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1/18/01

SUPREME COURT OF LOUISIANA
No. 99-K-3439 STATE OF LOUISIANA v. DEAN P. BLANCHARD On Writ of Certiorari to the Court of Appeal, Fifth Circuit, Parish of Jefferson VICTORY, J. We granted this writ to determine whether La. R.S. 14:95(E), which prohibits a person from possessing a firearm while possessing a controlled dangerous substance, can be applied to criminalize the constructive possession of a firearm by one who also possesses marijuana. After reviewing the record and the applicable law, we find that "constructive possession" is sufficient to constitute "possession" under the statute; however, if constructive possession of the firearm is proven, the State must also show a nexus between the firearm and the drugs in order to prove a violation under the statute. Because the trial court did not properly instruct the jury on this issue, we remand this case to the trial court for a new trial. FACTS AND PROCEDURAL HISTORY On February 24, 1996, officers from the Jefferson Parish Sheriff's Office and the Grand Isle Police Department went to defendant Dean Blanchard's home. When defendant opened the door and was told that the officers were there to execute a search warrant, the defendant told the officers that he had a small amount of marijuana in the house, and, when asked if he had any weapons, replied that he had an Uzi pistol, which the officers located in a kitchen cabinet. The officers also found a bag with a small amount of marijuana under a sofa cushion and two marijuana cigarettes in an ashtray.1

Although the record shows that the officers seized a sizeable amount of cocaine at defendant's residence, all evidence concerning the cocaine was excluded from this trial.

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Defendant was charged in Count 1 with possession with intent to distribute over 28 ounces of cocaine, a violation of La. R.S. 40:967(F), and in Count 2 with possession of a firearm while in possession of a controlled dangerous substance, to wit, marijuana, a violation of La. R.S. 14:95(E). At trial, the jury returned a verdict of not guilty as to Count 1 and deadlocked as to Count 2. At a second trial on the charge of possession of a firearm while in possession of marijuana, defendant was found guilty as charged and sentenced to seven years at hard labor.2 The court of appeal affirmed his conviction and sentence. State v. Blanchard, 99-599 (La. App. 5 Cir. 11/10/99), 749 So. 2d 19. We granted defendant's writ application to determine the applicable scope of La.R.S. 14:95(E). State v. Blanchard, 99-3439, (La. 6/30/00), 765 So. 2d 1054 . DISCUSSION La. R.S. 14:95(E) provides: 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 without the benefit of probation, parole, or suspension of sentence. 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 without the benefit of probation, parole, or suspension of sentence. (Emphasis added). Defendant claims that La. R.S. 14:95(E) is unconstitutional in its application because it provides an enhanced penalty for the constructive possession of a firearm and drugs without a showing of connexity between the weapon possession and the drug offense. Thus, he claims that the statute is overbroad in violation of his right to bear arms and violates equal protection by arbitrarily including a misdemeanor drug offender in the same class with felony drug offenders without serving a legitimate state purpose.3
Subsequently, defendant pled guilty to a habitual offender bill of information, and the trial court vacated the original sentence and again imposed a term of seven years as defendant's enhanced sentence. The court further ordered that the sentence run concurrently with a 18-month sentence he was serving in federal prison for illegal transportation of red snapper. We find no merit in, nor will we address, defendant's unsupported additional argument that the statute violates due process by not requiring an element of specific intent. Defendant bears the burden of clearly establishing unconstitutionality and he has pointed to no legal authority for his argument. 2
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The court of appeal addressed only defendant's equal protection argument and found that the statute was constitutional after examining the right to bear arms and the legislative intent behind the statute. The court of appeal correctly set out the parameters of the equal protection analysis as follows: The right to bear arms is established by the Second Amendment to the United States Constitution and Article I,

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Louisiana Law