State v. MorvanState v. Morvan
After a jury found James Ray Morvan guilty as charged with the offense of possession of a firearm by a convicted felon,
FACTS
On the evening of May 18, 1997, defendant stopped at the S & A Truck Stop in Keithville, Louisiana, in response to a phone call from his wife regarding trouble with her car. Being unable to start the vehicle, defendant removed a chrome .38 revolver, supposedly his spouse‘s gun, from the glove box. With the weapon in his pocket, he entered the store to purchase a beer. When he exited, Morvan first observed, and then began questioning, an individual who apparently had been looking inside the back of his, Morvan‘s, pick-up truck. One of the store customers, Robert Johnson, intervened to request that defendant leave the other man alone.
Thereafter, as Johnson and Morvan argued, they walked inside the truck stop. Unbeknownst to Johnson as he left the establishment, Morvan trailed him while holding a gun at his head. When dеfendant said, “I could have killed you then,” Johnson turned around to see the weapon pointed in his face. The pair then continued their heated exchange of words. Another patron, Paul Barnett, approached the two men after they calmed down. When Barnett asked for the pistol, Morvan initially complied but soon took the weapon back before leaving the premises in his pick-up truck.
After receiving a call about a possible armеd robbery at the S & A Truck stop and a description of Morvan‘s vehicle, Caddo Parish sheriff‘s deputies stopped defendant. When they noticed a gun on the front seat, the officers arrested Morvan on charges of illegal possеssion of a firearm by a convicted felon, aggravated assault, and third offense DWI. Trial of the firearms charge occurred almost a year later.
SUFFICIENCY OF THE EVIDENCE
Morvan first contends that the evidence does not exclude every reasonable hypothesis of innocence, and, thus, is insufficient to sustain his conviction. With the claim having been raised merely by assignment of error rather than by motion for post-verdict judgment of acquittal, however, this issue is not properly presented. See
Even so, opting to address the assignment in this instance, our review discloses adequate support for the conviction. The criteria for evaluating sufficiency of the evidence is whether, upon viewing the evidence in a light mоst favorable to the prosecution, any rational trier of fact could find that the state proved all elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Washington, 597 So.2d 1084 (La.App. 2d Cir.1992). That standard, initially enunciated in Jackson and now legislatively embodied within
To prove the illegal possession of a firearm by a convicted felon, the state must establish beyond a reasonable doubt that the
Contesting only the criminal intent element, defendant contends “[he] did not know ... [he was] committing a crime,” because “... [he] thought it was seven years that you couldn‘t be around a firearm.” At trial, he admitted both possession of the gun and an awareness that such conduct had been outlawed for convicted felons, but claimed to have misunderstood the ten-year statutory cleansing period involved. Obviously, this position lacks merit. Ignorance of the law is not a defense to any criminal prosecution.
PREJUDICIAL EVIDENCE
Relying upon Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), defendant argues that the trial court erroneously allowed the рrosecution to introduce evidence regarding his prior conviction of attempted purse snatching after he had sought to stipulate his status as a convicted felon.
By Motion in Limine, Morvan requested that the court allow him to еnter such a stipulation and that the jury not be told of the predicate offense in that its probative value would be substantially outweighed by the danger of unfair prejudice. See
The trial court did not abuse its discretion. Evidence of a defendant‘s previous conviction is admissible as proof of an essential element of the crime of illegal possession of a firearm. State v. Sanders, 357 So.2d 492 (La.1978).
Moreover, the Old Chief decision noted that the risk of unfair prejudice “will vary from cаse to case.” 519 U.S. 172, 117 S.Ct. at 652. With the defendant in that instance on trial for being a felon in possession of a firearm, assault with a dangerous weapon, and using a firearm in a crime of violence, the Supreme Court found a heightened risk of improper considerations tainting the verdict. In explaining that determination, the court noted:
Where a prior conviction was for a gun crime or one similar to other charges in a pending case the risk of unfair prejudice would be especially obvious, and Old Chief sensibly worried that the prejudicial effect of his prior assault conviction, significant enough with respect to the current gun charges alone, would take on added weight from the related assault charge against him. [Emphasis added.]
The court further observed that all prior felony convictions should not be viewed in the same light, stating:
It is true that a prior felony offense may be so far removed in time or nature from the current gun charge and any others brought with it that its potential to prejudice the defendant unfairly will be minimal. Some prior offenses, in fact, may even have potential to prejudice the Government‘s case unfairly. Thus, an extremely old conviction for a relatively minor felony that nevertheless qualifies under the statute might strike many jurors as a foolish basis for convicting an otherwise upstanding
member of the community of otherwise legal gun possession.
Old Chief, 117 S.Ct. at 652, n. 8.
Applying that rationale to the present case, we find the crime of attempted purse snatching, while classified as a “crime of violence” under
MISTRIAL
Defendant also argues that the trial court erred in denying his motion for mistrial when a deputy referred to a DWI charge stemming from the same incident. In her rebuttal testimony, Deputy Brice stated that she answered a call on an armed robbery, but learned upon arrival at the scene that the problem involved a disturbance with a weapon and a DWI charge. Defense counsel thеn asked for a mistrial, under
We agree. Mistrial is a drastic remedy which is warranted only when substantial prejudice would otherwise result to the accused. State v. Harris, 28,517 (La.App.2d Cir.08/21/96), 679 So.2d 549, writ denied, 96-2954 (La.09/26/97), 701 So.2d 975. In the present case, when asked for a general description of the reasons she was called out, Deputy Brice unresponsively set forth greater detail about the situation. Basically she explained that “there was also a DWI charge,” but indicated nothing other than that fact.
This unsolicited and unresponsive testimony is not chargeable against the state as grounds for reversing the conviction. See State v. Harris, supra. Because such an officer is not a court official under the provisions of
Moreover, defendant did not оbject to other testimony referring both to his intoxicated state at the time of the incident and his submission to chemical testing after arrest. Considering this cumulative evidence and the nature of the officer‘s statement, the remark in question did nоt substantially prejudice Morvan or deny him a fair trial.
EXCESSIVE SENTENCE
In a timely motion to reconsider and now by assignment of error on appeal, defendant contends that his maximum fifteen-year term of hard labor imprisonment is excessive. After reviewing the trial court‘s articulation of reasons in accordance with the jurisprudential analysis, see State v. Jackson, 29,470 (La.App.2d Cir.08/20/97), 707 So.2d 990, we cannot agree.
Despite Morvan‘s claim that the record contains an insufficient factual basis for the sentence, we find adequate compliance with
Neither is the sentence too severe. Maximum terms of imprisonment are appropriate as a general rule only in cases involving the most serious violations and the worst types of offenders. State v. Walker, 573 So.2d 631 (La.App. 2d Cir.1991); State v. Madison, 535 So.2d 1024 (La.App. 2d Cir. 1988). Defendant‘s multiple felony status, including two violent-crime convictions and at least three DWI dispositions, show a continued propensity for illegal activity and a failure to benefit from prior leniency. Along
ERROR PATENT
We note, through error patent review, that the trial judge failed to advise defendant adequately that the three-year prescriptive period concerning post-conviction relief does not begin to run until the judgment is final. See
Accordingly, defendant‘s conviction and sentence are affirmed.
AFFIRMED.