Wickware v. Com.

• Decision Date: 14 February 1969
• Parties: Arthur Keller WICKWARE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 272

444 S.W.2d 272

Arthur Keller WICKWARE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Feb. 14, 1969.

Rehearing Denied Sept. 26, 1969.

Joe B. Campbell, Jerry L. Moore, Bell, Orr & Reynolds, James H. Lucas, Harlin Parker, Ricketts, Lucas & English, Bowling Green, for appellant.

John B. Breckinridge, Atty. Gen., James H. Barr, Asst. Atty. Gen., Frankfort, for appellee.

DAVIS, Commissioner.

Arthur Keller Wickware has been convicted of the offense of detaining a woman against her will with intent to have carnal knowledge of her as denounced by KRS 435.110. His punishment was fixed by the jury at imprisonment for seven years, the maximum sentence for the offense. On this appeal he presents these alleged errors: (1) The court should have quashed the indictment; (2) the court should have permitted a pretrial discovery deposition of the prosecutrix; (3) the pretrial identification of appellant was so conducted as to violate his substantial rights; (4) the in-court identifications of appellant were the fruits of prior illegality or prejudicial identification procedure; (5) the court erred in permitting rebuttal testimony which should have been introduced in chief; and (6) prejudicially erroneous argument was made to the jury by the Commonwealth's attorney.

According to the prosecution's evidence, the defendant appeared at the residence of the prosecutrix, a twelve-year-old girl, about 2 p.m. and inquired of her whether he could get a job raking leaves. Upon learning that she was at home alone, the defendant went into the house, took the girl into the bathroom, and undertook to have sexual relations with her. The medical evidence indicated that no penetration had been accomplished. Immediately after the incident, the child telephoned her mother who was at work in Franklin to tell her of the the distressing situation. The mother went immediately for the child and took her to two doctors in Franklin for examination. The child gave a somewhat general description of her assailant, and the mother communicated with the sheriff of Simpson County to report the incident shortly after it occurred. The sheriff telephoned the information to the police of the City of Franklin. The sheriff related to the police the general description which he had obtained. Upon hearing that description, which included the fact that the suspect had ridden a bicycle to the prosecutrix's home, a Franklin policeman deduced and suggested that the crime had been perpetrated by the present appellant.

The police officer was employed in a photographic studio in Franklin and testified that the appellant had had photographs of himself made at the studio and that he had seen appellant in the studio on the day of the crime. The officer, with the chief of his department, reported to the sheriff, an uncle by marriage of the mother of the prosecutrix, the suspicion that appellant was the assailant. Some pictures of appellant were obtained from the studio, and the officers exhibited them to the prosecutrix at her home on the afternoon of the offense. She identified appellant as her assailant after viewing the pictures. No other picture was shown to the prosecutrix then or at any other time with a view to having her make an identification. Acting on her identification, the officers arrested appellant and promptly took him before the Simpson County Judge. The county judge appointed counsel for appellant, who waived examining trial. An indictment charging appellant with rape was returned within less than a month after the date of the offense.

Before a change of venue was granted from Simpson to Warren County, the judge of the Simpson Circuit Court appointed attorneys from Bowling Green to represent appellant in lieu of the attorney from Franklin who had been appointed for him by the judge of the Simpson County Court. The newly appointed attorneys moved the Simpson Circuit Court to grant them permission to take the depositions of the prosecutrix and the two doctors who had examined her. They based their contention in the trial court, and now base their claim of error here, on the premise that the waiver of an examining trial by the first court-appointed attorney effectively deprived appellant of certain discovery advantages which might have inured to him from requiring the Commonwealth to present a prima-facie case in order to bind him over to the grand jury. There was no stenographic report made of the proceedings before the grand jury so that no transcript of those proceedings was available as envisioned by RCr 5.16(2). The Commonwealth's attorney agreed for the appellant's newly appointed attorneys to take the depositions of the two doctors and also furnished to the attorney's a re sume of the evidence heard before the grand jury and the prosecutrix' version of the affair. When this showing was made to the judge of the Simpson Circuit Court, he denied appellant's motion to be permitted to take the child's deposition. There is no provision for this type of discovery in our criminal rules. Even if the indictment had been quashed as requested by appellant, in proper circumstances another grand jury could have returned another indictment without affording an examining trial. We are unable to perceive any error in the court's denial of the motion to quash the indictment. Even if it could be regarded as error, it could not have been prejudicial in...