April 9, 2015
By Victoria A. Jowers, Senior Associate

Introduction

On April 28, 2010, Joseph Perkins was an inmate at the Orleans Parish Prison (OPP) serving an 18-month sentence for robbery.[1] On that day, Perkins was involved in a fight with other inmates.[2] Following the fight, a prison guard searched Perkins.[3] During the search, Perkins dropped two shanks by his side.[4] Then, the OPP medical clinic treated Perkins for lacerations to his head, neck, arms, and chest.[5]

Following the incident, the state charged Perkins with possession of a concealed weapon by a person convicted of certain felonies in violation of Louisiana Revised Statutes section 14:95.1.[6] At trial, the deputy on duty at the time the fight broke out testified that he saw the two inmates accused of attacking Perkins standing across from one another holding shanks.[7] A DNA expert testified that the blood on one of the shanks belonged to Perkins.[8] Counsel for Perkins introduced evidence that Perkins was badly injured, requiring many stitches.[9] On the basis of this evidence, Perkins requested that the jury receive self-defense and justification instructions.[10] The state denied his request, and Perkins was convicted of violating Revised Statutes section 14:95.1.[11] The state sentenced him to 15 years at hard labor.[12]

On appeal, the Fourth Circuit reversed, finding that the district court erred in denying Perkins the self-defense and justification instructions.[13] Refuting the trial court’s opinion that there was no evidence suggesting that self-defense applied to   Perkins’ case, the Fourth Circuit stated: “It is apparent that the wounds to the defendant were clearly visible and evident of defensive wounds.”[14]

Then, the Louisiana Supreme Court granted a writ filed by Perkins.[15] Although the Court acknowledged that Perkins likely grabbed the shanks from his attackers, the Court found that the Louisiana Legislature never intended for self-defense and justification to apply to a defendant who possessed a concealed weapon while incarcerated.[16] Because Perkins was incarcerated when he grabbed the weapon, the Louisiana Supreme Court reasoned that Perkins was not entitled to justification or self-defense instructions.[17] Thus, Perkins’ 15-year conviction for grabbing the weapon of his attacker stood.

I. Applicable Law

Under Louisiana law, self-defense and justification instructions are considered “special charges.”[18] Special charges are jury instructions that the state or defendant can request be given in addition to the charged and lesser offense instructions required by Louisiana Code of Criminal Procedure articles 814 and 815.[19] Under Louisiana Code of Criminal Procedure article 807, Louisiana law requires that a requested special charge instruction be given if “it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent.”[20] Generally, courts have interpreted article 807 to mean that the charge must be both pertinent and supported by evidence presented at trial.[21] This is part of a trial judge’s obligation to charge the jury according to the applicable law, covering every phase of the case supported by the evidence whether the judge accepts the evidence as true.[22]

The special charge at issue in Perkins comes from Louisiana Revised Statutes sections 14:18–19. Revised Statutes section 14:18 provides that there are seven circumstances in which a defendant may raise a justification defense. Section 14:18(7) allows for a justification defense to be used in certain cases where one is defending oneself, others, or property. Specifically, Revised Statutes section 14:19 provides that the “self-defense” justification may be used when a person uses force or violence upon another to prevent force from being used against themselves, provided that the force is reasonable and necessary.[23] This statutory defense codifies the legal doctrine of necessity, which provides that—in most cases—the existence of extenuating circumstances making the commission of a crime necessary will defeat criminal culpability.[24] “‘Necessity,’ when raised as a defense to the illegal possession of a firearm, entails proof that the threat of force by another is imminent and apparent, and that the person threatened has no reasonable alternative but to possess the firearm.”[25]

In State v. Blache, the Louisiana Supreme Court recognized that a justification defense could apply to a defendant charged, as Perkins was, with violating Revised Statutes section 14:95.1.[26] In that case, a convicted felon grabbed his brother-in-law’s loaded shotgun after being attacked by a group of five individuals.[27] In Blache, the Louisiana Supreme Court stated:

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 [where a felon is or reasonably believes himself or others to be in imminent peril], justification is a defense to the charge of felon in possession of a firearm.[28]

Citing Blache, the Fourth Circuit opined that because the evidence introduced at trial showed that Perkins had defensive injuries that “speak for themselves,” the justification and self-defense instructions were pertinent and supported by the evidence.[29] Thus, according to the Fourth Circuit, the trial court erred in refusing to give the justification and self-defense instructions.[30]

II. Louisiana Supreme Court Findings

When the Perkins case reached the Louisiana Supreme Court, the Court took a different approach than the approach followed in Blache. Rather than focusing on whether a felon is entitled to a justification or self-defense instruction when charged with a violation of Revised Statutes section 14:95.1, the Court focused on whether an incarcerated felon is entitled to a justification or self-defense instruction when charged with a violation of section 14:95.1.[31] Discussing Blache, the Court stated that because in that case the weapon was capable of being legally possessed by someone and there was no evidence that the felon had illegally possessed the weapon prior to being attacked, the felon was entitled to the justification or self-defense instruction.[32] Distinguishing Blache, the Court stated, “in the penal context, however, there is no scenario in which the possession of the ‘shank’ at issue here would be permissible.”[33]The Court cited Louisiana Administrative Code section 22:I.341(I)(1), which prohibits inmates from possessing any weapons, and Louisiana Revised Statutes section 14:402, which prohibits any person from possessing or introducing a dangerous weapon within prisons to support its reasoning.[34] Based on these statutes, the Court concluded that the Louisiana Legislature never intended for a prisoner who possesses a weapon to be able to use the justification or self-defense instructions to defend his or her actions.[35] Thus, because Perkins was incarcerated when he defended himself, the jury never had the opportunity to decide whether Perkins acted in self-defense.[36] As a result, he is serving 15 extra years in prison.[37]

III. Implications

Because Perkins ties a defendant’s rights to a special charge instruction to his incarceration status at the time of the alleged crime, the case opens the door for even greater challenges to attorneys who defend prisoners. The Court attempts to limit its reasoning to restricting justification and self-defense instructions in the context of inmates charged with violating Revised Statutes section 14:95.1.[38]  However, because the Court looked to legislative intent to decide an inmate defendant’s entitlement to a special charge instruction,[39] the door has been opened for the state to argue that the Legislature never intended for a prisoner to avail himself of self-defense, justification, and other special charges when prisoner-defendants submit them. This marks a departure from the typical pertinence/ evidentiary support analysis for special charges.[40] After this opinion, a prisoner’s ability to instruct the jury with special charges may be more limited than a non-incarcerated person’s right.

Lawyers who are defending prisoners should prepare themselves for the possibility that a court may deny a special charge jury instruction based on legislative intent. Although attorneys should continue to pursue special charges for prisoners, when crafting proposed jury instructions, it would be wise to consider what statutes and Department of Corrections regulations may be used to persuade a court that the Louisiana Legislature never intended that prisoners could avail themselves of that special charge. Pertinence and evidentiary support may no longer be the only concerns when requesting jury instructions on responsive verdicts.

Lastly, careful legislators should consider revising Louisiana Revised Statutes sections 14:18-19 to clarify whether or not it was intended for a prisoner to be able to avail themselves of justification and self-defense instructions. In Perkins, the Court looked to other statutes to determine legislative intent,[41] likely due to the absence of information in sections 14:18-19 about what the legislature intended. If the Legislature did in fact intend for prisoners to use justification and self-defense instructions, this case provides an excellent outline of what needs to be changed in sections 14:18-19 to make sure they are afforded that opportunity.

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[1] State v. Perkins, 120 So. 3d 912, 914–15 (La. Ct. App. 2013), writ granted, 135 So. 3d 626 (La. 2014), rev’d, 149 So. 3d 206 (La. 2014). The author references the appellate opinion for the purpose of giving the reader the facts, as the Louisiana Supreme Court opinion did not include a detailed statement of the facts.

[2] Id.

[3] Id. at 914–15.

[4] Id. at 915. While the Fourth Circuit and the majority of the Louisiana Supreme Court did not elaborate on the manner in which Perkins turned over the shanks, Justice Hughes of the Louisiana Supreme Court characterized Perkins as having “voluntarily surrendered” the shanks. See State v. Perkins, 149 So. 3d 206, 209 (La. 2014) (Hughes, J., dissenting).

[5] Perkins, 120 So. 3d at 914.

[6] Id. at 913.

[7] Id. at 916.

[8] Id. The expert was unable to obtain a DNA profile from the other shanks.

[9] Id. at 918.

[10] Id.

[11] Id. at 914, 916.

[12] Id. at 914.

[13] Id.

[14] Id. at 918.

[15] State v. Perkins, 135 So. 3d 626 (La. 2014).

[16] State v. Perkins, 149 So. 3d 206, 207 (La. 2014).

[17] Id. at 207–09.

[18] See State v. Patterson, 473 So. 2d 363, 364 (La. Ct. App. 1985).

[19] See State v. Simmons, 817 So. 2d 16, 19 (La. 2002).

[20] La. Code Crim. Proc. art. 807 (2015).

[21] See, e.g., State v. Teleford, 384 So. 2d 347, 350 (La. 1980).

[22] La. Code Crim. Proc. art. 802 (2015).

[23] La. Rev. Stat. Ann. § 14:19(A)(2007).

[24] See State v. Recard, 704 So. 2d 324, 327–29 (La. Ct. App. 1997) (discussing the doctrine of necessity at length).

[25] State v. Jackson, 452 So. 2d 776, 779 (La. Ct. App. 1984).

[26] State v. Blache, 480 So. 2d 304, 305 (La. 1985).

[27] Id.

[28] Id. at 308.

[29] State v. Perkins, 120 So. 3d 912, 918–19 (La. Ct. App. 2013).

[30] Id.

[31] Id. at 208–09 (emphasis added).

[32] State v. Perkins, 149 So. 3d 206, 209 (La. 2014).

[33] Id.

[34] Id.

[35] Id.

[36] Id. at 209–10.

[37] Id. at 208.

[38] Id. at 208–10.

[39] Id. at 208–09.

[40] See, e.g., State v. Teleford, 384 So. 2d 347, 350 (La. 1980) (analyzing what is required for an instruction under article 807).

[41] See State v. Perkins, 149 So. 3d 206, 209 (La. 2014).