State v. Ellis

• Decision Date: 26 September 2007
• Docket Number: No. 42,520-KA.,42,520-KA.
• Citation: 966 So.2d 139
• Parties: STATE of Louisiana, Appellee v. Michael Anthony ELLIS, Jr., Appellant.
• Court: Court of Appeal of Louisiana — District of US

966 So.2d 139

STATE of Louisiana, Appellee v. Michael Anthony ELLIS, Jr., Appellant.

No. 42,520-KA.

Court of Appeal of Louisiana, Second Circuit.

September 26, 2007.

Louisiana Appellate Project, by W. Jarred Franklin, Michael Anthony Ellis, Jr., Metairie, for Appellant.

Paul J. Carmouche, District Attorney, John F. McWilliams, Jr., Lea R. Hall, Jr., Assistant District Attorneys, for Appellee.

Before WILLIAMS, STEWART and CARAWAY, JJ.

STEWART, J.

The defendant, Michael Ellis, was convicted of two counts of Armed Robbery with the use of a fire arm. After being adjudicated as a second felony offender, he was sentenced to 198 years at hard labor without benefit of probation, suspension of sentence or parole on each count. The defendant now appeals. The defendant's convictions and sentences are affirmed.

FACTS

On February 22, 2004, around 4:00 a.m., taxi driver Catherine Jones was picking up fares at the Hollywood Casino in Shreveport. Outside of the casino, Ms. Jones made eye contact with an individual sitting on a bench. Ms. Jones believed the person, later identified as the defendant, Michael Anthony Ellis, Jr., needed a ride. Ellis approached the taxi and got into the back passenger seat. The defendant informed Ms. Jones that his destination was the Villa Norte Apartments. Ms. Jones was familiar with the complex, and drove in that direction. During the ride, Ms. Jones noted that she felt comfortable with the defendant who was polite and well-mannered. Ms. Jones even took a cell phone call during the ride.

Once they arrived at the apartment complex, the defendant directed Ms. Jones to drive towards the back of the complex to an area that was somewhat remote and dimly lit. Ms. Jones stopped where instructed and told the defendant the amount of his fare. The defendant asked if Ms. Jones had change, and as she was handing the change to the backseat of the car, the defendant told her to look towards the back seat. Near the floorboard of the car, the defendant was holding a gun. The defendant demanded money, and after Ms. Jones gave him what was in her shirt pocket, the defendant demanded more. As Ms. Jones turned her head, she felt the gun touching her face. Ms. Jones did gather some additional money from a pouch and gave it to the defendant. To prove she did not have any more money, Ms. Jones showed the defendant a voucher she had for some of her earnings. Ms. Jones invited the defendant to take the voucher, but he did not. The defendant demanded Ms. Jones' cell phone which she refused to give to him. The defendant exited the car and walked a few steps before turning to wave and smile at Ms Jones. Ms. Jones was also threatened by the defendant to leave the area and not return or he would "get her." Ms. Jones immediately left the complex and returned to her company headquarters which was nearby. That night, Ms. Jones was interviewed by police.

The next day, another robbery was committed in similar fashion. On February 23, 2004, Voncille Francois, a taxi driver, was dispatched to pick up a fare at the Royal Inn on North Market Street in Shreveport. When she arrived, Ms. Francois did not notice anyone outside of the hotel, but did see someone come from the opposite direction of the hotel. The person later identified as the defendant entered the taxi, and told Ms. Francois that he needed to be taken to the Ville Norte apartments. When they arrived at the apartment complex, the defendant directed Ms. Francois to the back of the complex. When she stopped the taxi, the defendant told Ms. Francois to look to the back seat of the vehicle, and he brandished a weapon. The defendant demanded Francois' money and she complied. Ms. Francois only had $20.00 with her at the time. The defendant demanded more, but left the taxi after Ms. Francois indicated she did not have any more money with her. After the defendant left the taxi, he ran in an unknown direction.

Ms. Francois went to the front of the complex where police were dispatched in response to her call. A K-9 unit responded to the scene, and the dog was able to track a scent. The scent led to the Yorkshire Apartments on North Hearne, a short distance from where the crime occurred. As the K-9 and his handler, Corporal Cain, arrived at the Yorkshire Apartments, Corporal Cain was informed that the call requesting the taxi had come from apartment 1702 at the Yorkshire Apartments. The building was surrounded, and as officers attempted to enter the front door of the apartment, officers at the back of the building saw the window blinds moving and a leg appeared out of the window.

When a light was placed on the window, the person went back into the apartment. At the front door, the owner of the apartment allowed the officers into the apartment, and the defendant was seen inside. The officers apprehended the defendant and the apartment owner gave permission for the officers to search the apartment. In the defendant's girlfriend's room, officers found a shirt matching the description of the one worn by the perpetrator of the armed robbery and a gun. The defendant was arrested and a subsequent investigation linked both robberies to the defendant.

DISCUSSION

Sufficiency of Evidence

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La. App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

To convict a defendant of armed robbery, the state is required to prove: (1) a taking (2) of anything of value (3) from a person or in the immediate control of another (4) by the use of force or intimidation (5) while armed with a dangerous weapon. La. R.S. 14:64; State v. Jeselink, 35,189 (La.App. 2d Cir.11/2/01), 799 So.2d 684. A dangerous weapon is any instrumentality which, in the manner used, is calculated or likely to produce death or great bodily harm. La. R.S. 14:2(3). This court has viewed the crime of armed robbery with the use of a firearm under La. R.S. 14:64.3 as a more serious form of armed robbery for which the penalty range is effectively 15 to 104 years. State v. Smith, 40,894 (La.App. 2d Cir.7/26/06), 936 So.2d 255, writ denied, 2006-2113 (La.3/30/07), 953 So.2d 60; State v. White, 39,634 (La.App. 2d Cir.6/16/05), 907 So.2d 180. This court has also held that the crime of armed robbery with the use of a firearm must be charged by bill of information and proven to the jury. State v. Odell, 37,194 (La.App. 2d Cir.6/5/03), 850 So.2d 749. See State v. Jefferson, 40439 (La.App. 2d Cir.1/27/06), 920 So.2d 984 and State v. Adkins, 39,724 (La.App. 2d Cir.6/29/05), 907 So.2d 232, footnote 1.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Burd, 40,480 (La.App. 2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35; State v. Jones, 31,613 (La.App. 2d Cir.4/1/99), 733 So.2d 127, writ denied, 99-1185 (La.10/1/99), 748 So.2d 434; State v. White, 28,095 (La.App. 2d Cir.5/8/96), 674 So.2d 1018, writ denied, 96-1459 (La.11/15/96), 682 So.2d 760, writ denied, 98-0282 (La.6/26/98), 719 So.2d 1048.

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. State v. Powell, 27,959 (La.App. 2d Cir.4/12/96), 677 So.2d 1008, writ denied, 96-1807 (La.2/21/97), 688 So.2d 520.

Catherine Jones testified she was driving a taxi on February 22, 2004 sometime around 4:00 a.m. Ms. Jones was stationed outside of the Hollywood casino where she saw a young man, identified in court as the defendant, dressed in all black sitting on a bench outside of the casino. Ms. Jones stated she made eye contact with the individual and understood he needed a taxi. The defendant got into the taxi, and requested Ms. Jones take him to the Villa Norte Apartments. Ms. Jones was familiar with the apartments located on Fullerton Street near Hearne Avenue. Ms. Jones recalled that while en route to the defendant's destination, she felt comfortable with him in the vehicle. Ms. Jones stated she took a telephone call on her cell phone as they traveled.

Once they arrived at the apartment complex, the defendant directed Ms. Jones to drive to the back of the complex. According to Ms. Jones, this area was dimly lit and somewhat secluded. Ms. Jones stopped the car, turned on the inside lights of the vehicle and informed the defendant that his fare was $5.00. The defendant...