STATE of Louisiana v. Mickel BRISCO
No. 2004-K-3039
Supreme Court of Louisiana
July 6, 2006
933 So. 2d 754
Richard A. Spears, New Iberia, for respondent.
WEIMER, Justice.
This matter is before the court for a determination of whether the State may invoke the firearm sentencing provisions set out in
Defendant was convicted of assault by drive-by shooting and sentenced. The appellate court affirmed defendant‘s conviction, but vacated the sentence of five years and remanded the case to the district court for sentencing. State v. Brisco, 04-0797 (La.App. 3 Cir. 11/10/04), 887 So.2d 660. The State filed a writ application with this court contesting the ruling of the appellate court. We granted certiorari to determine the correctness of the appellate court ruling. State v. Brisco, 04-3039 (La. 4/8/05), 889 So.2d 1.
For reasons that follow, we hold that although discharge of a firearm is an element of the offense of assault by drive-by shooting, the firearm sentencing provisions,
FACTS AND PROCEDURAL HISTORY
Defendant, Mickel Brisco, and his wife separated on November 26, 2000. Approximately a month later, Brisco fired four shots into the home where his wife and children were staying. Bullets recovered
On May 18, 2001, the State filed a bill of information charging defendant with assault by drive-by shooting, a violation of
Trial of the matter began on September 16, 2003. The next day, the jury returned a verdict of guilty of assault by drive-by shooting. Later, the defendant filed a motion to quash the firearm sentencing provisions. The trial court denied the motion and sentenced defendant to five years at hard labor without benefit of probation, parole, or suspension of sentence, which is the maximum sentence for drive-by shooting. The trial court denied an oral motion to reconsider the sentence but granted defendant‘s motion for appeal.
On appeal, defendant argued the trial court erred in holding the firearm sentencing provisions could be used to enhance his conviction for assault by drive-by shooting. By definition, drive-by shooting means the discharge of a firearm from a motor vehicle, discharge being an essential element of assault by drive-by shooting.
The court of appeal, relying on State v. Street, 480 So.2d 309 (La.1985), found the firearm sentencing provisions set out in
The issue to be addressed by this court is whether the legislature intended the present firearm sentencing provisions to apply to the offense of drive-by shooting. The State argues that the court of appeal erred in finding the firearm sentencing provisions of
Resolution of this case involves a careful analysis of the provisions of
The court of appeal found State v. Street applicable to this matter. The court of appeal reasoned that since the offense charged, assault by drive-by shooting, is defined as an “assault committed with a firearm,” possession of a firearm is an element of the offense. The statute further defines assault by drive-by shooting as the discharge of a firearm from a motor vehicle under specific conditions.
In Street the defendant had been charged with violation of
B. Whoever commits the crime of illegal use of weapons or dangerous instrumentalities shall be fined not more than one thousand dollars, or imprisoned with or without hard labor for not more than two years, or both.
The statute further provided enhanced penalties for second convictions and third or subsequent convictions, as well as a cleansing period between convictions.
When the trial court in Street applied
When the court makes a finding that a firearm was used in the commission of a felony and when suspension of sentence is not otherwise prohibited, the court shall impose a sentence which is not less than:
(1) The maximum sentence provided by law, in the same manner as provided in the offense, if the maximum sentence is less than five years, or
(2) Five years, in the same manner as provided in the offense, if the maximum sentence is five years or more.
Imposition or execution of sentence shall not be suspended and the offender shall not be eligible for probation or parole. [Emphasis provided.]
In response to the defendant‘s writ application in Street, this court reasoned the legislative intent was unclear as to whether
At the time Street was decided, application of the statute was a function of the trial court. Subsequent to this court‘s decision in Street and prior to defendant‘s commission of the instant offense, the legislature in 1988 amended
During the 1994 legislative session, assault by drive-by shooting was added to the list of crimes of violence.8 Then, during
The State argued in the lower courts and continues to argue in this court that when the legislature amended the firearm sentencing provisions in 1999 it clearly intended that the provisions apply to felonies defined as crimes of violence by
The legislature gave the trial judge discretion to sentence an offender from one to five years imprisonment at hard labor when it added the offense of assault by drive-by shooting to the Criminal Code in 1993, thereby punishing the actual possession and discharge of a firearm in the commission of the offense. Six years later, the legislature added
As originally enacted,
The legislature is presumed to have enacted each statute with deliberation and with full knowledge of all existing laws on the same subject. ABL Management, Inc. v. Board of Supervisors of Southern University, 00-0798, p. 6 (La.11/28/00), 773 So.2d 131, 135; Theriot v. Midland Risk Ins. Co., 95-2895 (La.5/20/97), 694 So.2d 184, 186.
Significantly, we note that
When the legislature expanded the scope of the firearm sentencing provisions in 1999 to govern instances of actual possession, use, and discharge of a firearm in the commission of a felony, it evidenced a rationale for treating various crimes of violence with a firearm differently. For example, an offender could be punished if he “actually possessed” a firearm during the commission of a crime of violence even if he did not use or discharge the firearm during commission of the offense.
Upon consideration of the 1999 additions and amendments to
Likewise, as a general rule, a district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute.
The district attorney has broad discretion in both the institution and handling of criminal prosecutions.
A district attorney has great discretionary power to file a habitual offender bill under
We hold that the State may invoke the firearm sentencing provisions set out in
CONCLUSION
For the foregoing reasons, the decision of the court of appeal is reversed and the sentence imposed by the district court is reinstated.
REVERSED; SENTENCE REINSTATED.
JOHNSON, J., dissents and assigns reasons.
JOHNSON, Justice1, dissents and assigns reasons.
I would affirm the defendant‘s conviction but reverse the sentence and remand the matter to the district court for re-sentencing.
In the instant case, the district court sentenced the defendant, Mikel Brisco under
The United States Supreme Court has made it clear that in cases in which the legislature has authorized cumulative punishment under separate statutory sections for a single course of conduct, the Double Jeopardy Clause does not forbid imposition of such cumulative punishment following a single proceeding, but would only forbid successive prosecutions in successive proceedings. Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983).
In State v. Street, 480 So.2d 309, (La. 1985), this Court compared the enhancement provision for the version of
The Louisiana Legislature could have clearly expressed its intent, if that were the case, to make art. 893.1 (use of a firearm in a commission of a felony), applicable to LSA-R.S.14:94, illegal use of a weapon. The counterpart Idaho statute did so, for the Idaho legislature clearly expressed that ‘this section shall apply even in those cases where the use of a firearm is an element of the offense.’ The Louisiana Legislature did not do so.
At best the legislative intent is unclear. On the one hand we could presume that the legislature meant to specify in one statute punishment for the commission of all felonies where a firearm is used. On the other hand it is just as reasonable to presume that the legislature did not specifically consider whether art. 893.1 should be used with LSA-R.S. 14:94, or that having considered, they opted not make it applicable to LSA-R.S. 14:94 Id., 480 So.2d at 311 (footnote omitted).
The court continued that “since the Legislature in passing LSA-R.S.14:94 has in that very statute prescribed a punishment for a weapon, we presume that it must not have intended that the identical conduct. . . . should trigger a more harsh punishment than that prescribed for the same act.” Id. at 312.
This Court held in Street, supra, that the State may not cumulate in a single proceeding penalties for unlawful discharge of a firearm and use of a firearm in the commission of a felony because the legislature did not clearly express intent to allow cumulation. We considered cumulative penalties again in State v. Smith, 95-0061, p. 8 (La.7/2/96), 676 So.2d 1068, 1072, where we found the legislature authorized cumulative penalties for second degree feticide and manslaughter of the mother and concluded that double jeopardy did not bar the enhanced penalties. In Smith, supra., the statutory sections involved did not contain a straightforward answer to the question of whether the legislature intended to allow cumulative punishments, or, more precisely, to limit the discretion otherwise conferred on the court by the sentencing provisions of the underlying statute.
In the instant case, the State argued that when the legislature amended the codal articles in 1999, it clearly intended that they apply to felonies defined as crimes of violence by
The court of appeal readily acknowledged that
In my view, the court of appeal reached the correct result in this case.
Notes
When Street was decided, art. 893.1 provided as follows:
When the court makes a finding that a firearm was used in the commission of a felony and when suspension of sentence is not otherwise prohibited, the court shall impose a sentence which is not less than:
(1) The maximum sentence provided by law, in the same manner as provided in the offense, if the maximum sentence is less than five years, or;
(2) Five years, in the same manner as provided in the offense, if the maximum sentence is five years or more.
Imposition or execution of sentence shall not be suspended and the offender shall not be eligible for probation or parole.
LSA-C.Cr.P. art. 893.2 and 893.3 did not exist when the Court decided Street, supra., but were added in 1988, at which time, art. 893.1 was amended. All three articles were subsequently amended in 1999, with art. 893.3 assuming its present form of graduated penalties according to whether the defendant possessed, used, or discharged a firearm during the commission of a felony or enumerated misdemeanor offense.
LSA-R.S. 14:37.1 provides:
A. Assault by drive-by shooting is an assault committed with a firearm when an offender uses a motor vehicle to facilitate the assault.
B. Whoever commits an assault by drive-by shooting shall be imprisoned for not less than one year nor more than five years, with or without hard labor, and without benefit of suspension of sentence.
C. As used in this Section and in R.S. 14:30(A)(1) and 30.1(A)(2), the term “drive-by shooting” means the discharge of a firearm from a motor vehicle on a public street or highway with the intent either to kill, cause harm to, or frighten another person.
LSA-C.Cr.P. art. 893.1 provides:
A. If the district attorney intends to move for imposition of sentence under the provisions of Article 893.3, he shall file a motion within a reasonable period of time prior to commencement of trial of the felony or specifically enumerated misdemeanor in which the firearm was used.
B. The motion shall contain a plain, concise, and definite written statement of the essential facts constituting the basis for the motion and shall specify the provisions of this Chapter under which the district attorney intends to proceed.
LSA-C.Cr.P. art. 893.2 provides:
A. If a motion was filed by the state in compliance with Article 893.1, the court may conduct a contradictory hearing following conviction to determine whether a firearm was discharged, or used during the commission of the felony or specifically enumerated misdemeanor, or actually possessed during the commission of a felony which is a crime of violence as defined by R.S. 14:2(13), felony theft, production, manufacturing, distribution, dispensing, or possession with intent to produce, manufacture, distribute, or dispense a controlled dangerous substance in violation of the Uniform Controlled Dangerous Substances Law, or specifically enumerated misdemeanor and whether the mandatory minimum sentencing provisions of Article 893.3 have been shown to be applicable.
B. The court may consider any evidence introduced at the trial on the merits, at defendant‘s guilty plea, or at the hearing of any motion filed in the case. The court may also consider any other relevant evidence presented by either party at the contradictory hearing. The hearsay rule shall not be applicable at such contradictory hearings.
C. The burden shall be upon the state to establish by clear and convincing evidence that the defendant actually discharged, used, or actually possessed a firearm during the commission of the felony or specifically enumerated misdemeanor for which the defendant was convicted and that any conditions otherwise required by the mandatory minimum sentencing provisions of Article 893.3 are shown to be applicable.
D. If at any time during or at the completion of the trial, the court finds by clear and convincing evidence that the state has established that a firearm was discharged or used during the commission of the felony or specifically enumerated misdemeanor or actually possessed during the commission of a felony which is a crime of violence as defined by R.S. 14:2(13), a felony theft, production, manufacturing, distribution, dispensing, or possession with intent to produce, manufacture, distribute, or dispense a controlled dangerous substance in violation of the Uniform Controlled Dangerous Substances Law, or specifically enumerated misdemeanor, and that the mandatory minimum sentencing provisions of Article 893.3 have been shown to be applicable, the court may dispense with the hearing provided for in Paragraph A of this Article.
E. The motion shall be heard and disposed of prior to the imposition of sentence. LSA-C.Cr.P. art. 893.3 provides:
A. If the court finds by clear and convincing evidence that the offender actually possessed a firearm during the commission of the felony or specifically enumerated misdemeanor for which he was convicted, the court shall impose a term of imprisonment of two years; however, if the maximum sentence for the underlying offense is less than two years, the court shall impose the maximum sentence.
B. If the court finds by clear and convincing evidence that the offender actually used a firearm in the commission of the felony or specifically enumerated misdemeanor for which he was convicted, the court shall impose a term of imprisonment of five years; however, if the maximum sentence for the underlying offense is less than five years, the court shall impose the maximum sentence.
C. If the court finds by clear and convincing evidence that the offender actually discharged a firearm in the commission of the felony or specifically enumerated misdemeanor for which he was convicted, the court shall impose a term of imprisonment of ten years; however, if the maximum sentence for the underlying offense is less than ten years, the court shall impose the maximum sentence.
D. If the court finds by clear and convincing evidence that a firearm was actually used or discharged by the defendant during the commission of the felony for which he was convicted, and thereby caused bodily injury, the court shall impose a term of imprisonment of fifteen years; however, if the maximum sentence for the underlying felony is less than fifteen years, the court shall impose the maximum sentence.
E. (1)(a) Notwithstanding any other provision of law to the contrary, if the defendant commits a felony with a firearm as provided for in this Article, and the crime is considered a violent felony as defined in this Paragraph, the court shall impose a minimum term of imprisonment of ten years. In addition, if the firearm is discharged during the commission of such a violent felony, the court shall impose a minimum term of imprisonment of twenty years.
(b) A “violent felony” for the purposes of this Paragraph is: second degree sexual battery, aggravated burglary, carjacking, armed robbery, second degree kidnapping, manslaughter, or forcible rape.
(2) A sentence imposed under this Paragraph shall be without benefit of parole, probation or suspension of sentence.
F. A sentence imposed under the provisions of this Article shall not be suspended and shall be imposed in the same manner as provided in the felony for which the defendant was convicted.
G. A defendant sentenced under the provisions of this Article shall not be eligible for parole during the period of the mandatory minimum sentence.
H. If the court finds that a sentence imposed under provisions of this Article would be excessive, the court shall state for the record the reasons for such finding and shall impose the most severe sentence which is not excessive.
I. For the purpose of this Article, “firearm” is defined as an instrument used in the propulsion of shot, shell, or bullets by the action of gunpowder exploded within.
J. For purposes of this Article, the specifically enumerated misdemeanors to which these sentencing provisions are applicable shall be:
(1) R.S. 14:79, violation of a protective order, involving an assault or battery of the person protected.
(2) R.S. 14:67, theft.
(3) R.S. 14:35, simple battery.
(4) R.S. 14:37, aggravated assault.
(5) R.S. 14:40.2, stalking.
LSA-R.S. 14:94 provides, in part:
Illegal use of weapons or dangerous instrumentalities is the intentional or criminally negligent discharging of any firearm, or the throwing, placing, or other use of any article, liquid, or substance, where it is foreseeable that it may result in death or great bodily harm to a human being.
LSA-R.S. 14:2 “Definitions” provides, in part:
(13) “Crime of violence” means an offense that has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and that, by its very nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense or an offense that involves the possession or use of a dangerous weapon. The following enumerated offenses and attempts to commit any of them are included as “crimes of violence“:
. . . .
(bb) Assault by drive-by shooting
. . . .
(ee) Illegal use of weapons or dangerous instrumentalities [Emphasis added.]
We note LSA-C.Cr.P. art. 893.3(H) provides:
If the court finds that a sentence imposed under provisions of this Article would be excessive, the court shall state for the record the reasons for such finding and shall impose the most severe sentence which is not excessive.
This provision is an obvious reference to LSA-Const. art. I, § 20 which prohibits “cruel, excessive or unusual punishment.”