State v. Lindsey

583 So. 2d 1200, 1991 WL 119724
CourtLouisiana Court of Appeal
DecidedJune 27, 1991
DocketKA 90 1178
StatusPublished
Cited by25 cases

This text of 583 So. 2d 1200 (State v. Lindsey) 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. Lindsey, 583 So. 2d 1200, 1991 WL 119724 (La. Ct. App. 1991).

Opinion

583 So.2d 1200 (1991)

STATE of Louisiana
v.
John S. LINDSEY.

No. KA 90 1178.

Court of Appeal of Louisiana, First Circuit.

June 27, 1991.
Rehearing Denied September 4, 1991.

*1202 Washington Parish District Atty., Franklinton, Bill Campbell, New Orleans, for plaintiff State.

James Looney, Covington, for defendant John Lindsey.

Before COVINGTON, C.J., and LANIER and GONZALES, JJ.

LANIER, Judge.

The defendant, John S. Lindsey, was charged by bill of information with three counts of possession of a firearm by a convicted felon, in violation of La.R.S. 14:95.1. He pled not guilty.[1] After trial by jury, he was acquitted on Count 1; he was found guilty as charged on Count 2; and he was found guilty of the responsive offense of attempted possession of a firearm by a convicted felon, a violation of La.R.S. 14:27 and 95.1 on Count 3. On Count 2, the defendant was sentenced to ten years at hard labor without benefit of parole, probation, or suspension of sentence; on Count 3, he was given a consecutive sentence of five years at hard labor. This appeal followed.

FACTS[2]

At approximately 3:30 p.m. on May 3, 1989, Sherry Byrd and her thirteen year old daughter, Jennifer Stevens, were waiting for a red light at the intersection of Columbia Street and Willis Avenue in Bogalusa, Washington Parish, Louisiana. Mrs. Byrd looked in her rearview mirror and noticed a blue pickup truck directly behind her. She saw the defendant get out of the truck and walk toward her car. He was carrying a pistol. Her daughter also turned around and saw the defendant walking toward them with a pistol. Mrs. Byrd accelerated through the intersection and made a left turn. The defendant got back in his truck and followed her for a short distance before turning away. Mrs. Byrd immediately drove to the Washington Parish Sheriff's Department and reported this incident. This formed the basis of the charge in Count 2.

The following day, May 4, Bogalusa city police officers went to the defendant's residence with a search warrant and an arrest warrant. During a search of the defendant's residence, they located two pistols, two shotguns, and one rifle. The defendant lived in a two bedroom house with his mother, Melanie Rushing. One pistol, a .32, was found in Mrs. Rushing's bedroom. This pistol was later returned to her when she produced a store receipt for it. However, a Colt .45 automatic was found underneath the defendant's mattress. It was loaded and cocked, with the safety on. The two shotguns and the .30 rifle were also found in the defendant's bedroom, along with some ammunition and clips. The seizure of these weapons led to the charge in Count 3.

At the trial, the defendant's status as a felon was clearly established. He was on parole at the time of the instant offenses. Mrs. Byrd and her daughter both testified about the incident which took place on the afternoon of May 3. Several police officers and the defendant's parole supervisor testified about the defendant's prior convictions, his parole conditions, the two bedroom house where the defendant lived, and the items seized during the search of his house on May 4.

The defense theory of the case was that all of the guns seized from the defendant's bedroom previously belonged to his father, who is deceased. Mrs. Rushing testified that the .32 pistol was hers and that it was seized from her bedroom. She testified that all of the other guns had belonged to her husband. After his death, they were kept in the living room closet.

*1203 Angie Dickinson testified that she had been living with the defendant and his mother since April of 1988. She testified that the defendant had gone fishing on May 2, and that he did not return until approximately noon of May 4. While he was gone, she kept the .45 automatic in the bedroom for protection. She also testified that on May 3, 1989, she removed the shotguns and the rifle from the living room closet and placed them in the bedroom because she intended to clean them. This explained why these guns were found in their bedroom by the police on May 4.

The defendant also testified that the .32 pistol belonged to his mother and that the remaining guns had belonged to his father and were kept in the living room closet. The defendant testified that he never possessed any of these weapons. He also testified that he had gone fishing on May 2, and that he did not return until approximately noon of May 4. He specifically stated that he did not see Mrs. Byrd and her daughter in Bogalusa on May 3, and that he did not know the guns were in his bedroom when he returned from the fishing trip on May 4.

DOUBLE JEOPARDY

(Assignment of error 1)

The defendant contends that the trial court erred in denying his motion in arrest of judgment. The motion was based on the argument that the instant convictions constituted a double jeopardy violation. La.C.Cr.P. arts. 591-598; 859(6). La. R.S. 14:95.1(A) provides, in pertinent part:

It is unlawful for any person who has been convicted of [certain enumerated felonies] to possess a firearm....

The defendant contends that, as noted in Official Revision Comment (d) to Article 596, some offenses, such as possession of stolen goods or narcotics, may continue over a long period of time and may involve more than one object. Citing U.S. v. Rosenbarger, 536 F.2d 715 (6th Cir.1976), cert. denied, 431 U.S. 965, 97 S.Ct. 2920, 53 L.Ed.2d 1060 (1977) and U.S. v. Jones, 533 F.2d 1387 (6th Cir.1976), cert. denied, 431 U.S. 964, 97 S.Ct. 2919, 53 L.Ed.2d 1059 (1977), he argues that his possession of these weapons constituted a single course of conduct and warranted only a single punishment. He also relies on these cases for the proposition that La.R.S. 14:95.1 does not define an "appropriate unit of prosecution." He concludes that this "ambiguity" requires the reversal of one of his two convictions.

U.S. v. Jones is distinguishable from the instant case. Jones, a convicted felon, was convicted of three counts of violating a federal firearms statute because he possessed the same gun on three separate occasions. On appeal, Jones argued that only one offense was committed because of his continuous and uninterrupted possession of the same gun. The U.S. 6th Circuit agreed and concluded that Jones could be convicted and sentenced on only one count of possession of a firearm. In the instant case, had the defendant possessed only the Colt .45 automatic on both May 3 and May 4, Jones would be persuasive authority for the proposition that a double jeopardy violation exists. However, the defendant was convicted on Count 2 solely on the basis of his possession of the Colt .45 automatic on May 3, while his conviction on Count 3 was based on the possession of several guns which were found during the search of his bedroom on May 4.

In Rosenbarger, the defendant, a convicted felon, was convicted on three counts of possession of firearms. All three guns were seized during a search of his house. The U.S. 6th Circuit, analyzing the particular federal firearms statute in question, 18 U.S.C. App. § 1202(a)(1), concluded that the statute was ambiguous as to the "appropriate unit of prosecution" and that this ambiguity should be resolved in favor of the defendant. Rosenbarger concluded that Section 1202(a)(1) contained an ambiguous "unit of prosecution" because the statute contained the phrase "any firearm".

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State Of Louisiana v. Joshua Tarez Willis
Louisiana Court of Appeal, 2020
Arrion Walton v. State of Indiana
81 N.E.3d 679 (Indiana Court of Appeals, 2017)
State v. Gutierrez
381 P.3d 254 (Court of Appeals of Arizona, 2016)
Armstrong Knight v. State of Mississippi
192 So. 3d 360 (Court of Appeals of Mississippi, 2016)
State v. Balch
111 A.3d 672 (Supreme Court of New Hampshire, 2015)
State v. ZANTIZ
24 So. 3d 1034 (Louisiana Court of Appeal, 2009)
State v. Marcotte
817 So. 2d 1245 (Louisiana Court of Appeal, 2002)
State v. Felder
809 So. 2d 360 (Louisiana Court of Appeal, 2001)
State v. Coates
774 So. 2d 1223 (Louisiana Court of Appeal, 2000)
State v. Schmidt
771 So. 2d 131 (Louisiana Court of Appeal, 2000)
State v. Roberts
739 So. 2d 821 (Louisiana Court of Appeal, 1999)
State v. Mark
732 So. 2d 110 (Louisiana Court of Appeal, 1999)
State v. Dronet
721 So. 2d 1038 (Louisiana Court of Appeal, 1998)
State v. Hawkins
702 So. 2d 1121 (Louisiana Court of Appeal, 1997)
State v. Kidd
562 N.W.2d 764 (Supreme Court of Iowa, 1997)
State v. Perez
686 So. 2d 114 (Louisiana Court of Appeal, 1996)
State v. Steward
681 So. 2d 1007 (Louisiana Court of Appeal, 1996)
State v. Tatum
661 So. 2d 657 (Louisiana Court of Appeal, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
583 So. 2d 1200, 1991 WL 119724, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lindsey-lactapp-1991.