State v. Clement

368 So. 2d 1037
CourtSupreme Court of Louisiana
DecidedMarch 5, 1979
Docket63173
StatusPublished
Cited by32 cases

This text of 368 So. 2d 1037 (State v. Clement) 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 v. Clement, 368 So. 2d 1037 (La. 1979).

Opinion

368 So.2d 1037 (1979)

STATE of Louisiana
v.
Ruby Lee CLEMENT.

No. 63173.

Supreme Court of Louisiana.

March 5, 1979.
Rehearing Denied April 9, 1979.

*1039 Oliver "Jackson" Schrumpf, Sumpter & Schrumpf, Sulphur, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., Nick Pizzolatto, Jr., Asst. Dist. Atty., for plaintiff-appellee.

CUTRER, Justice Ad Hoc.[*]

Ruby Lee Clement was charged by bill of information with possession of a firearm after having previously been convicted of a felony in violation of La.R.S. 14:95.1. After trial by jury, she was found guilty as charged and sentenced to serve seven years at hard labor. On appeal, defendant relies on four assignments of error for reversal of her conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends La.R.S. 14:95.1 is violative of the equal protection provisions of both the state and federal constitutions. U.S.Const. amend. XIV; La.Const. art. 1, § 3. She argues that this statute is unconstitutional in that the same act (carrying a concealed weapon) can be punished as a misdemeanor (La.R.S. 14:95) or as a felony (La.R.S. 14:95.1) at the discretion of the prosecutor and that, as such, it treats similarly situated persons in a dissimilar manner. Defendant further avers that La. R.S. 14:95.1 is unconstitutional in that the felonies enumerated therein include non-violent crimes (e. g., violations of our Uniform Controlled Dangerous Substances Law) and omit other violent offenses (e. g., assault and battery). She contends that such classification is arbitrary and capricious.

La.R.S. 14:95.1 was part of a 1975 amendment adding provisions to the previously existing La.R.S. 14:95. La.R.S. 14:95 makes criminal the illegal carrying of weapons. The penalty for violation of La.R.S. 14:95 is a fine of not more than five hundred dollars or six months in jail, or both.[1]

In 1975 the legislature enacted special legislation to punish a person who has been convicted of certain enumerated felonies[2] and who possesses a firearm or concealed weapon. La.R.S. 14:95.1. The statute contemplates proof of prior conviction of an enumerated offense as well as possession or concealment of a weapon. State v. Sanders, 337 So.2d 1131 (La.1976). By its passage of La.R.S. 14:95.1 the legislature raised the maximum penalty for carrying a concealed weapon from six months and five hundred dollars (La.R.S. 14:95) to a maximum of ten years without benefit of pardon, parole, or suspension of sentence and a maximum fine of five thousand dollars because the offender has committed prior felonies.

Defendant argues that these differing penalty provisions renders La.R.S. 14:95.1 unconstitutional (when construed with La. R.S. 14:95) as prescribing dissimilar punishment for the same act.

Defendant's argument misconstrues the nature and effect of these provisions. In pertinent part, La.R.S. 14:95 proscribes the intentional concealment of any firearm on one's person. In contrast, under La.R.S. 14:95.1, it is not the possession or concealment *1040 of a weapon — standing alone — which is a felony. It is made a felony only when the person committing the act has previously been convicted of one of the enumerated offenses. The act of possessing or concealing a weapon becomes a felony only because the offender has the status of a convicted felon. See State v. Sanders, supra; see also State v. Williams, 358 So.2d 943 (La.1978). As this court indicated in State v. Amos, 343 So.2d 166, 168 (La.1977), such differentiation is not impermissible:

"We are satisfied that it is reasonable for the legislature in the interest of public welfare and safety to regulate the possession of firearms for a limited period of time by citizens who have committed certain specified serious felonies. Courts of other states having statutes and constitutional provisions comparable to our own have similarly concluded that such regulation is constitutionally permissible as a reasonable and legitimate exercise of police power." (citations omitted)

Neither do we accept defendant's contention that the felonies enumerated in La.R.S. 14:95.1 constitute arbitrary and capricious legislative classification. The felonies enumerated in La.R.S. 14:95.1 are, in the first instance, a matter entrusted to the judgment of the legislature. Violations of the Uniform Controlled Dangerous Substances Law remain serious felony offenses, notwithstanding their apparent lack of violence. The exclusion of other, potentially violent felonies (e. g., assault and battery) does not render the enumeration arbitrary or capricious.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial court erred in denying her motion for a new trial grounded upon the claim that the state failed to comply with its discovery obligation.

Prior to trial, defendant filed a motion for discovery requesting, inter alia, that the state furnish a copy of any record of the defendant's criminal arrests and convictions. The trial judge granted this motion.

At trial, defendant testified in her own behalf. On cross-examination, the district attorney asked defendant if she had been convicted of cruelty to a juvenile and sentenced to serve 90 days in jail in Lake Charles, Louisiana, in 1957. Defendant responded that she had never been convicted of cruelty to a juvenile.

After trial, but prior to sentencing, defendant filed a motion for a new trial alleging that the state, without malice or wrongful intention, had not furnished to defendant a record of her arrest or conviction as to the alleged 1957 charge of cruelty to a juvenile. Therefore, defendant, argued, the state's cross-examination of defendant on the 1957 charge was prejudicial and adversely affected her credibility before the jury.

Upon motion of the defendant, the court shall order the district attorney or the appropriate law enforcement agency to furnish to defendant a copy of any record of her criminal arrests and convictions that is in their possession or custody. La.Code Crim.P. art. 717. If, subsequent to compliance with an order issued pursuant to the discovery articles and prior to or during trial, a party discovers additional evidence or decides to use additional evidence and such evidence is, or may be, subject to discovery or inspection under the order issued, he shall promptly notify the other party and the court of the existence of the additional evidence, so that the court may modify its previous order or allow the other party to make an appropriate motion for additional discovery or inspection. La.Code Crim.P. art. 729.3.

It is thus apparent that defendant was entitled to a copy of any record of her criminal arrest and conviction relating to the alleged 1957 charge of cruelty to a juvenile in the possession of the state. However, our review of the record reveals that no objection was made by defense counsel contemporaneously with the questioning *1041 now assigned as error.[3] La.Code Crim.P. art. 841 provides, and this court has consistently held, that an irregularity or error in the proceeding cannot be availed of after verdict unless it is objected to at the time of its occurrence. See State v. Matthews, 354 So.2d 552 (La.1978); State v. Ford, 349 So.2d 300 (La.1977); State v. Finley,

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368 So. 2d 1037, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-clement-la-1979.