Cosper v. State, 012221 TNCRIM, E2020-00024-CCA-R3-PC

Docket Nº:E2020-00024-CCA-R3-PC
Opinion Judge:JAMES CURWOOD WITT, JR., JUDGE
Party Name:RONALD L. COSPER v. STATE OF TENNESSEE
Attorney:Brandy Spurgin-Floyd (at hearing and on appeal) and Melody Shekari (at hearing), Chattanooga, Tennessee, for the appellant, Ronald L. Cosper. Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Neal Pinkston, District Attorney General; and Andrew...
Judge Panel:James Curwood Witt, Jr., J., delivered the opinion of the court, in which Alan E. Glenn and Camille R. McMullen, JJ., joined.
Case Date:January 22, 2021
Court:Court of Appeals of Tennessee, Court of Criminal Appeals of Tennessee

RONALD L. COSPER

v.

STATE OF TENNESSEE

No. E2020-00024-CCA-R3-PC

Court of Criminal Appeals of Tennessee, Knoxville

January 22, 2021

Assigned on Briefs October 27, 2020

Appeal from the Criminal Court for Hamilton County No. 304925 Barry A. Steelman, Judge

The petitioner, Ronald L. Cosper, appeals the denial of his petition for post-conviction relief, which petition challenged his convictions of first degree felony murder and attempted especially aggravated robbery, alleging that he was deprived of the effective assistance of counsel. Discerning no error, we affirm the denial of post-conviction relief.

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

Brandy Spurgin-Floyd (at hearing and on appeal) and Melody Shekari (at hearing), Chattanooga, Tennessee, for the appellant, Ronald L. Cosper.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Neal Pinkston, District Attorney General; and Andrew Coyle, Assistant District Attorney General, for the appellee, State of Tennessee.

James Curwood Witt, Jr., J., delivered the opinion of the court, in which Alan E. Glenn and Camille R. McMullen, JJ., joined.

OPINION

JAMES CURWOOD WITT, JR., JUDGE

A Hamilton County jury convicted the petitioner of first degree felony murder and attempted especially aggravated robbery for the July 2012 events culminating in the fatal shooting of the victim. State v. Ronald Levon Cosper, No. E2016-00212-CCA-R3-CD, slip op. at 1-2 (Tenn. Crim. App., Knoxville, May 12, 2017). In affirming the petitioner's convictions, this court summarized the evidence on direct appeal: [T]he evidence shows that the day before the crimes occurred, [Dustin] Hayes, [Blake] Lee, and the [petitioner] were driving in the vicinity of the victim's house when the [petitioner] made statements that he knew of a house where a robbery could be committed. On July 2, 2012, the [petitioner] began asking for a ride, and Mr. Hayes knew the [petitioner] wanted to commit a robbery. As Mr. Hayes drove the [petitioner] to a location the [petitioner] requested, the [petitioner] stated he wanted to "pick up some heat," and the [petitioner] later made a statement to [Devante] Stoudemire about "a lick that we were going to go hit." The [petitioner] also made a statement that his intended target was a "weed man." When they reached the area of the victim's house, Mr. Stoudemire gave the [petitioner] a gun, and the [petitioner] left the car and disappeared into a "cut." The victim was shot, and his house showed signs that a struggle occurred. . . .

The evidence shows, as well, that . . . the victim resisted and that the [petitioner] shot the victim to get the victim off him. . . .

Id., slip op. at 21-22. The petitioner received an effective life sentence. Id., slip op. at 1.

The petitioner filed a pro se petition for post-conviction relief followed by two amended petitions after the appointment of counsel, alleging the ineffective assistance of his trial counsel.

At the bifurcated evidentiary hearing, trial counsel testified that he was the third attorney appointed to the petitioner's case beginning in November 2014, only five months before the April 2015 trial. He stated that the court asked if he could be prepared for trial in such a short timeframe, and he assured the court that he could, prioritizing the petitioner's case and beginning work immediately. He met with the petitioner's prior counsel to learn the status and details of the case up to that point, and he continued to work with the same investigator that prior counsel had used. Counsel stated that his trial preparations included a "thorough review" of all discovery materials, meeting with the petitioner at least 15 times at the jail, interviewing all three of the State's expert witnesses and reviewing their reports, interviewing the State witnesses who were willing to talk with him, and attempting to locate potential alibi witnesses. Trial counsel acknowledged that this was his first jury trial but stated that he consulted with an associate attorney who had "quite a bit of experience."

Trial counsel said that the State never made a plea offer to the petitioner. The prosecutor had told counsel that the State had no intention of offering a plea agreement but would consider a "reasonable offer" from the petitioner. He stated that approximately one month prior to trial, the petitioner asked if the State would be willing to let him plead guilty to reckless homicide to which counsel explained that the State would not "be in a position to do a reckless homicide" in a first degree murder case. He advised the petitioner to consider offering the State a plea agreement of second degree murder. One day before trial, the petitioner "signed off on" a plea offer to second degree murder with a 20-year sentence. Trial counsel stated that he "immediately" took the offer to the prosecutor, but that night the prosecutor rejected the offer, stating that he would "take this case to trial." Counsel said that he believed that the petitioner understood that no deal had been struck at the time he authorized the plea offer.

Trial counsel stated that Cheryl Billups, a key State witness, was unwilling to talk with him or his investigator when they had attempted to interview her, but the State arranged for him to interview Ms. Billups shortly before trial to avoid a voir dire of her testimony. Counsel said that, up until that point, he believed Ms. Billups' testimony would be key to establishing the petitioner's identity as one of the perpetrators but did not know the basis for her knowledge or what evidence her testimony would reveal. He knew from discovery materials that Ms. Billups had not identified the petitioner to law enforcement and had not been asked to identify a perpetrator from a photographic array, but counsel expected the State to ask Ms. Billups to identify the petitioner in court because she had previously identified him by name to prosecutors. Counsel also suspected that Ms. Billups had identified the petitioner as a perpetrator only because he was identified as the defendant in the case and not because she knew him from the events she witnessed. He stated that at trial, the State did not elicit an in-court identification from Ms. Billups, which put him "in a very precarious position" of wanting to emphasize the fact that Ms. Billups could not identify the petitioner without "eliciting the identification that the State had failed to make." He acknowledged that he did not move to suppress Ms. Billups' identification of the defendant but said that, at trial, Ms. Billups described the man she saw as being much shorter than the defendant, and she said that she only knew of the defendant's identity because she had seen his name on a subpoena.

Trial counsel stated that a couple of weeks before the trial, he learned that co-defendant Hayes was to testify as a State's witness against the petitioner. The only other evidence linking the petitioner to the crime scene were the petitioner's fingerprints that were found on the glass door of the victim's home and potential gunshot residue found on his shorts. Counsel stated that Mr. Hayes had provided three statements to the police during the course of the investigation. Counsel acknowledged that he did not play the recordings of Mr. Hayes's statements during the trial but explained that the third of the statements was largely consistent with his trial testimony, and counsel feared that suggesting that the first two statements were untruthful would reinforce the truthfulness of the third statement and his trial testimony. Counsel said that he decided to impeach Mr. Hayes by emphasizing to the jury that Mr. Hayes received a "really great deal" from the State in exchange for his testimony.

Trial counsel stated that he reviewed the standard jury instructions before trial but acknowledged that he did not discuss the instructions with the petitioner. He also acknowledged that the trial court's jury instructions did not include, and he did not request, a charge for facilitation or solicitation.

Trial counsel said that he interviewed potential alibi witnesses, including Blake Lee, Marcus Lee, and Heaven Wilson. He discussed the alibi with the petitioner and filed a notice of an alibi defense. Counsel explained, however, that after several interviews with the potential witnesses, he was unsuccessful in "piec[ing] together an alibi" because "there were holes in the time frame around when [the offenses] occurred." He said that he explained the matter to the petitioner and that he would have raised an alibi defense if he thought that the evidence supported one.

Counsel recalled that on the day of trial, the State informed him that it would not pursue a conspiracy charge that comprised count three of the indictment; however, before the State dismissed the charge, the jury had already received preliminary instructions, including reference to the conspiracy charge. Counsel acknowledged that he did not object to the inclusion of the conspiracy charge in the preliminary instructions, nor did he request a curative instruction.

Trial counsel acknowledged that he did not move to exclude reference to Mr. Stoudemire's nickname, "White Chalk," which name was used throughout the trial. He stated that he considered such a motion but ultimately decided against it because he thought it could be helpful to have someone with an incriminating-sounding name that "we could potentially point to as the person who did it." Counsel said that he was familiar with Mr. Stoudemire and understood his nickname to be "based off of his reputation" and a reference to the white lines drawn by investigators at the scene of a homicide to indicate...

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