Spirko v. Com.
| Decision Date | 31 March 1972 |
| Citation | 480 S.W.2d 169 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | John SPIRKO, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
Larry C. West, Ware, Bryson, Nolan & West, Kevin E. Quill, Covington, for appellant.
John B. Breckinridge, Atty. Gen., Jackson D. Guerrant, Asst. Atty. Gen., Frankfort, for appellee.
The appellant, John Spirko, was convicted of willful murder. His punishment was fixed at confinement in the penitentiary for life. KRS 435.010. As the result of an application for post-conviction relief under RCR 11.42, the trial judge granted Spirko a belated appeal. We have afforded him full appellate review of the proceedings in which a jury convicted him and fixed his punishment. His court-appointed counsel have ably and strenuously presented every conceivable error that could have reasonably been asserted. Their performance is in the highest tradition of the legal profession. After careful review we have concluded that we must affirm the judgment.
Spirko and his girl friend, Shirley Caughhorn, a high school student, arrived in Covington, Kentucky, from Toledo, Ohio, in early July 1969. They made application for a marriage license and had a blood test. They were without funds and pawned a watch to obtain the money to pay for the blood test. Later they rented a one-room apartment. Shirley Caughhorn testified that Spirko told her they could obtain funds by robbing a few places.
While walking about the neighborhood of Madison Avenue in Covington, they noticed a house on which a 'for-sale' sign had been tacked. Spriko told Mrs. Myra Ashcraft, who owned this property, that he was interested in buying the house. Mrs. Ashcraft told Spirko and his female companion to come back the next day and she would show them the house. The evidence conclusively demonstrated that Spirko and his girl friend were only interested in obtaining entrance to the house in order to come back and rob it. Spirko discussed his intentions to rob Mrs. Ashcraft with others.
Pursuant to Mrs. Ashcraft's instructions, Spirko and Shirley Caughhorn returned to the Madison Avenue house and were admitted to view it about 1 o'clock in the afternoon. They were shown the upstairs portion and then went to the basement. While they were in the basement, Mrs. Ashcraft and Shirley engaged in a conversation. Spirko slipped up behind Mrs. Ashcraft and threw his right arm across her neck and began to choke her. According to the testimony he held her in this position for five minutes, at which time she made a moaning sound. Her face visibly flushed, then she fainted or otherwise lost consciousness. Spirko tied her hands behind her back and took her up the basement stairs and threw her on a bed. Her feet and legs apparently struck the steps as she was carried up. Shirley Caughhorn testified that at the time they placed Mrs Ashcraft on the bed she was in an unconscious state. There was some testimony that indicated they had put a pillow over her head. Shirley Caughhorn also testified that when they placed Mrs. Ashcraft's body on the bed she was cold to the touch, but she still may have been breathing. Spirko and Shirley Caughhorn took a radio and a tablecloth from the house, and some other things which they put in a bag.
Spirko was arrested early in the morning of July 9, 1969, by the Flint, Michigan, police department. Sergeant Stump of the Flint police testified that he was not on Spirko's case at all but had been told by another officer that Spirko was sitting in his office and wanted to talk to a detective. Stump stated: 'As I walked in and introduced myself, Mr. Spirko told me that he had killed a woman in Covington, Kentucky, . . .' Stump later gave Spirko the Miranda warnings and took a typewritten statement from him which he freely signed. In an in-chambers hearing Spirko acknowledged the confession. No custodial interrogation preceded Spirko's spontaneous and volunteered statement.
The first assertion of error is that the trial judge should have granted a change of venue. Complaint is made that wide publicity was given to the case by the news media and particularly by a local newspaper with wide circulation. Affidavits were filed, some of which contained opinions that Spirko could not receive a fair trial in Covington, Kenton County, Kentucky, and, in others, the representation was affirmatively made that he could receive a fair trial in that locality. Particularly emphasizing the pretrial publicity, appellant directs our attention to Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966).
The question of whether venue should be changed addresses itself to the sound discretion of the trial court. Spirko asserts that the trial judge abused his discretion. No complaint is made that an impartial jury was not impaneled. Although there was wide press coverage at the time of the commission of the crime, we find no Roman circus atmosphere during the subsequent trial proceedings. Upon the total evidence presented concerning the issue, we are unable to discern any indication that the trial judge abused his discretion in refusing to grant the change of venue. See Hurley v. Commonwealth, Ky., 451 S.W.2d 838 (1970), Garr v. Commonwealth, Ky., 463 S.W.2d 109 (1971), in which the Sheppard opinion is considered, and Ohio River Sand Company v. Commonwealth, Ky., 467 S.W.2d 347 (1971).
Spirko's next claim of error concerns the admission of evidence. During the trial, a police detective was asked by the prosecutor whether he knew Spirko by any other name. Over timely objection, the detective answered: 'Yes, Sir, from his record and through his associates, by the name of Butch.' At another point the same detective, in answer to the same question by the prosecutor, stated: 'By his associates and through records, by the name of Butch, and also Mike Lambert.' The cases cited by appellant hold that evidence of unconnected crimes committed by the accused is inadmissible. The statements of the detective do not, in the abstract, impute the commission of unconnected crimes to the appellant. In view of the preponderant evidence of guilt, we do not regard the instance of the detective's testimony as prejudicial. The statement by the prosecutor in his final arguments that Spirko was a nefarious character and a criminal element, in the context of the admissible evidence,...
To continue reading
Request your trial
-
Guarantee Elec. Co. v. Big Rivers Elec. Corp.
...& Electric Company, 512 F.2d 511 (6th Cir.1975), cert. denied, 421 U.S. 988, 95 S.Ct. 1992, 44 L.Ed.2d 478 (1975) (applying Kentucky law); Commonwealth, Dept. of Highways v. L.G. Wasson Coal Mining Corp., 358 S.W.2d 347 (Ky.1962). That BREC was aware of the contract between GECO and ASCA ad......
-
Gall v. Com.
...he could not or did not have a fair trial in Boone County. Cf. Murphy, supra, at 421 U.S. 799, 95 S.Ct. at 2035; Spirko v. Commonwealth, Ky., 480 S.W.2d 169, 171 (1972). The constitutional standard of fairness required that Gall have "a panel of impartial, 'indifferent' jurors." Irvin v. Do......
-
State v. Alford
...no standing to question the search of a portion of the premises not leased to him." W. LaFave, supra, § 11.3, at 549; Spirko v. Commonwealth, 480 S.W.2d 169 (Ky.1972); State v. Robertson, 102 R.I. 623, 232 A.2d 781 (1967), Cert. denied, 390 U.S. 1036, 88 S.Ct. 1436, 20 L.Ed.2d 296 (1968); C......
-
Port v. Com.
...elicited from the doctor does not, "in the abstract, impute the commission of unconnected crimes to the appellant." Spirko v. Comm, Ky., 480 S.W.2d 169 (1972). Furthermore, the testimony is directed at understanding the basis of the expert's opinion. The expert explicitly indicated that his......