State of Louisiana v. Kendrick M. Cox

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-305

STATE OF LOUISIANA

VERSUS

KENDRICK M. COX

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. C15782
HONORABLE ERIC ROGER HARRINGTON, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters, and John E. Conery,
Judges.

AFFIRMED.

Brent A. Hawkins
Louisiana Appellate Project
Post Office Box 3752
Lake Charles, Louisiana 70602
(337) 502-5146
COUNSEL FOR DEFENDANT/APPELLANT:
Kendrick M. Cox

Van Hardin Kyzar
District Attorney
10th Judicial District Court
Post Office Box 838
Natchitoches, Louisiana 71458-0838
(318) 357-2214
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

Charles Wilson Seaman
Attorney at Law
Post Office Box 835
Natchitoches, Louisiana 71458-0835
(318) 352-7821
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

CONERY, Judge.

Defendant, Kendrick M. Cox, was charged on September 11, 2009, via a bill

of information with one count of armed robbery and armed robbery with use of a

firearm, violations of La.R.S. 14:64 and 14:64.3, and one count of second degree

battery, a violation of La.R.S. 14:34.1. A jury trial commenced on January 18,

2011. On January 19, 2011, Defendant was convicted of armed robbery and second

degree battery.

Defendant was sentenced on March 18, 2011, to the minimum sentence of

ten years at hard labor without benefit of probation, parole, or suspension of

sentence on the conviction for armed robbery and three years at hard labor on the

conviction for second degree battery, to be served consecutively with the ten year

sentence and with credit for time served. Defendant did not orally move for or file

a motion for reconsideration of the sentences.

Defendant was granted an out-of-time appeal. He asserts that the evidence

was insufficient to establish that he was the man who committed the offenses of

armed robbery and second degree battery. For the following reasons, we affirm his

convictions.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, there are no

errors patent.

STANDARD OF REVIEW

In State v. Dotson, 04-1414, pp. 1-2 (La.App. 3 Cir. 3/2/05), 896 So.2d 310,

312, this court has explained the insufficiency analysis as follows:

In considering questions of sufficiency of the evidence, a
reviewing court must consider the evidence presented in
the light most favorable to the prosecution and consider
whether a rational trier of fact could have concluded that
the essential elements of the offense were proven beyond
a reasonable doubt. See Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The
reviewing court defers to rational credibility and
evidentiary determinations of the trier of fact. State v.
Marcantel, 00-1629 (La.4/3/02), 815 So.2d 50.

State v. Chesson, 03-606, p. 5 (La.App. 3 Cir. 10/1/03), 856 So.2d
166, 172, writ denied, 03-2913 (La.2/13/04), 867 So.2d 686.

Further, when the conviction is based upon circumstantial
evidence, La.R.S. 15:438 provides that such evidence must exclude
every reasonable hypothesis of innocence. State v. Camp, 446 So.2d
1207 (La.1984); State v. Wright, 445 So.2d 1198 (La.1984).
However, La.R.S. 15:438 does not establish a stricter standard of
review on appeal than the rational juror’s reasonable doubt standard.
The statute serves as a guide for the jury when considering
circumstantial evidence. On appeal, the issue is whether a rational
trier of fact, when viewing the evidence in a light most favorable to
the prosecution, could find that all reasonable hypotheses of
innocence were excluded.

Furthermore, included with proving the elements of an offense is the

necessity of proving the identity of the offender. When the key issue in a case is

identification, the state is required to negate any reasonable probability of

misidentification in order to carry its burden of proof. State v. McGee, 04-963

(La.App. 5 Cir. 1/11/05), 894 So.2d 398, writ denied, 05-593 (La. 5/20/05), 902

So.2d 1050.

ASSIGNMENTS OF ERROR

ASSIGNMENT OF ERROR NO. 1: Kendrick’s fundamental right to
a fair trial was violated [because] the victim, the only witness, never
identified him as the assailant at trial. Kendrick’s trial counsel was
ineffective for failing to seek a directed verdict and failing to file for a
judgment notwithstanding the verdict after [trial] because the victim
never identified Kendrick at trial.

ASSIGNMENT OF ERROR NO. 2: The evidence was insufficient to
convict the [sic] Kendrick of armed robbery or second-degree battery

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because evidence beyond a reasonable doubt was not presented at trial
[to prove that] Kendrick was the assailant who committed the offenses.

Both assignments of error will be addressed together as Defendant’s primary

complaint in both is that he was never adequately identified by the victim, Ms.

Velma Berryman, as the man who robbed and battered her. The victim gave a

statement to police that the robber’s face was covered, and she could only see his

eyes. Later, after she recovered from the incident, she told the police that she

recognized Defendant as the robber by his voice. Defendant complains there was

never a “voice line-up.” Furthermore, Defendant asserts that while the victim

testified he was the man who robbed her, she never identified him by his voice at

trial.

Defendant further argues that the testimonies of several persons who saw

him walking in the same neighborhood as the convenience store wearing clothing

very similar to the clothing the victim said the robber wore were not credible or

sufficient to establish beyond a reasonable doubt that he was the offender.

Finally, Defendant asserts ineffective assistance of counsel for failure to ask

for a directed verdict or for failing to file a motion for judgment notwithstanding

the verdict based on the above allegations.

FACTS

At trial, Ms. Berryman testified that she was the owner and sole operator of

Ms. B’s Quick Stop (Ms. B’s). The shop is located in Natchitoches, Louisiana, in

an area known as the Payne subdivision. Ms. Berryman testified she was familiar

with the streets behind her store, which were Payne, Keith, Mary, and Cherie

Loop.

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On the morning of August 1, 2009, Ms. Berryman opened the store early.

At approximately 10:00 a.m., as she was stocking shelves, she suddenly noticed a

person standing in front of the TV. The person was wearing a heavy, black coat

with a dark fur trimmed hood. She remembered wondering who would be wearing

such a heavy garment on such a hot day. When the person turned towards her, she

saw that he had a bandana across his face. The hood was pulled low over his

forehead and all she could see were his eyes. The man had a gun and told her he

would blow her brains out. He told her to open the cash drawer. She told him if he

wanted the cash drawer open he could do it himself. Ms. Berryman attempted to

grab a gun she kept under the counter, but Defendant wrestled it out of her hand.

Ms. Berryman was then struck on the head with a gun. During the scuffle, her arm

and a leg were injured and a stone was knocked out of her ring. According to Ms.

Berryman, after being struck with a gun, her head struck the counter as she was

knocked to the floor. Ms. Berryman stated Defendant stole about $150.00 and her

gun.

Ms. Berryman explained that when the officers first arrived at the scene, she

was unable to identify Defendant, as she was disoriented and upset due to

Defendant’s striking her head with a gun, and further due to her hitting her head on

the counter when she was knocked to the floor. The next day, after recovering from

the initial shock of the assault, Ms. Berryman told the police she knew who

Defendant was, as she was familiar with and recognized his voice. Ms. Berryman

explained she knew Defendant’s voice because he was a frequent customer of the

store. Defendant admitted in the recorded statement on August 6, 2009, that he

had worked for Ms. Berryman, cutting the grass behind the store with another

individual. In addition, he admitted that he had obtained “credit” from the store.

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Further, Defendant admitted that he came into the store a few minutes before the

incident to purchase cigarettes. Ms. Berryman testified that it was Defendant who

had robbed and battered her. She identified him as her assailant in court and

testified at trial, “But I thought about it. I had just talked to the man. And the voice,

it came back to me that was the same voice I had just heard.”

Michael Wilson, Assistant Chief Investigator for the Natchitoches Parish

Sheriff’s Office, testified at trial that he arrived on the scene shortly after the police

were notified. Based on the description given by Ms. Berryman of a person

wearing a heavy winter coat with a hood, he sent officers out into the Payne

neighborhood to canvas for potential witnesses. He also sent out police tracking

dogs.

The tracking dogs wound through the Payne neighborhood and ultimately

alerted on a pair of tennis shoes located on property where Defendant lived with

his mother. Defendant’s mother identified the shoes as those belonging to

Defendant. Officer Wilson testified that DNA testing verified that the DNA taken

from the shoes established they belonged to Defendant.

Michelle Vrana, a forensic DNA expert, testified at trial that Defendant

could not be excluded as the major contributor of the DNA located in the shoes.

Ms. Vrana further testified that the DNA extracted from the stone lost from Ms.

Berryman’s ring during the struggle, which was found by investigators at the

scene, did not contain any DNA consistent with Defendant’s DNA.

The canvas of the Payne neighborhood produced a number of witnesses who

gave statements and ultimately testified at trial about their encounters with

Defendant on the day of the incident. Officer Wilson testified that he interviewed

David Bradley, who said he saw Defendant the morning of the incident in the

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Payne subdivision wearing a black, heavy winter coat with a hood. Mr. Bradley

gave Officer Wilson a few names of others in the neighborhood who had also seen

Defendant the morning of the incident.

Prior to conducting interviews with those witnesses, Officer Wilson brought

Defendant into the police station and interviewed him. Defendant denied any

involvement in the robbery.

Officer Wilson then began a series of interviews with the individuals

identified by Mr. Bradley. These individuals included Rodney Goston and Tyrone

Demery. Each witness testified that they encountered Defendant around 10:00

a.m., while they were together on Mary Street. The witnesses knew Defendant

from the neighborhood, and each testified they saw him on the morning of the

incident wearing a heavy black coat with the hood up. However, when Defendant

stopped to talk to them later in the day, the hood was down. The men were amazed

that Defendant was wearing such a heavy coat in spite of the August morning heat.

When they questioned Defendant about wearing such a heavy coat in the heat, they

got no response. In addition, the men noticed that Defendant had blood on one of

his hands. Defendant told the three men that as he was walking through a small

wooded area located behind Ms. Berryman’s store, he was attacked by two deer.

As he ran from the deer, he fell and cut his hand. Each of the three men also

testified that they had never heard of deer being in that area.

Willie Easily also testified that Defendant stopped by his house for five to

ten minutes on the morning of the incident. Mr. Easily stated that Defendant was

wearing a heavy jacket with the hood up. Some twenty minutes later Defendant

returned wearing only jeans, without a coat or shirt. Mr. Easily noticed a cut on

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Defendant’s finger and Defendant explained that he “ran into some deer up in a

trail or something like that.” [sic]

Another neighborhood resident, Gary Braxton, testified at trial that he saw

Defendant on the morning of the incident walking along the street. Defendant

appeared to be counting money. According to Mr. Braxton, Defendant was bare

chested.

DeMaurice Moore, a neighbor who was friends with Defendant, told the

police that on the night of the incident, he and Defendant went out together. Mr.

Moore said Defendant bought two bottles of whiskey and paid for tickets so that

both could attend a concert at the local civic center. Mr. Moore later testified that

Defendant had won money gambling the night before.

Based on the information gathered from the individuals in the neighborhood

near Ms. B’s, Officer Wilson brought Defendant into the police station a second

time, Mirandized, and interviewed him. The interview was taped, transcribed, and

submitted into the record at trial. Defendant stated that on the morning of August

1, 2009, he got up about 6:30 or 7:00 a.m. He dressed in a white T-shirt, black

shorts, and tennis shoes. He went to Ms. Berryman’s store, bought some cigarettes,

and walked back home. Defendant claimed he did not see or talk to anyone other

than Ms. Berryman. He stated that he left to go to a funeral around 11:30 a.m. or

12:00 p.m.

Defendant told Officer Wilson that he had gone out with DeMaurice Moore

on the evening of August 1, 2009. He said that he had no money, and Mr. Moore

paid for everything. Defendant further stated that he cut his hand on the morning

of August 1st while styling his hair. Despite his mother’s prior identification of his

tennis shoes, Defendant denied that the shoes were his. When he was confronted

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with the witnesses’ statements taken in connection with the case, Defendant

contended that they were all lying.

Defendant’s testimony at trial was essentially the same as his interview,

except that he stated he won about $200.00 the night before the incident playing

dice. He insisted, however, that he had stashed the money at his grandmother’s

house the next morning, so he did not have money on the evening of the robbery.

Therefore, he had no money to buy alcohol or concert tickets, as Mr. Moore

claimed.

Defendant offered a picture of some bills lined up on a floor as proof that he

had money on the evening before the incident. The picture shows one ten, two

fives, and twenty-two one dollar bills. Defendant testified he was so excited to

have won the money that he ironed the bills for the picture. Although there appear

to be only $42.00 in the picture, he also testified the “[o]nes lined up . . . and they

got fives and the tens under it.” Defendant further testified that he did not tell

Officer Wilson about the money he had won gambling because Officer Wilson had

not asked about the money during the interview. A friend, Alex Pugh, testified that

he was with Defendant when he won some money playing dice.

Defendant finally admitted at trial that the shoes found behind his house

were his shoes, but claimed he sold the shoes a few weeks prior to the incident.

Defendant explained that he told the officer the shoes did not belong to him

because at the time of the questioning about the ownership of the shoes, he was

unaware of what shoes Officer Wilson was referencing.

Defendant then testified to a list of all of the grievances the witnesses had

against him to explain why they were lying about his actions on the morning of the

incident.

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ANALYSIS

In contesting Ms. Berryman’s identification, Defendant argues that: “the

record fails to reflect the only eyewitness failed to identify Kendrick by his voice

at trial, the only manner by which she could identify the person who robbed her.”

Defendant further argues that in the initial interview with police, Ms. Berryman

never identified Defendant as her assailant by his voice or by any of the physical

characteristics that she could see at the time of the incident, including his eyes or

the shape of his head. Defendant asserts Ms. Berryman was not offered the

opportunity to participate in a voice line-up due to her age and Officer Wilson’s

belief that Ms. Berryman was not an expert in voice recognition.

The State argues there was no need for a voice line-up, since Ms. Berryman

had already identified Defendant by his voice. We agree. In the case of

photographic or physical line-ups, a victim who could not identify the offender is

offered a line-up for the purpose of identifying the offender. However, if the victim

knows who the assailant was and can tell the police, a line-up may very well not be

necessary. In voice identification, if the victim could not see the perpetrator’s face

but had only heard his voice, then a voice line-up could be a useful tool to identify

the suspect. State v. Pickney, 97-1591 (La.App. 3 Cir. 5/27/98), 714 So.2d 854,

writ denied, 98-1857 (La. 11/13/98), 730 So.2d 457.

In Pickney, the victim of an aggravated rape did not know her assailant and

was unable to describe his face or estimate his height and weight, but said that she

would be able to recognize his voice. Accordingly, a voice recognition line-up was

prepared for her. She picked out her assailant, who was tried and convicted. On

appeal, Pickney complained his due process rights were violated as the voice

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identification line-up was suggestive and led to a substantial likelihood of

misidentification.

Pickney’s conviction for aggravated rape was affirmed by a panel of this

court on the basis that the identification procedures used in the voice line-up were

not unduly suggestive, thus the panel did not reach the issue of a substantial

likelihood of misidentification.

Defendant avers that the record does not reflect that Ms. Berryman

identified him by his voice during the trial proceedings. It appears Defendant is

suggesting that the State should have had Defendant stand and say a few words so

that Ms. Berryman could say, “Yes, that’s his voice, all right,” in order to have

proved its case. However, in a case with a similar fact scenario, State v. Mitchell,

35,970 (La.App. 2 Cir.5/8/02) 818 So.2d 807, the court held:

Voice identification is a problem of authentication rather than a
problem of a lay witness’s competency to identify a voice. Sufficient
authentication can be established by circumstantial evidence pointing
to the unseen speaker's identity or by testimony of a witness familiar
with the speaker’s voice. Authentication based on familiarity with the
speaker’s voice can be gained subsequent to the communication.
(Citations omitted.) State v. Green, 448 So.2d 782, (La.App. 2 Cir.
1984).

The trial court correctly found that the state laid a sufficient
foundation to support Cotty’s lay opinion testimony concerning her
inferences regarding the defendant’s voice which were drawn from
personal factual observations. Cotty testified that during the course of
the robbery, she heard the defendant’s voice “many, many times.”
Cotty stated that the defendant shopped in her store, and she had heard
his voice before. Cotty explained that the defendant’s mother and
family shopped at the store. She said her town was “little bitty,” and
she spoke to just about everyone who came into the store. This
argument is therefore without merit.

Id. at 816-17.

In Mitchell, a voice line-up was not required based on the foundation laid

that Mitchell had been into the store many times and the voice identification was

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based on the victim’s “personal factual observations.” Mitchell, at 816-817. In the

current case, which has almost identical facts to Mitchell, Ms. Berryman testified

that she talked to Defendant on numerous occasions, as he was often a customer in

her store. On the morning of the incident, Defendant had just been in the store to

purchase cigarettes. When he returned a short time later, he told her that he was

going to blow her head off and demanded that she open the cash drawer.

Ms. Berryman identified him as her assailant in court and testified at trial,

“But I thought about it. I had just talked to the man. And the voice, it came back to

me that was the same voice I had just heard.” Ms. Berryman also described the

heavy black coat with a hood that Defendant wore, which was an oddity because it

was such a hot August day. Defendant’s contention that a voice line-up should

have been conducted or that Ms. Berryman failed to identify him as her assailant at

trial has no merit.

Several witnesses who knew and spoke with Defendant that morning

testified that he walked up to them as they stood in the street wearing a heavy

black coat with a hood. One witness testified he saw Defendant counting money as

he walked along. Defendant said that he had no money with him on the evening

after the robbery, yet his friend, Mr. Moore, testified Defendant paid for alcohol

and concert tickets.

Defendant also submits that the DNA sample from the blue stone from Ms.

Berryman’s ring was not consistent with Defendant’s DNA and is clearly

exculpatory. The lack of Defendant’s DNA on the stone lost from Ms. Berryman’s

ring does not exculpate Defendant. Ms. Varna testified that Ms. Berryman’s DNA

was also not found on the stone and it may have simply popped out when she fell.

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In State v. Wommack, 00-137, p. 6 (La.App. 3 Cir. 6/7/00), 770 So.2d 365,

370, writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62, this court stated:

As stated above, the defendant’s appellate counsel contends the
evidence was insufficient, but does not specifically contest the
evidence as a whole. Rather, counsel points to several issues he
contends undercut the State’s case. First, counsel contests Ms.
Smith’s testimony regarding identification of the assailant’s voice.
We have pointed out that Ms. Smith testified she immediately
recognized the voice of the assailant as that of the defendant. She
stated she had worked with the defendant for approximately one and
one-half years and he had been friends with her husband. The
defendant had visited in her home and was a guest in her van on
several occasions. According to her testimony, Ms. Smith heard the
assailant’s voice on three separate occasions. Throughout the matter,
she was unequivocal in her identification of the assailant's voice as
that of the defendant.

Counsel argues that “[a]s Janet Smith told Officer Kenneth Pine
that she only recognized the assailant’s voice as his face was covered
and she could only see his eyes, there can be no earthly reason why a
voice identification line-up was not conducted.” Counsel asserts that
such a procedure could have established the defendant’s innocence.
While such a tool may have been available during the investigation,
there is no legal authority requiring its use. This argument is without
merit.

Similarly, in the current case, we find there is no merit to the assignment of

error that there was insufficient evidence to convict Defendant of the offenses

charged. Between Ms. Berryman’s testimony and the testimonies of the several

witnesses, viewed in a light most favorable to the prosecution, the jury had

sufficient evidence upon which to base the verdicts.

Finally, Defendant argues that defense counsel’s performance was defective

because he failed to seek a directed verdict or to file a judgment notwithstanding

the verdict “because the victim never identified Kendrick by voice at trial.” This

court also finds there was no defective performance on defense counsel’s part and

no merit to this assignment of error.

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DISPOSITION

Defendant’s convictions for armed robbery pursuant to La.R.S. 14:64 and

second degree battery pursuant to La.R.S. 14:34.1 are affirmed.

AFFIRMED.

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