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Cotham v. State

Court of Criminal Appeals of Tennessee, Nashville

July 22, 2019

COY J. COTHAM, JR., AKA CORY J. COTHAM
v.
STATE OF TENNESSEE

          Assigned on Briefs January 17, 2019

          Appeal from the Criminal Court for Davidson County No. 2010-C-2636 Cheryl A. Blackburn, Judge

         Petitioner, Coy J. Cotham, Jr., appeals the denial of his petition for post-conviction relief, in which he alleged that his trial counsel was ineffective. Petitioner contends that the post-conviction court erred by denying his pro se motion to relieve post-conviction counsel, or in the alternative, his motion to continue the post-conviction hearing; that his post-conviction counsel was ineffective for failing to adequately present his claims for post-conviction relief; and that the post-conviction court erred by denying his petition for post-conviction relief. Having reviewed the record and the briefs of the parties, we affirm the judgment of the post-conviction court.

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

          Coy J. Cotham, Jr., Only, Tennessee, Pro Se.

          Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Assistant Attorney General; and Glenn R. Funk, District Attorney General, for the appellee, State of Tennessee.

          Thomas T. Woodall, J., delivered the opinion of the court, in which Robert L. Holloway, Jr. and Timothy L. Easter, JJ., joined.

          OPINION

          THOMAS T. WOODALL, JUDGE

         Facts

         Petitioner was convicted of premeditated first degree murder and especially aggravated robbery. The trial court sentenced Petitioner to life without parole plus 25 years' incarceration. Petitioner's conviction and sentence were affirmed on direct appeal. State v. Coy J. Cotham, Jr., aka Cory J. Cotham, No. M2012-01150-CCA-R3-CD, 2014 WL 3778613 (Tenn. Crim. App. July 31, 2014), perm. app. denied (Tenn. Jan. 15, 2015).

The crimes for which [Petitioner] was convicted stem from the August 29, 2010 shooting death of the victim, Veronica Bozza, at her home in Hermitage, Tennessee. The victim's estranged husband, Timothy Roy Bozza, who testified as a State's witness during [Petitioner]'s trial, also was indicted for first degree premeditated murder and tried separately.

Id. at *1.

         Brian Robinson, the victim's boyfriend, discovered the victim shot to death inside her home. Id. at *3. Police found no evidence of a robbery. The victim's purse was found inside her vehicle, but her cell phone was missing. Cell phone records, including "numerous calls between Mr. Bozza and [Petitioner] on the day of the murder" helped the police to establish Petitioner as a person of interest. Cell phone records also showed that the victim's cell phone was being used after the time of her death, and her cell phone was using the same towers as Petitioner's cell phone. Petitioner was interviewed by police, and his statements were inconsistent with the cell phone records the police possessed.

         Shell casings recovered from the crime scene linked the murder weapon, which was never found, to Petitioner's girlfriend. Police also found a photograph of an identical gun on Petitioner's cell phone. Mr. Bozza testified at trial and implicated Petitioner. Petitioner also testified and denied any involvement in the killing. Id.

         Post-conviction hearing

         At the outset of the hearing, Petitioner's counsel stated that Petitioner "would like to address the Court about [his] representation." The following exchange occurred:

[PETITIONER]: Your Honor, I filed a motion to remove counsel in a timely manner. It was filed by the court clerk's office on February 9th. Because in the past eighteen months, [post-conviction counsel] has - there's multiple things he hasn't done for me. I've asked him to track down witnesses. He said he's had a problem finding some of them. I've also asked him and told him I needed certain things to prove some of my issues like copies of DVDs and stuff. I've brought a copy of all the letters I've written to him. In the motion - I'm not sure, did the Court get a copy of it?
THE COURT: No, because you're represented by counsel, [Petitioner].
[PETITIONER]: Okay. Well, I mean, do I fire him on the spot?
THE COURT: You can't fire him, [Petitioner].
[PETITIONER]: Okay. Well, the thing is he failed to do anything within the standards of proof, 28 subsection 6C. He [ ] hasn't interviewed all of the relevant witnesses. He's just now telling me probably a week ago that he couldn't find some of them and he's -
THE COURT: You can't interview somebody you can't find, [Petitioner].
[PETITIONER]: But that's something he should have talked to me about months ago. The thing is - there is a copy right there. But all the issues listed on said motion is all the problems I've had. I've detailed every time we've talked. I was going to file the motion in October. [Post-conviction counsel] asked me not to. He was like, hold on, give me - he explained to me that he was so busy, he had all these clients. I told [counsel], I said, if my case is too much for you, relieve yourself and let me get new counsel. He said - the month of December, he promised me the month of December I'll focus on your case, I'll come out there and see you, we'll talk about the case, we'll go over everything together. He's never even discussed the amended petition with me. He just filed it on his own. He didn't even discuss it. He's never asked me one question on my case. And you yourself, Your Honor, know that my case is pretty complex.
THE COURT: All right. [Petitioner], we're going to go forward. I'm not going to relieve [post-conviction counsel].
[PETITIONER]: Uh-huh.
THE COURT: If we need to do it in sections, we will if there's witnesses that need to be called other than what your grounds are. So I'm not relieving [post-conviction counsel]. So have a seat [Petitioner].
[PETITIONER]: So, I mean, you're violating my due process rights right now.
THE COURT: No, I'm not, [Petitioner]. Have a seat.
[PETITIONER]: At the point I've got counsel failing to ...

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