Kelly v. Com.

• Decision Date: 11 July 1989
• Docket Number: No. 1296-86-1,1296-86-1
• Citation: 382 S.E.2d 270,8 Va.App. 359
• Parties: Patrick Lester KELLY v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 270

382 S.E.2d 270

8 Va.App. 359

Patrick Lester KELLY v. COMMONWEALTH of Virginia.

Record No. 1296-86-1.

Court of Appeals of Virginia.

July 11, 1989.

Mark L. Earley (Tavss, Fletcher & Earley, Norfolk, on brief), for appellant.

James L. Chin, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Leah H. Darron, Asst. Atty. Gen., on brief), for appellee.

Present: BAKER, DUFF and HODGES, JJ.

HODGES, Judge.

Patrick Lester Kelly (appellant) was convicted by a jury of the first degree murder of his wife, Margaret Brown Kelly. He was sentenced in accordance with the jury's recommendation to life imprisonment. On appeal, Kelly raises the following issues: (1) whether his confession was obtained in violation of his sixth amendment right to counsel and, therefore, should have been suppressed; (2) whether his confession was involuntary and, therefore, should have been suppressed; (3) whether the trial court erred by admitting highly inflammatory evidence of three prior assaults by him against his wife; (4) whether the trial court erred by admitting into evidence highly inflammatory photographs of the victim; (5) whether the trial court deprived him of his fourteenth amendment due process right by granting jury instruction number nine which informed the jury that it "may infer that every person intends the natural and probable consequences of his acts;" and (6) whether the trial court erred in failing to set aside the verdict as being contrary to the law and evidence. For the reasons set forth below, we reverse in part and affirm in part. Because the proceeding must be remanded for a new trial, we do not address the question of the sufficiency of the evidence.

I. FACTS

On Saturday, August 17, 1985, Kelly, who was in jail on a charge of maliciously wounding his wife on June 29, 1985, was released on bond on the condition that he have no contact with his wife until after his trial. C.W. Megginson, who posted bond for Kelly, dropped him off at Southland Corporation about a half mile from his home between 8:45 p.m. and 8:50 p.m. Kelly purchased two pints of liquor at a nearby North Carolina liquor store a few minutes before 9:00 p.m. He told the McHorneys who worked there that he had spoken to his wife earlier and she agreed to put his clothes and tools in the car. He said he was going home that night to pick up his things and then he was going to a friend's house in Virginia Beach to spend the night. Kelly learned from the McHorneys that his wife had bought some liquor there earlier with someone else. Margie Elings, a friend, testified that Kelly called her that evening to find out where his wife was. He told Elings, "I'll find her, I'll kill her."

Around 2:00 p.m. the next day, Russell Hastings saw Kelly. He noticed a dark stain on Kelly's shirt near the shoulder. Kathleen McCullen also saw Kelly on Sunday. She observed blood on his shirt, hand, and cheek and thought he smelled like his wife's house, which always smelled like animals. After Kelly left McCullen, he went to the Cox's home. They also observed blood on his shirt. Kelly showered and borrowed clean clothes and tennis shoes from them. He ripped up his shirt and threw it in the garbage, but left behind his boots and pants. Kelly told Mr. Cox that his wife had testified against him and that if he found her, he was going to "hurt" her. He also left his car keys with Mrs. Cox and told her not to give them to anybody and to "get rid of them" if he did not return for them in a couple of days. The Coxes drove Kelly to a bar and left him there at 7:30 p.m.

The next morning, Monday, August 19, 1985, at 10:00 a.m., Kelly bought two pints of liquor from Mr. Williams at the same liquor store. Kelly asked to speak privately with Williams. He told Williams that he had gone home that morning and found his wife's dead body, which the dogs were eating. When Kelly left, Williams advised the Sheriff of Currituck County, North Carolina, who dispatched a deputy to the Kelly home and notified Chesapeake authorities. Officers went to the home, but, finding nothing amiss, left. There was loud music playing in the house and dogs came to the windows. Subsequently, Deputy Brinkley found the defendant lying on the railroad tracks behind Southland Corporation and notified the Chesapeake police. Kelly told Deputy Brinkley and Officer Fischetti that he was worried about his wife because he had been to her house and her car was gone and she was not there but loud music was playing. He later changed his story and said that he had not been by the house because the judge told him to stay away.

Kelly accompanied Officers Corriveau and Fischetti and Brinkley to his wife's home to get his clothes and tools. Officer Fischetti called for Mrs. Kelly, but received no answer. Kelly approached the house and removed the screen from an open front window. When he did, several dogs exited, causing him to step back. The police ordered Kelly to stay away from the house. Officer Fischetti looked into the house through another window and observed part of a body on the floor. He then stood on something and looked through the screenless open window and observed Mrs. Kelly's body sprawled on the living room floor.

When Officer Fischetti approached the front door, Kelly began screaming that his wife had been raped and was dead. Officer Fischetti entered the house and determined that Mrs. Kelly was dead. ¹ The defendant became disorderly and was arrested. At 5:03 p.m., Kelly was advised of his rights and elected to waive them. Detective Griggs questioned Kelly, but Kelly disclaimed involvement in his wife's death. When questioned later in the evening, he again denied involvement. However, the next afternoon on August 20, 1985, after initially denying involvement, Kelly confessed to Detective Griggs that he killed his wife. He claimed that he went home Friday evening to get his clothes and fell asleep on the couch. When his wife came home after midnight and found him sleeping on the couch, she went into a rage and tried to throw a liquor bottle at him. He admitted hitting her numerous times with his fist, but said he could not remember if he kicked her or hit her with anything else. When she stopped moving, he was scared. He had been drinking earlier. He stated that he awakened the next morning and found her dead. He returned to the house later and spent Sunday night in the house. Monday morning he saw that the dogs had eaten her arm. He said that he loved his wife and did not mean to kill her. Later that same day, Kelly also called Lyle Cox and admitted killing his wife.

II. SIXTH AMENDMENT RIGHT TO COUNSEL

On appeal, Kelly contends that the trial court erred in admitting his confession into evidence because it was obtained in violation of his sixth amendment right to counsel. Relying on Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), ² Kelly asserts that his sixth amendment right to counsel attached at his initial appearance in juvenile and domestic relations court on the morning of August 20, at which time he requested the appointment of counsel. A few hours later, before he had spoken to counsel, the police initiated questioning of him and obtained his confession. Although Kelly waived his rights prior to confessing, Jackson renders invalid any waiver of the defendant's right to counsel for a police-initiated interrogation after his assertion of his right to counsel at an arraignment or similar proceeding. Id. at 636, 106 S.Ct. at 1411. The Commonwealth, however, argues that Kelly's sixth amendment right to counsel was not violated because his right had not attached when he made his statement. See Hunter v. Commonwealth, 3 Va.App. 221, 225, 349 S.E.2d 154, 156 (1986) (issuance of an arrest warrant and the accused's arrest does not trigger the sixth amendment right to counsel).

Although the transcript of the July 2, 1986 suppression hearing was filed late and, therefore, cannot be considered under Rule 5A:8 of the Rules of the Supreme Court of Virginia, we will proceed under the authority of Turner v. Commonwealth, 2 Va.App. 96, 341 S.E.2d 400 (1986), to decide whether the Jackson ruling applies in this case. "If the record on appeal is sufficient in the absence of the transcript to determine the merits of the appellant's allegations, we are free to proceed to hear the case." Id. at 99, 341 S.E.2d at 402. The court's letter opinion of July 22, 1986, regarding the suppression issue, which is part of the record, reflects that the Commonwealth conceded that the Jackson rule, if applied retroactively, would require suppression of Kelly's August 20th statement. In overruling the motion to suppress, the court ruled that Jackson should only be applied prospectively. Because the Commonwealth conceded that the Jackson ruling, if applied here, would result in suppression of Kelly's statement, the only issue before the court at the suppression hearing was whether Jackson applied. It is likewise the only issue before this court on appeal.

On appeal, Kelly contends that the Jackson ruling clearly applies in this case because Jackson was handed down before the suppression hearing on the issue and most importantly before his trial and conviction. The Attorney General on appeal concedes this also. Arguing, however, that it is not bound by the concession of the Commonwealth's Attorney at the suppression hearing, the Commonwealth contends that Kelly's sixth amendment right to counsel had not attached when the police initiated questioning of him and obtained his confession. The Commonwealth contends that Kelly's initial appearance before a clerk of the Chesapeake Juvenile and Domestic Relations Court did not amount to an adversarial judicial proceeding. ³ Therefore, Jackson does not hold Kelly's waiver of his right to counsel invalid because his sixth amendment right to counsel had not attached at the time. Thus, the Commonwealth on appeal contends that the court's denial of the ...