State of La. v. Dedrick JerMe. JONES

• Decision Date: 22 September 2010
• Docket Number: No. 45,476–KA.,45
• Parties: STATE of Louisiana, Appellee v. Dedrick Jermaine JONES, Appellant.
• Court: Court of Appeal of Louisiana — District of US

47 So.3d 1096

STATE of Louisiana, Appellee

v.Dedrick Jermaine JONES, Appellant.

No. 45,476–KA.

Court of Appeal of Louisiana,Second Circuit.

Sept. 22, 2010.

Carl Henry Franklin, for Appellant.

Charles Rex Scott, II, District Attorney, for Appellee.

Jason Brown, Suzanne Owen, Assistant District Attorneys.

Before STEWART, GASKINS and CARAWAY, JJ.

GASKINS, J.

The defendant, Dedrick Jermaine Jones, appeals his conviction for possession of a firearm by a convicted felon. For the following reasons, we reverse the defendant's conviction and sentence and render a verdict of not guilty.

FACTS

On the afternoon of March 25, 2006, members of the street-level interdiction unit of the Shreveport Police Department were patrolling trouble spots known for illegal activity. They entered the area of the Peach Street Apartments in the Martin Luther King area of Shreveport, a location known for narcotics, weapons violations, and shootings. Upon entering the apartment complex, officers observed a vehicle parked with a large number of people gathered around it. When the people saw the officers, they scattered. Officers approached the vehicle. Officer Shawn Parker found the defendant seated in the right front passenger seat. The defendant was fidgeting and appeared to be nervous. Officer Parker asked the defendant for his identification. The officer then noticed a .44 Magnum Desert Eagle handgun on the floorboard of the vehicle, at the defendant's feet. The officer recovered and secured the weapon. The gun contained a magazine of ammunition.

The defendant was removed from the vehicle and a pat-down search was conducted. Another magazine of ammunition was found in the defendant's pocket. The defendant was advised of his Miranda rights and was asked if he had ever been arrested before. The defendant stated that he had. He said that he did not know anything about the gun and denied knowledge of the ammunition found in his pocket. He later stated that the gun belonged to his girlfriend. Officer Parker checked the defendant's criminal history and found that he had a prior felony drug charge in Florida. The defendant had been charged with possession of cocaine and possession of drug paraphernalia. Certified copies of court documents from Collier County, Florida, revealed that the defendant entered a plea of nolo contendere to the charges and adjudication was withheld. The defendant was placed on probation for 12 months.

The defendant was arrested on the present offense and a bill of information was filed charging him with “Possession of a Firearm by a Convicted Felon,” a violation of La. R.S. 14:95.1. The defendant filed a motion to quash the charge against him, arguing that the October 25, 2004, plea in Florida could not be used as a predicate for the present charge of possession of a firearm by a convicted felon because of Boykin violations in the Florida proceedings.

On July 15, 2009, the trial court held a hearing on the motion to quash. The court noted that the defendant was represented by counsel at the time the plea was entered and no Boykin violation was proven. The trial court denied the motion to quash.

A bench trial was held on September 10, 2009. Officer Parker testified, outlining the facts set forth above which led to the defendant's arrest and charge on the present offense. At trial, the defendant objected to the introduction of the certified copies of the Florida court records, arguing again that the state had not shown that the Florida plea was freely and voluntarily given. The trial court overruled the objection, noting that those issues were disposed of on the motion to quash.

Lieutenant Owen McDonnell with the Caddo Parish Sheriff's Office crime scene investigation unit testified at the trial as a fingerprint expert. He fingerprinted the defendant and determined that the defendant was the same person who entered the plea in the Florida proceedings.

After the state rested its case, the defendant again argued that there was no showing that the defendant was properly Boykinized before entering the plea of nolo contendere in Florida. The trial court took the matter under advisement. On October 14, 2009, the trial court held a hearing on the issue originally raised in the defendant's motion to quash, whether the Florida plea was freely and voluntarily entered. The trial court ruled that the defendant did not provide any affirmative evidence to show that he was not properly Boykinized when the Florida plea was entered.

On October 20, 2009, the defendant appeared before the trial court and was found guilty as charged of possession of a firearm by a convicted felon. He waived sentencing delays and was sentenced to serve 10 years at hard labor without benefit of probation, parole, or suspension of sentence. The defendant was ordered to pay a fine of $1,000. Costs were ordered to be paid through the inmate banking system. The defendant was ordered to serve 60 days in lieu of payment of costs.

The defendant obtained new counsel and appealed, arguing that the evidence was insufficient to support his conviction, and that the trial court erred in denying his motions to quash and to suppress the evidence against him.

SUFFICIENCY OF THE EVIDENCE

The defendant argues that the trial court erred in finding that the state proved beyond a reasonable doubt that he was a convicted felon at the time of his arrest in the present case for possession of a firearm by a convicted felon. The defendant stated that in the Florida proceedings, in which he was charged with possession of cocaine, he entered a plea of nolo contendere and adjudication was withheld. He was placed on 12 months' probation. According to the defendant, a plea of nolo contendere accompanied by a withholding of adjudication does not constitute a conviction for the charged offense under Florida law. For the following reasons, we find that this argument has merit.

Legal Principles

[1] The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001–1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 2008–0499 (La.11/14/08), 996 So.2d 1086; State v. Law, 45,435 (La.App.2d Cir.8/11/10), 46 So.3d 764.

In Louisiana, the offense of possession of a firearm by a convicted felon is governed by La. R.S. 14:95.1, which provides in pertinent part:

A. It is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) which is a felony or simple burglary, burglary of a pharmacy, burglary of an inhabited dwelling, unauthorized entry of an inhabited dwelling, felony illegal use of weapons or dangerous instrumentalities, manufacture or possession of a delayed action incendiary device, manufacture or possession of a bomb, or possession of a firearm while in the possession of or during the sale or distribution of a controlled dangerous substance, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony,

or any crime which is defined as a sex offense in R.S. 15:541, or any crime defined as an attempt to commit one of the above-enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be one of the above-enumerated crimes, to possess a firearm or carry a concealed weapon. [Emphasis supplied.]

[2] To support a conviction for possession of a firearm by a convicted felon, the state must prove: (1) the possession of a firearm; (2) a previous conviction of an enumerated felony; (3) absence of the 10–year statutory period of limitation; and (4) general intent to commit the offense. La. R.S. 14:95.1; State v. Husband, 437 So.2d 269 (La.1983); State v. Ray, 42,096 (La.App.2d Cir.6/27/07), 961 So.2d 607; State v. Law, supra.

Discussion

[3] In the present case, the defendant has raised the issue of whether he was actually convicted of a drug offense in Florida which could serve as a predicate for the offense charged here. The state argues that the defendant's complaint that he was not convicted of the possession of cocaine charge in Florida should have been raised before the trial court in a motion to quash under La.C.Cr.P. art. 485. The state urges that all grounds for a motion to quash not properly raised in the trial court are waived and that this issue is not properly before this court on appeal. As set forth above, the proof of a prior enumerated felony is an element necessary to support a conviction of possession of a firearm by a convicted felon under Louisiana law. Without proof of this element of the offense, the evidence against the defendant is not sufficient to sustain a conviction. The motion to quash is essentially a mechanism by which to raise pretrial pleas of defense, i.e., those matters which do not go to the merits of the charge. La. C. Cr. P. arts. 531–534; State v. Perez, 464 So.2d 737 (La.1985). It is treated much like an exception of no cause of action in a civil suit. State v. Perez, supra.

[4] [5] In considering a motion to quash, a court must accept as true the facts contained in the bill of information and in the bills of particulars, and determine as a matter of law and from the face of the pleadings whether a crime has been charged. While evidence may be adduced, such may not include a defense on the merits. The question of factual guilt or innocence of the offense charged is not raised by the motion to quash. State v. Perez, supra; State v. Thomas, 28,790 (La.App.2d Cir.10/30/96), 683 So.2d...