Cooke v. State

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

MAX RITCHIE COOKE, )
) Docket No. 32447
Petitioner-Appellant, )
)
v. )
)
STATE OF IDAHO, )
)
Respondent. )
)
STATE OF IDAHO, )
) Docket No. 34820
Plaintiff-Respondent, )
)
v. ) 2010 Opinion No. 10
)
MAX RITCHIE COOKE, ) Filed: February 23, 2010
)
Defendant-Appellant. ) Stephen W. Kenyon, Clerk
)
)
)
)

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Michael R. McLaughlin, District Judge.

Judgment of conviction for second degree kidnapping, aggravated battery and
assault, affirmed; order partially denying application for post-conviction relief,
affirmed.

Molly J. Huskey, State Appellate Public Defender; Sarah E. Tompkins, Deputy
Appellate Public Defender, Boise, for appellant. Sarah E. Tompkins argued.

Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
Attorney General, Boise, for respondent. Jessica M. Lorello argued.
______________________________________________

WALTERS, Judge Pro Tem
Following a jury trial, Max Ritchie Cooke was found guilty of second degree kidnapping,
aggravated battery, and assault. Subsequently, Cooke filed a petition for post-conviction relief,
which was partially granted by the trial court. Cooke appeals his judgment of conviction and the

1
partial denial of his post-conviction petition. Cooke argues on appeal that the district court erred
in allowing the State to introduce evidence of Cooke‟s past threats, that the prosecutor
committed misconduct in closing argument, and that the trial court erred in partially denying his
post-conviction petition. As explained in more detail below, we affirm.
I.
BACKGROUND
From approximately late November 2002 to early January 2003, Cooke and his wife,
Alison Cooke (Alison), were in the process of separating. During this time, Cooke made several
threats to a number of people that if he found out she was speaking to or seeing another man, he
would kill Alison and/or himself. Alison stayed with her brother, Andrew Wanacott,
intermittently throughout this period of time. Alison was staying with Wanacott on January 17,
2003, but was out with a friend all night. On this night, Cooke tried to contact Alison but was
unsuccessful. He drove to Wanacott‟s house during the early morning hours of January 18, and
waited outside for Alison to return. When Alison returned home around 3:00 a.m. Cooke
confronted her. At some point, Cooke got into Alison‟s truck and took the keys. He drove away,
speeding, with Alison still in the vehicle. Alison stated Cooke was driving erratically, they were
yelling at each other, Cooke was pushing her and pulling her hair, and she attempted to get out of
the truck but Cooke repeatedly locked the doors. Cooke then drove the truck off the road,
through a small fence, and accelerated just prior to driving into a tree. Alison suffered severe
injuries, including a brain injury.
Cooke was charged with first degree kidnapping, Idaho Code § 18-4502, aggravated
battery, I.C. § 18-907, and assault with intent to commit rape, I.C. §§ 18-901, 18-909. Before
trial, the State filed a notice of its intent to use evidence of Cooke‟s suicide threats and threats to
kill Alison, pursuant to I.R.E. 404(b), to negate Cooke‟s claim that driving the truck off the road
and into a tree was an accident. On the first day of trial, before the voir dire proceedings, the
district court heard counsel‟s arguments concerning whether to allow such evidence. The court
ruled that any threats that Cooke was going to kill Alison or himself were relevant to the issue of
Cooke‟s intent and any prejudice did not outweigh the probative value. At trial, the prosecution
called Alison, her brother and sister, two of her friends, and the man Cooke believed she was
having an affair with to testify, among other things, that Cooke had made threatening statements

2
about killing himself and Alison. The jury convicted Cooke of second degree kidnapping,
aggravated battery, and assault.
Cooke subsequently filed a petition for post-conviction relief, which was dismissed
without prejudice. Cooke filed an amended petition for post-conviction relief alleging his trial
counsel was ineffective by failing to timely file an appeal of Cooke‟s judgment of conviction and
by failing to investigate or challenge Alison‟s competency to testify at trial. The district court
summarily dismissed the petition and Cooke appealed. Thereafter, the State filed a motion with
the Supreme Court to remand the case for reconsideration of Cooke‟s claims and an evidentiary
hearing on his claim of ineffective assistance of counsel for failure to file a timely appeal. The
Supreme Court granted the motion and remanded Cooke‟s case to the district court. The district
court then held an evidentiary hearing on Cooke‟s post-conviction claims, after which it found
that Cooke had established ineffective assistance of counsel on the claim of failure to file a
timely appeal but not on the claim of failure to investigate and challenge Alison‟s competency as
a witness. The district court vacated the prior judgment of conviction and re-entered the
judgment so that Cooke could timely file an appeal.
Cooke filed an appeal from the re-entered judgment in his underlying case, Supreme
Court Case No. 34820, as well as an appeal of the court‟s partial denial of his post-conviction
petition, Supreme Court Case No. 32447. These cases have been consolidated for appellate
purposes. Cooke argues on appeal that the district court abused its discretion when it permitted
the State to introduce evidence of Cooke‟s prior threats against the victim and himself, that the
prosecutor committed misconduct in closing arguments by arguing that the threats showed
Cooke‟s criminal propensity, and that the district court erred when it partially denied his post-
conviction petition based on a finding that the victim in this case was competent to testify at trial.
II.
DISCUSSION
A. Admission of Past Threats Evidence

As an initial matter, and contrary to the State‟s assertion, past threats fall within the
purview of I.R.E. 404(b). State v. Hoak, 147 Idaho 919, 921-22, 216 P.3d 1291, 1293-94 (Ct.
App. 2009) (analyzing a defendant‟s past threats to physically harm the victim of a stalking
charge, for which the defendant was being tried, under the I.R.E. 404(b) rubric); State v. Alsanea,

3
138 Idaho 733, 738-40, 69 P.3d 153, 158-60 (Ct. App. 2003) (analyzing a defendant‟s prior
threats toward a former girlfriend, in connection with an aggravated assault against a law
enforcement officer charge, for I.R.E. 404(b) admissibility); State v. Whipple, 134 Idaho 498,
504-05, 5 P.3d 478, 484-85 (Ct. App. 2000) (evaluating a defendant‟s previous threats to kill
another person for I.R.E. 404(b) admissibility in defendant‟s trial for murdering his wife).
Cooke contends that because the district court lacked a sufficient factual basis for the
evidence and did not know the nature or quantity of the threats, it could not evaluate the degree
of probative value or risk of unfair prejudice of any individual threat. Alternatively, Cooke
argues that the danger of unfair prejudice, due to the cumulative nature of the evidence,
substantially outweighed the low probative value of the majority of the threats because they were
made several weeks prior to the incident. Cooke also argues, for the first time in his
supplemental brief, that the court erred by not specifically articulating for the record that it found
the State‟s proof to be sufficient to establish Cooke actually made prior threats.
Evidence of “other crimes, wrongs, or acts” is not admissible to prove a defendant‟s
criminal propensity. I.R.E. 404(b); State v. Grist, 147 Idaho 49, 52, 205 P.3d 1185, 1188 (2009);
State v. Needs, 99 Idaho 883, 892, 591 P.2d 130, 139 (1979); State v. Winkler, 112 Idaho 917,
919, 736 P.2d 1371, 1373 (Ct. App. 1987). However, “other crimes, wrongs or acts” evidence
may be admissible for other purposes such as proof of intent, plan, or absence of mistake or
accident. I.R.E. 404(b); State v. Avila, 137 Idaho 410, 412, 49 P.3d 1260, 1262 (Ct. App. 2002).
When reviewing the admissibility of 404(b) evidence, the trial court must engage in a two-part
analysis. Grist, 147 Idaho at 52, 205 P.3d at 1188; State v. Parmer, 147 Idaho 210, 214, 207
P.3d 186, 190 (Ct. App. 2009); State v. Scovell, 136 Idaho 587, 590, 38 P.3d 625, 628 (Ct. App.
2001). The first tier involves a two-part inquiry: (1) whether there is sufficient evidence to
establish the prior bad acts as fact, and (2) whether the prior bad acts are relevant to a material
disputed issue concerning the crime charged, other than propensity. Grist, 147 Idaho at 52, 205
P.3d at 1188; Parmer, 147 Idaho at 214, 207 P.3d at 190. Such evidence is relevant only if the
jury can reasonably conclude the act occurred and the defendant was the actor.1 Grist, 147 Idaho

1
Cooke urges this Court to adopt either a clear and convincing evidence or a
preponderance of the evidence standard applicable to the determination of whether “other acts”
evidence has been established by the State. However, this Court has previously held the
appropriate standard is that adopted by the United States Supreme Court in Huddleston v. United
4
at 52, 205 P.3d at 1188; Parmer, 147 Idaho at 215, 207 P.3d at 191. On appeal, this Court treats
the trial court‟s factual determination that a prior bad act has been established by sufficient
evidence like all factual findings by a trial court. Id. at 214, 207 P.3d at 190. We defer to a trial
court‟s factual findings if supported by substantial and competent evidence in the record. State
v. Porter, 130 Idaho 772, 789, 948 P.2d 127, 144 (1997); Parmer, 147 Idaho at 214, 207 P.3d at
190. We exercise free review of the trial court‟s relevancy determination. State v. Sheldon, 145
Idaho 225, 229, 178 P.3d 28, 32 (2008); Scovell, 136 Idaho at 590, 38 P.3d at 628.
The second tier of the inquiry requires the court to balance whether the probative value is
substantially outweighed by the danger of unfair prejudice. Grist, 147 Idaho at 52, 205 P.3d at
1188; Parmer, 147 Idaho at 214, 207 P.3d at 190. When reviewing the trial court‟s balancing
determination we use an abuse of discretion standard. Grist, 147 Idaho at 52, 205 P.3d at 1188;
Scovell, 136 Idaho at 590, 38 P.3d at 628. The abuse of discretion standard is a stringent one for
an appellant to meet and becomes more difficult as the probative value of the evidence in
question increases. Hoak, 147 Idaho at 922, 216 P.3d at 1294. In determining whether the trial
court abused its discretion, we inquire into: (1) whether the trial court correctly perceived the
issue as a discretionary one, (2) whether the trial court acted within the bounds of its discretion
and consistently with the applicable legal standards; and (3) whether the trial court reached its
decision by an exercise of reason. Grist, 147 Idaho at 51, 205 P.3d at 1187; State v. Hedger, 115
Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
1. The first tier

States, 485 U.S. 681, 690 (1988). State v. Kay, 129 Idaho 507, 515, 927 P.2d 897, 905 (Ct. App.
1996). That standard is “whether the jury could reasonably find the conditional fact . . . by a
preponderance of the evidence.” Huddleston, 485 U.S. at 690. As this Court stated in Parmer,
147 Idaho at 215, 207 P.3d at 191, although the Idaho Supreme Court has not specifically
espoused a standard of proof, it did state that I.R.E. 404(b) evidence would only be relevant if
the jury could reasonably conclude that the act occurred and that the defendant was the actor,
adopting language similar to the Huddleston analysis. Grist, 147 Idaho at 52, 205 P.3d at 1188.
We held that “[i]t would be illogical to place a higher burden on the trial court‟s preliminary
analysis of the admissibility of the proffered evidence” than that articulated in Grist for
relevancy. Parmer, 147 Idaho at 215, 207 P.3d at 191. As such, the relevant standard a trial
court must employ is whether there is sufficient evidence to support a reasonable conclusion that
the act occurred and that the defendant was the actor. Id.
5
 Cooke argues that, in light of Grist and Parmer, the district court was required to make a
specific finding articulated on the record that the State‟s proof was sufficient to establish that
Cooke actually made the prior threats, and that the court failed to do so in this case. Cooke also
argues that, even if this Court finds such an articulation was made, the district court was without
sufficient information to support that determination.
We first address whether the court was required to specifically articulate its finding that
there was sufficient evidence by which a jury could reasonably conclude Cooke made the threats
and take this opportunity to clarify our decision in Parmer. In Parmer, we interpreted the Idaho
Supreme Court opinion in Grist to require that in determining I.R.E. 404(b) relevancy a trial
court must articulate a separate finding that sufficient evidence exists to support a reasonable
conclusion that the other crime, wrong, or act occurred. Parmer, 147 Idaho at 215, 207 P.3d at
191. See also Grist, 147 Idaho at 53, 205 P.3d at 1189. A district court can make this finding by
relying on the State‟s oral or written offer of proof. Parmer, 147 Idaho at 215, 207 P.3d at 191.
Affidavits, stipulations by the parties, live testimony, or more extensive evidentiary hearings for
each witness are other ways a trial court may make the finding, but are not required. Id.
However, in Parmer the issue of whether the other acts actually occurred and whether the
defendant was the actor was squarely before the trial court thereby necessitating an articulation
on the record in order to make a proper relevancy determination. Absent the issue being brought
to the district court‟s attention, though the trial court would obviously still make this
determination, there would be no need for the district court to specifically articulate its
determination on the record. In this case, the trial court never made a specific articulation of its
findings because no issue was raised to the district court on that motion as to whether the
defendant made these threats. The State made a prima facie showing that the threats were made
by Cooke in its written and oral offer of proof; in response to which Cooke did not to object or
otherwise bring to the attention of the trial court any potential issue that these threats were never
in fact made by the defendant.2 Had Cooke done so, the court may have found the need to
invoke the other methods mentioned in Parmer--affidavits, live testimony, etc.--in order to make
the initial finding that sufficient evidence existed to support a reasonable conclusion that the

2
Cooke argued only that introduction of the evidence would lengthen the trial and that the
prejudicial effect outweighed any probative value of the evidence.

6
other act occurred. Under that circumstance, the court would need to articulate its finding to the
parties. However, this was not what occurred below. Cooke did not argue in opposition to
introduction of the evidence that the threats were not made and consequently, specific
articulation of a finding that the threats were made by Cooke was unnecessary. We clarify that
Parmer‟s “specific articulation” requirement only applies when the record on appeal shows the
issue was squarely before the trial court and, therefore, we do not address whether the court in
this case made such a finding on the record as it was not required by Parmer to do so. In this
situation the Court will simply review whether there is substantial and competent evidence to
support the lower court‟s unarticulated finding.
Again, to say the district court was not required to articulate its finding on the record is
not to say the court was relieved of its obligation to make this determination. Therefore, we next
address whether there was substantial and competent evidence to support a finding that there was
sufficient evidence by which a jury could reasonably conclude Cooke made the threats. We hold
there was. The State‟s written and oral offer of proof together informed the court that Cooke
made several threats to kill Alison and himself if he found out Alison was talking to or seeing
another man or if Alison tried to leave Cooke. The State‟s oral offer of proof informed the court
that several witnesses, including Alison and “a couple of her friends and a couple of her
relatives, her brother and sister” would be testifying to these threats made “roughly six or seven
weeks” prior to the incident. All the threats in the offer of proof were that Cooke would kill
Alison or himself if he found her with another man, so regardless of the name or number of the
witnesses, or quantity of such threats, this would still be the content of the threats to which the
witnesses would testify.3 Thus, the State‟s offer of proof identified by title the witnesses who
would testify that these threats were in fact made. There was substantial and competent evidence
from which the district court could conclude a jury could reasonably find that Cooke made these
threats.4

3
Cooke never raised an objection before the trial court to a lack of specificity with which
the State identified these witnesses or the quantity of threats to which they would testify.
4
To the extent that Cooke is making an argument that the testimony elicited at trial did not
conform to the offer of proof, this does not render a district court‟s sufficiency of evidence
determination inadequate. Parmer, 147 Idaho at 217, 207 P.3d at 193. Rather, if “the actual
testimony of the witness fails to comport with . . . the content upon which the district court made
7
 2. The second tier
Cooke argues the court could not have acted consistently with applicable legal standards
in balancing the probative value of Cooke‟s threats with the danger of unfair prejudice because it
did not know the nature or quantity of the threats. Alternatively, Cooke argues the court did not
act within the boundaries of discretion or reach its decision by an exercise of reason as the
probative value of the threats were low due to the passage of time and the prejudicial value was
great because of the cumulative nature of the evidence.
The quantity of other crimes, wrongs or acts admitted is a relevant consideration to a trial
court‟s balancing of the probative value against the risk of unfair prejudice. Parmer, 147 Idaho
at 221, 207 P.3d at 197. As the nature of I.R.E. 404(b) evidence is inherently prejudicial, “at
some point the number of such witnesses can become excessive and overwhelm the probative
value of the evidence” because the cumulative effect has a tendency to prove propensity and bad
character. Parmer, 147 Idaho at 221, 207 P.3d at 197. However, because the amount of
evidence appropriate to establish a common scheme, plan, absence of accident, or intent will
vary with each case, the determination of at what point such evidence has become excessive is
within the discretion of the trial court. Id. In Parmer, the defendant was on trial for lewd
conduct with a minor because he engaged in inappropriate sexual touching during the course of
providing the minor with massage services. Id. at 213, 207 P.3d at 189. This Court held that the
district court in that case did not abuse its discretion in finding the probative value of eight
different witnesses, who testified that the defendant engaged in inappropriate sexual touching
with them during the course of massage services, was not outweighed by the danger of unfair
prejudice. Id. at 214, 221-22, 207 P.3d at 190, 197-98.
Additionally, temporal proximity to the crime charged affects the probative value of
I.R.E. 404(b) evidence. See State v. Pugsley, 128 Idaho 168, 177-78, 911 P.2d 761, 770-71 (Ct.

its admissibility determination, the district court may instruct the jury to disregard all or any part
of the witness‟ testimony.” Id. at 217, 207 P.3d at 193. Most importantly, however, Cooke
never objected to any nonconformity at trial. Therefore, as a district court is not required to sua
sponte strike portions of testimony that vary from the offer of proof, id., whether the witnesses
testified to other crimes, wrongs, or acts differing from the State‟s offer of proof does not affect
our analysis in this case.
8
App. 1995) (noting that the district court considered the time proximity of evidence of a prior
rape and found it probative to the defendant‟s current rape charge even though it occurred seven
years prior, and holding the court did not abuse its discretion in finding the probative value was
not outweighed by the danger of unfair prejudice); State v. Blackstead, 126 Idaho 14, 19-20, 878
P.2d 188, 193-94 (Ct. App. 1994) (holding that an event occurring several weeks prior to the
crime charged was not sufficiently temporally related to be probative of the “complete story” but
was sufficiently temporally related to be probative of a plan or design, and holding the trial court
did not abuse its discretion in finding the probative value was not outweighed by the danger of
unfair prejudice).
In this case, the district court was informed that Alison, “a couple of her friends,” and “a
couple of her relatives, her brother and sister” would testify to threats of “[Cooke‟s] intention to
kill Alison Cooke if she attempted to leave him or if he found out that she was talking to a fellow
on the telephone who he was suspicious of” and “about killing himself.” This information
conveyed to the district court the nature of the threats to be admitted as well as the witnesses who
would be testifying, by title. To require the prosecutor to restate the same, or substantially the
same, threat after reciting the name of each individual witness, when all relevant witnesses will
be testifying to substantially the same threat is illogical. Also, although this case is unlike
Parmer in that the offer of proof did not include the exact number of witnesses, the term “a
couple” is sufficient information for the court to at least be aware that the evidence is cumulative
in nature. Though best practices would be to know the exact number of witnesses in order to
determine excessiveness, the trial court had sufficient information, based on its knowledge that
Alison, “a couple” of friends, and “her brother and sister” would testify, that it could make a
determination of whether the evidence would be excessive. The district court was sufficiently
aware of the number and identity of the witnesses, the bad acts alleged, and the temporal
relationship. The district court properly held that threats that Cooke intended to kill Alison,
himself, or both were probative of Cooke‟s intent, and that the probative value outweighed the
prejudicial effect.
Contrary to Cooke‟s alternative argument, the consistency with which Cooke made death
and suicide threats for over a month prior to Cooke driving himself and Alison into a tree is
highly probative of his intent to kill himself and Alison in the car crash. The relevant focus is
not just on the seven-week time lapse, but rather on the progression and consistency of the

9
threats for this entire seven-week period of time. As has been shown in Pugsley and Blackstead
a time lapse from several weeks to several years may not diminish the evidence‟s probative value
depending on the purpose of the evidence. As Cooke was claiming the car crash was accidental,
his intent indicating the absence of an accident was a material issue in the case and evidence
tending to show that killing Alison and himself had been on Cooke‟s mind consistently for
several weeks prior to the crash is highly probative of that intent. Therefore, the district court
correctly rejected Cooke‟s argument, that the probative value was so low that it was outweighed
by the cumulative nature of the evidence.
B. Prosecutorial Misconduct
Cooke next alleges that the prosecutor committed misconduct in his closing argument by
improperly arguing that the prior threats evidence showed Cooke‟s criminal propensity to
commit the offenses. Cooke did not make a contemporaneous objection to the prosecutor‟s
remarks. When a party fails to preserve an issue for appeal through a timely objection, the issue
will be reviewed on appeal only if it constitutes fundamental error. State v. Lovelass, 133 Idaho
160, 167, 983 P.2d 233, 240 (Ct. App. 1999). The Idaho Supreme Court has defined
fundamental error as,
such error as goes to the foundation or basis of a defendant‟s rights or must go to
the foundation of the case or take from the defendant a right which was essential
to his defense and which no court could or ought to permit him to waive. Each
case will of necessity, under such a rule, stand on its own merits. Out of the facts
in each case will arise the law.
State v. Johnson, 145 Idaho 970, 979, 188 P.3d 912, 921 (2008); State v. Christiansen, 144 Idaho
463, 470, 163 P.3d 1175, 1182 (2007); State v. Bingham, 116 Idaho 415, 423, 776 P.2d 424, 432
(1989). The Supreme Court has also described fundamental error as “error which „so profoundly
distorts the trial that it produces manifest injustice and deprives the accused of his constitutional
right to due process.‟” State v. Anderson, 144 Idaho 743, 748, 170 P.3d 886, 891 (2007);
(quoting State v. Lavy, 121 Idaho 842, 844, 828 P.2d 871, 873 (1992)); State v. Mauro, 121
Idaho 178, 180, 824 P.2d 109, 111 (1991).
We have recently emphasized that the fundamental error doctrine “is not a mechanism for
criminal defendants to obtain judicial review of every plausible claim of trial error.” State v.
Adams, 147 Idaho 857, 861, 216 P.3d 146, 150 (Ct. App. 2009). A contemporaneous objection
is generally required for review, making fundamental error “the exception, not the rule.” Id. The
contemporaneous objection requirement exists for a number of reasons including preventing “a
10
defendant from „sandbagging‟ by remaining silent about a recognized error and belatedly raising
the error only if the case does not conclude in his favor.” Id.
In determining whether statements made in closing arguments are improper, we note that
a prosecutor has considerable latitude in his argument and has the right to discuss inferences
arising from the evidence. Porter, 130 Idaho at 786, 948 P.2d at 141; State v. Phillips, 144 Idaho
82, 86, 156 P.3d 583, 587 (Ct. App. 2007). This latitude is not boundless, however, and it is
improper for a prosecutor to argue as substantive evidence matters admitted for limited
evidentiary purposes. See State v. Hairston, 133 Idaho 496, 507-08, 988 P.2d 1170, 1181-82
(1999); Phillips, 144 Idaho at 86, 156 P.3d at 587. Prosecutorial misconduct in closing argument
will be considered a fundamental error when it is “calculated to inflame the minds of jurors and
arouse passion or prejudice against the defendant, or is so inflammatory that the jurors may be
influenced to determine guilt on factors outside the evidence.” Porter, 130 Idaho at 785, 948
P.2d at 140 (quoting State v. Babb, 125 Idaho 934, 942, 877 P.2d 905, 913 (1994)); State v.
Kuhn, 139 Idaho 710, 715, 85 P.3d 1109, 1114 (Ct. App. 2003).
In this case, a majority of the prosecutor‟s comments to which Cooke assigns error were
made in the context of discussing the “willful” requirement of aggravated battery. The
prosecutor described the willful requirement and then stated, “[s]o, now, let‟s look, then, at the
question of whether the crash into the tree was an accident, like he says.” The prosecutor went
on to discuss all the evidence, including all the I.R.E. 404(b) evidence that was presented at trial
that negated a conclusion that the crash was an accident and supported a conclusion that Cooke
acted with intent. Although the prosecutor did not continuously reference the words
“willfulness” or “intentional” throughout this recitation of the evidence, he did make other
references that would suggest he was discussing intent. For example, after discussing statements
Cooke made to Alison the prosecutor stated, “[y]ou say those kind of things to people . . . that
you try and hurt.” Also, after discussing prior controlling behavior, domestic violence, and the
circumstances surrounding the night of the crash the prosecutor asked the jury if Cooke‟s version
of events “sound logical. . . [o]r does it sound like . . . it‟s time for revenge . . . it‟s time for
comeuppance.” The prosecutor went on to conclude, “the defendant‟s intentions . . . weren‟t
honorable . . . [t]hey were violent.” Viewed in this context, Cooke‟s argument that the State
failed to link these allegations to Cooke‟s intent is unpersuasive.

11
 However, the prosecutor did make a couple of comments on the I.R.E. 404(b) evidence
that tend to suggest criminal propensity. Specifically, after discussing Cooke‟s prior history of
making and carrying out threats the prosecutor asked the jury, “[i]s this being done in a vacuum
or does the defendant have some kind of temper?” There appears to be no other reason for this
statement than to suggest to the jury that Cooke committed the crime because his history shows
that when he gets angry he carries out his threats and so he must have done so on this occasion.
In his rebuttal closing argument, the prosecutor again commented on Cooke‟s propensity to act
violently out of anger when he said “[f]irst on intent . . . you know that he is angry and you know
that he acts when he is angry, whether it‟s filling up his house with car fumes or whether it‟s
punching holes in the wall, whether it‟s grabbing Alison by the hair.” Although the prosecutor
referenced intent, what he was suggesting to the jury was that they could infer intent because
Cooke has a propensity to act a certain way when he is angry, so they could conclude he acted
that way on the night in question. This is arguing I.R.E. 404(b) evidence for its propensity value
rather than for a permissible purpose, which amounts to prosecutorial misconduct.
These references to Cooke‟s propensity for anger do not rise to the level of fundamental
error, however. As stated above, to show fundamental error, the misconduct must be so great
that it inflamed the minds of the jurors, went to the foundation or basis of Cooke‟s rights, and so
profoundly distorted his trial as to deprive him of justice. Two brief comments on Cooke‟s
history of anger in the context of closing arguments, when the jury was instructed not to use
I.R.E. 404(b) evidence for propensity and that closing arguments were not to be given
evidentiary weight, did not so distort Cooke‟s trial that it went to the foundation of Cooke‟s
rights to a fair trial. As stated in Adams, fundamental error is the exception not the rule and,
though we find the prosecutor did refer to I.R.E. 404(b) evidence for the improper purpose of
implying Cooke‟s propensity, we do not find this error so egregious as to rise to the level of
fundamental error.
C. Ineffective Assistance of Counsel
In his post-conviction appeal, Cooke claims the district court erred when it determined
Cooke had not established Alison lacked competency, arguing that the evidence showed that
more likely than not Alison had developed false memories by the time of trial. Additionally,
Cooke asserts the district court erred in determining that Cooke had not established he received

12
ineffective assistance of counsel based on the failure of trial counsel to take action due to
Alison‟s lack of competence.5
In order to prevail in a post-conviction proceeding, the applicant must prove the
allegations upon which the request for post-conviction relief is based by a preponderance of the
evidence. I.C. § 19-4907; Dunlap v. State, 141 Idaho 50, 56, 106 P.3d 376, 382 (2004);
McKinney v. State, 133 Idaho 695, 699-700, 992 P.2d 144, 148-49 (1999). When reviewing a
decision denying post-conviction relief after an evidentiary hearing, an appellate court will not
disturb the lower court‟s factual findings unless they are clearly erroneous. I.R.C.P. 52(a);
Boman v. State, 129 Idaho 520, 525, 927 P.2d 910, 915 (Ct. App. 1996); Russell v. State, 118
Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). The credibility of the witnesses, the weight to
be given to their testimony, and the inferences to be drawn from the evidence are all matters
solely within the province of the district court. Dunlap, 141 Idaho at 56, 106 P.3d at 382; Queen
v. State, 146 Idaho 502, 504, 198 P.3d 731, 733 (Ct. App. 2008); Larkin v. State, 115 Idaho 72,
73, 764 P.2d 439, 440 (Ct. App. 1988). We exercise free review of the district court‟s
application of the relevant law to the facts. Dunlap, 141 Idaho at 56, 106 P.3d at 382; Queen,
146 Idaho at 504, 198 P.3d at 733.
1. Alison’s competence
Because the crux of Cooke‟s arguments in his post-conviction appeal is that Alison was
not a competent witness, Cooke was required to establish this contention by a preponderance of
the evidence. Generally, a witness is competent unless the court finds him to be “incapable of
receiving just impressions of the facts respecting which they are examined, or of relating them
truly.” I.R.E. 601; State v. Ransom, 124 Idaho 703, 710, 864 P.2d 149, 156 (1993); State v.
Griffith, 144 Idaho 356, 362, 161 P.3d 675, 681 (Ct. App. 2007). This rule creates a presumption
of competency and grants the trial court the discretion to determine when the facts overcome this
presumption. Griffith, 144 Idaho at 362, 161 P.3d at 681; State v. Vondenkamp, 141 Idaho 878,
882, 119 P.3d 653, 657 (Ct. App. 2005). Whether a subsequent event has modified a witness‟s
memory and rendered it unreliable is a discretionary question left to “the entity most experienced

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Cooke also argues the district court abused its discretion at his post-conviction
evidentiary hearing when it did not admit an affidavit submitted by Alison. Cooke‟s argument is
unsupported by the record. Alison‟s affidavit was admitted except for a paragraph that was an
excerpt from a medical report, and the report itself was considered by the district court.
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in dealing with evidentiary questions, the trial court.” State v. Iwakiri, 106 Idaho 618, 625-626,
682 P.2d 571, 578-579 (1984). When an exercise of discretion is reviewed on appeal we inquire
into whether the lower court perceived the issue as discretionary, acted within the boundaries of
discretion and consistently with applicable legal standards, and reached its decision by an
exercise of reason. Vondenkamp, 141 Idaho at 882, 119 P.3d at 657; Ransom, 124 Idaho at 706,
864 P.2d at 152.
In this case, Alison‟s doctor, Dr. Clay Ward, created a report five days after the car crash
wherein he gave his opinion on Alison‟s memory status. The relevant portion stated:
I do not believe that the patient is competent or even appropriate for a police or
forensic evaluation or interview at this time. She does not have any recall of
events leading up to the accident and is still very much in posttraumatic amnesia.
My impression is that her information will likely be misleading, unreliable, and
she is at risk for developing new memories or false memories rather than
accurately recalling what happened prior to the impact.
Cooke relies on this portion of Dr. Ward‟s report in arguing that Alison was incompetent to
testify at trial because she likely had incurred false memories prior to trial. However, Cooke was
unable to provide the district court with evidence that Alison was subjected to any events that
would have given her false memories, as is his burden. In fact, Officer Kenneth Smith testified
at trial that he did not even interview Alison until February 11, 2003, almost three weeks after
Dr. Ward authored his report. Cooke presents no evidence that Dr. Ward‟s opinion that Alison
was susceptible to forming false memories was still his opinion three weeks later during the
initial police interview. Not only did Cooke fail to meet his burden of producing evidence to
prove the basis of his claims, much of the available evidence is contrary to his claims. Indeed,
Alison‟s brother testified that the doctors would not let police interview Alison before Officer
Smith‟s interview because of her brain injury, suggesting that the doctors deemed her competent
at that time and authorized the interview.
Though Cooke references various portions of the trial record that indicate Alison had
contact with family and friends at the hospital to support his argument that she acquired false
memories, these excerpts in no way indicate the topic of conversation was the cause of the
accident or give any other indication that Alison‟s memory was tainted. Cooke also
misconstrues portions of Alison‟s testimony in an effort to support his argument. For example,
Cooke cites to the following exchange in Alison‟s post-conviction testimony for the proposition
that subsequent events modified Alison‟s memory:

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 [Alison]: What I remember is going down the street, driving fast, hitting a
big huge bump, us flying up, landing, and then speeding again.
Q: Okay. Do you recall a ditch in the path of the car?
A: No.
Q. Do you remember what caused the big bump?
A. From looking at the accident scene afterwards, yes.
Q. What was your recollection?
A. It was a ditch.
Cooke‟s reliance on this testimony is misplaced. A fair reading of the exchange indicates that
Alison testified that she did not see a ditch but knew that a ditch caused the bump by looking at
the accident scene afterwards. This does not indicate her memory was altered; to the contrary
had she acquired a false memory, she would have answered that she remembered seeing the ditch
cause the big bump, not that she acquired that knowledge by subsequent investigation.
Furthermore, the medical report was created five months prior to trial and contains no
opinion that Alison would not be competent to testify after five months of recovery. Although
Alison‟s affidavit and letter assert that she had no memory of trial, that she believed her
“memory state” was faulty at the time of trial, and that she did not feel she was competent to
understand what was going on at the time of trial, she refuted these statements in her post-
conviction evidentiary testimony. Although Alison‟s testimony at the hearing was confusing and
unclear at times, she did indicate that her testimony at trial was accurate to the best of her
knowledge. At best, as Cooke admits, Alison gave contradictory accounts of whether she
believed herself to have been competent to testify given her memory problems. This inconsistent
opinion, though potentially sufficient to cast some doubt, could properly be considered by the
trial court as insufficient evidence to prove that more likely than not Alison‟s weak memory was
so impaired that it rendered her incompetent to testify. Therefore, based on all the evidence
before it including Alison‟s testimony at the hearing, the trial court did not abuse its discretion in
finding that Cooke had not met his burden of proving by a preponderance of the evidence that
Alison was an incompetent witness.
2. Ineffective assistance
Cooke next argues that his trial counsel was ineffective because counsel failed to make a
motion to exclude Alison‟s testimony on the basis of her incompetency, failed to adequately
investigate the medical evidence regarding her incompetency, either by personally reviewing
Dr. Ward‟s report or calling him as a witness, and failed to cross-examine Alison regarding false
memories.
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 To prevail on an ineffective assistance of counsel claim, the defendant must show that the
attorney‟s performance was deficient, and that the defendant was prejudiced by the deficiency.
Strickland v. Washington, 466 U.S. 668, 687 (1984); Hassett v. State, 127 Idaho 313, 316, 900
P.2d 221, 224 (Ct. App. 1995). To establish a deficiency, the applicant has the burden of
showing that the attorney‟s representation fell below an objective standard of reasonableness.
Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988); Suits v. State, 143 Idaho 160,
162, 139 P.3d 762, 764 (Ct. App. 2006). To establish prejudice, the applicant must show a
reasonable probability that, but for the attorney‟s deficient performance, the outcome of the trial
would have been different. Aragon, 114 Idaho at 761, 760 P.2d at 1177; Suits, 143 Idaho at 162,
139 P.3d at 764. Bare assertions and speculation, unsupported by specific facts, do not make out
a prima facie case for ineffective assistance of counsel. Roman v. State, 125 Idaho 644, 649, 873
P.2d 898, 903 (Ct. App. 1994).
In determining whether an attorney‟s failure to pursue a motion in the underlying
criminal action constitutes ineffective assistance of counsel, this Court may consider whether the
motion would have been successful. Sanchez v. State, 127 Idaho 709, 713, 905 P.2d 642, 646
(Ct. App. 1995); Huck v. State, 124 Idaho 155, 158, 857 P.2d 634, 637 (Ct. App. 1993). If this
Court determines that the motion, if pursued, would not have been granted by the trial court, then
generally counsel will not be found deficient for failing to pursue it and the petitioner could not
have been prejudiced by the lack of pursuit. Sanchez, 127 Idaho at 713, 905 P.2d at 646; Huck,
124 Idaho at 158-59, 857 P.2d at 637-38.
Tactical or strategic decisions of trial counsel will not be second-guessed on appeal
unless those decisions are based on inadequate preparation, ignorance of relevant law, or other
shortcomings capable of objective evaluation. Suits, 143 Idaho at 162, 139 P.3d at 764; Howard
v. State, 126 Idaho 231, 233, 880 P.2d 261, 263 (Ct. App. 1994). Cross-examination strategy is a
tactical decision. State v. Payne, 146 Idaho 548, 563 n.2, 199 P.3d 123, 138 n.2 (2008); State v.
Osborne, 130 Idaho 365, 373, 941 P.2d 337, 345 (Ct. App. 1997). When reviewing a claim of
inadequate trial preparation, the defendant must show that a more thorough investigation would
have produced a different result at trial. Parrott v. State, 117 Idaho 272, 275, 787 P.2d 258, 261
(1990). In Parrott, the defendant asserted his trial counsel failed to conduct an investigation
into, among other things, the victim‟s veracity and prior sexual conduct. Id. The Supreme Court
noted that even if it accepted the defendant‟s allegations that his attorney‟s pretrial investigation

16
was deficient, the defendant had not shown that his trial counsel would have discovered evidence
concerning the victim‟s lack of veracity or her reputation for promiscuity. Id. Therefore, the
defendant could not show that the lack of trial preparation would have produced a different result
at trial, and thus could not show prejudice. Id.
In this case, Cooke has not shown that his trial attorney‟s performance was deficient or
that he was prejudiced by any alleged deficiency. As we have already determined that no
evidence suggests Alison was incompetent to be a witness at the time of trial, any motion to
exclude her from being a witness would not have been successful. Therefore, in accordance with
the principles set out in Sanchez and Huck, Cooke‟s trial counsel cannot be found deficient, and
Cooke cannot be said to have been prejudiced, for the failure to pursue a motion that would not
have been granted.
Additionally, although cross-examination is a tactical decision that we would not
normally second-guess on appeal, Cooke argues that the deficiency in cross-examination resulted
from inadequate trial preparation. Cooke is not concerned that his trial counsel‟s cross-
examination was insufficient to point out that Alison had a faulty memory, rather the crux of
Cooke‟s argument is that trial counsel should have been prepared to cross-examine Alison about
the potential for her to have developed a false memory. However, Cooke has only made
allegations that a more thorough investigation was warranted because such investigation had the
possibility of showing that Alison was subjected to outside influences that may have resulted in
false memories. Like the defendant in Parrott, Cooke has not produced any evidence that his
trial counsel would have actually discovered outside influences or that such influences actually
caused Alison to create false memories. Indeed, Cooke simply relies on the medical report that
was created almost three weeks before any formal interview concerning the car crash. He did
not introduce any other evidence that family members or friends who were with her at the
hospital during this memory-sensitive time were introducing false memories concerning the
incident. Furthermore, Alison‟s opinion as to her own competence has been inconsistent at best
and does not raise Cooke‟s proof to a level beyond mere speculation. This argument is the sort
of bare assertion and speculation, unsupported by facts, which this Court rejected in Roman. As
Cooke has not shown any prejudice, the district court did not err in concluding that he had not
met his burden of establishing ineffective assistance of counsel.
III.

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 CONCLUSION
Because we find that the district court did not err in allowing evidence of Cooke‟s past
threats and that the prosecutor did not commit misconduct in closing argument rising to the level
of fundamental error, we affirm the district court‟s judgment of conviction. Also, as we hold that
the trial court did not err in determining Cooke failed to meet his burden of proving Alison was
an incompetent witness or that he received ineffective assistance of counsel, we also affirm the
partial denial of Cooke‟s post-conviction petition.
Judge GUTIERREZ and Judge GRATTON CONCUR.

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