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State v. Cofer

Court of Appeals of Louisiana, Third Circuit

April 5, 2017

STATE OF LOUISIANA
v.
STORMY NICOLE COFER AKA STORMY COFER

         APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 317, 937 HONORABLE MARY LAUVE DOGGETT, DISTRICT JUDGE

          Edward Kelly Bauman Louisiana Appellate Project COUNSEL FOR DEFENDANT- APPELLANT Stormy Nicole Cofer aka Stormy Cofer

          Phillip Terrell, Jr. District Attorney, Ninth Judicial District W. T. Armitage, Jr. Assistant District Attorney COUNSEL FOR APPELLEE State of Louisiana

          Stormy Nicole Cofer PRO SE

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks and Elizabeth A. Pickett, Judges.

          ELIZABETH A. PICKETT JUDGE

         FACTS

         On October 21, 2013, the defendant, Stormy Nicole Cofer, shot a gun through the window of the vehicle in which she was a passenger. The shot struck and killed the victim, Keiunna Collins.

         The defendant was charged with second degree murder, a violation of La.R.S. 14:30.1, on December 19, 2013. A jury found her guilty as charged on September 18, 2015. The trial court denied her motion for post-verdict judgment of acquittal and/or for new trial on September 28, 2015, and sentenced her to life in prison without benefit of parole, probation, or suspension of sentence. The trial court denied the defendant's motion to reconsider her sentence on January 25, 2016. The defendant now appeals, arguing that the evidence was insufficient to convict her because the state failed to carry its burden of proving that she had the specific intent to kill or inflict great bodily harm and that she did not act in self-defense; the trial court failed to adequately charge the jury; her counsel was ineffective; and her sentence is excessive.

         ASSIGNMENT OF ERROR

         The evidence herein is legally insufficient to sustain Stormy Cofer's conviction.

         PRO SE ASSIGNMENTS OF ERROR

1. Appellant's Sixth and Fourteenth Amendments to the United States Constitution [sic] were violated because the evidence is legally insufficient to support the conviction of second degree murder, as the State failed to meet its burden.
2. The trial court violated the Appellant's U.S. Constitution Sixth Amendment due process rights in the failure to adequately charge the jury.
3. Appellant's U.S. Constitution Sixth Amendment right to effective assistance of counsel was violated by trial counsel.
4. Appellant's U.S. Constitution Eighth Amendment right to protection against cruel and excessive punishment were [sic] violated when the trial court failed to consider a downward departure from the mandatory sentence.

         ERRORS PATENT

         In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there is one error patent, and the court minutes of sentencing require correction.

         The record before this court does not indicate that the trial court advised the defendant of the prescriptive period for filing post-conviction relief as required by La.Code Crim.P. art. 930.8. The trial court is directed to inform the defendant of the provisions of Article 930.8 by sending appropriate written notice to the defendant within ten days of the rendition of the opinion and to file written proof in the record that the defendant received the notice. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La. 2/10/06), 924 So.2d 163.

         The court minutes of sentencing also do not reflect that the defendant's life sentence was imposed at hard labor as indicated in the sentencing transcript. "[W]hen the minutes and the transcript conflict, the transcript prevails." State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62. The trial court is, therefore, ordered to correct the court minutes of sentencing to reflect that the defendant's sentence is to be served at hard labor.

         SUFFICIENCY OF THE EVIDENCE

         The defendant argues that the evidence at trial was insufficient to support her conviction for second degree murder and insufficient to negate a claim of self-defense. Alternatively, she argues she should have been found guilty of the lesser offense of manslaughter.

         The standard of review in a sufficiency of the evidence claim is "whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged." State v. Leger, 05-11, p. 91 (La. 7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279 (2007) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979), and State v. Captville, 448 So.2d 676 (La.1984)). The Jackson standard of review is now legislatively embodied in La.Code Crim.P. art. 821. It does not allow the appellate court "to substitute its own appreciation of the evidence for that of the fact-finder." State v. Pigford, 05-477, p. 6 (La. 2/22/06), 922 So.2d 517, 521 (citing State v. Robertson, 96-1048 (La. 10/4/96), 680 So.2d 1165, and State v. Lubrano, 563 So.2d 847 (La.1990)). The appellate court's function is not to assess the credibility of witnesses or to reweigh the evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442.

         The factfinder's role is to weigh the credibility of witnesses. State v. Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than insuring the sufficiency evaluation standard of Jackson, "the appellate court should not second-guess the credibility determination of the trier of fact, " but rather, it should defer to the rational credibility and evidentiary determinations of the jury. Id. at 1270 (quoting State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27). Our supreme court has stated:

However, an appellate court may impinge on the fact finder's discretion and its role in determining the credibility of witnesses "only to the extent necessary to guarantee the fundamental due process of law." State v. Mussall, 523 So.2d 1305, 1310 (La.1988). In determining the sufficiency of the evidence supporting a conviction, an appellate court must preserve "'the factfinder's role as weigher of the evidence' by reviewing 'all of the evidence . . . in the light most favorable to the prosecution.'" McDaniel v. Brown, 558 U.S. __, __, 130 S.Ct. 665, 674, 175 L.Ed.2d 582 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). When so viewed by an appellate court, the relevant question is whether, on the evidence presented at trial, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.

State v. Strother, 09-2357, pp. 10-11 (La. 10/22/10), 49 So.3d 372, 378.

         "Second degree murder is the killing of a human being" with the "specific intent to kill or to inflict great bodily harm[.]" La.R.S. 14:30.1(A)(1). "Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." La.R.S. 14:10(1). "Firing into a crowd is sufficient to establish specific intent to kill." State v. Williams, 13-497, p. 10 (La.App. 3 Cir. 11/6/13), 124 So.3d 1236, 1243, writ denied, 13-2774 (La. 5/16/14), 139 So.3d 1024.

[I]n a case in which defendant asserts that he acted in self-defense, the state has the burden of establishing beyond a reasonable doubt that he did not act in self-defense. State v. Brown, 414 So.2d 726, 728 (La.1982). When defendant challenges the sufficiency of the evidence in such a case, the question becomes whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self-defense.

State ex rel. D.P.B., 02-1742, p. 5 (La. 5/20/03), 846 So.2d 753, 756-57 (footnote omitted).

         Louisiana Revised Statutes 14:20(A) states, in pertinent part:

A homicide is justifiable:
(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.
. . . .
(3) When committed against a person whom one reasonably believes . . . is attempting to use any unlawful force against a person present in a motor vehicle . . . .
(4)(a)When committed by a person lawfully inside . . . a motor vehicle . . . when the conflict began, against a person who is attempting to make an unlawful entry into the . . . motor vehicle . . . and the person committing the homicide reasonably believes that the use of deadly force is necessary to prevent the entry or to compel the intruder to leave the . . . motor vehicle.

         In State v. Fox, 15-692, p. 4 (La.App. 3 Cir. 2/3/16), 184 So.3d 886, 890, writ denied, 16-404 (La.3/13/17), __ So.3d __, this court stated:

"In examining a self-defense claim, it is necessary to consider: (1) whether the defendant reasonably believed that he was in imminent danger of death or great bodily harm; (2) whether the killing was necessary to prevent that death or great bodily harm; and (3) whether the defendant was the aggressor in the conflict." State v. Mayes, 14-683, pp. 2-3 (La.App. 3 Cir. 12/23/14), 154 So.3d 1257, 1259, writs denied, 15-178, 15-220 (La.11/16/15), 184 So.3d 24. Additionally, in determining whether the defendant had a reasonable belief that the killing was necessary, it is appropriate to consider "the excitement and confusion of the situation, the possibility of using force or violence short of killing, and the defendant's knowledge of the assailantʼs bad character." State v. Thomas, 43, 100, p. 5 (La.App. 2 Cir. 4/30/08), 981 So.2d 850, 854, writ denied, 08-1276 (La.2/6/09), 999 So.2d 769.

         "Manslaughter is [a] homicide which would be [first or second degree murder], but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection." La.R.S. 14:31(A)(1). "'Sudden passion' and 'heat of blood' are not elements of the offense of manslaughter; rather they are factors which serve to mitigate murder to manslaughter." State v. Vercher, 14-1211, p. 10 (La.App. 3 Cir. 5/6/15), 162 So.3d 740, 746, writ denied, 15-1124 (La. 5/20/16), 191 So.3d 1065. The defendant must prove these mitigating factors by a preponderance of the evidence. State v. Guillory, 16-237 (La.App. 3 Cir. 11/2/16), 206 So.3d 1153.

         Many witnesses testified at trial. Some, including the defendant, established the victim as the aggressor at the time of the shooting, while others portrayed the defendant as gunning down the victim.

         Henrika Bruins

         Henrika Bruins testified she "was side by side with Keiunna" and "witnessed [the defendant] taking Keiunna's life." Bruins testified that she, Keiunna, Shakay Holmes, and another female were going to a store. As they crossed the street, "a gray like old school car" rounded a corner. As soon as the victim said, "there goes Stormy, " the defendant "leaned over the middle console through the driver's side and shot one time." The defendant was in the passenger's seat. Bruins said the victim "just stumbled over and she fell."

         According to Bruins, prior to the shooting, the women were walking "just side by side, just singing a song." The victim did not attempt to get into the vehicle, and she was ten to fifteen feet from the driver's side when she was shot. The victim had nothing in her hands when she was shot. Bruins identified the defendant as the shooter at trial.

         On the night of the shooting, Bruins gave a statement to police saying the group was "talking noise, " which she explained was "[l]ike talking trash, " in a confrontational manner. At trial, she said they were "talking noise amongst each other. We wasn't [sic] talking noise to [the defendant]." She testified no conversation took place between Bruins and anyone in the vehicle, which was going "no faster than ten miles per hour" and "never came to a complete stop" after the shooting.

         Shakay Holmes

         The victim went to Holmes's residence around 3:00 p.m. on the day of the shooting. Holmes said she and the victim had a conversation about a fight involving the defendant earlier in the day. The victim was dating someone the defendant previously dated, and that was why the two did not get along.

         Holmes and the victim then went to B. Love's house on Harris Street to "hang out." Holmes said they had no plan to fight with anyone, but the victim was getting calls from the defendant. Holmes and the victim sat in the car until Holmes got out to walk to the nearby store. The victim and two other girls walked behind her.

         Holmes testified that as the victim walked across the street behind Holmes, "the car pulled out and stopped her from walking, " between the victim and Holmes. "[T]he car stopped and everybody just looked at the car." Holmes saw the defendant on the passenger side. As the victim started to go around the car, the defendant shot her. She said the victim had no weapon and was "maybe a foot or two away" from the car; she did not touch or kick the car or pull on the door handle. The defendant leaned across the driver and shot out the window, pointing the gun toward the victim. The vehicle came to a complete stop and then left the scene. Holmes never heard the victim say the defendant was in the car. According to Holmes, the victim did nothing to incite the shooting. No one in the street blocked the vehicle so that it could not move. After the victim was shot, Holmes saw "she had a box cutter and mace[.]" Holmes "never knew she had it on her though." The items were in the victim's bra; she had nothing in her hands when she was shot.

         At trial, defense counsel questioned Holmes about a prior incident caught on video about a month and a half before the shooting. Holmes and the victim were in a car smoking marijuana when the defendant pulled her car in front of them. The victim said they would go to the defendant's house and "beat her up." They followed the defendant to her house, where the victim asked the defendant to fight her in the street. The defendant did not fight the victim. Holmes did not know the defendant before that day.

         Holmes reviewed the video submitted as Exhibit D-1 and confirmed the video accurately depicted what they did that day. It was uploaded to Instagram. Holmes was not sure if it was also posted on Facebook. Those shown in the video were following the defendant because she had been driving a vehicle that was coming toward the victim's vehicle. The victim's vehicle, in which Holmes was a passenger, "had to brake and . . . make a quick move before [it] wrecked." The victim then decided to follow the defendant to her house. Holmes identified the victim as the individual standing in the street in the video.

         LaQuandra Baxter

         Baxter was a friend of the defendant, "[m]ore like a sister." On the day of the shooting, Baxter was walking toward the store when she saw the victim get shot and "fall on the parking lot." Baxter saw the defendant in the car with the gun. She said she did not see the victim try to open the vehicle's door or shout at anyone in it. However, two females with the victim were shouting toward the vehicle, "hoorahing it on[.]" Baxter saw the defendant shoot the victim.

         Tesla Foots

         Tesla Foots testified she was jogging on the Lee Street sidewalk at the time of the shooting. The victim was on Foots's left side when she was hit by a shot that "came from an old school gray car." The victim was not touching the car, trying to get in it, yelling or screaming. Foots did not know the victim; they were crossing the street at the same time. Foots held the victim as she died. According to Foots, the car was moving when the shot was fired, and it never stopped.

         China Gold

         China Gold said that she met up with the defendant at the home of Jernisha Jenkins about an hour before the shooting occurred.[1] The defendant picked them up, and they went to the defendant's house for the defendant to get ready for school. Gold first testified Bruins and a group of other girls in a black Charger, a gray Charger, and a gray Honda passed by the defendant's house and called her "a b-i-t-c-h" and other names. However, Gold later said she "didn't hear nobody say nothing [sic]." The cars "just passed by speeding and they turned out." The cars were on a side street two houses down from the defendant's house, and they passed without honking.

         Around 5:00 p.m., Gold, her baby, Jenkins, Jenkins's cousin, the defendant, and the driver of the vehicle (Gold did not know his name) left the defendant's house on Van Street in an older model gray or silver Impala. Gold was seated behind the defendant on the passenger's side. The group planned to pick up another person in Pecan Grove, and then the defendant was going to school. They had no plans to fight anyone.

         When they turned onto Dallas Street, they saw "Keiunna Collins and them" walking across Lee Street. Jenkins told the driver to turn left because it was faster to get to Pecan Grove. The defendant "said go to the right so she could stop from seeing all the people that was walking across the street." Gold said the group walked in front of the stopped car; "[i]f the car would have kept going, they would have got hit." Bruins "was in front of the car telling [the defendant] to get out [of] the car. Gold said she heard Bruins say "the B word[.]" Bruins "stopped like she was going on [the defendant's] side of the car." Gold said Bruins "was like, get out the car. Let's fight. Bitch, get out the car." The victim was a few steps away from the driver's side.

         Gold said Bruins was lying if she said she was singing and never got in front of the car. Gold also described what the victim did as: "You know how you like you walk away - hype - like she wanted to fight. Like she was like, come on let's fight. Like basically telling her to get out of the car" with hand motions. The victim was "walking with fury[.]" She never hit the car or tried to open its door. She had no backpack, knife, or anything in her hands. She came no closer than four feet from the car.

         With the car stopped, the driver of the vehicle leaned back in his seat, and the defendant "came up with the gun and she shot [the victim]." Gold saw the gun in the defendant's hand, and she saw her shoot through the lowered window.

         The victim was on the side of the car by the driver's door.

         The driver "took off" after the shooting. He put them out of the car on another street. "[The defendant] went her way, " and Jenkins's grandfather took the rest of the group to the police station.

         Before the defendant, Gold, and the rest of the group left the defendant's house prior to the shooting, Gold said she saw the never saw the defendant or the driver with a gun. Rather, Gold saw a man named Alfred King "come through the backyard with a black gun and he went in the house and ain't [sic] see him no [sic] more." Gold and Jenkins were outside, and the defendant was inside. Gold thought Norris, who later drove the car when the victim was shot, was also inside.

         Jernisha Jenkins

         Jenkins and the defendant were close friends. She had also known the victim for about a year, and she said they "had just started being close around the time everything had happened." However, she also testified that they were close enough friends that the victim lived with her. She testified that the defendant and the victim had a history of disagreements involving Timothy "Iceberg" Ricard, a ...


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