On Tuesday, 11/16/10, Mr. Ervine sat in Judge Hyde's 238th Judicial District Court facing the second degree felony charge of possession of a controlled substance with intent to deliver which had the potential to send him to the slammer for 2 to 20 years.
The prosecutors were Tim Flathers and Stacy Street, and Mr. Ervine's defense attorney was David Rogers. The voir dire process began as the lawyers for each side wheedled away at the 44 potential jurors to figure out to whom to apply their 10 peremptory challenges and who they could try to get the judge to strike for cause. They are looking for the people they think are most persuadable, and anyone who sits though the whole process without saying a word had the best chance of ending up on the jury, according to Mr. Rogers.
It was a revealing look at a random sampling of Midland citizenry. ( I was one of those 44, but not one of the 12.) We were asked if any of us or someone close to us had been charged with a crime, and many hands went up. Same thing when asked whether we worked with or were related to someone who works in law enforcement. Same thing when asked if we or someone close to us had ever had a problems with illegal drugs. So in this random sampling there were many people affected in some way by the war on drugs.
Then there was the multiple choice question from Mr. Flathers asking which of these two choices is the most important thing about criminal justice: punishment or rehabilitation. Most of the pool members picked punishment which probably pleased the prosecution to no end.
So 12 were selected, some men and some women. All white.
Slinging Crack in the Flats
Here's the way it went down. At around 7:00 pm on May 1, 2009, police patrol Officer Jesse Roblado was traveling in his police car North on Lamesa Rd., and he glanced to the right in the direction of Dorothy's Place which is a bar a block over on Lee Street. See map. He testified that he saw a black guy and a white woman with dirty blond hair, and they both reached into their pockets and exchanged something. Officer Roblado saw the woman get into the passenger side of a car after the exchange, and the car drove off. He followed the car for about five minutes before going back to Dorothy's Place where he spotted the black guy standing outside drinking a beer. He called for backup, Officer Bradley Alexander arrived, and they both searched Mr. Ervine. They patted the guy down and found a pill bottle containing some white rocks and five $20 bills. Only then did Officer Roblado turn on the video camera in his car.
They arrested Joe Erving for loitering and drinking alcohol in a public place. And the money, the pill bottle, and 20 white rocks were logged in as evidence at the police department property room.
Officer Roblado admitted on cross examination that the arrest for drinking and loitering wasn't valid. And at some point before the trial, probable cause for the search changed from a routine search for weapons accompanying an arrest to the officer acting on what he thought was a drug buy.
Mr. Roger's repeated objections that the search violated Mr. Ervine's 4th amendment rights were overruled. So one of the questions the jurors had to answer was whether the police had probably cause to search Mr. Ervine.
Weighing the drugs
The weight of the controlled substance makes a difference in the level of crime. But here's the odd thing about that. Crack cocaine is made by mixing it with something else, like baking powder, cooking it until it's hard, then breaking up the cake into rocks of crack. So the rock isn't pure cocaine. However, the weight of the entire thing, cocaine, adulterants, dilutants and impurities, is what determines the drug weight for the crime category.
Dennis Hambrick, chemist with the DPS, testified that he looked at the rocks, picked out two or three and tested them. The results said they contained cocaine. The entire collection of rocks weighed in at 3.13 grams, and that placed this crime into the 2nd degree felony category of more than one gram and under four grams.
Getting from "possession" to "intent to deliver"
The mere possession of a controlled substance is a criminal offense, but not nearly as serious as possession with intent to deliver. So the prosecutor had to prove what someone intended to do. And in this case they did it with the testimony of another police officer, Lt. Seth Herman, who after some background questioning, was approved by the judge as an expert in narcotics investigation.
His testimony as an expert was that the typical user would have one or two rocks on him loose in his pocket. And the user would have some paraphernalia like a pipe and some steel wool for getting the drug into his system. His expert testimony was that someone with 20 rocks and no paraphernalia had an intent to deliver.
Verdict
The prosecution witnesses testified for about three hours, and as soon as the jury was seated after lunch, the defense rested having introduced no evidence and put on no witnesses. Both sides presented their closing arguments -- the prosecution went over the evidence with Mr. Flathers calling the crime scene "Crack Central Station."
Mr. Rogers emphasized that Mr. Ervine was arrested for drinking a beer outside, something which wasn't illegal, they didn't check the pill bottle for prints, and there were numerous mistakes in the police reports, all of which should raise some doubt about probable cause to search Mr. Ervine. Furthermore, if someone had 20 rocks of crack on them they may have been just getting ready for the weekend not necessarily trying to sell them.
So the jury heard all the evidence and arguments then went off to deliberate whether Mr. Erving was not guilty, guilty of possession, or guilty of possession with intent to deliver. After about a half hour they returned the verdict of guilty of the harsher of the two possibilities, possession with intent to deliver.
Punishment hearing
Mr. Ervine had elected before trial to let the judge assess the punishment rather than the jury, possibly because the judge has the option of giving him probation whereas the jury could not because Mr. Ervine had been previously convicted of a felony. So the jury was dismissed, and the punishment hearing began without them.
Mr. Flathers read Mr. Ervine's rap sheets from Ector and Midland Counties, and they contained about seven offenses in Ector County and roughly nine in Midland County. They included theft, assault, DWI and a lot of driving-with-suspended-license charges which would seem to follow a DWI conviction. The most serious one was a felony, injury to a minor, ten years ago.
The defense witness was Calvin Riggs, the Associate Minister at Greater Ideal Baptist Church, who testified that Mr. Ervine helped with the cook and clean-up lessons they teach to single parent children. He wasn't able to give a clear answer to whether a person convicted of possession of crack cocaine with intent to deliver would be a good role model for the children.
Mr. Ervine took the stand and in tearful testimony pleaded for leniency because he has two of his six children living with him. The two living with him are 9 and 10 years old. Two others, age 6 months and 2 years, live with someone else. And two are adults.
He did, however, admit that he committed the crime but said it was a "pass-off" implying that he wasn't really a drug dealer but was merely the delivery guy.
The judge ordered a pre-sentencing report which should be available next week, and he said he might hold a sentencing hearing on or around November 29.
What should happen to him?
So what do you do with a guy like this? He's 49 years old and no stranger to drugs, but he's too old to be involved with something like this. There was nothing in the testimony that told us that he had any work skills. And he's caring for two kids.
Most of the people in the jury pool said they thought "punishment" was the most important thing about the criminal justice system. But is society going to be any better off if Mr. Ervine goes to the big house for 2 to 20 years for what is essentially a victimless crime? Or would it be better to put him under community supervision where he has to adhere to strict rules and report regularly?
Judge Hyde will certainly have a tough choice ahead of him.
I dunno, I wouldn't consider being called "The Dennis Leary of comic reviewing" to be an insult of any sort.
Posted by: bags | April 14, 2012 at 11:06 AM