State v. Jones

773 So. 2d 234, 2000 WL 1694028
Louisiana Court of Appeal·Decided November 8, 2000·No. 99-KA-2595·Published·Cited by 5 cases

Opinion

773 So.2d 234 (2000)

STATE of Louisiana
v.
Brian JONES.

No. 99-KA-2595.

Court of Appeal of Louisiana, Fourth Circuit.

November 8, 2000.

*236 Harry F. Connick, District Attorney, Charles E.F. Heuer, Assistant District Attorney, New Orleans, LA, Counsel for Plaintiff/Appellee.

Sherry Watters, Louisiana Appellate Project, New Orleans, LA, Counsel for Defendant/Appellant.

Court composed of Chief Judge ROBERT J. KLEES, Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY.

KIRBY, Judge.

The defendant, Brian Jones, was charged by bill of information on March 3, 1999, with being a felon in possession of a weapon, a violation of la. R.S. 14:95.1. At his arraignment on March 10, 1999, he pled not guilty. On March 26, 1999, the trial court denied his motion to suppress the evidence and found probable cause. Following a bench trial on May 7, 1999, the court found him guilty as charged. On May 28, 1999, the court sentenced the defendant to ten years at hard labor, without benefit of parole, probation or suspension of sentence, with credit for time served, sentence to run concurrent with any other sentence.

STATEMENT OF FACTS

Ms. Kenyatta Watson testified that she was involved in a confrontation with the defendant at a party on January 1, 1999. When she entered the party, the defendant called her a "bitch". She was offended and left the party to tell her mother. Ms. Watson and her mother went to the police station and explained the incident to the officer in charge. Ms. Watson told the officer that although the defendant did not physically harm her, she was afraid of him. Thereafter, police officers accompanied Ms. Watson and her mother to the party to speak to the defendant.

Ms. Mercedes Watson, Ms. Kenyatta Watson's mother, testified that on January 1, 1999, she and her daughter went to the police station and after relating the incident at the party, requested that the officers speak to the defendant. The officers accompanied Ms. Mercedes Watson into the apartment complex while her daughter waited out front. As she and the officers entered the building, the defendant met them on the stairway, and she identified the defendant for the police. When she did, the defendant grabbed for his back pocket, attempting to remove a gun. The police confiscated the weapon.

Officer Wellington Beaulieu testified that on January 1, 1999, he responded to a complaint of a disturbance with threat at 3602 Higgins. Ms. Kenyatta Watson lodged the complaint. Officer Beaulieu went to the address and as he ascended the stairs to the second floor landing, he met the defendant. The defendant reached into his rear pocket, attempting to remove a gun. The officer detained him and removed *237 a fully loaded thirty-eight-caliber handgun from the defendant's back pocket. Officer Beaulieu arrested the defendant.

ERRORS PATENT

A review for errors patent on the face of the record reveals one. The defendant was found guilty of being a felon in possession of a firearm. The penalty for a violation of La. R.S. 14:95.1 mandates a term of imprisonment at hard labor plus a fine of not less than one thousand dollars nor more than five thousand dollars. La. R.S. 14:95.1(B). In failing to impose a fine against the defendant, the trial court rendered an illegally lenient sentence. However, this Court will not correct an error patent favorable to the defendant on appeal where not argued by the State or the defense. State v. Fraser, 484 So.2d 122 (La.1986).

PRO SE ASSIGNMENT OF ERROR NUMBER 1 AND COUNSEL ASSIGNMENT OF ERROR NUMBER 1

In this assignment, the defendant argues that the trial court erred in denying his motion to suppress the evidence. He maintains that the police lacked reasonable suspicion to stop him and therefore, the evidence should have been suppressed.

On trial of a motion to suppress, the State has the burden of proving the admissibility of all evidence seized without a warrant. La.C.Cr.P. art. 703(D); State v. Jones, 97-2217 (La.App. 4th Cir. 2/24/99), 731 So.2d 389, writ denied, 99-1702 (La.11/5/99), 751 So.2d 234. A trial court's ruling on a motion to suppress the evidence is entitled to great weight, because the trial court had the opportunity to observe the witnesses and weigh the credibility of their testimony. Jones, supra.

"A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense..." La.C.Cr.P. art. 215.1; State v. Bentley, 97-1552, p. 7 (La.App. 4th Cir. 10/21/98), 728 So.2d 405, 410 writ denied, 98-3213 (La.5/7/99), 741 So.2d 27. Evidence derived from an unreasonable stop, i.e., seizure, will be excluded from trial. State v. Benjamin, 97-3065 (La.12/1/98), 722 So.2d 988, 989. "Reasonable suspicion" is something less than the probable cause needed for an arrest, and must be based upon particular articulable facts and circumstances known to the officer at the time the individual is approached. State v. Williams, 98-3059 (La.App. 4th Cir. 3/3/99), 729 So.2d 142, 144; State v. Smiley, 99-0065 (La.App. 4th Cir. 3/3/99), 729 So.2d 743, 745, writ denied, 99-0914 (La.5/14/99), 743 So.2d 651. The totality of the circumstances must be considered in determining whether reasonable suspicion exists. State v. Belton, 441 So.2d 1195 (La.1983), cert. den. Belton v. Louisiana, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984).

In addition, once reasonable suspicion is found, paragraph (B) of art. 215.1 provides:

When a law enforcement officer has stopped a person for questioning pursuant to this Article and reasonably suspects that he is in danger, he may frisk the outer clothing of such person for a dangerous weapon. If the law enforcement officer reasonably suspects the person possesses a dangerous weapon, he may search the person.

See also State v. Hunter, 375 So.2d 99 (La.1979). "The officer need not be absolutely certain that the person is armed, but the officer must be warranted in his belief that his safety or that of others is in danger." State v. Smith, 94-1502 (La.App. 4th Cir. 1/19/95), 649 So.2d 1078, 1082.

At the hearing on the motion to suppress in this case, Officer Beaulieu[1] testified that he accompanied Ms. Mercedes *238 Watson to an apartment complex in response to a "disturbance complaint with threat" lodged by her daughter, Kenyatta Watson. Therefore, believing that a crime had been committed, the officer had reasonable suspicion to stop the defendant. La.C.Cr.P. art. 215.1. However, as the officer and Ms. Watson ascended the stairs, they saw the defendant. Officer Beaulieu had not yet detained, or even spoken to, the defendant before he (the defendant) reached into his back pocket for a gun. Hence, it is questionable whether a stop occurred prior to the defendant's reach for his gun. Nevertheless, once the defendant did reach for his weapon, Officer Beaulieu was legally authorized to seize both the defendant and the weapon. La.C.Cr.P. art. 215.1(B). This assignment is without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER 2

In this assignment of error the defendant complains that his sentence is excessive and that the trial court failed to comply with the sentencing mandates of La.C.Cr.P. art. 894.1.

La.C.Cr.P. art. 881.1 provides in pertinent part:

A.

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State v. Jones, 773 So. 2d 234, 2000 WL 1694028 (La. Ct. App. 2000).

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