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State v. Ballard

Court of Appeals of Louisiana, Fourth Circuit

March 21, 2018

STATE OF LOUISIANA
v.
VAN C. BALLARD

          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 532-536, SECTION "L" Honorable Franz Zibilich, Judge

          Leon Cannizzaro DISTRICT ATTORNEY Scott G. Vincent ASSISTANT DISTRICT ATTORNEY PARISH OF ORLEANS, COUNSEL FOR APPELLEE/STATE OF LOUISIANA

          Eric J. Hessler ATTORNEY AT LAW COUNSEL FOR OFF. BALLARD/APPELLANT

          Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Tiffany G. Chase

          Daniel L. Dysart, Judge

         Following a judge trial, Van C. Ballard, a retired New Orleans Police Department ("NOPD") officer (hereafter, "Ballard"), was convicted of one count of malfeasance in office, and he now appeals his conviction. For the reasons that follow, we affirm.

         PROCEDURAL BACKGROUND:

         On February 8, 2017, the State of Louisiana filed a bill of information charging Ballard with malfeasance in office, a violation of La. R.S. 14:134.

         At the time of the alleged offense, Ballard was working as a civilian employee of NOPD. He was also serving as a commissioned reserve officer with the Orleans Parish Sheriff's Office (OPSO), and in that capacity, was working a private detail in the uptown area of New Orleans.

         After entering a plea of not guilty to the offense, Ballard elected a trial by judge, which was held on May 30, 2017. The court took the case under advisement, and on the following day, found Ballard guilty as charged. Ballard waived all delays and was sentenced to two years imprisonment at hard labor, suspended, and two years of inactive probation. Ballard was also assessed fines, costs and fees totaling $987.

         FACTUAL BACKGROUND:

         At trial, NOPD Sgt. Terrance Wilson testified that he participated in the arrest of Maurice Johnson, the victim, on November 3, 2016, who, along with another assailant, was suspected of burglarizing vehicles and residential trespassing. In pursuit of the suspects, the officers responding to the incident located the victim hiding under a house in the area and were attempting to take him into custody. While the officers were apprehending the victim, Ballard, who was not assigned to the arresting officers' unit, "showed up out of nowhere." Sgt. Wilson testified that neither he nor his colleagues had requested Ballard's assistance.

         Sgt. Wilson testified that he and Off. Jorgenson coaxed the victim out from under the house and restrained him face-down on the ground in a small alleyway while they placed him in handcuffs. In the process of making the arrest, Sgt. Wilson witnessed Ballard run up the alley toward them and heard the "thud" of Ballard striking the victim in the mouth with his foot. Sgt. Wilson told Ballard that NOPD Officers did not behave that way anymore and asked him to back away from the scene. Sgt. Wilson testified that the victim had not made any threatening motions toward Ballard or anyone else. Sgt. Wilson stated that the victim immediately complained that Ballard had kicked him in the mouth and asked if the officers were going to do anything about it. Sgt. Wilson replied that he would "handle it."

         Sgt. Wilson and Off. Jorgenson proceeded to arrest the victim as Ballard continued in the direction of the second suspect and assisted in his apprehension from the roof of a nearby building. Sgt. Wilson characterized the physical contact between Ballard and the victim as "a battery" and reported it as such to Lt. Kendrick Allen.[1] Sgt. Wilson testified that he and Off. Jorgenson had the victim in custody by the time Ballard made contact with him, and stated that "once a person stops resisting, any kind of action stops, and we just don't receive that kind of training to kick people in the face."

         On cross-examination, defense counsel asked Sgt. Wilson if the "kick" was accidental or intentional and Wilson responded that he did not "know why [Ballard] did it, " although he admitted he did not ask. Notwithstanding Sgt. Wilson's admission that both he and Off. Jorgenson were yelling at the victim to show them his hands, Sgt. Wilson confirmed that the victim had already complied with their commands by the time Ballard approached and Off. Jorgenson was in the process of securing the handcuffs behind the victim's back. Sgt. Wilson described the alleyway in which the victim was apprehended as "really dark" and a "tight squeeze."[2] Overall, there were four fleeing suspects who were alleged to have been burglarizing vehicles, climbing over people's fences, and onto their roofs in an uptown neighborhood at 1:00 a.m.; under these circumstances, Sgt. Wilson ...


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