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State v. Carter

Court of Appeals of Louisiana, Fifth Circuit

July 29, 2015

STATE OF LOUISIANA
v.
ERVIN CARTER

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ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 13-4695, DIVISION " J" . HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING.

AFFIRMED; REMANDED.

PAUL D. CONNICK, JR., DISTRICT ATTORNEY, Twenty-Fourth Judicial District, Parish of Jefferson; TERRY M. BOUDREAUX, ANNE M. WALLIS, ASSISTANT DISTRICT ATTORNEYS, Gretna, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE.

JOSEPHINE P. HELLER, ANDRE R. BELANGER, ATTORNEYS AT LAW, Baton Rouge, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.

Panel composed of Judges Robert M. Murphy, Stephen J. Windhorst, and Hans J. Liljeberg.

OPINION

ROBERT M. MURPHY

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[2015-99 La.App. 5 Cir. 2] Defendant, Ervin Carter, appeals his convictions for robbery while armed with a dangerous weapon, violations of La. R.S. 14:64 and La. R.S 14:64.3. For the reasons that follow, we affirm defendant's convictions and sentences and remand for revision of the Louisiana Uniform Commitment Order.

STATEMENT OF THE CASE

Defendant, Ervin Carter, was charged in a bill of information[1] by the Jefferson Parish District Attorney's Office with eight counts of robbery while armed with a dangerous weapon, in violation of La. R.S. 14:64 and La. R.S 14:64.3. Defendant pled not guilty to all charges and filed several pre-trial motions, including motions to suppress evidence and confessions. Following a jury trial, defendant was found guilty as charged on all counts. Defendant's Motion For A New Trial and Motion For Post-Verdict Judgment of Acquittal regarding counts five through eight were both denied, and he was sentenced concurrently to 99 years on each armed robbery charge, and a consecutive five-year sentence was imposed pursuant to La. R.S. 14:64.3. On September 12, 2014, defendant filed a timely pro se motion for appeal that was granted.

FACTS

The State presented evidence at trial to show that defendant committed the following four armed robberies in Jefferson Parish: (1) Advance Auto Parts at 7150 Westbank Expressway on July 28, 2012 (count one -- Ron Carpenter; count [2015-99 La.App. 5 Cir. 3] two -- Ferdinand Francis); [2] (2) Advance Auto Parts at 2414 Belle Chasse Highway on August 9, 2012 (count three -- Raymond Reimann; count four -- Tina Nickleson); (3) Radio Shack[3] at 5257 Veterans on June 19, 2013 (count five -- India Sever; count six -- Eric Hernandez), and; (4) Radio Shack at 1200 Clearview on June 24, 2013 (count seven -- Ciarrion Matthews; count eight -- Lamberto Parulan, Jr.). The State also presented evidence that defendant committed another armed robbery at a Radio Shack in Mobile, Alabama, on May 22, 2013.

Advance Auto Parts/July 28, 2012

Detective Brandon Veal testified that on July 28, 2012, he was employed by the Jefferson Parish Sheriff's Office in the Patrol 3rd District. On that date, he responded to an armed robbery call at an Advance Auto Parts on the Westbank Expressway. There were two victims on the scene, Ron Carpenter and Ferdinand Francis.[4] Detective Veal interviewed them and learned that $2,082.00 was taken from the store.

Ferdinand Francis testified that he was employed by Advance Auto on July 28, 2012, and on that night he worked with his supervisor, Ron Carpenter. After 8:30

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p.m., two individuals entered the store and one of them asked Francis to show him a radar detector. After going back to the counter, the man reached behind his back and pulled out a chrome revolver and told Francis that " this was a robbery." Neither one of the two men wore masks. Francis lay on the floor while Carpenter opened the safe. The second man did not appear to have a firearm, and he never spoke at all to Francis. After robbing the safe, the man directed Francis to open the [2015-99 La.App. 5 Cir. 4] register at which time the money was taken out of it. Francis and Carpenter were ordered to go to the back of the store. The store had taken video surveillance of the robbery, which was shown to the jury. Francis said that after the robbery he was shown a police lineup, from which he identified a suspect.

Ron Carpenter testified that on July 28, 2012, he worked at Advanced Auto Parts in Marrero, with Ferdinand Francis. Carpenter's testimony was consistent with that of Francis regarding the details of the robbery. Carpenter recalled that the man who asked about the radar detectors was the same man who pulled the gun and asked to have the register opened. The gunman was a light skinned black male, approximately six foot two inches tall and 240 pounds. Carpenter explained to the gunman where all the money in the store was kept. After handing all of the money in the store over, the " dark-skinned black male" asked Carpenter and Francis for their cell phones and the gunman told them to walk to the back of the store. The two employees stayed in the back of the store for approximately 10 to 15 minutes before Carpenter walked back to the front of the store, retrieved his cell phone and called 911. He met with officers when they arrived. Approximately one year after the robbery, Detective Cedric Gray showed Carpenter two photographic lineups, and he identified one suspect out of the second lineup.

Detective Cedric Gray testified that he had been employed by the Jefferson Parish Sheriff's Office and was assigned to the Robbery Section on July 28, 2012, the date the Advanced Auto Parts was robbed. Following the robbery, Detective Gray met with Carpenter and Francis, and obtained surveillance video from the store's regional manager. There were no leads in the case for several months, until Detective Gray's commander showed him two photographs that reportedly identified suspects in the Advanced Auto Parts robbery. Detective Gray compared the photographs to the video from July 28, 2012, and saw resemblances between [2015-99 La.App. 5 Cir. 5] the two men in the photos and the video. Detective Gray then compiled a lineup, which included the two men shown in the photographs, and showed these to Carpenter and Francis. Francis made an identification of defendant as the person who had robbed him and Carpenter, in the second lineup that was presented to him by Detective Gray. Similarly, when Carpenter was shown the second photo lineup, he identified defendant as the man who had drawn the gun and robbed him and Francis.

Advance Auto Parts/August 9, 2012

Officer Jace Pellegrin testified that he worked for the Gretna Police Department on August 9, 2012, when he responded to an armed robbery call at an Advanced Auto Parts at 2414 Belle Chasse Highway. When he arrived at the store he learned that the two employee victims were " Tina" and " Raymond" . Officer Pellegrin noted that within the store there was an empty cash till on a counter near the register, an open safe in the back of the store, and phone lines inside of the store that had

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been cut. Officer Pellegrin interviewed the two employees and crime scene photographs were taken. Eventually Detective Richard Russ took over the investigation from Officer Pellegrin.

Tina Nickleson testified that on August 9, 2012, she worked an evening shift at Advanced Auto Parts in Gretna with Raymond Reimann. Prior to the shift on that date, her store had been made aware of an armed robbery that had taken place at an Advanced Auto Parts in Marrero, and photos of the suspects in that robbery had been transmitted to her store. That evening, her store was robbed by a " light-skinned male" with a gun who had asked to purchase steering fluid. A second darker-skinned male, who had been standing in the back of the store, came over and stood over Nickleson while the other robber took Reimann to open the store's safe; however, the safe had a ten-minute time delay. The robbers took the night [2015-99 La.App. 5 Cir. 6] deposit from Reimann, and walked to the back of the store where they told him to kneel down. Nickleson and Reimann were told by the robbers to stay on the floor for ten minutes, otherwise they would be shot. When the two men exited the store, Nickleson used her phone to call 9-1-1.

Nickleson said that she was not shown a photographic lineup of the robbers until almost a year after the robbery. However, at some point she saw an article online that contained the photos of two men, who she recognized as the robbers of her store. After being shown a photographic lineup by police, she identified defendant as the robber who had held the gun. Video surveillance of the robbery of Nickleson's store was shown to her at trial, and she narrated the events. She testified that she had an unobstructed view of the gunman's face.

Raymond Reimann testified that he was an employee of Advanced Auto Parts on August 9, 2012. His description of the details of the robbery corroborated those in Nickelson's testimony. Reimann identified defendant in court as the man who asked to purchase the power steering fluid. Approximately one year after the robbery, Reimann was shown a photographic lineup. Prior to that, however, Nickelson sent him an article about two people who robbed stores in Jefferson Parish. From the two pictures attached to that article, Reimann recognized one of the men as the gunman in the robbery of his store. Again, Reimann identified defendant in court as the gunman. When shown a first photographic lineup by police, Reimann was unable to identify an individual with 100% certainty, although one person in the lineup looked familiar. In the second lineup shown to him by Detective Russ, Reimann identified the gunman with 100% certainty. Reimann identified the defendant in court as the gunman. In court, Reimann also identified defendant from the surveillance tapes recorded on the day of the robbery of his store.

[2015-99 La.App. 5 Cir. 7] Detective Richard Russ testified that on August 9, 2012, he was working in the Gretna Police Department's Criminal Investigations Division. On that date he investigated an armed robbery at an Advanced Auto Parts store on Belle Chasse Highway. He interviewed two victims on the scene, Tina Nickleson and Raymond Reimann, and took statements from them. While no suspects were immediately identified, in July of 2013 Detective Russ was contacted by Detective Paul Smith, with the Jefferson Parish Sheriff's Office Robbery Division, and advised that two individuals, Woodrow Martin and Ervin Carter, were believed to be connected to the Advanced Auto Parts robberies. Detective

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Russ constructed photographic lineups of the two suspects and later showed them to the two victims. Raymond Reimann identified defendant as the gunman in the robbery in the second photographic lineup that Detective Russ presented to him. Similarly, Tina Nickleson identified defendant from one of the photographic lineups and Woodrow Martin in the other photo lineup.

Radio Shack/June 19, 2013

Eric Hernandez testified that he was employed by Radio Shack[5] on June 19, 2013, and worked with India Sever in the store on that date. Hernandez testified that near closing time he was taking the trash out to a dumpster behind the building, when a man with a gun jumped out from behind a trash can and forced him back inside the store. A second man was with the gunman. Hernandez had never seen the gunman before, but described him as an African American of medium height, approximately six feet tall. The two [2015-99 La.App. 5 Cir. 8] robbers checked to see if the store was clear of customers, and then one of the robbers went into the front of the store to " grab Miss Indi." Hernandez and the first gunman were in the area where the high priced merchandise was kept in the store, known as " the cage." The two robbers brought mesh bags from their car and began to fill the bags with items from the store. At that point, India was back in the cage with Hernandez, while the two robbers continued filling up the mesh bags. India and Hernandez had both been restrained with " zip lock ties" with their hands behind their backs. The robbers took money from the cash register drawer and exited the store. Hernandez untied his " zip ties" and India's hand ties, checked that the robbers were gone and that the doors were locked and then called 9-1-1.

After the police arrived, Hernandez was shown a photographic lineup, but he was not able to identify anyone. He was then shown a second photographic lineup of suspects, and he identified a single individual as the person who followed the first gunman into the store.

India Sever testified that she worked the late shift at the Radio Shack store on Veterans Boulevard on June 19, 2013, with Eric Hernandez. Near closing time, Sever was at a desk near the front of the store while Hernandez took out the store's trash. She was checking her phone for messages and, when she looked up, a man was holding a gun in front of her face. He demanded that she empty the cash register, which she did, placing the money inside of a plastic Radio Shack bag. The gunman then walked Sever back toward the cage, where she saw mesh bags full of cell phones and other electronics. The gunman told India to put " Beats" [6] headphones in the bag, and asked if there were any other computer laptops. Sever and Hernandez were then instructed to lie face down on the floor, and their hands were zip tied. The robbers exited through the back door, and Sever and Hernandez waited for approximately 15 minutes before freeing themselves from the zip ties and ...


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