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Cooley v. State

Court of Appeals of Mississippi

December 18, 2018

RICHARD N. COOLEY A/K/A RICHARD COOLEY A/K/A RICKY APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 06/27/2017

          COURT FROM WHICH APPEALED: PERRY COUNTY CIRCUIT COURT TRIAL JUDGE: HON. JON MARK WEATHERS

          ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE

          BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ.

          BARNES, J.

         ¶1. A Perry County jury found Richard Cooley guilty of aggravated assault against Dustin Cooley[1] during a confrontation where Richard undisputedly hit Dustin in the head with the butt of a shotgun. The trial judge sentenced Richard to a term of fifteen years in the custody of the Mississippi Department of Corrections, with three years to serve and twelve years suspended, plus fines and restitution. Richard timely appeals, raising three issues: (1) the trial court erred in failing to instruct the jury on Richard's defense-of-others defense; (2) Richard's trial counsel was ineffective for failing to request such an instruction; and (3) the verdict was against the overwhelming weight of the evidence. Finding no error, we affirm.

         STATEMENT OF FACTS

         ¶2. This case arises out of an altercation that occurred in the parking lot of a convenience store located in Janice, Mississippi, between two unrelated families with the same last name of Cooley. The primary participants were Adam Cooley and his son Dustin, the victim; Richard, the defendant, and his son Wesley Cooley. Richard arrived on the scene to interrupt a confrontation between his unarmed son, Wesley, and Adam's armed son, Dustin. An unrelated individual, Mitchell Cooley, came upon the fight and was able to break it up. However, this was after Richard had already hit Dustin in the head with the butt of his shotgun because, according to Richard, Dustin was preparing to shoot and kill his son Wesley.

         ¶3. The animosity between the two families began following a hunting incident. Each family owned hunting and timber land in proximity to the other in Perry County, Mississippi. One of Adam's sons, Tristan, and Tristan's cousin (also named Wesley Cooley), [2] killed a deer near Richard's house. They were charged with shooting from a public road and trespassing on property where Richard and Wesley kept livestock. Tristan was not convicted, but his cousin was. The father of Wes told Wesley to let him know if there was any further trouble from his son.

         ¶4. On the night of November 15, 2014, Wesley was sitting on his front porch when he heard a truck without a muffler revving its engine on the road in front of his property. Wesley testified that it sounded like the same truck Wes was driving during the prior hunting incident. Wesley decided to follow the truck and saw it was "just easing up the road." He confirmed that it was the hunting-incident truck due to its color and several stickers on the back glass. Wesley passed the truck, and the truck turned around. Wesley testified he drove to the home of Wes to see if his parents were there, but no one appeared to be home. Wesley decided to drive to the Janice store, where Wes's mother worked.

         ¶5. Wesley was correct that Wes was driving the truck, and Tristan was a passenger. The young men were coming from their hunting camp. Tristan admitted to "downshifting" when they passed Wesley's house and claimed that Wesley's truck thereafter began to follow them, driving recklessly and trying to run them off the road. Tristan became scared because he had heard "Wesley Cooley and them wanted to whip our butts" because they were mad about the prior hunting incident. Tristan called his father Adam, who instructed him not to stop but to go to the nearby Janice store because it was a public place, and he would meet them there. Instead, Wes turned the truck around and pulled into a cornfield across the road from the store to hide.

         ¶6. Meanwhile, Adam and his son Dustin drove to the Janice store, while another of Adam's sons, Ashton, got in a truck with Adam's brother to try and find Tristan. Adam had a pistol in his truck; Dustin not only had a .22-caliber rifle in the truck but also a nine-millimeter pistol on his person. When they arrived at the store, Adam told Dustin to go hide the rifle in the abandoned building across the street in order to avoid being accused of "head-lighting deer."[3]

         ¶7. Wesley arrived at the Janice store in his truck and saw Dustin cross the road with a rifle and head towards the abandoned building and some bushes. At the time, neither individual knew who the other was. Dustin, an Iraq-war vet and member of the Mississippi Army National Guard, testified that as he was walking toward the abandoned building to hide the rifle a truck pulled up behind him and shined its headlights on him. When Dustin was ten feet from Wesley's truck, Wesley stepped out of his truck and asked Dustin who he was and what he was doing. Dustin replied by asking Wesley who he was, assuming he was the individual that was chasing his brother in the truck. Dustin testified that "almost like a precise military ambush," another truck came behind him and shined its bright headlights on him. The other man-Richard-got out of his truck, held up a badge, stated he was a federal marshal, and told Dustin to drop the gun. Dustin refused, stating he had a permit to carry the gun. He testified Wesley and Richard closed in on him and were trying to grab the gun from him. Dustin would not release the gun "because [he] didn't think anything good would become of me being disarmed." Dustin testified that Richard had his own rifle; so he let go of Dustin's gun and "butt stroked me in the head with his shotgun." Dustin fell to the ground. Wesley straddled Dustin trying to take Dustin's gun away. Richard hit Dustin in the head with the gun one or two more times. Blood was running down Dustin's face. Dustin then heard a gunshot fired, which he later found out was his father trying to break up the fight. Dustin decided, in a "fight or flight decision," to try and reach for his concealed pistol, but he was lying on it and could not access it. Wesley asked what Dustin was reaching for but got off Dustin when he saw Richard and Adam fighting. During the skirmish with Wesley and Richard, Dustin testified the barrel of his own gun was always pointed upward and he never made a threatening action with his weapon. He also denied pointing a gun at anybody or putting a pistol to anyone's head.

         ¶8. During the altercation, Adam was in his truck across the road about sixty feet from Wesley and Richard. Adam testified he saw Dustin and Wesley having words, and when Richard arrived, he heard Richard tell Dustin to "drop the gun. I'm a federal marshal."[4]Adam testified that Wesley tried to grab Dustin's rifle, and as they were fighting over the gun, Richard took the butt of his gun and hit Dustin in the head ...


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