United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITIONER'S
APPLICATION FOR A WRIT OF HABEAS CORPUS, DENYING A
CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN
FORMA PAUPERIS ON APPEAL
BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE
a habeas case brought pursuant to 28 U.S.C. § 2254.
Following a jury trial in Wayne County Circuit Court,
petitioner was convicted of first-degree murder, Mich. Comp.
Laws § 750.316, felon in possession of a firearm, Mich.
Comp. Laws § 750.224f, and possession of a firearm
during the commission of a felony, Mich. Comp. Laws §
750.227b. In 2010, he was sentenced to life imprisonment
without the possibility of parole, a concurrent term of six
months to five years imprisonment, and a consecutive terms of
two years imprisonment. Petitioner raises claims concerning
the great weight of the evidence, the sufficiency of the
evidence, the effectiveness of trial and appellate counsel,
the conduct of the prosecutor, the jury instructions, and the
legality of a search and seizure of evidence. For the reasons
stated below, the Court shall deny the petition, decline to
issue a certificate of appealability, and dent petitioner
leave to proceed on appeal in forma pauperis.
Facts and Procedural History
convictions arise from his shooting of a man, Ronald Beard,
who was involved with his girlfriend, Chalaunda Latham. The
shooting occurred on a street in Wayne County, Michigan on
May 2, 2010. Defense counsel on direct appeal summarized the
trial testimony as follows:
Late in the evening on Saturday, May 1, 2010, the Defendant,
Darryl Copper, went to the Binford Lounge with Chalaunda
Latham and Tenia Brim. (T1 at 190). Mr. Cooper, Ms. Latham
and Ms. Brim walked to Binford Lounge because it was
“only a mile or two” from the neighborhood where
they lived. (T1 at 190). Ronald Beard was at the Binford
Lounge when Mr. Cooper, Ms. Latham and Ms. Brim arrived. (T1
at 191, 251-252). Mr. Cooper was the boyfriend of Ms. Latham.
(T1 at 248). Mr. Cooper and Ms. Latham were in a relationship
that had been going on for six years. (T1 at 200, 249). Mr.
Beard and Ms. Latham had been friends for thirteen or
fourteen years, and also had an ongoing romantic
relationship. (T1 at 199, 249). Mr. Cooper and Mr. Beard were
aware that Ms. Latham was seeing both of them. (T1 at 237,
249). Ms. Latham had attended a movie with Mr. Beard the day
before. (T1 at 251).
Mr. Cooper, Ms. Latham and Ms. Brim stayed at the Binford
Lounge for about an hour. (T1 at 216). As Mr. Cooper, Ms.
Latham and Ms. Brim were leaving the Binford Lounge, Mr.
Beard threw water on Ms. Latham. (T1 at 191, 253). Ms. Latham
“laughed it off.” (T1 at 191, 253.)
Mr. Beard followed Mr. Cooper, Ms. Latham and Ms. Brim as
they left the Binford Lounge and headed towards Mr.
Cooper's house. (T1 at 192, 199, 217). Mr. Beard
initially followed in his car, but later got out of his car,
and followed on foot as Mr. Cooper, Ms. Latham and Ms. Brim
crossed through fields. (T1 at 193, 257). Mr. Beard was
calling to Ms. Latham, and yelling at her to come back. (T1
at 192-193, 217, 258).
Mr. Cooper and Ms. Latham, with Mr. Beard following, crossed
into a second field, while Ms. Brim stayed on the sidewalk
and did not go into the second field with them. (T1194-195).
Ms. Brim watched Mr. Cooper, Ms. Latham and Mr. Beard in the
field, and testified that she could overhear what they were
saying. (T1 at 194-197). It appeared to Ms. Brim that Mr.
Cooper and Mr. Beard were “about to have a
confrontation, ” but “they never had words with
each other” and she saw no physical contact between the
two men. (T1 at 194, 197, 235). Ms. Latham testified that Mr.
Cooper complained that he had never been disrespected like
that before, and Ms. Brim heard him say this as well. (T1 at
259; T1 at 195).
Ms. Latham stood between Mr. Cooper and Mr. Beard, trying to
prevent them from having a confrontation. (T1 at 195, 197).
Mr. Beard was heavier and taller than Mr. Cooper. (T1 at 254,
264). Both Mr. Cooper and Mr. Beard were telling Ms. Latham
to “come here, ” and “calling her back and
forth.” (T1 at 196).
Mr. Beard slapped or hit Ms. Latham. (T1 at 196, 220, 222,
224, 263). Ms. Latham testified that he pushed or slapped her
hard enough to make her fall down. (T1 at 263, 264). Ms. Brim
testified that she saw Mr. Beard slap Ms. Latham so hard that
she “spinned.” (T1 at 223).
Ms. Latham denied being angry about this, though he had never
hit her before, but she wanted to get away from him or avoid
him by walking away. (T1, 292-293, 295). Mr. Beard was
jealous and acting out of character. (T1, 296; T2, 19).
Ms. Latham testified that Mr. Cooper also slapped her. (T1 at
263-264). Ms. Brim testified that she saw Mr. Cooper push and
shove Ms. Latham. (T1 at 196). After Mr. Cooper slapped (or
pushed) Ms. Latham, she saw a “little pocket
knife” in his hand, “like the kind you get from
the gas station.” (T1 at 264).
The encounter in the field between Mr. Cooper, Mr. Beard and
Ms. Latham ended when Mr. Cooper ran off in the direction of
his house on Bassett Street. (T1 at 198, 222, 265). Mr. Beard
got in his car and drove away. (T1 at 198). Ms. Brim caught
up with Ms. Latham, and they walked as Ms. Brim called
another friend, Shaunte Johnson. (T1 at 198).
Ms. Johnson picked up Ms. Brim and Ms. Latham in her car. (T1
at 199, 266; T2 at 25). Ms. Brim got into the passenger seat,
and Ms. Latham sat in the back. (T1 at 199, 266; T2 at 26).
Ms. Latham used Ms. Brim's cell phone to call Mr. Cooper
several times, but he did not answer. (T1 at 200, 201, 267).
After fifteen or twenty minutes of driving around, Ms. Latham
asked Ms. Johnson to drive to Mr. Cooper house so they could
check on him. (T1 at 225-226; T1 at 201, 266; T2 at 27). Ms.
Latham denied using the time to find a weapon to protect
herself. (T2, 9).
At Mr. Cooper's house, the lights were off, and the three
women did not get out of the car. (T1 at 226; T2 at 27-28).
Ms. Latham continued using Ms. Brim's cell phone to try
to call Mr. Cooper, but he was not answering. (T1 at 269; T2
at 28). As the three women started to drive away from Mr.
Cooper's house, Ms. Latham noticed Mr. Beard pull up and
park his car two houses down and across the street from Mr.
Cooper's house. (T1 at 201-202, 229, 269-270). Ms.
Johnson pulled the car up beside Mr. Beard's car, with
the back window beside Mr. Beard's driver seat window, so
Ms. Latham could speak to Mr. Beard. (T1 at 202; T1 at 227;
T2 at 30). Ms. Latham and Mr. Beard had a conversation, and
according to Ms. Brim, they both were acting normal. (T1 at
203). However, Ms. Latham testified that Mr. Beard was still
not speaking nicely to her. (T1 at 271).
As Ms. Latham and Mr. Beard were talking, Ms. Latham and Ms.
Brim both saw Mr. Cooper “running up the street.”
(T1 at 203-204; 272) Ms. Brim did not see anything in Mr.
Cooper's hand. (T1 at 204). Ms. Latham saw him running
and carrying a long gun. (T1 at 272). Ms. Johnson saw him
carrying a big shotgun, and said out loud, “He has a
big-ass gun!” (T1 at 204, 274; T2 at 31).
Ms. Latham testified that Mr. Cooper had the gun pointing
down. (T1 at 273). Ms. Johnson testified that she saw Mr.
Cooper level the gun and aim it at Mr. Beard's car before
she pulled the car away. (T1 at 32, 35). The gun went in the
car on the driver's side window. (T2, 68).
Ms. Latham and Ms. Brim ducked down, and Ms. Johnson drove
the car away. (T1 at 205). Ms. Latham, Ms. Brim and Ms.
Johnson heard gunshots as they were pulling away. (T1 at 205,
275). Ms. Brim testified that she heard two gunshots. (T1 at
205). Ms. Latham and Ms. Johnson testified that they heard
three gunshots. (T1 at 275; T2 at 33). Ms. Latham, Ms. Brim
and Ms. Johnson did not see a weapon fired. (T1 at 236-237;
T2 at 33, 35).
After hearing the gunshots, Ms. Johnson, Ms. Latham and Ms.
Brim drove to Ms. Johnson's house because they were
scared. (T1 at 207; T2 at 36). Ms. Latham used Ms. Brim's
cell phone first to try to call Mr. Beard, then to call Mr.
Cooper. (T1 at 278) Mr. Cooper answered. (T1 at 279). Mr.
Cooper told her where he was, asked where she was and told
her to get dropped off at his house. (T1 at 280). Ms. Latham
lied to Mr. Cooper about her location, and did not get
dropped off at his house. (T1 at 280).
Ms. Latham, Ms. Johnson and Ms. Brim did not call the police.
(T1 at 284). Ms. Brim testified that in their neighborhood,
“you don't voluntarily go to the police telling
them that you saw a murder, ” and that “people
firebomb other people's houses and stuff” for
calling the police. (T1 at 208). They did not go into Ms.
Johnson's house, and after five minutes sitting in the
car in front of Ms. Johnson's house, they returned to Mr.
Cooper's house. (T1 at 207-208).
Mr. Brim testified that the first time they drove past Mr.
Cooper's house, they saw Mr. Beard's car still parked
across the street with the headlights on. (T1 at 208, 231,
281). The second time they circled the block, the police were
there. (T1 at 209). Ms. Johnson, Ms. Brim and Ms. Latham all
got out of Ms. Johnson's car. (T1 at 209-210). Ms. Brim
testified she was crying and upset. (T1 at 209). They did not
speak to the police who were present. (T1 at 209).
Ms. Latham testified that when they returned to Mr.
Cooper's house, Ms. Johnson parked the car down the
street, and that Ms. Johnson got out of the car to go back to
Mr. Beard's car to see what had happened. (T1 at 283).
According to Ms. Latham, Ms. Johnson then returned to her
car, and told Ms. Latham and Ms. Brim that “Ron
ain't moving.” (T1 at 283).
Ms. Johnson testified that when they returned to Mr.
Cooper's house, the police were already there. (T1 at
36). The three women were in a “frenzy” wondering
what had happened. (T1 at 37). Ms. Johnson volunteered to get
out of the car and check what had happened. (T1 at 37). Ms.
Johnson did not speak to the police who were there because
that is not something that people in her neighborhood do and
she was concerned the police would not believe her anyway.
(T1 at 37-38).
Ms. Johnson, Ms. Brim and Ms. Latham all testified that,
after realizing that Mr. Beard was dead, they walked down the
street together until they saw the boyfriend of Ms.
Brim's sister driving down the street, and he took the
three of them home. (T1 at 210, 283-284; T2 at 38).
Ms. Johnson, Ms. Brim and Ms. Latham did not attempt to
contact the police until the following Tuesday. (T1 at 210;
T2 at 39). They went together to two police stations in their
area, but did not make statements at that time. (T1 at
210-215, 235, 286). Ms. Brim testified that eventually they
made statements to the police when the police came and got
them when they were together at a McDonald's. (T1 at 215,
236). Ms. Latham testified that she made a statement after
contacting a detective. (T1 at 288). Ms. Latham denied that
she, Ms. Brim or Ms. Johnson had a gun. (T1, 289).
A 911-tape was played for the jury over defense objection,
identifying the shooter as a man. (T2, 7, 70-74, T3 at 46;
see also T3, 11).
Officer Adrian Flowers-Yancey, who went to the location of
the shooting after hearing about it on her patrol car radio,
testified that she saw a man slumped over in the driver's
seat of his car (T2 at 76-77). She saw gunshot wounds under
the man's arm, on the left side of his body, which was
facing the driver side window. (T2 at 77-78). Officer
Flowers-Yancey “canvassed the area” to try to get
statements about the shooting. (T2 at 78). Only one person
would talk to Officer Flowers-Yancey. The person described
the suspect as a “tall, black male carrying a long
gun.” (T2 at 79). Officer Flowers-Yancey looked for
evidence at the location of the shooting, specifically shell
casings or weapons, but none were found. (T2 at 81).
Officer Raymond Diaz, an evidence technician, testified that
he went to the location of the shooting on the night it
happened. Officer Diaz prepared two sketches of the scene of
the shooting, and one of the two was admitted into evidence
at trial. (T2 at 113-114). Officer Diaz looked for evidence,
such as firearms, gun casings or bullets, but did not find
any. (T2 at 115-116). He testified that the lighting in the
area of the shooting was “at times poor” because
the streetlight would intermittently turn off, and then back
on again. (T2 at117).
Officer Lori Briggs, also an evidence technician, testified
that she went to Mr. Cooper's home on May 6, 2010 after
other officers had gone there with a search warrant. (T2 at
95). Officer Briggs found and took various rifles, shotguns,
and ammunition. (T2 at 96-97). She identified each of these
weapons and ammunition at trial, and they were admitted into
evidence. (T2 at 98-110).
It was stipulated to that a bullet jacket and a portion of a
bullet jacket were removed from the body of Mr. Beard. (T2 at
Sergeant Robert Rayer, a specialist in the Firearms
Identification Unit, testified that none of the weapons taken
from Mr. Cooper's home could have fired the bullet jacket
found in Mr. Beard. (T2 at 160). He determined the bullet
jacket had been a bullet within the 7.62mm caliber class. (T2
at 158). The bullet jacket was likely fired by an AK-47 or
SKS rifle because those are the most common weapons that use
7.62mm ammunition. (T2 at 158).
Officer Kevin Johnson testified he went to Detroit Receiving
Hospital on the night the shooting happened, and received Mr.
Beard's clothing from the hospital. (T2 at 88-89). The
items of clothing that Officer Johnson received were a black
t-shirt, a thermal t-shirt, a belt, a pair of pants and one
black tennis shoe. (T2 at 91). Officer Johnson also received
from the hospital a small bag containing a substance
suspected to be cocaine. (T2 at 91-93).
Dr. Boguslaw Pietak, a forensic pathologist, testified that
he performed an autopsy on Mr. Beard. (T2 at 163; 166). He
determined the cause of Mr. Beard's death was multiple
gunshot wounds and the manner of death was homicide. (T2 at
166-167). The three gunshot wounds were to the left side of
his chest. (T2 at 167). Dr. Pietak did not see any evidence
of close-range firing. (T2 at 171). However, he also
testified that there are circumstances where close-range
firing can occur, but there would not be any evidence of it
on the victim's body. (T2 at 171). This could happen if
the victim was wearing layers of clothing, like the t-shirt
and thermal shirt that Mr. Beard was wearing. (T2 at
172-173). Mr. Beard's toxicology report reflected
positive results for alcohol and ecstasy. (T2 at 176).
Sergeant Amanda Crooker, a specialist in the Forensic Science
Division, testified that there was only one hand print on the
weapons from Mr. Cooper's home that could be used for
identification purposes. (T2 at 136-138; 140). That hand
print on the gun did not match samples she had of Mr.
Cooper's hand print or Mr. Beard's hand print. (T2 at
137). Officer Crooker did not have samples of the handprints
of Ms. Latham, Ms. Brim and Ms. Johnson, and was not asked to
determine if the handprint on the gun from Mr. Cooper's
home could have belonged to any of the three women. (T2 at
Corporal Ki Sobol, an investigator for the Wayne County
Sheriff's Department, testified that he monitored Mr.
Cooper's phone calls from jail that Mr. Cooper made on
May 20, 2010 and May 26, 2010. (T2 at 119-121). Both calls
lasted fifteen minutes each, and both calls were to a phone
number assigned to Tawana McGee. (T2 at 121-122). Recordings
of the two phone calls were admitted into evidence and played
for the jury. (T2 at 122-124; 126). Mr. Cooper described Ms.
Latham as the “fuel for the fire” on the night of
the incident. (See e.g. T3, 13-149). Andrea Dudley
testified that she is Mr. Beard's sister, and that she
knew Mr. Cooper well because their mothers were close
friends. (T2 at 187).
It was stipulated that Mr. Cooper was previously convicted of
a felony, and that his right to possess a firearm were not
restored. (T2, 188).
App. Br., pp. 3-12 (footnotes omitted).
did not testify at trial, but his defense was that the
evidence failed to show that Ronald Beard was shot by any of
the rifles known to be owned by the petitioner and that the
three eyewitnesses, Chalaunda Latham, Tenia Brim, and Shaunte
Johnson, were not credible.
noted, the jury convicted petitioner of first-degree murder,
felon in possession, and felony firearm. The trial court
sentenced him to life imprisonment without parole, a
concurrent term of one and a half to five years imprisonment,
and a consecutive term of two years imprisonment.
filed an appeal of right with the Michigan Court of Appeals
raising several claims, including most of those contained in
his current petition. The Michigan Court of Appeals affirmed
his convictions and sentences. See People v. Cooper,
No. 301485, 2013 WL 2120274 (Mich. Ct. App. May 16, 2013).
Petitioner filed an application for leave to appeal with the