State v. Cook, CR-88-0301-AP

CourtSupreme Court of Arizona
Citation821 P.2d 731,170 Ariz. 40
Docket NumberNo. CR-88-0301-AP,CR-88-0301-AP
PartiesSTATE of Arizona, Appellee, v. Daniel Wayne COOK, Appellant.
Decision Date05 December 1991

Page 731

821 P.2d 731
170 Ariz. 40
STATE of Arizona, Appellee,
Daniel Wayne COOK, Appellant.
No. CR-88-0301-AP.
Supreme Court of Arizona, In Banc.
Dec. 5, 1991.
Reconsideration Denied Jan. 21, 1992.

Page 736

[170 Ariz. 45] Grant Woods, Atty. Gen. by Gerald R. Grant, Phoenix, for appellee.

George M. Sterling, Jr., Phoenix, for appellant.


FELDMAN, Vice Chief Justice.

Defendant Daniel Wayne Cook was convicted of two counts of first degree murder and sentenced to death on both counts. We have jurisdiction over this automatic appeal pursuant to article 6, § 5(3) of the Arizona Constitution, and A.R.S. §§ 13-4031 and 13-4033.


Shortly after 4:00 a.m. on July 21, 1987, John Matzke and Byron Watkins arrived at the Lake Havasu City Police Department, where Matzke reported his involvement in two murders committed at his apartment during the evening of July 19 and early morning of July 20. Matzke told officers about the crimes and granted the police consent to enter the apartment. Investigating officers went to the apartment that Matzke shared with Cook. After arresting Cook, officers searched the apartment and discovered the bodies of Carlos Cruz Ramos and Kevin Swaney in the closet of Matzke's bedroom. Autopsies revealed that both victims had been strangled.

Cook and Matzke were each indicted on two counts of first degree murder. In return for the state's dismissal of all other charges, Matzke agreed to plead guilty to one count of second degree murder and to testify against Cook. Cook was not offered a plea agreement. At trial Matzke related the following sordid story of bondage, torture, and sodomy, in which Cook was the principal protagonist.

Carlos Cruz Ramos was a Guatemalan national employed at the same restaurant where Cook and Matzke worked. He had recently moved into their apartment. According to Matzke, Cook devised a plan to steal Cruz Ramos' money. While Matzke distracted Cruz Ramos, Cook stole approximately $90 from Cruz Ramos' money pouch. Shortly afterward, Cruz Ramos noticed his money was missing, and asked Cook and Matzke whether they knew anything about it. The two then lured Cruz Ramos into Cook's upstairs bedroom. They pushed Cruz Ramos down on the bed and, using strips torn from Cook's sheets, gagged him and tied him to a chair.

Over the course of the next six or seven hours, Cruz Ramos was cut with a knife, beaten with fists, a metal pipe and a wooden stick, burned with cigarettes, sodomized, and had a staple driven through his

Page 737

[170 Ariz. 46] foreskin. Matzke suggested that they kill Cruz Ramos because they could not let him go. Cook replied that Cruz Ramos should be killed at midnight, "the witching hour." When midnight arrived, Matzke first tried to strangle Cruz Ramos with a sheet. Matzke then took Cruz Ramos out of the chair, put him on the floor, and pushed down on his throat with a metal pipe. According to Matzke, because Cruz Ramos still would not die, Cook pressed down on one end of the pipe while Matzke pressed on the other. Finally, Matzke stood on the pipe as it lay across Cruz Ramos' throat and killed him.

Matzke and Cook later dressed Cruz Ramos and put him in the closet of Matzke's bedroom. The autopsy revealed that Cruz Ramos had suffered severe lacerations and contusions as a result of his beating, that he had been cut on the chest, and that his stomach and genitals had been burned. The autopsy also revealed that Cruz Ramos had two puncture holes in his foreskin and that his anus was dilated, although no semen was detected.

Kevin Swaney was a sixteen-year-old runaway and sometime guest at the apartment. He was a dishwasher at the restaurant where the others worked. Shortly after 2:00 a.m., approximately two hours after Cruz Ramos' death, Swaney stopped by the apartment. Cook initially told Swaney to leave, but subsequently invited him inside. Cook and Matzke told Swaney they had a dead body upstairs and, according to Matzke, Cook took Swaney upstairs and showed him Cruz Ramos' body. Swaney was crying when he and Cook returned downstairs. Cook reportedly told Swaney to undress, and Swaney complied, and Cook and Matzke then gagged him and tied him to a chair in the kitchen. Matzke said he told Cook that he would not witness or participate in Swaney's torture. Matzke then went into the living room and fell asleep in a chair.

Cook later woke Matzke, who said he saw Swaney bound and gagged, sitting on the couch, crying. Cook told Matzke he had sodomized Swaney and that they had to kill him. Matzke said they tried to strangle Swaney with a sheet, but Matzke's end kept slipping out of his hands. Cook then reportedly stated "this one's mine," placed Swaney on the floor, and strangled him. He carried Swaney's body upstairs and put him in the closet with Cruz Ramos.

The autopsy revealed that Swaney's anus was dilated and semen was present, although the identity of the donor could not be ascertained. Matzke's fingerprints were found on the knife used to cut Cruz Ramos' chest, but no identifiable fingerprints were found on the metal pipe or wooden stick. Cook's fingerprints were found on the chair to which Cruz Ramos had been tied, the closet door, and the stapler. His semen was found on the strips that had been torn from his bedsheets. There was no other physical evidence of Cook's participation.

After Swaney's murder, Cook and Matzke fell asleep downstairs. Later in the day, Matzke went to work, but returned a few hours later after quitting his job at the restaurant. Late that evening, some friends came over to the apartment. Early in the morning of July 21, 1987, Matzke took one of the friends, Byron Watkins, outside of the apartment and told him about the murders. Watkins convinced Matzke to go to the police.

When Cook was arrested and brought to the station, he was questioned by Detective David Eaton of the Lake Havasu City Police Department. According to Eaton, he advised Cook of his Miranda rights, then asked him how the two bodies found in the apartment had gotten there. Cook replied that "we got to partying; things got out of hand; now two people are dead." When asked how they died, Cook said "my roommate killed one and I killed the other."

Cook was initially represented by appointed counsel. Prior to trial, Cook decided to waive his right to counsel and to represent himself. The trial judge strongly advised Cook against representing himself, enumerating the pitfalls he was likely to encounter. The trial court then accepted his waiver of counsel as knowingly, intelligently, and voluntarily given, and appointed Cook's former counsel to be his advisory

Page 738

[170 Ariz. 47] counsel. Also before trial, the trial court granted the state's motion to preclude all evidence of intoxication, and allowed the state to proceed on the theory that the murders were committed "knowingly." That is, the state would not have to prove that Cook acted intentionally in the murders of Cruz Ramos and Swaney, and therefore evidence of intoxication, which might negate intent but not knowledge, was precluded. See A.R.S. § 13-503.

The jury convicted Cook on both counts of first degree murder. At the sentencing hearing, Cook stated that the only penalty he would accept was death, and presented no mitigating evidence, though he did mention his lack of any other felony convictions. The state argued that the murder of Cruz Ramos was committed for pecuniary gain under A.R.S. § 13-703(F)(5), and that it was committed in an an especially cruel, heinous, and depraved manner under A.R.S. § 13-703(F)(6). The state also argued that Swaney's murder was especially cruel, heinous, and depraved. The court found these aggravating factors to exist and, sua sponte, found an additional aggravating factor in both murders--that they were committed during the commission of another homicide under A.R.S. § 13-703(F)(8). The trial court found no mitigating factors, and sentenced Cook to death on each count, with the proviso that if the sentences were reduced to life on appeal, they would run consecutively.

The clerk of the Mohave County Superior Court filed a timely notice of appeal on Cook's behalf. See Rule 31.2(b), Ariz.R.Crim.P., 17 A.R.S. (hereinafter Rule __). Cook claims the following errors on appeal:

1. He was denied his sixth amendment right to counsel when: (a) the trial court permitted him to waive his appointed counsel and proceed in propria persona, and (b) he was not permitted hybrid representation.

2. The trial court allowed the prosecution to convict Cook of first degree murder on the culpable mental state of "knowingly" rather than "intentionally," thus precluding evidence of voluntary intoxication.

3. The prosecutor impermissibly commented on Cook's invocation of his fifth amendment right not to testify.

4. The trial court dismissed a juror after evidence had been presented in the case, based on allegations stemming from the prosecutor's personal investigation of her out-of-court conduct.

5. The trial court denied Cook a fair trial by refusing to continue the trial to allow Cook to secure the testimony of certain witnesses.

6. The admission at trial of a statement made by Cook at his initial appearance violated his right to counsel.

7. Matzke was permitted to testify at trial under a plea agreement requiring him to testify consistently with prior testimony and statements to police.

8. The trial court refused to instruct the jury on second degree murder.

9. The trial court erred in finding as an aggravating circumstance that each homicide was committed during the commission of the other.

10. The trial court erred in finding as an aggravating circumstance that the murder of Carlos Cruz Ramos was committed in an especially "cruel, heinous and depraved" manner.

11. The trial court erred in finding as an aggravating circumstance that the murder of Carlos Cruz Ramos was committed in anticipation of pecuniary gain.

12. The trial...

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