Cooper v. State
Cooper v. State
Opinion of the Court
Shermont Monte Cooper appeals his conviction for the malice murder of Kenneth Ellis.
Cooper and his mother left Ellis’s home and joined Watkins and Caver outside; they had left before the third shot. The five drove away and stopped for some cigarettes; Cooper returned the pistol to Watkins. Cooper’s mother laughed as though the occurrence was “a big joke” and said: “You shot him, Shermont.” Cooper told a police investigator that Ellis “got in my face so I just shot him.”
1. The evidence was sufficient to enable a rational trier of fact to find Cooper guilty beyond a reasonable doubt of malice murder. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
2. Cooper contends that he did not receive effective representation of trial counsel. In order to prevail on this claim, Cooper must show both that counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). To meet
Cooper argues that counsel was deficient in not sufficiently investigating Ellis’s violent nature, and then presenting evidence of it to the jury. He contends that had counsel searched for Ellis’s criminal convictions in counties other than the one in which he resided, counsel would have discovered that Ellis had previously been convicted of aggravated assault, burglary, felony obstruction of an officer, and possession of a firearm by a convicted felon. He also contends that if counsel had interviewed Cooper’s family and other potential witnesses, and met with Cooper more often, counsel would have uncovered similar information about Ellis’s violent past and certain specific acts of violence, and that counsel should have secured the services of an independent expert witness to review the physical evidence.
Although the trial court’s order states that it “views with caution” the testimony of Cooper and his family concerning what was communicated to counsel ten years earlier during the criminal prosecution,
As to the evidence Cooper now brings forth concerning the violent character and specific acts of the victim,
Cooper’s assertion that counsel should have retained an independent expert witness to review the physical evidence does not establish ineffective assistance of counsel. The expert that Cooper retained for the motion for new trial testified that there was nothing
Judgment affirmed.
Ellis was killed on March 26, 1994. During the 1994 April term of court, a Madison County grand jury indicted Cooper for malice murder. Cooper was tried before a jury on November 8, 1994, and found guilty. On November 9, 1994, he was sentenced to life in prison. On September 18,2001, the trial court granted Cooper an out-of-time appeal, and Cooper moved for a new trial on September 25, 2001. After hearings on November 20, 2003, and March 12, 2004, the trial court denied Cooper’s motion for a new trial on July 16, 2004. Cooper filed his notice of appeal
In his statement to a police investigator, Cooper said that Ellis took the telephone from Cooper’s mother and threatened to kill Cooper the next time he saw him.
Cooper’s statement to a police investigator was that he got the pistol from Watkins. Watkins testified that she handed it to Caver.
Watkins testified that she took this comment to apply to all in the room.
He also asserts that counsel should have filed a notice of appeal after Cooper’s conviction, but does not set forth what grounds counsel should have asserted on appeal.
Counsel testified that he had no specific memory of discussions with Cooper; the trial court noted that documents counsel prepared at the time of representation do not reflect that Cooper gave information to counsel concerning Ellis’s violent nature.
We note that this Court has previously warned against trial by “character assassination of the victim.” See Brown v. State, 270 Ga. 601, 603 (2) (512 SE2d 260) (1999).
Watkins testified that Ellis was reaching under the sofa. Contradictorily, she also testified that he was reaching for Cooper.
Cooper’s expert did not dispute the trial testimony of the State’s expert that the first shot was fired from a distance of at least four feet. Cooper’s expert also testified that it was “highly probable” that Ellis was seated on the sofa for at least one of the first two shots.
Dissenting Opinion
dissenting.
I dissent, because I conclude that Cooper established that his trial counsel was deficient in failing to investigate and present evidence of the victim’s substantial history of violence against the defendant, his mother, and others, and that this deficiency prejudiced Cooper.
To establish a claim of ineffective assistance of counsel at trial, a defendant must show that the attorney’s performance was deficient and that the deficient performance prejudiced the defense.
In this case, the defense was justification and Cooper contends his trial counsel was ineffective in failing to present evidence of the victim’s prior acts of violence. At the motion for new trial hearing, Cooper established that the victim in the case had committed several prior acts of violence including an aggravated assault at the home of Cooper’s mother, robbery by intimidation, and assault against a uniformed police officer who was attempting to serve a warrant. Cooper also presented evidence of the victim’s violent nature when he had been drinking, the victim’s long-term abuse of Cooper’s mother, and the victim’s threatening Cooper and his brother with a gun. Additionally, Cooper established that the victim had a prior conviction for possession of a gun by a convicted felon.
Cooper’s trial counsel testified that he did not recall anything
Just a few years before the trial in this case, this Court held that a victim’s prior violent acts against the defendant and others is relevant in weighing the defendant’s claim of justification.
The question of whether this deficiency was prejudicial requires that this Court examine the evidence that could have been presented in light of the evidence that was before the jury.
Watkins testified that when they arrived at the victim’s home, it appeared that Cooper’s mother had been beaten. The victim started cursing at them and swung at Caver, but missed. Caver then hit the victim, who fell on to the couch. The victim then began reaching under
No evidence of the victim’s prior acts of violence against Cooper, his mother, or others came into evidence. The evidence that the majority focuses on came from Cooper’s statement and the testimony of Watkins, who admitted she was a “real close friend” of Cooper’s. The jury may well have discounted this evidence as self-serving. Furthermore, the evidence related solely to the events immediately preceding the death of the victim. If the jury had been given the independent evidence of the victim’s substantial history of violent acts, I conclude there is a reasonable probability that the result would have been different — either an acquittal or a conviction on the lesser charge of voluntary manslaughter.
This case is substantially similar to Johnson v. State,
[although the jury heard evidence that, just prior to his death, the victim was drunk, enraged and threatening to kill appellant with a knife or gun, all but one of those witnesses also testified that they saw nothing in the victim’s hands. There was no testimony regarding the victim’s propensity toward violence; our review of the record fails to confirm counsel’s determination that evidence of specific prior acts would have been cumulative. Those witnesses whom counsel chose not to call would have testified to specific occasions when the victim had shot at or otherwise assaulted others or threatened them with weapons. ... In view of appellant’s justification defense, we conclude that appellant has shown a reasonable probability that his trial might have resulted in conviction of a lesser offense, if not of acquittal, had the jury heard those witnesses.18
I see no substantial difference between Johnson and this case, and accordingly, I conclude that Cooper is entitled to a new trial.
I am authorized to state that Presiding Justice Sears and Justice Hunstein join in this dissent.
Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).
Suggs v. State, 272 Ga. 85, 88 (526 SE2d 347) (2000).
Trial counsel inexplicably failed to file a motion for new trial or to appeal the conviction and thus, the hearing on the motion for new trial occurred ten years after the conviction, after Cooper filed a pro se motion for an out-of-time appeal.
See Chandler v. State, 261 Ga. 402, 406 (405 SE2d 669) (1991), adopting special concurrence of Weltner, J., in Lolley v. State, 256 Ga. 605, 609-610 (385 SE2d 285) (1989).
See Wilson v. State, 152 Ga. 337 (8) (110 SE 8) (1921).
The trial court below did not rule on whether the performance was deficient, but instead based its holding on the prejudice prong alone.
See Johnson v. State, 266 Ga. 380, 383 (467 SE2d 542) (1996).
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