Opinion
No. 98 01391.
March 31, 1999.
APPEAL FROM SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF ST. MARTIN, NO. 97-182,911, STATE OF LOUISIANA, HONORABLE GERARD B. WATTIGNY, J.
Bernard Boudreaux, St. Martin, Dist. Atty., for State of La.
Joslyn Renee Alex, Breaux Bridge, for Brian Williams.
BEFORE: DOUCET, C.J., SAUNDERS and SULLIVAN, JJ.
On September 8, 1997, Defendant, Brian Williams, was arrested in connection with a firearm found in his possession. On April 27, 1998, because of a prior conviction of distribution of cocaine, a bill of information was filed charging Defendant with possession of a firearm by a convicted felon, in violation of La.R.S. 14:95.1. On April 29, 1998, a jury found Defendant guilty of attempted possession of a firearm by a convicted felon. On May 15, 1998, Defendant's motion for a post-verdict judgment of acquittal was denied. On the same day, Defendant was sentenced to serve seven and one-half years with the Louisiana Department of Corrections without the benefit of probation, parole or suspension of sentence. Defendant appeals.
ASSIGNMENT OF ERRORS
1. The trial judge committed reversible error by failing to allow the defense counsel to question the jury regarding the concept of a hung jury.
2. The trial judge erred in accepting a verdict which was not responsive to the indictment.
3. The evidence is insufficient to support the conviction.
FACTS
On September 8, 1997, Officers Stephen Menard and Theodore Hulin, of the St. Martin Parish Sheriff's Office Narcotic Unit, observed a blue Chevrolet Caprice Classic with music playing in violation of the City of Breaux Bridge's noise ordinance. The officers flagged the vehicle, which was being driven by Defendant, to conduct a routine warning. Officers observed the passenger, Darnell Savoy, with a marijuana blunt cigar in his hand. Both Defendant and Savoy were asked to exit the vehicle. A small caliber automatic handgun was discovered in plain view on the front seat of the vehicle. Both Defendant and Savoy denied ownership of the handgun.
ERRORS PATENT
The trial court improperly informed Defendant that he had three years from the date of sentencing to file an application for post-conviction relief. Under La. Code Crim.P. art. 930.8, Defendant has three years after the judgment of conviction and sentence have become final to apply for post-conviction relief. The trial court is directed to inform Defendant of the correct provisions of Article 930.8 by sending appropriate written notice to Defendant within ten days of the rendition of this opinion and to file written proof that Defendant received the notice in the record of the proceedings. See State v. Eason, 624 So.2d 934 (La.App. 2 Cir. 1993).
SUFFICIENCY OF THE EVIDENCE
Defendant contends, by assignment of error number three, that there was insufficient evidence presented to support his conviction of attempted possession of a handgun by a convicted felon. Defendant's argument is limited to the question of whether he knowingly and intentionally possessed the weapon as required for the convicted offense. Although submitted as Defendant's third assignment of error, it is appropriate to address the claim of insufficiency first, as Defendant may be entitled to acquittal and consequently a discussion of the other assignments of error would be unnecessary. See State v. Hearold, 603 So.2d 731 (La. 1992).
Defendant was originally charged with possession of a firearm by a convicted felon. It is unlawful for any person having been convicted of any violation of the Uniform Controlled Dangerous Substances Law to possess a firearm or carry a concealed weapon. In order to convict of possession of firearm by convicted felon, the State was required to prove beyond a reasonable doubt: (1) possession of a firearm; (2) conviction of any enumerated felony; (3) absence of ten-year statutory period of limitation; and (4) general intent to commit the offense. State v. Husband, 437 So.2d 269 (La. 1983); La.R.S. 14:95.1.
However, Defendant was convicted of attempted possession of a handgun by a convicted felon. An attempt is a separate, lesser grade of the intended crime, and a person may be convicted of an attempt to commit a crime, although it appears the attempted crime was actually completed. La.R.S. 14:27(C). In order to sustain a conviction for attempted possession of a firearm by a convicted felon, the State was required to establish beyond a reasonable doubt that Defendant had the specific intent to possess the weapon and made some overt act tending to accomplish that purpose. La.R.S. 14:27 and La.R.S. 14:10(1). See State v. Riser, 30,201 (La.App. 2 Cir. 12/12/97); 704 So.2d 946, and State v. Tatum, 27,301 (La.App. 2 Cir. 9/27/95); 661 So.2d 657
Intent as an essential element may be inferred from the circumstances of the transaction or Defendant's actions or failure to act. Officer Menard testified that Defendant was asked to exit his vehicle only after the passenger Darnell Savoy was seen with a suspected marijuana cigar in his hand. The firearm was discovered immediately after Defendant and Savoy were asked to exit the vehicle. Neither officer observed Defendant nor his passenger dispose of the weapon. Both officers testified that they continually observed the hands of the parties and it was not until both Defendant and his passenger had exited the vehicle that Officer Menard discovered the firearm on the front seat of the vehicle. Both also testified that the handgun was in arms' reach of both parties and: they could not have reasonably failed to observe the firearm on the front seat of the vehicle. Both Defendant and Savoy were arrested for possession of the handgun because it could not be ascertained who owned the gun. Although Officer Menard testified that he was required to use a flashlight to observe the handgun, he said that it was in plain view. The gun was never tested for fingerprints, and a registration check did not indicate any ownership interest. Officer Hulin testified Defendant appeared nervous and anxious when he exited the vehicle. He also testified that the butt handle of the weapon was facing Defendant.
At the time of the arrest, Defendant was the driver and sole possessor of the vehicle and the keys to that vehicle. It was determined that the vehicle was owned by Defendant's mother. Ms. Williams testified that neither she nor Defendant owned a handgun. Neither Defendant nor the passenger have ever admitted to owning the handgun. Defendant testified that he had seen a similar gun in the possession of Darnell Savoy in the days preceding their arrest.
The weapon was found on the front seat of Defendant's vehicle and not in his actual possession. The State is not required to prove actual possession of the weapon by Defendant in order to sustain the conviction. However, the State must establish that Defendant exercised the requisite dominion and control over the firearm; constructive possession is sufficient to satisfy the possession element of La.R.S. 14:95.1. State v. Day, 410 So.2d 741 (La. 1982).
In State v. Evans, 29,675 (La.App. 2 Cir. 9/24/97); 700 So.2d 1039, writ denied, 97-2942 (La. 1/9/98); 705 So.2d 1121, the second circuit reversed the trial court and analyzed constructive possession as follows:
Constructive possession is sufficient to satisfy the possession element of La.R.S. 14:95.1; State v. Day, 410 So.2d 741 (La. 1982); State v. Wesley, 28,941 (La.App. 2d Cir. 12/13/96), 685 So.2d 1169. Constructive possession occurs when the firearm is subject to a defendant's dominion and control. State v. Wesley, supra. A defendant's dominion and control over a weapon constitutes constructive possession even if it is only temporary in nature and even if control is shared. Id. Mere presence in an area where a firearm is found, or mere association with an individual found to be in possession of a firearm, does not necessarily establish possession. State v. Fisher, 94-2255 (La.App. 1st Cir. 12/15/95), 669 So.2d 460, writ denied, 96-0958 (La. 9/20/96), 679 So.2d 432. In addition, jurisprudence has added another aspect to the offense of La.R.S. 14:95.1 — awareness. In other words, the State must prove that the offender was aware that a firearm is in his presence and that he had the general criminal intent to possess the weapon, i.e., a knowing or intentional possession is necessary for a violation of La.R.S. 14:95.1. State v. Woods, 94-2650 (La.App. 4th Cir. 4/20/95), 654 So.2d 809, writ denied, 95-1252 (La. 6/30/95), 657 So.2d 1035, and citations therein. The determination of whether there is "possession" sufficient to convict depends on the particular facts of the case. State v. Trahan, 425 So.2d 1222 (La. 1983).
Id. at 1043.
Direct and circumstantial evidence indicates that a reasonable fact finder could have determined that Defendant, a convicted felon, constructively possessed or was attempting to possess the firearm at the time of his arrest. At all times prior to the arrest Defendant had exclusive possession of the vehicle in which the weapon was found. The weapon was discovered in plain view on the front seat of the vehicle which Defendant was driving. The butt handle of the weapon was facing the direction of Defendant. Investigating officers offered testimony which indicated that it was highly improbable for Defendant or his passenger to be unaware of the existence of the weapon on the front seat of the vehicle.
The evidence was sufficient to support conviction.
SCOPE OF VOIR DIRE
By means of assignment of error number one, Defendant contends that the trial court erred in curtailing the scope of the argument and in questioning prospective jurors during voir dire. The purpose of the examination is to review the qualifications of prospective jurors. It is well established that the scope of the examination shall be within the sound discretion of the trial court. During voir dire defense counsel attempted to further a misstatement of law regarding the prospect of jurors returning a hung verdict:
BY MS. ALEX:
The next thing that I want to bring up, and I discussed it before, is once you have heard all the evidence and everybody's giving their opening, their closing statements and you've gone back in the deliberation room, you have the decision. You can either decide one, the prosecution has not met their burden, my client is innocent. You can either find that the prosecution has met their burden, then you come back with a guilty verdict. Or, if you cannot agree after you've listened to all the evidence and you've discussed it with all the parties and you really don't agree, you can come back and say, "judge, we talked about it —
We can approach.
BY MR. SALEME:
Object, Your Honor.
BY MR. SALEME:
I didn't object to the last statement, but a hung jury is not an option that these people are going to have. The options are going to be guilty or not guilty, and I think an attempt, you know, guilty of this charge, attempt or not guilty. You can't tell them that they can go in there and say, "Well, a hung jury."
BY MS. ALEX:
They do have that option, Your Honor.
BY MR. SALEME:
The way she's phrasing it. I acknowledge that something can happen.
BY THE COURT:
It's something that can happen, but we don't instruct them on a hung jury, and that would be to tell them that they can go and get a hung jury would be advising them that they can go in and not follow the instructions to render a verdict. I don't think that's a proper argument. I'll rule that you can't make that argument.
BY MS. ALEX:
Let me note my objection, Your Honor. Thank you, Judge.
In State v. Hall, 616 So.2d 664 (La. 1993), the supreme court discussed this issue as follows:
La. Const. art. 1, § 17 guarantees that "[t]he accused shall have a right to full voir dire examination of prospective jurors and to challenge jurors peremptorily." La. Code Crim.P. art. 786 further provides that the court, the state and the defendant shall have the right to examine prospective jurors and the scope of the examination shall be within the discretion of the court. The purpose of voir dire examination is to determine qualifications of prospective jurors by testing their competency and impartiality. It is designed to discover bases for challenges for cause and to secure information for an intelligent exercise of peremptory challenges. The scope of voir dire examination is within the sound discretion of the trial judge and his ruling will not be disturbed on appeal in the absence of a clear abuse of discretion. However, although the trial judge is vested with discretion to limit the voir dire examination, he must afford wide latitude to counsel in the conduct of voir dire examination to effectuate the accused's right to full voir dire of prospective jurors embodied in La. Const. art. 1, § 17. In order to determine whether a trial judge has in fact afforded a sufficiently wide latitude to the defendant in examining prospective jurors, a review of the trial judge's rulings should be undertaken only on the record of the voir dire examination as a whole. State v. Williams, 457 So.2d 610 (La. 1984); State v. Jackson, 358 So.2d 1263 (La. 1978).
Id. at 668-69.
In all cases not provided for in La. Code Crim.P. art. 814, the general responsive verdicts listed in La. Code Crim.P. art. 815 apply. They are 1) Guilty; 2) Guilty of a lesser and included grade of the offense even though the offense charged is a felony, and the lesser offense a misdemeanor; or 3) Not guilty. Thus, it would have been improper for Defendant to pose, as a viable option to prospective jurors, a hung jury.
It was within the sound discretion of the trial court to deny the furtherance of this misstatement of law during the voir dire examination. This was the only limitation placed on Defense counsel's discussion throughout the examination. In State v. Searles, 94-0190 (La.App. 4 Cir. 12/15/94); 647 So.2d 1329, writ denied, 95-0131 (La. 5/19/95); 654 So.2d 1352; the fourth circuit held that the trial court's limitations constitute reversible error when they are so restrictive as to deprive counsel of a reasonable opportunity to probe to determine the basis for dismissal for cause or peremptory challenge. In Searles, the appellate court reversed the defendant's conviction because the trial court improperly curtailed defendant's voir dire of prospective jurors by demonstrating egregiously grudging, intimidating, and overbearing attitude through repeated interruptions and threats of punishment for contempt. The trial court refused to allow questions that would elicit confirmation under oath of personal information concerning residency, marital status and employment as set out in the master docket. The trial court continued in limiting questions concerning whether prospective jurors or their families had been victims of violent crimes, such as the crime of aggravated battery of which the defendant was accused.
After a review of the record of the voir dire examination as a whole, this court finds no bias or prejudice existed in the trial court's decision limiting the scope of defense counsel's discussion during voir dire examination. The trial court gave sufficiently wide latitude to defense counsel throughout the examination of prospective jurors. The trial court's decision sustaining the State's objection is affirmed.
NONRESPONSIVE VERDICT
With his second assignment of error, Defendant contends that the trial court erred in accepting the return of a nonresponsive verdict. After deliberations, the jury returned a verdict of attempted possession of a firearm by a convicted felon, which is a separate, but lesser grade of the intended crime. La.R.S. 14:27 and La.R.S. 14:95.1. Defendant was charged by bill of information, which read:
Did, having previously been convicted of a felony, to-wit: distribution of cocaine, on September 12, 1994, in the 27th Judicial District Court, St. Landry Parish, Louisiana, have in his possession a firearm, in violation of La.R.S. 14:95.1:
POSSESSION OF A FIREARM BY A CONVICTED FELON
Defendant contends that the trial judge erred when he intertwined "carrying a concealed weapon" and "possession of a weapon" as though the definition of the offense was interchangeable, citing as authority La.R.S. 14:95. Defendant also maintains that the trial judge provided the jurors with a verdict sheet which continued the misstatement of the law and that the verdict sheet gave the jurors the option of rendering an alternative verdict which the jury did find, that "Brian Williams was guilty of possession of [a] firearm or carrying a concealed weapon by a person convicted of certain felonies."
La.R.S. 14:95, which was not cited in the bill of information as a charged offense, provides in pertinent part . . .
A. Illegal carrying of weapons is:
(1) The intentional concealment of any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, on one's person; or
(2) The ownership, possession, custody or use of any firearm, or other instrumentality customarily used as a dangerous weapon, at any time by an enemy alien;
The verdict sheet lists as possible verdicts: 1) Guilty of possession of a firearm by a convicted felon; 2) Guilty of attempted possession of a firearm by a convicted felon, and 3) Not guilty; which clearly does not misstate the law or the bill of information. The verdict returned by the jury states "Guilty of attempted possession of a firearm by a convicted felon (#2)." There is no misstatement of law as alleged by Defendant.
Defendant's misconception may stem from the fact that La.R.S. 14:95.1 is entitled "Possession of Firearm or Carrying Concealed Weapon by a Person Convicted of Certain Felonies."
Throughout the original and supplemental jury charges, the trial court does not cite any offense other than possession of a firearm by a convicted felon. This court was unable to locate any evidence within the record to indicate that the jury returned, or that the trial judge accepted, an improper responsive verdict. Furthermore, counsel does not direct the court to any specific references by the court. There is no ambiguity as claimed by the defense in either the verdict, the verdict sheet or the bill of information. Thus, Defendant's assignment of error lacks merit.
DECREE
Defendant's conviction is affirmed; however, the district court is directed to inform Defendant of the correct provisions of article 930.8 by sending appropriate written notice to Defendant within ten days of the rendition of this opinion and to file written proof that Defendant received the notice in the record of the proceedings.
AFFIRMED.