Whorton v. Commonwealth

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 distilled 2 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 prerogatives 5 and causes adjustments to be made *634 which are of uncalculated impact. The court has also chosen to examine but has refrained so far from disturbing other state procedural devices. 6 It is fair to say that this process has nationalized criminal procedure, 7 even though there are those who would dispute this conclusion. 8 The course of the Burger court is not significantly different from that of the Warren court, except that it has limited the use of federal habeas corpus as a method of enforcing these newly promulgated constitutional rights. 9

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, - U.S. -, 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 for or against either party the instructions should simply focus the attention of the jury on those ultimate facts which it must decide in order to reach a verdict. Consequently, the instructions are skeletal in form, given prior to closing argument and leave to the lawyers the task of fleshing them out in closing argument insofar as the evidentiary facts of the case, the weight of the evidence and the credibility of the witnesses are concerned.

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. *635 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.

. Traux v. Corrigan, 257 U.S. 312, 344 , 42 S.Ct. 124, 134 , 66 L.Ed. 254, 268 (Holmes, J., dissenting) (1921).

. The historical validity of this rationale is supported by Hutchinson, The Foundations of the Constitution (1975) and Gora, Due Process of Law (1977).

. The historical validity of this rationale is undermined by Meyer, The History and Meaning of the Fourteenth Amendment, Judicial Erosion of the Constitution Through the Misuse of the Fourteenth Amendment (1977) and Berger, Government by Judiciary, the Transformation of the Fourteenth Amendment (1977).

. Compare: Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961) with Youman v. Commonwealth, 189 Ky. 152 , 224 S.W. 860 (1920) (suppression of evidence illegally obtained); Gideon v. Wainwright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963) with Turner v. Commonwealth, 89 Ky. (7 Bush) 78, 81 , 1 S.W. 475, 476 (1886) and Holland v. Commonwealth, 241 Ky. 813 , 45 S.W.2d 476, 477 (1932) (indigent’s right to appointed counsel in serious criminal cases); Duncan v. Louisiana, 391 U.S. 145 , 88 S.Ct. 1444 , 20 L.Ed.2d 491 (1968) with Constitution of Kentucky Sec. 11 (1891) (right to trial by jury); Ballew v. Georgia, 435 U.S. 223 , 98 S.Ct. 1029 , 55 L.Ed.2d 234 (1978) with Constitution of Kentucky Sec. 248 (1891) (permissible size of juries); Jackson v. Denno, 378 U.S. 368 , 84 S.Ct. 1774 , 12 L.Ed.2d 908 (1964) with KRS 422.110(2) (1942) (method of determination of admissibility of confessions); Coker v. Georgia, 433 U.S. 584 , 97 S.Ct. 2861 , 53 L.Ed.2d 982 (1977) with KRS 510.040(2) and 532.030 (1975) (imposition of the death penalty for rape).

. See, e. g., In re Gault, 387 U.S. 1 , 87 S.Ct. 1428 , 18 L.Ed.2d 527 (1967) (constitutionalization of juvenile procedures); Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972); Roberts v. Louisiana, 428 U.S 325, 96 S.Ct. 3001 , 49 L.Ed.2d 974 (1976); Gregg v. Georgia, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976) (procedure for invoking death penalty); Coleman v. Alabama, 399 U.S. 1 , 90 S.Ct. 1999 , 26 L.Ed.2d 387 (1970) (right to counsel at preliminary hearing); Henderson v. Morgan, 426 U.S. 637 , 96 S.Ct. 2253 , 49 L.Ed.2d 108 (1976) (guilty plea procedure); Chambers v. *634 Mississippi, 410 U.S. 284 , 93 S.Ct. 1038 , 35 L.Ed.2d 297 (1973) (evidentiary rules); Tate v. Short, 401 U.S. 395 , 91 S.Ct. 668 , 28 L.Ed.2d 130 (1971) (indigents not subject to imprisonment for non-payment of a fine); Herring v. New York, 422 U.S. 853 , 95 S.Ct. 2550 , 45 L.Ed.2d 593 , (1975) (closing argument at trial required); Wardius v. Oregon, 412 U.S. 470 , 93 S.Ct. 2208 , 37 L.Ed.2d 82 (1973) (notice of alibi rule requires reciprocal discovery).

. See, e. g., Chaffin v. Stynchcombe, 412 U.S. 17 , 93 S.Ct. 1977 , 36 L.Ed.2d 714 (1973) (jury sentencing permissible); McGautha v. California, 402 U.S. 183 , 91 S.Ct. 1454 , 28 L.Ed.2d 711 (1971) (bifurcated trial not required); Lego v. Twomey, 404 U.S. 477 , 92 S.Ct. 619 , 30 L.Ed.2d 618 (1972) (voluntariness of a confession may be determined by the trial judge on a preponderance of the evidence standard and need not be redetermined by the jury); Johnson v. Louisiana, 406 U.S. 356 , 92 S.Ct. 1620 , 32 L.Ed.2d 152 (1972); Apodaca v. Oregon, 406 U.S. 404 , 92 S.Ct. 1628 , 32 L.Ed.2d 184 (1972) (unanimous verdict not required); McKeiver v. Pennsylvania, 403 U.S. 528 , 91 S.Ct. 1976 , 29 L.Ed.2d 647 (1971) (juveniles have no right to a jury in a delinquency trial).

. E. g., Pye, The Warren Court and Criminal Procedure, 67 Mich.L.Rev. 249 (1968); Meador, Are We Heading for a Merger of Federal and State Courts?, 17 The Judges’ Journal, No. 2, 9 (1978).

. E. g., Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif.L.Rev. 929 (1965); Burger, To Weaken Our State Courts Is to Destroy Federalism, 17 The Judges’ Journal, No. 2, 10 (1978).

. Wainwright v. Sykes, 433 U.S. 72 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977); Stone v. Powell, 428 U.S. 465 , 96 S.Ct. 3037 , 49 L.Ed.2d 1067 (1976).

. Compare Crist v. Bretz, - U.S. -, 98 S.Ct. 2156 , 57 L.Ed.2d 24 (1978) with Graham v. Commonwealth, Ky., 562 S.W.2d 625 (1978) and Cross v. Commonwealth, 270 Ky. 537 , 109 S.W.2d 1214 (1937) (when jeopardy attaches).

. This change has been advocated in civil as well as criminal cases on state constitutional grounds. Lukowsky, The Constitutional Right of Litigants to Have the State Trial Judge Comment Upon the Evidence, 55 Ky.L.J. 121 (1966); Hoyt, the Judge’s Power to Comment on the Testimony in his Charge to the Jury, 11 Marq.L.Rev. 67 (1927); Shelton, Is the Common-Law Relation of Judge and Jury Subject to Legislative Change?, 3 Va.L.Rev. 275 (1916). There are those who maintain that this should not he permitted because state trial judges are not as able as their federal counterparts. It must be remembered that federal judges are “appointed” not “annotated.” There is no valid reason why the political accident that a man is a federal rather than a state judge should make him more competent, or conscientious, or learned than his opposite number in the state courthouse. Stone v. Powell, supra, 428 U.S. at 474 n. 6, 493 n. 35, 96 S.Ct. at 3043 n. 6, 3052 n. 35, 49 L.Ed.2d at 1076 n. 6, 1087 n. 35. Three of the six United States district judges presently sitting in Kentucky were appointed to their posts while they were sitting as judges of the Circuit Court of Kentucky. This method of instructing juries is in satisfactory use in fourteen states. Lukowsky, supra, at 125 n. 12.

. Compare Chambers v. Mississippi, supra n. 5 with Crawley v. Commonwealth, Ky., 568 S.W.2d 927 (1978).