In re Personal Restraint Petition of Cooley, No. 36209-1-II (Wash. App. 5/12/2009)
| Decision Date | 12 May 2009 |
| Docket Number | No. 36209-1-II.,36209-1-II. |
| Parties | In re the Personal Restraint Petition of: Rodney Cooley. |
| Court | Washington Court of Appeals |
Appeal from Pierce County Superior Court Docket No: 03-1-04835-8. Judgment or order under review Date filed: 01/23/2004. Judge signing: Honorable Stephanie A Arend.
Counsel for Petitioner(s), Sheryl Gordon Mccloud, Law Offices of Sheryl Gordon McCloud, 710 Cherry St, Seattle, WA, 98104-1925.
Counsel for Respondent(s), Michelle Luna-Green, Pierce Co Pros Attorney, 930 Tacoma Ave S Rm 946, Tacoma, WA, 98402-2171.
UNPUBLISHED OPINION
Rodney Cooley has filed a personal restraint petition challenging his jury convictions for one count of first degree assault, one count of second degree assault with a deadly weapon, and one count of second degree assault by torture. He argues that: (1) the search warrant for his house unlawfully allowed police to seize the victim; (2) the word "torture" in the second degree assault statute is unconstitutionally vague; (3) insufficient evidence supports his conviction for second degree assault by torture; (4) the deadly weapon sentence enhancement violates double jeopardy; (5) he received ineffective assistance of counsel; and (6) the prosecutor committed misconduct. We deny his petition.
In September 2003, Theresa Gorham went to Rodney Cooley's and Janice Novotney's home for dinner. Just as Cooley finished preparing dinner, Gorham and Novotney went to a store and bought beer, over Cooley's objections. When they returned, Cooley was angry and accused Gorham and Novotney of using drugs while they were gone. Gorham said nothing but Novotney denied, falsely, that they had used drugs. When Cooley brought them dinner, Novotney objected to the taste of mushrooms and announced she was not hungry. According to Gorham, Cooley took a beer bottle from the counter, held it in front of Novotney's face, and broke the beer bottle across Novotney's knee. Gorham helped Novotney to her bedroom, where she changed her pants. The beer bottle had not cut her leg. At Gorham's suggestion, Novotney left with her and stayed at her home for two days.
Early in the morning of September 14, Gorham received an internet message from Novotney. Novotney had left Gorham's residence to retrieve a change of clothes but she had not returned. When Gorham called Novotney later that morning, Novotney explained that Cooley had slapped her during dinner the night before. Gorham called a friend, Techla Fish, to check on Novotney. When Fish arrived, she saw that Novotney had a black eye, bruises on her neck, and slap marks on her face. When Gorham arrived later, she, too, saw that Novotney was shaken and had a black eye, bruises on her chin and neck, and slap marks on her face. Later that evening, a mutual friend took pictures of Novotney's face and neck. According to Gorham, Novotney told her of instances when Cooley had (1) held her down and slapped her, (2) urinated on her, (3) poked her in the chest, (4) thrown Ajax in her face, and (5) broken a broom across her back.
Gorham, Fish, and Kathleen Butcher helped Novotney move into Gorham's home.
Butcher and Fish also noticed that Novotney had a black eye and bruises on her neck. According to Butcher and Fish, Novotney said that Cooley had lifted her off the ground by her neck. Novotney also told Butcher and Fish about the incidents that Gorham had described.
On October 9, Deputy James Jones responded to a 911 call reporting domestic violence assault. Jones saw that Novotney had a black left eye. Novotney told Jones that she had been assaulted. On October 13, Deputy Lynelle Kern went to Novotney's home to follow-up on Deputy Jones's domestic violence report. Kern noticed that Novotney's eye, face, and neck were bruised. Novotney told Deputy Kern that she did not want to talk to her. Novotney also denied that Cooley was there at the time.
The next day, Deputy Kern returned with a warrant to search for "[b]ruises and injuries upon Janice Novotney as well as evidence of blood and other damage to the residence and/or other items of property caused by acts of domestic violence." Petitioner's Exhibit C. Deputies found Cooley in the residence. Kern ordered Cooley to come out with his hands up. When Cooley did not comply, Kern drew her weapon, ordered Cooley to the ground, handcuffed him, and placed him under arrest.
As the deputies removed Cooley from the residence, he began yelling at Novotney and asking her what she had done. According to Kern, Novotney began rocking back and forth and repeating: Report of Proceedings (RP) (Dec. 11, 2003) at 461. Novotney told Kern that on October 8 Cooley had slapped her, kicked her, punched her, and put his hands around her throat, squeezed, and lifted her off the ground in a way that prevented her from breathing.
The State charged Cooley with one count of first degree assault, one count of second degree assault with a deadly weapon, and one count of second degree assault by torture.2 Novotney testified that during most of the time at issue, she had been drunk or high on methamphetamine. She also testified that: (1) during the dinner with Gorham, she had been drunk and high; (2) Cooley did not strike her with a beer bottle; (3) on October 8, she threw her keys at Cooley and struck him; (4) she did not recall whether Cooley had struck her, but Cooley did not grab her around the neck or lift her from the floor; (5) Cooley did not slap her face or hit her in the stomach; (6) she could not remember whether she had made the statements that Gorham and Deputy Kern reported, but the events she had described to Gorham, Butcher and Fish had not occurred; (7) the only times Cooley had struck her were in self-defense against her assaults on him; (8) the bruises depicted in the October 9 photographs resulted from Cooley's defending himself, from her falling onto a countertop while cleaning her cupboards, and from training her horse. Novotney also testified that she planned to marry Cooley.
Novotney could not recall her visit to the hospital emergency department on October 14 or her statements to the physician. The State and Cooley stipulated to admission of her emergency department medical record, which contained a history that Novotney had given to the physician. That history provided:
[Novotney] states that over the last six months to one year she has been physically abused by the male with whom she lives. She states it escalated in the last six months and even at a higher level of frequency in the last two weeks such that the physical abuse has been daily over the last two weeks. She states that yesterday he picked her up by the throat but she states she did not ever stop breathing or pass out from that.
Gorham, Fish, Butcher, Deputy Jones, and Deputy Kern testified as described above.
Forensic pathologist John Howard, M.D., testified that squeezing a person's neck until the person cannot breathe will result in some brain injury within 3 to 15 seconds and will result in permanent brain damage within 1 to 2 minutes. Dr. Howard also testified that Novotney's bruises, as shown in the photographs taken on October 9 and October 14, were consistent with squeezing a person's neck to the point that the person could not breathe. Domestic violence counselor April Gerlock, Ph.D., testified that some victims of domestic violence recant their statements reporting violence.
Cooley testified and denied that he had argued with or struck Novotney with a beer bottle during their dinner with Gorham. He admitted to having slapped Novotney on October 8 and struggling with her, but only in self-defense after she threw her keys at him and tried to stab him with a knife. He denied committing any of the acts that Novotney reportedly described to Gorham, Butcher, and Fish. The jury convicted Cooley as charged.
Cooley filed a direct appeal. He argued that (1) the State had failed to present sufficient evidence of first degree assault, second degree assault with a deadly weapon, or second degree assault by torture, and (2) the trial court erred in admitting hearsay evidence. Holding that these arguments were clearly without merit, our court commissioner affirmed the judgment and sentence. The Washington Supreme Court denied review. State v. Cooley, 156 Wn.2d 1029, 132 P.3d 1094 (2006).
Cooley filed a timely personal restraint petition,3 for which we held oral argument.
Thereafter, we remanded to the trial court for an evidentiary hearing to address Cooley's claim that ineffective assistance of counsel rendered his guilty plea invalid. On March 5, 2009, the trial court conducted a hearing and considered testimony and documentary evidence. The trial court entered findings of fact on March 20. Having received the trial court's findings of fact on March 23, we now address Cooley's arguments.
In his personal restraint petition (PRP), Cooley argues that: (1) the search warrant for his house unlawfully allowed police to seize Novotney; (2) the word "torture" in the second degree assault statute is unconstitutionally vague; (3) insufficient evidence supports his conviction for second degree assault by torture; (4) the deadly weapon sentence enhancement violates double jeopardy; (5) he received ineffective assistance of counsel; and (6) the prosecutor committed misconduct. These arguments fail.
As a threshold matter, we note that a personal restraint petitioner may not revive an issue that he raised and the court rejected on direct appeal unless the interests of justice require relitigation of that issue. In re Pers. Restraint of Taylor, 105 Wn.2d 683, 688, 717 P.2d 755 (1986). The petitioner may raise new issues, however, including both errors of constitutional magnitude that result...
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