581 S.W.2d 352 (Ky. 1979), Wagner v. Commonwealth

Citation:581 S.W.2d 352
Opinion Judge:LUKOWSKY, Justice.
Party Name:Ed Anthony WAGNER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
Attorney:Terrence R. Fitzgerald, Daniel T. Goyette, Donald E. Dawson, Louisville, for appellant. Robert F. Stephens, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee.
Judge Panel:STEPHENSON, Justice, dissenting. CLAYTON, Justice, dissenting.
Case Date:May 01, 1979
Court:Supreme Court of Kentucky

Page 352

581 S.W.2d 352 (Ky. 1979)

Ed Anthony WAGNER, Appellant,


COMMONWEALTH of Kentucky, Appellee.

Supreme Court of Kentucky

May 1, 1979

Page 353

[Copyrighted Material Omitted]

Page 354

Terrence R. Fitzgerald, Daniel T. Goyette, Donald E. Dawson, Louisville, for appellant.

Robert F. Stephens, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee.

LUKOWSKY, Justice.

Wagner was convicted of first-degree rape, KRS 510.040 and third-degree assault, KRS 508.030. The jury fixed his punishment at fifteen years in the penitentiary for rape and at one year in the county jail for assault. The indictment also charged that he was a first-degree persistent felony offender, KRS 532.080(3). In order to settle this issue the second stage of a bifurcated trial required by KRS 532.080(1) was held. The jury found Wagner to be a first-degree persistent felony offender and, consequently, enhanced his punishment to life imprisonment. He appeals. We reverse and remand.

The case for the prosecution may be summarized as follows:

At approximately 3:30 on the afternoon of January 26, 1978, Amy Morrison was waiting for a bus at the corner of Fourth and Chestnut Streets in Louisville to take her to work at Suburban Hospital. A car drove by and stopped. Wagner got out of the car, approached her, and told her that he was from the Courier-Journal and wanted to ask her some questions about her work and the bad weather. Wagner told her that he was on his way to St. Matthews and offered her a ride to Suburban Hospital. Amy accepted because Wagner appeared to be a nice man and because of the frigid weather conditions in which she had been waiting for her bus.

After they got in Wagner's car he drove down Bardstown Road where he stopped, in an alley near an overpass, and asked Amy if she would mind waiting while he attempted to get a check cashed by a friend. She had no objection. Wagner left but was gone only a few minutes. He told her that his friend wasn't home but would be back at 4 p. m. and again requested that they wait. While they waited Wagner gave her a candy bar and they talked on his C-B radio.

Wagner suddenly pulled out a knife and placed it at Amy's throat. He told her "Don't move or I'll slit your throat." She was surprised at this and jumped. The knife cut her finger. He tied her hands behind her back with a scarf which had been hanging from his rear view mirror. He took another scarf and tied one end around her throat and the other end to the scarf holding her hands. He told her not to struggle or she would choke herself to death. He made her lie down on the front seat of the car and as he kissed her he pulled up her shirt and placed the knife on her stomach indicating that it would be within easy reached if he needed it.

He demanded that she shut her eyes and after she did so he placed a gluey substance

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on them. This substance sealed her right eye shut and she could barely open her left eye. He kissed her breasts and at approximately 4:30 p. m. he drove Amy to a house near the Cherokee Park area of Louisville where he had a rented room. He took Amy to his room and during the course of the next 2 and 1/2 hours he raped her twice.

Amy assured Wagner that she would not tell anyone about the incident and was able to persuade him to take her some place where she could remove the gluey substance from her eyes. He drove her to a Convenient Food Mart located at Fourth and Oak Streets. He got out of the car, left his keys in the ignition and went inside to purchase something that would help her cleanse her eyes. After he entered the store she took the car keys, jumped out of the automobile and hurried into the store. Once inside she accused Wagner of raping her and began crying. He denied this, demanded his keys and apparently attempted to leave the store but some of the customers in the store crowded around the exit and refused to let him leave until the police arrived.

When the police arrived they interviewed both Amy and Wagner. They accompanied Wagner and Amy to Wagner's car and permitted him to lock and secure the car. While this was being done Amy pointed through the windows to the scarves and to a spot on the upholstery which she said was blood from her cut. They took Amy to General Hospital for an examination and Wagner accompanied them to police headquarters for questioning. During the questioning the police had Wagner's...

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