State v. Cooke

• Decision Date: 23 July 2018
• Docket Number: No. E2017-00781-CCA-R3-CD,E2017-00781-CCA-R3-CD
• Parties: STATE OF TENNESSEE v. TYRAIL JERMAINE COOKE
• Court: Tennessee Court of Criminal Appeals

STATE OF TENNESSEE v. TYRAIL JERMAINE COOKE

No. E2017-00781-CCA-R3-CD

COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE

February 27, 2018 Session

July 23, 2018

Appeal from the Criminal Court for Knox County

No. 100543

Scott Green, Judge

Aggrieved of his convictions of reckless homicide and aggravated child abuse, the defendant, Tyrail Jermaine Cooke, appeals. In this appeal, the defendant argues that the trial court erred by refusing to suppress the entirety of his pretrial statement to the police; that the trial court erred by admitting into evidence the video recording of his pretrial statement; that the trial court erred by admitting into evidence photographs, testimony, and other evidence relating to bruising in the victim's genital area and a hole in the wall in the closet of the defendant's residence; that the trial court erred by refusing to grant the defendant's request for a special jury instruction regarding the right of parents to use corporal punishment to discipline their children; that the trial court erred by denying his motion for a mistrial based upon the prosecutor's improper comment on the defendant's right to remain silent during his closing argument; that the evidence was insufficient to support his convictions; that the 29-year effective sentence is excessive; and that the cumulative effect of the errors deprived him of the constitutional right to a fair trial. Because we discern no reversible error, we affirm the judgments of the trial court.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Mark E. Stephens, District Public Defender (on appeal and at trial); Jonathan Harwell, Assistant District Public Defender (on appeal and at trial); and John Halstead, Assistant District Public Defender (at trial), for the appellant, Tyrail Jermaine Cooke.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Christopher Rodgers and Ashley McDermott, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

In November 2012, the Knox County Grand Jury charged the defendant with one count of aggravated child abuse and one count of felony murder in the perpetration of child abuse related to the October 2012 death of five-year-old R.R.¹

The evidence adduced at the defendant's March 2015 trial established that the victim's mother left the defendant, her live-in boyfriend, alone with her three children on the morning of October 20, 2012, while she went to run errands. At some point, the defendant telephoned to say that he could not rouse the victim, and, upon returning to the apartment, the victim's mother found him unresponsive in his sister's bedroom. The victim was transported to the hospital, where he succumbed to his injuries three days later.

The victim's mother, A.R., testified that she had been dating the defendant for three or four months in October 2012 and that the two had moved into an apartment with her three children, ages six, five, and three, 11 days before the incident that led to the victim's death. On October 20, 2012, she woke the children, fed them breakfast, and put a movie on for them to watch. She then woke the defendant and asked him to "just to listen for" the children while she and a friend ran errands. She and the defendant exchanged several text messages, and, at one point, she returned to the apartment to give the defendant some cigarettes. At that point, all three children appeared normal. She then left a second time to finish her errands. Just before returning home, she telephoned the defendant to check on the children and ask if they needed anything. The defendant indicated that all was well.

"About two minutes" later, the defendant called her back to tell her "that there's a problem . . . where he can't wake [the victim] up." The defendant told her that the victim had soiled his pants and that when the defendant took him into the bathroom to change him, the victim "had fallen and hit his head." The defendant said that "he woke [the victim] up the first time and that he had passed back out, and he tried putting him in the bathtub and he'd hit his head again in the bathtub." She "rushed straight there" and arrived "within like two minutes after the phone call." She recalled that when she arrived, the defendant and her other two children were "in the master bedroom" "playing the X-box." The victim "was in the front room laying on the toddler bed with the door closed. He just closed him up in there." When she picked the victim up and carried him into the living room, "his eyes were rolled in the back of his head and his mouth was quivering." She screamed for help from her friend, who was still outside, and she "started trying to give him CPR." She telephoned 9-1-1, but her friend had to speak tothe operator. She said that the defendant "came in there and tried to explain . . . then he changed the story, said [the victim] was jumping on the bed and hit his head on the window sill."

Knoxville Fire Department paramedic Cory Darnell responded to the residence. When Mr. Darnell arrived, he saw the victim lying on his back just inside the front door and observed a black male "standing toward the back of the front room observing." The victim was unconscious and "not breathing adequately." Because the victim's airway was obstructed by "blood and airway secretions," medical personnel "had to suction" the airway and intubate the victim. He said that they used a bag valve mask to breathe for the victim but that they "had a difficult time keeping [the victim] intubated."

Doctor Marymer Perales, who was declared an expert in the diagnosis of child abuse and trauma, testified that she was called by the emergency room physician who had initially examined the victim at East Tennessee Children's Hospital. When she arrived, she saw "a very critical patient who required assistance to breathe, . . . medicines to have his blood pressure stay stable, and monitoring of . . . how much pressure was around his brain at all times." Doctor Perales testified that she "performed a limited physical examination of the child because this child was so sensitive to any movement or even sound that we had to whisper in front of him." She said that even small movements would increase the victim's blood pressure, causing an increase in the intracranial pressure. For that reason, she did not turn the victim over to examine his back or the back of his head. Doctor Perales testified that imagining tests "showed that the patient had what we call occipital fracture" and "extraaxial fluid," or "fluid that is between the brain and the skull." The victim actually had fluid between all the layers of his brain and skull and "even had bleeding between the bone and the scalp." He also suffered a "whiplash like" injury to his brain and a rupture of his cervical spine.

In addition to these injuries, the victim "did have a bruise over his left eyelid that was around the face" and "a laceration in the back of his head" that she never saw because she was unable to move him. The victim had bruising to the skin above the penis, "some swelling to the scrotum," and bruising around the penis. Doctor Perales testified that "you'd have to have blunt trauma to that area to get a bruise there" and opined that a fall would not have caused the bruising because the victim lacked the "mass to create that much of force to have this much bruising present." Instead, "[h]e would have to have been slammed or thrown."

Doctor Perales testified that the injuries to the victim's skull and brain would have required "a great amount of force. . . . A force that if someone were to witness that event, they would know that that child was injured." She opined that thevictim's injuries "were inflicted nonaccidental trauma" and testified that the injuries could not have been caused by the victim's fainting in the bathtub or his falling backwards onto a carpeted floor. She also testified that the injuries could not have been caused by the victim's hitting his head on the window sill while jumping on the bed, explaining, "We see a lot of that in the emergency room, and these are not the injuries that you would see with a child who is jumping on a mattress and hits his head on a window sill." She added that the fact that the back of the victim's skull was fractured also suggested that he did not injure himself in a fall, explaining, "[F]rom the back of the head tells me one, there was a lot of force, and two, that it's probably more concentrated to that area. And then the fact that he had swelling outside that area also confirms that that's where the hit occurred." Doctor Perales testified that she could fathom no scenario under which the victim could have caused the injuries to himself because the force required for the injuries would be similar to "a car accident, forces equal to falling from a great height like skydiving; a lot of force." After receiving the injury, the victim would have been unable to carry on a conversation or walk unassisted and, if he had a lucid interval, it would not have lasted "very long at all."

Officer Rachel Warren of the Knoxville Police Department ("KPD") forensics unit photographed and collected evidence at the apartment. Among the items she collected were towels found inside the washing machine that had "a reddish brown substance" on them and samples from the carpet and drywall in the master bedroom closet that also exhibited reddish brown stains.

KPD Investigator Phyllis Tonkin also responded to the scene, where she and KPD Investigator Brian Moran interviewed several witnesses, including the defendant.² After Investigator Moran provided the defendant with Miranda warnings, the defendant "voluntarily agreed to do a walk-through of the residence to show what had...