State v. Ervin

1

STATE OF LOUISIANA v. MAURICE ERVIN

No. 23-KA-11

Court of Appeals of Louisiana, Fifth Circuit

August 30, 2023

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 22-1064, DIVISION "E" HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING

COUNSEL FOR PLAINTIFF/APPELLEE,

STATE OF LOUISIANA

Honorable Paul D. Connick, Jr.

Thomas J. Butler

Andrea F. Long

Kristen Landrieu

Stephen Downer

COUNSEL FOR DEFENDANT/APPELLANT,

MAURICE ERVIN

Gwendolyn K. Brown

DEFENDANT/APPELLANT,

MAURICE ERVIN

In Proper Person Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and John J. Molaison, Jr. Judge.

SENTENCE AND CONVICTION AFFIRMED; MATTER REMANDED

JJM

SMC

CONCURS WITH REASONS

MEJ

JOHN J. MOLAISON, JR., Judge.

The defendant/appellant, Maurice Ervin, appeals his convictions of two counts of armed robbery. For the reasons that follow we affirm his convictions and sentences. We remand to the trial court for the limited purpose of correcting the October 13, 2022 minute entry and UCO to state that the sentences are to be served at hard labor and without the benefit of parole, probation, or suspension of sentence.

PROCEDURAL HISTORY

On March 14, 2022, the Jefferson Parish District Attorney filed a bill of information charging the defendant, Maurice Ervin, with two counts of armed robbery in violation of La. R.S. 14:64. The defendant pled not guilty at arraignment.

The defendant was tried before a twelve-person jury on September 13 and 14, 2022, and at the conclusion of trial, the jury found the defendant guilty as charged on both counts. On September 19, 2022, the defendant was sentenced for each count to fifty years imprisonment at hard labor with a consecutive five-year hard labor sentence for the firearm enhancement pursuant to La. R.S. 14:64.3(A). The sentences were ordered to run concurrently.

On September 20, 2022, the defense counsel filed a motion to reconsider the sentences, arguing that the defendant's sentences were excessive because he was a juvenile, his sentences should not have been imposed with the firearm enhancement, and he was entitled to parole eligibility as a juvenile offender pursuant to La. R.S. 15:574.4. On October 13, 2022, the trial court granted the defendant's motion to reconsider the sentences in part and denied it in part. The court vacated the portion of the sentences on each count to delete the consecutive five-year sentence for the firearm enhancement. The judge later stated, "Okay, so we agree his sentence is fifty years on each count to run concurrent with each other." The court denied the motion as to the claim that defendant's fifty-year-sentence on each count was excessive.

This timely appeal followed.

FACTS

At trial, Stanley and Isabel Cowley testified that on February 12, 2022, they were returning home in Mr. Cowley's white Lexus sedan when he pulled over in an empty lot on Hickory Avenue^[1] to take a photograph of the roof of a building. Mrs. Cowley testified that upon exiting the vehicle, her husband left his door ajar, and a young black man got into the driver's seat. When she turned her face to look at him, he put a gun "at [her] forehead." Mrs. Cowley explained that her cell phone was charging on the center console at the time, and he would not let her take the phone. When her husband opened the driver-side door, he was surprised by the young man who had entered their car. Mrs Cowley elaborated that as the car started to backup, her husband tried to fight him to get the gun away and to save her. The open door of the vehicle knocked Mr. Cowley down, rolling over part of his foot, and Mrs. Cowley was able to get out of the vehicle. A surveillance video depicting the robbery was played for the jury while Mrs. Cowley narrated the events in the video. Mrs. Cowley testified that after the assailant fled in their vehicle, she sat next to her husband on the ground and observed their vehicle traveling in the opposite direction than it initially fled. Someone called 9-1-1, the police arrived, and she gave a statement, then went to the hospital to be with her husband.^[2]

Mr. Cowley testified that he pulled over to take pictures of the shingles on the roof of a building. He elaborated that the roof of their home had been damaged by Hurricane Ida and he thought the shingles on the roof he stopped to photograph would look good on their home. Mr. Cowley explained that he walked about ten steps away from the passenger side of the vehicle to take the photograph. As he returned, he was not aware of anything occurring inside of his vehicle because his attention was on his phone. Mr. Cowley testified that after opening the door, he saw a black person wearing black clothes in his seat, and this person pointed a "black Glock" at him. Mr. Cowley reached into the vehicle, grabbed the barrel of the gun and the person's hand, and pushed the gun away. Once the vehicle started to move backwards and accelerated, he ran alongside it and was thrown to the ground by the driver-side door. The driver-side front wheel of the vehicle rolled over his left foot.^[3] Mr. Cowley laid down in the grass since he could no longer stand. Shortly afterward, he saw his vehicle speeding down the street in the opposite direction. He was transported by an ambulance to UMC hospital for treatment of his injuries. Mr. Cowley testified that he did not have any firearms in his vehicle that day. Mr. Cowley testified that following the incident, he had to get a new vehicle, and he received additional treatment for his injuries, which included a fracture in his left foot. In addition, he and his wife have had difficulty sleeping or would "wake up sweating" thinking about this incident.

Sarah Craig testified that on February 12, 2022, she and her mother were headed home when they noticed a white Lexus pulled to the side of the road on Hickory Avenue. Ms. Craig saw the driver, whom she described as an older white man standing outside of the vehicle, taking pictures of a building. As they drove by, she saw a "young African-American individual run behind [their] vehicle and hop into the driver's side of that Lexus." She called 9-1-1 once the individual began backing up the Lexus.^[4] While on the phone with 9-1-1, she and her mother followed the Lexus as it turned left onto Sauve and headed towards Jefferson Highway. Ms. Craig testified that when the Lexus made a U-turn on Paula, she was able to get a clear, unobstructed view of the driver. Ms. Craig also made a U-turn and continued to follow the Lexus. Ms. Craig then complied with the 9-1-1 dispatcher instruction to return to the scene. At the scene, Ms. Craig observed the frantic, female victim comforting her husband as they waited for an ambulance to arrive. Ms. Craig gave a statement to detectives. Ms. Craig identified the defendant in open court as the person she saw driving the Lexus.^[5]

Officer Michael Barnett, of the Harahan Police Department, testified that the Tiburon report^[6] showed a "suspicious person" call regarding "a black male with some kind of black hoodie or mask and a firearm" on Hickory Avenue and possibly at the apartments or residences. He testified that the dispatcher stated there were multiple calls, and "within two minutes of the original call," the call changed to a carjacking with injuries. Officer Barnett joined in the pursuit of the fleeing vehicle, on Hickory Avenue, which is a two-lane street, then onto Jefferson Highway. Officer Barnett testified that at one point during the chase, the defendant crossed over into the westbound lane of Jefferson Highway, traveling against the flow of traffic, in an effort to avoid a traffic jam. The officers were able to catch up to the vehicle when the vehicle hit a pole. Officer Barnett assisted in handcuffing the driver after he was pulled out of the vehicle, and he identified the driver as the defendant.^[7] The defendant was the only occupant of the vehicle.

Officer Barnett then proceeded to the scene of the carjacking where he was told by a witness that just before the carjacking, the assailant had entered his apartment more than once, and he appeared to be "looking for someone or something."

Sergeant Eric Crovetto, of the Harahan Police Department, testified that as he was responding to the call, he observed a white Lexus that matched the description of the vehicle and person involved in the carjacking. Sergeant Crovetto testified that the vehicle was traveling at a high rate of speed "going around on the sidewalk and on the grass, going around other vehicles." He testified that the driver came "very, very close" to the workers when he drove through a construction site. He further detailed that the driver was traveling eastbound in the westbound lanes of Jefferson Highway when he lost control, and hit a utility pole. After placing his own vehicle against the side of the Lexus to prevent the vehicle from moving, he removed the driver from the Lexus, and struggled to handcuff him. Sergeant Crovetto identified the defendant as the driver of the vehicle. A black Glock pistol and a black "beanie" were located inside the vehicle. Sergeant Crovetto testified that defendant was subsequently transported to the juvenile center.

Deputy Brian Kahrs, of the Jefferson Parish Sheriff's Office testified that he joined the police pursuit of the white Lexus in this case. The video from his body camera was played for the jury. The video depicts Deputy Kahrs' arrival just after the vehicle crashed and three officers struggling to place the driver in handcuffs. The video depicts Deputy Kahrs using a taser on the defendant twice. Deputy Kahrs explained that he used the taser because the defendant did not comply with commands to put his...