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State v. Cockerham

Court of Appeals of Louisiana, First Circuit

September 21, 2017

STATE OF LOUISIANA
v.
KELLY B. COCKERHAM

         On Appeal from the 18th Judicial District Court In and for the Parish of West Baton Rouge State of Louisiana Trial Court Nos. 103430 and 111967, The Honorable J. Robin Free, Judge.

          Richard J. Ward, Jr. District Attorney And Terri R. Lacy Scotty Chabert, Jr. Assistant District Attorneys Port Allen, Louisiana, Attorneys for Appellee State of Louisiana.

          Katherine M. Franks Louisiana Appellate Project Abita Springs, Louisiana, Attorney for Defendant/ Appellant, Kelly B. Cockerham.

          BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.

          PENZATO, J.

         The defendant, Kelly B. Cockerham, was charged by bill of information with attempted simple burglary, in violation of La. R.S. 14:62 and La. R.S. 14:27. He pled not guilty and, following a jury trial, was found guilty as charged. He timely moved for a new trial; however, the record does not reflect that the trial court ruled on that motion. The trial court sentenced the defendant to six years imprisonment at hard labor, and the State then filed a multiple offender bill. After a hearing on the multiple offender bill, the trial court adjudicated the defendant a fourth-felony habitual offender, vacated the previous sentence, and resentenced him to twenty years at hard labor without benefit of parole, probation, or suspension of sentence, to be served concurrently with any other sentence being served. He appealed, arguing five assignments of error. Finding merit in assignment of error number two, regarding the trial court's failure to rule on the motion for new trial before sentencing, this court vacated the enhanced sentence, remanded the matter to the trial court for a hearing and ruling on the defendant's motion for new trial, and pretermitted discussion of the remaining assignments of error. This court further reserved for the defendant his right to appeal his conviction and sentence once more to this court. State v. Cockerham, 2012-0465 (La.App. 1st Cir. 11/14/12), 111 So.3d 384, 386. See also State v. Cockerham, 2014-1150, 2014 WL 12569974 (La.App. 1st Cir. 10/5/14) (unpublished).

         On remand, the trial court denied the motion for new trial. While the defendant reserved the right to appeal the fourth-felony adjudication, the parties stipulated to the evidence presented at the previous hearing on the multiple offender bill of information. The trial court resentenced the defendant to twenty years imprisonment at hard labor.[1] The defendant now appeals, re-assigning error to the sufficiency of the evidence, the habitual offender adjudication, the constitutionality of the sentence, and sentencing error. For the following reasons, we affirm the conviction, habitual offender adjudication, and sentence.

         STATEMENT OF FACTS

         On July 24, 2010, while sitting on his trailer porch during the night hours, Terry Shivers (the victim) noticed the dome light inside of his nearby truck come on. He walked over to the truck and saw a man getting into his truck. The victim pushed the door shut, told the man to back away, and asked the individual what he was doing digging around in the truck. The man replied that he was working for the district attorney's office, trying to find out who was stealing amps in the area. The victim asked the individual to present a badge, told him to get away from his truck, and an argument ensued. The two men argued for a few minutes, then the victim heard what he thought was the sound of a pocketknife being opened, at which point he retreated and called the police.

         West Baton Rouge Parish Sheriff's Office patrol officer Ezram Brown arrived at the trailer park and began patrolling the area for the perpetrator. The victim described the perpetrator as a white male between five feet ten inches, and six feet one inch tall, wearing a dark baseball cap, a gray muscle shirt, and beige shorts made out of material similar to jogging pants. Officer Brown saw the defendant, who was wearing beige shorts and no shirt, standing outside talking with another male. He began questioning the defendant and became suspicious when the defendant said that he had recently walked from the rear of the trailer park, which was where the victim's truck was located. The defendant allowed the officer to enter his trailer, and he showed him the clothes that he was wearing earlier in the evening. On a desk inside of the defendant's trailer was a muscle shirt and a cap, as well as a pocketknife. Officer Brown then read the defendant his Miranda[2]rights, placed him in handcuffs, and took him to the victim to be identified.

         Officer Brown first shined his flashlight into the backseat of the police car where the defendant was sitting, but the victim was unable to identify him as the perpetrator. The defendant was taken out of the car to allow the victim to get a better look at him, and as soon as the defendant spoke, the victim recognized his voice and identified him as the man he found inside of his truck. After the identification, the defendant was arrested and booked for attempted simple burglary.

         ASSIGNMENT OF ERROR NUMBER ONE

         In assignment of error number one, the defendant challenges the sufficiency of the evidence, contending that the State failed to establish identity beyond a reasonable doubt. The defendant claims that the identification was based solely on his voice and that the victim was unable to identify him by physical characteristics or clothing. The defendant argues that the identification process used in this case was suggestive, noting that there was no voice lineup to test the voice identification. The defendant further argues that there was no corroborating evidence such as fingerprints to link him to the crime, or any indication that the victim was familiar with the defendant's voice. The defendant notes that when he spoke in court, the victim stated that he did not sound like the perpetrator. The defendant further notes that his attire at the time of the identification did not match the description given by the victim of the perpetrator's attire. Moreover, the defendant notes that the victim believed that the perpetrator's hair was sandy blond, while the defendant has dark hair. The defendant concludes that no rational trier of fact could have found that the State had proven that he was the person who attempted to burglarize the victim's truck.

         A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const, amend. XIV; La. Const, art. I, § 2. The constitutional standard for testing the sufficiency of the evidence, enunciated in Jackson v. Virginia,443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime charged and defendant's identity as the perpetrator of that crime beyond a reasonable doubt. State v. Jones, 596 So.2d 1360, ...


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