Futrell v. Com.

• Decision Date: 17 January 1969
• Citation: 437 S.W.2d 487
• Parties: Gilbert FUTRELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 487

437 S.W.2d 487

Gilbert FUTRELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Jan. 17, 1969.

Rehearing Denied March 14, 1969.

David R. Reed, Jr., William E. Scent, Reed, Scent & Reed, Paducah, Dee L. McNeill, Hickman, for appellant.

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

CULLEN, Commissioner.

Gilbert Futrell appeals from a judgment sentencing him to a term of ten years' imprisonment pursuant to a verdict finding him guilty of indulging in indecent or immoral practices with the body of a nine-year-old girl, KRS 435.105(1). His claims of error relate to the admission of evidence, the refusal to grant a continuance, and the instructions.

The girl victim identified Futrell in a line-up in the county jail, in the presence of the girl's mother and of the sheriff, a deputy sheriff, and a deputy jailer. On the trial the girl was permitted, without objection, to testify that she had identified Futrell in the line-up. Her mother and the three officers present at the line-up were permitted also to testify as to the fact of the identification by the girl, over an objection which was based solely on the ground that such testimony was hearsay. (Futrell now concedes that under Preston v. Commonwealth, Ky., 406 S.W.2d 398, the hearsay objection was not sustainable.) The three officers also were permitted, without objection, to testify that after the identification was made Futrell said, 'The little girl is not lying; I'm guilty.' No point was made in the motion and grounds for a new trial as to the admission of any of the foregoing testimony.

Futrell argues on this appeal that at the time of the line-up identification Futrell did not have counsel and had not been advised of his right to counsel, wherefore: (1) The conducting of the line-up violated his constitutional right to counsel; (2) evidence as to the line-up identification was inadmissible; and (3) evidence as to his admission of guilt following the identification was inadmissible, as being a confession obtained in violation of the right to counsel. On the line-up point Futrell relies on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. On the confession point he relies on Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.

The difficulty with Futrell's argument lies in the fact that his counsel (employed by him) made no valid objection to the admission of any of the evidence. (Under Preston v. Commonwealth, Ky., 406 S.W.2d 398, the testimony of the mother and the three officers as to the identification by the girl was admissible following admission of the girl's own testimony as to the identification, so the failure to object to her testimony removed any basis for objection to the testimony of the mother and the officers.)

Violations of constitutional rights, the same as of other rights, may be waived by failure to make timely and appropriate objection. Shockley v. Commonwealth, Ky., 415 S.W.2d 866; Lundberg v. Buchkoe, 6 Cir., 389 F.2d 154. Of course in an aggravated case involving...