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State v. Ellender

Court of Appeals of Louisiana, Third Circuit

June 5, 2019



          James R. Lestage District Attorney - 36th Judicial District Richard Alan Morton Assistant District Attorney - 36th Judicial District COUNSEL FOR: Plaintiff/Appellee - State of Louisiana

          Martin E. Regan, Jr. Barry S. Ranshi Regan Law, P.L.C. COUNSEL FOR: Defendant/Appellant - Ramon L. Ellender

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Phyllis M. Keaty, Judges.


         Defendant, Ramon L. Ellender, appeals his conviction by a six-person jury for his fifth offense of driving while intoxicated. He was sentenced to fifty years at hard labor under the habitual offender statute. His appeal focuses on insufficiency of the evidence, excessive sentence, and an improper jury composition.

         We affirm his conviction and sentence.



         We must decide:

(1) whether there was sufficient evidence to convict Defendant;
(2) whether the trial court deprived Defendant of a twelve-person jury and unconstitutionally convicted him by a six-person jury; and
(3) whether Defendant's sentence is unconstitutionally excessive.



         Defendant, Ramon L. Ellender, was charged by Bill of Information with "Driving While Intoxicated, Fifth Offense," in violation of La.R.S. 14:98 and 14:98.4. A six-person jury unanimously found Defendant guilty as charged. The State filed a bill charging Defendant as a habitual offender under La.R.S. 15:529.1. Prior to jury selection, the State and Defendant stipulated to Defendant's four prior DWI convictions, which were not subject to the ten-year cleansing period.

         Defendant filed a "Motion for Arrest of Judgment," alleging that his conviction should be reversed and that he should receive a new, twelve-person jury trial because La.R.S. 14:98.4(C) requires individuals who receive probation, parole, or suspension of sentence on a prior DWI, fourth offense, to serve a hard labor sentence of not less than ten nor more than thirty years. The trial court found that Defendant was properly tried by a six-person jury. In its written reasons, the trial court noted that the State and defense counsel had discussed the makeup of the jury prior to selection, that La.R.S. 14:98.4(C) was never discussed, and that everyone agreed that the proper jury size was a six-person jury.

         The trial court, citing State v. Brown, 11-1044 (La. 3/13/12), 85 So.3d 52, ruled that Defendant had not waived his right to object to an improper jury composition because La.Code Crim.P. art. 859 lists errors in jury composition as a ground for arrest of judgment, an exception to the contemporaneous objection rule. The trial court further cited the supreme court's ruling in State v. Dahlem, 14-1555 (La. 3/15/16), 197 So.3d 676, which held that a similarly-situated defendant was not entitled to a twelve-person jury because the bill of information did not specifically charge him with the sentencing provision that required a hard labor sentence.

         Defendant then filed a "Motion for New Trial," as did his defense counsel. Following a hearing, the trial court denied both of the motions. After a hearing and multiple memoranda submitted by defense counsel and the State, the trial court issued a written ruling and adjudicated Defendant "a fifth felony offender subject to sentencing under La.R.S. 15:529.1." Subsequently, Defendant was sentenced to fifty years at hard labor, the first two years to be served without benefit of probation, parole, or suspension of sentence; the remainder to be served without probation or suspension of sentence; and the sentence to run consecutively with any other sentence that Defendant may have. Defendant was also fined $5, 000 as required by La.R.S. 14:98.4.

         Defendant filed a "Motion to Reconsider Sentence," alleging that his sentence was "excessive and based, at least partially, on evidence[] in dispute." The trial court denied the motion. The State also filed a "Motion to Reconsider Sentence," arguing that Defendant should have been sentenced under the habitual offender law as it stood when the offense was committed in 2015, not under the 2017 amendments to the law. Following a hearing, the trial court noted that Defendant's sentence, which remained unchanged, was imposed in accordance with the language of La.R.S. 15:529.1 as it stood at the time of the offense. The trial court noted:

So what that does for Mr. Ellender's case is it changes the sentencing range in his case from 20 to 60 years under the habitual offender law that took effect by the 2017 amendments to go back to the law in effect as of October of 2015, which makes the habitual offender sentencing range 20 to life.
The other thing it does, as long as the bill of information was filed prior to November 1, 2017, is it changes the cleansing period back to the ten-year prior cleansing period as opposed to the five-year cleansing period which took effect as of the 2017 amendment. And in this case the habitual offender bill of information was filed prior to that date; and, therefore, the ten-year cleansing period applies to Mr. Ellender's case. And most, if not all, of the legal arguments raised by the defense as to some of the prior convictions being within ten years but not within five years of one another is now a moot issue in the Court's opinion legally; because the cleansing period is back to one of ten years as it applies to Mr. Ellender's case.



         Evidence and Testimony

         The State's first witness was Ms. Mary Benson. Ms. Benson testified that on October 9, 2015, she was standing on the sidewalk on West North Street, when she saw a red truck speed past her followed by a "little grey car." She said she believed the grey car rear-ended the red truck before the car turned around and sped past her going in the opposite direction. She said she saw the grey car hit multiple signs near or on the road both times it passed, noting parts of the car came off when the vehicle hit the signs. Ms. Benson testified that there were signs on both sides of the street, noting "[w]hen he went up the street he knocked that sign down; and when he c[a]me back down the other side, on [the] other side where the school bus c[a]me down, the school bus sign, they tore that sign down; and that church sign, they tore it down." Ms. Benson clarified that "the car did all the damage." She identified Defendant as the person driving the grey BMW shortly after the incident, and she identified him in open court as the driver of the vehicle.

         Mary Benson's 911 Call

         Ms. Benson called 911 at 6:40 p.m. and told the operator that a white guy was driving a little BMW going around one hundred miles per hour. She stated that the BMW hit the back of a red Ford truck, turned around at the bank, then came back and almost tore up a woman's car. She stated that the bottom of the car should be torn up, and there was debris all over the road.

         Ms. Benson testified that she was about twenty to twenty-five feet away from the vehicle at the time of the incident, and she had no doubt that the Defendant was driving the BMW, "[f]ast, flying like a bat out of hell." Ms. Benson also identified Defendant in a six-man photo lineup roughly a year after the incident. On cross-examination, Ms. Benson testified that she knew "exactly what both [drivers] look[ed] like." Defense counsel then introduced video from Corporal Edward Kuzmik's body camera when the officer first spoke with Ms. Benson following her 911 call.

         Body Camera Footage of Corporal Kuzmik

         After discussing the sequence of events with Ms. Benson and the silver car parts stuck in the broken sign, Corporal Kuzmik entered his vehicle and proceeded to Defendant's residence where he was met by Sergeant Davidson, who told him they were taking Defendant to Ms. Benson for a possible identification.

         Sergeant John Davidson, a patrol shift supervisor for the DeRidder Police Department with twelve years of law enforcement experience, testified that he was dispatched to West North Street for a hit-and-run involving a silver BMW. He stated that he subsequently remembered a silver BMW parked on John Henry Jones Street, about two blocks from the scene of the incident. He testified that he and two other officers, Corporals David Stanard and Gene Clark, proceeded to where he knew the silver BMW was parked, which was Defendant's home. Reserve Officer Mike Perkins also responded to Defendant's residence shortly thereafter. They arrived at Defendant's residence on John Henry Jones Street less than fifteen minutes after responding to the location of the incident on West North Street.

         Upon arriving at Defendant's residence, they found a silver BMW with damage matching the description of the hit-and-run. Sergeant Davidson took photographs of the damage to the car which were later introduced into evidence. Sergeant Davidson testified that Defendant was the only person to make himself known at the residence on John Henry Jones. He noted that the engine of the BMW was still giving off heat while he was taking photos of it, indicating that it had been recently driven. Sergeant Davidson noted that the car had damage to the trim and front fender as well as a flat tire. He also noted that the car was still in drive, the windows were down, and the key was still in the ignition in the "on" position, indicating someone had turned it off just enough to kill the engine without totally disengaging. This was corroborated by Corporal Clark. Sergeant Davidson testified he left to assist another officer on a separate call but subsequently observed part of Corporal Kuzmik's interview with Defendant. He also stated that he was familiar with Defendant from having worked a prior call involving him, and that Defendant had previously worked around the police department as a trustee.

         Sergeant Davidson further testified that he believed Defendant was intoxicated, because he knew what Defendant was like when he was sober, and he was not acting sober. He testified that Defendant had an unsteady gait and that his speech appeared "a little off" during his interview. Corporal Clark testified that Defendant was unsteady on his feet and "had bloodshot, watery eyes . . . slurred speech and a strong odor of alcoholic beverages." ...

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