State v. Cousin

1

STATE OF LOUISIANA v. DERRICK J. COUSIN

No. 2022 KA 1025

Court of Appeals of Louisiana, First Circuit

June 15, 2023

NOT DESIGNATED FOR PUBLICATION

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 Covington, Louisiana Counsel for Defendant/Appellanl Derrick J. Cousin

Derrick 1. Cousin Angie, Louisiana Defendant/Appellant Pro se

Warren L. Montgomery District Attorney J. Bryant Clark, Jr Assistant District Attorney Counsel for Plaintiff/Appellee State of Louisiana

BEFORE: McCLENDON, HOLDRIDGE, AND GREENE, JJ.

MCCLENDON, J.

Defendant, Derrick J. Cousin, was charged by bill of information with aggravated burglary, a violation of LSA-R.S. 14:60, and attempted first degree rape,^[1] a violation of LSA-R.S. 14:42 and LSA-R.S. 14:27 (counts one and two, respectively). The defendant filed a motion to suppress statements, which the trial court denied. . After a trial by jury, defendant was found guilty as charged on each count. The trial court denied defendant's "motion for post-verdict judgment of acquittal or new trial." The trial court then sentenced defendant to thirty years of imprisonment at hard labor on count one and to forty-five years of imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on count two, to be served concurrently. Defendant now appeals, assigning error in a counseled brief to the trial court's rulings on a challenge for cause and his motion to suppress statements. Defendant filed a pro se brief assigning error to the sufficiency of the evidence on both counts and asserting double jeopardy. For the following reasons, we affirm the convictions and sentences.

STATEMENT OF FACTS

On September 28, 2018, police officers with the St. Tammany Parish Sheriff's Office (STPSO) were dispatched to North Eighth Street in Slidell, the scene of a residential burglary in progress reported by G.W. (the victim).^[2] That morning, at approximately 1:30 a.m., G.W. was at home alone when her home alarm sounded, signaling that her phone^[3]had a technical issue. She got up to turn her alarm off. When she returned to her bedroom, she looked at the monitor^[4] for her front porch camera and saw a male individual looking into her house through her front door. Apparently using her cell phone, G.W. immediately called 911, reported a prowler, and asked for police assistance. While G.W. was on the phone with 911, the individual entered her home and began kicking her bedroom door. G.W. held the phone with her right hand while holding her bedroom door shut with her left shoulder. In order to scare the individual off, G.W. acted as though the police had already arrived and began yelling for them to enter her home. G.W. remained on the line with 911, as she repeatedly yelled "Police, police. Come in[,]" and "Thank you, police ... Thank you, Jesus." The ruse was successful, and the intruder left G.W.'s home before police officers arrived. The intruder was in G.W.'s house for an estimated two to four minutes.

Captain Gordon Summerlin, Deputy Austin Satter, and Detective Dave Miceli with the STPSO were in route to G.W.'s residence while she was still on the line with the dispatcher. They arrived at her home within minutes of the inception of the 911 call. Upon their arrival, the officers discovered two cut wires, a telephone wire and a coaxial cable, on the side of the residence. After the officers entered the home and made contact with G.W., they observed damage to her bedroom door.^[5] The officers viewed footage from G.W.'s security camera showing the perpetrator, who was armed with a knife and wearing gloves, as he approached G.W.'s front door multiple times and went toward the side of the house where the cut telephone lines were located. They also watched footage showing him leaving G.W.'s home and walking across the street.

The officers went to the residence that the surveillance footage showed the perpetrator walking toward, knocked on the door, and asked the occupants to exit the house. The occupants complied. When defendant stepped out of the house, the officers recognized him from the surveillance footage.

The officers conducted a National Crime Information Center inquiry and determined that defendant had a prior arrest for rape. A search warrant for defendant's residence was obtained and executed that morning. During the search, the officers recovered a knife that "closely matched" the knife seen in the perpetrator's possession on the surveillance footage. The defendant was placed under arrest and transported to the STPSO. After being advised of his Miranda^[6] rights, defendant participated in a recorded interview. Defendant did not testify at trial.

PRO SE ASSIGNMENT OF ERROR NUMBER ONE

In pro se assignment of error number one, defendant argues that the evidence is insufficient to support his convictions of aggravated burglary and attempted first degree rape. He argues that no reasonable juror could conclude that he entered the victim's home with the intent to commit a theft. Defendant further maintains that he lacked specific intent to commit first degree rape or any responsive offense thereof, that the police assumed rape was his intent because of his prior conviction, and that he never came in direct contact with the victim.^[7]

A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const, amend. XIV LSA-Const. art. I, § 2. The standard of review for sufficiency of the evidence to support a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude that the State proved the essential elements of the crime, and defendant's identity as the perpetrator of that crime, beyond a reasonable doubt. See LSA-C.Cr.P. art. 821(B); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Oliphant, 2013-2973 (La. 2/21/14), 133 So.3d 1255,1258 (per curiam); State v. Mellion, 2021-1116 (La.App. 1 Cir. 4/8/22), 342 So.3d 41, 45, writ denied, 202200732 (La. 6/22/22), 339 So.3d 1186, cert, denied, ___U.S.___, 143 S.Ct. 319, 214 L.Ed.2d 141 (2022). When circumstantial evidence forms the basis of the conviction, the evidence, "assuming every fact to be proved that the evidence tends to prove ... must exclude every reasonable hypothesis of innocence." LSA-R.S. 15:438; Oliphant, 133 So.3d at 1258. Further, when the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Dyson, 2016-1571 (La.App. 1 Cir. 6/2/17), 222 So.3d 220, 228, writ denied, 2017-1399 (La. 6/15/18), 257 So.3d 685.

The due process standard does not require the reviewing court to determine whether it believes the witnesses or whether it believes the evidence establishes guilt beyond a reasonable doubt. State v. Livous, 2018-0016 (La.App. 1 Cir. 9/24/18), 259 So.3d 1036, 1040, writ denied, 2018-1788 (La. 4/15/19), 267 So.3d 1130. Rather, appellate review is limited to determining whether the facts established by the direct evidence, and inferred from the circumstances established by that evidence, are sufficient for any rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. The weight given evidence is not subject to appellate review; therefore, an appellate court will not reweigh evidence to overturn a factfinder's determination of guilt. Id.

Aggravated burglary, in pertinent part, is the unauthorized entering of any inhabited dwelling where a person is present, with the intent to commit a felony or any theft therein if the offender is armed with a dangerous weapon. LSA-R.S. 14:60(A)(1). Aggravated burglary is a specific intent crime.^[8] Thus, the actor must specifically intend to accomplish certain prescribed criminal consequences. State v. Delmore, 2016-1614 (La.App. 1 Cir. 6/2/17), 2017 WL 2399363, *3 (unpublished), writ denied, 2017-1304 (La. 3/2/18), 269 So.3d 706.

Attempted first degree rape, in pertinent part, is the specific intent to commit anal, oral, or vaginal sexual intercourse with a person without that person's lawful consent, where the offender does an act for the purposes of and tending directly to accomplish one or more of those acts of intercourse, and the victim is prevented from resisting the act because the offender is armed with a dangerous weapon. See LSA-R.S. 14:27; LSA-R.S. 14:41; LSA-R.S. 14:42(A)(3). Thus, attempted first degree rape is a specific intent crime. LSA-R.S. 14:27; State v. Barras, 2019-897 (La.App. 3 Cir. 2/3/21), 2021 WL 360908, *2 (unpublished), writ denied, 2021-00442 (La. 6/22/21), 318 So.3d 46.

Louisiana's attempt statute rejects factual impossibility as a defense stating "it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose." LSA-R.S. 14:27(A). However, mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended. LSA-R.S. 14:27(B). The comments under the attempt statute point out that the essential elements of an attempt are "an actual specific intent to commit the offense, and an overt act directed toward that end." Thus, "one who arms himself with a dangerous weapon and lies in wait or seeks for the intended victim, but is...