Kamathene Adonia Cooper v. P. Douglas Taylor, Warden T. Travis Medlock, the Attorney General of the State of South Carolina

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, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (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 casein-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, 66 S.Ct. at 1248 (“The inquiry cannot be merely whether there was enough [evidence] 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.”).1

Judge Motz’s opinion, which I join, convincingly explains why the admission of the taped confession — the undeniable centerpiece of the 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 *375provided 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

It follows that I would reverse and remand with instructions to grant the writ of habeas corpus.

MURNAGHAN, Circuit Judge, joins this dissenting opinion.

. 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, 66 S.Ct. at 1253. 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, - U.S. -, 117 S.Ct. 237, 136 L.Ed.2d 166 (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, 105 S.Ct. 1087, 84 L.Ed.2d 53 (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.

. 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.