State v. Kennedy
| Decision Date | 07 November 1996 |
| Docket Number | No. 2595,2595 |
| Citation | 479 S.E.2d 838,325 S.C. 295 |
| Court | South Carolina Court of Appeals |
| Parties | The STATE, Respondent, v. Robert A. KENNEDY, Appellant. . Heard |
Tara Dawn Shurling; Oliver W. Johnson, III; and South Carolina Office of Appellate Defense, Columbia, for Appellant.
Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Solicitor Warren B. Giese, Columbia, for Respondent.
Robert A. Kennedy (Kennedy) was charged with first degree burglary and second degree arson in connection with the burning of Nancy Powell's residence. At trial, Kennedy moved to suppress statements he made to police officers subsequent to his arrest. After holding a Jackson v. Denno 1 hearing, the trial court denied the motion. Although Kennedy was acquitted of first degree burglary, the jury found him guilty of second degree arson. Kennedy appeals. We affirm.
On November 7, 1992, at approximately 7:15 p.m., C. Ray Miles noticed fresh tire tracks in the woods near some property he owned in Kershaw County. Miles thought poachers might be on his property so he called the Sheriff's Department. Kirk Corley, a county constable, and Charles B. Thompson, Jr., a conservation officer, were dispatched.
The three individuals found a blue truck with a Kansas license plate parked in a secluded spot in the woods. As they attempted to locate the owner, Robert Kennedy ran out of the woods from the driveway of a home owned by Nancy Powell. When questioned as to his reason for parking his truck on private property, Kennedy nervously explained he was looking for a dog he hit with his truck. He then changed his story and said he had driven there to meet a woman. He said he parked the truck as he did to prevent it from being vandalized. Kennedy produced identification and informed the men he was stationed at Fort Jackson. After Kennedy left, the three men investigated the area and found the Powell house fully engulfed in flames. SLED Agent Charles Huggins, a member of the arson team, conducted a fire cause and origin investigation and opined the fire was intentionally set.
Kennedy was later arrested and charged with first degree burglary and second degree arson. At Kennedy's trial, an in camera hearing was held pursuant to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), to determine the admissibility of statements made by Kennedy.
Witnesses for the State were: Steven Vincent, Charles Huggins, David Thomley, and Jerry Horton. Additionally, Kennedy testified at the hearing.
(Vincent, Huggins & Thomley)
Steven Vincent, an investigator with the Kershaw County Sheriff's Department on November 7, 1992, responded to the scene of the fire and received information regarding Kennedy. That same evening, Vincent, accompanied by Investigator David Thomley, drove to Fort Jackson and attempted to locate Kennedy. However, he was off base on a four day leave.
On the following Monday, Vincent, SLED Agent Charles Huggins, and Investigator David Thomley returned to Fort Jackson with two warrants for criminal trespass. The officers arrested Kennedy and Vincent advised him of his Miranda rights.
At that time, Kennedy said, "I do not understand, sir." When Vincent asked him what he did not understand, Kennedy stated he did not understand why the officers wanted to talk to him. Vincent explained to Kennedy he wanted to speak to him about another crime that occurred the night of the trespass. Kennedy responded "he just did not understand." While being questioned, Kennedy stated, "I don't have anything to say." Vincent made no threats, promises, or offers of leniency to Kennedy.
Thomley drove Kennedy to the Kershaw County Sheriff's Department from Fort Jackson. During the trip, Thomley and Kennedy engaged in "small talk." Thomley denied, however, the two discussed Kennedy's criminal charges. Upon arrival at the Sheriff's office, Thomley took Kennedy to his office. After removing Kennedy's handcuffs, the two men engaged in more "small talk."
Thomley asked Kennedy whether he understood his rights and the charges against him. Kennedy told Thomley he understood his rights, but was unclear about the criminal trespassing charges. Thereafter, Thomley explained the trespassing charges. Thomley then asked Kennedy if he understood why arson was being investigated and Kennedy indicated he did not understand. Thomley explained the statutes regarding arson and burglary as well as the matters which implicated Kennedy regarding those charges and the penalties attached to each. Thomley further explained the court had discretion concerning whether to sentence a defendant to probation or the maximum penalty. He indicated to Kennedy that officers had little control over recommendations, which were essentially matters within the solicitor's control. Kennedy asked to speak to the solicitor. Thomley permitted Kennedy to make several phone calls while in his office.
Around 8:00 that night, Vincent spoke with Thomley and learned Kennedy was in Thomley's office, but had nothing to say about the offenses. Thomley informed Vincent that Kennedy "wants to talk to the solicitor." Vincent contacted Assistant Solicitor Glenn Rogers, who stated he would talk with Kennedy the next morning.
The next day Vincent, along with Huggins, Thomley, and Rogers, spoke to Kennedy in a large room used as the Sheriff's business office. Huggins advised Kennedy of his rights and Kennedy indicated his understanding. He executed a written waiver of his rights and did not appear to be under the influence of drugs, alcohol, or mental infirmity.
Kennedy wanted to talk with Thomley and Rogers alone, so Vincent and Huggins left the room. Rogers then asked Kennedy what he wanted to talk to him about. Kennedy inquired, "What if I ask for an attorney?" Solicitor Rogers immediately left the room. Thomley responded, However, Kennedy did not ask to speak to an attorney. Kennedy specifically stated,
Upon Rogers' return, Kennedy stated, "Okay, I did it." He claimed he entered the Powell residence through the back door. Thomley indicated Kennedy did not ask for food or state he was hungry, tired, or thirsty at the time he gave his statement. Further, Thomley never advised Kennedy he would not get a deal if he did not talk.
Within fifteen to thirty minutes, Vincent and Huggins reentered the room at Thomley's request. Huggins again advised Kennedy of his rights and Kennedy indicated he understood his rights. At that time, Kennedy gave a statement in which he admitted setting the fire. Vincent took notes during the statement and Huggins wrote the statement at Kennedy's request.
Huggins essentially corroborated the testimony of Vincent and denied Kennedy stated, "I think I need a lawyer." Thomley's testimony replicates substantial portions of the testimony of both Vincent and Huggins.
On the day of his arrest, prior to meeting with Huggins, Thomley, and Vincent, Kennedy consulted a lawyer at Fort Jackson who advised him to invoke his right to remain silent. Vincent read the criminal trespass warrants and advised Kennedy of his rights. When Vincent asked whether he understood his rights, Kennedy asserted, "I ain't got nothing to say." He admitted he understood his Miranda rights, but did not understand the discussion concerning countersigning the warrants.
Upon arriving at the Kershaw County Detention Center, Kennedy was taken to Thomley's office. Kennedy testified Thomley expressed to him the seriousness of burglary and arson charges and read the sentence for each. Kennedy told Thomley, "I ain't got nothing to say," and asked to make several phone calls, which he was permitted to do.
When Thomley arrived at the detention center the next morning, he indicated to Kennedy the Solicitor was willing to speak with him. At that time, Kennedy told Thomley, "[l]ook, I did it."
At the Sheriff's office, Huggins advised Kennedy of his rights. Kennedy testified that in response to Huggins stating they were not offering Kennedy a deal, he then said, "Well, I think I need a lawyer." He stated Solicitor Rogers then left the room, but Huggins remained. Although he admitted he signed the waiver of rights form once, Kennedy claimed he refused to sign it a second time.
While alone in the room with Kennedy, Thomley said, "Look, everything we talked about, the only way we can help you out, that's the guy you need to talk to." When Kennedy asked him about an attorney, Thomley responded he would have to wait until one was assigned to his case. Kennedy admitted that when he asked how to obtain a lawyer, he was advised by Thomley he could either hire one or receive a public defender after a financial check to determine Kennedy's indigency status. Kennedy understood an attorney would not be appointed immediately and that he would have to wait until one could be appointed.
Upon questioning by the court, Kennedy admitted he decided to talk to officers rather than waiting for appointment of counsel. He stated Thomley advised him the only way he would be released from jail would be through a bail hearing.
Kennedy identified his signatures and initials on each page of his statement. He claimed that at the time he provided his statement he was tired, hungry, depressed, and frustrated. On cross examination, he admitted he never asked to use the telephone book to locate an attorney to represent him and did not again try to contact the J.A.G. officer he had consulted earlier.
The jury acquitted Kennedy of the first degree burglary charge, but found him guilty of...
To continue reading
Request your trial
-
State v. Santiago
...stemming from custodial interrogation or spontaneously offered up, are not barred by the Fifth Amendment. State v. Kennedy, 325 S.C. 295, 307, 479 S.E.2d 838, 844 (Ct.App.1996) (citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 Hook, 348 S.C. at 409-10, 559 S.E.2d at 86......
-
State v. Kirton
...arrest and custody) that the police should know are reasonably likely to elicit an incriminating response." State v. Kennedy, 325 S.C. 295, 303, 479 S.E.2d 838, 842 (Ct.App.1996), aff'd as modified, 333 S.C. 426, 510 S.E.2d 714 (1998) (citing Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1......
-
State v. Miller
...stemming from custodial interrogation or spontaneously offered up, are not barred by the Fifth Amendment. State v. Kennedy, 325 S.C. 295, 307, 479 S.E.2d 838, 844 (Ct.App.1996) (citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). State v. Hook, 348 S.C. 401, 409-......
-
State v. Saylor
...990 P.2d 277, 288 (Okla.Crim.App.1999); State v. Charboneau, 323 Or. 38, 913 P.2d 308, 317, 320-21 (1996); State v. Kennedy, 325 S.C. 295, 479 S.E.2d 838, 845 (Ct.App.1996); State v. Aesoph, 647 N.W.2d 743, 752 (S.D.2002); State v. Warness, 77 Wash.App. 636, 893 P.2d 665, 667 (1995); State ......