State v. Cooper

• Decision Date: 14 December 1977
• Docket Number: No. 77-219,77-219
• Citation: 52 Ohio St.2d 163,370 N.E.2d 725,6 O.O.3d 377
• Parties: , 6 O.O.3d 377 The STATE of Ohio, Appellee, v. COOPER, Appellant.
• Court: Ohio Supreme Court

Page 163

52 Ohio St.2d 163

370 N.E.2d 725, 6 O.O.3d 377

The STATE of Ohio, Appellee, v. COOPER, Appellant.

No. 77-219.

Supreme Court of Ohio.

Dec. 14, 1977.

On the evening of February 17, 1974, upon information received from James W. Cooper, Jr. (appellant-defendant herein), Lake County sheriff's deputies found the body of Rebecca Sue Gilhausen, age 12, lying face down in a stream located in the Painesville Recreation Park, Perry Township, Lake County, Ohio, with what appeared to be a hand towel tied around her neck. The body was clothed; however, the coat the victim wore was unbuttoned up to the two top buttons, the yellow blouse worn underneath the coat was pulled up over her bra, and the top four buttons of her jeans were unbuttoned as well. There were observed two small scraping injuries near the left side of the victim's chin, fresh dark hemorrhages in the soft tissues on both sides of the neck as well as the windpipe, and a variety of scraping injuries on the face, forehead, knees, and backs of the hands.

It was determined that the cause of Rebecca's death was asphyxiation due to strangulation by ligature. Through chemical analysis of the contents of the victim's stomach, it was determined that death occurred around 2:30 p. m., on February 16, 1974.

Apparently, on the afternoon of February 16, 1974, Rebecca wanted to go ice skating with a couple of her friends from school at Recreation Park, but was unable to borrow a pair of ice skates. Rebecca was last seen walking towards the park around 1:30 p. m. that afternoon, with her head down and her hands in her pockets.

On that same afternoon, the defendant Cooper met three acquaintances around 12:35 p. m. at Recreation Park. After leaving the group, the defendant was seen, 10 minutes later, driving his car toward the ice pond. The defendant was later seen at a service station located near Vrooman Road between 2:30 and 3:00 p. m. He was searching for a tow truck to assist in freeing his car from a mudhole located off Vrooman Road inside the park (near the scene of the crime). The defendant told one witness that he had been forced off the road by an oncoming car, and was now unable to move his car. Eventually, with the help of his friend, Wendell Lilly, and two other men who had been passing by in a pick-up truck, the defendant was able to drive his car onto the main road.

The defendant disclosed to Wendell Lilly that same day that he had discovered a body. On February 17, 1974, the defendant also told his girlfriend, Susan E. Wohls, about a body he had found near Vrooman Road in the woods. (He also stated that he knew about another body, but later admitted to Miss Wohls after his arrest that the statement was untrue.) On February 17, 1974, upon the advice of his friends, the defendant reported his discovery of the body to the police in person.

The sheriff's deputies, in conducting an initial investigation at the scene of the crime, found that the defendant's car was stuck in a mudhole located approximately 90 feet east of the berm off Vrooman Road. The area was covered with two to three inches of snow. From the point of the mudhole, there were tire marks made by a conventional automobile continuing another 311 feet back into the woods. At that point, a set of shoe prints lead out from what would have been the driver's side of the car, and passed along the front of the car to the passenger side, where a smaller set of shoe prints were observed. Both sets of shoe prints then lead side-by-side toward the creek bed. At a point on the top of the bank of the creek, near the location of the body, the shoe prints pointed toward each other. A single set of shoe prints to the left of this area lead back to Vrooman Road from the creek. Approximately 60 feet from the location where the body was found, a blue glove and a piece of white towel with a red stripe on it were recovered.

After directing the sheriff's deputies to the location of the body, the defendant gave the following version of the events leading to his discovery of the body. He stated that on the afternoon of February 16, 1974, he was forced off Vrooman Road because of an oncoming car approaching left of center, and became stuck in a mudhole. The defendant related that after failing several times to free the car, he noticed a set of footprints in the snow and followed them to a stream. He stated that he wanted to find someone who could help him, and also was looking for wood to place under his tires. Upon arriving at the stream, he noticed a pair of white boots sticking up out of the water. He pulled on the boots but saw only what he thought to be a rag dummy. The defendant left the area to search for a tow truck. Having obtained assistance in freeing his car, he later returned to the park to retrieve his bumper jack that he had left behind. He returned to the stream bank to find if what he had seen was really a body. Having confirmed his suspicions, he immediately left the area.

Presumably, because Mr. Cooper's story was inconsistent with direct observation made by the authorities, he was held for further investigation that evening.

On February 18, 1974, the defendant volunteered additional information to a sheriff's deputy. He admitted that he had known the victim, that on the afternoon of February 16th he had propositioned Rebecca in his car at the park, and that, later, there was sexual contact between them. The defendant said further that he followed Rebecca after she left his car down toward a stream, and that he heard Rebecca say that she thought she was going to faint. According to the defendant, Rebecca did in fact fall. However, he thought she was faking. He offered her a ride back into town, but subsequently left without her. The defendant was heard to tell a similar story to his girlfriend, Susan Wohls, that same day, and to a third person on February 20th at the holding cell.

The defendant stated further, upon questioning by the sheriff's deputy on February 18th, that he knew what kind of panties Rebecca was wearing, and although admitting that the towel discovered around the victim's neck was the towel he kept in his car, he did not know how the towel got there.

In conducting a search of the defendant's car, cloth fibers were recovered from the back seat. Through microscopic and physical tests, these cloth fibers were determined to be of the same material as the piece of towel found around the victim's neck, and the towel found near the body along the bank. Furthermore, chemical tests were conducted on the panties, the piece of towel used to strangle the victim, and the towel found near the body. All contained semen stains.

With respect to the tire tracks found off Vrooman Road leading to the sets of shoe prints, it was noted that the car which made the tracks had one snow tire on the left rear side. Defendant's car had the same arrangement of tires.

James W. Cooper, Jr., was subsequently indicted on the charge of aggravated murder with the specifications that he purposely caused the death of Rebecca while committing the offense of kidnapping and while attempting to commit rape.

Trial commenced before a jury on July 1, 1974, and on July 18, 1974, the appellant was found guilty of the charge and specifications thereto.

At the mitigation hearing, the trial judge found none of the mitigating circumstances listed in R.C. 2929.04(B) to have been established by a preponderance of the evidence, and imposed the sentence of death.

The appellant, failing in his motion for a new trial, appealed to the Court of Appeals, which court, on December 6, 1976, affirmed appellant's conviction and sentence.

The cause is now before this court as a matter of right.

John E. Shoop, Pros. Atty., David L. Lavinder and Gregory Sasse, Painesville, for appellee.

Talikka & Ulrich, Leo J. Talikka and Joseph R. Ulrich, Painesville, for appellant.

PER CURIAM.

In his propositions of law Nos. 20 and 23, appellant contends that there were so many errors made by the trial court in its rulings on motions and objections, as well as in its jury instructions, that the judgment and findings of the court were contrary to law and prejudicial to the defendant. We disagree.

Several of the issues raised by appellant in his brief to this court were not properly preserved at the trial level. In paragraph three of the syllabus in State v. Childs (1968), 14 Ohio St.2d 56, 236 N.E.2d 545, this court stated:

"It is a general rule that an appellate court will not consider any error which counsel for a party complaining of the trial court's judgment could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. * * * "

Thus, in proposition of law No. 1, the appellant contends in part that the trial court committed reversible error in denying his motion to strike the testimonies of Doctor Maxwell Burnham and Doctor Charles Hirsch, on the basis that neither doctor was shown to be duly qualified and licensed to practice medicine in the state of Ohio, nor was it established that their testimonies were based upon medical or scientific certainty. However, the record shows that appellant did not raise an objection until after the conclusion of the state's presentation of 30 additional witnesses.

Appellant contends in his proposition of law No. 4, that the trial judge committed prejudicial error in denying his motion to strike the testimonies of Deputies Sam Avallone and Timothy A. Mathis, who did not specifically identify the appellant during their testimonies. However, it was not until the close of the state's presentation of evidence that the defense filed a motion to strike.

In proposition of law No. 6, the appellant avers that he was denied a fair trial in that the prosecution in its opening statement deliberately inflamed the jury by making reference to facts which were never proven. The court again notes that at no time...