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State v. Cochran

Court of Appeals of Louisiana, Third Circuit

December 18, 2019

STATE OF LOUISIANA
v.
MICHAEL JEROME COCHRAN A/K/A MICHAEL JEROME COCHRAN, JR. A/K/A MICHAEL COCHRAN

          APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. CR 159452 HONORABLE MARILYN C. CASTLE, DISTRICT JUDGE

          ANNETTE ROACH LOUISIANA APPELLATE PROJECT COUNSEL FOR DEFENDANT-APPELLANT: MICHAEL JEROME COCHRAN

          KEITH A. STUTES DISTRICT ATTORNEY, FIFTEENTH JUDICIAL DISTRICT ROYALE L. COLBERT, JR. ASSISTANT DISTRICT ATTORNEY COUNSEL FOR STATE-APPELLEE: STATE OF LOUISIANA

          Court composed of John D. Saunders, Elizabeth A. Pickett, and Van H. Kyzar, Judges.

          ELIZABETH A. PICKETT JUDGE.

         FACTS

         The defendant, Michael Jerome Cochran, allegedly raped a minor child, T. J., who was five to eight years old at the time of the crime. The defendant was charged with the aggravated rape of T.J. between October 9, 2010, and October 5, 2013, a violation of La.R.S. 14:42.[1] [2] A unanimous jury found him guilty of the responsive verdict of attempted aggravated rape, a violation of La.R.S. 14:27 and 14:42(A)(4), on August 21, 2018. The trial court denied the defendant's "Motion for Post-Verdict Judgment of Acquittal; Alternatively Motion for New Trial" at a hearing on December 11, 2018. The trial court immediately sentenced the defendant to twenty-five years at hard labor without benefit of parole, probation, or suspension of sentence. The trial court denied the defendant's motion to reconsider his sentence on January 15, 2019. The defendant now seeks review of his conviction and sentence.

         ASSIGNMENTS OF ERROR

1. The evidence introduced at the trial of this case, when viewed under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)[, ] standard, was insufficient to prove, beyond a reasonable doubt, all of the elements of attempted aggravated rape or the charged offense of aggravated rape.
2. The trial court erred in finding the Hearts of Hope recorded forensic interview was admissible, to the extent noted, as it contained other alleged bad acts both with the same victim and with other girls.
3. The sentence imposed by the trial court violates the Eighth Amendment of the Constitution of the United States and La. Constit. Art. I, § 20, as it was nothing more than cruel and unusual punishment and, thus, excessive.
4. The trial court erred in sentencing Appellant immediately following the denial of his Motion for Post-Verdict Judgment of Acquittal; Alternatively, Motion for New Trial and without obtaining a valid waiver from Appellant.
5. Counsel's representation of Appellant fell below that guaranteed by the Sixth Amendment.

         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 that has been assigned as error in Assignment of Error Number Four and will be discussed in that assignment of error.

         ASSIGNMENT OF ERROR NUMBER ONE

         The defendant argues that the evidence was insufficient to prove all the elements of attempted aggravated rape or aggravated rape beyond a reasonable doubt. 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); State v. Captville, 448 So.2d 676, 678 (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; 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, p. 5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 727). 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. [120, 134], 130 S.Ct. 665, 674, 175 L.Ed.2d 582 [(2010)] (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. Applied in cases relying on circumstantial evidence, . . . this fundamental principle of review means that when a jury "reasonably rejects the hypothesis of innocence presented by the defendant[ ], that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt." State v. Captville, 448 So.2d 676, 680 (La.1984).

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

         "Aggravated rape is a rape . . . where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because . . . the victim is under the age of thirteen years."[3] La.R.S. 14:42(A)(4). "Any person, who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended[.]" La.R.S. 14:27(A). "Mere preparation to commit a crime shall not be sufficient to constitute an attempt[.]" (La.R.S. 14:27(B).

         A number of witnesses testified in the defendant's case. The defendant consistently denied the charges against him and maintained his innocence.

         Lieutenant Martin Cormier

         Lieutenant Cormier of the Breaux Bridge Police Department investigated the defendant after Dr. Lawrence Christy reported "that the mother of a juvenile female contacted him regarding her daughter being inappropriately touched," and she wanted her daughter to be examined. The defendant's sister, Jene'a Frederick, had told the child's mother about the inappropriate contact. Lieutenant Cormier arranged for the victim to give a forensic interview at Hearts of Hope (HOH), a child advocacy center. Information obtained during Lieutenant Cormier's investigation showed an incident had occurred when the defendant made the victim perform oral sex on him at the food stamp office in Lafayette.

         The victim was ten years old at the time Lieutenant Cormier received the report. The incident occurred when the victim was approximately five to eight years old. Lieutenant Cormier first interviewed the victim's mother. He also interviewed Mrs. Frederick's husband, Robert Frederick.

         During the victim's HOH interview, she indicated the first of three separate incidents of assault occurred at her grandmother's residence in Breaux Bridge. She said the defendant called the victim to the back of the residence and placed his penis in her mouth.

         The second incident, the subject of the present charge, took place at the food stamp office in Lafayette. When Lieutenant Cormier learned of that incident, he contacted the Lafayette Police Department. No one ever reported a specific date or time for this incident to Lieutenant Cormier.

         Lieutenant Cormier's report indicated Mr. and Mrs. Frederick and the victim's mother went inside the food stamp office, and the victim remained in their vehicle with the defendant. The defendant made the victim put his penis in her mouth. When Mr. Frederick returned to the vehicle, the defendant "picked up his pants." During this incident, the defendant slapped the victim when she refused his instructions. The victim said "she was always threatened with bodily harm."

         The third incident occurred at the St. Francis Assisi Church in Breaux Bridge. The defendant took the victim home in her grandfather's vehicle but stopped at the church's hall on the way. He again made the victim perform oral sex on him. At the time of trial, the defendant was also facing charges in connection with the two Breaux Bridge incidents.

         The victim did not report the incidents to her mother because "[s]he was scared." Lieutenant Cormier testified juveniles often did not report sexual assaults because they were embarrassed or felt no one would believe them.

         Robert Frederick

         Mr. Frederick was incarcerated at the time of trial for failing to pay traffic tickets. He testified that he and his wife had been married "[a]bout eight years," and he had known the defendant "[a] few years."

         When the group arrived at the food stamp office, Mr. Frederick, his wife, and his cousin went inside. The defendant and the victim stayed in the vehicle. Mr. Frederick told Lieutenant Cormier he had returned to the vehicle and "seen [sic] [Defendant's] pants unzipped a little bit. And [the victim] was in the front seat." The defendant was in the back seat, and the victim was "[s]miling and happy."

         Mr. Frederick said he "ain't [sic] never seen [Defendant] make her do nothing [sic]." Mr. Frederick told his wife what he had seen, and she told the victim's mother. He denied ever telling his wife or Lieutenant Cormier that the victim was crying that day or that she appeared to want to be rescued.

         The victim's mother [4]

         Ms. Jean-Batiste, the victim's mother and the defendant's aunt, had cerebral palsy since birth. She learned something happened between her daughter and the defendant when Ms. Frederick came to her house and told her. She said that she talked to the victim, who told her the defendant "made her put her mouth on his wee-wee and suck." The victim's mother made an appointment with Dr. Christy and contacted Lieutenant Cormier. He "hooked [her] up with . . . Hearts of Hope." At the time of trial, the victim's mother said the victim was "so-so. Some days have bad, some days have good days."

         T.J., ...


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