[Copyrighted Material Omitted]
APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 513-933, SECTION " D" . Honorable Frank A. Marullo, Judge.
Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, PARISH OF ORLEANS, New Orleans, LA, COUNSEL FOR APPELLANT/STATE OF LOUISIANA.
Holli Herrle-Castillo, LOUISIANA APPELLATE PROJECT, Marrero, LA, COUNSEL FOR DEFENDANT/APPELLEE.
Court composed of Judge Dennis R. Bagneris, Sr., Judge Paul A. Bonin, Judge Rosemary Ledet).
Rosemary Ledet, Judge
[2014-1016 La.App. 4 Cir. 1] This is a criminal appeal. The State seeks review of the district court's ruling granting the defendant's motion to quash the bill of information based on double jeopardy. For the reasons that follow, we reverse and remand.
STATEMENT OF THE FACTS
On August 24, 2012, at 1:00 a.m., a male subject armed with a semiautomatic firearm walked into Gene's Po-Boys, located at 1040 Elysian Fields Avenue in New Orleans, Louisiana. The subject pointed the gun at the workers behind the counter and demanded cash from the register. The subject fled with approximately $300 in cash.
New Orleans Police Department (" NOPD" ) Detective Steve Nolan recovered video surveillance of the incident. Based on still images from the video, Detective Nolan assembled a wanted poster. Based on the still images, Nathaniel Butler was developed as a suspect and identified from line-ups as the perpetrator by a victim and a witness of the robbery.
[2014-1016 La.App. 4 Cir. 2] STATEMENT OF THE CASE
On November 5, 2012, Mr. Butler was charged by bill of information with one count of armed robbery with a firearm, a violation of La. R.S. 14:64.3, and one count of possession of a firearm by a felon, a violation of La. R.S. 14:95.1. Thereafter, the district court, on its own motion, severed the two counts. The district court noted that it severed the counts to prevent a post-conviction problem.
In June 2013, a two-day jury trial was held solely on the armed robbery with a firearm count. At trial, the State presented a video, an audio CD, four photo lineups, and five witnesses. At the close of the trial, the jury found Mr. Butler not guilty of the armed robbery with a firearm charge.
On the day after the trial concluded, a pre-trial conference was held. On that same date, Mr. Butler filed a motion to quash the felon in possession of a firearm count based on a double jeopardy violation. His double jeopardy argument was two-pronged. First, he argued that the issue of whether he possessed a firearm had been determined by the jury and that any subsequent prosecution would constitute double jeopardy. Second, he argued that a second trial on the felon in possession of a firearm count would violate the law of
res judicata --collateral estoppel. In support, he cited Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Following a hearing, the district court ...