Filed: January 7, 1997

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 93-7352

(CA-92-2709-3-1AK)

Kamathene Adonia Cooper,

Petitioner - Appellant,

versus

P. Douglas Taylor, etc., et al,

Respondents - Appellees.

ORDER

The Court amends its opinion filed December 31, 1996, as

follows:

On page 1, section 6, lines 4-5 -- the sentence is corrected

to read "Judge Luttig wrote a concurring opinion, in which Chief

Judge Wilkinson and Judges Widener and Williams joined."

On page 14, first full paragraph -- the paragraph is corrected

to read "Chief Judge Wilkinson and Judges Widener and Williams join

this concurring opinion."

For the Court - By Direction

/s/ Patricia S. Connor

Clerk

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KAMATHENE ADONIA COOPER,

Petitioner-Appellant,

v.

P. DOUGLAS TAYLOR, Warden;

No. 93-7352

T. TRAVIS MEDLOCK, The Attorney

General of the State of South

Carolina,

Respondents-Appellees.

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Falcon B. Hawkins, Senior District Judge.

(CA-92-2709-3-1AK)

Argued: June 4, 1996

Decided: December 31, 1996

Before WILKINSON, Chief Judge, and RUSSELL, WIDENER,

HALL, MURNAGHAN, ERVIN, WILKINS, NIEMEYER,

HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ,

Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Niemeyer wrote the opinion for

the court, in which Chief Judge Wilkinson and Judges Russell, Widener, Hall, Wilkins, Luttig, and Williams joined. Judge Widener

wrote a concurring opinion. Judge Luttig wrote a concurring opinion,

in which Chief Judge Wilkinson and Judges Widener and Williams joined. 

Judge Hamilton wrote a dissenting opinion, in which Judge Murnaghan

joined. Judge Motz wrote a dissenting opinion, in which Judges

Murnaghan, Ervin, Hamilton, and Michael joined.
COUNSEL

ARGUED: Bonnie Ilene Robin-Vergeer, Supervising Attorney,

Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW

CENTER, Washington, D.C., for Appellant. Donald John Zelenka,

Assistant Deputy Attorney General, Columbia, South Carolina, for

Appellees. ON BRIEF: Steven H. Goldblatt, Adam G. Ciongoli, Student Counsel, Susan Curtin Gouldin, Student Counsel, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER,

Washington, D.C., for Appellant.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

Kamathene Adonia Cooper confessed to South Carolina law

enforcement officers on three separate occasions that he had murdered Rheupert W. Stewart in Lake City, South Carolina. After conducting a hearing, the South Carolina trial court found those

confessions voluntary and otherwise constitutionally sound. Based on

those confessions, a jury convicted Cooper, and the court sentenced

him to life imprisonment. The Supreme Court of South Carolina

affirmed the judgment.

In his petition for a writ of habeas corpus, filed under 28 U.S.C.

§ 2254, Cooper argued that his confessions were admitted at his state

criminal trial in violation of his right to counsel under the Fifth and

Fourteenth Amendments. He contended that police took his confessions without honoring his desire to remain silent or his request for

an attorney.

Cooper's habeas petition was referred to a magistrate judge who

reviewed the entire record and concluded that Cooper's first two confessions were voluntary and not otherwise constitutionally infirm.

While finding that Cooper's third confession had been admitted in

violation of his right to counsel under Edwards v. Arizona, 451 U.S.

477 (1981), the magistrate judge held that the state trial court's erroneous admission of that confession was harmless because the confes-

 2
sion was cumulative and the jury would have convicted Cooper solely

on his first two valid confessions. Accordingly, the magistrate judge

recommended that the district court deny the petition for the writ of

habeas corpus.

The district court reviewed the matter de novo and agreed with the

magistrate judge, concluding that Cooper's first two confessions were

not constitutionally infirm and that the admission of the third confession in violation of Cooper's right to counsel was harmless. Accordingly, the district court denied Cooper's petition.

On appeal, a panel of this court, in a divided opinion, reversed the

district court's judgment, concluding that admission of the third confession was not harmless because it was "impossible to conclude with

any fair assurance" that the third confession did not have a "`substantial and injurious effect or influence' on the jury's verdict." Cooper

v. Taylor, 70 F.3d 1454, 1456 (4th Cir. 1995) (citations omitted). The

panel ordered that the district court grant Cooper the writ of habeas

corpus. In ordering a rehearing en banc, we vacated the panel decision, and now we affirm the judgment of the district court.

I

Rheupert Stewart was found murdered in his home on December

1, 1984. The den where his body was found was in disarray, with

pieces of a broken chair scattered about his body. The right rear

pocket of his pants had been turned out. An autopsy revealed that

Stewart had been beaten with a blunt object and stabbed in the head

and chest with a knife. The coroner concluded that Stewart had died

the day before from a stab wound to his brain.

A few days after Stewart's body was found, the manager of a local

department store informed the police that Cooper had cashed a check

drawn on Stewart's account. Cooper had written his driver's license

number on the back of what appeared to be a forged check. Based on

that information, a warrant was issued for Cooper's arrest.

After Cooper was arrested for forgery, officers advised him of his

Miranda right and then asked if he had any questions. He responded,

 3
"Yes, what forgery?" When custody of Cooper was transferred to

other officers, they too advised him of his rights. Although Cooper

did not invoke his right to counsel, he indicated that he did not wish

"to make any comments."

Cooper was thereafter taken to the Florence County Sheriff's

Department and delivered to Agent Vause. Agent Vause read Cooper

his rights a third time and asked him if he wished to take a polygraph

examination. Cooper responded affirmatively.

On the way to Columbia, South Carolina, where Cooper's polygraph test was to be conducted, the officers stopped in Lake City to

drop off an officer. While the car was stopped in Lake City, Cooper

saw Philip Grimsley, an officer of the State Alcoholic Beverage Commission whom Cooper had known for some time. Cooper said, "There

goes Phil. I would like to talk to him."

Cooper informed Grimsley that he had been arrested "for stealing

a check and cashing it," but insisted, "I ain't killed no man." Grimsley

then asked for and obtained permission from Cooper's custodial officers to talk to Cooper in private. Before proceeding, Grimsley asked

the officers whether Cooper had been advised of his Miranda rights.

When informed that he had, Grimsley returned to the room with Cooper and, nevertheless, read Cooper his rights for a fourth time. Grimsley then asked Cooper if he had anything to say. In response, Cooper

indicated only that he had cashed a check in Lake City. According to

Grimsley's account, the following then occurred:

[Cooper] became upset. He was nervous. Tears came into

his eyes. I could tell there was something definitely bothering him. I asked him if there was something he needed to

say. Something he needed to get off his chest, now was the

time to do it.

 At this time, he reached over and grabbed my hand and

held onto it tightly. And he asked me if I did do it, what

would happen to me? What would I get. I looked at him. I

asked him, I said you don't want me to lie to you, do you?

If you killed Mr. Stewart and you're convicted in Court, you

could die in the electric chair or you could receive a life sen-

 4
tence. That would strictly be left up to a judge and jury. At

this time, he told me, I did it.

Upon hearing Cooper's admission, Grimsley asked Cooper to be more

specific so that he could verify Cooper's statement. Although Cooper

initially expressed reluctance "to go back through it," he then continued his confession without interruption. Explaining in detail how he

had murdered Stewart, Cooper told Grimsley that he had hit Stewart

over the head with a chair and stabbed him in the head and chest.

Cooper also agreed to make a taped statement in front of other officers.

When the officers in whose custody Cooper was traveling were

brought into the room, Agent Vause asked Cooper if he understood

his rights as read to him by Officer Grimsley and whether he would

talk to the other officers. Cooper responded that he understood his

rights and repeated his confession to those officers. Cooper stated that

he had visited Stewart's home to discuss repairs to the house that the

Cooper family rented from Stewart. Cooper also indicated that he had

asked Stewart for a basketball. As Stewart bent over to pick up the

basketball, Cooper took a chair and hit Stewart over the head with it

three times. Cooper also admitted taking Stewart's checkbook and

throwing both the checkbook and the knife he had used to kill Stewart

behind a Lake City warehouse.

After confessing twice, Cooper was asked to give yet another confession, this time tape-recorded, which described Stewart's murder in

greater detail. At the outset of this confession, Cooper was asked

twice whether he wanted a lawyer present. He responded, "Yeah." He

was then asked whether he wished to answer "these questions without

a lawyer," and again he responded, "Yeah." Finally, the following

question was posed, "Kamathene, [do] you wish to answer these questions without your attorney present, without an attorney present?"

Cooper answered, "Yes." The officers then proceeded to question

Cooper without a lawyer present, and Cooper gave a yet more

detailed account of the murder, which was later transcribed and

signed by Cooper.

At trial, the prosecution presented the first two confessions as well

as the signed transcript of Cooper's taped third confession to the jury.

 5
The prosecution also played the tape of the third confession in its

entirety. The prosecution relied heavily upon the taped confession and

referred to it several times during closing argument. Cooper presented

no defense, and the jury convicted Cooper of murder and forgery.

II

Cooper's petition for habeas corpus relief under 28 U.S.C. § 2254,

as amended by the Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996)1 presents us with

the question of whether the state trial court's decision to admit this

third confession into evidence at his murder trial unconstitutionally

undermined the reliability of his conviction.

The process already afforded Cooper by the State of South Carolina deserves mention. South Carolina authorities have arrested, tried,

and convicted Cooper, and that state's highest court has affirmed his

conviction. We must begin, therefore, with a healthy respect for the

state courts' ability to conduct just trials and to ferret out constitutional error, both at the trial and appellate levels.

[Habeas corpus jurisdiction] should be exercised in the light

of the relations existing, under our system of government,

between the judicial tribunals of the Union and of the States,

and in recognition of the fact that the public good requires

that those relations be not disturbed by unnecessary conflict

between courts equally bound to guard and protect rights

secured by the Constitution.

Rose v. Lundy, 455 U.S. 509, 515 (1982) (quoting Ex parte Royall,

117 U.S. 241, 251 (1886)). This respect not only enables the federal

_________________________________________________________________

1 While this case was pending on appeal, the President signed into law

the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.

104-132, 110 Stat. 1214 (1996). Title I of the Act limits the scope of federal collateral review of state convictions and sentences. We need not

decide in this case what additional hurdles Cooper might face under the

Act, because, even under the more expansive scope of review under the

prior Act, Cooper is not entitled to relief. See e.g., Sherman v. Smith, 89

F.3d 1134, 1142 n.1 (4th Cir. 1996) (en banc).

 6
and state judicial systems to function with a spirit of cooperation and

harmony but also conserves their scarce resources.

In the context of these principles of federalism, comity, and finality, there remains a limited role conferred upon federal courts by 28

U.S.C. § 2254: to ensure that persons do not remain in custody

because of violations of the United States Constitution or its laws and

treaties. See Sherman v. Smith, 89 F.3d 1134, 1141 (4th Cir. 1996).

Unless the defendant's custodial status exists by reason of a violation

of the federal constitution or laws or treaties, federal courts must yield

to the state judicial process. See Barefoot v. Estelle, 463 U.S. 880,

887-88 (1983). Thus, before granting the writ of habeas corpus to a

petitioner whose state custody resulted from a criminal conviction, we

must determine whether the petitioner's trial violated his federal

rights and whether that violation was the cause of his detention, i.e.,

whether the error was harmful.

Our inquiry into the harmlessness of the alleged constitutional error2

in this case is whether, in light of the record as a whole, Cooper's

third confession had a "`substantial and injurious effect or influence

in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S.

619, 638 (1993) (quoting Kotteakos v. United States, 328 U.S. 750,

776 (1946)); see also Tuggle v. Netherland, 79 F.3d 1386, 1388 (4th

Cir. 1996) (applying Brecht harmless-error standard to improper

admission of testimony). In order for an error to have a "substantial

and injurious effect or influence," it must have "affected the verdict."

O'Neal v. McAninch, 115 S. Ct. 992, 994 (1995). Because juries have

a limited number of responses to give in a criminal trial -- guilty,

innocent, or cannot decide -- an error is harmless when the error did

not substantially sway or substantially influence the response. See

Brecht, 507 U.S. at 637 (actual prejudice must be shown); Kotteakos,

328 U.S. at 765 (jury's judgment must not have been "substantially

swayed by the error"); cf. United States v. Olano, 507 U.S. 725, 734

(1993) (in context of Fed. R. Crim. P. 52(b), "prejudicial error" means

that it must "have affected the outcome").

_________________________________________________________________

2 By assuming arguendo that the third confession was admitted in violation of Edwards, we do not decide that an Edwards violation in fact

occurred.

 7
Thus, if the evidence is not merely sufficient, but so powerful,

overwhelming, or cumulative that the error simply could not reasonably be said to have substantially swayed the jury's judgment, then

the error is not harmful. See Sherman, 89 F.3d at 1142 (holding that

error was harmless "because it was cumulative of the abundant evidence admitted at trial"); Correll v. Thompson, 63 F.3d 1279, 1291

(4th Cir. 1995) (holding that admission of confession, if error, was

harmless because evidence against defendant was overwhelming),

cert. denied, Correll v. Jabe, 116 S. Ct. 688 (1996). On the other

hand, if the federal court is "in grave doubt" about whether the trial

error had a "substantial and injurious effect or influence" on the verdict and therefore finds itself "in virtual equipoise" about the issue,

the error is not harmless. O'Neal, 115 S. Ct. at 994. And the determination of whether trial error substantially and injuriously affected the

judgment must be made by the court based on its review of the record.

Id.

In this case we have no grave doubt about the harmlessness of any

error in admitting the third confession. On the contrary, because the

record of evidence made in this case is totally one-sided, we conclude

without hesitation that the challenged evidence did not affect or influence the jury's verdict. By analogy, the jury witnessed the government score 14 runs with its evidence and the defense score none. If,

for the sake of argument, we were required to invalidate what we

would expect Cooper to characterize as a government grand-slam

home run, the remaining 10-0 score would still have left the jury's

verdict the same. In reaching this inevitable conclusion, we do not

conduct any independent assessment of the evidence, nor do we

weigh it to determine whether it is sufficient to establish guilt. Rather,

when viewing the record as a whole, we simply recognize the obvious

power of the two other confessions, together with the other overwhelming evidence of guilt, and conclude that the jury's verdict of

guilty could not have more fairly represented the facts of record.

The record shows that Cooper's two earlier valid confessions accurately presented at trial the position Cooper voluntarily expressed to

the police concerning Rheupert Stewart's murder: "I did it." These

two confessions also revealed the grisly details of the murder: Cooper

went to Stewart's home to discuss fixing the house that he rented

from Stewart; he asked Stewart for a basketball; as Stewart leaned

 8
over to pick up the basketball, Cooper took a chair and hit him over

the head three times; he stabbed Stewart with the knife in the head

and chest; and he took Stewart's checkbook and threw both the

checkbook and knife behind a Lake City warehouse.

Moreover, independent indicia in the record buttressed the reliability of these two valid confessions. Testimony revealed that Cooper

initiated the first of his confessions after observing a police officer

with whom he had a prior acquaintance. It was Cooper, moreover,

who first suggested to the officer that anyone had been killed -- Cooper was only being held for forgery. Furthermore, in his first two confessions, Cooper not only described the broken chair and Stewart's

stab wounds without ever having been given information about the

murder scene, he also revealed the location of Stewart's stolen checkbook and the knife used to kill Stewart.

Cooper's handwriting exemplar and driver's license number on the

back of Stewart's check linked Cooper to Stewart and provided a

motive. The independent description of the murder scene provided by

the officers and the autopsy evidence concerning the cause of Stewart's death corroborated Cooper's confessions. The inescapable conclusion is that Cooper murdered Stewart.

Against that evidence, Cooper offered no evidence of his own,

either to contend that his confessions were not voluntary or to cast

doubt on his culpability. Indeed, the circumstances that caused the

district court to conclude that Cooper's third confession was inadmissible cast no doubt on the trustworthiness of his earlier two confessions. By all accounts, Cooper's third confession was not coerced or

otherwise produced by threats, and its substance provides no reason

to doubt the trustworthiness of the first and second confessions.

The dissent would apparently adopt a per se rule that if the trial

court were to admit tainted evidence that was important, the verdict

automatically would become unreliable and the defendant would have

to be tried again. It argues that any important evidence ipso facto has

an influence on the verdict, and therefore a new trial would be

required in every such case. Continuing with our earlier analogy, the

dissent would somehow urge that if the grand-slam home run were

disqualified and the resulting score were reduced to 10-0, the guilty

 9
verdict is per se adversely affected. That, however, is not the law. As

the court in Brecht admonished, habeas petitioners "are not entitled

to habeas relief based on trial error unless they can establish that it

resulted in `actual prejudice.'" 507 U.S. at 637 (citations omitted)

(emphasis added). The verdict must have been affected. See O'Neal,

115 S. Ct. at 994; Sherman, 89 F.3d at 1143; Tuggle, 79 F.3d at

1395); Correll, 63 F.3d at 1292. The dissent's approach overlooks the

requirement that the error be prejudicial and have an actual effect on

the outcome of the trial.

The dissent would also ignore the inescapable conclusion that the

evidence against Cooper was both overwhelming and one-sided. It

states that an analysis which considers whether the evidence was

overwhelming "disregards 50 years of precedent establishing the

approach for harmless error review." This observation, however,

overlooks the very case that established the review standard for

habeas cases. In finding error harmless in Brecht, the Supreme Court

observed about the evidence there, "Moreover, the state's evidence of

guilt was if not overwhelming, certainly weighty." 507 U.S. at 639.

And our cases have similarly considered the impact on the jury of

overwhelming, or even cumulative, evidence actually presented to the

jury. See Sherman, 89 F.3d at 1142 (tainted evidence harmless

because it was "cumulative"); Correll, 63 F.3d at 1291 (tainted evidence harmless because evidence of guilt was "overwhelming"). The

dissent would brush aside any analysis of the error's impact on the

verdict and needlessly order a new trial at substantial risk and cost to

the public. See Brecht, 507 U.S. at 637 (expressing concern that

absence of harmless error analysis undermines state sovereignty and

imposes significant social costs).

Under the Brecht standard that applies to this case, we readily conclude that any error in admitting Cooper's third confession was harmless. And once we set aside any state trial court's constitutional error

as harmless, our task ends. We then must yield to the state judicial

system which convicted Cooper of murder and sentenced him to life

in prison. The district court's judgment is

AFFIRMED.

 10
WIDENER, Circuit Judge, Concurring:

I emphasize that I concur in all of the majority opinion authored

by Judge Niemeyer.

I would add a word. I would concur in the result obtained by Judge

Luttig's concurring opinion. I regard the reason expressed by Judge

Niemeyer and the reasons expressed by Judge Luttig as separate reasons to affirm the judgment of the district court.

LUTTIG, Circuit Judge, concurring:

I agree that any error of the state trial court in admitting Cooper's

taped confession into evidence was obviously harmless, and I join in

the majority's opinion, which so concludes. It is plain that, considering the overwhelming other evidence against Cooper--including his

two earlier confessions to Rheupert Stewart's murder--any error in

the admission of Cooper's third confession did not have a "substantial

and injurious effect or influence," Brecht v. Abrahmson, 507 U.S.

619, 638 (1993) (quoting Kotteakos v. United States, 328 U.S. 750,

776 (1946)), on the verdict rendered by the jury that heard Cooper's

case. That is, given the overwhelming other evidence of guilt (i.e., "in

light of the record as a whole," Brecht, 507 U.S. at 638), there is simply no reason to believe that the jury's verdict was attributable to the

third confession, see Sullivan v. Louisiana, 508 U.S. 275, 279-80

(1993), or, for that matter, that the verdict was affected by this particular confession. There certainly is no ground for saying that the jury's

verdict was "substantially swayed" by the third confession, see

Kotteakos, 328 U.S. 765. The allegedly inadmissible confession was,

as were the prosecution's references to the petitioner's post-Miranda

silence in Brecht, "in effect, cumulative." See Brecht, 507 U.S. at 639.

Indeed, Cooper's two other confessions are considerably more powerful evidence of the harmlessness of the third confession here, than

were the prosecution's repeated references to the petitioner's preMiranda silence in Brecht powerful evidence of harmlessness in that

case. See id.

In my judgment, the court's judgment could just as easily rest also

upon the fact that, contrary to the district court's conclusion, the taped

 11
confession was not even arguably obtained in violation of Cooper's

rights under Edwards v. Arizona, 451 U.S. 477 (1981).

In Davis v. United States, 114 S. Ct. 2350, 2355 (1994), a case not

even cited, much less discussed, in the district court's opinion, the

Supreme Court held that, "if a suspect makes a reference to an attorney that is ambiguous or equivocal in that the reasonable officer in

light of the circumstances would have understood only that the suspect might be invoking the right to counsel," the cessation of questioning is not required. 114 S. Ct. at 2355. Rather, the Court said, law

enforcement officials in such a circumstance should (i.e., "it will often

be good police practice," id. at 2356) "clarify whether or not [the suspect] actually wants an attorney." Id. The four Justices in dissent

would have required additional questioning under such a circumstance. See id. at 2359.

The circumstance described by the Supreme Court in Davis is precisely that facing the officer who questioned Cooper. Cooper had

already made two confessions, waiving his right to counsel prior to

each, and had consented to have his third confession taped. The taped

confession began with yet another recitation to Cooper of his Miranda

rights, followed by the question, "Do you wish to answer any of the

questions that we may ask you?" Cooper responded, "Yea." The interviewing officer then asked, "Do you understand each of these rights

that I have explained to you?" Cooper again responded, "Yea. I can't

afford no lawyer." And when the officer asked Cooper again, "Do you

wish to answer these questions," Cooper yet again responded, "Yea."

Thereafter, the officer asked Cooper, "Do you wish to have a lawyer present" and "You want a lawyer present," to which Cooper

responded again, almost certainly perfunctorily, "Yea." It is as a consequence of this last answer that Cooper contends he had invoked his

right to remain silent such that his subsequent confession was unconstitutional under Edwards.

If one considers Cooper's "yea" answer to this last question in

complete isolation, as Cooper, naturally, urges, then of course his

answer was an unambiguous invocation of his right to counsel. But

when considered in the context of the immediately preceding questions and answers, and especially Cooper's earlier waivers and con-

 12
fessions, it is rather plain -- and certainly would have reasonably

appeared to the officer -- that Cooper simply misspoke and answered

"yea" (as he had answered the several preceding questions) when he

meant "no," that he did not request the presence of a lawyer. There

is no question at all that his answer was, at the very least, ambiguous

in the context of his immediately preceding, unequivocal expressions

of desire to answer the officer's questions without a lawyer present

and his prior full confessions.

Assuming (drawing all inferences in Cooper's favor) that the

response was ambiguous, the interviewing officer proceeded exactly

as the Supreme Court said he should have proceeded in order to eliminate any ambiguity: He sought to clarify Cooper's response through

a reformulation of the question, asking Cooper, "Do you wish to

answer these questions without a lawyer." Having received the

expected corrected response "[y]ea" from Cooper, the interviewing

officer even went further to make absolutely sure that in fact Cooper

was not invoking his right to counsel, asking Cooper, "Do you wish

to answer these questions without your attorney present, without an

attorney present." And, as if in recognition of the confusion his earlier

answer had caused and to remove any doubt that he wished to proceed

without counsel, Cooper replied affirmatively, "[y]es." In the face of

this sequence of questions and answers, and against the backdrop of

two earlier full confessions, any argument that Cooper's Edwards

rights were violated is frivolous.

Cooper contends that the state waived its right to appeal the

Edwards issue because it did not object to the magistrate's report

originally finding the Edwards violation. However, he is simply mistaken in this argument. Although we and the Supreme Court have

long held that the losing party before the district court and before a

magistrate must preserve every claim it intends to raise on appeal lest

it waive those claims, see Thomas v. Arn, 474 U.S. 140 (1985) (district court); United States v. George, 971 F.2d 1113 (4th Cir. 1992)

(same); Synder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989) (magistrate), we have consistently held that the prevailing party in either

forum need not advance on appeal every error it believes was committed by the magistrate or court in the course of ruling in that party's

favor. See RTC v. Maplewood Investments, 31 F.3d 1276 (4th Cir.

1994); Blackwelder v. Millman, 522 F.2d 766, 771-72 (4th Cir. 1975)

 13
(a prevailing party "may support the judgment by urging any theory,

argument, or contention which is supported by the record, even

though it was specifically rejected by the lower court."); United States

v. Schronce, 727 F.2d 91, 92 (4th Cir.) (holding that the same rules

that determine whether we can review errors not brought to the attention of the district court apply to whether a party may challenge

before a district court errors committed by a magistrate), cert. denied,

467 U.S. 1208 (1984). Accordingly, because the magistrate in this

case ruled for the government, affirming Cooper's conviction and

finding any error harmless, the State was under no obligation to object

to the magistrate's finding of an Edwards violation, Mr. Zelenka's

inexplicable "concession" to the contrary on behalf of the State notwithstanding.

Chief Judge Wilkinson and Judges Widener and Williams join this 

concurring opinion.

HAMILTON, Circuit Judge, dissenting:

If called upon to determine whether there is evidence, independent

of the taped (third) confession, to support Cooper's conviction, I

would join the majority opinion. But that is not the determination we

are called upon to make. Rather, we are called upon to determine

whether the erroneously admitted taped confession had a "substantial

and injurious effect or influence in determining the jury's verdict."

Kotteakos v. United States, 328 U.S. 750, 776 (1946). Although the

majority purports to apply the Kotteakos standard, it strains credulity

to contend that the majority actually applies it. This point is evident.

The majority never once analytically assesses the central role the

taped confession played in the trial, e.g., the prosecutor's heavy reliance on the taped confession during his case-in-chief and in closing

argument. Nor does the majority evaluate the effect the taped confession had on the jury in reaching its guilty verdict. Rather, the majority

casts aside the taped confession, as though it did not exist, and concludes that the remaining evidence was sufficient to support the verdict. This is precisely what the Supreme Court has instructed us not

to do--review the record in search of evidence, independent of the

erroneously admitted evidence, establishing guilt. See Kotteakos, 328

U.S. at 765 ("The inquiry cannot be merely whether there was enough

[evidence] to support the result, apart from the phase affected by the

 14
error. It is rather, even so, whether the error itself had substantial

influence. If so, or if one is left in grave doubt, the conviction cannot

stand.").1

Judge Motz's opinion, which I join, convincingly explains why the

admission of the taped confession--the undeniable centerpiece of the

_________________________________________________________________

1 The role an error played in a trial is fundamental to resolving the

question of whether it had a "substantial and injurious effect or influence

in determining the jury's verdict." Kotteakos, 328 U.S. at 776. This is so

because there is simply no other way to assess the"effect or influence"

an error had on the jury's verdict. Indeed, our own case law suggests an

inquiry of far greater depth than that conducted by the majority. For

example, in Tuggle v. Netherland, 79 F.3d 1386 (4th Cir.), cert. denied,

117 S. Ct. 237 (1996), we addressed the issue of whether the introduction

of an invalid aggravating circumstance, future dangerousness, could be

harmless under Kotteakos, where the jury also found a second valid

aggravating circumstance, vileness. The future dangerousness aggravating circumstance was invalidated because of an Ake v. Oklahoma, 470

U.S. 68 (1985), error--at sentencing the trial court improperly admitted

the state's expert psychiatric testimony of future dangerousness without

providing Tuggle with expert psychiatric assistance. Tuggle, 79 F.3d at

1391. We identified six factors as "relevant" to the inquiry of whether the

admission of the invalid aggravating circumstance (future dangerousness) was harmless under Kotteakos:

(1) the strength of the remaining aggravating circumstance; (2)

the evidence admitted (both properly and improperly) at the sentencing hearing to establish the invalid aggravating circumstance; (3) the evidence improperly excluded at the sentencing

hearing; (4) the nature of any mitigating evidence; (5) the closing

argument of the prosecutor; and (6) any indications that the jury

was hesitant or entertained doubt in reaching its sentencing

determination.

Id. at 1393. Applying these six factors, we concluded that the erroneous

admission of the invalid aggravating circumstance had no substantial and

injurious effect or influence on the jury's decision to sentence Tuggle to

death. Id. at 1395-96. The six factors cited in Tuggle, in their totality,

focused on the role the error played in the sentencing trial and its potential "effect or influence" on the outcome. Similarly, the focus of the

inquiry here should be on factors that are relevant to the role the error

played in the Cooper jury reaching its verdict.

 15
state's case--had a substantial and injurious effect or influence on the

jury's verdict. Such substantial and injurious effect or influence is

readily apparent from the following: (1) the taped confession, which

was the only taped confession, was played to the jury; (2) a copy of

the transcript was provided to the jury while the tape was played; (3)

the tape and the transcript were provided to the jury during its deliberations; (4) the transcript of the taped confession consumed nineteen

pages of the trial transcript; (5) the taped confession covered almost

every aspect of the crime, including aspects not corroborated by other

evidence; (6) the prosecutor made fifteen references to the taped confession during his closing argument and relied upon the taped confession to describe every fact supporting the state's case; and (7) the trial

judge's keen observation that the state's case "hinge[d]" on the taped

confession. Indeed, if the erroneous admission of the taped confession

in Cooper's trial did not have a substantial and injurious effect or

influence on the jury's verdict, then no evidence erroneously admitted

could ever be found to have such an effect or influence where there

is independent evidence of guilt in the record.

Finally, because this case involves a man who is sentenced to life

in prison, the majority's analogy to baseball trivializes the serious

nature of this case. If we are to engage in such triviality, it is fair to

say the jury in this case witnessed something far different than the 14-

0 game suggested by the majority. Rather, what the fans at Yankee

Stadium recently witnessed in the eighth inning of the first game of

the American League Championship Series is symbolic of what the

jury witnessed in this case. A young boy in the stands, while attempting to catch a Yankee fly ball as a souvenir, knocked the ball over the

right field wall. Replays showed that the ball could have been caught

by an Oriole outfielder; however, the umpire erroneously declared the

hit a Yankee home run. The late inning home run tied the game, and

the Yankees went on to win. Would the Yankees have won without

the umpire's erroneous call? Or, would the Orioles have won? No one

knows. What we do know without question is that the umpire's erroneous call had a substantial and injurious effect or influence on the

outcome of the game.2

_________________________________________________________________

2 Regarding the majority's baseball analogy, I would only add that I

never realized it was incumbent upon a criminal defendant to score any

"runs" in a criminal trial, as it would seem such a proposition turns the

presumption of innocence on its head.

 16
It follows that I would reverse and remand with instructions to

grant the writ of habeas corpus.

Judge Murnaghan joins this dissenting opinion.

DIANA GRIBBON MOTZ, Circuit Judge, dissenting:

Respectfully, and with great regret, I dissent. Today a majority of

the court impermissibly shrinks the Great Writ, that most "fundamental instrument for safeguarding individual freedom from arbitrary and

lawless state action," Harris v. Nelson, 394 U.S. 286, 290-91 (1969),

and in doing so diminishes us all. The majority applies the wrong

legal analysis -- whether there was sufficient evidence of guilt without the erroneously admitted taped confession -- to arrive at the

wrong result -- a denial of the writ of habeas corpus to Kamathene

Adonia Cooper. The court reaches its own "inescapable conclusion"

that the evidence presented against Cooper was "overwhelming" without ever coming to grips with the proper legal issue-- what effect the

erroneously admitted confession had on the jury at the actual trial at

which Cooper was convicted. Application of the correct analysis does

not require that we free Cooper, but it surely does require that we

afford him a new trial.1

I.

Although the majority states the correct standard of harmless-error

review, whether the erroneous admission into evidence and playing to

the jury of Cooper's detailed and devastating taped confession had a

"`substantial and injurious effect in determining the jury's verdict,'"

Slip Op. at 7, the majority fails to follow the standard in the most

basic manner: the majority never once discusses the effect the error

had on the jury at the trial that Cooper actually received. Instead, the

_________________________________________________________________

1 The court must, as the majority does, reach the question of whether

the Edwards error in admitting the taped confession was harmless.

Regardless of whether the State could have pursued a claim that its

admission did not violate Edwards after failing to file any exceptions to

the magistrate judge's findings, the State did not do this. Rather, at oral

argument, both before the panel and the en banc court, the State

expressly and unequivocally waived this claim.

 17
majority excises Cooper's taped confession -- the evidence upon

which Cooper's trial judge concluded the State's case "[h]inged" --

and considers only the properly admitted evidence. By analyzing only

this portion of the evidence the majority reaches its own conclusion

that "Cooper murdered Stewart." Slip Op. at 9. The error in this

approach can be summed up in a single, common-sense question: Can

an appellate court fairly decide whether an error was harmless without

once considering the effect of that error on the verdict of the jury

which originally considered the trial evidence? The obvious answer

is no. Without considering the effect of the error the most an appellate

court can do is retry the defendant on appeal with the remaining nonerroneous evidence. That is what the majority does today, and in

doing so disregards fifty years of precedent establishing the approach

for harmless-error review and adopts a harmless-error approach heretofore unknown at law in any context.

When assessing whether an error is harmless, it simply is not

enough for an appellate court to ignore the effect of the erroneously

admitted evidence, conduct an independent assessment of the remaining evidence and decide that it is sufficient to establish guilt, or that

guilt would be found at another trial. Instead, as every criminal

harmless-error case since Kotteakos v. United States, 328 U.S. 750

(1946), has held, the inquiry must focus on the trial that actually

occurred, and whether "the error had substantial and injurious effect

or influence in determining the jury's verdict" in that trial. Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos, 328 U.S.

at 776). The majority states the proper standard, but its analysis is

totally at odds with that standard, because it never considers the effect

that the error in this case had on the verdict of the actual jury that

convicted Kamathene Adonia Cooper. The majority's approach thus

hypothesizes a jury verdict that never was.

Kotteakos held that under the federal harmless-error statute a court

must measure whether the error had a "substantial and injurious

effect" upon the jury's decision. Kotteakos, 328 U.S. at 776. In establishing this standard, Kotteakos made the relevant inquiry crystal

clear: "it is not the appellate court's function to determine guilt or

innocence. Nor is it to speculate upon probable reconviction and

decide according to how the speculation comes out. . . . Those judgments are exclusively for the jury . . . ." Kotteakos, 328 U.S. at 763

 18
(citations omitted). The question is not whether the jurors were "right

in their judgment, regardless of the error or its effect upon the verdict.

It is rather what effect the error had or reasonably may be taken to

have had upon the jury's decision. The crucial thing is the impact of

the thing done wrong on the minds of other men, not on one's own,

in the total setting." Id. at 764 (citations omitted) (emphasis added).

Thus, if "the error did not influence the jury, or had but very slight

effect" the error was harmless. Id. at 764. But, if a court cannot conclude "that the judgment was not substantially swayed by the error,"

the error is harmful. Id. at 765.

Further, in Chapman v. California, which established harmlesserror review for constitutional error in criminal cases, the Supreme

Court recognized that the harmless-error inquiry must focus on

whether "the evidence complained of might have contributed to the

conviction." Chapman v. California, 386 U.S. 18, 23 (1967). Thus, in

determining that the error in Chapman was not harmless, the Court

relied upon the fact that the prosecution "continuously and repeatedly" mentioned the error. Id. at 25.

This understanding of harmless-error review remains black letter

law. As Justice Scalia recently stated for a unanimous Court:

Harmless-error review looks, we have said, to the basis on

which "the jury actually rested its verdict." Yates v. Evatt,

500 U.S. 391, 404 (1991) (emphasis added). The inquiry, in

other words, is not whether, in a trial that occurred without

the error, a guilty verdict would surely have been rendered,

but whether the guilty verdict actually rendered in this trial

was surely unattributable to the error. That must be so,

because to hypothesize a guilty verdict that was never in fact

rendered - no matter how inescapable the findings to support that verdict might be - would violate the jury-trial guarantee. See Rose v. Clark, 478 U.S. 570, 578 (1986); id. at

593 (Blackmun, J., dissenting); Pope v. Illinois , 481 U.S.

497, 509-510 (1987) (Stevens, J., dissenting).

Sullivan v. Louisiana, 508 U.S. 275, 279-80 (1993) (parallel citations

omitted).

 19
It is true that the Supreme Court directed in Brecht that when

assessing whether a constitutional trial error is harmless on habeas

review, a court applies the somewhat less stringent evidentiary standard of Kotteakos instead of the Chapman direct review standard.

Compare Brecht, 507 U.S. at 638 (error harmless if it had no "substantial and injurious effect" on the jury's verdict), with Chapman,

386 U.S. at 24 (error harmless if clear "beyond a reasonable doubt"

it had no effect on the jury's verdict). But, in Brecht the Supreme

Court certainly did not hold that federal courts should suddenly abandon the clear teaching of Kotteakos, Chapman, and every other type

of harmless-error review, and focus solely on whether the properly

admitted evidence provided sufficient proof of guilt.

Rather, in Brecht the court expressly held that "the Kotteakos

harmless-error standard applies" to collateral habeas relief. Brecht,

507 U.S. at 638. Moreover, the Brecht Court applied the Kotteakos

standard in its entirety. Id. Both the majority and Justice Stevens'

concurrence focus on the effect of the error on the judgment within

the trial as a whole.

The Brecht Court began its analysis by noting that "[t]he State's

references to [the error] were infrequent, comprising less than two

pages of the 900-page trial transcript in this case." Id. at 639. The

Court contrasted the small role the error played to the multiple references to similar permissible evidence, as well as the rest of the evidence presented in the case. The Court then "conclude[d] that the

[error] which occurred at petitioner's trial did not `substantially influence' the jury's verdict." Id. The Brecht Court's analysis accords with

Kotteakos: the key question was the error's influence upon the jury,

measured by the prosecution's minimal use of the erroneously admitted evidence, in comparison to the evidence presented at trial as a

whole.

Justice Stevens' critical fifth vote concurrence also established that

the entire Kotteakos standard applies. Justice Stevens quoted most of

the language discussed above from Kotteakos and concluded that:

The habeas court cannot ask only whether it thinks the petitioner would have been convicted even if the constitutional

error had not taken place. Kotteakos is full of warnings to

 20
avoid that result. It requires a reviewing court to decide that

"the error did not influence the jury," and that "the judgment

was not substantially swayed by the error."

Brecht, 507 U.S. at 642 (Stevens, J., concurring) (footnote and citations omitted).

Just two terms ago in O'Neal v. McAninch, the Supreme Court

reaffirmed that "the Kotteakos standard applie[s] in its entirety." 115

S. Ct. 992, 996 (1995) (emphasis in original). The O'Neal Court

directed that "if a judge has grave doubt about whether an error

affected a jury in [a substantial and injurious] way," that error is not

harmless. Id. at 995. O'Neal also quotes, with approval, a passage

from Kotteakos that makes clear the majority's error in the case at

hand:

If, when all is said and done, the [court] is sure that the error

did not influence the jury, or had but very slight effect, the

verdict and the judgment should stand . . . . But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the

whole, that the judgment was not substantially swayed by

the error, it is impossible to conclude that substantial rights

were not affected. The inquiry cannot be merely whether

there was enough to support the result, apart from the phase

affected by the error. It is rather, even so, whether the error

itself had substantial influence. If so, or if one is left in

grave doubt, the conviction cannot stand.

Id. at 995 (quoting Kotteakos at 764-65) (emphasis added).

Further, in every other arena where harmless-error analysis is

applied courts have always been admonished to consider the effect the

error had on the jury, and not the sufficiency of the remaining evidence. For example, under Federal Rule of Criminal Procedure 52(a),

harmless-error review focuses on the effect of the error itself, within

the context of the trial as a whole. United States v. Lane, 474 U.S.

438, 449 (1986) ("The inquiry cannot be merely whether there was

enough to support the result, apart from the phase affected by the

error. It is rather, even so, whether the error had substantial influ-

 21
ence."); id. at 460 (Brennan, J., concurring in part and dissenting in

part) (quoting Kotteakos, 328 U.S. at 760-65). The approach under

civil harmless-error review is identical. See 11 Charles A. Wright et

al., Federal Practice and Procedure § 2883, at 447 (1995) (quoting

Kotteakos, 328 U.S. at 761-62); Black's Law Dictionary 718 (6th Ed.

1990) ("An error is `harmless' if reviewing court, after viewing entire

record, determines that no substantial rights of defendant were

affected and that error did not influence, or had only very slight influence on verdict.").

Notably, the majority opinion only cites once to Kotteakos, and

completely ignores O'Neal's statement (which postdates Brecht) that

"the Kotteakos standard applie[s] in its entirety." O'Neal, 115 S.Ct.

at 996 (emphasis in original). In fact, the majority relies principally

on only two citations to Supreme Court law to justify its approach.

The first citation is Brecht's statement that to prevail under Kotteakos

a habeas petitioner must "establish that [the trial error] resulted in

`actual prejudice.'" Slip Op. at 10 (emphasis omitted) (quoting

Brecht, 507 U.S. at 637 (quoting United States v. Lane, 474 U.S. 438,

449 (1986)). If the Brecht Court meant to materially alter its approach

to Kotteakos harmless-error review this quotation is not where it said

so. The "actual prejudice" language is a quote from United States v.

Lane, which relies heavily on Kotteakos, and specifically rejects the

majority's approach on the very same page it requires actual prejudice: "The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error." Lane, 474

U.S. at 449 (quoting Kotteakos, 328 U.S. at 765). Furthermore, as the

case at hand powerfully demonstrates, a defendant suffers "actual

prejudice" and then some when a jury has based its guilty verdict

upon erroneously admitted evidence. This actual prejudice does not

dissipate because a court of appeals, as opposed to a jury, later

reaches the "inescapable conclusion" that the properly admitted evidence reweighed on appeal is "overwhelming." Slip Op. at 10.

The second citation relied upon by the majority is the Brecht

Court's statement that "[m]oreover, the state's evidence of guilt was

if not overwhelming, certainly weighty." Id. at 10 (quoting Brecht,

507 U.S. at 639). The majority ignores a key distinction between its

approach and the approach applied in Brecht. The Supreme Court in

Brecht did not consider the state's properly admitted "evidence of

 22
guilt" standing alone, as the majority does today. The Brecht Court

did not even give this evidence primacy. Rather it first considered the

erroneously admitted evidence, noting that "[t]he state's references to

petitioner's post-Miranda silence were infrequent, comprising less

than two pages of the 900 page transcript in this case." Brecht, 507

U.S. at 639. Then, and only then, the Brecht Court compared the

effect on the jury of the properly admitted evidence of guilt with the

effect of the erroneously admitted evidence, by weighing the state's

"infrequent" references to the erroneous evidence against its "extensive and permissible references" to other evidence. Id.

In sum, the majority mischaracterizes Brecht, and ignores the most

relevant portions of Kotteakos and O'Neal in conducting its analysis.

Thus, although in the case at hand the majority correctly recognizes

that "principles of federalism, comity, and finality" underlie our

habeas jurisprudence, Slip Op. at 7, it ignores the equally important

directive that on habeas review a federal court must consider whether

its holding is "consistent with the basic purposes underlying the writ

of habeas corpus." O'Neal, 115 S.Ct. at 997. The Supreme Court has

explained, "we are dealing here with an error of constitutional dimension -- the sort that risks an unreliable trial outcome and the consequent conviction of an innocent person." Id. In following a misguided

and unprecedented approach today, the majority ignores Justice

Scalia's warning that harmless-error review must not "hypothesize a

guilty verdict that was never in fact rendered -- no matter how inescapable the findings to support that verdict might be -- [because to

do so] would violate the jury-trial guarantee." Sullivan, 508 U.S. at

279.

II.

Any possible question as to whether the majority applies the wrong

approach vanishes upon examination of its analysis. The majority

never even acknowledges the obvious importance of the improperly

admitted, detailed, taped, confession to the jury's verdict. This omission is not inadvertent; any examination of the effect of the taped confession inevitably leads to the conclusion that the error in admitting

it had a "substantial and injurious effect" upon the jury's verdict, and

renders the majority's conclusion to the contrary unimaginable.

 23
In the majority's four paragraphs of analysis concerning the evidence presented at trial, the effect of the error upon the judgment is

not mentioned once. Instead, the majority conducts its own hypothetical trial to save the State of South Carolina and Kamathene Cooper

the "substantial risk and cost" of a new trial. Slip Op. at 10.2 Although

the majority claims not to "conduct an independent assessment of the

evidence," it totally disregards the piece of evidence most relied upon

by the State at Cooper's trial. The majority is able to deem the evidence presented against Cooper "overwhelming" only by eliminating

from the calculus the erroneously admitted taped confession, and considering the remaining evidence alone. Of course, this approach does

nothing to establish the basis on which the actual jury in this case

based its verdict. In light of the majority's complete disregard for the

actual trial Cooper received, it is ironic that it criticizes me for ignoring any "actual effect on the outcome of the trial." Id. at 10 (emphasis

in original). Even a cursory review of both opinions reveals it is the

majority that never comes to grips with the error's "actual effect on

the outcome of the trial."

The majority's approach, however, may be the only one available

to it because, as the panel concluded, "it is hard to envision a case in

which erroneously admitted evidence was more heavily relied on by

the prosecution." Cooper v. Taylor, 70 F.3d 1454, 1467 (4th Cir.

1995).

Even a simple comparison of the volume of testimony relating to

the brief earlier confessions with that relating to the erroneously

admitted taped confession establishes the insignificance of the former,

and overwhelming importance of the latter, in the case the jury actually considered. There are only three extremely brief references to the

two earlier confessions in the entire record: (1) two paragraphs of

Agent Grimsley's testimony, (2) a single paragraph of Officer

Vause's testimony, which takes up a third of a page of trial transcript,

and (3) Officer McKenzie's even more circumspect testimony, stating

_________________________________________________________________

2 In view of its holding, it is difficult to understand why the majority

believes that ordering a new trial would result in "substantial risk." Slip

Op. at 10. But, if without the taped confession there is indeed a "substantial risk" that Cooper would not be convicted of murder, then obviously

admission of the taped confession cannot be held harmless.

 24
only that "I didn't hear exactly everything. I can remember him saying that he killed Mr. Stewart. I think he said the old man. Yes." In

contrast, the taped confession consumes nineteen pages of trial transcript, and details virtually every aspect of the case, including many

facts never alluded to in the earlier statements. Id. at 1467-68. Moreover, a written, signed copy of the taped confession was provided to

the jury to read as the tape of the confession was played to them, and

then both the tape and transcript (unlike the isolated testimony as to

the earlier confessions) were provided to the jury during its deliberations. Id. at 1460.

Furthermore, in his closing argument the prosecutor made not just

"several," Slip Op. at 6, but more than fifteen different references to

the taped confession. Every aspect of the prosecutor's description of

the facts to the jury comes straight from Cooper's taped confession.

All of these facts are preceded with "he said" or "did he not say," to

hammer home Cooper's own voice stating the facts. As the panel

noted, the closing argument:

is literally saturated with references to the taped confession.

We pick just three examples. First, the prosecution

explained to the jury that it did not need to rely on implied

malice because "out of Cooper's mouth" jurors had heard

evidence of "real, hard, actual real world malice":

. . . you look at the facts of this case and when you

hear Mr. Cooper's own voice telling you that he

took that kitchen knife with him thinking he would

use it against Mr. Stewart to rob him or kill him.

When he tells you in his own voice and signs a

statement a day later saying after he had given me

the newspapers, I got him to turn around and reach

for the basketball so his back would be to him so

I could clobber him with the chair.

There you see, not only what the law calls

implied malice, because when you use a deadly

weapon like a knife against somebody, that's a fact

you can use to infer malice, evil intent. But when

you hear out of the words of somebody's mouth,

 25
this is the way I did it. I took it ahead of time. Well,

I didn't know if I was going to kill him, but as I sat

there, I just decided to do it. I formulated a plan.

I got him to turn around. I made sure it was done.

That's real, hard, actual real world malice.

(emphasis added). Second, the prosecution pointed out that

the jury had, by "listening" to what Cooper had "said,"

learned his motive for murder:

Now, the law does not require us to prove

motive. But you can look at facts and you can listen to what he said and you see motive there. What

is the first thing this man, Kamathene Cooper did

after he had rendered this man senseless and sent

him towards his inevitable death?

He went through his pockets. He went through

his pockets. And you will recall on his statement

from reading along and listening. I looked, but I

didn't find anything. And he said I went in other

rooms, but I didn't find anything. And, of course,

you see the evidence that he went through Mr.

Cooper's (sic) pocket. You see the evidence as

corroborated in his statement that he did, in fact,

go in that room where the stereo was and pull to

one side that curtain not realizing what was there.

(emphasis added). Third, the prosecution concluded its argument with numerous rhetorical questions based on what

Cooper "said" or "told" the jury:

Did he not say in the statement that he had the

gentleman to bend over in the corner to look for a

basketball? Is this not the basketball? Did he not

say that he hit the man with a chair? Do we not

have the chair? Did he not say that he was admitted into the house without having a break-in and

Mr. Gravely not tell you that there was no sign of

forcible entry[?]

 26
Did he not tell you that he stabbed the man with

a knife? And did Dr. Conrad not tell you that the

man had a stab wound to the head that penetrated

his brain? Did he not tell you that he stole a checkbook? And do we not have the stolen checkbook?

Did he not take the officers to where the checkbook was and are there not photographs of him

being there? Did he not say I took about six checks

out? And are there not but about five or six checks

missing? Did he not say that he went to Thomlinson's? And did Mr. King not verify that he had

been at Thomlinson's? Point after point after point

after point after point.

Cooper, 70 F.3d at 1466-67 (emphasis in original).

Finally, totally unacknowledged by the majority is the assessment

of the State trial judge, who is in a far better position to assess the evidence than this court on habeas. In denying Cooper's motion for a

directed verdict, the State court expressly recognized:

. . . of course, the case hinges and will stand or fall upon

the alleged confession. And I have previously denied your

motion to suppress that evidence. And in furtherance of that

motion, of course, there was at least a day that elapsed after

the making of the statement on the tape and then the typing

it up and then giving it back to him. He had an opportunity

to read it and refuse to sign it and deny it if he had so

desired and I think those are questions of fact for the jury,

sir, and I would deny your motion.

(emphasis added). Thus, the trial court, which heard all of the evidence in the case, was absolutely clear that the taped confession alone

-- not in conjunction with the brief earlier statements -- would be

determinative of the jury's verdict.3 To ignore the State trial court's

_________________________________________________________________

3 To suggest, as the concurrence does, that on this record the erroneously admitted taped confession was "cumulative" to the short and

poorly recollected testimony concerning Cooper's earlier statements is

equivalent to suggesting that a blizzard is cumulative to a snow flurry.

 27
considered view of the effect of the taped confession, as the majority

does, is at odds with both the Supreme Court's observation in Brecht

that "state courts often occupy a superior vantage point from which

to evaluate the effect of trial error," Brecht, 507 U.S. at 636 and the

majority's own "healthy respect" for state courts. Slip Op. at 6.

In sum, the case that the majority deems "overwhelming," is a case

cobbled together from evidence that was at best a sidelight at Cooper's actual trial. It is certainly not the case the jury actually considered when it convicted Kamathene Cooper. There can be no question

that under the proper standard of harmless-error review, which examines "the basis on which the jury actually rested its verdict" or

"whether the guilty verdict actually rendered in this trial was . . . unattributable to the error," Sullivan, 508 U.S. at 279 (emphasis in original) (quotation marks omitted), the majority opinion is flatly wrong.

III.

In addition to the majority's fundamentally flawed approach to

harmless-error review, it errs in several other respects.

For example, the majority asserts that Cooper "offered no evidence

of his own . . . to contend that his confessions were not voluntary."

Slip Op. at 9. In fact, the record establishes that Cooper has consistently maintained that all three confessions were involuntary, and

presented expert testimony that he did not understand his rights and

did not effectively waive them. Cooper, 70 F.3d at 1469. (Indeed,

again before us Cooper continues to assert that like the taped confession, the two earlier confessions were obtained in violation of his

"Fifth Amendment rights to remain silent;" a claim the majority simply ignores.) Voluntariness is a jury issue, and the taped confession

severely impeded Cooper's assertion that the other confessions were

involuntary, because it allowed the jurors to hear Cooper, in his own

voice, acknowledging his Miranda rights, and describing the killings.

Without the tape Cooper could have pressed the officer's vague recollections of his other two confessions, and perhaps established involuntariness. Moreover, as the panel concluded after it considered all of

the evidence relied upon by the majority (and in much greater detail),

"without the taped confession not only would the most powerful evidence against Cooper have been eliminated, but much of the other

 28
evidence against him would not have been available or would have

been irrelevant." Id. at 1467-68.

Moreover, the majority utterly fails to address the Supreme Court's

analysis in Arizona v. Fulminante, 499 U.S. 279 (1991). It does not

even cite Fulminante, in which the Supreme Court explained:

the defendant's own confession is probably the most probative and damaging evidence that can be admitted against

him . . . . [A] full confession in which the defendant discloses the motive for and means of the crime may tempt the

jury to rely upon that evidence alone in reaching its decision

. . . . [Thus,] a reviewing court [must] exercise extreme caution before determining that the admission of the confession

at trial was harmless.

Fulminante, 499 U.S. at 296. In words directly applicable here, the

Fulminate Court went on to hold that the admission of the defendant's

first confession was not cumulative or harmless, even though the

State had properly admitted a second, more detailed confession

because "the jury's assessment of the [admissible] confession . . .

could easily have depended in large part on the presence of the [inadmissible] confession . . . ." Id. at 298.

Although Fulminante was decided under the less strict Chapman

evidentiary standard, the prejudice the taped confession caused

Kamathene Cooper far outweighs the prejudice at issue in

Fulminante, and the State of South Carolina has never asserted that

Fulminate would be decided differently under the Brecht evidentiary

standard. See Cooper, 70 F.3d at 1465. As Justice Stevens aptly stated

in his Brecht concurrence, "Justice Kennedy's cogent analysis [in

Fulminante] demonstrated that the error could not reasonably have

been viewed as harmless under a standard even more relaxed than the

one we announce today . . . . In the end, the way we phrase the governing standard is far less important than the quality of judgment with

which it is applied." Brecht, 113 S. Ct. at 1725 (Stevens, J., concurring). Of course, Justice Stevens could hardly have foreseen the decision of today's majority, which both follows a misguided legal

approach and applies an analysis that flies in the face of Fulminante

as well as fifty years of harmless-error precedent.

 29
IV.

Today, a majority of the court disregards the correct approach to

harmless-error review, which requires an examination of the trial that

actually occurred. Instead, the court conducts its own shadow-trial

and concludes that without the improperly admitted taped confession

there was sufficient evidence to convict Cooper. This approach "hypothesize[s] a guilty verdict that was never in fact rendered" -- the

precise result Justice Scalia warned against in Sullivan v. Louisiana,

508 U.S. at 279.

If it is appropriate to analogize a criminal trial at which a man has

been convicted of murder and sentenced to life imprisonment to a

baseball game, that analogy -- as clearly as anything else -- exposes

the fundamental flaw in the majority's entire approach. When the

majority retallies the "score" against Kamathene Cooper without "the

government['s] grand-slam home run," Slip Op. at 8, it unequivocally

demonstrates its lack of understanding of harmless-error review. It is

not enough for an appellate court to ask how the "game" would have

turned out without the erroneous evidence, instead a court is required

to ask how the State won the "game". In this case the State did not

run up the score before hitting a grand slam; the entire "game" turned

on the erroneous evidence.

The majority may well be right that South Carolina could in

another trial convict Cooper, without reliance on the erroneously

admitted taped confession. The majority is unquestionably wrong,

however, in concluding that the error in admitting the taped confession in the trial at which Cooper was actually convicted was harmless.

The admission of, and heavy reliance on, the taped confession at Cooper's trial could only have had "substantial and injurious effect or

influence" on "the jury's verdict." Brecht, 507 U.S. at 637.

More than one hundred years ago, the Supreme Court recognized

that "[t]he great writ of habeas corpus has been for centuries

esteemed the best and only sufficient defence of personal freedom."

Ex Parte Yerger, 8 Wall 85, 95 (1868). I respectfully dissent from

today's decision, which ignores precedent and cripples this most critical safeguard to the personal freedom we all cherish.

Judges Murnaghan, Ervin, Hamilton, and Michael join this dissenting opinion.

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