FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 525-646,
SECTION "K" Honorable Arthur Hunter, Judge
A. Cannizzaro, Jr. DISTRICT ATTORNEY Scott G. Vincent
ASSISTANT DISTRICT ATTORNEY COUNSEL FOR STATE/APPELLEE
E. Regan, Jr. Paul J. Barker REGAN LAW, PLC COUNSEL FOR
composed of Judge Edwin A. Lombard, Judge Roland L. Belsome,
Judge Sandra Cabrina Jenkins
A. Lombard Judge.
defendant, Richard Abbott appeals his conviction and sentence
for second degree battery, a violation of La. Rev. Stat.
14:34, arguing that the trial court erred in denying his
motion for a new trial. After review of the record in light
of the applicable law and arguments of the parties, the
judgment of the trial court is affirmed.
Facts and Procedural History
evening of July 18, 2015, the defendant was involved in an
altercation outside the Three-Legged Dog, a French Quarter
bar. The defendant was commissioned to carry a weapon as a
state fire marshal at the time of the incident and, as an
arson investigator, was assigned a state-owned,
explosive-sniffing service dog. Prior to the altercation, the
off-duty (but armed) defendant was drinking at the bar,
accompanied by his off-leash service dog. The defendant was
arrested and, on July 24, 2015, a grand jury returned an
indictment charging him with one count of aggravated battery
and one count of possession of a firearm while on the
premises of an alcoholic beverage outlet. At his arraignment
on August 3, 2015, the defendant pleaded not guilty to both
counts and, on September 4, 2015, the State entered a
nolle prosequi on the second count. On September 8,
2015, the trial court granted the defendant's motion to
waive his right to a trial by jury.
January 29, 2016, just prior to trial, the defendant filed a
motion pursuant to La. Code Crim. Proc. 781,  seeking a charge
on the use of force or violence in defense the defendant
filed a motion to instruct on the justifiable use of force or
violence in defense, citing La. Rev. Stat. 14:19(A)(1)(a),
(C) and(D). On February 17, 2016, the defendant filed
a second motion seeking a charge on the burden of proof
pertaining to a justification defense. However, the record
before the court does not reflect a trial court ruling on the
defendant's motions to instruct, nor does the record
indicate that a defense objection to the trial court ruling
or failure to rule on the defendant's motions.
following evidence was adduced at the two-day trial which
began on January 29, 2016:
Andrew Packer of the New Orleans Police Department (NOPD)
testified that the night of July 18, 2015, he was working a
paid detail in the French Quarter when, at 8:35 p.m., he was
dispatched to an aggravated battery in progress at the
Three-Legged Dog. At the scene, Sergeant Packer interviewed
the victim, Curtis Courtney, and several witnesses. He
observed open lacerations on Mr. Courtney's head and the
defendant, who appeared intoxicated, seated at the bar. After
learning that defendant struck Mr. Courtney on the head with
a handgun, he placed the defendant under arrest, administered
Miranda warnings, and recovered a loaded .357 magnum
revolver from the defendant's rear pocket. Sergeant
Packer observed that the defendant's state-issued,
explosive-sniffing, service dog was not on a leash and was
located in another room of the bar.
cross-examination, Sergeant Packer related Mr. Courtney's
version of events: Mr. Courtney and his friend were outside
the bar when the defendant approached them and asked if they
knew the location of his dog. They responded that they did
not know and the defendant began beating Mr. Courtney on the
head with a pistol. Sergeant Packer testified that the two
bartenders verified that the defendant had been consuming
alcohol and that the defendant was too intoxicated to
interview, although Sergeant Packer believed the defendant
understood the Miranda warnings when given. Sergeant
Packer conceded that the defendant was not given a
breathalyzer test and that the intake report narrative
incorrectly identified the two bartenders as male.
Detective Christopher Laborde testified that he was at the
police station on July 18, 2015, when Sergeant Packer arrived
with the defendant. Detective Laborde removed all items
bearing the identification of the state fire marshal's
office from the defendant's wallet and then, with another
officer, relocated to the Three-Legged Dog to retrieve the
video surveillance footage and take photographs of Mr.
Courtney's injuries. Detective Laborde related that,
prior to their arrival, the manager of the bar had been
instructed by Sergeant Packer to recover the video
surveillance of the incident from the bar's video cameras
and to download the footage to a "jump drive."
Laborde narrated the video surveillance tape with his
observations as it was played in open court. According to
Detective Laborde's description, at 8:31 pm the defendant
was seated at the bar and Mr. Courtney was outside with an
unidentified dog. Detective Laborde identified another man in
a dark shirt as Marshal Edwards, the man who initially
apprised the defendant that his service dog was absent from
the bar. The defendant pushed Mr. Edwards and when Mr.
Courtney attempted to break up the fight, the defendant hit
Mr. Courtney with an object he retrieved from his waistband.
Detective Laborde testified that the surveillance video
corroborated the version of events related to him by Sergeant
Packer earlier that evening. Detective Laborde stated that
defendant declined to be interviewed.
cross-examination, Detective Laborde conceded that Sergeant
Packer selected the surveillance footage to collect,
consisting of twenty minutes of footage from only three of
the twelve camera angles. He also conceded that, to his
knowledge, Mr. Courtney declined to seek medical attention
for his injuries. Detective Laborde acknowledged that the
incident report incorrectly identified the two bartenders as
male and did not include any indication that the defendant
was "too drunk…to question."
Edwards testified, stating he was a regular patron of the
Three-Legged Dog. On the evening of July 18, 2015, he went to
the bar to "hang out" with his friend, Mr.
Courtney. When he arrived, he and Mr. Courtney went outside
to smoke a cigarette and were approached by the defendant.
According to Mr. Edwards, the defendant "thought that we
had taken his dog and hidden it in the back and then told him
it was dead, " but did not offer an explanation as to
why the defendant made such an accusation. Mr. Edwards stated
that the defendant appeared "extremely intoxicated"
and when he pulled out his gun, he (Mr. Edwards) and Mr.
Courtney began to back away. The defendant then reached out
to grab Mr. Edwards by the throat. In response, Mr. Courtney
"grabbed" the defendant who began hitting him (Mr.
Courtney) with his gun. When asked to explain what he meant
when he said Mr. Courtney "grabbed" the defendant,
Mr. Edwards stated that he didn't see what happened, but
he heard Mr. Courtney say, "hey, stop." Mr. Edwards
described the gun as a "little black revolver, "
but was unable to positively identify the weapon in court.
Mr. Edwards stated that he was not injured in the
altercation, but that because the defendant tried to
"chase [him] around the bar" when he attempted to
go inside, he remained outside to wait for the police to
cross-examination, Mr. Edwards testified that at no time did
he have his hands in his pockets, nor did the defendant
instruct him to remove his hands from his pockets. The
surveillance footage was replayed for Mr. Edwards who stated
that the images were too blurry for him to decipher, although
he was able to identify his girlfriend in the video and
agreed that, after the police had been called, the video
showed him handing his backpack to his girlfriend, who
sprinted out of the bar and down the street and did not
reappear on the video. Mr. Edwards denied that any weapons or
drugs were contained in his backpack, claiming that he was
giving his girlfriend his car keys.
Branch, one of the bartenders working at the Three-Legged Dog
on the night of the incident, testified that the defendant
entered the bar at 2:30 pm, introduced himself and stated
that he was new to the neighborhood. Ms. Branch recalled that
the defendant began drinking at 2:30 pm and continued until
he was arrested around 9:00 pm and that everyone at the bar
was intoxicated except Mr. Edwards, who generally drank
orange juice. She testified that both the defendant's and
Mr. Courtney's dogs were at the bar but that the
defendant's dog was off-leash and he (the defendant) did
not appear to be watching his dog, as it was roaming around
the bar. Ms. Branch testified that she did not witness the
actual altercation but observed Mr. Courtney holding his head
shortly thereafter. While the defendant and Mr. Edwards were
still outside engaged in a verbal argument, Ms. Branch
approached Mr. Courtney, observing three bumps on his head.
She stated that eventually everyone returned inside the bar
while waiting for the police to arrive. When the police
arrived, Ms. Branch witnessed "a small silver
revolver" being removed from the defendant's pocket.
cross-examination, Ms. Branch conceded that she gave the
defendant's private investigator a written statement on
September 16, 2015, indicating that the defendant had not
been drinking excessively. She stated that, as a licensed
bartender, she did not find the defendant too intoxicated to
be served, although she could not recall specifically what he
had been drinking, other than beer and shots of alcohol.
Courtney testified that he lives across the street from the
Three-Legged Dog and is a regular patron. On the night of the
incident, he arrived at 7:30 pm and observed the defendant,
who he had never met before, sitting at the bar drinking a
beer while his dog freely roamed around the premises. The two
men engaged in a brief conversation and Mr. Courtney informed
the defendant that his dog had just exited the bar. When
asked whether the defendant appeared to be drunk, Mr.
Courtney responded that "he looked giddy." He
testified that, at some point, he (Mr. Courtney) was outside
smoking a cigarette and drawing on the sidewalk with chalk
but could not recall the incident or the events leading up to
the incident and was only able to piece together what
happened based on information from his friends and what he
discerned from the video footage. Mr. Courtney stated that he
suffered three lacerations to the back of his head which bled
for hours and that, although he declined medical treatment on
the night of the incident because he could not afford
ambulance charges, he sought medical treatment the following
morning. Mr. Courtney recalled consuming four bottles of
Coors Light prior to the incident and declared that he was
not in possession of any weapons when the incident occurred.
He testified that, at the time of the incident, he was not
aware that the defendant was a law enforcement officer or
that the defendant was in possession of a gun.
defendant's private investigator, Emily Beasley,
testified, but the extent of her testimony was a description
of the layout of the bar and the location of the video
surveillance cameras. She stated that she attempted to
recover the remaining surveillance footage the police had not
requested from the bar manager, but it no longer existed.
defendant testified that, as a state fire marshal, he was
commissioned to carry a weapon and regularly participated in
the special firearms training required of all law enforcement
officers. He was a fifteen-year U.S. Army veteran and had
been deployed for combat duty in the 1991 Persian Gulf War,
where he was wounded by an exploding RPG. After his father
passed away, he moved to Louisiana to be closer to his family
and began employment as an arson investigator with the fire
marshal service; he was eventually promoted to captain and
relocated to the New Orleans area. He was also issued a
state-owned, explosive-sniffing, service dog, a veteran of
three tours in Afghanistan with the U.S. Marines.
defendant testified that on the day of the incident he was
new to the French Quarter neighborhood and, because his cable
service was not yet connected, he stopped into the
Three-Legged Dog at 2:00 pm to watch television. During his
afternoon visit, he was advised by the bartenders that the
bar was dog-friendly and invited to return later with his dog
to attend a crawfish boil that evening. The defendant
testified that he left the bar at 3:30 to run errands and
walk his dog, eventually returning with his dog later that
the surveillance footage playing, the defendant narrated the
details in the video supporting his version of events. At
8:24 pm, Mr. Courtney was outside with his own dog while the
defendant's dog followed one of the bartenders to the ice
machine. The defendant asserted that he had viewed the video
"probably 100" times and at no point did it show
his dog outside of the bar. According to the defendant, at
8:30 pm, Mr. Courtney called to him from outside the bar and
said, "Hey, hey, fire marshal, your dog just got hit by
a taxi out here." Because his dog was not in his
immediate sight, the defendant exited the bar to investigate.
He questioned Mr. Courtney who repeatedly told him that the
dog had been hit by a taxi, saying "If that dog is so
special, you need to keep a better eye on it." Then,
according to the defendant, Mr. Edwards approached, poking
him in the chest and telling him that, "[his] dog was
dead, and if [he] didn't get out of their face, [he]
would be dead too." The defendant then "strong arm
barred" Mr. Edwards in the "brachial plex."
The defendant claimed that, as Mr. Edwards began walking
backward, he reached both of his hands into his pockets.
Identifying himself as a law enforcement officer, the
defendant commanded Mr. Edwards to remove his hands from his
pockets but Mr. Edwards continued to walk backward and the
defendant heard a female say, "get his gun!" The
defendant then turned and observed Mr. Courtney reaching
toward his (the defendant's) waistband where his gun was
defendant stated that, at that point, he was afraid because
he was surrounded by three people (Mr. Edwards, Mr. Courtney,
and Mr. Edwards' girlfriend) with Mr. Courtney attempting
to seize his gun. He attempted to shield his gun from Mr.
Courtney's reach but Mr. Edwards restrained his (the
defendant's) other arm. The defendant took his gun out of
his holster and secured it in his palm to prevent it from
falling into Mr. Courtney's possession or sliding into
the public street. Because Mr. Courtney continued to reach
forward, putting his hands on defendant's shoulders, the
defendant struck him (Mr. Courtney) on the head with the
pistol, repeatedly instructing him to "get down."
After the defendant struck him three times, Mr. ...