Cooper v. Chapman

• Decision Date: 17 August 2020
• Docket Number: No. 18-1391,18-1391
• Citation: 970 F.3d 720
• Parties: Wilbern Woodrow COOPER, Petitioner-Appellant, v. Willis CHAPMAN, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

970 F.3d 720

Wilbern Woodrow COOPER, Petitioner-Appellant,

v.Willis CHAPMAN, Warden, Respondent-Appellee.

No. 18-1391

United States Court of Appeals, Sixth Circuit.

Argued: April 16, 2020

Decided and Filed: August 17, 2020

Rehearing En Banc Denied October 13, 2020

JOHN K. BUSH, Circuit Judge.

Wilbern Woodrow Cooper petitioned for habeas corpus on the ground that his first-degree felony murder conviction in Michigan state court violated Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He contends that a custodial confession he gave in 2010 to the 1978 murder of David McKillop should have been excluded from evidence. We hold that the district court properly denied habeas relief because the Michigan trial court's admission of the confession was not an error that rose to the level of actual prejudice. We therefore AFFIRM the district court's denial of Cooper's habeas petition.

I.

A. The Murder of David McKillop

In September 1978, twenty-two-year-old David McKillop was brutally murdered in Farmington Hills, Michigan. Officers discovered McKillop's body with his hands bound behind his back by an electrical cord and with seven gunshot wounds to his head.

For twenty-eight years McKillop's family had no answer as to who had murdered David. This changed in 2006, when Billy Joe Lolley, McKillop's former real estate agent and neighbor, came forward to the police with a valuable clue. Lolley believed he was terminally ill and wanted to clear his conscience.

Lolley had known Cooper in 1978 both as a neighbor and also through a mutual acquaintance, Donny McKitty. (R. 5.19; 5/9/12 Pros. Br. Mich. Ct. App.; Page ID 1186.) According to Lolley, Cooper was known by the nickname "Boo Boo" and was involved with a local gang-affiliated businessman, John Anderson. (Id ., Page ID 1186-87.) Lolley was not part of the gang, but "just liked to party" with them on occasion. (Id ., Page ID 1191.) Lolley also had known McKillop, who had been the real estate agent for Lolley and his wife. (Id ., Page ID 1220.) Most critically relevant, Lolley revealed that back in 1978 Cooper had approached him with a proposal. According to Lolley, Cooper said that he had been paid $3,000 to kill someone, and he in turn offered Lolley $1,500 to be his driver when Cooper made the hit. (5/5/11 Tr., R. 5.13, Page ID 766-67, 769). Lolley told the officers that he had declined Cooper's offer because he thought Cooper was kidding. (Id ., Page ID 766, 774).

But it was no joke. Cooper later told Lolley that he had, in fact, killed someone. Cooper shared chilling details, according to Lolley, which included McKillop's being tied up, forced to lie on the floor with a pillow over his head, and then being shot six to nine times in the head. (Id. , Page ID 766-67, 769.). But it was all for naught. Lolley claimed that Cooper had said he had mistakenly killed the wrong person. The real target of the crime was not McKillop, but rather McKillop's roommate, Paul Jenkins, because he owed money to Anderson. (Id ., Page Id 768.). Accord People v. Cooper , No. 304620, 2013 Wl 2223896, at *1 (Mich. Ct. App. May 21, 2013). At the time, Jenkins's business, Landmark Realty, was struggling with debts. (R. 5-19; 5/9/12 Pros. Br. Mich. Ct. App.; Page ID 1186.) Jenkins knew Anderson. However, at trial, Mr. Jenkins denied that he had owed Anderson—or anybody—any money related to Landmark, and he denied that he had dealt drugs through or with Anderson. (Id ., n. 4., 5.) Jenkins also claimed that people who had rented property from him had owed him money. (Id ., n. 4) However, Ms. Frazer, another witness who knew Jenkins, contradicted his statements. She claimed that in September 1978, Jenkins was worried about paying money back to "a loan shark or something." But Jenkins denied that he had ever told Frazer that he owed somebody a lot of money, and he denied that he had dealt drugs through or with Anderson. (Id ., n. 5.)

B. Non-Custodial Interviews

1. December 2006 Interview

After Lolley came forward, police reopened the investigation of McKillop's death and reached out to Cooper in December 2006 for questioning. He agreed to be interviewed at the Bay City police station, where he met with Detectives Richard Wehby and Mark Haro. (5/5/11 Tr. R. 5.13, PageID 796.)

At the beginning of questioning, Wehby and Haro informed Cooper that he was not under arrest, and therefore he could leave at any time. (Id ., PageID 796-97; 5/6/11 R. 5.14, PageID 817). What the detectives did not reveal to Cooper, however, was the nature of the investigation. Without these details on hand, Cooper was friendly and talkative. (5/5/11 Tr., R. 5.13, Page ID 797-98). He explained to the investigators that during the 1970s, he lived in Anderson's basement and that his landlord sold stolen property and facilitated narcotics transactions. (Id .) According to Cooper, he would "never refuse a request" from Anderson (id ., Page ID 801), whether it be to break into houses or do "whatever" he was asked to do. As Cooper explained, "he was trying to prove himself[.]" (Id. , Page ID 798-99, 801). However, as Cooper further explained, his behavior changed following several events in his life, which served as an "eye opener" that he would need to alter his lifestyle. (Id ., Page ID 799-800.) Cooper did so, he claimed, by joining the military and becoming "an assassin." (Id. , Page ID 799-800; 5/6/11 Tr. R. 5.14, Page ID 819.)

At this point in the interview, Detective Wehby asked Cooper directly if he had ever killed anyone. Suddenly, Cooper became far less talkative. He seemed evasive and answered tersely that he had not killed for money. (5/5/11 Tr., R. 5.13, Page ID 803; 5/6/11 Tr., R. 5.14, Page ID 819.) He added that he had never held anyone down to be beaten up or killed. (5/5/11 Tr., R. 5.13, Page ID 803.)

The detectives then referenced Jenkins and McKillop, and the interview took a sudden turn. Cooper's demeanor seemed to change, according to police testimony. He suddenly sat up in his chair. His skin now was flushed, and he appeared nervous. (Id ., Page ID 800). Detective Wehby informed Cooper that police had information that he was responsible for the homicide and had been paid to kill someone, but he had accidentally killed the wrong person. (Id ., Page ID 801, 803). According to Wehby's testimony, Cooper "never denied" these accusations, but rather simply "kept deflecting" the statements, saying "oh I don't recall that," and "I wouldn't have had anything to do with that." Based on these noticeable dodges, it appeared to the detectives as if Cooper was trying to change the subject. (Id ., Page ID 801). Then, for the first time in the interview, Cooper indicated he had had a "falling out" with Anderson and Anderson's affiliates. He also began to speak negatively about the group, seeming to imply that its members were trying to pin the murder on him. (Id ., Page ID 803).

Following this exchange Cooper refused to provide a DNA sample, even though he had initially agreed to do so. (Id ., Page ID 801.). According to Detective Wehby, Cooper also appeared to be taking deliberate measures to avoid leaving DNA evidence. He put his used cigarette stub in his shirt pocket after each smoke break. (Id. , Page ID 801-02.) He broke up his Styrofoam cup and placed the pieces in his pockets. (Id. ) He also put into his pockets the paper towels he had used during bathroom breaks. (Id. )

As the interview ended Cooper informed Detective Wehby that if it was the wrong guy who got killed, Cooper felt truly and deeply sorry for the victim's family; however, Cooper added that if it was the right guy, then that guy got what he deserved. (Id. , 5/6/11 Tr., R. 5.14, Page ID 820.)

2. January 2010 Interview

In January 2010, Cooper agreed to take part in another interview with the police.¹ (5/5/11 Tr., R. 5.13, Page ID 804; 5/6/11 Tr., R. 5.14, Page ID 819-20.) During this questioning Cooper inquired about both the availability of immunity from prosecution in exchange for his cooperation and the application of the Sentencing Guidelines. (5/5/11 Tr., R. 5.13, Page ID 804.) He also told detectives: "I can't say anything right now because if I say anything right now I know you'll have to arrest me on the spot." (Id .) Later in the interview, the detectives told Cooper that they believed he had committed the murder. To this, Cooper responded, "hypothetically let's say [Anderson] ... put me up to this. I broke into the house. I shoot the guy, is that what you're saying?" When Detective Wehby answered "[y]es," Cooper reportedly "just smiled." (Id. , Page ID 805). However, he did not make any denials of his involvement. Subsequently, though, Cooper asked the detective if they had identified a gun from the murder. When the detectives responded no, Cooper stated: "well then all you got is circumstantial evidence." (Id. , Page ID 805-06.)

Finally, Cooper informed police that he wished to end the interview, go home, and make preparations with his wife for what was coming, including transferring property into her name. (Id. , Page ID 806). However, because the detective now had a warrant, prior to Cooper leaving, they were able to collect a DNA sample from him. They also advised him that he would be arrested at their next encounter. (Id. ; 5/6/11 Tr., R. 5.14, Page ID 820.)

C. Custodial Interviews

1. First March 2, 2010 Interview

On March 2, 2010, Cooper was arrested in Bay City. (5/5/11 TR., R. 5.13, Page ID 806; 5/6/11 Tr., R. 5.14, Page ID 820). Detectives Wehby and Scott Rzeppa began Cooper's first custodial interview at approximately 5:10 pm that day (3/2/10 Tr., R. 1.5, Page ID 119.).² They advised him of his constitutional rights, which he waived both verbally and in writing. (5/5/11 Tr., R. 5.13, Page ID 807; Appellee's Br. appendices A and B, R. 5.19, Page ID 1226, 1228). Thereafter, through the course of the interview, Cooper admitted to having gone with several other individuals on three occasions to the house where McKillop's murder had...