State v. Hathaway

411 So. 2d 1074
CourtSupreme Court of Louisiana
DecidedMarch 12, 1982
Docket80-KA-2516
StatusPublished
Cited by116 cases

This text of 411 So. 2d 1074 (State v. Hathaway) 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. Hathaway, 411 So. 2d 1074 (La. 1982).

Opinion

411 So.2d 1074 (1982)

STATE of Louisiana
v.
Anthony HATHAWAY.

No. 80-KA-2516.

Supreme Court of Louisiana.

March 12, 1982.

*1075 William J. Guste, Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns and Richard Petri, Asst. Dist. Attys., for plaintiff-appellee.

Philip R. Johnson, Metairie, George Escher, New Orleans, for defendant-appellant.

CARTER, Associate Justice Ad Hoc.[*]

Defendant was charged by a Bill of Information with possession of a firearm by a person convicted of a felony, in violation of La.R.S. 14:95.1. He first pleaded not guilty to the charge but after commencement of jury selection was allowed to withdraw that *1076 plea and to plead guilty as charged, reserving his right to appeal the adverse ruling on his motion to suppress the evidence only. The plea was accompanied by the usual Boykin Examination, and the record indicates that defendant understood and waived his right against self incrimination, his right to trial by jury, his right to confront witnesses against him, and his right to appeal.[1]

On the basis of his guilty plea, defendant was sentenced to serve four years at hard labor. No objection was made during the proceedings. On appeal, defendant urges two assignments of error. Defendant's first assignment of error is based on the allegation that there is error patent on the face of the record in that the Bill of Information charged no crime since the wording of the statute under which he is charged exempts him from criminal liability. Defendant's second assignment of error is that it was error for the trial court to deny his motion to suppress the evidence based on the contention that the gun was seized incident to an unlawful arrest.

At the hearing on the motion to suppress, Officer Forrest Bethay of the New Orleans Police Department testified that on March 30, 1979, around 6:00 P.M., he and Officer Robert Barrerre received a telephone call from a confidential informant who had supplied information which had led to arrests and convictions on two prior occasions. The confidential informant told the officers that one Joseph Woods, a known narcotics user would be delivering a quantity of preludins to a residence in the 1200 Block of South White Street. It was also stated that Woods would be carrying a revolver. Officers Bethay and Barrerre proceeded immediately to the area of South White Street and upon their arrival observed Joseph Woods talking on Broad Street at the intersection of Clio. Bethay who was in plain clothes got underneath a truck and watched Woods walk down Clio Street. Woods was turning around and looking up and down the street as to determine if anyone was watching his actions.

Bethay returned to the unmarked police car, advised Officer Barrerre what he had observed, then drove immediately to 1229 South White Street. They observed Joseph Woods, Vincent Vantress, and defendant Anthony Hathaway "standing on the sidewalk." Officer Bethay had known both Woods and Vincent Vantress as narcotics users from his own personal knowledge obtained from past investigations involving both Woods and Vantress. Officer Bethay had never seen nor did he know Anthony Hathaway before this incident. As they alighted from their vehicle, they identified themselves in the following manner, "Police officers, freeze." Hathaway and Vantress immediately ran into a residence at 1229 South White, which was presumed to be Hathaway's. Bethay pursued Hathaway and Vantress. Upon reaching the front door, Officer Bethay discovered the door to be locked and kicked it open. Upon entering the room, he observed Hathaway standing in the kitchen with a revolver in his hand pointing in Officer Bethay's direction. Bethay immediately "went against the wall" and "ordered Mr. Hathaway to throw down the gun." Hathaway threw the gun to the floor and put his hands in the air. Officer Bethay, hearing the toilet flush, immediately looked in the bathroom and saw Vantress standing with a revolver in his hand. Bethay disarmed Vantress and removed a syringe from the bowl of the toilet.

Defendant Hathaway was thereafter charged with being a convicted felon in possession of a firearm, having previously been convicted of murder and attempted murder in 1964.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant's first assignment of error is that there is error patent on the face of the record, in that the Bill of Information charges no crime because the wording of *1077 the statute under which he is charged exempts him from criminal liability.

Defendant is charged under R.S. 14:95.1 which reads in part as follows:

"A. It is unlawful for any person who has been convicted of first or second degree murder ... to possess a firearm or carry a concealed weapon.
* * * * * *
C. Except as otherwise specifically provided, this section shall not apply to the following cases:
(1) The provisions of this section ... shall not apply to any person who has not been convicted of any felony for a period of ten years from the date of completion of sentence, probation, parole, or suspension of sentence ..."

Defendant urged in his original motion to quash that R.S. 14:95.1 was too vague, general, and indefinite in its language, pretermitting the defendant's ability to know what he had to defend against. He also contended that there is no objective standard that would allow the defendant to know which acts allegedly proscribed are illegal or innocent. He also contends that the correct interpretation of Section C of R.S. 14:95.1 would be that the defendant must have committed an additional intervening felony within a ten year period after serving his sentence on the first enumerated felony, and secondly, there was no evidence in the record to show when he was relieved of the ten year liability emanating from R.S. 14:95.1.

These arguments are without merit. This Court has made clear its interpretation of R.S. 14:95.1 in numerous cases. State v. Sanders, 337 So.2d 1131 (La.1976); See also State v. Blanchard, 374 So.2d 1248 (La. 1979); State v. Amos, 343 So.2d 166 (La. 1977). Defendant must only have one prior conviction of one of the enumerated crimes to fall within the perimeters of R.S. 14:95.1.

Defendant's second contention in this assignment of error is that there was no evidence in the record to show when he was relieved of the ten year liability emanating from R.S. 14:95.1. The Bill of Information only provides that "the said Anthony Hathaway, having previously been convicted of a felony, to wit: Murder in case No. 183-078 Section "C" of the docket of the Criminal District Court of the Parish of Orleans, State of Louisiana..." Defendant was convicted of murder and attempted murder in 1964. However, as part of defendant's Boykinization[2] it was stated by defendant's counsel ".. at this point I have consulted with my client and he is desirous of and has indicated to me that he would like to change his plea of not guilty and enter a plea of guilty to the charge, reserving his right to any appeal under State v. Crosby, the Motion to Suppress."[3]

Certainly in a trial of this offense the State must prove beyond a reasonable doubt not only that a convicted felon possessed a firearm, but the date of completion of the punishment as well. State v. William, 366 So.2d 1369 (La.1978).

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Bluebook (online)
411 So. 2d 1074, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hathaway-la-1982.