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State v. Parker

Court of Appeals of Louisiana, Third Circuit

May 30, 2018

STATE OF LOUISIANA
v.
DAVID BILLY PARKER, JR.

          APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 26188-14 HONORABLE GUY BRADBERRY, DISTRICT JUDGE

          John F. DeRosier District Attorney Karen C. McLellan Jacob L. Johnson Cynthia Killingsworth Assistant District Attorneys COUNSEL FOR APPELLEE: State of Louisiana

          Mary Constance Hanes COUNSEL FOR DEFENDANT/APPELLANT: David Billy Parker, Jr.

          Court composed of Marc T. Amy, Van H. Kyzar, and Candyce G. Perret, Judges.

          MARC T. AMY JUDGE

         The State charged the defendant with one count of manufacture and possession of a bomb, and the jury ultimately found the defendant guilty of attempted manufacture and possession of a bomb. The trial court sentenced the defendant to seven years at hard labor, with credit for time served, and a fine of $5, 000.00. The defendant appeals his conviction and sentence. For the following reasons, we affirm.

         Factual and Procedural Background

         After being dispatched to a residence to serve a warrant, Deputy Chris Miller, of the Calcasieu Parish Sheriff's Office, submitted, in pertinent part, the following narrative in an affidavit:

During the execution of a felony warrant . . . [David Billy Parker, Jr.] was located in the attic. A search and seizure form was signed for the residence due to loose ammunition being seen while searching for the subject in the residence and the combination of the fact that the subject is a convicted felon. During the search of the residence, two pipe bombs were located in the attic w[h]ere the subject had been originally located.

         Thereafter, by bill of information, the State charged the defendant, David Billy Parker, Jr., with one count of manufacture and possession of a bomb, a violation of La.R.S. 14:54.3. The defendant pled not guilty, and the matter proceeded to a jury trial.

         At trial, Deputy Miller testified that, on September 28, 2014, he arrived at the defendant's residence to serve a warrant on the defendant. He stated that the defendant's wife told him that the defendant was not there but that she granted Deputy Miller permission to enter the residence to search for the defendant. Deputy Miller explained that he located the defendant in the attic; verbally commanded the defendant to come down from the attic; and, after the defendant complied with the command and the defendant's wife signed a search and seizure form, searched the attic. Deputy Miller testified that, when "[he] entered the attic, [he] noticed two PVC pipes that were capped on both ends that had wires coming out of the ends[, ]" which "looked like electrical wire." He stated that, upon seeing the devices, he removed himself, the defendant, the defendant's wife, and two children from the residence. Deputy Miller explained that he subsequently blocked off the residence and called for assistance because "through [his] training, [he] recognized it to be an IED [improvised explosive device] or a possible IED." Deputy Miller stated that the defendant told him that he had assembled the devices.

         The jury also heard testimony from State Trooper Sean LaFleur, who explained that he is a technician supervisor for the Louisiana State Police, Emergency Services Unit, and that the unit he supervises is a "full-time HAZMAT and explosive response unit, " which serves as "the bomb squad for the State Police." Trooper LaFleur testified that he and Investigator Hopkins were the bomb technicians that responded to Deputy Miller's call for assistance at the defendant's residence. According to his testimony, upon initially seeing the devices in the attic, Trooper LaFleur observed: "Two PVC pipes. They were capped on both ends. And on one end of each device, there was bare wire coming out. And on one device, the bare wire coming out had a coding that was red in color, and on the other device, it was - - I believe it was green in color."

         Trooper LaFleur explained that the technique used to remove the devices from the residence is called a "hook and line kit[, ]" which he described as a rope and pulley system that can be operated remotely for safety. He stated that during this process, one device came apart, specifically an endcap came off, and "then the pyrotechnic or firework charge that was inside the pipe actually came out from that one device." Trooper LaFleur noted that, on the charge, he could see part of a label and believed the charge to be a consumer firework based on the label remnant, as well as the size. He classified they pyrotechnic charge as a "low explosive."[1] Trooper LaFleur testified that, after they removed the devices from the residence, they moved the devices with an extended pole to a sandbag area that had been set up to "disrupt them or render them safe."[2] At that point, Trooper LaFleur stated that they deployed a PAN (Percussion Activated Non-Electronic) disruptor, specifically "a disintegrating projectile . . . that is designed to . . . break that pipe apart without it letting the pipe detonate on us, and that's what happened in this case."

         Regarding the devices, Trooper LaFleur testified that they fit the criteria he looks for in identifying a "pipe bomb." In this regard, the following colloquy occurred:

Q. Okay. And what do you look for when you say the term "pipe bomb"? What do you look for when you're determining if that's what something is?
A. Container. We look at the type of container. And pipe bombs can generally either be PVC or metal pipe bombs. We look to see whether or not they are capped on both ends and potentially if there are any other things coming out, wire, fuse, things of that nature. Commonly, people will use hobby or cannon fuse. Other times, they will use wire. Sometimes they are capped on both ends, and everything is internal. So when we see a pipe and see it capped on both ends, we treat it as an actual IED or pipe bomb until we can prove otherwise.
Q. And did these devices fit those criteria?
A. That's correct.
Q. And how did they fit those criteria?
A. You had approximately a 10 to 12 inch long piece of PVC pipe capped on both ends, and you had bare wire coming out from one of the endcaps on each device.
Q. Going back to the one that came apart within the home, is it my understanding that there was a pyrotechnic charge within that pipe?
A. Yes.
Q. And electric wire was connected to that?
A. There was.

         Trooper LaFleur further explained that detonating these devices "would be pretty simple" by using a flame or by short-circuiting a battery and heating the wire. He also noted that the devices could possibly detonate upon being dropped. Trooper LaFleur stated that, if these devices were intact and detonated, they would undergo fragmentation, which he described as "this thing coming apart in small pieces . . . up to about 3300 feet per second[.]" He testified that fragmentation can result in potentially serious injury and, in some cases, death. Trooper LaFleur concluded that he searched for the defendant's name in the explosive licensing database and found neither an active nor an inactive license with the defendant's name.

         The jury returned the responsive verdict of attempted manufacture and possession of a bomb, a violation of La.R.S. 14:27 and 14:54.3. Thereafter, the defendant filed a motion for new trial, which the trial court denied. The trial court sentenced the defendant to seven years at hard labor, with credit for time served since September 2014, and a fine of $5, 000.00. Subsequently, the defendant filed a Motion for Reconsideration of Sentence and, at a hearing on the motion, argued that his sentence should be reduced to five years. The trial court denied the motion. The defendant now appeals, asserting the following assignments of error:

1. There is insufficient evidence to support David Billy Parker, Jr.'s conviction for attempted manufacture and possession of a bomb; the State failed to prove that the devices found in Mr. Parker's attic met the statutory definition of "bomb"; and
2. Mr. Parker's seven-year sentence and maximum fine of $5000 are excessive under the circumstances.

         Discussion

         Errors Patent

         In accordance with La.Code Crim.P. art. 920(B), all appeals are reviewed for errors patent on the face of the record. An error patent is one "that is discoverable by a mere inspection of the pleadings and ...


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