Cooper v. State , 1992 Tenn. Crim. App. LEXIS 484 ( 1992 )

OPINION

TIPTON, Judge.

The petitioner, Vernon Cooper, and the state have both appealed from the Hamilton County Criminal Court’s action on the petitioner’s claim for post-conviction relief. The trial court denied the petitioner relief from his conviction for murder in the first degree, but it vacated his death sentence on the ground of ineffective assistance of counsel. The petitioner was originally convicted in a jury trial in February, 1985, for the first degree murder of his estranged wife. The conviction and sentence were affirmed on direct appeal to the Tennessee Supreme Court. State v. Cooper, 718 S.W.2d 256 (Tenn.1986), cert. denied, 479 U.S. 1101, 107 S.Ct. 1332, 94 L.Ed.2d 183 (1987).

On July 17,1987, the petitioner instituted this post-conviction proceeding. After an evidentiary hearing, the trial court made its determinations. In his appeal, the petitioner contends the following:

I. He received the ineffective assistance of counsel because

(a) counsel failed to introduce evidence of his mental condition which would have been a defense to first degree murder,

(b) counsel failed to claim that the jury was not drawn from a fair cross-section of the community,

(c) counsel failed to have jurors excused for cause, and

(d) counsel submitted an inadequate brief on direct appeal.

II. The trial court erred in precluding the petitioner from calling the district attorney general and an assistant prosecutor as witnesses on his claim that the district attorney general abused his discretion in seeking the death penalty.

In its appeal, the state contends that the petitioner received the effective assistance of counsel at the sentencing hearing. Also, it claims that the trial court abused its discretion by ordering the appointment of a psychologist to aid the petitioner in his preparation of the post-conviction case.

The petitioner was convicted for the November 5, 1984, killing of his estranged wife. Although the evidence against the petitioner is stated in great detail in the Supreme Court opinion in the direct appeal, a synopsis was provided as follows:

He shot his wife four times with a pump shotgun at her place of employment, a self-service gasoline station, at midday in the presence of numerous witnesses. He fled from the scene in his automobile and was apprehended only after a dangerous and high-speed pursuit through heavy traffic. His own testimony revealed that the homicide was the result of careful and deliberate planning on his part after having warned his estranged wife and her family of his intentions.

718 S.W.2d at 256. The evidence reflected that the petitioner made several death threats against the victim and had twice before been to the station on the day of the shooting. The aggravating circumstance found by the jury to warrant the death penalty was:

The murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind....

T.C.A. § 39-2-203(i)(5). In reviewing the case, the Supreme Court said that the evidence was clearly sufficient for the trier of fact to find the presence of both torture and depravity of mind beyond a reasonable doubt. 718 S.W.2d at 260.

The defense proof at the trial of the guilt phase came from three witnesses. A records custodian submitted court records of the pending divorce case filed in August, 1984, by the victim reflecting the ground to be irreconcilable differences and showing that a property agreement had been signed by her and the petitioner. A Diane Gray testified that she met the petitioner at a local billiards establishment on five or six occasions over a period of four to six weeks beginning in September, 1984. She said the petitioner appeared upset and a “little depressed.”

The petitioner’s testimony on direct examination began with his explanation of why the divorce was filed. He related events regarding the victim not having anything further to do with him and refusing to talk to him. He stated that her actions upset him to the point that he could not sleep. He said he thought of killing himself. Most of his direct testimony, which takes ten pages of transcript, dealt with the shooting and the events leading up to it, in terms of his buying the weapon, test-firing it, taking it to the victim’s work place and killing her. At one point, he said that he did not go to the station with the intent to kill her, but he later said he did not know if he had any plan to kill her. The state’s cross-examination was a textbook example of the destruction of direct testimony, particularly in terms of showing that the petitioner deliberately and premeditat-edly killed his wife.

At the trial of the penalty phase, the state called no witnesses. The only witness called by the defense was the petitioner’s sister, Shirley Ann Giles. Her testimony, covering four pages of transcript, was that the petitioner was depressed since his separation from the victim and was upset about not having a job. She said his emotional state had changed while he was in jail awaiting trial, but she did not state in what manner. She said that their father died when the petitioner was thirteen, but she was unable to articulate its emotional impact on the petitioner. She stated that the petitioner did not talk about his feelings and “kept things inside.” Finally, trial counsel elicited from her that the petitioner had a temper. The state did not cross-examine.