Karl v. Com.
| Decision Date | 23 March 1956 |
| Citation | 288 S.W.2d 628 |
| Parties | Russell Stephen KARL, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Harry B. Miller, Jr., Lexington, for appellant.
J. D. Buckman, Jr., Atty. Gen., John B. Browning, Asst. Atty. Gen., for appellee.
The appellant, Russell Stephen Karl, was convicted of the crime of armed assault with intent to rob. KRS 433.150. He appeals from a judgment sentencing him to serve twenty-one years in the state penitentiary. It is contended that the trial court erred: (1) in ruling a written confession admissible in evidence; (2) in refusing to permit appellant to introduce evidence concerning the circumstances surrounding the making of the confession after admitting the confession in evidence; and (3) in admitting incompetent testimony.
On February 12, 1955, a liquor store in Lexington, Kentucky, was robbed of cash and checks. The clerk testified that three men entered the store about eleven o'clock at night. One of the men ordered a beer. As the clerk leaned over to get the beer, a gun was stuck in his back and he was told to open the safe, which he did. He was made to lie face down on the floor while money and checks were taken from the safe and cash register. The men were in the store a very short time and were out of his sight when the clerk got to his feet. He later was able to identify Russell Curry and Edward Duke as two of the participants in the robbery, but could not identify the appellant.
Curry, Duke, and the appellant were arrested in Florida and returned to Dayton, Ohio, where appellant signed a written statement, confessing his participation in the Kentucky Holdup. He was then returned to Lexigton for trial. Upon a hearing in chambers, held pursuant to KRS 422.110(2), the trial court held the confession to be admissible, over the objection of appellant.
The witnesses at the hearing in chambers were Sgt. Charles Teeter, a Dyaton police officer; appellant; his wife; and Sgt. Robert Duncan, a Lexington police officer. Teeter accompanied appellant on his return from Florida and took the statement.
The evidence at the hearing in chambers showed that appellant was arrested under a fugitive warrant issued by Ohio authorities, charging him with armed robbery. This charge was dismissed subsequent to his return to Ohio. He was arrested on February 20, 1955, in a motel in Holly Hill, Florida, in company with Curry and Duke, his brother-in-law. The three men were held in jail in either Holly Hill or Daytona Beach, Florida, pending the arrival of police officers from Dayton, Ohio.
The confession was read by Sgt. Teeter at the hearing. It was in question and answer form. Sgt. Teeter and a detertive witnessed the statement, in which appellant gave details of his participation with Curry and Duke in the Lexigton robbery. The confession was concluded with answers by which appellant admitted the statement to be true and given of his own free will, without any mistreatment or promise of immunity and with knowledge of the consequences of his signing.
Teeter stated that the Dayton, Ohio, police officers arrived in Daytona Beach, Florida, on February 24. Another participant in some Dayton, Ohio, robberies had confessed, implicating Curry and Duke. Curry gave a statement on February 25, admitting his part in the Ohio and Lexington, Kentucky, robberies. This confession did not implicate appellant in the Ohio robberies. Duke signed this statement in Florida, and made a further statement in Dayton, Ohio, on March 3, 1955.
Appellant was first questioned about the robberies when taken from the Holly Hill jail to the Daytona Beach jail on February 27. Teeter said he questioned appellant about twenty minutes, but appellant stated it was about two hours. Extradition from Florida was waived by the appellant. The police officers, with the three prisoners, started the return trip to Ohio on February 28 or March 1, and arrived in Dayton late in the evening on March 2.
The return trip was made in a station wagon, with the prisoners seated together fastened by safety belts, to which each was handcuffed. Their movements were restricted, but by bending over, they were able to use their hands to smoke. Appellant complained of the quality and lack of accommodations at the various jails in which he was confined. He said he was unable to shave and bathe, the food was bad, and he had to sleep on the floors. From the time of his arrest, he was unable to communicate with his wife or counsel, despite his requests. His wife made calls, but was refused the right to talk to him.
Appellant stated that he was questioned during a ten or eleven hour period on the trip from Daytona Beach to Knoxiville, Tennessee, where an overnight stop was made. From Knoxville to Dayton, he was asked continually when he was going to make a statement, and was told that the others had confessed and it would be easier on him if he did likewise. Sgt. Teeter said that the robberies were discussed freely on the return trip but he denied questioning appellant.
The morning after returning to Dayton, appellant made his written statement while at police headquarters. Teeter stated it took a short time to prepare it after he had explained appellant's rights to him. Appellant gave the following reason for making the statement:
Appellant also stated that he read the other statements and said that he would sign the same thing but the police officers inisisted that he must make his own statement, which was reworded and rephrased at the suggestion of Sgt. Teeter to bring it into accord with the other statements.
Appellant complained of being denied counsel and bail, but when brought before a municipal court judge in Dayton, he signed a waiver of extradition for his return to Kentucky without making any request for counsel or bail. Duncan said he was present at the examing trial of appellant in the Lexington police court. He said appellant there admitted signing the statement and its truth. Appellant denied the truth of the confession, and was not represented by counsel at the examining trial.
Upon this proof, the trial judge admitted the statement in evidence. No contention is made that the confession was induced by threats, fear, or hope of reward.
The so-called 'Anti-Sweating Act', KRS 422.110, was enacted in its present form in 1942. For convenience, it is quoted:
'(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.
The constitutionality of the present statute has been upheld. Bass v. Commonwealth, 296 Ky. 426, 177 S.W.2d 386. It was there held that the practice of submitting the question of the admissibility and competency of the confession to the trial judge for a decision in chambers did not violate Kentucky Constitution Section 7, preserving the ancient mode of trial by jury. Under the present statute, no error is committed in failing to submit the question of admissibility of the confession to the jury. Bass v. Commonwealth, supra; Logan v. Commonwealth, 308 Ky. 259, 214 S.W.2d 279.
Passing for the present a discussion of the first ground urged for reversal, we are asked to determine whether proof of the circumstances under which the confession was obtained is admissible on the trial in order for the jury to determine the credibility of the confession and witnesses concerning it and the true facts of the issue involved. The question is presented to this Court for the first time.
The present statute places the duty of determining 'the competency and admissibility of any alleged confession' upon the trial judge 'from evidence heard by him' in chambers. It should be noted that the statute says nothing about credibility of the witnesses or statement. The problem may be stated thusly: After the trial judge permits a confession to be introduced in evidence, should the jury be allowed to consider the circumstances under which the confession was made? At this point, the competency and admissibility have been decided. The purpose of introducing this type of proof is to enable the jury to determine the credibility of the statement and the true facts with reference to the triable issue.
In determining the purpose of the 'Anti-Sweating Act', it is well to consider the statute in force prior to 1942. The previous statute was enacted in 1912 as Section 1649b, Carroll's Kentucky Statutes, and was substantially the same as our present statute so far as we are presently concerned, except 'sweating' was defined, a penalty was provided for its violation, and there was no provision for the trial judge to determine the competency...
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