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State v. Abbott

Court of Appeals of Louisiana, Fourth Circuit

June 14, 2017

STATE OF LOUISIANA
v.
RICHARD ABBOTT

         APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 525-646, SECTION "K" Honorable Arthur Hunter, Judge

          Leon A. Cannizzaro, Jr. DISTRICT ATTORNEY Scott G. Vincent ASSISTANT DISTRICT ATTORNEY COUNSEL FOR STATE/APPELLEE

          Martin E. Regan, Jr. Paul J. Barker REGAN LAW, PLC COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins

          Edwin A. Lombard Judge.

         AFFIRMED

         The 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.

         Relevant Facts and Procedural History

         On the 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.

         On January 29, 2016, just prior to trial, the defendant filed a motion pursuant to La. Code Crim. Proc. 781, [1] 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).[2] 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.

         The following evidence was adduced at the two-day trial which began on January 29, 2016:

         Sergeant 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.

         On 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.

         NOPD 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."

         Detective 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.

         On 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."

         Mr. 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 arrive.

         On 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.

         Blake 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.

         On 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.

         Mr. 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.

         The 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.

         The 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.

         The 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 evening.

         With 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 holstered.

         The 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. ...


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