Cook v. State
| Decision Date | 25 August 2020 |
| Docket Number | No. W2018-00237-SC-R11-PC,W2018-00237-SC-R11-PC |
| Parties | Brice COOK v. STATE of Tennessee |
| Court | Tennessee Supreme Court |
André C. Wharton and Rebecca R. Hodous, Memphis, Tennessee, for the appellant, Brice Cook.
Herbert H. Slatery III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor General; Nicholas W. Spangler, 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.
OPINION
The dispositive question in this appeal is whether the post-conviction judge should have recused himself because his impartiality might reasonably be questioned. We answer this question in the affirmative and hold that the post-conviction judge was obligated to recuse himself in this case even though the petitioner failed to file a motion for recusal. Accordingly, the judgment of the Court of Criminal Appeals is reversed; the judgment of the post-conviction court is vacated; and this matter is remanded to the trial court for a new post-conviction hearing before a different judge.
On November 25, 2008, a Shelby County Grand Jury returned a two-count indictment charging the petitioner, Brice Cook, with first-degree premeditated murder for the fatal shooting of Ms. Shantell Lane and charging the petitioner's brother with facilitation of the murder. State v. Cook, No. W2012-00406-CCA-R3-CD, 2013 WL 9570493, at *1 (Tenn. Crim. App. Sept. 4, 2013), perm. app. denied (Tenn. Feb. 11, 2014). In December 2009, the men were tried jointly and convicted as charged. Id. On August 30, 2010, the trial court granted the petitioner a new trial, finding that testimony of a prosecution witness deprived the petitioner of his constitutional right to confront the witnesses against him in violation of Bruton v. United States, 391 U.S. 123, 137, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Cook, 2013 WL 9570493, at *1. Shortly after granting the petitioner's motion for new trial, the judge who presided at the petitioner's first trial retired, and another judge was assigned to the petitioner's case.
The petitioner's second trial began on October 31, 2011. The petitioner admitted to shooting the victim but claimed he had acted in self-defense. In summary, the proof showed that Ms. Jasmin Harris ended a romantic relationship with the petitioner to pursue a romantic relationship with the victim. On the day the victim was killed, the petitioner exchanged a series of angry text messages with the victim and Ms. Harris and then drove to the apartment they shared with two others. The victim was not home when the petitioner arrived, but she arrived a short time later. Prosecution eyewitnesses to the shooting testified that when the victim exited her vehicle, the petitioner began shooting in her direction. According to these witnesses, the victim ran back to her vehicle and got inside, but the petitioner followed and shot the victim twice as she sat in the vehicle. Defense eyewitnesses to the shooting testified to seeing fire and flashes and what appeared to them to be gunfire emanating from the victim's vehicle before the petitioner fired his weapon. The proof showed that the victim died from two gunshots wounds—one to her abdomen and another to her back. Cook, 2013 WL 9570493, at *1.2
The jury at the second trial convicted the petitioner of first-degree premeditated murder, and he received a life sentence. The petitioner appealed. The Court of Criminal Appeals affirmed the petitioner's conviction and sentence, and this Court denied review.
State v. Cook, No. W2012-00406-SC-R11-CD (Order) (Tenn. Feb. 11, 2014) (denying the petitioner's application for permission to appeal).
On September 22, 2014, the petitioner timely filed a petition for post-conviction relief, which was assigned to Judge Lee V. Coffee, the same judge who presided over the petitioner's second trial. The petitioner claimed ineffective assistance of counsel and alleged several factual grounds in support of this claim, including, as relevant to this appeal, that his trial attorneys failed to communicate a plea offer to him in a timely manner.
The post-conviction hearing convened on November 21, 2017. Six witnesses testified for the petitioner, including Dr. James Walker, a forensic psychologist; Mr. Byron K. Cook, the petitioner's father; Ms. Lorna McCluskey, an attorney who represented the petitioner at his second trial; Mr. David Zak, the prosecuting attorney at both of the petitioner's trials; Mr. William Massey, lead counsel for the petitioner at his second trial; and the petitioner.
We need not recite each witness's testimony in detail and summarize the testimony only as necessary to provide context for the post-conviction judge's comments that serve as the basis for this appeal. We begin with Ms. McCluskey's testimony.
Ms. McCluskey, one of the petitioner's trial attorneys, testified that she had reviewed the petitioner's case file and had found a note dated September 9, 2011, reflecting that Mr. Massey had met with the petitioner's father and explained in detail a "confirmed" plea offer that had been extended to the petitioner. She stated that "confirmed" plea offer meant that the prosecution had definitely agreed to the offer and that it was not just a part of plea negotiations.
Ms. McCluskey said that the confirmed offer required the petitioner to plead guilty to second degree murder and aggravated robbery. In exchange for these guilty pleas, the petitioner would have received a sentence of 13.5 years at 85% release eligibility on the second degree murder charge, which would have been served consecutively to a sentence of 7.2 years at 20% release eligibility on the aggravated robbery charge.3
Ms. McCluskey stated that her notes showed that this confirmed offer was conveyed to the petitioner on October 18, 2011, a little over a month after Mr. Massey met with the petitioner's father. Ms. McCluskey testified that her notes indicated the petitioner "was very pleased with the offer and said he would take it." Ms. McCluskey had underlined the words "very pleased" in her notes to reflect the extent of the petitioner's satisfaction with the offer. Ms. McCluskey testified that the petitioner must have changed his mind about the offer because the case was tried, but she had no notes indicating that the petitioner changed his mind.
Mr. Massey testified that he had not reviewed the petitioner's case file the week before the post-conviction hearing because he had been in trial. He also had not reviewed the case file in the years the post-conviction petition had been pending, despite being aware that the offer would be an issue. Nevertheless, Mr. Massey testified that he could not recall any confirmed offer being made to the petitioner. Mr. Massey recalled that the petitioner and the petitioner's father wanted a plea offer for voluntary manslaughter but that the prosecuting attorney would not agree to that resolution. Mr. Massey did not dispute Ms. McCluskey's testimony concerning the notes she had found in the petitioner's case file about the confirmed offer, nor did he disagree with Ms. McCluskey as to the meaning of a "confirmed" offer. Mr. Massey acknowledged that he could have forgotten about the offer as he had not reviewed the petitioner's file. He expressed his willingness to review the petitioner's file after the hearing and notify appointed counsel should he find any information about the offer that would change his testimony. In making this suggestion, Mr. Massey again stated that it was possible he had just forgotten about the offer.
In response to Mr. Massey's suggestion, appointed counsel asked the post-conviction judge for permission to keep the proof open so that the record could be supplemented with any information Mr. Massey provided after reviewing the petitioner's file. The post-conviction judge denied the request and stated that Mr. Massey's testimony had been "clear" and "unequivocal" and that "his memory is clear" that "there was never an offer made, never an offer confirmed, never an offer accepted."
Mr. Zak, the prosecuting attorney at both of the petitioner's trials, testified that he never made any plea offer to the petitioner. He agreed, however, that the defense may have approached him with one or more offers as part of plea negotiations. Mr. Zak stated that if the defense had approached him with the offer Ms. McCluskey described, he would have considered it. However, Mr. Zak believed that he would have rejected that offer because he had already tried the petitioner once and obtained a conviction.
Concerning the offer, the petitioner testified that a young man who worked for defense counsel visited him at the jail shortly before the trial and told him of an offer. The petitioner said that he was eager to accept the offer and asked when could he sign the paperwork. The young man told the petitioner that he could sign it on the day of the trial. The petitioner testified that he asked defense counsel on the day of trial about signing the paperwork and was told that the offer had been taken off the table.
At the conclusion of the hearing, the post-conviction judge denied the petitioner relief, and in doing so, made the following comments that are the basis of the petitioner's claim that the post-conviction judge should have recused himself.
To continue reading
Request your trial
-
In re March 9, 2012 Order
...promptly after a party learns or reasonably should have learned of the facts establishing the basis for recusal." In Cook v. State , 606 S.W.3d 247, 254-55 (Tenn. 2020), the Tennessee Supreme Court set forth the following principles regarding recusal:If a litigant knows of facts indicating ......
-
Chase v. Stewart, M2018-01991-COA-R3-CV
...standard, the judge's impartiality might reasonably be questioned. So the judge should have recused himself. See Cook v. State, 606 S.W.3d 247, 255 (Tenn. 2020) (reasoning that Tennessee's objective standard "'may sometimes bar trial by judges who have no actual bias'" (quoting In re Murchi......
-
Nesmith v. Clemmons
...Manookian's recusal motion were sufficient to warrant disqualification of Judge Binkley is a legal conclusion. See Cook v. State, 606 S.W.3d 247, 253 (Tenn. 2020) (holding that "whether [a] judge's comments [] establish that the judge should have recused himself because his impartiality mig......
-
Neuman v. Phillips
... ... Neuman moved to recuse the trial judge. She ... submitted that the judge's husband, the majority leader ... of the state senate, "ha[d] been a vocal proponent of ... the view that children should now be attending school ... in-person ... and that students ... to any other instances from the record that might serve as a ... basis to question the judge's impartiality. See Cook ... v. State, 606 S.W.3d 247, 257 (Tenn. 2020) (holding that ... a judge's inappropriate comments at the conclusion of a ... ...