Barry Graham
Unless the U.S. Supreme Court issues a stay of execution (unlikely, I think, though his lawyers have presented a strong case), Daniel Wayne Cook will be killed in Florence, AZ, on Wednesday.
Michael Kiefer has a meticulously-reported article about the case in the Arizona Republic. Reading it, I was struck by the similarities between what was done to Cook as a child and what he did to his victims.
I obtained some notes made by Cook himself, evidence from various trials and transcripts that highlight some of the miscarriages of justice in his case. This document has never been published before. Here is what he wrote, unedited:
In the early morning hours of July 21, 1987 John Matzke and Byron Watkins walked into the Lake Havasu City Police Department where Matzke confessed to killing two people.
During this confession, Matzke told a horrific story of torture, sodomy, robbery and murder. Matzke was drunk when he made that confession to Detective Eaton, that morning.
At Matzke’s pre sentence hearing, Matzke testified that he was “pretty well drunk” when he made his confession to Detective Eaton on videotape.
Pre Sentence Hearing, December 11 1987 pg 48 @ 06:
“When I did that videotape I was pretty well drunk and hungover, coming down, you know, so I don’t know”
Matzke also stated at the conclusion of his video taped confession that he was just starting to sober up.
Matzke knew that after he confessed to these murders that there was no way that he could go to trial and not be convicted of first degree murder, and avoid the death penalty. Matzke took the plea bargain that Eric Larsen offered him. A plea bargain that saved John Matzke that saved John Matzke’s life.
In the plea agreement that Matzke and Eric Larsen, and the Court entered into, it was required that Matzke not provide any testimony at Cook’s trial that would be inconsistent with any prior statements that he made. Matzke believed this to include the drunken statements he made during his video taped confession to Detective Eaton. Matzke also believed that his plea agreement required him to not change his testimony in any other hearings that he was called to testify at.
Post Conviction Hearing : Pg 125 @ 15 thru. 24:
Testimony of John Matzke “was it your understanding of that provision in your plea agreement that any statements made at trial had to be consistent with the first video tape statement made to the police?”. “It was my understanding when I was testifying, it was my mind that maybe few inconsistencies but as far as I went, it went by consistencies of video tape”.
Post Conviction Hearing: Pg 126 @ 02 thr 05:
Testimony of John Matzke: “If I understand what you are saying right now, you testified with the intent in mind of being consistent with the video tape statement made to the police; is that correct?”. “Basically, yes”.
It was also stated in the conditions of his plea agreement the he could not knowingly make any false or misleading statements and that if it were determined that Matzke had been untruthful in his statements, or his testimony per the conditio0ns of his plea agreement with the State, the prosecution would have the right to be withdrawn from the plea agreement with Matzke.
As stated earlier, Matzke was given a plea agreement in exchange for his testimony against Cook. Matzke received the privilege to spare his own life by pleading guilty to one count of second degree murder and having to serve twenty years in prison.
Judge Conn also presided over the State’s case, and ultimately, the plea agreement involving John Matzke. Judge Conn had the authority to accept or deny the plea agreement that the State offered Matzke.
Judge Conn allowed Matzke and Larsen to enter into their plea agreement. Securing Matzke’s testimony against Cook, at Cook’s trial.
Conn’s decision to allow the plea agreement between Matzke and Larsen to take place was based upon how valuable Matzke’s testimony was, in order for the State to convict Cook.
At Matzke’s Pre-Sentence hearing in December of 1987, Judge Conn stated the following reason, as the Court’s reason for accepting the plea agreement:
Pre-Sentence Hearing pg 67 @ 12:
“I think that the State has to weigh the options and decide whether it is better to go after Mr Matzke and get an obviously guaranteed conviction if him and in all likelihood succeed in having the death penalty imposed, at least in Mohave County, but perhaps possibly, it would get overruled later in the system….getting all this with Mr Matzke and perhaps having Mr Cook walk because they don’t have a case against him, as opposed to giving Mr Matzke a sentence on the face of it is entirely inappropriate based upon his behaviour, but knowing that at least this way they are pretty much guaranteed they will have a solid case against Mr Cook”.
Conn’s own statement at Matzke’s hearing supports Cook’s claim that the State would have no case against him were it not for Matzke’s willingness to provide testimony against Cook. Testimony that turns out not only perjury, but in direct violation of the plea agreement that he and the State were allowed to enter into with Judge Conn’s blessing.
Matzke was anything but truthful at Cook’s trial. Below are many examples of Matzke’s lies. While testifying under oath, at Cook’s trial, Cook’s Post Conviction Relief hearing, and his own Pre Sentencing hearing.
1. Matzke testified that he had spent the entire night of the murder inside the apartment.
Jury Trial, Vol 2 pg 20 @ 19
Q: “Did you spend the entire night in the apartment?”
A: “Yes, I did”.
2. Matzke then testified that he left the apartment, and went to the store.
Q: “Where were you?”
A: “I went to the store once, and downstairs for a little bit”.
- Matzke then went on to testify that he and Cool left the apartment and sat around the pool talking.
Q: “After she left what did you and the defendant do?”
A: “We just sat around and talked; we went outside by pool and talked a little
bit.
4. At Cook’s Post Conviction hearing Matzke testified that after Carlos was killed,
he and Cook went to a bar for drinks.
Post Conviction Hearing pg 132 @ 21.
Q: “After Carlos died, you and Dan went to a bar and drank six beers a piece?”
A: “Yeah”.
5. Matzke also testified that after Carlos was killed, he and Cook went outside as
Della Hiser showed up.
Jury Trial Vol 2 pg 38 @ 11
A: “We went outside and Della came over and we were talking. Della said she
wanted to come in and wait for her boyfriend Dean to get off work”.
6. Matzke testified that Carlos was killed around midnight, twelve fifteen even.
Jury Trial Vol 2 pg 39 @ 15
A: “I think it was about 12.15 am – 15 after 12 in the morning when he died,
7. Della Hiser was called as a prosecution witness, and testified that she was at the
apartment on the night of the murders. She further testified that she arrived at the
apartment at 9.30 pm.
Jury Trial Vol 6 Pg’s 26, 27 @ 20 thru. 01
Q: “During the month of July on the 20th – 19th and 20th – did you have an
opportunity to be at apartment 204 at 89 North Acoma”.
A: “Yes, Sir”.
Q: “Who lived in apartment 204?”
A: “Dan Cook and John Matzke”.
Q: “What time did you get there on the 19th?”
A: “It was around 9.30”
Q: “In the morning or evening?”
A: “In the evening”.
8. Matzke testified that Della Hiser went into the apartment on the night of the
murders.
Jury Trial Col 2, pg 38 @ 23
Q: “Was she allowed in the apartment at that time?”
A: “Yes, she was”.
9. Della Hiser testified that she did not go into the apartment on the night of the
murders.
Jury Trial Vol 6 Pg 29 @ 06
Q: “Did you go inside the apartment?”
A: “No, not at all”
10. Matzke testified that while he stayed outside with Della, Cook went into the
apartment and moved Carlos’s body upstairs and placed him on Matzke’s bed.
Jury Trial Vol 2 pg 38 @ 17
A: “Dan went in and took him upstairs and threw him on my bed”.
11. Detective Eason testified at Cook’s trial that Matzke had told him that after
Carlos had died, he put Carlos on his bed.
Jury Trial Vol 4 pg 67 @ 18
A: “Mr Matzke told me that after Carlos had died, he put Carlos on his bed”.
12. Matzke testified that after he left work on the 19th and returned to the apartment
Carlos and Cook were already there.
Jury Trial Vol 2 Pg 20 @ 21
Q: “When you returned to the apartment who was there?”
A: “Carlos and Dan”.
13. Officer Reynolds testified at Cook’s trial that Detective Eason had told him that
Matzke lured Carlos into the apartment with beer and a magazine before killing
him.
Jury Trial Vol 5 pg 46 @ 02.
Q: “Sir, in your report you stated that Mr Matzke indicated to Detective Eason he
used Hamm’s beer and a magazine to entice Carlos Ramos into the
apartment before hilling him, is this correct?”
A: “That’s correct”.
14. Matzke testified that Cook had strangled Kevin with a bed sheet until he died.
Jury Trial Vol 2 pg 43 @ 13
Q: “When the defendant said “this one’s mine”, what happened from there?”
A: “He just put Kevin on the floor and strangled him”.
15. Officer Reynolds testified that Sergeant Hamlin had told him that Matzke had
confessed to killing Kevin with a pipe.
Jury Trial Vol 5 pg 45 @ 14
Q: “Did Mister – I’m sorry – Sergeant Hamlin ever state to you John Matzke had
said he killed Kevin Swaney with a pipe?”
A: “Yes, that was one of the comments”.
16. Matzke testified at his pre-sentencing hearing that he last saw Cook using drugs
at 4.00 pm on Saturday the 18th of July. He further testified that he had smoked
marijuana at the same time. 4.00 pm 18 July.
Pre Sentencing Hearing pg 43 @ 24
Q: “Last time you saw Mr Cook do any drugs was Saturday at four with you?”
A: “Yeah”.
Pre Sentencing Hearing Pg 43 @ 12
Q: “When was the last time you did the pot?”
A: “Saturday four o’clock”.
Q: “Four in the afternoon?”
A: “Yeah, smoked four joints”.
17. Matzke testified seven years later at Cook’s Post Conviction Hearing that on the
day and evening of the murders Cook and Matzke each drank the beers, and
shared approximately seven marijuana cigarettes.
Post Conviction Hearing Pg 130 @ 17
Q: “You bought a case of beer?”
A: “Yes”.
Q: “All of you drank. Those two other people only drank four beers from the
case?”
A: “That’s – this is true”
Q: “You and Dan drank most of that case of beer?”
A: “Yes”.
18. Matzke testified that Cook struck Carlos on top of his head with a stick, cracking
his head open and causing him to bleed.
Jury Trial Vol 2 Pg 31 @ 01
Q: “What did he use the stick for?”
A: “He poked Carlos a couple of times with the pointy end of it and hit him on
top of the head with it”.
Q: “Did that cause any injuries?”
A: “Yeah, cracked his head”.
Q: “By cracked his head, what do you mean?”
A: “Put a crack in his head, his head started to bleed”.
19. Dr Snell testified at the trial that he was the medical examiner who performed the
autopsies on Kevin, and Carlos. He went on to testify that there were only three I
injuries to Carlos’s head; all of which were facial and none were located on top of
Carlos’s head like Matzke had claimed.
Jury Trial Vol 3, Pg 13 @ 09
Q: “And did you have the occasion to perform an autopsy on Kevin Swaney and
Fraylan Cruz-Ramos”.
A: “I did”.
20. Dr Snell concluded his testimony by saying that he did not find any open wounds
on Carlos’s scalp or head caused by a blow to the head that Matzke indicated.
Jury Trial Col 3 pg 34 @ 05
Q: “Dr Snell, upon examining Mr Ramos, did you detect any injuries to the top
of the head, such as contusion, cuts, abrasions, lumps or swelling.
A: “Head injuries primarily on the right side of his head. Page six talks about
hemorrage of the right temporalis muscle. That’s the muscle lying here on
the side of the head that can be used to move your ear. It’s basically the
muscle that’s still there and other areas of the head but not precisely the top,
no.
Jury Trial Vol 3 pg 34 @ 14
Q: “Dr Snell, during your examination did you notice any open wounds that were
caused by a blow to the head with a blunt instrument”.
A: “Such as lacerations?”
Q: “Yes, sir”
A: “No”
21. Matzke testified at Cook’s Post Conviction Hearing that when he returned to the
apartment after work, he and Cook and two other people sat around drinking beer.
Post Conviction Hearing Pg 130 @ 17
Q: “You bought a case of beer”.
A: “Yes”.
Q: “All of you drank. Those two other people only drank four beers from that
case?”
A: “That’s—this is true”.
Q: “You and Dan drank most of that case of beer?”
A: “yes.
Detective Eaton was the designated investigator for the prosecution at Cook’s trial and was present when Matzke testified against Cook. Eaton was also the detective that Matzke gave the video taped confession to. Eaton would have noticed any of the lies in Matzke’s testimony.
Eaton was also present in an official capacity at Cook’s post Conviction Relief Hearing and would have noticed that Matzke had changed his testimony since he last testified at Cook’s trial.
Eric Larsen was the Prosecutor at Cook’s trial, and would have noticed that Matzke’s testimony at Cook’s trial was different then his confession. It was, after all the content of Matzke’s drunken confession, that Larsen used to get Judge Conn to grant the plea agreement, and secure Matzke’s testimony against cook. A please agreement that forced Matzke into telling a specific version of events to convict Cook, or lose his life saving plea agreement, and Larsen losing his case against Cook.
The only reason that Judge Conn granted the State’s plea agreement with Matzke was to guarantee a conviction for the prosecution against Cook, which would not have been possible without Matzke’s testimony.
In spite of the fact that both Larsen and Eaton were present when Matzke testified against Cook, giving his perjured testimony to the jury, neither of them said a word. Instead each chose to stay silent, and allowed Matzke to continue on with his criminal conduct in the Court room.
Had either Larsen or Eaton brought Matzke’s conduct to the attention of the Judge, they would have lost Matzke as a witness and would no longer have their case against Cook.
Matzke testified at Cook’s Post Conviction hearing that the testimony he gave at Cook’s trial was truthful.
Post Conviction Hearing, Pg 133 @ 23
Q: “Did you testify truthfully at that trial?”
A: “To the best of my knowledge and memory, when I testified, it was the truth”.
Matzke had no choice but to say that he was truthful at Cook’s trial, to say otherwise would have cost him his favourable plea agreement, and ultimately in the end, his own life.
Detective Eaton testified at Cook’s trial, that on the morning of July 21, Cook confessed to him that he was involved in the murders that took place in Cook’s and Matzke’s shared apartment.
Jury Trial, Vol 4 pg 81 @ 20
A: “He replied ‘We got to partying, things got out of hand, now two people are
dead”.
Jury Trial Vol 4 pg 82 @ 06
A: “He replied ‘Well, my roommate killed one, and I killed the other’”
Eaton also testified that on the morning of July 21 during his interrogation of Cook, he took notes during his conversation with Cook. When asked by Cook, at Cook’s trial if the notes were available, Eaton said that he had thrown them away.
Jury Trial Vol 4 pg 108 @ 02
Q: “Did you take any notes during the conversation you and I had on that morning,
sir?”
A: “Yes, I did”
Q: “Sir, can you tell the Court what happened to those notes?”
A: “They were incorporated into this report and disposed of”.
Q: “And how were they disposed of?”
A: “Probably threw them in the trash”.
There is not a single piece of evidence that exists to corroborate Eaton’s claim that Cook confessed, especially given the fact that an investigative report was prepared and placed into the State’s case file for every person that the police had contact with during their investigation, with the exception of one person, Cook. There is no record anywhere of Cook’s alleged confession, with the exception of Eaton’s claim. It is interesting to note, that during a recess in the trial proceedings \cook was allowed to question Eaton, with Prosecutor Larsen present. Cook asked Eaton if he had ever had prior involvement with either of the victims – he stated that he had, but declined to give any further information to Cook on this subject.
Aside from Matzke’s and Eaton’s questionable testimony against Cook, the State’s remaining case against Cook comes from their list of expert witnesses, who’s findings provided no evidence to support the State’s case against Cook, that Cook was involved in the murders of Carlos and Kevin.
Benita Harwood was the forensic serologist with the Department of Public Safety, who conducted the scientific examination on evidence collection from Cook’s and Matzke’s apartment. She was also called by the prosecution to testify against Cook, at his trial.
Harwood testified that she could not match \cook with any of the blood evidence taken from the crime scene.
Matzke testified at Cook’s trial that Cook had told him that he sodomized Kevin, and that they had to kill him.
Jury Trial Vol 2 pg 42 @ 12
Q: “When Dan woke you up, what did you see?”
A: “Kevin was sitting on the couch, his hands were still tied. He was gagged. He
was crying and Dan made the comment ‘I screwed him in the ass; now we got to
kill him’ “
Harwood tested trace evidence recovered from Kevin through the means of a Sexual Assault Kit, specifically an anal swab.
Based upon Cook having “AB-” blood type, Harwood testified that despite Cook’s rare blood type, and PGM, she could not provide any evidence to establish that Cook was the donor of the evidence recovered from Kevin.
Jury Trial Vol 4 pg 49 @ 3
Q: “You just stated, Mrs Harwood, that the PGM type found on the anal swab was
Two plus two negative, is that correct?”
A: “Two minus, yes”.
Q: “Two minus. Can an AB type one minus be the donor of that?”
A: “No”.
Q: “So there is no evidence to indicate that I was the donor of that anal swab
A: “That is correct”
Richard Erfert was the latent print expert with the Department of Public Safety, who processed the latent finger prints collected from Cook and Matzke’s apartment. He was also called as a witness by the prosecution at Cook’s trial.
Erfert was unable to provide any evidence as to when Cook’s finger prints were transferred to the chair found in Cook’s bedroom, or on the stapler taken into evidence.
Jury Trial Vol 4 pg 38 @ 09
Q: “During your examinations and lifting of prints off the evidence, were you able to
determine if the print on the items were there prior to the murder, or after the
murder?”
A: “I have no way of telling on any of these prints that were here when they were put
down. I have no way of telling what time this occurred”.
Jury Trial Vol 4 pg 31 @ 21
Q: “Sir, keeping in mind I lived at 89 North Acoma, would it be normal to find my
prints pretty much everywhere in that complex?”
A: “It is possible, yes”.
John C Williams was an attorney appointed by the Court to represent Cook at Cook’s Post Conviction Relief Hearing. Prior to Williams successfully getting himself removed as legal Counsel for Cook, Williams interviewed Cook’s co-defendant, John Matzke, at the prison in March of 1994. During the interview Matzke’s court appointed legal counsel was present, Ken Everett. Mr Williams gave an affidavit to \cook’s new legal Counsel in September of 1994. Under oath, Mr Williams stated that Matzke agreed with Mr Williams that Matzke was put in the position to live at Cook’s trial, or fry.
Affidavit of John C Williams, September 01, 1994
“Matzke agreed with my characterization of his situation – that his choices were to “lie or fry” “.
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