Harold WHORTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
Supreme Court of Kentucky.
July 25, 1978.
Rehearing Denied Oct. 10, 1978.
570 S.W.2d 627
We do not find it possible to believe that in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), the Supreme Court of the United States meant to lay down a principle so pervasive as to require an appellate court to lay out for inspection by the appellant, even in a capital case, all of the information in its hands from which it may seek perspective and guidance in reviewing the propriety of his sentence. We therefore hold that Gardner does not apply.
It follows a fortiori that a defendant has no right to the production of this court‘s files for use at the trial stage. The Public Advocate contends that because it was observed in Gregg, 428 U.S. at p. 181, 96 S.Ct. at p. 2929, that the jury “is an objective index of contemporary values,” this kind of information is relevant as trial evidence to which a defendant has the right of compulsory process. The fault in this line of reasoning lies in the premise that evidence of what has happened in other similar cases is, because it tends to indicate contemporary values, admissible in the trial of a capital case. So far as we are concerned, that is a preposterous notion and such evidence is not admissible in the trial of a capital or any other criminal case. There is nothing in Gregg from which it may reasonably be inferred that the necessary standards for guidance of the jury in a capital case extend beyond pointing to “the main circumstances of aggravation or mitigation that should be weighed and weighed against each other when they are presented in a concrete case.” ALI, Model Penal Code § 201.6, Comment 3, p. 71 (Tent. Draft No. 9, 1959), as quoted with approval in Gregg, 428 U.S. at p. 193, 96 S.Ct. 2909.
In keeping with our observation that the fundamental principles expressed in City of St. Matthews v. Voice of St. Matthews, Inc., Ky., 519 S.W.2d 811 (1974), apply to the courts as well as to other governmental institutions, the materials compiled by AOC for this court pursuant to
The petition is denied.
All concur.
Terrence R. Fitzgerald, Deputy Public Defender, Daniel T. Goyette, Associate Director, Louisville, for appellant.
Robert F. Stephens, Atty. Gen., Victor Fox, Asst. Atty. Gen., Frankfort, for appellee.
PALMORE, Chief Justice.
The various charges grew out of three separate incidents. At a pre-daylight hour
During the episode at Jerry‘s Restaurant, while he was directing the employes and patrons into the rear area of the premises, Whorton said, “If you don‘t think I‘ll shoot you, I‘ll prove it,” and fired a shot into the ceiling. This particular act on his part was the basis for one of the wanton endangerment charges (the other endangerment count was for pointing a gun at the arresting officer), pursuant to which he was sentenced to five years in the penitentiary.
Whorton did not testify. The only evidence in his defense was given by his wife and her sister, who offered alibi testimony with regard to his whereabouts during the night on which the doughnut-shop robbery occurred.
Prior to the trial Whorton moved, among other things, that the issues of guilt or innocence be submitted to the jury separately from the fixing of the penalty or penalties, in order that he might appear as a witness only at the second stage for the purpose of showing mitigating circumstances, including his valorous military service during the Korean Conflict. Although neither our statutes nor rules of court authorize such a bifurcation except in persistent-offender and capital cases (cf.
At the close of the evidence and before the jury was instructed, counsel for Whorton tendered several federal-court type instructions which the trial court declined to give. One of these, undertaking to define reasonable doubt, was as follows:
“A reasonable doubt is a fair doubt based upon reason and common sense and arising from the state of the evidence. It is rarely possible to prove anything to an absolute certainty. The meaning of the rule is that the proof must be such as to exclude, not every hypothesis or possibility of innocence, but any fair and rational hypothesis except that of guilt; what is required is not an absolute or mathematical certainty but a moral certainty. An accused is not to be convicted on mere suspicion or conjecture. A reasonable doubt may arise, not only from the evidence produced, but also from a lack of evidence. Since the burden is upon the prosecution to prove the accused guilty beyond a reasonable doubt of every essential element of the crime charged, an accused has the right to rely upon failure of the prosecution to establish such proof. (An accused may also rely upon evidence brought out on cross-examination of witnesses for the prosecution.) The law does not impose upon an accused the duty of
producing any evidence. A reasonable doubt exists in any case when, after careful and impartial consideration of all the evidence, the jury members do not feel convinced to a moral certainty that an accused is guilty of the offense(s) charged.”
Another, instructing on the presumption of innocence, and substantially similar to the one offered and refused in Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978), was as follows:
“The law presumes an accused to be innocent of crime. He begins the trial with a clean slate, with no evidence against him. And the law permits nothing but legal evidence presented before the jury to be considered in support of any charge against the accused. So the presumption of innocence alone is sufficient to acquit an accused unless the jury members are satisfied beyond a reasonable doubt of the accused‘s guilt from all the evidence in the case.”
As given by the trial court, each of the instructions covering the various charges submitted to the jury authorized a finding of guilt only if the jury believed, (a) from the evidence and (b) beyond a reasonable doubt, that the defendant had committed the acts, with the requisite criminal intent, that constituted the respective offense. In addition, and as directed by RCr 9.561, the jury was specially instructed that if upon the whole case it had a reasonable doubt as to the defendant‘s guilt it was required to find him not guilty and, as to those charges on which the instructions embraced more than one degree of the offense, that if it found the defendant guilty but had a reasonable doubt as to the degree it was required to find him guilty of the lower degree. The special instruction on reasonable doubt defined the term as “a substantial doubt, a real doubt, in that you must ask yourself not whether a better case might have been proven but whether, after hearing all the evidence, you actually doubt that the defendant is guilty.” This definition originated, of course, from a passage contained in Merritt v. Commonwealth, Ky., 386 S.W.2d 727, 729 (1965). It was specifically approved for inclusion as a part of the instructions for criminal cases in Whitaker v. Commonwealth, Ky., 418 S.W.2d 750, 752 (1967), and subsequently has been upheld in numerous cases.2
With regard to the request for a bifurcated trial, the argument is that the 5th-Amendment right of silence is diluted, or “chilled,” by the fact that if a defendant elects to avail himself of its protection he pays a penalty in not being able to give mitigating testimony pertinent only to the amount of punishment in event of his conviction. We discussed a closely-related problem in Brown v. Commonwealth, Ky., 551 S.W.2d 557, 559-560 (1977), in which a defendant tried in a bifurcated persistent-offender proceeding asserted the converse proposition that his right to testify in his own behalf during the first stage of the trial would be unconstitutionally diminished by use in the second stage of information elicited from him through cross-examination at the first stage. And our answer here is much the same as it was there. In this state both functions, the finding of guilt and the fixing of punishment, always have been performed by the jury. There is no constitutional requirement that it be otherwise, or that the two be performed by different juries. So, when they are performed by the same jury the defendant simply must weigh the good he can do against the harm he may bring upon himself by electing to testify. As observed in Brown, the state‘s right of cross-examination is a chilling specter for the defendant to contemplate in any criminal case. We doubt, however, that even the Supreme Court of the United States is ready to declare that it violates the 5th Amendment. Needless to say, this court is not.
We agree that under the rationale of Sherley v. Commonwealth, Ky., 558 S.W.2d 615 (1977), Whorton‘s use of a pistol in firing a shot into the ceiling of Jerry‘s Restaurant did not constitute an offense separate from the 1st-degree robbery charge for which he was being tried and was convicted. Two of the three elements listed by
We shall not undertake to discuss at length the definition of reasonable doubt offered by Whorton as against the one given by the trial court. The point was noticed by a faint lifting of the skirt in Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978), wherein it was observed that the definition given by the trial court “though perhaps not in itself reversible error, often has been criticized as confusing.” It probably is beyond cavil that in the field of law many things are confusing to some, and that some things, among them a good sample of opinions by the United States Supreme Court itself, are confusing to all. We are at a loss to comprehend how a doubt may be considered “reasonable” if it is without substance, and therefore is insubstantial. The definition of “reasonable doubt” that has been approved by this court in recent years was borne of courtroom experience and discussion with jurors who had freshly emerged from the task of wrestling with an intangible concept, and who quite often were disposed to equate the term with “any shadow of a doubt,” or with a querulous sense of disappointment that somehow the prosecution had not proved its case to the degree that the jurors could arrive at a verdict without perspiring. Be that as it may, we now throw in the towel. As noted in Merritt v. Commonwealth, Ky., 386 S.W.2d 727, 729 (1965), we were never so presumptuous anyway as to believe that where others had failed we might succeed. The long and short of it is that we can no longer approve this definition, but unless and until the highest judicial authority is willing to hold it constitutionally fatal, neither will this court do so. Under the circumstances, we are of the opinion that the jury in this case was sufficiently and properly instructed on the subject.
From time immemorial the emphasis with regard to jury instructions in this state has been placed on simplicity. “The function of instructions in this jurisdiction is only to state what the jury must believe from the evidence (and in a criminal case, beyond a reasonable doubt) in order to return a verdict in favor of the party who bears the burden of proof.” Webster v. Commonwealth, Ky., 508 S.W.2d 33, 36 (1974). Thus we have sought to avoid ab-
Any thought that our form of instructions might have been designed for the simple-minded would be absurd. Its philosophy is to keep the jury strictly in its place, to keep the judge strictly in his place, to facilitate uniformity, to minimize error, and to avoid prolixity.
To abdicate this wholesome philosophy and flee to the soporific style of the federal courts for the mere sake of taking a step toward nationwide homogeneity would be regrettable. If there is to be a uniform system for the country, better might we entertain the hope that some consideration be given to the proposition that ours may be the preferable choice. Although the Supreme Court‘s reference to the instructions in Taylor as “skeletal” and “Spartan” may not have been so intended, it was more of a compliment than a slur. Indeed, we ourselves have said that instructions ought to provide “only the bare bones.” Cox v. Cooper, Ky., 510 S.W.2d 530, 535 (1974). To suggest that they are undernourished simply because they so appear in comparison with the bloated and cumbersome instructions customarily given in the federal courts is nothing less than a symptom of myopia.
In Taylor a judgment of the Franklin Circuit Court was reversed because the trial court declined to instruct the jury that the law presumes a defendant innocent—and this despite the fact that on voir dire the jurors had already signified that they understood that proposition! If the trial court‘s “truncated discussion of reasonable doubt . . . was hardly a model of clarity,” as remarked in Taylor, we must confess that we have a similar difficulty with the Taylor opinion itself.
The dissenting members of our court feel that the holding in Taylor is confined to the facts of the case. They draw that inference from the next-to-last sentence of the opinion (emphasis added): “We hold that on the facts of this case the trial court‘s refusal to give petitioner‘s requested instruction in the presumption of innocence resulted in a violation of his right to a fair trial as guaranteed by the Due Process Clause of the Fourteenth Amendment.”
Admittedly, the weight of evidence against Whorton was far greater than it was against the defendant in Taylor. But does the Supreme Court actually mean to suggest that a defendant‘s right to the instruction can be made, ultimately, to stand or fall on the weight of the evidence in a given case? If so, then every case in which the trial court refused to give it will have to be decided according to the Chapman-Harrington harmless-error test. If that was the intention, it would have been considerate of the court to say so. It may be that the question of harmless error was not argued in that case, but “a model of clarity” would have left a clean cut rather than a jagged stump. After all, it might reasonably have been foreseen that this court would have to apply the decision to a goodly number of other cases then in the process of appeal in this state, Whorton‘s being but one of them.
Those of us in the majority would like to be able to hold that this newly-declared
The judgment is reversed with directions for a new trial.
All concur except for CLAYTON and STEPHENSON, JJ., who dissent.
LUKOWSKY, Justice, concurring.
I concur with my brothers in the result we reach in this case. However, it seems to me that this case provides a forum in which we should articulate the paradoxical philosophies with which we are besieged and propose a course of action to minimize the problems which they create.
In the field of criminal procedure we have observed a decisional process by the Supreme Court of the United States which has crushed the status of the several states as “insulated chambers” of legal experimentation.1 The fuel which has fed this juggernaut is the concept that the due process clause of the Fourteenth Amendment of the Constitution of the United States makes the First, Fourth, Fifth, Sixth and Eighth Amendments of that document binding upon the several states.
The purpose of this discussion is not to ascertain whether this fuel is historically distilled2 or artificially synthesized.3 Rather it is to examine the path made by the steamroller and determine how it may be traveled most smoothly.
Most of the path in Kentucky was free of obstacles because the federal constitutional rules imposed by these decisions were in force here as matters of state law long prior to their enunciation by the Supreme Court of the United States.4 However, as the Supreme Court continues its journey it digs deeper in the terrain of state procedure, destroys traditional state prerogatives5 and causes adjustments to be made
State systems of criminal procedure are like delicate Swiss watches. They are designed to equally balance the rights of the parties. When the balance is externally disturbed the shockwave requires a reevaluation and readjustment of the entire system.
Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978), provides a perfect example. The case in effect establishes the principle that the due process clause of the Fourteenth Amendment requires a state trial judge to instruct the jury on the presumption of innocence when requested by a criminal defendant. The system of instructing juries developed in Kentucky prohibits instructions on presumptions and permissible inferences. The theory is that to avoid undue influence by the trial judge on the fact finding process
This rule was a two-edged sword and cut equally for and against both sides of the case. For example, we recently held that the Commonwealth was not entitled to an instruction on either the presumption of sanity or the presumption of knowledge which arises from the possession of recently stolen goods. Mason v. Commonwealth, Ky., 565 S.W.2d 140 (1978); Wells v. Commonwealth, Ky., 561 S.W.2d 85 (1978). Obviously, Taylor, supra, requires the restoration of balance to the rights of the parties. No thought was given to this aspect of the problem by those who mandated the change because they were neither conversant with the operation of the system, nor responsible for its maintenance.
A trial is no more than a search for the truth. The method by which that search is conducted is of little import so long as it is rational, fair to all parties and civilized.
The concept of a national mode of criminal procedure is not too unpalatable to be swallowed in America a century after the Civil War. The Supreme Court of the United States has made it clear that it will no longer pay homage to “federalism” by permitting the states to experiment with an ever lengthening list of new found “fundamental” rights of defendants in criminal cases.10
We should abandon the obsolete fortresses of local criminal procedure. Their unique character may be matters of pride, but their use does not so improve the search for the truth as to justify the time and energy lost in their defense. The litigation they spawn diffuses our efforts to apply, develop, and interpret substantive law and subordinates the question of guilt or innocence to the justification for the retention of local practices.
I would end the conflict and equalize the position of the parties now by:
1. Amending our Rules of Criminal Procedure to conform as closely as possible with the Federal Rules of Criminal Procedure including:
(a) Permitting the trial judge to charge the jury orally after closing argument and to comment on the weight of the evidence and the credibility of the witnesses.11 Contra, RCr 9.54(1).
(b) Abandoning the rule that a conviction may not be based on the uncorroborated testimony of an accomplice. Contra, RCr 9.62.
(c) Requiring the trial judge to fix all penalties other than death upon conviction. Contra, RCr 9.84.
(2) Adopting the Federal Rules of Evidence in toto, at least for use in criminal cases.12
This approach would insure that if the Supreme Court of the United States should reverse a Kentucky case on procedural grounds it would have to dine on a procedure, which it prepared and we could take comfort in the lament of the homemaker that the dullest food is that which you cook yourself.
REED, Justice, concurring.
I join the majority opinion to the extent it holds that the only reversible errors presented were the trial judge‘s refusal to comply with the submitted request of the appellant for an instruction on the “presumption” (more properly, assumption) of innocence, and his submission to the jury of the charge of wanton endangerment growing out of the firing of a shot into the ceiling despite appellant‘s objection that the submission constituted an impermissible multiplicity. I do not, however, agree with some of the observations made in the majority opinion, although I do thoroughly agree with other statements made therein.
I am in substantial agreement with most of what is said in my brother Lukowsky‘s concurring opinion. I am persuaded, however, that the United States Supreme Court is not the only agency seeking to impose a gray blanket of national uniformity on the court systems of the several states. So-called national “standards,” “guidelines” and “goals” are poured forth without much, if any, consideration given to the experience, record and workability of individual state systems, more particularly those not represented on the frequently formed “conferences,” “committees,” “commissions,” “sections,” and “task forces,” which with boring frequency are usually composed of the same people who apparently nominate each other for inclusion in the proliferating projects. It taxes one‘s credulity to conclude that these individuals possess expertise in so many diverse areas.
I do not share the asperity of the majority concerning the federal trial method. After all, it has delivered a good and acceptable product of justice in Great Britain for a long time and fourteen states of the Union are using it with results satisfactory to them. I disagree with my brother Lukowsky that it is either necessary or desirable for a trial judge to comment on the credibility of witnesses or for us to swallow indiscriminately the complete Federal Code of Evidence to assure federal acceptance of our system‘s results or to provide a fairer system than we have.
My present uneasiness about our jury instruction methods is that they are too complicated rather than too “sparse” or “truncated.” I would prefer letting a trial judge explain in concise layman‘s language, in all places possible, what a jury‘s function is and to relate it to the particular case on trial. I would recommend that this procedure be used by the judge at the commencement of trial and after final arguments have been completed. This procedure basically is nothing more than an adaptation and extension of the interrogatories to the jury provisions we already have in our procedural rules for civil cases.
CLAYTON, Justice, dissenting.
I believe that the result in Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978), was meant to, and that it should, be limited to factual situations similar to the one in that case, and I am greatly surprised and disappointed that the majority of my brothers do not agree.
It should be noted from the outset that although I too resent the Taylor decision because it represents yet another encroachment by the United States Supreme Court upon the once hallowed ground of state procedural law, I hardly see how we can take offense at the principle espoused therein. The notion that a man is presumed innocent until proven guilty is every bit as firmly embedded in the criminal law of Kentucky as in its federal counterpart, and in light of the recent revelation that over a third of all Americans believe it is the responsibility of the accused to prove his or her innocence,* it might be a good idea to remind jurors of this fundamental rule.
Whether an instruction on the presumption of innocence should be given whenever requested, however, is not the question be-
Not once, but three times the clue the majority says it is searching for appears in the Taylor opinion, the Supreme Court initially referring to the “cumulative effect of the potentially damaging circumstances of this case,” and the “particular need for such an instruction in this case” and concluding by stating that “[w]e hold that on the facts of this case the trial court‘s refusal to give petitioner‘s requested instruction on the presumption of innocence resulted in a violation of his right to a fair trial as guaranteed by the Due Process Clause of the Fourteenth Amendment.” Id. at 487 n. 15, 490, 98 S.Ct. at 1937 (emphasis added). I submit that it is apparent from these passages that the Supreme Court fully intended to limit Taylor to its facts. Although certainly not determinative of the issue, this position is hardly undermined by the comment of the dissenters in Taylor that “[i]n some cases the omission [of an instruction on the presumption of innocence] may be fatal, but the court wisely avoids holding that this is always so.” Id. at 491, 98 S.Ct. at 1938 (Stevens, J., dissenting).
Far more important than the appearance of those specific passages, however, is the thrust of the Taylor decision as a whole. As I read the majority opinion in that case, there are three significant points to be derived therefrom: first, that instructions on the presumption of innocence and reasonable doubt do not necessarily perform the same function—although both instructions inform the jury who has the burden of establishing guilt (the prosecution), the instruction on the presumption of innocence tells the jury how that guilt must be proven (by legal evidence only), while the instruction on reasonable doubt tells the jury how much proof is required; secondly, that the crucial question in determining whether there is any “purging” function to be performed by an instruction on the presumption is whether there exists “a genuine danger that the jury [might] convict [the accused] on the basis of those extraneous considerations, rather than on the evidence introduced at trial,” id. at 487-488, 98 S.Ct. at 1936—in Taylor the extraneous circumstances cited as creating a need for this purging effect were the prosecutor‘s reading of the indictment to the jury and his remarks during summation implying that the mere fact Taylor had been charged with a crime was evidence of his guilt; and finally, and most importantly for our purposes, that in answering the preceding question, the level of danger can be affected by the weight of the evidence for or against the accused—in Taylor the court specifically found that the risk was “heightened because the trial was essentially a swearing contest between [the] victim and [the] accused.” Id. at 488.
If the danger that the jury might convict the accused on the basis of extraneous matters is increased where the case is close on the evidence, surely that danger must be decreased where the evidence against the accused is overwhelming in relation to the evidence in his favor. In the case at hand, the indictment against Whorton was read into the record in the presence of the jury unaccompanied by an admonition that it was not to be considered as evidence. Immediately thereafter, there followed a parade of fifteen eyewitnesses who positively identified Whorton as the perpetrator of the crimes charged therein. Under these circumstances, I simply cannot believe there is any real possibility that the reading of the indictment could have affected either the jury‘s determination of guilt or punishment.
In closing I wish to emphasize that I do not believe that either Taylor or the decision reached by the majority today disturbs the time-honored and salutary rule in this
I would affirm each of Whorton‘s convictions except that involving wanton endangerment, which I agree is reversible on double jeopardy grounds.
STEPHENSON, Justice, dissenting.
I agree with the majority opinion to the extent of the holding that Whorton‘s use of a pistol in firing a shot into the ceiling of Jerry‘s Restaurant did not constitute a separate offense from the 1st-degree robbery charge. In all other respects I dissent.
The majority opinion oversimplifies my dissent. A careful reading of Taylor demonstrates to me that the failure to give a presumption of innocence instruction was held reversible error, primarily for the reason stated in Taylor that there was a risk that the jury would convict on the basis of the extraneous considerations mentioned in Taylor and “That risk was heightened because the trial essentially was a swearing contest between victim and accused.” Taylor went on to state “the particular need for such an instruction in this case.”
It is my view that with the equivocal language in Taylor the simple solution in this case is to apply the Chapman-Harrington test. Here we have three witnesses who identified Whorton in the robbery of the Doughnut Shop, two witnesses who identified Whorton in the robbery of the Burger Chef, ten witnesses who identified Whorton in the robbery of Jerry‘s and the arresting officers on the charge of wanton endangerment. The only defense offered at all was the testimony of Whorton‘s wife and sister who offered alibi testimony for the robbery of the Doughnut Shop. With Whorton not testifying we have a case for the prosecution that passes overwhelming evidence of guilt and reaches conclusive evidence of guilt. I do not believe that any thoughtful person would say that the failure to give a “presumption of innocence” instruction constituted unfair prejudice to Whorton. There can be no doubt at all that a conviction would have resulted if the instruction had been given; so, it follows that the error was harmless beyond a reasonable doubt, the basis of the Chapman-Harrington test.
Taylor does not pretend to hold that the constitutional right to a “presumption of innocence” instruction is so absolute that failure to give the instruction is reversible in all cases. It is my opinion that Taylor should be applied on a case by case basis depending on the circumstances in the particular case, and I am willing to handle the problem in this fashion rather than the rigid rule enunciated in the majority opinion which goes beyond the requirements of Taylor.
Jo Ann AMBS, Ann G. Tucker, and Nancy Lawson, Appellants, v. BOARD OF EDUCATION OF JEFFERSON COUNTY, Kentucky, et al., Appellees.
Court of Appeals of Kentucky.
Feb. 24, 1978.
Rehearing Denied April 21, 1978.
Discretionary Review Denied Oct. 3, 1978.