Cooper v. Taylor

• Decision Date: 08 December 1995
• Docket Number: No. 93-7352,93-7352
• Citation: 70 F.3d 1454
• Parties: Kamathene Adonia COOPER, Petitioner-Appellant, v. P. Douglas TAYLOR, Warden; T. Travis Medlock, The Attorney General of the State of South Carolina, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1454

70 F.3d 1454

Kamathene Adonia COOPER, Petitioner-Appellant, v. P. Douglas TAYLOR, Warden; T. Travis Medlock, The Attorney General of the State of South Carolina Respondents-Appellees.

No. 93-7352.

United States Court of Appeals Fourth Circuit.

Argued July 13, 1995.

Decided Dec. 8, 1995.

Rehearing En Banc Granted; Opinion Vacated Jan. 26, 1996.

ARGUED: Bonnie Ilene Robin-Vergeer, Supervising Attorney, Appellate Litigation Program, Georgetown University Law Center, Washington, D.C., for Appellant. Donald John Zelenka, Chief Deputy Attorney General, Columbia, South Carolina, for Appellees. ON BRIEF: Steven H. Goldblatt, Adam G. Ciongoli, Student Counsel, Susan Curtin Gouldin, Student Counsel, Appellate Litigation Program, Georgetown University Law Center, Washington, D.C., for Appellant.

Before NIEMEYER, HAMILTON, and MOTZ, Circuit Judges.

Reversed and remanded with instructions by published opinion. Judge DIANA GRIBBON MOTZ wrote the majority opinion, in which Judge HAMILTON joined. Judge NIEMEYER wrote a dissenting opinion.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

This case involves a state court's decision to admit into evidence in a criminal trial a defendant's lengthy and detailed taped confession made without assistance of counsel, even though the defendant had twice requested counsel. After a short trial in which the prosecution heavily relied on the taped confession and the court observed that the outcome of the case "hinge[d]" on it, a jury convicted the defendant of murder and forgery. These convictions were sustained on direct appeal and the defendant sought and was denied post-conviction relief in state court. He then petitioned for a writ of habeas corpus. Upon consideration of the State's ¹ motion for summary judgment, the magistrate judge found that the state court had erred in admitting the tape and transcript of the confession. But, in view of testimony as to two brief confessions made by the defendant prior to the full taped confession, the magistrate judge found this error harmless and so recommended that the application for habeas relief be denied. After de novo review, the district court accepted that recommendation and granted summary judgment in favor of the State.

The determinative issue before us is whether the state court's error in admitting the taped confession was harmless. Because, after careful consideration of the entire record, we find it "impossible to conclude" with any "fair assurance," Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946), that the error in admitting the tape and transcript of this confession did not have a "substantial and injurious effect or influence" on the jury's verdict, we cannot hold this error harmless. Id. at 776, 66 S.Ct. at 1253; see also O'Neal v. McAninch, --- U.S. ----, ----, 115 S.Ct. 992, 995, 130 L.Ed.2d 947 (1995); Brecht v. Abrahamson, 507 U.S. 619, ----, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993) (adopting standard set forth in Kotteakos ). Accordingly, we reverse and remand this case to the district court, with instructions to grant the writ of habeas corpus.

I.

The evidence presented during the state proceedings established that Rheupert W. Stewart was found murdered in his house in Lake City, South Carolina, on Saturday, December 1, 1984. At the time of his death, Stewart was wearing a bathrobe over his shirt and slacks, and the right rear pocket of his pants had been turned out. The den, where his body was found, was in disarray with pieces of a broken wooden chair scattered around his body. The autopsy revealed that Stewart had been beaten with a blunt object and stabbed with a knife in the head and chest, and that the cause of death was a knife wound to his head. After investigation, the police concluded that Stewart had been murdered sometime the previous day, November 30, 1984, but neither the crime scene nor the autopsy yielded any evidence of the identity of the murderer.

On Monday, December 3, 1984, the manager of Thomlinson's, a Lake City department store, informed the police that he had cashed a $289 check drawn on Stewart's account for Kamathene Adonia Cooper in the early afternoon of November 30. After further investigation, the police obtained a warrant to arrest Cooper for forgery. Upon learning that Cooper was at the state unemployment office in the neighboring city of Florence, police officers went there to detain him until the warrant could be served on him. An officer read Cooper his rights from a Miranda warning card and Cooper responded affirmatively when asked if he understood his rights. When asked if he had any questions, Cooper responded, "yes, what forgery?" Cooper said nothing else.

Shortly thereafter, Chief Brumbles, Officer Thomas McKenzie, and Officer Thomas Carey, all of the Lake City Police Department, and Agent Gerald Vause of the South Carolina Law Enforcement Division (SLED) arrived on the scene. Carey, in the presence of Vause and the other officers, served Cooper with the warrant for forgery and again read him his rights from the Miranda card. When Cooper was asked if he understood these rights, he stated he did not want to make any comment. The officers then drove Cooper to the Florence County Sheriff's Department, where Vause (an agent with statewide jurisdiction) re-served Cooper with the warrant and again read him his rights from a Miranda card, purportedly because there was concern that Carey, a Lake City officer, had lacked jurisdiction to serve the warrant in Florence. Although aware that Cooper had already invoked his right to remain silent, Vause nevertheless immediately asked Cooper if he would be willing to go to SLED headquarters in Columbia for a polygraph test; Cooper agreed.

Vause, along with McKenzie, Brumbles, and Carey, took Cooper, in a patrol car, to the Lake City Police Department to arrange the polygraph exam and to drop off Chief Brumbles before continuing to Columbia. All of the officers except Carey went into the station. Carey remained in the back seat of the patrol car with Cooper, who was handcuffed. At that time, Alcoholic Beverage Control Agent, Phillip Grimsley, walked by the patrol car. Grimsley had just learned from Chief Brumbles that the authorities had arrested "an old acquaintance" of his, Kamathene Cooper, on a forgery charge, and that Cooper "was in back of a police car with Officer Carey." Upon seeing Grimsley, Cooper said to Carey: "There goes Phil. I would like to talk with him." Carey then motioned for Grimsley to approach the patrol car. Grimsley "spoke with Kamathene, asked him how he was doing and what was going on. He stated that they've got me for stealing a check and cashing it, but I ain't killed no man." Cooper asked Grimsley to ride with him to Columbia for the polygraph test. Grimsley said he did not think he could, but "asked [Cooper] would he like to talk before they left and he stated that he would."

With Chief Brumbles' permission, Cooper was then taken to a breathalyzer room of the police station by Carey, McKenzie, Vause, Brumbles, and Grimsley. The officers sat down with Cooper to talk, but Cooper indicated that he wished to speak to Grimsley alone and so the other officers left. Grimsley read Cooper his rights from a Miranda card yet again. After initially protesting that he had not "killed no man," Grimsley testified Cooper became upset, began crying, and said "I did it." After further prodding, Grimsley testified that Cooper "told [Grimsley] that he had hit Mr. Stewart three times with a chair;" and that "he had stabbed Mr. Stewart in the head and in the chest." Before Cooper made any further statement, Grimsley asked Cooper if he would be willing to talk to the other officers and provide a taped statement. Cooper agreed.

Vause, McKenzie, and Brumbles returned to the breathalyzer room with Grimsley, and Vause asked Cooper whether he understood the rights that Grimsley had read him. Cooper replied, "yes." Vause then asked Cooper to "briefly tell [him] what happened." According to Vause, Cooper "didn't go into a whole lot of detail at this time," but only said that after he had gone to Stewart's home to discuss fixing the house that he rented from Stewart, he had asked Stewart for a basketball and when Stewart leaned over to pick it up, he hit Stewart with a chair, stabbed him, took Stewart's checkbook and the knife, and threw both behind a warehouse near Lake City. Grimsley testified that he "did not hear the whole statement[ ]" and, in fact, the "only thing" he remembered hearing at this time was that Cooper said he hit Stewart "with the chair three times." McKenzie similarly testified that he "didn't hear exactly everything," but as he "recall[ed]," Cooper said he "hit Mr. Stewart with the chair" and threw the checkbook and knife behind a warehouse in Lake City. ² After Cooper gave what the State acknowledges to be an "abbreviated statement," Brief of Respondents at 13, the officers asked him if he would be willing to go upstairs and make a taped statement. Cooper again acquiesced.

Once upstairs, McKenzie explained that the officers were going to tape Cooper's statement. The following exchange was then recorded:

McKENZIE: This is the statement of Kamathene Cooper. Today's date is 12-3-84. Time is 12:03 p.m.

All right, Kamathene, what I'm going to do is I am going to read you your rights. Do you understand that you--each of these rights you have the right to remain silent. You have the right to remain silent and if you wish to answer any questions Do you wish to--you have the right to remain silent. Anything you say can and will be used against you in a court. You have the right to talk to a lawyer and have him present during any questioning. You have--if you cannot afford a lawyer or hire a lawyer, one will be appointed to you to represent you without any questions, if you wish. If you, if you consent to answer any questions now without a lawyer present, you still...