State of Louisiana v. Joseph Perkins

149 So. 3d 206, 2014 La. LEXIS 1819
CourtSupreme Court of Louisiana
DecidedSeptember 3, 2014
Docket2013-K -1917
StatusPublished
Cited by5 cases

This text of 149 So. 3d 206 (State of Louisiana v. Joseph Perkins) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State of Louisiana v. Joseph Perkins, 149 So. 3d 206, 2014 La. LEXIS 1819 (La. 2014).

Opinions

PER CURIAM.

| j This writ concerns whether defendant, Joseph Perkins, is entitled to jury instructions on self-defense and justification for the charged offense of possession of a “shank” by a convicted felon, a violation of Louisiana Revised Statute 14:95.1, while he was incarcerated in Orleans Parish Prison.1 Prior to instructing the jury on the relevant law, the District Court denied the defendant’s motion for these special self-defense and justification instructions on the grounds the evidence elicited at trial as a factual matter did not support the defendant’s entitlement to the instructions. At the trial’s conclusion, the jury found defendant guilty of the charged offense.2 The District Court sentenced defendant to 15 years imprisonment at hard labor. Defendant appealed, and the Court of Appeal reversed in a split panel decision, finding the District Court erred in denying defendant the proposed instructions on self-defense and justification. State v. Perkins, 12-0662 (La.App. 4 Cir. 7/31/13), 120 So.3d 912 (Lobrano, J., dissenting). We granted the State’s writ application to review the correctness of the Court of Appeal’s decision. State v. Perkins, 13-1917 (La.3/21/14), 135 So.3d 626. Because we find the Legislature |anever intended for the jury instructions on self-defense and justification to apply to a defendant who was charged with possession of a concealed weapon while incarcerated, the Court of Appeal erred as a matter of law in reversing defendant’s conviction and sentence.

A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. La. C.Cr.P. art. 807; see also State v. Johnson, 438 So.2d 1091, 1097 (La.1983); State v. Lane, 414 So.2d 1223,1228 (La.1982). The charge, however, must be supported by the evidence. State v. Teleford, 384 So.2d 347, 350 (La.1980). This is a corollary of the trial judge’s basic obligation to charge the jury as to the law applicable to the case, under which he is required to cover every phase of the case supported by the evidence whether or not accepted by him as true. La.C.Cr.P. art. 802; State v. Sim[208]*208mans, 422 So.2d 138, 141 (La.1982); State v. Miller, 338 So.2d 678, 679 (La.1976). Moreover, failure to give a requested jury instruction constitutes reversible error only when there is a miscarriage of justice, prejudice to substantial rights of the accused, or a substantial violation of a constitutional or statutory right. La.C.Cr.P. art. 921; State v. Marse, 365 So.2d 1319, 1324 (La.1978).

Louisiana Revised Statute 14:18 lists seven circumstances under which a defendant may raise the defense of justification, including, as pertinent here, “[w]hen the offender’s conduct is in defense of persons or of property under any of the circumstances described in Articles 19 through 22.” La. R.S. 14:18(7). Specifically, Louisiana Revised Statute 14:19, concerning the use of force or violence in defense, provides in pertinent part:

The use of force or violence upon the person of another is justifiable when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, Land that this Section shall not apply where the force or violence results in a homicide.

La. R.S. 14:19(A).

This Court has never addressed the specific issue of whether a justification defense is available to a defendant who was an inmate in a penal institution at the time he allegedly possessed a firearm or a concealed weapon in violation of Louisiana Revised Statute 14:95.1. However, the Court has addressed the analogous but distinct issue of whether or not an unin-carcerated convicted felon charged with possessing a firearm or carrying a concealed weapon is entitled to the justification instruction.

In State v. Blache, 480 So.2d 304 (La.1985), the defendant, who had previously been convicted of simple burglary, was charged, inter alia, with possession of a firearm by a convicted felon after he ran into his father’s house and brought out his brother-in-law’s loaded shotgun in the midst of a scuffle with his friend and five attackers. Although the defendant was acquitted of the possession of a firearm by a convicted felon charge, this Court had to determine whether or not the defendant was entitled to the self-defense jury instruction in order to reach one of defendant’s assignments of error. We found that, under these circumstances, the defendant was entitled to the instruction:

We hold that when a felon is in imminent peril of great bodily harm, or reasonably believes himself or others to be in such danger, he may take possession of a weapon for a period no longer than is necessary or apparently necessary to use it in self-defense, or in defense of others. In such situation [sic] justification is a defense to the charge of felon in possession of a firearm.
This is not to say that a convicted felon is entitled to own or maintain possession of a weapon, constructive possession or otherwise, for protection, or for any other reason. In this case, incidentally, as was noted hereinabove at footnote three, the record reflects no information concerning pre-incident possession of the shotgun other than that it belonged to defendant’s brother-in-law and was kept in a hall closet of a residence owned by defendant’s father. There was no evidence of constructive possession of the shotgun by defendant preceding the encounter.

14State v. Blache, 480 So.2d at 308.

While the Blache defendant was entitled . to the justification jury instruction, we find [209]*209this matter readily distinguishable. Under the Blache facts, the firearm defendant carried in violation of Revised Statute 14:95.1 was capable of legal possession by someone, that is, anyone who was not a convicted felon, because under this statute possession of a firearm is not inherently criminal. Rather, its possession is only criminal in the hands of a convicted felon. Indeed, the Blache Court emphasized, pri- or to the incident, there was no evidence defendant illegally possessed the firearm. Rather, the shotgun at issue was owned by defendant’s brother-in-law and housed in a residence owned by defendant’s father.

In the penal context, however, there is no scenario in which possession of the “shank” at issue here would be permissible. Not only do Department of Corrections regulations prohibit inmates from possessing weapons, LAC 22:I.841(I)(1), but Louisiana Revised Statute Section 14:402 also prohibits any person from “introducing]” or “possessing]” a “dangerous weapon, or other instrumentality customarily used or intended for probable use as a dangerous weapon ..., unless authorized by the warden of the institution.” Thus, in the penal context, possession of a weapon by anyone is inherently criminal. State v. Draughter, 13-0914, p. 15 (La.12/10/13), 180 So.3d 855, 866 (“The right to keep and bear arms found in article I, section 11 is one such constitutional protection which must be curtailed entirely in the prison setting.”).

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Bluebook (online)
149 So. 3d 206, 2014 La. LEXIS 1819, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-louisiana-v-joseph-perkins-la-2014.