State v. Lemoine
| Decision Date | 11 March 2020 |
| Docket Number | 19-468 |
| Citation | 297 So.3d 76 |
| Parties | STATE of Louisiana v. Donald P. LEMOINE |
| Court | Court of Appeal of Louisiana — District of US |
Charles A. Riddle, III, District Attorney, Derek Paul Manuel, Assistant District Attorney, Twelfth Judicial District, 417 N. Main Street, Marksville, LA 71351, (318) 253-6587, COUNSEL FOR APPELLANT: State of Louisiana
Derrick M. Whittington, Whittington Law Firm, 339 Moreau St., Suite A, P. O. Box 82389, Marksville, LA 71351, (318) 253-5852, COUNSEL FOR APPELLEE: Donald P. Lemoine
Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Jonathan W. Perry, Judges.
The state appeals the trial court's grant of the defendant's motion to quash its indictment for illegal possession of a stolen firearm pursuant to La.R.S. 14:69.1. In 2015, the defendant had been charged with illegal possession of stolen things. After a bench trial, he was acquitted. He argues that the indictment at issue herein constitutes double jeopardy of the prior indictment for illegal possession of stolen things. For the reasons discussed below, we reverse.
On July 19, 2018, an Avoyelles Parish grand jury indicted Donald P. Lemoine for illegal possession of a stolen firearm, a violation of La.R.S. 14:69.1. In September 2018, the defendant filed a motion to quash the indictment, alleging factual vagueness and double jeopardy. He argued that based on evidence produced at trial on the 2015 indictment for illegal possession of stolen things, a violation of La.R.S. 14:69, the 2018 indictment violates federal and state constitutional protections against double jeopardy. The 2015 indictment specifically charged that the defendant "did take three gun safes with contents ... under circumstances which indicate he knew or had good reason to believe that the gun safes and contents had been the subject of the theft." During trial on the 2015 indictment, the defendant moved for directed verdict on the charge of illegal possession of stolen things, which the trial court granted.
On January 22, 2019, the trial court held a hearing on the defendant's motion to quash. Thereafter, the trial court issued a written ruling quashing the indictment due to double jeopardy. The state filed a motion for reconsideration, which the trial court denied after a hearing. The state appealed.
The state assigns three closely-related legal errors for review:
Both the Fifth Amendment to the United States Constitution and Article 1, Section 15 of the Louisiana Constitution guarantee that no person shall be twice placed in jeopardy for the same offense. See also La.Code Crim.P. art. 591 (). The requirements for double jeopardy are set forth in La.Code Crim.P. art. 596, which provides:
State v. Green , 96-256, p. 5 (La.App. 1 Cir. 12/10/96), 687 So.2d 109, 113, noted that Louisiana courts had not addressed the burden of proof to be applied when considering a motion to quash based on double jeopardy grounds, then adopted the following approach taken by the Fifth Circuit Court of Appeals and other federal courts:
In its first assignment of error, the state asserts that the trial court applied the wrong standard when ruling on the defendant's double jeopardy claim. It argues that the trial court erroneously applied the "same evidence test," set forth in State v. Vaughn , 431 So.2d 763 (La.1983), contrary to the supreme court's holding in State v. Frank , 16-1160 (La. 10/18/17), 234 So.3d 27, that the "same evidence test" no longer applies to double jeopardy determinations. Vaughn also clarified that the only applicable double jeopardy analysis is the test set forth in Blockburger v. United States , 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The trial court's written reasons for its initial ruling on the motion to quash show that it did improperly apply the "same evidence test," and it is reversed.
In Blockburger , 284 U.S. at 304, 52 S.Ct. at 182, the Supreme Court held:
The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Gavieres v. United States , 220 U.S. 338, 342, 31 S.Ct. 421, 55 L.Ed. 489 [ (1911) ], and authorities cited. In that case this court quoted from and adopted the language of the Supreme Court of Massachusetts in Morey v. Commonwealth , 108 Mass. 433 [ (1871) ] : "A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other." Compare Albrecht v. United States , 273 U. S. 1, 11, 12, 47 S.Ct. 250, 71 L.Ed. 505 [ (1927) ], and cases there cited. Applying the test, we must conclude that here, although both sections were violated by the one sale, two offenses were committed.
The Supreme Court concluded that the defendant Blockburger could be prosecuted for two offenses arising from a single drug transaction: the sale of morphine hydrochloride not in its original stamped package and the sale of morphine hydrochloride without a written purchase order.
To convict a defendant of illegal possession of stolen things, the state must prove that he "intentionally possessed, procured, received or concealed something of value" that "had been the subject of a robbery or theft"; and "that the circumstances indicate [he] knew or had good reason to believe that the thing in question was the subject of robbery or theft." State v. Daigrepont , 560 So.2d 959, 960 (La.App. 3 Cir.), writ denied , 566 So.2d 396 (La.1990). To convict a defendant of illegal possession of a stolen firearm, the state must prove that he "intentionally possessed the firearm, that it was the subject of a robbery or theft, and that [he] knew or should have known that the firearm" was stolen. State v. Powe , 14-137, p. 4 (La. App. 4 Cir. 7/16/14), 145 So.3d 583, 586 (quoting State v. Drake , 45,172, p. 11 (La.App. 2 Cir. 5/19/10), 37 So.3d 582, 589-90 ).
These two crimes both require proof that the defendant intentionally possessed something he knew or should have known was stolen. Illegal possession of a stolen firearm, however, requires proof that the defendant intentionally possessed a stolen firearm. The Supreme Court held in Brown v. Ohio , 432 U.S. 161, 166, 97 S.Ct. 2221, 2226, 53 L.Ed.2d 187 (1977) (quoting Iannelli v. United States , 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1294 n. 17, 43 L.Ed.2d 616 (1975) ) that the Blockburger test is satisfied "If each [crime] requires proof of a fact that the other does not ... notwithstanding a substantial overlap in the proof offered to establish the crimes."
At the hearing on its motion for reconsideration, the state argued that during the defendant's prior trial, the firearm at issue here had not been determined to be among the contents of any of the three safes alleged to be stolen. This argument is supported by the 2017 trial testimony of the detective who investigated the stolen safes and the trial court's ruling on the admission of a document the state sought to introduce into evidence. Pursuant to the state's Motion for Appeal and Designation of Record, this appeal record includes the transcript of the detective's testimony. The detective testified regarding a list of guns that the victim provided him during his investigation of the illegal possession of stolen property indictment. The detective explained that the list identified guns which the victim reported were in the safes when they were stolen and guns that were not in the stolen safes. He initially testified that asterisks on the list designated which guns were and were not in the safes. Defense counsel objected to the admission of the list into evidence on the basis that it did not specify which guns were in the stolen safes. The detective apparently became confused as to whether the guns designated with asterisks were in the safes when they were stolen or were in the victim's possession when the safes were stolen. As a result of this confusion, the trial court held:
[T]his testimony does not go...
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