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State v. Gabriel

Court of Appeals of Louisiana, Fourth Circuit

December 26, 2018


          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 529-371, SECTION "A" Honorable Laurie A. White, Judge



          Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods


         Appellant-Defendant, Clarence Gabriel, appeals the January 25, 2017 judgment of the district court finding him guilty of possession of a firearm by a felon, in violation of La.R.S. 14:95.1. Defendant was sentenced on October 4, 2017 to ten (10) years' imprisonment, at hard labor without the benefit of probation, parole, or suspension of sentence. For the reasons that follow, we affirm.


         On May 24, 2016, Orleans Parish Sheriff--Captain Bryan Peters ("Captain Peters), working with the United States Marshal's Service on the Fugitive Task Force was assigned to locate Kelvin Dailey, the subject of an active arrest warrant. Captain Peters proceeded to the residence of Mr. Dailey's brother, Defendant Clarence Gabriel, ("Defendant") in an effort to elicit information concerning Mr. Dailey's whereabouts. Two other officers, Sergeant Tao and Deputy U.S. Marshal Brian Fair, knocked on Defendant's door while Captain Peters and another Deputy U.S. Marshal, Jerry Dyzart, remained in a patrol car to provide coverage.

         Although Captain Peters could not see the person who answered Defendant's door, he later learned it was Mr. Dailey, the fugitive for whom they were searching. As Officers Peters and Dyzart approached the front door, they observed Defendant and his wife approaching the front door from inside the residence. Captain Peters testified that they seemed "agitated" at the police presence and "wanted to know what was going on." He further testified they ordered Defendant and his wife to sit on the couch in the front room while he and Deputy Fair conducted a protective sweep of the residence to ensure no safety threats were present "while they were dealing with Mr. Dailey."

         The officers entered the first door they encountered off the living room and discovered a little girl lying on a mattress on the floor watching television. Captain Peters observed "another full-size bed" against the wall in that room and a holstered, fully loaded, semi-automatic firearm was located on the bed, next to a set of dentures, a pair of scissors, and a cigarette lighter. Photographs taken at the scene also showed cotton swabs, what appeared to be a can of seasoning, and a pack of cigars among the items located on the bed near the firearm. Captain Peters escorted the child into the living room while Deputy Fair secured the firearm. According to the NCIC database, the weapon had not been reported stolen; however, a background check revealed that Defendant had previous felony convictions and was on active probation for burglary. Despite the insistence by the wife of Defendant that the gun belonged to her, Captain Peters and Deputy Dyzart took Defendant into custody for illegal possession of a firearm by a felon. As they were leaving, Captain Peters learned that the dentures discovered next to the firearm on the bed belonged to Defendant when he asked the officers "if he could have his teeth when he went to jail."

         At Defendant's trial, on cross-examination, Captain Peters clarified that when he and the other officers approached Defendant's residence, Defendant was neither a fugitive, nor the subject of their investigation. He also testified that once they learned that the person who answered the door, Mr. Dailey, was the person for whom they were searching, they brought Mr. Dailey outside, placed him in handcuffs, and sat him in a folding chair on the front porch. He admitted that neither Defendant nor his wife was threatening or uncooperative at any time, nor did he witness either of them exiting or occupying any room other than the living room. According to Captain Peters, Defendant's wife, who had no outstanding warrants or felony convictions, claimed ownership of the gun and stated that she lived at that residence with her husband, and had done so for the preceding two (2) years. Captain Peters also admitted that he never asked Defendant if the gun was his, and he did not perform any gunshot residue or fingerprint testing at any time.

         U.S. Marshal Inspector Fair testified that he investigated sex offenders in violation of registration requirements and was in pursuit of Mr. Dailey when he and other officers approached Defendant's residence to interview him regarding his brother's whereabouts. When Mr. Dailey answered the door, Deputy Fair testified that they "had him step outside" and "secured him," and then at that point, they noticed "several other people in the house that were just agitated and asking questions." The officers asked them to sit on the couch in the living room and then went inside to conduct a protective sweep of the residence. Deputy Fair testified that he entered the first open door off of the living room and "observed an eleven-year-old girl on the floor sleeping on a mattress," and a holstered firearm located on the side of a bed.

         On cross-examination, Deputy Fair stated that Mr. Dailey was apprehended at the front door and that it was his decision to conduct the protective sweep because Mr. Dailey, who was handcuffed at the time, had become "agitated," and Defendant and his wife also appeared "agitated" and were "starting to ask questions," so he and two other officers entered the house to conduct the sweep. When asked if it was standard practice to conduct a protective sweep, Deputy Fair responded, "Just the area immediately to where we arrested somebody, which was right on the other side of that door." Deputy Fair also admitted that when he asked who owned the firearm, Defendant's wife responded that it belonged to her, despite its location on Defendant's "side of the bed," and near Defendant's dentures.

         In Defendant's case-in-chief, Gaynell Gabriel, Defendant's wife of twenty-two (22) years, testified that she and Defendant had been separated for over a year, and were separated and living separate and apart at the time of Defendant's arrest. Ms. Gabriel stated that she remembered the day of May 24, 2016, because she had taken her granddaughter, who resided at Defendant's home, to get an MRI. Her granddaughter had been anesthetized for the procedure, so when they returned to Defendant's home, Ms. Gabriel brought her into the bedroom. Ms. Gabriel recalled saying hello when she entered Defendant's home, but had observed Defendant napping in the living room so she proceeded into the bedroom with her granddaughter. She felt tired and decided to rest for a while, so she removed her weapon from her side and set it on the bed.

         Approximately thirty (30) minutes later, she heard the front door open. The police entered the residence and "snatched the brother out the door," and then they told her to exit the bedroom and sit on the sofa in the living room. She testified that as the police were entering the bedroom, she informed them that her firearm was lying on the bed and that she did not reside in the home. Mrs. Gabriel stated that the police began interrogating her about the weapon and her brother-in-law. She responded that the gun was hers and that neither she nor her brother-in-law lived at the home; the only residents were Defendant and her granddaughter. Ms. Gabriel testified that she "kept telling them that it was [her] gun and [the officer] just kept telling [her] to shut up or [she] was going to jail."

         Ms. Gabriel explained at trial that she always knocked on the front door when visiting Defendant's home, but if the door was unlocked and her granddaughter was with her, she would "go on in." She testified that on that day, when she entered Defendant's residence, the gun was holstered on her right hip, but she had not informed Defendant that she possessed the weapon. She also denied telling the officers that the gun had been located on Defendant's "side of the bed" because she did not live there and would not have known where in the bed he slept.

         Ms. Gabriel testified that she had purchased the gun for herself from a pawn shop "across the river," but could not remember when or for what price. She thought she had received a receipt when she paid the deposit, but she was put on a waiting list and did not receive "the paperwork" until she actually took possession of the gun. She stated that she knew Defendant was on probation and could not possess firearms, but that Defendant's ...

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