State v. Ervin

747 So. 2d 109, 1999 WL 735851
CourtLouisiana Court of Appeal
DecidedSeptember 22, 1999
Docket32,430-KA
StatusPublished
Cited by9 cases

This text of 747 So. 2d 109 (State v. Ervin) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Ervin, 747 So. 2d 109, 1999 WL 735851 (La. Ct. App. 1999).

Opinion

747 So.2d 109 (1999)

STATE of Louisiana, Appellee,
v.
Tony Ray ERVIN, Appellant.

No. 32,430-KA.

Court of Appeal of Louisiana, Second Circuit.

September 22, 1999.

*111 Amy C. Ellender, Louisiana Appellate Project, Counsel for Appellant.

Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Tommy J. Johnson, Bruce D. Dorris, Asst. Dist. Attys., Counsel for Appellee.

Before NORRIS, C.J., and STEWART and KOSTELKA, JJ.

NORRIS, Chief Judge.

The defendant, Tony Ray Ervin, who was 15 years of age at the time of these crimes and tried as an adult, was found guilty of two counts of armed robbery, a violation of La. R.S. 14:64, by a unanimous jury. Ervin was sentenced to the two concurrent nine-year sentences, without benefit of probation, parole or suspension of sentence. His convictions and sentences are affirmed.

Facts

On January 22, 1998, the Huntington High School football team was having its end-of-the-year banquet at the Holiday Inn. At about 10:00 p.m., after the banquet had ended, Robert Fallon, Dustin Martin, Travis Bates and Matt Angle were standing out in the parking lot next to Fallon's white 1995 Dodge Neon and Martin's 1997 Chevrolet pick-up truck. They were approached by Ervin and Larry Smith, who asked them for a ride; they told Ervin and Smith that they had no room for them in the vehicles, but that they were welcome to ride in the back of the pick-up truck. All of the victims testified that Ervin and Smith then turned their backs, reached under their coats, pulled out chrome plated guns, aimed at them and demanded that they give them their cars. The victims backed away; Smith got into Fallon's Neon, Ervin got into Martin's truck and they left the Holiday Inn parking lot with the stolen vehicles. The victims then ran into the Holiday Inn and called the police.

Rasheika Reed, Smith's former girlfriend, testified that she was with Smith and Ervin on the night of the robberies. Reed and her sister were driving her car and following the two boys in Smith's car as they approached the Holiday Inn. At some point after they passed the Holiday Inn, the boys got out of Smith's car and told her to drive it home and let her sister drive her car home. At that point, Reed switched cars and Smith and Ervin began to walk toward the Holiday Inn parking lot.

Reed pulled up the road, parked and watched Smith and Ervin walk across the parking lot and talk to four males. Reed saw Ervin and Smith get into a white car and a pick-up truck which they drove back to her house. Reed followed them to her house, got out of her car and went into the house for a few minutes, then, at the request of the boys, got back into her car and followed Ervin and Smith to a subdivision in Keithville. She waited in the car while Ervin and Smith took the tires, rims *112 and stereo from the car and put them into her car; she took Smith, Ervin and the stolen items back to her house. She did not know what happened to the stolen items after she got back to her house.

Detective Ronnie Gryder was assigned to investigate these armed robberies and was called out to the scene. He spoke first to Officer C.M. Eichenholtz of the Shreveport Police Department, who had spoken with each of the victims separately and had gotten a description of both the vehicles and the suspects. Det. Gryder then spoke with the victims and got the same description of the suspects that had been given to Eichenholtz and the same version of the events that the victims testified to at the trial. Based on this information and names later supplied by the victims, Det. Gryder discovered that two of the suspects were Smith and his girlfriend Reed. From his conversations with these individuals on January 29, 1998, he learned that Ervin had also been involved, so he brought him in for questioning as well.

Det. Gryder questioned Ervin, who was 15 years old, in the presence of his mother, after advising him and his mother of his rights using a juvenile rights form. After Ervin agreed to give a statement, he initially denied any involvement in the armed robberies. However, upon being told that Det. Gryder had already spoken to Smith and Reed and knew that he was with them on the night of January 22, 1998, Ervin admitted that he was with Smith and Reed and that he was riding in Smith's car when they passed by the Holiday Inn. Ervin stated that Smith saw the Neon and told him that he wanted that car. Smith then stopped his car, a white Cadillac, and told Reed to drive it home. Smith and Ervin crossed the parking lot, asked for rides, were turned down and then pulled guns and told the victims to give them their vehicles. Ervin admitted to having and using a .25 caliber automatic gun, which Smith gave him before the robbery. He told Det. Gryder that he took the pick-up truck and that he returned the gun to Smith after the robberies were over.

Ervin, who was 16 years of age at the time of trial, testified on his own behalf. He vehemently denied any involvement in the armed robberies and told the jury that he was arrested at his home by the police and handcuffed and brought down to the police station in the early morning hours of January 29, 1998. He testified that he confessed to the crimes because he was under arrest and handcuffed when questioned[1] and he was afraid of the police. He believed that he would be able to go home if he admitted a part in the crime. Ervin further stated that all of the victims and the other state witnesses who testified at the trial, including Reed and Det. Gryder, were lying in an effort to keep him in jail.

The jury found Ervin guilty of two counts of armed robbery. Following a sentencing hearing during which Carla Ervin, Ervin's mother, and Cynthia Denise Bloomer, a friend of the family, testified, the trial judge sentenced him to two concurrent nine-year sentences, without benefit of parole, probation or suspension of sentence. After a motion to reconsider was denied this appeal followed.

Law and Analysis

By his first assignment of error, Ervin contests the sufficiency of the evidence. He does not dispute that an armed robbery took place that evening. However, he urges that there was insufficient evidence presented at trial to identify him as the person who committed the armed robberies.

To challenge a conviction based on the insufficiency of the evidence, a defendant should proceed by way of urging a motion for acquittal or a motion for post verdict judgment of acquittal. La.C.Cr.P. art. 778; La.C.Cr.P. art. 821. However, Ervin failed to assert either of these motions. *113 Despite this procedural defect, the Louisiana Supreme Court has permitted the review of the case on appeal, even if a motion to this effect was not properly raised, when it has been briefed pursuant to a formal assignment of error. State v. Edwards, 400 So.2d 1370 (La.1981).

The standard of appellate review for sufficiency of evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Bellamy, 599 So.2d 326 (La.App. 2d Cir.), writ denied, 605 So.2d 1089 (1992).

In cases involving a defendant's claim that he was not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable probability of misidentification in order to carry its burden of proof.

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Cite This Page — Counsel Stack

Bluebook (online)
747 So. 2d 109, 1999 WL 735851, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ervin-lactapp-1999.