People v. Cotter

• Decision Date: 01 October 1965
• Docket Number: Cr. 7955
• Citation: 46 Cal.Rptr. 622,405 P.2d 862,63 Cal.2d 386
• Court: California Supreme Court
• Parties: , 405 P.2d 862 The PEOPLE, Plaintiff and Respondent, v. William Earl COTTER, Jr., Defendant and Appellant.

Page 622

46 Cal.Rptr. 622

63 Cal.2d 386, 405 P.2d 862

The PEOPLE, Plaintiff and Respondent, v. William Earl COTTER, Jr., Defendant and Appellant.

Cr. 7955.

Supreme Court of California, In Bank.

Oct. 1, 1965.

Rehearing Denied Nov. 10, 1965.

Jack A. Dahlstrum, under appointment by the Supreme Court, and Dahlstrum & Walton, Los Angeles, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Gordon Ringer, Deputy Atty. Gen., for plaintiff and respondent.

BURKE, Justice.

This is an automatic appeal in a death penalty case. (Pen.Code, § 1239, subd. (b)) Defendant pleaded not guilty to a murder charge, and not guilty by reason of insanity. The jury returned verdicts finding him guilty of first degree murder and sane, and fixing the penalty at death.

Ben Buus, who was 69 years of age, lived with his wife Elizabeth in part of a rented house at 9630 Oak Street in Bellflower. Defendant Cotter lived in another part of the house, which was separated from the Buus quarters by a partition. He paid $43 a month in rent, of which $8 went to Buus because defendant's lights and gas were on his meter. Mr. and Mrs. Buus had no social contacts with him and had never had any disagreements with him.

On October 10, 1963, defendant told Buus he could not pay his rent as he had not received his unemployment check and had been eating at his sister's house for the past three days. He also said he would get his check the next day, a Friday. On Monday, October 14, he used Buus' telephone but said nothing about receiving the check.

By October 15, defendant's $8 utility bill was a week overdue. At 4:30 that afternoon Buus left the house through the rear or kitchen door to assist a neighbor. When he left, Mrs. Buus was playing the organ in the dining room.

Buus returned home at 4:45 or 4:50 p. m. Finding the back door locked instead of unlocked, as he had left it, Buus knocked on the door. As he reached for his key, he saw defendant come out of either the bedroom door or the dining room door and unlock the rear door. Defendant then stepped back about two or three steps toward the center of the room, knife in hand, and said: 'Don't move or I will get you. I got your wife.' (This will be referred to as the first statement of defendant.)

Hearing his wife moan, Buus hesitated for a moment, then went out the back door into the front yard and called for help. He returned to the back door where he saw Mrs. Buus lying in the doorway, face down; she was bleeding terribly. Buus did not see defendant come out of the house but did see him run past while he was on the front lawn.

A neighbor responded to Buus' call for help, ran outside, and observed defendant half-run, half-walk to the sidewalk, turn for a second, glance back at the house, then run west on Oak. At Buus' request, the neighbor summoned the police and an ambulance, then went to the house where he helped pick Mrs. Buus off the floor and hold her until the ambulance came. Mrs. Buus had been lying on the kitchen floor and she was covered with blood 'practically from top to bottom.' At first she was conscious but she lost consciousness when the ambulance arrived. She died later that day as a result of 26 stab wounds.

Two Los Angeles County deputy sheriffs arrived at the Buus residence about 5:10 p. m. and took statements from Mr. Buus and several neighbors. The officers learned that Mrs. Buus had been stabbed and that defendant Cotter had admitted to Mr. Buus that he had stabbed her. Asked whether anything was missing from the house, Buus said that nothing had been taken, but a drawer in the bedroom dresser and two jewelry boxes on top of the dresser had been opened. When he had left to go to his neighbor's house, the boxes and drawer had been closed. The officers conducted a search of the premises which revealed the opened jewelry boxes and dresser drawer. The deputies then left to search the area for the assailant. While driving they received information that defendant had called the Lakewood Sheriff Station and indicated where he could be found. Defendant had given the desk officer his name, told him he had just tried to kill a woman, and that he could be found at a certain corner. (This will be referred to as defendant's second statement.)

Arriving at that designated location, the officers found defendant. In response to questions he acknowledged his identity, his address, that he had made the telephone call and had stabbed a woman at that particular location. When asked where the knife he had used was, he said it was in his right front pocket. (Defendant's third statement.) When the police officer then removed the knife from defendant's pocket the blade was still open

The officers handcuffed defendant, placed him in the police car, and drove to the station. One of the officers testified that en route he asked defendant what had occurred at the Buus residence. Defendant answered that he had gone to the front door with the intention of robbing them and stated (defendant's fourth statement): 'Mrs. Buus answered the door, invited him to come in, and he told her that he came to pay his rent. 'Mrs. Buus stated that her husband was in the back yard and that she would call him. She went to the kitchen door and called to him. He didn't answer, and she shut the door and came back to the living room where Mr. Cotter said that he had waited for her, and as she approached him, he took the knife from his pocket and began stabbing her. She commenced screaming and telling him that asking him what he wanted, that she would give him anything that he wanted, and he didn't know why, but he just kept stabbing her until she stopped screaming and fell to the floor. He stated that he then went to the kitchen door and locked it and walked through all of the rooms in the house looking for some money, but he didn't find any, and that he then heard someone at the kitchen door attempting to get in, and he went to the kitchen, opened the door and saw Mr. Buus standing on the back step.

'When Mr. Buus started in the kitchen, he said that he didn't recall exactly what he said to him, but he believed that he had told Mr. Buus that if he didn't get back out of the way that he would kill him, and then he said that Mr. Buus then ran to his back-yard and began screaming for help, and that he then, Mr. Cotter himself, * * * ran from the inside of the residence, * * *.'

The officer testified that the statements made by defendant in the police car were entirely voluntary and were in narrative form with the officers interrupting only to ask him to repeat when something he said to them was not clear; that during the making of this statement to the officers in the police car the defendant seemed remorseful and sighed several times, stating 'that he didn't know why he had done it.' (Fourth statement ends.)

After the arrival at the police station, the police did engage in a process of interrogation and as a result of the questioning defendant made statements five through seven. The last of these interrogations was at 9:49 p. m. on the same day (October 15) and was in the presence of a police stenographer who later transcribed what was said. This was the seventh statement and it was read in evidence.

The several statements in the police station added nothing to the essentials of the crime which had previously been volunteered by defendant. In his seventh (the recorded) statement he did give some additional details, such as that he had hoped to find both Mr. and Mrs. Buus at home and had intended to exhibit the knife and tell them to be quiet and hand over their money; that if they had complied with his request, 'why I would have just taken the money and left'; that he believed both of them were at home when he went to the house. He stated further concerning his search of the bedroom that he was looking for Mrs. Buus' purse. He admitted he had 'continued to stab Mrs. Buus after she had fallen to the floor.' In his previous statement in the police car he had stated that 'he just kept stabbing her until she stopped screaming and fell to the floor.'

Defendant did not testify on the issue of guilt and no evidence was presented on his behalf.

The People presented no evidence at the penalty trial, but defendant called a number of witnesses. He also took the stand in his own behalf, acknowledged that he had decided to try to get money from Mr. and Mrs. Buus and that he took out his knife with the intent to demand money from them but with no intention of using the knife as a weapon. He stated he did not know why he stabbed Mrs. Buus, that he was not angry at her and that she and her husband had been very nice to him. He remembered showing the knife to Mr. Buus and threatening him. He remembered talking to the officers while being transported to the police station, and when asked if any questions were asked of him at that time he stated, 'No, other than they asked me what happened. Was I mad at her or was there a fight?' In his testimony he indicated that detailed questions were asked of him by a second group of officers only after he had been taken to the police station.

At the trial the prosecution based its case for first degree murder on two different theories. The first was on the theory of felony murder (Pen.Code, § 189) based upon the evidence of the opened jewelry boxes and dresser drawer and defendant's admission to the police that he had entered the Buus residence with an open knife in his hand and with the intent to rob the occupants. The second theory was based upon defendant's admission that he entered the house with the opened knife in his hand and shortly after entry, and with no further provocation, started stabbing his victim, from which it might be inferred that the attack was premeditated.

It is contended that under authority of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and People v. Dorado, 62 A.C. 350, 42 Cal.Rptr....