Caine v. Com.

• Decision Date: 16 February 1973
• Citation: 491 S.W.2d 824
• Parties: Charles Ray CAINE and Edward McIntosh, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 824

491 S.W.2d 824

Charles Ray CAINE and Edward McIntosh, Appellants, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Feb. 16, 1973.

R. Barry Wehrman, Wehrman & Wehrman, Covington, for appellant Charles Ray Caine.

Burton R. Singer, Newport, Arthur Cark, Cincinnati, Ohio, for Edward McIntosh.

Ed W. Hancock, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, Ottis P. Lanter, Commonwealth Atty., Williamstown, Wm. P. McEvoy, Boone County Atty., Burlington, for appellee.

STEINFELD, Justice.

After indictments appellants Charles Ray Caine and Edward McIntosh were found guilty on a trial before a jury of the murder of Carl Walp, who was shot on September 14, 1971, near Walton in Boone County, Kentucky. Their sentences were death by electrocution. Inasmuch as these cases involve capital punishment, we have searched the record for errors so that they, as well as the contentions of the appellants, could be considered. Drake v. Commonwealth, 263 Ky. 107, 91 S.W.2d 1009 (1936). Finding none which prejudiced the rights of appellants, we affirm.

On September 13, 1971, at about 11:30 p.m., Caine, McIntosh, Roger Allen Wood, and Janice K. Smith met in Covington, and at Wood's suggestion agreed to commit a robbery in downtown Cincinnati, Ohio. They drove to Newport, where McIntosh obtained a pistol which he gave to Caine. When they arrived at the scene of the proposed robbery they found too many people around; therefore, they abandoned this caper, returned to Kentucky, and proceeded southwardly on Highway I--75. Upon nearing Walton, they left the highway and approached an Enco Service Station. The appellants directed Miss Smith, who was driving, to proceed a short distance down the road past the service station and then to stop the car. Caine and McIntosh got out of the automobile after telling Miss Smith to drive a short distance away, to wait a few minutes and then return. The appellants approached the service station from the rear, walked around the side, and entered it from the front. Shortly thereafter Wood and Miss Smith heard three gun shots. She drove toward the station as the appellants ran out of the building toward the car. Caine, who had the pistol in his hand, and McIntosh got into the automobile and the group drove off with McIntosh at the wheel.

McIntosh told Wood and Miss Smith that the robbery attempt had been foiled by the service station attendant, who they said pulled out a gun and began firing at them. On their way back to Covington, Caine examined a wallet, threw the contents out of the car window and placed the wallet in his pocket. With Miss Smith helping, he also tried to expel the spent cartridges from the pistol, but was unsuccessful. Wood was let out of the car when they arrived at Covington, and the other three returned to Caine's apartment where he left the stolen wallet on a night stand in the bedroom. They divided the money they had obtained and then they separated.

At approximately 3:30 a.m. that same morning, Boone County Patrolman Wilson arrived at the service station and found Walp, still alive, lying face down on the floor. The patrolman called the Walton Life Squad. Sgt. Tate of the Kentucky State Police appeared at approximately 4 a.m. and found the Life Squad and several other police officers present. Tate observed Walp lying on a cot, bleeding profusely from a head wound. Shortly thereafter, Boone County Deputy Coroner Shields, who is also a licensed and experienced mortician, arrived. He testified that Walp was dead, that he was lying on a cot with a hole in the back of his head, and that something had entered the back of the skull 6 to 8 inches which he believed was a bullet. Although he probed, he was unable to remove the object. He expressed the opinion that the type of wound he observed could have caused Walp's death.

On the afternoon of the day following the robbery, Roger Wood read in a local newspaper of Walp's murder. He surrendered to the authorities and told them what had occurred on the morning of September 14th. On September 16, at approximately 10 a.m., Sgt. Tate secured warrants for the arrest of Roger Allen Wood, Janice K. Smith, 'Edward Doe' and 'Charles Doe' for the offense of murder. Several police officers went to Caine's residence in Covington. A knock on the door brought no response, but the door swung open and the officers entered. No one was at home, whereupon all officers departed, except Detectives Seiter and Mercer, both members of the Covington Police Department. In a short time, Caine and his wife entered, whereupon Caine was arrested and searched in the hallway by Detective Seiter. He was then taken into a bedroom which overlooked the street, so that the officers could observe from a window whether someone had accompanied him. The detectives saw a man seated in a car, so Mercer went to it and arrested McIntosh. While in the bedroom, the officers saw and seized a wallet which was lying on a table near the bed. Later it was identified as the property of Walp .

After handcuffing Caine and McIntosh together, the officers advised them of their rights and promptly took them to the city building in Covington, where they again were advised of their rights . They were moved to and processed at the Boone County Police Headquarters at Burlington, where McIntosh said, 'It was a needless killing; Charlie did it, I didn't.'

A motion '* * * to suppress the seizure of a wallet from his home by Covington Police Officers' was made by Caine. He contended '* * * that his arrest by the police was accomplished by means of an improper and illegal arrest warrant, and further, by means of an illegal entry into his home.' Reliance is placed upon the Fourth Amendment of the Federal Constitution, Section 10 of the Kentucky Constitution and RCr 2.06. KRS 431.005 authorizes a peace officer to make an arrest '* * * when he has reasonable grounds to believe that the person being arrested has committed a felony.' Scamahorne v. Commonwealth, Ky., 376 S.W.2d 686 (1964) . Peace officers Seiter and Mercer were acting on facts which they had obtained in assisting in the investigation of the death of Walp. They were proceeding in reliance on reliable information furnished to them, which information carried enough indicia of reliability to justify their action in visiting Caine's residence, waiting there for him, and looking out the window to see if McIntosh was present. The officers had reasonable grounds to believe that Caine had committed a felony, therefore they had authority to arrest without a warrant, and the claimed invalidity of the warrant is not fatal. Although their entry into the bedroom to observe the street from a window may have been a limited intrusion, it was reasonable. Cf. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

The wallet which was positioned on a table in plain view was not obtained as a result of prior knowledge of its location. There was no time to secure a search warrant. This was not a prohibited search. Royce v. Commonwealth, 194 Ky. 480, 239 S.W. 795 (1922); Wilson v. Commonwealth, Ky., 403 S.W.2d 705 (1966); Hahn v. Commonwealth, Ky., 453 S.W.2d 736 (1970). In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), it was written:

'What the 'plain view' cases have in common is that the police officer in each of them had a prior justification for an inrtrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification--whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused--and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the 'plain view' doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.'

Complaint is made that the trial court erred in denying a change of venue. Newspaper articles reporting the homicide and discussing it appeared on the three days following the event. On September 17, the press reported that a girl and three men had been arrested and charged with the crime. A photograph of Miss Smith, Caine, McIntosh, and Wood accompanied the story. The next day their arraignment was told, but by that time it was no longer 'front page news.' Inside stories appeared on September 24, 29, and October 8. Several photographs and reports similarly appeared in another newspaper, also of general circulation.

The first motion for a change of venue was made and overruled on November 12, 1971. It was renewed and again overruled on December 14, after several prospective jurors had been interrogated on the voir dire, as it appeared that all members of the panel probably had read about the homicide. Several prospective jurors indicated that they could not give the defendants a fair trial, so they were excused. It is argued that this relief was insufficient to assure a fair trial. Cited is Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963).

The Commonwealth points out that KRS 452.220(2) requires that a motion for a change of venue be in writing and supported '* * * by the filing of the affidavits of at least two credible persons, not kin to or of counsel for the defendant, stating that they are acquainted with the state of public opinion in the county objected to, and that they verily believe the statements of the petition for the change of venue are true.' We find neither a written motion nor affidavits in the record, and counsel refers us to none. In Yager v . Commonwealth, Ky., 436 S.W.2d 527 (1969), we said the failure to file the affidavits was fatal, and Bryant v....