                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #045


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 3rd day of September, 2014, are as follows:




PER CURIAM:


2013-K -1917      STATE OF LOUISIANA v. JOSEPH PERKINS (Parish of Orleans)
                  (Possession of a “Shank” by a Convicted Felon)

                  For these reasons, we hold the Court of appeal erred in reversing
                  defendant's conviction and vacating his sentence. Therefore, we
                  reverse the judgment of the Court of Appeal and reinstate
                  defendant's conviction and sentence. Because the Court of Appeal
                  pretermitted consideration of defendant's other assignment of
                  error, we remand this case to the Court of Appeal to consider
                  defendant's remaining assignment of error.
                  REVERSED AND REMANDED TO THE COURT OF APPEAL.

                  JOHNSON, C.J., dissents.
                  HUGHES, J., dissents with reasons.
09/03/14



                              SUPREME COURT OF LOUISIANA

                                             NO. 2013-K-1917

                                       STATE OF LOUISIANA

                                                    VERSUS

                                           JOSEPH PERKINS

           ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
                FOURTH CIRCUIT, PARISH OF ORLEANS


PER CURIAM

         This writ concerns whether defendant, Joseph Perkins, is entitled to jury

instructions on self-defense and justification for the charged offense of possession

of a “shank” by a convicted felon, a violation of Louisiana Revised Statute

14:95.1, while he was incarcerated in Orleans Parish Prison.1 Prior to instructing

the jury on the relevant law, the District Court denied the defendant’s motion for

these special self-defense and justification instructions on the grounds the evidence

elicited at trial as a factual matter did not support the defendant’s entitlement to the

instructions. At the trial’s conclusion, the jury found defendant guilty of the

charged offense.2 The District Court sentenced defendant to 15 years imprisonment

at hard labor. Defendant appealed, and the Court of Appeal reversed in a split

panel decision, finding the District Court erred in denying defendant the proposed

instructions on self-defense and justification. State v. Perkins, 12-0662 (La. App. 4

Cir. 7/31/13), 120 So.3d 912 (Lobrano, J., dissenting). We granted the State’s writ

application to review the correctness of the Court of Appeal’s decision. State v.

Perkins, 13-1917 (La. 3/21/14), 135 So.3d 626. Because we find the Legislature

1
  We dispose of this case on a purely legal issue. The specific facts concerning this case are fully reported in the
Court of Appeal’s opinion. State v. Perkins, 12-0662, pp. 2-6 (La. App. 4 Cir. 7/31/13), 120 So.3d 912, 914-16.
2
  After the jury rendered its verdict, defendant made a motion for arrest of judgment, a motion for a new trial, and a
request for stay, all of which the District Court denied.
never intended for the jury instructions on self-defense and justification to apply to

a defendant who was charged with possession of a concealed weapon while

incarcerated, the Court of Appeal erred as a matter of law in reversing defendant’s

conviction and sentence.

      A requested special charge shall be given by the court if it does not require

qualification, limitation, or explanation, and if it is wholly correct and pertinent.

La.C.Cr.P. art. 807; see also State v. Johnson, 438 So.2d 1091, 1097 (La. 1983);

State v. Lane, 414 So.2d 1223, 1228 (La. 1982). The charge, however, must be

supported by the evidence. State v. Teleford, 384 So.2d 347, 350 (La. 1980). This

is a corollary of the trial judge’s basic obligation to charge the jury as to the law

applicable to the case, under which he is required to cover every phase of the case

supported by the evidence whether or not accepted by him as true. La.C.Cr.P. art.

802; State v. Simmons, 422 So.2d 138, 141 (La. 1982); State v. Miller, 338 So.2d

678, 679 (La. 1976). Moreover, failure to give a requested jury instruction

constitutes reversible error only when there is a miscarriage of justice, prejudice to

substantial rights of the accused, or a substantial violation of a constitutional or

statutory right. La.C.Cr.P. art. 921; State v. Marse, 365 So.2d 1319, 1324 (La.

1978).

      Louisiana Revised Statute 14:18 lists seven circumstances under which a

defendant may raise the defense of justification, including, as pertinent here,

“[w]hen the offender’s conduct is in defense of persons or of property under any of

the circumstances described in Articles 19 through 22.” La. R.S. 14:18(7).

Specifically, Louisiana Revised Statute 14:19, concerning the use of force or

violence in defense, provides in pertinent part:

      The use of force or violence upon the person of another is justifiable
      when committed for the purpose of preventing a forcible offense
      against the person or a forcible offense or trespass against property in
      a person’s lawful possession, provided that the force or violence used
      must be reasonable and apparently necessary to prevent such offense,

                                          2
      and that this Section shall not apply where the force or violence
      results in a homicide.

La. R.S. 14:19(A).

      This Court has never addressed the specific issue of whether a justification

defense is available to a defendant who was an inmate in a penal institution at the

time he allegedly possessed a firearm or a concealed weapon in violation of

Louisiana Revised Statute 14:95.1. However, the Court has addressed the

analogous but distinct issue of whether or not an unincarcerated convicted felon

charged with possessing a firearm or carrying a concealed weapon is entitled to the

justification instruction.

      In State v. Blache, 480 So.2d 304 (La. 1985), the defendant, who had

previously been convicted of simple burglary, was charged, inter alia, with

possession of a firearm by a convicted felon after he ran into his father’s house and

brought out his brother-in-law’s loaded shotgun in the midst of a scuffle with his

friend and five attackers. Although the defendant was acquitted of the possession

of a firearm by a convicted felon charge, this Court had to determine whether or

not the defendant was entitled to the self-defense jury instruction in order to reach

one of defendant’s assignments of error. We found that, under these circumstances,

the defendant was entitled to the instruction:

            We hold that when a felon is in imminent peril of great bodily
      harm, or reasonably believes himself or others to be in such danger, he
      may take 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 [sic] justification is a defense to
      the charge of felon in possession of a firearm.

             This is not to say that a convicted felon is entitled to own or
      maintain possession of a weapon, constructive possession or
      otherwise, for protection, or for any other reason. In this case,
      incidentally, as was noted hereinabove at footnote three, the record
      reflects no information concerning pre-incident possession of the
      shotgun other than that it belonged to defendant’s brother-in-law and
      was kept in a hall closet of a residence owned by defendant’s father.
      There was no evidence of constructive possession of the shotgun by
      defendant preceding the encounter.

                                          3
State v. Blache, 480 So.2d at 308.

      While the Blache defendant was entitled to the justification jury instruction,

we find this matter readily distinguishable. Under the Blache facts, the firearm

defendant carried in violation of Revised Statute 14:95.1 was capable of legal

possession by someone, that is, anyone who was not a convicted felon, because

under this statute possession of a firearm is not inherently criminal. Rather, its

possession is only criminal in the hands of a convicted felon. Indeed, the Blache

Court emphasized, prior to the incident, there was no evidence defendant illegally

possessed the firearm. Rather, the shotgun at issue was owned by defendant’s

brother-in-law and housed in a residence owned by defendant’s father.

      In the penal context, however, there is no scenario in which possession of

the “shank” at issue here would be permissible. Not only do Department of

Corrections regulations prohibit inmates from possessing weapons, LAC

22:I.341(I)(1), but Louisiana Revised Statute Section 14:402 also prohibits any

person from “introduc[ing]” or “possess[ing]” a “dangerous weapon, or other

instrumentality customarily used or intended for probable use as a dangerous

weapon…, unless authorized by the warden of the institution.” Thus, in the penal

context, possession of a weapon by anyone is inherently criminal. State v.

Draughter, 13-0914, p. 15 (La. 12/10/13), 130 So.3d 855, 866 (“The right to keep

and bear arms found in article I, section 11 is one such constitutional protection

which must be curtailed entirely in the prison setting.”). This is so not because the

possession of a concealed “shank” by a felon is somehow more criminal than the

possession of a firearm by a felon, but because the possession of a “shank” or any

dangerous weapon in this place, i.e., inside prison walls, by any person without

authorization is absolutely forbidden under Louisiana law.

      The Legislature’s decision to criminalize the possession of any dangerous

weapon by any unauthorized person in a prison setting strongly suggests the

                                         4
Legislature never intended for the jury instructions on self-defense and justification

to extend to defendants who possessed a firearm or a concealed weapon inside

prison walls. See State v. Johnson, 03-2993, p. 12 (La. 10/19/04), 884 So.2d 568,

575 (“[T]he paramount consideration in statutory interpretation is ascertainment of

the legislative intent and the reason or reasons which prompted the legislature to

enact the law.”); State v. Theriot, 95-2895, p. 3 (La. 5/20/97), 694 So.2d 184, 186

(“Legislative intent is the fundamental question in all cases of statutory

interpretation; rules of statutory construction are designed to ascertain and enforce

the intent of the statute.”). To conclude otherwise would render toothless a law

aimed at protecting prisoners and those who guard them by deterring inmates from

possessing dangerous weapons inside prison.

      For these reasons, we hold the Court of Appeal erred in reversing

defendant’s conviction and vacating his sentence. Therefore, we reverse the

judgment of the Court of Appeal and reinstate defendant’s conviction and

sentence. Because the Court of Appeal pretermitted consideration of defendant’s

other assignment of error, we remand this case to the Court of Appeal to consider

defendant’s remaining assignment of error.




REVERSED AND REMANDED TO THE COURT OF APPEAL.




                                          5
09/03/14



                  SUPREME COURT OF LOUISIANA


                           NO. 2013-K-1917

                         STATE OF LOUISIANA

                              VERSUS

                          JOSEPH PERKINS

       ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
            FOURTH CIRCUIT, PARISH OF ORLEANS



JOHNSON, C.J. dissents
09/03/14



                      SUPREME COURT OF LOUISIANA

                                No. 2013-K-1917

                             STATE OF LOUISIANA

                                     VERSUS

                               JOSEPH PERKINS

           On Writ of Certiorari to the Fourth Circuit Court of Appeal,
                                Parish of Orleans


HUGHES, J., dissenting.

      I respectfully dissent. As noted in the majority opinion, defendant suffered
wounds to his head, arms, chest, and neck. His blood was on the handle of one of
the shanks, so he must have already been bleeding when he grasped it. After his
antagonist and his weapons were secured, defendant voluntarily surrendered his. I
agree with the court of appeal that defendant is entitled to an instruction of self-
defense and justification.
