FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 526-779,
SECTION "G" Honorable Byron C. Williams, Judge
M. Calogero LAW OFFICE OF THOMAS M. CALOGERO COUNSEL FOR
Cannizzaro District Attorney Michael Danon Assistant District
Attorney DISTRICT ATTORNEY'S OFFICE ORLEANS PARISH
COUNSEL FOR APPELLEE/STATE OF LOUISIANA
composed of Judge Terri F. Love, Judge Sandra Cabrina
Jenkins, Judge Dale N. Atkins
F. LOVE JUDGE
Kenneth Landrieu ("Mr. Landrieu") seeks appellate
review of his conviction and sentence for aggravated assault
with a firearm. We find the testimonial evidence
uncontradicted and therefore sufficient to support Mr.
Landrieu's conviction. Additionally, we find evidence of
the victim's federal civil lawsuit, the functionality of
the weapon at issue, and the recorded conversation between
police officers to be irrelevant to the issues in this case.
For that reason, we find no abuse of the trial court's
discretion in ruling the alleged justification and
impeachment evidence inadmissible. Moreover, we find the
trial court did not abuse its discretion in determining the
juror in question could arrive at an impartial verdict
denying Mr. Landrieu's challenge for cause. Accordingly,
we affirm Mr. Landrieu's conviction and sentence.
HISTORY AND FACTUAL BACKGROUND
Landrieu was commissioned as a Reserve Deputy of the Orleans
Parish Sheriff's Office ("OPSO") in 2007. At
the time of the incident in question, Mr. Landrieu was still
a commissioned reserve deputy.
September 2015, the victim, Joseph Harris ("Mr.
Harris"), was driving on Magazine Street when a
"baby blue" Cadillac, driven by the defendant, Mr.
Landrieu, abruptly pulled in front of Mr. Harris'
vehicle. Mr. Harris, attempting to avoid a collision, slammed
on his brakes and then used the oncoming traffic lane to pass
Landrieu considered Mr. Harris' passing maneuver to be
dangerous and attempted to initiate a "traffic
stop." Mr. Landrieu pulled alongside Mr. Harris'
vehicle and cut off Mr. Harris' path of travel. He was
successful in briefly stopping Mr. Harris; however, Mr.
Harris was able to maneuver his vehicle to leave the scene.
Mr. Landrieu later caught up to Mr. Harris and stopped him
Landrieu then exited his vehicle with his personal firearm in
hand and his honorary badge displayed. Mr. Harris testified
that Mr. Landrieu began yelling profanities at him, accused
Mr. Harris of using drugs or alcohol, pointed his weapon at
Mr. Harris multiple times, and threatened to "call his
boys" to have Mr. Harris' vehicle searched. Mr.
Harris testified that he was afraid for his life when Mr.
Landrieu pointed the firearm at him. He also indicated that
he was able to take down Mr. Landrieu's license plate and
later shared news of the incident with his wife and
Mr. Harris did not report the incident to the police until
two days after the incident occurred. Mr. Harris indicated
that he did not call the police initially because he believed
Mr. Landrieu was a police officer and that reporting the
incident would be fruitless. However, Mr. Harris conducted
his own investigation and learned that the badge Mr. Landrieu
displayed was an honorary reserve badge. Consequently, Mr.
Harris called the New Orleans Police Department
("NOPD"), reporting an individual pointed a gun at
him while impersonating a police officer.
John Waterman, Chris Puccio, and Walter Edmonds conducted the
police investigation in this case. Detective Waterman
testified that he developed Mr. Landrieu as a suspect after
learning that the vehicle in question belonged to Landrieu
Public Relations and the primary driver was Mr. Landrieu.
Detective Puccio testified that he conducted a photographic
lineup, from which Mr. Harris identified Mr. Landrieu as the
individual who stopped him in traffic and pointed a gun at
him. Detective Waterman testified that Mr. Landrieu
cooperated and turned over the handgun, which Mr. Harris
later positively identified as the gun that was pointed at
him. Thereafter, defense counsel stipulated that Mr. Landrieu
was the individual who stopped Mr. Harris' car and
pointed a gun at Mr. Harris.
cross-examination, defense counsel attempted to question
Detective Waterman about a conversation that he allegedly had
with NOPD Officers Jonathan Blount and Dwight Salier.
However, the trial court sustained the State's hearsay
objection refusing to allow defense counsel to play the
conversation for the jury. Additionally, defense counsel
attempted to untie the handgun at issue in order to
demonstrate how the gun operated. The trial court refused to
allow defense counsel to untie the handgun. Defense counsel
then attempted to introduce into evidence a photograph of the
same type of handgun as the one used in the altercation
between Mr. Landrieu and Mr. Harris. However, the State
objected to the photograph's introduction into evidence.
The trial court subsequently sustained the State's
objection as the photograph was not of the handgun at issue.
State also called Blake Arcuri, general counsel for the
Orleans Parish Sheriff's Office. Mr. Arcuri testified
that Mr. Landrieu was an honorary reserve deputy with OPSO.
Likewise, Mr. Arcuri stated that Mr. Landrieu was not Peace
Officer Standard Training-certified
("POST-certified") and therefore could not
effectuate arrests or carry an OPSO registered firearm in the
performance of any law-enforcement duty. Mr. Arcuri further
testified that Mr. Landrieu had never done any work or filed
any reports for the Sheriff's Office and had not
registered his firearm with the Sheriff's Office per
cross-examination, defense counsel attempted to question Mr.
Arcuri about Mr. Harris' federal civil lawsuit. Again,
the trial court refused to allow any discussion of the
federal lawsuit. After the State rested, defense counsel
moved for a mistrial on grounds that the defense should have
been allowed to question Mr. Harris and Mr. Arcuri about Mr.
Harris' federal lawsuit. Counsel argued that he should
have at least been given the opportunity to question the
witnesses on the existence of the lawsuit even if he was
barred from questioning them on its details. The trial court
denied the motion for mistrial.
Landrieu sought to present the testimony of Officers Blount
and Salier, who were allegedly subpoenaed, but were not
present in court. However, there is no indication in the
record that either officer was ever served. Mr.
Landrieu's mother Phyllis Landrieu testified that Mr.
Landrieu became an honorary reserve deputy after Hurricane
Katrina and that he took a 32-hour firearm training course
after becoming an honorary reserve deputy.
the presentation of all the evidence, the jury found Mr.
Landrieu guilty for aggravated assault with a firearm, in
violation of La. R.S. 14:37.4. Thereafter, Mr. Landrieu
timely filed this appeal.
review of the record reveals two errors patent. First, Mr.
Landrieu was not re-arraigned after the State amended the
bill of information and the case was transferred from Section
"A" to Section "G." Pursuant to La.
C.Cr.P. art. 555, the "failure to arraign the defendant
or the fact that he did not plead, is waived if the defendant
enters upon the trial without objecting thereto, and it shall
be considered as if he pleaded not guilty." The record
contains no evidence that Mr. Landrieu objected to the trial
court's failure to re-arraign him after his case was
transferred to Section "G" and prior to trial.
Therefore, any error relating to the trial court's
failure to re-arraign Mr. Landrieu was waived.
the record reveals that the motion for appeal was filed and
granted after the trial court imposed Mr. Landrieu's
original sentence. However, the trial court subsequently
re-sentenced Mr. Landrieu. The Louisiana Supreme Court has
consistently held that an appeal cannot be taken by a
defendant except from a conviction and sentence. La. C.Cr.P.
art. 912; State v. Martin, 483 So.2d 1223, 1224-25
(La.App. 4th Cir. 1986). In Martin, this Court held
that when the trial court imposes a sentence after an appeal
has been granted, "[d]ismissing the appeal would simply
result in a delay of the appellate process, and hinder
defendant's right to appeal." Id. at 1225.
Accordingly, "where a sentence is imposed after
defendant's motion for appeal is filed and granted, the
appeal will not be dismissed." Id.