Arizona court upholds conviction in Tucson shootings

A claim by Dominick Cooke that he could not be convicted of multiple charges in a Tucson road rage case because there was only one bullet was rejected by the state Court of Appeals in a new ruling.

Cooke is simply misreading the law, said appellate judge Jeffrey Sklar, writing for the unanimous court.

That means multiple aggravated assault convictions from the 2021 road rage incident that injured 5-year-old twin girls are upheld.

According to court records, Cooke was a passenger in a vehicle when he shot into the car driven by the girls’ parents in the area of ​​North Dodge Boulevard and East Grant Road.

After a verbal altercation, Cooke fired a single shot into the driver’s side door of the family’s pickup truck, the bullet shattering one of the twin’s shin bones before it ricocheted and crushed the other twin’s arm.

Police eventually found the sedan and identified Cooke as the gunman.

Cooke was eventually found guilty of four counts of aggravated assault and other related charges, some of the counts to be served consecutively, for a cumulative total of 48 years.

On appeal, Cooke called the convictions “multiple” because they all stemmed from a single incident. That, Cooke argued, violated the double jeopardy clauses of the US and Arizona constitutions because he was effectively punished multiple times for the same act.

The issue, Sklar explained, concerns what Arizona courts have determined is an “admissible unit of prosecution.”

What Cooke was arguing, the judge said, is that the aggravated assault law creates a “driven” prosecution unit.

“In other words, he argues that each ‘use’ of a deadly weapon is a separate crime,” Sklar said. “It follows, he argues, that because he fired only one shot, he was eligible for only one conviction, regardless of how many occupants were in the truck or how many victims the bullet struck.”

The flaw in that, the judge said, is that that’s not how the law of aggravated assault is worded. That law, Sklar explained, makes it a crime to use a deadly weapon on “another person.”

“Thus, under these circumstances, firing a single shot constitutes multiple aggravated assaults with a deadly weapon,” the judge said. “In other words, a defendant commits a separate aggravated assault with a deadly weapon on each victim.”

And Sklar dismissed Cooke’s contention that it wasn’t what the legislature intended, saying the statute is “unambiguous.”

The appeals court was further unimpressed by Cooke’s argument that the jury could have found that his girlfriend, who was in the car with him, actually fired the shots. What it would have meant is that the only thing he could have been found guilty of was possessing a deadly weapon that put the parents in reasonable fear of imminent physical harm.

Sklar said there are several problems with this.

First, he said both parents testified that the gun was fired just seconds after Cooke held it, suggesting it did not change hands.

“The jury also heard a recorded prison call from Cooke asking his girlfriend to confess to the shooting,” the judge said.

“After that call, the girlfriend — who by then was Cooke’s wife — testified that she picked up the gun and accidentally ‘set the gun off,'” Sklar wrote. “This was even though she had previously told police she did not fire the gun.”

Under the circumstances, the appeal judge said, no reasonable jury could have accepted Cooke’s argument and concluded that his girlfriend fired the gun.

The appeals court, however, said there was insufficient evidence to support separate verdicts of aggravated assault causing temporary but substantial disfigurement related to the bullet that grazed a child’s arm.

And the judges also overturned a finding that the offenses constituted a “dangerous offense against children”.

This requires a separate finding by a jury that a defendant “focused on, directed at, targeted, or aimed at a victim under the age of 15.” Arizona law states that anyone convicted of such a crime must serve each day of their sentence with no possibility of early release.

But Sklar said the jury was never asked to conclude that what Cooke did fit that definition — and never made an actual finding that it applied. That, he said, made the trial judge’s day-to-day sentence incorrect.

All of which sends the case back to court to recalculate the 48-year sentence and indicate that Cooke is now entitled to earned release credits.