This
appeal concerns a confrontation between Billy Temple and his
significant other's father, Carey Cook (Cook). Temple is
ten years younger and seventy pounds lighter than Cook.
Because we must determine whether defense trial counsel
performed ineffectively with his trial tactics and because we
view the performance of counsel based on the complete trial
record, we later quote at length trial testimony.
On May
15, 2016, Carey Cook, his brother, Dave Jordan, his daughter
Jamie Cook (Jamie), his daughter's boyfriend, Billy
Temple, and Cook's two young grandchildren lived at one
Spokane residence owned by Cook. Cook generally slept in a
recreational vehicle, which he parked in the backyard. Cook
allowed his family to sleep in his small abode. Jamie and
Billy Temple, and the couple's children, occupied one
bedroom. Cook's brother, Dave Jordan, slept on a daybed
in the living room.
As of
May 15, Jamie and Billy Temple had resided in Carey
Cook's house for two weeks. Cook and Temple had known
each other for one year and, by May 2016, suffered a
deteriorating relationship. The younger couple allowed
Cook's dogs to escape the home and roam in the yard, a
practice that irritated Cook.
On the
morning of May 15, Billy Temple worked on his car along the
curb of the street in front of the residence. One of
Jamie's eighteen-month-old daughters played near Temple.
Temple went inside the home to retrieve an object but did not
bring the daughter with him. A concerned Carey Cook yelled
about the lack of supervision of his granddaughter. Jamie
heard her father yell. Jamie told her father to mind his own
business, because Temple and she knew how to raise children.
On the
night of May 15/16, Carey Cook slept in his recreational
vehicle. Around 1:00 a.m., Cook left his small quarters to
use the house restroom. On entering, Cook noticed his
brother, Dave Jordan, watching the front yard because Billy
Temple or Jamie had sent the dogs outside. An incensed Cook
yelled, which stirred Temple and Jamie. Cook entered the
bathroom and slammed the door.
While
inside the bathroom, Carey Cook heard Billy Temple and Jamie
talking, but could not hear their words. Cook entered the
bedroom to speak with Jamie. At trial, Cook described what
transpired next:
I walked in the [bedroom] door and I leaned up against the
crib, and at that time, I thought [Temple] was going to exit
the room, and then he said you are going to call the police
and came up and instantly head butted me, and then I was
dazed from that, and I think I tried to reach out and shove
him away, but I'm not sure because the next thing I know
a fist came across my eye downward, and after that, I was
knocked unconscious and fell on the floor, and when I came
to, I was [sic] blood was coming out of my eye and out of my
nose, and I grabbed my eye because I couldn't see out of
it.
So I'm yelling you blew my eye out. You blew my eye out.
Call 911. Call 911, and at that point, my daughter said well
if you call the police, we're [Temple and I are] going to
tell them that you head butted him [Temple].
Report of Proceedings (RP) at 93-94.
Dave
Jordan saw Billy Temple move his arm to hit Carey Cook, but
did not see Temple strike Cook. Jordan did not notice any
injuries on Temple.
According
to Billy Temple, Carey Cook yelled inside the home before
Cook entered the bedroom. Temple maintains he desired to
leave the room but Cook clogged the bedroom doorway because
of his large size. Cook denies he blocked exit from the room.
During direct examination at trial, Temple narrated the
squabble:
I tried to walk out the door, and we had got into a
confrontation right then and there. [Cook] had reached up and
grabbed me by the throat. I had two necklaces on and a black
hoodie. He reached up and grabbed my throat, and he head
butted me like that, and I head butted him back, and then we
got into an altercation.
Q And what do you mean by altercation?
A Well, he wouldn't let go of my throat, and I kept
telling him to quit, and I hit him once, and we kind of got
into the doorway, and I said enough's enough, and I hit
him again, and he kept screaming at the top of his lungs, and
he wouldn't let go of my throat, and by that time, he got
wedged in because the babies' crib and the closet and the
bed. He got wedged into between there, and he went down.
Q When he was wedged into there, what did you do?
A I was trying -- he was like this. He wouldn't let go of
my throat. He wasn't all the way on the ground, but he
was just wedged.
Q Once separated, what did you do?
A I said that's enough.
Q Do you recall if Mr. David Jordan was present?
A I felt somebody hit me from behind. I don't know if it
was him. It could have been. It could have.
Q Did you assault David Jordan that night?
A No, sir.
. . . .
Q On May 16th or 15th or 16th, did you intentionally assault
Carey Cook?
A I did not.
Q But you admit you head butted him?
A Yes, sir.
Q And you admit you punched him?
A Yes.
. . . .
Q Was there any reason why you would not have intended to
assault Mr. Cook that night?
A There's no reason. . . .
RP at 137-40.
During
trial when asked about his relationship with Carey Cook
Billy Temple replied:
I like him. I mean, he's always done nice things for me
Jamie and the kids. He was letting me stay there. I just
didn't intend to do any harm to him. I didn't want
to. That's my kids' grandpa. You know what I mean? He
just doesn't like me, so.
RP at 140.
On
cross-examination, Billy Temple testified:
Q On the morning of May 16, 2016, your testimony is you
intentionally head butted Mr. Cook, didn't you?
A No.
Q You didn't testify earlier that you head butted Mr
Cook?
A I testified that as Mr. Cook was standing in the door, I
was trying to leave. I didn't want any kind of
altercation with Mr. Cook. Mr. Cook reached up, grabbed my
throat.
Q Sir, my question to you is did you intentionally head butt
Mr. Cook?
A I guess if you put it that way after I was head butted.
Q Sir, my question is, and I am putting it that way. Did you
intentionally head butt Mr. Cook that morning?
A After I was head butted, yes, sir.
Q Sir, yes or no is all you need to reply.
A Yes, sir.
Q Did you intentionally punch Mr. Cook that night?
A Yes.
Q Did you, in fact, intentionally punch Mr. Cook twice that
night?
A I did not intentionally try to assault Mr. Cook.
Q Sir --
A Yes, sir.
Q The Court defines what an assault is. My question to you is
did you intentionally punch Mr. Cook twice that morning?
A We were in an altercation.
Q Sir, it's a very simple yes or no.
A I know what you're saying.
Q Did you intentionally punch Mr. Cook twice that morning?
A No, sir. I did not want to intentionally to [sic]do harm to
Mr. Cook.
Q That's not the question.
A I said no, sir.
Q Now, your testimony earlier you testified that you punched
him, hit him twice. Are you now changing that testimony
saying you didn't punch him twice that morning?
A I'm saying we were in a physical altercation, and I did
punch him.
Q Sir, so did you intentionally punch Mr. Cook twice that
night in the head as a matter of fact?
A Yes, sir.
Q And, in fact, didn't Mr. Cook go down after the second
time you punched him?
A Yes.
Q Did you see the injuries Mr. Cook had after you head butted
him and punched him twice?
A I seen that his face was red. Not until after it was over
did I see what the injuries looked like, and I said that was
enough. It's enough.
Q In fact, you testified earlier exactly that. At one point,
you said that's enough, and that's when you punched
him the second time, and he went down, correct?
A No.
Q Can you tell me the sequence then?
A He was in the doorway. Do you want me to break it down the
way it was?
Q You had testified earlier that you said enough is enough,
so you hit him again; is that correct?
A The whole time, sir --
Q It's a very simple question. Yes or no?
A Yeah, no.
Q At one point, you testified you said to yourself enough is
enough, and you hit him again; is that correct?
A No, that is not correct, sir.
Q So what happened? What is your testimony now?
A My testimony is the same as it's always been. He was in
the doorway. I knew that Mr. Cook was going to call the cops.
Q Sir, my question is about when you said enough is enough,
and you hit him again.
A No, sir, I did not hit him again.
Q You hit him twice, though?
A There was a head butt, and then there was two punches.
Q Correct. And before your second punch, you had said to
yourself enough is enough, correct?
A I don't remember what I said to myself.
RP at 141-44.
Jamie
Cook also testified that her father acted as the aggressor.
Jamie averred at trial:
Q And what happened after you heard the door slam?
A My dad was screaming. He came running down the hallway
went into the bathroom, slammed the door, was screaming. He
used the bathroom and then came into the room and confronted-
Q If I could stop you there? Do you recall what he was
screaming or yelling? What he was screaming?
A You want me to cuss? He was mostly profanities. . . .
. .
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