94-599 La.App. 5 Cir. 5/30/95, State v. Ellis

• Decision Date: 30 May 1995
• Parties: 94-599 La.App. 5 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 341

657 So.2d 341

94-599 La.App. 5 Cir. 5/30/95

STATE of Louisiana v. James W. ELLIS and Wayne Kennair.

No. 94-KA-599.

Court of Appeal of Louisiana,

Fifth Circuit.

May 30, 1995.

Rehearing Denied July 17, 1995.

John M. Mamoulides, Dist. Atty., Terry M. Boudreaux, Asst. Dist. Atty., Louise Korns of counsel, Dist. Atty.'s Office, Gretna, for plaintiff/appellee.

Julian R. Murray Jr., Chehardy, Sherman, Ellis, Breslin & Murry, Metairie, for defendant/appellant James W. Ellis.

Bruce G. Whittaker, Indigent Defender Bd., Gretna, for defendant/appellant Wayne Kennair.

Before DUFRESNE, GOTHARD and CANNELLA, JJ.

[94-599 La.App. 5 Cir. 2] GOTHARD, Judge.

James Ellis and Wayne Kennair were charged, by bill of information filed on October 18, 1993, with two counts of conspiracy to commit first degree murder in violation of LSA-R.S. 14:26:30. The two charges relate to two separate plots to kill Russell Protti and Leigh Barton. Defendant Ellis was also charged with the crime of being a convicted felon in possession of a firearm in violation of LSA-R.S. 14:95.1. Both defendants were arraigned on November 5, 1993, and pled not guilty to all charges.

Several defense motions were filed on behalf of both defendants. After an adverse ruling on a motion to suppress the evidence, defendant Ellis withdrew his not guilty plea as to count three of the bill of information, felon in possession of a firearm. After being apprised of his rights, he pled guilty as charged to that offense on January 3, 1994 under the holding of State v. Crosby, 338 So.2d 584 (La.1976).

[94-599 La.App. 5 Cir. 3] Both defendants were tried by a jury on the remaining counts. At the conclusion of the trial on January 7, 1994, both defendants moved for a mistrial, arguing that the state had not timely turned over certain exculpatory material, pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The court denied the motion. The jury found both defendants guilty as charged on both counts of conspiracy to commit first degree murder.

On January 20, 1994, the trial judge sentenced defendant Ellis to thirty years on each count of conspiracy to commit first degree murder. Further, defendant Ellis was sentenced to serve ten years on the charge of being a convicted felon in possession of a firearm, and ordered to pay a $1,000.00 fine. All sentences were made to run consecutively. On the same date, the judge sentenced defendant Kennair to serve thirty years on each one of the two counts of conspiracy to commit first degree murder. These sentences were also made to run consecutively. Kennair's defense counsel filed a motion for new trial, and a motion to reconsider the sentence. The court denied both motions.

The state filed multiple offender bills as to both defendants. The defendants were both arraigned on the multiple bills on January 20, 1994 and pled not guilty. After a hearing on March 18, 1994, the court found defendant Ellis to be a second felony offender and Kennair a fourth felony offender. The judge vacated both defendants' prior sentences. New sentences identical to the prior, vacated sentences were imposed. Motions for appeal filed by both defendants were granted on March 22, 1994. ¹

[94-599 LA.APP. 5 CIR. 4] FACTS

The incidents giving rise to this prosecution were based on a conflict which began in the spring of 1990. At that time James Ellis was in the 29th year of his employment with the Jefferson Parish School System, and was serving as the Director of Adult and Community Education. Dr. Russell Protti was the Superintendent of the Jefferson Parish School Board. Dr. Leigh Barton was the Assistant Superintendent for the Division of Instruction with the School Board as well as Ellis' immediate supervisor.

Dr. Barton received information that led her to recommend that Ellis' employment be terminated. She submitted her recommendation to Barbara Turner, the School Board's Assistant Superintendent for Personnel Relations. The matter was presented to an executive session of the school board at a meeting on May 16, 1990. Afterwards there was a public meeting of the board, at which the Ellis termination was discussed. Ellis was present during the public portion of the meeting, which continued until about midnight, but was not allowed to speak.

As Dr. Protti returned home and drove into his driveway after the meeting, Ellis parked his car on the street so that it blocked the driveway. Dr. Protti remained seated in his car as Ellis approached the front of the vehicle on foot, carrying an object wrapped in a towel. Ellis removed the towel to reveal a gun, which he pointed at Dr. Protti's head. Ellis pulled the trigger, but the gun failed to fire. Ellis then ejected the shell and attempted to load another one. At that point Dr. Protti fled the scene in his car, knocking Ellis to the ground. A spent cartridge found in Dr. Protti's yard was matched to Ellis' gun through police tests.

[94-599 La.App. 5 Cir. 5] As a result of this incident, James Ellis was charged with attempted second degree murder. He pled guilty as charged and was sentenced to serve ten years at hard labor. Nine years of the sentence were suspended and Ellis was ordered to serve the remaining year. Of that year, he served only six months at the Jefferson Parish Prison and was then placed on probation.

The investigation leading up to the prosecution herein began on September 10, 1993, when several law enforcement officers met at the Investigations Bureau of the Jefferson Parish Sheriff's Office. Those officers included Lieutenant Daniel Samrow, Assistant Commander of the Jefferson Parish Sheriff's Department's Intelligence Division, Lieutenant John Thevenot of the Sheriff's Department's Narcotics Division, Chief Gene Fields of the Sheriff's Department, and United States Customs Agents, Mike Dearie and Ryan DiStefano. Also at the meeting was Robert "Rocky" Richard, a confidential informant who had previously worked with law enforcement agencies such as the United States Customs Service. ²

Richard told the officers that on or about September 4, 1993, he had been approached by defendant Wayne Kennair, an acquaintance of about twenty years, who lived in Richard's apartment building at 433 Friscoville in Arabi, Louisiana. Kennair wished to hire Richard on behalf of an unnamed "solicitor" to murder three individuals; one man and two women. Kennair did not name the potential victims, but told Richard that they were co-workers of the solicitor at either the Jefferson Parish School Board or Police Jury. Richard later learned from [94-599 La.App. 5 Cir. 6] Kennair that these individuals had caused the solicitor to be fired and incarcerated.

Based on Richard's information, the officers surmised that the solicitor was James Ellis, and the potential victims were Dr. Protti, Dr. Barton and Ms. Turner. The investigating officers discovered that Ellis and Kennair had for a time been assigned to the same group of cells, or "pod", in prison. The officers further uncovered four money orders Ellis had sent to Kennair totalling $175.00. The return address given on the money orders was 400 20th Street, Apartment 11, in Gretna, the home of Ellis' secretary, Susan Guccione.

The potential victims were assigned twenty-four hour security, and the two suspects, Ellis and Kennair, were placed under regular surveillance. To accomplish this, the Jefferson Parish Sheriff's Department immediately set up a surveillance team, headed by Lt. Thevenot. Richard agreed to participate in the investigation as a confidential informant, and was financially compensated for his services. He was thereafter given daily instructions by the officers.

At the request of the surveillance team, Richard set up a meeting with Kennair on the afternoon of September 10th. Richard was equipped with a listening device, which he concealed on his person. At the meeting, which took place in front of Kennair's apartment building, Kennair revealed that their first target would be a woman. The killing was to take place somewhere between her home on Judy Street in River Ridge, and her place of employment on the West Bank. The plan was for Richard to bump her car and then shoot her when she got out to investigate the accident. Kennair told Richard he would be paid two thousand dollars for his services. Officers learned that Dr. Barton had once lived at the Judy Street address given to Richard, but that she had recently moved.

[94-599 La.App. 5 Cir. 7] After the meeting with Kennair, Richard turned a microcassette tape over to Lt. Samrow and gave the officers a report of his conversation with Kennair. Due to an equipment malfunction, nothing could be discerned on the tapes.

Based on the information gathered up to that point, the officers obtained a court order to install pin registers on Ellis' telephone and on the telephone registered to Susan Metzler, the woman with whom Kennair was living. ³ The pin registers were set up on September 14, 1993. The register documented three telephone calls from Ellis' telephone to Metzler's, one each on September 14, 21, and 24. Wiretaps were placed on Ellis' two telephone lines on September 23, 1993.

On September 16, 1993 Richard again met with Kennair in the parking lot of his Friscoville Street apartment building. Richard met with officers beforehand and was again equipped with a listening device. Sheriff's department deputies also recorded the meeting on video. During that meeting Kennair disclosed the solicitor's address and said he would be talking to the solicitor that night. Richard passed this information on to sheriff's deputies.

Richard's next encounter with Kennair was on the evening of September 21, 1993, at which time they discussed details of the murder plan. Kennair stated that the crime was to be committed with a .22 caliber shotgun. The two also discussed the various cars that might be used in committing the crime. Kennair increased his offer of payment to...