State v. Shed

• Citation: 828 So.2d 124
• Decision Date: 18 September 2002
• Docket Number: No. 36,321-KA.,36,321-KA.
• Parties: STATE of Louisiana, Plaintiff-Appellee, v. Willie Ray SHED, Jr., Defendant-Appellant.
• Court: Court of Appeal of Louisiana (US)

828 So.2d 124

STATE of Louisiana, Plaintiff-Appellee, v. Willie Ray SHED, Jr., Defendant-Appellant.

No. 36,321-KA.

Court of Appeal of Louisiana, Second Circuit.

September 18, 2002.

COPYRIGHT MATERIAL OMITTED

Paula Corley Marx, Lafayette, for Defendant-Appellant.

Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, J. Thomas Butler, Edward M. Brossette, Assistant District Attorneys, for Plaintiff-Appellee.

Before PEATROSS, DREW and HARRISON (Pro Tempore), JJ.

HARRISON, Judge Pro Tempore.

Willie Ray Shed appeals his conviction of possession of a firearm by a convicted felon; he also appeals his sentence of ten years at hard labor without benefit of probation, parole, or suspension of sentence, and to pay a fine of $1,000.00 and court costs or serve 100 days in the parish jail from the First judicial District Court, Parish of Caddo. For the reasons set forth below, we affirm the conviction and sentence.

Facts

In 1994, Shed was convicted of three counts of distribution of cocaine. In conjunction with his supervision and first offender probation, the defendant was informed that he was not to possess firearms, either on his person or in his home.

Around 9:00 pm on January 2, 2001, several Shreveport police officers arrived at Shed's house, pursuant to citizen complaints about illegal drug activity. The officers, who were dressed in black pants and black t-shirts with "Shreveport Police" written in white lettering across the front, executed an operation commonly referred to as a "knock and talk." Agent Jason Brook testified that when he and Agent Jerry Ogiee knocked on Shed's door, Clarence Lee answered the door. Lee informed the police that he was not the homeowner, invited the officers inside, and told them that he would go get the homeowner, who was in the back of the house. Upon stepping inside the kitchen, the officers saw in plain view a small white plate on top of the washing machine; the plate contained two razor blades and what appeared to be crack cocaine. The officers then detained an handcuffed Lee.

As the officers were talking with Lee, Shed came to the kitchen and said he was the homeowner. The officers advised Shed that they were there to investigate reports of illegal drug activity and that they had already seen narcotics inside the residence. Shed remarked that there was "more dope" in the kitchen cabinet. At that time, the officers secured the residence, making sure that there was no one else inside, and performed a security sweep for weapons. When asked by an officer.. Shed admitted that he had a .40 caliber gun in his pocket. After the officers recovered the drugs from the top of the washing machine and the kitchen cabinet, and the handgun from Shed's person, Shed told the officers they could not continue to search his residence. The officers then obtained a search warrant and returned to complete the search.

In addition to the gun Shed was carrying, the police recovered ammunition and four other guns: a .45 caliber derringer style handgun, a .25 caliber semiautomatic pistol, a .25 caliber handgun, and a .357 revolver. The police also recovered some scales, cash and slightly over four grams of cocaine from Shed's home. At that time, Shed admitted to the police that he owned all the drugs and guns found in the house.

Shed was charged by bill of information with possession of a firearm by a convicted felon, La. R.S. 14:95.1. Shed tiled a motion in limine to exclude the introduction of any evidence of drugs found at the scene. Following a hearing, this motion was denied.

At Shed's jury trial, the officers involved testified regarding the facts related above. Shed testified on his own behalf. He related that he heard a door slam and seconds later he heard somebody beating on the door. Shed stated that he grabbed his wile's pistol (the 40 caliber) and put it in his pocket and went to see what was happening. When he saw the police, he put his hands in the air. Shed also told of previous incidents of break-ins at his home. When asked about the various guns seized from his home, Shed insinuated that they belonged to his wife and two teenage sons. Shed's wife, Patricia, testified that she owned two of the guns that were seized from the house, a .45 caliber and a .40 caliber, and produced a receipt for the .45 caliber handgun.

On August 8, 2001, a jury found Shed guilty of possession of a firearm by a convicted felon. Shed filed motions for post verdict judgment of acquittal and new trial. These motions were denied.

Shed appeals and asserts the following assignments of error: the evidence was insufficient because his possession was justified a mistrial should have been granted due to a prosecutor's comment made during voir dire, and his trial counsel was constitutionally ineffective.

Discussion — Sufficiency of the Evidence

Shed argues as his first assignment of error that there was insufficient evidence to support his conviction of illegal possession of a firearm by a convicted felon. He does not dispute that he was a convicted felon who possessed a firearm within ten years of his prior conviction. Instead, he maintains that his conduct was justified under La. R.S. 14:18. Shed asserts that, upon hearing the loud beating at his door, coupled with his recent. history of burglaries at his home, he was justified in grabbing his wife's pistol in an effort to defend himself and his property. He argues that his actions were reasonable in defense of persons or property.

The state responds that Shed had not only a gun in his pocket when he met the police at the door, but also constructive possession of four other weapons in the house. It also argues there was no showing of imminent peril, and that Shed referred to the gun as "his weapon" during testimony.

Shed properly raised the issue of sufficiency of the evidence in the trial court by motion for post verdict judgment of acquittal, which was denied by the trial court. La.C.Cr.P. art. 821.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

To prove the illegal possession of a firearm by a convicted felon, the state must establish beyond a reasonable doubt that the defendant possessed a firearm; that he had previously been convicted of an enumerated felony; that at the time of the present offense the ten-year statutory period had not elapsed from completion or suspension of the prior felony sentence; and general intent to commit the present offense. La. R.S. 14:95.1; State v. Husband, 437 So.2d 269 (La.1983); State v. Morcan, 31,511 (La.App.2d Cir.12/9/98), 725 So.2d 515, writ denied, 99-0186 (La.5/28/99), 743 So.2d 659. General intent is shown when the proof shows that the perpetrator carried on his person a firearm. State v. Neeley, 30,008 (La. App.2d Cir.12/23/97), 704 So.2d 443; State 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. Moreover, the defendant's admission that he carried the gun in his pants pocket sufficiently reflects the requisite general intent. State v. Morvan, supra, and citations therein. Even a temporary possession may constitute possession proscribed by La. R.S. 14:95.1. State v. Day, 410 So.2d 741 (La.1982); State Goldsmith, 519 So.2d 299 (La.App. 2d Cir.1988).

Moreover, actual possession is not a necessary element of the offense; "constructive" possession of a firearm by a convicted felon will satisfy the possessory element of La. R.S. 14:95.1. State v. Day, supra: State v. Mandigo, 29913 (La App.2d Cir.10/31/97), 702 So.2d 351. Constructive possession occurs when a firearm is subject to defendant's dominion and control. Id.; State v. Washington, 605 So.2d 720 (La.App. 2d Cir.1992), writ denied, 610 So.2d 817 (1993). Constructive possession can be established if the weapon is subject to the felon's dominion and control even if it is only temporary in nature and even if the control is shared. State v. Wesley. 28,941 La.App. 2 Cir. 12/13/96), 685 So.2d 1169. writ denied, 97-0279 (La.10/10/97), 703 So.2d 603; State v. Bailey, 511 So.2d 1248 (La.App. 2d Cir.1987), writ denied, 519 So.2d 132 (1988). If there is a reasonable time for the felon to divest himself of the weapon, no matter how it was obtained, he must do so. State v. Grand, 414 So.2d 373 (La.1982); State v. Day. supra.

The jurisprudence has developed a doctrine of "necessity" which expands the realm of justification, but this theory has a very limited application in felony firearm possession cases. See, State v. Recard, 97-754 (La.App. 3 Cir. 11/20/97), 704 So.2d 324, writ denied, 97-3187 (La.5/1/98), 805 So.2d 200. "Necessity," when raised as a defense to the illegal possession of a firearm, entails proof that the threat of force by another is imminent and apparent, and that the person threatened has no reasonable alternative but to possess the firearm. Id. Justification is an affirmative defense which the accused must establish by a preponderance of the evidence. State v. Cheatwood, 458 So.2d 907 (La.1984); State v. Brazil, 34,341 (La. App. 2 Cir. 4/4/01), 784 So.2d 734.

Shed contests no essential element of the offense but maintains he was justified in possessing the weapon. However, this record does not contain a...