Caldwell v. Com.

• Decision Date: 17 November 1972
• Citation: 503 S.W.2d 485
• Parties: Warren Nathaniel CALDWELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 485

503 S.W.2d 485

Warren Nathaniel CALDWELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Nov. 17, 1972.

Ben B. Wright, Jr., Wright & Wright, Hopkinsville, for appellant.

John B. Breckinridge, Atty. Gen., James H. Barr, and M. Curran Clem, Asst. Attys. Gen., Frankfort, for appellee.

PER CURIAM.

Warren Nathaniel Caldwell pleaded guilty to an indictment charging him with the willful murder of William Matthew Bell. KRS 435.010. The jury fixed his penalty at death. His appointed counsel have prosecuted this appeal, contending as follows: (1) The court erred in denying a change of venue; (2) the court erred in accepting the guilty plea without first determining that the plea was made voluntarily and understandingly; (3) a confession was improperly admitted into evidence because it was an involuntary confession; and (4) the Commonwealth's attorney improperly commented on the failure of the accused to testify.

On the morning of August 18, 1970, Caldwell and three companions appeared at a country store operated by William Matthew Bell, age 83, and his wife, Ethel Bell, age 82. One of the four remained outside the store in an automobile, which belonged to appellant's mother, while the other three entered. Apparently Caldwell was the only one of the group who was armed. Both Mr. and Mrs. Bell were shot and killed and their store was robbed. The other two men who were in the store with Caldwell testified that he shot and killed both Mr. and Mrs. Bell, and Caldwell confessed it in his written statement, which will be discussed later in the opinion. The four men had worked briefly on a farm in the neighborhood of the store earlier on the morning of the double slayings. They had returned to Hopkinsville, the county seat, and consumed about five fifths of wine before embarking on their criminal excursion. The farmer for whom they had worked that morning observed that Caldwell had a pistol on his person at that time.

The trial court conducted a hearing on the motion for change of venue and denied the motion. This action is challenged in a three-pronged argument: (a) The affidavits and testimony introduced by the appellant established the need for a change of venue; (b) the evidence presented by the Commonwealth is not entitled to serious consideration as a matter of law; and (c) there is a clear probability that the jury was corrupted by pretrial publicity and community hostility.

First, it is insisted that the affidavits and testimony presented by Caldwell clearly demonstrated his entitlement to a change of venue. The motion was filed October 12, 1970, and the evidentiary hearing was had on October 16, 1970. On October 15, 1970, one day before the hearing, the trial judge entered an order to summon seventy-five additional jurors for the first day of the trial because of the 'particular nature of this case, and for other reasons, deemed sufficient by the Court.' It is contended that the very entry of such an order demonstrates on its face that the trial judge already knew it would be difficult to obtain a jury in Christian County because of the notoriety of the case. This contention is unsound. In the appropriate exercise of judicial discretion and in full recognition of the well-known facts of life pertaining to the qualification of jurors in any capital case, the trial judge had the right and duty to take preliminary steps conducive to an orderly and prompt dispatch of the proceeding.

The petition for change of venue was supported by the affidavits of three citizens. At the hearing four witnesses appeared in person and expressed the view that Caldwell could not obtain a fair trial in Christian County. Appellant presented other evidence by affidavit supporting his motion for change of venue. The Commonwealth introduced four witnesses who testified that in their opinion a fair trial for the appellant could be had in Christian County. The first of these witnesses was A. S. Koon, who had formerly been mayor of Hopkinsville and was serving as Alcoholic Beverage Control administrator of that city at the time he testified. The next witness for the Commonwealth was Thomas E. Morris, clerk of the Christian County Court, who was followed by Frank Chilton, a member of the city council of Hopkinsville. The final witness for the Commonwealth was G. H. Norfleet, sheriff of Christian County. In addition, six other affidavits were submitted by the Commonwealth. These six affiants were employed in various branches of public service; they were a postal clerk, a deputy county court clerk, and four magistrates serving on the Christian Fiscal Court. Appellant directs attention to Benge v. Commonwealth, 296 Ky. 82, 176 S.W.2d 131 (1943), in which this court reversed a judgment of conviction because of error in the trial court's refusal to grant a change of venue. Though it was noted in Benge that the only evidentiary material in behalf of the Commonwealth was given by officials of the county, that alone was not the basis for the decision. The record clearly showed that for some years a state of lawlessness and feudal violence had persisted in Clay County, in which the county officials were allied with a faction that was bitterly antagonistic to the faction of which Benge was a member.

There was conflict in the evidence concerning whether Caldwell would obtain a fair trial in Christian County. The trial judge was charged with the responsibility of resolving that conflict, and he was not persuaded from the evidence that a situation existed which probably would prevent the accused from obtaining a fair and impartial trial in Christian County. See Hurley v. Commonwealth, Ky., 451 S.W.2d 838 (1970); Williams v. Commonwealth, 287 Ky. 570, 154 S.W.2d 563, 136 A.L.R. 1398 (1941); and cases therein cited and discussed.

It is our opinion that the evidence was not so strong as to require the trial judge to grant the change of venue and that the evidence to the contrary was neither invalid as a matter of law nor so weak as to lack substantial probative value.

The third aspect of the claim that the court erred in denying the change of venue relates to the pretrial publicity and alleged community hostility said to have existed at the time of the trial. Thirteen editions of the Kentucky New Era, the only local paper published in Hopkinsville, were filed as exhibits in behalf of the defense. Eleven of the jurors who were ultimately accepted testified that they had read some or all of the articles in that paper. There was other evidence indicating that similar news of the crimes had been broadcast over the local radio station. It is well to note that the trial proceedings began October 19, 1970, and that the slayings had occurred on August 18, 1970. As noted in the brief for the Commonwealth, the following information was contained in the various editions of the newspaper and in the broadcasts: (a) On August 17, 1970, at 9:55 p.m., Henry Carol Hampton, age 36, was shot three times with a .22-caliber pistol while seated in his truck outside the local hospital waiting for his wife; three Negro men were wanted for the shooting; (b) On August 18, 1970, Mr. Bell, age 83, and Mrs. Bell, age 82, were shot and robbed in their country store while preparing to eat lunch; a picture of the couple was published, and the news articles stated that they had been beaten and shot in the head; both Mr. and Mrs. Bell died as a result of their wounds; (c) A .22-caliber pistol was used in the shooting of Mr. and Mrs. Bell; (b) The newspaper reported that there was considerable public alarm and that people were taking self-defense precautions, including inquiry of the county judge as to the law respecting carrying firearms; (e) A solicitation was conducted to raise a reward fund for information leading to the arrest and conviction of the culprits in the Bell case; (f) On August 23, 1970, four individuals including Caldwell were arrested and charged with the shooting of Hampton and the Bells; their names, addresses, and ages were listed; it was reported also that Caldwell was charged with breaking into the local social security office; (g) It was reported that Hampton had died from his wounds; (h) It was reported that the pistol used in the crimes had been tossed itno the river; an unsuccessful search of the river in the presence of a large number of people was conducted, and accounts of that event were carried in the paper.

The appellant calls attention to the fact that the news coverage repeatedly identified him as being charged with the murder and attempted robbery of Hampton, the murders of Mr. and Mrs. Bell, the robbery committed in the Bells' store, and breaking and entering the social security office. He points out that on nine separate occasions, in front-page articles in the only local newspaper, during the eight weeks preceding the trial, all of the felonies and all of the defendants were linked. He contends it is unreasonable and irrational to assume that the eleven jurors who admitted having read all or some of these articles were unaware of the other charges pending against Caldwell. Counsel for appellant point out that they were forced to trial 'in an atmosphere that would almost assure a prejudiced jury and worse yet (were) faced with the trilemma of (1) impugning the honesty of prospective jurors, (2) calling attention to the other felonies by voir-dire questioning, or (3) accepting jurors who by every criterion of common sense must know of the other charges.'

All reference to the shooting of Mrs. Bell was deleted from the confession and other evidence offered before the jury. Although the rule is that evidence of other crimes is generally incompetent in a criminal trial, that rule is subject to the exception that permits such testimony if the other crime is so interwoven with the crime on trial as to make it necessary and appropriate to mention it. Salisbury v. Commonwealth, Ky., 417 S.W.2d 244 (1967); ...