Hamilton v. Com.
| Decision Date | 25 March 1966 |
| Citation | 401 S.W.2d 80 |
| Parties | Rudolph HAMILTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Hobson L. James, Elizabethtown, for appellant.
Robert Matthews, Atty. Gen., F. E. Wood, Asst. Atty. Gen., Frankfort, for appellee.
Rudolph Hamilton was convicted of the willful murder of Ervin Basham and was sentenced to death. On appeal he urges that the court erred in refusing to grant a continuance, in the admission of certain testimony, and in refusing to discharge the jury because of the misconduct of the jury and because of the improper opening statement and closing argument of counsel.
A lone robber shot Ervin Basham in the back during the course of a holdup of Basham's Liquor Store. Basham died almost instantly. The robbery occurred about ten o'clock on Saturday night, December 28, 1963. The store was located in Meade County on U.S. Highway 60 about three miles from Fort Knox Military Reservation. Appellant was then in the United States military service and was stationed at Fort Knox.
A helper in the store was an eyewitness to the slaying. Two other witnesses who lived in an apartment in the rear of the store heard the shot and quickly went through their doorway into the small anteroom. They saw Basham fall. They also saw the holdup man backing out of the front door of the store with a pistol in his hand. He brandished the weapon and demanded that they stay back. One of these two witnesses later identified appellant in the courtroom. The eyewitness to the slaying also identified appellant, and testified that at gun point he was forced to take $319 from the cash drawer and give it to the robber.
The slayer fled. One of the witnesses took a pistol that was hanging on the wall inside the apartment and exchanged fire with the robber. An auto with a single occupant had been waiting near by.
Appellant contends that a written statement made by him was improperly admitted into evidence because it had been coerced after he had requested counsel and had not been furnished any. The statement described in detail the related events, before and after, and the holdup. In the statement appeallant said that the holdup had been planned with Sylvester Coleman and Rodney Faison. See Faison v. Commonwealth, Ky., (decided March 25, 1966).
The sequence of events prior to the statement is important. The holdup occurred about ten o'clock on Saturday night. The investigation was conducted by civil authorities and Fort Knox Criminal Investigation Department officers. Appellant was taken into custody by military authorities about 4 a.m. on Sunday. He was questioned by them about two hours and released. Appellant was again taken into custody by the military authorities about 2 or 3 p.m. on Monday. At the top of the statement are two notations of time: '1520 hours (3:20 p.m) 30 Dec 63' and '1545 hours (3:45 p.m.) 30 Dec 63.' According to the testimony this is about the time the statement was reduced to writing.
Appellant's statement was typewritten on a military form, with additional pages attached. It consists of a narrative statement followed by some questions and answers. The statement was typed by Reis R. Kash in the presence of LeRoy F. Lussier. Lewis J. Massey, another C.I.D. investigator, was in and out of the room while the statement was being made.
The form on which the statement was made contained the following printed matter appropriately filled in at the beginning:
'I have been informed by Lewis J. Massey who stated he is an MP Criminal Investigator of the United States Army, and that he is conducting an investigation of murder/robbery of which I am suspected.
'The Uniform Code of Military Justice, Article 31, has been read and explained to me by Lewis J. Massey I understand that I do not have to make any statement whatsoever and any statement I make may be used as evidence against me.'
The form concluded with the following affidavit which was properly signed and executed by appellant:
The statement was initialed as stated in the affidavit.
At the bottom of the form is a printed statement of the rights of an accused under the Uniform Code of Military Justice, Article 31; Title 10, United States Code, Section 1219; and the Fifth Amendment to the Constitution of the United States to the effect that an accused shall not be compelled to 'talk.'
At the trial, upon objection being made to the introduction of the statement into evidence, the court heard testimony in chambers concerning its competency and admissibility. KRS 422.110(2). The only witness to testify at the hearing in chambers was Lussier, one of the C.I.D. investigators who took the statement. He testified that appellant at the time of being taken into custody was in the military service and was subject to the Uniform Code of Military Justice. He also testified as follows:
'Q 28. Did you, before he made any statement or before questions were asked him, inform him that anything he said would be subject to be used against him?
'A I was with Mr. Massey immediately after we identified ourselves to Rudolph Hamilton. And I read and advised him of his right under the Uniform Code of Military Justice. Mr. Massey advised him he did not have to make any statement and any statement he made could be used against him. Mr. Massey then informed him he was suspected of murder and robbery. Then the questioning began.
'Q 29. And the questioning did not begin until after he was informed he didn't have to tell anything and it could be used against him?
'A We are bound by regulation.
'Q 30. And did you so inform him that he didn't have to talk and that it could be used against him?
'A Yes, sir.
'Q 31. Before he ever made any statement?
'A Yes, sir.
'Q 32. Now was any inducement offered or held out to him in the way of immunity for him to tell anything about that?
'A No, sir.
Q 33. Were there any threats made as to anything adverse that would or could happen if he didn't make a statement?
'A No, sir.'
Lussier testified that appellant was without counsel while he was in custody prior to giving the statement; that after portions of a statement given by one Sylvester Coleman had been read to appellant he requested counsel; that he was then advised that 'at that time under our regulations as long as he wanted to see counsel we could no longer interview him'; that the investigator sought to obtain counsel for appellant from the Judge Advocate General's Section (the Law Department of the Army) but, apparently because of the holiday season, none was then available; and that appellant was then informed of the unavailability of counsel.
Lussier testified further:
On this uncontradicted testimony the court held that the statement was competent and admissible as being voluntary. Tarrence v. Commonwealth, Ky., 265 S.W.2d 52. Since there was no contradiction on the issue of voluntariness it was unnecessary to submit the issue to the jury. Cf. Karl v. Commonwealth, Ky., 288 S.W.2d 628.
It is urged that the statement is inadmissible under the rule in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. In Escobedo it was held:
'* * * that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied 'the Assistance of Counsel' in violation of the Sixth Amendment of the Constitution as 'made obligatory upon the States by the Fourteenth Amendment,' Gideon v. Wainwright, 372 U.S., at 342 (83 S.Ct., at 795), and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.'
This case is distinguishable from Escobedo because appellant had withdrawn his request for counsel before making his statement and because the investigating officers had effectively warned appellant 'of his absolute constitutional right to remain silent.' It appears from the quoted testimony of Lussier heard in chambers by the trial judge and from the statements, warning, and affidavit contained in the incriminating statement, that appellant from the time he was first taken into custody and until the statement was made was fully advised as to his right to counsel, his right to refuse to make any statement, and that any statement made could be used against him. On the issue of coercion, appellant's statement that 'Coleman is lying and I want to see the matter cleared up' indicates the reason the appellant made the confession. This, coupled with his withdrawal of his request for counsel in the light of the...
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