Garr v. Com.

• Decision Date: 05 February 1971
• Citation: 463 S.W.2d 109
• Parties: Clarence Coleman GARR, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 109

463 S.W.2d 109

Clarence Coleman GARR, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Feb. 5, 1971.

H. Foster Pettit, Arthur L. Brooks, Lexington, for appellant.

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

DAVIS, Commissioner.

Clarence Coleman Garr was tried and found guilty by a jury of the offenses of murder, rape, and burglary. The jury fixed punishment on the murder charge at imprisonment for life, on the rape charge at life imprisonment without privilege of parole, and on the burglary charge at imprisonment for ten years, which latter sentence the trial court directed should be served concurrently with the two life sentences.

Josephine Botts, an unmarried lady approximately sixty-five to seventy years of age, was the victim of the felonies for which appellant was convicted. There was no direct evidence of appellant's having committed the crimes, but there was strong circumstantial evidence pointing to his guilt, which shall be discussed later in the opinion.

The appellant, through appointed counsel who have served faithfully and well in defending these charges, presents four charges of error asserting that (1) the court erred in refusing a change of venue; (2) evidence obtained by an illegal search was improperly received; (3) gruesome photographs were received which resulted in prejudice to the appellant; and (4) 'the trial court committed prejudicial error when it required, over objection of the defendant, that the defendant submit to the indignity of delivering pubic hairs to the Commonwealth by the hands of the policeman.'

About 10:30 p.m. on March 13, 1969, Miss Botts' dead body was discovered by Arthur Walker, who lived in an upstairs room in Miss Botts' home. Walker called some of Miss Botts' friends who arrived shortly, and they notified the Lexington police. The police took photographs of the scene, some of which depicted the victim's body just as it appeared when discovered. The body was supine, on the floor by the bed. The bedclothing was in disarray, as were other articles in the bedroom. On the bed were two lady's purses giving the appearance of having been filed; an electric clock was stopped at 12:55, the connecting cord having become disengaged from its outlet, probably during a struggle. A man's electric razor and sweat shirt were found in the room, as were a piece of metal and a butcher knife. During the investigation immediately following discovery of the crime, the police raised numerous latent fingerprints, at least one of which was identified as a fingerprint of the appellant. Strong evidence for the Commonwealth indicated that the razor and the sweat shirt belonged to the appellant. The police were not able to find the appellant readily, although they had incriminating evidence against him which led them to believe that he had perpetrated the offenses.

A post-mortem examination and an autopsy of Miss Botts' body revealed a pair of women's nylon underpants stuffed tightly into the mouth, a fracture of the right forearm, fractures of the anterior fourth and fifth ribs, compression of the larynx, a tear in the posterior vaginal wall, and other cuts and abrasions. The body was attired in a nightgown and housecoat, and some blood was noted on the lower portion of the nightgown. When the body was lifted from the undertaker's cart to the post-mortem table, a large amount of blood was found to have drained from the pelvic region of the body to the cart.

Human blood stains were found on the bedspread, bed sheet, and housecoat at the crime scene. On the nightgown blood stains and semen stains were found. No semen stains were found on any item of evidence other than the nightgown.

Among items of evidence obtained by the police at the crime scene were bits of cotton fiber and pubic and cranial hairs. Subsequent scientific examination disclosed a 'large number' of green cotton fibers upon a pair of trousers belonging to appellant which microscopically matched the green cotton fibers in the composition of the bedspread. On the bedspread, as well as on a sheet removed from the bed and on the nightgown and housecoat at the crime scene, were found brown cotton fibers that microscopically matched the brown cotton fibers composing the trousers of appellant. The expert testified:

'It way my conclusion thereafter that the green cotton fibers found on the trousers could have originated from the green bedspread, and the brown cotton fibers found on the bedspread, sheet, the housecoat and the nightgown all could have originated from this pair of brown cotton trousers.'

The same expert witness conducted hair examinations with respect to certain pubic hair and cranial hair found at the crime scene and made microscopic comparisons of those items with known samples of pubic and cranial hair obtained from the appellant. In relating his findings from these examinations, the witness stated:

'These hairs I compared microscopically with the head hairs and pubic hairs of Clarence Coleman Garr, * * * and found that the pubic hair, the Negroid pubic hair, in Commonwealth's Exhibit No. 11 (found at the crime scene) microscopically matched in all observable characteristics the pubic hairs of Clarence Coleman Garr. The head hair fragment found in Commonwealth's Exhibit No. 13 (found at the crime scene) microscopically matched the head hairs of Clarence Coleman Garr which were forwarded and are Commonwealth's Exhibit No. 34.

'My conclusion in this respect was that the pubic hairs and the head hairs I have described originated either from the head and pubic area of Clarence Coleman Garr, Jr., or from another member of the Negro race whose head and pubic hairs are identical in all of the individual microscopic characteristics which we looked at.'

It was brought out on cross-examination of the expert witness that hair and fiber do not possess such individual characteristics as to permit positive identification as emanating from any one person or source. The witness expressly said that he could not rule out the possibility that the hair of which he testified did come from some person other than the appellant. Neither could the witness make such an exclusionary conclusion as to the fiber tests.

Garr was arrested on another charge in Orlando, Florida, on April 21, 1969, at which time he furnished an alias and false address. His true identity was discovered by the Orlando police on the basis of fingerprint identification as the result of a wanted bulletin issued by the Lexington Police Department. He was returned to Kentucky, subsequently indicted, and his trial began on September 29, 1969.

There was front-page newspaper coverage of the discovery of Miss Botts' body. The newspaper accounts noted some of the incriminating evidence against the appellant, coupled with the efforts of the police department to locate him, and included a somewhat detailed account of the circumstances surrounding his discovery in Orlando. As noted, the appellant presents as his first charge of error that the court should have granted his timely motion for change of venue. The court conducted an extensive hearing on the change-of-venue motion, at which much evidence was heard and numerous news accounts were filed as exhibits.

There was no evidence reflecting that public opinion in Fayette County was so aroused, as to preclude appellant's having a fair trial there. The chief argument of the appellant is that the news accounts were so prominently displayed and contained assertions not admissible in evidence, including the appellant's alleged involvement in a similar incident, that it was impossible for a jury to be drawn from the citizens of the county or any adjoining county who would not be affected by information received by them out of the courtroom and before the trial. Appellant directs our attention to cases such as Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600; Irvin v. Dowd, 366 U.S. 717, 6 L.Ed.2d 751, 81 S.Ct. 1639; and others of similar import. It suffices to say that a careful examination of the newspaper accounts and the evidence heard on the motion for change of venue clearly indicates that the trial judge properly resolved the change-of-venue issue. In such matters the trial court is necessarily vested with a sound judicial discretion. Hurley v. Commonwealth, Ky., 451 S.W.2d 838. This court is persuaded that the evidence adduced in behalf of the appellant falls short of demonstrating any abuse of discretion by the trial court in denying the motion for change of venue.

Appellant's next claim of error involves physical evidence allegedly obtained by illegal search and seizure. At about midnight on Friday, March 14, Police Detective Douglas visited the residence of appellant's parents seeking information about the electric razor found at the crime scene. Neither of appellant's parents was at home, but Officer Douglas talked with appellant's sister, Mrs. Joyce Lyivers. Mrs Lyivers, a married woman about twenty-six years old, was the oldest person at the residence when Officer Douglas called. She identified the razor as the one she had given to the appellant and explained its origin. The razor had the name of C. S. Vanwinkle painted on it, and the police investigation, through that channel, led them to make inquiry concerning the appellant. Mrs. Lyivers was living temporarily with her parents who occupied a residence in Lexington at which the appellant stayed on a very casual basis. Apparently appellant was permitted to sleep at the residence and make it his headquarters whenever he was around Lexington. Appellant was one of ten children, some of whom lived with their parents regularly and others stayed at the residence from time to time. It is apparent from the evidence that the appellant did not have exclusive possession or control of any portion of the dwelling house of his parents. It seems clear from the...