Jonathan Cooper a/k/a Jonathan Dewayne Cooper v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-CA-02031-COA
JONATHAN COOPER A/K/A JONATHAN
DEWAYNE COOPER
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
11/18/2009
HON. W. ASHLEY HINES
WASHINGTON COUNTY CIRCUIT COURT
ROSS PARKER SIMONS
GEORGE T. KELLY JR.
OFFICE OF THE ATTORNEY GENERAL
BY: LISA LYNN BLOUNT
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DENIED
AFFIRMED - 08/23/2011
BEFORE IRVING, P.J., BARNES AND MAXWELL, JJ.
MAXWELL, J., FOR THE COURT:
¶1.
Jonathan Cooper appeals the Washington County Circuit Court’s denial of his motion
for post-conviction relief (PCR). Cooper argues his attorneys were ineffective in moving to
amend his indictment to include the phrase “not in necessary self-defense” rather than
attempting to quash it based on the absence of that phrase. He also argues his attorneys
rendered ineffective assistance in several respects in dealing with the testimony of the State’s
expert in forensic pathology, Dr. Shephen Hayne. Because Cooper has failed to show (1)
deficiency and (2) prejudice under Strickland, we affirm.
FACTS
¶2.
During the early morning hours of May 25, 2002, Carolyn Cooper and Kenneth
Shumaker1 returned to Carolyn’s home from visiting nightclubs in Greenville, Mississippi.
While they were away from the house, they left Carolyn’s twin sons, Tredara and Cordera
Cooper (then ten years old), and Shumaker’s son, Kinney “Shaun” Maiten (then seven years
old), under Cooper’s supervision.
¶3.
When the couple returned, Cooper was asleep on the couch. After he was awakened,
the couple got into an argument. Carolyn testified that as the argument escalated, Shumaker
physically attacked her several times. She claimed he first hit her in the back of the head
with his fist. At another point, he grabbed her by the throat. He also hit her in the head with
a cordless phone. When Cooper stood between Carolyn and Shumaker in an attempt to
diffuse the argument, Shumaker told Cooper, “I’ll beat the brakes off you, too.” When
Shumaker shoved Carolyn toward the door, she ran out of the house and across the street to
a neighbor’s house.
¶4.
Tredara and Cordera both gave similar accounts of what happened after their mother
left. According to their testimony, Cooper went to the back bedroom, where he attempted
to make a phone call. Shumaker followed him. Before Cooper could call anyone, Shumaker
snatched the phone away and hit Cooper in the jaw with it. Shumaker then asked the boys
where his baseball bat was. Shumaker began looking for the bat in other rooms of the house.
1
We note that the victim is referred to as “Shumake” at some points in the trial
transcript.
2
But Cooper located the bat first.
Cooper and Shumaker then confronted each other
again—Shumaker unarmed, Cooper brandishing a bat. Shumaker attempted to hit Cooper
with his fist, which Cooper averted by ducking. When Shumaker swung again, Cooper hit
Shumaker in the wrist with the bat. Though Shumaker did not retaliate, Cooper hit Shumaker
again with the bat—this time in the head—knocking Shumaker to the ground.
¶5.
Shaun related a vastly different version. According to Shaun, Cooper hit Shumaker
with the bat not two, but twenty times. Shaun admitted he was under the covers of the bed
and could not see “anything at all.” But he claimed he peeked out and saw Cooper hit
Shumaker with the baseball bat.
¶6.
Based upon information Cooper provided at the scene, he was arrested. After
executing a valid Miranda 2 waiver, he provided a statement similar to the twin boys’ version
of the events. He maintained that Carolyn and Shumaker had gotten into an argument.
When Cooper attempted to stop the argument, Shumaker told Cooper: “I’ll beat the breaks
off you, too.” After Carolyn left the house, Shumaker swung his fist at Cooper, which
Cooper dodged.
¶7.
At this point, Cooper’s story diverges from the testimony of the eyewitnesses. Cooper
claimed he picked up a pool stick. Cooper swung the pool stick at Shumaker but missed.
Cooper then landed hits with the pool stick at least twice. Specifically, Cooper remembered
hitting Shumaker with the pool stick once in the left arm above the elbow and once on the
front of the head. Cooper made no mention of a bat.
¶8.
The pool stick recovered by law enforcement from the scene did not have any blood
2
See Miranda v. Arizona, 396 U.S. 868 (1969).
3
on it and was not broken. The baseball bat was not recovered until two days following the
incident when Carolyn contacted law enforcement about having possession of the bat at her
home.
¶9.
The State called Dr. Hayne to testify as an expert in forensic pathology. Dr. Hayne
had performed an autopsy of Shumaker’s body and identified three injuries. One injury was
a “compound commuted fracture” to Shumaker’s forearm. Dr. Hayne found this injury
consistent with “defensive posturing.” He explained the victim would have sustained such
an injury while attempting to ward off a blow to the face or upper body.
¶10.
Dr. Hayne also identified two head injuries. His external examination showed injuries
to both the left back portion of Shumaker’s head and the left side of his head. An internal
examination revealed “evidence of great force applied to the head.” In Dr. Hayne’s opinion,
the baseball bat, which was entered into evidence, could have inflicted the injuries. Given
the severity of Shumaker’s injuries, Dr. Hayne determined they were more likely inflicted
by a baseball bat than a pool stick. He determined the manner of death to be homicide.
PROCEDURAL HISTORY
¶11.
A grand jury in Washington County indicted Cooper for murder. Following a two-day
trial, the jury convicted Cooper of the lesser-included offense of manslaughter. The circuit
court sentenced him to twenty years.
¶12.
On direct appeal, Cooper challenged the weight and sufficiency of the evidence in
addition to raising an evidentiary issue. This court affirmed his conviction. See Cooper v.
State, 911 So. 2d 665 (Miss. Ct. App. 2005).
¶13.
On December 3, 2008, the Mississippi Supreme Court granted Cooper leave to file
4
a PCR motion in the trial court. On April 7, 2009, he filed his PCR motion. The circuit court
held a hearing, where only Cooper testified. Finding Cooper failed to show ineffective
assistance of counsel under Strickland, the circuit court denied his PCR motion.
¶14.
On appeal, Cooper alleges his trial attorneys were ineffective. Their various alleged
deficiencies include: (1) moving to amend his indictment to include the words “not in
necessary self defense,” rather than seeking to quash the indictment; (2) failing to voir dire
Dr. Hayne; (3) failing to sufficiently cross-examine Dr. Hayne; (4) failing to call a rebuttal
expert; (5) failing to discuss discovery material with him; and (6) failing to object to the
State’s introduction of certain photographs.
STANDARD OF REVIEW
¶15.
In considering the denial of a PCR motion, we review the trial court’s findings of fact
for clear error. Rowland v. State, 42 So. 3d 503, 506 (¶8) (Miss. 2010). “A finding of fact
is ‘clearly erroneous’ when, although there is evidence to support it, the reviewing court, on
the entire evidence, is left with the definite and firm conviction that a mistake has been
made.” Johns v. State, 926 So. 2d 188, 194 (¶29) (Miss. 2006). We accept as true any
evidence, together with the reasonable inferences that may be drawn from that evidence,
which supports the trial court’s findings. Loden v. State, 971 So. 2d 548, 572-73 (¶59) (Miss.
2007). As to credibility issues, we defer to the circuit judge who is the “sole authority for
determining credibility of the witnesses.” Id. at 573 (¶59). When reviewing questions of
law, our standard is de novo. Rowland, 42 So. 3d at 506 (¶8). The PCR movant has the
burden to show by a preponderance of the evidence that he is entitled to relief. Miss. Code
Ann. § 99-39-23(7) (Supp. 2010).
5
DISCUSSION
I.
¶16.
Statute of Limitations
We begin by addressing the timeliness of Cooper’s PCR motion. Mississippi Code
Annotated section 99-39-5(2) (Supp. 2010) provides: “A motion for relief under this article
shall be made within three (3) years after the time in which the petitioner’s direct appeal is
ruled upon[.]” In Pittman v. State, 20 So. 3d 51, 52 (¶1), 53-54 (¶¶9-11) (Miss. Ct. App.
2009), we found a PCR motion was timely where the movant sought leave to file a PCR
motion in the trial court3 within the three-year limitation period and the supreme court
granted leave. Similarly, on July 21, 2008, Cooper filed a “Motion for Complaint for Fraud
and Deception”—which the supreme court considered to be an application for leave to
proceed in the trial court—within three years after this court decided his direct appeal. See
Cooper v. State, 911 So. 2d 665 (Miss. Ct. App. 2005) (final mandate issued October 11,
2005). The supreme court granted Cooper leave. In accordance with Pittman, we find
Cooper’s PCR motion is timely.
II.
¶17.
Ineffective Assistance of Counsel
To show ineffective assistance of counsel, Cooper must establish: (1) his attorneys’
performance was deficient, and (2) the deficiency was prejudicial. Strickland v. Washington,
466 U.S. 668, 687 (1984). To qualify as deficient, an attorney’s performance must fail to
meet “an objective standard of reasonableness.” Id. at 688. There is a “strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance; that
3
See Miss. Code Ann. § 99-39-7 (Supp. 2010).
6
is, . . . the challenged action might be considered sound trial strategy.” Id. at 689 (quotations
omitted). For prejudice to exist, there must be a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Id. at 694.
¶18.
The PCR movant has the burden to show both prongs of Strickland are met. Moody
v. State, 644 So. 2d 451, 456 (Miss. 1994). His allegations under both prongs must be pled
with specific detail. Jenkins v. State, 986 So. 2d 1031, 1035 (¶14) (Miss. Ct. App. 2008)
(citing Brooks v. State, 573 So. 2d 1350, 1354 (Miss. 1990)). And the movant may not rely
on mere allegations in his affidavit or brief. Vielee v. State, 653 So. 2d 920, 922 (Miss.
1995). We review whether the movant has made the required showing under each prong of
Strickland based on the totality of the circumstances. Carney v. State, 525 So. 2d 776, 780
(Miss. 1988).
A.
¶19.
Indictment
Cooper first claims his counsel rendered ineffective assistance by moving to amend
his indictment for murder to include the words “not in necessary self-defense” rather than
moving to quash the indictment for failure to include this language. Cooper’s original
indictment alleged:
JONATHAN DEWAYNE COOPER, on or about [the] 25th [d]ay of
May, 2002, in Washington County, did unlawfully, wilfully, feloniously, and
with malice aforethought, did [sic] then and there kill and murder one Kenneth
Shumaker, a human being against the peace and dignity of the State of
Mississippi.
¶20.
We recently rejected an argument virtually identical to Cooper’s. See Mangum v.
7
State, 64 So. 3d 503 (Miss. Ct. App. 2010) (cert. denied June 30, 2011). In Mangum, the
PCR movant claimed his indictment for murder was defective because it did not include the
words “not in necessary self-defense.” Id. at 503 (¶1). We held: “the phrase ‘not in
necessary self-defense’ is encompassed in the word ‘unlawful.’ Therefore, we find . . .
Mangum’s indictment was legally sufficient as it contained the word ‘unlawfully.’” Id. at
507 (¶12). We reasoned “unlawful” is defined as “not authorized or justified by law.” Thus,
a charge that a killing was “unlawful” would necessarily include the allegation it was not
legally justified because of self-defense. Id.
¶21.
As in Mangum, because Cooper’s original indictment alleged Cooper committed the
killing “unlawfully,” it was not defective. Since a motion to quash, if made, would not have
been properly granted, Cooper cannot show prejudice under Strickland. See Geiger v. Cain,
540 F.3d 303, 309-10 (5th Cir. 2008) (to show prejudice from an attorney’s failure to make
a certain motion, the defendant must show trial court would have granted the motion or
would have committed reversible error in refusing it); United States v. Kimler, 167 F.3d 889,
893 (5th Cir. 1999) (“An attorney’s failure to raise a meritless argument . . . cannot form the
basis of a successful ineffective assistance of counsel claim because the result of the
proceeding would not have been different had the attorney raised the issue.”). Nor do we
find any prejudice from the inclusion of the phrase “not in necessary self-defense” in the
amended indictment, at Cooper’s attorneys’ request. The phrase was unnecessary, but its
inclusion had no detrimental impact on Cooper’s defense. As a result, the phrase is
surplusage. See Neal v. State, 936 So. 2d 463, 469 (¶20) (Miss. Ct. App. 2006).
¶22.
Because Cooper has not shown his attorneys’ conduct relating to his indictment might
8
have altered the outcome of the proceeding, he has not shown prejudice under Strickland.
Accordingly, his ineffective-assistance-of-counsel argument fails on this issue.
B.
¶23.
Dr. Hayne
Cooper raises several arguments relating to Dr. Hayne’s testimony. First, Cooper
claims his attorneys were ineffective for their “unconditional and open-armed acceptance”
of Dr. Hayne as an expert in forensic pathology and their failure to voir dire him. Second,
Cooper contends his attorneys did not sufficiently cross-examine Dr. Hayne. Third, Cooper
claims his attorneys should have offered expert testimony to challenge Dr. Hayne’s
testimony.
1.
¶24.
Failure to Challenge Dr. Hayne’s Qualifications
We acknowledge that Dr. Hayne’s work has received criticism.
Though the
Mississippi Supreme Court rejected his two-shooter theory in Edmonds v. State, 955 So. 2d
787, 792 (¶8) (Miss. 2007), we note in Edmonds the supreme court made abundantly clear
that “Dr. Hayne is qualified to proffer expert opinions in forensic pathology[.]” (Emphasis
added). And since Edmonds, the supreme court has consistently found Dr. Hayne qualified
to render expert opinions in the field of forensic pathology in criminal cases. See Moffett v.
State, 49 So. 3d 1073, 1110-11 (¶¶126-27) (Miss. 2010); DeHenre v. State, 43 So. 3d 407,
417 (¶40) (Miss. 2010); Nelson v. State, 10 So. 3d 898, 904 (¶26) (Miss. 2009); Lima v.
State, 7 So. 3d 903, 907 (¶17) (Miss. 2009).
¶25.
We do not find Cooper’s attorneys’ performance deficient for merely failing to
challenge Dr. Hayne’s qualifications. In Conway v. State, 48 So. 3d 588 (Miss. Ct. App.
2010), where the PCR movant raised an identical argument, we observed: “Following the
9
State’s voir dire of Dr. Hayne, we can hardly fault Conway’s trial counsel for choosing not
to further question Dr. Hayne as to his extensive qualifications.” Id. The same is true here.
In addition, an attorney’s decision to make certain objections generally “falls within the
realm of trial strategy and is not grounds for a claim of ineffective assistance of counsel.”
Id. at 600 (¶19) (citing Spicer v. State, 973 So. 2d 184, 203 (¶69) (Miss. 2007)).
¶26.
Cooper has also failed to explain how testing Dr. Hayne’s qualifications might have
altered the result of his trial. He mentions in his PCR motion that his attorneys’ failure to
object to Dr. Hayne’s qualifications barred the issue for the purposes of appeal. But Cooper
has not shown a corresponding basis for reversal of his conviction. As already explained,
our supreme court has emphasized Dr. Hayne is qualified as an expert in forensic pathology.
See, e.g., Moffett, 49 So. 3d at 1110-11 (¶¶126-27). Thus, we do not find it reasonably
probable his attorneys’ failure to object to Dr. Hayne’s qualifications affected the outcome
of his case. Cooper fails to meet either prong of Strickland on this issue.
2.
¶27.
Failure to Sufficiently Cross-Examine Dr. Hayne
Cooper also asserts Dr. Hayne’s testimony suggests Cooper struck the victim,
Shumaker, in the head with a baseball bat at least two times. Maintaining that he only struck
Shumaker in the head once, Cooper contends his attorneys should have cross-examined Dr.
Hayne concerning the number of blows to Shumaker’s head.
a.
¶28.
Dr. Hayne’s Testimony
Dr. Hayne identified two injuries to Shumaker’s head.
Dr. Hayne’s external
examination showed one injury to the left back portion of the head, where “the skin was torn
and ripped, slightly irregular, measuring approximately one inch in length.” The other injury
10
was “an abrasion or scraping of the skin” on the left side of the victim’s head. The
photographs introduced into evidence depict these two external injuries to Shumaker’s head.
¶29.
Dr. Hayne also conducted an internal examination. Though noting that the external
injuries to Shumaker’s head “appear fairly superficial,” Dr. Hayne stated his internal
examination revealed “evidence of great force applied to the head.” He found Shumaker’s
death was caused by “blows to the head” and opined a baseball bat could have inflicted the
injuries.
¶30.
Dr. Hayne also testified there was a third injury to Shumaker’s body—a “compound
commuted fracture” to the forearm, which he determined was consistent with “defensive
posturing.”
¶31.
On cross-examination, one of Cooper’s attorneys questioned Dr. Hayne about the
injury to Shumaker’s forearm. When asked whether the injury could have been something
other than a defensive posturing injury, Dr. Hayne responded affirmatively. Cooper’s
attorney also posited that the victim could have been swinging his fist at Cooper at the time
he sustained the forearm injury. And Dr. Hayne admitted, “I could not exclude that.” Still,
Cooper contends his counsel performed deficiently by not questioning Dr. Hayne concerning
Shumaker’s head injuries.
b.
¶32.
Strickland
Cooper offers little explanation of how a more thorough cross-examination would
have altered the outcome of his trial. He simply points out Dr. Hayne’s testimony was
inconsistent with other trial testimony as to the number of blows to the victims head. Cooper
has shown us no credible proof that Dr. Hayne’s testimony that the victim received two head
11
injuries is unreliable. Based on the record before us, including the photographs of the
injuries to the victim’s head, we cannot find Cooper’s attorneys deficient for choosing to
limit cross-examination to the “defensive-posturing” issue.
¶33.
Cooper also fails to show resulting prejudice because he has not established, by a
reasonable probability, that any further questioning of Dr. Hayne would have resulted in
Cooper’s acquittal.
Further, he fails to plead the prejudice prong with the required
specificity. Jenkins, 986 So. 2d at 1035 (¶14) (citing Brooks, 573 So. 2d at 1354).
¶34.
Cooper cites Edmonds as supporting authority. In Edmonds, the supreme court
reversed and remanded the defendant’s (Edmonds’s) murder conviction. Dr. Hayne testified
at Edmonds’s trial that, more likely than not, two shooters had pulled the trigger at the same
time, discharging the fatal shot. Edmonds, 955 So. 2d at 791-92 (¶7). The supreme court
found Dr. Hayne’s testimony concerning his two-shooter theory unreliable and improperly
admitted. Id. at 792 (¶¶7-9).
¶35.
But here, unlike Edmonds, Cooper does not argue Dr. Hayne applied unreliable
principles or methods in forming his opinion. See M.R.E. 702. Nor does Cooper suggest
Dr. Hayne’s opinion was not based upon sufficient facts and data presented in the case. See
id. Because we find nothing in the record to indicate Dr. Hayne’s testimony was unreliable
or otherwise inadmissible, Edmonds is inapplicable. See Moffett, 49 So. 3d at 1110-11
(¶¶126-27); Lima, 7 So. 3d at 907-08 (¶¶14-20).
¶36.
While there were varying accounts of how many blows Cooper received, there is often
factually conflicting evidence in criminal cases. And it is the sole province of the jury to
resolve conflicts and make witness-credibility determinations. Gathright v. State, 380 So.
12
2d 1276, 1278 (Miss. 1980). Cooper’s concern with Dr. Hayne’s testimony relates to the
weight of the evidence, not its admissibility. This court has already rejected Cooper’s
challenge to the weight and sufficiency of evidence on direct appeal. Those issues are not
before us today.
¶37.
For these reasons, we find Cooper has failed to make his required showing on this
issue.
3.
¶38.
Failure to Call Rebuttal Expert
Cooper claims his attorneys should have called a rebuttal expert. However, Cooper
neither establishes that contradictory expert testimony exists, nor shows the substance of any
such testimony. Thus, he cannot prove prejudice under Strickland.
¶39.
Cooper cites the Mississippi Supreme Court’s decision in Howard v. State, 945 So.
2d 326 (Miss. 2006) as support. In Howard, the supreme court found deficient performance
in defense counsel’s decision not to call an expert witness to rebut the State’s expert. Id. at
352 (¶52). However, the PCR movant, Howard, supported his claim with “numerous expert
affidavits and other documents” attacking the State expert’s testimony. Id. at (¶53). “These
affidavits and other documents point out how many times [the State’s expert] has been
proven wrong and they discuss how unscientific his methods are.” Id. Here, Cooper has not
supported his claim with affidavits or other evidence criticizing Dr. Hayne’s methodology.
¶40.
Further, and equally pertinent to our analysis, we note that despite the numerous
affidavits and documents offered by the PCR movant in Howard, the supreme court still
found no resulting prejudice. Id. The court held that “in order for Howard to show that the
result of the proceeding would have been different, he must offer an affidavit from an expert
13
witness who rebuts the State’s expert testimony.” Id. Though the extensive material offered
in Howard disparaged the State’s expert and his methods, no potential rebuttal expert was
willing to conclude the State’s expert’s opinions were incorrect. As a result, the supreme
court found no prejudice. Id. Under Howard’s reasoning, Cooper falls far short of the
required showing of prejudice, as he fails to point to any expert testimony refuting Dr.
Hayne’s conclusion concerning the number of blows to the victim’s head. We further note
that Cooper was the sole witness at his PCR hearing. He neither attached affidavits to his
motion nor identified contrasting expert testimony.
¶41.
Cooper fails to meet his burden on this issue.
C.
¶42.
Failure to Discuss Discovery Material
Cooper contends his attorneys were ineffective because they “did not share discovery
materials or trial strategies [with him] . . . during the investigation stage of his case.” But
when Cooper testified at his post-conviction evidentiary hearing, he could not refute that his
attorneys had reviewed his entire file. He also failed to even allege what specific information
they failed to discuss with him. Nor does he allege with any specificity how this alleged nondisclosure affected the outcome of his trial. Because Cooper has failed to plead this issue
with the specificity required, he is not entitled to relief. Jenkins, 986 So. 2d at 1035 (¶14)
(citing Brooks, 573 So. 2d at 1354) (claims of ineffective assistance of counsel must be
specifically pled on both prongs of Strickland); Finley v. State, 739 So. 2d 425, 428 (¶¶8, 10)
(Miss. Ct. App. 1999) (finding PCR movant’s similar ineffective-assistance-of-counsel
argument based on attorney’s alleged failure to discuss discovery material was not pled with
required specificity).
14
D.
¶43.
Photographs
Cooper also argues his counsel was ineffective for failing to object to the admission
of autopsy photographs taken by Dr. Hayne and admitted at trial. Cooper specifically
challenges a photograph depicting one of the victim’s head injuries, which he contends was
more prejudicial than probative.
¶44.
We review a trial court’s admission of photographs for an abuse of discretion.
Dampier v. State, 973 So. 2d 221, 230 (¶25) (Miss. 2008). “The discretion of the trial judge
is almost unlimited regardless of the gruesomeness, repetitiveness, and the extenuation of
probative value.” Id. (internal quotations omitted). “So long as a photograph has probative
value and its introduction serves a meaningful evidentiary purpose, it may still be admissible
despite being gruesome, grisly, unpleasant, or even inflammatory.” Id. (internal quotations
omitted).
“A photograph has a meaningful evidentiary purpose when it: (1) aids in
describing the circumstances of the killing; (2) describes the location of the body or cause
of death; or (3) supplements or clarifies witness testimony.” Chamberlin v. State, 989 So.
2d 320, 340 (¶73) (Miss. 2008). “Some probative value is the only requirement needed in
order to support a trial judge’s decision to admit photographs into evidence.” Id.4
¶45.
Mississippi Rule of Evidence 401, which defines relevant evidence,5 favors admission
4
We note that the supreme court in Chamberlin recognized McNeal v. State, 551 So.
2d 151 (Miss. 1989) as the “solitary instance where [the supreme court] held a photograph,
a close-up of the victim’s partly decomposed skull, was gruesome and lacked an evidentiary
purpose and was more prejudicial than probative[.]” Chamberlin, 989 So. 2d at 340 (¶73).
5
The definition of relevant evidence is “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.” M.R.E. 401.
15
“[i]f the evidence has any probative value at all[.]” M.R.E. 401 cmt. Mississippi Rule of
Evidence 403 allows relevant evidence to “be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” (Emphasis added).
¶46.
We find the photographs here meet all three prongs of the test for “meaningful
evidentiary purpose,” only one of which need be met. The photographs (1) aid in describing
the circumstances of the killing, (2) describe the cause of death, and (3) supplement and
clarify Dr. Hayne’s testimony. Indeed, Cooper highlights the significance of the number of
blows to the victim’s head in other issues raised in this appeal. The photographs, which we
do not find to be gruesome, depict the victim’s injuries and arguably aid in illustrating the
number of times Cooper struck the victim. For these same reasons, we also find the
photographs easily pass through the filter of Rule 403.
¶47.
Any objection to the photographs would have been unsuccessful and immaterial to the
outcome of the trial. Therefore, we find Cooper fails to show either deficiency or Strickland
prejudice.
¶48. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT
DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
LEE, C.J., GRIFFIS, P.J., BARNES, ROBERTS AND RUSSELL, JJ.,
CONCUR. IRVING, P.J., AND ISHEE, J., CONCUR IN PART AND IN THE
RESULT. MYERS AND CARLTON, JJ., NOT PARTICIPATING.
16
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