Britt v. Com.

• Decision Date: 17 May 1974
• Citation: 512 S.W.2d 496
• Parties: H. C. BRITT, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 496

512 S.W.2d 496

H. C. BRITT, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

May 17, 1974.

Rehearing Denied Sept. 13, 1974.

A. M. Wilhoit, Public Defender, William C . Ayer, Jr., Asst. Public Defender, Frankfort, for appellant.

Ed W. Hancock, Atty. Gen., Carl Miller, Asst. Atty. Gen., Frankfort, for appellee.

PALMORE, Justice.

On the afternoon of December 18, 1972, an automobile occupied by Kenneth Arington and the appellant, H. C. Britt, Jr., struck and fatally injured a small boy on a street near the outskirts of Mayfield, Kentucky. The car did not stop, but from a description and partial license-plate number furnished by a witness the police were able within the next three hours to identify it as belonging to Arington, whom they arrested at his home in Mayfield between 6:00 and 6:30 of the same evening. The time of the accident was about 3:30 P.M.

When apprehended, Arington began to cry and admitted that his car had struck the child. He related the details of the accident, reported that Britt had been the driver, and said that he had tried unsuccessfully to get Britt to stop.

Meanwhile, at 4:15 P.M. Captain James Elder of the police department happened to observe Britt at 12th and Broadway in Mayfield, 'and he was falling all over the street and I arrested him for public drunk at that time.' However, it was not until Arington was arrested and brought to the police station some two hours later that Britt's involvement in the fatal accident was discovered by the police. Britt was then brought up from the jail, given the Miranda warnings, and questioned. He admitted that he had been the driver of the car and submitted to a breathalizer test, which registered his blood-alcohol content at .22%. ¹ According to Captain Elder's testimony, this test was given at 6:24 P.M., ² more than two hours after Britt had been taken to jail. He described Britt as having been 'very drunk . . . almost passed out' when arrested, but neither drunk nor sober at the time of the interview in which he admitted having been the driver of the car. Another officer described his condition at the latter time as 'fairly drunk' and expressed the opinion that he 'just didn't know really where he was at or what he was doing. He just seemed in a state of coma of some kind.' ³

In due course Britt was indicted for involuntary voluntary manslaughter in the first degree, KRS 435.022(1), and leaving the scene of an accident, KRS 189.580, was found guilty of both, and was given a sentence of 10 years' imprisonment on the manslaughter conviction and a $500 fine and jail sentence of one year on the hit-and-run count. He appeals, claiming error in the trial court's denial of his motions for a change of venue and for suppression of the alleged confession and in admitting evidence of a prior conviction for driving while under the influence of intoxicating liquors.

Conceding that there had been unfavorable pretrial publicity through the local news media, we are satisfied from reading the voir dire that the jurors who had been thus informed of the incident and who were permitted to remain on the panel were free of prejudice against Britt and that there was no necessity for a change of venue. Cf. Peters v. Commonwealth, Ky., 505 S.W.2d 764, 765 (1974).

That Britt had been convicted of driving under the influence of intoxicating liquors was elicited on cross-examination in response to a question (improper, of course) as to why he had no driver's license. However, there was no objection to the question, nor a motion to admonish the jury, hence there is no basis for a finding of error. We believe, moreover, that under the circumstances of the case the disclosure is not likely to have been prejudicial. Britt had volunteered the information that he did not have a license, and he introduced expert testimony to the effect that he was a confirmed alcoholic. An intelligent juror could scarcely have failed to infer the connection anyway.

The most serious question presented is whether the inculpatory information divulged by Britt while in police custody and with his faculties impaired by self-induced intoxication should have suppressed.

The procedure to be followed when the voluntariness of a confession is challenged was laid out in Bradley v. Commonwealth, Ky ., 439 S.W.2d 61 (1969). On a motion to suppress, the trial court must conduct an evidentiary hearing in chambers. Only if he is satisfied from substantial evidence that the confession was voluntary (and is not otherwise inadmissible) can it then be heard and considered by the jury. Constitutionally, this is all that is required, and if the trial court's determination is supported by substantial evidence it would be conclusive, cf. Lego v. Twomey, 404 U.S. 477, 91 S.Ct. 619, 30 L.Ed.2d 618 (1972), but for the additional protection prescribed in bradley to the effect that if the defendant chooses to carry the question to the jury he may do so with the benefit of an admonition that the evidence shall not be considered unless the jury believes that the confession was made voluntarily and free of coercion. 439 S.W.2d at p. 64.

In the instant proceeding the trial court held an extensive in-chambers hearing on the motion to suppress, but the defendant did not thereafter request an admonition to the jury. In this procedural posture, the precise question is whether as a matter of law, under the evidence produced at the hearing on the motion to suppress, the confession should have been excluded.

We may say without fear of contradiction that the evidence of Britt's having been given the Miranda warnings was sufficient. The heart of the problem is whether his waiver and ensuing admissions were, from a legal standpoint, 'voluntary.' In resolving that problem it is necessary to identify the relationship between 'volition' and intoxication, recognizing meanwhile that there certainly can be and have been hybrid-type situations in which a state of intoxication is one of the circumstances to be considered in determining whether an in-custody confession was coerced.

With respect to coercion, the reliability or trustworthiness of an inculpatory statement is irrelevant. Lego v. Twomey, 404 U.S. 477, 485, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). With respect to volitional competence, or mental capacity, it is vital. People v. Schompert, 19 N.Y.2d 296, 279 N.Y.S.2d 515, 226 N.E.2d 305, 307 (1967). There, the question is simply whether the man's condition indicates a substantial likelihood that he may not have been telling the truth.

The traditional rule has been a confession otherwise voluntary is not to be excluded by reason of self-induced intoxication unless 'the accused was intoxicated to the degree of mania, or of being unable to understand the meaning of his statements.' Peters v. Commonwealth, Ky., 403 S.W.2d 686, 688 (1966), quoting from Annotation, Intoxication of accused at...