Cooper v. State, 2003-KA-02344-COA.

• Decision Date: 20 September 2005
• Docket Number: No. 2003-KA-02344-COA.,2003-KA-02344-COA.
• Citation: 911 So.2d 665
• Parties: Jonathan COOPER a/k/a Jonathan Dewayne Cooper, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Supreme Court

911 So.2d 665

Jonathan COOPER a/k/a Jonathan Dewayne Cooper, Appellant v. STATE of Mississippi, Appellee.

No. 2003-KA-02344-COA.

Court of Appeals of Mississippi.

September 20, 2005.

Whitman D. Mounger, Greenwood, attorney for appellant.

Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.

Before BRIDGES, P.J., MYERS and CHANDLER, JJ.

BRIDGES, P.J., for the Court.

¶ 1. Charged with murdering Kenneth Shumaker, Jonathan Cooper went before the Washington County Circuit Court. After a two-day trial, the jury found Cooper guilty of manslaughter. The circuit court sentenced Cooper to a twenty-year term in the custody of the Mississippi Department of Corrections. Cooper appeals and raises the following issues:

I. THE TRIAL COURT ERRED IN OVERRULING [COOPER'S] OBJECTION TO THE STATE'S RECALLING A WITNESS AGAINST HIM AFTER THIS WITNESS HAD BEEN EXAMINED BY THE STATE AND CROSS-EXAMINED. THIS RECALL OF THE WITNESS WAS THE DAY AFTER THE WITNESS' TESTIMONY AND NOT FOR THE PURPOSES OF REDIRECT EXAMINATION.

II. THE TRIAL COURT ERRED IN REFUSING TO GRANT [COOPER'S] MOTION FOR A DIRECTED VERDICT OF ACQUITTAL AT THE CLOSE OF THE STATE'S CASE, IN REFUSING TO GRANT [COOPER'S] REQUESTED PEREMPTORY INSTRUCTION AND DENYING [COOPER'S] MOTION FOR A JUDGMENT NOTWITHSTANDING THE VERDICT AS SUCH VERDICT WAS CONTRARY TO THE LAW.

III. THE TRIAL COURT ERRED IN DENYING [COOPER'S] MOTION FOR A NEW TRIAL AS THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

Finding no error, we affirm.

FACTS

¶ 2. The events that led to Cooper's conviction happened at Carolyn Cooper's house during the early morning hours of May 25, 2002. Carolyn and Kenneth Shumaker returned to Carolyn's house after visiting some nightclubs in Greenville. Carolyn and Kenneth did not return to an empty house. Carolyn's twin ten-year-old sons, Tredara and Cordera Cooper, and Kenneth's son, Shaun Shumaker, then seven-years old, stayed at Carolyn's house while their parents went out. The boys were not unsupervised though, as Carolyn's cousin, Jonathan Cooper, stayed with the three boys.

¶ 3. When they returned to Carolyn's house, Cooper was asleep in the living room and the boys were asleep in the room Cordera and Tredara shared. Carolyn woke the boys up and told them to get something to eat from the kitchen. Meanwhile, Carolyn and Kenneth argued about the sleeping arrangements. Their argument began in Carolyn's bedroom. Carolyn testified that she did not want to argue, so she began to leave. According to Carolyn, when she turned around, Kenneth used his fist to hit her in the back of her head.

¶ 4. Carolyn proceeded down the hallway towards her living room. Kenneth followed her and set out to prevent her from leaving. Carolyn testified that Kenneth hit her again. When Carolyn reached her front door, she unlocked it and opened it slightly, but Kenneth pushed the door shut. Carolyn testified that Kenneth grabbed her by the throat and threw her on the couch. Carolyn grabbed a cordless phone and began dialing, when Kenneth took the phone from her and used the phone to hit Carolyn in the temple.

¶ 5. Cooper stood between Carolyn and Kenneth and tried to calm the situation. Kenneth did not appreciate Cooper's interference. Kenneth told Cooper, "I'll do you, too. I'll beat the brakes off you, too." Carolyn testified that Cooper unsuccessfully continued to try to calm Kenneth down. Kenneth was able to shove Carolyn, but he shoved her towards her front door. Taking the opportunity to leave, Carolyn left her house, went to a neighbor's house across the street, and called the Greenville Police Department. After Carolyn left, the only people left in Carolyn's house were Cooper, Kenneth, and three young boys.

¶ 6. The three young boys were the only eyewitnesses to testify at trial. Cordera and Tredara's version of events are similar to one another. Cooper went back into the boys' bedroom, where the boys were. Kenneth started to follow Carolyn out of the house, but turned around to follow Cooper instead. They testified that Cooper tried to use a phone in their bedroom, but Kenneth took the phone from Cooper, snatched the phone out of the wall, and used the phone to hit Cooper in the jaw. Next, Kenneth began asking the boys where his bat was. Kenneth went room to room looking for a baseball bat but Cooper, still in Cordera and Tredara's room, found it first.

¶ 7. Kenneth proceeded down the hallway, back towards the boys' room. According to Cordera and Tredara's version, when Kenneth saw Cooper, Kenneth swung at Cooper with his fist. Cooper ducked and avoided the strike, and got behind Kenneth. Kenneth swung again, but Cooper used the bat and hit Kenneth on the wrist. Next, Cooper swung and hit Kenneth in the head. Kenneth went down and did not get back up.

¶ 8. Shaun Shumaker's (also referred to as Kinney Maiten in the record) version is distinctly different than Cordera and Tredara's. According to Shaun, Cooper hit Kenneth with the bat, but he hit him twenty times, instead of two. Shaun testified that he hid his head under the covers, and could not see. However, he added that he peeked out from under the covers. Shaun also testified that Cooper did not fight Kenneth on his own. According to Shaun, Cooper and Cooper's brother fought Kenneth at the same time.

¶ 9. Varied testimony notwithstanding, there is no question that Cooper killed Kenneth with a baseball bat. Cooper did not present a case suggesting that he did not kill Kenneth. Rather, Cooper suggested that he acted in self-defense.

ANALYSIS

I. THE TRIAL COURT ERRED IN OVERRULING [COOPER'S] OBJECTION TO THE STATE'S RECALLING A WITNESS AGAINST HIM AFTER THIS WITNESS HAD BEEN EXAMINED BY THE STATE AND CROSS-EXAMINED. THIS RECALL OF THE WITNESS WAS THE DAY AFTER THE WITNESS' TESTIMONY AND NOT FOR THE PURPOSES OF REDIRECT EXAMINATION.

¶ 10. In this issue, Cooper claims the circuit court erred when it allowed the State to present testimony from Cordera Cooper. Cooper asks this Court to review the trial judge's decision to allow Cordera's testimony.

¶ 11. The State's case-in-chief lasted for two days. On August 27, 2003, the State called Cordera Cooper as its sixth witness. After direct and cross-examination, Cordera left the stand. Afterwards, the State called Shaun Shumaker to the stand. The State questioned Shaun, and Cooper cross-examined him. Then, the circuit court recessed for the evening and reconvened the next morning.

¶ 12. As its first witness for the second day of trial, the State called Cordera to the stand again. Cooper objected and asked the trial judge to forbid the State from recalling Cordera. Cooper argued that the circuit court should not allow the State to call Cordera to ask questions that the State forgot to ask Cordera on the previous day. Cooper did not cite any specific authority that would forbid the State from recalling Cordera, other than "the normal practice of the court." Based on a lack of authority that would prohibit recalling Cordera, the circuit court overruled Cooper's objection and allowed the State to recall Cordera.

¶ 13. The State asked Cordera if anyone came over to Carolyn's house after an ambulance took Kenneth to the hospital. Cordera responded that Shay, Cooper's girlfriend, came over after the ambulance left. At that point, Cooper objected again and argued that by recalling Cordera, the State was conducting an improper rebuttal. The State responded that it was not calling Cordera on redirect. Again, the circuit court overruled Cooper's objection and allowed Cordera's testimony. Cordera went on to testify that Shay, Cooper's girlfriend, went to Carolyn's house, cleaned blood and vomit off the floor, and picked up the bat that Cooper used to strike Kenneth. On cross-examination, Cooper asked Cordera where Shaun was during the altercation between Cooper and Kenneth. Cordera repeated his previous testimony that Shaun did not watch Cooper and Kenneth fight because Shaun had his head under blankets.

¶ 14. First, Cooper claims that the circuit court's decision to allow the State to recall Cordera actually allowed the State to circumvent the general rules of permissible redirect testimony. The scope of redirect examination, while largely within the discretion of the trial court, is limited to matters brought out during cross-examination. Evans v. State, 499 So.2d 781, 783 (Miss.1986) (citing UCCCR 5.08). This Court will only disturb a trial court's ruling on matters pertaining to redirect if there has been a clear abuse of discretion. Evans, 499 So.2d at 782.

¶ 15. Here, the State specifically stated that it was not offering Cordera's testimony for the purpose of redirect. According to the State, it recalled Cordera for a second direct examination. Cooper concedes that there is no rule that says a witness cannot be recalled once his testimony is complete. Rather, "[t]he court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective fore the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment and undue embarrassment." M.R.E. 611(a). However, Cooper also claims that the circuit court erred in applying Rule 611(a).

¶ 16. A trial judge has discretion on whether to allow recall of a witness. Ellis v. State, 661 So.2d 177, 179 (Miss.1995). In Ellis, the Mississippi Supreme Court affirmed a circuit court's decision to allow the State to recall a witness to the stand for the purpose of admitting cocaine into evidence. Id. Further, Ellis stated: "[i]n accord with 611(a), it is within the trial court's discretion to decide whether to allow a witness to be recalled to the stand. In the case sub judice, there was no showing of abuse of discretion nor did Ellis allege any prejudice by the recalling of Day." Id. Ellis went on to state that "a trial is not a game but is a search for...