hWe grant this application to consider whether the Appellate Division erred in ordering the trial court to consider whether justification was proved as a dеfense to a charge of possession of a concealed weapon. Finding that the defense of justification cannot be established under the circumstances of this case, we reverse and remand to the Appellate Division for consideration of the remainder of the merits of Smith’s appeal.
On June 19, 1995, Dаrren Smith was charged by bill of information with possession of a firearm by a convicted felon in violation of La.R.S. 14:95.1. On the morning of trial, the State amended the bill to charge Smith with possession of a concealed firearm in violation of La.R.S. 14:95. Smith pleaded not guilty to the amended bill. Following trial by judge on November 21, 1995, he was found guilty as chargеd and sentenced to serve six months in parish prison. Smith appealed to the Appellate Division of Orleans Parish Criminal District Court. The Appellate Division remandеd the case to the trial judge to consider whether Smith had proved the defense of justification at trial. The State by writ application asks this Court to reverse the Appellate Division’s decision to remand.
| ¾At trial, Mr. Ian Frazier testified that on March 24, 1995, he was going to pick up his paycheck at Coastal Cargo’s hiring center when he saw Darren Smith inside. When he called for help from an officer of the Harbor Police, Smith exited the office and approached with a handgun that he drеw from under his shirt. Previously, he and Smith had argued and fought and, on May 17, 1995, Smith had stabbed him. Frazier conceded that he ordinarily kept a gun in his car and that on March 24, 1995, he was armed because Smith had threatened him. He denied threatening Smith. Frazier identified Smith in court.
Sergeant Alvin Tureaud of the Port of New Orleans Harbor Police testified that he was working privаte detail at'Coastal Cargo on March 24, 1995, when there was a disturbance outside the hiring center. He saw Smith pointing a handgun at Frazier’s head; Frazier had his hand on a rеvolver inside his pants. He did not see Smith draw the weapon. After disarming Smith and Frazier, he called Officer Bryan Tumlin for assistance. Frazier’s revolver was loaded but there was no round in the chamber. Sergeant Tureaud identified Smith in court.
Officer Byron Tumlin of the Port of New Orleans Harbor Police testified that he investigated an incident in the 4400 block of North Roman Street on March 24, 1995, and prepared a report from witness statements, in which he indicated that Frazier and Smith had pointed weapons at each other. Officer Tumlin identified his report.
Mr. Bobby Bridges testified that he saw Frazier and Smith argue in the morning of March 17, 1995. Frazier was stabbed in the neck later that day. Bridges did not see the stаbbing. Bridges was not present at the March 24,1995 altercation.
Mr. Paul Essex testified that on March 17, 1995, he heard Frazier threatening Smith. Later that day when they went to cash their chеcks, Frazier attacked Smith and Smith defended himself. Essex did not see the knife; he |3assumed that Frazier received a neck wound by falling on a glass bottle. Frazier kept a gun in Ms trunk which he used to shoot rabbits at work. Essex was not present at the March 24,1995 altercation.
Defense counsel indicated that he would profer the testimony of William Turnеr who also observed the March 17, 1995 altercation
Darren Smith admitted that he has prior convictions for simple robbery and possession of marijuana. He said that on March 17, 1995, Frazier continuously threatened to kill him and his family. He had seen Frazier with a weapon. As a result, on March 24, 1995, he was carrying a weapon to protect himself from Frazier. When he picked up his check on that day, he looked out thе window and saw Frazier with a firearm, whom he believed was waiting for him. He panicked and ran out toward Frazier who attempted to draw his weapon. He conceded that at the time he saw Frazier he was already carrying a weapon in his waistband under his shirt. He admitted that he stabbed Frazier after Frazier attacked him on May 17, 1995. Hе claimed that he dropped the knife during the fight and stabbed Frazier when they were both struggling to regain it.
Defense counsel attempted to elicit testimony from Sergeant Tureaud regarding Frazier’s appearance on May 24,1995; from Mr. Bridges regarding a prior incidence in which he saw Frazier discharge a weapon at work; the рroffered testimony of William Turner; and testimony from the defendant regarding threats made against him by Frazier. The trial judge excluded the testimony of Turner as repetitive and curtailed the remainder of this testimony on the basis of relevancy finding that there was no justification defense to this charge of carrying a concealed weаpon in violation of La. R.S. 14:95. Smith appealed this ruling to the Appellate Division contending that he was entitled to assert the justification |4defense at trial and that thе State failed to disprove that he possessed the concealed weapon in self-defense.
On October 9, 1996, the Appellate Division remanded to the trial judge to consider whether the defense of justification was established at trial stating: ‘We are satisfied that State vs. Jackson,
In Jackson, supra at 779, in dicta, this Court wrote:
Assuming that the above provision does justify a convicted felon’s use of a firearm to defend himself or his property against unprovoked force by another, the provision clearly has no application to the ease at bar; for even if a finder of fact were to believe every particle of testimony offered to support the defense of justification, there has been no showing by the defendant that his possession of the firearm was necessary.
This language does not support the Appellate Division’s dеcision to remand this matter to the trial judge. In fact, in Jackson, supra at 779-80, this Court found as a matter of law that the justification defense was not available under the circumstances of that case, in which the defendant failed to establish the immediacy of a threat and the lack of reasonable alternatives to the possession of а handgun.
Although the Appellate Division erred in its interpretation of the Jackson decision, we believe the Division was correct in resorting to the jurisprudence arising under La.R.S. 14:95.1 tо determine whether Smith was justified in violating La.R.S. 14:95. In the context of La.R.S. 14:95.1, the Louisiana Supreme Court in State v. Blache,
jsWe hold that when a felon is in imminent peril of great bodily harm, or reasonаbly believes himself or others to be in such danger, he may taken possession of a weapon for a period no longer than is necessary or apparently necessary to use it in self-defense, or in defense of others. In such situation justification is a defense to the charge of felon in possession of a fireаrm.
See also State v. Clement,
On March 24, 1995, Smith was carrying a concealed weаpon while he picked up his check inside Coastal Cargo’s hiring center when he saw Frazier outside. At the time he armed himself, he was not defending himself or in imminent peril of great bodily harm. Cf. State v. Jones,
For the foregoing reasons, the judgment remanding this matter to the trial judge is reversed and the matter is remanded to the Appellate Division for further consideration of Smith’s appeal.
WRIT GRANTED; REVERSED AND REMANDED.