State v. Oliphant

• Court: Court of Appeal of Louisiana
• Writing for the Court: PETERS
• Citation: State v. Oliphant, 127 So.3d 91 (La. App. 2013)
• Decision Date: 20 November 2013
• Docket Number: No. 13–473.,13–473.
• Parties: STATE of Louisiana v. Corey W. OLIPHANT.

127 So.3d 91

STATE of Louisiana

v.Corey W. OLIPHANT.

No. 13–473.

Court of Appeal of Louisiana, Third Circuit.

Nov. 20, 2013.

Annette Fuller Roach, Lake Charles, LA, for Defendant/Appellant Corey W. Oliphant.

Van H. Kyzar, District Attorney, Charles W. Seaman, Assistant District Attorney, Natchitoches, LA, for Appellee State of Louisiana.

Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.

PETERS, J.

The defendant, Corey W. Oliphant, appeals his conviction of armed robbery, a violation of La.R.S. 14:64, which is before this court for a third time. For the following reasons, we vacate the conviction and sentence and enter a verdict of not guilty.

PROCEDURAL HISTORY

The criminal charge before us arises from the April 23, 2005 armed robbery of the Tobacco Warehouse, a Natchitoches, Louisiana business establishment. The defendant and his brother, Nicholas Andre Oliphant, were ultimately charged by bill of information with the offense. After a two-day trial beginning January 16, 2007, a jury convicted both of the defendants as charged.¹ On April 9, 2007, the trial court sentenced the defendant to serve forty years at hard labor and ordered that the sentence be served without the benefit of parole, probation, or suspension of sentence. The defendant did not file a motion for reconsideration of his sentence.

The defendant appealed his conviction and sentence, and this court affirmed both. State v. Oliphant, 07–1210 (La.App. 3 Cir. 4/30/08), 2008 WL 1886585 (unpublished opinion), writ denied,08–1324 (La.5/22/09), 9 So.3d 133. On April 20, 2010, the trial court rejected the defendant's post-conviction-relief application, and the matter returned to this court via a writ for review of the trial court's judgment, which was denied. State v. Oliphant, 10–585 (La.App. 3 Cir. 2/23/11) (unpublished writ), writ denied,11–592 (La.3/2/12), 83 So.3d 1038.

The defendant then sought relief from the federal court system, and, on March 8, 2013, the United States District Court for the Western District of Louisiana issued the following order:

IT IS ORDERED that Corey Oliphant is GRANTED A CONDITIONAL WRIT OF HABEAS CORPUS, ORDERING HIS DISCHARGE FROM CUSTODY on Ground Number 8 of his habeas petition unless,within 60 days from the date of the order, the State of Louisiana reinstates Corey Oliphant's right to directly appeal his conviction with the assistance of counsel and affords him the opportunity to obtain court-appointed counsel for his appeal.

Oliphant v. Warden, La. State Penitentiary, No. 1:12–cv–0899, 2013 WL 951610, at *1 (W.D.La. March 11, 2013).

In compliance with that order, the trial court executed an order on March 14, 2012, allowing the defendant “to directly appeal his conviction of 1/17/2007 and that the Louisiana Appellate Project is appointed to represent him in this appeal[.]” This appeal arises from that trial court order.

DISCUSSION OF THE EVIDENTIARY RECORD

At approximately 2:00 p.m. on April 23, 2005, a man armed with a pistol entered the Tobacco Warehouse Convenience Store in Natchitoches, Louisiana, and took approximately $700.00 from the store employees at gunpoint. Jared Bennett, the clerk on duty at the time of the robbery, described the man as a black male wearing black pants and a hooded, dark sweatshirt, with the hood pulled up over his head. He further noted that the man wore a “piece of cloth, kind of like a neck gator” over his face. His co-worker, Julie Beard, described the robber as a black male in his early twenties, with brown eyes and short hair, but with no facial hair that she observed. She stated that the robber was dressed in black with a hooded sweatshirt and a “black wrap” around his chin.

At approximately the same time as the robbery, Riley Stanfield, a retired detention officer, who lives on the street immediately behind the strip mall where the Tobacco Warehouse is located, was working in his yard. He observed a man, dressed in a dark sweatshirt with the hood pulled up over his head, run through his yard, jump a fence, and get into the passenger side of a white, older-model Lincoln automobile, which was parked approximately 150 to 200 yards from his location. He observed that the man had something in his right hand, but could not identify the object. Additionally, he was able to see that a black male was sitting in the driver's seat of the Lincoln. Although the driver's face was not covered or disguised, Mr. Stanfield could not provide the investigating officers with a physical description of either man. With regard to the vehicle itself, Mr. Stanfield did note that the molding below the bottom of a door was missing.

While on patrol at approximately 4:00 p.m. that same afternoon, Natchitoches City Police Officer Joel Mitchell ² observed the driver of a white Lincoln Town Car run a stop sign. Being aware of the robbery and the description of the vehicle involved,³ Officer Mitchell attempted to initiatea stop for the traffic violation. He followed the vehicle as the driver made an apparent attempt to escape, but ultimately caused the driver to stop. The vehicle was missing the molding below the bottom of a door; was being driven by Nicholas Oliphant (Nicholas), the defendant's brother; and was registered to Odell Oliphant, the defendant's father. Officer Mitchell asked Nicholas if he had a gun in the vehicle and, after some hesitation, he admitted that he did. Officer Mitchell then took Nicholas into custody, handcuffed him, and retrieved a nickel-plated, snub-nosed, twenty-two caliber revolver from the Lincoln. Officer Mitchell identified the weapon he took from Nicholas at trial, stating that the pistol was easily recognizable because it had the distinctive characteristic of being a nickel plated pistol with a blued cylinder.

Natchitoches City Police Officer Damien Spillman ⁴ interrogated Nicholas when he was brought to the police station. According to Officer Spillman, Nicholas told him that he had been home all day and that his brother (the defendant) could verify that fact. Officer Spillman then went to the defendant's house and asked him to return to the police station with him. The defendant agreed, stating that he was about to go to the station because he had heard that his brother was in custody. Officer Spillman stated that initially when questioned concerning his activities earlier that day, the defendant told him that he had worked the night shift and then had slept most of the day. However, Officer Spillman testified that when they arrived at the police station, the defendant changed his story to say that he had not worked the night before but had stayed out late; that he had gotten up at 10:30 a.m.; and had gone to a friend's house to cut hair. According to Officer Spillman, the defendant said that he left the friend's house a few minutes after 11:00 a.m. in order to retrieve another set of clippers. He said that he then returned to the friend's house, where he continued cutting hair until he heard of his brother being arrested.

Officer Spillman testified that he decided to call for a set of tracking dogs to assist in the investigation after the defendant told him that he had not seen his brother the entire day. While interrogating the defendant, Officer Spillman asked him to provide a sock off his foot, and the defendant complied with the request. Before requesting the sock, Officer Spillman had already telephoned the Natchitoches Parish Detention Center (Detention Center) and requested that a tracking team be brought to the Tobacco Warehouse.

Natchitoches City Police Officer Jeff Franks testified that he observed Officer Spillman's interrogation of Nicholas, and he heard Nicholas tell Officer Spillman that he and the defendant left home that morning to pick up some cigarettes for their mother, after which they returned home. He later asked the defendant about the trip to obtain cigarettes, and the defendant acknowledged the trip, but suggested that he and his brother had gone to a store different from the one identified by Nicholas. On cross-examination, however, the officer was provided his previous written statement, which suggested that the trip to pick up the cigarettes occurred the night prior to the robbery.

Officer Spillman took the defendant's sock to the Tobacco Warehouse and gave it to Officer Roy Gallien, one of the Chase Team dog handlers assigned to the Detention Center, who was waiting with two bloodhounds. Officer Gallien testified that his position with the Detention Center required that he “transport inmates[ ] and work the Chase Team Bloodhounds.” According to Officer Gallien, the Detention Center has six tracking dogs including “Bo” and “Trusty,” the dogs used in this search, as well as a number of puppies in training. He testified that “the mamma dog” came from Angola State Prison and that she had been bred to dogs from two other correctional facilities around the state. The dogs are not certified in any capacity, and all of their tracking expertise has arisen from use at the Detention Center. While Officer Gallien testified concerning at least two situations where the bloodhounds were useful in a search, he provided no information concerning the expertise of anyone involved in the training, including himself.⁵ Additionally, he acknowledged that the Detention Center keeps no records concerning the dogs' use.

With regard to the use of the bloodhounds in the instant case, Officer Gallien testified that he let the two dogs sniff the sock provided by Officer Spillman at approximately 7:15 p.m. the evening of the robbery, and, at that time, he was not aware that the robbery had occurred at 2:00 p.m. Still, he suggested that this was an adequately fresh scent. After providing each dog with the scent, Officer Gallien and his two team members began tracking from the store to where they were told the perpetrator got into the Lincoln. Each dog tracked separately from the other and, according to Officer...