Harper v. Com.

• Decision Date: 02 May 1985
• Docket Number: No. 83-SC-456-MR,83-SC-456-MR
• Parties: Edward Lee HARPER, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 665

694 S.W.2d 665

Edward Lee HARPER, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 83-SC-456-MR

Supreme Court of Kentucky.

May 2, 1985.

Rehearing Denied Sept. 5, 1985.

Michael A. Wright, Asst. Public Advocate, JoAnne M. Yanish, Asst. Public Advocate, Frankfort, for appellant.

David L. Armstrong, Atty. Gen., David W. Mossbrook, Asst. Atty. Gen., Frankfort, for appellee.

STEPHENSON, Justice.

Edward Lee Harper, Jr., 33 years of age, was charged with two counts of capital murder, KRS 507.020, and found guilty of both by a jury. At the penalty phase of the trial, the jury recommended the death penalty on each count, and Harper was then sentenced to death. KRS 532.025 and KRS 532.030. Harper appeals the sentence to this court. We affirm.

A summary of the evidence introduced at trial shows that about a month before the murders Harper had asked a girl friend if she would have her brother procure an untraceable and unregistered gun for him. Nothing came of this request. Later, Harper asked an acquaintance to purchase a .38 special or a .357, without serial numbers. Harper called several times inquiring about progress in procuring the gun and then, two days before the murders, advised that he was getting the gun from someone else.

On the same day, Harper called a Vernon Priddy who had advertised that he had a .38 special for sale. Harper told Priddy that he wanted to buy the gun for his wife and that his name was Johnson. Harper met with Priddy at about 6 p.m. on the day of the murders and purchased the gun and six bullets. Earlier that day, Harper had purchased some .38 special bullets from a hardware store. After the purchase from Priddy, he returned the bullets purchased from the hardware store and insisted that his name be removed from the log book.

Harper then went to a park where he loaded the gun and test fired it. After watching his son play ball for a while, Harper then went to a bar. He left the bar about 11 p.m., went home, and shot and killed both of his parents. He then attempted to make it appear as if a burglary had occurred by throwing articles of clothing around and removing some items from the house. He threw the gun into a lake and disposed of other items in a ditch and the river. After this, he went home and called the police.

When asked by the police, Harper told them his father kept a .38 special in a bedroom closet. This was false. He added that he had purchased bullets at a hardware store and then returned them because they were not the type his father wanted. The police later found some of the items disposed of by Harper. The individual from whom Harper had wanted to purchase a .38 special or .357 notified the police of this fact. When Harper set up an appointment with this individual, the police put a tape recorder on him and taped the conversation with Harper. Nothing incriminating was on the tape.

While tracing guns sold through a publication, Bargain Mart, the police contacted Vernon Priddy who described the person who purchased the gun from him. This description fit Harper, and subsequently at a lineup, Priddy identified Harper as the purchaser. Harper was then advised of his constitutional rights and was placed under arrest for two counts of murder. At first, he maintained he was not involved and had not purchased a gun. A few minutes later, he said he would make a statement and did so. He confessed to purchasing the gun and killing his parents. He also showed the police where he had disposed of the gun, which was recovered by divers.

Harper relied upon a defense of insanity. He testified in his own defense. His testimony was that his mother was becoming increasingly violent towards his father, that his father was depressed, and asked Harper to kill him. After repeated requests by his father, Harper testified, he decided to kill him. He then told the jury how he purchased the gun and how he killed his father and mother.

Harper testified he did not want to do it, but kept hearing his father's voice telling him to do it. He testified he went to his parents' room, that his father pointed to his mother, and yelled that he should shoot her. He then screamed for Harper to shoot him.

A psychologist called by Harper diagnosed him as having a schizophrenic form disorder and that he would not have full faculty of knowing right from wrong when suffering from an episode of the disorder. He also testified that Harper would not be able to control his action because of the belief he was under his father's control. A psychiatrist also confirmed the diagnosis of the psychologist.

Various lay witnesses for the Commonwealth testified that Harper was normal in all respects before and after the night of the murders and during subsequent interviews.

The jury found Harper guilty. After the penalty phase of the trial, the trial court submitted six mitigating and two aggravating factors to the jury. The jury recommended a death sentence on each murder, and the trial court accepted each recommendation in sentencing Harper to death.

Harper has several assertions of error on the voir dire. He argues that four of the prospective jurors should have been excused for expressing a reservation about the defense of insanity. After the expressions of doubt, each juror was questioned and in each instance stated an ability to follow the law on an insanity defense. Curiously two of these jurors were excused by the Commonwealth. No error was committed here.

For some reason, Harper complains that the trial court should have excused a juror reluctant to impose the minimum sentence. As this juror was excused by the Commonwealth, it is impossible to see how Harper was prejudiced. Two jurors were excused for cause, as they were unmistakably opposed to the death penalty. Harper argues this is error. We have reviewed the evidence and are of the opinion both were properly excluded in accordance with Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); and also Wainwright v. Witt, --- U.S. ----, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), which held in a death penalty case a prospective juror could be excluded for views which would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath.

Harper wrote a letter to the trial court confessing to the murders. This letter was made part of the record and sealed. It was not used at trial. The argument that the trial court should have recused himself as a consequence of this is totally meritless.

A pretrial motion to suppress any oral or written statements made by Harper was filed. The basis of the motion was that they were made under duress without a knowing and voluntary waiver of right to counsel and to remain silent. A suppression hearing was held, and at the conclusion the trial court ruled the statements admissible. This ruling was not challenged on the motion and grounds for new trial filed by Harper. In his brief, he complains about the trial court not making findings of fact required by RCr 9.78. The Commonwealth's brief on this point acknowledged that a portion of the tape of the suppression hearing could not be found and transcribed. This is when Harper leaped into the fray on this point and claimed, by supplemental brief, that he had unlawfully been questioned by the police after he had requested counsel. Harper misses the point. If he is displeased by the ruling of the trial court, it is up to him to show that the ruling of the trial court is clearly erroneous. In order for us to have a complete review of this assertion, it was incumbent upon Harper to supply the transcript of the hearing. Our rules make provision for situations such as this where a portion of the tape is lost. CR 75.13 provides for a narrative statement if the proceedings at the hearing cannot be transcribed. We see no reason why this procedure could not have been followed here. In its present posture, we have the statement read at trial. The statement begins with the Miranda warning and Harper saying he understood. Then after a detailed confession by Harper, he asks to talk with his attorney. There were other questions by the police going over the same matters contained in the confession. The trial court did not permit any of the questions and answers to be heard by the jury after the request to see his lawyer.

The partial transcript of the suppression hearing contains the testimony of one of the police officers who interrogated Harper and Harper's testimony. In this portion, Harper testified that he requested an attorney before he made the statement in addition to the request made at the conclusion of the statement while being questioned. The police officer testified that he advised Harper he could stop the questions at any time, but that Harper said he wished to go on. RCr 9.78 provides that the ruling of the trial court is conclusive if supported by substantial evidence. Hamilton v. Commonwealth, Ky., 580 S.W.2d 208 (1979). Harper has made no effort to demonstrate that the ruling is clearly erroneous. In the absence of any showing to the contrary, we assume the correctness of the ruling by the trial court.

The provisions of CR 75.13 provide a complete vehicle for an appellant to remedy the lack of part of a hearing if he feels that this would be helpful to his cause. CR 75.13 provides:

(1) In the event no mechanical or stenographic record of the evidence or proceedings at a hearing or trial was taken or made or, if so, cannot be transcribed or are not clearly understandable from the tape or recording, the appellant may prepare a narrative statement thereof from the best available means, including his recollection, for use instead of a transcript or for use as a supplement to or in lieu of an insufficient mechanical recording. This statement shall be served on the appellee, who may serve objections or proposed amendments thereto within 10 days after service upon him. Thereupon the...