Summary
In State v. Grant, 414 So.2d 373 (La. 1982), we concluded there was sufficient evidence of a felon in possession of a firearm, beyond any casual and momentary possession, for even if the defendant did seize the gun from a distraught and irritated combatant within the house, he had ample time to have dispossessed himself of the weapon before he walked outside with it in his pocket.
Summary of this case from State v. BlacheOpinion
No. 81-KA-2853.
May 17, 1982.
APPEAL FROM CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, STATE OF LOUISIANA, HONORABLE BERNARD J. BAGERT, J.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Clifford Strider, William R. Campbell, Asst. Dist. Attys., for plaintiff-appellee.
John J. Dolan, New Orleans, for defendant-appellant.
Byron Grant was found guilty of LSA-R.S. 14:95.1, possession of a firearm by a previously convicted felon, and he argues that there was insufficient evidence on which to sustain his conviction.
A 12-person jury did not agree with this contention, nor do we.
On February 22, 1981, a police officer responded to a disturbance at a residence where Grant was in possession of a handgun.
Grant testified that the weapon belonged to Rose Porter, his aunt, and that he had taken it from her after she became excited and ". . . pulled a pistol from her purse."
Further, Grant said that he was walking from the house to place the gun in his truck just as the policeman arrived.
The officer said that when he reached the residence ". . . there was a big commotion going on . . ." involving several people, including Grant.
"Accusations were shouted back and forth," according to the policeman, and Grant was asked by the officer if he had a weapon. Grant said yes, and produced a loaded 22 caliber pistol from his rear pocket. The serial number had been filed off, and Grant was originally booked with having a concealed weapon.
The charge was later changed when the District Attorney learned that Grant had previously been convicted of simple burglary and had served 18 months in Orleans Parish prison.
Miss Porter provided the jury with a third version of the events that occurred at the residence. The pistol was indeed hers, she said, and she had it in her possession because she was ". . . upset because, you know, they shot at my daughter."
When the police officer arrived, Miss Porter stated, Grant was ". . . moving the hi-fi down the step, him and another man, and the lady pointed him out, the landlord next door pointed him out . . ."
This Court does not know, of course, precisely what findings of fact were made by the jury. If Miss Porter's version was the one relied on, and she was a prime defense witness, then Grant had ample time to hand the pistol to someone else or to otherwise remove it from his person before ". . . moving the hi-fi down the step. . ."
The jury might have been persuaded by the police officer's account and could well have concluded that Grant should have disposed of the pistol before the "big commotion" started.
The instant facts are somewhat similar to those in State v. Clement, 368 So.2d 1037 (La. 1979), where the defendant unsuccessfully urged the defense of justification for the weapon possession. If there is reasonable time for the convicted felon to divest himself of a weapon, no matter how obtained, he must do so.
Only Grant's testimony suggests a very brief lapse between the time he obtained the weapon and his encounter with the officer, and apparently the jury disregarded this possibility.
The trial judge, incidentally, did not read a justification charge to the jury, and the record does not reflect that Grant's attorney requested such a charge.
There was sufficient evidence to support Grant's jury conviction and three-year sentence, and we affirm.