Henderson v. Com.

• Decision Date: 22 March 1974
• Parties: George Thomas HENDERSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 454

507 S.W.2d 454

George Thomas HENDERSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

March 22, 1974.

Terrence R. Fitzgerald, Deputy Public Defender, Louisville, for appellant.

Ed W. Hancock, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee.

PALMORE, Justice.

George Thomas Henderson appeals from a judgment sentencing him to life imprisonment pursuant to the verdict of a jury finding him guilty of murder. KRS 435.010. For the reasons hereinafter stated, we have reached the concludion that the conviction must be reversed for a new trial.

Around midnight of December 19--20, 1972, Mrs. Mary Evelyn Wilson was killed in her home on Preston Street in Louisville. Her death resulted from several blows on the head, evidently inflicted by a hammer.

As best we can make out from the evidence, the house in which Mrs. Wilson lived consisted of two or more floors and was shared by her own immediate family and the families of two married daughters. Mrs. Wilson and her young son Robert occupied an upstairs bedroom which was connected to a bathroom by a short hallway. The bathroom opened on its other side into a small storage room. Both the bedroom and the small storage room had doors opening to an outer hallway, so that a person could enter the bedroom from the outer hall and return to the hall through the bathroom and storage room, or vice versa.

The appellant and Mrs. Wilson were acquainted, and on at least one occasion before the night in question he and some other people had come to her place and they had all gone out together.

At approximately 11:00 P.M. on December 19, 1972, Henderson went to see Mrs. Wilson for the purpose, he says, of asking about a couch she had offered to give him. Her son Robert, 13 years of age, was in the storage room building a bird cage. According to his testimony Henderson wanted her to cash two checks for him, which she declined to do, and after a short time he left. An hour or so later Robert was downstairs, and as he returned upstairs with his nephew David Doyle, also 13 years of age, he discovered a man, naked above the waist, going through the dresser drawers in the bedroom. At first David thought that the intruder might be Mrs. Wilson's husband, who is said to have been sleeping in a back room, but then he was more clearly seen and was later identified by the boys as Henderson (whom they had not known before that night). They saw him run down the stairs and out of the house. Shortly thereafter Mrs. Wilson's dead body was found submerged under hot water in the bath tub and covered over with clothing, soap cartons, a pocketbook and other miscellaneous articles. The head and handle of a claw hummer were lying separately on the floor nearby. Among the items of evidence gathered in the bathroom was Henderson's sport jacket, in which his billfold and two forged checks were found. One of his fingerprints was lifted from a telephone in the bedroom.

Henderson, 35 years of age, lived part of the time over a bar in which he was employed and part of the time in the home of a friend named Shelton. At approximately 2:00 A.M. of December 20, 1972, he came to Shelton's place, washed his trousers and a pair of socks in the bathtub, paid Shelton a $10 debt, and departed. Traces of blood were later found in one of the socks and in a towel taken by investigating officers from Shelton's bathroom.

Testifying in his own behalf, Henderson claimed that he had been to Mrs. Wilson's house only once during the night in question and that the visit had lasted some 20 minutes, during which time she gave him one drink of whiskey and he pawned his coat (with the billfold and forged checks in it) to her for $10. He denied having asked her to let him have any money for the checks. He denied also having touched the telephone. His explanation of the blood later found in his clothing was that he had been in a barroom fight some days before in which a girl had cut her hand on a glass. His sleeping room over the bar at which he worked did not have any facilities for washing his clothes. He denied having had any unpleasantness with or done any harm to Mrs. Wilson.

Those are the bare outlines of the case. Further details will be mentioned as they appear pertinent to the questions raised on the appeal, which are as follows:

1. The trial court refused to instruct on voluntary manslaughter as a lesser degree embraced within the charge of murder.

In order to require or to authorize an instruction on voluntary manslaughter the evidence must justify an inference that the killing resulted either from a sudden affray or from sudden heat of passion induced by reasonable provocation. In a murder case, evidence of intoxication calls for a voluntary manslaughter instruction if, but only if, it would justify a reasonable doubt on the part of the jury that at the time of the offense the defendant had the capacity 'of appreciating the nature or quality of his acts and . . . the ability to entertain malice or criminal intent. In other words, it must amount virtually to insanity.' Hall v. Commomwealth,258 Ky. 744, 81 S.W.2d 404 (1935). There being no evidence, direct or circumstantial, of such a degree of intoxication in this instance, drunkenness alone as a possible basis for a voluntary manslaughter instruction may be dismissed from further consideration. Mere drinking, several beers, or even obvious drunkenness is not enough. Cf. DeBerry v. Commonwealth, Ky., 289 S.W.2d 495, 497 (1956); Caine v. Commonwealth, Ky., 491 S.W .2d 824, 832 (1973).

Mrs. Wilson was discovered by her daughter Virginia Doyle (David's mother) and another daughter who removed her from the tub and placed her body on the bathroom floor. In the process, of course, they took some of the debris out of the tub, but there is no evidence that the condition of the premises was otherwise disturbed before the arrival of the police, shortly thereafter. Both the bathroom and bedroom were in a state of considerable disarray. Newspapers, magazines, towels, and a washcloth strewn about the floor were all bloodstained, as were some of the exposed waterpipes under and near the washbowl. Mrs. Wilson's head was covered with blood, and some of that had spread onto the floor. She was nude except for one leg of the slacks she had been wearing. One of her shoes was under the edge of the tub and the other lay three or four feet away at the foot of a washing machine. And as we have said before, Henderson's coat and the head and handle of a claw hammer also were found on the bathroom floor. The hammer parts showed bloodstains. Henderson's coat was found beside a pillow slip into which several articles such as a clock-radio and a tape recorder had been stuffed.

As described by investigating officers, 'The bathroom was in disarray. It showed of a struggle . . . There was blood splattered on the wall and also on the wall beside the victim.' (Emphasis added.)

Except for the bloodstains and body, the bedroom was in much the same state as the bathroom. Apparently numerous articles of clothing had been taken from a chest of drawers and thrown about the room. The doors of a metal storage cabinet standing next to the head of the bed had been pried apart at the top, and a small metal money box Mrs. Wilson had kept in this cabinet lay open and empty on the bed. ¹ The cabinet had been secured by a padlock and short chain threaded through the door handles and, oddly enough, the key was in the lock.

'It is fundamental that, if there is any evidence tending to show that a homicide is manslaughter, the accused is entitled to an instruction upon that hypothesis.' (Emphasis added.) Shorter v. Commonwealth, 252 Ky. 472, 67 S.W.2d 695, 696 (1934). 'Ordinarily, where no eyewitness testifies, the court should instruct as to murder, manslaughter and self-defense.' Thorpe v. Commonwealth, 301 Ky. 541, 191 S.W.2d 572, 573 (1946).

Though it seems likely that the assault on Mrs. Wilson emanated solely from a quest for money ahd that much of the disarray occurred afterward, it can scarcely be denied that there was evidence tending to show an affray. There was even less evidence of a struggle in Sewell v. Commonwealth, 284 Ky. 183, 144 S.W.2d 223 (1940), and in Stanley v. Commonwealth, Ky., 380 S.W.2d 71 (1964), yet a manslaughter instruction or instructions were required in both. In the absence of testimony by any person purporting to have been an eyewitness, we cannot avoid concluding that Henderson was entitled at least to an instruction on voluntary manslaughter.

In Salisbury v. Commonwealth, Ky., 417 S.W.2d 244, 247 (1967), cited by the Commonwealth the killing was accomplished 'in one swift, violent act,' 417 S.W.2d at p. 246, and in the presence of an eyewitness. There was no evidence of an affray and no evidence of sufficient provocation to ground a theory of sudden heat of passion. Hence it was held that no instruction on manslaughter was required. That case is clearly distinguishable from this.

2. The trial court declined to instruct on insanity and would not permit access to certain information at the disposal of the state probation and parole authorities.

A week before the trial Henderson, through counsel, presented a motion stating that he had been consulting with psychiatric experts with regard to a defense of insanity and that the Commissioner of Corrections and his subordinate personnel were in possession of information concerning his past conduct which the consulting psychiatrists needed in order to assess his mental condition, but these officers of the state had refused to divulge the information on the ground that it was privileged by virtue of KRS 439.510. The motion sought an order requiring disclosure. It was denied.

On the day of the trial an appropriate officer of the Dividion of Probation and Parole appeared in response to a subpoena duces tecum issued at the instance of Henderson's counsel, and...