Wilbern Cooper v. Willis Chapman ( 2020 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0264p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
WILBERN WOODROW COOPER, ┐
Petitioner-Appellant, │
│
> No. 18-1391
v. │
│
│
WILLIS CHAPMAN, Warden, │
Respondent-Appellee. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:15-cv-10679—Sean F. Cox, District Judge.
Argued: April 16, 2020
Decided and Filed: August 17, 2020
Before: MOORE, KETHLEDGE, and BUSH, Circuit Judges.
_________________
COUNSEL
ARGUED: Amy C. Lishinski, WILMER CUTLER PICKERING HALE AND DORR LLP,
Washington, D.C., for Appellant. John S. Pallas, OFFICE OF THE MICHIGAN ATTORNEY
GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Amy C. Lishinski, WILMER
CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for Appellant. John S.
Pallas, Kathryn M. Dalzell, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,
Michigan, for Appellee. Wilbern Woodrow Cooper, Lapeer, Michigan, pro se.
BUSH, J., delivered the opinion of the court in which KETHLEDGE, J., joined.
MOORE, J. (pp. 19–26), delivered a separate dissenting opinion.
No. 18-1391 Cooper v. Chapman Page 2
_________________
OPINION
_________________
JOHN K. BUSH, Circuit Judge. Wilbern Woodrow Cooper petitioned for habeas corpus
on the ground that his first-degree felony murder conviction in Michigan state court violated
Miranda v. Arizona, 384 U.S. 436 (1966). He contends that a custodial confession he gave in
2010 to the 1978 murder of David McKillop should have been excluded from evidence. We
hold that the district court properly denied habeas relief because the Michigan trial court’s
admission of the confession was not an error that rose to the level of actual prejudice. We
therefore AFFIRM the district court’s denial of Cooper’s habeas petition.
I.
A. The Murder of David McKillop
In September 1978, twenty-two-year-old David McKillop was brutally murdered in
Farmington Hills, Michigan. Officers discovered McKillop’s body with his hands bound behind
his back by an electrical cord and with seven gunshot wounds to his head.
For twenty-eight years McKillop’s family had no answer as to who had murdered David.
This changed in 2006, when Billy Joe Lolley, McKillop’s former real estate agent and neighbor,
came forward to the police with a valuable clue. Lolley believed he was terminally ill and
wanted to clear his conscience.
Lolley had known Cooper in 1978 both as a neighbor and also through a mutual
acquaintance, Donny McKitty. (R. 5.19; 5/9/12 Pros. Br. Mich. Ct. App.; Page ID 1186.)
According to Lolley, Cooper was known by the nickname “Boo Boo” and was involved with a
local gang-affiliated businessman, John Anderson. (Id., Page ID 1186-87.) Lolley was not part
of the gang, but “just liked to party” with them on occasion. (Id., Page ID 1191.) Lolley also
had known McKillop, who had been the real estate agent for Lolley and his wife. (Id., Page ID
1220.) Most critically relevant, Lolley revealed that back in 1978 Cooper had approached him
with a proposal. According to Lolley, Cooper said that he had been paid $3,000 to kill someone,
No. 18-1391 Cooper v. Chapman Page 3
and he in turn offered Lolley $1,500 to be his driver when Cooper made the hit. (5/5/11 Tr., R.
5.13, Page ID 766-67, 769). Lolley told the officers that he had declined Cooper’s offer because
he thought Cooper was kidding. (Id., Page ID 766, 774).
But it was no joke. Cooper later told Lolley that he had, in fact, killed someone. Cooper
shared chilling details, according to Lolley, which included McKillop’s being tied up, forced to
lie on the floor with a pillow over his head, and then being shot six to nine times in the head.
(Id., Page ID 766-67, 769.). But it was all for naught. Lolley claimed that Cooper had said he
had mistakenly killed the wrong person. The real target of the crime was not McKillop, but
rather McKillop’s roommate, Paul Jenkins, because he owed money to Anderson. (Id., Page Id
768.). Accord People v. Cooper, No. 304620, 2013 WL 2223896, at *1 (Mich. Ct. App. May 21,
2013). At the time, Jenkins’s business, Landmark Realty, was struggling with debts. (R. 5-19;
5/9/12 Pros. Br. Mich. Ct. App.; Page ID 1186.) Jenkins knew Anderson. However, at trial, Mr.
Jenkins denied that he had owed Anderson—or anybody—any money related to Landmark, and
he denied that he had dealt drugs through or with Anderson. (Id., n. 4., 5.) Jenkins also claimed
that people who had rented property from him had owed him money. (Id., n. 4) However, Ms.
Frazer, another witness who knew Jenkins, contradicted his statements. She claimed that in
September 1978, Jenkins was worried about paying money back to “a loan shark or something.”
But Jenkins denied that he had ever told Frazer that he owed somebody a lot of money, and he
denied that he had dealt drugs through or with Anderson. (Id., n. 5.)
B. Non-Custodial Interviews
1. December 2006 Interview
After Lolley came forward, police reopened the investigation of McKillop’s death and
reached out to Cooper in December 2006 for questioning. He agreed to be interviewed at the
Bay City police station, where he met with Detectives Richard Wehby and Mark Haro. (5/5/11
Tr. R. 5.13, PageID 796.)
At the beginning of questioning, Wehby and Haro informed Cooper that he was not under
arrest, and therefore he could leave at any time. (Id., PageID 796-97; 5/6/11 R. 5.14, PageID
817). What the detectives did not reveal to Cooper, however, was the nature of the investigation.
No. 18-1391 Cooper v. Chapman Page 4
Without these details on hand, Cooper was friendly and talkative. (5/5/11 Tr., R. 5.13, Page ID
797-98). He explained to the investigators that during the 1970s, he lived in Anderson’s
basement and that his landlord sold stolen property and facilitated narcotics transactions. (Id.)
According to Cooper, he would “never refuse a request” from Anderson (id., Page ID 801),
whether it be to break into houses or do “whatever” he was asked to do. As Cooper explained,
“he was trying to prove himself[.]” (Id., Page ID 798-99, 801). However, as Cooper further
explained, his behavior changed following several events in his life, which served as an “eye
opener” that he would need to alter his lifestyle. (Id., Page ID 799-800.) Cooper did so, he
claimed, by joining the military and becoming “an assassin.” (Id., Page ID 799-800; 5/6/11 Tr.
R. 5.14, Page ID 819.)
At this point in the interview, Detective Wehby asked Cooper directly if he had ever
killed anyone. Suddenly, Cooper became far less talkative. He seemed evasive and answered
tersely that he had not killed for money. (5/5/11 Tr., R. 5.13, Page ID 803; 5/6/11 Tr., R. 5.14,
Page ID 819.) He added that he had never held anyone down to be beaten up or killed. (5/5/11
Tr., R. 5.13, Page ID 803.)
The detectives then referenced Jenkins and McKillop, and the interview took a sudden
turn. Cooper’s demeanor seemed to change, according to police testimony. He suddenly sat up
in his chair. His skin now was flushed, and he appeared nervous. (Id., Page ID 800). Detective
Wehby informed Cooper that police had information that he was responsible for the homicide
and had been paid to kill someone, but he had accidentally killed the wrong person. (Id., Page
ID 801, 803). According to Wehby’s testimony, Cooper “never denied” these accusations, but
rather simply “kept deflecting” the statements, saying “oh I don’t recall that,” and “I wouldn’t
have had anything to do with that.” Based on these noticeable dodges, it appeared to the
detectives as if Cooper was trying to change the subject. (Id., Page ID 801). Then, for the first
time in the interview, Cooper indicated he had had a “falling out” with Anderson and Anderson’s
affiliates. He also began to speak negatively about the group, seeming to imply that its members
were trying to pin the murder on him. (Id., Page ID 803).
Following this exchange Cooper refused to provide a DNA sample, even though he had
initially agreed to do so. (Id., Page ID 801.). According to Detective Wehby, Cooper also
No. 18-1391 Cooper v. Chapman Page 5
appeared to be taking deliberate measures to avoid leaving DNA evidence. He put his used
cigarette stub in his shirt pocket after each smoke break. (Id., Page ID 801-02.) He broke up his
Styrofoam cup and placed the pieces in his pockets. (Id.) He also put into his pockets the paper
towels he had used during bathroom breaks. (Id.)
As the interview ended Cooper informed Detective Wehby that if it was the wrong guy
who got killed, Cooper felt truly and deeply sorry for the victim’s family; however, Cooper
added that if it was the right guy, then that guy got what he deserved. (Id., 5/6/11 Tr., R. 5.14,
Page ID 820.)
2. January 2010 Interview
In January 2010, Cooper agreed to take part in another interview with the police.1
(5/5/11 Tr., R. 5.13, Page ID 804; 5/6/11 Tr., R. 5.14, Page ID 819-20.) During this questioning
Cooper inquired about both the availability of immunity from prosecution in exchange for his
cooperation and the application of the Sentencing Guidelines. (5/5/11 Tr., R. 5.13, Page ID 804.)
He also told detectives: “I can’t say anything right now because if I say anything right now I
know you’ll have to arrest me on the spot.” (Id.) Later in the interview, the detectives told
Cooper that they believed he had committed the murder. To this, Cooper responded,
“hypothetically let’s say [Anderson] . . . put me up to this. I broke into the house. I shoot the
guy, is that what you’re saying?” When Detective Wehby answered “[y]es,” Cooper reportedly
“just smiled.” (Id., Page ID 805). However, he did not make any denials of his involvement.
Subsequently, though, Cooper asked the detective if they had identified a gun from the murder.
When the detectives responded no, Cooper stated: “well then all you got is circumstantial
evidence.” (Id., Page ID 805-06.)
Finally, Cooper informed police that he wished to end the interview, go home, and make
preparations with his wife for what was coming, including transferring property into her name.
(Id., Page ID 806). However, because the detective now had a warrant, prior to Cooper leaving,
1Detective Wehby testified that the three-year delay between the first and second custodial interviews was
related to the detectives’ information-gathering efforts and a change of administrations at the prosecutor’s office.
(5/9/11 TR., R. 5.15, Page ID 833).
No. 18-1391 Cooper v. Chapman Page 6
they were able to collect a DNA sample from him. They also advised him that he would be
arrested at their next encounter. (Id.; 5/6/11 Tr., R. 5.14, Page ID 820.)
C. Custodial Interviews
1. First March 2, 2010 Interview
On March 2, 2020, Cooper was arrested in Bay City. (5/5/11 TR., R. 5.13, Page ID 806;
5/6/11 Tr., R. 5.14, Page ID 820). Detectives Wehby and Scott Rzeppa began Cooper’s first
custodial interview at approximately 5:10 pm that day (3/2/10 Tr., R. 1.5, Page ID 119.).2 They
advised him of his constitutional rights, which he waived both verbally and in writing. (5/5/11
Tr., R. 5.13, Page ID 807; Appellee’s Br. appendices A and B, R. 5.19, Page ID 1226, 1228).
Thereafter, through the course of the interview, Cooper admitted to having gone with several
other individuals on three occasions to the house where McKillop’s murder had occurred. The
murder, according to Cooper, took place on the third occasion. (3/2/10 Tr., R. 1.5, Page ID 123-
24, 135, 143).
Cooper explained that the objective of the visits was to encourage Jenkins to repay the
money he owed to Anderson. This was intended to be accomplished by tying Jenkins up and
“maybe beat[ing] the shit out of him[.]” (Id., Page ID 123-25). On the first two visits, Jenkins
was not there.
Jenkins was not home during the third visit either, but unfortunately McKillop was.
During the murder Cooper claimed that he had remained outside on the front porch, serving as a
lookout as his peers entered the house. (Id., Page ID 128). According to Cooper he never
entered the house. He further claimed that, while on the porch, he had heard argument followed
by gunfire from inside the home. (Id., Page ID 128-29). A few days later, he learned that the
victim had been the wrong person. (Id., Page ID 133)
The detectives were skeptical that Cooper had told them everything. To “get him to
admit his further involvement if he thought that we had some more information on him,” the
2Cooper’s first custodial interview was recorded and played for the jury in full. (5/5/11 TR. R. 5.14, Page
ID 806-07, 09; 5/6/1111 Tr. R. 5.14, Page ID 812, 820).
No. 18-1391 Cooper v. Chapman Page 7
detectives raised the specter that Cooper’s DNA may have been found on the victim. (5/6/11 Tr.,
R. 5.14, Page ID 821; 3/2/10 Tr., R. 1.5, Page ID 186-202). Cooper resisted this tactic, however,
and insisted that he had stayed outside the house throughout the evening. (Id.) Approximately
three hours into the interview, Cooper then expressed exasperation that the detectives did not
believe his story: “See, that’s why I don’t want to talk to you guys about this because who do I
have to collaborate [sic] anything I have to say?” (Id., Page ID 193). Shortly afterwards, the
interview ended.
2. Second March 2, 2010 Interview
Following the first interview on March 2, 2010, Cooper was transferred to the
Farmington Hills Police Department, where at approximately 10:30 p.m. his second custodial
interview began. The detectives started by asking if Cooper remembered the Miranda waiver
form he had signed in Bay City, and advising him that it still covered their conversation. Cooper
nodded affirmatively to both statements. (3/2/10 Tr., R. 5.18, Page ID 1032.) Then he was
questioned, but he continued to deny shooting McKillop and reiterated the version of events that
he had conveyed earlier in the day.
Approximately one hour into the interview, Detective Wehby once more referenced the
topic of DNA, telling Cooper, “[l]et’s get it out if we’ve go[t] to start giving explanations as to
why those might be your hairs and those might be your DNA on the victim inside the house.”
(Id., Page ID 1043.) Cooper pushed back against this line of questioning, though, and he
continued to insist that he had not entered the house. (Id., Page ID 1044).
Shifting tactics, Wehby then hypothesized that Cooper had been inside the house when
someone else unexpectedly pulled a gun. Cooper shook his head no. (Id., Page ID 1047.) “Is
that what happened?” Wehby asked. “No,” answered Cooper. The suspect stood up, but
Detective Rzeppa quickly ordered him to sit back down. Cooper then asked to be taken back to
his cell and said that he needed to use the restroom. Wehby responded that there was not a
restroom nearby and that “[i]f you don’t wanna talk to us fine, we’re gonna stare at you all
night.” Relenting, Cooper resumed discussion with the detectives.
No. 18-1391 Cooper v. Chapman Page 8
Wehby now explained to Cooper that the evidence would look unfavorable at trial, unless
“we get ahead of the curve, and we can admit[/]explain why your DNA or hair may possibly be
on the victim or that cord then we can explain it.” (Id., Page ID 1049-50). Wehby suggested
that Cooper could potentially be portrayed as the “fall guy,” who just happened to be at the scene
of the crime when someone else shot McKillop. (Id., Page ID 1049-50). At that point, Cooper
stated, “I have nothing further to say,” (id.), and when the detectives posed additional questions,
he emphasized his refusal to speak more by thanking the detectives for their time and reiterating
that he was “[n]ot talking anymore.” (Id., PageID 1051.) But, Wehby tried again to get Cooper
to confess: “One more question, Wil[bern]. And we’ll go to your cell. Did you shoot and kill
this guy?” Cooper replied, “no.” (Id., Page ID 1052).
The interviewed ended at approximately 11:53 p.m. (Id.) At no point during the entire
interview did Cooper invoke his right to counsel.
3. March 3, 2010 Interview
At around 9 a.m. the next day, March 3, 2010, Cooper met with the detectives for his
third custodial interview. (3/3/10 Tr. R. 1.6, Page ID 205, 205-07). Wehby again showed
Cooper the Miranda form he had signed the previous day and asked if he remembered it. (Id.)
Cooper responded affirmatively, and the detective said the form was “still in effect.” (Id.)3
Wehby then pivoted to the main objective of the conversation: the investigators wanted to
get Cooper’s “story” a third time “to make sure that we got your story that you’re sticking with. .
. . OK? We want to make sure that we got, we got it down right. That we don’t make any
mistakes on your part . . . on your part or our part. Ok?” To this, Cooper replied: “Alright.”
(3/3/10 Tr., R. 1.6, Page ID 205-06). Then, after some small talk about the quality of the police
department food, Cooper abruptly stated: “Alright, I guess I’m gonna try this.” (Id., Page ID
207.) At that point, he proceeded to discuss the McKillop murder with the detectives.
As Cooper launched into details of the story, he initially remained consistent in his
explanation that he had stood on the front porch throughout the entirety of the shooting. (Id.,
3During trial, the prosecutor emphasized that the video footage from the third custodial interview reflects
that Cooper looked at the form and nodded. (See Pros. Br., R. 5.19, Page ID 1214.)
No. 18-1391 Cooper v. Chapman Page 9
Page ID 212.) But then, Wehby interrupted Cooper to explain the plausibility problems with that
story. To this, Cooper replied: “I think I’m done talking at this time. I’ve got a lot to think
about. I’ve gotta use the bathroom.” ((Id., Page ID 228.) Wehby responded, “that’s fine and I
understand that,” though he reminded Cooper that his arraignment was in three hours. (Id.).
Thereafter, the detectives asked Cooper what he wanted to do. (Id.) Cooper responded simply
that he did not wish to “sit the rest of life in prison for something I didn’t do.” (Id.)
The conversation then took another shift, with discussion of Cooper’s challenging
upbringing and life circumstances, as well as the pain McKillop’s family must have felt during
the years when the investigation went cold. (Id., Page ID 228-32). Cooper acknowledged this
pain and lamented the situation. (Id., Page ID 232). The discussion continued for a bit more,
followed by a restroom break. (Id., Page ID 236).
After questioning resumed the detectives told Cooper he could help himself and the
victim’s family by disclosing more about the crime. Cooper responded with, “I’m not saying
anything,” and “I’m not saying any more.” (Id., Page ID 245-48, 250.) But Wehby persisted,
asking Cooper if he “want[ed] to talk about this anymore?” Cooper answered, “Not right now.”
(Id., Page ID 245.) Wehby then reminded Cooper that time was running out, to which Cooper
responded, “Yeah.” (Id.) The questioning continued, with Cooper offering more answers to the
officers. (See id., Page ID 245-47.) However, when discussion veered back towards the events
that took place on the night of McKillop’s murder, Cooper again said, “I’m not saying anything.”
(Id., Page ID 247-48).
Yet the meeting continued. Eventually Cooper admitted that he had witnessed
McKillop’s murder and that he knew who had tied him up and shot him, but denied that he was
the one who had done it. (Id., Page ID 248.) When asked who the murderer was, however,
Cooper dodged the question, declaring: “I’m not saying no more.” (Id., Page ID 248, 250, 254.)
Upon further discussion, Cooper suddenly appeared as if he had had enough of the interrogation.
He accused the detectives of having already concluded that he was the murderer. (Id., Page ID
258, 261). At that point, he made a number of declarations indicative of his desire to be
arraigned. (Id., Page ID 258, 261).
No. 18-1391 Cooper v. Chapman Page 10
The questioning, however, still did not stop. Finally, Cooper admitted that he had, in
fact, entered Jenkins’ home on the night of the murder. Once he did, as Cooper further
explained, he had thrown an extension cord to Mark Bollis in order to tie up McKillop. Together,
he and Bollis forced McKillop to the floor, where Dennis McKiddie shot McKillop in the head.
(AT Br., R. 9, Page ID 20; 5/6/11 TR., p. 44-48.)
D. Lower Court Proceedings
1. Michigan State Trial Court
Cooper was tried in Michigan state court. Prior to those proceedings he moved to
suppress his statements made from the third interview, on March 3, 2010, but the trial court
denied his motion. (See Opinion, R. 5.18, Page ID 886.) Notwithstanding, the prosecutor
agreed not to use proof from the March 3 interview affirmatively. However, during his
questioning of Detective Wehby, defense counsel referenced certain statements made by Cooper
at the March 3 interview. (5/6/11 Tr., R. 5.14, Page ID 814, 821, 824-25.) Defense counsel
then moved for the interview’s admission into evidence. (Id.)
At the close of the proceedings, Cooper was convicted of first-degree felony murder and
second-degree murder, though the latter count was subsequently vacated on double-jeopardy
grounds. Cooper was sentenced to life in prison.
2. Proceedings on Direct Appeal
The Michigan Court of Appeals affirmed Cooper’s judgment of conviction. (Opinion, R.
5.18, Page ID 877.) The court held that Cooper had not “unequivocal[ly] and unambiguous[ly]
invoke[ed] [] his right to remain silent, during his first custodial interview on March 2, 2010,”
(id., Page ID 878), but that he had properly invoked the right with respect to his second custodial
interview on March 2, 2010. However, the appellate court concluded that even if the trial court
had committed error in admitting Cooper’s statements from the second custodial interview, the
error was harmless beyond a reasonable doubt. (Id., Page ID 879). The court also rejected
Cooper’s argument that his interview statements had been made involuntarily. (Id., Page ID
881.)
No. 18-1391 Cooper v. Chapman Page 11
Finally, the court ruled that Cooper had waived any challenge to the admission of his
statements from the third custodial interview on March 3, 2010 under Michigan’s invited-error
doctrine. Namely, the court concluded that defense counsel had invited admission of the March
3 interview by asking questions that implicated the interview during his cross-examination of
Detective Wehby, and then subsequently moving to admit the interview transcript and play all of
the taped interviews for the jury. (Id., Page ID 880-81). Because of its ruling on Cooper’s
procedural default, the court declined to reach the merits of Cooper’s claim that the statements
from the third custodial interview were admitted in violation of his right to remain silent. (Id.)
Thereafter, the Michigan Supreme Court denied Cooper’s motion for leave to appeal.
(Order, R. 5.20, Page ID 1337.)
3. Federal Habeas Proceedings
Cooper then filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254(d) in the
United States District Court for the Eastern District of Michigan. The district court denied the
petition. In doing so, the court made a number of determinations regarding the March 2
custodial interviews.
First, the district court held that the Michigan Court of Appeals reasonably concluded that
Cooper’s statement made during the first custodial interview on March 2 was not an
unambiguous assertion of his Fifth Amendment right to remain silent. (Id., Page ID 1660).
Second, the district court held that the Michigan Court of Appeals had reasonably
concluded that Cooper had clearly and unambiguously invoked his right to remain silent during
the second March 2 interview, meaning that the portion of the interview following his invocation
should have been excluded. The district court also concluded that the state appellate court
appropriately held that any error in the trial court’s admission of the evidence was harmless, and
therefore not contrary to, nor an unreasonable application of, Supreme Court precedent. The
district court found that the state court had offered a reasonable basis for its harmless error
conclusion, which included emphasizing the facts that (1) Cooper had not made any
incriminating statements after invoking his right to remain silent, and (2) nothing he had stated
No. 18-1391 Cooper v. Chapman Page 12
during that portion of the interview contradicted or supplemented his previous statements made
before his Miranda rights were properly invoked.
Third, the district court held that it was not unreasonable for the Michigan Court of
Appeals to apply a well-established procedural bar under Michigan state law—the invited-error
doctrine—when holding that Cooper’s challenge to the admission of statements made during the
March 3 interview was procedurally defaulted. As the district court further explained, the basis
for appellate court’s application of this procedural bar was correct given that it had reasonably
relied on the fact that defense counsel had first brought up the March 3 interview during cross-
examination of Detective Wehby, and then had actually moved to have the entire interview
admitted and played for the jury. In this regard as well, the district court emphasized that Cooper
“ha[d] not alleged cause and prejudice to excuse the default, nor ha[d] he show[n] that failure to
consider the claim would work a manifest injustice.” (Id., Page ID 1662.) Finally, the state
court concluded that Cooper’s statements were voluntary, and neither contrary to, nor an
unreasonable application of, Supreme Court precedent.
Following entry of its order denying habeas relief, the district court granted Cooper a
certificate of appealability limited to his challenge to the admissibility of his statements made
during the March 3 interview. (Id., Page ID 1669.) However, the court denied Cooper’s request
for a certificate of appealability with respect to his challenges related to both of the March 2
interviews, as well as his challenge regarding the voluntariness of all of his interview statements.
(Id.)
This court denied Cooper’s request for an expanded certificate of appealability relating to
the March 2 interviews. Therefore, now, we evaluate solely Cooper’s challenge to the admission
of statements made during the third custodial interview, which took place on March 3, 2010.
II.
During oral argument, the government conceded that Cooper had “clearly and
unequivocally” invoked his right to remain silent during the third custodial interview.
Consequently, we will assume that the state trial court committed error in admitting statements
from that interview that came after Cooper’s invocation of his constitutional right. However, in
No. 18-1391 Cooper v. Chapman Page 13
order to obtain habeas relief, Cooper still must prove that the admission of his statements had a
“substantial and injurious effect or influence in determining the jury’s verdict.” Davis v. Ayala,
576 U.S. 257, 267–68 (2015) (quotations and citations omitted). As explained below, we
conclude the admission of Cooper’s statements constituted harmless error because of the
overwhelming evidence, apart from those statements, demonstrating his guilt of felony murder
beyond a reasonable doubt. Therefore, we agree with the district court that there is no basis to
grant habeas relief.4
A. Standard of Review
When a statement or confession of an accused party is admitted into evidence in violation
of the Fifth Amendment, the admission constitutes a constitutional error that is subject to our
harmless error analysis. See Arizona v. Fulminante, 499 U.S. 279, 310–11 (1991) (Rehnquist,
C.J., delivering the opinion of the Court with respect to this issue). Furthermore, when a state
court makes a harmless error determination, that finding is entitled to deference under the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214
(AEDPA). Ayala, 576 U.S. at 268.5
Here, the Michigan Court of Appeals determined that the trial court erred in admitting
statements made by Cooper one hour into his second custodial interview on March 2, when he,
as the court determined, properly invoked his Fifth Amendment right to silence.
Notwithstanding, the appellate court ultimately determined that the trial court’s error was
harmless. However, the appellate court did not make a harmlessness determination with respect
to the trial court’s admission of Cooper’s March 3 statements. (See Opinion, R. 5.18, Page ID
879–81 (holding that admission of Cooper’s post-invocation statements in the March 2 interview
was harmless beyond a reasonable doubt, but declining to review admission of the March 3
statements)).
4Because our holding is determinative in affirming the denial of Cooper’s habeas petition, we need not
address the state court’s ruling that Cooper procedurally defaulted his challenge to the admissibility of statements
made during the March 3 interview under Michigan’s invited-error doctrine. See People v. McPherson, 687 N.W.2d
370, 379 (Mich. Ct. App. 2004) (citing People v. Jones, 662 N.W.2d 376 (Mich. 2003)).
5This means that the accused—in this case, Cooper—must demonstrate that the state court’s determination
was objectively unreasonable.
No. 18-1391 Cooper v. Chapman Page 14
The State argues that AEDPA and Chapman v. California, 386 U.S. 18 (1967), provide
the proper standard of review for this case. Specifically, it requests AEDPA deference because it
contends that the logic of the appellate court’s harmless error determination in relation to
Cooper’s statements made on March 2 (as well as the government’s evidence on which that
analysis relies), should “appl[y] with equal force” to our court’s habeas review of the question
regarding whether any error in the trial court’s admission of any part of the third custodial
statement is harmless. Second Appellee Br. at 34. However, the state’s argument is misplaced.
Certainly, the evidence of Cooper’s guilt derived from his admitted statements from the March 2
interview is relevant to our analysis of the possible “substantial and injurious effect” the trial
court’s admission of his statements made from the March 3 interview may have had on the jury’s
ultimate verdict. See Brecht v. Abrahamson, 507 U.S 619 (1993). However, to essentially infer
or “pretend,” as the State appears to be asking us to do, that the Michigan appellate court made a
merits determination on Cooper’s challenge to the admissibility of the statements from the
March 3 interview, would be entirely improper. The appellate court avoided assessing the merits
of Cooper’s challenge of the March 3 statements by ruling instead that his challenge was
procedurally defaulted under Michigan’s invited-error doctrine. Because the state appellate court
made no determination on the merits of Cooper’s constitutional challenge to the March 3
interview, this court applies de novo review to the harmless error question presented on appeal
here. Hill v. Mitchell, 400 F.3d 308, 314 (6th Cir. 2005); O’Neal v. Balcarcel, 933 F.3d 618, 624
(6th Cir. 2019); see Pinchon v. Myers, 615 F.3d 631, 638 (6th Cir. 2010).
Accordingly, “[i]n federal habeas proceedings, the Brecht standard governs and the
federal court will not grant habeas relief unless the state error “resulted in ‘actual prejudice.’”
O’Neal, 933 F.3d at 624 (quoting Ayala, 576 U.S. at 267 (quoting Brecht, 507 U.S. at 637)).
“[R]elief is proper only if the federal court has grave doubt about whether a trial error of federal
law had substantial and injurious effect or influence in determining the jury’s verdict.” Ayala,
576 U.S. at 267–68 (quotations and citations omitted). “‘[G]rave doubt’ about whether the error
was harmless means that ‘the matter is so evenly balanced that [the court] feels [it]self in virtual
equipoise as to the harmlessness of the error.” O’Neal, 933 F.3d at 624 (quoting O’Neal v.
McAninch, 513 U.S. 432, 435 (1995)). Moreover, “‘[t]here must be more than a ‘reasonable
possibility’ that the error was harmful,” Ayala, 576 U.S. at 268 (quoting Brecht, 507 U.S. at
No. 18-1391 Cooper v. Chapman Page 15
637). The “State is not to be put to the arduous task of retrying a defendant based on mere
speculation that the defendant was prejudiced by trial error; the court must find that the
defendant was actually prejudiced by the error.” Id. (citation and quotations omitted).
As discussed below, we hold based on Brecht and Ayala that Cooper was not actually
prejudiced by admission of statements from the third custodial interview. On this ground, we
affirm the district court’s denial of habeas relief.
B. Analysis
Cooper was convicted of first-degree felony murder under Mich. Comp. Laws
§ 750.316(1)(b). (Opinion, R. 5.18, Page ID 877.). A conviction under this provision requires
that the government present proof demonstrating a “[m]urder committed in the perpetration of, or
attempt to perpetrate” certain enumerated felonies, which include: robbery, breaking and
entering, home invasion in the first or second degree, larceny, extortion, kidnapping, torture, and
unlawful imprisonment. Mich. Comp. Laws § 750.316(1)(b).
Conviction for felony murder is not contingent on whether the defendant actually
committed the murder himself, so long as (1) he knowingly participated in the common
enterprise to commit one of the enumerated felonies listed in Mich. Comp. Laws
§ 750.316(1)(b); and (2) his participation in that enumerated felony foreseeably led to a murder.
See Mich. Comp. Laws § 767.39; see also People v. Robinson, 715 N.W.2d 44, 50 (Mich. 2006)
(aider and abettor to assault that resulted in homicide liable for homicide); People v. Aaron, 299
N.W.2d 304, 327 (Mich. 1980) (“A jury can properly infer malice [for purposes of felony
murder] from evidence that a defendant intentionally set in motion a force likely to cause death
or great bodily harm.”); People v. Bryant, 245 N.W.2d 716, 719 (Mich. Ct. App. 1976) (“[I]f the
defendant aided and abetted [the principal] in the commission of what defendant thought would
be an unarmed robbery, defendant could not be acquitted of felony murder simply because the
robbery turned out to be armed instead of unarmed.”). This means that regardless of whether
Cooper actually entered the house and pulled the trigger that killed McKillop, he can still be
convicted of felony murder based on his participation in a felony—which, in this case, was
extortion.
No. 18-1391 Cooper v. Chapman Page 16
To prove that Cooper committed extortion, the prosecution had to show that he (or
anyone he aided) threatened to injure the victim, that he (or anyone he aided) made the threat
willfully in order to obtain money or make the victim do something against his will, and that he
(or anyone he aided) made the threat orally. Mich. Comp. Laws § 750.213. In light of the
statute’s elements, the Michigan Court of Appeals was accurate in its outlining of the relevant
evidence established by the government to demonstrate that Cooper had participated in a
common enterprise to commit the felony of extortion, which foreseeably led to the murder of
McKillop. In so doing, the appellate court referenced Cooper’s statements from his first
custodial interview (all of which were admitted by the trial court without Cooper’s dispute, given
his acknowledgement that he had not yet allegedly invoked his Miranda rights), where he
admitted “to breaking into the house where [McKillop] [had resided] a few days before the
murder.” (Opinion, R. 5.18, Page ID 879.) Through this break-in, as acknowledged by Cooper,
he had an “intent to hurt Jenkins”; and to accomplish that mission, “he had taken an extension
cord from a lamp with the plan of tying up Jenkins.” (Id.) As the court further outlined, Cooper
had even established explicitly that he was at the scene of the crime—“on the porch” of Jenkins’s
home during “the night of the murder.” (Id.) And finally, Cooper explained that his specific
purpose in undertaking these multiple visits to Jenkins’s house was to encourage Jenkins to repay
money he owed by tying him up and “maybe beat[ing] the shit out of him[.]” (3/2/10 Tr. R. 1.5,
Page ID 123-25.) In fact, these statements from Cooper himself—all obtained from the first
custodial interview—proved so powerful for the government’s case that the prosecutor even
claimed explicitly in his opening statement that this evidence alone made Cooper liable as an
aider and abettor to felony murder. (5/3/11 Tr., R. 5.12, Page ID 709.) The prosecutor expanded
upon these statements in his state court appellate brief by outlining all of the properly introduced
evidence that the State obtained prior to Cooper’s first invocation of his right to silence. We
agree with the State, and find that this undisputed evidence is overwhelming and more than
sufficient to render inconsequential to the verdict any of Cooper’s statements made after he
allegedly invoked his Fifth Amendment right.
Yet even with the powerful statements of guilt offered by Cooper during his first
custodial interview, as noted by the state appellate court, the jury’s guilty verdict could also have
reasonably relied upon the testimony of Lolley, the individual who initially alerted police of
No. 18-1391 Cooper v. Chapman Page 17
Cooper’s involvement in McKillop’s death. Despite Cooper’s claims to the contrary, a jury
could have deemed Lolley credible and given his testimony powerful weight in issuing its
verdict, given, according to Lolley, prior to the murder, Cooper had confided in Lolley that he
had been paid $3,000 to kill someone, and did in fact, kill someone, though it turned out to be the
wrong person. (5/5/11 TR. R. 5.13, Page ID 766-67, 768-69, 774). Nonetheless, Cooper
proceeded in sharing even more specific details of the crime to Lolley: namely, Cooper
recounted that his conduct on the night of the murder included (1) tying up McKillop, (2) having
him lie on the floor, (3) putting a pillow over his head, and (4) shooting him six to nine times.
(Id., Page ID 766-67, 769); accord People v. Cooper, No. 304610, 2013 WL 2223896, at *1
(Mich. Ct. App. May 21, 2013).6
Finally, as the Michigan Court of Appeals concluded, the jury could have reasonably
relied on Cooper’s suspicious actions during the first custodial interview, which to the court,
seemed to suggest that Cooper feared his DNA had been found at the scene of the murder and
could therefore still be linked to him now. Indicative of the reasonableness of this inference was
the fact that at the end of the first custodial interview, Cooper put each used cigarette stub in his
shirt pocket, broke his Styrofoam cup apart and placed the pieces in his pockets, and then placed
all of his used paper towels in his pockets also. (5/5/11 Tr., R. 5.13, Page ID 801-02.) Yet most
damningly, when asked directly by investigators if he had ever killed anyone, Cooper appeared
evasive: instead of answering the question, he simply stated that he had not killed for money, nor
had he ever held anyone down to be beaten or killed. (5/5/11 Tr., R. 5.13, Page ID 803; 5/6/11
Tr., R. 5.14, Page ID 819.) Collectively, these statements and actions create a reasonable
inference that Cooper had played a role in the common enterprise of committing the felony of
extortion, which foreseeably led to McKillop’s murder.
We disagree with Cooper’s characterization that the above evidence is “weak and entirely
circumstantial.” (Appellant’s. Br. at 41). As an initial matter, a credible testimony, like that from
6During Lolley’s testimony at trial, he stated that Cooper had confessed to the killing, admitting that he tied
Jenkins up, and “laid him down on the floor[,] [p]ut a pillow on his head and shot him in the back of the head.
Emptied the gun out.” (5/5/11 Tr., R. 5.13, Page ID 766.) The state appellate court found this testimony to be
relevant in its harmless error analysis of the admission of Cooper’s statements from the March 2 custodial interview.
People v. Cooper, No. 304610, 2013 WL 2223896, at *3 (Mich. Ct. App. May 21, 2013) (per curiam).
No. 18-1391 Cooper v. Chapman Page 18
Lolley, which includes statements recounting Cooper’s murder confession, does not generally
constitute “circumstantial” evidence in the criminal justice system. Yet even if the testimony
were deemed “circumstantial,” criminal cases—particularly those in which the crime at issue
occurred over four decades ago now—necessarily rely on circumstantial evidence. And indeed,
the Supreme Court has recognized that circumstantial evidence is entitled to equal weight as
direct evidence; therefore, the prosecution may meet its burden entirely through circumstantial
evidence. Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003); Holland v. United States, 348
U.S. 121, 140 (1954).
In light of the above, there is no reasonable probability that any error in the state trial
court’s admission of Cooper’s March 3 statements affected the jury’s verdict, as required under
Brecht and Ayala. Independent of the March 3 statements, the government had presented
overwhelming and more than sufficient proof to demonstrate, beyond a reasonable doubt, that
Cooper was guilty of felony murder. Consequently, Cooper cannot carry his burden of showing
actual prejudice to his case. Ayala, 576 U.S. at 267. Accordingly, we AFFIRM the harmless
error finding of the district court.
III.
To summarize, even with the government’s concession that Cooper properly invoked his
Fifth Amendment right to silence midway through the third custodial interview, meaning the trial
court committed error in admitting any statements that were spoken thereafter, we still conclude
that the trial court’s admission of those statements constituted harmless error under Brecht and
Ayala. Accordingly, we AFFIRM the district court’s final order denying Cooper’s petition for
habeas corpus.
No. 18-1391 Cooper v. Chapman Page 19
_________________
DISSENT
_________________
KAREN NELSON MOORE, Circuit Judge, dissenting. David McKillop’s murder case
went cold for nearly thirty years before Petitioner-Appellant Wilbern Woodrow Cooper was
arrested and later convicted for the murder. It is abundantly clear that local detectives elicited
from Cooper a confession that he aided and abetted the murder of McKillop after Cooper plainly
invoked his right to remain silent during the third custodial interview in violation of Miranda v.
Arizona, 384 U.S. 436 (1966). Yet the majority concludes that the admission of Cooper’s full-
throated confession did not have a substantial and injurious effect on the jury verdict as required
by Brecht v. Abrahamson, 507 U.S. 619 (1993). The majority instead undertakes a sufficiency-
of-the-evidence review. Moreover, the majority conspicuously fails to consider the nature of a
full confession in relation the remaining, far from overwhelming, evidence against Cooper:
testimony from a witness who suddenly came forward thirty years later (in exchange for the
prosecution’s assistance with drunk driving charges); Cooper’s vague prior custodial statements
about his mere presence on McKillop’s porch, and Cooper’s suspicious behavior during his
custodial interviews. There was a complete dearth of other direct or physical evidence linking
Cooper to McKillop’s murder, such as eye-witness testimony, identification of the murder
weapon, or even DNA evidence. Cooper’s full confession that he helped overpower and tie up
McKillop immediately prior to his death was by far the best evidence against Cooper. And it is
obvious that the prosecution knew this—it emphasized Cooper’s confession again and again in
its closing argument. Against this backdrop, grave doubt exists as to whether the admission of
Cooper’s confession had a substantial and injurious effect on the jury’s verdict. Cooper also did
not procedurally default this claim on the basis of Michigan’s invited-error doctrine. Therefore,
I would grant habeas relief.
“[I]n order to grant habeas relief, the court must have at least ‘grave doubt about whether
a trial error of federal law had “substantial and injurious effect or influence in determining the
jury’s verdict.”’” O’Neal v. Balcarcel, 933 F.3d 618, 624 (6th Cir. 2019) (quoting O’Neal v.
McAninch, 513 U.S. 432, 436 (1995)). When the court believes “that ‘the matter is so evenly
No. 18-1391 Cooper v. Chapman Page 20
balanced that [the court] feels [it]self in virtual equipoise as to the harmlessness of the error,” the
court has grave doubt. Id. (alterations in original) (quoting O’Neal, 513 U.S. at 435). “An
‘uncertain judge should treat the error, not as if it were harmless, but as if it affected the
verdict.’” Hendrix v. Palmer, 893 F.3d 906, 919 (6th Cir. 2018) (quoting O’Neal, 513 U.S. at
435); see also Tolliver v. Sheets, 594 F.3d 900, 924 (6th Cir. 2010). This standard from “‘Brecht
is always the test,’” “whether the state court evaluated harmlessness under Chapman
[v. California, 386 U.S. 18 (1967)],” or whether the state court did not undertake a harmless-
error analysis. Reiner v. Woods, 955 F.3d 549, 556 (6th Cir. 2020) (citations omitted); see also
Davis v. Ayala, 135 S. Ct. 2187, 2199 (2015) (“[A] prisoner who seeks federal habeas corpus
relief must satisfy Brecht, and if the state court adjudicated his claim on the merits, the Brecht
test subsumes the limitations imposed by [the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA)].”).1
The majority opinion proceeds as if the Brecht test is synonymous with sufficiency-of-
the-evidence review. Rather than analyzing the impact of Cooper’s full confession upon the
jury, which at the very least requires its comparison with the other evidence against Cooper, the
majority simply recites the other evidence against Cooper as outlined by the state appellate court.
Majority Op. at 16–17. But we are “prohibited from ‘stripping the erroneous action from the
whole and determining the sufficiency of what is left standing alone.’” Hendrix, 893 F.3d at 919
(quoting Ferensic v. Birkett, 501 F.3d 469, 483 (6th Cir. 2007)). The majority’s harmless-error
analysis is tantamount to such an approach. Considering the elements of the crimes of which
Cooper was convicted, the nature of his confession, the otherwise thin evidence against him, and
the value that the government assigned to his confession, it was not harmless error to admit
Cooper’s confession at trial.
1The Warden argues that the state court’s harmless-error analysis of the admission Cooper’s statements
from the second custodial interview should count as a harmless-error analysis of the admission of Cooper’s
confession from the third custodial interview, justifying the application of AEDPA/Chapman, as well as Brecht.
Second Appellee Br. at 34–37. First, as the majority correctly points out, Majority Op. at 13–14, it would be
inappropriate to apply the harmless-error analysis for Cooper’s earlier statements to Cooper’s later confession.
There is no support for this approach, nor does it make sense given the qualitative difference between Cooper’s
earlier statements and his later confession. Second, we have consistently rejected the Warden’s argument that a
petitioner must satisfy AEDPA/Chapman and Brecht. Davenport v. MacLaren, 964 F.3d 448, 454–59 (6th Cir.
2020); Reiner, 955 F.3d at 557; O’Neal, 933 F.3d at 624–25.
No. 18-1391 Cooper v. Chapman Page 21
Cooper was convicted of second-degree and felony murder.2 The elements of second-
degree murder in Michigan are “(1) a death, (2) the death was caused by an act of the defendant,
(3) the defendant acted with malice, and (4) the defendant did not have lawful justification or
excuse for causing the death.” People v. Smith, 731 N.W.2d 411, 414–15 (Mich. 2007). First-
degree felony murder is “[m]urder committed in the perpetration of” certain enumerated felonies,
including larceny and extortion. Mich. Comp. Laws § 750.316(1)(b). The jury was instructed on
principal and aider-and-abettor theories of liability for both murder charges, as well as extortion
and larceny as underlying felonies for felony murder. R. 5-16 (May 10, 2011 Trial Tr. at 79–88)
(Page ID #857–59).3 Therefore, Cooper could have been convicted for murder as a principal or
as an aider and abettor. I address both possibilities.
I begin with principal liability. The single piece of evidence that Cooper committed the
murder was Bill Lolley’s testimony. Lolley testified that Cooper told him that Cooper was being
paid to kill McKillop’s roommate, Paul Jenkins, for $3,000 and that Cooper offered Lolley
$1,500 to be his getaway driver. People v. Cooper, No. 304610, 2013 WL 2223896, at *1
(Mich. Ct. App. May 21, 2013) (per curiam). Lolley also testified that after the murder, Cooper
told him “that [Cooper] laid the victim down on the floor, put a pillow on his head, and shot him
repeatedly in the head.” Id. Certainly, this testimony is relevant. But Lolley’s testimony
presented significant credibility issues. His testimony was thirty-years stale, raising questions
about Lolley’s memory; his testimony was thirty-years late, raising issues about his motives in
coming forward now; and his testimony was given in exchange for the State’s assistance with
previous drunk driving charges, raising serious concerns about bias, R. 5-13 (May 5, 2011 Trial
Tr. at 7) (Page ID #766). Lolley was thus significantly impeached, weakening the evidentiary
value of his testimony. See Eddleman v. McKee, 471 F.3d 576, 587 (6th Cir. 2006) (concluding
that the bias of witnesses receiving immunity from the prosecution and benefits in exchange for
testifying contributed to error that was not harmless), overruling on other grounds recognized by
Vasquez v. Jones, 496 F.3d 564, 575 (6th Cir. 2007). Cooper’s confession bolstered Lolley’s
2To avoid double-jeopardy issues, the state court vacated Cooper’s second-degree murder conviction.
Cooper v. Berghuis, No. 2:15-10679, 2018 WL 1203494, at *2 (E.D. Mich. Mar. 8, 2018); see also R. 5-18 (J.)
(Page ID #899).
3Accessories in Michigan are subject to the same liability as the principal. Mich. Comp. Laws § 767.39.
No. 18-1391 Cooper v. Chapman Page 22
testimony, mitigating any credibility issues. Like Cooper’s confession, Lolley’s testimony
established that McKillop was tied up and that Cooper was physically inside the house. See
R. 5-16 (May 10, 2011 Trial Tr. at 11) (Page ID #840). Cooper’s confession was inconsistent
with Lolley’s testimony in terms of whether Cooper was the principal, the shooter, and whether
the murder was premeditated based on his offer to pay Lolley. However, the admission of
Cooper’s confession could have tipped the scales for the jury in favor of believing Cooper’s
admission of guilt but crediting the details from Lolley’s testimony. One cannot be “certain that
the error [in admitting Cooper’s confession] had no effect or only a small effect” on the jury’s
verdict to the extent that the jury relied on principal liability. Hendrix, 893 F.3d at 919.
Next, I address the possibility that the jury convicted Cooper as an aider and abettor for
the murder. To prove that a defendant aided and abetted the commission of a crime, the
prosecution must prove that “(1) the crime charged was committed by the defendant or some
other person; (2) the defendant performed acts or gave encouragement that assisted the
commission of the crime; and (3) the defendant intended the commission of the crime or had
knowledge that the principal intended its commission at the time that [the defendant] gave aid
and encouragement.” People v. Robinson, 715 N.W.2d 44, 47–48 (Mich. 2006) (alteration in
original) (quoting People v. Moore, 679 N.W.2d 41, 49 (Mich. 2004)). The crux of this appeal
falls upon the second element. Admitting Cooper’s confession was not harmless because
Cooper’s confession during the third custodial interview was a full confession. Moreover, there
was no other evidence that Cooper performed acts or gave encouragement that assisted in
McKillop’s murder for the second-degree murder charge or extortion or larceny for the felony
murder charge, and the government overtly emphasized the confession.
There is simply no question that Cooper’s confession that he was inside the home and
helped tie up McKillop was the most compelling evidence against Cooper and the only evidence
that he took actions to assist in the commission of any crime the night of McKillop’s murder.
A confession is like no other evidence. Indeed, “the defendant’s own confession
is probably the most probative and damaging evidence that can be admitted
against him. . . . [T]he admissions of a defendant come from the actor himself, the
most knowledgeable and unimpeachable source of information about his past
conduct. Certainly, confessions have profound impact on the jury . . . .”
No. 18-1391 Cooper v. Chapman Page 23
Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (alterations in original) (quoting Bruton v.
United States, 391 U.S. 123, 139–40 (1968) (White, J., dissenting)). This is particularly so of “a
full confession in which the defendant discloses the motive for and means of the crime.” Id.
Cooper’s post-Miranda statements undoubtedly constitute a full confession to aiding and
abetting second-degree and/or felony murder. He confessed to being inside of the house, helping
wrestle McKillop to the ground, and throwing the extension cord to an associate to tie McKillop
up. See Eddleman, 471 F.3d at 587 (“Like the defendant in Fulminante, Eddleman gave a full
confession, including both a direct admission of guilt and detailed information about the crime
. . . .”). Accordingly, the “tempt[ation of] the jury to rely upon that evidence alone in reaching
its decision” cannot be discounted. Id. (quoting Fulminante, 499 U.S. at 296).
The grievous impact of Cooper’s full confession is apparent when compared to the only
other evidence against him—his statements from the first and second custodial interviews about
his presence on McKillop’s front porch, Lolley’s testimony, and Cooper’s behavior during the
custodial interviews. The majority argues that Cooper’s first and second custodial interviews
demonstrated that Cooper was “on the porch” during the murder. Majority Op. at 16. But
Cooper’s statement that he was on the porch is not tantamount to a confession of aiding and
abetting because under Michigan law the “[m]ere presence, even with knowledge that an offense
is about to committed, or is being committed is not enough to make a person an aider or abettor.”
People v. Burrel, 235 N.W. 170, 171 (Mich. 1931) (citation omitted); see also People v. Worth-
McBride, 929 N.W.2d 285, 286 (Mich. 2019) (citing Burrel for this proposition). In any case,
Cooper’s statements from the custodial interviews that he was on the porch were impeached
significantly. On defense counsel’s direct examination of Detective Wehby, Detective Wehby
confirmed that a photograph of Jenkins’s house demonstrated that the house did not have a
porch. R. 5-12 (May 3, 2011 Trial Tr. at 42) (Page ID #715). True enough, the majority
discusses evidence demonstrating that Cooper had the requisite intent to aid and abet, but it fails
to show that Cooper performed acts or gave encouragement that assisted in the commission of
the crime.7
7Cooper does not otherwise confess to performing acts or giving encouragement that assisted the
commission of the crime. For example, he did not admit to taking the extension cord from the first visit to the
No. 18-1391 Cooper v. Chapman Page 24
Lolley’s testimony and Cooper’s behavior during the custodial interviews offer little
support for Cooper’s conviction without the admission of the later confession to bolster them.
As set forth above, without Cooper’s later full confession to being inside of the home and
participating in the events leading up to the murder, Lolley’s testimony lacked credibility. In any
case, Lolley’s testimony had no import upon Cooper’s culpability as an aider and abettor because
Lolley’s testimony put Cooper behind the gun as the principal. Nor did Lolley’s testimony
address Cooper’s involvement in any extortion or larceny. And though Cooper’s conduct during
the interviews was suspicious, such behavior during a custodial interview is weak circumstantial
evidence at best that Cooper was involved in McKillop’s murder. Suspicious behavior could
reflect guilt of another crime or general apprehension of law enforcement. There is grave doubt
whether the admission of Cooper’s confession caused the jury to consider more seriously
Cooper’s suspicious behavior during the interview. In short, the remaining evidence against
Cooper was weak and thus benefitted from the admission of Cooper’s confession, compounding
the effects of the confession’s admission.
Ultimately, Cooper’s confession was the only direct evidence that he acted to encourage
the crimes, giving it substantial probative value in comparison to the other evidence against him.
Cf. Franklin v. Bradshaw, 545 F.3d 409, 415 (6th Cir. 2008) (noting that a defendant’s prior
“videotaped statements were cumulative of his prior written statements,” mitigating the effect of
the admission of the videotaped statements under Brecht). There was no other direct or physical
evidence implicating Cooper. See Moore v. Berghuis, 700 F.3d 882, 889–90 (6th Cir. 2012)
(concluding that a lack of direct evidence under the circumstances was indicative of error under
Brecht); Bachynski v. Stewart, 813 F.3d 241, 250 (6th Cir. 2015) (highlighting extensive physical
evidence linking the petitioner to the murder, including fingerprints, bloody clothing found in the
petitioner’s possession, and the fact that the victim’s body was found in the trunk of the victim’s
car that the petitioner was driving). There were no eye-witness accounts, and the State declined
to run a DNA analysis between Cooper’s DNA sample and the only physical evidence, hair, that
house, nor did he confess to supplying the extension cord the night of the murder. R. 5-19 (First Custodial Interview
at 23, 76) (Page ID #1233, 1246). Nor did Cooper admit to driving the car to the house the night of the murder. R.
5-19 (Second Custodial Interview at 7) (Page ID #1257) (“I was just there to ride along with them.”).
No. 18-1391 Cooper v. Chapman Page 25
it had from the scene of the crime. R. 5-13 (May 5, 2011 Trial Tr. at 82–84) (Page ID #784–85).
Thus, Cooper’s confession was crucial evidence against him.
Finally, the prosecution placed immense value on Cooper’s full confession for the overall
case and to prove the second element of aiding and abetting, performing acts to assist in the
underlying crime. Cooper’s confession to helping restrain and tie up McKillop was the
backbone of the prosecution’s case against him. From the outset of its closing argument, the
prosecution argued that Cooper was the “shooter” or an “active participant,” an aider and abettor,
based on his confession that Cooper “burst in,” “rushed [McKillop],” and “tied [McKillop] up,”
R. 5-16 (May 10, 2011 Trial Tr. at 8–9) (Page ID #839), all information that came from Cooper’s
confession. Later, the prosecution pointed to the confession to demonstrate that Cooper “did
something to assist in the commission” of the crimes. Id. at 22, 24–25 (Page ID #842–43). But
the pièce de résistance of the prosecution’s closing argument was its line-by-line narration of
Cooper’s full confession from his third custodial interview. Id. at 29–34 (Page ID #844–45).
The prosecutor emphasized the confession in detail while providing his own commentary for
more than five pages of the transcript. Id. The prosecution spent the most effort “go[ing]
through” Cooper’s complete confession “just to tie that into the aiding and abetting statute.” Id.
at 24 (Page ID #843).
The prosecution’s treatment during closing arguments of the other evidence demonstrates
the importance of Cooper’s confession to aiding and abetting felony murder and second-degree
murder. The prosecutor pointed to Lolley’s testimony, but only in support of the first-degree
murder charge. Id. at 11, 16 (Page ID #840–41). Notably, Cooper was not convicted of first-
degree murder. The prosecutor once briefly pointed to statements from Cooper’s first and
second custodial interviews and his behavior during the custodial interviews. Id. at 19–20, 25
(Page ID #842–43). But the “the centerpiece of this case” turned on Cooper’s confession that he
helped subdue McKillop and tie him up prior to his murder. Eddleman, 471 F.3d at 587 (quoting
Fulminante, 499 U.S. at 297).
In Brecht, the error was harmless because there was “weighty” evidence against the
defendant and the prosecution’s mentions of the statements after the defendant invoked his
Miranda rights were “infrequent.” 507 U.S. at 639. Here, however, there was no “weighty”
No. 18-1391 Cooper v. Chapman Page 26
evidence against Cooper. The State’s case otherwise turned on weak circumstantial evidence:
Lolley’s incredible testimony, Cooper’s impeached statements that he was simply on the porch,
and Cooper’s suspicious behavior during the interviews. And once Cooper’s full confession was
admitted, it was clear that the prosecution relied on his confession, especially during closing
arguments. At the least, “the matter is so evenly balanced that [the judge] feels himself in virtual
equipoise as to the harmlessness of the error,” satisfying Brecht. Hendrix, 893 F.3d at 919
(quoting O’Neal, 513 U.S. at 436). Accordingly, the erroneous admission of Cooper’s
confession was not harmless.
For these reasons, Cooper is entitled to habeas relief. Therefore, I dissent.