Cooper v. State

• Decision Date: 12 March 2014
• Docket Number: No. S–12–0215.,S–12–0215.
• Citation: 319 P.3d 914
• Parties: Michael Lee COOPER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

319 P.3d 914

Michael Lee COOPER, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

No. S–12–0215.

Supreme Court of Wyoming.

March 12, 2014.

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey Pope, Assistant Attorney General; Caitlin F. Young, Assistant Attorney General. Argument by Ms. Young.

Before KITE, C.J., and HILL, VOIGT ^*, BURKE, and DAVIS, JJ.

KITE, Chief Justice.

[¶ 1] Mr. Cooper challenges his conviction for aggravated assault by threatening to use a drawn deadly weapon. He asserts his trial counsel was ineffective because she failed to call an expert witness; the district court improperly instructed the jury on the law of self defense; and there was insufficient evidence of a threat to support the jury's guilty verdict. We conclude there was sufficient evidence to support the jury's verdict but that Mr. Cooper did not receive effective assistance of counsel and the jury was improperly instructed on self defense. We, therefore, reverse and remand for a new trial.

ISSUES

[¶ 2] Mr. Cooper presents the following issues on appeal:

I. Was Mr. Cooper denied his constitutional right to effective assistance of counsel?

II. Was the jury improperly instructed on the law?

III. Was the evidence sufficient to support the jury's verdict on the crime charged?

Though stated in more detail, the State presents similar issues.

FACTS

[¶ 3] On July 9, 2011, Mr. Cooper and his friends, Shantel Webb, Tom Hinckley and Colby Davis, spent the afternoon drinking and then attended the Central Wyoming Fair in Casper, Wyoming. They got into an altercation with Josh Rodabaugh (Josh) and Michael Sanchez over a carnival game, and law enforcement directed all of them to leave the fairgrounds.

[¶ 4] Mr. Cooper and his friends returned to Mr. Cooper's residence, which was located close to the Loaf and Jug on Poplar Street. In the meantime, Josh and Mr. Sanchez called Josh's father, Ronald “Kirk” Rodabaugh (Kirk), to come and pick them up because they had two flat tires. They stopped at the Loaf and Jug so Kirk could get some iced tea.

[¶ 5] Ms. Webb and Mr. Davis decided to walk from Mr. Cooper's house to the Loaf and Jug for cigarettes. Josh confronted them, and a shouting match ensued. Kirk witnessed what was happening and began yelling as well. He also asked the store clerk to call the police and directed Ms. Webb and Mr. Davis to wait for the officers to arrive. They ignored his command and began walking back to Mr. Cooper's house.

[¶ 6] While the argument was going on, Mr. Cooper and Mr. Hinckley also decided to go the Loaf and Jug, and Mr. Cooper retrieved some money and a gun from his residence. They met up with Ms. Webb and Mr. Davis and all four of them started walking back to Mr. Cooper's residence.

[¶ 7] The Rodabaughs got back into their car, with Kirk driving, and began looking for the Cooper group. Kirk located them and drove toward them. Although the timing of the events was contested, it was undisputed that Kirk drove toward Mr. Cooper, Mr. Cooper brandished a gun and shot into the windshield twice, and Kirk hit Mr. Cooper with the car. Mr. Cooper shot a third time as he lay upon the hood of the car. Kirk then stopped the car, causing Mr. Cooper to fall off, drove forward again and pinned Mr. Cooper underneath the car and next to a fence. Kirk got out of the car and Mr. Cooper told him to get the car off of him. Kirk refused and Mr. Cooper shot three more times from under the car, hitting Kirk in the calf once.

[¶ 8] Law enforcement arrived and both Kirk and Mr. Cooper were transported to the hospital. Kirk was treated for the gunshot wound, and Mr. Cooper had numerous injuries including a broken collarbone, broken back and punctured lung. After interviewing the witnesses and conducting an investigation, the State charged Mr. Cooper with aggravated assault and battery for threatening Kirk with a drawn deadly weapon. Mr. Cooper claimed he had acted in self defense.

[¶ 9] The matter was tried to a jury, which returned a guilty verdict. After Mr. Cooper was sentenced, he filed a timely notice of appeal. Mr. Cooper's original trial counsel withdrew and new counsel was appointed to represent him. New counsel filed a W.R.A.P. 21 motion for a remand, claiming that trial counsel did not effectively present his self defense claim because she failed to retain an expert to testify about the distance between the car and Mr. Cooper.

[¶ 10] We granted a partial remand for an evidentiary hearing on his ineffective assistance of counsel claim. At the hearing, defense appellate counsel questioned Mr. Cooper, his trial counsel and Gregory Taylor, an investigator and former law enforcement officer who was trained in accident reconstruction. Mr. Taylor testified that, based upon the information in the record and his investigation, Kirk's car was just inches from Mr. Cooper when he fired the first two rounds. The district court issued its findings of fact and conclusions of law, ruling that trial counsel was effective.

DISCUSSION

1. Sufficiency of the Evidence

[¶ 11] We begin our discussion of this case with an analysis of the sufficiency of the evidence to support the jury's guilty verdict. If the evidence was legally insufficient to support a conviction, an order directing entry of a judgment of acquittal is the only just remedy. Ken v. State, 2011 WY 167, ¶ 17, 267 P.3d 567, 572 (Wyo.2011). The Double Jeopardy clause of the United States and Wyoming constitutions would prohibit a retrial under those circumstances. U.S. Const., Amend. 5; Wyo. Const. Art. 1, § 11. See alsoKen, ¶ 17, 267 P.3d at 572;Tanner v. State, 2002 WY 170, ¶ 17, 57 P.3d 1242, 1247 (Wyo.2002); Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978).

[¶ 12] In reviewing a sufficiency of the evidence claim:

we examine and accept as true the State's evidence and all reasonable inferences which can be drawn from it. We do not consider conflicting evidence presented by the defendant. We do not substitute our judgment for that of the jury; rather, we determine whether a jury could have reasonably concluded each of the elements of the crime was proven beyond a reasonable doubt.

Ken, ¶ 19, 267 P.3d at 572, quoting Daves v. State, 2011 WY 47, ¶ 30, 249 P.3d 250, 259 (Wyo.2011). See also Grimes v. State, 2013 WY 84, ¶ 8, 304 P.3d 972, 975 (Wyo.2013).

[¶ 13] Mr. Cooper was convicted of aggravated assault and battery under Wyo. Stat. Ann. § 6–2–502(a)(iii) (LexisNexis 2013):

(a) A person is guilty of aggravated assault and battery if he:

* * * * (iii) Threatens to use a drawn deadly weapon on another unless reasonably necessary in defense of his person, property or abode or to prevent serious bodily injury to another[.]

[¶ 14] Mr. Cooper claims the evidence was insufficient on the “threatens to use” element of the crime. The district court instructed the jury on the definition of “threatens to use” as follows:

“Threatens to use” means more than mere presence of a weapon. The phrase “threatens to use” requires proof beyond a reasonable doubt of an actual threat of physical injury during the act of employing a deadly weapon.

A threat may be expressed by words or acts or a combination of words and acts.

[¶ 15] Mr. Cooper does not challenge this instruction, and it is consistent with our precedent. This Court defined “threatens to use” in the context of aggravated assault and battery under § 6–2–502(a)(iii) as “an actual threat of physical injury during the act of employing a deadly weapon.” Johnston v. State, 747 P.2d 1132, 1134 (Wyo.1987). We also approved the following definition of “threat” in that case:

A threat is an expression of an intention to inflict pain, injury, or punishment. It may be expressed by words or acts, or a combination of words and acts. Considering all of the circumstances of the case, you must decide whether the defendant's words and acts amounted to an express or implied statement of his intention to use a drawn deadly weapon to inflict pain, injury, or punishment.

Id. at 1135.See also Miller v. State, 2003 WY 55, ¶¶ 24–26, 67 P.3d 1191, 1197–98 (Wyo.2003); United States v. Jenkins, 17 Fed.Appx. 769, 775 (10th Cir.2001) (under Wyoming law, a threat does not have to be verbal but can be accomplished simply by actions).

[¶ 16] Mr. Cooper claims there was evidence that he possessed and used a drawn deadly weapon, but no evidence that he threatened to use it. He asserts there was no evidence that he expressed an intention to inflict pain, injury or punishment on Kirk. Although Mr. Cooper acknowledges raising the gun and shooting it, he states that he only pointed the gun in the immediate act of shooting. He claims the State focused on the fact he actually shot Kirk from under the car, but that, since there was no spoken threat and Kirk could not see him, no threat occurred at that time.¹

[¶ 17] Mr. Cooper's argument ignores the chain of events. Casper Police Department Detective Randy Dolberg testified Mr. Cooper told him that when he got the gun from his home and put it in the waist band of his pants, there was ammunition in the magazine but the chamber was not loaded. Prior to being pinned under the car and shooting Kirk, Mr. Cooper brandished the gun and shot through the windshield. Because a bullet was not loaded in the chamber, he “racked a round” prior to shooting toward the windshield. A recording of Detective Dolberg's interview with Mr. Cooper was admitted into evidence and played for the jury at trial. It confirms that Mr. Cooper stated he pulled the gun out of his pants, cocked the weapon and fired. Kirk also testified that, as he turned the corner with his car, he saw Cooper pull a gun out of his pants and point the...