Kennedy v. State

• Citation: 422 P.2d 88
• Decision Date: 06 January 1967
• Docket Number: No. 3466,3466
• Parties: Emma Breen KENNEDY, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).
• Court: United States State Supreme Court of Wyoming

Page 88

422 P.2d 88

Emma Breen KENNEDY, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).

No. 3466.

Supreme Court of Wyoming.

Jan. 6, 1967.

Oscar A. Hall, Rawlins, for appellant.

Dean W. Borthwick, Deputy Atty. Gen., Cheyenne, for appellee.

Before PARKER, C. J., and HARNSBERGER, GRAY, and McINTYRE, JJ.

Mr. Justice PARKER delivered the opinion of the court.

Defendant, Emma Breen Kennedy, convicted by a jury of second-degree murder and sentenced to a term of from twenty to twenty-one years, has appealed, contending that she was deprived of the right of counsel, that her written confession was inadmissible as not being voluntarily given, that the evidence is insufficient to sustain a verdict of murder in the second degree, and that certain statements of the court made in the presence of the jury were prejudicial to her.

The salient facts relating to the occurrences on the night of the homicide do not seem to be in dispute. On the evening of May 23, 1964, defendant was arrested by the city police in Rawlins for driving while under the influence of intoxicating liquor and because the police had no place to maintain a female prisoner was brought to the Carbon County Sheriff's Office about 7:40 p. m., remained there until approximately 9 p. m., when her husband made bond for her and the two departed, proceeding by automobile toward Sinclair, Wyoming, some four or five miles distant. On the way, she got out of the car once, flagged down another automobile, and attempted to get a ride back to Rawlins, but apparently unsuccessful in the attempt, proceeded with her husband to Sinclair and went directly to their home at 103 South Eighth Street. The defendant's next-door neighbor, Mrs. Lois Smith, saw the Kennedy car arrive between 9:15 and 9:30 p. m. and saw defendant climb out and go into the house. Defendant herself testified that upon her entrance into the house she pushed a couch in front of the door to attempt to keep her husband from coming in. Her husband thereafter pushed the door open, at which time the defendant pointed a pistol at him and told him not to come in the house. He left and went next door and returned with their neighbor, Mrs. Smith, who tried talking to defendant from the porch through the closed door, in front of which Mr. Kennedy and Mrs. Smith were standing. Mrs. Smith turned to leave the porch and a shot was fired through the door, fatally wounding Mr. Kennedy. Defendant testified that she had a gun in her hand, was swinging it from side to side, and that it discharged. It was this shot, which pierced the door and hit Mr. Kennedy in the chest, that Mrs. Smith heard when she turned to leave the porch. An ambulance was summoned and Mr. Kennedy was taken to the hospital, where he was pronounced dead less than an hour later; meantime, defendant was placed under arrest and taken into custody. Later, after a purported warning by the sheriff, the defendant made a statement concerning what had happened. Upon completion of the statement, she inquired about her husband; the sheriff telephoned, ascertained that he was dead, told the defendant, and she said that she was glad.

Deprivation of Right to Counsel

Appellant contends that she was denied counsel as required by Art. 1, § 10, Wyo. Const., and amend. VI, U.S.Const., and urges that the rule announced in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, is here applicable, which provides, inter alia, 84 S.Ct. at 1765, 'where * * * the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, * * * no statement elicited by the police during the interrogation may be used against him at a criminal trial.'

Since defendant does not contradict the testimony that she was advised of her right to counsel both orally by the sheriff and in the preface to her written confession, the basis of her argument seems to be that following the shooting and at the time of her arrest and subsequent interrogation she was in such a state of shock and intoxication that she was without capacity to intelligently waive the right of counsel. However, she cites no cases dealing with the effect of a defendant's being intoxicated at the time he is advised of his constitutional rights.

Testimony concerning the occurrences on the evening of the crime is of significance. Sheriff Ogburn testified that after going to the scene of the shooting and arresting the defendant he took her to the county jail, booked her, and asked if she wished to have an attorney or make a telephone call. He also asked her if she would like to make a statement pertaining to the incident. She said she would, whereupon he advised her that she did not have to make a statement and that she could have counsel; she replied she would like to have someone to talk to and get it off her mind. The sheriff testified that he thereafter repeated his statement that she was allowed counsel and did not have to make a statement but if she wanted to do so, he would take one. He testified that defendant then said, "I am awful nervous and I would rather have the girl there write it out for me." The statement, the first page of which was a narrative account of certain happenings, and the second, third, and fourth pages, questions to and answers from defendant, was thereupon, commencing at 10:52 p. m., written down by Diana Sanchez, the sheriff's stenographer. Sheriff Ogburn testified that it was his opinion that during the evening of May 23 the defendant was not intoxicated although she had been drinking. Miss Sanchez said she first saw defendant in the jail about 10:30 p. m., that defendant then wanted to go home and promised if they would permit her to return to her home she would stay there, that Sheriff Ogburn refused but said she was allowed to call an attorney from the kitchen in the jail, and that defendant said she did not want an attorney. When asked if Mrs. Kennedy had been drinking, Miss Sanchez replied, 'I did not know she had been drinking. She did not seem to be drunk at that time. * * * She walked perfectly well * * *.' She said that defendant was nervous and shaky and seemed as if she had been crying.

While various witnesses of defendant testified that she was intoxicated prior to the time of the homicide, defendant presented no evidence other than her own statement that she was intoxicated at the time that she was taken to the jail and subsequently when she gave the statement. Defendant said she did not know when she took the last drink on May 23, and without question was nervous and somewhat shocked by the occurrences of the evening; but the testimony of the sheriff and his stenographer constituted clear and definite evidence that although admittedly she had been drinking during the evening she was not at the time of the statement intoxicated to such a degree as not to know what she was doing but was fully aware of what was happening. Under this state of the record, we cannot hold that the defendant was without capacity to intelligently waive the right of counsel, and accordingly, the first claim of error is not justified.

Inadmissibility of Confession as Not Being Voluntarily Given

Closely allied to the claim that defendant was denied counsel is that of her written confession's being inadmissible. The purported confession, written in pen by Miss Sanchez, consisted of four sheets, each beginning with the printed statement (with blanks appropriately filled in): 'TIME _ _ DATE _ _ PLACE _ _ I, _ _, HAVING been advised of my rights under the FIFTH AMENDMENT to the CONSTITUTION as to compulsory self incrimination, my right of counsel and my right of trial, and knowing that anything that I say may be used against me in a court of law, and knowing that I do not have to make any statement at all do hereby volunteer the following to _ _ who has identified himself as _ _,' and each signed at the bottom by the defendant and witnesses. As heretofore noted, the first page is a third-person narrative by the sheriff of the happenings of the evening relating to Mrs. Kennedy and was obviously not the statement in the words of the defendant. The following pages purport to be questions propounded by the sheriff and answered by the defendant.

Our foregoing discussion concerning right to counsel contains various references to evidence regarding defendant's condition as to sobriety and understanding and those same circumstances are here relevant in our consideration of the voluntariness of her statement. It is unnecessary to again delineate the testimony which showed that defendant was advised of her constitutional rights, warned that anything she might say could be used against her in a court of law, and told of her right to have counsel.

Miss Sanchez said she wrote down defendant's statements and 'When I was writing it she (defendant) was telling me what to put down and she would comment that it was right. * * * She was watching me while I wrote it.' This testimony, coupled with that of the sheriff previously mentioned, indicates that Mrs. Kennedy was not so intoxicated as to lack understanding as to what she was doing, that she voluntarily answered the questions, and signed the statement without coercion or persuasion from the authorities. She does not deny any of this testimony regarding the taking of the statement but merely says that she doesn't remember. The court passed upon the voluntariness of the statement in the first instance and thereafter instructed the jury that before it might take the confession into consideration it must for itself find whether or not it was voluntary.

Some point is made of a discrepancy in a typed statement on the 'Arrested Prisoner's Information' ¹ taken at the time that Mrs. Kennedy was arrested at 7:40 p. m., May 23, for driving while under the influence of intoxicating liquor, which indicated her...