FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 519-546,
SECTION "D" Honorable Dennis J. Waldron, Judge
A. CANNIZZARO, JR. DISTRICT ATTORNEY, ORLEANS PARISH SCOTT G.
VINCENT ASSISTANT DISTRICT ATTORNEY COUNSEL FOR STATE/
BOSHEA COUNSEL FOR DEFENDANT/ APPELLANT
composed of Chief Judge James F. McKay III, Judge Daniel L.
Dysart, Judge Regina Bartholomew-Woods)
F. MCKAY III CHIEF JUDGE.
March 18, 2014, Arthur Toledano ("defendant") was
charged by bill of information with one count of manslaughter
(Count 1) and one count of attempted manslaughter (Count 2).
The State amended Count 2 of the bill of information from
attempted manslaughter to hit and run driving involving death
or serious bodily injury. The charges stemmed from a February
3, 2014 hit and run accident during which the defendant
struck siblings, six-year-old Shaud Wilson and nine-year-old
Shanaya Wilson, with the vehicle he was driving. Shaud did
defendant was arraigned on March 21, 2014, and entered a plea
of not guilty. The docket master reflects that the defendant
was advised at the time of arraignment that he had a right to
trial by judge or jury. A preliminary examination was
conducted on November 6, 2014. Judge Marullo informed the
defendant in open court once again that he had a right to
trial by judge or jury. After consulting with the defendant,
defense counsel orally informed Judge Marullo that the
defendant wished to waive his right to trial by jury and
receive a judge trial; however, no waiver was executed in
writing as required by La. C.Cr.P. art. 780(B). Trial was
scheduled for January 30, 2015. On January 30, 2015, the
defendant appeared for trial. Judge Marullo granted the
defendant's motion for continuance and rescheduled the
trial for Monday, February 23, 2015.
February 20, 2015, the Honorable Dennis Waldron was appointed
judge pro tempore to replace Judge Marullo. The
defendant and his trial counsel, Mr. Panagoulopoulos,
appeared for trial the following Monday, February 23, 2015.
Defense counsel requested a continuance since he was
expecting to present his case to Judge Marullo. Defense
counsel stated he wanted additional time to adjust his
witness list since the case would now be presented to Judge
Waldron. Judge Waldron denied the motion to continue;
however, the judge agreed to recess the matter after the
State's presentation of its case to allow the defense
additional time to prepare. Following opening statements, the
State presented its case-in-chief, during which Shayana, her
pre-teen brother, mother and uncle, all of whom were present
when the accident occured, testified. After the State
presented its case, the trial was recessed until Friday,
February 27, 2015.
February 27, 2015, the defense presented its case, and the
State presented a rebuttal. Following closing argument, Judge
Waldron found the defendant guilty as charged of manslaughter
for the killing of Shaud Wilson (Count 1), and guilty of the
lesser included offense of hit and run driving without
serious death or bodily injury as to Shanaya (Count 2).
Sentencing was scheduled for March 4, 2015.
to sentencing, on March 4, 2015, defense counsel filed the
defendant's first motion for a new trial arguing that
Judge Waldron abused his discretion in denying his motion to
continue the trial. Judge Waldron denied the motion for new
trial, and stated:
[S]ince I arrived a week ago Monday on the 23rd of February,
I have been met by three situations in three separate cases.
One of which as recently as this morning, where persons prior
to my coming waived trial by Jury. In two, not three, but in
two of those three cases the defendant asked specifically to
withdraw that plea. I say "plea", but that request
- that election - that choice. And, because it did not
comport with the somewhat recent amendment, I think the Code
provision was last amended in 2013, if memory serves me
correct, but in light of the fact that there was not
compliance with Article 780 in terms of it being in writing,
I found that it was permissible to allow both persons to
elect trial by Jury.
Here, the defense did not do that.
And, I am not here to default [sic] the Defense Counsel....
But, there was no request to withdraw the election of the
waiver of the jury here, only to continue it to see who would
be the Judge and allow the trial then to go with waiver of
jury before whoever the Judge is to be in thirty days. And,
the reason I denied it is because I don't think the law
State and the defendant provided testimony from witnesses at
the sentencing hearing. At the conclusion of the testimony
provided by the witnesses, the trial court imposed a sentence
of twelve years without benefit ...