Tabor v. Com., 80-SC-252-MR
| Decision Date | 10 March 1981 |
| Docket Number | No. 80-SC-252-MR,80-SC-252-MR |
| Parties | Harold Wayne TABOR, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
The appellant, Harold Wayne Tabor, was convicted of robbery in the second degree, KRS 515.030, and of being a persistent felony offender in the first degree, KRS 532.080. Tabor appealed to this court as a matter of right from a judgment sentencing him to an enhanced prison term of 20 years. For the reasons stated herein, we reverse.
On the afternoon of December 6, 1978, Mrs. Margaretta Stevens, age 82, was walking up the walkway to her apartment in Jefferson County carrying a bag of groceries and a purse by a strap around her wrist when a man approached her, ripped the purse off her wrist, and shoved her to the ground. The fall rendered her unconscious. She was revived sometime later by Joseph Gilleland, a patrolman from the St. Matthews Police Department called to the scene. Mrs. Stevens described her assailant as a white male, five feet nine inches in height with long blonde hair, and driving a red Volkswagen. Officer Gilleland then put out the description of the assailant and the car over his radio. Later in the day, Officer Gilleland received a call to meet the Jefferson County Police at the Plantation Shopping Center in Jefferson County where a car and driver matching the description put out by Officer Gilleland had been found.
When Officer Gilleland arrived at the Plantation Shopping Center, the appellant was in the custody of Jefferson County police detectives Joe Booth and Rick Sanders. Detective Sanders testified that he advised the appellant of his rights, questioned him about the robbery of Mrs. Stevens, and searched, with appellant's consent, a red Volkswagen that appellant said belonged to his friend, Kathy Pound. During the search Detective Sanders found a purse containing a paper bearing Mrs. Stevens' name. Mrs. Stevens identified this purse at the trial as the purse that was taken during the robbery.
The appellant was taken into custody and transported to Mrs. Stevens' apartment where she identified Tabor as the man who robbed her and pushed her to the ground. Tabor was then taken to Jefferson County police headquarters where he was interrogated by Detectives Booth and Sanders. He subsequently signed a typewritten statement in which he confessed to the robbery. This confession was introduced at trial by the Commonwealth as evidence of Tabor's guilt.
For his part, Tabor, testifying at trial in his own behalf, denied committing the robbery, denied giving his consent to search the car, and claimed that Detective Booth kicked him, hit him with fists, and stabbed him in the hands with ink pens. Tabor testified that he was coerced into signing a waiver of rights form and a confession, and that he only signed the documents so Officer Booth would stop beating and abusing him.
Trial began on October 11, 1979. On the same date, Tabor moved to suppress his signed confession because it was not made freely and voluntarily. The trial court held a hearing outside the jury's presence on the motion as called for by RCr 9.78. Such a hearing is constitutionally mandated. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). The burden of persuasion at such a hearing as to the voluntariness of a confession is by a preponderance of the evidence. RCr 9.78; Lego v....
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