State of Louisiana v. John J. Landry III

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-381

STATE OF LOUISIANA

VERSUS

JOHN J. LANDRY, III

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 25891-12
HONORABLE RONALD F. WARE, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of Marc T. Amy, Elizabeth A. Pickett, and John E. Conery,
Judges.

CONVICTIONS AND SENTENCES AFFIRMED. MOTION TO

WITHDRAW GRANTED.

John F. DeRosier
District Attorney
Robert “Rick” Bryant
Carla S. Sigler
Karen C. McLellan
Assistant District Attorneys
Fourteenth Judicial District Court
901 Lakeshore Drive, Suite 800
Lake Charles, Louisiana 70601
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Edward J. Marquet
Louisiana Appellate Project
Post Office Box 53733
Lafayette, Louisiana 70505-3733
(337) 237-6841
COUNSEL FOR DEFENDANT/APPELLANT:
John J. Landry, III

John J. Landry, III
Angola State Prison
Camp C Tiger 3 Right #7
Louisiana State Penitentiary 70712
IN PROPER PERSON

Conery, Judge.

Defendant, John J. Landry, III, was charged in an indictment filed on August

23, 2012, with first degree murder, a violation of La.R.S. 14:30, and simple

robbery, a violation of La.R.S. 14:65. Defendant entered a plea of not guilty on

October 29, 2012. On October 16, 2014, Defendant filed a Motion to Waive Trial

By Jury.

On January 21, 2015, count one of the indictment was amended to second

degree murder, a violation of La.R.S. 14:30.1. Defendant then entered a plea of

not guilty to the amended charge. A bench trial commenced the same day, and the

Defendant was found guilty of second degree murder and simple robbery. The

Defendant waived legal delays for sentencing and was sentenced to serve life

imprisonment without benefit of probation, parole, or suspension of sentence for

second degree murder and to seven years at hard labor for simple robbery. The

sentences were ordered to run concurrently. A Motion for Out-of-Time Appeal

was filed on December 17, 2015, and was granted.

Defendant’s appellate counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396 (1967), alleging the record contains no

non-frivolous issues for appeal and requesting that this court grant his

accompanying motion to withdraw. Defendant was advised, via certified mail, that

counsel filed an Anders brief. Defendant was given until August 16, 2016, to file a

pro se brief, and, to date, he has not done so. For the following reasons, we affirm

Defendant’s convictions and sentences and grant appellate counsel’s motion to

withdraw.

FACTUAL BACKGROUND

On July 11, 2012, Defendant entered the home of eighty-three-year-old

Preston Lebleu at the Chateau du Lac apartments at 333 Mill Street in Lake

Charles. After a struggle, Defendant bound Mr. Lebleu’s hands with bedding and

his feet with a sweatshirt and then wrapped a comforter over his face, shoving it

into his mouth. Defendant then took what money he could find and left Mr. Lebleu

bound and gagged. On July 12, 2012, maintenance workers discovered Mr.

Lebleu, who by then had expired.

The coroner opined that Mr. Lebleu died of suffocation. The coroner’s

report noted bruises on the inner surfaces of the upper and lower lips, a fracture of

the “left greater horn of the hyoid bone,” and scrapes and bruises on the head,

trunk, and upper and lower extremities. The scrapes and bruises were consistent

with a “possible struggle occurring during life.”

Defendant claimed to have been high on crack cocaine during the event and

off medication for bipolar disorder for three months prior to Mr. Lebleu’s death.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find there

are no errors patent.

ANDERS ANALYSIS

Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967),

Defendant’s appellate counsel filed a brief stating that he made a conscientious and

thorough review of the trial court record and could find no errors on appeal that

would support reversal of the Defendant’s conviction or sentence. Thus, counsel

seeks to withdraw.

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In State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir. 1990), the fourth

circuit explained the Anders analysis:

When appointed counsel has filed a brief indicating that no
non-frivolous issues and no ruling arguably supporting an appeal were
found after a conscientious review of the record, Anders requires that
counsel move to withdraw. This motion will not be acted on until this
court performs a thorough independent review of the record after
providing the appellant an opportunity to file a brief in his or her own
behalf. This court’s review of the record will consist of (1) a review
of the bill of information or indictment to insure the defendant was
properly charged; (2) a review of all minute entries to insure the
defendant was present at all crucial stages of the proceedings, the jury
composition and verdict were correct and the sentence is legal; (3) a
review of all pleadings in the record; (4) a review of the jury sheets;
and (5) a review of all transcripts to determine if any ruling provides
an arguable basis for appeal. Under C.Cr.P. art. 914.1(D) this Court
will order that the appeal record be supplemented with pleadings,
minute entries and transcripts when the record filed in this Court is not
sufficient to perform this review.

While it is not necessary for Defendant’s appellate counsel to “catalog

tediously every meritless objection made at trial or by way of pre-trial motions

with a labored explanation of why the objections all lack merit[,]” counsel’s

Anders brief must “‘assure the court that the indigent defendant’s constitutional

rights have not been violated.’ McCoy [v. Court of Appeals of Wisconsin], 486

U.S. [429] at 442, 108 S.Ct. [1895] at 1903 [(1988)].” State v. Jyles, 96-2669, p. 2

(La. 12/12/97), 704 So.2d 241, 241. Counsel must fully discuss and analyze the

trial record and consider “whether any ruling made by the trial court, subject to the

contemporaneous objection rule, had a significant, adverse impact on shaping the

evidence presented to the [trier of fact] for its consideration.” Id. Thus, counsel’s

Anders brief must review the procedural history and the evidence presented at trial

and provide “a detailed and reviewable assessment for both the defendant and the

appellate court of whether the appeal is worth pursuing in the first place.” State v.

Mouton, 95-981, p. 2 (La. 4/28/95), 653 So.2d 1176, 1177.

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In his Anders brief, counsel addresses the testimony presented at trial. He

points out that the coroner who performed the autopsy on Mr. Lebleu opined that

he died of suffocation. He notes that Defendant admitted to binding and gagging

Mr. Lebleu and taking his money and further notes that Defendant did so while

high on crack cocaine. Counsel acknowledges Defendant presented no direct

evidence of the amount of crack cocaine he consumed or any expert testimony

about the effects that drug may have had on his cognitive abilities.

Appellate counsel also discussed the testimony of Detective Richard Harrell,

who took a statement from the Defendant after he was Mirandized wherein the

Defendant admitted entering Mr. Lebleu’s apartment, wrestling with Mr. Lebleu,

putting a sock in his mouth, and binding his hands and feet. Defendant further

informed police that he had no intention of returning to check on Mr. Lebleu.

Counsel concedes the evidence was sufficient to support a finding of specific intent

to kill or inflict great bodily harm.

Pursuant to Anders and Benjamin, we performed a thorough review of the

record, including pleadings, minute entries, the charging instrument, and the

transcripts, and have confirmed the statements made by appellate counsel.

Defendant was properly charged in the indictment, he was present and represented

by counsel at all crucial stages of the proceedings, the verdicts were correct, and he

received legal sentences.

As noted by appellate counsel, Defendant testified he “was high out of [his]

mind” when he went to Mr. Lebleu’s apartment.

Voluntary intoxication will not excuse a crime, but it is a
defense to a specific intent offense if the circumstances demonstrate
that intoxication precluded formation of the requisite intent. See La.
R.S. 14:15(2); State v. Legrand, 02-1462, p. 7 (La.12/3/03), 864 So.2d
89, 95-96. The defendant has the burden of proving his intoxication

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defense; thereafter, it falls to the state to negate that defense by
showing beyond a reasonable doubt that specific intent was present
despite the defendant’s alleged intoxication. See State v. Smith, 94-
2588, p. 5 (La.App. 4 Cir. 3/27/96), 672 So.2d 1034, 1038, citing
State v. Davis, 92-1623, p. 10 (La.5/23/94), 637 So.2d 1012, 1020.
Whether voluntary intoxication in a particular case is sufficient to
preclude specific intent is a question to be resolved by the trier of fact.
See Davis, 92-1623 at 10, 637 So.2d at 1020.

State v. Mickelson, 12-2539, pp. 6-7 (La. 9/3/14), 149 So.3d 178, 183 (footnote

omitted). The trial court clearly rejected any claim of intoxication in this matter.

Under La.R.S. 14:30.1, second degree murder is defined as the killing of a human

being when the offender has the specific intent to kill or inflict great bodily harm.

During its closing remarks, the State did argue that the Defendant had the specific

intent to kill or inflict great bodily harm. We find the record sufficient to support

Defendant’s conviction based on specific intent to kill or inflict great bodily harm.

FELONY MURDER DOCTRINE AND DOUBLE JEOPARDY

Louisiana Revised Statutes 14:30.1 also defines second degree murder as the

killing of a human being when the offender is engaged in the perpetration or

attempted perpetration of simple robbery, or another enumerated felony, even

though the offender has no intent to kill or to inflict great bodily harm. “Double

jeopardy exists where a defendant is convicted of felony-murder and the

underlying felony” in two separate episodes or transactions. State v. Brown, 567

So.2d 1152, 1154 (La.App. 3 Cir. 1990).

“However, an accused who commits separate and distinct offenses during

the same criminal episode or transaction may be prosecuted and convicted for

each offense without violating the principle of double jeopardy. State v. Nichols,

337 So.2d 1074 (La.1976).” State v. Love, 602 So.2d 1014, 1020 (La.1992)

(emphasis added).

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During its opening statement, the State asserted:

I just think that it would be unwise on my part to put on some long
presentation for Your Honor, who was a criminal attorney and
understands this and understands the burden that we have, which is to
show that there was an intent to kill or inflict great bodily harm under
the section it was submitted to or there was a killing during the
perpetration of a simple robbery, which we believe was what was
going on in this particular case.

Of note are the following comments made by the judge just prior to finding

the Defendant guilty of second degree murder:

Now, the State has alleged second-degree murder. And, Mr.
Bryant, you did argue but one subsection of the statute and I think that
was successfully done. But, as the judge of this matter, I can consider
the evidence and the law and make the findings that I think are
appropriate. And second-degree murder can also be the killing of a
human being when the offender is engaged in the perpetration or
attempted perpetration of various offenses, including robbery. It’s
called felony murder. The law looks at that in a very strong fashion
because if I and several others engage in the perpetration or attempted
perpetration of one of these enumerated felonies and one of my
cohorts died, I’m still guilty of second-degree murder. Mr. Lebleu
died an untimely death at the hands of Mr. John Landry in a manner
which fits the statute of second-degree murder.

While the judge did not specifically declare he found the Defendant guilty of

second degree murder under the felony murder doctrine, appellate counsel

conceded the evidence was sufficient to support second degree murder wherein the

Defendant had the specific intent to kill or inflict great bodily harm upon Mr.

Lebleu. Cf. State v. Boyer, 10-693 (La.App. 3 Cir. 2/2/11), 56 So.3d 1119, writ

denied, 11-769 (La. 1/20/12), 78 So.3d 138. cert. granted in part, __ U.S. __, 133

S.Ct. 420 (2012), cert. dismissed as improvidently granted, __ U.S. __, 133 S.Ct.

1702 (2013) (finding the defendant’s convictions for second degree murder and

armed robbery did not violate double jeopardy). We find that the evidence in this

case supports a conviction under either theory.

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In his Anders brief, appellate counsel also failed to address the Defendant’s

sentences. No objection to the sentences was made at the time they were imposed,

and no motion to reconsider the sentences was filed. Thus, we decline to review

the sentences imposed. La.Code Crim.P. art. 881.1; State v. Bamburg, 00-675

(La.App. 3 Cir. 11/2/00), 772 So.2d 356. We note that second degree murder

carries a mandatory life sentence, and mandatory sentences are presumed to be

constitutional. La.R.S. 14:30.1; State v. Sizemore, 13-529, 13-530 (La.App. 3 Cir.

12/18/13), 129 So.3d 860, writ denied, 14-167 (La. 8/25/14), 147 So.3d 699.

Furthermore, the sentence for simple robbery was ordered to run concurrently to

the Defendant’s sentence for second degree murder. We affirm Defendant’s

sentences.

DISPOSITION

Having found no issues to support an assignment of error on appeal, we

affirm the Defendant’s convictions and sentences, and we grant appellate counsel’s

motion to withdraw.

CONVICTIONS AND SENTENCES AFFIRMED. MOTION TO

WITHDRAW GRANTED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts
of Appeal, Rule 2–16.3.

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