People v. Cooper

• Decision Date: 06 April 2007
• Docket Number: No. A108723.,A108723.
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Aaron Lyndall COOPER, Defendant and Appellant.

57 Cal.Rptr.3d 389

149 Cal.App.4th 500

The PEOPLE, Plaintiff and Respondent, v. Aaron Lyndall COOPER, Defendant and Appellant.

No. A108723.

Court of Appeal, First District, Division 1.

April 6, 2007.

Certified for Partial Publication^*

James Kyle Gee, under appointment by the Court of Appeal, For Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Bruce Ortega, Deputy Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, For Plaintiff and Respondent.

SWAGER, J.

This case has managed to wind its way back to us for the third time as a result of an order of the United States District Court which granted defendant's petition for writ of habeas corpus, followed by a retrial of the action and jury verdict that for a second time found defendant guilty of first degree murder (Pen.Code, § 187, subd. (a))¹ and kidnapping (§ 207, subd. (a)).² Defendant complains in this appeal that the federal district court's decision in the writ of habeas corpus proceeding is binding under principles of collateral estoppel or law of the case, and precludes the murder conviction. He also argues that he was improperly denied his rights to substitute his appointed counsel and to represent himself, the trial court gave prejudicial instructions concerning his custody status, gave erroneous instructions concerning accomplice testimony, and finally that his murder conviction is not supported by substantial evidence. We conclude that neither collateral estoppel nor law of the case principles apply in the present case, defendant's motions to discharge his appointed attorney and represent himself were properly denied, no prejudicial instructional errors were committed, and the murder conviction is supported by the evidence. We therefore affirm the judgment.

PROCEDURAL HISTORY

The lengthy, protracted path of the case began with a joint jury trial of defendant Aaron Cooper (defendant or Cooper) and his codefendant Fredrick Cross, after which Cooper was convicted of the first degree murder of William Highsmith (§ 187), carjacking (§ 215), felon in possession of a firearm (§ 12021), and kidnapping (§ 207). The jury also found that defendant was armed with a firearm in the commission of the murder, carjacking and kidnapping offenses (§ 12022, subd. (a)). In a separate bifurcated proceeding the trial court found that Cooper had served a prison term for prior conviction of a felony (§ 12021) and that he had been convicted of a serious felony (§ 211) which qualified as a prior strike under section 667, subdivision (e)(1). On March 14, 1996, the trial court sentenced Cooper to a total term of 71 years to life. The jury convicted codefendant Cross of first degree murder, carjacking and kidnapping, and found arming enhancements for each offense to be true. At a hearing on April 18, 1996, Cross was sentenced to a total sentence of 32 years to life.

In the first, consolidated appeal of their convictions, Cooper and Cross challenged the admission into evidence portions of an out-of-court statement of Miltonous Kingdom made to Oakland police officers while he was incarcerated in a Mississippi jail. When the prosecution called Kingdom as a witness at trial, he asserted the privilege against self-incrimination. The trial court admitted a redacted transcript of Kingdom's statement, which identified both Cooper and Cross as active participants in the kidnapping and murder of Highsmith, but also tended to inculpate Kingdom himself as an accessory to the crimes.³ The defendants claimed that Kingdom's statement did not fall within the declaration-against-penal-interest exception to the hearsay rule, and that admission of the redacted statement violated their confrontation rights. We affirmed the convictions for kidnapping and first degree murder in an opinion filed on November 9, 1998. We found that the trial court did not abuse its discretion by finding that the statement as redacted was sufficiently trustworthy to be admissible under Evidence Code section 1230.

After the California Supreme Court denied the defendants' petition for review, on October 4, 1999, the United States Supreme Court granted a petition for writ of certiorari, vacated the judgment, and remanded the case to us "for further consideration" of the admissibility of Kingdom's statement in light of Lilly v. Virginia (1999) 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (Lilly). In our second opinion in this case filed on July 6, 2000, we found "two significant differences from the Lilly decision" that provided a "measure of reliability" of Kingdom's statement, but nevertheless concluded that the statement was inadmissible under the Lilly guidelines, and therefore the trial court erred by admitting it. We proceeded to "examine the record to determine if the error was harmless under the reasonable doubt test of Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705, which governs federal constitutional error." Upon review of the record, we concluded that the murder conviction of Cross must be reversed, but "that the error was harmless beyond a reasonable doubt in the conviction of defendant Cooper for murder."⁴ Our conclusion of harmless error as to Cooper was based upon our examination of the "direct and circumstantial evidence" against him that demonstrated "to us beyond a reasonable doubt that the error did not contribute to the verdict."

The California Supreme Court subsequently denied Cooper's second petition for review, and the United States Supreme Court denied his second petition for writ of certiorari. This court thereafter denied his petition for writ relief.

Cooper then filed an action for writ of habeas corpus in the United States District Court in November of 2002. In a decision filed on April 14, 2004, the district court examined numerous claims of error made by Cooper, but for purposes of this appeal the primary inquiry was again directed at the conceded "Confrontation Clause violation" in the admission of Kingdom's statement, and the prejudice associated with the error. The district court found that the "admission of Kingdom's statement to police had a substantial and injurious effect on the jury's verdict against Cooper," not only "with respect to the murder conviction," but also as "to the kidnapping and carjacking convictions." The court observed that "[although the sufficiency of the evidence is not the standard for determining whether an error resulted in prejudice, [citation], the fact that there was insufficient evidence without the improperly admitted evidence shows how powerfully if affected the jury's verdict of guilt on the murder count." On the erroneous admission of Kingdom's statement, the district court ruled: "Because the Confrontation Clause violation had a substantial and injurious affect on the jury's verdict and the state court's finding of harmless error was an unreasonable application of clearly established federal law, Cooper is entitled to a retrial on all of the charges against him."

The district court also resolved the claim of "a due process violation based on the insufficiency of the evidence." "In determining the sufficiency of the evidence" to support the jury verdict, the court excluded "the improperly admitted statement of Kingdom which should not have been admitted at trial because Cooper was unable to confront him." The district court then embarked upon a wholesale, adverse assessment of the credibility of the witnesses at trial and the inferences drawn by the jury.⁵ The court found that a "rational jury could not have" found "proof beyond a reasonable doubt" when the "improperly admitted evidence" was "excluded from the equation." Therefore, in addition to the prejudicial "Confrontation Clause violation," the court "determined" that "Cooper's right to due process was violated because there was insufficient evidence to support the murder conviction—a determination which shows that [the Confrontation Clause violation] was not harmless error." "In such a case," the court declared, "retrial rather than acquittal is the remedy. `[T]he Double Jeopardy Clause allows retrial when a reviewing court determines that a defendant's conviction must be reversed because evidence was erroneously admitted against him, and also concludes that without the inadmissible evidence there was insufficient evidence to support a conviction.' [Citation.] In other words, the Clause `does not bar retrial after a reversal based on the erroneous admission of evidence if the erroneously admitted evidence supported the conviction.' [Citations.]"⁶ (Cooper v. McGrath (N.D.Cal. 2004) 314 F.Supp.2d 967, 998-999.)

The case thus returned to the superior court for retrial as ordered. Cooper's motions to dismiss the murder charge on grounds of double jeopardy, collateral estoppel, and law of the case were denied both before and during retrial. Following the presentation of evidence, the jury convicted Cooper of first degree murder and kidnapping. Now, over 10 years after the first trial of this action, we have a third appeal before us.

STATEMENT OF FACTS

On August 16, 1995, the "very decomposed" body of William Highsmith, known by the nickname "Coco,"⁷ was discovered in a wooded area of the Oakland hills near Skyline Reservoir. The "bottom part" of the victim's short-sleeve T-shirt had been torn away. A piece of cloth, apparently from the T-shirt, had been tied around his face and mouth so that it separated his teeth; a cloth gag had also been pushed into his mouth. The victim's jacket had been pulled down in the back and around his wrists to restrict the movement of his arms. His pants and boxer shorts had been pulled down to the level of his thighs. Scissors were found a few feet away from the body on the ground.

An autopsy revealed that the victim had died from "a gunshot wound to the head." The bullet...