Cooper v. Sec'y

• Decision Date: 21 July 2011
• Docket Number: No. 09–12977.,09–12977.
• Citation: 646 F.3d 1328,23 Fla. L. Weekly Fed. C 131
• Parties: Richard COOPER, Petitioner–Appellant,v.SECRETARY, DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

646 F.3d 1328

23 Fla. L. Weekly Fed. C 131

Richard COOPER, Petitioner–Appellant,

v.SECRETARY, DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents–Appellees.

No. 09–12977.

United States Court of Appeals, Eleventh Circuit.

July 21, 2011.

George H. Kendall(Court–Appointed), Samuel Spital(Court–Appointed), Squire, Sanders & Dempsey, LLP, New York City, Stephen F. Hanlon, Laura A. Fernandez, Holland and Knight, LLP, Washington, DC, Mark S. Gruber(Court–Appointed), Capital Collateral Regional Counsel–Middle Region, Tampa, FL, for Petitioner–Appellant.Carol M. Dittmar, Tampa, FL, for Respondents–Appellees.Appeal from the United States District Court for the Middle District of Florida.Before MARCUS, PRYOR and BLACK, Circuit Judges.BLACK, Circuit Judge:

Richard Cooper, a Florida death-row inmate, appeals the district court's denial of his 28 U.S.C. § 2254petition for writ of habeas corpus.Cooper was granted a certificate of appealability on four issues; however, this opinion addresses only two of the issues: (1) whether trial counsel was ineffective at the penalty phase because counsel failed to investigate and present mitigating evidence; and (2) whether Cooper is entitled to an evidentiary hearing on his competency to stand trial.¹

Our primary focus in this opinion is on the first issue—whether Cooper's trial counsel was ineffective at the penalty phase because counsel failed to investigate and present mitigating evidence.We must determine whether there is a reasonable probability that, if the totality of Cooper's evidence available in mitigation had been heard, the sentencing jury and judge “would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.”Strickland v. Washington, 466 U.S. 668, 695, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674(1984).In making this determination, we are required to “consider the totality of the evidence before the judge [and] jury.”Id.Therefore, we will detail the evidence presented to the jury and judge at both the guilt and sentencing phases of Cooper's trial.We will then set forth the mitigating evidence presented at the postconviction evidentiary hearing to determine whether the absence of such evidence at sentencing undermines our confidence in Cooper's sentence of death.

I.FACTUAL AND PROCEDURAL BACKGROUND

In the early morning hours of June 18, 1982, the Clearwater Police Department received a phone call from a tearful, frightened eight-year-old boy named Chris Fridella.He said that robbers had come into the house, and that his father was dead.The call was traced to 6351 143rd Avenue, a small, somewhat isolated home in the High Point area of Pinellas County, Florida.The Sheriff's Office responded and found Chris, who had been left unharmed, and the bodies of three men: Steven Fridella—Chris's father; Gary Petersen—Chris's uncle; and Bobby Martindale—a friend who lived with them in the house.The men had been killed with shotguns.They were lying face down on the living room floor, their hands bound behind them with duct tape.

Approximately seven months later, Cooper and three others were arrested and charged with the murders of Fridella, Petersen, and Martindale.

A.Trial

Cooper's trial was held over five days, January 10–14, 1984.The guilt phase of the trial lasted four days.The State called 16 witnesses.Cooper called no witnesses and did not testify on his own behalf.

1.Guilt phase

Detective John Halliday testified he arrived at the crime scene at approximately 3:50 a.m. on June 18, 1982.Chris was in the northeast bedroom of the home, and was removed from the house as soon as possible.²

Sergeant Jarrell Britts, of the Pinellas County Sheriff's Office, testified that upon arriving at the crime scene, the television was playing at full blast.He and one other deputy walked up to the front of the house, while another deputy went to the rear of the house.He looked in through the front windows and observed three men lying dead on the floor.The men had been shot, and their hands were taped behind their backs.Some shotgun shells were found on the front porch.A technician covered the shells with plastic because there was a torrential downpour that night.Inside, the house had been ransacked.

The crime went unsolved for seven months.Detective Halliday testified that on January 15, 1983, he received a call from Robin Fridella, the ex-wife of Steven and mother of Chris.She gave him information that was not of public knowledge about the crime.The information provided led him to believe he should interview Terry Van Royal, J.D. Walton, and Cooper.He, along with Detective Ron Beymer, first met with Cooper on January 20, 1983.After Cooper was advised of his Miranda rights, he confessed to his role in the crime.³

a. Cooper's first confession

Detectives Beymer and Halliday testified regarding Cooper's first confession.Cooper explained that he, Van Royal, Walton, and Jeff McCoy had planned for about a week to come from Hernando, Florida to the Clearwater, Florida area to rob the three victims of money, cocaine, and other drugs, tape up the victims, and then leave them.On June 17, 1982, at 11:30 p.m., the four co-defendants⁴ met at Walton's house.They had masks, gloves, two shotguns, a .357 Magnum, and a .22 caliber rifle in the trunk of a 1961 Chevelle.On their way to Clearwater, they were stopped by a policeman because they had a taillight out.It was raining very hard, and the policeman gave them only a verbal warning.When the four co-defendants arrived at the location of the murder, they parked on the roadway at the end of the long driveway.McCoy remained in the vehicle, while Cooper, Walton, and Van Royal proceeded to the trunk of the car to put on their masks and gloves.Cooper claimed he grabbed a shotgun belonging to McCoy, although he was unsure what type of shotgun it was.Van Royal grabbed his own Mossberg shotgun, and Walton grabbed the .357 Magnum, which also belonged to McCoy.They had to walk approximately half of a block to get to the residence.

Walton lowered himself to the squatting position and opened the unlocked door to the residence.Walton entered the home first, followed by Cooper and Van Royal.When they entered the house, Cooper first taped up Chris Fridella and took him into the bathroom.All of the adults in the house were brought into the living room.Cooper stood guard over them with his shotgun while Van Royal taped them up and laid them on the floor.He and Van Royal went through the victims' wallets, and found only $2.00.Walton was ransacking the house at this time, looking for drugs and money.Cooper went to the back bedroom where he found Walton, and Walton told Cooper that “we're going to waste them.”Cooper then walked back in the living room to inform Van Royalthey were going to kill the victims.Van Royal said that he was not going to kill anybody.

Cooper stated that as he and Van Royal were standing by the doorway of the living room, Walton came into the living room and went over to Steven Fridella.Walton pointed his .357 Magnum at Fridella's head and started pulling the trigger, clicking it, and trying to get it to fire.Walton pulled the trigger back three times.Cooper said it appeared as though the weapon was not firing.Cooper had previously seen Walton put a shell into the .357. After trying to get it to fire three times, Walton started screaming, “shoot him, shoot him” multiple times.At that point, Van Royal fired his shotgun three to four times.

Cooper claimed he fired his shotgun one time, and then started running out of the house.Walton was still in the house at that time.Walton ran out of the house, yelled to Cooper that one of the victims continued to move, and called Cooper back inside.Cooper went back to the doorway and fired again.Cooper stated he fired at Fridella's head and left the house.At that point, the four co-defendants left in their vehicle and headed back to Citrus County, Florida.

Detective Beymer testified Cooper was very matter-of-fact and unemotional during this first confession.He had also interviewed Walton, McCoy, and Van Royal.Detective Beymer testified Walton initially appeared very nervous and meek, although he became calm later in the interview.He further recalled both McCoy and Van Royal crying during their interviews.

b. Cooper's second confession

Detectives Beymer and Halliday testified they interviewed Cooper again on January 24, 1983.Cooper changed his story somewhat from his first confession.In this second confession, Cooper disclosed he did not shoot Chris Fridella because on the co-defendants' trip to Pinellas County to commit the crime, Walton stated he did not want any harm to come to the little boy.Later in the second confession, Cooper changed the timing of the comment and said the conversation in which Walton told them not to harm Chris happened once they got to Fridella's house.Further, instead of McCoy staying in the car, Cooper revealed McCoy came into the house with them, wearing a mask and gloves and armed with a .22 caliber rifle.Cooper claimed McCoy taped up Chris Fridella and the three victims, while he and Van Royal stood over the victims with their shotguns.Walton told McCoy to get out of the house and go back to the car before the shooting began.Cooper related he had not told them the truth about McCoy's involvement earlier because they had all made a deal not to get McCoy involved in the incident.

Detective Halliday testified Cooper also changed his story to reflect that instead of Van Royal stating he did not want to kill anyone, it was Cooper himself who made that statement.After Walton informed him they were going to “waste them,” Cooper stated he did not want to kill anyone, and he went to the living room and told Van Royalhe was not going to kill anybody.Another change from the first confession was that instead of $2.00 being taken from the wallet,...