Wagner v. Com.
| Decision Date | 01 May 1979 |
| Citation | 581 S.W.2d 352 |
| Parties | Ed Anthony WAGNER, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Terrence R. Fitzgerald, Daniel T. Goyette, Donald E. Dawson, Louisville, for appellant.
Robert F. Stephens, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee.
Wagner was convicted of first-degree rape, KRS 510.040 and third-degree assault, KRS 508.030. The jury fixed his punishment at fifteen years in the penitentiary for rape and at one year in the county jail for assault. The indictment also charged that he was a first-degree persistent felony offender, KRS 532.080(3). In order to settle this issue the second stage of a bifurcated trial required by KRS 532.080(1) was held. The jury found Wagner to be a first-degree persistent felony offender and, consequently, enhanced his punishment to life imprisonment. He appeals. We reverse and remand.
The case for the prosecution may be summarized as follows:
At approximately 3:30 on the afternoon of January 26, 1978, Amy Morrison was waiting for a bus at the corner of Fourth and Chestnut Streets in Louisville to take her to work at Suburban Hospital. A car drove by and stopped. Wagner got out of the car, approached her, and told her that he was from the Courier-Journal and wanted to ask her some questions about her work and the bad weather. Wagner told her that he was on his way to St. Matthews and offered her a ride to Suburban Hospital. Amy accepted because Wagner appeared to be a nice man and because of the frigid weather conditions in which she had been waiting for her bus.
After they got in Wagner's car he drove down Bardstown Road where he stopped, in an alley near an overpass, and asked Amy if she would mind waiting while he attempted to get a check cashed by a friend. She had no objection. Wagner left but was gone only a few minutes. He told her that his friend wasn't home but would be back at 4 p. m. and again requested that they wait. While they waited Wagner gave her a candy bar and they talked on his C-B radio.
Wagner suddenly pulled out a knife and placed it at Amy's throat. He told her "Don't move or I'll slit your throat." She was surprised at this and jumped. The knife cut her finger. He tied her hands behind her back with a scarf which had been hanging from his rear view mirror. He took another scarf and tied one end around her throat and the other end to the scarf holding her hands. He told her not to struggle or she would choke herself to death. He made her lie down on the front seat of the car and as he kissed her he pulled up her shirt and placed the knife on her stomach indicating that it would be within easy reached if he needed it.
He demanded that she shut her eyes and after she did so he placed a gluey substance on them. This substance sealed her right eye shut and she could barely open her left eye. He kissed her breasts and at approximately 4:30 p. m. he drove Amy to a house near the Cherokee Park area of Louisville where he had a rented room. He took Amy to his room and during the course of the next 2 and 1/2 hours he raped her twice.
Amy assured Wagner that she would not tell anyone about the incident and was able to persuade him to take her some place where she could remove the gluey substance from her eyes. He drove her to a Convenient Food Mart located at Fourth and Oak Streets. He got out of the car, left his keys in the ignition and went inside to purchase something that would help her cleanse her eyes. After he entered the store she took the car keys, jumped out of the automobile and hurried into the store. Once inside she accused Wagner of raping her and began crying. He denied this, demanded his keys and apparently attempted to leave the store but some of the customers in the store crowded around the exit and refused to let him leave until the police arrived.
When the police arrived they interviewed both Amy and Wagner. They accompanied Wagner and Amy to Wagner's car and permitted him to lock and secure the car. While this was being done Amy pointed through the windows to the scarves and to a spot on the upholstery which she said was blood from her cut. They took Amy to General Hospital for an examination and Wagner accompanied them to police headquarters for questioning. During the questioning the police had Wagner's car removed to police headquarters. At the conclusion of the questioning the police formally arrested Wagner for the crimes of rape and assault. After the arrest the police conducted an "inventory" search of Wagner's car for the purpose of "looking for evidence."
The case for the defense may be summarized as follows:
Amy flagged Wagner down as he was driving past the bus stop in his car. She had a small cut on her hand and asked him to take her to Suburban Hospital where she worked. During the trip she offered to have intercourse with him for ten dollars. She gave Wagner some kind of pill and he accepted the offer. He took her to his apartment where they had sexual relations. During her stay in the apartment Amy went into the bathroom to put on her false eyelashes. Her eyelids became stuck together when she put them on and she asked him to take her to a store to obtain something to unstick them. Wagner then took her to the Convenient Food Mart to purchase something to clean her eyelids and to obtain change for a twenty dollar bill so he could pay her. She then demanded fifty dollars and they argued about the price. This argument resulted in Amy's entering the store and accusing Wagner of rape.
Prior to trial Wagner moved the court for an order directed to Our Lady of Peace Hospital authorizing him to examine all psychiatric records pertaining to Amy. This motion was denied and properly so. The perimeter of pretrial discovery in a criminal case is established by RCr 7.24(1) and (2). The only materials discoverable under the rule are those within the possession, custody and control of the Commonwealth. The records of a private, charitable hospital certainly are not encompassed within the boundaries fixed by this rule.
At trial the Court refused to permit Wagner to cross-examine Amy about her psychiatric history. In an avowal he was able to establish that Amy had been committed to a psychiatric hospital prior to the events in issue for attempted suicide, severe depression and drug abuse, and that she was presently under psychiatric care and was receiving shock treatments which were affecting her memory. The proffered testimony was relevant and competent and should have been received because it tends to impeach Amy's credibility. In a swearing match such as this the weight to be given to the testimony of the prosecuting witness is a crucial issue. Consequently, the exclusion of this evidence requires reversal and a new trial. See Mosley v. Commonwealth, Ky., 420 S.W.2d 679 (1967); Anno., Witnesses Mental State or Condition, 44 ALR 3rd 1203 (1972).
Wagner insists that the fruits of the warrantless search of his automobile hours after its impoundment on the parking lot of the Convenient Food Mart and its removal to the police station should have been suppressed. He maintains that this search violated his rights under both the Fourth Amendment of the Constitution of the United States and Section 10 of the Constitution of the Commonwealth of Kentucky. We thought that in City of Danville v. Dawson, Ky., 528 S.W.2d 687 (1975), we laid to rest the circumstances under which motor vehicles could be impounded and their interiors searched or inventoried. Such is not the case because the Supreme Court of the United States has since decided South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), and because our language in City of Danville v. Dawson, supra, failed to make it perfectly clear that we were interpreting Section 10 of our constitution as well as the Fourth Amendment of the federal constitution. To eliminate this confusion we now find it necessary to restate our views and rest our holding solely upon Section 10 of our constitution. 1
A vehicle may be impounded without a warrant in only four situations:
1. The owner or permissive user consents to the impoundment;
2. The vehicle, if not removed, constitutes a danger to other persons or property or the public safety 2 and the owner or permissive user cannot reasonably arrange for alternate means of removal;
3. The police have probable cause to believe both that the vehicle constitutes an instrumentality or fruit of a crime and that absent immediate impoundment the vehicle will be removed by a third party; 3 or
4. The police have probable cause to believe both that the vehicle contains evidence of a crime and that absent immediate impoundment the evidence will be lost or destroyed. 4
So long as the only potential danger that might ensue from non-impoundment is danger to the safety of the vehicle and its contents no public interest exists to justify impoundment of the vehicle without the consent of its owner or permissive user. Because the vehicle is legally in his custody the driver, even though in police custody, is competent to decide whether to park the vehicle in a "bad" neighborhood and risk damage through vandalism or allow the police to take custody. Only when the vehicle if not removed poses a danger to other persons, property or the public safety does there exist a public interest to justify impoundment if the owner or permissive user is unable to reasonably arrange for a third party to provide for the vehicle's removal. City...
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