State v. Cooksey, DA 11–0165.

Citation366 Mont. 346, 2012 MT 226, 286 P.3d 1174
Case DateOctober 09, 2012
CourtUnited States State Supreme Court of Montana

366 Mont. 346
286 P.3d 1174
2012 MT 226

STATE of Montana, Plaintiff and Appellee,
Bobby COOKSEY, Defendant and Appellant.

No. DA 11–0165.

Supreme Court of Montana.

Submitted on Briefs June 6, 2012.
Decided Oct. 9, 2012.

[286 P.3d 1176]

For Appellant: Wade M. Zolynski, Chief Appellate Defender, Shilo Hernandez, Assistant Appellate Defender, Helena, Montana, Robin A. Meguire, Attorney at Law, Great Falls, Montana.

For Intervenor Debra Cooksey: Carl B. Jensen, Jr., Attorney at Law; Great Falls, Montana.

For Appellee: Steve Bullock, Montana Attorney General; Jonathan M. Krauss, Assistant Attorney General, Helena, Montana, Kent Sipes, Musselshell County Attorney, Roundup, Montana.

Chief Justice MIKE McGRATH delivered the Opinion of the Court.

[366 Mont. 347]¶ 1 In September 2010 a jury in the Fourteenth Judicial District Court, Musselshell County, convicted Bobby Cooksey of deliberate homicide. The District Court sentenced Cooksey to a term of fifty years in the Montana State Prison with credit for time served, and Cooksey appeals. We affirm.

¶ 2 Cooksey presents the following issues for review: (1) whether the District Court properly denied Cooksey's motion for a new trial; (2) whether the District Court properly excluded Cooksey's offered evidence concerning the presence of the drug Paxil in the deceased's blood; (3) whether the State was required to conduct an investigation to discover evidence to support Cooksey's claim of justifiable use of force; and (4) whether the prosecutor's closing argument amounted to prosecutorial misconduct.


¶ 3 Cooksey lived in a rural area outside of Roundup, Montana and one of his neighbors was Tracey Beardslee. Beardslee's access to his property was via a road easement that crossed Cooksey's property. Beardslee had lived adjacent to Cooksey for several years and the two [366 Mont. 348]had several verbal altercations. On July 7, 2009, Cooksey, by his account given to law enforcement investigators, heard his dogs barking and left his house armed with a large-bore lever-action rifle. He walked toward his dogs and saw Beardslee using a weed-whacker to clear weeds along the margins of the easement. Cooksey walked toward Beardslee and asked him what he was doing on Cooksey's property. Cooksey claimed that Beardslee then “went off,” cussed him, said he would kick Cooksey's ass, and finally that he would kill Cooksey. At that moment Cooksey lifted his rifle and fired, sending a bullet through Beardslee's chest and killing him. Cooksey returned to his house, called 911, and reported that he had shot Beardslee.

¶ 4 Musselshell County deputies responded to the call, secured the scene and called in the State Division of Criminal Investigation to investigate the incident. The responding deputies obtained Cooksey's consent to secure the weapon he used. Later that day a State investigator arrived and took Cooksey's voluntary statement about what had happened. The investigation determined facts about the background relationship between Cooksey and Beardslee; about what Cooksey saw and what he did; and about what Beardslee did based upon Cooksey's account. The investigation obtained a chemical analysis of Beardslee's blood and, at the request of the defense, a second analysis at a laboratory in Pennsylvania.

¶ 5 By Cooksey's own admission Beardslee had never physically attacked him and did not do so on the day he died. When Cooksey fired the shot there was a wood pole fence and a barbed wire fence between him and Beardslee, and Beardslee was still weed whacking and was moving back toward his own house. Cooksey observed a folding knife in a case on Beardslee's belt but never saw him pull it out.

¶ 6 Other facts will be noted as necessary to discuss the issues raised on appeal.


¶ 7 The standard of review will be discussed in regard to each issue.

[286 P.3d 1177]


¶ 8 Issue One: Whether the District Court properly denied Cooksey's motion for a new trial based upon juror misconduct.

¶ 9 A convicted defendant may move for a new trial within 30 days of the guilty verdict. The motion must be in writing, must specify the grounds for a new trial, and must be served upon the prosecution. The district court may grant a new trial “if required in the interest of justice.” Section 46–16–702, MCA. Cooksey's motion for a new trial was [366 Mont. 349]based upon several grounds. He subpoenaed several witnesses to testify at the hearing on the motion, which occurred on December 3, 2010. The District Court subsequently denied the motion in a written order.

¶ 10 A district court's decision on a motion for a new trial and its decision on issues of jury impartiality are reviewed for abuse of discretion, State v. Dunfee, 2005 MT 147, ¶ 14, 327 Mont. 335, 114 P.3d 217, unless the specific issue requires a different standard of review, State v. Ariegwe, 2007 MT 204, ¶ 164, 338 Mont. 442, 167 P.3d 815. A district court commits an abuse of discretion when it acts arbitrarily, without conscientious judgment, and exceeds the bounds of reason in a way prejudicial to the defense. Ariegwe, ¶ 164.

¶ 11 First, Cooksey contends that there was structural error prior to the start of trial. He contends that some prospective jurors made improper and prejudicial statements while the prospective jurors were waiting in a church basement meeting room near the courthouse. Prior to trial the District Court determined that there was not sufficient room in the courthouse to safely and adequately accommodate all the 80 or so prospective jurors prior to commencement of jury selection. The District Court decided to hold the prospective jurors, identified as such by stickers they were given when they signed in, and accompanied by two bailiffs, in a church basement meeting room near the courthouse until jury selection began. The District Court explained this to the prosecution and the defense well before the start of trial, and neither side made any objection or requested that any other steps be taken. Specifically, neither side requested that any cautionary instructions be given.

¶ 12 On the morning of the first day of trial the District Court concluded the final pretrial conference with the prosecution and defense and considered several requests from prospective jurors that they be excused. The prospective jurors were then escorted to the courtroom, there was a roll call, and the prospective jurors were sworn to truly answer all questions asked of them. By the District Court's own description, there were no time limits or restrictions on voir dire and the attorneys were permitted to ask “every question they desired of the prospective jurors, including whether they could put aside anything they had heard about the case and render a fair and unbiased decision based only upon the evidence presented in court.”

¶ 13 Second, Cooksey alleges error within the jury deliberation process itself. Cooksey offered evidence that seated juror Beres commented during deliberations that the decedent Beardslee visited her mother's house, and would cease being loud or verbally abusive when Beres' [366 Mont. 350]mother asked him to do so. This would establish that at least the juror's mother knew the decedent and that the juror had discussed the decedent with her mother.

¶ 14 After trial and at the hearing on the motion for a new trial, Cooksey presented the testimony of prospective juror Mark Lurie, who contended that there was a loud “circus atmosphere” in the church basement, that at least one prospective juror was loudly proclaiming Cooksey's guilt, and that bailiffs were nowhere to be seen. Prospective juror Newman, who was ultimately excused, testified that she heard prospective juror Simms, who was also excused, express his opinions that the killing was wrong and that it was not right to kill someone in cold blood. Other persons who were present heard other statements that they could no longer recall.

¶ 15 Witness Roy Dickerson, who was presented by the State, had also been a prospective juror in the church basement. He testified that there was no loud circus atmosphere, but that the gathering of jurors was subdued and somber. He testified that it was in fact Mr. Lurie who was talking loudly

[286 P.3d 1178]

and incessantly about his claimed legal experience and knowledge of the legal system, to such an extent that he would be surprised if Lurie heard anything that anyone else said. Dickerson testified that the bailiffs were clearly identified with name tags and that he did not hear negative comments about either side of the case. None of the other witnesses who testified at the motion hearing corroborated Lurie's account of the atmosphere and content of discussions in the church basement.

¶ 16 The District Court specifically found that Lurie's account of the matter was not credible and that Dickerson's testimony was “completely credible.” Despite Lurie's professed attention to detail, he could not remember important details on cross-examination, and while claiming to have a guilty conscience based upon what he had witnessed, never reported it to anyone until after he learned of the guilty verdict. At that time he contacted the defense. The District Court also found that Lurie's demeanor while testifying was the same as that observed by Dickerson in the church basement. The District Court specifically found that while testifying at the hearing, Lurie “spoke loudly and incessantly until interrupted by the court and counsel”; that he was “overly eager to talk about his experience as a fraud investigator/threat analyst and his purported prior experience with the court system”; that his testimony was “self aggrandizing”; and that “he appeared intent on presenting himself in an overly virtuous manner” while being “gratified to be the center of attention.”

¶ 17 It is the District Court's province to determine the weight of the [366 Mont. 351]evidence. Albert v. Hastetter, 2002 MT 123, ¶ 30, 310 Mont. 82...

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