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.
composed of Judges Robert A. Chaisson, Hans J. Liljeberg, and
John J. Molaison, Jr.
J. LILJEBERG JUDGE.
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.
AND PROCEDURAL HISTORY
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.
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. 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
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.
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.
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.
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.
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.
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
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.
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.
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. ...