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KENNEDY v. STATE10/1/1973
her?
A. She was intoxicated, yes, sir, but she was far from being drunk."
Gerald Carlyle, the deputy prosecuting attorney, testified at the in-chambers hearing. He testified that he was present when the appellant was questioned around 10:45 or 10:50 p.m.; that she appeared to be stable and
did not appear to be under the influence of intoxicants. He said that she was responsive to all questions asked her and appeared to have complete control of her senses. He said that he is of the opinion that she was thoroughly able to comprehend the Miranda warning given her at the time she was questioned, and that she understood the warning. He said he knew nothing of the appellant's condition at the hospital when she was first arrested and warned of her rights by Offices Wilson. He said that during the interrogation the appellant started crying at one point and the sheriff let her call her mother before she was questioned. He said that the appellant did call her mother and talk with her; that she told her mother she was in custody at the police department and was all right. He said she then settled down and gave her statement. He said that he was not present when Officer Wilson advised the appellant of her constitutional rights, but that he was present when Officer Young so advised her just prior to her statement. He said that he asked the appellant if she had been warned of her rights and she told him that she had.
The appellant testified at the in-chambers hearing. She said that she was acquainted with Officer Wilson and remembers him placing her under arrest at the hospital. She said that she knew what was meant by a warning of constitutional rights, but that she did not remember Officer Wilson warning her of her rights at the hospital. She was asked what she recalled as to her emotional state and her condition when she was arrested at the hospital and she responded, "I was just real nervous." She said she does not know whether she was crying or not by that she thinks she was. She said she does not remember Officer Wilson telling her that she could have an attorney appointed for her if she couldn't afford one. She said that she would have asked for an attorney at that time had she known one would have been appointed for her.
"Q. Your statement if that Mr. Gary Wilson did not tell you that?
A. He may have but if he did I forgot about it."
On cross-examination the appellant testified:
"Q. Didn't you know you had the right to have an attorney if you wanted one?
A. Yes, sir, but I didn't have no way of getting hold of one."
The appellant then testified that she was convicted in the Jackson County Circuit Court in 1964 for assault with intent to kill and was sentenced to two years in the state penitentiary with the sentence suspended; that in 1965 she was sent to the state penitentiary for violating the terms of the previous suspension; that in 1968 she was convicted of grand larceny and sentenced to ten years in the penitentiary to be suspended on good behavior, and that in 1968 she was convicted for prostitution. She said that in 1972, less than three months before Duty was killed, she was again convicted of forgery and uttering and sentenced to the penitentiary for three years which was suspended. She said she pleaded guilty to all of these charges. At the conclusion of the in-chambers hearing the trial court held the statement admissible.
In the statement offered in evidence the appellant gave her name and gave her age as 28 years. The statement as recorded then reads in part as follows:
"BUDDY YOUNG: You are presently under investigation on a murder charge. You know you h
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