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State v. Costanza

Court of Appeals of Louisiana, Fifth Circuit

December 26, 2019

STATE OF LOUISIANA
v.
DAVID COSTANZA

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 14-6642, DIVISION "C" HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Thomas J. Butler Joshua K. Vanderhooft

          COUNSEL FOR DEFENDANT/APPELLANT, DAVID COSTANZA Bruce G. Whittaker

          Panel composed of Judges Robert A. Chaisson, Hans J. Liljeberg, and John J. Molaison, Jr.

          HANS J. LILJEBERG JUDGE.

         Defendant appeals his conviction and sentence for arson with intent to defraud. For the following reasons, we affirm defendant's conviction, vacate his sentence, and remand for resentencing.

         FACTS AND PROCEDURAL HISTORY

         Defendant, David Costanza, was charged by bill of information with arson with intent to defraud in violation of La. R.S. 14:53. He pleaded not guilty at arraignment. On June 12-14, 2018, a bench trial was held.

         At trial, Officer Arnold Breaux of the Westwego Police Department testified that on August 27, 2014, he responded to a call regarding a house fire at 801 Avenue A in Westwego. When he arrived, he observed black smoke coming from the house. Officer Breaux went next door to get residents out of their house.[1] He also observed an unrestrained dog running around in the back yard at 801 Avenue A and noted that someone grabbed the dog and took it away from the scene. Once the inside of the residence at 801 Avenue A was secured, he took photographs. Officer Breaux testified that a gas can was recovered outside the rear door and there was a key inside the lock of the front door. He also testified that he assisted in collecting samples from the crime scene, including debris that was scraped off of the floor inside the house and a piece of the box spring located in the rear bedroom. The samples were placed into four separate arson "cans."

         Detective Christopher Fisher of the Westwego Police Department testified that he became involved in a potential arson investigation involving the house fire at 801 Avenue A. Initially, he was told that the fire appeared to be "suspicious." When Detective Fisher arrived, the scene had been secured, and the residence appeared to have significant fire damage on the outside. He recovered and reviewed a surveillance video from the house across the street. He indicated that three individuals lived at 801 Avenue A and that defendant was one of them.

         Detective Fisher testified that the surveillance video showed that Charles Walden, defendant's "father-in-law," went to the house with defendant that morning. The video reflected that Mr. Walden arrived at 8:57:24 and he and defendant walked toward the rear of the residence. At 9:00:48, they appeared to enter the back of the residence. Detective Fisher observed that at 9:02, Mr. Walden left the residence and at 9:06:09, defendant left the residence from the front door. He stated that at 9:06:58, he first noticed on the video that smoke was coming out of the right or south side of the house. Detective Fisher also saw smoke coming from the north side of the house. He testified that at 9:08:26, a man later identified as Clayton Prestwood approached the front door and that at 9:08:32, Mr. Prestwood walked away. At 9:09:06, there appeared to be a lot of smoke. [2]Defendant's key to the residence was in the front door when the fire investigators arrived. Detective Fisher testified that he obtained documents from Allstate Insurance Company regarding an insurance claim filed by defendant. His investigation led him to arrest defendant and charge him with arson with intent to defraud.

         Kim Melancon testified that she was employed as a Jefferson Parish fire inspector and as a Westwego volunteer fire investigator. She further testified that on August 27, 2014, she learned there was a structure fire at 801 Avenue A. Ms. Melancon called James Boheman, the Director of Fire Investigations, to offer her assistance. Ms. Melancon became the lead fire investigator, and Mr. Boheman supervised and assisted her. She testified that she went to the scene and noticed that the most damaged part of the house was the master bedroom, which was toward the east and on the south side of the building. Ms. Melancon asserted that it was "suspicious" that there was more damage to the master bedroom than anywhere else. She indicated there was a light sitting on a gas-powered generator at the scene, but she never saw it knocked over. She stated that they took samples of the box spring from the master bedroom, which were sent to the crime lab. Ms. Melancon determined that the origin of the fire was at the foot of the bed. She drew that conclusion because of the burn patterns and the way the springs were indented.

         James Boheman testified that he was employed as the Director of Fire Investigations for the City of Westwego and as a fire prevention officer with the Marrero Volunteer Fire Department. He stated that on August 27, 2014, he became involved in the fire investigation at 801 Avenue A. Mr. Boheman determined that most of the fire damage occurred in a rear bedroom in the area of the mattress and box spring close to the northwest side of the room. He recalled seeing a generator with a lamp attached to it in the doorway but denied bringing it in. Mr. Boheman recalled that the generator was in the rear bedroom before the samples were taken. He stated that he took the generator from the dresser and put it on the floor, but he did not see the generator tip over or lie on its side.

         Mr. Boheman testified that they did not trace the electrical circuits to determine why some circuit breakers had tripped. He further testified that they did not test any electrical appliances or a phone charger found at the scene to determine if they caused the fire. Mr. Boheman stated that the determination that the fire was incendiary was based solely on fire pattern analysis. He asserted that when he visually inspected the wires in the room, he did not see any indication that there was an electrical failure that would have caused the fire. Mr. Boheman testified that he believed the fire was intentionally set because the fire had "gone rapidly," and they did not note anything electrical or any other potential causes other than human involvement.

         Thomas Angelica, Jr. testified that he was employed as the Director of the Jefferson Parish Sheriff's Office Crime Lab. The State and the defense stipulated that he was an expert in the analysis and identification of ignitable liquids. Mr. Angelica testified that he examined four specimens that were collected from the crime scene at 801 Avenue A. He stated that he did not detect an odor in specimens one through three, but he did detect a chemical smell in specimen four. After testing the samples, Mr. Angelica concluded that gasoline was present in specimen four. He asserted that before he tested specimen four, he was not told that a gas generator had been at the scene where the sample was taken. If he had known there was a possible gasoline leak at the scene, he might have put a disclaimer in his report.

         Robert Schaal testified that he was a private fire investigator who did consulting work regarding fire origin and cause determinations, actual scene investigations, and post-scene analysis. The State and the defense stipulated that he was an expert in the field of fire origin and cause. Mr. Schaal testified that he reviewed all of the previous work done in the investigation, including copies of photographs and reports. He also visited the scene twice. Mr. Schaal concluded that the fire originated in the rear bedroom at the northwest corner of the bed and that it was caused by the open-flamed ignition of gasoline. He based his conclusion on evidence and fire patterns he saw at the scene along with confirmation of the presence of gasoline in the lab sample taken from the box spring that would have been against the wall and "protected." Mr. Schaal testified that he had reviewed articles regarding the transfer of gasoline which showed that when individuals stepped in gasoline and walked, the test samples detected no gasoline.

         Jeffrey Stark testified that he was a forensic engineer and a mechanical engineer. The State and the defense stipulated that he was an expert in the field of oil and gas equipment design. Mr. Stark testified that he was asked to review the report of defendant's expert, James Mazerat, to examine and test the subject generator to determine if there was any malfunction or defect, to note the generator's operational characteristics, and to ascertain how the generator could possibly leak gasoline. Mr. Stark stated that he tested the actual generator used in the fire investigation and did not observe any malfunction or defect in the generator that would cause it to leak gasoline during normal, or even aggressive, handling of it. He asserted that Mr. Mazerat said there was a recall on the generator in question. However, Mr. Stark stated there was a recall on the Honda EU2000, a different unit, and there was no recall issued on the Honda EU1000, the generator in question. ...


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