Cooper v. Bergeron
| Decision Date | 13 February 2015 |
| Docket Number | No. 13–1471.,13–1471. |
| Citation | 778 F.3d 294 |
| Parties | Anthony COOPER, Petitioner, Appellant, v. Karin T. BERGERON, Respondent, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
778 F.3d 294
Anthony COOPER, Petitioner, Appellant
v.
Karin T. BERGERON, Respondent, Appellee.
No. 13–1471.
United States Court of Appeals, First Circuit.
Feb. 13, 2015.
Jeanne M. Kempthorne, for appellant.
Todd M. Blume, Assistant Attorney General, with whom Martha Coakley, Attorney General, was on brief, for appellee.
Before LYNCH, Chief Judge, STAHL and HOWARD, Circuit Judges.
Opinion
HOWARD, Circuit Judge.
A Massachusetts jury found Anthony Cooper guilty of armed robbery and armed burglary, and the state trial judge found him to be a habitual offender, see Mass. Gen. Laws ch. 265, § 17 ; id. ch. 266, § 14; id. ch. 279 § 25. Sentenced to life in prison and unsuccessful in his direct appeal, Cooper sought federal habeas relief,
alleging violations of his due process rights under the Fifth and Fourteenth Amendments. See 28 U.S.C. § 2254. In particular, he challenged the state appellate court's determination that the robbery and burglary victim's pretrial identification of his voice on a recorded telephone call was not tainted by an improperly suggestive police procedure, and its holding that his statements to the police were voluntary. The federal district court denied Cooper's habeas corpus petition. We affirm.
I.
We are required to presume that the Massachusetts Appeals Court's description of the facts is correct. 28 U.S.C. § 2254(e)(1) ; Gunter v. Maloney, 291 F.3d 74, 76 (1st Cir.2002). Accordingly, we set forth the facts as drawn from that opinion. See Commonwealth v. Cooper, 878 N.E.2d 581, No. 06–P–329, 2007 WL 4571178 (Mass.App.Ct.2007) (unpublished decision).
Late one night in February 2002, having been asleep on a couch in her Hingham, Massachusetts home, the victim awoke to find a man standing over her and in the process of putting his hands over her eyes. In the brief time before her vision was completely blocked, she saw that the intruder was wearing dark clothing, gloves and a hat. He remained in the residence long enough to take her handbag before leaving.
Although the episode lasted no more than a minute, the man spoke to the victim repeatedly. While still at the couch, he placed a shawl over her eyes and ordered her three times, “Don't get up. Don't move, I have a knife.” He also asked her whether she had any money and twice asked if she was “okay.” When the victim pointed to her handbag, saying, “on my bed,” the intruder instructed her, “Don't move, don't look up.” He retrieved the handbag and asked the victim her name, to which she replied, “Julie.” Returning to the couch, he rubbed her leg with his hand while commenting on her appearance: “Julie, you're very pretty, you have a nice body.” In fear, the victim protested, “No, please just leave.” The man then stated, “Okay, I'm leaving. Don't get up, don't call the police, I'll be watching you through the window.” She then heard him walk toward the door. Once he had gone, she called the police, who arrived quickly, just before 2:00 a.m.
After scouting the area, police officers told the victim that they had noticed a car that “did not belong.” When they took her to the vehicle, she saw her black handbag lying on the ground next to it and some of her belongings spilled on the pavement. She also noticed that money was missing from her wallet and saw that her checkbook and portfolio case were inside the car, along with gloves and a knit hat apparently worn by the intruder.
Later that morning, Cooper called the neighboring Quincy police department and reported that his car had been stolen. The Quincy police immediately notified the Hingham police and also told Cooper to contact the Hingham police. Cooper did so and briefly spoke with a Hingham lieutenant about the purportedly stolen car. Both the exchange between the two departments and Cooper's subsequent call to Hingham were recorded by the Hingham police. We provide some detail about the contents of the recording, as they are central to Cooper's suggestiveness claim.1
The first call begins with a brief dialogue between a Quincy officer and a Hingham dispatcher, in which the former advises that, “we just ran a plate and it came back that you guys queried at two fifteen this morning, so I wondered if you guys wanted it for something?” He provides the license plate information and then states that the vehicle is an “ '88 Olds Cutlass.” The Hingham dispatcher confirms, “Yep, we're looking for him.” The Quincy officer then informs the Hingham dispatcher that the caller is “on the phone with us right now saying that he left his keys in his car and now it's not there.” The dispatcher, in turn, tells a Hingham police lieutenant of the Quincy report, during which laughter is heard in the background. The call is then transferred to the lieutenant, and the recording continues with a conversation between the Quincy officer and the Hingham lieutenant.
The Quincy officer informs the lieutenant, “We have a gentleman on the other line right now ... Anthony Cooper,” and states, “He left his keys in his car and someone took it.” The dialogue continues:
[Hingham lieutenant:] What do you know?
[Quincy officer:] I know, huh, coincidence, isn't it?
[Hingham lieutenant:] Yeah, geeze I'm really shocked! I'm just shocked that it took him so long to call it in, I had a couple of conversations with his wife over that, she had no idea where he was, so, um, why don't you suggest to him strongly that he come to the Hingham Police and have some discussion with us this morning?
[Quincy officer:] You got it. [Hingham lieutenant:] All right.
[Quincy officer:] We'll tell him to come down and see you.
[Hingham lieutenant:] I appreciate it.
At one point, the Hingham lieutenant may be heard laughing, and the tone of both police officers is aptly described as sarcastic at times. The officers soon conclude their conversation.
The recording continues with a second phone call between a Hingham dispatcher and a male caller, Cooper. The caller states, “Yeah, I was just told to call down there,” and, after being briefly put on hold, he informs the dispatcher, “Yeah, my car was stolen last night in Quincy ... [a]nd I just reported it, I got into work and reported it ... [a]nd they said that Hingham police want to talk to me.” The dispatcher transfers the call to the Hingham lieutenant, who receives the stolen car report from the caller. The recording ends with the lieutenant encouraging Cooper to come to the police station, and it includes a reference by the lieutenant to Cooper's lengthy criminal record and a suggestion that a lawyer should accompany him.
The police arrested Cooper later that day, and a detective interviewed him after informing him of his Miranda rights. At the outset, the detective asked Cooper whether he was represented by counsel. Cooper replied that he was not and stated that he wanted to retain a lawyer “closer to home.” At one point during the interview, the detective told Cooper that “if he did not speak with [the detective], he would see to it that D.S.S. [would take] his son away from his ex-wife.” Cooper subsequently told the detective that he had been with a friend named Richard Parker the previous night.
On the day following Cooper's arrest, the victim brought some personal items to the police station, including her handbag. While there, a police detective asked her to listen to a “911 tape” of someone reporting
a stolen car. He did not identify the caller, nor did he tell her of any connection that the call may have had to the home invasion. At the detective's suggestion, she listened to the tape with her eyes closed. He played the recording from the beginning, when the Quincy police first contacted the Hingham police, and continued to play all of that call and the beginning of the call between Cooper and the Hingham police.
As soon as the victim heard the caller's voice on the recording, she immediately recognized it as belonging to the intruder. She opened her eyes, and, shaking, stated, “That's him, that's the guy.” The detective turned off the tape once the victim identified the voice; she did not hear the last part of the recording during which the Hingham lieutenant commented on the caller's lengthy criminal record and the suggestion that he obtain legal counsel.
Before trial, Cooper sought to suppress all in-court and out-of-court identification evidence, as well as his post-Miranda statements to the police. These motions were denied, and the police recording (at least some portion of it, see supra n. 1) and Cooper's statements to the detective were included in the evidence presented to the jury. The victim confirmed her out-of-court voice identification and repeated that identification in court after a portion of the tape was played before the jury. Among the other evidence that the jury heard was testimony that, on several occasions, Cooper had...
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