State of Louisiana v. Donald Cogswell, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-510

STATE OF LOUISIANA

VERSUS

DONALD COGSWELL, JR.

**********
APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 22882-00
HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE

**********
ULYSSES GENE THIBODEAUX
CHIEF JUDGE
**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, and
J. David Painter, Judges.

CONVICTIONS FOR MALFEASANCE IN
OFFICE REVERSED, SENTENCES VACATED,
AND JUDGMENTS OF ACQUITTAL
ORDERED; SENTENCES FOR OBSCENITY
VACATED AND CASE REMANDED FOR
RESENTENCING; CONVICTIONS FOR
SEXUAL BATTERY AND ATTEMPTED
SEXUAL BATTERY AFFIRMED.

Ronald Augustin Rossitto
District Attorney - 14th Judicial District Court
Catherine Lynn Bartholomew
Assistant District Attorney
Carla Sue Sigler
Assistant District Attorney
Ric Oustalet
Assistant District Attorney
P. O. Box 3206
Lake Charles, LA 70602
Telephone: (337) 437-3400
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Phyllis Elaine Mann
Post Office Box 705
Alexandria, LA 71309
Telephone: (318) 448-0000
COUNSEL FOR:
Defendant/Appellant - Donald Cogswell, Jr.

THIBODEAUX, Chief Judge.

A jury convicted the Defendant, Donald Cogswell, Jr., of two counts of

malfeasance in office, violations of La.R.S. 14:134, two counts of obscenity,

violations of La.R.S. 14:106, one count of sexual battery, a violation of La.R.S.

14:43.1, and one count of attempted sexual battery, a violation of La.R.S. 14:27 and

14:43.1. He appeals his convictions.

For the following reasons, we reverse the Defendant’s convictions for

malfeasance in office on the bases of double jeopardy and insufficient evidence and

order the entry of a judgment of acquittal. We vacate the three-year sentences at hard

labor on the two counts of obscenity. The sentences are indeterminate, and we are

compelled to remand for resentencing so that the trial court may specify whether the

sentences are to run concurrently or consecutively to each other. We affirm the

convictions and sentences for sexual battery and attempted sexual battery.

ISSUES

We shall consider whether:

(1) the malfeasance in office convictions and the
convictions for sexual battery and attempted sexual
battery constitute double jeopardy;

(2) the evidence was insufficient to convict the
Defendant of malfeasance in office; and,

(3) the Defendant had conflict-free representation.

FACTS

On the morning of August 12, the victim, J.A.1, left a bar located on

McNeese Street and was driving home. She was immediately pulled over by

Defendant, who told her she had illegally stopped in the pedestrian walkway at a

1
As required by La.R.S. 46:1844(W), the victims are referred to by their initials to protect
their identity.

traffic light. He checked her license, proof of insurance, and vehicle registration.

The Defendant then exposed his erect penis and told her to “grab it.” After she

touched him, he ordered her to pull up her shirt. She complied, but pulled her shirt

down when he reached to touch her breast. He then asked her to go behind a store for

a “quicky.” When she refused, he wrote her two tickets and left.

On the morning of August 13, Defendant pulled the victim, S.C., over

shortly after she left a bar located on Common Street. He told her he stopped her for

speeding and had her move into a parking lot. The victim performed a field sobriety

test at the behest of the Defendant who then told her that he was going to call for a

DUI unit. While she was sitting in her car, he approached her and exposed his penis

and repeatedly asked, “What are we going to do about this?” He then grabbed her by

the back of her head and attempted to force her to perform oral sex. When she

resisted his attempt, he left.

Double Jeopardy

Defendant argues that he was subjected to double jeopardy in violation

of La.Code Crim.P. art. 591 when he was convicted of malfeasance in office and the

sexual crimes. There is merit to this assertion.

Defendant was convicted of two counts of malfeasance in office, in

violation of La.R.S. 14:134, which provides in the applicable parts that a public

officer commits malfeasance in office when he performs “any duty lawfully required

of him. . . in an unlawful manner.” Defendant was also convicted of one count of

obscenity and one count of sexual battery as to one of the victims, and one count of

obscenity and attempted sexual battery as to the other victim. As the facts adduced

at trial indicated, after Defendant made late night traffic stops of the two women

during the course of his employment as a patrol officer, he then committed the sexual

2

acts against them. The identical conduct was the basis for both the malfeasance

convictions and the convictions for the sexual offences.

In State v. Vaughn, 431 So.2d 763 (La.1983), the accused was charged

with one count of malfeasance in office and one count of theft. The Louisiana

Supreme Court found that the unlawful manner by which Vaughn violated his

affirmative duty as a police officer was to have committed theft when he took a

suspect’s gun, then sold the gun back to him. Vaughn was charged with malfeasance

in office and theft of the gun. Both counts cited the unlawful and fraudulent taking

of the money as the sole basis for the two counts. The Louisiana Supreme Court

stated:

In State v. Knowles, 392 So.2d 651, 654 (La.1980),
the Court citing Blockburger v. United States, 284 U.S.
299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), outlined the
following criteria for examining violations of double
jeopardy:

“. . . The applicable rule is that where the
same act or transaction constitutes a violation
of two distinct statutory provisions, the test to
be applied to determine whether there are two
offenses or only one, is whether each
provision requires proof of an additional fact
which the other does not . . .”

This rule is constitutionally required by the States.
Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d
187 (1977), and is embodied in La.C.Cr.P. 596:

“Double jeopardy exists in a second trial only
when the charge in that trial is: (1) Identical
with or a different grade of the same offense
for which the defendant was in jeopardy in
the first trial, whether or not a responsive
verdict could have been rendered in the first
trial as to the charge in the second trial; or (2)
Based on a part of a continuous offense for
which offense the defendant was in jeopardy
in the first trial.”

Louisiana uses both the “Blockburger test” and the
“same evidence test”. State v. Steele, 387 So.2d 1175
3

(La.1980); State v. Doughty, 379 So.2d 1088 (La.1980);
State v. Didier, 262 La. 364, 263 So.2d 322 (1972) and
State v. Hayes, 412 So.2d 1323 (La.1982). When a
defendant is charged with separate statutory crimes they
need not be identical in elements or in actual proof to be
the same within the meaning of the constitutional
prohibition. State v. Hayes, 412 So.2d at 1325.

The Louisiana Supreme Court explains the “same
evidence” test in State v. Steele, 387 So.2d 1175, (La.1980)
as follows:

“If the evidence required to support a finding
of guilt of one crime would also have
supported conviction of the other, the two are
the same offense under a plea of double
jeopardy, and a defendant can be placed in
jeopardy for only one. The test depends on
the evidence necessary for conviction, not all
the evidence introduced at trial . . .

The ‘same evidence’ test is somewhat broader
in concept than Blockburger the central idea
being that one should not be punished (or put
in jeopardy) twice for the same course of
conduct.” Id. at 1177.

Double jeopardy provisions protect an accused not
only from a second prosecution on the same offense, but
also from multiple punishments for the same criminal
conduct. State v. Steele, supra; State v. Hayes, supra;
United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed.
354 (1931); Whalen v. United States, 445 U.S. 684, 692,
100 S.Ct. 1432, 1438, 63 L.Ed.2d 715 (1980).

....

An overview of the record reveals that the conduct
which formed the basis of the malfeasance charge was the
same conduct proven during the jury trial on the theft
charge. Therefore, we conclude that the same evidence
was used to convict Vaughn on both charges. The
conviction by the trial judge for malfeasance was for
conduct forming a part of the basis of the jury conviction
on the theft charge and the latter constitutes a jeopardy as
to the former.

4

Id. at 766-67. The supreme court in this case vacated the conviction for the lesser

offense of theft. See also, State v. Coody, 448 So.2d 100 (La.1984) and State v.

Gibson, 03-0647 (La.App. 4 Cir. 2/4/04), 867 So.2d 793.

In the present case, to prove Defendant committed malfeasance in office

required proof that he committed the sexual offenses. Therefore, the evidence

necessary to prove the sexual offenses also proved the charge of malfeasance in

office. Accordingly, the same evidence test was satisfied. Consequently, this

assignment of error has merit.

The Louisiana Supreme Court has stated that “[t]o remedy a violation of

double jeopardy, this court has followed a procedure of vacating the conviction and

sentence of the less severely punishable offense, and affirming the conviction and

sentence of the more severely punishable offense.” State ex rel. Adams v. Butler, 558

So.2d 552, 553 (La.1990).

In this case, the more severely punishable offenses are the sexual battery

violations. A violation of the offense of malfeasance in office has a sentencing range

of no more than five years, with or without hard labor. La.R.S. 14:134. An offense

of sexual battery provides for a range of imprisonment of not more than ten years,

with or without hard labor, and without benefit of parole, probation, or suspension of

sentence. La.R.S. 14:43.1(C). Accordingly, the convictions for malfeasance in office

are vacated to eliminate the double jeopardy violations suffered by Defendant.

Insufficiency of the Evidence

Defendant argues that “[t]he State failed to introduce any evidence

showing that Donald Cogswell was lawfully required to perform any duty” at the time

of the alleged incidents. The evidence, therefore, is insufficient to support a

conviction. We agree.

5

Louisiana Revised Statutes 14:134, malfeasance in office, in pertinent

part, provides:

Malfeasance in office is committed when any public
officer or public employee shall:

(1) Intentionally refuse or fail to perform any duty
lawfully required of him, as such officer or employee; or

(2) Intentionally perform any such duty in an
unlawful manner.

In State v. Davis, 93-599 (La. 4/11/94), 634 So.2d 1168, 1169-70, the

Louisiana Supreme Court explained:

It is elementary that the state must prove each element of
the crime charged beyond a reasonable doubt. U.S.
Const.Amend XIV; La. Const. Art. I, § 2 (1974);
La.C.Cr.P. art. 804; Jackson v. Virginia, 443 U.S. 307, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Graham, 422
So.2d 123, 129 (La.1982). In order to prove a violation of
LSA-R.S. 14:134, the state must prove the existence of an
affirmative duty delineated by statute or law upon the
defendant public officer and that the defendant
intentionally performed that duty in an unlawful manner.
State v. Perez, 464 So.2d 737, 742 (La.1985); State v.
Passman, 391 So.2d 1140, 1144 (La.1980); State v. Kelley, 241 La. 224, 128 So.2d 18 (1961). “The duty must be
expressly imposed by law upon the official because the
official is entitled to know exactly what conduct is
expected of him in his official capacity and what conduct
will subject him to criminal charges.” Perez, supra, at 741.

Defendant’s argument that nothing was introduced to the jury that

showed he had an affirmative duty to perform in a lawful manner is correct; no oath

of office or reference to an oath of office, no police manual, no questions or

discussions regarding Defendant’s affirmative duties, or any other form of evidence

was submitted. Furthermore, the indictment that charged the two counts of

malfeasance in office did not indicate what provisions or laws Defendant violated.

Other than testimony that he was employed as a police officer by the City of Lake

Charles, and was on duty the morning of the incidents, including Defendant’s own

6

admission as such, there was nothing offered regarding the statute or provision of law

which established Defendant’s affirmative duties as an officer of the law.

We note that La.Const. art. 10, § 30 requires all public officers or

employees to take the oath of office. See La.R.S. 42:52, 42:161, 42:162, and 44:1.

That oath charges public officers to uphold the laws of Louisiana and imposes a

specific duty not to obstruct or interfere with the execution of those laws. State v.

Authement, 532 So.2d 869 (La.App. 1 Cir. 1988). There is nothing in the record to

indicate that Defendant took the oath of office and that it was recorded with the clerk

of court’s office.

Conflict-Free Representation

For his final assignment of error, Defendant argues that he was deprived

of his right to a conflict-free counsel. Defendant argues that defense counsel’s

current business association with three civil lawyers who represented one of the

victims in a civil matter filed against Defendant and the City of Lake Charles caused

him to have a conflict of interest. In State v. Cisco, 01-2732, pp. 17-18 (La. 12/3/03),

861 So.2d 118, 129-30, cert. denied, 541 U.S.1005, 124 S.Ct. 2023 (2004) (alteration

in original), the supreme court stated:

The issue of conflicting loyalties usually arises in the
context of joint representation, but it can also arise “where
an attorney runs into a conflict because he or she is
required to cross-examine a witness who is testifying
against the defendant and who was or is a client of the
attorney.” State v. Tart, 94-0025, p. 19 (La. 2/9/96), 672
So.2d 116, 125; State v. Kirkpatrick, 443 So.2d 546, 552
(La.1983). . . .

This court in State v. Kahey, 436 So.2d 475, 485
(La.1983), defined an actual conflict of interest as follows,
accepting the definition set forth in Zuck v. Alabama, 588
F.2d 436, (5th Cir.1979), cert denied, 444 U.S. 833, 100
S.Ct. 63, 62 L.Ed.2d 42 (1979):

7

If a defense attorney owes duties to a
party whose interests are adverse to those of
the defendant, then an actual conflict exists.
The interest of the other client and the
defendant are sufficiently adverse if it is
shown that the attorney owes a duty to the
defendant to take some action that could be
detrimental to the other client.

This court has consistently held that a defense
attorney required to cross-examine a current or former
client on behalf of a current defendant suffers from an
actual conflict. See, e.g., State v. Carmouche, 508 So.2d at
804; Franklin, 400 So.2d at 620 (“[W]e must agree with
the defendant’s attorney, and with the trial judge, that an
actual conflict arose when the state called [counsel’s
former client] to the stand. [Counsel] was put in the
unenviable position of trying zealously to represent the
defendant at trial while simultaneously trying to protect the
confidences of a former client who was testifying for the
state against the defendant.”); see also Dane S. Ciolino,
ed., Louisiana Rules of Professional Conduct, Rule 1.7
comment 3 (L.S.B.A.2001) (“As a general proposition,
loyalty to a client prohibits undertaking representation
directly adverse to that client without that client’s
consent.”).

On the second day of trial, defense counsel informed the trial court of a

possible conflict of interest. He explained that one of the three civil lawyers he was

currently associated with in a class-action case had represented one of the victims in

the present case in a civil suit filed against the City of Lake Charles and Defendant.

He explained that the suit was settled in 2002, and that he did not begin his

association with the group until 2004. After a discussion of the standard for a conflict

of interest as set out in Cisco as it applied in this case, the trial court stated:

I don’t think it does, to tell you the truth. I mean,
there is no way – in other words, like I said I think these
relationships are just too far removed, I guess. I mean,
like I said, you began this relationship with them in 2004.

MR. WHITE: (Defense counsel) Yes, sir.

THE COURT: Her relationship as far as everybody
here knows ended in 2001 with them.

8

MR. WHITE: Yes, sir.

THE COURT: And I don’t know. I mean, we can
make the record, but I just don’t see this as being anything
that would necessitate you being–

....

MR. WHITE: It sure didn’t affect my cross of her,
I don’t think, I mean, do you?

THE COURT: Didn’t appear it did.

MR. WHITE: I’d like the record to reflect, though,
that we’re in the jury room and that Mr. Cogswell is
present.

Defendant argues that once it was advised of a conflict of interest, the

trial court erred when it did not take necessary steps, “to insure that Mr. Cogswell

understood the potential conflict of interest in order to knowingly waive it.”

However, we agree with the trial court. Defense counsel owed no duty of loyalty to

the victim such that would conflict with his obligation to Defendant simply because

she had been represented by one of his associates in a case that had concluded prior

to his association with him.

As explained by the Cisco court:

After the court has been alerted that an actual
conflict of interest exists, the judge must take the proper
steps to assure that the defendant’s Sixth Amendment right
to effective assistance of counsel is not violated. As noted
above, when a defendant raises the issue of a conflict of
interest prior to trial, the judge is required either to appoint
other counsel or to take adequate steps to determine
whether the risk of a conflict of interest is too remote to
warrant other counsel. Then, “[i]f the judge determines
that the conflict is not too remote, he should explain the
conflict to the defendant . . . and inform the defendant of
his right to representation that is free of conflict.”
Thereafter, if the defendant chooses to proceed with
conflicted counsel, “a statement should be prepared in
narrative form, which indicates that the defendant is fully
aware of his right [to conflict free counsel] but has chosen
to make a knowing and intelligent waiver thereof.”

9

Cisco, 861 So.2d at 132 (alterations in original) (citations omitted).

In the present case, the trial court did not find an actual conflict of

interest. Therefore, it was not required to advise Defendant accordingly so that he

could effect a waiver. Moreover, as noted, Defendant was present during the hearing

regarding the possible conflict and made no objection to being represented by defense

counsel under the circumstances.

For all the above reasons, this assignment of error lacks merit.

ERRORS PATENT

After reviewing the record, we conclude there are two errors patent, one

of which requires the vacation of the Defendant’s obscenity sentences. We remand

the case for resentencing based on an error patent in the obscenity offenses.

The trial court stated the following when imposing the sentences:

I’m going to at this time sentence you to serve five years
with the Department of Corrections, on the sexual battery
charge and the attempted sexual battery charges.

I’m gonna sentence you to serve five years with the
Department of Corrections, without benefit of probation,
parole, or suspension of sentence. And those two will run
concurrently with one another.

With regard to the malfeasance in office charges on
both counts I’ll sentence you two [sic] serve five years with
the Department of Corrections and on the - - and I will
suspend - - those sentences to run consecutively to the five
years on the sexual battery charges.

And I will suspend that five years. I’ll put you on
five years of supervised probation. All this is to commence
after you serve your five years on the sexual battery
charges.

And also on the obscenity charges I’m gonna give -
- I’m gonna sentence you to serve three years on those. I’ll
run those concurrently with the five years on the
malfeasance in office charges.

10

And let me say this also. Generally, the law
contemplates that when a - - when crimes are committed
with basically the same set of facts, that those charges are
to run concurrently with one another.

And in any event - - so basically, I’m - - and I am
gonna give you - - put you on five years of supervised
probation, like I said, after you complete your five years
and without benefit of probation and parole or suspension
of sentence.

The obscenity sentences are indeterminate because it is not clear whether

the sentences should be served concurrently or consecutively. As set forth in the

sentencing excerpt above, the trial court stated that the obscenity sentences were to

run concurrently with the malfeasance sentences but did not expressly state whether

the obscenity charges themselves were to run concurrently or consecutively to each

other. Because the obscenity offenses arose out of separate acts, they are presumed

to run consecutively absent an express direction by the trial court that they run

concurrently. La.Code Crim.P. art. 883, see also State v. Spencer, 04-857 (La.App.

3 Cir. 12/8/04), 888 So.2d 1128.

Although there was no express direction by the trial court, the trial court

stated the following immediately after it pronounced the obscenity sentences, “And

let me say this also. Generally, the law contemplates that when a - - when crimes are

committed with basically the same set of facts, that those charges are to run

concurrently with one another.” The sentencing minutes and a letter sent by the Clerk

of Court to the Office of Probation and Parole both state that the obscenity sentences

were ordered to run concurrently to each other. However, the trial court must

expressly order those sentences to run concurrently with one another.

Second, the trial court failed to inform the Defendant of the two-year

prescriptive period for filing post conviction relief in accordance with La.Code

11

Crim.P. art. 930.8. Thus, upon remanded for resentencing, the trial is instructed to

inform the Defendant of the provisions of Article 930.8.

CONCLUSION

The two convictions for malfeasance in office are reversed, the sentences

are set aside, and judgments of acquittal are ordered.

Further, the sentences imposed for obscenity are vacated as

indeterminate and the case is remanded for resentencing. The trial court should

specify expressly whether the obscenity offenses are ordered to run concurrently or

consecutively to each other. The trial court is instructed to follow the precepts set

forth in La.Code Crim.P. art. 883. Additionally, the trial court is instructed to inform

the Defendant of the prescriptive period for filing post-conviction relief provided for

in La.Code Crim.P. art. 930.8.

CONVICTIONS FOR MALFEASANCE IN OFFICE REVERSED,

SENTENCES VACATED, AND JUDGMENTS OF ACQUITTAL ORDERED;

SENTENCES FOR OBSCENITY VACATED AND CASE

REMANDED FOR RESENTENCING;

CONVICTIONS FOR SEXUAL BATTERY AND ATTEMPTED

SEXUAL BATTERY AFFIRMED.

12