State v. Bourgeois

361 So.3d 1138

STATE of Louisiana v. Galvin Marcus BOURGEOIS

NO. 22-KA-418

Court of Appeal of Louisiana, Fifth Circuit.

April 26, 2023

COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Honorable Bridget A. Dinvaut, Henri P. Dufresne

COUNSEL FOR DEFENDANT/APPELLANT, GALVIN BOURGEOIS, Bertha M. Hillman, Thibodaux

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

CHEHARDY, C.J.

Appellant seeks reversal of the district court's March 23, 2022 judgment claiming that the enhanced sentences imposed upon him as a habitual offender are constitutionally excessive. For the following reasons, we affirm the district court's judgment and remand the matter with instructions.

PROCEDURAL HISTORY

On July 9, 2018, the St. John the Baptist Parish District Attorney filed a bill of information charging appellant, Galvin Marcus Bourgeois, with armed robbery with a firearm, a violation of La. R.S. 14:64 and La. R.S. 14:64.3 (count 1); accessory after the fact to second degree battery, a violation of La. R.S. 14:25 and La. R.S. 14: 34.1 (count 2); carjacking, a violation of La. R.S. 14:64.2 (count 3); and, possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1 (count 4). Bourgeois was arraigned on July 18, 2018, and pled not guilty.

After trial commenced on April 13, 2021, the State amended the bill of information to enter a nolle prosequi as to count 2, accessory after the fact to second degree battery. At the conclusion of the three-day trial, the jury returned a unanimous verdict of guilty as charged on counts 1, 3, and 4. At that time, the trial judge ordered a pre-sentence investigation ("PSI") report.

On June 14, 2021, the district court sentenced Bourgeois to thirty years imprisonment at the Department of Corrections without benefit of parole, probation or suspension of sentence on count 1, with a consecutive five-year hard labor sentence without benefits for the enhancement on count 1. The district court further sentenced Bourgeois to ten years imprisonment at hard labor without benefit of parole, probation or suspension of sentence on count 3, and to fifteen years imprisonment at hard labor without benefits on count 4. The sentences on all counts were ordered to run concurrently, except for the five-year sentence imposed for use of a firearm in the armed robbery, which was ordered to run consecutively to the three other sentences imposed. ¹

Following a multiple bill hearing on March 14, 2022, the district court adjudicated Bourgeois as a third-felony offender on the charges of armed robbery with a firearm and carjacking, and a second-felony offender on the charge of a convicted felon in possession of a firearm. On March 23, 2022, after vacating the original sentences, the district court sentenced Bourgeois to 80 years as a third felony offender on count 1, armed robbery with a firearm, with an additional five years for the firearm enhancement; 25 years as a third felony offender on count 3, carjacking; and 20 years as a second felony offender on count 4, convicted felon with a firearm. All sentences were ordered to run concurrently.

Bourgeois timely appealed the habitual offender sentences imposed claiming that the sentences are unconstitutionally excessive, and under the facts of this case, the sentences constitute cruel and unusual punishment.

FACTUAL BACKGROUND

Trial Testimony of the Victim, Calvin Alexis

According to the victim, Calvin Alexis, on May 16, 2018, after exiting a convenience store in Hammond, Louisiana, and getting into his vehicle, he was approached by a black male, later identified as defendant, Galvin Bourgeois, who asked for a ride to a nearby Holiday Inn located on Highway 51. Bourgeois offered to pay Alexis for the ride. Alexis agreed, took Bourgeois’ money and placed it in the glove compartment. Prior to exiting the parking lot, a white male, later identified as Cody Bezet, approached Alexis's vehicle. Bourgeois told Alexis that his friend, Bezet, also needed a ride, and Alexis agreed. Bourgeois rode in the front seat with Alexis, and Bezet rode in the back seat of the vehicle.

Alexis testified that as he pulled out of the convenience store parking lot, he was instructed to proceed driving straight. Alexis described that when he looked towards the back of the vehicle, Bezet held a gun pointed at him. Bezet instructed Alexis to drive down Highway 51, which took them through a swampy area. When they reached a curve in the road, having recognized the danger of driving any further, Alexis drove the vehicle off to the side of the road. According to Alexis, Bezet instructed him to exit the vehicle, so he put the vehicle in park, but let the motor continue to run. Bezet then got out of the vehicle, came around it with the gun still pointed towards Alexis, and demanded that Alexis give him all of his money. Alexis claimed that after turning over $16, along with the money previously given to him by Bourgeois, he grabbed the gun from Bezet. A struggle for the gun ensued, with Bezet yelling for Bourgeois to exit the vehicle and help him. The gun then fell to the ground. Alexis dove for it and fired a "warning shot." The bullet hit his vehicle. Alexis explained that when he attempted to fire the gun again, the gun jammed. At that point, Bourgeois came around the front of the vehicle and began hitting Alexis in the face, causing him to fall to the ground. Both Bezet and Bourgeois continued to hit and "jump on" Alexis. Alexis stated that Bezet and Bourgeois then got into his vehicle and drove away, leaving him unconscious on the side of the road without money or a vehicle.

Alexis confirmed at trial that he did not actually see Bourgeois with any weapons, and further, described him as "a little bit nervous" to be there. He agreed that it appeared as if Bezet was the "guy in charge."

Alexis testified that after the incident, he was transported via ambulance to the hospital, where he learned that he had sustained an injury to his eye and bruises to his stomach and arms. He stated that when his vehicle was returned to him, it would not start. There was bullet hole in his vehicle that was caused when he fired Bezet's firearm.

Testimony of Officer Frank Jackson

Officer Frank Jackson of the St. John the Baptist Parish Sheriff's Office stated that on May 6, 2018, he was dispatched to a call regarding a person on the side of the road at "old Highway 51 and Farm Road," who appeared to be unconscious. Officer Jackson testified that when he arrived at the scene, he observed a black, unresponsive male, later identified as Alexis, lying on his back with severe swelling to the right side of his face. EMS was dispatched and transported Alexis to the hospital to be treated for his injuries. Officer Jackson stated that he spoke with Alexis after he was transported to the hospital. He described severe swelling to Alexis’ face, and that his eye appeared to have doubled in size.

Testimony of Detective Carolina Pineda

Officer Carolina Pineda, a detective with the St. John the Baptist Parish Sheriff's Office testified that she was the lead investigator on the case. She positively identified Bourgeois in open court. Officer Pineda stated that she went to the hospital and learned from Alexis that he had suffered an orbital fracture to his right eye as a result of the incident. She also learned from Alexis that earlier that night, he had agreed to provide a black male and a white male a ride from the EZ Stop to a nearby "hotel on old 51." Later, surveillance video was obtained from the EZ Stop, and still images were subsequently shared with deputies, who through their prior dealings, identified the black suspect as Bourgeois. The video showed a man resembling Bourgeois approach Alexis. Also, from this video, Alexis was able to positively identify himself, his vehicle, and Bourgeois as the person who started hitting him in the face. A photograph of Bourgeois was obtained from the St. John the Baptist Parish database and from that a six-person photographic lineup was generated. Alexis identified Bourgeois from the photographic lineup as the man who approached him at the convenience store asking for a ride, and the person who rode in the front seat of his vehicle.

Detective Pineda testified that she reviewed the surveillance video, which was played for the jury. In the video, she narrated that on May 6, 2018, at approximately 5:43 p.m., Alexis could be seen sitting in his white Toyota Corolla. Detective Pineda identified the black male seen in the video as Bourgeois, and the white male as Bezet. Bourgeois could be seen in the front passenger seat of Alexis's vehicle and reaching for something in his hand, which was later discovered to be a working handgun. According to Detective Pineda, Bourgeois admitted in his statement that he possessed a gun at the time, which was confirmed to be the same weapon used to rob Alexis and that was fired into the vehicle. She further testified that after learning details of the crime from Alexis, a license plate search of the area on ALPR ("automated license plate reader") showed that the vehicle headed northbound towards Hammond on I-55. It revealed that the vehicle stopped later that night at a business called Monte Carlo in Garyville, Louisiana. Detective Pineda stated that Bourgeois was driving the vehicle at the time. Additionally, she testified that surveillance video was recovered from Monte Carlo, which showed that on May 6, 2018, at 10:19 p.m., Bourgeois, who was alone, was driving Alexis's vehicle. Bezet was located driving in a Jeep. According to Detective Pineda, from the video it did not appear that Bourgeois was operating under the influence of another person.

Detective Pineda testified that Alexis's vehicle was recovered by the state police at the Huddle House located in LaPlace, Louisiana. She explained that video surveillance obtained from this location revealed that the vehicle was left in the parking lot...