The People v. Cowan
| Decision Date | 05 August 2010 |
| Docket Number | S055415,No. 059675A,059675A |
| Court | California Supreme Court |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ROBERT WESLEY COWAN, Defendant and Appellant. |
Attorneys for Appellant:
Mark Goldrosen, under appointment by the Supreme Court; Weinberg & Wilder and Nina Wilder for Defendant and Appellant.
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Julie A. Hokans, Eric L. Christoffersen, John A. Thawley and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
A Kern County jury found defendant Robert Wesley Cowan guilty of the first degree murders of Clifford and Alma Merck (Pen. Code, §§ 187, subd. (a), 189)1 and found true the special circumstance allegations of multiple murder (§ 190.2, subd. (a)(3)) and murder during the commission of robbery and burglary (§ 190.2, subd. (a)(17)(A), (G)).2 As to both murders, the jury found that a principal had been armed with a firearm (§ 12022, subd. (a)(1)), and the court found that defendant had suffered a prior serious felony conviction (§ 667, subd. (a)). The jury was unable to reach a verdict on a murder count involving a third victim, Jewell Russell, resulting in a mistrial on that count.
At the penalty phase of the trial, the jury returned verdicts of death for Alma's murder and life imprisonment without the possibility of parole for Clifford's murder. The trial court denied defendant's automatic application to modify the verdict (§ 190.4, subd. (e)) and imposed the death sentence with a oneyear arming enhancement for Alma's murder, a consecutive sentence of life imprisonment without the possibility of parole plus a one-year arming enhancement for Clifford's murder, and a five-year enhancement for the prior serious felony conviction.
This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.
Clifford and Alma Merck, an elderly Bakersfield couple, were found dead in their home on September 4, 1984, the Tuesday after Labor Day. Clifford had been shot, Alma had been strangled, and their house had been ransacked, with numerous items stolen. Jewell Francis Russell was found dead in his home in Shafter on September 7, 1984. He had been beaten and his throat had been slashed. Defendant was not arrested and charged with these murders until 1994, after a Kern County Sheriff's Department fingerprint examiner reexamined the latent fingerprints lifted from the Merck murder scene and concluded that two latent prints matched defendant's prints. In addition, new ballistics tests suggested that a gun stolen from the Mercks and linked to defendant was the weapon used to kill Clifford Merck. Evidence that defendant had possessed items of the Mercks' property and had made inculpatory statements also tied him to the Merck and Russell murders.3
In September of 1984, Clifford and Alma Merck lived on McClean Street in East Bakersfield. Clifford was 75 years old and Alma was 81; they had been married for almost 33 years. Defendant lived approximately four blocks away on Easter Street.
Clifford owned a Colt.25-caliber automatic pistol with white grips and a two-inch barrel. He also owned a metal cigarette lighter cover with a "kachina" or "rain god" design on it, and a tooled leather wallet in which he kept his driver's license. Alma owned a turquoise ring and costume jewelry, including a pearl bracelet, a necklace watch, a diamond watch, and earrings. She had at least two jewelry boxes one green, and the other a musical box with a dancing figurine on top. Clifford liked to mark his property with his initials, and he marked some of his wife's property with her initials as well. Clifford had etched his initials on the inside of the grips of his Colt.25-caliber pistol.
On August 31, 1984, the Friday before the Labor Day weekend, Alma's son Robert Johnson called the Mercks and told them that he and his wife would be visiting the following Tuesday. Margarita Macias, who lived across the street from the Mercks and sometimes drove them places because Clifford could not see well, last saw the Mercks the following day, Saturday, September 1.
Robert Johnson and his wife arrived at the Mercks' house as promised on the morning of Tuesday, September 4, 1984. Johnson first went to the back door and knocked, but nobody answered. He then went to the front door and knocked, but also got no answer. Looking through the front window, he did not see anybody, but he heard the Mercks' dog barking. Johnson returned to the back door, which was not locked, opened it, and peered into the service porch area, which served as a laundry room. Inside, he saw items of the Mercks' property lined up from the back door to the kitchen. Sensing something was wrong, he went to a window on the side of the house and tried to look inside, but so many flies were buzzing around the window that he backed away. Johnson had his wife contact the sheriffs department.
Gregory Laskowski, a criminalist with the Kern County Regional Criminalistics Laboratory, responded to the Merck home to investigate. The home had been "ransacked." Chairs were overturned, and drawers had been pulled out and their contents strewn about. Items were out of place; the television was in the service porch area. The receiver was missing from the wall phone, and the phone cords and wires were pulled loose. Lamp cords had been severed. On the shelf near the kitchen window, Laskowski found an open pocket knife.
Laskowski made his way to one of the bedrooms, where he found Clifford Merck's body lying across the bed, his head under a pillow which had a bullet hole in it. Clifford had been shot in the head twice. An orange throw pillow, which also had a bullet hole in it, was on the bed. In Laskowski's opinion, the purpose of shooting into a pillow was to muffle the sound. Clifford's ankles and wrists were bound with electrical cords, and his blood had drained onto the bedroom floor.
The same day, Quentin Nerida, a fingerprint technician with the Kern County Sheriff's Department Technical Investigations unit, went to the Merck crime scene to lift latent fingerprints. Working his way through the house, Neridaarrived at a bedroom used as a sewing room. When he opened the closet doors, Alma's body fell out. Alma had been strangled. Her hands were bound with a lamp cord, and a telephone cord with the receiver still attached was wrapped around her neck and mouth.
Dr. Armand Dollinger, a forensic pathologist in the Kern County coroner's office, examined the Mercks' bodies on September 5, 1984. Both bodies were in an advanced state of decomposition, suggesting the Mercks had been dead for several days. Clifford had died from two penetrating gunshot wounds. One bullet had entered slightly above and in front of his left ear, traveled through his head and terminated in the scalp above his right ear, perforating and lacerating his brain. Another bullet had entered the base of his neck on the left side, traveled up and toward the front, and terminated in his spinal canal, lacerating his spinal cord. His death was probably nearly instantaneous.
Alma's wrists were bound behind her back with electrical cord, and her ankles were also bound. A telephone cord was wound over her chin and then tightly around her neck. She had died from asphyxiation due to strangulation by ligature. Her death probably occurred about four to five minutes after the cord was tightened around her neck.
More than 40 latent fingerprints were lifted from the Merck home. When family members cleaned out the house, they discovered that several Social Security checks were missing.
About a month after the murders, Bakersfield police received information about alleged drug activity taking place at the Caravan Inn. On October 14, several officers raided two adjoining rooms at the Caravan Inn and arrested five people, including Danny Phinney and Robert Lutts. In a trash can in one of the rooms, police found a loaded Colt.25-caliber automatic pistol. The initials "C" and "M" or "W" were etched inside the gun's grips. From Phinney's van, thepolice seized a coin purse, jewelry, watches, a loaded.38-caliber revolver, and a large quantity of methamphetamine packaged for sale. Phinney initially denied knowing anything about the origins of the Colt.25-caliber pistol.
Laskowski compared bullets test-fired from the Colt pistol seized in the raid with the bullets recovered from the body of Clifford Merck. He concluded the gun had not fired the bullets.
In November 1984, Kern County Sheriff's Department technical investigator Jerry Roper compared the latent fingerprints recovered from the Merck crime scene with the rolled prints of several known suspects, including defendant, but found no match.4 At trial, Roper could not recall if anyone had double-checked his work. In January 1985, the latent prints lifted from the scene were compared with the rolled prints of Phinney and Lutts. Again, no match was found.5
Meanwhile, Phinney, a drug addict who suffered from bipolar disorder and had several misdemeanor drug-related convictions, was in protective custody following his arrest. Before his arrest Phinney had been using primarily "streetspeed" (methamphetamine), but he also had used LSD, mescaline, peyote, amphetamines, and barbiturates. While in jail, Phinney read a newspaper article about a "secret witness" program seeking information about the Merck murders. Someone pointed out the initials of the victims, which triggered in Phinney's mind the memory of the initials on the Colt.25-caliber pistol seized in the raid. Phinney also recognized the street name McClean Street because he had seen it before. Concerned that his connection to the gun might tie him to the murders, Phinney decided to talk to the police.
Phinney gave a statement to...
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