FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 514-685,
SECTION "C" Honorable Benedict J. Willard, Judge.
A. CANNIZZARO, JR. DISTRICT ATTORNEY, ORLEANS PARISH DONNA
ANDRIEU Assistant District Attorney Chief of Appeals J.
TAYLOR GRAY Assistant District Attorney COUNSEL FOR
ANTHONY J. IBERT J.C. LAWRENCE & ASSOCIATES COUNSEL FOR
composed of Chief Judge James F. McKay III, Judge Edwin A.
Lombard, Judge Daniel L. Dysart
F. MCKAY, III CHIEF JUDGE.
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
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).
defendant pled not guilty to all charges at his arraignment
on January 22, 2013.
October 25, 2013, the court granted the State's
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.
20, 2015, the trial court denied the defendant's Motion
to Reveal the Identities of the Confidential Informants
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
29, 2015, the defendant filed a Motion for New Trial, which
the court denied July 9, 2015.
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.
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
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.
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. 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
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.
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.
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.
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.
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.
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
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.
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
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.
OF ERROR NUMBER 1
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.
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.
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.
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).
"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
"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).
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.
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 ...