SUPREME COURT OF THE STATE OF CALIFORNIA

Transcription

1 ~.}~>";.' -'l~-~'-... COPY SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA Plaitiff-Respodet va.-- KEVIN COOPER Defedat-Appellat CR Spreme Cort No. C-#1tt ;; VSS" -' APPEAL FROM THE SUPERIOR COURT OF SAN DIEGO COUNTY HONORABLE RICHARD C. GARNER JUDGE PRESIDING REPORTERS' TRANSCRIPT ON APPEAL.~ APPEARANCES For Plaitiff-Respodet For Defedat-Appellat HON. JOHN K. VAN DE KAMP State Attorey Geeral Departmet of Jstice 110 West -A- Street Site 700 Sa Diego Califoria 101 IN PROPRIA PERSONA '-' " I i - LI - 0 VOLUME ~ volmes. Pages 4 to 5 icl. JILL D. MC KIMMEY C.S.R. C-l4 ad BRIAN V. RATEKIN C.S.R. C-7lS Official Reporters ~ '. ---'

2 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COL;NTY OF SAN BERN.'RDINO THE PEOPLE OF THE STATE OF CALIFORNIA Plaitiff vs. KEVIN COOPER Defedat _ ~ NO. OCR-1 VOLUME 11 Pgs. 4 thr 5 icl REPORTER'S DAILY TRANSCRIPT BEFORE HONORABLE RICHARD C. GARNER JUDGE DEPARTMf~T DEPART;'lf~T - ONTARIO CALIFORNIA Moday April APPEARANCES For the People For the Defedat Reported by DENNIS KOTT!>tEIER District Attorey DENNIS KOTT!-tEIER District Attorey By JOHN P. KOCHIS Depty District Attorey DAVID l-tckenna Pblic Defeder By DAVID NEGUS Depty Pblic Defeder JILL D. McKUtz.tEY Official Reporter C. S. R. No. ~...-

3 ---' ~.. ~.~._... ~.. """... Jo ~_ v. _. I 4 1 ONTARIO CALIFORNIA; MONDAY APRIL ; 1001 A.M. DEPARTMENT NO. HON. RICHARD C. GARNER JUDGE APPEARANCES 4 The Defedat with his Cosel DAVID 5 NEGUS Depty Pblic Defeder of Sa 6 Berardio Coty; DENNIS KOTTMEIER 7 District Attorey of Sa Berardio Coty ad JOHN P. KOCHIS Depty District Attorey of Sa Berardio 10 Coty represetig the People of the 11 State of Califoria. 1 (Jill D. McKimmey. C.S.R. Official Reporter C- 1 THE COURT ~ood morig everybody. I the matter of People verss Kevi Cooper Mr. Cooper's preset all cosel. Getleme we previosly set today aside as a day 1 whe the Cort wold rle po the defedat's motio der 1 Peal Code Sectio 5. Poits ad athorities were 0 sbmitted by both of yo. Defedat moves o varios 1 grods exhastively cited ad aotated ad arged ad the district attorey similarly respods. I have read.ad received ad stdied all the varios 4 poits. 5 \iold yo care to be heard orally? 6 MR. NEGUS I have othig really to add to what r U

4 _._ ~_ J... ~'. _ -. -_ _ _-1 44 '. 1 I pt i my poits ad athorities Yor Hoor. THE COURT Mr. Kottmeier t-ir. Kochis? MR. KOCHIS Yor 1I0or I wold be relyig o my.. 4 writte respose. 5 MR. NEGUS If yo have ay qestios I will be 6 glad to respod. 7 THE COURT \olell o. I feel perfectly competet to rle o it. It jst seems too brief cosiderig the may may hors that yo'd both spet o it ad I spet 10 the better part of last week o it myself ad I have 11 goe throgh ad have page after page of otes ad I 1 read all the cited cases ahd it jst seems too brief 1 for me to simply rple. As yo kow it's geerally my practice whe I make a rlig to let cosel ad the parties kow why I rle i a certai way. I cold take p yor may poits oe at a time l-tr. Negs ad do that ad I have drafted 1 1 all of my varios aswers bt I thik it wold be probably ot prodctive ad might be of some harm from a publicity 0 poit of view if I did so. I see the media is preset 1 this morig. Rather tha for me to go throgh ad take p each ad everyoe I will simply declie to do that ad I will simply dey yor motio der Peal Code Sectio 4 5 i all ad everyoe of its respects icldig the 5 special allegatios. 6 There may be I thik yo will derstad some

5 .~''''--''.''''~-~' ! "..;... 1 merit ideed i some of the isses which may coceivably be raised at trial bt the remedy is ot to dismiss. All right. At this staqe ayhow with respect to 4 frther isses -- ad this may be why the media is here 5 we have previosly discssed from time to time the matter 6 of vee chage ad I do't thik yo were prepared to 7 go ito that at this particlar time; is that correct? MR. NEGUS I have drafted a statemet as to my positio o that isse. As I've idicated to the Cort 10 before or office has had to hire otside typists to type 11 thigs. I am led to believe that they will have it to me 1 o later tha say 00 o'clock this afteroo. As soo 1 as I get it yo ad Mr. Kochis will get it. I have five additioal exhibits which I have sbmitted to the clerk i respect to that particlar motio. They cosist of -- of two televisio tapes ad three sets of scripts from televisio chaels ad I 1 will have additioal iformatio tomorrow that Mr. Forbsh 1 is i the process of gatherig. 0 THE COURT lihy do't \"e set it p the for 1 tomorrow say at 1000 o'clock to take p that iss~e. MR. NEGUS Fie. THE COURT Mr. Kochis have yo -- I ote that 4 some of the exhibits he's talkig abot are videotapes. 5 Have yo had a chace to review them? 6 MR. KOCHIS No I have't Yor Hoor. I have a I-ff J'ff U... U

6 /--~ 46 1 writte statemet likewise that I will file with the Cort hopeflly by 10 this afteroo if ot this morig. 4 It was my it.~tio also to sbmi t to the Cort 5 some videotapes; however there's bee a problem i procrig those tapes ad they will ot be available - 7 tomorrow. It is my derstadig that I m~ ot have those tapes til early ext week. I am prepared to proceed at least o the evidetiary portio as to what 10 we have with s ad the to proceed right ito the 11 serology isses o Ncdesday ad Thrsday. la THE COURT lvell yo may be too late o that. 1 1 I do't wish to delay this isse til ext week. I sppose whe we get ito argmet o it. that I ca cosider offers of proof at that poit ad we \vill determie whether or ot it's goig to merit ay frther delay o it ad we will do that the tojllorrm.r. As far as lookig at what we have today wold yo care to coceivably joi me arod a moitor to where I ca see the evidece as well as perhaps yo. r-lr. Kochis? MR. KOCHIS Yes I wold. THE COURT Mr. Negs as well? MR. NEGUS Fie. THE COURT Ca we set that p Detective Arthr -- DETECTIVE ARTHUR Yes sir. THE COURT -- at the Sheriff's Departmet over

7 47 C" 1 there? DETECTIVE ARTHUR Yes. THE COURT Are yo aware -- has the clerk marked.. the ew exhibi ts yet? 5 THE CLERK I al!l doig it right ow Yor Hoor. 6 THE COURT Have yo take a look at what he has 7 Mr. Kochis Mr. Kottmeier? Ay objectio to ay of it?!-lr. KOCHIS I have o objectio to the items o. 10 THE COURT All right. They will all be received 11 i evidece ad I will look at the scripts ad whatever 1 I ca gai from it before we look at the moitor. L 1 Do yo km" how log they are to r Mr. Negs??tR. ~FGUS I have't l'boked at them myself yet either. THE COURT Oh well sppose arod 0 or 0 mites. Cold yo set it p by the? 1 DETECTIVE ARTHUR I believe so. 1 THE COURT The shall we adjor at this time the 0 pedig iformal looks at the exhibits ad the tomorrow 1 we will resme i ope cort at 1000 o'clock. Is that satisfactory? MR. NEGUS Fie. 4 THE COURT I'd like permissio from Mr. Cooper 5 for s to meet ad go over the exhibits privately withot 6 him if that's all right. -

8 4 1 THE DEFENDANT Yes. " r THE COURT That's okay? All right. That's the way we did it oce before so we will do that. All right. 4 Whe yo get all set p the if yo wold otify s 5 Detective Detectivc Arthr ad we will go ovcr OVer to the sbstatio 6 for that. 7 lye will be i adjormet. Uvherepo the followig proceedigs were had i chambers 10 THE COURT All right. For the record we are i 11 chambers at reqest of some cosel. 1 ~lr. Cooper's likewise preset. 1 MR. NEGUS My reqest. THE.COURT Okay. f.ir. f.1r. NEGUS I jst -- o the chage of vee motio I jst \-lated to make two reqests. \vell I thik I've already made my reqest to have the hearig o it closed 1 ad yo deied that bt as a refiemet of that I wold 1 reqest that the movig papers that Mr. Kochis ad I are 0 filig remai sealed pedig the termiatio of the trial 1 ad that -- THE COURT Trial jrisdictio? Yo mea til after trial? 4 lolr. loir. NEGUS Right til -- or a t least til 5 after a jry is selected ad yo ca do somethig to 6 cotrol their gettig access to the pblicity. I did't -i" U " U ~ ~ ' ~- <."".~ ~"".-..

9 4 r -. 1 "'"-"'">.. feel that I cold address the isse withot makig some commets abot the varios coties that are o this list 4 ad I'd jst as soo ot have that ifor~atio press if -- i the 5 THE COURT If I seal oe for appearaces I wold have to probably seal the other. MR. NEGUS Right. I'm agreeig that MR. KOCHIS I joi i the reqest. THE COURT Well that's fie. The I am assmig to spell it ot a little bit more -- it may have bee 11 eciated more flly before -- that wh~ w~ are comparig 1 coty agaist coty ad the appropriateess of oe /~ ~ coty over aother some of the remarks may be less tha flatterig ad sice the press may pick that p this cold have -- cold affect the sesitivities of people i whatever jrisdictio it is assiged to. All right. Sice both cosel reqest it I do't see ay problem i that regard. I will order those -- the two papers that are yet to be filed today oly to be sealed '.' "' pedig frther order of cort. I ca't tell yo Cosel if -- yo kow like i The Press Eterprise case where they reqested the disclosre of a trascript if by chace the media picks this p ad aets represetatio ad wishes to be heard I wold grat them the right to be heard ad the order that I make ow may ot be sealed i cocrete. I do't kow. I jst ca't -- it has to be withot 5.eo';.'. "--;--."

10 ._" prejdice. sice everybody is ot coceivably represeted. j MR. NEGllS Whatever. lie cold be heard o it later 4 THE COURT Sre. 5 MR. NEGUS -- if ecessary. bt it seems like 6 THE COURT Hopeflly. that will be the ed of it. 7 MR. NEGUS It seems like that The Press Eterprise case does't say that everythig that happes i a case has to be doe i fll pblic THE COURT I jst ca't aticipate. 11 l-ir. NEGUS The other thig is that i respect to 1 the chage of vee motio. there is some discovery that is ot geerally kow abot a facet of the case which '~ " occrred i oe of the coties that yo are cosiderig goig to. I wold like to have that cosidered as part of ' my argmet. If the discovery \~hich ivolves allegatios that l'otr. Cooper committed a crime i that coty were to.. be made pblic that cold coceivably agai get s ito pblicity problems; therefore. I wold like to reqest to sbmit to yo for cosideratio the -- I believe it's two pages of police reports o that particlar isse" have yo read it. bt also have that remai sealed... - THE COURT Whe will yo be able to preset that? MR. NEGUS 5 this afteroo. 6 MR. KOCHIS I ca go copy it ad give it to yo I may the be providig some reports t -. ~

11 '...~. 51 r o that isse as \ell becase I thik if it's the coty ad the icidet Mr. Negs is referrig to we'.ve doe some follow p o that particlar isse. Mr. Negs has those reports ad I'm ot sre it's goig to be a isse i this trial ad I'd wat the Cort to be aware of that 6 7 as well. THE COURT Cosel I do't kow what yo're ~" '. 1 J "'- ' talkig abot so I thik I am goig to have to maybe give yo time to arge this poit sometime tomorrow ad I will be happy to do that. Let me take a look at it. The I ca more flly appreciate what yo are talkig abot. Right ow I do't kow. MR. NEGUS Okay. THE COURT tvold that be all rigllt? Sbmit it to me ad wold the clerk mark it separately the. Have her mark it separately as -- or MR. NEGUS I'm ot sre I wat to sbmit it if it's ot goig to be sealed. f.1r. KOTTMEIER I thik potetially it is a isse that cold be discssed orally withot eve if the ecessity of the police reports. Both sides kow abot it. THE COURT My chambers are ot p~blic ad what goes o i here is private. MR. NEGUS Basically what I wat to cosider is reports that -- of -- the reports idicate that a Sa Diego Sheriff's officer told I believe somebody i or Sheriff's - ".r.. ~

12 -~-"""""-. ". " ~.' " -' ~""... ~ -... <' "...~.;-.~~~... - ~".."'.;.. "" '... ~... "'.--. _-> 5 1 Office that a ma amed Lopez came to him lookig for reports of a robbery committed by Mr. Cooper allegedly o Je the 5th or Je the 6th or... Te the 7th or Je 4 the th somewhere i that period of time 1 jst 5 after the crime i Sa Ysidro. The -- Mr. Lopez claimed 6 that he had talked to t-tr. Cooper ad that Mr. Cooper had 7 admitted this particlar crime to him. The Sa Diego Sheriff's Office the ivestigated the crime ad as described by t-tr. Lopez ad cold't fid ay crime that ;"JJi'j....;Iio 10 matched ad they eve set the Sheriff's Office p to 11 Gilroy or LaS -- some~la~~ -- Gilroy or Sa Ja Batista 1 somewhere p there lookig for oe particlar robbery -~-""""" victim. The robbery victim that they looked for did't match the descriptio that was give to them by Mr. Lopez. I thik -- I ~ill warrat to yo that I thik that that evidece of a robbery i Sa Diego Coty ivolvig Mr. Cooper as the sspect may ad probably will come ot drig the corse of the testimoy; therefore THE COURT Testimoy where? " MR. NEGUS I the trial i frot of the jry; therefore I thik that is evidece that shold be cosidered i weighig the varios coties. THE COURT I what way wold it affect MR. KOCHIS Well Yor Hoor first off I believe it was a prse satch ad it was ot a armed robbery 6 where a weapo of ay type was sed so it was a prse

13 5 L 1 satch somethig alog the lie of a 4 ad I believe the alleged victim has bee iterviewed show a photo 1 iep ad was ot able to pick Nr. Cooper ot or 4 someoe who was a potetial victim (sic. 5 f.tr. NEGUS The victim that was show a liep 6 to was ot the victim of the robbery that -- or prse 7 satch THE COURT Assme for a secod that it was goig to come ot which it appears likely that it will. 10 f.tr. NEGUS I thik it will. 11 THE COURT Pardo? 1 f.tr. NEGUS I thik it will. 1 THE COURT \..rell I accept that ad yo mst have other grods for believig it will other tha what I'm told so far. MR. NEGUS I am jst tellig yo what the police reports -- I am also tellig yo I thik it will come i. 1 THE COURT If it did this is somethig yo wold 1 ot wat to arge tomorrow morig. I what way wold 0 that affect the jrors dow there or the abl.lity to get a 1 fair trial i that coty? MR. NEGUS Becase I believe that that wold make them that particlar coty a -- have a more persoal 4 iterest i Mr. cooper's prosectio tha a coty where 5 that had't occrred. 6 THE COURT ~very case that's prosected i Sa 4 ~'

14 ~~... ~..."... -~ ~~--.~ 54 (~~' 1 Berardio Coty that occrs withi these jrisdictioal borders ad ths all the citizes of this coty hav~ to that e~tet a more persoal iterest i it tha somebody 4 otside the coty. That seems qite remote to me ~ 1 lotr. NEGUS That's why we got a chage of vee ot of this coty is becase of people's persoal iterest i this particlar case i this particlar coty. other evidece that I'm itrodcig. There's That's ot all the evidece bt I jst wat that to be part of the record as to why I do't thik that Sa Diego is a appropriate coty. Rememberig -- well yo're goig to get case a thori ty. The l-1cgmv case -- I thik yo've a lready read it -- idicates that i decidig which coty is most 1 ' appropriate yo do't have to prove as mch as yo do to get a chage of vee to begi with. THE COURT Top of the sheet McGow. I've got that. Okay. Fie. The did yo wat to respod to that? Otherwise I will certaily feed it ito the compter at the appropriate time. MR. KOCHIS I wold Yor Hoor. I do't believe Sa Diego has filed ay charges agaist Mr. Negs. his delivery I sspect -- from Mr. Negs' delivery I From sspect that if this type of evidece was itrodced at trial it wold be itrodced by Mr. Negs becase he may have kowledge of witesses we do ot have kowledge of ~ -~- ""'N.. ".._. ""'~~-"~ _._".....

15 55.'. -...~. -...~ 1 ad I do't thik it's THE COURT At least at the momet yo do't ited to prodce sch evidece? 4 MR. KOCIIIS At the momet I do ot. 5 MR. NEGUS I did't say that they did bt I -- 6 THE COllRT I kow. All right. 7 MR. KOCHIS Ad o the motio itself I wold ot wat to be preclded from itrodcig coverage from Norther Califoria to shm" that the cases received exposre 10 there. I am hampered o a offer of proof i that i a 11 offer of proof the oly thig I ca represet to the ~~" Cort is that I was i Norther Califoria i Sa Fracisco o certai days i Je. I saw myself certai televisio coverage bt I do ot kmv what the coverage has be'! like sice the. They apparetly are ot goig to have that iformatio" til sometime ext week ad I wold hate for the Cort to make a decisio o a oe-sided presetatio of the evidece sayi~well we have TV coverage i Sother Califoria bt it appears there is oe i Norther Califoria ad preclde me from makig the appropriate argmets. MR. NEGUS I old stiplate that there has bee -- there was some coverage of the casei Je ad the agai whe Mr. Cooper was captre~ i Ags~ i Norther Califoria. I have bee told that as well. I have also ; U ~ ~ ~ l "-- 6 bee told that there has bee o -- /~r_... "

16 56 (-'" 1.'L THE COURT Of corse I have that already. I have goe back ad last week I wet back ad dg ot the exhibits offered by Mr. Kochis bt emaatig from yor office apparetly of the Norther Califoria coties. f.1r. l-lr. NEGllS Newspapers. 6 THE COURT Newspapers right particlarly. 7 fotr. l-tr. NEGlIS Ad I believe that Mr. Kochis will ot be able to show that there was more publicity o the televisio tha there was i the ewspapers THE COURT r.tr. KOCHIS All right. Aythig else? I may be reqestig the Cort defer ~ /-~... ~ its rlig til I preset all the evidece o my behalf to the Cort o the hearig. THE COURT Yo ca always reqest ad I have o idea at the momet how I'd rle o it. Let me evalate the evidece p to that poit. O the other had I am kid of distressed. I wold have thoght this wold have bee oe of the thigs that yo wold have aticipated. l-tr. KOCHIS tvell the problem Yor Hoor was we did't get i cocrete from the Jdicial Cocil til a week ago Friday the for coties ad I was't goig to sed sbpoeas to aliso coties i the state for their ews televisio coverage of the case whe it wold ot be ecessary. As soo as we got the coties we set the reqest the sbpoeas ad it was o short otice i terms of the time for which we got it ad we set the hearig. ~

17 57 1 THE COURT As sal there's a cosiderable lag 1 betwee what I kow ad what yo two kow so I have to simply wait til we see what we've got ad we'll hear 4 yo to some extet tomorrow sice we've already told 5 everybody we will. 6 f.1r. NEGUS I am goig to be objectig to proceedig 7 with ay other part of the case till we get this resolved. That's jst so yo kow that we're r 1R. KOCHIS Ad I'm ot. What I'm sayig is if 10 I ca't preset all the evidece tomorrow I'm ot sayig 11 Jdge the whole thig has to grid to a stadstill. I'm 1 ready to go right ito the serology o lojedesday THE COURT I do't wat yo to assme that there wold be a cotiace if I do't rle tomorrow. Why wold mst there ecessarily be or why shold it be desirable to ot go ahead? MR. NEGUS Becase that's -- yo have to make that decisio before we actally start L~e trial ad the serology evidece is a i limie motio a 40 motio 'ji'"' 0 1 which is a part of the trial ad has to be heard by the trial jdge ad I am ot prepared to stiplate that the 4 S trial begis til we get a rlig. THE COURT I will see yo tomorrow. rill see yo shortly as soo as I get set p over at the Sheriff's Departmet. j 6 Thak yo.

18 5 1 Hr. Coyle ad the other depty ad Mr. Forbsh all other persos i here til we make a disclosre to the pblic ad to the media do ot talk abot the varios 4 coties ay of yo. I thik cosel ad I have all 5 kid of iformally agreed ad \"e are all sayig "No 6 commet.- We do't wish to have pblicity ot of coty 1 til the cat's ot of the bag so to speak so we appreciate yor cooperatio. Thak yo. (liherepo the matter was adjored til Tesday April "

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