State v. HillState v. Hill
The defendant, Gregory Hill was charged by bill of information with possession of a firearm by a convicted felon, in violation of
FACTS
On the night of October 30, 1988, at approximately 10:45 p.m., the St. Charles Parish Sheriffs Office received a report that a black male dressed in a dark colored shirt was armed with a shotgun in the parking lot of the Ponderosa Bar and Restaurant in Boutte. Three police officers, were dispatched to investigate the situation. As the three officers proceeded to the scene, they received a second transmission from the sheriffs office dispatcher that shots had been heard in the parking lot. The officers were further advised that the subject was near a pink Thunderbird in the bar‘s parking lot.
They observed a black male wearing a dark shirt standing on the driver‘s side of the Thunderbird, holding a shotgun. The suspect, later identified as Gregory R. Hill, then placed the shotgun under the car by the driver‘s side and got into the driver‘s seat of the vehicle. The officers reached the vicinity of the Thunderbird and ordered Hill to get out, with his hands in sight. One of the officers frisked Hill for weapons and then handcuffed him. A 12gauge, double barrel shotgun and a cartridge belt containing live 12-gauge shells were found just under the driver‘s side of the vehicle. The defendant‘s girlfriend, Ms. Gloria Ingram, was sitting on the passenger side of the automobile, and three of her young children were in the vehicle‘s back seat. The officers opened the breech of the shotgun and removed two expended shells which, based on the smell of the shells and the barrel of the weapon, appeared to have been recently fired. After Hill was taken into custody, it was learned that he was out of jail on parole for his 1980 attempted murder conviction.
The defendant testified at trial that he did not have a shotgun in his possession on the night of this incident. Ms. Gloria Ingram took the witness stand and stated that she did not see the defendant with a shotgun that night. The defendant‘s brother, Pelton Hill, testified that he placed the shotgun under the vehicle in the parking lot of the Ponderosa after returning from a hunting excursion that night. However, Hill further testified that he placed nothing else under the vehicle that night, thereby failing to account for the presence of the cartridge belt under the automobile.
The defendant contends that his conviction must be set aside for lack of sufficient evidence to prove one of the essential elements of the crime, namely, that the shotgun discovered at the time of Hill‘s arrest was a “firearm” as that term is used in
The due process standards announced in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1970) apply in evaluating the sufficiency of evidence to support a conviction in a criminal proceeding. Under Jackson, the reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560.
In pertinent part,
1) status of the defendant as a convicted felon;
2) physical and/or constructive possession by the defendant; and,
3) the instrumentality possessed was a firearm.
State v. Mose, 412 So.2d 584 (La.1982); State v. Williams, 470 So.2d 356 (La.App. 5th Cir.1985).
The thrust of Hill‘s argument is that the state failed to prove the “firearm” element of the crime because the shotgun at issue was “manufactured in the 1800‘s” and no evidence was presented that the shotgun was operable. This argument was soundly rejected by the appellate court in State v. Rogers, 494 So.2d 1251, 1254-1255 (La.App. 2nd Cir.1986):
LRS 14:95.1 does not define the term “firearm” or distinguish an “antique” firearm. The statute does not require that the firearm be loaded at the time of possession. State v. Silva, 447 So.2d 1242 (La.App. 4th Cir.1984), writ denied. We cannot conclude that the statute requires that the firearm be operable at the time it is possessed.* * * * * *
We hold that
LRS 14:95.1 does not exclude antique firearms and does not require that the firearm possessed by the defendant be operable.
The defendant in Rogers, supra, was convicted under
This assignment of error has no merit.
In reviewing the record for error patent, the following error was noted.
Under
As the Louisiana Supreme Court stated in State v. Willis, supra:
The purposes of sequestration are to insulate the jurors from outside influence, or the possibility thereof, and to insure that their verdict will be based upon the evidence developed at trial. State v. Parker, supra: State v. Marchand, 362 So.2d 1090 (La.1978). So strictly is the prophylactic rule enforced that upon separation of the jury a presumption of prejudice arises which may only be rebutted if it affirmatively appears that no prejudice to the accused could have resulted.
Supra at 1328.
Since this issue was not raised at the trial the record fails to disclose that no prejudice to the defendant could have resulted
Accordingly, the defendant‘s conviction is reversed and the case is remanded to the district court for a new trial.
REVERSED AND REMANDED.