State v. Cope

• Decision Date: 28 August 2013
• Docket Number: No. 27303.,27303.
• Citation: 405 S.C. 317,748 S.E.2d 194
• Parties: The STATE, Respondent, v. Billy Wayne COPE, Petitioner. Appellate Case No. 2009–143966.
• Court: South Carolina Supreme Court

405 S.C. 317
748 S.E.2d 194

The STATE, Respondent,
v.
Billy Wayne COPE, Petitioner.
Appellate Case No. 2009–143966.

No. 27303.

Supreme Court of South Carolina.

Heard Nov. 13, 2012.
Decided Aug. 28, 2013.

[748 S.E.2d 197]

James M. Morton and Michael B. Smith, both of Morton & Gettys, LLC, of Rock Hill; David I. Bruck, of Washington & Lee School of Law, of Lexington, VA; Steven A. Drizin, of Northwestern University School of Law, of Chicago, IL; and Chief Appellate Defender Robert M. Dudek, of Columbia, for Petitioner.

Attorney General Alan M. Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Donald J. Zelenka, all of Columbia, Solicitor Kevin S. Brackett, of York, for Respondent.

Justice HEARN.

[405 S.C. 324]This case presents us with the brutal sexual assault and murder of twelve-year-old Child. Based on those events, Child's father, Billy Wayne Cope, was convicted of murder,

[748 S.E.2d 198]

two counts of first degree criminal sexual conduct (CSC), [405 S.C. 325]criminal conspiracy, and unlawful conduct towards a child.¹ The court of appeals affirmed Cope's convictions in State v. Cope, 385 S.C. 274, 684 S.E.2d 177 (Ct.App.2009). We granted certiorari to review the court of appeals' opinion and now affirm.

FACTUAL/PROCEDURAL BACKGROUND

The facts surrounding the sexual assault and murder of Child are graphic and profoundly disturbing. Shortly after 6:00 a.m. on the morning of November 29, 2001, Cope called 911 and reported finding Child dead in her bed, apparently from being choked by a piece of her blanket which was wrapped around her neck. When asked if she was breathing or if he had attempted CPR, Cope twice replied that she was “cold as a cucumber.”

The response team arrived and Cope informed them his daughter was dead. When the medical technician asked how long she had been that way, he responded “four hours.” ² Cope also informed him that Child had a history of rolling in her sleep and she choked herself on her blanket.

Police examined the windows and doors and found no signs of forced entry. The house itself was in “extreme disarray,” with clothes and boxes everywhere and roaches and cat feces throughout the house. Additionally, several responders noted that Cope acted strangely and was on his computer when they arrived while his two other daughters were huddled on the couch.

Cope was interviewed several times that day. In his first interview, Cope told police that Child's Youngest Sister went to bed around 9:30 p.m., but he allowed Child and her Middle Sister to stay up later so Child could help Middle Sister with math homework, and they went to bed around 12:30 a.m. Cope said he woke up around 6:00 a.m. and called Child's name [405 S.C. 326]several times, but she did not answer. He went to her room and found her lying on her back with a strip of her blanket wrapped around her neck. Youngest Sister and Middle Sister, who slept in a separate bedroom, came to the doorway, and he told them to go to the living room; then he called 911. Cope stated no one except the family had been in the home that day and he did not hear any noises that night because he sleeps with a CPAP machine for his sleep apnea as well as several fans. He agreed to accompany the police to the hospital so a rape kit could be performed and mentioned that his skin might be under Child's fingernails because she had scratched his back the night before.

When he was again interviewed around noon that day, he told police Child went to bed at 1:00 a.m. Cope also stated that when Child failed to answer him that morning, he initially thought “the rapture” had occurred and she had been taken to heaven. He said he had to kick Child's bedroom door open because it was jammed against her closet door. Cope again informed the police he thought her death was an accident because he did not hear any noise in the night.

Dr. James Maynard, the State's forensic pathologist who performed an autopsy on Child, placed her time of death between 2:00 a.m. and 4:00 a.m. He noted her clothing appeared as if it had been placed upon her by another person, with her bra unhooked and her pants not pulled up all the way. He noted she had injuries to her head consistent with being struck repeatedly, and she had been manually strangled. He further noted that the absence of ligature marks indicated she had not been strangled by the blanket. Although Dr. Maynard found Child on her back, he stated it appeared she was turned several times after her death. He noted she had injuries consistent with a 300–plus–pound man kneeling on top of her.³

[748 S.E.2d 199]

Dr. Maynard further found Child had been brutally sexually assaulted, both vaginally and anally. He observed the severity of the injuries indicated they could not have been inflicted by an erect penis, but must have been from a hard object, such as a dildo or broom handle. Additionally, he noted Child [405 S.C. 327]had a bite mark on one of her breasts. It also appeared she had been cleaned up after the assault.

Dr. Maynard observed that her hymen was absent, as were any remnants to indicate it had been torn during this incident. He stated she had vaginal irritation consistent with past penetration. He further noted evidence of past anal penetration.

The police brought Cope back in for another interview that evening following receipt of the autopsy results. Cope was apprised of some of the facts, including that Child had been sexually assaulted. This interview lasted over four hours and was recorded. This time, Cope stated he had gotten up at 3:00 a.m. to use the bathroom and did not check on Child because her door was closed, but checked on his other two daughters. Cope repeatedly denied any involvement in Child's death and requested that a polygraph test be performed. After the interview, he was arrested and charged with murder as well as three counts of unlawful neglect for the deplorable condition of his home. Police arranged for him to take a polygraph test the following morning.

He met with the polygraph examiner, Michael Baker, around 10:00 a.m. the next morning. During the exam, Baker asked: “did you choke [Child]”; “did you choke [Child] causing her to die”; and “were you in the room when [Child] died”? Cope answered each question in the negative. Baker scored the exam and determined Cope had not answered truthfully. According to Baker, Cope did not act surprised when he was informed he had failed the exam. Cope asked if he could have done it in his sleep, and Baker responded that he did not think that was possible. Cope then stated he “must have done it.”

Cope then proceeded to confess to Baker. He stated he woke up around 3:00 a.m. and went to use the bathroom, after which “he still had an erection,” so he walked into Child's room and began masturbating. Child woke up and said, “Gross, daddy.” Cope, enraged by her comment, jumped on top of her and began swinging his fists, hitting her in the head with his hands and a video game that was in the bed with her. He then began choking her with both hands and the blanket. He stated that he used a broom to penetrate her both anally [405 S.C. 328]and vaginally. Although he acknowledged there was a dildo in the house, he stated he had not used it on Child. Cope then said he deleted some temporary files off his computer, threw the dildo out the back door, and went to sleep. He could not remember what he did with the broom. Cope signed a written statement memorialized by Baker, indicating at the end that “these are the images that come into my mind.” Cope shook hands with Baker after the interview, and Baker noted he seemed relieved to get the information off his chest.

Two days later, on December 2, Cope, who was in the county jail, requested to speak to the detectives again. He was transported to the sheriff's department the next morning and gave the following handwritten statement:

I was asleep in my bed. I had a bad dream about an old girlfriend who had an abortion. The thought of her makes me cringe. In my dream she was telling me that I had an abortion with your child and I told her no. I became so enraged that I got out of bed. All I could hear was that laughing sound. I do not know what came over me, but I snapped and I jumped on the bed and straddled [Child]. I hit her in the head and started choking her. I did not know it was my own daughter until after I had shoved the broom stick in her privates. I fell back jarring me to my senses and I realized it was my daughter. I became so confused that I tried to rid the house of all the stuff that would make me look guilty. I grabbed the broom and I pulled it from her vagina. I pulled her panties and pants up. I did not know it was my own daughter until I fell backwards. The next morning at 6:03 when my alarm and phone rang out I was hoping it was a very bad dream.

[748 S.E.2d 200]

Cope was asked if he would be willing to return to his home, walk the police through, and explain what happened. Police stated he was very willing to do so and he only had to be asked once. The visit to Cope's residence was videotaped. The video depicted the same version of the facts Cope had written in his second confession to the police and included not just Cope's description of the events, but also his reenactment. Cope also indicated in the video he had wrapped the blanket around her neck to make it seem like an accident. He was asked if his semen would be found anywhere on the scene, and he said it would not.

[405 S.C. 329]Later that afternoon, Cope was again interrogated and was presented with some of the facts police had discovered from Child's autopsy report, including the presence of semen. Cope admitted to having masturbated into a cloth and informed the police where they could find it. The interrogation resulted in Cope signing the following statement, memorialized by one of the detectives:

I woke up about three a.m. I went to the bathroom and I went into [Child's] room. I had a hard...