were challenged for cause by the defense or stricken by the defense with peremptory challenges. The Supreme Court found that although there was evidence in the record that the defense exhausted its peremptory challenges, the lack of any documentation, i.e., minutes or jury strike sheets, as to the challenges for cause prejudiced the defendant. Id., 06-2346, p. 9, 968 So.2d 131, 135. Therefore, the Supreme Court reversed the ...


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