State v. Landrieu

274 So.3d 661

STATE of Louisiana

v.Kenneth LANDRIEU

NO. 2018-KA-0964

Court of Appeal of Louisiana, Fourth Circuit.

JUNE 12, 2019

Thomas M. Calogero, LAW OFFICE OF THOMAS M. CALOGERO, 2955 Ridgelake Drive, Suite 114, Metairie, LA 70002, COUNSEL FOR PLAINTIFF/APPELLANT

Leon Cannizzaro, District Attorney, Michael Danon, Assistant District Attorney, DISTRICT ATTORNEY'S OFFICE, ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/STATE OF LOUISIANA

(Court composed of Judge Terri F. Love, Judge Sandra Cabrina Jenkins, Judge Dale N. Atkins )

Judge Terri F. Love

Defendant Kenneth Landrieu ("Mr. Landrieu") seeks appellate review of his conviction and sentence for aggravated assault with a firearm. We find the testimonial evidence uncontradicted and therefore sufficient to support Mr. Landrieu's conviction. Additionally, we find evidence of the victim's federal civil lawsuit, the functionality of the weapon at issue, and the recorded conversation between police officers to be irrelevant to the issues in this case. For that reason, we find no abuse of the trial court's discretion in ruling the alleged justification and impeachment evidence inadmissible. Moreover, we find the trial court did not abuse its discretion in determining the juror in question could arrive at an impartial verdict denying Mr. Landrieu's challenge for cause. Accordingly, we affirm Mr. Landrieu's conviction and sentence.

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

Mr. Landrieu was commissioned as a Reserve Deputy of the Orleans Parish Sheriff's Office ("OPSO") in 2007. At the time of the incident in question, Mr. Landrieu was still a commissioned reserve deputy.

In September 2015, the victim, Joseph Harris ("Mr. Harris"), was driving on Magazine Street when a "baby blue" Cadillac, driven by the defendant, Mr. Landrieu, abruptly pulled in front of Mr. Harris' vehicle. Mr. Harris, attempting to avoid a collision, slammed on his brakes and then used the oncoming traffic lane to pass the Cadillac.

Mr. Landrieu considered Mr. Harris' passing maneuver to be dangerous and attempted to initiate a "traffic stop." Mr. Landrieu pulled alongside Mr. Harris' vehicle and cut off Mr. Harris' path of travel. He was successful in briefly stopping Mr. Harris; however, Mr. Harris was able to maneuver his vehicle to leave the scene. Mr. Landrieu later caught up to Mr. Harris and stopped him again.

Mr. Landrieu then exited his vehicle with his personal firearm in hand and his honorary badge displayed. Mr. Harris testified that Mr. Landrieu began yelling profanities at him, accused Mr. Harris of using drugs or alcohol, pointed his weapon at Mr. Harris multiple times, and threatened to "call his boys" to have Mr. Harris' vehicle searched. Mr. Harris testified that he was afraid for his life when Mr. Landrieu pointed the firearm at him. He also indicated that he was able to take down Mr. Landrieu's license plate and later shared news of the incident with his wife and mother-in-law.

Initially, Mr. Harris did not report the incident to the police until two days after the incident occurred. Mr. Harris indicated that he did not call the police initially because he believed Mr. Landrieu was a police officer and that reporting the incident would be fruitless. However, Mr. Harris conducted his own investigation and learned that the badge Mr. Landrieu displayed was an honorary reserve badge. Consequently, Mr. Harris called the New Orleans Police Department ("NOPD"), reporting an individual pointed a gun at him while impersonating a police officer.

Detectives John Waterman, Chris Puccio, and Walter Edmonds conducted the police investigation in this case. Detective Waterman testified that he developed Mr. Landrieu as a suspect after learning that the vehicle in question belonged to Landrieu Public Relations and the primary driver was Mr. Landrieu. Detective Puccio testified that he conducted a photographic lineup, from which Mr. Harris identified Mr. Landrieu as the individual who stopped him in traffic and pointed a gun at him. Detective Waterman testified that Mr. Landrieu cooperated and turned over the handgun, which Mr. Harris later positively identified as the gun that was pointed at him. Thereafter, defense counsel stipulated that Mr. Landrieu was the individual who stopped Mr. Harris' car and pointed a gun at Mr. Harris.

On cross-examination, defense counsel attempted to question Detective Waterman about a conversation that he allegedly had with NOPD Officers Jonathan Blount and Dwight Salier. However, the trial court sustained the State's hearsay objection refusing to allow defense counsel to play the conversation for the jury. Additionally, defense counsel attempted to untie the handgun at issue in order to demonstrate how the gun operated.¹ The trial court refused to allow defense counsel to untie the handgun. Defense counsel then attempted to introduce into evidence a photograph of the same type of handgun as the one used in the altercation between Mr. Landrieu and Mr. Harris. However, the State objected to the photograph's introduction into evidence. The trial court subsequently sustained the State's objection as the photograph was not of the handgun at issue.

The State also called Blake Arcuri, general counsel for the Orleans Parish Sheriff's Office. Mr. Arcuri testified that Mr. Landrieu was an honorary reserve deputy with OPSO. Likewise, Mr. Arcuri stated that Mr. Landrieu was not Peace Officer Standard Training-certified ("POST-certified") and therefore could not effectuate arrests or carry an OPSO registered firearm in the performance of any law-enforcement duty. Mr. Arcuri further testified that Mr. Landrieu had never done any work or filed any reports for the Sheriff's Office and had not registered his firearm with the Sheriff's Office per protocol.

On cross-examination, defense counsel attempted to question Mr. Arcuri about Mr. Harris' federal civil lawsuit. Again, the trial court refused to allow any discussion of the federal lawsuit. After the State rested, defense counsel moved for a mistrial on grounds that the defense should have been allowed to question Mr. Harris and Mr. Arcuri about Mr. Harris' federal lawsuit. Counsel argued that he should have at least been given the opportunity to question the witnesses on the existence of the lawsuit even if he was barred from questioning them on its details. The trial court denied the motion for mistrial.

Mr. Landrieu sought to present the testimony of Officers Blount and Salier, who were allegedly subpoenaed, but were not present in court. However, there is no indication in the record that either officer was ever served. Mr. Landrieu's mother Phyllis Landrieu testified that Mr. Landrieu became an honorary reserve deputy after Hurricane Katrina and that he took a 32-hour firearm training course after becoming an honorary reserve deputy.

Following the presentation of all the evidence, the jury found Mr. Landrieu guilty for aggravated assault with a firearm, in violation of La. R.S. 14:37.4. Thereafter, Mr. Landrieu timely filed this appeal.

ERRORS PATENT

A review of the record reveals two errors patent. First, Mr. Landrieu was not re-arraigned after the State amended the bill of information and the case was transferred from Section "A" to Section "G." Pursuant to La. C.Cr.P. art. 555, the "failure to arraign the defendant or the fact that he did not plead, is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he pleaded not guilty." The record contains no evidence that Mr. Landrieu objected to the trial court's failure to re-arraign him after his case was transferred to Section "G" and prior to trial. Therefore, any error relating to the trial court's failure to re-arraign Mr. Landrieu was waived.

Additionally, the record reveals that the motion for appeal was filed and granted after the trial court imposed Mr. Landrieu's original sentence.² However, the trial court subsequently re-sentenced Mr. Landrieu. The Louisiana Supreme Court has consistently held that an appeal cannot be taken by a defendant except from a conviction and sentence. La. C.Cr.P. art. 912 ; State v. Martin , 483 So.2d 1223, 1224-25 (La. App. 4th Cir. 1986). In Martin , this Court held that when the trial court imposes a sentence after an appeal has been granted, "[d]ismissing the appeal would simply result in a delay of the appellate process, and hinder defendant's right to appeal." Id. at 1225. Accordingly, "where a sentence is imposed after defendant's motion for appeal is filed and granted, the appeal will not be dismissed." Id.

SUFFICIENCY OF THE EVIDENCE

In his first assignment of error, Mr. Landrieu asserts that the State presented insufficient evidence to sustain his conviction for aggravated assault with a firearm.

When reviewing the sufficiency of the evidence, Louisiana appellate courts apply the standard set forth in Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The appellate court must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. , 443 U.S. at 319, 99 S.Ct. 2781, 2789 (1979). "If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all the evidence most favorable to the prosecution must be adopted." State v. Egana , 97-0318, p. 6 (La. App. 4 Cir. 12/3/97), 703 So.2d 223, 228. Further, credibility determinations including the weight attributed to the evidence, rests solely with the trier of fact. State v. Brown , 17-0124, p. 5 (La. App. 4 Cir. 12/12/17), 234 So. 3d 978, 982.

Mr. Landrieu was convicted of aggravated assault with a firearm. La. R.S. 14:37.4 provides:

(A) Aggravated assault with a firearm is an assault committed with a firearm.

(B) For purposes of this Section, "firearm" is defined as an instrument used in the

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