State v. Cooper
| Decision Date | 25 May 2021 |
| Docket Number | No. A-20-315.,A-20-315. |
| Parties | STATE OF NEBRASKA, APPELLEE, v. CAVIN D. COOPER II, APPELLANT. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Douglas County: THOMAS A. OTEPKA, Judge. Affirmed.
Renee L. Mathias, of Schaefer Shapiro, L.L.P., for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.
Following a jury trial, Cavin D. Cooper II was found guilty of count 1, possession of a deadly weapon by a prohibited person; count 2, first degree assault; and count 3, use of a deadly weapon to commit a felony. After finding Cooper to be a habitual criminal with regard to counts 2 and 3, the Douglas County District Court sentenced him to 60 to 70 years' imprisonment on the possession count, 40 to 50 years' imprisonment on the assault count, and 45 to 50 years' imprisonment on the use of a deadly weapon count, with the sentences ordered to be served consecutively. Cooper now appeals his convictions and sentences. Following our review of the record, we affirm.
On July 31, 2018, Dominick Hill was shot multiple times near an Omaha convenience store. When law enforcement arrived on the scene, they tended to Hill's injuries, which involved bullet wounds in his upper back and upper leg, and attempted to gather information from Hill, who was uncooperative. Hill's injuries were described by a paramedic who responded to the scene as "life-threatening." Law enforcement collected forensics evidence from the scene including nine Luger 9mm shell casings and surveillance video from the convenience store.
The surveillance video depicted the shooter running toward Hill while shooting him as Hill attempted to flee. At the time of the shooting, the shooter was wearing a white shirt, black shorts, and white tennis shoes with black accents. From the video, law enforcement produced a still image of the shooter which was distributed to law enforcement agencies. Because law enforcement believed the still image fit the physical description of Cooper, he was identified as a person of interest in the matter.
Within 2 days of the shooting, law enforcement located Cooper during a traffic stop. In addition to Cooper, there were two other passengers in the vehicle: Jaleesa Harris, the front seat passenger, and Christopher Stewart, the rear seat passenger. When law enforcement approached the vehicle, Cooper exited the driver's seat while Harris and Stewart remained in the vehicle. As an officer attempted to handcuff Cooper, Cooper attempted to flee; however, he was quickly apprehended and handcuffed. Later, a 9mm handgun loaded with PMC Luger bullets was discovered on Cooper's seat in the vehicle. Officers also noticed the shoes Cooper was wearing at the time of his arrest appeared to be the shoes worn by the individual who shot Hill 2 days prior as depicted in the video.
An information was filed in September 2018, which was later amended for a second time in January 2020, wherein the State charged Cooper with count 1, possession of a firearm by a prohibited person, a Class IB felony; count 2, first degree assault, a Class II felony; and count 3, use of a firearm to commit a felony, a Class IC felony. The information also alleged that Cooper was a habitual criminal in violation of Neb. Rev. Stat. § 29-2221 (Reissue 2016).
In October 2019, Cooper filed a motion requesting the appointment of new counsel to represent him because the public defender's office had previously represented Hill and Stewart which Cooper alleged created a conflict of interest. During a hearing on Cooper's motion, Cooper's defense counsel clarified that the public defender's office had represented Hill when Hill was charged with shooting Stewart in connection with a 2015 incident. Counsel explained that representation ended when Hill's case was dismissed. Defense counsel further explained that law enforcement believed the present shooting of Hill was in retaliation for Hill shooting Stewart in 2015 and reiterated that Stewart was with Cooper when Cooper was arrested and the firearm involved in the present shooting was discovered. Following defense counsel's representations to the court, Cooper explained that "Hill is now a State's witness and I feel like [it's] a conflict of interest because he was already represented by the Public Defender's Office." Also during the hearing, Cooper argued that trust was lacking between himself and his attorney because Cooper wanted to go to trial but his attorney counseled Cooper to enter a plea.
After first overruling Cooper's motion on the basis that no conflict of interest existed, the district court then inquired as to Cooper's dissatisfaction with his attorney. Cooper responded that his counsel did not communicate with him, that Cooper could not engage in his own discovery,and that his counsel was not properly representing Cooper. The court informed Cooper that as an indigent defendant, he must show good cause for removal of his attorney, which he failed to do. The court instructed Cooper that he could choose to either represent himself or to work with the attorney he had; Cooper chose the latter.
Trial was held in January 2020. The evidence included testimony from multiple witnesses, including Detective Chad Frodyma, Jaleesa Harris, and Angela Harder, along with photographic exhibits and the surveillance video of the shooting.
Frodyma testified that after Cooper was identified as a suspect in the present shooting, Frodyma compared photos of Cooper with the still image of the shooter produced by law enforcement from the surveillance video. After doing so, Frodyma determined Cooper very closely resembled the shooter.
Frodyma testified that on August 2, 2018, he conducted a stop of the vehicle Cooper was driving because Cooper was driving with a suspended driver's license. Frodyma testified that in an effort to make small talk and lessen the tension of the stop, he commented to Cooper, "Hey, when did you get out?" at which point Cooper's counsel asked to approach and a sidebar discussion ensued. Cooper's counsel explained that Frodyma's comment referring to Cooper being incarcerated was unanticipated, clearly prejudicial, and warranted a mistrial. The State responded that it did not intend to elicit Frodyma's answer and had instructed him not to refer to Cooper's prior incarceration. The State also argued that the statement caused Cooper "limited" prejudice because Cooper was charged with being a prohibited person in possession of a firearm and the State anticipated there would be a stipulation regarding Cooper's status as a convicted felon. Ultimately, the district court denied the motion for mistrial and gave a limiting instruction to the jury to "disregard the last part of [Frodyma]'s answer . . . about when did you get out."
During trial, Harris explained that on the date of the traffic stop, she had given Cooper permission to drive her vehicle and that she, Cooper, and Stewart were hanging out together and smoking marijuana. At some point, law enforcement pulled over their vehicle and the officer approached the front passenger side of her vehicle where she was seated.
Harris explained that after law enforcement pulled them over and the front driver's door was open, she saw a firearm sitting in a hat on the driver's seat. Photographs received into evidence showed a tan fishing hat with a firearm placed inside the hat. The hat and firearm were located on the driver's seat next to the driver's buckle and the center console. A SnapChat photograph from Harris' phone received approximately a month prior to the traffic stop showed Cooper wearing a tan fishing hat. Harris testified that she did not own that type of hat.
When asked to recall what she observed after Cooper exited the vehicle, Harris explained that her attention was directed towards the driver's side of the vehicle, that she kept her hands in the air, and that she never saw Stewart's hands by the driver's seat. Harris stated she did not own a firearm, had not observed a firearm in her vehicle prior to the traffic stop, and did not see Cooperor Stewart with a firearm that day. On cross-examination, however, Harris testified she was not focusing on Stewart's actions in the rear seat.
Harder, a senior forensic technician and firearm and tool mark examiner employed by the Omaha Police Department (OPD), testified about her examination of the firearm found in the vehicle and the casings and projectiles discovered at the scene of Hill's shooting. Harder testified that she performed a microscopic comparison to identify characteristics consistent between recovered casings from the scene and test fired casings. Harder explained that after performing her examination of the firearm located in the vehicle and the casings, she concluded the casings were fired by the firearm found during the traffic stop of the vehicle Cooper was driving.
At the conclusion of the trial, the jury found Cooper guilty of possession of a deadly weapon by a prohibited person, first degree assault, and use of a deadly weapon firearm to commit a felony. The court accepted the jury's verdict and later found Cooper was a habitual criminal. At sentencing, Cooper's attorney informed the court that Cooper was 32 years old, and because of the finding that Cooper was a habitual criminal, the mandatory minimum sentence on counts 2 and 3 was 10 years' imprisonment on each count. The district court sentenced Cooper to 60 to 70 years' imprisonment on count 1, possession of a firearm by a prohibited person; 40 to 50 years' imprisonment on count 2, first degree assault; and 45 to 50...
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