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11/28/00

SUPREME COURT OF LOUISIANA
No. 97-KA-2020 STATE OF LOUISIANA v. FRANK FORD COSEY On Appeal from the 19th Judicial District Court, For the Parish of East Baton Rouge, Honorable Jewel "Duke" Welch, Judge

VICTORY, J. On July 31, 1990, an East Baton Rouge Parish grand jury indicted defendant Frank Ford Cosey for first degree murder in violation of La. R.S. 14:30. The jury found defendant guilty as charged at trial and, at the penalty phase, unanimously returned a verdict of death finding: (1) defendant was engaged in the perpetration or attempted perpetration of an aggravated or forcible rape; (2) defendant has previously been convicted of an unrelated armed robbery; and (3) the offense was committed in an especially heinous, atrocious, and cruel manner. Defendant now appeals his conviction and sentence to this Court raising 19 assignments of error in 48 arguments.1 None of the claimed errors are meritorious. Therefore, we affirm defendant's conviction and sentence. FACTS On July 6, 1990, Sharon Horton, the victim's mother, went to work at approximately 2:30 p.m.. She left her 12-year-old daughter, Delky, at home. When Ms. Horton returned from work at approximately 11:30 p.m., Delky was not in the living room watching television as was customary. Ms. Horton walked to the back of the house and found her daughter, naked and in a spread eagle position, on the floor
Assignments of error not treated in this opinion are addressed in an Unpublished Appendix to this opinion.
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of the master bedroom. Delky's throat had been slashed and she appeared to be dead. Ms. Horton called 911 and then tried to administer C.P.R. until the paramedics arrived and removed her from the house.2 Shortly thereafter, Horton saw her neighbor, Patrick Jenkins, and told him that someone had killed her daughter.3 He asked her if she found a bank in the house, and explained that he had seen Frank Cosey with a bank earlier in the day.4 The next day, Horton discovered an acrylic bank on her kitchen counter. In addition, she found a piece of pink note paper with the name Frank and defendant's phone number written in Delky's handwriting. Based on the statements made by Jenkins, the police questioned him about the night of the murder and also questioned Frank Cosey as a possible suspect. Once they matched Cosey's fingerprints to prints lifted from the scene, the police obtained an arrest warrant for defendant. Pat Lane, the forensic scientist who led the crime scene investigation, explained at trial that he collected a white Circle K bag, which contained a grey hat and a steak knife with a wooden handle, found next to the victim's body. He also collected a carving knife which was on the floor by the victim's right leg. This knife was part of a set in Horton's kitchen. Lane also retrieved a purple comforter which was

underneath the victim's body. Semen stains on the comforter were tested for DNA evidence and matched to defendant.5 Lane was also able to match prints taken from the dresser in the master bedroom to defendant's left and right palms. In addition, a print lifted from the Circle K bag was matched to defendant's right little finger.

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Her daughter was dead when the paramedics arrived.

Jenkins and defendant each lived across the street from the victim, though not in the same apartment. Alfred Cobb testified at trial that on the night of the murder he and Patrick Jenkins were working on a car when the defendant came and started talking to them. He brought them a drink, and then he left and came back with a bank. He told them he made the bank at work and was going to give it to a small boy. Sharon Horton testified that Frank Cosey used to spend time with her son Jeremy. The parties entered into a stipulation that the sperm specimen taken from the purple blanket was deposited by defendant.
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Officer James Roddy testified that he was one of the officers who arrested Frank Cosey on July 10, 1990. He said that en route to the police station, defendant told the officers that he did not kill the victim, but could help them find who did. Deputy Lonnie Callahan testified at trial that on July 10, 1990, he was involved in the search of Robert Cosey's apartment (where defendant had been living), Robert's car, and the home of defendant's mother.6 Among other things, he seized an acrylic bank, similar to the one found in the victim's kitchen, from Robert Cosey's apartment. From the dishwasher, he also seized a knife similar to the one found in the Circle K bag at the scene. At trial, the defense attorneys tried to implicate Jenkins and show that the police never pursued any suspects besides the defendant.7 They cross-examined several witnesses about Jenkins' nervousness whenever the police questioned people in the neighborhood, and about the fact that he initially tried to suggest that a strange car was at the house the day of the murder, when he knew that the car belonged to Delky's father. Defendant did not testify at trial. GUILT AND PENALTY PHASE ERRORS Admissibility of Reebok Tennis Shoes In his first assignment of error, defendant contends that the trial court erred by allowing the state to introduce into evidence a pair of sneakers which were not relevant because they could not be linked to him. Relevant evidence is "evidence having any tendency to make the existence of fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." La. C.E. art. 401. To be admissible at trial, demonstrative evidence must first be identified. La. C.E. art. 901. Identification can be visual or by chain of custody of the object. State v. Landry, 388 So.2d 699, 704 (La. 1980), cert. denied, 450 U.S. 968, 101 S.Ct. 1487, 67 L.Ed.2d 618 (1981); State v. Overton, 596 So.2d 1344, 1354 (La. App. 1st Cir.), writ denied, 599 So.2d 315

Nothing was seized from the car or the home of defendant's mother.
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At the time of trial Jenkins was deceased. 3

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(La. 1992). The identification need not be absolute, certain or wholly unqualified. State v. Mills, 505 So.2d 933 (La. App. 2nd Cir.) (sufficient that a preponderance of evidence establishes that it is more probable than not, the evidence is connected with the case, ". . . the weight to be given to the evidence is a question for the jury."), writ denied, 508 So.2d 65 (La. 1987). While voir dire was being conducted, the state requested a hearing to determine the admissibility of a pair of Reebok tennis shoes. An investigator at the District Attorney's office had been watching the trial of another case in which the defendant stomped on the victim and left a mark on the victim's face. The investigator realized that the mark on Delky's face might be from the tread of a pair of shoes, rather than from a piece of jewelry as the state originally believed. Thereafter, the bottom of the Reebok tennis shoes was compared against the photographs of the imprint on Delky's face, and the state concluded that they matched. The defense objected to the admission of the shoes because the state could not link the shoes to defendant and therefore, the defense argued that the shoes were not relevant. At the hearing on this issue, Detective Lonnie Callahan testified that he was given the shoes on July 10, 1990, the night that he conducted searches of defendant's mother's house, Robert Cosey's apartment, where defendant was living, and Robert Cosey's car. He testified that all of the evidence seized was marked and logged in the early morning hours of July 11, 1990, and the Reebok sneakers, identified at trial as S81A, were bagged on July 11, 1990. The bag containing the tennis shoes was marked "Reebok Tennis Shoes, 7/11/90, L.C. [Lonnie Callahan]." However, the return on the search warrant for Robert Cosey's house only listed 5 items: a pair of Etonic sneakers which were never linked to the case, an acrylic bank, a steak knife, a pair of jeans and a 4-by-2

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