Whorton v. Commonwealth

CLAYTON, Justice,

dissenting.

I believe that the result in Taylor v. Kentucky, - U.S. -, 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 *637 fore us. Rather, the question which must be answered is whether the failure to do so automatically constitutes reversible error in every case. Those who join in the majority today answer this query in the affirmative, alleging that they would like to be able to hold the requirement enunciated in Taylor subject to the harmless-error doctrine, but asserting that they cannot because “Taylor contains no hint that it might [be] appropriate to consider whether [a failure to instruct on the presumption] was in fact prejudicial.” Apparently their hearts were not really in it when they embarked upon the hunt.

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.” - U.S. at - n. 15, -, and -, 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.” - U.S. at -, 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,” - U.S. at -, 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.

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 *638 jurisdiction prohibiting instructions on presumptions and inferences. For as pointed out in Taylor itself, the presumption of innocence, unlike the presumption of knowledge from possession of recently stolen goods, for example, is not really a true “presumption” — i. e., a mandatory inference drawn from a fact in evidence — at all, but is rather merely an “assumption” to be indulged in the absence of evidence to the contrary. - U.S. at - n. 12, 98 S.Ct. 1930 .

I would affirm each of Whorton’s convictions except that involving wanton endangerment, which I agree is reversible on double jeopardy grounds.

According to a comprehensive national survey conducted by the National Center for State Courts, the actual figure is 37%. See Law-scope: State Courts Seeking to Draw Blueprint for the Future, 64 A.B.A. Journal 653 (May 1978).