State Of Louisiana v. Derrick J. Cousin

rC9TU.-
T1-4IZT-j-
T "!

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

UUMFUEM

0FTI 11-MME MIQFIroM

filed a motion to suppress statements, which the trial court denied. . After a trial by

1 1 11 1
I fl 1 111101 1 1 I . 0

giliil

a=

1 jijillij 1111!
I I Ii ; Ilil 111111111 11, 1
am=

or suspension of sentence on count two, to be served concurrently. Defendant no;2

I 11: 11111 111111111 N1! 1 I
so j!
M M

1 M 111111111

111 111 1111111; jijl. 1 1 • JeEimomm-
IMM

10 Rill! i

iili; iplliji
pli; 1 1 11111ll i I I I

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.

0

was on the phone with 911, the individual entered her home and began kicking h(M

Illill" 211

1 11 1 1 1 1, I I lI 11 lIIIIIIIII :11, 111111
11 I

I

110111111111ii ; lillammm

I . I I I lilIM11711 I I - 110 - 41

MM=
RONMINIMIZEMs- i "I-

Illipli 111 11111 plil

i llli l I 11 111; I
11111iiiPm illIllitiirri Illigi; Illil IIII: 1ylipIql1liq

with G. W., they observed damage to her bedroom dol The officers viewed footage

7111%

RUN
01111MIRE
Ill Pill IM liIIIIIIIIIII 11 111111

3MMM
The officers conducted a National Crime Information Center inquiry and

residence was obtained and executed that morning. During the search, the officeil
l illillillill! ill ilill 1111 l! l! l lll! l
l!! i

1 ill 111111
11111111111

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.

K

3-
M

rape.
He argues that no reasonable juror could conclude that he entered the victima

MLM3MKM3M3E=

came in direct contact with the victim.?

A conviction based on insufficient evidence cannot stand, as it violates due

11
iio l , 111 I Ii I

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

rall.-
1111, W-
mNI'MIMPIR

POP
i 1II11F

to

subject to appellate review; therefore, an appellate court will not reweigh evidence I

11111` ===

121111 Mz= W45

all
11111111111111 111 1!
2

Attempted first degree rape, in pertinent part, is the specific intent to commit

11 • 1 ; Iigp 111 •' of -

consent, where the offender does an act for the purposes of and tending directly I
11%
IMAM IN rm 1111 11
IIII
MIT!

lig lgiaigl R IRWIN
NTOMMildr-Ire a 0

III I
M C 11PITIZE11

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).

0

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:
Ill 111111 gip I
III , I I IU
IINV; 13

Specific intent can be formed in an instant. Specific intent need not be proven as

R

0 1 4

been broken for years, though she did have a lock on her side gate. G. W. denied knowirim

lillilll illl i Il; lIgI1II; 1

MI ERIMUMM
III I I

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

MEE=
MR1111M#III #I 1 11 Jill

43MMSE

1 IMS=

111111111111 ; , 1 ii!i1- iiIIIIqIIIII1 I ; iii Iii i i i I I I 1 1 ! lipil pil ip; III!!

investigation of a burglary that turned into a violent crime, such as a burglar entering a

IJJI 1 Illllll; ill 111111 I
lli lpl
IIl! lI I Ip11

the search warrant at defendant's residence. In addition to the knife, the officeil

IIIIIIIIIIII
g: g1li' l 1 1 pilill I
2,1103111111; ;;

nsrsl# ! l l I I I I I lllllip; l
ZWML%%
LffM# is # !'
I lz!

a

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

PP

perpetrator came into the restroom and raped her. When she started screaming, he told

9MaR RMV9
- Taxelrerans

she did not see the knife ® believed the perpetrator's claim to be armed. The victiml
111111
1 1 1111111IRP! ME13RIP11111 iq;
MR= 13 =:--- MME=
1 11 111 111 piIIIII

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

I= 111 JIMI le

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.

0

llpliy;%

intent to commit a felony or theft within the home, we note that the verdict sheet

ii iii I Ili:

Attempted First Degree Rape' O

111111ir 1 1 111111111

I I; lr;
l 1 1 ! 1 ; iiiiil11 1 1 1 ll Iliiilt G-

stated he had no idea or recollection as to what his intentions were, yet somehow was

i
RMITRINIMP MERV:III i I I
0.

iiiill, ji i i ;; l'! mom=

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

1 1 1 1 1 11il itil 1 ; i 1 1 1i; l I 11111

illi ilililll: ii ill ilillill
ilill 1! l lilli l
ill ji" I
11i' l

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).

IE

accouterments ( rope, tape, a gun, etc.), from his car. As the defendant was being
Jill 11:

mum
at 762.
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

CIM31
MIN 3TTIMMKIRM l! III I I I I
EMiii GzSzM

M M SIME= OEM=

Jili Ali 1: i 1,

11 1; Jii

11111111111

1111111 11 11111111111 l.
MMMI 111111111 1111111 i i

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.

11

I 1 11 111 1
M i n!

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,

111 111111 illill III
IZ I ol 1 1711,llli; p ll;' 111
i

specific intent exists is a fact question for the jury. Ordodi, 946 So. 2d at 661.

IFl I I Il I I I l I I I I I I I I I I I I 1111 IT I I I I I I I I I I I I I I I MiliIIIIIIIII
111;! Iil plil

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.

I

In pro se assignment of error number two, defendant argues that the two

III illr; II;
FIVIF Miliffill MIT I l I
M il lIll I

1111plil p; 1i 110111I Ili il i i

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

12

il 11% lirl
lllp 111111 Illll 1" I' l

I, § 15. Double jeopardy provisions protect an accused not only from a seconM

I Il llr il!llrl ill

111111IIIII l 11111111 1 lll' Iillil
INVIIIIIIII IR

AN,

double jeopardy fall within the analytical framework set forth in Blockburger anM

Louisiana courts need apply only that framework in analyzing questions of double
IIIIIiiii IIII
ollilliIiii; I
Ill 03
=0 1;: ii ll;;; I

Pill!
I 11951

IIIIIIIINI I I I I1 1 P

HE=,

Thus, the Slockburger test focuses on the statutory elements of the offenses,

W p Iff p li

tvidence presented at trial.
Therefore, the question under Slockburger is not whethEi
l 1 ; T inlill

I ; I U1111

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.
I
I I I Ill I I Ill I Ill III I Ill I! I I I IN ' I I I I!

M111,111

13

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

ME

illi illill illillilml
1 4 I I a 0 1 MUSM4

g g I g gl ii 1111 111111 li

up" Baum

III

URI:
Mlimu-' =*!
I1r1I1C= M

lis right to remain silent and privilege against self-incrimination during his policf,
III
P Mir;

Defendant contends that the trial court erred in failing to suppress any subsequent

lllli • i Miiliiii lilil ; 1 1 1 1 1

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.

The record must also establish that an accused who makes a confession or inculpatory
1111111 POP pp ligill 1111; ; lillil 1111 ill F I
es 0 g ; 1,• 111111

State v. Adams, 2015- 1155 ( La. App. I Cir. 12/ 23/ 15), 2015 WL 9438859, * M

Since the general admissibility of a confession or inculpatory statement is a

question for the trial court, its conclusions on the credibility and weight of the testimony
1 1 1 111 1
ROME COMMON 111 1

15

11TIRIv I

Illll III IIIIII IN III illl: lllllll 1111111111111 Ill III II
lj,! Ilqlq; 1111 III! 1011i' i

11,
1 4 4 111111111111112!i l! 11miA
14:

ILI

I' ll 1! 11111 11 1

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

14 IRIIINIII 1
11 11 11 11
131TRIUM 14 1•

11112111 R1111111111

The Supreme Court in Miranda stated that if the individual indicates in any

interrogation must cease. When a defendant exercises his privilege against self -

I ANA

I11111111i' r
WIA
61

JU lli I I NNWI-
04 ! l

11 Ali

11M

So. 2d at 739. Factors considered in the assessment include: who initiates further

I

I Ilil 111
lli gli Ilili lq 1 1 1.
11! 311 111M 11111; 11111111111101
11 1
1: ! 1 P0111111 IN` I I ' - 4

1 1 '! 1 1
1" 1 11 "
1111711111111111 III i, 111111 13ilill 1 151
EMISSION I ill III I III I HIM

jI1;

Il! i Il! i Il l i1ITq1jj1IA1

ZIFF! '•

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

question approximately two minutes later. Despite these statements, defendant

PIN 1111111111iil i l lgllllli; l

illi 11
1 i1: 1 illi iilliljl

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.

17

I i 6 1 i Uil

As noted, defendant relies on Hebert on appeal. The defendant thereir

RIM

I 1.ITZ1111 N
hillillillM

il 1 lllllllq lllll

interview. Id.

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.

IM

I

R1 JEI I
d
IMBIR! MMEM

ffra ffs,rowW,METITArelME I , IIII' Ijiy 1111111
MA a

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

4 0 a 0 . - - '• -

IMPRIPIRITIM 11131111
3 Im 0111111

review of the interview supports these findings, that defendant was not coerced,

IIIIr I
I".111l; 1I

abuse of discretion in the trial court's denial of the motion to suppress the statements.

IN

m