*1 CARPENTER, Borders, Stephen Richard (81-5179),
Petitioners-Appellees Blair, Petitioner-Appellee Jerome C. Beshear, Gen., Atty. L. Martin Steven (81-5516), Glazer, Gen., Frankfort, Atty. Asst. respondent-appellant. LEIBSON, Respondent-Appel M. Charles Haddad, Jr., Louisville, Ky., Frank E. 81-5516). (81-5179 lant & Carpenter. Richard 81-5179, Nos. 81-5516. Louisville, Ky., E. Fleming, Robert Appeals, United States Court of Stephen Borders. Sixth Circuit. McCall, Lawfer, John Martha A. Tim Argued Dec. 1981. Louisville, Ky., Blair. for Jerome C. July Decided 1982. WEICK,*
Before Senior Circuit Judge, KENNEDY, PHILLIPS, Judge and Circuit Judge. Senior Circuit WEICK, Judge. Senior Circuit Leibson, Respondent, appeals M. Charles from the Dis- judgments by United States (in trict Allen the case of Borders) and United District States (in Blair), Judge Ballantine the case of both Kentucky, grant- the Western District of separate applications Petitioners’ corpus writs of habeas under 28 sec- U.S.C. tion 2254. hereinafter For these reasons stated, we affirm. Petitioners-Appellees were all members Department. of the Louisville Police by jury convicted in the Louisville, Jefferson Circuit Court at Ken- tucky, of two endanger- counts of wanton ment in first degree and two counts of degree, criminal mischief in the third year sentenced penitentiary. to one The convictions were for incidents which 30-31, 1976, the night occurred on of March shotgun in which and rifle were fired shots stores, bars, into various automobiles. Respondent judge Leibson was the trial respondent in the case. He is the because * Judge Weick became a Senior Circuit the close of business on December *2 13.04; v. pursuant Criminal Rule Stone Borders have not and Carpenter Petitioners Commonwealth, sentences, Ky., 456 being bond S.W.2d on served their
yet these appeals their and pending has Blair proceedings; Petitioner habeas argued that since the The Commonwealth probation un- is on served his sentence but a directed had not moved for defendants Respondent’s supervision.
der
evidence, they
all
close of
verdict at the
of
raising the issue
were foreclosed from
trial,
their counsel moved
During their
appeal.
the evidence on
sufficiency of
acquittal on the
of
for a directed verdict
those
that
of
evidence at
Martin stated
insufficiency
of
Chief
grounds
retroac-
case,
applied
meant to
but
cases
not
of
the close
the Commonwealth’s
de-
represented a clear
tively
because
renew
motion at
formally
did not
law, in which
Kentucky
parture
prior
from
of all the evidence.
close
evidence
a
the close of the state’s
motion at
19, 1978,
February
opinion
In an
dated
held
“it would
was sufficient. He
Kentucky
of
of
reversed
Appeals
the Court
newly
fundamentally
apply
unfair
a
the convictions and ordered
new
of
rule to
error
preservation
created
support
of insufficient
because
be-
this case”
facts and circumstances of
peti-
convictions. The Commonwealth
had
have
appellants
cause
could not
June
rehearing
and on
tioned
change.
Since the
notice of
Appeals
original
of
withdrew its
the Court
appel-
change
significantly affect
would
time
it. This
the court
opinion
reissued
rights,
applying
lants’
substantial
outright
of
reversed
convictions
because
operate
change retroactively
make
of
total lack
evidence.
a
law,
facto
post
in the
manner as an ex
same
Martin,
Judge Boyce
now of this
Chief
process.
thus violate due
and would
court,
concurring opinion.
filed a
He noted
to the Su-
appealed
The Commonwealth
had raised for the
Commonwealth
June
Kentucky.
On
preme Court
rehearing
first time
is-
Kentucky
timing
of the defendants’
question
Ap-
opinion affirming
sued an
the Court
motion for directed verdict.
two cases
and Bor-
peals
Carpenter
to Petitioners
after
tria l —Kim
decided
the defendants’
ders,
Blair.
reversing
but
as to Petitioner
Commonwealth,
brough v.
We on two S.W.2d rely substantially recent added.] [Id. Commonwealth, Kimbrough 550 by subsequently Certiorari was denied (1977) Rudolph 525 S.W.2d Com United States. monwealth, 1, cert. de Ky., 564 S.W.2d Blair v. U.S. 101 Kentucky, 449 S.Ct. nied, 58 (1980). Justices Mar- rule, (1978). L.Ed.2d 680 and Brennan filed a dissent to the shall Kimbrough, clarified in is that in order certiorari, analyzed denial in which the issue of the of the way matter the same much appellate evidence to be Judge in the state court Chief Martin had party wishing to use the in- appeals. appeal as a basis his must have moved for a directed verdict at the II evidence, close just of all the at the close of the case in Commonwealth’s Petitioners and Borders filed a chief. The behind rationale this rule be- corpus for a writ of habeas in the petition ing that: “If been there has no motion District Western District of Court at the directed verdict close of all Kentucky on 1980. On Febru- December evidence, cannot said 10, 1981, Allen ary granted the Chief trial judge given oppor- has ever an been applica- retroactive writ. He held that the tunity pass to on the of the rule tion of the new finally evidence as it when sub- stood Kentucky Supreme was a denial of Court Kimbrough, mitted to the jury.” and, both the process due since Furthermore, at S.W.2d have “[w]e Su- insufficiency held consistently that evidence preme Court had found support evidence to verdict must be insufficient, against them to be convic- timely raised in the trial court —ordinari- tions should be set aside and the indict- ly by a motion for a directed verdict ... ments dismissed. order for the to be reviewable petition Petitioner his Blair filed in the on appeal.” at 4. Rudolph, S.W.2d March same District Court on 1981. On e.g., Long See 10, 1981, granted June Ballantine it. S.W.2d 482 and Butler v. Common- fairly could not He found that Petitioner wealth, Ky., 560 the new rule of charged anticipating with respondents Since to move for a failed law, consideration of the therefore directed verdict the close of all the would not his untime- be barred evidence, rule must be ly motion for directed applied as we perceive no reason to re- grant peti- court. He then went to position. tract from this We must re- tion on the basis that there main specified firm in our adherence against him. procedure because hearing “an from Respondents’ appeals judg- is both upon compliance conditioned with es- rules, argu- sential have for oral without which this court ments been consolidated effectively could not ment. conduct business. arguments judge responded The trial
III as follows. whether appeals is in these only issue adequately of what trial court on the basis And so I think that the defendants sufficiency of vast testimo- the issue of from the raised could be inferred require so as all the vari- from ny, and the inferences the issue Kentucky to rule on witnesses, was sufficient there ous doing. it avoided which thought I jury. to submit to now.... I think so so at the time and the motions for hearing During certainly sufficient there was feel that Jefferson Circuit filed new trial I would jury to the or evidence to submit Borders, Court, Fleming, counsel for Mr. so, and I am still not have done following: said the Gentlemen, going I’m opinion. same ques- The next you, Your Honor. Thank trial. for a new the motion overrule myself, Your that I’d like to address tion *4 [App. 226] Honor, to the failure of the Court was the conclusion a directed verdict at grant attention the called to None of this was and con- prosecution, for the of the case Thus, Kentucky. Supreme of of the Court defense, inso- the clusion of the case for actually trial court did appears that the to the de- pertained far as the evidence of the sufficiency the consider and rule on 217-218; fendant, em- [App. Borders.” the motion only when evidence phasis added.] at the close of verdict was made directed argu- lengthy a Fleming Mr. then made also at but the Commonwealth’s verdict should have been why ment as to the case all the evidence before the close of to his brief. calling directed also attention though no even jury, to the was submitted reasons, Honor, I submit Your was For those verdict for a directed formal motion ver- the motion for directed you to that did not mention The trial court renewed. granted at the con- dict should have been The court the motion. any failure to renew the of the evidence for Common- clusion testimony and it considered all the said developed in nothing There was wealth. the case to before it submitted witnesses the evi- presentation of the the course indicated that jury. the As the trial court any way in dence for the defense evidence, including that all the it considered evidence in di- bolstered that absence of defense, certainly the suf- presented by the proof. [App. rect 211.] ficiency of the evidence ' opportunity to the trial court had Allen, appeal; Memorandum District in his can be it all and it did so. There “there is no con- consider Opinion, expressly found that evi- the trial court had tention made in the case bar no but that rul- petitioners in behalf of when right proceedings dence introduced to control the Thus, pro- the evidence added substance to new trial. ing on the motion for a (App. 32- by the duced Commonwealth.” of Ken- Supreme of the ruling a simi- 33). District Bailan tine made afford- court should be tucky that the trial 191). (App. opinion. lar statement in his rule on the sufficien- opportunity ed it was not even contended Since actually complied cy of the defendants after evidence offered There is no present in case. fully with of their motions for a directed the denial Supreme Court now for the rational basis supported the Commonwealth’s mechanically technically and Kentucky to case, interest in legitimate the state had no not, rule, when new or apply any procedural a renewal the motion for requiring applicable, as in fact it was not in truth and directed verdict. shows that record the uncontroverted ruled on and actually trial court considered were Substantially arguments the same We should of the evidence. remaining made counsel for the defend- to mere form. rather than prose- look substance ants and Blair. Then the us that not at all clear to the evidence. It is also presented cution its review of Kimbrough opinion, the decision in is in Isaac not relevant rule, the actually changed preexisting present the issues case the facts clarifying stating merely that it and circumstances in the are differ- cases the rule. ent.
There is need really no to determine in judgment District whether the each is affirmed. case properly applied Kim- a new rule or not in KENNEDY, Judge, concurring Circuit brough, as the Supreme Court nevertheless part dissenting part. should have ruled on evidence under the facts and circumstances agree majority While I with that the existing present case. appeal only petition- issue is whether the adequately preserved ers have sum, accept the federal courts should permit findings the detailed of fact contained corpus agree habeas while I the Court of with the result as to two the three peti- Kentucky, which reversed the convictions of (Carpenter Borders), tioners I cannot all of the ground defendants agree the way majority with reaches beyond Commonwealth failed to prove had The majority opinion result. a reasonable doubt that the defendants reject requirements committed the offense with which Mata, Kimbrough v. charged. Sumner (Ky.1977) present because in L.Ed.2d *5 Supreme “the had legitimate of no interest in Kentucky Court affirmed the Court of as a Appeals requiring to the defendants renewal of motion the for a Carpenter and holding Borders that the evi- directed verdict.” Ante at 172. the Since against dence them was purpose insufficient. As to the Kimbrough of rule was satis- Blair, the Supreme Kentucky here, is, Court of re- fied that the trial was in fact court versed the stating Court of there given the opportunity to rule the suffi- evidence, was some relevant hold- without the ciency of all evidence at the close of the that such through relevant evidence was suffi- the vehicle a motion cient. It will trial, be recalled that there was no the majority new that concludes there evidence that Blair was even at at the scene can rely be no reason for the state to on its the time of shooting procedures the let alone partici- to bar substantive review of the in it. pated presence Even mere petitioners’ is insuffi- not feel convictions. I do com- support however, cient to fortable, a conviction. instructing On reconsid- the state eration, the Supreme Kentucky Court of court on when to when not to apply and then withdrew its decisions in the apply Supreme all of procedural its rules. cases, holding only Kentucky proper body is the would not a considered because make such not a feder- determination and timely no motions a sitting for directed verdict al in court habeas review. The Su- been made at preme the close of all the evidence. of Kentucky has refused to Supreme Thus the majori- de- avenue Kentucky by follow the advocated clined to important ty rule on the all present constitu- case.
tional issue of whether the
were
convictions
Instead,
process
due
would hold that
supported by
guilt
evidence of
beyond
prohibits
reasonable doubt.
retroactively
clearly
from
what is
applying
part
district
relied in
on this
procedural requirement
courts
a new
first devel-
Court’s decision in
F.2d
months
Engle,
oped
Kimbrough
Isaac
646
in
some several
(6th
1129
been
1980),
Cir.
which has since
after
tried and convict-
petitioners
ed,
reversed
review
thereby
cut off substantive
United States
Court,
Isaac, - U.S.
-,
Engle v.
102 of
To do otherwise
their convictions.
1558,
justice
(1982).
miscarriage
our
where
gross
S.Ct.
every permit the chief. has found dence Borders to Carpenter and
conviction Blair, 592 S.W.2d Commonwealth Blair fol- Carpenter, Borders stand. denied, (Ky.1979), cert. requirements lowed Kentucky’s (empha 101 S.Ct. trial; no on the of their existed date Kimbrough nor supplied). Neither sis They thus expected of them. more can any case which did the court cite Blair re- appellate preserved for state adequately supported statement evi- view of, rule was a mere clarification foreclosed We are therefore dence. from, practice. prior not a radical deviation rule from re- Kentucky’s new in either stat certainly no basis There de- independent an viewing the deciding pro court rule ute or for sufficiency under legal of its termination prior cedure had to Kim been well-settled v. Vir- in Jackson standard enunciated brough. The have not cit Kentucky courts 61 L.Ed.2d ginia, appellant pointed ed and has not rule was either stated in which such a case Kimbrough decision applied. How the
or LAW NEW KIMBROUGH AS escapes I. law de merely existing “clarified” fact, Ken In case law from tection. notes, majority correctly As the by the state in this tucky, even that cited a directed verdict petitioners moved for Court, interpretation supports government’s close of the acquittal law, not a Kimbrough was new reiteration citing lack of evidence to case-in-chief existing practice. they failed to a conviction. While support all motion close of renew this at the DeLong Ky. trial court they did (1928), sought defendants was ren- a new trial after the verdict burglary. to reverse their convictions to Kim- prior dered. Under law government’s close of At the brough adequate preserve peremptory instruc- motion defendants’ of the suffi- which, review implies,! tion overruled *6 was ciency of evidence. had the have been erroneous defend- would was com- petitioners’ after presented guilt. decided of their own proof ants not cannot, consistent with defendants, therefore, The state pleted. not “com- could The retroactively apply process safeguards, due court failed to direct plain now because the existing sub- procedural new rules to bar acquittal close of common- their at the proof. 463, deficiencies in the state’s stantive 9 wealth’s evidence.” Id. at S.W.2d recognized The implicitly Court of Ken- Inexplicably, sufficiency of the issue case stat- in its final decision in this tucky, is preserved a motion made once ed: government’s at the acquittal close of two rely substantially We on recent Prater, 351 Lyon case. See also v. S.W.2d Commonwealth, cases, Kimbrough Ky., v. (Ky.1961) (right rely 173 motion Rudolph (1977) 525 550 S.W.2d plaintiff’s verdict directed at close of Commonwealth, 1, cert. 564 S.W.2d waived insufficiency of evidence based 616, denied, 1004, 439 99 58 S.Ct. cured omissions when defendant’s evidence rule, 680 L.Ed.2d case, implicitly recogniz- plaintiff’s again in in order Kimbrough, in is that as clarified appro- that review would of evidence sufficiency issue of for the in); had the been filled priate gaps not preserved appellate to be Commonwealth, Harvey v. 423 S.W.2d party use the wishing to in (Ky.1967) (same). sufficiency as a appeal basis for his must have moved verdict at the More v. Common- recently, directed in Crain wealth, just (Ky.1972), close of all not at the 484 S.W.2d alia, appellant alleged, though, inter the trial ment. Even seen, as we have in directing court had erred not a verdict of clear, proposition is far from it has no rele acquittal since the evidence was insufficient vance in the 9.54(2), instant case. R.Cr. justify a conviction. The court stated: provision providing for peremptory instruc tions, There was no motion for a directed is only invoked when “the evidence is behalf at Crain’s close proof to sustain the burden of ease, the Commonwealth’s nor at more, all, on one or but less than of the ” evidence; consequently, close of all the issues presented by the case . ... Kim properly Commonwealth, brough 550 S.W.2d appellate review. 529 (Ky.1977) (emphasis original). A di omitted). (emphasis supplied, citation rected appropriate verdict is the motion un clear implication language of this is that a der law when the movant seeks motion at either of the above-mentioned acquittal, total when “it would be clearly times have been sufficient to pre unreasonable for a jury to find the defend serve the issue for consideration. ant guilty, any possible under theory, of Commonwealth, In Hatton v. 409 S.W.2d any of the crimes charged in the indictment 818, 819 (Ky.1966) a similar rule was an or of any lesser included offenses.” Camp nounced when the court stated that Commonwealth, bell v. S.W.2d would not review of the (Ky.1978) (emphasis original). peti evidence since the “[ajppellant did not move judice tioners in the case sought sub total for a directed verdict or a peremptory in acquittal charges of the because the evi struction, nor ... for a new trial.” See dence was insufficient sustain con Commonwealth, also Minor v. 478 S.W.2d Thus, so, properly viction. they moved denied, 717 (Ky.1971), cert. for a directed verdict and not for peremp tory instruction. (same). There is some indication that the II. SUFFICIENCY OF THE evidence could be EVIDENCE: preserved, pre-Kimbrough, by a motion for a new trial if that ground upon was relied Having concluded that pre-Kimbrough in the motion. Stone permitted case law issue to 43 (Ky.1970), the court reversed preserved by a motion for directed ver defendant’s conviction. The defendant had dict at the government’s close of the case unsuccessfully moved for a new trial on the in-chief, recognizing that such a motion basis of discovery of new evidence. The case, made the instant I am com court reversed insufficiency because of the pelled to the conclusion that no of the evidence which had resulted in a bar stands in way substantively eval *7 injustice. Hatton, manifest also supra. See uating petitioners’ convictions. Wain 72, wright Sykes, 2497, v.
The
argues
state principally
that its crim-
v. New (1974), guidelines subse Virginia, in Jackson v.
quently overruled Thus, never the state courts have
supra. of the evidence
evaluated under the Jackson appellees CORPORATION, CONCRETE ZEMON However, finding their un given standard. Petitioner, supported der Vachon that “no” evidence Borders, it the convictions follows a fortiori these convictions SAFETY AND OCCUPATIONAL test.2 faulty under the stricter Jackson REVIEW HEALTH COMMIS SION, Respondent. Blair, of Ken-
As to tucky there suffi- felt was “some” evidence Labor, Marshall, Secretary Ray cient to sustain a conviction. After a care- Co-Respondent. record, I conclude reading ful of the entire No. 79-1793. have that a rational trier of fact could guilty charged. him of the crimes found Appeals, United States Blair was indicating Circuit. Seventh shooting leaving the scene of second May 1982.* Submitted description a car which matched shooting, that one of car involved 2, 1982.** Decided June chambered previously the bullets had been gun gun recently in his and that a been automobile, along from his with his
fired supe- to his girlfriend
admissions his unanticipated application connect was no relevant evidence to and unforeseeable there petitioners App. at 30. prevents with the crime...”. rule . . court con- . claim.”) sideration of the merits of the That was not the case in the respect with to Blair. to the state The cases need be remanded is a courts. of the evidence * but, argument originally set for This test, legal not a factual Sumner determination. thereafter, waive oral Petitioner’s motion to Mata, L.Ed.2d 101 S.Ct. Consequently, argument granted. *8 does not As a therefore control. briefs and for decision on the case is submitted test, legal applied the Jackson standard can be 34(f); Fed.R.App.P. Circuit the record. See perfectly for the well 14(e). Rule appeal. first time on ** indepen- originally 3. an The District Court did not make decided order This respect dent evaluation of the evidence with Rule dated June 1982. See Circuit the court subsequently It stated that “the Borders. an issued it as The court has have, state courts con- all of their decisions opinion. evidence, consistently cerning held