Kirk v. State

• Decision Date: 15 December 1966
• Docket Number: No. 3423,3423
• Citation: 421 P.2d 487
• Parties: Richard KIRK, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 487

421 P.2d 487

Richard KIRK, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 3423.

Supreme Court of Wyoming.

Dec. 15, 1966.

Rehearing Denied Jan. 23, 1967.

E. J. Herschler, Kemmerer, for appellant.

Dean W. Borthwick, Deputy Atty. Gen. and Lawrence E. Johnson, Asst. Atty. Gen., Cheyenne, for appellee.

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

Mr. Justice HARNSBERGER delivered the opinion of the court.

Upon trial by a jury of his peers, Richard Kirk was convicted of first degree murder without any qualification being added to the verdict. He was thereupon adjudged guilty of the crime and sentenced to suffer death. From that judgment and sentence Kirk has appealed contending the court committed prejudicial error at his trial by admitting as evidence two photographs, a handwritten statement made by him and a typewritten copy thereof; by limiting the cross-examination of a witness relative to prior statements; and because of the improper conduct of the county and prose cuting attorney.

From the record brought to us, it appears to be undisputed that Kirk had been arrested and taken into custody by local police officers upon a charge of breach of the peace at Stonington, Connecticut. While being so held, a woman with whom Kirk had been traveling in the State of Wyoming informed the Stonington police that he had committed a murder in Idaho. When told what the woman had said, Kirk denied it.

Kirk was then visited by a Connecticut police detective who identified himself to Kirk, showed him his badge and credentials, and informed Kirk he had been assigned to assist the Stonington police department; that he was representing the State's attorney's office, and advised Kirk he had been implicated in the shooting of a hitchhiker in or near the State of Wyoming; that he had a right to remain silent; that he did not have to make any statements; that any statements he did make could be used either for or against him in court; that he had the right to be represented by counsel; and, when Kirk said he had no funds, further advised him if he wanted the officer would call the public defender, but that Kirk indicated he did not want an attorney; that he was not interested at that time with an attorney; that Kirk was alert and responded well to questions; that Kirk was not in any way threatened, no promises were made to him, and he was not denied anything he requested; that Kirk was given cigarettes, allowed to smoke, was served a sandwich and coffee; and Kirk made no requests that were not granted. Kirk denied none of this, but himself stated he had been very well treated since he had been in custody and made no complaints about the way he had been treated.

It further appears that when Kirk asked to have the woman present, she was brought in, seated beside him, and he held her hand while he gave the statement, the admission in evidence of which is here criticized; that nothing was done to induce Kirk to talk other than to ask him to tell the truth, in which request the woman joined.

Kirk's statement was first written out by the officer in longhand, then examined corrected, and signed by Kirk who also initialed corrections and each page. Afterwards this longhand statement was copied in typewriting which was also signed and identified by Kirk. After the statement was taken, but before it was signed, Kirk asked whether Wyoming was a capital punishment state, and, when told that it was, Kirk signed the statement.

At the trial the woman who was still married to the father of her three-year-old daughter but was then pregnant by defendant Kirk testified she and her child had accompanied Kirk traveling by automobile across the United States; that the trip was financed in part by money and food obtained by theft and from services and money procured by use of a credit card; that while traveling one evening in Wyoming to Jackson, Wyoming, they passed a hitchhiker; that after driving past the hitchhiker they turned around, passed him again, then turned around a second time; that Kirk stopped the car, got out and obtained a P-38 police special gun and clip with bullets in it from the car trunk and told her to load it; that she couldn't put the clip in so Kirk loaded the gun; that Kirk directed her to drive the car and told her he was going to get some money and was going to kill the hitchhiker; that when they got to the hitchhiker Kirk told her to stop the car, which she did just beyond the hitchhiker; that when the hitchhiker walked up to the front of the car Kirk leveled 'his arm' and pulled the trigger; that the hitchhiker fell face down; that just before the gun was fired the hitchhiker seemed to say 'No'; that no sooner than Kirk pulled the trigger he was out of the car, threw the gun in her lap, told her not to move the car, put the hitchhiker's suitcase and box in the car, then told her to move the car about a car-length, get out and look under the hood like she had motor trouble; that Kirk pulled the body of deceased by the feet off into the grass, then got back into the car, and they left the scene of the shooting; that Kirk said he did not feel anything, and it did not bother him at all, that he could kill a man or woman and it wouldn't bother him, he felt absolutely nothing, and said 'The cheap bastard never even had a watch,' and that he wasn't worth the price of the bullet he had just used.

After this testimony describing the killing the woman testified they returned to the scene of the murder, found the body, and Kirk removed some of its apparel saying he shined a flashlight into deceased's face and couldn't help laughing at the way he looked; that he 'tickled his toes,' searched the body, stripped the body, checking for a money belt; and that Kirk said he had almost cut the hitchhiker's penis off and brought it to her and remarked about its size.

The woman also testified that the night before the murder Kirk had held the same gun with which he killed the hitchhiker to her daughter's head, and almost killed the witness that night; that he had split her head open with a hammer four days before the hitchhiker's murder, and had almost strangled her and her daughter, had broken her nose the night before the murder, tried to kill her unborn child by ramming his fists into her stomach, and she was terrified and afraid of Kirk, even more so after the shooting.

Her further testimony respecting a great number of less important details was corroborated in numerous instances.

On the other hand, there was a complete absence of evidence attacking her credibility, and the statements made by Kirk at Stonington paralleled her own statement originally given the officers as well as that of her testimony given at the trial. Although Kirk testified he had seen at least a part of the woman's original statement at the time he made his own statement, that was directly and positively contradicted and repudiated by competent evidence which the jury obviously elected to believe. Medical evidence showed a hole on the left of the upper lip and an opening on the back of deceased's neck, which the medical expert said could well be a bullet hole.

The appellant's first grounds for appeal complain of the admission of two photographs as evidence. One such black and white photograph shows only a part of a body lying in tall grass, a portion of the chest and possibly a small section of the upper abdomen being bare. The other black and white photograph is about the same, although taken from a slightly different angle. These photographs were cogent evidence corroborating both the woman's and Kirk's testimony as to the disposition of the corpse. No case cited by appellant is authority for the exclusion of such evidence. This ground for appeal is without merit.

The next ground for appeal attacks the admission of Kirk's statement as evidence. The undisputed facts as hereinabove related show that every warning and all the information required by the latest decisions of the Federal Supreme Court to be given a person held in custody were positively given before he was interrogated and gave his statement, and that Kirk himself had not at any time disputed this.

Kirk himself testified that at the first he was told he was entitled to an attorney, and that when he said he did not have the money to hire one, he was told there was a public defender who would be called if Kirk wanted. Although Kirk at the trial testified he said he would like to talk to somebody to tell him what to do-advise him what to do-and that right at that moment the officer did nothing but told Kirk he would get him the attorney if Kirk wanted him; that the officer kept telling him he could have an attorney; and that Kirk kept telling the officer he wanted to talk to somebody, the officer testified that Kirk refused the offer to get him the public defender; that the authorities at Kirk's request brought in the woman; and that, when Kirk asked her what he should do, she told him to tell the truth.

Under these circumstances, the statement Kirk had given at Stonington was received in evidence. It was begun with these words, 'I, Richard Wilbur Kirk, age 39, DOB 7-1-25, of Bethel, Maine, make the following true and voluntary statement without fear, threat or promise, knowing same may be used in court. I have been warned that I do not have to make any statement and that I have a right to an attorney,' and was substantially a counterpart of the woman's testimony respecting the way in which the murder took place.

Immediately following the production of Papp, the witness who was to testify about defendant's confession, the court stated, 'there is a matter developed that the Court will have to hear out of the presence and hearing of the jury' and excused the jury. Papp was then examined before the judge. After comprehensive cross-examination of the witness, Kirk's counsel concluded with the statement, 'I have no further...