Dolan v. Com.

• Decision Date: 04 June 1971
• Citation: 468 S.W.2d 277
• Parties: Thomas E. DOLAN, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 277

468 S.W.2d 277

Thomas E. DOLAN, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

June 4, 1971.

Eugene H. Alvey, Henry P. Gaddie, Louisville, for appellant.

John B. Breckinridge, Atty. Gen., Mark F. Armstrong, Asst. Atty. Gen., Frankfort, for appellee.

VANCE, Commissioner.

The appellant was convicted of murder and sentenced to life imprisonment. On appeal he claims (1) the trial court erred in admitting evidence of a purported confession (2) the evidence was not sufficient to sustain the verdict (3) the court failed to instruct on the whole law of the case and (4) the court erred in overruling appellant's motion for a new trial on the ground of newly discovered evidence.

The appellant and his wife, Genevieve Dolan, resided in the home of appellant's father and mother in Jefferson County, Kentucky. On Easter Sunday, April 6, 1969, Genevieve Dolan was wounded by a pistol shot in the bedroom of the home. She died at a Louisville hospital at approximately 4:00 P.M. the same day. The pistol shot entered her head at the left temple and ranged upward through her brain. It was fired from close range and left powder burns surrounding the wound.

The week before the shooting, the appellant discovered his wife kissing another man; he struck her in the face, blacked her eyes and threatened to divorce her and take custody of their infant children. There was some evidence that the deceased was despondent and depressed and taking tranquilizers on prescription of a physician. There was also some evidence that the couple had become reconciled during the week preceding her death.

An Easter card was found in the room in which the deceased was shot. It was addressed to 'Eddie' and the card contained the following message in the handwriting of the deceased.

'Honey

'On this Easter Sunday I know of the heartaches you have. With God's help you will be happy again! Without you my life musn't go on. With love in my heart I ask God to make you happy & some day bless you. You are my life. With love to you on Easter.

Love Genny'

The police officer on duty at police headquarters on April 6, 1969, testified that he received a telephone call from a man who identified himself as Thomas Dolan, Sr., and reported 'That his son had shot his wife.' Appellant's father testified that he reported to the police dispatcher that his son's wife had been shot.

The police were dispatched to the Dolan home and testified that upon arrival at the home the appellant made the following statement:

'I didn't mean to do it. I only meant to scare her.'

Both parents denied that appellant made this statement. They testified he said, 'Why did she do it' or words to that effect.

The injured Genevieve Dolan was removed to the hospital where she died shortly thereafter. At the hospital the appellant told a police officer 'That his wife was lying on the bed face down and he was lying beside her. He stated he had the gun in his hand and he attempted to unload the gun but in pulling the slide back on the gun the safety slipped, the slide went forward and the gun discharged.'

The appellant denied making any voluntary admission of the shooting. He testified that he was so upset and distraught that he could not remember what was said by him either at the home or at the hospital. He testified that he and his wife went driving Easter Sunday afternoon, arriving home about 2:30 P.M. They entered the house through the kitchen. At that time his father was seated upon the steps just outside the kitchen and his mother was preparing a meal. He stopped at the kitchen table while his wife went on to the bedroom. When the meal was ready he went to the bedroom to call his wife and discovered she had been shot. He commenced screaming and both parents immediately rushed to the bedroom.

Both parents corroborated this version of the incident. Although a noise similar to a shot was heard shortly before the discovery, nobody paid any attention to it because outside the house a group of motorcyclists were revving up the engines of their motorcycles, causing many noises similar to pistol shots.

The first contention raised by appellant is that the trial court improperly admitted evidence of his confession. He claims the confession was not voluntarily given and also that he had not been advised of his constitutional rights by the police officers.

The basis of the attack upon the voluntariness of the confession is two-fold, first, that the appellant was so upset, distraught and incoherent that he did not know what he was saying and second that sedatives were given to him at the hospital and any statement thereafter made was not freely given.

There is no intimation that the confession was coerced. The appellant was not in custody and his statements were made in his home and in the hospital and not in a jail or police station. There is no evidence of any prolonged questioning or any conduct on the part of the officers to overcome his will. His statement at the hospital was given in response to a general inquiry as to what had happened.

It is now claimed that the statement was not freely given because he was not coherent at the time but there is no evidence that he was wildly irrational or unaware of what he was saying or doing. Admittedly he was upset but the testimony of the police officers indicates that they could understand the appellant and that he could understand them.

Evidence that a defendant was upset, hysterical, excited or distressed at the time of making a statement or confession does not render the statement involuntary or inadmissible but goes instead to the weight which a jury will give it. State v. Foster, 44 Haw. 403, 354 P.2d 960 (1960); 2 Wharton's Criminal Evidence, 12th Edition, Section 386, pages 118, 121; 23 C.J.S. Criminal Law § 828, Mental or Physical Incapacity, pages 226, 230.

The claim that appellant was sedated when he gave his statement rests upon inferences rather than direct proof. There is no direct evidence that a sedative was administered to the appellant. If a sedative was administered, there is no suggestion in the evidence as to what it contained or what effect it had upon the appellant. There is simply no showing to sustain the claim that the appellant was under the influence of drugs at the time his statement was made.

The appellant contends that he was not warned of his constitutional rights. The court conducted an inquiry out of the hearing of the jury in which it was shown that the officer at the hospital carefully explained appellant's constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). All statements made by the appellant before such warnings were given were excluded from evidence by the trial court. We think the action of the trial court in this respect was proper and we conclude that there was no abuse of discretion or error on the part of the trial judge in admitting the statements made by the appellant to police officers.

The claim that the verdict is not supported by the evidence is predicated upon RCr 9.60 which reads:

'A confession of a defendant, unless made in open court, will not warrant a conviction unless accompanied with other proof that such an offense was committed.'

The language of RCr 9.60 is identical to former Criminal Code, Section 240. Those sections have been interpreted uniformly to require an instruction in the language of the rule in any case in which an out-of-court confession was admitted in evidence unless the confession was accompanied by other proof, independent of the confession, that a crime had been committed. Hawk v. Commonwealth, 284 Ky. 217, 144 S.W.2d 496 (1940).

A distinction has been drawn between confessions and admissions against interest. When the out-of-court statement amounts to no more than an admission against interest no such instructions need be given. Herron v. Commonwealth, 247 Ky. 220, 56 S.W.2d 974 (1932) and Eldridge v. Commonwealth, 229 Ky. 499, 17 S.W.2d 403 (1929).

An admission against interest is a statement of an accused which does not directly involve an acknowledgement of guilt or criminal intent. A confession is a voluntary statement made by a person charged with the commission of a crime, communicated to another person, wherein the facts acknowledged by him indicate criminal culpability on his part and discloses the circumstances of the act or the share and participation which he had in it. Hedger v. Commonwealth, 294 Ky. 731, 172 S.W.2d 560 (1943) and Abdon v. Commonwealth, 237 Ky. 21, 34 S.W.2d 742 (1931).

The statements attributed to the appellant were not confessions. He did not confess guilt of any charge. At most the statements may be taken as an admission that a pistol in his possession fired the fatal shot.

RCr 9.60 must also be considered in connection with the requirement of proof of the corpus delicti. Corpus delicti means the body of the crime and in homicide cases proof of the corpus delicti requires a showing of (1) a death and (2) that the death resulted from the criminal agency of another. Warnell v. Commonwealth, Ky., 246 S.W.2d 144 (1952) and Hawk v. Commonwealth, 284 Ky. 217, 144 S.W.2d 496 (1940).

The corpus delicti may be shown by circumstantial evidence but the circumstances must be more consistent with guilt than with innocence. Goodman v. Commonwealth, Ky., 285 S.W.2d 146 (1955). Once the corpus delicti has been established a defendant's guilt can be established entirely by his own confession. Caldwell v. Commonwealth, Ky., 351 S.W.2d 867 (1961). Phrased in another way it may be said that the first requirement of the Commonwealth in a criminal prosecution is to establish that a crime has been committed. This cannot be established solely by an out-of-court confession. Once it has been sufficiently shown that a crime was committed the question of who committed it may be established solely upon the basis of an out-of-court confession.

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