Kagebein v. State

• Decision Date: 09 July 1973
• Docket Number: No. 5665,5665
• Citation: 254 Ark. 904,496 S.W.2d 435
• Parties: Joe Newton KAGEBEIN, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 435

496 S.W.2d 435

254 Ark. 904

Joe Newton KAGEBEIN, Appellant, v. STATE of Arkansas, Appellee.

No. 5665.

Supreme Court of Arkansas.

July 9, 1973.

Wright, Lindsey & Jennings, by H. William Allen, Little Rock, for appellant.

Ray Thornton, Atty. Gen., by James A. Neal, Asst. Atty. Gen., Little Rock, for appellee.

JOHN C. DEACON, Special Chief Justice.

The appellant, Joe Newton Kagebein, at the time 15 years of age, was charged by information, along with three other teenagers, with first degree murder because of the death of Jimmy Wayne Wampler. Kagebein's motion for a severance was granted, and after a jury trial, he was found guilty with no recommendation for leniency. Judgment was entered sentencing him to death in the electric chair. This Court appointed new counsel to represent appellant on appeal. Twelve points for reversal are presented, some of which have merit and require reversal.

A confession taken from Kagebein was introduced into evidence and Kagebein also testified personally. None of his companions testified, all of them refusing to answer questions on the ground that it might incriminate them.

The evidence showed that on November 7, 1970, Joe Newton Kagebein, who had been living with his grandmother in DeWitt for a few months, was in the company of three older teen-age boys, Teddy Kittler, Benny West and Larry Mannis. Mannis borrowed a car, got some money and bought some beer. They consumed the beer, and around 9:00 p.m. Mannis went to a liquor store in Gillett through the back entrace, but was told by the proprietress that she was not going to sell him anything to drink because of his age. Kagebein says he was asleep at that point, but awoke sufficiently to hear the other boys talking about a man that would buy them some beer if they would let him 'do that act on them.' He fell asleep again and says he was not awake when his companions came in contact with Jimmy Wayne Wampler, a 27-year-old Cross County farmer.

About 10:00 p.m. that night, Wampler came into the same liquor store where Mannis had been declined service and Wampler bought three six packs of beer. Kagebein says that he was first aware of Wampler when he awoke and found Wampler and the other boys arguing in the car. Kagebein noticed that when Wampler got out of the car he was wearing a ladies' night gown.

Neither Kagebein's confession nor his testimony presented a very clear picture of the facts. The account was disjointed and difficult to follow. Kagebein did testify that he was sick from the beer that he had consumed, that he was with Benny West on the other side of the car, and that darkness prevented him from seeking what was going on a part of the time. He said that Wampler ran after the boys and that Wampler knocked one of the boys against the car and knocked Teddy Kittler into a ditch. He said that all of the boys held guns on Wampler at different times, but claimed that this was done to keep Wampler off them. Kagebein did admit that he hit Wampler once on the right side of the head with a .22 to protect the other boys and that after he struck this blow, Mannis took the gun away from him. His confession contained a statement that all four of the boys knocked Wampler down, and that Wampler yelled at them not to shoot him. Kagebein said that Teddy Kittler shot Wampler while Wampler was on the ground, but that he did not know who administered the bruises and marks on Wampler's back and chest.

After Wampler was shot, the boys started back to DeWitt and they let Teddy Kittler out at his home. The other three boys then drove on to the court square in DeWitt and located Chief of Police James Mason and Officer Wendell Best, who were on patrol. Mannis and West got out of the car and began telling them about a killing south of DeWitt. Mannis was in a very upset condition and fainted on the sidewalk. Mason and Best testified that there was no evidence of physical violence on any of the boys and that the boys did not appear to be drunk. Chief Mason radioed other law enforcement officers and they had West lead them to the scene described by the boys. When the officers arrived there they found Wampler's body in a bruised and multilated condition. The only clothes on the body were a pair of boots and a torn piece of ladies' panties on one leg, with a ladies' night gown lying under and partially draped over the head. Wampler's clothing was found lying in a neat bundle on one side of his truck.

The first point urged for reversal is that the introduction of hearsay statements allegedly made in the presence of appellant was a denial of his right to remain silent. On two occasions during trial, the State elicited testimony, over objection, from the police officers to make a showing that statements were made by Kagebein's companions in his presence while he and the others were in police custody, and that Kagebein remained silent in the face of the statements.

Patrolman James Oswald, one of the State's witnesses, testified that he was at the hospital with Mannis and Kagebein, that Mannis was unconscious for about an hour, and that after the doctor revived him a little bit and Mannis kept saying he was seeing a dead man, a nurse or someone asked him, 'How do you know it was a dead man?' and that Mannis replied, 'Because we killed him.' The State specifically asked patrolman Oswald whether Kagebein denied the statement, and received a negative reply from Oswald.

The second statement was detailed by Arkansas State Trooper Travis Nash who, over objection, with testimony to specifically indicate that Kagebein was in close enough proximity to hear the remark, said that 'one of the boys' was laughing about Joey jumping up and down on the man's stomach after he was dead and that Kagebein did not deny the statement at the time.

The State's questioning and the court's ruling on the defense objections indicate that the testimony of Oswald and Nash was offered as an exception to the hearsay rule, commonly called the 'tacit admission rule.' Kagebein was in police custody and in the presence of the police when both statements were made. He had not yet been advised of his rights and could not have intelligently waived them. Under these circumstances, Kagebein's silence must be assumed to be an assertion of his right against self-incrimination. The introduction of the hearsay statements was a denial of Kagebein's right to remain silent and constituted prejudicial error.

This rule affecting tacit admissions was stated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966):

'In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.'

The effect of the Miranda decision upon the tacit admission rule has been recognized by this Court. Gross v. State, 246 Ark. 909, 440 S.W.2d 543 (1969).

Even prior to Miranda, our Court rejected this type of testimony under certain circumstances, as indicated by Anderson v. State, 197 Ark. 600, 124 S.W.2d 216 (1939), where we said:

"One cannot be compelled, when not offering himself as a witness in his own defense, to give evidence in court tending to incriminate himself. Much less should he be compelled to do so out of court. If silence in such case is evidence of guilt, then one charged with crime must, under penalty of himself creating most damaging evidence against himself in support of the charge, enter into a controversy of words with every idle straggler who may choose to accuse him to his face.' Merriweather v. Commonwealth, 118 Ky. 870, 82 S.W. 592, 594, 4 Ann.Cas. 1039.'

The Missouri Supreme Court in State v. Penn, 413 S.W.2d 281 (1967), considered this point and said:

'Sheriff Bethel's relation of what (the third party) said was 'purely hearsay.' State v. Higgins, 321 Mo. 570, 12 S.W.2d 61. The State apparently offered the testimony on the theory that appellant's silence when (the third party's) statements were made in his presence, constituted an admission of his guilt and an exception to the hearsay rule. If this was the prosecuting attorney's theory, the testimony was inadmissible. 'The rule of the law in this state is well settled that, while the defendant is in custody or under arrest, statements of a third party, made in his presence, and not denied, are inadmissible at the trial.''

Some of the appellant's other points for reversal should be mentioned, for they may arise upon a retrial. The appellant urges that the exclusion of evidence of prior homosexual advances of the deceased was error. The appellant's defense, even though he was being tried as an accessory before-the-fact to a charge of first degree murder, was that the death of Wampler came about not as a part of a pre-arranged plan to rob and kill him, as argued by the State, but out of resistance to his homosexual advances. Appellant does not argue that the evidence of homosexuality justifies homicide but does insist that he should have been permitted to introduce evidence tending to corroborate the claim that homosexual activities preceded the killing. He urges this was important at least to the jury's consideration of the degree of homicide committed.

The State anticipated this defense and as part of its case in chief presented evidence designed to rebut any suggestion that Wampler might have bargained to trade beer for homosexual favors. Wampler's cousin, J. A. Wampler, testified that the deceased usually bought beer before going deer hunting. The owner of a dress shop in Stuttgart testified that it would be uncomfortable for a person as large as Wampler to wear the size night gown and panties found with the deceased's body.

Thus the issue of homosexuality was before the jury, but only through the evidence offered by the State. From voir dire through the defense...