DocketNumber： 3423
Citation Numbers： 421 P.2d 487, 1966 Wyo. LEXIS 186
Judges： Harnsberger, Parker, Harns-Berger, Gray, McIntyre
Filed Date： 12/15/1966
Status： Precedential
Modified Date： 10/19/2024
delivered the opinion of the court.
Upon trial by a jury of his peers, Richard Kirk was convicted of first degree murder without any qualification being added to the verdict. He was thereupon adjudged guilty of the crime and sentenced to suffer death. From that judgment and sentence Kirk has appealed contending the court committed prejudicial error at his trial by admitting as evidence two photographs, a handwritten statement made by him and a typewritten copy thereof; by limiting the cross-examination of a witness relative to prior statements; and because of the improper conduct of the county and prose cuting attorney.
From the record brought to us, it appears to be undisputed that Kirk had been arrested and taken into custody by local police officers upon a charge of breach of the peace at Stonington, Connecticut. While being so held, a woman with whom Kirk had been traveling in the State of Wyoming informed the Stonington police that he had committed a murder in Idaho. When told what the woman had said, Kirk denied it.
Kirk was then visited by a Connecticut police detective who identified himself to Kirk, showed him his badge and credentials, and informed Kirk he had been assigned to assist the Stonington police department; that he was representing the State’s attorney’s office, and advised Kirk he had been implicated in the shooting of a hitchhiker in or near the State of Wyoming; that he had a right to remain silent; that he did not have to make any statements; that any statements he did make could be used either for or against him in court; that he had the right to be represented by counsel ; and, when Kirk said he had no funds, further advised him' if he wanted the officer would call the public defender, but that Kirk indicated he did not want an attorney; that he was not interested at that time with an attorney; that Kirk was alert and responded well to questions; that Kirk was not in any way threatened, no promises were made to him, and he was not denied anything he requested; that Kirk was given cigarettes, allowed to smoke, was served a sandwich and coffee; and Kirk made no requests that were not granted. Kirk denied none of this, but himself stated he had been very well treated since he had been in custody and made no complaints about the way he had been treated.
It further appears that when Kirk asked to have the woman present, she was brought in, seated beside him, and he held her hand while he gave the statement, the admission in evidence of which is here criticized; that nothing was done to induce Kirk to talk other than to ask him to tell the truth, in which request the woman joined.
Kirk’s statement was first written out by the officer in longhand, then examined,
At the trial the woman who was still married to the father of her three-year-old daughter but was then pregnant by defendant Kirk testified she and her child had accompanied Kirk traveling by automobile across the United States; that the trip was financed in part by money and food obtained by theft and from services and money procured by use of a credit card; that while traveling one evening in Wyoming to Jackson, Wyoming, they passed a hitchhiker; that after driving past the hitchhiker they turned around, passed him again, then turned around a second time; that Kirk stopped the car, got out and obtained a P-38 police special gun and clip with bullets in it from the car trunk and told her to load it; that she couldn’t put the clip in so Kirk loaded the gun; that Kirk directed her to drive the car and told her he was going to get some money and was going to kill the hitchhiker; that when they got to the hitchhiker Kirk told her to stop the car, which she did just beyond the hitchhiker; that when the hitchhiker walked up to the front of the car Kirk leveled “his arm” and pulled the trigger; that the hitchhiker fell face down; that just before the gun was fired the hitchhiker seemed to say “No”; that no sooner than Kirk pulled the trigger he was out of the car, threw the gun in her lap, told her not to move the car, put the hitchhiker’s suitcase and box in the car, then told her to move the car about a car-length, get out and look under the hood like she had motor trouble; that Kirk pulled the body of deceased by the feet off into the grass, then got back into the car, and they left the scene of the shooting; that Kirk said he did not feel anything, and it did not bother him at all, that he could kill a man or woman and it wouldn’t bother him, he felt absolutely nothing, and said “The cheap bastard never even had a watch,” and that he wasn’t worth the price of the bullet he had just used.
After this testimony describing the killing the woman testified they returned to the scene of the murder, found the body, and Kirk removed some of its apparel saying he shined a flashlight into deceased’s face and couldn’t help laughing at the way he looked;. that he “tickled his toes,” searched the body, stripped the body, checking for a money belt; and that Kirk said he had almost cut the hitchhiker’s penis off and brought it to her and remarked about its size.
The woman also testified that the night before the murder Kirk had held the same gun with which he killed the hitchhiker to her daughter’s head, and almost killed the witness that night; that he had split her head open with a hammer four days before the hitchhiker’s murder, and had almost strangled her and her daughter, had broken her nose the night before the murder, tried to kill her unborn child by ramming his fists into her stomach, and she was terrified and afraid of Kirk, even more so after the shooting.
Her further testimony respecting a great number of less important details was corroborated in numerous instances.
On the other hand, there was a complete absence of evidence attacking her credibility, and the statements made by Kirk at Stonington paralleled her own statement originally given the officers as well as that of her testimony given at the trial. Although Kirk testified he had seen at least a part of the woman’s original statement at the time he made his own statement, that was directly and positively contradicted and repudiated by competent evidence which the jury obviously elected to believe. Medical evidence showed a hole on the left of the upper lip and an opening on the back of deceased’s neck, which the medical expert said could well be a bullet hole.
The next ground for appeal attacks the admission of Kirk’s statement as evidence. The undisputed facts as hereinabove related show that every warning and all the information required by the latest decisions of the Federal Supreme Court to be given a person held in custody were positively given before he was interrogated and gave his statement, and that Kirk himself had not at any time disputed this.
Kirk himself testified that at the first he was told he was entitled to an attorney, and that when he said he did not have the money to hire one, he was told there was a public defender who would be called if Kirk wanted. Although Kirk at the trial testified he said he would like to talk to somebody to tell him what to do — advise him what to do — and that right l at that moment the officer did nothing but told Kirk he would get him the attorney if Kirk wanted him; that the officer kept telling him he could have an attorney; and that Kirk kept telling the officer he wanted to talk to somebody, the officer testified that Kirk refused the offer to get him the public defender; that the authorities at Kirk’s request brought in the woman; and that, when Kirk asked her what he should do, she told him to tell the truth.
Under these circumstances, the statement Kirk had given at Stonington was received in evidence. It was begun with these words, "I, Richard Wilbur Kirk, age 39, DOB 7-1-25, of Bethel, Maine, make the following true and voluntary statement without fear, threat or promise, knowing same may be used in court. I have been warned that I do not have to make any statement and that I have a right to an attorney,” and was substantially a counterpart of the woman’s, testimony respecting the way in which the murder took place.
Immediately following the production of Papp, the witness who was to testify about defendant’s confession, the court stated, “there is a matter developed that the Court will have to hear out of the presence and hearing of the jury” and excused the jury. Papp was then examined before the judge. After comprehensive cross-examination of the witness, Kirk’s counsel concluded with the statement, “I have no further questions.” After the trial was resumed before the jury, practically the same evidence heard by the court out of the jury’s presence was produced, and the statement was received in evidence without any objection being made and without any suggestions that the statement was involuntary. Even after the statement had been read to the jury, defense counsel stated he had no questions and offered no objections, did not elect to produce any witnesses or evidence in Kirk’s behalf, nor was the court ever informed during the State’s case that any other witness was desired or that there was anything the defense wanted the court to consider. In fact, there was not the slightest challenge to the voluntariness of Kirk’s confession, and there was no conflicting evidence. However, after the State had rested its case and the defendant had testified, giving a different story as to how he killed the hitchhiker, defense counsel objected to the receipt of Kirk’s statement in evidence on the ground it was not voluntary and asked that the record show the objection to have been made at the time the statement was offered. The record does not in fact' show any objection was made when the statement was offered and received in evidence, and the afterthought of counsel, even though agreed to by the prosecution, does not change the fact.
Among the first of these cases is Jackson v. Denno, 378 U.S. 368, 391, 84 S.Ct. 1774, 1788, 12 L.Ed.2d 908, 1 A.L.R.3rd 1205, dealing with a situation where the trial court had indicated its awareness that defendant’s counsel was questioning the circumstances under which defendant had been interrogated while under sedation. The Court there said:
“ * * * The procedures used in the trial court to arrive at its conclusions on the coercion issue * * * must, therefore, be fully adequate to insure a reliable and clear-cut determination of the voluntariness of the confession, including the resolution of disputed facts upon which the voluntariness issue may depend. * * * ” (Emphasis supplied.)
As heretofore noted, in the instant case immediately following -the - production of the witness Papp, the court in an abundance of caution excused the jury and conducted a hearing out of their presence. As will be observed, .there was no true occasion under the .holding of the Jackson case for him to have proceeded with a separate hearing since there was not then any evidence whatever on the coercion issue or any disputed facts as to the voluntariness of the confession, on which -elements the determination-of-voluntariness requirement of the Jackson case was based. Likewise, at this separate hearing there still developed no intimation of coercion or nonvoluntariness of the confession, nor was anything of that nature developed at any time during the presentation of the State’s case. It was only after the prosecution had rested that defendant for the first time claimed that, although he had at first been given all information and warning required by federal decisions, he had later told Papp he wanted “somebody” to tell him what to do. It follows that the Jackson case is inapplicable to the instant situation.
Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, holds the right .of an accused to counsel does not depend-on whether, at the time of interrogation, the authorities have secured a formal indictment, but that the accused may intelligently and knowingly waive his privilege against self-incrimination and the right to counsel either at a pretrial stage or at the trial.
In the case of Kirk, notwithstanding’he was not yet charged or indicted for the crime of murder but was merely in custody upon a charge of breaching the peace, he was promptly .informed of the source and nature of a report implicating him as a suspect concerning the death of a hitchhiker in Idaho and, before any interrogation leading to his making the questioned statement, the officer identified himself to Kirk, warned him he had a right to remain silent, that anything he said might be used either for or against him, that he had the right to counsel and if he could not afford an attorney, he would be furnished with the services of the public defender. Under these circumstances there was. a full compliance with the requirements of Escobedo, as it was shown that Kirk was alert and. had understanding. So, when, following these warnings and the information given him, Kirk said he did not want an attorney, his refusal of the offer to provide him with the services of the public defender was an express waiver of his constitutional rights as defined in Escobedo.
In addition, there was a marked difference in the circumstances surrounding the taking of Escobedo’s confession and those present when Kirk gave his statement.
In Escobedo the accused was arrested and while handcuffed behind his back and while standing he was questioned for four hours until he confessed. He was told, 378 U.S. at 479, 84 S.Ct. at 1759: ‘“they had us pretty well, up pretty tight, and we
In Kirk’s case all the required warning and information were given and he expressly waived his rights. In addition, he admitted he was well treated, was given refreshment and cigarettes, and all his requests were granted, including his request to have his woman present. No promises were made him, he was not threatened or mistreated in any way, either physically or psychologically, and he was told, when he asked about it, that in Wyoming there was the death penalty for first degree murder. Furthermore, Kirk’s statement, coupled with testimony which Kirk does not dispute, that he demonstrated he could read his statement, that he then proceeded to read it, made corrections, initialling them, and then signing the statement, irrefutably proves Kirk had been informed of his rights, and he was not acting from threat or promise.
In Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and related cases of Vignera v. State of New York, Westover v. United States, and State of California v. Stewart, the court prefaced its opinion by saying it granted certiorari to give concrete constitutional guidelines for law enforcement agencies and courts to follow, and briefly stated its holding to be, 86 S.Ct. at 1612, “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Acceptable procedural safeguards are then said to be that, 86 S.Ct. at 1612, “Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Following this explanation, the court says, 86 S.Ct. at 1612: “ * * * If, however, he indicates in
any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.”
The Court then proceeds to relate the circumstances surrounding the questioning. In Miranda the accused’s questioning took place in a room cut off from the outside world. Miranda was not given a full and effective warning at the outset of the interrogation process. The interrogation was conducted, while Miranda was being held incummunicado in a police-dominated atmosphere without full warning of constitutional rights.
The Court professed it was only implementing what was said in Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897), which set down the Fifth Amendment standard for compulsion, wherein it was stated, 86 S.Ct. at 1621:
“ ' * * * The rule is not that, in order to render a statement admissible, the proof must be adequate to establish that the particular communications contained in a statement were voluntarily made, but it must be sufficient to establish that the making of the statement was voluntary; that is to say, that, from the causes which the law treats as legally*492 sufficient to engender in the mind of the accused hope or fear in respect to the crime charged, the accused was not involuntarily impelled to make a statement when but for the improper influence he would have remained silent. * * * ’ ”
In Kirk’s case, however, he was timely given all the information and warnings required by the Federal Court. There was nothing to. engender either hope or fear to induce him to make his statement. He was not questioned by anyone. He was merely advised to tell the truth. This was the limit of all that was said to him by either the officers or the woman whom he had requested be present. • . ,
So the procedural rules laid down in Miranda and its associated cases have been strictly observed in Kirk, and they were scrupulously complied with.
In any event the latest Federal Court decision, June 20, 1966, Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 1775, 16 L.Ed.2d 882, precludes Kirk from receiving any benefit under Miranda, as the Court there says, “We hold further that Miranda applies only to cases in which the trial began after the date of our decision one week ago [June 13, 1966].” This latest decision expressly disavows that ;the Federal Court has created a constitutional strait jacket or that it so intended. The court also said, 86 S.Ct. at 1780, retroactive application “would require the retrial or release of numerous prisoners found guilty by trustworthy evidence in conformity with previously announced constitutional standards.” Miranda was decided June 13, 1966, and Kirk’s trial was commenced on December 7, 1964, the judgment rendered and sentence imposed on December 11, 1964, both dates anteceding Miranda.
There is material difference in Maki v. State, 18 Wyo. 481, 112 P. 334, 33 L.R.A., N.S., 465, cited by appellant, from this case. There the accused was not told he need not make any statement, and he was not told that if he made a statement it might be used against him in court. By contrast, in the case now before us, the appellant was specifically told he need not answer any questions or make any statement; he was informed that he was entitled to have counsel and, if he so desired, counsel would be furnished him; and he was warned that anything he said might be used against him if he was subsequently charged with crime. Additionally, in Maki this court said, 18 Wyo. at 488, 112 P. at 336, “The great weight of authority and the trend of the later decisions is to the effect that if he [the accused] has been advised of his rights and duly cautioned and he then testifies voluntarily, his evidence is admissible against him,” citing numerous authorities and followed by the court’s observation that, “The object and .purpose of warning the accused under such .circumstances is two fold: First, that it .may be brought home to his mind that what he says under oath may be used against, him and being so informed, that he may be free to act as he pleases; and, second, that a legal proceeding may not be converted into an inquisition.” Maki also cited Shoeffler v. State, 3 Wis. 823, where, before the defendant was arrested and only suspected of having committed the homicide for which he was subsequently tried and convicted, he made a statement under oath which was held admissible, although .he had neither been cautioned nor -informed of his right to decline to answer any question. Thus Shoeffler v. State, supra, referred to in Maki sustaining the admissibility of statements of an accused even though not advised of his right to refuse to answer questions, to have counsel, to be provided with, counsel, and that anything he said might be used against him upon trial of the criminal charge for which he was then under arrest, goes far beyond any claim the State makes in the case now before us. The record here shows this appellant had been well advised of all his rights before making the statements.
To support the claim that the woman was improperly used to extract a confession from Kirk, appellant cites Spano v.
There is no similarity in Spano and this case. No prolonged and repeated effort was made to get Kirk to confess. No deception or falsehood was indulged in. No friend of the accused played. upon his sympathies by making untrue representations. It was Kirk who asked to have the woman present. It was Kirk who asked her what to do, and the only response she made was to tell him to tell the truth.
Malinski v. People of State of New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029, is also cited by appellant to fortify the contention of coercion. There, a convict friend was brought from the penitentiary to the hotel where Malinski was being held, and he and Malinski were put alone together. Shortly afterwards' Malinski confessed. The court, however, did not hold .this amounted to coercion but said that there was coercion because Malinski was held incommunicado except for this visit from his convict friend, because he was not allowed to see a lawyer, though he asked for one, and because the prosecution’s comments to the jury placed beyond doubt that the confession was coerced. There is nothing of this kind present in Kirk’s case.
Appellant refers to Mortimore v. State, 24 Wyo. 452, 161 P. 766, 769, as quoting § 649, Wharton’s Criminal Evidence (II Wharton’s Criminal Evidence, § 649, pp. 1346-1347 [10 Ed.] presently 2 Wharton’s Criminal Evidence, § 390, pp. 124-125 [12 Ed.]), saying:
“ ‘ * * * even a slight inducement held out by such a person [i. e. persons in authority] renders the confession involuntary, because the accused would have reason to believe that such person is not only credible, but is in a position to carry the inducement into effect.’ ”
The complete inapplicability of this pronouncement lies in the fact that there is not the slightest evidence that inducement of any kind was held out to Kirk, and Kirk has not ever contended to the contrary. Equally inapplicable is the quoted excerpt from 3 Wigmore on Evidence, § 825, pp. 253, 254 (3 Ed.), asking, Was the confession induced by thought or a promise, by hope or fear, followed by the statement, “ ‘Its admissibility is made to depend on its being free of the suspicion that it was obtained by any threat of severity or promises of favour, and of any influence, even the minutest.’ ” Also appellant’s quotes from 23 C.J.S. Criminal Law § 825b, p. 210, and 2 Jones on Evidence, §§ 400, 401, pp. 743-746 (5 Ed.), to the same effect, do not help appellant for the same reasons stated above.
Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513, adds nothing to appellant’s suggestion of coercion for the Court there based its conclusion upon the fact 'that the prosecution failed to contradict the accused’s testimony that he wanted to call his wife, but was not permitted to do so, and that the officer told him that when he made a statement
The next ground of the appeal is that the court limited the cross-examination of the woman as to her prior statements.
Before she testified it was made plain to her that she would be granted immunity as to any matter about which she might testify, and defense counsel also apprised her that she would be cross-examined by him, which examination when made required nearly 40 pages of transcript, and at the conclusion of which defense subjected her to approximately a page and one-half of recross-examination, and when asked if he had any more questions, he replied, “No.” Later on, under stipulation with the State’s counsel, the defense called the woman for cross-examination as an adverse witness, the court reminding counsel that the examination be limited as had been discussed in chambers. This further cross-examination required another seven pages of transcript, ending with defense saying, “I have no further questions.”
'• During the cross-examination defense counsel wanted to hand the witness what he represented was her statement. When the court reminded counsel that this did not accord with the understanding which, had been reached in chambers, defense counsel stated, “what I am driving at is why she should be so concerned about the truth, when in fact she hasn’t told it herself.” After this the cross-examination of the woman continued until defense counsel told the witness to “step down.”
We are at a loss to discover from this record any merit in the defense’s contention it was erroneously limited in the cross-examination of the witness.
The final ground for the appeal charges the State’s attorney with improper and prejudicial conduct. This complaint is bottomed in the State’s attorney having cross-examined the defendant about guns, it having appeared by other evidence that there were several guns in defendant’s car when the killing took place. The defense also claims impropriety because, after defendant had testified he had been convicted of robbery, and State’s counsel inquired about that conviction, and defendant had said the conviction was for unarmed robbery, State’s counsel inquired if the defendant had any guns about his person, and he replied “No, Sir.” Objection to the evidence was made but no ruling was made and the matter was dropped. We see nothing objectionable about the question or of impropriety on the part of the State’s attorney. Further criticism is made because 'the defendant was asked, after he had testified he had not been convicted of any other felony, if he had been convicted of a different felony upon a certain date, to which defendant replied “Not to my knowledge.” Again, we see no misconduct in this questioning by the State’s attorney.
Although not asserted as grounds for appeal, appellant indicates there is some kind of error because the officer in Connecticut who arrested Kirk was not pn> duced as a witness. This officer’s name was endorsed upon the information, but it was not within the power of the court or of the State to require or compel his presence. The suggestion is entirely without merit.
Because the court was, under the law, required by the jury’s verdict to pronounce and did, by its judgment and sentence, impose the extreme penalty, we have made the most detailed and careful study of the record and all legal questions involved in this case. From this we reach the unescapable conclusion that the convict was treated with exemplary courtesy and consideration from the moment it came to the attention .of the Connecticut authorities that he might be a suspect for having committed a murder in either Idaho or Wyoming; that every request Kirk made was granted him; that the only interrogation-made was to ask Kirk to tell
There being no error in the proceedings leading to the arrest, the trial, or the verdict of the jury, the judgment and sentence pronounced by the trial court are affirmed, and this court appoints Friday, February 3, 1967, for the execution of the sentence pronounced by the court below.
Affirmed by a divided court.