Jasper v. CommonwealthJasper v. Commonwealth
- Reporters:
- ,
- Before:
- Osborne
Thе only question presented upon this appeal is whether certain admissions made to police officers аfter appellant’s arrest were freely and voluntarily given by the accused and whether his waiver of his right to have counsel present was intelligently and voluntarily made. The facts of the situation are as follows:
On December 1, 1969, appеllant Hoy Jasper, along with his brother Boyd Jasper and Larry Lewis, was indicted by the Wayne County Grand Jury and charged with grand larcеny of a 1966 Pontiac automobile belonging to Michael Gregory. Appellant was convicted of these charges and sentenced to four years in the state penitentiary. He now contends that on the occasion of his arrеst in August 1969 he was taken to the jail in Pulaski County and there interrogated without the presence of counsel and that certаin admissions made at that time were wrongfully permitted to be introduced in evidence against him. The interrogation is allegеd to have been conducted by Samuel E. King, a detective for the Kentucky State Police, in the presence of John Henry Johnson, a deputy sheriff of Pulaski County, and Dee Haste, a patrolman on the Somerset city police fоrce.
At the commencement of the trial counsel for appellant moved to suppress evidence of the admissions and requested a hearing out of the presence of the jury. The trial court granted this request and conduсted a hearing for the purpose of determining the admissibility of the questioned evidence. We believe this procedure proper and it is not questioned. See Bradley v. Commonwealth, Ky., 439 S.W.2d 61, p. 64. At the hearing the arresting officer testified that prior to any questioning he advised the accused that he did not have to make a statement and that any statement hе made could be used against him in court. Also, he had a right to counsel and if he could not afford it counsel would be furnished fоr him.
The officer further testified that he believed the accused understood the statement and that at no time did the aсcused request counsel or indicate in any way that he desired counsel present. All statements made by him at this time were freely and voluntarily given. He further testified that there was a telephone available to the accused but that hе in no way indicated *9that he desired to use it; that the accused is an adult under Kentucky law, being 19 years of age; that he had previously been convicted of a felony and served time in the Kentucky State Reformatory and was, at the time the present offense was alleged to have been committed, on parole.
Appellant himself does not dеny that he made the confessions to the officers. He does on this appeal deny that they were true and now asserts that he made them in order to cover up for his brother, whom he then thought might be guilty.
The other officers who were present at the examination testified upon this hearing. Their testimony substantiates that of the state detective. The appellant was permitted to call witnesses and did so. There is some conflict between the testimony offered by the defense and that offered by the prosecution. At the conclusion of this hearing the trial court determined that appеllant was fully advised of his rights and that all of his constitutional rights were complied with. It seems to be appellant’s contentiоn that, conceding the testimony of the police officers to be true, his rights under Section 11 of the Kentucky Constitution werе violated and that the procedure followed by the officers did not meet the requirement of
In answer to appellant’s contentions, Section 11 of the Constitution merely provides that an accused cannot be compelled to give evidence аgainst himself. We find nothing in this record to indicate that appellant was compelled to give any evidence. Under thе authority of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, an accused must be informed of his right to counsel and his right to remain silent once the investigаtion has focused on him. The testimony here by the police officers was clear and unequivocal that appellant was given this information. The trial court found this fact to be true and with that finding we are bound.
Appellant now contends that he made the statements because he feared for the welfare of his brother and asserts that the officers wеre in some way responsible for this. The record indicates that it was appellant himself who brought up the question of his brother’s involvement in the offense. It could well have been determined by the trial court that appellant confessed not because of any outside inducement offered him but from his own desire to help his brother. Be all that as it may, his confеssion was voluntarily given and the court is under no obligation to search his subconscious mind and determine what his reasons werе.
Judgment affirmed.
All concur.
Notes
. There was no request by defendant for an admonition to the jury or an instruction concerning the voluntariness of the confession, both of which would have been proper had they been requested. See Bradley v. Commonwealth (supra).