Hurley v. Com.

• Decision Date: 13 February 1970
• Citation: 451 S.W.2d 838
• Parties: Michael S. HURLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 838

451 S.W.2d 838

Michael S. HURLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Feb. 13, 1970.

James R. Odell, Jackson W. White, Lexington, for appellant.

John B. Breckinridge, Atty. Gen., Robert W. Willmott, Jr., Asst. Atty. Gen., Frankfort, for appellee.

STEINFELD, Judge.

Upon a verdict of a jury Michael S. Hurley was adjudged guilty of murder and sentenced to life imprisonment. He appeals. We affirm.

For reversal he claims that the trial court erred in refusing to grant a change of venue, that the verdict was contrary to the weight of the evidence, and that the jury was not properly instructed on the effect of his intoxication.

Hurley and his wife planned to spend November 21, 1967, together but that morning when Mrs. Hurley asked for permission to be absent from work the request was denied. She telephoned her husband and he became exceedingly angry. During the day he consumed a large amount of beer and whiskey. On her arrival home she reprimanded Hurley about his drinking so enraging him that he pushed her into a window and broke it. She departed to make telephone calls and while she was away Hurley went to a nearby grocery where he waved a .38 caliber pistol in a threatening and careless manner and exhibited confusion by his talk and actions. He was described as being very nervous and acting as if he did not know what he was doing. He left the grocery store and returned to his apartment.

The police were notified of his actions and Lt. John Thomas arrived at the apartment and met Mrs. Hurley outside. At the door the officer asked Hurley about the pistol. Mrs. Hurley saw him holding it behind the door and requested that he surrender the gun to the officer, but instead he turned it on Lt. Thomas, then relieved him of his night stick and weapon. He forced the officer to come inside the house and hold his hands behind his head. Mrs. Hurley testified that her husband asked nonsensical questions of the officer, that he was incoherent, shaking and his eyes were 'real glossy.'

Deputy Sheriff James Songer arrived and went to a back window where he observed Hurley pointing the pistol at the officer. Hurley saw or heard Songer and told Lt. Thomas that unless Songer left at once, he, Hurley, would kill the officer. Songer went to a cruiser to call for more aid. Hurley ordered his wife to go into the bedroom which she did. Songer and Mrs. Hurley heard a shot. Hurley ran out the front door of the apartment, and was met by Songer who wounded him. Hurley ran back into his apartment, fell to the floor and when his wife reached him he said, 'God forgive me' or something similar. The officer was on the floor and blood was splashed all about. He died of gunshot wounds.

Contending that a fair trial could not be had in Fayette County, Hurley's counsel moved for a change of venue. KRS 452.220(2). He submitted two affidavits in support of his motion. On hearing of the motion (KRS 452.220(3)) he introduced numerous articles from local newspapers and showed that there had been a great deal of radio and television publicity. This was competent evidence. Carsons v. Com., 243 Ky. 1, 47 S.W.2d 997 (1931). The news media had reported public commendation by the county judge of Songer for apprehending Hurley and condemned defendant for what he had done. It reported a joint proclamation by the mayor and county judge designating 'Lt. Thomas Week' and the creation of a trust fund for the benefit of the deceased officer's family. A substantial sum had been raised in the trust fund, mostly from modest contributions. In the news there appeared posters bearing pictures of the deceased officer's family, and references to Hurley's mental history.

In opposition the Commonwealth called witnesses, some of whom said that they were unaware of the general state of public opinion, but others swore in person and by affidavit that in their opinion appellant could receive a fair and impartial trial. The substance of their statements was that they recalled vaguely the publicity given to the shooting but that they had heard little discussion about it. A year had passed since the shooting occurrence. After an exhaustive hearing the trial court denied the motion.

The question of whether venue should be changed addresses itself to the sound discretion of the trial court. The rule was stated in Williams v. Com., 287 Ky. 570, 154 S.W.2d 563, 136 A.L.R. 1398 (1941):

'* * * a trial court is vested with a sound discretion in determining the question upon the evidence and circumstances of each case, and that unless such discretion has been abused to the probable detriment of the accused the appellate court will not disturb the order of the trial court in disposing of the motion. But it will be perceived that such indefinite statement of the law--which we hereby approve as correct--erects no permanent or fixed standard to guide the court in passing upon such questions, but relegates their determination, and the course to be pursued, to the facts and circumstances of each case and to the sound judgment of the court as to whether or not such facts and circumstances reveal a situation of bias, prejudice or other adverse circumstances whereby there is considerable probability of the accused being unable to obtain a fair and impartial trial within the venue of the pending indictment.'

In Nickell v. Com., Ky., 371 S.W.2d 849 (1963), we said:

'The trial judge must determine whether a situation exists which will probably prevent the accused from obtaining a fair and impartial trial within the venue from which removal is sought. In the making of such determination the trial judge has wide discretion in granting or refusing change of venue and his discretion is given great weight because he is present in the county and presumed to know the situation.'

Also see Smith v. Com., Ky., 366 S.W.2d 902 (1962) and Kiper v. Com., Ky., 415 S.W.2d 92 (1967). No complaint is made that an impartial jury was not impaneled. We are unable to discern from the record any indication that the trial court abused its discretion in refusing to grant the change of venue. 21 Am.Jur.2d 434, Criminal Law, Section 427.

Appellant contends that all medical testimony indicated that he was suffering from pathological intoxication at the time of the shooting and could not resist the impulse to kill, therefore, the verdict of murder was contrary to the weight of the evidence. He claims that uncontradicted proof revealed that at the time of the shooting he '* * * was suffering from an acute condition known as pathological intoxication. He was, in addition, 'crazy drunk'.'

Dr. John H. Parks and Dr. John Wysoki, two competent psychiatrists, testified for appellant. One said that '* * * he was suffering from a mental disorder known as pathological intoxication or acute brain syndrome, an acute condition of short duration brought on by the ingestion of small amounts of alcohol.' These physicians had made several psychiatric evaluation tests on Hurely which they said enabled them to make the diagnosis. The testimony also showed that Hurley had previously been a patient in a mental hospital, that he had made a suicide attempt and on other occasions had made suicidal threats.

One psychiatrist testified that Hurley did not fully understand the nature of his act and 'was unable to resist the impulse to kill', that he definitely was psychotic. He concluded that Hurley had suffered from genuine amnesia with respect to the events of the killing and said that this symptom bolstered his opinion of a manifestation of pathological intoxcation. The other psychiatrist substantially agreed.

The Commonwealth quotes Dr. Parks who stated '* * * I feel that my opinion is that it is probable at the time the act occurred that Michael Hurley had only a partial understanding of the nature of the act * * *'. This physician noted that Hurley '* * * held the gun above the door. He knew enough to keep it out of sight and to, you know,...