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State v. Cohen

Court of Appeals of Louisiana, Third Circuit

May 8, 2019

STATE OF LOUISIANA
v.
DONASTY ANWANIQUE COHEN

          APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 332, 130C HONORABLE MARY LAUVE DOGGETT, DISTRICT JUDGE

          Edward K. Bauman La Appellate Project COUNSEL FOR DEFENDANT/APPELLANT: Donasty Anwanique Cohen

          Hon. Phillip Terrell, Jr. District Attorney Catherine L. Davidson Cheryl A. Carter Assistant District Attorneys Ninth Judicial District Court COUNSEL FOR APPELLEE: State of Louisiana

          Court composed of Phyllis M. Keaty, D. Kent Savoie, and Van H. Kyzar, Judges.

          D. KENT SAVOIE JUDGE.

         Defendant, Donasty Anwanique Cohen, was charged by indictment filed on February 22, 2017, with second degree murder, a violation of La.R.S. 14:30.1. Trial by jury commenced on November 7, 2017. Defendant was subsequently found guilty of the responsive verdict of manslaughter, a violation of La.R.S. 14:31. On January 23, 2018, Defendant was sentenced to serve seventeen years at hard labor, without benefit of probation, parole, or suspension of sentence. Defendant now appeals asserting three assignments of error: 1) the evidence was insufficient to support her conviction; 2) her sentence is excessive; and 3) the trial court erred in denying her challenges for cause. For the following reasons, we affirm as amended with instructions.

         FACTS

         Defendant and Kenneth Anderson were the sixteen-year old parents of twenty-seven day old Ashtyn Cohen. The three lived in the home of Kenneth's grandmother, Susie Willis. Kenneth's brother, Kalib Anderson (who was fifteen years old at the time of trial), also lived in the home. On January 2, 2017, Susie called 911 because Ashtyn was having trouble breathing. Ashtyn subsequently died, and Defendant was charged with second degree murder in his death.

         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, we find an error present.

         The trial court erred in ordering Defendant's sentence to be served without benefit of parole.[1] Defendant was sentenced to serve seventeen years without the benefit of parole, probation, or suspension of sentence. Louisiana Revised Statutes 14:31 provides, in pertinent part:

B. Whoever commits manslaughter shall be imprisoned at hard labor for not more than forty years. However, if the victim killed was under the age of ten years, the offender shall be imprisoned at hard labor, without benefit of probation or suspension of sentence, for not less than ten years nor more than forty years.

         During its recitation of the reasons for the sentence, the trial court noted that because the victim was under the age of ten, the law provided for a minimum sentence of ten years and a maximum sentence of forty years. Under that sentencing provision, Defendant was ineligible for probation or suspension of sentence. The sentencing provision, however, requires no restriction of parole eligibility. The trial court also stated that manslaughter is designated as a crime of violence. At the time the offense was committed, La.Code Crim.P. art. 893(A) prohibited a suspended sentence for an offense designated as a crime of violence. Article 893 did not, however, authorize the trial court to restrict parole for an offense designated as a crime of violence. Thus, the trial court erred in ordering Defendant's sentence to be served without the benefit of parole. Accordingly, Defendant's sentence is amended to delete the denial of parole eligibility, and the trial court is instructed to make an entry in the minutes reflecting this change. See State v. Batiste, 09-521 (La.App. 3 Cir. 12/9/09), 25 So.3d 981; State v. Levy, 08-1467 (La.App. 3 Cir. 6/10/09), 12 So.3d 1135; and State v. Dupree, 07-98 (La.App. 3 Cir. 5/30/07), 957 So.2d 966.

         ASSIGNMENT OF ERROR NUMBER ONE

         In her first assignment of error, Defendant contends the evidence adduced at trial was legally insufficient to sustain her manslaughter conviction.

In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the Supreme Court set forth the constitutional standard for testing sufficiency of the evidence, requiring 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 beyond a reasonable doubt. Pursuant to La.R.S. 15:438, "[t]he rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence."
Circumstantial evidence involves, in addition to the assertion of witnesses as to what they have observed, a process of reasoning, or inference by which a conclusion is drawn. Like all other evidence, it may be strong or weak; it may be so unconvincing as to be quite worthless, or it may be irresistible and overwhelming. There is still no man who would not accept dog tracks in the mud against the sworn testimony of a hundred eyewitnesses that no dog passed by. The gist of circumstantial evidence, and the key to it, is the inference, or process of reasoning by which the conclusion is reached. This must be based on the evidence given, together with a sufficient background of human experience to justify the conclusion. Prosser, [Law of Torts], at p. 212.
Consequently, before a trier of fact can decide the ultimate question of whether a reasonable hypothesis of innocence exists in a criminal case based crucially on circumstantial evidence, a number of preliminary findings must be made. In addition to assessing the circumstantial evidence in light of the direct evidence, and vice versa, the trier of fact must decide what reasonable inferences may be drawn from the circumstantial evidence, the manner in which competing inferences should be resolved, reconciled or compromised; and the weight and effect to be given to each permissible inference. From facts found from direct evidence and inferred from circumstantial evidence, the trier of fact should proceed, keeping in mind the relative strength and weakness of each inference and finding, to decide the ultimate question of whether this body of preliminary facts excludes every reasonable hypothesis of innocence.
State v. Chism, 436 So.2d 464, 469 (La.1983).
. . . .
In reviewing the jury's verdicts, we are not required by constitutional law to determine whether we believe that the evidence establishes guilt beyond a reasonable doubt or even whether we believe the witnesses. Jackson, 443 U.S. 307, 99 S.Ct. 2781; State v. Mussall, 523 So.2d 1305 (La.1988). Discretion in determinations of credibility is vested in the jury, which may accept or reject testimony within the bounds of rationality, and we will only impinge upon its discretion "to the extent necessary to guarantee the fundamental protection of due process of law." Mussall, 523 So.2d at 1310. Rather, we are charged in this case with reviewing the record to determine whether the evidence and the reasonable findings and inferences permitted by that evidence were sufficient to exclude every reasonable hypothesis of innocence. Chism, 436 So.2d 464.

State v. Buteaux, 17-877, pp. 11-13 (La.App. 3 Cir. 3/14/18), 241 So.3d 1094, 1101-02.

         As noted above, Defendant was convicted of manslaughter, which La.R.S. 14:31(A)(1) defines as:

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. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender's blood had actually cooled, or that an average person's blood would have cooled, at the time the offense was committed[.]

         The elements of "sudden passion" and "heat of blood" are mitigating factors in the nature of a defense and must be established by a defendant by a preponderance of the evidence. "Provocation and time for cooling off are questions for the jury to be determined under the standard of the average or ordinary person, one with ordinary self-control." State v. Reed, 14-1980, p. 24 (La. 9/7/16), 200 So.3d 291, 311, cert. denied, ___ U.S.___, 137 S.Ct. 787 (2017).

         Larry Brown was employed by Acadian Ambulance on January 2, 2017. He testified that, on that date, he was dispatched to 385 Cook Avenue. Upon his entry into the residence, Kenneth came out of the hallway and approached Brown with a baby that was face down. The baby was "limp, blue, cyanotic and very gray in color," and Brown knew the baby was in cardiac arrest. Kenneth handed the baby to Brown and stated he did not know what was wrong. Brown began performing CPR at that time, but the baby did not respond. Brown testified that he asked Kenneth what happened but could not get an answer. He then went to the couch where Defendant was sitting. Defendant also stated she did not know what had happened to the baby. Brown testified, "there was no remorse. It's more of when I asked her a question, she just kind of rolled her eyes at me."

         Because the room was crowded, Brown took the baby outside and continued CPR. Once the "unit" arrived, he put the baby on a stretcher. That was when he noticed bruising on the baby's right temple, face, and abdomen. When police arrived, Brown showed them the bruising, and they took pictures. Brown indicated Defendant did not approach the ambulance, ask questions, or cry, and was not hysterical. Brown testified that it was not common to see that type of bruising on a twenty-eight-day-old baby.[2] Brown stated the bruising he observed was not from CPR. Austin Rivers and Benjamin Fontenot, employees of Acadian Ambulance, were present as well. They both testified that they saw bruising around both of the baby's eyes, his mouth, and his abdomen.

         Officer Samuel Propst arrived on scene when Brown was performing CPR on the baby. Brown asked him to keep people away from the truck so he could continue his efforts to save the baby. Officer Propst observed bruises on the baby's abdomen and head. He and a trainee secured the scene until the crime scene division and detectives arrived. The occupants of the home, including "the brother, the mother, the father and the grandmother," were transported to the police department for questioning. Officer Propst advised them of their rights, and let them know they would be questioned by a detective.

         Juvenile Detective Terrance Howard testified that Susie slept on the couch in the living room; Defendant, Kenneth, and Ashtyn shared a room and a bed; and Kalib had his own room. Detective Howard interviewed Defendant and was questioned about that interview as follows:

Q Tell us - what did she tell you as to the incident?
A Initially she advised that she was asleep. She didn't know what happened. Kenneth woke her up. The baby was gasping. They woke up Ms. Susie. Ms. Susie notified the paramedics. And then they were brought to the police station.
Q Okay. And did she indicate that - so she said Kenneth was holding the baby?
A Right.
Q Did she indicate whether or not Kenneth was feeding the baby or anything? Just holding the baby?
A I think later in the interview she said that Kenneth told her he fed the baby. But I don't think she saw him feed the baby. If that makes a difference. I think she said that he told her he fed the baby.
Q Okay. And what else did she tell you?
A I asked her about the bruising to the baby's face. She said she only noticed the bruises when Kenneth woke her up and told her that the baby wasn't responding - that the baby was gasping for air.
Q Did you talk to her about the bruising on the abdomen and the back of the baby?
. . . .
A . . . I believe she said that she didn't know about them. Kenneth was the one that usually changed the baby. And I think he said vice versa - it was her that usually changed the baby and he didn't know about them.

         Detective Howard testified that Defendant indicated Kenneth was the baby's primary caretaker, and Kenneth indicated she was. Detective Howard clarified that Defendant said she saw bruises on the baby's face after Kenneth woke her up. Detective Howard further testified about his interview with Defendant as follows:

Ms. Susie - I don't know if it was Ms. Susie's daughter or her sister -Kenneth's aunt, I believe, was there during the day. They played with the baby in the living room. Kalib left to play with friends. Initially I think she went to bed. Kenneth came in with the baby. Kenneth sat on the edge of the bed scrolling through TV guide I believe she said. He handed her the baby. Woke her up, gave her the baby, told her he was going to take a shower. He supposedly left and took a shower, came back. He said that the baby was up. So he went to the kitchen to get a bottle. Came back, fed the baby. After he fed the baby, he said he left to put the bottle back up. When he came back the baby was gasping. He didn't know what to do. He grabbed a syringe, cleared the nose and mouth. The baby still wasn't responding. He woke up Donasty then Ms. Susie and they notified paramedics.

         Defendant indicated to Detective Howard that she noticed bruising on the baby after Kenneth took a shower. She had not seen it before that time.

         Detective Howard was further questioned about the interview as follows:

Q And I believe in the statement you asked her what was Ashtyn wearing and her answer was he had a bruise right before but it looked like it was going away. Do you remember her saying that?
A Right. Under the chin. Which Detective Bowens or any other advise of a bruise on the chin. The bruising that they told me was the face and abdomen, and then the scabs on the back.
. . . .
Q So she indicated she saw bruising on the chin?
A She did, but I believe she stated she didn't know where it came from.

         Detective Howard indicated Ashtyn had scabs on his back, indicating old injuries. Detective Howard testified that Defendant either did not know about the scabs or did not know where they came from.

         Detective Howard was asked about Defendant's demeanor. He indicated that initially "it was like she just didn't care. Nonchalant. But once the baby passed, she showed a little emotion." Detective Howard described her reaction as a whimper. He thought she began to cry when he told her she would be brought to the Renaissance Home, a detention center for juveniles. He stated that Kenneth "was the same way. He showed no emotion, even after I told him the baby had passed. He was just okay."

         Susie told Detective Howard the baby was fine before the "baby went in the room. All parties indicated the baby was fine before he went in the room." Detective Howard testified that Susie told him Defendant and Kenneth were in the room with Ashtyn.

         Detective Howard further testified regarding Defendant's knowledge of the events as follows:

A . . . she seemed she didn't care. She didn't have any knowledge of any of the baby's injuries - the scabs, the bruising, anything. Even asking her did she hear any noise, she said she was asleep.
. . . .
A . . . The baby was in the room with her, in the bed with her. If anything was going on, she should have been aware of it. The baby was crying, screaming - they're in the same bed you know. It's kind of hard for me to believe that she had no knowledge of what was going on when she was right next to the baby, the victim.

         Defendant said she never saw Kenneth or Susie hit or abuse the baby. She also stated Kalib "never had the baby," as they did not allow him to "have the baby." Defendant indicated it was not possible that the baby fell. Defendant reported she left Ashtyn with Susie that day while she went to the store, and Ashtyn was fine upon her return. Detective Howard later testified:

Based on all accounts, the baby was fine until the baby went in the room with Kenneth and Donasty. Donasty was in the bed, apparently awake when Kenneth came in. According to both their testimony [sic], I believe Kenneth said she was up and he gave her the baby. I believe she said she was asleep and he woke her up and gave her the baby. Both accounts, she received the baby from him. They were in the bed. If anything happened from that time until the time they called the paramedics, [it's] her and Kenneth in the room. I don't see how she wouldn't know what happened.

         Detective Howard was further questioned about the bruising as follows:

Q Okay. And Donasty in her conversation with you and her interview with you indicated that she was not aware of the bruising or she did not know where the bruising had come from?
A Correct.
Q Where did she say she saw bruising?
A Around - I believe she said the right eye. I believe he said the left eye. Or vice versa. They both gave the opposite side of the face. But they both indicated that it was bruising to the face.

         Detective Howard indicated Defendant initially said she did not know what occurred. She then stated she was asleep, Kenneth brought her the baby, and Kenneth woke her up and told her that Ashtyn was gasping for air or was unresponsive. Detective Howard then asked Defendant what led to Acadian Ambulance arriving at the residence. Detective Howard was then questioned regarding this interaction as follows:

A She said her son stop[ped] breathing.
Q . . . And then you asked how do you know that, is that correct?
A Yes.
Q What was her response?
A She didn't see his stomach moving.
Q Okay. So the truth is she did know that her son was not breathing, is that correct? Based on her statement?
A Yes, sir.
Q But then you kind of let it go, as good detectives do, and you came back to it, didn't you?
A Yes, sir.
Q And her story changed a little bit. You followed back up by asking about Kenneth being in the shower?
A Correct.
Q And then she gave you a different story about what happened when he got out of the shower?
A I believe she said that he woke her up and said that the baby was gasping for air.
Q And then they went and got grandmother who called?
A And she called the paramedics.
Q So she did observe the baby [be]cause she told you that, correct?
A Correct.
Q Because she noticed the baby's stomach was not moving?
A Correct.
Q You also asked her at that time, in the beginning of the statement, who was all with her. Do you recall who she said?
. . . .
Q In the room when the baby - she observes the baby's stomach not moving?
A Her and Kenneth.

         Defendant never asked to stop the interview so that she could go check on her son. Detective Howard did not recall Defendant asking about the condition of the baby. However, after the first time Ashtyn coded, Officer Littleton called every few minutes to say the baby coded again and to ask what Defendant wanted to do. In response to Officer Littleton's question, Defendant indicated she wanted life-saving efforts to continue.

         Detective Torence Bowens was present during Defendant's interview with Detective Howard. He reinforced Detective Howard's testimony, adding that Defendant appeared to be "very detached" during the interview. According to Detective Bowens, Defendant showed a little emotion when she was told the baby died and a lot of emotion when she was told she would be detained at Renaissance Home.

         Dr. Christopher Tape was accepted as an expert forensic pathologist. He performed an autopsy on Ashtyn Cohen on January 3, 2017. Dr. Tape opined that Ashtyn was twenty-seven days old and suffered blunt force trauma to the head. Externally, there was a contusion to the right cheek that was eight by seven centimeters. There were hemorrhages in the whites of the eye and the inner eyelid.

         The petechial hemorrhages of the eye were a direct result of whatever caused the cheek injuries. Internally, there was hemorrhaging of the right scalp and right temporalis muscle. There was also a left scalp hemorrhage. There was a traumatic brain injury and a subdural hemorrhage, between the dura and the brain, on both sides. There were also subarachnoid hemorrhages in the area of the bridging veins, veins between the dura and the brain, that were broken due to shearing forces, most typically due to acceleration/deceleration. Dr. Tape described shearing forces as "kind of side to side." The corpus clausum, a piece of tissue about half a centimeter wide that connects the two hemispheres of the brain, was torn. Dr. Tape opined that injury may have also been the result of shearing forces, swelling, or from being connected to a respirator. Dr. Tape examined the baby's eyes and found hemorrhages in the retina and the optic nerve. Dr. Tape believed this was caused by brain swelling.

         There were blunt force injuries to the external body. There were contusions to the left upper chest, left lower chest, right abdomen, and right lower back. There were also multiple healing lacerations with scabs on the back and multiple healing lacerations where the scabs had been recently removed.

         Dr. Tape found injuries to the muscles next to the vertebrae. The eleventh rib on the back side was fractured very close to "where it comes to the vertebrae." There was a hemorrhage and a contusion to the middle portion of the right lung, a contusion or hemorrhage to the diaphragm, and a liver contusion and laceration that extended into the parenchyma. There was also hemorrhaging around the right kidney and the right adrenal, which was probably due to the liver laceration. There was a hemorrhage or bruise on the surface of the esophagus. There was also a hemorrhage to the right hip area, which included "internal injuries along the soft tissue and is actually tracking down into the scrotum." The injuries were the result of blunt force trauma. Dr. Tape testified there were 200 cubic centimeters (cc) of blood in the abdominal cavity and another 200 cc in the right thoracic cavity. Dr. Tape indicated that was a significant amount of blood.

         Dr. Tape was then questioned as follows:

Q Okay. Now, the liver and the other injuries that you are talking about - was this a one time or ongoing type of injuries [sic] that you observed during your autopsy?
A These are all roughly the same age. And this child isn't very old, obviously. But there are so many injuries - you can't have an injury to the head and the body. I can take my hand and make a big injury on the body and cover say the liver and the lung and that sort of thing. But I can't cover the head as well. So it would have to be some sort of separate injury.
Q The injuries that was [sic] done to this baby with the liver, would that be within hours or days? Or how long?
A One of the things I did in this case, and very typically in a case like this, is I take multiple - make multiple microscopic slides in multiple places of where the injuries are. And what you can see is when you first get injured, you've got fresh red blood cells and then they become broken down or laced. And then you sort of get acute inflammation and you get chronic inflammation. So we have in these injuries anywhere from acute injuries with just intact red blood cells to sort of a little bit of acute and chronic inflammation. So we're talking days old. Maybe three days to five days, give or take on the liver and the head injury. They're not weeks old. But I can't rule out that they were separate. You know, it could have been three days and five days. Because those are overlapping ranges, obviously.

         Dr. Tape stated that he gave his opinion in an autopsy report ten percent of the time and did so in this case to support his conclusion that the death of the baby was a homicide. He read his opinion:

[T]he injuries are acute - which I believe many approximately days old. Although there are injuries involving the liver, it suggests healing as well as the scabs on the back which are both more remote. I want to add to that, I think the subdural hemorrhage is also probably days old as well.
. . . .
And then I say, . . . a 27 day old infant cannot move extensively on its own and therefore any injuries are either due to accident or intentionally inflicted or both. Given the multiple locations of injuries, including the head and abdomen, and the severity of the injuries including a liver laceration and brain injury, as well as different healing injuries, implying multiple events, the most likely cause of these is intentional infliction, non-accidental trauma . . . . For these reasons the manner of death of homicide is most appropriate.

         He could not determine the order in which the injuries ...


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