PEOPLE v. COWAN

Filed 8/5/10

IN THE SUPREME
COURT OF CALIFORNIA







THE PEOPLE, )

)

Plaintiff
and Respondent, )

) S055415

v. )

)

ROBERT WESLEY COWAN, )

) Kern
County

Defendant
and Appellant. ) Super.
Ct. No. 059675A

__________________________________ )



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 one-year 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.

I. Factual Background

A. Introduction

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]

B. Guilt
Phase

1. The
prosecution's case

a. The killing of Clifford and Alma
Merck

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 â€