Cochran v. State, 97-0189

• Decision Date: 18 March 1998
• Docket Number: No. 97-0189,97-0189
• Citation: 711 So.2d 1159
• Court: Florida District Court of Appeals
• Parties: Timothy COCHRAN, Appellant, v. STATE of Florida, Appellee.

Page 1159

711 So.2d 1159

Timothy COCHRAN, Appellant, v. STATE of Florida, Appellee.

No. 97-0189.

District Court of Appeal of Florida,

Fourth District.

March 18, 1998.

Rehearing Denied April 20, 1998.

Patrick C. Rastatter of Glass & Rastatter, P.A., Fort Lauderdale, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Carol Cobourn Asbury, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

Appellant, Timothy Cochran (defendant), appeals his conviction of second degree murder after a jury trial. The conviction arose out of an incident where the defendant shot his wife's brother, Mitchell Szymanski. We reverse because the prosecutor's remarks during closing argument warrant a new trial.

This was a close case. At trial, the defendant asserted defenses of either accident or self-defense. He contended that the shooting occurred while he and his wife were trying to push Szymanski from a foyer out the front door of their home. Szymanski was a crack cocaine addict who had previously been banished from the Cochrans' home because of his conduct while under the influence of drugs. The state relied on expert testimony, physical evidence, and discrepancies in statements to dispute the defense depiction of the incident and to argue that the shooting did not occur in the foyer, but when Szymanski was outside the home, not posing an immediate threat to the defendant or his wife.

The state called the defendant's wife, Kim Cochran, to provide her eyewitness account of the shooting of her brother. She testified that when her brother appeared at her home, she and her husband were sitting on the back of their truck drinking beer. Szymanski told them that "he was out to kill somebody." The defendant went into the house while his wife talked to her brother outside. He wanted to spend the night inside the home, but his sister reminded him that he was not allowed inside because he and the defendant had gotten into a fight the previous year, where Szymanski had been the aggressor.

Mrs. Cochran went into the home to get her brother a blanket. Just inside the door to the house was a small foyer, which led to the living room and kitchen. She saw the defendant approaching the couch in the living room. A gun was lying on the table next to the couch.

Szymanski stepped into the house behind his sister, saying, "I want to talk to [the defendant]." Mrs. Cochran told her brother that he did not need to talk to her husband. She did not see her brother with any weapons.

When Szymanski saw the gun in the living room, he began to taunt the defendant in a "raging" voice. Szymanski said, "You are really macho, you think you are macho with that gun." The defendant replied, "I don't think I'm macho, Mitch. I don't think I am and if I thought I was so macho I wouldn't have a gun, I wouldn't have to have a gun, I'm scared of you, I've seen you on crack before, Mitch."

Szymanski and Mrs. Cochran started pushing and shoving each other. The defendant picked up the gun. From the living room, the defendant fired a shot into the air. When the warning shot went off, Mrs. Cochran was able to push Szymanski backwards. Szymanski then became more aggressive. Mrs. Cochran said that her husband came to her aid by getting behind her, trying to help her shove Szymanski out the front door.

During this struggle, a second shot was fired. Mrs. Cochran claimed that at the time of the shot, she and her brother were both in the foyer. Mrs. Cochran testified that Szymanski was "standing in between me and my arms. I had him in my two arms and we were shoving back and forth." Szymanski's back was to the front door and he was facing the defendant. After the shot, Szymanski "buckled" and his sister fell out the front door with him. Mrs. Cochran was "covered with blood." None of the objects in the foyer were damaged during the struggle, although the police later found debris on the floor which looked like particles of plaster. Mrs. Cochran "assumed" that the shots were fired 2-3 feet from where she and her brother were struggling.

There was a conflict in the evidence over whether there was any blood in the foyer. A detective observed none. A neighbor testifying for the defense said that when he went into the home the day following the shooting, he observed blood stains inside the front door on the tile. The police found one spent cartridge case in the living room and one in the foyer.

The state impeached Mrs. Cochran by introducing two statements given to the police after the shooting. In neither statement did she state that her husband had pushed her and Szymanski.

The state called a forensic pathologist to testify concerning the results of the autopsy he had conducted. In Szymanski's blood, the doctor detected a compound that the body produces when one is binging on cocaine. He noted that the bullet entered the left cheek near the bottom of the earlobe and exited at the middle of the head. The doctor "saw no evidence that the gun was within 2 or 3 feet from the face" at the time of the discharge because he saw no stippling on the deceased's skin.

The pathologist testified that once shot, Szymanski would not have been able to conduct any muscular functions, but would have fallen to the ground. If Szymanski were standing when shot, he would have fallen the way he was leaning when shot; if he were in motion, he would have fallen in that direction. The doctor opined that blood loss would begin to rapidly accumulate in less than a second at the area where a person is located after he is shot. Within seconds of the gunshot in this case, the doctor would have expected blood to be in the vicinity of Szymanski's head.

Witnesses testified to both the defendant's and Szymanski's reputations for peacefulness. For example, Linda Szymanski, the deceased's ex-wife, testified that she never witnessed any acts of violence by the deceased; however, she also stated that when he was on crack cocaine he would exhibit a short fuse and become violent. Witnesses indicated that after he became addicted to crack, Szymanski often was verbally abusive and threatening even to members of his own family.

The defense introduced testimony concerning the defendant's longstanding anxiety disorder, for which he took medication, the existence of marks and bruises on Mrs. Cochran's body after the altercation with the deceased, and a prior consistent statement Mrs. Cochran made to the police about the defendant assisting her in attempting to push Szymanski from the house. The defense called Mary Gotero, who observed the incident from her bathroom window as she smoked a cigarette. During the altercation, she heard Mrs. Cochran complain of being hurt and both Cochrans yell at someone to leave their home. After Gotero heard two gunshots, she saw Mrs. Cochran and her brother come from within the front door entrance to the outside of the home. The defendant testified that after he fired the warning shot, he ran to his wife's assistance and shoved her as hard as he could, while she was pushing her brother out of the residence. He claimed that while he was pushing, the gun in his hand discharged.

The defense timely moved for judgment of acquittal. The trial judge reserved ruling. After the jury's verdict, he denied the motion with a lengthy discussion of the evidence. Noting that the physical evidence contradicted the defense version of the shooting, the trial judge stated,

[The jury] drew an inference that the blood showed to them that the shooting occurred outside. Not inside as the defense asserted. They must have. I think they must have had to draw the inference that the kind of struggle that the defense raised to the jury did not occur inside where the struggle was an accidental shooting or shooting in self-defense, because everything was undisturbed and you gave an explanation for why it was undisturbed and that's up to the jury to decide how they want to decide that.... There was evidence of ill-will, spite. The weight to be assigned by the jury. The jury could have easily decided that in a moment of rage the defendant fired that shot. He may have had remorse immediately afterwards, but he fired the shot in anger or hatred. That he was fed up, that was the testimony of the defendant. That he was fed up with the taunting. The State's theory to the jury is that he lost control of his emotions and fired the shot in ill-will.

There was the evidence to support that. The evidence at the scene of the blood outside the door. The undisturbed items inside the home. That the defendant knew the gun was loaded. He fired one warning shot, so he knew he had a loaded weapon.

The jury could have found that the blood that was on the wife was inconsistent with her testimony as to her pushing her brother out the door. The jury could have found what she testified to was not totally correct. That maybe she wasn't where she said she was, because why did she get so much blood on her.

That if she was pushing him out the door and the bullet whizzed by her and the blood spurted out the back of the deceased's head, most of the blood would have been away from her. But she was covered in blood. The jury could have drawn an inference that she was not where she said she was.

That she was outside the home. That the deceased was outside the home at the time of the shooting and she indirectly got blood on her, not because she was pushing him out, but because she was already out the door and may have [given] the final push and stepped aside when her husband shot him.

Again, this is a contrary inference, but it's up to the jury to draw whatever inference from the facts they saw in the record. The State presented competent evidence on their...