State v. Hawkins

702 So. 2d 1121, 1997 WL 671542
CourtLouisiana Court of Appeal
DecidedOctober 29, 1997
DocketCR97-726
StatusPublished
Cited by6 cases

This text of 702 So. 2d 1121 (State v. Hawkins) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hawkins, 702 So. 2d 1121, 1997 WL 671542 (La. Ct. App. 1997).

Opinion

702 So.2d 1121 (1997)

STATE of Louisiana
v.
Emile HAWKINS.

No. CR97-726.

Court of Appeal of Louisiana, Third Circuit.

October 29, 1997.

*1122 Michael Cade Cassidy, District Attorney, Jennings, for State.

Paula C. Marx, Lafayette, for Emile "Poo" Hawkins.

Before SAUNDERS, PETERS and AMY, JJ.

PETERS, Judge.

The defendant, Emile Hawkins, appeals his conviction on two counts of possession of a firearm by a convicted felon, violations of La.R.S. 14:95.1. For the following reasons, we affirm the convictions and sentences on both counts.

The defendant was initially charged by bill of information with four separate violations of La.R.S. 14:95.1. He subsequently filed a motion to sever the charges pursuant to La. Code Crim.P. art. 495.1. At a hearing on that motion, the state voluntarily severed the third and fourth counts, but the trial court denied the defendant's motion to sever the other two. A jury trial on the remaining counts commenced on November 20, 1996, and the jury returned guilty verdicts on both counts. The trial court sentenced the defendant to serve twelve years at hard labor on each count, with the sentences to run consecutively.

In appealing his conviction, the defendant asserts four assignments of error:

1. The verdict fails to meet the legal standard for sufficiency of evidence.
*1123 2. The trial court erred in denying defendant's Motion for Severance.
3. The verdict convicting the defendant of both counts violates the prohibition against multiple prosecutions for a continuing offense.
4. Evidence of the defendant's prior conviction for aggravated battery unfairly taxed the jury's capacity to hold the state to its burden of proof beyond a reasonable doubt on the charges before the jury.

Assignment of Error No. 1.

In reviewing a claim that the evidence is insufficient for a conviction, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational juror could have found that the essential elements of the crime were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983).

In the case before us, the defendant had previously been convicted of aggravated battery, a crime of violence. See La.R.S. 14:34; La.R.S. 14:2(13)(e). The crime of possession of a firearm by a convicted felon is defined in La.R.S. 14:95.1, which provides in pertinent part:

A. It is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(13) which is a felony... 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 prohibiting the possession of firearms ... by persons who have been convicted of certain felonies 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.

Thus, in order to convict the defendant of the charged offense, the state had to prove beyond a reasonable doubt that (1) the defendant had previously been convicted of aggravated battery, (2) the statutory ten-year time limitation had not run, (3) he possessed a firearm, and (4) he had the general intent to commit the offense. See State v. Tatum, 27,301 (La.App. 2 Cir. 9/27/95); 661 So.2d 657. The defendant does not dispute that he was convicted of aggravated battery on September 25, 1990. Thus, this assignment addresses only the sufficiency of the evidence presented to prove the third and fourth elements.

At trial, the state introduced the testimony of Shaunta Hurt, Murphyetta Hurt, and Jared Smiley, all of whom testified that they witnessed the defendant in possession of a firearm on February 11, 1996, and again on February 15, 1996. Shaunta testified that she was the defendant's former girlfriend and that on February 11, 1996, at approximately 12:00 a.m., she, Murphyetta, and Jared were parked in the parking lot of Adrian Jay's club in Jennings, Louisiana, when the defendant walked up to the vehicle in which she was sitting and asked her to exit the vehicle. According to her testimony, when she refused, the defendant walked back to the side of the vehicle, pulled a handgun from his pocket, and fired it three to four times in the air.

Shaunta also testified that a similar incident occurred four days later at the same location. On that occasion, she and Murphyetta were in Adrian Jay's club when she noticed the defendant. She immediately left the club and asked Murphyetta to walk with her. As she left the club, she observed Nini Phillips pass in a van. According to Shaunta, she got Nini to stop and asked for a ride to her grandmother's house. She testified that after she entered the van, the defendant walked up behind the vehicle with his hand in his pocket. He continued across the street, and after he had crossed the street, he drew a handgun from his pocket and fired it.

Murphyetta, who is Shaunta's sister, testified that she was present on both occasions, and she confirmed Shaunta's testimony concerning the actions of the defendant and the presence of the handgun. Jared, who is Shaunta's brother, testified that he was the driver of the vehicle occupied by Shaunta *1124 and Murphyetta on February 11, 1996, and that he also witnessed the defendant in possession of the handgun and witnessed the defendant fire the shots described by Shaunta and Murphyetta. He also testified that he was present at Adrian Jay's establishment on February 15, 1996, and that he observed the defendant fire a handgun into the air across the street from the club. Father Scott Desormeaux, a catholic priest who resides a short distance from Adrian Jay's club, testified that on February 11, 1996, shortly before midnight, he heard four to five shots being fired and called 911 for assistance.

No weapon was recovered as a result of the criminal investigation. The defendant argues in his appellate brief that the state was required to produce the weapon and that since the state failed to do so, it failed to prove beyond a reasonable doubt that he was in possession of a firearm. At trial, the state showed the witnesses two pistols—a black-handled Taurus .38 and a starter pistol—for demonstrative purposes only. The defendant asserts that showing the unrelated .38 pistol was so prejudicial and suggestive that it should not have been allowed.

We find no error in the use of the .38 pistol for demonstrative purposes. All three eyewitnesses testified that it resembled the firearm possessed by the defendant at the time of the two instances. Additionally, the testimony of the eyewitnesses, without the firearm, is sufficient to sustain the defendant's conviction. See State v. Rash, 444 So.2d 1204 (La.1984); State v. Culverson, 26,874 (La.App. 2 Cir. 4/5/95); 653 So.2d 1261.

The defendant also points to numerous inconsistencies in the witnesses' testimony to argue that the state failed in its burden of proof.

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Bluebook (online)
702 So. 2d 1121, 1997 WL 671542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hawkins-lactapp-1997.