Richard Cooper v. Secretary, DOC ( 2011 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 21, 2011
No. 09-12977 JOHN LEY
________________________ CLERK
D. C. Docket No. 04-01447-CV-JDW-EAJ
RICHARD COOPER,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 21, 2011)
Before MARCUS, PRYOR and BLACK, Circuit Judges.
BLACK, Circuit Judge:
Richard Cooper, a Florida death-row inmate, appeals the district court’s
denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus. Cooper was
granted a certificate of appealability on four issues; however, this opinion
addresses only two of the issues: (1) whether trial counsel was ineffective at the
penalty phase because counsel failed to investigate and present mitigating
evidence; and (2) whether Cooper is entitled to an evidentiary hearing on his
competency to stand trial.1
Our primary focus in this opinion is on the first issue–whether Cooper’s
trial counsel was ineffective at the penalty phase because counsel failed to
investigate and present mitigating evidence. We must determine whether there is a
reasonable probability that, if the totality of Cooper’s evidence available in
mitigation had been heard, the sentencing jury and judge “would have concluded
that the balance of aggravating and mitigating circumstances did not warrant
death.” Strickland v. Washington, 466 U.S. 668, 695, 104 S. Ct. 2052, 2069
(1984). In making this determination, we are required to “consider the totality of
1
Because Cooper is entitled to relief from the death sentence on his claim of ineffective
assistance of counsel at the penalty phase for failure to investigate and present mitigating
evidence, we need not decide whether trial counsel was ineffective in his investigation and cross-
examination of state witness Paul Skalnik during the penalty phase, or whether direct appeal
counsel rendered ineffective assistance by filing a brief that failed to raise a Caldwell v.
Mississippi, 472 U.S. 320, 105 S. Ct. 2633 (1985), violation during Cooper’s penalty phase, as
both issues deal with the penalty phase of Cooper’s trial.
2
the evidence before the judge [and] jury.” Id. Therefore, we will detail the
evidence presented to the jury and judge at both the guilt and sentencing phases of
Cooper’s trial. We will then set forth the mitigating evidence presented at the
postconviction evidentiary hearing to determine whether the absence of such
evidence at sentencing undermines our confidence in Cooper’s sentence of death.
I. FACTUAL AND PROCEDURAL BACKGROUND
In the early morning hours of June 18, 1982, the Clearwater Police
Department received a phone call from a tearful, frightened eight-year-old boy
named Chris Fridella. He said that robbers had come into the house, and that his
father was dead. The call was traced to 6351 143rd Avenue, a small, somewhat
isolated home in the High Point area of Pinellas County, Florida. The Sheriff’s
Office responded and found Chris, who had been left unharmed, and the bodies of
three men: Steven Fridella–Chris’s father; Gary Petersen–Chris’s uncle; and
Bobby Martindale–a friend who lived with them in the house. The men had been
killed with shotguns. They were lying face down on the living room floor, their
hands bound behind them with duct tape.
Approximately seven months later, Cooper and three others were arrested
and charged with the murders of Fridella, Petersen, and Martindale.
3
A. Trial
Cooper’s trial was held over five days, January 10-14, 1984. The guilt
phase of the trial lasted four days. The State called 16 witnesses. Cooper called
no witnesses and did not testify on his own behalf.
1. Guilt phase
Detective John Halliday testified he arrived at the crime scene at
approximately 3:50 a.m. on June 18, 1982. Chris was in the northeast bedroom of
the home, and was removed from the house as soon as possible.2
Sergeant Jarrell Britts, of the Pinellas County Sheriff’s Office, testified that
upon arriving at the crime scene, the television was playing at full blast. He and
one other deputy walked up to the front of the house, while another deputy went to
the rear of the house. He looked in through the front windows and observed three
men lying dead on the floor. The men had been shot, and their hands were taped
behind their backs. Some shotgun shells were found on the front porch. A
technician covered the shells with plastic because there was a torrential downpour
that night. Inside, the house had been ransacked.
2
A psychiatrist who examined Chris testified that since the crime, Chris had a tendency
to fantasize about what happened during the crimes. The psychiatrist opined Chris had
developed a stress syndrome and the experience he had been through would affect his ability to
give reliable information. Thus, the psychiatrist thought it would be detrimental for Chris to
testify at trial.
4
The crime went unsolved for seven months. Detective Halliday testified
that on January 15, 1983, he received a call from Robin Fridella, the ex-wife of
Steven and mother of Chris. She gave him information that was not of public
knowledge about the crime. The information provided led him to believe he
should interview Terry Van Royal, J.D. Walton, and Cooper. He, along with
Detective Ron Beymer, first met with Cooper on January 20, 1983. After Cooper
was advised of his Miranda rights, he confessed to his role in the crime.3
a. Cooper’s first confession
Detectives Beymer and Halliday testified regarding Cooper’s first
confession. Cooper explained that he, Van Royal, Walton, and Jeff McCoy had
planned for about a week to come from Hernando, Florida to the Clearwater,
Florida area to rob the three victims of money, cocaine, and other drugs, tape up
the victims, and then leave them. On June 17, 1982, at 11:30 p.m., the four co-
defendants4 met at Walton’s house. They had masks, gloves, two shotguns, a .357
Magnum, and a .22 caliber rifle in the trunk of a 1961 Chevelle. On their way to
3
This was Cooper’s first confession to the detectives. Cooper made a second confession
when he met with Detectives Halliday and Beymer again on January 24, 1983. Both confessions
were introduced through the detectives’ testimony at trial. Cooper changed some details of his
story in the second confession. This opinion will detail both confessions.
4
Although Cooper, Walton, Van Royal and McCoy were not tried together, for ease of
reference this opinion will refer to them as co-defendants.
5
Clearwater, they were stopped by a policeman because they had a taillight out. It
was raining very hard, and the policeman gave them only a verbal warning. When
the four co-defendants arrived at the location of the murder, they parked on the
roadway at the end of the long driveway. McCoy remained in the vehicle, while
Cooper, Walton, and Van Royal proceeded to the trunk of the car to put on their
masks and gloves. Cooper claimed he grabbed a shotgun belonging to McCoy,
although he was unsure what type of shotgun it was. Van Royal grabbed his own
Mossberg shotgun, and Walton grabbed the .357 Magnum, which also belonged to
McCoy. They had to walk approximately half of a block to get to the residence.
Walton lowered himself to the squatting position and opened the unlocked
door to the residence. Walton entered the home first, followed by Cooper and Van
Royal. When they entered the house, Cooper first taped up Chris Fridella and took
him into the bathroom. All of the adults in the house were brought into the living
room. Cooper stood guard over them with his shotgun while Van Royal taped
them up and laid them on the floor. He and Van Royal went through the victims’
wallets, and found only $2.00. Walton was ransacking the house at this time,
looking for drugs and money. Cooper went to the back bedroom where he found
Walton, and Walton told Cooper that “we’re going to waste them.” Cooper then
6
walked back in the living room to inform Van Royal they were going to kill the
victims. Van Royal said that he was not going to kill anybody.
Cooper stated that as he and Van Royal were standing by the doorway of the
living room, Walton came into the living room and went over to Steven Fridella.
Walton pointed his .357 Magnum at Fridella’s head and started pulling the trigger,
clicking it, and trying to get it to fire. Walton pulled the trigger back three times.
Cooper said it appeared as though the weapon was not firing. Cooper had
previously seen Walton put a shell into the .357. After trying to get it to fire three
times, Walton started screaming, “shoot him, shoot him” multiple times. At that
point, Van Royal fired his shotgun three to four times.
Cooper claimed he fired his shotgun one time, and then started running out
of the house. Walton was still in the house at that time. Walton ran out of the
house, yelled to Cooper that one of the victims continued to move, and called
Cooper back inside. Cooper went back to the doorway and fired again. Cooper
stated he fired at Fridella’s head and left the house. At that point, the four co-
defendants left in their vehicle and headed back to Citrus County, Florida.
Detective Beymer testified Cooper was very matter-of-fact and unemotional
during this first confession. He had also interviewed Walton, McCoy, and Van
Royal. Detective Beymer testified Walton initially appeared very nervous and
7
meek, although he became calm later in the interview. He further recalled both
McCoy and Van Royal crying during their interviews.
b. Cooper’s second confession
Detectives Beymer and Halliday testified they interviewed Cooper again on
January 24, 1983. Cooper changed his story somewhat from his first confession.
In this second confession, Cooper disclosed he did not shoot Chris Fridella
because on the co-defendants’ trip to Pinellas County to commit the crime, Walton
stated he did not want any harm to come to the little boy. Later in the second
confession, Cooper changed the timing of the comment and said the conversation
in which Walton told them not to harm Chris happened once they got to Fridella’s
house. Further, instead of McCoy staying in the car, Cooper revealed McCoy
came into the house with them, wearing a mask and gloves and armed with a .22
caliber rifle. Cooper claimed McCoy taped up Chris Fridella and the three
victims, while he and Van Royal stood over the victims with their shotguns.
Walton told McCoy to get out of the house and go back to the car before the
shooting began. Cooper related he had not told them the truth about McCoy’s
involvement earlier because they had all made a deal not to get McCoy involved in
the incident.
8
Detective Halliday testified Cooper also changed his story to reflect that
instead of Van Royal stating he did not want to kill anyone, it was Cooper himself
who made that statement. After Walton informed him they were going to “waste
them,” Cooper stated he did not want to kill anyone, and he went to the living
room and told Van Royal he was not going to kill anybody. Another change from
the first confession was that instead of $2.00 being taken from the wallet, Cooper
claimed $5.00 was taken. He further admitted to taking some type of knife from
the residence, and he revealed that Van Royal had stolen a clock and Walton had
taken a small set of scales.
In this second confession, Cooper went into more detail regarding the shots
he fired. Cooper admitted he fired once at Fridella’s chest and missed. He left
after the first time he shot and missed, but was called back to the house by Walton
and fired again at Fridella. Cooper stated he knew he hit Fridella with the second
shot because he saw blood. He claimed he shot only twice, and he felt that he had
shot at the same person. Cooper further revealed he had been smoking marijuana
and drinking alcohol that day, but was fully aware of what he was doing and was
not intoxicated.
Cooper maintained Walton ordered the others around once they were in the
house, and Walton had planned the whole incident. They had planned to go into
9
the house while the victims were asleep so they could get into the house without a
problem. He further claimed Walton was a Charles Manson-type figure.
c. Evidence
Detective Halliday testified he seized three weapons from McCoy’s
house–the .22 caliber rifle, the .357 Magnum, and a Savage .12 gauge shotgun.
Detective Halliday also recovered a roll of duct tape out of McCoy’s vehicle,
which McCoy stated was used in the crime. From Van Royal’s house, detectives
seized his Mossberg shotgun. A partially sewn up ski mask was found in the
closet of the bedroom Cooper occupied in his stepfather’s house in Hernando,
Florida. In his interview with detectives, Cooper had indicated he had thrown the
mask away.
Medical Examiner Joan Wood testified Petersen had one gunshot wound to
his back. Martindale had two wounds, one to the back and one to the head.
Fridella had three shotgun wounds, one to the left chest just in front of the armpit
and two to the right side of the neck. Dr. Wood opined that the gunshot wounds
were intermediate range shots, in the range of three to eight feet.
10
FBI Special Agent Robert Siebert testified as a qualified expert in the field
of firearms identification, including ammunition components.5 Six shotgun shells
were found at the scene. One was a Winchester shell originally loaded with
number four lead shot, two were Sears shells also loaded with number four lead
shot, and three were Montgomery Ward shells loaded with number four steel shot.
Agent Siebert determined the six shells were fired by two different shotguns. The
Mossberg shotgun, carried by Van Royal,6 fired the Winchester shell and one of
the Montgomery Ward shells. The Savage shotgun, carried by Cooper,7 fired the
two Sears shells and remaining two Montgomery Ward shells.
The Savage shotgun had a plug, and was therefore restricted to two shells in
the magazine with the potential of an additional shot in the chamber. With the
plug in the Savage, the maximum number of shells that could be fired from it
without reloading was three. Agent Siebert explained that to remove the plug
from the Savage shotgun, one would have to take a screwdriver and disassemble
5
While Agent Siebert never summarized his findings in his testimony, in our summary
of his testimony we include evidence from other portions of the trial, i.e., which defendant
carried each gun.
6
In Cooper’s confession, he stated that Van Royal grabbed his own Mossberg shotgun.
7
In Cooper’s confession, he stated that he grabbed a shotgun belonging to McCoy,
although he was unsure what type of shotgun it was. The Savage shotgun was recovered from
McCoy’s residence.
11
it. As there were four shots fired from the Savage Cooper was carrying, Cooper
would have either had to remove the plug in advance and load the magazine with
four shells or have reloaded with at least one round, or possibly two rounds if
there was not a round in the chamber.
As to the items removed from the body of Gary Petersen, Agent Siebert
testified there was a plastic shot cup and lead shot, which was consistent with the
wound having been inflicted by a Sears shell. As the two Sears shells were shot by
Cooper’s Savage shotgun, Peterson’s single, fatal wound was inflicted by Cooper.
As to the items retrieved from the body of Bobby Martindale, Agent Siebert
testified there was a lead number four size shot, a composite containing plastic and
fiber wads and fiber fragment, and 19 lead pellets consistent with the type loaded
into Sears shot shell casings. Additionally, one steel pellet was retrieved,
consistent with a Montgomery Ward shell. Agent Siebert concluded Martindale’s
two wounds were inflicted with a Sears shell, shot by Cooper’s Savage, and a
Montgomery Ward shell, shot by either Cooper’s Savage or Van Royal’s
Mossberg.
As to the items retrieved from the body of Steven Fridella, there were 24
steel pellets and a large plastic shot cup of the type loaded into the Montgomery
Ward shot shell casings. Further, two lead pellets, a cardboard over powder wad,
12
and two fiber wads consistent with a Winchester shell were also retrieved. This
evidence would indicate Fridella was shot with both a Montgomery Ward shell,
shot by either Cooper’s Savage or Van Royal’s Mossberg, and a Winchester shell,
shot by Van Royal’s Mossberg. The Mossberg shot only two shells, however, and
Fridella was shot three times.8 Assuming two of the shells found in Fridella were
shot by the Mossberg, the remaining shot necessarily would have to be inflicted by
Cooper and the Savage shotgun.
In summary, testimony from the Medical Examiner and the firearms
identification expert, taken together, establishes Cooper fired at least four times
with the Savage shotgun. Petersen was shot once with Cooper’s Savage shotgun.
Martindale was shot twice, once by Cooper’s Savage shotgun, and once by either
Cooper’s Savage or Van Royal’s Mossberg. Fridella was shot three times, once by
Van Royal’s Mossberg, once by Cooper’s Savage, and once by either Van Royal’s
Mossberg or Cooper’s Savage. Each of the three victims was shot with the Savage
shotgun Cooper admitted carrying and using.
8
Agent Siebert’s testimony identified two shells retrieved from Fridella’s body. Medical
Examiner Wood’s testimony established Fridella was shot three times.
13
d. Cooper’s theory of defense and guilt phase verdict
As stated earlier, Cooper did not call any witnesses at trial,9 and did not
testify on his own behalf. Cooper’s theory of defense was that he was not guilty of
first-degree murder. Rather than asserting Cooper was not involved in the
murders, his attorneys urged the jury to find him guilty of second-degree murder.
They asserted Walton was the mastermind behind the plan, and Cooper just
followed Walton’s orders. They further argued Cooper must have been mistaken
about the gun he was carrying on that rainy night, and Cooper was actually
carrying the Mossberg shotgun.
The jury found Cooper guilty of first-degree murder as to all three counts.
2. Penalty phase
a. Jury sentencing recommendation
At the one-day penalty phase before the jury, the State presented two
witnesses, and the defense presented one witness. The State first presented the
testimony of Paul Skalnik. Skalnik and Cooper were cellmates for approximately
9
When Cooper was prosecuted in 1984, the defense was entitled to the concluding
argument before the jury if a defendant offered no testimony on his own behalf except his own.
See Fla. R. Crim. P. 3.250 (1984). Since Cooper’s trial, the Florida Legislature enacted § 918.19,
Florida Statutes (2007), providing that the State shall give opening and rebuttal closing
arguments. Correspondingly, the Rules of Criminal Procedure were amended, confirming that
the State is entitled to opening and rebuttal closing arguments even if the defense presents no
case-in-chief. See Beasley v. State, 18 So. 3d 473, 492 n.5 (Fla. 2009).
14
two to three weeks in May or June of 1983. Skalnik testified he had no prior
knowledge of the homicides in this case before sharing a cell with Cooper.
Skalnik stated that within an hour of meeting, Cooper initiated a conversation with
Skalnik, claiming he was “one of the men involved in the triple murder slayings
they thought was a Mafia gangland killing.” He stated they chose Fridella’s house
because Walton told Cooper “he was ripped off for cocaine and twenty dollars in
cash,” and Walton wanted to “even the score.” Cooper’s reward for going along
with the plan was to receive either part of the narcotics or money they were
planning to steal from the home.
According to Skalnik, Cooper described the evening of the murders to him.
Cooper stated Van Royal fired first, and Cooper fired second. On one occasion,
Cooper indicated to Skalnik he had only fired two shots during the crime. On a
later occasion, Cooper mentioned he fired more. When Skalnik asked him how
many times he fired, Cooper stated “oh no, that was an error, I fired only twice.
I’ll take responsibility for only killing one.” Cooper further stated when he was
over Fridella, he was begging for his life because of his son. Cooper admitted
shooting Fridella and the shot going across Fridella’s chest. He and Van Royal
fired five shots before they left the house. Cooper then stated they headed back to
their car, and someone hollered to Cooper “the man that you shot on the end is
15
getting up.” Cooper stated he ran back to the house and put another shell into the
shotgun. The man had gotten to his knees. Cooper put the shotgun up near the
back of his head and shot. Then Cooper, Walton, Van Royal and McCoy left.
Cooper also told Skalnik the location of his ski mask. Cooper stated the
mask was in his stepfather’s home either in a drawer or a box. Skalnik later told
law enforcement the location of the mask. Detectives then found the mask exactly
where Skalnik said it would be. The State’s other witness during the penalty
phase, Detective Halliday, testified Cooper told him during his confession that all
the masks and gloves used in the homicide were thrown into a trash can at
Walton’s trailer and were taken away with the rest of the trash. In June 1983,
Detectives Halliday and Beymer interviewed Skalnik. Skalnik described the mask
and told them Cooper had stated it was either in a drawer or a box in his
stepfather’s house. Detectives found the mask based solely on Skalnik’s
information.
During defense counsel Ky Koch’s cross-examination of Skalnik, Skalnik
stated Cooper indicated Walton was the older one in the operation,10 and Walton
was yelling during the crime because he was upset. Koch elicited from Skalnik
that he had provided information to various law enforcement agents about nearly
10
Cooper was 18 years of age when the murders were committed.
16
30 defendants, and that he was a former police officer. Skalnik was currently in
jail on five counts of grand theft and was serving a state prison sentence, but
remained in the Pinellas County Jail at the request of his lawyer. The cross-
examination also revealed that several of the defendants about whom Skalnik had
provided information were charged with murder in the first degree. Further,
Skalnik was charged in the past with masquerading as a lawyer.
On redirect, Skalnik testified no one had promised him anything for
testifying against Cooper. Skalnik’s understanding was that he had no chance of
getting his sentence reduced.
The defense called Juanita Kokx, Cooper’s mother. Cooper was the only
child from her marriage to Cooper’s father, Phillip Cooper. Kokx had one
daughter from a previous marriage, and Phillip Cooper also had children from a
previous marriage. Cooper was born and spent his early childhood years in Ohio.
Kokx testified there were no problems in her marriage nor any stress during
Cooper’s earliest years in Ohio. This changed when Cooper was six years old.
Kokx and Phillip separated because Phillip was seeing another woman and had
become violent. On one occasion he kicked the windshield of a car in Kokx’s face
and brought her in front of the children while she was hysterical. He told the
children: “This is your mother, look at her.” All of the children were quite young
17
at the time. She took Cooper and her daughter and moved to another town 150
miles away where her mother lived. After a six-month separation, Kokx
reconciled with Phillip. Kokx and Phillip decided to get back together and move
to Arizona to start over again. They took some of the children to Arizona,
including Cooper.
When they moved to Arizona, Phillip got a job working for a mobile home
company. They later bought their own property and a double wide mobile home
and “things seemed to be going quite well.” After five years of relative calm in
Arizona, Phillip again became involved with another woman. The violence started
again. During this period of time, Phillip was “very hard on the children and when
he did discipline he used a belt,” leaving marks on the children. Phillip was very
authoritarian with the children, including Cooper.
Kokx received further injuries from Phillip during this time. Although he
did not witness the injuries, Cooper knew about them. Phillip once crushed the
side of Kokx’s face with a blow, and she had to have surgery and a plate put in her
face. The children, including an 11 or 12-year-old Cooper, sat with her while she
recovered from that injury. Kokx and Phillip separated again for several months
after her surgery. She left and took Cooper, one of Cooper’s brothers, and her
18
daughter. They moved to a town close to where she was working at the time.
Cooper and his brother subsequently left to move back in with Phillip.
Kokx and Phillip reconciled again and were together for two years before
Phillip was once again violent with Kokx. At one point, Phillip saw Cooper in
town, and Cooper ran away from Phillip. This angered Phillip, who returned home
and grabbed Kokx and beat her head on the door and choked her. Cooper banged
on the door until Phillip finally opened it, and Kokx got away from Phillip. The
police were called by Kokx’s daughter. The police tried to arrest Phillip, and he
was abusive toward the deputy. The deputy had Phillip on the ground to arrest
him, but Phillip got away. A 13-year-old Cooper watched all of this unfold, and
“felt that it was his fault because the father was angry because he had ran from
him. He felt like he caused it.” Phillip turned himself in the next day and spent
ten days in jail. Kokx once again left Phillip, this time for good. She then moved
to Florida, leaving the children with Phillip.
Phillip did not spend a lot of time with the children and did not show them a
lot of affection. Phillip did not participate in activities with Cooper, like taking
him fishing or to the movies. Phillip also used profanity toward the children.
Kokx felt that although Cooper had times when he was afraid of his father, he
loved his father.
19
After she moved to Florida, Kokx received a call from Phillip that he had
lung cancer and had only six months to live. The children, including Cooper, were
still living with him and were present as he went through his illness. Phillip died
when Cooper was 16 years old.
After Phillip passed away, Cooper lived with an older sister and some of his
brothers in Arizona. Cooper later moved back to Ohio to live with another
brother. When Cooper was 18, he came to live with Kokx in Florida. She and her
husband tried to be a family with Cooper, taking him out in the boat and going
bowling.
Kokx testified Cooper does not show his emotions easily. He reacts to
stressful situations by holding everything in. Cooper had always shown a lot of
affection to her, but she could tell Cooper was very hurt over his father’s death.
Cooper is not an assertive person. When he first came to live with her in Florida,
he felt he was worthless. She tried to encourage him to go back to school, but he
did not believe in himself. There were times that he expressed an interest in going
back to school to get his education and make something of himself. Cooper never
gave her any indication he was a violent person. He worked for about a month
while he lived with her in Florida, but he did not have transportation so he could
not make it to work on a regular basis. She noted that while in jail, Cooper wrote
20
a letter to co-defendant Jeff McCoy that was returned to Kokx’s address. This
letter was admitted into evidence to show Cooper’s remorse for the crimes.11
In the State’s closing argument, the prosecutor emphasized the “brutal,
gruesome, horrendous” nature of the extremely aggravated triple homicide. The
prosecutor stated, “I think it would be obvious to anyone when you murder three
people that is something that is extremely aggravated.” He further argued: “One
murder is terrible, it’s a terrible thing, but a triple homicide is something that is
almost unthinkable even in the normal terms even though we are used to a lot of
crime.” The fact Cooper killed three people took the crime “out of the category of
a normal homicide, normal first degree murder, if there is such a thing, and puts it
in a category far beyond anything you have ever been exposed to.” The State
argued six aggravating circumstances were established by the evidence: (1) the
defendant was previously convicted of a capital felony because he was found
11
The letter stated:
I’m really sorry that we had to get involved in this mess. All we can do is pray to
God, for help. They already know that I got scared and I did one in after Terry did
two of them in first. I guess you already know that we can spend the rest of our
life in prison or get the death penalty. I pray that we do not have to spend the rest
of our life in prison. I know that you should not get too much time out of these.
Just pray for forgiveness and mean it in your heart. If you talk to the Judge just
tell him what happened and how me and you felt about this.
Cooper also wrote that he loved Jeff and loved his mother. Cooper wrote that he knew they had
hurt a lot of people and he was sorry for that.
21
guilty of three counts of first-degree murder; (2) the murders were committed
during a kidnapping; (3) the crime was committed for the purpose of hindering a
lawful arrest; (4) the crime was committed for pecuniary gain; (5) the murders
were especially heinous, atrocious, or cruel; and (6) the murders were committed
in a cold, calculated, and premeditated manner without any pretense of moral or
legal justification.
The prosecutor characterized Kokx’s mitigation testimony as “more an
attempt to curry favor and create sympathy and not to establish any relevant or
appropriate mitigating circumstance.” As to establishing mitigating
circumstances, the prosecutor stated: “When their big chance came to establish
mitigating circumstances what did you hear? You heard one witness.”
The prosecutor argued the defense had not established the mitigating
circumstances of substantial domination or the age of the defendant at the time of
the crime. The prosecutor emphasized the dearth of evidence presented on these
mitigating circumstances, stating: “Of all the people that may [have] been
associated with this man, because he is a man, he is an adult and he was an adult at
the time of the crime, of his brothers and sisters, of the people he has met in the
three states he has lived in over the last five to ten years one person came.”
22
As to the general mitigating circumstance of the defendant’s character, the
prosecutor argued:
They can come in, they can come in and they can–they can develop
just about anything that you might want to hear. And what did you
hear? Well, you heard that his mother was married to a violent man
and that he abused her. What has that got to do with the defendant?
The suggestion was made, well, gee, the defendant saw all this
terrible stuff, and that’s unfortunate, but what was the defendant’s
response to it? His mother had made efforts, made efforts to have
him live with her. He went and lived with his father. That was his
choice. Was he so traumatized by anything that it would affect his
character any way?
The prosecutor further argued Cooper did not have remorse for the crime,
contrasting his unemotional, matter-of-fact interview with the interviews of
McCoy and Royal, who both cried, and even Walton, who was a little nervous.
The prosecutor then emphasized Cooper had bragged to Skalnik about the crimes.
In the defense’s closing argument, defense counsel emphasized that Cooper
was a robber and burglar up until the point Walton ordered Cooper to kill the
victims. The defense characterized Cooper’s shooting of the victims as a
“criminal explosion” that “happened only over the course of seconds.” The
closing argument emphasized Walton was the ringleader and Skalnik’s testimony
was not credible. As to the aggravating circumstances, if they did exist they
happened in the course of the “criminal explosion.”
The defense argued Cooper was entitled to mitigation for three reasons.
23
First, Cooper confessed when the police came to him. Second, Cooper was under
the substantial domination of Walton. With respect to substantial domination, the
defense argued:
[W]hat Mrs. Kokx told you that is . . . absolutely critical . . . is about
Richard Cooper’s background, what . . . was he like as a kid, what
was his family life like, and it was horrible, it was tragic and it’s
something that none of us have experienced I’m sure. Something that
none of us can identify with that it put Richard Cooper in a position
of being in Florida with a father whom he had watched die of cancer
and knowing absolutely no one and getting involved in knowing,
associating with J.D. Walton.
Third, the defense argued the mitigating factor of Cooper’s age at the time of the
offense. He was only 18 at the time of the offense.
The jury recommended the death penalty for each count. As to Count One,
Gary Petersen, the vote was 9-3 in favor of death.12 As to Counts Two and Three,
Bobby Martindale and Steven Fridella, the vote was 7-5 in favor of the death
penalty.
b. Judge’s Sentencing Hearing and Findings
The defense called one additional witness at the sentencing hearing before
the judge, Dr. Sidney Merin, a clinical psychologist and clinical neuropsychologist
who had examined Cooper. Dr. Merin was not called before the jury for strategic
12
The evidence established Petersen was shot only with the Savage shotgun carried by
Cooper.
24
reasons. Cooper told Dr. Merin he had fired four shots, which conflicted with
Cooper’s confession in which he only admitted firing two shots. Thus, Cooper’s
attorneys decided Dr. Merin’s testimony would actually hurt Cooper before the
jury.
Dr. Merin testified he had given Cooper a battery of psychological tests,
taken his history, and conducted a clinical interview. Dr. Merin concluded Cooper
had a markedly disturbed personality–a character disorder together with a number
of other characteristics. He found Cooper to be an emotionally unstable individual
who was self-destructive and impulsive. Merin testified those characteristics were
typical responses to the “horrendous background” Cooper had. Merin testified
Cooper’s father was “exceptionally abusive, both physically and verbally.”
Cooper had a seventh-grade education and failed a number of grades in school.
Cooper began drinking and using drugs at 11 years of age, getting drunk every
chance he could. He also began using marijuana and Quaaludes, spending $200-
$300 a month on drugs. He began seeing a psychiatrist at that time because he
was skipping school and was described as scared and nervous. He was involved in
shoplifting, breaking and entering, and disorderly conduct. Cooper estimated he
had shoplifted approximately 150 times and indicated he could not go into a store
without picking up something.
25
Merin’s testing and own observations fit with the verbalized history from
Cooper. Dr. Merin identified four diagnostic characteristics in Cooper’s
personality: (1) antisocial personality; (2) borderline personality disorder;
(3) substance abuse disorder; and (4) isolated explosive disorder. Merin opined
Cooper was “emotionally unstable” and had a “destructive personality.” Cooper
was not a reflective person, and his perception of what occurs around him was
twisted. He responded to strong stimuli with chaotic feelings of both fear and
excitement or with contradictory impulses to obey and defy. Merin opined Cooper
had a follower type of personality and was capable of mindlessly reacting to the
domination and to the direct emotional commands of a more powerful figure.
Cooper was easily suggestible by a fearsome authoritative figure who in his mind
was reminiscent of the terror-filled years he had with his abusive father. Cooper
tried to cover up his inferiority by attempting to be a braggart. He could not plan
and was opportunistic and unsophisticated.
As to Cooper’s behavior at the time of the murders, he felt there was no
specific intent to kill at the time he went into the dwelling, and the murders were
not premeditated.13 Merin viewed the incident as a panicked reaction to Walton’s
13
During Merin’s testimony at the postconviction evidentiary hearing, he changed his
opinion on premeditation. In his later testimony, he testified he changed his opinion when he
learned Cooper went back into the house to shoot Fridella and now believed the last shot was
premeditated.
26
emotional and hysterical command. Merin opined the shooting was an impulsive
and mindless act consistent with other traits in Cooper’s criminal personality. He
considered Cooper’s behavior “an automatic reaction as though he were
instantaneously responding to the angry, to the intimidating and fearsome
command earlier in life of his father.”
During Merin’s cross-examination, he related that Cooper had admitted to
him he fired four shots during the crime. Cooper admitted one was fired at one
victim, two at another, and one at the third victim. Dr. Merin also opined Cooper
could be a chronic liar, who could lie in critical situations. Cooper was also a
chronic thief who was continuously fighting. Merin wished he could have done
neurological tests on Cooper, but no neurological tests were conducted. Merin
stated Cooper behaved as an individual who had prefrontal lobe impairment.
Merin opined Cooper had a defective conscience, and he would be surprised if
Cooper could be rehabilitated in 25 years.
The judge also received statements from some of the victims’ family
members. All of the statements were supportive of Cooper receiving the death
penalty. After receiving closing statements from the State and the defense, the
judge orally sentenced Cooper to death, finding there were no mitigating
circumstances to outweigh the aggravating circumstances.
27
In his written findings as to the aggravating and mitigating circumstances,
the judge found six aggravators and no mitigators. The judge found: (1) the
defendant was previously convicted of another capital felony, § 921.141(5)(b),
Fla. Stat. (1981); (2) the capital felony was committed while the defendant was
engaged or was an accomplice in the commission of a kidnapping,
§ 921.141(5)(d), Fla. Stat. (1981); (3) the capital felony was committed for the
purpose of avoiding or preventing a lawful arrest or effecting an escape from
custody, § 921.141(5)(e), Fla. Stat. (1981); (4) the capital felony was committed
for pecuniary gain, § 921.141(5)(f), Fla. Stat. (1981); (5) the capital felony was
especially heinous, atrocious, or cruel, § 921.141(5)(h), Fla. Stat. (1981); and
(6) the capital felony was a homicide and was committed in a cold, calculated and
premeditated manner without any pretense of moral or legal justification,
§ 921.141(5)(i), Fla. Stat. (1981). The judge specifically rejected the statutory
substantial domination mitigator. § 921.141(6)(e), Fla. Stat. (1981). In rejecting
this mitigator, the judge wrote he was “not reasonably convinced that the
mitigating circumstance of domination exists and this opinion is rejected by the
Court as being not reliable and is not believed.” The judge further rejected the
statutory mitigator of the age of the defendant at the time of the crime,
§ 921.141(6)(g), Fla. Stat. (1981), finding Cooper was legally an adult and the
28
testimony indicated he was mature and understood the distinction between right
and wrong and the nature and consequences of his actions. The judge also
specifically rejected the non-statutory mitigator of “[a]ny other aspect of the
defendant’s character.” The trial judge concluded Merin’s testimony did not offer
any mitigation, but merely buttressed the state’s contention that an aspect of
Cooper’s character was that he was really without remorse.
B. Direct Appeal
Cooper appealed his convictions and sentences to the Florida Supreme
Court. Cooper v. State, 492 So. 2d 1059 (Fla. 1986) (Cooper I). The Court
affirmed the guilt phase of the trial.14 Id. at 1061-62. As to his sentence, Cooper’s
appeal focused on the aggravators and mitigators. Cooper first argued the trial
court erred in finding the aggravating circumstance that the capital felony was
committed in the course of a kidnapping. Id. at 1062. The Court agreed, holding
the evidence that Chris Fridella was confined in the bathroom so no harm would
come to him did not support a kidnapping. Id. Cooper further appealed the
imposition of the aggravating circumstances that the capital felony was committed
for the purpose of avoiding arrest, the murders were committed in a cold,
14
As to his convictions, Cooper challenged the admission at trial of the ski mask. The
Court rejected Cooper’s argument that he had a reasonable expectation of privacy in the bedroom
he had formerly occupied and found no error in admitting the ski mask into evidence. Cooper I,
492 So. 2d at 1061-62.
29
calculated, and premeditated manner, and the murders were especially heinous,
atrocious, or cruel. However, the Florida Supreme Court rejected his arguments.
Id. Cooper also appealed the trial court’s failure to consider certain mitigators,
specifically that he was substantially impaired at the time of the crime and his age
at the time of the offense. The Florida Supreme Court also rejected these
arguments. Id. at 1062-63.
Because the Court was left with five valid aggravating factors and no
mitigating factors, the Court concluded death was the appropriate penalty and
affirmed Cooper’s sentences. Id. at 1063.
C. Rule 3.850 Evidentiary Hearing and Order
Cooper filed a Florida Rule of Criminal Procedure 3.850 motion, raising
several issues. The trial judge entered an order granting an evidentiary hearing on
several claims and summarily denied other claims. An evidentiary hearing was
granted on, inter alia, whether trial counsel were ineffective because they failed to
properly investigate and present various statutory and non-statutory mitigating
circumstances to the judge and jury. The evidentiary hearing was held over eight
days between September 3, 1999 and June 23, 2000.
30
1. Family background witnesses
Evidence was presented at the evidentiary hearing regarding Cooper’s
background that was not before the jury at sentencing. Both Cooper’s brother and
sister, Donnie Cooper and Peggy Jo Kirby, testified regarding extensive abuse
during Cooper’s formative years. Donnie testified their father beat all the
children. If his father was not beating one child, another child was getting beaten
that day, and “it was an everyday thing.” Peggy Jo testified her father “never . . .
spanked you in a proper way. He’d start wailing on you with the belt and just lose
control. And he wouldn’t stop until you was falling down.”
Their father began hitting Cooper when he was barely out of diapers, and
the beating continued as long as Cooper lived with his father. Donnie testified
Cooper was beaten, punched, and kicked by their father. Their father would put
Cooper against a wall with Cooper’s feet off the ground and slam Cooper into a
wall. The children had headaches from when their father would bounce their
heads off the walls or throw them against a door. “Dad had a tendency to pick us
up off our feet and slam us against the wall. Slam us against the trailer outside.
Throw rocks. Numerous things.”
Their father never held back when he was being physically abusive. When
asked how their father would punch, Donnie stated “I’ve had it with the open
31
hand. Had it with the fist. I’ve had it with articles in his hand.” Their father had a
finger on his right hand that was cut off, leaving a hard knot there. He would
“cuff” them “up side the head” with that hand. Their father beat them with boards,
switches, belts, and horse whips, leaving welts up and down their bodies and
bruises from being grabbed and hit so hard. On one occasion when the brothers
were acting up in their room, their father came in slashing a horse whip, hitting a
screaming child with every slash, including Cooper. Even during one of the last
occasions when Donnie saw his father when he was dying of cancer, their father
punched Donnie in the throat. Donnie explained “I don’t recall ever a time in my
whole family’s life that things were what you call calm.” Donnie also recalled
Cooper’s mother taking only her daughter to live somewhere else for a few months
in 1975, leaving Cooper behind.
Their father was a heavy drinker and drank “[a]ll the time.” Donnie
associated their father’s drinking with the extreme violence, explaining “when dad
drank . . . he would go to further extremes to punish us than if he hadn’t been
drinking . . . he would use more excessive force.” He would beat them until the
children “were literally dancing off [their] feet” begging their dad to quit beating
them.
32
Their dad beat Donnie and Cooper harder than the other children. When the
beatings occurred, both Donnie and Cooper would run away from home to escape
the abuse. When they lived in Ohio, they would run to a nearby fairgrounds. In
Arizona, they would run into the desert or to the top of the mountain. Donnie
stated he had a closer bond with Cooper than he did with his other brothers
because they felt like they were always the ones to “create[] the upset in [the]
family.” Neither of them understood why their dad beat them to extremes. Both
Donnie and Cooper loved their father despite the beatings. The death of their
father in June of 1980 was devastating to Cooper.
Donnie and Cooper would run from their father, and their father would
threaten to shoot them, stating “you keep running from me I’m going to shoot your
legs out from underneath you.” Their father had weapons in the house. He also
threatened to send Donnie and Cooper away. Their father had been to prison
before for manslaughter. Donnie believed their dad’s beatings affected him
throughout his life, and he even tried to commit suicide at one point. When
Donnie and Cooper would talk about the beatings, Cooper was always wanting to
kill himself because he thought he was the one causing the problems. Donnie
believed Cooper had actually attempted suicide a couple of times.
33
Despite Donnie’s and Cooper’s close bond, they also fought. Donnie, who
is five years older than Cooper, used to get Cooper down on the ground to pound
Cooper in his chest and punch him in the face. Donnie also admitted to burning
Cooper with a magnifying glass out in the sun. When Donnie would beat Cooper,
he would also exert that control to make Cooper do things that Donnie wanted him
to do.
Donnie moved back to Ohio when he was 15, and Cooper later went to Ohio
to live with him after their father died. Cooper was working then, but also doing
drugs. Donnie knew Cooper did drugs, specifically smoking pot and taking acid,
downers, and hallucinates. Donnie had even caught Cooper huffing paint. When
Donnie caught Cooper huffing paint, he beat him and locked Cooper in a closet.
Cooper’s older sister Peggy Jo Kirby also testified. She moved from the
family home in Arizona back to her mother’s in Ohio at 17 years of age because
she “got tired of being beat to death.” She testified their dad was very violent and
“used to bang our heads together.” He would also make them grab their ankles
and bend over, beating them with a belt or kicking them “in the butt with the point
of his cowboy boots.” He beat her so badly one time she had blood running down
her back. He also pulled out a bunch of her hair and hit her with his fist in her
face. Peggy Jo testified the beatings were on a daily basis and that she could
34
“hardly remember a day going by where we didn’t get hit and beat for some reason
or sent to bed without dinner.” Sometimes when sent to bed without dinner, the
brothers would go out to the barn and eat dog food and drink horse’s milk from
their nursing mare.
On one occasion when the children went to a neighbor’s house to escape
the abuse, their father told the neighbors they needed to bring the children home or
he was going to have the neighbors arrested. The children called the Sheriff
because they were scared their father was going to kill them. Phillip Cooper told
the Sheriff “if he felt like his kids needed their asses beat, then by God that’s what
he was going to do,” and told the Sheriff “to get the ‘F’ out of his house.” The
Sheriff left.
Peggy Jo also saw their father pick Cooper up and throw him up against the
mobile home. Cooper “got thrown around a lot.” The children got their heads
banged together all the time. “[Banging heads together] was one of dad’s favorite
things or come and do you with that stub of his.” Their father was a violent man,
and his nickname was “Socky Cooper” because he used to be a golden glove
boxer. One time their father knocked Donnie’s and Peggy Jo’s heads together so
hard Peggy Jo thought he had cracked her skull because the inside of her head felt
hot and she lost her balance.
35
Their father kept them living “clear out in the desert or clear out in the
country,” and the children were not allowed to have many friends. When their
father would let them join clubs like 4-H or Girl Scouts he would not actually
allow them to attend the meetings and follow through on the commitment.
Cooper was always a follower: “you tell him what to do . . . and he’ll do it.”
Donnie was a “control freak,” and he mostly “drug [Cooper] around and told
[Cooper], you do this or I’ll beat you up. And he would.”
When asked whether there were ever periods of relative peace in her family,
Peggy Jo responded: “Peace in our family? No, sir. Never.” Sometimes some of
Cooper’s bruises were very severe and deep and would last for a couple of weeks
or more. Their father would beat them if they did not know something in school,
like their multiplication tables, and would beat Cooper if he got in trouble in
school. At some point, their principal stopped calling their father when Cooper
would get in trouble because Cooper would show up at school beaten up with
bruises all over him.
Neither Donnie nor Peggy Jo was involved in Cooper’s trial in 1984. No
one invited them to testify or told them they could testify. Donnie stated he was
not contacted regarding background information about his brother until around
36
1989. If someone had let him know of the need to testify during Cooper’s trial, he
would have been willing to testify.
Cooper’s elementary school principal, Ralph Pomeroy, provided further
support for mitigation. Pomeroy was Cooper’s elementary school principal at
Queen Creek Elementary School in Queen Creek, Arizona. Pomeroy testified both
the school and town were very small and he knew the students in his school and
most of their families. Pomeroy knew Cooper’s father and knew of his father’s
reputation as a mean person. He knew “that you didn’t dare cross” Cooper’s
father. Pomeroy knew Cooper was abused because of conversations he had with
the Cooper boys and from a few opportunities to see some of the marks left. He
recalls a couple of incidents where there were red marks on Cooper’s neck and the
side of his face. He and the teachers talked as a group and decided it would not be
a good idea to report to his father any kind of problem Cooper had in school. He
and the teachers were afraid of further abuse. In his and the teachers’ minds there
was concern enough for someone to intervene, but at that time there was no real
resource one could go to unless it was a more severe problem than what they saw.
Under today’s laws and standards, Pomeroy would have to report the abuse to
authorities.
37
He talked with Cooper about the abuse a number of times. From his
conversations with Cooper, Pomeroy learned his father punished, hit, spanked,
whipped, punched, and beat Cooper. Pomeroy knew the abuse happened
regularly. Cooper would sometimes indicate he was having a bad day because of
an incident that happened the night before when his dad was drunk. At times
when Cooper would relate these incidents, Pomeroy could see red marks that
would verify that a beating had occurred.
Pomeroy thought Cooper “was deprived of normal kinds of experiences that
kids have, that they need to have to be able to refer to as they begin to learn, to
grow.” Pomeroy believes that was a part of the reason that Cooper was slower at
learning.
Pomeroy was not contacted to be a character witness at Cooper’s trial. If he
had been contacted, he “absolutely” would have testified.
Cooper’s ex-girlfriend Lisa Harville never met Cooper’s father, but heard
from the Cooper children about the extent of his abuse. Harville had, however,
witnessed Donnie abusing Cooper “quite frequently.” According to Harville,
everything had to be under Donnie’s power or you would suffer the
consequence–being beaten. Cooper was always afraid of Donnie. When Cooper’s
dad passed away he thought the abuse would stop, but then Donnie stepped in and
38
took the place of his father in beating Cooper. Harville characterized Donnie’s
beatings of Cooper as an everyday occurrence.
Harville found Cooper one time after he had been huffing paint in an
abandoned car. Cooper was very disoriented and could hardly talk. She saw
Cooper huff paint on several occasions and saw him huff gasoline. She believed
drugs were Cooper’s escape from Donnie’s cruelty.
Harville also testified Cooper called her the night of the murders. He was
rambling and crying, and told her someone got shot, asking her advice on what he
should do. She suggested he talk to his mother, and he said he could not do that.
He would talk about a different subject, and then come back to the shooting. “It
was like he was in and out of reality continuously.” Harville did not think Cooper
was telling the truth about shooting someone. She could tell he was high because
he told her he was, he did not make any sense, and his speech was slurred.
She was not contacted about testifying at Cooper’s trial, but she would have
been “more than willing” to testify.
2. Psychological Evaluation
Dr. Brad Fisher evaluated Cooper for purposes of the 3.850 evidentiary
hearing. In his written report, he noted the frequent and extreme physical abuse
suffered by Cooper at the hands of his father and Donnie, and that “the constant
39
beatings included frequent and notable head trauma.” He further concluded
Cooper suffered “[p]sychological abuse and an extreme deprivation of security
and love.” Dr. Fisher reported “[t]he father’s death of lung cancer in 1980 had a
traumatizing effect on the sixteen year old Richard heightened by his
abandonment by his mother, and a suicidal gesture followed shortly thereafter.”
Dr. Fisher further opined that Donnie “essentially abused Cooper and utilized him
almost in the manner of a master to a slave.” This dependence that characterized
Cooper’s early development translated into Cooper’s dependence on Walton,
“being that of total subservience and obedience to whatever he perceived Mr.
Walton wanted.”
Dr. Fisher wrote that Cooper completed the seventh grade, but dropped out
a couple of weeks after beginning the eighth grade. He was also retained in the
second and sixth grades. School was frustrating for Cooper, and learning
disabilities and emotional problems were reported. Further, Cooper’s parents were
relatively indifferent to his dropping out of school after the seventh grade.
Cooper began the use of alcohol and marijuana at the age of 11. “His drug
abuse escalated to include brain-damaging organic solvents and volatile inhalants,
psychoactive drugs, PCP, Quaaludes, whiskey, and LSD by his mid-teen years.”
He further opined that Cooper’s early drug and alcohol abuse may have been a
40
response to the domination both by his father and Donnie. “In this sense the
development of drug abuse was, to some extent, a form of self medication to his
perceived worthlessness and overall stress in connection with this parental
domination and abuse, and similar features on the part of his stepbrother Donnie.”
Dr. Fisher concluded Cooper had the following personality traits: (1) an
extraordinarily high level of dependency, together with profound limits in
capabilities for adult level cognition, reasoning and judgment; and (2)
neurological deficits due to head trauma and long term and chronic abuse of drugs
and alcohol. Further, test data revealed that Cooper is borderline mentally
retarded with a full scale IQ of approximately 75. Dr. Fisher reported “the
Wechsler Adult Intelligence Scale revealed significant subtest variation, consistent
with the diagnostic indications of organic damage.” Testing did not reveal Cooper
had any psychotic processes. However, Cooper had a history of depression and
suicidal gestures. After Cooper’s arrest, jail records indicated both suicide
attempts and the prescription of Mellaril in response to Cooper’s perceived mental
problems.
3. Trial counsel testimony
Cooper’s co-counsel Ky Koch and Ronnie Crider also testified during the
evidentiary hearing. Both had difficulty remembering specifics because the trial
41
was in January of 1984, over 15 years prior to the evidentiary hearing held
between September 1999 and June 2000. Koch testified that at the time he
represented Cooper, he had been in private practice between three and five years,
and had worked at the State Attorney’s Office prior to his time in private practice.
As an Assistant State Attorney, he had been assigned capital cases, but none of
them had gone to trial as of the time he left. Koch believed this was the first
capital case he had as a private lawyer, although he was representing another
capital defendant at the same time. Crider had worked at the State Attorney’s
Office for almost three years and had recently entered private practice in February
of 1983, before Cooper’s trial in 1984.
Koch recalled that it was difficult to have experts appointed and that a
couple of motions were filed on behalf of Cooper to get investigative fees. These
motions were denied. The investigation was conducted only by Koch and Crider.
Koch was not aware of mitigation experts if they existed at the time of Cooper’s
trial.
Koch stated he and his co-counsel did not investigate the circumstances of
Cooper’s life except through Cooper and his mother, with the possible exception
of Cooper’s stepfather. Koch recalled making phone calls to someone in Texas
and someone in Arizona. Koch and Crider split up making telephone calls to
42
locate potential witnesses. The phone calls he made were dead ends. Part of the
problem of finding potential witnesses was that Cooper had moved around a lot in
his young life.
Koch explained to Cooper that they were having trouble locating people to
testify at the penalty phase. He suggested Cooper begin attending chapel at the
jail so that the chaplain could testify in the penalty phase. The chaplain was
unable to help Cooper, however, because Cooper was disruptive and profane while
attending chapel.
Koch did not recall if they obtained Cooper’s school records or legal
records. Koch did not recall making any effort to obtain any of Cooper’s
background records. Koch believed he could have done more as far as
investigating Cooper’s background. Koch stated there was no trial strategy or
reason for not investigating Cooper’s background further.
As to psychological mitigation evidence, Koch testified they decided not to
have Dr. Merin testify before the jury because the number of shots Cooper told Dr.
Merin he had fired conflicted with Cooper’s confession. Koch and Crider decided
Dr. Merin’s testimony would actually hurt Cooper before the jury.
Ronnie Crider testified that mitigating evidence was investigated primarily
by interviewing Cooper and his mother. Crider had several meetings with Cooper
43
where they discussed Cooper’s background. They tried to develop whatever
mitigation they could by interviewing them and getting names for people they
could contact. Crider recalls making some telephone calls to try to locate one or
two witnesses, but he was unable to locate anyone. Crider did not investigate the
circumstances of Cooper’s life except through speaking with him or his mother.
Given the benefit of hindsight, he would have liked to have done more. Crider
testified there was no strategic reason for going as far as they did and not going
further, just the difficulty of locating people.
Crider did not recall whether they obtained hospital, school, or any other
kind of background records, but he did not believe they did. He also testified only
he and Koch investigated possible mitigation.
Crider also recalled Cooper’s admission to Dr. Merin regarding the number
of shots fired “was so damaging, that would outweigh any possible benefit that we
would receive by putting him on the stand.” Crider put Dr. Merin on the stand in
front of the judge rather than the jury because he thought a judge could be more
detached, less emotional, and less susceptible to the emotional types of argument
than the jury. He thought the judge could consider the psychological factors that
Dr. Merin developed, but not consider factors relating to guilt or innocence,
because those had already been determined by the jury. They were impliedly or
44
tacitly arguing residual doubt with the jury, but that would not be acceptable
before the sentencing judge.
Crider testified they learned of Cooper’s abuse through the testimony of Dr.
Merin. The pre-trial deposition of Dr. Merin indicated the family life was “pretty
ugly.” Further, they made the decision not to call Dr. Merin prior to trial. As Dr.
Merin was their only vehicle for the abuse testimony, Crider conceded that they
essentially abandoned that issue by not putting Dr. Merin on the stand before the
jury. They did not expand their background mitigation investigation after they
decided not to call Dr. Merin before the jury.
3. Trial Court Order
Following the eight-day evidentiary hearing, the trial court rejected
Cooper’s claim of ineffective assistance of counsel at the penalty phase for failure
to properly investigate and present mitigating evidence to the judge and jury. The
trial court concluded the evidence adduced at the evidentiary hearing refuted
Cooper’s claim, and even assuming additional evidence should have been offered
in mitigation, the result would have been cumulative. Assuming without deciding
that trial counsel was deficient in failing to present the proffered mitigating
evidence, the court was not convinced Cooper would have received a life sentence
but for counsel’s errors.
45
The trial court concluded that trial co-counsel testified they thoroughly
investigated and interviewed witnesses, spoke on several occasions with Cooper
and his mother, and obtained names and leads and pursued the leads. The trial
court summarized the mitigation evidence presented at the evidentiary hearing as
revealing “that [Cooper] suffered physical abuse by his father, lived through an
impoverished childhood, had a history of substance abuse, and may have suffered
some mental illness. Much of this testimony, however, is cumulative–certainly the
testimony concerning the physical abuse and the impoverished childhood is
duplicative of Juanita Kokx’s [Cooper’s mother’s] testimony.”
The trial court concluded that based on Cooper’s voluntary, detailed, and
specific confessions, the multiple substantial aggravating factors, and the
mitigating evidence presented at sentencing (young age, remorse, and willingness
to confess/cooperate), it could not be said “that the presentation of additional
nonstatutory mitigating evidence of [Cooper’s] childhood abuse, drug use,
impoverished means, or concerning possible mental illness would have
outweighed the numerous and serious aggravating factors found to be present in
this case.”
46
D. 3.850 Appeal
Cooper appealed the trial court’s denial of his claim of ineffective assistance
of counsel at the penalty phase for failure to investigate and present mitigating
evidence to the Florida Supreme Court. Cooper v. State, 856 So. 2d 969, 972 n.2
(Fla. 2003) (Cooper II). The Florida Supreme Court first set out the relevant
Supreme Court precedent established in Strickland, noting that Cooper must show
both deficient performance and prejudice. Id. at 975. The Court declined to grant
relief on this claim because “the preparation of Cooper’s attorneys for the penalty
phase and their decisions regarding what evidence to present at trial were entirely
strategically reasonable.” Id. The Court concluded:
[T]he introduction of Cooper’s additional proffered evidence
regarding his unfortunate and abused background does not constitute
a “clear, substantial deficiency [which] so affected the fairness and
reliability of the proceeding that confidence in the outcome is
undermined.” First, a substantial part of the information regarding
Cooper’s disadvantaged childhood was presented at Cooper’s trial.
During Cooper’s penalty phase, Cooper’s mother testified that
Cooper’s father was both violent and emotionally abusive to Cooper
during his formative years. Thus, in large part, introduction of the
evidence proffered below would have been repetitive. Also, the State
persuasively established five significant aggravating factors at trial:
(1) heinous, atrocious, or cruel; (2) cold, calculated, and
premeditated; (3) murder committed to avoid arrest; (4) murder
committed for pecuniary gain; and (5) commission of prior violent
felonies. Although the introduction of the mitigating evidence
identified by Cooper might have provided his penalty phase jury with
a more extensive picture of his upbringing, Cooper has not shown
that this evidence would have caused the jury to conclude that “the
47
balance of aggravating and mitigating circumstances did not warrant
death.” Thus, Cooper’s claim of ineffective assistance of counsel
fails.
Id. at 976 (citations omitted).
E. Federal habeas petition
Cooper then filed a 28 U.S.C. § 2254 habeas petition in federal district
court. He asserted several issues, including ineffective assistance of counsel at the
penalty phase for failure to investigate and present mitigating evidence. The
district court analyzed this claim under Strickland and reviewed the evidence
presented at Cooper’s sentencing as well as the Rule 3.850 evidentiary hearing.15
1. Deficient performance
The district court concluded Cooper had established the deficient
performance prong of Strickland. Based on the Rule 3.850 evidentiary hearing,
the district court concluded additional mitigation evidence was available that was
not pursued and developed by Cooper’s attorneys, and their failure to do so was
not strategic or reasonable. The district court found the Florida Supreme Court’s
determination that trial counsels’ penalty phase preparation and decisions were
“entirely strategically reasonable,” see Cooper II, 856 So. 2d at 975, was an
unreasonable application of Strickland. Moreover, the district court concluded
15
The district court did not conduct an additional evidentiary hearing.
48
“that determination was premised on clearly erroneous factual findings that (1) a
‘substantial part’ of the evidence was presented, and (2) that it would have been in
large part ‘repetitive’ of the mother’s testimony.”
The district court found trial counsels’ testimony at the evidentiary hearing
actually reflected they had no strategic reason for failing to investigate further, and
they probably could have done more investigation. Although the attorneys limited
their investigation, they certainly knew from Dr. Merin’s evaluation that Cooper
had a history of “horrendous” parental abuse, family turmoil, and mental health
issues. The district court concluded that information would have led a reasonable
attorney to investigate further. Thus, the district court found trial counsels’
penalty phase investigation and preparation was not “entirely strategically
reasonable,” as found by the Florida Supreme Court. Counsels’ failure to expand
their investigation “resulted from inattention, not reasoned strategic judgment.”
See Wiggins v. Smith, 539 U.S. 510, 526, 123 S. Ct. 2527, 2537 (2003). Thus, the
district court concluded Cooper had satisfied Strickland’s deficient performance
prong.
2. Prejudice
As to Strickland’s prejudice prong, the district court concluded Cooper had
demonstrated, by clear and convincing evidence, the Florida Supreme Court
49
unreasonably determined the facts in finding that the mitigation evidence
presented at the evidentiary hearing was largely cumulative to that presented at
sentencing. See Cooper II, 856 So. 2d at 976. First, Kokx’s testimony described
the abuse that she suffered at the hands of Cooper’s father, that Cooper witnessed
this abuse, and that Cooper had low self-esteem. With respect to any abuse of
Cooper himself, Kokx testified only that Cooper’s father “was very hard on the
children and when he did discipline he used a belt [that] left marks on the
children,” he was “very much” authoritarian with the children, and he used
profanity toward the children. Second, Kokx did not testify at all as to Donnie’s
abuse of Cooper. Finally, Kokx did not and could not testify to much of the abuse,
as she separated from Cooper’s father multiple times during Cooper’s younger
years and could not have witnessed any abuse that occurred in her absence.
Cooper’s siblings testified Cooper’s father did not abuse them as badly when the
mother was present.
Thus, the Florida Supreme Court’s finding that “Cooper’s mother testified
that Cooper’s father was both violent and emotionally abusive to Cooper during
his formative years,” see Cooper II, 856 So. 2d at 976, was an inaccurate
characterization of Kokx’s testimony. Because of the unreasonable factual
50
finding, it followed that the state court decision on this claim was not entitled to
deference. Thus, the district court reviewed Cooper’s prejudice claim de novo.
The district court concluded the evidence at the postconviction evidentiary
hearing established some statutory and nonstatutory mitigating factors. The
district court found Cooper’s young age, considered with the evidence of his
difficult background, was a mitigating circumstance. Additionally, the district
court found an inference could reasonably be drawn that Cooper was susceptible
to being influenced by older dominant males. The district court also concluded
evidence of Cooper’s difficult childhood, including the constant beatings and
abuse inflicted on him by his father and brother, certainly would have been
relevant to the jury’s assessment of his moral culpability.
In turn, the district court concluded each of the five aggravating factors
found by the state sentencing court was “convincingly supported by the evidence.
This was nothing short of a horrific crime, and the evidence of [Cooper’s] guilt
and the cold, calculated and premeditated nature of the murders was
overwhelming.”
Reweighing the aggravating and mitigating factors, the district court
concluded:
Considering the overwhelming evidence of [Cooper’s] guilt and the
horrendous facts of the triple murders, there is not a reasonable
51
probability that the result would have been different if the mitigation
evidence counsel failed to develop and present had been presented.
Counsels’ failure to present the additional evidence of [Cooper’s]
difficult and abusive childhood did not, therefore, prejudice [Cooper].
Simply put, confidence in the outcome of [Cooper’s] penalty phase is
not undermined.
III. DISCUSSION
A. Ineffective assistance of counsel at penalty phase for failure to investigate
and present mitigating evidence
Cooper contends his trial counsel’s performance at the penalty phase was
constitutionally ineffective under the standards set forth in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), because his counsel failed to
adequately investigate and present mitigating evidence regarding his background.
Cooper asserts had his counsel presented the mitigating evidence, there is a
reasonable probability he would not have been sentenced to death.
We review Cooper’s ineffective assistance of counsel claim under the
“highly deferential standard” of review provided by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA) because his federal habeas petition
was filed after April 24, 1996. McNair v. Campbell, 416 F.3d 1291, 1297 (11th
Cir. 2005). Under this standard, a federal court may not grant habeas relief with
respect to any claim adjudicated on the merits in state court unless the state court’s
adjudication “(1) resulted in a decision that was contrary to, or involved an
52
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted in a decision that was based on
an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d); Harrington v. Richter, __ U.S. __,
131 S. Ct. 770, 785 (2011).
The Supreme Court established the legal principles governing ineffective
assistance of counsel claims in Strickland. Wiggins v. Smith, 539 U.S. 510, 521,
123 S. Ct. 2527, 2535 (2003). “An ineffective assistance claim has two
components: A petitioner must show that counsel’s performance was deficient,
and that the deficiency prejudiced the defense.” Id. (citing Strickland, 466 U.S. at
687, 104 S. Ct. at 2064).
Before beginning our analysis of this issue, a brief review of the procedural
status of this case is helpful. After his postconviction evidentiary hearing, the
state trial court assumed, without deciding, that Cooper’s counsel’s performance
was deficient, but concluded that Cooper could not establish prejudice. On appeal,
the Florida Supreme Court concluded that Cooper could establish neither deficient
performance nor prejudice. On his 28 U.S.C. § 2254 motion, the district court
concluded Cooper established deficient performance, but could not establish
53
prejudice resulted from that deficient performance. We begin our analysis of this
issue by discussing Strickland’s deficient performance prong.
1. Deficient performance
Cooper asserts the district court correctly found his counsel’s performance
was deficient during the penalty phase. In its brief, the State does not offer
argument regarding Strickland’s deficient performance component and instead
focuses its argument only on the prejudice component. As the State has not
briefed the deficient performance prong on appeal, the State has abandoned that
claim. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th
Cir. 1989).
Even assuming the State has not abandoned any argument on Strickland’s
deficient performance prong by failing to brief it on appeal, we conclude Cooper
has established his attorneys’ performance was deficient. With regard to
performance, the Florida Supreme Court concluded, “the preparation of Cooper’s
attorneys for the penalty phase and their decisions regarding what evidence to
present at trial were entirely strategically reasonable.” Cooper II, 856 So. 2d at
975. Even affording that decision AEDPA-deference, we conclude it is contrary
to, or an unreasonable application of, clearly established federal law as set out in
Strickland. Under the prevailing standards in 1984, the year of Cooper’s trial,
54
Cooper’s attorneys did not conduct an adequate background investigation and
unreasonably decided to end the background investigation after only talking to
Cooper, Cooper’s mother and Dr. Merin. See Williams v. Taylor, 529 U.S. 362,
395-98, 120 S. Ct. 1495, 1514-15 (2000) (basing an obligation to conduct a
thorough background investigation on standards set forth in 1980); see also
Wiggins, 539 U.S. at 522, 123 S. Ct. at 2535-36 (stating Williams v. Taylor was
squarely governed by Strickland and did not create new law); accord Johnson v.
Sec’y, DOC, __ F.3d __, 2011 WL 2419885, at *25 (11th Cir. 2011) (failing to
conduct a reasonable background investigation and resulting failure to present
mitigating evidence was deficient under AEDPA); Williams v. Allen, 542 F.3d
1326, 1342 (11th Cir. 2008) (same).
The question under Strickland is whether Cooper’s trial counsel “conducted
an adequate background investigation or reasonably decided to end the
background investigation when [they] did.” See Johnson, 2011 WL 2419885, at
*22. Cooper’s attorneys did neither. Cooper’s attorneys testified their strategy
was to “paint a picture of a young man who I believe acted on impulse, acted in
the spur of the moment, acted in bad judgment, acted at the direction and really
under the domination of another individual, that being Mr. Walton.” However,
55
they did little to follow through with this strategy beyond talking to Dr. Merin,
Cooper, and Cooper’s mother.
Further, Koch and Crider knew that Cooper was abused by his father
through the deposition testimony of Dr. Merin. Once they decided not to call Dr.
Merin, who “was our only vehicle” for testimony concerning Cooper’s
background “with the exception of Cooper’s mother,” to testify before the jury,
they did nothing further to develop background information to support their
mitigation theory. We agree with the district court that Cooper’s mitigation
argument would have had much more credibility if Cooper’s brother or sister, at a
minimum, had been called to support Cooper’s arguments. Instead, the jury heard
nothing about the abuse inflicted on Cooper by his father and brother, hearing only
of the abuse Cooper’s father inflicted on Cooper’s mother. Dr. Merin actually
testified that Cooper’s father was “exceptionally abusive, both physically and
verbally,” before the judge, but there was no testimony as to the specifics of the
abuse directed toward Cooper.
Donnie Cooper, Peggy Jo Kirby, Ralph Pomeroy, and Lisa Harville testified
they were never contacted about testifying on Cooper’s behalf, and that they
would have testified had they been asked. Further, although counsel did not recall
whether they had obtained Cooper’s background records, Crider did not believe
56
they did. Notably absent from the attorneys’ testimony was any explanation as to
why they did not contact Cooper’s siblings, whether they attempted to contact
them at all, or if they were contacted, what the results were. Other than the
difficulties they experienced in reaching potential unnamed witnesses, the
attorneys offered no explanation for not broadening their mitigation investigation.
Had counsel talked to Cooper’s siblings, or as far as we can tell any family
member other than Cooper’s mother, counsel would have learned the extent of
Cooper’s traumatic background. See Johnson, 2011 WL 2419885, at *23; see also
Williams v. Allen, 542 F.3d at 1340 (“By choosing to rely entirely on [the
mother’s] account, trial counsel obtained an incomplete and misleading
understanding of [the defendant’s] life history.”).
We conclude the State has abandoned any argument that trial counsel’s
performance was not deficient. Even assuming the State did not abandon the
argument, however, “fairminded jurists could not disagree about whether the state
court’s denial of this claim was inconsistent with earlier Supreme Court
decisions.” See Johnson, 2011 WL 2419885, at *26. Thus, we now turn to
Strickland’s second prong, prejudice.
57
2. Prejudice
As an initial matter, we must determine the correct standard of review under
which to review Cooper’s claim of prejudice from his counsel’s deficient
performance.16 “Federal habeas courts generally defer to the factual findings of
state courts, presuming the facts to be correct unless they are rebutted by clear and
convincing evidence.” Jones v. Walker, 540 F.3d 1277, 1288 n.5 (11th Cir. 2008)
(en banc). “[W]hen a state court’s adjudication of a habeas claim results in a
decision that is based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding, this Court is not bound to defer
to unreasonably-found facts or to the legal conclusions that flow from them.” Id.(quotations, citations, and alterations omitted). When a state court unreasonably
determines the facts relevant to a claim, “we do not owe the state court’s findings
deference under AEDPA,” and we “apply the pre-AEDPA de novo standard of
review” to the habeas claim. Id.After a thorough review of the evidence presented at Cooper’s sentencing
and the evidence presented at the postconviction evidentiary hearing, we agree
with the district court that the Florida Supreme Court’s finding that the mitigation
16
In its brief, the State does not argue the district court erred in reviewing this claim de
novo.
58
evidence presented at the evidentiary hearing was cumulative to that presented at
sentencing was an unreasonable determination of the facts. Specifically, as
support for its holding that Cooper was not prejudiced by counsel’s performance,
the Florida Supreme Court found that “a substantial part of the information
regarding Cooper’s disadvantaged childhood was presented at Cooper’s trial.
During Cooper’s penalty phase, Cooper’s mother testified that Cooper’s father was
both violent and emotionally abusive to Cooper during his formative years.”
Cooper II, 856 So. 2d at 976. However, this was not Kokx’s testimony. Kokx
testified as to the abuse Cooper’s father inflicted on her and that Cooper
witnessed. According to Kokx, the extent of the abuse inflicted on Cooper was
the emotional abuse of his father not being involved in his life and getting
whipped by a belt, sometimes leaving marks. Kokx’s testimony did not begin to
describe the horrible abuse testified to by Cooper’s brother and sister. Further,
Kokx did not testify to any of the abuse suffered by Cooper at the hands of his
brother, Donnie. Kokx was also away for periods of Cooper’s life when she and
Cooper’s father were separated and could have missed much of the abuse Cooper
suffered. Although Kokx’s testimony revealed that Cooper’s home life was
volatile, to characterize her testimony as revealing a “substantial part” of Cooper’s
“disadvantaged childhood” is a great exaggeration. Thus, the state court’s
59
decision on prejudice was “based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding,” see 28 U.S.C.
§ 2254(d)(2), and we will review Cooper’s claim de novo.17 See Jones, 540 F.3d
at 1288 n.5.
To establish prejudice under Strickland, a petitioner “must show that there
is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466
U.S. at 694, 104 S. Ct. at 2068. In a case challenging a death sentence, “the
question is whether there is a reasonable probability that, absent the errors, the
sentencer . . . would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” Id. at 695, 104 S. Ct. at 2069. Strickland
asks if a different result is “reasonably probable,” not whether a different result is
“possible.” See Ferguson v. Sec’y for Dep’t of Corr., 580 F.3d 1183, 1198-99
(11th Cir. 2009). In determining whether there is a reasonable probability that the
17
In Wood v. Allen, __ U.S. __, 130 S. Ct. 841, 848-49 (2010), the Supreme Court
declined to decide whether to satisfy § 2254(d)(2), a petitioner must establish only that the state-
court factual determination on which the decision was based was “unreasonable,” or whether
§ 2254(e)(1) additionally requires a petitioner to rebut a presumption that the determination was
correct with clear and convincing evidence. Under either standard, based on the testimony at the
evidentiary hearing, the Florida Supreme Court’s determination that the evidence was repetitive
of Kokx’s testimony was unreasonable. Cooper has rebutted this factual finding by clear and
convincing evidence.
60
“additional mitigating evidence would have changed the weighing process so that
death is not warranted,” we consider the totality of the evidence by weighing the
evidence that was presented, and that which was not presented, “against the
aggravating circumstances that were found.” Hardwick v. Crosby, 320 F.3d 1127,
1166 (11th Cir. 2003).
In the penalty phase of a trial, “[t]he major requirement . . . is that the
sentence be individualized by focusing on the particularized characteristics of the
individual.” Armstrong v. Dugger, 833 F.2d 1430, 1433 (11th Cir. 1987).
Therefore, “[i]t is unreasonable to discount to irrelevance the evidence of [a
defendant’s] abusive childhood.” Porter v. McCollum, __ U.S. __, 130 S. Ct. 447,
455 (2009). Background and character evidence “is relevant because of the belief,
long held by this society, that defendants who commit criminal acts that are
attributable to a disadvantaged background . . . may be less culpable than
defendants who have no such excuse.” Johnson, 2011 WL 2419885, at *27
(collecting cases).
This case is strikingly similar to this Court’s recent decision in Johnson.
Like the defendant in Johnson, “[t]he description, details, and depth of abuse in
[Cooper’s] background that were brought to light in the evidentiary hearing in the
state collateral proceeding far exceeded what the jury was told.” Id. There was a
61
wealth of mitigating evidence that was not presented to Cooper’s jury. Cooper
asserts this evidence entitles him to both statutory and non-statutory mitigation.18
As to statutory mitigation, the unpresented mitigating evidence would
support a finding that Cooper is entitled to the mitigator of age of the defendant at
the time of the crime, § 921.141(6)(g), Fla. Stat., despite the sentencing judge’s
explicit rejection of this mitigator. The sentencing judge did not have the full
story of Cooper’s abusive background. When Cooper committed the crimes at age
18, he was barely removed from being violently abused by his father and brother
throughout his childhood. The evidence presented at the evidentiary hearing
would support a finding of the statutory mitigator of age at the time of the crime.
The unpresented mitigating evidence would also support a finding that
Cooper is entitled to the statutory mitigator of substantial domination,
§ 921.141(6)(e), Fla. Stat. Although Dr. Merin testified as to Cooper’s capacity to
be dominated by older males, the sentencing judge explicitly rejected this
mitigating factor because he did not have an independent evidentiary basis for Dr.
18
Cooper asserts he is entitled to the statutory mitigator of substantial impairment,
§ 921.141(6)(f), Fla. Stat. The district court concluded Cooper was not entitled to this mitigator
because, although there was evidence Cooper was intoxicated at the time of the crime, Cooper’s
detailed confessions to the detectives undermined any serious contention he was substantially
impaired at the time of the murders. Further, he admitted in his second confession to detectives
that although he had been smoking marijuana and drinking on the day of the murders, he was
fully aware of what he was doing and not intoxicated. We agree with the district court and do
not credit this as a mitigator.
62
Merin’s opinion, other than Cooper’s own self-report.19 The testimony of
Cooper’s brother, sister, and Lisa Harville would have provided support for Dr.
Merin’s opinion. The evidence presented at the evidentiary hearing would
support a finding that Cooper was susceptible to being dominated by older,
dominant males as he had spent his formative years being a follower of his abusive
father and brother. As Peggy Jo Kirby testified, “you tell [Cooper] what to do . . .
and he’ll do it.”
The evidence presented at the evidentiary hearing would also support
multiple categories of nonstatutory mitigation based on Cooper’s childhood and
family background. The evidence presented at the evidentiary hearing strongly
supports a mitigator that Cooper’s father and older brother severely abused him
throughout his childhood and teenage years. The evidence also supports a
mitigator that Cooper began using drugs and alcohol at age 11 to escape his family
and the abuse.20 This drug use included the use of inhalants, which, according to
19
Additionally, although the trial judge heard Dr. Merin’s testimony mentioning that
Cooper was abused, the trial judge discounted Dr. Merin’s testimony because it was only through
the self-report of Cooper. Thus, although the trial judge, unlike the jury, heard some testimony
that Cooper himself was physically abused, he had no support for this testimony and did not
consider it as mitigation.
20
We acknowledge that evidence of alcoholism and drug abuse is often “a two-edged
sword which can harm a capital defendant as easily as it can help him at sentencing.” Tompkins
v. Moore, 193 F.3d 1327, 1338 (11th Cir. 1999). However, we credit Cooper’s evidence of
alcohol abuse beginning at age 11 as mitigation, as it was used as a way to escape his horrible
background.
63
the psychological expert at the postconviction evidentiary hearing, could have
contributed to neurological deficits. Cooper was abandoned by his mother for
stretches of time. Further, Cooper had only a seventh-grade education and had
learning deficits. Although Cooper’s IQ was not made an issue at the penalty
phase of his trial, Cooper’s IQ was tested by the postconviction expert, Dr. Fisher.
This “test data revealed that he functions at a borderline level of intelligence (full
scale IQ approximately 75) . . . [which] places him approximately 6 points above
the mentally retarded range.” Further, although testing did not reveal that Cooper
had any psychotic processes, Cooper had a history of depression and suicidal
gestures. We also credit the mitigating evidence presented at sentencing,
specifically that Cooper was willing to confess to the crime.
During the penalty phase, the jury heard very little that would humanize
Cooper, see Porter, 130 S. Ct. at 454, and the mitigation evidence presented in
postconviction proceedings “paints a vastly different picture of his background”
than the picture painted at trial, see Williams v. Allen, 542 F.3d at 1342. While the
jury heard a small sliver of his volatile upbringing, the jury heard nothing of
Cooper’s life of horrific abuse rendered by both his father and brother, his use of
drugs and alcohol beginning at age 11 to escape his family and the abuse, his
abandonment by his mother for short stretches of time, his seventh-grade
64
education and learning deficits, and his depression. Further, all of the
nonstatutory mitigating evidence strengthens the two categories of statutory
mitigation supported by the evidence: age and substantial domination. Cooper
was barely removed from this horrific abuse when he committed the crimes at age
18. Likewise, he was barely removed from the domination by his father and
brother when he was dominated by Walton.
Further, “the lack of mitigation witnesses was brought to the jury’s attention
during the sentencing phase,” which might have suggested to the jury “that the
defense attorneys could discover nothing positive or mitigating in [Cooper’s]
background.” See Blanco v. Singletary, 943 F.2d 1477, 1505 (11th Cir. 1991).
During the closing argument of the penalty phase, the prosecutor emphasized the
dearth of evidence presented in mitigation, stating: “Of all the people that may
[have] been associated with this man, because he is a man, he is an adult and he
was an adult at the time of the crime, of his brothers and sisters, of the people he
has met in the three states he has lived in over the last five to ten years one person
came.” Additionally, the prosecutor pointed out that none of the family
background evidence showed that Cooper himself had been abused, arguing, “you
heard that his mother was married to a violent man and that he abused her. What
has that got to do with the defendant?”
65
The evidence about Cooper’s childhood and family that the jury did not hear
is similar to that which the jury did not hear in Williams v. Taylor, 529 U.S. at
395-96, 120 S. Ct. at 1514-15 (holding defendant was prejudiced by counsel’s
failure to present evidence of his “nightmarish childhood”–which led to the
imprisonment of his parents for neglect, his borderline mental retardation, or his
failure to advance in school past the sixth grade). Unlike the defendant in
Williams v. Taylor, however, Cooper murdered three victims. Although the
number of victims in this case distinguishes this case from Williams v. Taylor, the
number of victims does not preclude this Court from concluding prejudice has
been established. The Supreme Court has found prejudice was established in a
two-victim murder case in Porter, 130 S. Ct. at 448, 455-56, and we recently
found prejudice was established in a two-victim murder in Johnson, 2011 WL
2419885, at *2, *29. Further, Cooper’s murders were committed when he was 18
years old, under the substantial domination of Walton, and along with three other
co-defendants. The statutory mitigating circumstances of age and substantial
domination distinguish this case even though it involves multiple victims.
Given that some jurors nonetheless “were inclined to mercy even with[]
having been presented with [so little] mitigating evidence and that a great deal of
mitigating evidence was available to [Cooper’s] attorneys had they more
66
thoroughly investigated,” it is possible that, if additional mitigating evidence had
been presented, more jurors would have voted for life. See Blanco, 943 F.2d at
1505. Additionally, like in Johnson, AEDPA deference does not apply to the
Florida Supreme Court’s prejudice determination, making a prejudice finding even
more justified. 2011 WL 2419885, at *29.
Thus, we conclude there is a reasonable probability that absent the errors,
the sentencer would have concluded the balance of aggravating and mitigating
factors did not warrant death. See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.
The district court erred in denying habeas relief on Cooper’s ineffective assistance
of counsel claim.
B. Whether Cooper is entitled to an evidentiary hearing on his competency to
stand trial
Cooper asserts a straightforward application of our decision in James v.
Singletary, 957 F.2d 1562 (11th Cir. 1992), shows a federal hearing on Cooper’s
claim that he was incompetent to stand trial is warranted. “[A] petitioner is
entitled to an evidentiary hearing on a substantive incompetency claim if he or she
presents clear and convincing evidence to create a real, substantial, and legitimate
doubt as to his or her competency.” James, 947 F.2d at 1573 (quotations omitted).
This argument is without merit. The record is devoid of evidence that
Cooper was incompetent to stand trial. Cooper rests on Dr. Fisher’s Rule 3.850
67
psychological report, where Fisher stated that at the time of trial Cooper was “not
functioning rationally,” and his “ability to do [anything] other than accept his
attorneys’ dictates or representations was . . . absent.” Dr. Fisher did not interview
Cooper until years after he was tried, and Dr. Merin, the psychological expert at
trial, evaluated Cooper for competency before trial. Dr. Merin made no finding as
to Cooper’s incompetency to stand trial. Cooper presents no evidence
demonstrating any inadequacy in Dr. Merin’s evaluation or his conclusions, and
has not presented clear and convincing evidence to create a real, substantial, and
legitimate doubt as to his competency. Cooper is not entitled to an evidentiary
hearing on this claim.
IV. CONCLUSION
For the foregoing reasons, we REVERSE the district court’s denial of
habeas relief on Cooper’s claim of ineffective assistance of counsel at the penalty
phase for failure to investigate and present mitigating evidence, and REMAND to
the district court.21 We AFFIRM the district court’s denial of an evidentiary
hearing on Cooper’s competency claim.
21
Because Cooper is entitled to relief from the death sentence on this claim, we do not
decide whether trial counsel was ineffective in his investigation and cross-examination of state
witness Paul Skalnik during the penalty phase, or whether direct appeal counsel rendered
ineffective assistance by filing a brief that failed to raise a Caldwell v. Mississippi, 472 U.S. 320,
105 S. Ct. 2633 (1985), violation during Cooper’s penalty phase.
68