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118.3 Armed With Firearm Or Weapon: Defenses And Defense Theories

    118.3.1 Armed With Firearm Or Weapon: Defense Theory That Firearm Was Not Close At Hand And Readily Accessible
    118.3.2 Armed With Firearm Or Weapon: Unintentional Possession As Defense Theory
    118.3.3 Armed With Firearm Or Weapon: Requirement That Weapon Be “Within The Defendant’s Reach”
    118.3.4 Armed With Firearm Or Weapon: Defense Theory That Firearm Was Inoperable
    118.3.5 Armed With Firearm Or Weapon: Defense Theory That Weapon Was Unloaded
    118.3.6 Armed With Firearm Or Weapon: Additional Defenses And Defense Theories

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RATIONALE: Without an explanatory instruction the jury may improperly assume that an arming enhancement may be found even if the firearm was not readily accessible.

POINTS AND AUTHORITIES: "The phrase ‘when armed with’ means that the knife must have been either on the defendant’s person or that the knife must have been within the defendant’s reach. In addition, the defendant must have been aware of the presence of the knife." (WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 1340 [Possession Of A Swithblade Knife] comment p. 2 (University of Wisconsin Law School, 1999); see also State v. Fry (WI 1985) 388 NW2d 565, 577.)

    In People v. Bland (CA 1995) 10 C4th 991, 1002 [43 CR2d 77], the court held that an arming enhancement requires the jury to find that at some point during the commission of the crime the firearm was "close at hand for 'ready access' to aid in the [underlying offense]." (Bland, 10 C4th at 1002-03; see also People v. Balbuena (CA 1992) 11 CA4th 1136, 1139-40 [14 CR2d 640.) This requires that the firearm be "available for the defendant to put to immediate use to aid in the [crime]." (Bland, 10 C4th at 1003.) Hence, the relevant elements are knowledge, ready access of the weapon and a "facilitative nexus" between the weapon and the crime. (Bland, 10 C4th 1002-03; see also FORECITE National™ 117.3.5 [Use Or Carrying Of A Weapon Or Firearm: Lack Of Nexus Between The Weapon And The Crime As Defense Theory].)

    A sentencing enhancement which increases the range of punishment to which the defendant is exposed is subject to the due process (5th and 14th Amendments) and fair trial by jury (6th and 14th Amendments) provisions of the federal constitution.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.8].

CAVEAT: See FORECITE National™ 118.2.3 [Having Firearm Within Reach Does Not Conclusively Establish Arming].

    The term "armed with a firearm" means to knowingly carry a firearm or to knowingly possess a firearm which is close at hand and readily accessible] for immediate use in facilitating the crime of __________ (insert offense for which armed enhancement is charged).

[Source: FORECITE National™.]

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RATIONALE: Without an explanatory instruction the jury may improperly assume that even unintentional possession of a firearm is sufficient to find the arming enhancement.

POINTS AND AUTHORITIES: An essential element of a possession offense is that the possession be knowing and intentional. (See FORECITE National™ 56.2.13 [Possession: Knowledge Required Of Both The Presence And Nature Of The Contraband].) This element has been recognized in the context of firearm possession offenses. (See FORECITE National™ 107.3.1 [Possession Of Weapon By Exfelons: Lack Of Knowledge Or Intent As Defense Theory].)

    The same principle should apply to the carrying of a firearm enhancement. The first sample instruction below is adapted from the instruction requested in People v. Jeffers (CA 1996) 41 CA4th 917 [49 CR2d 86], which the appellate court held that, though "flawed in some respects..., was a reasonable attempt to articulate a valid legal principle supported by the evidence." (Jeffers, 41 CA4th at 925.)

    See also FORECITE National™ 56.3 [Momentary, Innocent, Justifiable, Unwitting Or Accidental Possession].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.8].

    When a person carries a firearm without knowing that he or she has the firearm, and later learns that he or she has the firearm, the person does not automatically become liable for a weapon enhancement upon acquiring knowledge of the weapon. The person becomes liable for the enhancement only if he or she intentionally carries the weapon without taking immediate steps to relinquish possession of it.

[See generally People v. Jeffers (CA 1996) 41 CA4th 917 [49 CR2d 86].]

    An essential element of the crime of carrying a concealed weapon is that the defendant must have knowingly carried the weapon.

    Consider the defendant's theory that [he] [she] was unaware of the weapon in light of all the evidence when deciding whether the defendant knowingly [carried] [possessed] a weapon.  If you have a reasonable doubt that the defendant knowingly [carried] [possessed] a weapon you must give the defendant the benefit of that doubt and return a verdict of not guilty.

[Cf. MICHIGAN CRIMINAL JURY INSTRUCTIONS 11.7 [Defense--Defendant Unaware Of Weapon] p. 11-15 (ICLE, 2nd ed. 1999).]

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    See FORECITE National™ 118.3.1 [Armed With Firearm: Defense Theory That Firearm Was Not Close At Hand And Readily Accessible].

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    See FORECITE National™ 106.4.4.6 [Armed With Firearm: Defense Theory That Firearm Was Not Operable (Inoperable)].

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PRACTICE NOTE: See Smith v. State (FL 1993) 617 So2d 444 [defendant could not be convicted of carrying concealed firearm, where firearm in his automobile was unloaded and hence not "readily accessible for immediate use"].

    See also FORECITE National™ 106.4.4.7 [Deadly Weapon Defined: Defense Theory That Weapon Was Unloaded].

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PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)