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Ervin v. State

Supreme Court of Mississippi, En Banc

April 24, 2014

CHARLES ERVIN a/k/a CHARLES D. ERVIN a/k/a MICHAEL ERVIN a/k/a CHARLES DARNELL ERVIN
v.
STATE OF MISSISSIPPI

Page 1054

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 09/09/2011. TRIAL JUDGE: HON. JEFF WEILL, SR. TRIAL COURT ATTORNEYS: LESLIE R. BROWN, SHANNON COGHLAN.

FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: JUSTIN TAYLOR COOK, GEORGE T. HOLMES.

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER, JOHN R. HENRY, JR.

KING, JUSTICE. WALLER, C.J., DICKERSON, P.J., LAMAR, KITCHENS AND CHANDLER, JJ., CONCUR. RANDOLPH, P.J., AND COLEMAN, J., CONCUR IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. PIERCE, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J.

OPINION

Page 1055

NATURE OF THE CASE: CRIMINAL - FELONY

KING, JUSTICE.

¶1. A jury convicted Charles Ervin (" Charles" ), a convicted felon, of armed robbery and felon in possession of a handgun following the armed robbery of the Healthy Body Store. Police were able to identify Charles as a suspect after his brother, also a convicted felon, pointed the police in Charles's direction. At trial, the trial court gave a flight instruction over the objection of the defendant. The jury found Charles guilty, and the trial court sentenced him and included a gun enhancement in the sentencing. This appeal followed. Because the trial court improperly limited the defense's cross-examination of a key State witness, this Court reverses Charles's convictions and remands the case to the trial court for a new trial.

FACTS

¶2. On September 2, 2010, the Healthy Body Store on the corner of Northside Drive and Livingston Road was robbed at gunpoint. The store manager, Martha Duffy, was the only person working at the store at the time. A man walked past the store, then walked back to the store and entered it. He asked for a product, then walked up and down the store aisles. He then made his way back up to the front of the store, pointed a gun at Duffy, and demanded money. After she gave him money, he made a few more demands, ordered Duffy under the desk, and departed. As soon as he left the store, Duffy called 911. She described the robber as wearing black shorts, a black shirt, and a baseball cap, and described the gun as a dark-colored handgun. The police arrived quickly and canvassed the area.

¶3. Canvassing the area led the police to a house on Brinkley Drive, close to the store, where they spoke with Linda Stapleton. Stapleton told police that a man fitting the description of the robber had come to the door and asked for " Gary" and that she informed the man that " Gary" was not there. The conversation with Stapleton led police to a house on Douglas Avenue, also close by.[1]

¶4. At the house on Douglas Avenue, police encountered Michael Ervin (" Michael" ), also known as Ray Ray. When police arrived at his house, Michael was wearing black shorts and was putting on a red shirt. Michael was not sweating, nor was he out of breath. He informed the police that he had been at home all day. He also informed them that his brother Charles had been at the house on Douglas Avenue approximately thirty minutes prior to the officers' arrival.[2] The police eventually took Michael to the police station for further investigation.[3] During the police interview of Michael at the police station, he allegedly stated that Charles also goes

Page 1056

by the name Ray Ray.[4] He also repeated that he had seen Charles at the Douglas Avenue house approximately thirty minutes prior to the arrival of the police.

¶5. Martha Duffy was also taken to the police station immediately after the robbery. While there, Duffy picked Charles's photograph out of a photo lineup. After she picked Charles's photograph out of the lineup, the police placed Michael in a room with secured mirror glass, and asked Duffy if Michael was the man who robbed her. She indicated that Michael was not the man who robbed her. On September 24, 2010, more than three weeks after the robbery occurred, federal marshals arrived at Charles's apartment and arrested him. When they arrived, Charles went into the attic, from which there was no exit. The record contains no evidence that Charles knew of the charges for which he was being arrested. On September 26, 2010, Charles allegedly went to the hospital while in custody, where he allegedly escaped from the security guard assigned to guard him.

PROCEDURAL HISTORY

¶6. On February 2, 2011, the State indicted Charles for armed robbery, including that he used or displayed a firearm during the commission of the armed robbery, and for being a felon in possession of a firearm. Trial was set for summer of 2011. On June 3, 2011, the State obtained a second indictment against Charles, this one for escape, based on his alleged September 26, 2010, escape from custody at a hospital. Then, on July 27, 2011, the State obtained a third indictment against Charles for the same circumstances. This indictment was a three-count indictment and included the armed-robbery charge, the felon-in-possession-of-a-firearm charge, and the escape charge. The three-count indictment was assigned to a different judge than were the first two indictments. The State then elected to pursue the armed-robbery and felon-in-possession charges under the original indictment, instead of the three-count indictment.

¶7. Among the State's witnesses at trial was Richard Stevenson, the former detective who had interviewed Michael at the police station. The defendant attempted to cross-examine Stevenson on the personal information that Michael had given him, based on an NCIC [5] printout and a witness location form filled out by Stevenson. Specifically, the defendant was attempting to show that Michael had used multiple different social security numbers and birthdates, including Charles's. The theory of the defense was essentially that Michael committed the robbery and then attempted to pin it on Charles. Through Stevenson, the witness location form, and the " all over the map" NCIC report that Stevenson received on Michael, the defendant wanted to show that Michael was " known to give false information. He's used his alias three different times" and that " the accuracy of this detective's investigation is an issue." The State objected to this line of questioning, and the court sustained the objections, stating that it did not see the relevance of the line of questioning. At one of the two bench conferences on the issue, the following occurred:

Q: What -- what do you show for Michael Ervin's date of birth?
BY MS. COGHLAN: Again, Your Honor, same -- same objection.

Page 1057

BY MS. BROWN: I think -- I think when you see -- when I ask the next question, you'll understand.
BY THE COURT: Well, before we get there, I'll have to sustain that. Michael Ervin is not on trial and I just ...

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