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State v. Faciane

Court of Appeals of Louisiana, Fifth Circuit

November 15, 2017

STATE OF LOUISIANA
v.
COREY D. FACIANE

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 11-880, DIVISION "F" HONORABLE MICHAEL P. MENTZ, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr., Terry M. Boudreaux, Andrea F. Long, Rhonda J. Goode-Douglas.

          COUNSEL FOR DEFENDANT/APPELLANT, COREY D. FACIANE, James A. Williams, Mary Vallon Hicks, Lynleigh G. Noel.

          Panel composed of Judges Marc E. Johnson, Robert M. Murphy, and Hans J. Liljeberg.

          ROBERT M. MURPHY JUDGE.

         Defendant, Corey Faciane, appeals his convictions and enhanced sentences for being a felon in possession of a firearm, and for possession with intent to distribute cocaine. For the reasons that follow, defendant's convictions are affirmed. Defendant's sentences are vacated in part, and affirmed as amended. We further remand for the correction of errors patent.

         PROCEDURAL HISTORY

         On March 17, 2011, the Jefferson Parish District Attorney's office filed a bill of information charging defendant, Corey Faciane, with one count of being a felon in possession of a firearm ("count one"), in violation of La. R.S. 14:95.1, and one count of possession with intent to distribute cocaine ("count two"), a violation of La. R.S. 40:967(A). Defendant pled not guilty to both counts at his arraignment on March 18, 2011. Following the denial of defendant's pre-trial motions, defendant proceeded to a three-day jury trial starting on March 15, 2016, at the conclusion of which he was found guilty as charged. On March 22, 2016, defendant filed a motion for new trial, which was denied. Also, on March 22, 2016, the trial court sentenced defendant to 20 years at hard labor without benefit of probation, parole, or suspension of sentence, and a $1, 000.00 fine on count one. On count two, the trial court sentenced defendant to 25 years at hard labor, with the first two years to be served without benefit of parole, probation, or suspension of sentence, and a $20, 000.00 fine. Both sentences were ordered to run concurrently. On the same date as sentencing, the State filed a multiple offender bill of information that alleged defendant was a third felony offender, to which defendant pled not guilty. Defendant thereafter withdrew his not guilty plea on June 23, 2016, and stipulated to being a third felony offender as alleged in the multiple offender bill of information. Accordingly, the trial court vacated the sentences imposed on March 22, 2016, and re-sentenced defendant to 20 years hard labor without benefit of parole, probation, or suspension of sentence on count one, and 25 years hard labor on count two, with the first two years to be served without benefit of probation, parole, or suspension of sentence, and the remainder without benefit of probation and suspension of sentence. Both sentences were again ordered to run concurrently, and defendant was assessed a $1, 000.00 fine on count one and a $20, 000.00 fine on count two. Defendant filed a motion for appeal on June 23, 2016, and the instant appeal follows.

         FACTS

         Detective Ashton Gibbs testified that he was employed by the Gretna Police Department, and was assigned to the Major Crimes Task Force in February of 2011, during which time he met with a reliable confidential informant ("C.I.") who provided information that led to the investigation of defendant, Corey Faciane. Detective Gibbs set up a controlled purchase between the C.I. and defendant, using five $100 bills that Detective Gibbs provided, which had been photocopied before the controlled purchase took place. Undercover surveillance was set up by Detective Gibbs, and other participating police detectives, at 2201 Manhattan Boulevard. Detective Gibbs watched defendant and the C.I. enter apartment H-206[1] at that address. After the C.I. had completed the purchase from defendant and returned to a predetermined location, Detective Gibbs retrieved a "light compressed powder" from the C.I. which tested positive for cocaine in a preliminary chemical field test. Based upon the controlled purchase, Detective Gibbs obtained a search warrant for 2201 Manhattan, H-206, and also for a second apartment located at 3300 Wall Boulevard, apartment 240. Detective Gibbs explained that a search warrant was obtained for both locations because defendant had been observed leaving the apartment on Wall Boulevard prior to the controlled purchase taking place and returned to the Wall Boulevard apartment after the transaction had taken place. The warrants were obtained within 72 hours of when the controlled purchase took place and executed on February 10, 2011, at approximately 2:10 p.m.

         Detective Gibbs was on the team that went to the apartment at 2201 Manhattan Boulevard to execute the search warrant. Although a "battery ram" was used to gain entrance to the apartment, police did have the front door key that was found on defendant's person. Detective Gibbs identified State's Exhibit 32, a photograph of an ottoman found in the living room of defendant's apartment, under which a firearm was found "velcroed" to the base. There was a live round in the chamber of the firearm. Other photographs identified by Detective Gibbs showed that there was also another round of ammunition found in defendant's kitchen drawer next to three bags of an "off white compressed powder" that was stored behind the utensil container. In a bag beneath the oven, more compressed powder was found. Two digital scales, which had trace amounts of white powder, were located in a kitchen cabinet. A third digital scale with white powder residue was found on top of a blue cookie tin. The tin itself contained several bags of white compressed powder and white "rock like" objects. A coffee pot and a Pyrex measuring container, both containing white residue, were also found in the kitchen area. Detective Gibbs opined that the items found are used in the creation of Crack cocaine.

         Detective Gibbs identified State's Exhibit 65, which was a photograph of five $100 bills contained within the approximate $28, 000.00 recovered from defendant's apartment on Wall. Detective Gibbs testified that the serial numbers on the bills matched those of the "pre-recorded currency" that was given to the C.I. prior to making a controlled purchase of illegal narcotics from defendant. Detective Gibbs identified defendant in open court.

         Tom Angelica testified that he is the crime lab director at the Jefferson Parish Sheriff's Office Crime Lab. Part of his job duties is to analyze evidence for the presence of controlled dangerous substances, including cocaine. Angelica identified a lab report that he wrote on April 12, 2011, which involved testing 12 bags of "white compressed powder" seized in connection with defendant's case. After analyzing all of the bags, Angelica concluded that they each contained cocaine.

         Lieutenant Shane Klein testified that he was employed by the Jefferson Parish Sheriff's Office Narcotics Section. By stipulation of defendant, Lieutenant Klein was accepted as an expert in the field of the packaging of narcotics. He described the mechanical process used for creating Crack cocaine, as well as how it was packaged for sale. Lieutenant Klein opined that items found pursuant to the search warrant in this case, namely the coffee pot, measuring cup, utensils and sandwich bags found in defendant's kitchen, could be used to create and package Crack cocaine. Similarly, the digital scales found in defendant's kitchen are typical of those commonly used to weigh narcotics. Lieutenant Klein examined the amount of cocaine seized in this case, and testified that the volume was not consistent with what is typically kept for personal use. He further explained that it was common in his investigations to learn that a drug dealer has multiple residences and a surplus of cash on hand. Based upon the evidence he reviewed in this case, Lieutenant Klein concluded that all of the elements needed to deal drugs were present.

         Detective Alfred Disler testified that he was employed by the Gretna Police Department in February of 2011, and was assigned to the narcotics unit of the Major Crimes Task Force. During that time, he participated in an investigation with Detective Ashton Gibbs, during which he observed a controlled purchase involving a C.I. at 2201 Manhattan Blvd., H-206. Detective Disler saw defendant's black Acura enter the apartment's parking lot, and watched defendant exit the vehicle then proceed to go into the apartment complex and up the stairs into an apartment. Detective Disler then saw the C.I. go to the same apartment, where defendant opened the door. He watched the C.I. enter and exit the apartment a short time later. After the C.I. left, Detective Disler saw defendant get back into the black Acura, and he followed defendant to the apartment complex on Wall Boulevard. Detective Disler was also involved in the execution of the warrant for 2201 Manhattan Boulevard. He identified defendant in open court.

         Detective Disler was recalled on rebuttal later in the trial by the State, and testified that he had indicated the wrong building on a Google Earth map of the apartment complex presented by defendant where the controlled buy had taken place. He had circled building J, when the purchase took actually place in building H.

         Shawn Vincent testified at trial that he is a Detective with the Gretna Police Department and, in February of 2011, was assigned to the Major Crimes Task Force, where he primarily investigated violations of narcotics laws. He recalled that he came into contact with defendant while executing a warrant at 3300 Wall Boulevard along with other officers. The officers were located in the parking lot of 3300 Wall Boulevard, at approximately 2:00 in the afternoon, when they approached defendant, who was accompanied by a female. Defendant and the woman were detained and handcuffed while the search warrant was executed. Detective Vincent identified a photograph of the key taken from defendant, which was used to open the apartment door deadbolt lock. During the search of the Wall Boulevard apartment, Detective Vincent found a shoebox containing over $28, 000.00 in U.S. Currency that was located in the master bedroom closet. Some of the money was photocopied after being identified as funds used for "the initial buy" by police. There was men's clothing in the bedroom, as well as "paperwork" with defendant's name on it. Upon completing the search of the apartment, evidence was secured, and both the defendant and his companion were transported to the Gretna Police Department. This concluded Detective Vincent's role in the investigation.

         On cross examination, Detective Vincent testified that he did not recall whether he placed defendant and Ms. McCallon, the woman accompanying defendant, face down on the ground after handcuffing them. Detective Vincent did not remember speaking to defendant prior to the search, but he believed that defendant and Ms. McCallon were advised of their rights by Detective Arnold. No drugs, or other contraband, were found at the time the apartment was searched.

         On redirect examination, Detective Vincent testified that he was aware of a "simultaneous search" of another location, which also involved defendant, taking place at the same time the warrant was executed on Wall Boulevard. Detective Vincent identified defendant in open court as the person he arrested at 3300 Wall Boulevard.

         Sergeant Joel O'Lear of the Jefferson Parish Sheriff's Office was tendered as an expert in latent print processing and comparison and accepted by stipulation of defendant. Sergeant O'Lear testified that he had taken defendant's fingerprints on a "ten print card" earlier on the date of trial and compared these to the fingerprints contained in a certified conviction packet from a possession of Crack cocaine charge dated May 26, 2009, and determined that the fingerprints were made by the same individual.

         By stipulation of defendant and the State, a redacted transcript of prior testimony given by Detective Stephen Arnold on October 14, 2011, was read to the jury.[2] Detective Arnold testified that he was employed by the Jefferson Parish Sheriff's Office and assigned to the Major Crimes Task Force. Detective Arnold participated in a narcotics investigation that ultimately led to the arrest of defendant, whom he identified in court. Detective Arnold took a statement from defendant on February 10, 2011, after advising him of his constitutional rights, both verbally and on a written form. The Rights of Arrestee form, which was initialed by defendant, indicated that defendant was under arrest and would be charged with possession of over 28 grams of Crack cocaine. That same form indicated that defendant wished to give a statement without the presence of an attorney. Defendant indicated to Detective Arnold that he understood his rights and agreed to waive them before defendant gave a statement.[3] An address given by defendant at the time of his statement was 2101 Manhattan, apartment H-206. Detective Arnold stated that the Manhattan address provided by defendant was one of the apartments searched in this case.

         Detective Arnold denied telling defendant that his girlfriend would be charged along with him unless he cooperated with the investigation.

         In connection with Detective Arnold's testimony that was read into the record, the State introduced the recorded statement of defendant and a transcription of defendant's statement. The audio statement was played for the jury. In his statement, defendant first acknowledges that he was advised of his rights and waived those rights to give a statement without an attorney present. Defendant said that the statement was being given of his own free will and was not coerced. The remaining relevant portions of the statement were as follows:

DETECTIVE ARNOLD:
Ok at that time we executed a lawful order of search and located no contraband at that location, we also had search warrants for your other locations that you used for residences at time to time, uh, one which is on King's Road and also another one is uh, the St. Germaine Apartments on Manhattan Boulevard in Harvey, I want to talk to you about the, the apartments on Manhattan, 2101 Manhattan, Apartment H206, have you resided at that apartment in the recent past?
DEFENDANT:
Yes.
DETECTIVE ARNOLD:
Ok located at that apartment was um, over twenty-eight grams of cocaine, was that uh, was that drugs, are you aware of that [sic] drugs?
DEFENDANT:
Yes. DETECTIVE ARNOLD:
Was that for anybody else but yourself?
DEFENDANT:
No. DETECTIVE ARNOLD:
So that cocaine was for you, is that correct?
DEFENDANT:
Yes. DETECTIVE ARNOLD:
Ok, how long have you been selling cocaine?
DEFENDANT:
Five years.
DETECTIVE ARNOLD:
Do you use ...

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