State v. BrooksState v. Brooks
This appeal arises from a jury verdict convicting defendant, Raymond Brooks, of possession of a firearm by a convicted felon. (
The facts show that on the afternoon of August 6, 1985, Jеfferson Parish deputies, Terry Gauthier, Jeffrey Eddy and Chris Pumila, responded to a complaint regarding a domestic disturbance involving a weapon at a residence in Jefferson Parish. After securing the area, Deputy Gauthier and Deputy Eddy entered the rear of the “shotgun” type house. Deputy Gauthier еntered first, and Deputy Eddy remained behind Deputy Gauthier as “back-up“. Because of the configuration of the house, Deputy Gauthier had an unobstructed view from the rear to the front room, but Deputy Eddy‘s view was obstructed by Deputy Gauthier. As Deputy Gauthier approached the front of the house, he оbserved Brooks standing in the front room holding a double barrelled shotgun. After moving closer, Deputy Gauthier told Brooks two or three times to put the gun down. Broоks, who was apparently intoxicated, finally complied with the order, placing the shotgun on the floor. Deputy Gauthier then handcuffed Brooks, placed him under arrest, and advised him of his rights.
In reviewing the sufficiency of the evidence to support a conviction, the appellate court in Lоuisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). That standard mandates the appellate court to ascertain that the evidence, viewed in the light most favorable to the prosecution, is sufficient to convince a rational trier of fact that all the elements of the crime were proven beyond a reasonable doubt. The elements of possession of a firearm by a convicted fеlon are:
1) status of the defendant as a convicted felon,
2) an instrumentality defined as a firearm, and
3) physical and/or constructive possession of the firearm by the defendant.
State v. Mose, 412 So.2d 584 (La.1982), State v. Williams, 470 So.2d 356 (La.App. 5th Cir.1985), State v. Gatlin, 445 So.2d 47 (La.App. 4th Cir.1984), State v. Bell, 439 So.2d 1163 (La.App. 4th Cir.1983). But see State v. Husband, 437 So.2d 269 (La.1983).1
In the instant case, it was stipulated at trial that Brooks pleaded guilty to armed robbery on March 15, 1977, and that he received a sentence of ten years imprisonment at hard labor. Further, Deputy Gauthier described the weapon held by Mr. Brooks as a double-barrelled shotgun. The weapon was introduced and identified at the trial. Accordingly, the first two elemеnts require no further proof.
In regard to the third element of possession, the only witness who observed the defendant in physical possession of the firеarm was Deputy Gauthier. That evidence alone would be sufficient to prove the element of possession. However, Deputy
Finally, Brooks requests the cоurt to review the record for error patent.
For the purpose of an error patent review, the “record” in a criminal case includes the caption, the time and place of holding court, the indictment or information and its endorsement, the arraignment, the plea of the accused, the bill of pаrticulars filed in connection with a short form indictment or information, the mentioning of the impaneling of the jury, the minute entry reflecting sequestration in a cаpital case, the verdict and the judgment or sentence. State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Lewis, 473 So.2d 357 (La.App. 5th Cir.1985).
A review of the record reflects that the sentence imposed by the trial judge is illegally lenient in two respects. The penal provision for
Whoever is found guilty of violating the provision of this Section shall be imprisoned at hard labor fоr not less than three nor more than ten years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars. [emphasis added]
The trial judge sentenced Brooks to serve five years at hard labor without mention of the fact that the defendant was ineligible for parole, and he further failed to impose a mandatory fine. Thus, the sentence is illegally lenient.
In State v. Jackson, 452 So.2d 682, 683-684 (La.1984) the Louisiana Supreme Court held:
When a dеfendant alone appeals and the record contains a patent error unfavorable to the defendant, an appellate court should rеcognize and correct the error. However, when a defendant alone appeals and the record contains a patent еrror favorable to the defendant, the appellate court should ignore the error, unless the prosecution, having properly raised the issue in the trial сourt, has sought appellate review.
In response to the Jackson decision, the Legislature amended
A. An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. [emphasis added]
B. A sеntence may be reviewed as to its legality on the application of the defendant or of the state:
(1) In an appealable case by appeal; or
(2) In an unappealable cаse by writs of certiorari and prohibition.
C. Nothing in this Article shall be construed to deprive any defendant of his right, in a proper case, to the writ of habeas corpus.
Following State v. Jackson, supra, this court has declined to correct illegal sentences
In this cаse the State failed to raise the issue of the illegally lenient sentence, by motion or argument to this court. Thus, the error in Brooks‘s favor will not be corrected; and since our review fails to disclose patent error detrimental to Brooks, the sentence must be affirmed.
Accordingly, the defendаnt‘s conviction and sentence are hereby affirmed.
AFFIRMED.
Notes
In State v. Husband, supra, at 271, Justice Watson writing for the court set forth the elements of the offense as:
(1) possession of a firearm;
(2) conviction of an enumerated felony;
(3) absence оf the ten year statutory period of limitation; and
(4) general intent to commit the offense