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STATE OF LOUISIANA                                                           *   NO. 2009-KA-0806
VERSUS                                                                       *
                                                                                 COURT OF APPEAL
KELLY P. REGIS                                                               *
                                                                                 FOURTH CIRCUIT
                                                                             *
                                                                                 STATE OF LOUISIANA
                                                                             *
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 473-670, SECTION “L”
Honorable Terry Q. Alarcon, Judge
Judge Patricia Rivet Murray
(Court composed of Judge Patricia Rivet Murray, Judge Terri F. Love, Judge
David S. Gorbaty)
Leon A. Cannizzaro, Jr.
District Attorney
Alyson Graugnard
Assistant District Attorney
619 South White Street
New Orleans, LA   70119
COUNSEL FOR STATE OF LOUISIANA/APPELLEE
John Harvey Craft
LOUISIANA APPELLATE PROJECT
829 Baronne Street
New Orleans, LA 70113--1102
COUNSEL FOR DEFENDANT/APPELLANT
CONVICTION AFFIRMED; SENTENCE
AMENDED, AND AFFIRMED AS
AMENDED.




In this criminal case, the defendant, Kelly Regis, seeks review of his
conviction and sentence for attempted possession of cocaine with intent to
distribute.  On appeal, Mr. Regis raises two issues:   (1) whether the trial court erred
in denying his motion to disclose the confidential informant’s identity; and
(2) whether the jury instruction under La. C.Cr.P. art. 782, which in a non-capital
case allows a non-unanimous jury (ten of twelve) to convict, resulted in an
unconstitutional jury verdict.  We find the trial court did not abuse its discretion in
denying Mr. Regis’ motion to compel disclosure of the informant’s identity.  We
further find the jury instruction under Article 782 did not result in an
unconstitutional jury verdict.  Nonetheless, the record contains one patent
sentencing error.  We thus affirm Mr. Regis’ conviction, amend his sentence, and
affirm the amended sentence.
STATEMENT OF THE CASE
In October 2007, Mr. Regis was charged by bill of information with
possession of cocaine with intent to distribute, a violation of La.
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R.S. 40:967(A)(1).  In November 2007, he was arraigned and entered a plea of not
guilty.  In March 2008, the district court denied Mr. Regis’ motion to suppress
evidence and found probable cause to hold him for trial.  Also in March 2008, Mr.
Regis filed a motion to compel disclosure of a confidential informant’s identity.
The district court denied the motion.  In April 2008, the district court granted Mr.
Regis’ motion to sever his case from that of his co-defendant, Shatoney Hales.  In
April 2009, a twelve-person jury found Mr. Regis guilty of the lesser included
offense of attempted possession of cocaine with intent to distribute.    The district
court sentenced him to eight years at hard labor, but without benefit of parole,
probation, or suspension of sentence for the first two years.  This appeal followed.
STATEMENT OF THE FACTS
In August 2007, Detective Christian Varnado, Lieutenant Mark Mornay, and
other New Orleans Police Department (“NOPD”) officers participated in the
execution of a search warrant for an apartment located at 1561 Iberville Street. The
warrant was obtained based on numerous citizen complaints and information
received from a confidential informant regarding narcotics trafficking occurring at
that apartment.  According to the affidavit to secure the warrant, the informant
made two controlled drug buys from Mr. Regis while under continuous
surveillance of the investigating officers. The informant was familiar with Mr.
Regis and Ms. Hales because he had made drug purchases from them in the past.
The informant had been used thirty times in the past to investigate drug activity.
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When the officers arrived to execute the warrant, the targets of the
investigation—Mr. Regis and Ms. Hales—were standing on the front porch.
During the search, the takedown team detained Mr. Regis and Ms. Hales outside of
the apartment. As a result of the items found in the search, Mr. Regis and Ms.
Hales were arrested.
Detective Varnado, who was a member of the N.O.P.D. Major Case
Narcotics Unit and a part of the entry team, testified that he systematically
searched the apartment, which had three upstairs bedrooms.  In the third upstairs
bedroom, he found an unidentified woman and her infant; the woman explained
that she was temporarily residing in the apartment with her infant.  In the first
upstairs bedroom, Detective Varnado found clothing and shoes matching the
physical characteristics of individuals Mr. Regis’ and Ms. Hales’ sizes.  On this
basis, he identified that room as Mr. Regis’ and Ms. Hales’ shared bedroom.  In
that room, he found on top of a dresser a medicine bottle containing 114 Xanax
pills; two Louisiana identification cards, one belonging to Ms. Hales and the other
belonging to Mr. Regis; an envelope with Mr. Regis’s name on it; and Mr. Regis’
photograph. The identification card and the envelope belonging to Mr. Regis
reflected a different address than the searched premises.  No utility bills in Mr.
Regis’ name were found in the apartment.
Inside an otherwise empty kitchen cabinet, Detective Varnado found a box
of Good Sense sandwich bags. Inside the box were not only plastic baggies, but
also a 3.30 gram rock of cocaine wrapped in plastic.  According to Detective
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Varnado, the rock “was larger than what is typically found on a street level user.”
Next to the box, he found a piece of plastic the same size as the piece of plastic that
was wrapped around the rock of cocaine.   In the cabinet he also found six .357
magnum bullets.
Detective Varnado testified that based on his personal experience he
believed the cocaine found in the apartment was not intended for personal use, but
rather was intended for distribution.  He provided three reasons for his belief.
First, a $10 rock, which is the lowest form usually bought by users, is “point one”
gram; thus, the 3.30 rock of cocaine found in the box could be broken down and
possibly cut into thirty-three pieces.  Second, plastic sandwich bags, such as those
found in the cabinet, are typically used to house crack cocaine in different states:
larger states and smaller states to be distributed.                                       (The plastic bags are tied off tight
at the end and cut.)  Third, the piece of plastic that was found next to the box was
the same size and shape as the plastic that housed the 3.30 gram rock of cocaine
found in the box.
None of the evidence seized was submitted for fingerprint identification.
Detective Varnado explained that no fingerprint tests were conducted on the
sandwich bag box or plastic baggies because, in his experience, fingerprint tests on
these surfaces are never successful.
Shortly after the warrant was executed, Lieutenant Mornay, the supervisor of
both the takedown and entry teams, arrived on the scene.  Detective Varnado
informed him that cocaine had been located in a kitchen cabinet and that a woman
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and her infant had been located in an upstairs bedroom.1  As a result of the
outcome of the search, Lieutenant Mornay ordered the arrest of Mr. Regis and Ms.
Hales for possession of cocaine with intent to distribute.  Before Mr. Regis and Ms.
Hales were arrested, Lieutenant Mornay informed them of their Miranda rights.
The officers found in Mr. Regis’ front pants pocket a set of keys to the searched
apartment and currency in the amount of $115.00.  The currency was in small
denominations:  four $20 bills, one $10 bill, and five $5 bills.  No drugs were
found on either Mr. Regis or Ms. Hales.   A black cell phone was seized from one
of them.  The apartment was leased to Ms. Hales.  No weapons, razor blades, or
baking soda were found in the apartment.
According to Lieutenant Mornay, Mr. Regis was asked if he would
cooperate; and Mr. Regis initially indicated that he would.  Mr. Regis admitted that
he had been living in the searched apartment for six months.  As noted, the keys to
the apartment were found in his pocket.  Mr. Regis told Lieutenant Mornay that he
did not know anything about the cocaine or who owned it.  Mr. Regis stated that
they rented the apartment and thus anyone could have put the cocaine in the
cabinet.
The parties stipulated to the criminalist’s expertise and that the criminalist
would testify that the white rock seized from the searched apartment tested positive
for cocaine.
1 Although Lieutenant Mornay acknowledged that the woman had full access to the apartment kitchen, the woman
was cleared of any involvement in the drug sales and released.
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DISCUSSION
Errors Patent
A review of the record for errors patent reveals an error in Mr. Regis’
sentence.  The district court sentenced him to a term of imprisonment at hard labor
for eight years without benefit of parole, probation, or suspension of sentence for
the first two years.  La. R.S. 40:967(A)(1)(B)(4)(b) provides that a person
convicted of possession of cocaine with intent to distribute shall be sentenced to
serve a term of imprisonment at hard labor of not less than two years nor more than
thirty years, with the first two years of said sentence being without benefit of
parole, probation, or suspension of sentence; and may, in addition, be sentenced to
pay a fine of not less than $50,000.00.2  Mr. Regis was convicted of the lesser
included offense of attempted possession of cocaine with intent to distribute
pursuant to La. R.S. 40:979(A), which provides:
[A]ny  person  who  attempts  or  conspires  to  commit  any  offense
denounced and/or made unlawful by the provisions of this Part shall,
upon conviction, be fined or imprisoned in the same manner as for the
offense planned or attempted, but such fine or imprisonment shall not
exceed one-half of the longest term of imprisonment prescribed for
the offense, the commission   of which was the object of the attempt or
conspiracy.
“There is no express statutory minimum sentence for being convicted of an
attempt, and principles of lenity require that the statute be strictly construed.”
State v. Callahan, 95-1331, p. 1 (La. 3/29/96), 671 So.2d 903; see also State v.
Brown, 00-2120 (La. App. 4 Cir. 12/19/01), 804 So.2d 863.  Accordingly, Mr.
Regis’ sentence must be amended to delete the prohibition denying him benefit of
parole, probation, or suspension of sentence for the first two years.
2 Cocaine is a schedule II drug.  Schedule II (A)(4) of La. R.S. 40:964.
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Disclosure of Confidential Informant’s Identity
By his first assignment of error, Mr. Regis contends that the district court’s
denial of his motion to disclose the confidential informant’s identity violated his
Sixth Amendment right to confrontation at the motion to suppress hearing and at
trial.
As a general rule, the state has a privilege to withhold the identity of a
confidential informant absent exceptional circumstances.  State v. Broadway, 96-
2659, p. 19 (La. 10/19/99), 753 So. 2d 801, 815.  The privilege, however, is not an
absolute one.   The courts employ a balancing test to determine when the
confidential informant’s identity must be disclosed to the defense.   Id. (citing
Roviaro v. United States, 353 U.S. 53, 62 (1957)).   “Whether a proper balance
renders nondisclosure erroneous must depend on the particular circumstance of
each case, taking into consideration the crime charged, the possible defenses, the
possible significance of the informer’s testimony, and other relevant factors.”
Roviaro, supra.    Pursuant to this test, the public interest in protecting the flow of
information must be balanced against the individual’s right to prepare his or her
defense.   Broadway, 96-2659 at p. 19, 753 So. 2d 815.  The informant’s identity
must be revealed when the accused establishes that disclosure is essential to his or
her defense.  Id.  The accused, however, has the burden of “setting forth concrete
reasons why identity of the informant is crucial to the defense.”  Broadway, 96-
2659 at pp. 19-20, 753 So.2d at 815.  The district court has great discretion in
deciding whether disclosure is warranted.  Id.
The informant privilege is codified in La. C.E. art. 514.  This article
enumerates several exceptions to the general rule of privilege including when
“[t]he party seeking to overcome the privilege clearly demonstrates that the interest
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of the government in preventing disclosure is substantially outweighed by
exceptional circumstances such that the informer's testimony is essential to the
preparation of the defense or to a fair determination on the issue of guilt or
innocence.” La. C.E. art. 514 C(3).3  When the state’s case shows the informer
participated in the crime, the jurisprudence has implied that this factor is sufficient
to establish “exceptional circumstances,” and the informer’s identity should be
disclosed.  In such cases, the informer does more than furnish a tip that enables the
police to make an arrest.  While working with the police, he takes part in the illegal
transaction itself.  See State v. Dotson, 260 La. 471, 505-506, 256 So.2d 594, 606
(La. 1971); State v. Wolfe, 630 So.2d 872, 876-877 (La. App. 4th Cir. 1993).
In this case, the district court denied Mr. Regis’ motion to compel disclosure
of the informant’s identity.  In its reasons for judgment, the district court relied on
State v. Degruy, 96-1463 (La. App. 4th Cir. 5/14/97), 696 So.2d 580, which held
that the key to deciding this issue is the informant’s participation in the alleged
criminal activity.  If the informant did not participate in the crime with which the
defendant stands charged, then the defense cannot compel disclosure.   Id. Applying
these principles, the district court reasoned that the state was not required to
disclose the informant’s identity because the informant did not participate in the
crime with which Mr. Regis was charged.  The district court stated:
[T]he confidential informant’s involvement ends before the search
warrant was executed.   The informant has no involvement with the
silver  dollar  sized  rock  of  crack  cocaine  found  within  the  home
occupied  by  both  defendants  at  the  time  the  search  warrant  was
executed.   Apparently, the State’s case depends on the circumstances
concerning the size of the rock found in a box in the pantry with
baggies and no other food typically found in the pantry, as well as the
cash and other evidence seized.
3 None of the other exceptions enumerated in La. C.E. art. 514 is relevant to the circumstances presented in this case.
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Mr. Regis contends that the district court erred in finding that he was
charged with distribution of a specific piece of cocaine—the rock of cocaine found
in the apartment.  In support, he points out that at trial the state offered the
currency found on him—$115 in small denomination—as evidence of his intent to
sell cocaine.  Although the informant was not mentioned by either of the state’s
two witnesses at trial (Detective Varnado and Lieutenant Mornay), Mr. Regis
contends that the state’s witness, Lieutenant Mornay, implicitly referred to the
sales to the informant by testifying that the currency found on Mr. Regis was “the
proceeds from narcotic sales.”  This argument, however, is not supported by the
record.  Lieutenant Mornay’s testimony regarding the currency was in response to
a question regarding why the police generally seize currency.    Lieutenant
Mornay’s testimony was that “[t]he money is proceeds from narcotics sales, small
amounts of crack cocaine, is what we believed based on experience.”   Lieutenant
Mornay was not referring to any particular past sales by Mr. Regis; rather, he was
explaining that the finding of currency in small denominations is an indicator of
drug trafficking.
The record reflects that Mr. Regis was arrested and charged with possession
of cocaine with intent to distribute based on the rock of cocaine and other evidence
indicating narcotic trafficking—plastic baggies, piece of plastic, and currency in
small denominations—found in executing the warrant for the apartment at which
Mr. Regis resided.4  The informant in this case, albeit pivotal to obtaining a search
4 Although the officers found an identification card and mail in Mr. Regis’ name with a different address, Mr. Regis
admitted to the officers that he had resided in the apartment for six months.
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warrant for the apartment, was not a participant in the crime for which Mr. Regis
was charged.   Under these circumstances, the defense is not entitled to compel
disclosure. See Degruy, supra;  State v. Thomas, 553 So.2d 980, 982 (La. App. 4th
Cir. 1989)(noting that a confidential informant’s “furnishing of information to
police, which is used by them to obtain a search warrant, is not in itself an
exceptional circumstance requiring disclosure”); State v. Badie, 510 So.2d 120 (La.
App. 4th Cir. 1987).
Mr. Regis also contends that the informant’s identity was necessary to his
defense because the informant’s testimony might have contradicted that of the
officers.  Merely alleging that contradictory testimony may be possible does not
constitute “exceptional circumstances” or a “concrete reason” to disclose the
identity of the confidential informant.  No basis exists in this case to conclude that
Mr. Regis’ rights were prejudiced by non-disclosure of the confidential informant's
identity.  We thus find the trial court did not abuse its discretion in denying the
motion to compel disclosure of the informant’s identity.
Non-unanimous jury verdict
Mr. Regis’ second assignment of error is that the jury instruction informing
the jury that it did not have to reach a unanimous verdict to convict him was
unconstitutional.  We find this assignment of error unpersuasive for three reasons.
First, a review of the record reflects that no contemporary objection was made to
this jury instruction; thus, Mr. Regis arguably waived review of this claim on
appeal.  La.C.Cr. P. art. 841.  Second, there is no indication in the record that the
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jury’s verdict in this case was less than unanimous.  Third, the appellate courts that
have addressed this issue, including this court, have rejected it.  State v. Tillman,
08-0408, p. 25 (La. App. 4 Cir. 3/04/09), 7 So.3d 65, 78; State v. Smith, 2009 WL
2602330, 09-100 (La. App. 5 Cir. 8/25/09), ___ So.3d ___ (collecting cases from
all the circuits).
DECREE
The defendant’s conviction is affirmed.  The defendant’s sentence is
amended to delete that portion which denies the benefits of probation, parole, and
suspension of sentence for the first two years; and, as amended, the defendant’s
sentence is affirmed.
CONVICTION AFFIRMED; SENTENCE AMENDED, AND
AFFIRMED AS AMENDED.
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