Hendley v. Com.
| Citation | 573 S.W.2d 662 |
| Parties | Terrell Lynn HENDLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Decision Date | 31 October 1978 |
| Court | United States State Supreme Court — District of Kentucky |
Jack E. Farley, Public Advocate, Rodney McDaniel, Asst. Public Defender, Frankfort, for appellant.
Robert F. Stephens, Atty. Gen., Mark F. Armstrong, Asst. Atty. Gen., Frankfort, for appellee.
On April 1, 1977, the Simpson County Grand Jury returned two indictments against the appellant; one charged him with first-degree arson (KRS 513.020(1)) and the other charged him with two counts of murder (KRS 507.020(1)(b)), to all of which the appellant pled not guilty. A two-day trial resulted in the appellant's being found guilty of arson in the third degree and two counts of manslaughter in the second degree. His punishment was fixed at five years' imprisonment on the arson charge and ten years' each on the manslaughter charges. The three sentences were ordered to run consecutively.
The evidence discloses that at or about 3:00 or 3:30 a. m. on March 27, 1977, an apartment building in which the appellant's girl friend resided was intentionally burned by the appellant, causing the death of two persons. The fire started from a burning bush at ground level, at a back outside corner of the apartment, about 24 inches from the house. The appellant was interrogated on several occasions. On the day of the fire, at about 3:00 p. m., after having been warned of his Miranda rights, the appellant expressed a willingness to talk to his interrogator. He was questioned off and on for about two hours. He stated that he had not been at the site of the fire until after the fire had started. On the following day, March 28, after again having been advised of his Miranda rights, the appellant again was interrogated; this time for a period of three hours, which included the time necessary for him to receive a polygraph examination. All of the interrogation was placed on a tape recorder. After the interrogation, the appellant gave a four-page voluntary statement in question and answer form.
The appellant stated that during the early hours of Sunday, March 27, 1977, he saw his former girl friend with another fellow at a "Discotheque"; that he left and went to his sister's house, where he used the phone to call his girl friend's apartment; that when he was unable to talk with her on the phone he went to her apartment, tied a rag around a rock, and threw it through a window; and that he then fired a bush, which was on the outside corner of the apartment building, and left. The appellant expressed regret for the fire and the deaths.
After the statement was completed, the appellant and his inquisitor read it, and then made several minor changes at the direction of the appellant.
The witnesses for the Commonwealth who attended the appellant during the time of his arrest stated that at no time did the appellant request a lawyer. However, the appellant stated that he did ask for a lawyer several times, but was refused one and was told that he did not need a lawyer.
On this appeal the appellant argues five alleged errors. First, he contends that the evidence is insufficient to sustain the verdicts of guilty since, allegedly, they are based solely on the appellant's uncorroborated confession. Counsel for the appellant argues this issue in generalities.
RCr 9.60 provides:
"A confession of a defendant, unless made in open court, will not warrant a conviction unless accompanied with other proof that such an offense was committed."
We have examined the transcript of testimony carefully in an effort to determine whether, apart from the appellant's testimony at the trial and apart from his confession made to the officer, the evidence is sufficient to establish the corpus delicti and sustain the verdicts. We are of the opinion that it does. The evidence establishes unequivocally that:
1. The appellant and Gwen Hammond had been going together, but at the time of the fire they were not getting along too well.
2. Gwen saw the appellant around her apartment between 3:00 and 3:30 a. m. on the morning of the fire.
3. Jeffrey Hall saw the appellant in close proximity to the apartment building on the morning of Sunday, March 27, 1977, shortly prior to the fire.
4. The apartment house in which Gwen lived burned.
5. The fire started from a bush which was deliberately set afire. The bush was just outside of and within 24 inches of the apartment building.
6. The fire destroyed the building and killed two persons.
7. The fire was not of accidental origin, but was deliberately set.
8. The fire was reported to the fire department at about 3:40 or 3:45 a. m.
The appellant contends that the Commonwealth failed to establish the corpus delicti. In addressing this matter in Stewart v. Commonwealth, Ky., 561 S.W.2d 660 (1977), we said that the prosecution was required to show (1) a death and (2) that the death resulted from the criminal agency of another, thus establishing the corpus delicti, more recently referred to as the "body of the crime."
Crabtree v. Commonwealth, 260 Ky. 575, 86 S.W.2d 301, 304 (1935), cited by counsel for the appellant, discussed the elements necessary to establish the corpus delicti. We said:
" * * * We deem it not sufficient for establishing the criminal act of its having been maliciously burned to merely show circumstances attending its burning, which in themselves fail to show a cause therefor. * * * "
However, therein we stated, "There was no evidence that the appellant or any strangers were about the barn during the day or shortly before its burning was discovered that evening."
In the case at bar there is the testimony of two witnesses who place the appellant at or in very close proximity to the apartment shortly prior to the fire. Clearly, there is established (1) the burning of the building and deaths from the burning, (2) the fire was caused by having been deliberately set, and (3) the deaths were caused by a criminal act. Counsel for appellant vigorously argues that the only evidence connecting the appellant with the commission of the crimes, other than his confession, is circumstantial. It can hardly be contended by the appellant that he can be found to be the guilty culprit only if he is actually seen igniting the fire. Arsonists don't work that way. Such arguments fail in the face of Hines v. Commonwealth, Ky., 390 S.W.2d 152 (1965). Circumstantial evidence may be considered by the court when weighing the quality of the evidence to establish the body of the crime. Perry v. Commonwealth, Ky., 514 S.W.2d 202 (1974); Peace v. Commonwealth, Ky., 489 S.W.2d 519 (1973).
The corpus delicti was established beyond cavil. We are of the opinion, even excluding the appellant's testimony and his confession, that from the remaining evidence as a whole it would not be clearly unreasonable for a jury to find the appellant guilty. Trowel v. Commonwealth, Ky., 550 S.W.2d 530 (1977).
Next, the appellant argues that his confession was not made voluntarily and was given without the benefit of requested counsel; consequently, it should not have been disclosed to the jury. The criterion by which we have long been guided is that a confession, in order to be admissible, must be free and voluntary; that is, it must not be extracted by any sort of violence or threats. Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897).
KRS 422.110 provides:
"Confession obtained by 'sweating' not admissible.
(1) No peace officer, or other person having lawful custody of any person charged with crime, shall attempt to obtain information from the accused concerning his connection with or knowledge of crime by plying him with questions, or extort information to be used against him on his trial by threats or other wrongful means, nor shall the person having custody of the accused permit any other person to do so.
(2) A confession obtained by methods prohibited by subsection (1) is not admissible as evidence of guilt in any court. The trial judge shall determine the competency and admissibility of any alleged confession under the provisions of this section from evidence heard by him, independent of and without the hearing of the jury trying the case."
Although no hearing separate and apart from the trial to determine the voluntariness of the confession was requested by the appellant or given by the court, the trial judge did hear the facts which preceded the confession and which, the appellant argues, brought forth the confession. After considering these facts and viewing the giving of the confession, the court determined that the confession was proper and permitted it to be introduced into evidence and read to the jury.
We must determine whether the findings of the trial court resulting in the admission were clearly erroneous. Hayden v. Commonwealth, Ky., 563 S.W.2d 720 (1978). The trial judge said ...
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