State v. Cooks, 2006AP72-CR.
| Decision Date | 01 November 2006 |
| Docket Number | No. 2006AP72-CR.,2006AP72-CR. |
| Citation | 2006 WI App 262,726 N.W.2d 322 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Eric D. COOKS, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Sally L. Wellman, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
Before BROWN, NETTESHEIM and ANDERSON, JJ.
Eric D. Cooks appeals from a judgment of conviction of seven counts stemming from a robbery and an order denying his motion for postconviction relief based on claims of ineffective assistance of counsel. Cooks challenges his trial counsel's effectiveness on several grounds. Cooks claims his counsel was ineffective for failing to object to: (1) the sending of police reports to the jury room, (2) the admission of evidence regarding a victim's miscarriage that occurred shortly after the crime, and (3) the admission of a victim's testimony that he knew Cooks from a previous jail term. We hold that Cooks has failed to demonstrate ineffective assistance of counsel on those grounds and affirm the portion of the trial court's order concluding the same.
¶ 2 However, Cooks also maintains that his trial counsel's failure to pursue an alibi defense by investigating alibi witnesses, calling them to testify and raising the alibi during closing arguments constituted ineffective assistance of counsel. The State concedes, and we agree, that Cooks' trial counsel performed deficiently in this regard. Cooks' counsel had a duty to investigate the alibi witnesses Cook provided. We further conclude that such performance prejudiced Cooks' defense. The State's case against Cooks was less than airtight and additional alibi witnesses could have added substance and credibility to Cooks' testimony that he was at his mother's house on the night the crime was committed. Accordingly, we reverse the judgment of conviction and the relevant portion of the trial court's order and remand for a new trial.
¶ 3 On April 22, 2003, the State filed a complaint, charging Cooks with multiple offenses, including one count of armed burglary, three counts of armed robbery and three counts of false imprisonment, all as repeat offenses. The complaint states that on April 13, Carrie Metz, Douglas Marshall, and Peter Davis reported a robbery to the City of Kenosha Police Department.
¶ 4 Michael R. Barth represented Cooks at trial. Cooks' ineffective assistance of counsel claims demand an inquiry into the testimony of the trial witnesses. We therefore recount pertinent portions of the testimony below.
¶ 5 Metz first testified to the events of April 12, the night before the crime. She stated that she and her then fiancé, Marshall, had around ten people, including Cooks, over to her house. Metz, who is five feet three inches tall, testified that Cooks gave her the nickname "Shorty." According to Metz, she had approximately five to six thousand dollars in cash in her wallet that night and she had shown Cooks the money. She stated she acquired the money by introducing Marshall to a woman who hoped to get married to obtain a green card.
¶ 6 Metz next testified about the night of the robbery. Metz indicated that before midnight, but after 11:30 p.m. on April 13, her doorbell rang. When she went downstairs and opened the door, someone pointed a gun at her head. Three men wearing dark clothes and "nylon do-rags around their faces" pushed her down and ran inside. She stated that she knew that one of the individuals was Cooks "right away as soon as [she] opened the bottom door." She could tell it was him because he looked right at her. Metz testified that during the robbery Cooks called her "Shorty." After the three men left, Metz contacted the police. Metz told the police that Cooks was involved in the crime.
¶ 7 The following day, a crying and frantic Cooks found Metz and swore to her that he did not commit the crime. Metz testified that Cooks wanted her to go down to the police station and drop the charges. Metz went down to the police station. When asked by the prosecutor whether she dropped the charges, Metz responded:
I went there to do it, but the cops realized I was just scared and I really didn't want to. I mean, I did want to drop the charges, yes, I did. I didn't want this to go on any further. I just wanted it to be over with. And my money was gone and I couldn't get it back. This is before I had the miscarriage, so I really didn't care at that point.
The prosecutor also asked Metz what made her want to drop the charges and she replied:
[Cooks] said he'd get my money back. At that point I only cared about my money because I didn't know I was miscarrying at the time, so all I cared about was getting my money back ... and he said that within two days, he'd get my money back that was stolen.
Before closing its direct examination, the prosecutor asked Metz, To which Metz replied, "Three days after the robbery, I had a miscarriage, and two days after that, I lost the other baby." Metz had been carrying twins.
¶ 8 On cross-examination, Metz testified that she had five criminal convictions. Barth asked her if in January 2004 she told a district attorney that Cooks did not rob her and she would testify that "an innocent man is in jail." Metz denied ever making such a statement. Barth then asked, "So you've never told anyone that Mr. Cooks was an innocent man?" She responded,
¶ 9 Davis also testified to the events of April 13. Davis stated that he was in prison at the time of the trial and the court informed the jury, pursuant to a stipulation, that he had four convictions. Davis indicated that Metz had told him that Cooks committed the robbery but that he did not know Cooks at the time. Davis testified that he identified Cooks in a photo array, a fact later verified by the testimony of a police officer.
¶ 10 Marshall testified that he had not recognized any of the three men involved in the robbery. The prosecutor asked him to read the following from a written statement he had given to the police:
I knew who he was. I knew him well from jail. He was also over at the apartment the night before. I knew he was Eric Cooks. I could also recognize his voice. He knew I used to run with Folks. He kept calling me "Folks." When he was over the night before, he called me the same thing. He is the only person that has called me that since 1998.
The prosecutor read further, "I'm not sure if I could identify two of the guys if I saw them, but I'm positive the one was Eric Cooks." Marshall testified that, while he did know Cooks from jail and Cooks knew his nickname to be "Folks," the rest of these statements were false. Marshall then recanted the other portions of his written statement in which he referred to Cooks by name. He testified that he made the statements because he was "mad" at the time and Metz had told him who had committed the robbery. He stated that he made the whole story up and would not affirm these statements because he did not want to send an innocent person to prison. Marshall testified that he had contacted the police and indicated that he had not been accurate when he gave his statement to the police. Marshall testified that he was serving a sentence in state prison and the court informed the jury of the parties' stipulation that Marshall had eleven convictions.
¶ 11 Amanda Gross also testified for the State. Gross indicated that she and Cooks had an on-again, off-again romantic relationship, but that during April 2003, he had been staying over at her house on occasion. Gross testified that on April 13 Cooks came over to her house. Gross then read from a written statement she gave to police on April 15 in which she stated that when Cooks came over, "He was mad because he told me that [he] help[ed another individual] rob some people and they didn't get anything for the robbery." Gross, however, then testified that the statement was false. Gross testified that she went back to the police department to try to retract her statement. She claimed she cooperated with police only because her landlord was present when Cooks was arrested at her apartment and she was afraid if she did not cooperate she would lose her lease.
¶ 12 Gross testified that she could remember Cooks telling Metz over the phone that he could come up with the money if she did not blame him for the robbery. Gross read from a subsequent statement to the police in which she stated, "Eric told me to tell the police that I lied in my statement," and "I do know that Eric was involved in this robbery case." She also admitted she heard Cooks telling another potential suspect over the phone that the other person was "dirty."
¶ 13 Lakeisha Cooks, Eric Cooks' younger sister, also testified for the State. Lakeisha Cooks testified that in May 2003 she was in jail and contacted the police to tell them she had information about a robbery concerning her brother. Lakeisha said that the police offered to make her a deal in her own criminal case, but she declined. She told police that at 11:45 p.m. on the night of the robbery, she saw Cooks at their mother's house. She heard Cooks tell their mother that he was going out of town and then saw him leave with two of his friends. Lakeisha Cooks refused to acknowledge telling the police that while he was in prison, Cooks contacted her and asked her to call Metz to see if she would drop the charges. She testified that she had been twice convicted of a crime.
¶ 14 Daniel...
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