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On Appeal from the Twenty -Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana
Docket No. 609899
Honorable William H. Burris, Judge Presiding
Bertha M. Hillman Counsel for Defendant/ Appellanl Covington, Louisiana Derrick J. Cousin
Derrick 1. Cousin Defendant/ Appellant Angie, Louisiana Pro se
Warren L. Montgomery Counsel for Plaintiff/ Appellee District Attorney State of Louisiana J. Bryant Clark, Jr. Assistant District Attorney
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filed a motion to suppress statements, which the trial court denied. . After a trial by
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or suspension of sentence on count two, to be served concurrently. Defendant no;2
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had a technical issue. She got up to turn her alarm off. When she returned to her
1 Effective August 1, 2015, the crime of "aggravated rape" was renamed " first degree rape." 2015 La. Acts No. 256, § 1. Any reference to the crime of aggravated rape is the same as a reference to the crime of first degree rape. LSA- R. S. 14: 42( E).
2 Herein, we will refer to the victim by her initials only. See LSA-R. S. 46: 1844(W).
I While G. W. does not specify as such, based on her testimony, apparently her home phone landline stopped working. Her home alarm system had distinct sirens for a break- in and phone interruption. The siren that woke her up was related to her phone line. Prior to noticing a prowler, she used her cell phone to try to check on her home line, but her phone company was closed.
was on the phone with 911, the individual entered her home and began kicking h(M
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with G. W., they observed damage to her bedroom dol The officers viewed footage
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The officers conducted a National Crime Information Center inquiry and
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5 Consistent with testimony presented at trial, photographs of the scene taken after the incident, including the interior and exterior of the victim' s home, were admitted into evidence during trial.
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rape.
He argues that no reasonable juror could conclude that he entered the victima
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came in direct contact with the victim.?
A conviction based on insufficient evidence cannot stand, as it violates due
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State proved the essential elements of the crime, and defendant's identity as the perpetrator of that crime, beyond a reasonable doubt. SgLe LSA-C. Cr. P. art. 821( B),
State v. Oliphant, 2013- 2973 ( La. 2/ 21/ 14), 133 So. 3d 1255, 1258 ( per curiam); State
L. Ed. 2d 141 ( 2022). When circumstantial evidence forms the basis of the conviction, t evidence, "*assuming every fact to be proved that the evidence tends to prove ... mu
exclude every reasonable hypothesis of innocence."" LSA- R. S. 15.-438; Oliphant, So. 3d at 1258. Further, when the jury reasonably rejects the hypothesis of innocencTg 131
7 When issues are raised on appeal contesting the sufficiency of the evidence and alleging one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. to v. Hearold, 603 So. 2d 731, 734 ( La. 1992); State v. Duhon, 2018- 0593 ( La. App. 1 Cir. 12/ 28118), 270 So. 3d 597, 609, writ denied, 2019- 0124 ( La. 5/ 28/ 19), 273 So. 3d 315. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U. S. 40, 43, 101 S. Ct. 970, 972, 67 L. Ed. 2d 30 ( 1981). However, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the assignments of trial error to determine whether the accused is entitled to a new trial. Hearold, 603 So. 2d at 734; Duhon, 270 So. 3d at 609.
The due process standard •!`.. not require the reviewing court to determine mup
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subject to appellate review; therefore, an appellate court will not reweigh evidence I
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Attempted first degree rape, in pertinent part, is the specific intent to commit 11 • 1 ; Iigp 111 •' of -
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8 Specific criminal intent is that state of mind that exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. LSA- R. S. 14: 10( l).
shall be immaterial whether, under the circumstances, he would have actuall ilIccomplished his purpose."' LSA- R. S. 14- 27( A). However, mere preparation to commE ill'' pi ilillill i 1 1 will 1 1 11IIIIIIi:
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Specific intent can be formed in an instant. Specific intent need not be proven as
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been broken for years, though she did have a lock on her side gate. G. W. denied knowirim
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The victim"s bedroom door had a visible shoe print and grass clippings on it. Captal ummerlin testified that he had been in law enforcement for almost twenty-four years
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investigation of a burglary that turned into a violent crime, such as a burglar entering a
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the search warrant at defendant's residence. In addition to the knife, the officeil
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officers entered, and the gloves and shoes were found in proximity to defendant's bed. The knife was recovered from the kitchen sink.
Detective Lopez and Detective Miceli conducted the post -arrest interview of defendant. Defendant admitted to having a history of heavy drinking, stating that he would sometimes "'black out" and make "'mistakes" during which he did not have control over, was not aware of, and was unable to recall his actions.
Defendant confirmed that he consumed four to five beers on the night of the offense. After repeatedly denying going to the victim' s home, defendant ultimately admitted to going to the victim' s residence as shown in the surveillance footage. He
stated he did not recall why he was going there but was adamant that he did not go there to hurt the victim because he would never hurt anyone. He initially denied going there to take anything. When further questioned, defendant ultimately indicated that he ""might have" been there to ""take something or steal something" but said he could not say for certain because he was " under the influence" and " unaware" of his own actions. Defendant further admitted that he " made a mistake" and had a " moment of weakness" in going to the victim' s home.
Defendant detailed how he gained entry into the residence. Specifically, he noted that after entering the gate, as he could not gain entry through the front door, he then went to the sliding door in the back, which was already open. He denied taking anything or seeing anyone while inside of the home. He stated that he left after hearing the victim say " police, police." Defendant denied being armed with a knife, initially stating that he thought he had a '" piece of screwdriver" but then stating it was a " piece of stick" or a
branch. He further denied cutting the phone lines, stating, " I don' t remember that."
Defendant said that he knew the victim prior to the incident, describing her as "'a sweet lady" and " a friend." He stated that he would " talk to her every day." Defendant denied
going to G. W. s home for any sexual or companionship purposes. He also denied trying to force G. W.' s bedroom door open.
Special Agent Tim Reichenbach, a retired federal agent and former STPSO officer, testified regarding defendant's prior conviction. Specifically, on April 23, 1992, around 2: 11 a. m., Officer Reichenbach was dispatched to the report of a rape at the Speedway
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perpetrator came into the restroom and raped her. When she started screaming, he told
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she did not see the knife ® believed the perpetrator's claim to be armed. The victiml 111111
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986, 992, writ denied, 2021- 00401 ( La. 10/ 1/ 21), 324 So3d 1050. Further, if believe63 the testimony ofthe victim alone, with no other evidence, is sufficient to prove the
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With regard to aggravated burglary, the State was required to prove beyond a reasonable doubt the following four elements: ( 1) the unauthorized entering of any inhabited dwelling; ( 2) where a person is present; ( 3) with the intent to commit a felony or any theft therein; ( 4) if the offender is armed with a dangerous weapon. LSA- R. S. 14: 60( A)( 1). Herein, the State presented to the jury the victim's 911 call recording of the incident in progress, the victim's testimony, the surveillance footage, and defendant's
9 Corporal Angelina Cook with the sex offender registry division of the STPSO testified that defendant is listed on the sex offender registry roster. She noted that to the best of her memory, defendant was released from prison on August 1, 2018.
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Attempted First Degree Rape' O
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stated he had no idea or recollection as to what his intentions were, yet somehow was
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officer posing as a twenty -eight-year-old female with a fictitious eleven-year-oLe
daughter.
After the undercover officer sent the defendant a picture of an eleven-yeal
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10 As indicated, the State was required to prove beyond a reasonable doubt the following four elements of attempted first degree rape: ( 1) the specific intent to commit anal, oral, or vaginal sexual intercourse with a person; ( 2) without that person' s lawful consent; ( 3) where the offender does an act for the purposes of
and tending directly to accomplish one or more of those acts of intercourse; ( 4) and the victim is prevented from resisting the act because the offender is armed with a dangerous weapon. LSA- R. S. 14: 27; LSA- R. S. 14: 42( A)( 3).
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accouterments ( rope, tape, a gun, etc.), from his car. As the defendant was being Jill 11:
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Although there was absolutely no physical contact in that case, the Prine couE tviortm; l; 1 111; 1!
constituted an act for the purpose of and tending directly toward commission Q
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11 Louisiana Code of Evidence article 412. 2, titled " Evidence of similar, crimes, wrongs, or acts in sex offense cases" pertinently reads:
A. When an accused is charged with a crime involving sexually assaultive behavior ..., evidence of the accused' s commission of another crime, wrong, or act involving sexually assaultive behavior .. may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.
12 Prior to defendant's trial herein, the trial court held a hearing on the admissibility of the LSA- C. E. art. 412. 2 evidence of defendant's 1993 conviction of forcible rape and ruled that it was admissible to establish defendant's intent when he entered the victim' s home. On appeal, defendant did not assign error to the admission of the LSA- C. E. art. 412. 2 evidence. Article 412. 2 merely requires that the defendant has committed another act involving sexually assaultive behavior. Efty, 2010 WL 1838321 at * 9.
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conduct with a victim of similar age was highly probative of the requisite intent for thIs crime).
Finally, the jury heard defendant's own statements in which he repeatedly
he, as he admittedly had done in the past, made a mistake and had a moment Q
raise the inference of a "' guilty mind"' and has been recognized as indicative of an
in this case, the jury apparently found that the evidence, in its entirety,
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specific intent exists is a fact question for the jury. Ordodi, 946 So. 2d at 661.
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When viewed in the light most favorable to the State, as required on appellate eview, a rational trier of fact could have found that the •' proved all elements C1
Livill So. 3d at 1043- 44. Accordingly, we find no merit in pro se assignment • error number one.
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In pro se assignment of error number two, defendant argues that the two
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no unique action separates the two crimes. He argues that aggravated burglary does not necessarily require proof of an additional fact beyond the facts required to support a conviction of attempted aggravated •! He notes that the special verdict form shows
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I, § 15. Double jeopardy provisions protect an accused not only from a seconM I Il llr il!llrl ill
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double jeopardy fall within the analytical framework set forth in Blockburger anM
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As detailed in addressing pro se assignment of error number one, the crimes of
fefinitions, are clearly not the same offenser, as they do not contain identical elements.
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sexual intercourse with a person; aggravated burglary does not. See LSA- R. S. 14: 60( A)( 1); LSA- R. S. 14: 27; LSA- R. S. 14: 42( A)( 3).
Based on the foregoing, it is clear that the crimes of aggravated burglary and attempted first degree rape are two separate and distinct offenses, requiring separate and distinct evidence for conviction. Each offense required proof of an additional fact not
required by the other offense. Specifically, the conviction of aggravated burglary required proof of an unauthorized entry, and the conviction of attempted first degree rape required proof of an attempt at sexual intercourse. Therefore, applying the Blockburger test, we do not find that defendant's prosecution, convictions, and sentencing for both crimes violated double jeopardy. We find no error in the trial court's denial of defendant's motion to quash. Thus, we find no merit in pro se assignment of error number two.
COUNSELED ASSIGNMENT OF ERROR NUMBER ONE In counseled assignment of error number one, defendant argues that the trial court erred in denying a challenge for cause of a prospective juror on panel one, Charles Williams. Defendant asserts that Mr. Williams' responses revealed his prejudice regarding a defendant"s right not to testify. Defendant contends that Mr. Williams firmly believed that an innocent person would want to defend himself by testifying and that Mr. Williams could not ignore this belief, even if instructed to do so. Defendant argues that Mr. Williams' responses as a whole indicate that he could not be a fair and impartial juror.
Louisiana Code of Criminal Procedure article 797 provides, in pertinent part, that the State or the defendant may challenge a juror for cause on the ground that the juror is not impartial, whatever the cause of his partiality. LSA- C. Cr. P. art. 797( 2). To prove
there has been error warranting reversal of the conviction, the defendant need only show
1) the erroneous denial of a challenge for cause, and ( 2) the use of all his peremptory challenges.
State v. Lane, 2015- 0064 ( La. App. 1 Cir. 11/ 9/ 15), 2015 WL 6951423, * 13
unpublished), writ denied, 2015- 2248 ( La. 3/ 24/ 16), 190 So. 3d 1190. In to v.
Magee, 2011- 0574 ( La. 9/ 28/ 12), 103 So. 3d 285, 307, cert. denied, 571 U. S. 830, 134 S. Ct. 56, 187 L. Ed. 2d 49 ( 2013), the Louisiana Supreme Court recognized that even
where a defendant ultimately exhausts his peremptory challenges, he must use one of his remaining peremptory challenges curatively to remove the objectionable juror or
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It is well settled that before a confession or inculpatory statement can bit
introduced into evidence, it must be affirmatively shown that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats,
inducements or promises. See LSA- R. S. 15: 451. Confessions or inculpatory statements obtained by any direct or implied promises, however slight, or by the exertion of any improper influence, are involuntary and inadmissible as a matter of constitutional law.
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Since the general admissibility of a confession or inculpatory statement is a
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recited in a motion to suppress evidence, such is not the case with the motion to suppress
a confession or statement.
In such a situation, the State has the burden of proving thl
admissibility • the confession or statement. LSA- C. Cr. P. art. 703( D). The State must
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The Supreme Court in Miranda stated that if the individual indicates in any
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So. 2d at 739. Factors considered in the assessment include: who initiates further
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his MirandaD rights and signed a waiver of rights form. Defendant did not seerM
or being at G. W.'s home. Around twenty minutes into the interview, defendant said, Yall gonna book me or what? ... I aint got no more to say." Around thirty minutes
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13 Defendant was informed of his right to remain silent, that any statement he did make could be used as evidence against him, and that he had a right to the presence of an attorney, either retained or appointed. He signed a waiver of rights form stating these rights and further stating that he understood his rights, including the right to decide at any time to exercise his rights and not answer any questions or make any statements.
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As noted, defendant relies on Hebert on appeal. The defendant thereir
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Leger. In this case, defendant was never made any promises or given any indication that he could leave if he made a statement. Furthermore, there was no unambiguous invocation by defendant of his right to terminate all questioning, where defendant stated one time, in passing, during the course of a one hour and fifty -one -minute intervieW14 that he had no more to say and where defendant never ceased speaking to the officers, but instead continued answering their questions. Thus, we agree with the trial court's assessment that Hebert is distinguishable from the instant case.
14 The recording begins at 6: 25 a. m. The interview itself started when the officers entered the room at 6: 28 a. m. and ended at 8: 17 a. m., after which defendant remained in the room alone until 8: 51 a. m., at which point the recording ends. Prior to the cessation of the interview at 8: 17 a. m., there was a thirty - minute interval between 7: 40 am. and 8: 11 a. m., during which defendant sat in the room alone before being briefly taken out of the room. The one hour and fifty -one -minute approximation above includes the approximate three minutes defendant waited for the interview to begin and the thirty -minute interval.
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similar to this case, the defendant stated, '" I don't have nothing else to say," during a
police interview. The Louisiana Supreme Court found that, given the totality of ttg 1 11 Ili! 1111 1 ! _ IF I!, 1 1111• 11 11111: 11 M381MM
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review of the interview supports these findings, that defendant was not coerced,
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abuse of discretion in the trial court's denial of the motion to suppress the statements.
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