Cooper v. Bergeron

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Norman H. Stahl, Appellate Judge and Jeffrey R. Howard, Appellate Judge. Published. [13-1471]

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United States Court of Appeals
For the First Circuit

No. 13-1471
ANTHONY COOPER,
Petitioner, Appellant,
v.
KARIN T. BERGERON,
Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before
Lynch, Chief Judge,
Stahl and Howard, Circuit Judges.

Jeanne M. Kempthorne for appellant.
Todd M. Blume, Assistant Attorney General, with whom Martha
Coakley, Attorney General, was on brief, for appellee.

February 13, 2015

Case: 13-1471

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HOWARD,

Circuit

Page: 2

Judge.

Date Filed: 02/13/2015

A

Massachusetts

Entry ID: 5886257

jury

found

Anthony Cooper guilty of armed robbery and armed burglary, and the
state trial judge found him to be a habitual offender, see Mass.
Gen. Laws ch. 265, § 17; id. ch. 266, § 14; id. ch. 279 § 25.
Sentenced to life in prison and unsuccessful in his direct appeal,
Cooper sought federal habeas relief, alleging violations of his due
process rights under the Fifth and Fourteenth Amendments.
U.S.C. § 2254.
court's

See 28

In particular, he challenged the state appellate

determination

that

the

robbery

and

burglary

victim's

pretrial identification of his voice on a recorded telephone call
was not tainted by an improperly suggestive police procedure, and
its holding that his statements to the police were voluntary.

The

federal district court denied Cooper's habeas corpus petition.

We

affirm.
I.
We are required to presume that the Massachusetts Appeals
Court's

description

of

the

facts

is

correct.

28

U.S.C.

§

2254(e)(1); Gunter v. Maloney, 291 F.3d 74, 76 (1st Cir. 2002).
Accordingly, we set forth the facts as drawn from that opinion.
See Commonwealth v. Cooper, 878 N.E.2d 581, No. 06-P-329, 2007 WL
4571178 (Mass. App. Ct. 2007) (unpublished decision).
Late one night in February 2002, having been asleep on a
couch in her Hingham, Massachusetts home, the victim awoke to find
a man standing over her and in the process of putting his hands

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In the brief time before her vision was completely

blocked, she saw that the intruder was wearing dark clothing,
gloves and a hat.

He remained in the residence long enough to

take her handbag before leaving.
Although the episode lasted no more than a minute, the
man spoke to the victim repeatedly.

While still at the couch, he

placed a shawl over her eyes and ordered her three times, "Don't
get up.

Don't move, I have a knife."

He also asked her whether

she had any money and twice asked if she was "okay."

When the

victim pointed to her handbag, saying, "on my bed," the intruder
instructed her, "Don't move, don't look up."

He retrieved the

handbag and asked the victim her name, to which she replied,
"Julie."

Returning to the couch, he rubbed her leg with his hand

while commenting on her appearance:
you have a nice body."
just leave."

"Julie, you're very pretty,

In fear, the victim protested, "No, please

The man then stated, "Okay, I'm leaving.

Don't get

up, don't call the police, I'll be watching you through the
window."

She then heard him walk toward the door.

Once he had

gone, she called the police, who arrived quickly, just before 2:00
a.m.
After scouting the area, police officers told the victim
that they had noticed a car that "did not belong."

When they took

her to the vehicle, she saw her black handbag lying on the ground
next to it and some of her belongings spilled on the pavement.

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She

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also noticed that money was missing from her wallet and saw that
her checkbook and portfolio case were inside the car, along with
gloves and a knit hat apparently worn by the intruder.
Later that morning, Cooper called the neighboring Quincy
police department and reported that his car had been stolen.

The

Quincy police immediately notified the Hingham police and also told
Cooper to contact the Hingham police.

Cooper did so and briefly

spoke with a Hingham lieutenant about the purportedly stolen car.
Both

the

exchange

between

the

two

departments

and

Cooper's

subsequent call to Hingham were recorded by the Hingham police. We
provide some detail about the contents of the recording, as they
are central to Cooper's suggestiveness claim.1
The first call begins with a brief dialogue between a
Quincy officer and a Hingham dispatcher, in which the former
advises that, "we just ran a plate and it came back that you guys
queried at two fifteen this morning, so I wondered if you guys
wanted

it

for

something?"

He

provides

the

license

plate

information and then states that the vehicle is an "'88 Olds
Cutlass." The Hingham dispatcher confirms, "Yep, we're looking for
him."

The Quincy officer then informs the Hingham dispatcher that

1

Our description is drawn from the tape in the record marked
as "Exhibit 14," apparently from the trial itself, and the
transcript of the tape marked as "Exhibit 2," apparently from the
suppression hearing. We note that the trial transcript indicates
that the jury received redacted versions of the tape and the
transcript as trial exhibits, and that some portion of the tape was
played for the jury during the victim's testimony.
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the caller is "on the phone with us right now saying that he left
his keys in his car and now it's not there."

The dispatcher, in

turn, tells a Hingham police lieutenant of the Quincy report,
during which laughter is heard in the background. The call is then
transferred to the lieutenant, and the recording continues with a
conversation between the Quincy officer and the Hingham lieutenant.
The Quincy officer informs the lieutenant, "We have a
gentleman on the other line right now . . . Anthony Cooper," and
states, "He left his keys in his car and someone took it."

The

dialogue continues:
[Hingham lieutenant:] What do you know?
[Quincy officer:] I know, huh, coincidence, isn't it?
[Hingham lieutenant:] Yeah, geeze I'm really shocked!
I'm just shocked that it took him so long to call it in,
I had a couple of conversations with his wife over that,
she had no idea where he was, so, um, why don't you
suggest to him strongly that he come to the Hingham
Police and have some discussion with us this morning?
[Quincy officer:] You got it.
[Hingham lieutenant:] All right.
[Quincy officer:] We'll tell him to come down and see
you.
[Hingham lieutenant:] I appreciate it.
At one point, the Hingham lieutenant may be heard laughing, and the
tone of both police officers is aptly described as sarcastic at
times.

The officers soon conclude their conversation.

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The recording continues with a second phone call between
a Hingham dispatcher and a male caller, Cooper. The caller states,
"Yeah, I was just told to call down there," and, after being
briefly put on hold, he informs the dispatcher, "Yeah, my car was
stolen last night in Quincy . . . [a]nd I just reported it, I got
into work and reported it . . . [a]nd they said that Hingham police
want to talk to me."

The dispatcher transfers the call to the

Hingham lieutenant, who receives the stolen car report from the
caller.

The recording ends with the lieutenant encouraging Cooper

to come to the police station, and it includes a reference by the
lieutenant to Cooper's lengthy criminal record and a suggestion
that a lawyer should accompany him.
The

police

arrested

Cooper

later

that

day,

and

a

detective interviewed him after informing him of his Miranda
rights.

At the outset, the detective asked Cooper whether he was

represented by counsel.

Cooper replied that he was not and stated

that he wanted to retain a lawyer "closer to home."

At one point

during the interview, the detective told Cooper that "if he did not
speak with [the detective], he would see to it that D.S.S. [would
take] his son away from his ex-wife." Cooper subsequently told the
detective that he had been with a friend named Richard Parker the
previous night.
On the day following Cooper's arrest, the victim brought
some personal items to the police station, including her handbag.

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While there, a police detective asked her to listen to a "911 tape"
of someone reporting a stolen car. He did not identify the caller,
nor did he tell her of any connection that the call may have had to
the home invasion.

At the detective's suggestion, she listened to

the tape with her eyes closed.

He played the recording from the

beginning, when the Quincy police first contacted the Hingham
police, and continued to play all of that call and the beginning of
the call between Cooper and the Hingham police.
As soon as the victim heard the caller's voice on the
recording, she immediately recognized it as belonging to the
intruder.

She opened her eyes, and, shaking, stated, "That's him,

that's the guy." The detective turned off the tape once the victim
identified the voice; she did not hear the last part of the
recording during which the Hingham lieutenant commented on the
caller's lengthy criminal record and the suggestion that he obtain
legal counsel.
Before trial, Cooper sought to suppress all in-court and
out-of-court identification evidence, as well as his post-Miranda
statements to the police.

These motions were denied, and the

police recording (at least some portion of it, see supra n.1) and
Cooper's statements to the detective were included in the evidence
presented to the jury. The victim confirmed her out-of-court voice
identification and repeated that identification in court after a
portion of the tape was played before the jury.

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evidence that the jury heard was testimony that, on several
occasions,

Cooper

instructed

him

enforcement.

had

to

called

confirm

his

friend

Cooper's

Richard

alibi

story

Parker

and

with

law

The jury found Cooper guilty of armed robbery and

armed burglary, and the trial judge subsequently determined that he
was a habitual offender, which required that he be sentenced to a
maximum term on the substantive counts.

See Mass. Gen. Laws ch.

279, § 25.
On

direct

appeal,

the

Massachusetts

Appeals

Court

rejected Cooper's state and federal constitutional challenges to
the admission of the voice identification and of his post-Miranda
statements. Cooper, 878 N.E.2d 581, 2007 WL 4571178, at *3-4. The
court concluded that the victim's voice identification was properly
admitted, because it was "based solely on her recognition of the
intruder's voice, with no possible improper suggestions by any
police officers."

Id. at *3.

The court also concluded that the

trial court properly found that Cooper's statements to the police
were voluntary.

Id. at *4.

It did so after considering the

surrounding circumstances, including that Cooper had provided the
police "a self-serving statement concerning his alibi."

2

Id.2

Analyzing this claim under the Massachusetts Constitution,
the court required proof beyond a reasonable doubt, rather than by
a preponderance of the evidence as required by the U.S.
Constitution, that the defendant voluntarily waived his Miranda
rights or voluntarily made a confession. See Colorado v. Connelly,
479 U.S. 157, 168-69 (1986); Commonwealth v. Tavares, 430 N.E.2d
1198, 1206 (Mass. 1982).
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Noting the representation that the detective made to Cooper about
the Department of Social Services (DSS)removing his child from his
former spouse, the court stated that, while "concern for a loved
one

may,

in

involuntary,"

certain
the

record

circumstances,
was

"devoid

render

a

any

unfair

of

confession
tactics,

illegitimate police conduct, or psychological coercion."
(quoting state cases) (alterations omitted).

Id.

The Supreme Judicial

Court of Massachusetts denied further appellate review.

See

Commonwealth v. Cooper, 881 N.E.2d 1141 (Mass. 2008) (Table).
Cooper then pursued § 2254 federal habeas relief, and the district
court adopted a magistrate judge's recommendation to deny the
petition.
II.
Our review of the district court's decision is de novo.
Pena v. Dickhaut, 736 F.3d 600, 603 (1st Cir. 2013); Clements v.
Clarke, 592 F.3d 45, 51 (1st Cir. 2010).
A petitioner seeking relief under the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA"), must complete a
steep climb.

See Pub. L. No. 104-132, 110 Stat. 1214 (codified at

28 U.S.C. § 2254); see Johnson v. Williams, 133 S. Ct. 1088, 1094
(2013); Harrington v. Richter, 131 S. Ct. 770, 786 (2011).

When a

claim previously has been adjudicated on the merits by a state
court, a petitioner must show that the decision was contrary to
clearly established federal law as determined by the Supreme Court

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of the United States, or involved an unreasonable application of
such definitive federal law, or 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).

Only a legal or

factual error that is objectively unreasonable will warrant relief.
See White v. Woodall, 134 S. Ct. 1697, 1702 (2014); Burt v. Titlow,
134 S. Ct. 10, 15 (2013); see also Hensley v. Roden, 755 F.3d 724,
731 (1st Cir. 2014).

By contrast, AEDPA constraints do not apply

where a state court decision does not resolve a federal claim that
was presented to it, and a habeas court will afford de novo review
to the claim.

Hodge v. Mendonsa, 739 F.3d 34, 41 (1st Cir. 2013);

Clements, 592 F.3d at 52.
In this case, the petitioner accepts that his § 2254 due
process

challenge

to

the

admissibility

of

his

post-Miranda

statements is subject to AEDPA review, and he argues that the state
court decision constitutes an unreasonable application of clearly
established federal law.

With respect to his voice identification

due process claim, however, Cooper contends that AEDPA review
applies only in part.

He argues that the state court's ruling on

the propriety of the voice identification procedure rests on an
unreasonable

determination

of

the

facts

and

constitutes

unreasonable application of clearly established federal law.

an
But

he seeks de novo review on the ultimate constitutional question of
the reliability of the identification which, he contends, the state

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As we will explain, we are required to afford

AEDPA deference across the board in this case.
A.

Voice Identification

The admissibility of an identification may be called into
question when the police have used a highly suggestive procedure in
asking an eyewitness to identify an individual, such as presenting
photographs only of the suspect or having the suspect "show up"
alone.

See Manson v. Brathwaite, 432 U.S. 98, 112, 117 (1977);

Neil v. Biggers, 409 U.S. 188, 196-200 (1972); see also Stovall v.
Denno, 388 U.S. 293, 302 (1967) (plurality opinion), overruled on
other grounds by
Nevertheless,

the

Griffith

v. Kentucky, 497 U.S. 314 (1987).

admission

of

evidence

relating

to

an

impermissible or unduly suggestive procedure that gives rise to the
risk of an unreliable identification does not, by itself, establish
a due process violation.

See Brathwaite, 432 U.S. at 109-14;

Biggers, 409 U.S. at 198-200; see also United States v. CastroCaicedo, No. 13-1046, 2014 WL 7331738, at *3-5 (1st Cir. Dec. 24,
2014).

Ordinarily, such evidence is tested before the jury by

being exposed to cross-examination.

Brathwaite, 432 U.S. at 113

n.14; Castro-Caicedo, No. 13-1046, 2014 WL 7331738, at *2.

Due

process demands that evidence be excluded from a criminal trial
only

when

the

identification

procedure

employed

was

so

impermissibly suggestive as to give rise to "a very substantial
likelihood of irreparable misidentification." Biggers, 409 U.S. at

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198 (internal quotation marks omitted); see also Brathwaite, 432
U.S. at 114, 116; Simmons v. United States, 390 U.S. 377, 384
(1968); Stovall, 388 U.S. at 302.
Fundamentally,
determining

the

"reliability

admissibility

of

is

the

linchpin

identification

in

[evidence],"

Brathwaite, 432 U.S. at 114, and the Supreme Court has identified
a

number

of

factors

for

evaluating

the

totality

circumstances when answering the reliability question.
114-17;

Biggers,

409

U.S.

at

199-200.

They

of

the

See id. at

include

"the

opportunity of the witness to view the criminal at the time of the
crime, the witness' degree of attention, the accuracy of his prior
description of the criminal, the level of certainty demonstrated at
the

confrontation,

and

the

time

between

the

crime

and

the

confrontation." Brathwaite, 432 U.S. at 114; see Biggers, 409 U.S.
at 199-200. "Against these factors is to be weighed the corrupting
effect of the suggestive identification itself."
U.S. at 114.

Brathwaite, 432

This calculus involves a mixed question of law and

Sumner v. Mata, 455 U.S. 591, 597 (1981).3

fact.

In a habeas case such as this, we apply these principles
in the context of § 2254's review standards and, as noted earlier,
Cooper asks us to use a two-tiered standard of review: deferential

3

The cases typically address evidence tied to visual
pretrial identification. The parties do not suggest a different
standard for assessing voice identification evidence. See United
States v. Gilbert, 181 F.3d 152, 163 (1st Cir. 1999) (applying
Brathwaite holding to vo ice identification procedures).
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review of the state court ruling that the voice identification
procedure was not impermissibly suggestive, but de novo review on
the ultimate constitutional question of reliability. He builds his
case

for

de

novo

review

on

what

he

describes

as

the

"extraordinar[il]y" and "astonishingly" suggestive content of the
tape.4

We reject this two-tiered construct, because we read the

state court's decision as having adjudicated the merits of the
reliability

question,

and

it

is

therefore

entitled

to

AEDPA

deference.
"AEDPA's trigger for deferential review is adjudication,
not explanation," and "[i]t is the result [reached by the state
court] to which we owe deference, not the opinion expounding it."
Clements, 592 F.3d at 55-56; see Richter, 131 S. Ct. at 784 (AEDPA
review is not dependent on a state court opinion that explains its
reasoning, nor on citation to or even awareness of Supreme Court
precedent). A federal claim is deemed adjudicated on the merits by
a state court where the decision finally resolves "the parties'
claims, with res judicata effect, that is based on the substance of
the claim advanced, rather than on a procedural, or other, ground."

4

Cooper also argues that the state court decision rests on
a clearly erroneous finding of historical fact regarding the
chronology of the criminal investigation.
See 28 U.S.C. §
2254(d)(2).
The state court's analysis, however, demonstrates
clearly that it fully understood that Cooper had been arrested
before the victim visited the police station.
See Cooper, 878
N.E.2d 581, 2007 WL 4571178, at *3. No further attention to this
issue is warranted.
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Clements, 592 F.3d at 52 (internal quotation marks omitted); see
also Johnson, 133 S. Ct. at 1097 (noting that adjudication "on the
merits" under AEDPA connotes that the state court heard and
evaluated the evidence and the substantive arguments, and then
resolved the dispute).

Cooper does not dispute the broader

prerequisites of substantive decision and res judicata effect.
Rather, he argues that the state court's substantive decision
rested solely on a finding that the procedure itself was not
impermissibly suggestive.

But, "[w]hen a federal claim has been

presented to a state court and the state court has denied relief,
it may be presumed that the state court adjudicated the claim on
the merits in the absence of any indication or state-law procedural
principles to the contrary."

Richter, 131 S. Ct. at 784-85; see

Johnson, 133 S. Ct. at 1094-96.

Cooper attempts to overcome this

presumption with a skewed reading of the state court's decision
that we must reject.5

5

Cooper analyzes the state court's decision using the twotiered due process framework set forth in our direct review
precedent. See, e.g., United States v. Rivera-Rivera, 555 F.3d
277, 283 (1st Cir. 2009) (considering (1) whether the
identification procedure was impermissibly suggestive, and (2) if
so, whether the identification was reliable notwithstanding the
suggestiveness of the procedure, considering the totality of the
circumstances). It is the Supreme Court's authority, however, that
sets the benchmark for the federal due process question. See Lopez
v. Smith, 135 S. Ct. 1, 3-4 (2014). Relatedly, when scrutinizing
the state court's decision, we are mindful that Massachusetts
abides by the per se exclusionary approach for pretrial
identification procedures which are unnecessarily suggestive. See
Commonwealth v. Johnson, 650 N.E.2d 1257, 1259-65 (Mass. 1995).
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The impact that the playing of the portion of the tape
containing the police dialogue may have had on the reliability of
the victim's voice identification was front and center throughout
the state court proceedings.

The Massachusetts Appeals Court

directly confronted the argument that the admission of the voice
identification evidence violated Cooper's due process rights under
the state and federal constitutions because the content of the tape
rendered the procedure excessively suggestive and conducive to
mistaken identification.
at *3.

Cooper, 878 N.E.2d 581, 2007 WL 4571178,

The legal framework anchoring the Appeals Court's analysis

plainly included the key constitutional question of reliability.
See id.

Indeed, the court cited Massachusetts cases that discuss

reliability in the context of Stovall, Biggers, and Brathwaite.
See Commonwealth v. Torres, 327 N.E.2d 871, 874 (Mass. 1975);
Commonwealth v. Pacheco, 421 N.E.2d 1239, 1245-46 (Mass. App. Ct.
1981).6
The state court's reliance on Pacheco, in particular,
demonstrates that it was intending to address reliability in accord
with

Biggers

and

constitutional claim.

Brathwaite

when

resolving

the

federal

In his direct appeal, Cooper took the

position that, for both his state and federal claims, the Appeals

6

That the state court expressly cited only state case law is
of no moment. See Clements, 592 F.3d at 54 ("The real question is
not whether the state court opinion cited to any federal cases, but
whether the opinion addresses a fairly raised federal issue."); see
also Johnson, 133 S. Ct. at 1095-96.
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Court "should consider" the Biggers factors to rule that the
totality of the circumstances were insufficient to overcome the
extraordinary

suggestiveness

of

the

police

procedure.

The

Commonwealth, by contrast, argued that resolution of the state
constitutional

claim

depended

solely

on

the

quality

of

the

identification procedure "without recourse to a secondary analysis
of witness certainty or reliability." See Commonwealth v. Johnson,
650 N.E.2d 1257, 1259-65 (Mass. 1995) (declining to align with the
holding

in

Brathwaite).

Faced

with

these

arguments,

the

Massachusetts Appeals Court explicitly followed Pacheco, a case
which had resolved a defendant's federal and state due process
claims

by

relying

on

the

federal

independent source formulations.

reliability

and

the

state

See Pacheco, 421 N.E.2d at 1246

& n.12 (examining the totality of the circumstances to conclude
that

the

pretrial

identification

bore

"sufficient

indicia

of

trustworthiness to satisfy either the reliability test formulated
in the Biggers-Brathwaite cases or the independent source standard
stated in the [SJC's] Botelho-Venios decisions").
Court

ultimately

held

that

"viewing

the

The Appeals

totality

of

the

circumstances, the 911 call reporting the stolen car was properly
admitted because the victim's identification was based solely on
her recognition of the intruder's voice, with no possible improper
suggestions by any police officers."
WL 4571178, at *3.

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The Massachusetts Appeals Court's decision, therefore,
gives adequate and sufficiently clear indicia that addressing the
reliability question was at the heart of its resolution of the
federal

due

process

claim.

See

Hodge,

739

F.3d

at

41,

42

(determining whether there were "adequate" and "sufficiently clear"
indicia that a claim had been adjudicated on the merits); see also
Clements, 592 F.3d at 55 (noting that only "[w]hen a state court
has truly avoided (or merely overlooked) the petitioner's federal
claim" may a federal court "step into the breach and review de
novo"; "judicial opacity is a far cry from judicial avoidance").
Cooper
decision

points

reflecting

a

us

to

language

conclusion

suggestiveness in the procedure.

that

in

the

state

it

found

a

court's
lack

of

See, e.g., Cooper, 878 N.E.2d

581, 2007 WL 4571178, at *3 n.2 (remarking in a footnote that
"there was nothing improperly suggestive when the 911 call was
transferred between police officers").

This parsing, however,

overlooks that the state court plainly chastened the police for its
poor identification procedure.

See id. at *3 & n.2 (expressing

concern over the use of "a single taped voice," and also stating
that excising "superfluous conversations" of the recorded police
dialogue

would

have

been

"the

better

practice").

The

constitutional question does not ultimately turn on finding an
imperfect or inappropriate police practice, and the state court
thus sharpened the point to whether any impropriety relating to the

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procedure irreparably infected the victim's certain recognition of
the intruder's voice from her own recollection.

See, e.g.,

Brathwaite, 432 U.S. at 114-17 (though "it would have been better"
for the police to include additional photograph samples, the
identification evidence was reliable and properly admitted at
trial); Simmons, 390 U.S. at 384-86 (same holding on reliability,
while recognizing that the identification procedure "may have in
some respects fallen short of the ideal").
We are required to read the state court's decision
pragmatically, Johnson, 133 S. Ct. at 1095-96, and, through this
lens, we are to determine what arguments or theories supported the
state court's decision on the merits, Richter, 131 S. Ct. at 780,
and then apply AEDPA's objective reasonableness standard to those
arguments

or

theories.

While

in

this

case

the

state

court

rejected Cooper's characterization of the tape as insurmountably
suggestive,

we

are

persuaded

reliability

question

in

that

the

it

context

answered
of

a

the

federal

less-than-ideal

identification procedure. Even if we were not persuaded so, we are
to presume that there was a merits determination on the reliability
claim

that

was

presented

deferential AEDPA review.

to

the

state

court,

and

to

afford

See Richter, 131 S. Ct. at 784-85;

Hodge, 739 F.3d at 42.
Cooper primarily faults the state court for rejecting his
position

that

the

single-voice

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extraordinarily suggestive, given the tape's content.

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Focusing on

the police dialogue heard by the victim, Cooper contends that the
state court ignored or dismissed important surrounding facts when
discounting its import.

He points out that:

his name was used

during the dialogue; the police noted that the caller's wife did
not know of her husband's whereabouts the night before; the police
clearly and caustically communicated their disbelief of the caller;
the call involved a stolen car report and the victim had just seen
an abandoned car in relation to the crime; and the victim knew that
a suspect already was in police custody.

Taken together, he

argues, "[i]t is difficult to imagine a more suggestive voice
identification procedure or more egregious set of facts," since the
police "all but used a megaphone to broadcast their belief in
Cooper's guilt" to the victim.
While

the

police

dialogue

undeniably

communicates

disbelief about the caller's report, the record would not compel
all reasonable jurists to conclude that the tape's content renders
any subsequent voice identification unreliable.

For example,

despite the fact that the police identified the caller's name as
"Anthony Cooper," the record provides no basis to infer that the
victim had any idea at the time that she listened to the tape that
a person by that name had anything to do with the home invasion.
Indeed,

the

state

court

noted

that

when

initiating

the

identification procedure, the detective never mentioned that the

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tape was of the petitioner or that the police had arrested the
individual on the tape.

Further, the record allows the conclusion

that the detective did not draw a connection for the victim between
the car found at the scene some sixty hours earlier and the
caller's stolen car report, and it is not a foregone conclusion (as
the petitioner suggests) that the victim held her general awareness
of the car from the scene in the forefront of her mind at the time
that she listened to the taped call.

Moreover, the description of

the vehicle on the tape was vague, the stolen car was not connected
to any particular geographical location, and the stolen car report
itself was not grounded in any time frame which temporally tied it
to the crime against the victim.
Admittedly, it is possible to align words in the printed
transcript of the tape with particular chronological facts, in
order to extract potential inferences and connections between the
home invasion and the caller -- whom the police clearly did not
believe.

Whether or not we would reach the same conclusion as did

the state appeals court were this a direct appeal, however, the
points that are particularly provocative to Cooper simply are not
enough to establish under AEDPA that the state court's more
diminished view of the import of the tape's content was objectively
unreasonable.
As well, as we have taken pains to point out, a broader
panorama undergirds the state court's decision on the reliability

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of the victim's identification.

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More specifically, the record on

the motion to suppress allowed the state court to conclude the
following based on the totality of the evidence.

See Biggers, 409

U.S. at 199-200 (setting forth reliability factors); see also
Richter, 131 S. Ct. at 784 (a petitioner must show "there was no
reasonable basis for the state court to deny relief . . . whether
or not the state court reveals which of the elements in a multipart
claim it found insufficient").
The victim had a meaningful opportunity to discern the
intruder's

voice.

During

the

commission

of

the

crime,

he

repeatedly spoke to her while positioned closely to her, using a
variety of phrases, questions, and commands.

Also, the victim was

not a casual observer during the incident; she had her eyes closed
and

was

alone

in

her

home

with

concentrated, disturbing event.

the

intruder

during

the

The victim told the police that

she would recognize the voice if she heard it again, and, then,
when she later listened to the tape, her identification of the
perpetrator's voice instantaneously followed the caller's first
utterance.

Moreover, her immediate recognition was accompanied by

a telling emotional display; as the detective explained, she was
shaking when she recognized the caller's voice as that of the
intruder.

Also,

the

victim

listened

to

the

tape

within

approximately sixty hours of the crime, which ordinarily would not
be enough of a time lapse to result in much memory fade about the

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frightful event. This is enough to prevent us from concluding that
the

state

court's

reliability

decision

was

objectively

unreasonable.
Cooper responds, however, that the victim's own testimony
during the suppression hearing shows that at the time that she
listened to the tape, she was aware of a "strong possibility" that
the caller was the person responsible for the intrusion.
testimony, however, was not so unambiguous.
699

Espinal-Almeida,

F.3d

588,

Her

Cf. United States v.

602-03

(1st

Cir.

2012)

(circumstances surrounding the witness' viewing of photographs of
suspects may be pertinent to "whether there was any unnecessarily
suggestive

identification

procedure

that

preceded

the

identification").
Under cross-examination at the hearing, the victim did
not acquiesce to defense counsel's persistent questioning about
whether she had a "strong sense" that the voice she was asked to
hear belonged to the intruder: "I think it was going to be a
possibility.
too.

It could have been the person who stole the car[,]

I mean, I was just listening to see if I could identify the

voice"; "I was just listening to the voice to see if I could
recognize it."

She also testified that the police detective did

not connect the caller to the home invasion suspect, telling her
only that the tape involved a recording a stolen car report.
Moreover, she explained that while she was listening to the tape,

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she did not connect the purportedly stolen car to the vehicle that
she had seen on the night of the crime; she did not focus on the
content of any dialogue but centered her attention on whether she
could recognize a voice; and she kept her eyes closed during the
playing of the tape, a method which she testified helped her
concentrate on the caller's voice. Finally, and importantly, there
is not even a hint throughout her testimony that the Hingham
detective ever exerted any pressure on her to make a positive
identification or otherwise cued her before or during the playing
of the tape.
Cooper,

nonetheless,

protests

that

the

state

court

neglected to consider whether any exigent circumstances justified
the use of the suggestive tape or the single-voice procedure.

He

relies on Brathwaite and Stovall, but neither authority helps him.
Brathwaite established that federal due process does not compel the
exclusion of evidence obtained by a police procedure that was both
suggestive

and

reliability.

unnecessary,

432 U.S. 109-14.

apart

from

any

consideration

of

Stovall had previously established

that, where exigent circumstances are present, such circumstances
may excuse the use of an inherently suggestive identification
procedure.

388 U.S. at 302; see Biggers, 409 U.S. at 198-99

(declining to adopt a per se rule that "unnecessary suggestiveness
alone requires the exclusion of evidence").

Cooper does not point

to any Supreme Court precedent holding that a court is required to

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evaluate the presence or absence of exigency when determining the
crux of the matter, reliability.

Cf. Biggers, 409 U.S. at 198

("Suggestive confrontations are disapproved because they increase
the likelihood of misidentification, and unnecessarily suggestive
ones are condemned for the further reason that the increased chance
of misidentification is gratuitous." (emphasis added)).

Nor does

he point to any Supreme Court case holding that evidence derived
from a procedure with a suggestive feature was unreliable due to
the lack of exigency.
As his last stand, Cooper contrasts this case with an
array of federal cases in which, inter alia, the identifying
witness had greater occasion to interact with an individual, had
prior knowledge of the person, had particularly acute observation
skills, had described the individual prior to participating in the
identification procedure, and had identified the person within
hours of the underlying event.7

Each circumstance is meaningful in

its own right, and especially so when taken together.

It is not

uncommon, however, for a witness identification to involve an
unduly suggestive procedure, as well as other circumstances that
may weaken the accuracy of the witness's recall, that -- when

7

See United States v. Henderson, 320 F.3d 92, 100-01 (1st
Cir. 2003); United States v. Flores-Rivera, 56 F.3d 319, 330-31
(1st Cir. 1995); United States v. de Jesus-Rios, 990 F.2d 672, 677
n.6 (1st Cir. 1993); United States v. Fields, 871 F.2d 188, 195-96
(1st Cir. 1989); Velez v. Schmer, 724 F.2d 249, 252 (1st Cir.
1984).
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viewed

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on

the

whole

--

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nevertheless

do

not

Entry ID: 5886257

undermine

the

reliability of the evidence for purposes of admitting it at trial
for the jury to decide its weight.

See, e.g., United States v.

Henderson, 320 F.3d 92, 100-01 (1st Cir. 2003) (a lapse of several
months and the witness's varying physical descriptions did not
undermine the reliability of the in-court identification given
other strong indicia of reliability). In short, the cases that the
petitioner cites are not roughly comparable in a way that prompts
any concern about state error, let alone objectively unreasonable
error under AEDPA standards.
Ultimately, the state court's decision that the evidence
was sufficiently reliable for the jury's consideration involves the
type of constitutional calculus established by the Supreme Court
that permits a fair amount of latitude in the exercise of sound
decisional judgment.8

See Richter, 131 S. Ct. at 786.

8

Even if

We note that the Supreme Court cases on which Cooper relies
could also be read to cut against him. See Brathwaite, 432 U.S. at
114-17 (though "it would have been better" for the police to
include additional photograph samplings, the identification was
reliable because, inter alia, the eyewitness clearly observed the
defendant, the witness was not a "casual or passing observer," the
identification was certain and within two days of the crime, and no
police pressure was exhibited during the procedure); Biggers, 409
U.S. at 200-01 (though pretrial identification comprised a show up
which is inherently suggestive, the identification was reliable
because, inter alia, the eyewitness had a meaningful opportunity to
view the assailant's features during the crime, their interaction
was in close proximity and in good lighting, the eyewitness was not
a "casual observer" but a victim of a traumatic crime, and her
identification was certain); Simmons, 390 U.S. at 384-86 (though
identification procedure "may have in some respects fallen short of
the ideal," the identification was reliable because, inter alia,
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some might see this case as presenting a close question, such a
threshold is not enough to warrant habeas relief.
Dickhaut, 677 F.3d 39, 47 (1st Cir. 2012).

See Morgan v.

In sum, Cooper has not

carried his heavy burden of establishing some "extreme malfunction"
in the state court's decision, to warrant § 2254 relief.

Titlow,

134 S. Ct. at 16.
B.

Post-Miranda Statements

A "confession obtained by police through the use of
threats is violative of due process" and "the question in each case
is whether the defendant's will was overborne at the time he
confessed."

Haynes

v. Washington, 373 U.S. 503, 513 (1963)

(internal quotation marks omitted); see also Moran v. Burbine, 475
U.S. 412, 421 (1986).

"[T]he true test of admissibility is that

the confession is made freely, voluntarily, and without compulsion
or inducement of any sort," which requires "an examination of all
of the attendant circumstances." Haynes, 373 U.S. at 513 (internal
quotation marks omitted); see Lynumn v. Illinois, 372 U.S. 528, 534
(1963). The Supreme Court has identified several factors for
evaluating whether a confession was voluntarily made, and any
coercive effect of police statements that exploit an individual's
familial relationships may be part of the calculus.

See United

the eyewitnesses had a good opportunity to see the perpetrators
during the crime, the procedure occurred only one day after the
crime when the witnesses' memories were fresh, the witnesses were
not pressured by
the police, and they were certain in their
recollection).
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States v. Hughes, 640 F.3d 428, 438 (1st Cir. 2011) (summarizing
factors

under

Supreme

Court

precedent

for

"conduct[ing]

the

juridical equivalent of an archeological dig into the whole of the
circumstances"); see also Lynumn, 372 U.S. at 534 (considering
familial threats made by police as part of the totality); United
States

v.

Jacques,

744

F.3d

804,

809

(1st

Cir.

2014)

("A

defendant's calm demeanor and the lucidity of his statements weigh
in favor of finding his confession voluntary.").
Ultimately, the voluntariness inquiry is a mixed question
of law and fact, see United States v. Gaudin, 515 U.S. 506, 525
(1995) (Rehnquist, C.J., concurring); Miller v. Fenton, 474 U.S.
104, 112 (1985), and it is one that is understood as allowing sound
jurisprudential judgment within fairly wide margins, see Haynes,
373 U.S. at 515.

In light of the deference due state courts under

AEDPA, we are thus, again, required to give considerable leeway to
the

state

question.

court's

resolution

of

the

federal

constitutional

See Richter, 131 S. Ct. at 786.
Cooper contends that the state court's conclusion that he

voluntarily

spoke

application

of

to

the

clearly

police

constitutes

established

Supreme

an
Court

unreasonable
authority,

particularly in light of the detective's threat to remove his child
from the mother's custody.

Even though his statements to the

police do not amount to a confession, he underscores that his
statements led law enforcement to inculpatory evidence that was

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used at trial to support an inference of consciousness of guilt;
namely, the evidence of his post-arrest conversations with Parker
in which Cooper pressured his friend to stick to the alibi story.
He challenges the state court's decision that his post-Miranda
statements were voluntary on three grounds.

None clear AEDPA's

high hurdle.
Cooper first argues that the state court adopted a
"completely unreasonable conclusion" that the detective's threat
about DSS did not constitute illegitimate police action.
contention misreads the thrust of the state court's decision.

This
The

court's analysis shows that it considered the impact of the
detective's exploitation of the parent-child relationship in light
of other circumstances that evinced Cooper's clear-mindedness in
his interaction with the police.

For example, when affirming the

state trial court's voluntariness analysis, the Massachusetts
Appeals Court emphasized Cooper's calm demeanor, his status as a
"seasoned career criminal [who was] unlikely to succumb to fear and
intimidation," the multiple Miranda warnings given to him, and his
discussion with the detective about his intention to hire an
attorney.

Indeed, the record on the motion to suppress before the

state trial court shows that Cooper had been interviewed by law
enforcement more than ten times during his life and that he had
provided
occasions.

post-Miranda

statements

to

the

police

on

several

As for the DSS threat itself, the state court's

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decision is properly cast as concluding that the police threat did
not effect the sort of psychological coercion on Cooper that would
tip the balance away from the other indicia that he had made his
statements voluntarily.

In short, we disagree with Cooper's

reading of the state court's decision that it "failed to afford the
threat to remove [his] child from [the mother's] home any weight in
the balance."9
The second ground advanced by Cooper is that the state
court's reliance on the self-exonerating nature of his alibi
statement conflicts with clear Supreme Court authority.

According

to Cooper, Rogers v. Richmond, 365 U.S. 534 (1961), and United
States v. Bram, 168 U.S. 532 (1897), foreclose a court from
considering, in any manner, the content of a defendant's statement
procured by the police when assessing whether the statements were
made voluntarily. A proper understanding of this precedent and the
state court's reasoning here shows no conflict.
In Rogers, the Court held that the admissibility question
focuses on "whether the behavior of the State's law enforcement
officials was such as to overbear [a criminal defendant's] will to
resist and bring about confessions not freely self-determined" -an inquiry which must "be answered with complete disregard of

9

Despite Cooper's reliance on isolated circuit authority to
posit a specific rule that illegitimate police action renders
statements involuntary as a matter of law, we must remain fixed on
Supreme Court precedent. See Lopez, 135 S. Ct. at 3-4.
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whether or not [the individual] in fact spoke the truth." 365 U.S.
at 544; see Jackson v. Denno, 378 U.S. 368, 384-85 (1964) ("[P]roof
that a defendant committed the act with which he is charged and to
which he has confessed is not to be considered when deciding
whether a defendant's will has been overborne.").

It particularly

foreclosed consideration of the "probable truth or falsity" of the
statement itself, Rogers, 365 U.S. at 543, rather than any type of
evaluation of a statement's content, as Cooper proposes.
Bram

is

similar.

There,

the

Court

held

that

a

defendant's statements to police that did not evince a clear
confession still must have been uttered voluntarily in order to be
admissible against him at a criminal trial.

168 U.S. at 541-42;

see Arizona v. Fulminante, 499 U.S. 279, 285-86 (1991) (post-Bram
precedent setting forth the standard for determining voluntariness
of a confession). "Having been offered as a confession, and being
admissible only because of that fact, a consideration of the
measure of proof which resulted from [the statements to the police]
does not arise in determining its admissibility."
at 541.

Bram, 168 U.S.

Again, the Court's decision forecloses only a particular

type of consideration of the statement's content and does not
embody the all-encompassing holding that Cooper desires.
The state court's decision here neither evaluated the
truth or falsity of Cooper's statement (whether he indeed was with
his friend Parker at the time of the home invasion), nor calculated

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the measure of proof that would have been provided by the statement
at trial.

Rather, the state appeals court considered Cooper's

capacity to provide "a self-serving statement concerning his alibi"
as one component in assessing whether the DSS threat had a coercive
effect on him.

See Cooper, No. 06-P-329, 2007 WL 4571178, at *4.

Indeed, the state court had the record of the suppression hearing
before it, in which Cooper was asked outright how the DSS threat
affected him during the interview.

He testified that he felt

"overwhelmed" and "was totally out of it at that point for a few
short seconds," because he had "put [his] son through a lot in his
young life [and] would rather go to jail for something [he] didn't
do than to let them go to [his son] and take him away from his
mother."

His subsequent statement to the detective, however, was

not an effort to appease the officer by implicating himself at all
but, as the state trial court found, Cooper instead "prevailed over
the officer by providing a self-serving, exculpatory account."

On

this record, we conclude that the state court's consideration of
the self-serving statement when assessing whether the petitioner's
will was overborne as he testified, or whether he spoke with the
detective of his own free will, was objectively reasonable.
Thompson

v.

Keohane,

516

U.S.

99,

113

(1995)

(noting

See
that

credibility determinations for the voluntariness inquiry may be
pertinent "to the establishment of historical fact and thus to the
identification of the 'totality of the circumstances'").

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Finally, Cooper takes aim at the state court's assessment
of the totality of the circumstances, itemizing aspects of the case
that he believes the Massachusetts Appeals Court missed.10

As best

we can tell, he grounds his claim in the Supreme Court's decision
in Lynumn, 372 U.S. 528.

Although Lynumn bears some surface

similarities to this case in that both involve police statements
exploiting the parent-child relationship, their likeness ends
there.

The defendant in Lynumn had no prior experience with law

enforcement, she was alone in her apartment encircled by three
police officers and a convicted felon when she confessed, and, in
addition to threats about her child's provisional care, the police
also repeatedly told her that the felon had "set her up" and that
they would "go light with her" if she confessed.
34.

Moreover,

as

discussed

earlier,

the

372 U.S. at 533-

state

court

here

identified several factors showing that Cooper was not particularly
susceptible to police manipulation nor overcome by the DSS threat
itself.
Simply put, we are hard-pressed to see the state court's
decision

on

voluntariness

as

10

engendering

much

fairminded

While Cooper sees his discussion with the police detective
about retaining an attorney and his minimal formal education as
cutting against voluntariness, he does not claim that the detective
ignored a request for legal counsel. See, e.g., James v. Marshall,
322 F.3d 103, 108 (1st Cir. 2003) (reviewing Supreme Court
precedent establishing that the police must scrupulously honor a
suspect's right to remain silent and cease all questioning once
that individual unequivocally requests legal counsel).
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disagreement at all,11 let alone constituting a holding that is
objectively unreasonable under AEDPA.

See Titlow, 134 S. Ct. at

15-16; Richter, 131 S. Ct. at 786, 788.
III.
The petitioner has failed to establish that he suffers
illegal confinement; accordingly, we affirm the denial of his
§ 2254 petition.

11

See, e.g., Jacques, 744 F.3d at 808, 812 (upholding ruling
that a single statement by law enforcement about the defendant's
father's failing health suggesting that "continued resistance might
deprive [him] of crucial years with his family" did not have a
coercive impact where, inter alia, his demeanor "did not manifest
any notable psychological or emotional anxiety in response to [the
police] statement," and there were no indicia that he "was
particularly susceptible to manipulation").
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