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State v. Gruy

Court of Appeals of Louisiana, Fourth Circuit

April 5, 2017

STATE OF LOUISIANA
v.
GREGORY DE GRUY

         APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 525-665, SECTION "K" Honorable Arthur Hunter, Judge

          Leon A. Cannizzaro, Jr., District Attorney Scott G. Vincent, Assistant District Attorney COUNSEL FOR STATE OF LOUISIANA/APPELLEE

          Robert E. Jones, IV COUNSEL FOR DEFENDANT/APPELLANT

          (Court composed of Chief Judge James F. McKay, III, Judge Dennis R. Bagneris, Sr., Judge Sandra Cabrina Jenkins)

          SANDRA CABRINA JENKINS JUDGE

         Defendant, Gregory DeGruy, was charged by bill of information with one count of aggravated assault with a firearm, in violation of La. R.S. 14:37.4. Defendant entered a plea of not guilty and elected a trial by judge. Following a one-day bench trial, defendant was convicted of aggravated assault, a responsive verdict to the charged offense. After a hearing on defendant's motion for post-verdict judgment of acquittal, which the trial court denied, defendant was sentenced to three months in Orleans Parish Prison, all of which was suspended, three months inactive probation, and ordered to pay a fine and court costs. Defendant now appeals his conviction. Upon review of the record in light of the applicable law, we find no merit in defendant's assignments of error on appeal.[1]Accordingly, we affirm defendant's conviction.

         STATEMENT OF FACTS

         The State charged defendant with aggravated assault with a firearm upon the victim, Emmanuel Henry, III, on June 5, 2015. At trial, the following testimony and evidence was presented.

         The seventeen-year-old victim, Emmanuel Henry, III ("Emmanuel"), testified that on June 5, 2015, around 9:00 p.m., he was walking from a friend's house to his home at 4726 Bundy Road. Emmanuel stated that he had been playing football that evening and was wearing a tight, white t-shirt and shorts. As he was walking on the sidewalk along Bundy Road, about a block from his house, Emmanuel saw defendant retrieving mail from a mailbox. As Emmanuel got closer, defendant was standing at the mailbox and holding a gun towards him; Emmanuel heard defendant say, "keep it moving, son. I'll knock your head in the dirt." Emmanuel immediately put both his hands in the air and told defendant: "I'm just trying to get home." Emmanuel then heard his father yell at defendant from down the block, saying: "Hey, what are you doing?" Emmanuel kept walking towards his father as defendant got into a car in the driveway and sped off, driving the wrong way on a one-way street. Emmanuel's father then called the police, who arrived and took a report.

         When asked whether defendant had pointed the gun at him, Emmanuel stated, "yes, " and said the gun was facing his stomach; he then indicated in court how defendant had held the gun. Emmanuel testified that he did not know why defendant pointed the gun at him. He stated he was just walking home, and he did not make any aggressive or threatening gestures toward defendant. When he heard defendant say "I'll knock your head in the dirt, " and he saw the gun pointed at him, Emmanuel believed that defendant would shoot him "if I was to try something or anything." When asked how he felt during this incident with defendant, Emmanuel testified: "I was scared. […] I felt like [defendant] was going to shoot me."

         Emmanuel Henry, Jr. ("Mr. Henry") testified that he is Emmanuel's father and he was at 4726 Bundy Road on June 5, 2015.[2] About 9:00 p.m. that night, Mr. Henry had just spoken to Emmanuel on the phone and was standing in the driveway waiting for him to return home. Mr. Henry saw Emmanuel walk around the corner onto Bundy Road about a block away from where Mr. Henry was standing. At the same time, Mr. Henry noticed defendant, who owned the house four houses down, getting mail from his mailbox with a gun underneath his arm. As Emmanuel walked by defendant, Mr. Henry saw Emmanuel pause and put his hands up in the air. Mr. Henry began to approach them and saw defendant holding the gun in his hand pointed towards Emmanuel. Upon seeing this, Mr. Henry yelled at defendant: "What are you doing? That's my son." Mr. Henry told Emmanuel to keep walking towards him and, once Emmanuel got past the defendant, defendant got into a gold BMW parked in the driveway and drove off in the wrong direction on the one-way street. Immediately after the incident, Mr. Henry retrieved his cell phone and called 911. Mr. Henry stated that after the incident his son was "shaken up" and "[n]ervous bad."

         On cross-examination, Mr. Henry testified that he could not hear any words exchanged between Emmanuel and defendant, but he did not see Emmanuel make any aggressive gestures toward defendant at any time. Mr. Henry stated that he did see Emmanuel put his hands in the air and then lift up his shirt, as if to show defendant that he did not have any weapons. Mr. Henry could not estimate how long the interaction between his son and defendant lasted. He also acknowledged that another neighbor was outside and closer to defendant's house when the incident occurred.

         Shatasha Johnson, an operator for the New Orleans Police Department ("NOPD"), briefly testified for the purpose of authenticating the 911 incident recall sheet and audio recording of the 911 call received on June 5, 2015. Thereafter, the 911 recording was published to the trial court.

         On the 911 recording, the caller identifies himself as Emmanuel Henry, Jr. Mr. Henry can be heard reporting the incident as follows: "My son was just coming from around the corner and the neighbor down the street, he [defendant] pulled a gun out on my son [… ] just now and jumped into his car and pull[ed] off." When the operator asks for the name of the neighbor, Mr. Henry replies: "I don't even know his name, ma'am. He has a house on Bundy Road. And this guy… my son was just coming from around the corner, coming from by his friend's house. I'm watching him come from around the corner and walk down the street. I'm watching him get on the side from the man cause he see the gun and the man started pointing a gun at him." Mr. Henry reports that the incident happened outside the neighbor's house at 4758 Bundy Road and that his son lives at 4726 Bundy Road. Mr. Henry also tells the operator that the neighbor does not live at the house on Bundy Road and only comes by to check on his property. The operator then asked Mr. Henry to provide a description of the neighbor, the car he was driving, and the direction in which Mr. Henry last saw the car.

         NOPD Detective Charles Love testified that he conducted the investigation into the incident reported in the 4700 block of Bundy Road on June 5, 2015. When he arrived at the scene of the reported incident, Det. Love spoke with Officer Sartan, the responding officer, and then spoke with the alleged victim, Emmanuel, and Mr. Henry. Based on the statements he obtained, Det. Love determined that the owner of the house at 4758 Bundy Road had perpetrated an aggravated assault upon Emmanuel. Det. Love used his NOPD mobile data terminal to obtain a name and photograph of the owner of the house, defendant. Det. Love sent the photograph to the Louisiana State Police to have a six-person photographic lineup prepared, and he arranged for Emmanuel to meet with Det. Guient at the Seventh District Station to view the lineup. Det. Love later learned that Emmanuel made a positive identification of defendant from the photographic lineup. Based on the statements and identification, Det. Love obtained an arrest warrant for defendant for the offense of aggravated assault. At that point, Det. Love's investigation was concluded.

         NOPD Det. Dorjius Guient testified that he met with Emmanuel at the Seventh District Station on June 9, 2015, at approximately 5:30 p.m. to present the six-person photographic lineup. Det. Guient identified the envelope and photographic lineup presented to Emmanuel and he explained the procedure that he followed for presenting it. Det. Guient testified that Emmanuel identified the photograph of defendant as the person who pointed a gun at him on June 5, 2015.

         NOPD Det. James Kish testified that he executed the arrest warrant for defendant. At the scene of the arrest, Det. Kish confiscated a firearm belonging to defendant with his permission. Det. Kish then transported defendant to the Seventh District Station and conducted a video-recorded interview with defendant. Prior to questioning, Det. Kish informed defendant of his Miranda rights. Defense counsel stipulated that defendant gave a voluntary statement to Det. Kish. At that time, defendant's video-recorded interview was played for the trial court.

         At the beginning of the interview, Det. Kish informs defendant that he was arrested pursuant to a warrant for aggravated assault and that he is accused of "pulling a gun on somebody in front of your house" on Friday, June 5, at 9:00 p.m. Det. Kish asks defendant if he has ever pulled a gun on anyone and the defendant replies that he has never done so. Defendant states that he has been an Orleans Parish Sheriff's Office Reserve Deputy since 1984 and has a commissioned firearm, which is the one that Det. Kish confiscated from defendant's truck. Defendant repeatedly states that he has no idea what the accusation and his arrest are about. Det. Kish asks defendant if he has ever had any problems or confrontations with anyone in his neighborhood on Bundy Road. Defendant states that he recalls one recent night at about 9:30 p.m. when he went to his house with his girlfriend to check the mail, and he recounted the following: "I was checking my mail and this guy just came out of nowhere and started talking to me and I told him, sir just get away from me, I don't know you, get away from me." Det. Kish asks again whether defendant got into a confrontation or pulled a gun on that person or anyone that defendant could recall. Again, defendant denied such accusation, but stated, "the only thing I can remember is the guy coming out of nowhere and I said leave me alone, I don't know you." Det. Kish then left the room for several minutes to take a phone call. Upon returning, he asks defendant why someone would pick him out of a six-person photographic lineup and say that he pulled a gun. Defendant states: "Well I'm just saying the guy that the other night when I was checking my mail, the guy that I told get away from me I guess that he's the only one, that's the only thing that happened a couple of days ago." Det. Kish asks if defendant was armed with his gun at the time, and defendant admits that he had his gun on his person that night. Det. Kish then questions defendant as follows:

Det. Kish: But at no point, you're saying at no point you pulled that weapon out.
Defendant: I didn't pull the weapon out on the guy, I didn't pull it out on him.
* * *
Det. Kish: Ok, that's what I'm going with, so you're saying at no point in time you pulled it out, pointed it, anything, you never showed it?
Defendant: I never pointed it at nobody, none of that, never did that, no.
Det. Kish: Was it concealed? Where was it on your person?
Defendant: Well, to be honest with you, when I got out the car, cause you know, living in that neighborhood is kinda [sic] bad, ok. When I got out the car that night, you know, it's 9:40 at night, I literally, I walked out the car with the gun in my hand, but it was just in my hand, it was in my right hand.
Det. Kish: So you did have it in your hand?
Defendant: Yeah, it was in my hand but I didn't point it at nobody.

         Defendant also stated that his girlfriend, Dr. Jan Cooper, was with him that night, and she was in the car, her gold Mercedes, when this occurred. Det. Kish stated that he would talk with her and ask what she saw. Det. Kish also confirmed with defendant that the gun confiscated from his truck was the one he had with him on the night in question. Finally, Det. Kish asked defendant why he did not say in the beginning of the interview that he got out of the car with the gun in his hand. Defendant replied that he was "just nervous, " he has never been arrested before, and he repeated that he didn't pull the gun out on anyone, because it was already in his hand.

         Defense counsel called two witnesses to testify at trial. Dr. Jan Cooper testified that she is defendant's girlfriend of fifteen years and, since Hurricane Katrina, defendant has been living at her house but still owns a house on Bundy Road. On the evening of June 5, 2015, she and defendant had gone out to dinner and stopped at a store; then, defendant wanted to check the mail at his house on Bundy Road before going back to her house. Defendant drove her car to his house, pulled into the driveway, and he got out while she remained in the car. Dr. Cooper explained that defendant's house is the second from the corner of Bundy Road and Hammond Street, but the lot on the corner is a vacant lot.[3] While she waited in the car, she saw a man [Emmanuel] walking at a brisk pace on Hammond and turn the corner onto Bundy Road towards them. She watched Emmanuel as he approached; she saw his right hand in his pocket and it appeared that he was holding something up to his chest. Then, she saw Emmanuel walk towards defendant, who was standing at the mailbox, and stop. At this point, she turned to her left to look behind the car to see what was happening. Dr. Cooper stated that, at first, she was concerned that Emmanuel meant to rob them, but it appeared to her that defendant and Emmanuel were just standing there talking. She testified that she could see Emmanuel's right side and his back and defendant's left side but not his right side or his right arm. While the two men were speaking to one another, Dr. Cooper saw another man, Mr. Henry, standing about two or three houses up the street on the sidewalk frantically waiving towards defendant and Emmanuel. When she looked back at defendant, he was almost back to the car. Defendant got in the car and quickly drove off in the wrong direction on Bundy Road.

         Dr. Cooper testified that she did not see defendant with a gun that night. She stated that she knew defendant often had his gun with him, but she did not notice if he had it with him when he got out of the car that night. She admitted that she could not hear anything that was said by either ...


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