Carson v. Com.

Decision Date19 June 1964
Citation382 S.W.2d 85
PartiesDonald Ray CARSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
CourtUnited States State Supreme Court — District of Kentucky

Joseph R. Huddleston, Bowling Green, for appellant.

John B. Breckinridge, Atty. Gen., Geo. F. Rabe, Asst. Atty. Gen., Frankfort, Morris Lowe, Commonwealth Atty., Bowling Green, for appellee.

DAVIS, Commissioner.

Donald Ray Carson was found guilty of the willful murder of Bobby Young upon a jury trial in the Warren Circuit Court. The jury's verdict fixed his punishment at death.

On this appeal Carson presents these grounds for reversal of the conviction: (1) Permitting the prosecution to excuse for cause those prospective jurors who expressed conscientious scruples against imposition of the death penalty; (2) admission of a photograph of the appellant; (3) admission of a photograph of the victim; (4) admission of a written statement given by appellant before he was taken before a magistrate and while he was without legal counsel; (5) admission of oral statements made by appellant to the victim's father, made while appellant had no legal counsel; (6) failure of the examining court to provide an attorney for the accused; (7) placing the jury in custody of the sheriff, since the latter was a prosecution witness; and (8) erroneous instruction concerning necessity for unanimity of the verdict.

The slaying of Bobby Young occurred September 5, 1962. Two days earlier appellant and a sixteen-year-old companion, William Boyd, both negroes, entered upon a joint course of conduct, interspersed with automobile theft, housebreaking, larceny and ultimately the murder of Bobby Young. The record is silent as to the age, experience and educational background of appellant. It is apparent from the record that appellant is older than William Boyd.

Appellant and Boyd (who was jointly indicted with appellant) stole a car in Bowling Green on the night before the homicide. They drove the stolen car into the western rural section of Warren County, near the scene of the killing. In fact, the car broke down in the gate of the Young farm (a farm owned by the victim's father and managed by the victim). Appellant and Boyd temporarily abandoned the car that night and took shelter in a vacant residence in the neighborhood. On the morning of the instant crime the pair broke into a country house owned by Hon. Robert M. Coleman, presently judge of Warren Circuit Court. (Judge Coleman was not presiding at the trial of this case, however.)

Boyd and appellant stole several articles of clothing from Judge Coleman's premises and made themselves completely at home by participating of food found there. In addition to the food and clothing they took Judge Coleman's bolt action, single shot .22 caliber Mossberg rifle. Miscellaneous other articles were identified by Judge Coleman as having been taken from his house. Among articles recovered from the stolen car after appellant and Boyd abandoned it were crudely made masks.

The comrades in crime repaired and recovered the disabled stolen car from its situs near the Young farm. They remained in Judge Coleman's property until about 4:00 or 4:30 p. m., at which time they departed, doubtless emboldened by being armed with the rifle, freshly stolen clothes, adequate food and some wine. They returned to the Young farm, where they had previously observed a tractor stored in a shed. Appellant and Boyd were engaged in siphoning gasoline from the tractor when they were interrupted by the arrival of Bobby Young and Harry Watkins.

Young and Watkins were traveling in a car driven by Young when the latter observed an open gate leading into the Young farm. Young drove in the gate to investigate. A second open gate was observed; Young and Watkins passed through the second gate to a point about four feet from the shed in which the tractor was stored. The tractor was sitting in the shed, and the stolen car was on the 'other side' of it, backed up against it. Watkins related that he saw nobody about the tractor when he and Young arrived.

When appellant and Boyd observed the approach of Young and Watkins they left off their gasoline stealing project and took cover--Boyd fled 'to the left' and hid in some weeds; appellant, according to Boyd's testimony, went 'to his right' toward the barn. Other evidence indicates that appellant had hidden in a barn close by. Whether Boyd or appellant then had possession of the stolen rifle is a point sharply disputed as between Boyd and appellant. However that may be, there is abundant evidence warranting the conclusion that appellant then had the rifle-- the jury accepted that version, as it clearly had the right to do.

Young alighted from his car, as did Watkins. Young proceeded into the shed and got on the tractor, between the gas tank and seat. Watkins was standing about twenty feet from the shed. Without warning, Watkins was shot. He said the shot sounded as if it came from a rifle fired from the nearby barn. The bullet struck Watkins at a point just above his heart. Watkins then ran into the shed where Young was still on the tractor. Two more shots were heard; one of the shots wounded Young.

Watkins then came from the end of the shed and climbed a fence into a field of high weeds. He went along a trail in the weeds approximately 75 or 100 feet, whereupon he turned back toward the shed. He then observed a negro man, attired in a white shirt, brandishing a rifle above the weeds. (Later Watkins identified appellant as the man he saw with the rifle.) Watkins saw the man with the rifle climb back over the fence and go into the shed. Watkins heard two more shots. He did not see either of them fired, nor did he see Bobby Young alive again. Watkins said that it appeared to him that Young's car had been moved to a position about 75 feet from the shed when the last shot herad by him was fired.

Boyd recounted that he had gone over the fence into the same field to which Watkins fled, and that Watkins had walked past Boyd as he went toward the Barren River. The same witness also said that Young too had gotten over into the same field, and that he, Boyd, 'stood up and asked him what had happened and Bobby told me that he had been shot.' According to Boyd, Watkins called out to Young, directing him to get into the car as he, Watkins, had been shot.

Boyd said that as Young was getting in the car two more shots were fired, at which point he observed appellant standing by the driver's side of the car, demanding that Young get out of the car. Bobby Young asked appellant not to kill him, as he had already been shot; but appellant shot Young again. Then appellant fired a shot into a front tire of the Young car. Thereupon, appellant and Boyd departed the scene in the stolen car, which was later found wrecked and abandoned.

It was shown that two bullet holes were found in the back portion of the front seat of the Young car just after the incident. They ranged in a downward course. The tire on the left front wheel of the car also had been shot and was flat.

Bobby Young was found alongside the road leading from the Young farm back toward the river. He was living, but fatally wounded. Appellant's counsel elicited from a witness who found the victim that the latter had said he had been shot by two young negroes, but he had not identified either of them. Bobby Young died shortly after admission to the hospital at Bowling Green. Three bullet wounds, all reflecting a downward course of the bullets, were found in his body.

Appellant and Boyd were apprehended the next day after the shooting. At the time of their capture Boyd had the refle in his possession. Boyd undertook to explain his possession of the rifle on the theory that appellant had threatened to kill anyone who attempted to stop them. According to Boyd, he took the rifle to avert further bloodletting.

The two fugitives were taken to the Kentucky State Police barracks about one mile south of Bowling Green. There they were fingerprinted and photographed. At that time each of them signed a statement, the details and circumstances of which will be later discussed in this opinion. The chief variance in the statements of the two men lies in the fact that each claimed that the other had done the actual shooting of Bobby Young.

One of the officers who took the statements estimated that no more that one hour elapsed in the process. There was no evidence that either of the men was threatened or otherwise mistreated on the occasion. The same officer testified that he telephoned to the county judge's office just after obtaining the statements, but upon learning that the judge was not then available, lodged the two men in the county jail to await disposition of them by the judge. Although the record of proceedings before the county judge is not set forth, it is shown that appellant waived examining trial when brought before the county judge.

An indictment was returned on September 11, 1962, just six days after the shooting occurred. The circuit court appointed counsel for appellant, and upon motion of that counsel, granted a continuance of the case until the January, 1963, term of the court; the instant trial was held during the January, 1963, term.

There was no error in permitting the prosecution to excuse for cause those prospective jurors who expressed conscientious scruples against imposition of a death sentence. Counsel for appellant concedes that our cases resolve the contention adversely to his present position. However, it is correctly observed that the decisions deal with the law extant under former Criminal Code, Sec. 210(7). That Criminal Code provision specifically made such scruples ground for challenge for cause. Tarrence v. Commonwealth, Ky., 265 S.W.2d 40. The present case was tried after the effective date of the new rules of criminal procedure. RCr 9.36(1) has superseded Sec. 210 of the Criminal Code of Practice. By its terms, RCr 9.36(1)...

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