State v. Riser - 30201 ( La. App. 2 Cir 12/12/97), 704 So. 2d 946

Rule:

The statutory provisions setting forth the State's burden of proof refer only to the requirement that the State prove the elements of the crime - not that the State disprove the exculpatory circumstances constituting defenses which defeat criminal culpability despite proof of the presence of all elements of the offense. La. Rev. Stat. Ann. § 15:271; La. Code Crim. Proc. Ann. art. 804.

Facts:

In 1986, Riser pled guilty to aggravated battery and the court sentenced him to serve three years imprisonment at hard labor. The trial court suspended the sentence and placed the defendant on two years’ probation which he completed on September 5, 1988. On April 27, 1996, Dan Hicks, the Chatham night marshal, stopped Riser for a traffic violation and saw a .45 caliber semi-automatic pistol in his car. Unaware of Riser’s previous felony conviction, Hicks completed the traffic stop and allowed Riser to continue his trip. On May 25, 1996, Jackson Parish Sheriff's Deputy Brent Barnett stopped Riser for a traffic violation and saw the pistol in his car. When Riser admitted ownership of the weapon, Deputy Barnett arrested him for possession of a firearm by a convicted felon. The state subsequently charged Riser with two violations of La. R.S. 14:95.1. At trial, Riser introduced a copy of a "Verification of First Offender Pardon" dated September 21, 1988 from the Louisiana Department of Public Safety and Corrections, Division of Probation and Parole (hereinafter "the Department of Corrections"), which provided in essence that Riser has completed his sentence and met all of the requirements for an automatic first offender pardon. The copy of the foregoing verification was certified by the clerk of court for Jackson Parish as having been received from the Department of Corrections and filed in the parish records. Despite the implication of the automatic pardon certificate or verification offered as the defense, the jury convicted Riser of one count of attempted possession of a firearm by a convicted felon on the charge arising from the May 25, 1996 incident.

Issue:

Did the trial court err in convicting Riser on insufficient evidence of his criminal intent?

Answer:

No.

Conclusion:

Riser rested his mistake of law defense on the Department of Correction's letter of verification or certification which is required by La. R.S. 15:572D to be mailed to defendant as notice of his automatic pardon. Based upon the language of La. R.S. 14:17(1) and in view of the labored jurisprudential distinctions regarding "pardon" as that term is twice expressed, without elaboration, in Art. 4, § 5(E)(1), a mistake of law defense might be proven in this instance. A first offender, who receives a formal notice from a state agency expressing the substance of La. R.S. 15:572D's restoration of "all rights of citizenship and franchise" and using the constitutional term "pardon," may reasonably rely on those legislative and constitutional expressions and conclude that he may possess a firearm like other citizens. Although this mistake of law defense is possible, Riser erroneously implied in his argument that the state bore the burden of proving that the defendant knew that he remained subject to this criminal sanction despite his automatic pardon. The particular defense at issue in Cheatwood was one of the "justification" defenses set forth in La. R.S. 14:18, which the court observed to be based "on circumstances which make the accused's conduct excusable on policy grounds." The court concluded that such defenses are affirmative defenses which the accused must prove by a preponderance of the evidence. The appellate court likewise concluded that the burden of proof of the defense of mistake of law in this instance was on the defendant. From the review of the record which contains only the above quoted letter from the Department of Corrections, Riser did not meet his defensive burden of proof. He did not testify at trial. The letter itself was not addressed to Riser, and no envelope or other record bearing Riser’s address was submitted into evidence. In short, Riser presented no evidence at trial to indicate he actually received and relied on the letter. Because Riser bears the burden of proving his reliance by a preponderance of the evidence, he failed to prove that he reasonably relied on the letter as informing him of his automatic pardon. Accordingly, his assignment of error regarding the sufficiency of the evidence in this case was without merit.