State of Louisiana Versus Johnny Kelly ( 2020 )

STATE OF LOUISIANA NO. 19-KA-425
VERSUS FIFTH CIRCUIT
JOHNNY KELLY COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 17-4675, DIVISION "F"
HONORABLE MICHAEL P. MENTZ, JUDGE PRESIDING
July 31, 2020
STEPHEN J. WINDHORST
JUDGE
Panel composed of Judges Susan M. Chehardy,
Jude G. Gravois, and Stephen J. Windhorst
CONVICTION AND SENTENCE VACATED; REMANDED
SJW
SMC
JGG
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Anne M. Wallis
Douglas E. Rushton
Andrew Decoste
COUNSEL FOR DEFENDANT/APPELLANT,
JOHNNY KELLY
Sherry A. Watters
WINDHORST, J.
Defendant, Johnny Kelly, appeals his conviction and sentence for possession
of a firearm by a convicted felon in violation of La. R.S. 14:95.1. For the reasons
that follow, we vacate defendant’s conviction and sentence, and remand the matter
to the trial court for further proceedings.
Facts and Procedural History
On August 29, 2017, the Jefferson Parish District Attorney filed a bill of
information charging defendant, Johnny Kelly, with possession of a firearm by a
convicted felon in violation of La. R.S. 14:95.1. Defendant was arraigned and pled
not guilty that same day. The case was subsequently tried before a 12-person
Jefferson Parish jury. On May 15, 2018, the jury found defendant guilty as charged
in an eleven-to-one verdict.
On May 21, 2018, the trial court sentenced defendant to imprisonment at hard
labor for fifteen years without benefit of parole, probation, or suspension of
sentence. The trial court ordered this sentence to run concurrent with the sentence
in case number 17-5537. At sentencing, defense counsel objected to the non-
unanimous verdict and to the sentence. This appeal followed.
The following was presented at trial. In June 2017, Detective Victor Marler
with the Ponchatoula Police Department contacted Agent Mathew Vasquez with the
Attorney General’s Office for assistance in locating defendant, Johnny Kelly. Agent
Vasquez testified that he located home and work addresses for defendant, and also
discovered that he was wanted for traffic attachments.
On June 21, 2017, agents located defendant at his work address in Harahan,
Louisiana, where they saw defendant’s registered vehicle parked outside. Agent
Vasquez testified that when he saw the vehicle, he contacted the Jefferson Parish
Sheriff’s Office, who sent units to assist. Agents observed the vehicle for
approximately forty-five minutes until defendant exited the building and entered his
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vehicle. Once defendant started his vehicle, Agent Vasquez and the additional units
stopped defendant, and when he exited his vehicle, they placed him under arrest.
Agent Vasquez informed defendant of his Miranda rights, that he was under
arrest for outstanding traffic attachments, and that he was a person of interest in an
investigation. When Agent Vasquez asked defendant if there were any weapons in
the truck, defendant responded that there was some marijuana in the center console
but no weapons. Agent Vasquez opened the back driver-side door of the truck,
where he immediately saw a firearm on the floor of the truck sticking out the rear of
the center console. Upon seeing the firearm, Agent Vasquez looked closer in the
vehicle. He saw the marijuana in the center console, and saw clothing in the vehicle.
In executing a search warrant for the vehicle, agents found the firearm,
ammunition, firearm magazine, defendant’s “TWIC” card, an identification card for
Brandon Jones, defendant’s business card, and the vehicle’s registration and title in
defendant’s name. Agents also seized a clear bag containing marijuana. At the
Jefferson Parish Detective Bureau, during Agent Vasquez’s interview of defendant,
defendant told Agent Vasquez that the gun in the truck was legal and that no one
else uses his truck.
Defendant rented the living room of 2625 Dolores Drive, where he lived with
other individuals. In executing the search warrant of the home, Agent Vasquez
testified that Detective Marler found the same ammunition that was in the gun
magazine located in defendant’s truck, a corresponding magazine, and a storage case
for that gun containing extra grips. Detective Marler testified that the items were
found in a closet located in a bedroom that had Brandon Jones’s identification card
on the nightstand. Detective Marler stated that residents present during the search
identified the bedroom as belonging to Brandon Jones but did not indicate that any
seized items belonged to Mr. Jones. Each bedroom had a lock and Mr. Jones’s
bedroom was locked. Detectives found no keys on defendant at the time of his arrest.
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Defendant asserts as assignments of error that (1) the State failed to prove the
charged offense beyond a reasonable doubt, as the evidence failed to prove
possession, dominion or control; (2) the trial court erred in denying the Motion to
Suppress the Evidence; (3) the trial court erred in finding that the non-unanimous
verdict supports a felony conviction and satisfies due process and seeks a new trial;
and (4) the trial court erred in imposing a constitutionally excessive sentence.
Law and Analysis
Sufficiency of the Evidence
Defendant asserts that there is insufficient evidence to prove the charged
offense beyond a reasonable doubt, as the evidence failed to prove possession,
dominion or control. When the issues on appeal relate to both the sufficiency of the
evidence and one or more trial errors, the reviewing court should first determine the
sufficiency of the evidence by considering the entirety of the evidence. State v.
Hearold, 603 So.2d 731, 734 (La. 1992). The reason for reviewing sufficiency of
evidence first is that the accused may be entitled to an acquittal under Hudson v.
Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a reasonable trier of
fact, viewing the evidence in the light most favorable to the prosecution, could not
reasonably conclude that all of the elements of the offense have been proven beyond
a reasonable doubt. Therefore, consideration of sufficiency of evidence precedes
consideration of other assignments of error which, if meritorious, result in vacating
a conviction due to trial errors, and remand for possible retrial.
When, however, a claim of insufficiency of evidence is found to have merit,
it results in a reversal due to a failure to prove a charge beyond a reasonable doubt,
to which jeopardy attaches and the case cannot be retried. Thus, sufficiency of
evidence analysis also precedes consideration of whether a verdict must be vacated
and remanded under Ramos v. Louisiana, 590 U.S. --, 140 S.Ct. 1390, 206 L.Ed.2d
583 (2020), 2020 WL 1906545.
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Defendant asserts that there is insufficient evidence that he exercised actual
or constructive possession of the handgun, alone or jointly, and that no reasonable
juror could have concluded otherwise. Defendant notes that the butt of the gun under
the console was only visible from the back seat. Defendant further argues that
Brandon Jones’s identification card was in the truck and that the gun box, grips, and
ammunition were found in the closet of Mr. Jones’s locked bedroom. Defendant
asserts that nothing in Mr. Jones’s bedroom had his name on it or was proven to
belong to him. Further, defendant states that he only rented and slept in the living
room and used the living room closet to store his belongings. Defendant claims that
detectives did not find contraband in the area he rented.
Defendant notes that unlike the living room, each bedroom locked, but that no
room keys were found on defendant. Defendant asserts that he was never seen in
Mr. Jones’s bedroom and that no forensic evidence linked him to the gun. The
defense argues that defendant likely would not have volunteered the presence or
location of the marijuana had he known about the gun. Defendant asserts that the
circumstantial evidence was insufficient to show constructive possession, dominion,
or control over the handgun.
The State argues that defendant’s possession of the vehicle gave him
dominion and control over the handgun, and that defendant had access to the gun as
the driver of the vehicle, which was registered in his name. The State also asserts
that a jury could properly conclude that the defendant’s statement to the officer that
the gun was legal amounts to knowledge of the gun’s presence in the vehicle.
The constitutional standard for sufficiency of the evidence is whether, upon
viewing the evidence in a light most favorable to the prosecution, any rational trier
of fact could find that the State proved all of the essential 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). When circumstantial evidence is involved, the evidence must
19-KA-425 4
exclude every reasonable hypothesis of innocence. La. R.S. 15:438; State v. Gilbert,
02-922 (La. App. 5 Cir. 1/28/03), 839 So.2d 250, 253. The reviewing court “does
not determine whether another possible hypothesis suggested by a defendant could
afford an exculpatory explanation of the events,” but rather must evaluate the
evidence in a light most favorable to the State and determine whether the possible
alternative hypothesis is sufficiently reasonable that a rational juror could not have
found proof of guilt beyond a reasonable doubt. State v. Washington, 03-1135 (La.
App. 5 Cir. 1/27/04), 866 So.2d 973, 977.
Defendant was convicted of possession of a firearm by a convicted felon in
violation of La. R.S. 14:95.1. To support a conviction under La. R.S. 14:95.1, the
State must prove beyond a reasonable doubt that defendant had: (1) possession of a
firearm; (2) a prior conviction for an enumerated felony; (3) absence of the ten-year
statutory period of limitation; and (4) the general intent to commit the offense. State
v. Youngblood, 18-445 (La. App. 5 Cir. 5/22/19), 274 So.3d 716, 729. Defendant
only challenges the sufficiency of evidence as to proof of his possession of the
firearm. Thus, we only address this issue relative to that element.
Actual possession of a firearm is not necessary to prove the possession
element of La. R.S. 14:95.1. Constructive possession is sufficient to satisfy the
element of possession. State v. Day, 410 So.2d 741, 743 (La. 1982); State v. Jones,
09-688 (La. App. 5 Cir. 2/9/10), 33 So.3d 306, 314, writ denied, 11-1301 (La.
3/2/12), 83 So.3d 1042. A person is in constructive possession of a firearm if the
firearm is subject to his dominion and control. State v. Johnson, 03-1228 (La.
4/14/04), 870 So.2d 995, 998. It is presumed that the sole occupant of a vehicle has
dominion and control over the contents of the vehicle, regardless of the ownership
of the vehicle. State v. Burbank, 07-125 (La. App. 5 Cir. 10/30/07), 971 So.2d 1173,
1177, writ denied, 07-2287 (La. 4/25/08), 978 So.2d 364. Guilty knowledge may be
inferred from the circumstances and proved by direct or circumstantial evidence.
19-KA-425 5
Jones, 33 So.3d at 314. The State must prove that the offender was aware that a
firearm was in his presence and that the offender had the general intent to possess
the weapon.
In State v. Dotie, 43,819 (La. App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied,
09-310 (La. 11/6/09), 21 So.3d 297, the court upheld the defendant’s conviction for
possessing a firearm found in the closed front seat center console of a vehicle he was
driving. No fingerprints were recoverable from the weapon, and the defendant was
not observed touching the console. Additionally, the car belonged to the mother of
the defendant’s child, although the defendant drove it ninety percent of the time. Id.At trial, the defendant’s mother testified that she borrowed the car the day before,
put the gun in the console, and forgot to remove it. The appellate court rejected the
defendant’s argument that his mere presence in the vehicle where the gun was found
did not constitute constructive possession, noting that the defendant had been
evasive when stopped and that he drove the vehicle most of the time. The latter fact,
according to the court, allowed a rational juror to find that he exercised full dominion
and control over the car. Id.In State v. Washington, 11-716 (La. App. 5 Cir. 3/13/12), 90 So.3d 1157,
1162-63, this Court found sufficient evidence to support a finding of constructive
possession. In so finding, the Court considered that officers were informed that the
defendant drove the vehicle, a registration check revealed that the defendant was the
owner of the vehicle despite his assertions to the contrary, the keys to the vehicle
were found on the defendant’s person, and the defendant was seen accessing the
vehicle immediately prior to the contraband being discovered in the vehicle.
In the instant case, we find that the evidence at trial established that defendant
constructively possessed the firearm found in his vehicle and intended to possess it.
Defendant was the sole occupant of the vehicle when he was apprehended. As in
Washington, the vehicle where the gun was located was registered to defendant. The
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title to the vehicle was in defendant’s name. After the gun was found, Agent
Vasquez testified that defendant told him that the gun in his truck was legal. Agent
Vasquez also stated that defendant told him nobody else uses his truck.
Detective Marler testified that in conducting the search of defendant’s home,
officers recovered items related to the gun in an area of the home identified as rented
by Brandon Jones, whose identification card was also in the car. Even if the gun
was only accessible from the back seat of the vehicle and defendant did not own the
gun, the evidence still supports a finding that defendant still shared control of the
firearm as it was found within the cab of a truck that he owned, exclusively used,
and was driving alone when arrested.
Considering the law and the facts herein, we find that a rational trier of fact
could have found the evidence was sufficient under the standard set forth in Jackson
to support defendant’s conviction for possession of a firearm by a convicted felon.
This assignment of error lacks merit.
Non-unanimous Verdict
Defendant alleges that the jury verdict for his conviction is invalid because it
was rendered by a non-unanimous jury, and that the non-unanimous verdict violates
the Sixth and Fourteenth Amendments of the United States Constitution. In light of
the recent decision from the United States Supreme Court in Ramos v. Louisiana,
— U.S.— , 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020), we find this assignment of error
has merit.
Defendant was found guilty of possession of a firearm by a convicted felon.
La. R.S. 14:95.1 read in pertinent part, “Whoever is found guilty of violating the
provisions of this Section shall be imprisoned at hard labor for not less than ten nor
more than twenty 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
19-KA-425 7
dollars.” Since the punishment for this offense is necessarily confinement at hard
labor, a jury of twelve persons was required. See La. Const. Art. I, Sec. 17; La.
C.Cr.P. art. 782.
The Sixth Amendment promises that “[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been committed, which district shall
have been previously ascertained by law.” In Ramos, the Supreme Court recognized
that the Amendment does not specifically identify what a “trial by an impartial jury”
entails. Ramos, 140 S.Ct. at 1395. The Supreme Court, however, stated that “The
text and structure of the Constitution clearly suggest that the term ‘trial by an
impartial jury’ carried with it some meaning about the content and requirements of
a jury trial” and held that “One of these requirements was unanimity.” Id. The
Supreme Court further held that the Sixth Amendment’s requirement for a
unanimous verdict to support a conviction applies in state court. Ramos, 140 S.Ct.
at 1397.
In concluding that the Sixth Amendment right to a jury trial—as incorporated
against the states by the Fourteenth Amendment—requires a unanimous verdict to
convict a defendant of a serious offense, the Supreme Court stated:
There can be no question either that the Sixth Amendment’s unanimity
requirement applies to state and federal criminal trials equally. This
Court has long explained that the Sixth Amendment right to a jury trial
is “fundamental to the American scheme of justice” and incorporated
against the States under the Fourteenth Amendment. This Court has
long explained, too, that incorporated provisions of the Bill of Rights
bear the same content when asserted against States as they do when
asserted against the federal government. So if the Sixth Amendment’s
right to a jury trial requires a unanimous verdict to support a conviction
in federal court, it requires no less in state court. (Footnotes omitted.)
Id.As a result of the Supreme Court’s decision in Ramos, all defendants who
were convicted of serious offenses by non-unanimous juries and whose cases are
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still pending on direct appeal will be entitled to a new trial. Because defendant here
was convicted of a serious offense by a non-unanimous verdict and his case is
pending on direct appeal, defendant is entitled to have his conviction and sentence
vacated and to a new trial.
Consequently, based on the Ramos decision, and having first found that
defendant is not entitled to an acquittal based on insufficient evidence under Hudson,
supra, we vacate defendant’s conviction and remand this matter for a new trial.
Given our conclusions herein, we pretermit any discussion of the remaining
assignments of error.
Decree
For the foregoing reasons, we find that defendant is entitled to a new trial.
Accordingly, we vacate defendant’s conviction and sentence in the instant case and
remand the matter to the trial court for further proceedings.
CONVICTION AND SENTENCE VACATED; REMANDED
19-KA-425 9
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
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www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
JULY 31, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-KA-425
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE MICHAEL P. MENTZ (DISTRICT JUDGE)
ANNE M. WALLIS (APPELLEE) GRANT L. WILLIS (APPELLEE) THOMAS J. BUTLER (APPELLEE)
SHERRY A. WATTERS (APPELLANT)
MAILED
HONORABLE JEFFREY M. LANDRY HONORABLE PAUL D. CONNICK, JR.
(APPELLEE) (APPELLEE)
ATTORNEY GENERAL DISTRICT ATTORNEY
LOUISIANA DEPARTMENT OF JUSTICE ANDREW DECOSTE (APPELLEE)
1885 NORTH 3RD STREET DOUGLAS E. RUSHTON (APPELLEE)
6TH FLOOR, LIVINGSTON BUILDING ASSISTANT DISTRICT ATTORNEYS
BATON ROUGE, LA 70802 TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053