Cooper v. State

76 So. 3d 749, 2011 Miss. App. LEXIS 504, 2011 WL 3671887
Court of Appeals of Mississippi·Decided August 23, 2011·No. No. 2009-CA-02031-COA·Published·Cited by 3 cases

Opinion

MAXWELL, J., for the court:

¶ 1. Jonathan Cooper appeals the Washington County Circuit Court’s denial of his motion for post-conviction relief (PCR). Cooper argues his attorneys were ineffective in moving to amend his indictment to include the phrase “not in necessary self-defense” rather than attempting to quash it based on the absence of that phrase. He also argues his attorneys rendered ineffective assistance in several respects in dealing with the testimony of the State’s expert in forensic pathology, Dr. Shephen Hayne. Because Cooper has failed to show (1) deficiency and (2) prejudice under Strickland, we affirm.

FACTS

¶ 2. During the early morning hours of May 25, 2002, Carolyn Cooper and Kenneth Shumaker1 returned to Carolyn’s home from visiting nightclubs in Green-ville, Mississippi. While they were away from the house, they left Carolyn’s twin sons, Tredara and Cordera Cooper (then ten years old), and Shumaker’s son, Kinney “Shaun” Maiten (then seven years old), under Cooper’s supervision.

¶ 3. When the couple returned, Cooper was asleep on the couch. After he was awakened, the couple got into an argument. Carolyn testified that as the argument escalated, Shumaker physically attacked her several times. She claimed he first hit her in the back of the head with his fist. At another point, he grabbed her by the throat. He also hit her in the head with a cordless phone. When Cooper stood between Carolyn and Shumaker in an attempt to diffuse the argument, Shu-maker told Cooper, “I’ll beat the brakes off you, too.” When Shumaker shoved Carolyn toward the door, she ran out of the house and across the street to a neighbor’s house.

¶ 4. Tredara and Cordera both gave similar accounts of what happened after their mother left. According to their testimony, Cooper went to the back bedroom, where he attempted to make a phone call. Shu-maker followed him. Before Cooper could call anyone, Shumaker snatched the phone away and hit Cooper in the jaw with it. Shumaker then asked the boys where his baseball bat was. Shumaker began looking for the bat in other rooms of the house. But Cooper located the bat first. Cooper and Shumaker then confronted each other again — Shumaker unarmed, Cooper brandishing a bat. Shumaker attempted to hit [752] Cooper with his fist, which Cooper averted by ducking. When Shumaker swung again, Cooper hit Shumaker in the wrist with the bat. Though Shumaker did not retaliate, Cooper hit Shumaker again with the bat — this time in the head — knocking Shumaker to the ground.

¶ 5. Shaun related a vastly different version. According to Shaun, Cooper hit Shu-maker with the bat not two, but twenty times. Shaun admitted he was under the covers of the bed and could not see “anything at all.” But he claimed he peeked out and saw Cooper hit Shumaker with the baseball bat.

¶ 6. Based upon information Cooper provided at the scene, he was arrested. After executing a valid Miranda2 waiver, he provided a statement similar to the twin boys’ version of the events. He maintained that Carolyn and Shumaker had gotten into an argument. When Cooper attempted to stop the argument, Shumaker told Cooper: “I’ll beat the breaks off you, too.” After Carolyn left the house, Shumaker swung his fist at Cooper, which Cooper dodged.

¶ 7. At this point, Cooper’s story diverges from the testimony of the eyewitnesses. Cooper claimed he picked up a pool stick. Cooper swung the pool stick at Shumaker but missed. Cooper then landed hits with the pool stick at least twice. Specifically, Cooper remembered hitting Shumaker with the pool stick once in the left arm above the elbow and once on the front of the head. Cooper made no mention of a bat.

¶ 8. The pool stick recovered by law enforcement from the scene did not have any blood on it and was not broken. The baseball bat was not recovered until two days following the incident when Carolyn contacted law enforcement about having possession of the bat at her home.

¶ 9. The State called Dr. Hayne to testify as an expert in forensic pathology. Dr. Hayne had performed an autopsy of Shu-maker’s body and identified three injuries. One injury was a “compound commuted fracture” to Shumaker’s forearm. Dr. Hayne found this injury consistent with “defensive posturing.” He explained the victim would have sustained such an injury while attempting to ward off a blow to the face or upper body.

¶ 10. Dr. Hayne also identified two head injuries. His external examination showed injuries to both the left back portion of Shumaker’s head and the left side of his head. An internal examination revealed “evidence of great force applied to the head.” In Dr. Hayne’s opinion, the baseball bat, which was entered into evidence, could have inflicted the injuries. Given the severity of Shumaker’s injuries, Dr. Hayne determined they were more likely inflicted by a baseball bat than a pool stick. He determined the manner of death to be homicide.

PROCEDURAL HISTORY

¶ 11. A grand jury in Washington County indicted Cooper for murder. Following a two-day trial, the jury convicted Cooper of the lesser-included offense of manslaughter. The circuit court sentenced him to twenty years.

¶ 12. On direct appeal, Cooper challenged the weight and sufficiency of the evidence in addition to raising an eviden-tiary issue. This court affirmed his conviction. See Cooper v. State, 911 So.2d 665 (Miss.Ct.App.2005).

¶ 13. On December 3, 2008, the Mississippi Supreme Court granted Cooper leave to file a PCR motion in the trial court. On April 7, 2009, he filed his PCR motion. [753] The circuit court held a hearing, where only Cooper testified. Finding Cooper failed to show ineffective assistance of counsel under Strickland, the circuit court denied his PCR motion.

¶ 14. On appeal, Cooper alleges his trial attorneys were ineffective. Their various alleged deficiencies include: (1) moving to amend his indictment to include the words “not in necessary self defense,” rather than seeking to quash the indictment; (2) failing to voir dire Dr. Hayne; (3) failing to sufficiently cross-examine Dr. Hayne; (4) failing to call a rebuttal expert; (5) failing to discuss discovery material with him; and (6) failing to object to the State’s introduction of certain photographs.

STANDARD OF REVIEW

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Cooper v. State, 76 So. 3d 749, 2011 Miss. App. LEXIS 504, 2011 WL 3671887 (Mich. Ct. App. 2011).

76 So. 3d 749 (Cooper v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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