State v. Cockerham

671 So. 2d 967, 1996 WL 114359
CourtLouisiana Court of Appeal
DecidedMarch 14, 1996
Docket95-KA-0172
StatusPublished
Cited by12 cases

This text of 671 So. 2d 967 (State v. Cockerham) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cockerham, 671 So. 2d 967, 1996 WL 114359 (La. Ct. App. 1996).

Opinion

671 So.2d 967 (1996)

STATE of Louisiana
v.
Raymond COCKERHAM.

No. 95-KA-0172.

Court of Appeal of Louisiana, Fourth Circuit.

March 14, 1996.

*969 Graham Daponte, New Orleans, for defendant/appellant, Raymond Cockerham.

Harry F. Connick, District Attorney and Susan M. Erlanger, Assistant District Attorney of Orleans Parish, New Orleans, for appellee, the State of Louisiana.

Before CIACCIO, WALTZER and MURRAY, JJ.

MURRAY, Judge.

On November 25, 1985 Raymond Cockerham was convicted of two counts of armed robbery which occurred on May 7, 1985 and May 30, 1985. He was sentenced on April 1, 1986 to serve thirty years at hard labor without benefit of parole, probation, or suspension of sentence on each count, to run consecutively. The convictions and sentences were affirmed in an errors patent appeal. State v. Cockerham, 497 So.2d 796 (La.App. 4th Cir.1986). On April 14, 1994, in 94-K-0337, this Court ordered the trial court to grant the relator an out of time appeal pursuant to Lofton v. Whitley, 905 F.2d 885 (5th Cir.1990).

FACTS

At approximately noon on May 7, 1985, a man, later identified as Raymond Cockerham, entered Castro's Grocery Store. He picked up a can of tomato paste, asked how much it was, then put it back on a shelf. He then approached the cashier Caroline Gordon, told her to be quiet, and to give him the money. He was armed with a black old fashioned hand gun. After receiving the money, he ran out of the store, past Paul Thomas and the owner of the grocery.

On May 30, 1985, Ms. Gordon was again working as a cashier at Castro's Grocery. On that date, at approximately, one o'clock p.m., Mr. Cockerham again entered the store. Ms. Gordon recognized him and told Paul Thomas "I'll be, the same little bastard gonna do it again." Mr. Cockerham then held a gun on Ms. Gordon and Mr. Thomas and demanded money out of the cash drawer. After obtaining the money, Mr. Cockerham pulled out the drawer itself and searched the cash register. He then fled. Ms. Gordon called to her boss that the same person had just robbed them again. On this second occasion, according to Ms. Gordon, Mr. Cockerham was armed with a small silver gun with a pearl handle.

Both Caroline Gordon and Paul Thomas participated in photo line-ups involving Raymond Cockerham's picture. They each identified him as the perpetrator of the May 30, 1985 robbery. Ms. Gordon also identified him as the perpetrator of the May 7, 1985 robbery.

In addition to the testimony of Ms. Gordon and Mr. Thomas, Officer Albert Hynes testified to responding to the call of the May 7, 1985 robbery. Officer David Fisher testified that he responded to the call of the May 30, 1985 robbery. Officer Fisher further testified that on October 3, 1985, while on routine patrol, he recognized Raymond Cockerham from a flyer handed out at roll call. He pursued Mr. Cockerham and arrested him. During the pursuit, Raymond Cockerham threw down a chrome revolver; but it was not recovered.

The defense presented no witnesses at trial.

ERRORS PATENT

A review of the record for errors patent reveals none.

ASSIGNMENT OF ERROR NUMBER 1

In his first assignment, Mr. Cockerham contends that the trial court erred when it denied the motion to continue made on the *970 morning of trial. Counsel first made his motion on the grounds that he had been unable to locate one of the defense's essential alibi witnesses, Gwen Carter.

La.Code Crim.Proc.Ann. art. 709 (West 1981) provides:

A motion for a continuance based upon the absence of a witness must state:
(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
(3) Facts showing due diligence used in an effort to procure attendance of the witness.

La.Code Crim.Proc.Ann. art. 710 (West 1981) provides:

When a motion for a continuance is based on the absence of a material witness, and the adverse party admits that if the witness were present he would testify as stated in the motion, the court may proceed to the trial of the case. If the court is of the opinion that despite the admission, the case cannot be tried with justice to the applicant, it may require the adverse party to admit also the truth of the testimony as a condition of refusing to grant the continuance.

A trial court's decision to deny or grant a continuance is within its broad discretion and will not be disturbed absent a clear showing of abuse of that discretion. State v. Holmes, 590 So.2d 834 (La.App. 4th Cir.1991); State v. Myers, 584 So.2d 242 (La.App. 5th Cir.1991), writ denied, 588 So.2d 105 (La.1991), cert. denied, Myers v. Louisiana, 504 U.S. 912, 112 S.Ct. 1945, 118 L.Ed.2d 550 (1992). The decision whether to grant or deny a motion to continue depends on the circumstances of each particular case. A showing of specific prejudice is generally required to demonstrate that the trial court erred in denying the continuance. State v. Holmes.

Raymond Cockerham failed to make the requisite showing under La.C.Cr.P. art. 709. The expected testimony of Ms. Carter was not proffered. Also, while counsel did state that he had personally investigated and been unable to locate her whereabouts, no showing was made that she would be located and available at a future date. Therefore, the trial court did not err in denying the motion on these grounds.

After the motion had been denied, defense counsel then requested that the record should reflect that the State informed him on the previous day that it intended to proceed to trial on a different case involving one Donald McGee. Counsel stated that he was unprepared for trial because he was not expecting to try the defendant's case. These statements are the basis for Mr. Cockerham's argument that denial of the motion to continue constituted reversible error. Mr. Cockerham argues that counsel was so unprepared that he rendered ineffective assistance to him.

Where the continuance motion is based on inadequate time for counsel to prepare a defense, this specific prejudice requirement has been disregarded only when the preparation time was "so minimal as to call into question the basic fairness of the proceeding." State v. Jones, 395 So.2d 751, 753 (La.1981) citing State v. Winston, 327 So.2d 380 (La.1976).

In State v. Simpson, 403 So.2d 1214 (La. 1981), the Louisiana Supreme Court found that the trial court abused its discretion in denying the defendant's motion for continuance filed orally immediately before trial. Defense counsel in that case was a member of the Office of the Public Defender and was unaware that he was representing the defendant until the morning of trial. Defense counsel had no time to prepare for trial, and the Office of the Public Defender did not receive notice that the defendant's case was set for trial.

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Cite This Page — Counsel Stack

Bluebook (online)
671 So. 2d 967, 1996 WL 114359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cockerham-lactapp-1996.