APPEAL fro THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. George A. O'Toole, Jr., U.S. District Judge.
Jeanne M. Kempthorne for appellant.
Todd M. Blume, Assistant Attorney General, with whom Martha Coakley, Attorney General, was on brief, for appellee.
Before Lynch, Chief Judge, Stahl and Howard, Circuit Judges.
HOWARD, Circuit Judge.
A Massachusetts 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. See 28 U.S.C. § 2254. In particular, he challenged the state appellate court's 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.
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, 71 Mass.App.Ct. 1102, 878 N.E.2d 581, 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 Ct. 2007) (unpublished decision).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 over her eyes. 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: " Julie, you're very pretty, you have a nice body." In fear, the victim protested, " No, please just leave." 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. She 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. ...