Cooper v. Com.

Citation205 Va. 883,140 S.E.2d 688
CourtSupreme Court of Virginia
Decision Date08 March 1965
PartiesFrank Timothy COOPER v. COMMONWEALTH of Virginia.

Edgar K. Wells, Jr., Williamsburg, for plaintiff in error.

W. P. Bagwell, Jr., Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on brief), for defendant in error.

Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON and CARRICO, JJ.

SNEAD, Justice.

At the June 1963 term of court Frank Timothy Cooper, defendant, was indicted for the rape of Jackie Friend, a female child four years old (Code, § 18.1-44) and on July 3, 1963, Cooper was tried upon the indictment. He was represented by counsel of his own choosing, entered a plea of not guilty and waived trial by jury. The trial court found the defendant guilty as charged and subsequently, after considering the reports of the probation officer and psychiatrist, sentenced him to confinement in the State penitentiary for a term of thirty years. We granted the defendant a writ of error.

Jackie Friend and her two-year-old brother, Dutsey, were residing with their maternal grandparents, Mr. and Mrs. James Burkes, in a trailer camp in James City county. Their mother, Mrs. Shirley Walker, had divorced her first husband, the father of the children, and was living in Norfolk at the time of the alleged offense.

At approximately 6:30 p. m. on May 17, 1963, Burkes returned to his trailer accompanied by Kelley Salyers and Cooper, the defendant. They brought with them a fifth of vodka and two six-packs of beer. The three men were sergeants in the United States Army stationed at Fort Eustis. Cooper had made two prior visits to the Burkes trailer and on one occasion had spent the night. Upon their arrval Mrs. Burkes prepared vodka drinks for herself and the men. They continued to drink until they had consumed the bottle of vodka and at least some of the beer. An argument developed between the Burkes. About 7 p. m. Mrs. Burkes put her young grandson Dutsey in bed, and at 8 p. m. she dressed Jackie in pajamas and placed her in bed. Shortly thereafter Jackie went to sleep. Cooper complained of a headache and said he 'didn't feel good,' and Burkes told him to lie down. He lay down across the bed on which Jackie was sleeping.

Soon thereafter Mrs. Burkes left the trailer and walked to a store called 'Mike's' where she ordered a beer, but before she had an opportunity to drink it her husband and Salyers appeared on the scene. She immediately proceeded to another place called 'Ted's' where she ordered beer, but before she had a chance to drink it Burkes and Salyers arrived there. In the meantime, Cooper and Jackie were alone in the trailer. Mrs. Burkes then ran back to the trailer and when she arrived Burkes and Salyers, who rode in an automobile, had already returned. According to Mrs. Burkes, Cooper, Burkes and Salyers were in the trailer drinking beer, and Jackie was standing beside the front door crying. She estimated that about one-half hour elapsed from the time Cooper lay across Jackie's bed until she returned from the stores. Another argument developed between the Burkes and Mrs. Burkes threw a flower pot which broke a glass in the front door. She stepped on the broken glass and cut her heel which caused it to bleed.

As a result of the argument, Mrs. Burkes and the two children spent the night with Sergenant and Mrs. Dewey R. Taylor who lived across the street in a trailer. At Cooper's request, Sergeant Taylor drove him back to Fort Eustis around midnight.

The next morning, after Mrs. Burkes had returned to her trailer to prepare breakfast, she observed that Jackie was passing blood. Mrs. Burkes became excited and immediately called Mrs. Taylor who hurried over. Upon their examination of the child they concluded that she had been 'molested'. Burkes, who was on duty at camp, was called home and the child was taken to Dr. Constantine Saliba in Williamsburg. Dr. Saliba examined Jackie and testified that she was in 'an acute shocked state', was 'very emotional and upset', and that 'there was trauma to the anterior and posterior vaginal walls'. He further stated 'the trauma included blood collections and some swelling and there was some kind of penetration, * * *.' On cross-examination he admitted that the penetration could have been 'by any number of things.'

At a preliminary hearing had in the James City County Court on May 21, 1963, the charge against Cooper was dismissed. On the night of May 23, Jackie was taken by her mother, Mrs. Walker, to State police headquarter in Norfolk. There, H. L. Mundy, an investigator for the Virginia State Police, arranged for Mrs. Walker to question her child in detail concerning the offense allegedly committed by Cooper. Mrs. Walker and the child were left alone in a room. It was 'bugged' and had a 'two-way mirror' which enabled Mundy to hear the conversation and to see the parties without himself being seen. A tape recording was made of the entire conversation. Leading questions were asked and considerable prodding was done by the mother in an effort to get the child to talk about the incident. Many of Jackie's answers were incoherent, but she did make some damaging statements.

On May 24, the following day, Mundy interrogated Cooper at Fort Story after he had been advised of his rights. At the trial, Mundy was asked by counsel assisting in the prosecution:

'Q. I said, Mr. Mundy, did you or did you not ever in your interrogation of Cooper ask him why if he had committed such an offense he had indeed done so? Why had he committed this offense? Did you ask such a question?

'A. Yes. On several occasions I asked him. The first occasion was on May 24 at Fort Story. I told him that the little girl had told me what he had done to her, and that I would like to know why he had done it, and he never replied to me that he had done it, and I said that I felt like that the drink was a contributing factor to what he had done, but there were bound to be other reasons.

'And he raised his right hand and said, 'I swear I will never take another drink as long as I live.'

'I said, now you don't think that is the answer to your problem, and then he didn't answer anymore questions, or he wouldn't say anything again.'

On june 10, the grand jury indicted Cooper for rape and he was incarcerated pending trial.

According to Mundy, on June 28, he took Cooper out of jail and led him to the sheriff's office where he interrogated him again. He testified:

'* * * I played this tape recording for Cooper, letting him hear the little girl telling her mother what he had done. And Cooper became upset and I said, Cooper, I said, that little girl doesn't even know anything about sex, I said, she doesn't know, she wouldn't make this stuff up on you and tell nothing wrong, and he said, said it don't look like it, does it.

'I said, Cooper, just tell me why. I said I know it is bound to be some reason for it, why.

'And he half started crying and he said I do not know why.

* * *

* * *

'Q. So far as Cooper was concerned, when he was confronted with all this he said I don't know why, is that right?

'A. At one time he started halfway to cry there and he said I don't know why. That was right after I played the recording for him.

'Q. He never at any time admitted that he had done anything to this child, is that correct?

'A. No, sir.'

At this point in the trial the Commonwealth rested, and counsel for defendant moved to strike the Commonwealth's evidence. During the course of trial and before the motion to strike was made Jackie had testified for several hours in chambers. The court stated during argument on the motion that he did not think Jackie's testimony 'establishes anything particularly'; that the 'only thing I get from her was one sort of a nod at one stage of the proceeding', and that furthermore her testimony could not be considered 'because she was never even subjected to cross examination.' The court stated that if the Commonwealth had a case it was based upon Cooper's admission 'I don't know why' and that the statement amounted to very little unless the court had knowledge of the contents of the tape recording. Over the objection and exception of defendant, the Commonwealth was permitted to reopen the case and Mundy testified as to the contents of the tape recording. This testimony was objected to on the ground that it was hearsay.

Mundy was asked on cross-examination if Cooper did not say during the interrogation on June 28 'I swear to God I didn't rape that little girl and you know it?' His response was: 'No, sir. I asked him if he believed in God, and he said yes I do believe in God, and he raised his hand and he said I do swear that I didn't rape that little girl.'

At the conclusion of Mundy's testimony the Commonwealth's motion to introduce the tape recording itself in evidence was sustained. The court said: 'I believe that in fairness to the accused, really it would be fairer to him to have the recording played than take the witnesses version of what the recording says. Perhaps that is best.' To this ruling counsel for defendant stated that he 'would like the record to show my continuing objection'. This objection was apparently on the ground that it was hearsay evidence. That portion of the tape recording which was played to Cooper on June 28 was again played, and the record shows that the court reporter 'found it utterly impossible to take down the utterances of the tape machine with any degree of accuracy' so that he could certify the utterances as being an accurate transcription. 1

The Commonwealth again rested and the defendant renewed his motion to strike the Commonwealth's evidence. The motion was overruled and an exception was taken. Cooper offered no evidence in his behalf. The court stated 'I think his admission coupled with the abundant opportunity that he had, and coupled with the proof there had been penetration by some object, is sufficient.' Whereupon, Cooper was found...

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