Skaggs v. Com., 82-SC-917-MR

• Decision Date: 23 May 1985
• Docket Number: No. 82-SC-917-MR,82-SC-917-MR
• Citation: 694 S.W.2d 672
• Parties: David Leroy SKAGGS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 672

694 S.W.2d 672

David Leroy SKAGGS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 82-SC-917-MR

Supreme Court of Kentucky.

May 23, 1985.

Rehearing Denied Sept. 5, 1985.

Linda K. West, Asst. Public Advocate, Donna Boyce Proctor, Asst. Public Advocate, Frankfort, for appellant.

David L. Armstrong, Atty. Gen., Suzanne Guss, Christopher W. Johnson, Asst. Attys. Gen., Frankfort, for appellee.

WINTERSHEIMER, Justice.

Skaggs was convicted of the murders of Herman Matthews and his wife, Mae Matthews. He was sentenced to death for both crimes.

Herman Matthews was a 76-year-old, semi-retired scrap metal dealer. His wife was 67 years old and frequently helped in the business. Their home was connected to their place of business. He conducted a cash business and always carried large sums of cash on the premises. On May 6, 1981, a neighbor discovered the body of Herman Matthews in his place of business. Later the police found the body of Mae Matthews in the living room. Herman Matthews was shot three times, once in the right chest, once in the lower back and once in the left arm. He also suffered a head injury consistent with being hit with a hammer and not with falling. The head injury and the gunshot wounds to the chest and back were each capable of causing death independently of other injuries. Mrs. Matthews suffered two gunshot wounds, one in the left upper chest and one in the left abdomen. One wound occurred while she was standing and the other while she was lying down.

The police investigation led to Columbus, Indiana where they questioned Skaggs. After having him execute a waiver of rights form, the officers noticed dried blood on Skaggs shoes. While the police were examining the shoes, Skaggs fled. After a 20 minute foot chase in which warning shots were fired, Skaggs was apprehended. He was arrested on Indiana charges and returned to the local jail.

On May 14, still in Indiana, the Kentucky police again questioned Skaggs after again advising him of his rights. He told them he was present at the time of the Matthewses killings, but an accomplice, John Davis, pulled the trigger. On May 15, during the trip to Glasgow, Kentucky, Skaggs told police that the footprint on the door of the Matthews house was his and that he had attempted to kick in the door to burglarize.

Police investigation indicated that the alleged accomplice, Davis, was not involved with the crimes. In view of this information, on May 18, 1981, the police again questioned Skaggs and told him that he had a right to an attorney and that one had been appointed for him if he wanted the police to call the attorney. Skaggs indicated that he did not want an attorney, and during the subsequent interrogation, he confessed to having committed the murders of Herman and Mae Matthews during the course of a robbery and stated that he had acted alone.

After a jury trial, Skaggs was convicted of the murders of Herman and Mae Matthews, and he was also found guilty on two counts of robbery and burglary. At the sentencing phase of the murder conviction, the jury was unable to agree on the penalties for the two murders and was subsequently discharged. Approximately three months later, on June 22, 1982, the penalty phase was retried and a new jury selected. Much of the same evidence introduced at the guilt phase of the first trial was introduced at the retrial of the penalty phase. The final judgment sentencing Skaggs to death for the murder of Herman and Mae Matthews was entered on July 15, 1982. This appeal directly to this Court followed.

This Court affirms the judgment of the trial court.

Skaggs, through his counsel, raises thirty-two assignments of alleged error in this appeal. They are grouped as follows: 1) venue and jury issues; 2) alleged errors in the guilt phase of trial; 3) claims of errors in the penalty phase and 4) questions about the constitutionality of the Kentucky death penalty statute.

The trial judge did not commit reversible error in denying Skaggs' renewed motion for a change of venue at the second sentencing trial. Skaggs argues that the publicity prior to the penalty phase of the second trial prevented the seating of an impartial jury. He also maintains that the trial court should have granted his motion for a change of venue. He contends that the amount of attention and publicity that the whole incident received was so pervasive that it prevented the seating of an impartial jury in Barren County.

Careful examination of the entire record fails to indicate that any of the jurors actually seated at the guilt phase of the trial held any preconceived notion about his guilt which could not be laid aside. Of the twelve jurors who returned the death penalty, four stated during individual voir dire they had seen or heard little or no publicity about the case. Six others said that although they had been exposed to some publicity, they had not formed an opinion based on that fact. Juror Baxter stated that she could set aside information received outside the proceedings and render a decision based solely on the evidence. Although juror Vance was not asked any particular questions during the individual voir dire concerning publicity, she was present and did not respond to the trial judge's questions concerning publicity directed to the entire panel.

The record shows that the trial judge excused several members of the panel either because they had already formed an opinion or because of undue exposure to the prior proceedings.

The record indicates that the bulk of the pretrial publicity occurred long before jury selection began on the guilt phase of the trial on February 23, 1982. See Collins v. Egeler, 539 F.2d 597 (6th Cir.), cert. den. 428 U.S. 889, 97 S.Ct. 244, 50 L.Ed.2d 171 (1976).

Out of the 43 veniremen called, 15 were excused for cause, including 3 on the death penalty issue, and 15 were struck by peremptory challenges of the parties. There was not the existence of such community prejudice as would prevent the selection of a proper jury. Gall v. Commonwealth, Ky., 607 S.W.2d 97, 102 (1980), cert. den. 450 U.S. 989, 101 S.Ct. 1529, 67 L.Ed.2d 824 (1981). The authorities cited by Skaggs are distinguishable. The influence of the media did not pervade the proceedings.

The trial court's discretion in the matter will be given great weight because the trial judge is present in the county and presumed to know the situation. There has been no abuse of discretion in the denial of the motion for change of venue. Nickell v. Commonwealth, Ky., 371 S.W.2d 849 (1963).

The trial court did not commit reversible error by denying the motion of Skaggs for a change of venue because of pretrial publicity during the guilt trial.

A careful review of the media coverage, the general and specific voir dire indicates that under all the circumstances, the jury actually seated at the guilt phase of the trial was impartial. The denial of the motion for a change of venue was not an abuse of discretion.

None of the jurors indicated that their exposure to any publicity had adversely affected their ability to decide the case on the evidence alone. There was no community atmosphere so prejudicial that the jurors could be considered less than impartial. A careful review of all the allegations presented by Skaggs indicates that there is no considerable probability of the accused being unable to obtain a fair and impartial trial in the county in which he was tried. Payne v. Commonwealth, Ky., 623 S.W.2d 867 (1981), cert. den. 456 U.S. 909, 102 S.Ct. 1758, 72 L.Ed.2d 167 (1982).

The trial court did not commit reversible error in overruling the motion to suppress certain incriminating statements made by Skaggs to police officers on several different occasions. Skaggs argues that he was offered a "deal by the police and this "coercion" destroyed the voluntariness of his statements. These claims are taken from his testimony at the suppression hearing and not from the findings of fact of the trial court. Pursuant to RCr 9.78, the findings of fact of the trial court shall be conclusive.

In this case the accused was advised repeatedly of his "Miranda " rights. At every stage of the proceedings he rejected the assistance of counsel. It was not at his request that counsel was ultimately appointed, but rather because of the cautious concern of the trial judge.

It is fundamental that an accused must be informed of his right to counsel as well as his right to remain silent once an investigation focuses on him. However, these rights may be waived. Jasper v. Commonwealth, Ky., 471 S.W.2d 7 (1971). The fact that one suspected of a crime has no attorney present does not prevent him from confessing his crime if he does so voluntarily knowing that his confession may be used against him.

His allegation of a police bargain is unconvincing. The representation to an accused who is a cooperative confessor that the fact of his cooperation would be made known to the prosecuting authorities is not sufficient to render a confession involuntary. United States v. Curtis, 562 F.2d 1153 (9th Cir., 1977), cert. den., 439 U.S. 910, 99 S.Ct. 279, 58 L.Ed.2d 256 (1978).

His argument that while in custody in Indiana, he was represented by an attorney on another charge and that the failure of the Kentucky police to notify that attorney of the questioning is without merit. This argument has been rejected in United States v. Vasquez, 476 F.2d 730 (5th Cir.), cert. den. 414 U.S. 836, 94 S.Ct. 181, 38 L.Ed.2d 72 (1973).

The argument that once Kentucky counsel had been appointed the accused could not waive his right to counsel at a later interrogation is unpersuasive. See Moore v. Wolff, 495 F.2d 35 (8th Cir., 1974). As the trial judge noted in his findings of fact, on the morning of May 18, 1981 Skaggs appeared in district court and advised the judge that he did not want an attorney and was ordered back to jail. Shortly thereafter, the district judge reconsidered and appointed...