Combs v. Com.

• Decision Date: 07 February 1969
• Parties: Jesse COMBS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 82

438 S.W.2d 82

Jesse COMBS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Feb. 7, 1969.

Rehearing Denied March 28, 1969.

Henry E. Hughes, James E. Keller, Lexington, for appellant.

John B. Breckinridge, Atty. Gen., James H. Barr, Asst. Atty. Gen., Frankfort, for appellee.

WADDILL, Commissioner.

Appellant, Jesse Combs, 19 years of age, was convicted of the crime of murder and sentenced to life imprisonment. On this appeal his sole ground for reversal of his conviction is that the trial court erred in permitting the Commonwealth to introduce in evidence at his trial his alleged oral confession of the crime. Appellant urges that the alleged confession was elicited under circumstances that were violative of the standards enunciated by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. In summary, the standards governing custodial interrogation of a criminal suspect are that, prior to police questioning, the suspect must be informed that he has a right to remain silent; that any statement he does make may be used as evidence against him and that he has a right to the presence of an attorney, either retained or appointed; however, the suspect may waive these rights if the waiver is made voluntarily, knowingly and intelligently. Miranda v. Arizona, supra; also see Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Jewell v. Commonwealth, Ky., 424 S.W.2d 394 and Hamilton v. Commonwealth, Ky., 401 S.W.2d 80.

Appellant, who was being sought in connection with the murder of Dora Haden, occasionally herein referred to as 'Effie,' whose lifeless and semi-nude body was found near her secluded mountain home, surrendered to Sergeant Louis Babbs of the Kentucky State Police. Mrs. Haden's death was caused by a rifle bullet wound in her head.

At trial, when the Commonwealth sought to show by Sergeant Babbs that appellant had orally confessed that he had shot Dora Haden, appellant's counsel objected and moved the court to suppress the alleged confession on the ground that it had been elicited in violation of appellant's Fifth Amendment privileges against self incrimination. The trial court, after conducting a hearing on this question in chambers (and out of the jury's presence and hearing) decided that the confession as related by Sergeant Babbs was admissible and accordingly overruled appellant's objection and motion.

When the trial resumed before the jury Sergeant Babbs testified that immediately after appellant was taken into custody he was informed of his right to remain silent, of his right to counsel, either personally retained or court appointed, and of the Commonwealth's intention to use against him any incriminating statement he made. Sergeant Babbs stated that when appellant was asked if he understood, that he responded in the affirmative. Sergeant Babbs further stated that appellant was then taken to the state police barracks at Richmond, Kentucky, where he was photographed, fingerprinted and again informed of his constitutional rights. We quote from the trial record the pertinent part of Babbs' testimony as to what then occurred:

'A. * * *. Then I asked him if he understood what these rights were and asked him if he would like to make a statement.

'D16. Did he reply to you?

'A. Yes. He said he would like to make a statement but he would like to talk to an attorney first.

'D17. Then what happened?

'A. I said all right. I want to read you something. I reached in the basket on my desk and I read him the ballistics report on a rifle and bullet.

'D18. In this case?

'A. Yes.

'D19. Then what happened?

'A. Mr. Combs started to cry and he put his head in his hands and he said those shoes that made the tracks are at daddy's, and I stopped him there--

'OBJECTION: MR. HUGHES:

'THE COURT: OVERRULED.

'A. And I stepped to the door and called Sergeant Gay and Sergeant Gay came in and kinda hunkered down beside the desk, and I said do I understand you now want to make a statement without an attorney and he said that is right. He was again advised that he didn't have to make a statement and he said I want to talk about this and I asked him are you saying you had something to do with Effie Haden's death? And he said yes, I did. And I said did you have anyone with you and he said no, I did it by myself.

'D20. What else did he tell you?

'A. I asked him when he did it and he said he did it right after Squirrely Green and his men left the house. That he was up on the hill watching, and when they left, he slipped down to the back gate. That Mrs. Haden was standing near the back porch, talking to herself, with her back to him, and I asked him if he shot her and he said he did and I asked him where he aimed the gun, and he pointed somewhere in the area of her head. I then asked him how he got her in the cellar, if he did, and he said he took her by the hands and dragged her up to the cellar and dragged her in and laid her down, in the cellar. I asked him if he put anything in the cellar with her, and he said he threw a shoe and a pair of panties in, too.

'D21. Did he tell you anything else?

'A. He said he went to the house and took this old rifle and went around the hill and over near Dorothy Gazara's house and hid the old rifle behind a tree and went on home, and helped his father set tobacco.

'D22. Did he tell you anything further about the old rifle?

'A. Yes. He said he brought it to Richmond with him the next morning and sold it to Carl Adams, for $10.00. He said he tried to sell it a couple of other places, but couldn't.'

In these circumstances the issue narrows to whether appellant's confession was a voluntary one or whether it was coerced in violation of appellant's wishes to remain silent until he had the advice of counsel.

We recognize that the purpose of custodial interrogation of a suspect is to obtain from him information that will either incriminate him or will otherwise lead to the apprehension and conviction of the guilty party (or parties). However, there is nothing unlawful about in-custody interrogation of criminal suspects by the police if the suspect is first advised of his constitutional rights and is then afforded an opportunity to exercise these rights prior to being questioned. Miranda v. Arizona, supra, specifically states that volunteered statements are not barred by the Fifth Amendment and further that their admissibility is not affected by the holding.

We are not avoiding coming to grips with appellant's contention that he refused to waive his constitutional rights when he asked Sergeant Babbs for counsel. Once the Fifth Amendment privilege is invoked, further police interrogation should cease. As we read Sergeant Babbs' testimony, Babbs respected appellant's request for counsel and refrained from further questioning him. The reading of the ballistics report to appellant, which took only a matter of minutes, did not constitute interrogation that would infringe upon the guidelines of Miranda v. Arizona, supra. The reading of the report to appellant merely furnished him some of the information the police had already acquired...