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Cook v. State

Court of Criminal Appeals of Tennessee, Jackson

May 14, 2019


          Session January 9, 2019

          Appeal from the Criminal Court for Shelby County No. 08-07496 Lee V. Coffee, Judge

         The petitioner, Brice Cook, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel at trial and on appeal. After our review of the record, briefs, and applicable law, we affirm the denial of the petition.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

          André C. Wharton, Memphis, Tennessee, for the appellant, Brice Cook.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant Attorney General; Amy Weirich, District Attorney General; and Leslie Byrd and Leslie Fouche, Assistant District Attorneys General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which Camille R. McMullen, J. joined. John Everett Williams, P.J., filed a separate dissenting opinion.


          J. ROSS DYER, JUDGE

         Facts and Procedural History

         On direct appeal, this Court summarized the facts surrounding the petitioner's conviction, as follows:

Following the shooting of the victim, the [petitioner] was indicted for first degree premeditated murder, and his brother, Terrance Washington, was indicted for facilitation of first degree murder. At the first trial, the State introduced evidence that the [petitioner's] ex-girlfriend, Jasmin Harris, had left him to pursue a relationship with the victim, and that, after exchanging a series of text messages with the victim and Ms. Harris, the [petitioner] came to the victim's home and shot her in Ms. Harris's car. The [petitioner] and co-defendant were tried together by a jury in December 2009 and were both convicted as charged. The [petitioner] moved for a new trial based in part on certain surprise testimony from a police officer involving a statement made by the co-defendant. Although the [petitioner] testified at the December 2009 trial, the co-defendant did not, and the [petitioner] had no opportunity to cross-examine him regarding the statement. On August 30, 2010, the trial court granted the [petitioner's] motion for a new trial, finding a violation of the [petitioner's] right to confront witnesses against him under Bruton v. United States, 391 U.S. 123, 137 (1968).
At the new trial, the [petitioner] was tried separately from his brother and, on November 4, 2011, was again convicted of first degree murder.
The testimony at trial from the State's four eyewitnesses -- Henrietta Niter, a neighbor who saw the shooting from her bedroom window, and the victim's roommates, Ms. Harris, Mark Brown, and Anterio Bibbs --established that the [petitioner] shot the victim. Ms. Harris and Mr. Bibbs testified that the victim had gone to pick up Mr. Bibbs and was returning with him to the townhouse when he heard loud talk and went outside to speak to the [petitioner] about a conflict between the [petitioner] and the victim. Ms. Harris and Mr. Brown testified that when the victim arrived, the [petitioner's] brother held Ms. Harris back. Ms. Harris, Mr. Brown, and Mr. Bibbs testified that Mr. Bibbs and the victim got out of the car. All four witnesses heard one or two initial shots, and Mr. Brown saw the shot, which he described as the [petitioner] firing "down the sidewalk." Mr. Bibbs testified he began to run away when he heard gunfire but returned when he realized the victim was not with him. Mr. Bibbs returned to the car and pled with the [petitioner] not to shoot the victim. All four witnesses testified that as the victim got back in the car and attempted to escape in the vehicle, the [petitioner] went up to the driver's side window and shot her twice. Ms. Harris testified that there may have been a third shot at that point. Mr. Brown heard the [petitioner] say, prior to shooting the victim, "Didn't I tell you I was gonna kill you?" and he also testified the [petitioner's] brother said, "You killed the B," and the [petitioner] said he did not care. Mr. Bibbs testified the [petitioner] said, "Yeah, now what?" before he shot the victim. Mr. Brown then saw the [petitioner] hand his brother the gun, and Mr. Brown and Mr. Bibbs saw the [petitioner] and his brother leave in separate cars, one of which Mr. Brown testified was driven by a woman. One gunshot entered the victim's left abdomen, and the other entered her left lower back.
The State introduced a series of text messages that were exchanged on Ms. Harris's phone among the [petitioner], the victim, and Ms. Harris. Ms. Harris testified that the victim was using Ms. Harris's phone to text with the [petitioner], that the victim showed her the series of texts, and that she then exchanged texts with the [petitioner] on the same phone.
Ms. Harris's telephone stored the text messages she sent and received, and assigned each message a number sequentially. Outgoing text messages were numbered separately from incoming text messages. Ms. Harris's phone displayed the time that incoming messages were received, but did not include a time stamp on outgoing messages.
The [petitioner] did not object to the admission of photographs of Ms. Harris's phone displaying the messages but objected when the State asked Ms. Harris to interpret them. The trial court allowed Ms. Harris to give a lay opinion regarding the meanings of the texts, which were written in non-standard English using non-standard spelling.
Another witness for the State, Officer Edward Yancey, testified that when he arrived on the scene, Ms. Harris was continually screaming, "My boyfriend killed my girlfriend." She then gave him information regarding the [petitioner], including his mother's address, a description of his car, and the statement that his brother held her arms during the shooting. Officer Yancey then testified that a man in blue "told me basically the same thing that she did." The defendant objected, and a bench conference, much of which was apparently indiscernible to the court reporter, followed. While the court's ruling is not entirely clear, the judge ultimately stated, "So, any of those statements, at this point, unless there's a proper foundation, I will sustain the objection to hearsay; but (indiscernible)." No curative instructions regarding the testimony on the record about the statements of the man in blue were sought or given.
The [petitioner's] theory of the case was that he had acted in self-defense. Accordingly, the [petitioner] introduced the testimony of three witnesses who had not testified at the first trial and who came forward in 2010, approximately two years after the shooting. Justin Bowen, Reginald Temple, and Noel Jackson testified that the gunfire they saw appeared to be coming out of the driver's side of the vehicle. They also testified that the police had told them to leave without taking statements from them on the night of the shooting and that no one had subsequently asked them about the incident until the [petitioner's] new legal team made inquiries two years after the crime. They testified they did not have a close relationship with either the victim or the [petitioner] at the time of the shooting.
The [petitioner] argued that, during a delay prior to calling 911, the victim's three roommates had hidden a gun and perhaps other evidence which tended to show that the victim had fired the first shots. Mr. Brown and Mr. Bibbs testified that the victim was unarmed. However, the [petitioner] elicited testimony that Mr. Bibbs had recently traded the [petitioner] a TV for a gun, which he subsequently kept in the house, that there was some delay prior to the witnesses calling 911 at 12:40 a.m., and that the victim's personal effects, including a wallet and necklace she habitually wore, were given to her mother not by the hospital but by Ms. Harris.
During closing arguments, the defense focused on its theory of self-defense. The State interrupted counsel's arguments to object that the [petitioner] was mischaracterizing evidence, and the trial court instructed the jury that arguments of counsel should be disregarded if not supported by evidence. The State then addressed the defendant's theory of the case during rebuttal, proclaiming, "You can't shoot someone in the back and claim self-defense. Never in the history of mankind has someone been shot in the back and the shooter was defending himself." The defendant objected, but the trial court, rather than allowing counsel to elaborate on the basis for the objection, repeated the instruction that statements of counsel were not evidence to be considered by the jury and allowed the prosecution to continue with closing argument.
Because the trial court found that the text messages which the [petitioner] had sent to the victim could be construed as threats, it instructed the jury: "If from the proof you find that the defendant has committed acts other than that for which he is on trial, you may not consider such evidence to prove his disposition to commit such an alleged crime as that on trial."
The court instructed the jury that any prior acts the [petitioner] committed could be considered only insofar as they contributed to the complete story of the alleged crime, to show intent, and to show guilty knowledge. The instructions also allowed the jury to use such evidence to show motive, "[t]hat is, prior acts of violence or threats against the victim may be considered by you if it tends to show the [petitioner's] and victim's relationship; the [petitioner's] hostility toward the victim; malice, intent, motive and a settled purpose to harm the victim." The [petitioner] objected to this instruction, arguing that the evidence did not show any prior bad acts because the text messages were non-threatening. In closing argument, the prosecution brought out the threats in the text messages, and the defense argued extensively that the text messages were not threatening.
The jury convicted the [petitioner] of first degree murder, and he was given a life sentence. The trial court denied the [petitioner's] motion for a new trial.

State v. Brice Cook, No. W2012-00406-CCA-R3-CD, 2013 WL 9570493, at *1-7 (Tenn. Crim. App. Sept. 4, 2013), perm. app. denied (Tenn. Feb. 11, 2014).

         After the denial of his direct appeal, the petitioner filed a timely petition for post-conviction relief, arguing, in part, trial counsel was ineffective for failing to timely communicate a plea bargain, failing to properly raise issues critical to the theory of self-defense, failing to request a mistrial after testimony regarding gunshot residue swabs and nail clippings, and failing to cross-examine Ms. Harris, the petitioner's ex-girlfriend, regarding her pending aggravated assault charges, and appellate counsel was ineffective for failing to raise the issue of the admissibility of the victim's mental health records. The petitioner also argued the State committed a Brady violation by failing to disclose the victim's mental health records and any promises made to Ms. Harris in exchange for her testimony. It appears from the record and the briefs filed by the parties that the petitioner filed an amended petition. However, such was not included in the record on appeal. Furthermore, when this Court ordered the record to be supplemented with the amended petition, the trial court clerk certified that no copy was to be found.

         At the evidentiary hearing, lead counsel testified he was retained following the conclusion of the petitioner's first trial and filed a successful motion for new trial. He and co-counsel then represented the petitioner at both the second trial and on direct appeal. Lead counsel stated he had prolonged plea negotiations with the lead prosecutor, Mr. David Zak, but they were unable to come to an agreement prior to trial. However, if an agreement had been reached, lead counsel would have relayed that offer to the petitioner. His case notes indicated he spoke with Mr. Byron Cook, the petitioner's father, on September 19, 2011, and proposed a plea of thirteen years, six months at 100 percent, but this was not a confirmed offer from the State.

         Regarding his defense strategy, lead counsel discussed the petitioner's medical issues and possible intoxication with co-counsel but decided to go with a "clean cut self-defense" theory, specifically a first aggressor theory. However, several facts in the case posed a problem to this theory, including that the victim was shot in the back and the police did not find a gun in her possession. To combat these issues, lead counsel called three witnesses who testified they saw a flash coming from the victim's car, and lead counsel argued the victim's roommates hid her gun before calling 911. Regarding the gunshot residue swabs and nail clippings, lead counsel could not recall testimony at trial indicating why the testing was not done, and he acknowledged there was no downside to testing the evidence if it was likely to show gunshot residue on the victim.

         Co-counsel testified she represented the petitioner at his second trial and on direct appeal. In her case notes, co-counsel discovered evidence of a "confirmed" offer for thirteen years, six months at 85 percent made on September 9, 2011. Her notes indicated lead counsel met with Byron Cook, the petitioner's father, on that date to explain the offer. Co-counsel then met with the petitioner on October 18, 2011, and, after hearing the offer, the petitioner was "very pleased." However, he later changed his mind and decided not to accept it.

         When asked about the victim's nail clippings, co-counsel testified she could not recall that fact coming up at trial. In addition, co-counsel could not recall whether she knew Ms. Harris had been charged with a crime involving a firearm prior to the petitioner's trial. Co-counsel did remember discussing the petitioner's medical condition with the defense team, but only to ensure the petitioner's medical needs were met. If co-counsel believed the petitioner's medical condition had been a viable argument, she would have presented it to the jury. However, she did not feel the petitioner had any trouble "work[ing] with us, understand[ing] the case, understand[ing] the charges, understand[ing] the evidence, discovery, and understanding our conversations."

         Regarding the victim's mental health records, co-counsel could not recall whether she attempted to obtain the records prior to trial, but remembered speaking with the trial court about obtaining them during the State's proof. After the trial court reviewed the records in camera and summarized them for the parties, co-counsel disagreed with the trial court's ruling that the evidence was not relevant to the petitioner's theory of first aggressor self-defense, especially the mention of homicidal tendencies. Although co-counsel initially testified she included this issue in the direct appeal, after reviewing the appellate opinion, she acknowledged it was not addressed. However, co-counsel testified there were several reasons why she may not have included this issue on appeal. Looking back, this argument may not have been as strong as it first appeared during the trial, and she may have been concerned about the number of issues included in the appeal, preferring to focus on the strongest issues.

         David Zak, the lead prosecutor at the petitioner's trial, testified he and lead counsel engaged in plea negotiations prior to trial, and it was his practice to let the defense approach him with any offers. In this case, Mr. Zak felt very strongly about the evidence because he had already obtained a conviction against the petitioner during the first trial. Therefore, he was not willing to come down as low as the defense wanted, and Mr. Zak stated unequivocally that he did not agree to any offers in this case.

         Mr. Zak also testified he was aware the victim had spent time at a mental health facility shortly before the shooting, but could not remember who told him this fact or when he became aware of it. However, he believed the matter was fully investigated and "there was nothing to it." Mr. Zak recalled the victim's nail clippings coming up during the cross-examination of the medical examiner. However, he did not believe a gunshot residue test was necessary based on the close range of the shooting.

         Byron Cook, the petitioner's father, testified he was in charge of making decisions regarding the petitioner's defense. When lead counsel approached him with plea offers, Mr. Cook would not consider anything he thought was too high because he thought the petitioner did not have long to live due to his medical issues. The lowest offer Mr. Cook remembered the State presenting was eighteen years. Although Mr. Cook did not believe any offers were conveyed to the petitioner, he acknowledged he was not present for every meeting the petitioner had with trial counsel. Mr. Cook also testified the petitioner suffers from mood swings when his diabetes is uncontrolled. Mr. Cook believed the petitioner's diabetes was not controlled at the time of the shooting because the petitioner was "hanging out" with his brothers, and Mr. Cook and his wife were unable to monitor the petitioner's medications.

         Dr. James Walker, an expert in neuropsychology, testified he met with the petitioner twice for a total of two hours. An associate spent an additional four hours with the petitioner, performing neuropsychological testing. In addition to the interviews and testing, Dr. Walker reviewed records and spoke with the petitioner's brother, the co-defendant in this case. Testing indicated the petitioner's IQ was 77, which fell within the sixth percentile compared to an average man the same age. While the petitioner's verbal abilities tested in the low 70s, his visual perception skills were slightly higher. Due to these limitations, Dr. Walker opined the petitioner would have trouble performing anything other than "simple or low level detailed work." However, Dr. Walker acknowledged shooting a person in the back is a simple skill because you "simply point a gun and pull the trigger."

         Dr. Walker also testified the petitioner was difficult to interview because he did not understand "how people are supposed to behave under this kind of circumstance." According to Dr. Walker, the petitioner would not react well to stressful situations. In addition, if a person is not controlling his diabetes properly, one can suffer from serious cognitive problems, including irritability, restlessness, agitation, difficulty controlling their behavior, impulsiveness, and lethargy. During his interview with Dr. Walker, the petitioner indicated he had not taken his diabetes medicine on the day of the shooting and had smoked a large amount of marijuana. Because of these factors and the text messages exchanged between the victim and the petitioner, Dr. Walker opined it was "certainly possible" the petitioner honestly believed the victim was a threat on the night of the shooting. However, Dr. Walker testified there is no indication that an insanity defense would have been supported in this case, and he was unable to definitively say the petitioner was incapable of acting with deliberation and judgement. Dr. Walker also acknowledged the information about the petitioner's marijuana use and dysregulated diabetes on the day of the shooting was self-reported by the petitioner.

         The petitioner testified trial counsel visited him in jail "two or three times" but acknowledged meeting with them at each court date. A few days prior to his second trial, a man who said he worked with trial counsel came to see the petitioner in jail. The man, who the petitioner believed to be a lawyer, asked if he would be willing to "sign for a 13.5," which the petitioner believed to be an offer for thirteen years, six months. The petitioner told the man he was ready to sign, but the man stated the petitioner would need to wait until his next court date to sign the paperwork. However, when the petitioner arrived at court for his trial, lead counsel indicated the State "took the offer off the table." The petitioner testified he was frustrated that his father seemed to be in control of his defense because the petitioner "was the one doing the time." If he disagreed with his father about a plea offer, the petitioner stated he would consider his father's feelings but would "make up [his] own mind." The petitioner also testified he was not taking his medication properly at the time of the shooting. When his medication is not regulated, the petitioner stated he vomits, becomes dehydrated, and acts aggressively.

         After its review of the evidence presented, the post-conviction court denied relief, and this timely appeal followed.


         On appeal, the petitioner argues trial counsel was ineffective for failing to promptly convey a confirmed plea offer, failing to renew their argument that the victim's mental health records were admissible, and failing to submit evidence of the petitioner's mental state and medical issues, and appellate counsel was ineffective for failing to raise the issue of the victim's mental health records on appeal and failing to properly preserve the appellate record. The petitioner also argues the State committed Brady violations for failing to disclose the victim's mental health records, the gunshot residue swabs and nail clippings taken from the victim, and any offer made to Ms. Harris in exchange for her testimony. Finally, the petitioner argues the post-conviction court was unfairly biased against him.[1] The State contends the post-conviction court correctly denied the petition as the petitioner failed to meet his burden, and the petitioner failed to show the post-conviction court was unfairly biased against him. Following our review of the record and submissions of the parties, we affirm the judgment of the post-conviction court.

         The petitioner bears the burden of proving his post-conviction factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f). The findings of fact established at a post-conviction evidentiary hearing are conclusive on appeal unless the evidence preponderates against them. Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996). This Court will not reweigh or reevaluate evidence of purely factual issues. Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, appellate review of a trial court's application of the law to the facts is de novo, with no presumption of correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel presents mixed questions of fact and law. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Thus, this Court ...

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