State Of Louisiana v. Donasty Anwanique Cohen

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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #005
FR
OM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 27th day of January, 2021 are as follows:
PER CURIAM:
2019-K-00949 STATE OF LOUISIANA VS. DONASTY ANWANIQUE COHEN (Parish
of Rapides)
REVERSED AND REMANDED. SEE PER CURIAM.
Lombard, J., assigned as Justice ad hoc, sitting for Retired Chief Justice
Johnson, for oral argument. He now sits as Justice ad hoc for Justice Piper
Griffin at the time this opinion is rendered.
Crichton, J., concurs and assign s reasons.
Lombard, J., concurs in part, d issents in part and assigns reasons.

* Lombard, J., assigned as Justice ad hoc, sitting for Retired Chief Justice Johnson, for oral argument. He
now sits as Justice ad hoc for Justice Piper Griffin at the time this opinion is rendered.
01/27/2021

SUPREME COURT OF LOUISIANA

No. 2019-K-00949

STATE OF LOUISIANA

versus

DONASTY ANWANIQUE COHEN

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
THIRD CIRCUIT, PARISH OF RAPIDES

PER CURIAM:*

Defendant, age 16, was charged with second degree murder, La.R.S. 14:30.1, in
the death of her 27- day-old infant son. After trial, the jury found her guilty of
manslaughter, La.R.S. 14:31. The district court sentenced her to serve 17 years
imprisonment at hard labor without parole eligibility. The court of appeal affirmed after
deleting the restriction on eligibility for parole. State v. Cohen, 18-0297 (La. App. 3 Cir.
5/8/19), 272 So.3d 12.
The court of appeal considered and rejected three assignments of error. The court
of appeal first rejected defendant’s challenge to the sufficiency of the evidence. The
court of appeal found the State’s evidence sufficient to prove defendant committed
second degree murder, and therefore the court of appeal found no basis to overturn the
apparent compromise verdict des pite the absence any mitigatory factors necessary to
support a conviction for manslaughter. See generally State ex rel. Elaire v. Blackburn,
424 So.2d 246 (La. 1982) (jury may return a legislatively provided responsive verdict,
whether or not the evidence supports that verdict, as along as the evidence was
sufficient to support a conviction for the charged offense) . The court of appeal then

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found that the sentence was not excessive, and that the district court did not err in
denying defendant’s challenge for cause of two prospective jurors who expressed doubt
as to their ability to serve fairly and impartially as jurors in a trial involving allegations
of child abuse.
In this court, defendant contends only that the district court erred in denying her
challenge for cause of one prospective juror, and defendant abandons all remaining
claims. In the course of reviewing the record, it became apparent that the verdict in this
case was non-unanimous. The sealed jury polling slips contained in the record show that
defendant was found guilty of manslaughter by vote of 11-1. The State also concedes
that the verdict was non-unanimous.
In Ramos v. Louisiana, 590 U.S. ––––, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020),
the United States Supreme Court held that the Sixth Amendment right to jury trial, as
incorporated against the States by way of the Fourteenth Amendment, requires a
unanimous verdict to convict a defendant of a serious offense. The present matter was
pending on direct review when Ramos v. Louisiana was decided, and therefore the
holding of Ramos applies. See Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708,
716, 93 L.Ed.2d 649 (1987). Accordingly, defendant is entitled to a new trial, which is
the same result that would follow had she prevailed in her sole claim with regard to the
denial of her cause challenge. Therefore, defendant’s claim regarding the denial of her
cause challenge is rendered moot.
We reverse the ruling of the court below, which affirmed defendant’s conviction
and sentence as amended. We vacate defendant’s conviction and sentence. We remand
to the district court for further proceedings.
REVERSED AND REMANDED

01/27/2021
SUPREME COURT OF LOUISIANA

No. 2019-K-00949

STATE OF LOUISIANA

Versus

DONASTY ANWANIQUE COHEN

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD
CIRCUIT, PARISH OF RAPIDES

CRICHTON, J., additionally concurs and assigns reasons:
In light of the jury’s non-unanimous verdict in this tragic case, I agree with
the majority’s reversal and remand pursuant to Ramos v. Louisiana, 590 U.S. ––––,
140 S.Ct. 1390, 206 L.Ed.2d 583 (2020). However, I write separately to emphasize
the lack of any direct evidence in this record. It is well settled that when
circumstantial evidence forms the basis of a conviction, the evidence, “assuming
every fact to be proved that the evidence tends to prove . . . . must exclude every
reasonable hypothesis of innocence.” State v. Holliday, 17-1921, p. 5 (La. 1/29/20),
___ So.3d ____, citing La. R.S. 15:438 and State v. Jacobs, 504 So.2d 817, 820 (La.
1987) (all direct and circumstantial evidence must meet the Jackson test); State v.
Porretto, 468 So.2d 1142, 1146 (La. 1985) (La. R.S. 15:438 serves as an evidentiary
guide for the jury when considering circumstantial evidence) . A s my colleague
Justice ad hoc Lombard also notes, it is perilous territory to charge this defendant
with second-degree murder on the me re theory that she was the child’s caregiver
while presenting absolutely no other evidence to show how or when this infant was
mortally wounded.

01/27/2021
SUPREME COURT OF LOUISIANA

No. 2019-K-00949

STATE OF LOUISIANA

versus

DONASTY ANWANIQUE COHEN

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
THIRD CIRCUIT, PARISH OF RAPIDES

LOMBARD, J., concurs in parts and dissents in part and assigns reasons,
It is indisputable that Ramos v. Louisiana, 590 U.S. ___, 140 S. Ct. 1390, 206
L. Ed. 2d 583 (2020), is applicable in this case, but it is also axiomatic that when the
issues on appea l relate to both the sufficiency of evidence and one or more trial
errors, the reviewing court should first determine the sufficiency of the evidence by
considering the entirety of the evidence. State v. Hearold, 603 So.2d 731, 734
(La.1992). Under Jackson v. Virginia, 443 U.S. 307 (1979) , if the reviewing court
determines that the evidence was insufficient, then the defendant is entitled to an
acquittal, and no further inquiry as to trial errors is necessary. Hearold, 603 So.2d at
734. Therefore, Louisiana appellate courts address the sufficiency of the evidence
before other issues.
Like Ramos, the standard for testing the sufficiency of the evidence under
Jackson is a constitutional one, requiring that the evidence, direct or circumstantial,
or a mixture of both, viewed in the light most favorable to the prosecution, was
sufficient to convince a rational trier of fact that all of the elements of the crime
have been proven beyond a reasonable doubt . Jackson, 443 U.S. at 319. Thus, in
order to sustain a conviction, the State’s case must “exclude[] every reasonable
hypothesis of innocence.” State v. Captville, 448 So.2d 676, 678 (1984); see also

State v. Crawford, 2014 -2152 (La. 11/16/16), 218 So. 1 3, 36 (Knoll, J. dissents in
part; concurs in part) (reasonableness is the touchstone of the Jackson inquiry; “[i]f
the jury’s verdict is not reasonable, the defendant’s conviction cannot be
maintained”).
In this case, the record is devoid of any evidence to support the defendant’s
conviction. The pathologist report concluded that the cause of death was blunt force
trauma inflicted three to five days before the infant’s death. All four members of the
household denied any knowledge of how the baby was inj ured and denied ever
injuring the infant or observing anyone else doing so. 1 Nonetheless, although the
State had no evidence to show how, when, or by whom the victim was injured, the
State charged the defendant with second-degree murder on the theory that, according
to the infant’s father and his family, the defendant was the primary caregiver and
spent the most time with the infant.2 This is a novel theory and dangerous precedent.
The defendant’s conviction in this case is an outlier: doubly constitutionally
infirm. There is no definitive guidance as to which constitutional issue should be
considered first here but, as a practical matter, remanding the matter for a new trial
means that the defendant – whose imprisonment, based on a constitutionally infirm
conviction, is invalid – will remain in prison for the duration of the long legal process
for a new trial, a process egregiously exacerbated by the present global pandemic.
Therefore, although I agree with the majority that Ramos is applicable, I believe that
this matter should be resolved on the sufficiency of the evidence in the interest of
both justice and judicial efficiency.
Accordingly, I respectfully concur in part and dissent in part.

1 The defendant and Kenneth Anderson, both sixteen years old, lived with their infant child, the one-month-old victim,
in the home of Anderson’s grandmother, Susan Willis. Anderson’s younger brother, Kalib, age fifteen, also lived in
the Willis home where the defendant, Anderson, and the infant shared a bedroom.
2 The non-unanimous jury found the defendant guilty of the responsive verdict of manslaughter and the district court
sentenced her to 17 years imprisonment at hard labor without the benefit of parole, probation, or suspension of
sentence. The court of appeal affirmed the defendant’s conviction, amended the sentence to delete and illegal
prohibition on parole, and affirmed here sentence as amended. State v. Cohen, 18-0297 (La. App. 3 Cir. 5/8/19), 272
So.3d 12.