449 U.S. 962 | SCOTUS | 1980
Dissenting Opinion
dissenting.
These petitions present the question whether the decision of the Supreme Court of Kentucky rests upon an independent and adequate state procedural ground that bars this Court’s review of petitioners’ constitutional claim, inter alia, that their convictions were based on a record lacking sufficient evidence. Because the question of when and how failure to comply with state procedural rules precludes our consideration of a federal constitutional claim is itself a federal question, Henry v. Mississippi, 379 U. S. 443, 447-448 (1965), and because I have serious doubts whether the Kentucky Supreme Court could properly insist on compliance with the procedural rule it invoked, I dissent from the denial of certiorari.
Petitioners Carpenter, Borders, and Blair were convicted in a Kentucky trial court of wanton endangerment in the first degree and criminal mischief in the third degree. The charges stemmed from the allegation that they fired a shotgun at businesses and automobiles injuring one person and damaging property. All three petitioners moved for directed verdict of acquittal at the close of the Commonwealth’s case, and also moved for new trial after the jury verdict. Both motions were grounded on claims that the evidence was insufficient to sustain guilty verdicts. However, no petitioner
The Kentucky intermediate appellate court entertained petitioners' appeals from their convictions, and set them aside after finding that the evidence was insufficient to sustain the convictions.
The Commonwealth filed a petition for rehearing. This time, the Kentucky Supreme Court reversed itself and reinstated the convictions of Carpenter and Borders. The court held that, “as clarified in Kimbrough, ... in order for the issue of the sufficiency of the evidence to be preserved for appellate review, the party wishing to use the insufficiency as a basis for his appeal must have moved for a directed verdict at the close of all the evidence, not just at the close of the Commonwealth’s case in chief.” 592 S. W. 2d 132, 133 (1979).
These cases are particularly compelling given the two explicit findings by the Supreme Court and Court of Appeals of Kentucky to the effect that the evidence was not only insufficient but also irrelevant to support the guilty verdicts of Carpenter and Borders.
Because I am unable to reconcile the Kentucky Supreme Court’s procedural holding in the present cases with its unambiguous procedural rule applicable at the time of petitioners’ trial, I would grant the petitions for certiorari.
The Court of Appeals initially remanded for a new trial but six months later withdrew that original opinion and substituted a new one reversing the convictions outright.
The Commonwealth’s argument that Kentucky Criminal Rule 9.54 (2), applicable at the time of petitioners’ trial, effectively embodied the Kimbrough rule, is unavailing. The Kentucky Supreme Court relied solely on Kimbrough and later cases in reversing itself and did not so much as mention Rule 9.54 (2). In any event, the Rule, which deals with motions for jury instructions “fairly and adequately presented,” on its face does not support the Kimbrough rule, and interpretative case law is similarly unsupportive.
Every other case cited by the Kentucky Supreme Court in support of the Kimbrough procedural rule was decided after Kimbrough. The Commonwealth’s brief cites two cases, Delong v. Commonwealth, 225 Ky. 461, 9 S. W. 2d 136, 137 (1928), and Harvey v. Commonwealth, 423 S. W. 2d 535, 537 (Ky. 1967), both decided before petitioners’ trial, for the view that Kimbrough merely reiterated prior state law. If anything, however, these two cases lend support for the opposite proposition that, prior to Kimbrough, the court would review a claim that the trial court erred in denying a motion for a directed verdict made at the close of the prosecutor’s case. In Delong, the defendants claimed that the trial court’s failure to direct a verdict on their motion at the close of the Commonwealth’s case was reversible error. The appellate court noted that, instead of resting their case after their motion, defendants proceeded to “take the stand and . . . furnis[h] enough evidence themselves to sustain the conviction.” 225 Ky., at 463, 9 S. W. 2d, at 137. The court therefore declined to reverse the trial court, not because defendants failed to renew their motions for directed verdicts, but precisely because the court, after reviewing the full evidentiary record, found sufficient evidence to support their convictions.
In Harvey, the court similarly concluded after a review of all the evidence that “any deficiency which may have existed in the Commonwealth’s evidence” was rectified after defendant presented his evidence. 423 S. W. 2d, at 537. For this reason, the court found no reversible error in the trial court’s failure to direct the verdict at the conclusion of the Commonwealth’s evidence. This appellate posture also has been regularly followed by the Kentucky courts in the civil context in reviewing a motion for a directed verdict at the close of the plaintiff’s case. E. g., Lyon v. Prater, 351 S. W. 2d 173, 175 (Ky. 1961).
Because the convictions of Carpenter and Borders were struck down under the “no evidence” test, Thompson v. Louisville, 362 U. S. 199, 206 (1960), it follows a fortiori that the convictions were faulty under the now controlling insufficiency-of-the-evidence constitutional standard, Jackson v. Virginia, 443 U. S. 307, 318-319 (1979). Moreover, although the Supreme Court found “relevant evidence” linking Blair to the crime, this would not end the inquiry as to him under the Jackson test.
This is certainly true at least as to Carpenter and Borders.
Lead Opinion
Sup. Ct. Ky. Certiorari denied. Reported below: 592 S. W. 2d 132.
