Cooper v. State, No. S04A2003.

• Decision Date: 28 March 2005
• Docket Number: No. S04A2003.
• Citation: 612 S.E.2d 256,279 Ga. 189
• Parties: COOPER v. The STATE.
• Court: Georgia Supreme Court

Page 256

612 S.E.2d 256

279 Ga. 189

COOPER v. The STATE.

No. S04A2003.

Supreme Court of Georgia.

March 28, 2005.

Michael B. Nation, for Appellant.

Dennis C. Sanders, Dist. Atty., William Patrick Doupe', Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Frank Murray Gaither Jr., Asst. Atty. Gen., for Appellee.

HINES, Justice.

Shermont Monte Cooper appeals his conviction for the malice murder of Kenneth Ellis.¹ For the reasons that follow, we affirm.

Construed to support the verdict, the evidence showed that Cooper's mother and Ellis had a romantic, but tumultuous, relationship. The day of the shooting, Cooper's mother paged him several times; he called her back three or four times and she asked for his help to remove her from Ellis's home.² While Cooper was at the home of Catrice Watkins, Cooper's mother asked Watkins over the telephone to give Cooper a pistol so that he could help her leave Ellis's house as Ellis had beaten her. Cooper overcame Watkins's reluctance to do so by saying that he would not use the weapon. Watkins did not give it to Cooper, but to his friend Caver;³ the pistol was not loaded at that time. Cooper, Caver, and Watkins went to Ellis's house in a car driven by another friend, King. When they arrived, Cooper had the now-loaded pistol in his pocket, and walked into the house, followed by Caver and Watkins; King remained in the car. Ellis said something derogatory about Watkins, and Caver and Ellis had a brief struggle; Ellis was pushed to a seating position on the sofa and stated: "I'm going to get you."⁴ Cooper shot Ellis in the torso from a distance of approximately five feet, then shot him again in the torso. After a short delay, having approached to within arm's length of Ellis, Cooper shot him a third time, in the mouth, with the pistol's muzzle an inch or two away.

Cooper and his mother left Ellis's home and joined Watkins and Caver outside; they had left before the third shot. The five drove away and stopped for some cigarettes; Cooper returned the pistol to Watkins. Cooper's mother laughed as though the occurrence was "a big joke" and said: "You shot him, Shermont." Cooper told a police investigator that Ellis "got in my face so I just shot him."

1. The evidence was sufficient to enable a rational trier of fact to find Cooper guilty beyond a reasonable doubt of malice murder. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Cooper contends that he did not receive effective representation of trial counsel. In order to prevail on this claim, Cooper must show both that counsel's performance was deficient and that the deficient performance was prejudicial to his defense. Smith v. Francis, 253 Ga. 782, 783(1), 325 S.E.2d 362 (1985), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To meet the first prong of this test, he must overcome the "strong presumption" that counsel's performance fell within a "wide range of reasonable professional conduct," and that counsel's decisions were "made in the exercise of reasonable professional judgment." Id. The reasonableness of counsel's conduct is examined from counsel's perspective at the time of trial and under the particular circumstances of the case. Id. at 784, 325 S.E.2d 362. To meet the second prong, Cooper must show that there is a reasonable probability that, absent any unprofessional errors on counsel's part, the result of his trial would have been different. Id. at 783, 325 S.E.2d 362. "`We accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.' [Cit.]" Robinson v. State, 277 Ga. 75, 76, 586 S.E.2d 313 (2003).

Cooper argues that counsel was deficient in not sufficiently investigating Ellis's violent nature, and then presenting evidence of it to the jury. He contends that had counsel searched for Ellis's criminal convictions in counties other than the one in which he resided, counsel would have discovered that Ellis had previously been convicted of aggravated assault, burglary, felony obstruction of an officer, and possession of a firearm by a convicted felon. He also contends that if counsel had interviewed Cooper's family and other potential witnesses, and met with Cooper more often, counsel would have uncovered similar information about Ellis's violent past and certain specific acts of violence, and that counsel should have secured the services of an independent expert witness to review the physical evidence.⁵

Although the trial court's order states that it "views with caution" the testimony of Cooper and his family concerning what was communicated to counsel ten years earlier during the criminal prosecution,⁶ the court did not decide Cooper's motion for new trial on credibility grounds, or even on the ground that counsel's performance was not deficient. Rather, the court found that even assuming that which Cooper now contends should have been done had been done by counsel, the outcome of Cooper's trial would not have been different. This was not error.

As to the evidence Cooper now brings forth concerning the violent character and specific acts of the victim,⁷ through Cooper's own statement to the police investigator, corroborated in part by Watkins, the jury was given considerable information concerning Ellis's violent nature, including that: Ellis had beaten Cooper's mother in the hours before the shooting; she was greatly distressed and wished to leave; she wished her son to be armed when he helped her leave; Ellis threatened Cooper on the telephone; Ellis was willing to engage in a physical confrontation with three, or possibly four, people; he made a verbal threat just before the shooting; and that at the time of his death Ellis had a blood alcohol level of 0.21 grams percent and had consumed cocaine "a couple of hours" before the shooting. The jury was instructed on the principle of justification in the defense of oneself or others, OCGA § 16-3-21, and on the crime of voluntary manslaughter, OCGA § 16-5-2. Nonetheless, the jury rejected both the justification defense and the lesser charge. And, this is not surprising considering the quantity of evidence placed before the jury showing malice, to wit: Cooper armed himself before entering Ellis's home and entered a situation prone to confrontation; he shot Ellis twice from a distance of five feet; after some delay, he shot a third time, at close range, into Ellis's mouth; and Ellis was unarmed.⁸ Cooper's statement that Ellis was "charging" him is likewise inconsistent with the evidence, as is Cooper's claim that Ellis "got in his face." The trial court's finding that, even if the evidence Cooper now brings forth had been admitted, there was no reasonable probability that the result of the jury trial would have been different was not clearly erroneous. Robinson, supra. Any reliance on Johnson v. State, 266 Ga. 380, 467 S.E.2d 542 (1996), is misplaced. In that case, the trial court made no finding concerning prejudice, ruling solely on the question of whether counsel's performance was deficient. Id. at 382(2), 467 S.E.2d 542. Compare Robinson, supra. See also White v. State, 265 Ga. 22, 23(2), 453 S.E.2d 6 (1995). Further, in Johnson, the evidence of malice did not include the circumstance that the defendant, after already wounding the victim, approached him and, at a close distance, shot him again. See Landers v. State, 270 Ga. 189, 191(4), 508 S.E.2d 637 (1998) (evidence deemed overwhelming so that, even if counsel's performance was deficient, there could be no showing of a "reasonable probability that the jury would have had a reasonable doubt respecting his guilt . . . . ").

Cooper's assertion that counsel should have retained an independent expert witness to review the physical evidence does not establish ineffective assistance of counsel. The expert that Cooper retained for the motion for new trial testified that there was nothing in the evidence that "precluded" Ellis's torso from being twelve to eighteen inches off the sofa when the first bullet struck him, but that in any event, Ellis was seated, leaning against the back of the sofa, when the third shot was fired into his mouth from a distance of an inch or two.⁹ The evidence showed that the shooting was done with malice, not in self-defense, nor as the result of some provocation. Again, it was not error for the court to find that, even if counsel had done that which Cooper now claims should have been done, the outcome of the trial would have been no more favorable to him. Robinson, supra.

Judgment affirmed.

All the Justices concur, except FLETCHER, C.J., SEARS, P.J., and HUNSTEIN, J., who dissent.

FLETCHER, Chief Justice, dissenting.

I dissent, because I conclude that Cooper established that his trial counsel was deficient in failing to investigate and present evidence of the victim's substantial history of violence against the defendant, his mother, and others, and that this deficiency prejudiced Cooper.

To establish a claim of ineffective assistance of counsel at trial, a defendant must show that the attorney's performance was deficient and that the deficient performance prejudiced the defense.¹⁰ On appeal, this Court accepts the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.¹¹

In this case, the defense was justification and Cooper contends his trial counsel was ineffective in failing to present evidence of the victim's prior acts of violence. At the motion for new trial hearing, Cooper established that the victim in the case had committed several prior acts of violence including an aggravated assault at the home of Cooper's mother, robbery by intimidation, and assault against a uniformed police officer who was attempting to serve a warrant. Cooper also presented evidence of the victim's violent nature when he had been...