State of Louisiana Versus Freddrica Joseph

STATE OF LOUISIANA NO. 23-KA-446

VERSUS FIFTH CIRCUIT

FREDDRICA JOSEPH COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 22-6015, DIVISION "K"
HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING

April 24, 2024

SUSAN M. CHEHARDY
CHIEF JUDGE

Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and John J. Molaison, Jr.

AFFIRMED
SMC
FHW
JJM

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Matthew R. Clauss

COUNSEL FOR DEFENDANT/APPELLANT,
FREDDRICA JOSEPH
Bertha M. Hillman

CHEHARDY, C.J.

Defendant appeals her conviction and sentence for possession of a firearm

while in possession of marijuana on the basis that the district court failed to

properly instruct the jury. For the following reasons, we affirm defendant’s

conviction and sentence.

PROCEDURAL HISTORY

The Jefferson Parish District Attorney charged defendant, Freddrica Joseph,

by bill of information on December 12, 2022, with possession of a firearm while in

possession of a controlled dangerous substance, marijuana, in violation of La. R.S.

14:95(E) (count one), and possession with the intent to distribute a controlled

dangerous substance, cocaine, weighing twenty-eight grams or greater, in violation

of La. R.S. 40:967(A) (count two), for an incident that occurred on September 19,

2022. At her arraignment, defendant pled not guilty.

The matter was tried to a jury on April 17 and April 18, 2023. The jury

returned a unanimous verdict of guilty as charged as to count one, and not guilty as

to count two. Defendant filed a motion for new trial and an amended motion for

new trial, which the district court denied following a hearing. The district court

sentenced defendant on May 18, 2023, to imprisonment at hard labor for five years

and one day with credit for time served. The sentence was ordered to run

concurrently to a contempt sentence,1 and any other sentence, defendant was

currently serving. This timely appeal followed.

FACTUAL BACKGROUND

At trial, the State called five witnesses to testify: Officer Robert Taylor,

Gretna Police Department (“GPD”), patrol division; Officer Hank Rogers, GPD,

1
Defendant was an hour late for trial on April 17, 2023, and the district court ordered defendant to
serve ten days in parish prison for contempt of court.

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patrol division; and Officer Payton Piglia, GPD, crimes division.2 The defense

called one witness to testify: Tonya Francis.3 Defendant chose not to testify on her

own behalf.

Officer Robert Taylor

Officer Taylor testified that on September 19, 2022, while working the night

watch patrol and with his body-worn camera activated, he executed a traffic stop of

a white Honda Accord for an expired Texas temporary tag. After activating his

lights and pulling the vehicle over, Officer Taylor approached the passenger side of

the vehicle and made contact with the driver, Tyran Adams, and the passenger,

defendant, Freddrica Joseph. Officer Taylor stated that because he detected the

odor of marijuana coming from the vehicle, he requested Tyran and defendant exit

the vehicle and, for safety reasons, instructed them to stand in front of his patrol

car. Officer Taylor read Tyran and defendant their Miranda rights,4 which

defendant acknowledged that she understood, and questioned them. Defendant

admitted that she had a hand-rolled cigar containing marijuana located in the

pocket area of the passenger door. Officer Taylor searched the vehicle and found

the hand-rolled marijuana cigar. He also found a bag of marijuana in the center

console and a green backpack behind the driver’s seat, which contained a larger

bag of marijuana, a white rock (which later field tested positive as crack cocaine),

a digital scale, and men’s deodorant. Defendant claimed ownership of the green

backpack. Officer Taylor arrested defendant and Tyran and they were transported

to Jefferson Parish jail. The vehicle, owned by defendant, was towed to Dale’s

Tow Yard.

2
The State called two additional witnesses: Justin Mourain, Jefferson Parish Sheriff’s Office
(“JPSO”), crime lab, forensic drug analyst; and Sitara Shirwani, JPSO, level II DNA analyst and alternate
case work CODIS administrator. Discussion of the trial testimony of these witnesses is not pertinent to
resolving the issue presented by this appeal.
3
Tonya Francis (Tyran Adams’ mother), testified that defendant is the mother of one her
grandchildren and that defendant is an EMT.
4
See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

23-KA-446 2

Officer Taylor testified that later that evening, he was contacted by Dale’s

Tow Yard and advised that a firearm with an extended magazine was recovered

under the driver’s seat of the Honda Accord. Officer Taylor stated that he went

back to the jail and questioned defendant and Tyran about the ownership of the

firearm. Defendant told Officer Taylor that she owned the firearm and later signed

an affidavit attesting that the firearm belonged to her.

Officer Hank Rogers

Officer Rogers testified that on the night of September 19, 2022, while on

patrol with the GPD, he participated in the search of defendant’s vehicle. He,

along with his trainee, Officer Leftwich, arrived on the scene to assist Officer

Taylor in a traffic stop. Officer Rogers confirmed that Officer Taylor advised

Tyran and defendant of their Miranda rights. He further confirmed that defendant

claimed ownership of the marijuana and the green backpack recovered from the

vehicle. He could not confirm, however, whether defendant also claimed

ownership of the “crystal substance” found in the backpack. Officer Rogers

testified that he and Officer Leftwich conducted a secondary search of the vehicle.

During the search, Officer Leftwich found loose bullets in the rear driver’s door,

but did not collect them because no firearms were discovered in their search of the

vehicle. Officer Rogers could not recall if a bullet was found in the green

backpack.

Officer Payton Piglia

Officer Piglia, while employed with the crime scene division of the GPD,

processed a glock firearm at the police station on September 22, 2022. He testified

that he swabbed the firearm for DNA and dusted it for fingerprints, but no

fingerprints were recovered from the firearm.

23-KA-446 3

Sworn Affidavit of Defendant, Freddrica Joseph

Although defendant chose not to testify at trial, at the conclusion of the

State’s case, introduced into evidence and published to the jury was the affidavit

attested to by defendant. In the affidavit, defendant attested, among other things,

that she was in possession of marijuana located in her vehicle, that a probable

cause search of the vehicle revealed one hand-rolled cigar in the passenger side

door, and a green backpack on the floor of the back seat, which contained drugs

and a digital scale. Defendant further attested that a later search of the vehicle

revealed a black handgun under the driver’s seat, which she owned and about

which Tyran claimed no knowledge. Defendant also attested that she is the owner

of the vehicle and that because she works the night shift as an EMT at Tulane, she

kept the firearm in her vehicle for her protection.

ISSUE PRESENTED FOR REVIEW

In her sole assignment of error on appeal, defendant argues the district court

erred in refusing to instruct the jury concerning the nexus requirement, which was

jurisprudentially added to certain La. R.S. 14:95(E) cases by the Louisiana

Supreme Court in State v. Blanchard, 99-3439 (La. 1/18/01), 776 So.2d 1165. La.

R.S. 14:95(E) cases involve illegal possession of a firearm while possessing a

controlled dangerous substance. Defendant argues that in cases where the

defendant is not in actual possession of the firearm, and the firearm is not within

the defendant’s immediate control—which defendant contends are the

circumstances presented by this case—the district court must follow Blanchard

and instruct the jury that the State must prove a connection between the gun and

the defendant’s possession of the drugs. Here, defendant contends the firearm was

located so far back under the driver’s seat that officers did not recover it during

their initial search of the vehicle, and thus, it was not reachable nor in her

immediate control. She further contends that her possession of the firearm was

23-KA-446 4

constructive and that under Blanchard, in cases involving constructive possession,

proof of a connection or nexus is required.5 Defendant argues the jury was not

properly instructed that the State bore the burden of proving some connection

between the gun found under the driver’s seat of her vehicle and her possession of

marijuana, and that this Court must reverse her conviction and sentence and

remand the matter for a new trial.

The State responds that the trial court did not err because a Blanchard

instruction in this case was not necessary given the facts and circumstances

established through the testimony of the officers at trial. In particular, the State

argues that the trial testimony established that the firearm, recovered from under

the driver’s seat of defendant’s vehicle and within reaching distance where she

could have easily retrieved it, was within defendant’s “immediate control.”

Consequently, a “nexus” instruction was not required.

DISCUSSION

At trial, defense counsel emphasized that under Blanchard, supra, the jury

should be instructed that “if the gun is not in the defendant’s immediate control,

then there are additional elements the State must prove.” In this regard, defense

counsel proposed the following instruction regarding the “nexus” requirement set

forth in Blanchard:

[A] jury should be instructed where there is no actual
possession[,] or the firearm was not within the immediate
control of the accused, that if the jury finds that the
defendant was not in actual possession of the firearm, at
the time he was in actual possession of the controlled
substance[,] we must find that beyond a reasonable doubt
that there was a connection or nexus between the firearm
and the controlled dangerous substance.

The State argued against the proposed Blanchard instruction on the basis

that the evidence showed that the firearm at issue was within defendant’s

5
Defendant claims the State failed to prove a nexus between the gun and marijuana.

23-KA-446 5

immediate control or within her “grabbable” area. The State further argued that

adding the additional element of the nexus not required by the charging statute was

disingenuous. The State averred that the nexus element was created by the

Supreme Court in Blanchard, and that the district court needed to determine

whether or not Blanchard was appropriate in the instant matter.

After considering the proposed jury charge and argument of counsel, the

district court declined to give defendant’s proposed charge, and, instead, instructed

the jury as follows, in part:

As to count one, the defendant is charged with illegal
carrying of a weapon while in possession of over 14
grams of marijuana. Illegal carrying of weapons is the
possession, use, or having under one’s immediate control
of a firearm while in possession of over 14 grams of
marijuana.

Thus, to convict the defendant of illegal carrying of a
weapon, you must find:

(1) that the defendant possessed over 14 grams of
marijuana; and

(2) that the defendant possessed or had under her
immediate control a firearm.

Possession can be actual or constructive. Actual
possession amounts to physical custody of the object.
Constructive possession is when the object is not in the
person’s physical custody but is under her dominion and
control in such that she has the ability to reduce the
object to actual possession. Also included with the
concept of possession, whether actual or constructive, is
the necessary element of scienter or guilty knowledge.
Constructive possession is established by evidence that
the marijuana and firearm were within defendant’s
dominion and control and that the defendant had
knowledge of their presence. Guilty knowledge can be
inferred from the circumstances. Mere presence of
defendant in [an] area where the marijuana and firearm
were found is sufficient insufficient to prove constructive
possession.
Defendant argues the district court’s instruction excluding proof of a nexus

requirement was error. We disagree.

23-KA-446 6

The district court is required to charge the jury “[a]s to the law applicable to

the case[.]” La. C.Cr.P. art. 802. The State and the defendant shall have the right

to submit special jury charges. La. C.Cr.P. art. 807. The court shall give a

requested special jury charge “if it does not require qualification, limitation, or

explanation, and if it is wholly correct and pertinent. It need not be given if it is

included in the general charge or in another special charge to be given.” La.

C.Cr.P. art. 807. See also State v. Jacobs, 07-887 (La. App. 5 Cir. 5/24/11), 67

So.3d 535, 574, writ denied, 11-1753 (La. 2/10/12), 80 So.3d 468, cert. denied,

568 U.S. 838, 133 S.Ct. 139, 184 L.Ed.2d 67 (2012). As a general matter, a

district court has the duty to instruct the jurors as to “every phase of the case

supported by the evidence whether or not accepted by him as true,” and that duty

extends to “any theory ... which a jury could reasonably infer from the evidence.”

State v. Neal, 00-0674 (La. 6/29/01), 796 So.2d 649, 659; see also La. C.Cr.P. art.

802 (the trial court shall charge the jury as to the law applicable to the case). The

evidence presented at trial, however, must support a requested special written

charge for the jury. State v. Cornejo-Garcia, 11-619 (La. App. 5 Cir. 1/24/12), 90

So.3d 458, 462-63. A district court’s failure to give a requested jury instruction

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

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

statutory right. State v. Harris, 01-2730 (La. 1/19/05), 892 So.2d 1238, 1261, cert.

denied, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005).

In Blanchard, supra, the Supreme Court examined the issue of whether La.

R.S. 14:94(E), which prohibits a person from possessing a firearm while in

possession of a controlled dangerous substance, criminalizes the constructive

possession of a firearm by one who also possesses marijuana. In Blanchard,

officers executed a search warrant at the defendant’s residence where they found a

small amount of marijuana under a sofa cushion in the living room and an Uzi

23-KA-446 7

pistol in a kitchen cabinet. The defendant was convicted based on his possession

of a controlled dangerous substance, marijuana, and his constructive possession of

the firearm. The defendant appealed claiming that a conviction based on

constructive possession violated his constitutional right to bear arms. After

examining the law and jurisprudence, the Supreme Court held that “when a

defendant is found to be in constructive possession of a firearm while

simultaneously in possession of a controlled dangerous substance, the state must

prove that there is a nexus between the firearm and the controlled dangerous

substance.” Blanchard, 776 So.2d at 1174. The Blanchard court further held,

however, that “[p]roof of a nexus requirement is not required where the defendant

uses or has actual possession of the firearm, or has the firearm within his

immediate control.” Id. [Emphasis supplied.]

A person is in “constructive possession” of a firearm when the firearm is

subject to defendant’s dominion and control. State v. Johnson, 03-1228 (La.

4/14/04), 870 So.2d 995, 998. Even if the person’s dominion over the weapon is

only temporary in nature and if control is shared, constructive possession exists.

State v. Lee, 02-704 (La. App. 5 Cir. 12/30/02), 836 So.2d 589, 593, writ denied,

03-0535 (La. 10/17/03), 855 So.2d 1231. While the Supreme Court has defined

“constructive possession,” it has not interpreted the term “immediate control,” for

purposes of La. R.S. 14:95(E). However, in State v. Sandifer, 95-2226 (La.

9/5/96), 679 So.2d 1324, the Court found that where the defendant was found

sleeping in the driver’s seat of a car with a gun on the passenger seat and a gun on

the floor, these guns were within his “immediate control.” See Blanchard, 776

So.2d at 1170 n. 9.6

6
By way of analogy, the Supreme Court has stated the “immediate control” requirement for
purposes of La. R.S. 14:64, the armed robbery statute, is satisfied when property taken is within the
presence of the owner, and that armed robbery may occur where property is not in actual contact with the
victim. See Blanchard, 776 So.2d at 1170 n. 9; see also State v. Cooks, 97-0999 (La. 1998), 720 So.2d
637, 652.

23-KA-446 8

In State v. Jordan, 06-187 (La. App. 5 Cir. 9/26/06), 938 So.2d 808,

rehearing denied, 06-187 (La. App. 5 Cir. 10/16/06), this Court noted, “As

evidenced by Blanchard, the nexus requirement of La. R.S. 14:95(E) is fact

intensive.”

In State v. Jarvis, 01-1277 (La. App. 4 Cir. 2/13/02), 811 So.2d 38, writ

denied, 03-248 (La. 2/13/04), 867 So.2d 677, the defendant was stopped for a

traffic violation. The defendant was asked to step out of his vehicle and, as he did

so, a bag of marijuana fell to the ground. When the officer reached over to pick up

the bag, he observed a revolver on the floorboard of the driver’s side of the vehicle.

Following a jury trial, the defendant was convicted of possession of a firearm

while in possession of marijuana, in violation of La. R.S. 14:95(E). Id. at 38. On

appeal, citing Blanchard, supra, the defendant alleged the district court erred in

failing to properly instruct the jury on the State’s burden of proof, as the trial court

did not instruct the jury that a connection was required between the possession of

the weapon and the possession of the drugs. Id. at 40. The appellate court

disagreed, stating that Blanchard was limited to cases of constructive possession.

Even though the defendant denied any knowledge of the weapon or drugs, the

court found the evidence established the weapon was on the floor at the

defendant’s feet at the time of the stop, and thus, was in his immediate control

prior to his stepping out of the vehicle. Id. at 41.

In State v. Thompson, 06-474 (La. App. 3 Cir. 11/8/06), 943 So.2d 621, 622,

writ denied, 06-2959 (La. 9/14/07), 963 So.2d 993, when both the drugs and the

firearm were in the defendant’s immediate control before being questioned by an

officer, the State was not required to prove a nexus between possession of a

firearm and possession of drugs even though the defendant was not in actual

possession of the firearm once he stepped out of his vehicle and was being

questioned. Id. at 621. The State was, however, “required to prove [the defendant]

23-KA-446 9

knowingly possessed the gun and the drugs.” Id. at 627. On appeal, the reviewing

court found that the evidence presented at trial proved that the defendant had

knowledge of the firearm found in his vehicle, as he informed police of its

location. The court also found that the evidence proved the defendant had guilty

knowledge of the drugs. Id.

Similarly, in State v. O’Brien, 17-922 (La. App. 3 Cir. 4/14/18), 242 So.3d

1254, writ denied, 18-0663 (La. 2/18/19), 265 So.3d 769, the defendant—like

defendant in the instant case—was not in actual possession of the firearm, but had

it within arm’s reach when he was apprehended by the police. Id., 242 So.3d at

1259. An item can be construed as being in a defendant’s immediate control if it is

in the area from within which he might gain possession of a weapon or destructible

evidence or within arm’s reach of the defendant’s person. Id., 242 So3d at 1267.

Finally, in State v. Blow, 55,449 (La. App. 2 Cir. 2/28/24), -- So.3d --, 2024

WL 821254, the defendant alleged the district court erred in failing to instruct the

jury that the State had to prove a nexus between the defendant’s simultaneous

possession of a firearm and the drugs discovered hidden in his sock at the city jail.

At trial, the investigating police officer testified that the firearm, located only one

foot away, was in the defendant’s immediate control when he first observed the

defendant sitting on concrete steps. On appeal, the reviewing court held that,

because the facts presented by the State at trial, through the testimony of the

investigating police officer, were that the firearm was within the defendant’s reach

and immediate control, such an instruction was not warranted. Moreover, the

Court held that, if given, the instruction would have caused unnecessary confusion

to the jury. Id., -- So.3d. at *4.

In the instant case, the State’s evidence showed that defendant

acknowledged ownership of the vehicle, the firearm found underneath the driver’s

seat, and the marijuana. Based on the evidence adduced at trial, we find, as did the

23-KA-446 10

district court, that the State was not required to establish a nexus between

defendant’s simultaneous possession of the firearm and the drugs found in the

same car as the firearm. Both the gun and the drugs were located in defendant’s

car, under the driver’s seat and within defendant’s reach, and were in defendant’s

immediate control when Officer Taylor first initiated the stop. As held by the

Supreme Court in Blanchard, and subsequently followed by reviewing courts, the

prosecution is only required to show a nexus when the defendant has constructive

possession of the firearm; such an instruction is not necessary if the firearm is

found to have been within the defendant’s physical possession or immediate

control. Blanchard, 776 So.2d at 1173. Here, given the facts presented by the

State at trial, we find the evidence did not support a jury charge that the State’s

burden of proof was that set forth in Blanchard. The district court, therefore,

properly charged the jury.

For the foregoing reasons, defendant’s conviction and sentence are affirmed.

AFFIRMED

23-KA-446 11

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
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
APRIL 24, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-KA-446
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE ELLEN SHIRER KOVACH (DISTRICT JUDGE)
MATTHEW R. CLAUSS (APPELLEE) THOMAS J. BUTLER (APPELLEE) BERTHA M. HILLMAN (APPELLANT)

MAILED
HONORABLE PAUL D. CONNICK, JR.
(APPELLEE)
DISTRICT ATTORNEY
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053