94 1841 La.App. 1 Cir. 5/5/95, State v. Piazza

• Citation: 655 So.2d 1357
• Parties: 94 1841 La.App. 1 Cir
• Decision Date: 05 May 1995
• Court: Court of Appeal of Louisiana (US)

Page 1357

655 So.2d 1357

94 1841 La.App. 1 Cir. 5/5/95

STATE of Louisiana v. Paul R. PIAZZA.

No. 94 KW 1841.

Court of Appeal of Louisiana First Circuit.

May 5, 1995.

Frank Bankston, Covington, for appellee State.

William J. Guste, III, New Orleans, for appellant Paul R. Piazza.

Before LeBLANC, PITCHER, and FITZSIMMONS, JJ.

[94 1841 La.App. 1 Cir. 2] PITCHER, Judge.

Defendant, Paul Piazza, was charged by affidavit with the sale and/or purchase of game fish in violation of LSA-R.S. 56:327A. Defendant pled not guilty. Following a bench trial, the district court found defendant guilty as charged. The district court sentenced defendant to imprisonment in the parish jail for thirty days and ordered that defendant pay a fine of four hundred dollars plus court costs. The court ordered that, in default of payment of the fine and costs, defendant serve sixty days in the parish jail. The court also ordered that any licenses issued to defendant by the state in connection with his business operations be revoked and not reinstated during the period of issuance and for one year thereafter. Defendant sought judicial review of his conviction by application for a writ of review. On May 23, 1994, we denied defendant's application under docket number 94 KW 0425. Thereafter, on September 2, 1994, under docket number 94-KK-1678, the Louisiana Supreme Court granted defendant's writ application for review of this Court's denial of defendant's application to this Court. In granting the application, the Supreme Court remanded the case to this Court for briefing, argument and opinion. See State v. Piazza, 94-1678, (La. 9/2/94), 642 So.2d 1273.

In his application, defendant urges seven assignments of error, to wit:

1.

The district court erred by finding defendant guilty without the state having proved every element of LSA-R.S. 56:327A, the statute defining the charged offense.

2.

The district court erroneously interpreted and applied LSA-R.S. 56:327A by finding defendant guilty of violating a duty not imposed by that statute but rather a duty imposed by LSA-R.S. 56:327.1 (a statute defendant was not charged with having violated).

3.

"The District court erred in that defendant was charged and convicted of violating La.R.S. 56:327(A), when in effect all the State's evidence was probative to a different statute, namely La.R.S. 56:327.1, which is not a lesser included offense of La.R.S. 56:327(A)."

4.

[94 1841 La.App. 1 Cir. 3] The district court erroneously interpreted and misapplied LSA-C.E. art. 702 in accepting John Burden [sic] and Howard Ragillio as expert witnesses.

5.

The district court made a manifestly erroneous finding of fact that the fish which defendant was transporting on July 27, 1993, were not the fish defendant had reported to the Department of Wildlife and Fisheries on July 21, 1993.

6.

The district court erred by failing to correctly apply the constitutional standard of proof beyond a reasonable doubt in finding defendant guilty.

7.

The district court erroneously interpreted and misapplied LSA-C.E. arts. 710, 711 and 712 in denying defendant's motion for a continuance.

FACTS

At about 7:30 p.m. on July 27, 1993, Agent Jeff Mayne of the Louisiana Department of Wildlife and Fisheries stopped a truck at a weigh station in Slidell, Louisiana. The truck was a common carrier and had been enroute to deliver fish to a point of destination on the East Coast. Mayne found invoices ¹ inside the truck and determined that the truck was transporting 1121 pounds of hybrid striped bass. ² Aware that it was illegal to sell hybrid striped bass other than those aquaculturally raised in accordance with law, Mayne called the Department of Wildlife and Fisheries to determine when the Department had last received a report of a shipment of hybrid striped bass to defendant. Mayne contacted the [94 1841 La.App. 1 Cir. 4] Department of Wildlife and Fisheries and was informed by "Eula" that the last report to the Department of a sale of hybrid striped bass to defendant had been six days earlier, on July 21. Because the fish that were being transported were, in Mayne's judgment, much fresher than six days old, Mayne seized the 1121 pounds of fish.

On the following day, at about 3:00 p.m., Agent John Burdon of the Louisiana Department of Wildlife and Fisheries, with the assistance of a fellow agent, Howard Ragillio, ³ examined four of the seized fish. The agents determined that the fish had been dead for seventy-two hours or less. On the day after this determination, the seized fish were sold by the Department at an auction sale to the highest bidder, defendant's brother-in-law, Andy Scallion.

On August 3, 1993, Mayne examined the records of defendant's seafood business. He determined that during the period from June 30 through July 21, 1993, defendant had reported in to the Department the sales of hybrid striped bass to him totaling 9,840 pounds of hybrid striped bass and that during that same period defendant had sold a total of 12,573 pounds of hybrid striped bass (2,733 pounds more than had been reported to the Department). While at defendant's place of business, Mayne issued a citation to defendant for the instant offense.

State Exhibit S-1 consisted of a copy of a synopsis of Mayne's determinations and copies of invoices of defendant's business pertaining to the sales of hybrid striped bass by the business from July 2 through July 27, 1993. S-1 disclosed that the last report to the Department of striped bass received by defendant was a report of 2,656 pounds on July 21.

The state also introduced in evidence a copy of a memorandum dated July 29, 1993, from Burdon to Agents David Folse and Jeff Mayne, detailing the results of the July 28 examination by Burdon and Ragillio of four of the seized fish (S-2). The memorandum disclosed the following. At about 2:45 p.m., on July 28, Burdon [94 1841 La.App. 1 Cir. 5] randomly selected four of the seized bass, which had been placed in a cooler following their seizure. The bass were iced in waxed cardboard containers. Burdon, with the assistance of Ragillio, began an examination of the four fish at 3:00 p.m. Based on the physical condition of the fish, Burdon and Ragillio determined to the best of their judgment the fish had been dead for seventy-two hours or less, i.e., that they had been harvested no more than seventy-two hours earlier. More particularly, the memorandum cited the following physical features of the fish as leading to the determination:

EXTERNAL FEATURES

The fish were in extremely good physical condition and had a very fresh appearance. The fish were very flexible and were not slimy from mucous on the exterior of the body. There was no noticeable odor from decomposition. The gill lamellae were extremely red with no fading of color. The coloration of the fish was well pronounced and the scales were well intact. The eyes were not sunken in but were oval in form.

The eyes were slightly translucent with the pupils clearly visible with no shrinkage of eye tissue.

INTERNAL FEATURES

Color of organs pronounced with no apparent fading. No breakdown of organs or shrinkage due to water loss. No fluids in body cavity. No swelling of gut (stomach) due to gases formed by microbial organisms. Connective tissues between organs and body tissues well intact. Texture of flesh extremely firm.

Burdon and Ragillio gave testimony consistent with the content of S-1 at the trial. Burdon testified that, on July 28 when he began his examination of the fish, the gills of the fish were bright red. After the fish were held over the following night in a refrigerator, the gills started to turn pink; and on the following day the gills began to change to a white color. The change in color indicated a movement of blood cells. Burdon explained that freshly caught or harvested fish have "real red gills." Other characteristics of the fish leading Burdon to conclude that they were no more than seventy-two hours old were that the exterior of the fish did not have a "slimy mucousy composition," as is usually found in fish which have been harvested for a "period of time." There was no noticeable odor from decomposition and the coloration of the fish was "well pronounced." [94 1841 La.App. 1 Cir. 6] A major factor upon which he based his opinion was that the eyes of the fish were "not sunken in but were open and formed." The fish displayed no shrinkage of eye tissue and the eyes were slightly translucent. The eyes of fish that are held for "awhile" start becoming opaque, i.e., turning a white milky color. An interior examination of the fish revealed that the fatty tissue inside was a white creamy color rather than having the appearance of that of an animal that had been held over for some time whereby it starts to take on a "yellowish tainted look." There also were no fluids inside the body cavities of the fish. Burdon surmised that under the conditions these fish were found (i.e., iced and not frozen), they would probably take on a strong fishy odor in about five days. However, he stated that these fish appeared to have been harvested on either the day before he examined them or two days prior to the examination. The fish looked "extremely fresh" and in good condition. Burdon admitted that he would be more comfortable in his opinion if he had a scientific test to back up his opinion. While not ruling out the possibility that there were scientific tests available to determine how long fish have been dead, Burdon stated that he knew of no such tests. Burden admitted that someone with twenty years experience in the seafood business with knowledge of how to pack fish would be more likely to be able to keep fish fresh.

Ragillio gave testimony consistent with Burdon and the information contained in S-1. He stated that the fish were "extremely fresh" and it was his opinion that the fish were seventy-two hours old or less from the time they had been harvested but that that was "stretching it." Ragillio...