State of Louisiana v. Donald P. Lemoine

• Court: Louisiana Court of Appeal
• Decided: March 11, 2020
• Docket: KA-0019-0468
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

19-468

STATE OF LOUISIANA

VERSUS

DONALD P. LEMOINE

************

APPEAL FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 208108-B HONORABLE WILLIAM J. BENNETT, DISTRICT JUDGE

************ ELIZABETH A. PICKETT JUDGE ************

Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Jonathan W. Perry, Judges.

Cooks, J., Dissents and assigns written reasons.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

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 Pickett, J.

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.

FACTS

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. ASSIGNMENTS OF ERROR

The state assigns three closely-related legal errors for review:

1. The trial court incorrectly chose the “same evidence” test to determine whether this case subjects the defendant-appellee to double jeopardy.

2. The trial court performed no analysis under either the Blockburger v. U.S., 284 U.S. 299, 304 (1932) “distinct fact” test or the improperly cited “same evidence” test, instead concluding that double jeopardy exists in this case because the two crimes at issue share one common element.

3. The trial court incorrectly considered an exhibit admitted in the trial of [the 2015 indictment] in its double jeopardy inquiry, rather than considering only the evidence that would have been required to convict the defendant of the charge in that case.

DISCUSSION

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 (which

provides: “[n]o person shall be twice put in jeopardy of life or liberty for the same

offense[.]”). The requirements for double jeopardy are set forth in La.Code

Crim.P. art. 596, which provides:

Double jeopardy exists in a second trial only when the charge in that trial is:

(1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or

(2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.

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

2 adopted the following approach taken by the Fifth Circuit Court of Appeals and

other federal courts:

[T]he defendant bears the initial burden of establishing a prima facie claim of double jeopardy; if he does so, the burden shifts to the government to demonstrate by a preponderance of the evidence that the indictment charges a crime separate from that for which the defendant previously was placed in jeopardy. United States v. Schinnell, 80 F.3d 1064, 1066 (5th Cir.1996); United States v. Deshaw, 974 F.2d 667, 670 (5th Cir.1992).

Double Jeopardy Analysis

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 (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: “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

3 [(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 (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

4 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 toward any proof that these guns were in any safe or where they were. Just other than in the camp . . . . Subject to the objection the document is admitted . . . solely for the purpose of stating that the guns were stolen from the camp. With the exception of the asterisk [sic].

One might argue that the trial court ultimately concluded that the guns with

asterisks were in the safes. The trial court, however, clarified its ruling during the

hearing on the state’s motion for reconsideration, stating that the list had been

5 admitted into evidence, “but [it was] not introduced for the purpose of being the

alleged contents of the safe[s].” The trial court further observed that the state had

acquiesced to its ruling which served as an admission that it “couldn’t prove the

contents” of the safes. The trial court also noted that “if [the gun at issue here] was

not [proved] in the first trial as being taken then it’s not double jeopardy as to that

gun. If it was introduced in my opinion, it’s clearly double jeopardy.”

Nevertheless, the trial court ultimately concluded at the hearing on the

state’s motion for reconsideration:

Because ya’ll made a list that this is what my husband owned, and he very well owned these guns or an interest in the 3 guns. . . . I mean the simple fact of the matter is you know you can’t prove a theft[,] and you don’t have evidence of a theft that could be proven[,] and he’s been to trial once on this same issue with a list of guns that admittedly if I said it’s just being introduced but not for the purpose of saying it was the contents then that’s on me[.] I just should have dismissed the whole case at that point because you’re admitting I can’t prove contents[,] and the [b]ills said again illegal possession of stolen things by taking a safe, which you couldn’t prove, and having possession of a safe and it’s [sic] contents which you couldn’t prove. You’re admitting . . . so why put the list into evidence to begin with. It’s trying him for the same thing twice[.]

The trial court’s ruling indicates that it ignored its earlier conclusions

regarding the gun list then conflated its findings of facts in the earlier trial with the

issues presented by the state’s motion for reconsideration. Based on the record,

there is no direct evidence that the gun at issue herein was identified as being on

the list introduced in the first proceeding. Furthermore, even if the gun was on the

list, there is no evidence that it was identified as being “contents” of one of the

safes that was allegedly stolen from the camp. Analyzing the facts herein under

the Blockburger, 284 U.S. 299, 52 S.Ct. 180, test, we conclude that the prosecution

of the defendant for illegal possession of a stolen firearm does not constitute

double jeopardy of his earlier prosecution for illegal possession of stolen things.

6 DISPOSITION

The trial court’s grant of the defendant’s motion to quash is reversed. The

assessment of costs is pretermitted to the conclusion of the prosecution.

7 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

COOKS, J., dissents.

I respectfully dissent from the majority opinion reversing the trial court’s

grant of Defendant’s Motion to Quash. I believe the trial court correctly found the

second charge constituted double jeopardy and the judgment granting the Motion to

Quash was appropriate.

This is the second case the State charged that Defendant illegally possessed a

firearm allegedly stolen from a camp. In the first case, Defendant was charged with

illegal possession of stolen things, specifically three gun safes and their contents

(i.e., firearms) from the same camp, on the same date and involving the same

incident giving rise to the second charge. In an effort to prove the charge that

Defendant possessed the stolen safes and the contents, the State introduced into

evidence various items, including a list of guns which were purported to be the

contents of the allegedly stolen safes. As the trial court noted in the second case in

its’ reasons for ruling on the Motion to Quash, that list included a Taurus 17 caliber

handgun, with serial number WJ160010. A review of the offense report indicates it

is the same firearm Defendant is now alleged to have illegally possessed and which

was included in the first charge. At trial on that charge, the State was able to prove

that Defendant possessed the safes and its contents, including the Taurus handgun.

However, the State was unable to prove that a theft of the safes and their contents actually occurred. The charge against Defendant was then dismissed following the

trial court’s grant of a directed verdict of acquittal.

In the present case, Defendant is charged with illegal possession of the same

Taurus 17 caliber handgun referenced in the first case. The theft alleged in this case

is also the same theft alleged in the first case. The State and majority maintain the

trial court mischaracterized the use of the gun list from the first trial, and argues it

was simply a list. However, the trial court noted it was clear that list of guns

introduced into evidence was offered by the State as proof of the contents of the

allegedly stolen safes. The trial court reasoned this amounted to double jeopardy,

stating as follows:

Further, and as in the original case, the State obviously has insufficient evidence to prove that a Theft occurred. The offense narrative of the Avoyelles Parish Sheriff’s Office in the case at bar indicates that their investigation revealed the Tauras [sic] handgun had been stolen in a camp burglary with numerous other guns, recalling the burglary investigation involving a camp involving Don Lemoine. At Hearing the State could produce no evidence or argument indicating as to when this Taurus 17 caliber handgun was stolen; from where it was stolen; from whom it was stolen; or when it was stolen. When that lack of evidence is added to the fact that the State has already alleged that this gun was the subject of an illegal possession and is once again doing so, Double Jeopardy clearly exists.

Although the trial court did reference the “same evidence test,” it is clear to me,

when the facts are analyzed pursuant to the Blockburger test, the trial court’s finding

of double jeopardy is correct. The present case is a prosecution of the same course

of action alleged in the first case -- the illegal possession of a firearm allegedly stolen

from a camp. As Defendant notes, in the first case he was charged with illegal

possession of stolen things; i.e., the gun safes and its contents, which included the

Taurus handgun. In the present case, Defendant was charged with illegal

possession of a firearm -- the same Taurus handgun listed in the first case. The

alleged theft the State maintained made the possession illegal in the first is the same

theft alleged in this case. During the hearing on the Motion to Quash, the State was afforded opportunities to allege the Taurus handgun did not come from the same

alleged theft at the camp that was the basis of the first charge for which Defendant

was acquitted. It was unable to do so. The trial court was correct in finding the

second charge constituted double jeopardy, and its judgment granting the Motion to

Quash should be affirmed.