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Cooper v. MacLaren

United States District Court, E.D. Michigan, Southern Division

May 30, 2017

DARRYL COOPER, Petitioner,
v.
DUNCAN MACLAREN, Respondent.

          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

         I. Introduction

         This is 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.

         II. Facts and Procedural History

         Petitioner's 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 161)
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 141).
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).

         Def.'s App. Br., pp. 3-12 (footnotes omitted).

         Petitioner 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.

         As 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.

         Petitioner 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 ...


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