People v. Cooper

• Decision Date: 04 March 1960
• Docket Number: Cr. 6545
• Court: California Supreme Court
• Parties: , 349 P.2d 964 PEOPLE of the State of California, Plaintiff and Respondent, v. Richard Thomas COOPER, Defendant and Appellant.

Page 148

3 Cal.Rptr. 148

53 Cal.2d 755, 349 P.2d 964

PEOPLE of the State of California, Plaintiff and Respondent, v. Richard Thomas COOPER, Defendant and Appellant.

Cr. 6545.

Supreme Court of California, In Bank.

March 4, 1960.

Edward T. Mancuso, Public Defender, and Claude D. Perasso, Deputy Public Defendant, San Francisco, for appellant.

Stanley Mosk, Atty. Gen., and Peter T. Kennedy, Deputy Atty. Gen., for respondent.

SCHAUER, Justice.

Defendant was charged with (count 1) murder of Earlean Mosley committed on or about June 4, 1959, and (count 2) murder of Elvira Hay committed on or about August 3, 1958. As to each count he pleaded not guilty and not guilty by reason of insanity, and a jury found him guilty of murder of the first degree, fixed the penalty at death, and found that defendant was sane at the time the offense was committed. Defendant's motion for new trial was denied. This appeal (pursuant to Pen.Code, § 1239, subd. (b)) is from the order denying a new trial and the ensuing judgment which imposes two sentences of death.

Defendant urges that as a matter of law the murders were of the second degree only, and that the giving of instructions as to murder in the perpetration of or attempt to perpetrate rape was prejudicial error because there was insufficient evidence to justify instructions on that subject. Both these contentions rest upon defendant's view that the 'corpus delicti' of first degree murder (on the facts here, either a wilful, deliberate, and premeditated intent to kill, or the elements of rape or attempted rape), and not merely the death of the victims by criminal agency, must be proved by evidence other than extrajudicial statements of the defendant. Defendant further contends that the trial judge erred to his prejudice by refusing to order the People to furnish defense counsel, prior to trial, with copies of statements of seven persons assertedly obtained by the People in their investigation of the killing of Elvira Hay. The judge in connection with such ruling stated that if the prosecuting attorney should call such persons as witnesses the judge would require him to furnish defense counsel with copies of their statements and would allow 'ample time' for defense counsel to study them in preparation for cross-examination. The position of defense counsel, however, is that whether or not the prosecution called such persons as witnesses defendant had the right to examine their statements in advance of trial so that he would have opportunity to prepare his case. We have concluded that defendant's contentions cannot be sustained, that defendant was accorded a fair trial on all issues, and that the order and judgment from which this appeal is taken should be affirmed.

Apart from defendant's extrajudicial statements there is evidence of the following facts: At the times of the killings defendant resided in a hotel at 293 Fourth Street in San Francisco. In 1958 Elvira Hay (victim of the offense charged in count 2) lived in another hotel nearby with John ('Tennessee') Fry. Witness John Jones testified that shortly after 11 p. m. on August 2, 1958, Elvira and Fry had an argument on the street in the vicinity of the mentioned hotels. Fry slapped Elvira, knocked her down, grabbed her around her neck, pulled her to her feet by the lapels of her coat, and displayed a small paring knife. When Fry produced the knife Jones departed.

At about 5 p. m. on August 3, 1958, Mattie Williams, a tenant of the hotel at 293 Fourth Street, discovered Elvira's nude body in the tub of a common bathroom across the hall from the room where defendant lived. Elvira had died by strangulation. The alcoholic content of her blood was .24 per cent, which showed that she was 'very intoxicated' at the time of her death. About her right knee were incisions which had been made after her death. Her pubic hair had been shaved off. The water in the tub contained lye. ¹

On the evening of June 3, 1959, Earlean Mosley (victim of the offense charged in count 1) was in bed in her room at 293 Fourth Street. Her landlady and Mrs. Adams, another tenant of the hotel, called upon her. Earlean complained that she was ill and that her legs ached. At about 9 p. m. Mrs. Adams left Earlean's room and returned with soup for her. When Mrs. Adams returned, defendant and another man were also in the room. The landlady and Mrs. Adams left Earlean's room at about 9:20 p. m.

Shortly after midnight on June 4, 1959, defendant entered the Southern Police Station at 360 Fourth Street. He apparently had been drinking but 'he wasn't staggering and his speech was clear and coherent.' Defendant gave police officers his keys to the hotel and to his room at 293 Fourth Street. The police, pursuant to statements of defendant, went to his room and found the body of Earlean in defendant's bed. She was covered with a blanket and a pillow was over her face. She had died as the result of strangulation with a necktie which was knotted tightly around her neck. She wore a nightgown and a bathrobe. Her blood contained .28 per cent alcohol; such a person would have been 'almost paralyzed, almost in a coma.' Earlean's radio was in defendant's room and the padlock and keys to her room were on his dresser.

At 3:30 a. m. on June 4, 1959 (some four hours after the killing of Earlean), a test of defendant's blood showed that it contained .10 per cent alcohol. This would indicate that defendant's blood alcohol content would have been about .16 per cent four hours before. The blood alcohol content which by custom is accepted as a test of drunken driving is .15 per cent.

On the edge of the mattress in defendant's room was a stain of human blood too small for classification as to type. Defendant pointed out another blood stain on the carpet of his room near the hall door. This stain was human blood of type O. Elvira Hay had type O blood; defendant's blood was type A.

Voluntary statements of defendant to the police, which had been made and recorded on June 4 and 6, 1959, were played to the jury. Because defense counsel as to each count argues the insufficiency of evidence of deliberate and premeditated intent to kill, the substance of defendant's statements will be here set forth in the chronological order of the events, feelings, and thoughts described by him, rather than in the sequence in which the statements were made, so that the manner in which the jury inferentially could have traced the development of the intent necessary to constitute deliberate, premeditated murder may more clearly appear.

Defendant stated that he met Elvira 'approximately two weeks prior to the date of her death * * * I made it quite plain to her that I wasn't interested in buying a woman, though I didn't mind spending money for drinks * * *, so she said that was fine, we'd get some wine and go up to her room and drink it, so we bought a fifth of wine and went up to her room and * * * after the wine was consumed, then, of course, I started getting amorous * * * and before we were completely disrobed, she asked me for $5. Well, if she'd have asked me outside, I'd have told her to go to hell * * * but by that time I had gone too far and so I was mad as the devil, but I gave her the $5, but I was so made that when I had intercourse with her, I couldn't reach a climax, and I * * * got up and stormed out of there, and between that day and the date of her death, I think I saw her once or twice, either on the street or in the hallway, but we had no further contact with each other until the day of her death. * * *'

At about 4 p. m. on August 2, 1958, defendant went to a party given by Elvira's daughter in the hotel where defendant lived. '(P)rior to this, I had been drinking heavy and constantly for well over a month because I was unemployed, and I * * * never got out of bed practically for anything, but to go out and get another drink another bottle so I was my mind was pretty foggy.' At the party defendant met Elvira again. After two or three hours 'my mind finally got so foggy from drinking I had to get some sleep, so I * * * went back to my room and went to bed. I don't know how long I slept; when I woke up, I had another drink I had a bottle right by my bed; I got up and walked around the hall to see who was up * * *' Elvira was in the hall looking from a window toward the hotel where she and John ('Tennessee') Fry lived. '(S)he said that she was watching for Tennessee * * * and * * * that she was afraid he might kill her, so I told her, 'Well, he can't find you in my room,' so she came to my room * * * and laid on the bed fully dressed and we had a few drinks and I started getting fresh with her she didn't object to my feeling her * * * but * * * she had on pedal pushers, and I tried to get her to take them off to see if I could get some, and she wouldn't do it, and I just got mad at her all over again, so I took a necktie belonging to myself and eased it under her head without her knowledge, while I was holding her and carressing her and everything so she didn't notice anything, and when I got one end of the tie under her head, I looped the other end around her throat and shoved that under in the opposite direction so I had a hand hold. * * * I just laid there for several minutes, trying to make up my mind the consequences of what I was doing was so great that I was just on the verge at least I'm convinced I don't know how I what I would have done if she hadn't felt that, but it was I was thinking then of trying to ease the tie back off and forgetting about this whole thing, but just then she must have felt the cloth around her neck because * * * she jumped. She said, 'What's going on here?', so I she had me cold then so * * * I just jerked. I said, 'Now you know.' I held it until she ceased moving. * * *'

In response to the question, 'why did you do that to her?' defendant said, 'that doesn't sound like a logical excuse, but for one thing, I was mad and I intended to...