State v. SandiferState v. Sandifer
We granted the State of Louisiana‘s writ of certiorari to determine whether
FACTS AND PROCEDURAL HISTORY
On September 25, 1994, law enforcement officers responded to a complaint regarding a “suspicious person” sitting in a white Lincoln Mark VII with dark tinted windows in the 3100 block of Gentilly Boulevard for over an hour. The officers approached the car and saw the defendant sitting alone in the driver‘s seat, sleeping. The officers noticed a 9 mm semi-automatic pistol on the passenger seat and a .380 caliber automatic pistol on the floor. They also observed three marijuana cigarettes and a small glass bottle containing a white powdery residue later determined to be cocaine on the car‘s dashboard.1 The officers seized the weapons and contraband, advised the defendant of his rights, and placed the defendant under arrest.
As a result of the events of September 25, 1994, the defendant was charged with three offenses by three separate bills of information. He was charged with: (1) possession of marijuana, in violation of
The statute at issue,
E. If the offender uses, possesses, or has under his immediate control any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, while committing or attempting to commit a crime of violence or while in the possession of or during the sale or distribution of a controlled dangerous substance, the offender shall be fined not more than ten thousand dollars and imprisoned at hard labor for not less than five nor more than ten years. Upon a second or subsequent conviction, the offender shall be imprisoned at hard labor for not less than twenty years nor more than thirty years.
The trial court, after conducting a hearing on the motion to quash, granted the defendant‘s motion, quashing the bill of information “on both basis [sic]” and declaring
LAW AND ANALYSIS
Double Jeopardy
In its brief, the State first assigns error to the trial court‘s decision to quash the bill of information under the Double Jeopardy Clause. The State observes that the bill of information filed under
The Double Jeopardy Clause protects defendants from being punished or prosecuted twice for the same offense.
In addition, Louisiana courts utilize the “same evidence” test, which focuses upon the actual physical and testimony evidence necessary to secure a conviction. State v. Steele, 387 So.2d 1175, 1177 (La.1980). This test depends upon the proof required to convict, not the evidence actually introduced at trial. Thus, under the “same evidence” test, the court‘s concern is with the “evidential focus” of the facts adduced at trial in light of the verdict rendered, i.e., how the evidence presented goes to satisfy the prosecution‘s burden of proof. State v. Coody, 448 So.2d 100, 102-103 (La.1984). Therefore, if the evidence required to support a finding of guilt of one crime would also support a conviction for another offense, the defendant can be placed in jeopardy for only one of the two. Coody, 448 So.2d at 102-103; Knowles, 392 So.2d at 654.
Consequently, the Double Jeopardy Clause, under both the “additional fact” and the “same evidence” tests, prevents an offender from being convicted of both a felony murder and the underlying felony. State ex rel. Adams v. Butler, 558 So.2d 552, 553 (La.1990). The rationale which supports that rule is the same as that which prevents an offender from being convicted of both the underlying offense for a 14:95(E) violation and the 14:95(E) violation itself. See State v. Woods, 94-2650 (La.App. 4 Cir. 4/20/95), 654 So.2d 809, writ denied, 95-1252 (La. 6/30/95), 657 So.2d 1035; State v. Warner, 94-2649 (La.App. 4 Cir. 3/16/95), 653 So.2d 57, writ denied, 95-0943 (La. 5/19/95), 654 So.2d 1089.
In State v. Warner, the Fourth Circuit Court of Appeal ruled that double jeopardy barred the prosecution for cocaine possession of a defendant who had previously been convicted under
In State v. Woods, the same appellate court ruled that double jeopardy barred the prosecution of a defendant under
However, Warner and Woods are factually distinguishable from the instant case. The defendants in Warner and Woods were each charged with violating
In the instant case, the defendant‘s alleged violation of
In its present form, the bill of information which charges the defendant with possession of “marijuana and cocaine” does create the appearance of a double jeopardy violation. However, there is nothing in the record before us to justify depriving the State of the opportunity to remedy this technical problem. The trial court was unduly technical in quashing the bill on this ground and abused its discretion by refusing the prosecution an opportunity to amend the bill of information to delete the words “marijuana and” from the bill of information and to proceed thereafter on the charge of possession of a firearm while in possession of cocaine.
Vagueness
The State also assigns error to the trial court‘s determination that
It was alleged in the bill of information that the defendant violated the statute‘s language pertaining to “the offender [who] ... possesses ... any firearm ... while in the possession of ... a controlled dangerous substance.”6 Although
While the statute at issue may raise other constitutional concerns, a plain reading of the statute would not lead a person of ordinary intelligence to reasonable confusion about whether or not the defendant‘s alleged conduct was proscribed, i.e., sitting in his car, with two firearms under his immediate control and a controlled dangerous substance located next to him. Because the statute‘s prohibitions are easily understandable and because the defendant‘s conduct, if proven, is within the prohibition set forth in the statute, he failed to establish the statute‘s unconstitutional vagueness. See State v. Brown, 94-1290, pp. 5-6 (La. 1/17/95), 648 So.2d 872, 875-76.
Questions of vagueness are generally available only to those whom they concern. City of Baton Rouge v. Norman, 290 So.2d 865, 868 (La.1974). For this reason, a defendant may not establish that a statute is unconstitutionally vague by speculating about hypothetical conduct which could also be prosecuted under the same statute. Norman, 290 So.2d at 869. Because the defendant did not establish that the statute was vague as it pertained to his conduct, the trial court erred in finding that the statute was unconstitutionally vague.
Overbreadth
Defense counsel argued to the trial court that the statute is unconstitutional because a person in possession of “a single Marijuana cigarette” could be convicted under this felony statute if he also had “a hunting rifle locked in a gun closet” or a “handgun in a case in the attic.” He observed that the right of a “casual smoker of... Marijuana” to own a firearm would be unreasonably abridged because exercise of the right to bear arms would expose this individual to a felony conviction and a mandatory sentence of five to ten years at hard labor.7 He argued that this type of prosecution, i.e., felony prosecution of a misdemeanor drug offender with constructive possession of a firearm, is possible under the statute, which defendant asserts is contrary to the legislature‘s intent and beyond the constitutionally supportable scope of the statute.8
Although defendant‘s argument below spoke primarily in terms of vagueness, it is clear that defendant challenges
“Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.” Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830, 839 (1973).
A limited exception to this principle of constitutional adjudication has been carved out in the area of First Amendment concerns. Broadrick, 413 U.S. at 611, 93 S.Ct. at 2915. Even though a statute may be constitutionally applied to the activities of a particular defendant, that defendant may challenge it on the basis of overbreadth if it is so drawn as to sweep within its ambit protected speech or expression of other persons not before the court. State v. Franzone, 384 So.2d 409, 412 (La.1980). “Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute‘s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadrick, 413 U.S. at 612, 93 S.Ct. at 2916. The doctrine of overbreadth is a creature unique to the First Amendment, in particular free speech. State v. Schirmer, 93-2631, pp. 17-18 (La. 11/30/94), 646 So.2d 890, 900-901. Thus, overbreadth invalidation of statutes is generally inappropriate when the allegedly impermissible applications of the challenged statute affect conduct rather than speech, State v. Neal, 500 So.2d 374, 377 (La.1987), and especially where the conduct at issue is harmful and controlled by criminal laws. State v. Brown, 94-1290, pp. 10-11 (La. 1/17/95), 648 So.2d 872, 878.
Defendant herein has not challenged
Equal Protection
In his argument to the trial court, defendant also noted that an individual who is guilty of a misdemeanor drug offense (e.g., marijuana possession) could be convicted of a felony under
The State of Louisiana is entitled to regulate citizens’ right to bear arms for legitimate state purposes, such as public health and safety. State v. Hamlin, 497 So.2d 1369, 1371 (La.1986); State v. Amos, 343 So.2d 166, 168 (La.1977). However, the constitutions of the
However, for the same reasons that defendant‘s overbreadth argument can not support the trial court‘s ruling that
DECREE
For the reasons assigned, the judgment of the trial court, quashing the bill of information and declaring
REVERSED AND REMANDED.
JOHNSON, J., dissents and assigns reasons.
JOHNSON, Justice, dissenting.
The words and phrases used in an indictment or bill of particulars are to be construed according to their usual meaning.
Because the usual meaning of joining any two terms or elements with “and” means a combination of both terms, the bill of information as written charges defendant with possession of both marijuana and cocaine— not one or the other. Any contrary reading or interpretation of this bill of information is a violation of
The Louisiana double jeopardy provision states two requirements for the existence of double jeopardy, and provides:
“Double jeopardy exists in a second trial only when the charge in that trial is:
(1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
(2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.”
La.C.Cr.P. art. 596 .
In the present case, prosecution of this defendant under
Prosecution of Mr. Sandifer under
“Two or more offenses may be charged in the same indictment or information in a separate count for each offense (emphasis added) if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or
constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.”
The State failed to provide a separate count for marijuana and cocaine in its
For the foregoing reasons, I respectfully dissent.
Notes
And, Judge, you know, it‘s not even necessary to have an individual violating the law with respect to the possession or ownership of a firearm. You know, you can have a hunting rifle locked in a gun closet. You can have a handgun in a case in the attic of your residence. If you‘re in possession of a single Marijuana cigarette, you‘re subject to prosecution of this felony offense. And, you know, were this statute crafted differently, more narrowly, and talk about the illegal carrying of a weapon you know, in conjunction with possession of a narcotic, I don‘t think you would have this problem. But, it is set in such broad terms, you know, that on any—and, I‘m not speaking to condone drug use in any fashion, but, you know, I think [that the] casual smoker of a Marijuana cigarette who also has happened to exercise his Second Amendment right to own a firearm, you know, can many times be subject to a ten (10) year felony with a five (5) year minimum sentence. And, I don‘t think that—I think that, you know, 1; That is actually contrary to what the Legislature‘s intent actually was and 2; It puts prosecutors in a dangerous position of being able to charge someone under those circumstances. And, are you going to charge, you know, that class of person (or) just the class of person who is out on the street, selling drugs armed with a firearm, prepared to use it depending on the circumstances, and I do think it‘s too broad. (Emphasis added).
E. If the offender uses, possesses, or has under his immediate control any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, while committing or attempting to commit a crime of violence or while in the possession of or during the sale or distribution of a controlled dangerous substance, the offender shall be fined not more than ten thousand dollars and imprisoned at hard labor for not less than five nor more than ten years. Upon a second or subsequent conviction, the offender shall be imprisoned at hard labor for not less than twenty years nor more than thirty years.