# Opposition — Vittitow v. Kentucky

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1975
- **Citation:** 423 U.S. 834

## Text

Supreme Ceert, U. $. “Tl
FILED

JUL 2 1975

ee
SUPREME COURT OF THE UNITED STATES

October Term, 1975

No. 74-1512
: JOSEPH RAYMOND VITTITOW .=_—-_____.. PETITIONER
Vs:
COMMONWEALTH OF KENTUCKY __ . RESPONDENT

ON PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF APPEALS OF KENTUCKY

BRIEF FOR RESPONDENT IN OPPOSITION
TO PETITION FOR WRIT TO CERTIORARI

ED. W. HANCOCK

ATTORNEY GENERAL
Capitol Building
Frankfort Kentucky, 40601

PATRICK B. KIMBERLIN, III
ASSISTANT ATTORNEY GENERAL
Capitol Building
Frankfort, Kentucky 40601

>= ——r re)»,

COUNSEL FOR RESPONDENT

— EE eee

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—

INDEX

Page
TABLE OF AUTHORITIES ................. ii
STATEMENT OF
QUESTIONS PRESENTED ................ vi
OPINION BELOW .......................... 1
JURISDICTION .........0.0.00....0.......... 1-7
I ee Fi P0505 brik wdiddcenneveveceeeeee. 7-8
STATUTORY PROVISIONS INVOLVED
KENTUCKY REVISED STATUTES 433.220 .. 8
COUNTERSTATEMENT OF THE CASE ..... 8-11
cates da vosese sigh MOC EE TOOT eae 11-21

I. THE CIRCUMSTANTIAL EVIDENCE PRESENTED
AT TRIAL BY THE PROSECUTION WAS MORE
THAN SUFFICIENT TO SUPPORT THE PETI-
TIONER’S CONVICTION OF GRAND LARCENY;
THUS, NO SUBSTANTIAL CONSTITUTIONAL
IS PRESENTED NOR IS THERE A CONFLICT
AMONG THE VARIOUS STATE AND FEDERAL
JURISDICTIONS ....... __....... bvekads u

Il. THE SEARCH OF THE AUTOMOBILE DRIVEN
BY THE PETITIONER DOES NOT PRESENT
A SUBSTANTIAL CONSTITUTIONAL QUESTION
PERTAINING TO HIS FOURTEENTH AMEND-
MENT DUE PROCESS RIGHT TO A FAIR TRIAL 15

Ill. PETITIONER’S DUE PROCESS RIGHTS TO A
FAIR TRIAL WERE NOT VIOLATED BY THE
ADMISSION INTO EVIDENCE OF PHOTOGRAPHS
OF ONLY ONE SET OF BOOTPRINTS ____— -

EE asc eeeuv Gen cuiddedhandcceccess 22

n

TABLE OF AUTHORITIES

Page

Berea College v. Kentucky,

211 U.S. 45 (19GB) ..ccccscccucceueeen coon COS
Bilby v. Stewart,

246 US. 255, 257 (1987) .cccesscseeannneel 2
Cardinale v. Louisiana,

St U.S. 4397 (19GB) .ccccdescecenneneee 7
Carroll v. United States,

207 U.S. 133 (3198S) ...ccessccenneee 18
Chambers v. Maroney,

399 U.S. 42 (1970) ..000cucedenene eee 18
Coolidge v. New Hampshire,

405 U.S. 443 (IGE) ..ccesedecduaueeneee 18
Department of Mental I1ygiene v. Kirchner,

S80 U.S. 194 (1068) ...ccccessecucnneee 7
Dixon v. Duffy,

HAS U.S. 33 (1951) .0000ccenccennneeeee se 6
Eversole v. Commonwealth, Ky.,

208 S.W. 2d SB (1966) ..ccccssaceuanneee 13
Faughn v. Commonwealth, Ky.,

433 S.W. 38 743 (1GPO) occ cccdccsss ee oo
Hayes v. Hayes, Ky.,

357 S.W. 2d 863 (1962) ......... 21
Henry =. Mississippi,

a/9 U.S. 443 (1965) .. ... ©) ee 6

ili

TABLE OF AUTHORITIES (Continued )

Page

Herb v, Pitcairn,

I 6
Holland v. United States,

ee 13
Hollowell v. Commonwealth, Ky.,

992 SW. 2d BBA (1973) 2... cc ccccccccccccccee 15
Hunt v. Commonwealth, Ky.,

338 S.W. 2d 912 (1960) ... 0... cece eee ee 13
Iles v. Commonwealth, Ky.,

476 S.W. 24 170 (1972) ...... cc ccccccccccccee 17
Illinois Central Railway Co. v. Kentucky,

WE COMPO) oc ccc ccc ccccccccccccece. 2
Lynch v. New York ex rel Pierson,

cs ccc cccccccccccces 3, 17
Madden v. Kentucky,

sc. ccc cccccecs 6
Maryland and Virginia Eldership of Churches of

God v. Church of God at Sharpsburg, Inc.,

ecco cc ccccccccccecs 5
Missouri Pacific Railroad Co. v. Hanna,

ED soc ccccccccccccccccccces a
Murdock v. Memphis,

ade cccccecccccceses 4
New York Central & Hudson River Railroad Co. v.

New York, 186 U.S. 269 (1901) .............. 3

iv

TABLE OF AUTHORITIES (Continued)

Page
New York ex rel Bryant v. Zimmerman,
Sow Wee GLUED xsnxsadcackeunadenseunaes 3
O’Brien v. O’ Brien,
294 Ky. 793, 172 S.W. 2d 595, 609 Co ae 16
Oxley Stave Co. v. Butler County,
166 U.S. 648, 655 (1897) 2.0... . cece ccc c cece 4

People of New York, ex rel Consolidated Water Co.
of Utica v. Maltbee, 303 U.S, 158 (1938) ........ 7

Shelton v. Commonwealth, Ky.,
GOO BW. BB GG CIBVE) onc nvccccccccoscceccee 15

Southwestern Bell Telephone Co. v. State of
Oklahoma, 303 U.S. 206 (1938) ........cceeeee 6

United States v. Brown,
452 F. 2d 868 (6th Cir. 1971) 2.0... . ec cece cc eeee 17

United States v. Gargotto,
476 F. 2d 1009 (6th Cir. 1973) ..... cc ccc cess 18

Webb Transfer Lines, Inc. v. Taylor, Ky.,
4359 S.W. 2d GB (1GGD) 2... cccccccccccccceees 21

Winn v. Commonwealth, K’y.,
DUS S.W. 24 275 (1957) ....cccccccccccccccece 15

Wombles v. Commonwealth, Ky.,
S17 S.W. 24 16D (1958) ....cccccccccccece coos 13

Young v. Ragen,
OF Shah Ge COE dsndccceenddae 6

Vv

TABLE OF AUTHORITIES (Continued)

Page
Kentucky Statutes:
WE bC dates Sabusbendeutidbercne le. 12
SPACE Ties weed ae er se 8, 12
State and Federal Constitution:
Bill of Rights of the
Kentucky Constitution, Section 14 .............. 16
Section 10 of the
Kentucky Constitution ..........cccccccccccccs 16
4th Amendment to the
United States Constitution ................00c. 16
14th Amendment to the
United States Constitution .................0.. 16
Other Citations:
ee Ss PEED bi ceocdecessuucocsss 1, 7, 22
I I i ei decide cto 7,8
Supreme Court Rule 23(1)(f) ..........ceceeeee >
Russell’s Kentucky Practice,
ee Wy SE CE EP nic eeenndenccdscceedens 12

vi

STATEMENT OF THE
QUESTIONS PRESENTED

I. WHETHER THE CIRCUMSTANTIAL EVIDENCE PRE-

il.

SENTED AT TRIAL BY THE PROSECUTION WAS
SUFFICIENT TO SUPPORT PETITIONER’S CONVIC-
TION OF GRAND LARCENY; AND, IS THERE A CON-
FLICT OF DECISIONS AMONG STATE AND FEDERAL
JURISDICTIONS?

WHETHER THE SEARCH OF THE AUTOMOBILE
DRIVEN BY THE PETITIONER PRESENTS A SUB-
STANTIAL CONSTITUTIONAL QUESTION PERTAIN-
ING TO PETITIONER’S FOURTEENTH AMENDMENT
DUE PROCESS RIGHT TO A FAIR TRIAL?

WHETHER PETITIONER’S DUE PROCESS RIGHTS
TO A FAIR TRIAL WERE VIOLATED BY THE AD-
MISSION INTO EVIDENCE OF PHOTOGRAPHS OF
ONLY ONE SET OF BOOTPRINTS?

a ae

ce A

SUPREME COURT OF THE UNITED STATES

October Term, 1975

No. 74-1512

JOSEPH RAYMOND VITTITOW PETITIONER

VS:

COMMONWEALTH OF KENTUCKY RESPONDENT

ON PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF APPEALS OF KENTUCKY

BRIEF FOR RESPONDENT IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORARI

OPINION BELOW
The Opinion Below from the Kentucky Court of

Appeals is a Memorandum Opinion, not to be cited as

authority, and is correctly set forth in the petitioner’s

Appendix at page | A of his Petition for Writ of Certiorari.
JURISDICTION

Petitioner's application to invoke the jurisdiction

of this Court should be denied because it fails to meet the
jurisdictional requirements of Title 28 U.S.C. § 1257(3).

The petitioner urges this Court to grant his Petition

2

for Writ of Certiorari to consider three issues, each of
which are alleged to involve substantial federal questions.
But, no federal question was ever presented to the state
courts until the petitioner filed a Supplemental Petition
for Rehearing in the Kentucky Court of Appeals on Janu-
ary 16, 1975. However, by that point in time the Ken-
tucky Court of Appeals had already affirmed the decision
of the trial court on October 28, 1974. Subsequent to
that affirmance, the petitioner filed a Petition for Re-
hearing before the Kentucky Court of Appeals on Decem-
ber 12, 1974. Shortly thereafter, petitioner retained new
counsel and said counsel filed a Supplemental Petition for
Rehearing urging for the first time alleged violations of
federally constitutional rights. However, the Petition
for Rehearing and Supplemental Petition for Rehearing
were subsequently denied and the mandate was issued on
February 21, 1975. There was no change in the original
opinion of the Kentucky Court of Appeals affirming the
petitioner’s conviction.

As this Court is aware, when a federal question ap-
pears for the first time in a petition for rehearing filed
with the highest state court, that question is deemed to
have been properly raised only if the state court enter+

tains the petition and expressly rules upon and dis-
poses of the federal question involved. Illinois Central
Railway Co. v. Kentucky, 218 U.S. 551 (1904). That
rule, of course, is the same where the federa! question is
raised for the first time in a second petition for rehearing
before the state court. Bilby v. Stewart, 246 U.S. 255,
257 (1917).

3

In the instant case the petitioner did not rely upon
federal grounds in the state courts until he filed his
Supplemental Petition for Rehearing in the Kentucky
Court of Appeals. In any event, the opinion of the Ken-
tucky Court of Appeals previously issted was not changed
or effected in any manner whatsoever. In a case such
as this where it is quite clear that the federal questions
now urged were presented for the first time at so late a
stage in the state proceedings and the state court did not
expressly dispose of those questions, then this Honorable
Court is obviously without jurisdiction to consider those
matters on a petition tor writ of certiorari. //linois Central
Railway Co. v. Kentucky, supra.

Furthermore, the mere fact that petitioner cited
United States Supreme Court cases to the state court is
an insufficient predicate upon which to either raise a fed-
eral question or establish jurisdiction. After all, jurisdic-
tion cannot be founded by surmise. Lynch v. New York
ex rel Picrson, 293 U.S. 52 (1934). In raising a federal
question, it is necessary that the question be presented
in the state courts in such a manner that there is no doubt
that reliance is upon federal rather than state rights. See
New York Central & Hudson River Railroad Co. v. New
York, 186 U.S. 269 (1901). This Court has stated that
if it is uncertain whether a claim is grounded on some
provision of the State Constitution or of the Federal Consti-
tution, it will be assumed that reference is being made
to the State rather than the Federal Constitution. See
New York ex re! Bryant v. Zimmerman, 278 U.S. 63
(1928). Here, the opinion of the Court of Appeals of
Kentucky contains no specific reference to either state
or federal law. However, since that opinion was rendered

4

on the basis of a trial record and appellate briefs reflect-
ing no federal grounds, it must be concluded that the
opinion rests solely upon adequate state grounds. There-
fore, this Court has no jurisdiction to review that opinion
by way of certiorari. Murdock v. Memphis, 20 Wall 590
(1875). Missouri Pacific Railroad Co. v. Hanna, 266 U.S.

184 (1924).

Also, it is interesting to note that the petitioner does
not specify what stage in the proceedings of the court
of first instance and in tie state appellate court at which,
and the manner in which, the federal questions sought to
be reviewed were raised. In the case at bar, the petitioner
has failed to point out or make reference to the record
below in order to establish where and the manner in which
he presented the federal questions he now raises. Thus,
even if the petitioner had raised the federal questions in
the courts below, which ie did not, his failure to comply
with Rule 23 (1)(f) forecloses certiorari review by this
Court now. After all,

“The jurisdiction of this Court to reexamine the
final judgment of tle state court cannot arise from
mere inference, but only from affirmance so distinct
and positive as to place it beyond question that the
party bringing a case here from such court intended
to assert a Federal right.” Oxley Stave Co. v. Butler
County, 166 U.S. 648, 655 (1897).

In any event, the issues now presented by the peti-
tioner, even if they had been properly raised in the court
below, do not constitute substantial federal questions
as would invest this Court with jurisdiction. This being

5

so, the petition should be dismissed. Maryland and Vir-

gimia Eldership of Churches of God v. Church of God at
Sharpsburg, Inc., 390 U.S. 367 (1970).

For instance, petitioner’s first contention is wheth-
er there was sufficient evidence to support the convic-
tion. The Kentucky Court of Appeals, in their opinion
affirming petitioner’s conviction, stated “. . . that the
evidence was sufficient to sustain the conviction, .. .”
This is hardly a matter involving a substantial federal
question. Even petitioner's allegation that the law is in
conflict among jurisdictions in this area js totally un-
founded. Similarly, the third contention fails to reflect
a question of such substantial federal magnitude as to
require review by certiorari. This issue centers around
whether the petitioner was prejudiced by the admission
of certain photographs and a key into evidence and testi-
mony pertaining thereto. Again, no substantial federal
question is presented thereby. Petitioner’s second con-
tention as to an alleged illegal search and seizure is like-
wise lacking of such substance as to necessitate review
by certiorari.

Furthermore, this Court has consistently adhered
to the self-imposed principle that it will not review a
state court judgment based upon an adequate and in-
dependent nonfederal ground even if a federal question
had been properly raised. Berea College v. Kentucky, 211
U.S. 45 (1908). Here, the opinion of the Kentucky
Court of Appeals reflects the consideration of no federal
issues. In fact, no federal issues arose for the trial court’s
consideration nor were any federal questions presented to

6

the Kentucky Court of Appeals prior to the rendition of
that opinion. An examination of the opinion of the Ken-
tucky Court of Appeals reflects that it was based solely
upon state grounds and was not dependent on or touch-
ing upon a substantial federal question. Under these cir-
cumstances this Court has no jurisdiction to review the
decision of the Kentucky Court of Appeals upon a petition
for writ of certiorari since its power over state judgments
is to correct them only to the extent that the state court
incorrectly adjudged federal rights. Herb v. Pitcairn, 324
U.S. 117 (1945); Dixon v. Duffy, 342 U.S. 33 (1951);
Young v. Ragen, 337 U.S. 235 (1949); Madden v. Ken-
tucky, 309 U.S. 83 (1940) ; Henry v. Mississippi, 379 U.S.
443 (1965). Here, no federal questions are involved.

In fact, other than in a supplemental petition for
rehearing filed in the Kentucky Court of Appeals, the
record does not affirmatively indicate that the federal
questions now raised were presented in any fashion to the
state courts.’ Moreover, a comparison of the federal ques-
tions now presented with the record indicates that those is-
sues now raised would not have been necessary to the deter-
mination of the cause hefore the Kentucky Court of Ap-
peals. Here, the decision of the Kentucky Court of Ap-
peals was rendered without deciding, or without meaning
to decide, the federal questions now presented io this court.
Southwestern Bell Telephone Co. v. State of Oklahoma,
303 U.S. 206 (1938): People of New York, ex rel Con-

1/ The respondent, under separate cover, has lodged a certi-
fied conv of the state court record with the Clerk of the Sup-
reme Court.

= A tn

7

solidated Water Co. of Utica v. Maltbee, 303 U.S. 158
(1938).

Finally, certiorari jurisdiction is completely discre-
tionary under Rule 19 and the respondent submits that the
petition for writ of certiorari should be dismissed since
the issues raised in the petition neither arise under such
exceptional circumstances to require review of the decision
of the Kentucky Court of Appeals nor present any federal
questions, much less substantial federal questions, as would
merit the discretionary exercise of this Court’s review by
certiorari. Department of Mental Hygiene v. Kirchner, 380
U.S. 194 (1965); Cardinale v. Louisiana, 394 U.S. 437
(1969).

SUMMARY

In summary, the respondent submits that the petition-
er's application for writ of certiorari should be denied be-
cause it fails to meet the jurisdictional requirements of
Title 28 U.S.C. § 1257(3). The purpose of review by
writ of certiorari is not to give the defeated party another
hearing, yet in the instant case the arguments set out in
the petition are nothing more than a rehash of contentions
previously presented relating to state law in the state trial
and appellate courts. Only now those arguments are
clothed in allegations of federal constitutional depriva-
tions. As previously pointed out, these federal questions
were raised too late to preserve those issues on certiorari
review. Moreover, even if those issues had been properly
preserved they do not constitute substantial federal ques-
tions as would require certiorari review. Nor has the peti-

8

tioner set out sufficient grounds in the petition as to justify
the discretionary exercise of the jurisdiction of this Court

under Rule 19.

The respondent will now endeavor to respond to each
of the three contentions raised by the petitioner as though
said conientions were properly before the Court, even
though respondent maintains they are not.

STATUTORY PROVISIONS INVOLVED
KENTUCKY REVISED STATUTES 433.220

Any person guilty of larceny of money or other prop-
erty of the value of one hundred dollars or more shall be
confined in the penitentiary for not less than one nor more
than five years. Any person who unlawfully takes, drives
or operates a vehicle without the knowledge and consent
of tie owner shall be subject to the same punishment.

COUNTERSTATEMENT OF THE CASE

At approximately 1:30 a.m. on the morning of Au-
gust 22, 1973, Mr. Carroll Bevarly, the owner of Smith’s
Grove Drugstore located on Main Street in Smith’s Grove,
Warren County, Kentucky, was awakened by the burglar
alarm device located in his drugstore. (Transcript of
Evidence, hereinafter TI, 75-77). Mr. Beverly’s house
is located four and one-l-alf blocks from the drugstore and
the latter building is equipped with a burglar device which
sets off an alarm in Mr. Bevarly’s home when activated.
After awakening his wife, who proceeded to call the
police, Bevarly immediately dressed, armed himself with a
12 gauge shotgun, and proceeded to his drugstore where

\)

he saw three men on the roof of the building. (TE, 77-81,
96). However, it was so dark that he was unable to iden-
tify them other than as to their size.

Bevarly fired one warning shot whereupon the
three men on the roof attempted an immediate descent to
the ground. Two of tke men jumped off the roof from
the side of the building opposite from where Bevarly was
standing and upon doing so they left bootprints at the
spot where they hit tie ground. (TE, 82-83). The third
man, l:ugene Byrns, had the misfortune of jumping off
the roof and landing almost at the feet of Mr. Bevarly
(Byrns left no bootprints because he was wearing several
pairs of socks and no shoes). Although he attempted to
flee, he ceased to do so upon threat of being shot by Mr.
Bevarly. (TE, 84-86), Bevarly guarded Byrns with his
shotgun until the subsequent arrival of the police 15 min-
utes later wi:o placed Byrns under arrest.

Upon arrival at the scene of the crime by the police
officers, Bevarly told them that there had been three men
involved and two were still at large. (TE, 152). Several
of the officers began searching the grounds and one, Police
Chief Denham of Smith’s Grove, got into his automobile
and drove around the town looking for the two criminals,
(TE, 131). As Chief Denham proceeded through the
town he saw a car turn a corner and approach him (ap-
proximately two blocks away), suddenly switch off its
lights, and pull into a driveway. (TE, 132). The occu-
pant of the car got out and walked around to the rear of
a nearby house. Chief Denham immediately drove up to
the parked car and flashed a spotlight on the driver who
was now standing in the back yard of this residence. Upon

10

request, the driver (the petitioner herein ) approached the
Chief’s car and explained that he had stopped to get some
water for i.is automobile which he claimed was overheated.
However, the car, a Chevrolet Impala, did not appear
overheated in that it was not steaming nor did a subse-
quent check of the radiator reveal a low water level. (TE,
133, 138, 161, 163). The petitioner stated that he had just
gotten off I-65 and could not find an open service station.
However, an all night service station, which is fully lit at
all times, is located just off the I-65 exit near Smith’s
Grove. (TE, 171). Leaving the Chevrolet there, Chief
Denham brought the petitioner back to the drugstore in
his police car and turned him over to Deputy Sheriff Glenn
Wood who was supervising the investigation of the crime.

From this investigation it appeared that entry into
the drugstore had been accomplished by chopping a hole
in the roof. (TE, 152-155). Also, a search of Byrns
revealed that he had a huge quantity of narcotics in his
possession which had been taken from the store. Deputy
Sheriff Wood then asked the petitioner and Byrns if they
knew one another but both denied ever having had the
pleasure. However, Officer Wood compared the petition-
er’s boots to a set of prints found near where the burglars
had landed after jumping off the roof. The prints match-
ed t.e soles of the petitioner's boots and he was placed
under arrest. Also, a key found in the possession of
Byrns when he was searched was turned over to Chief
Denham who was told to return to the Chevrolet Impala
to see if it would fit in t.e ignition. Denham returned to

the Chevrolet, opened the door, reached in and placed the
key in the ignition and found that it did fit. As he was

—"

li

testing the key, Chief Denham noticed two men’s billfolds
which were on the floor of the car and partially hidden
under the front passenger seat. (TE, 133, 134). He took
these billfolds back to Deputy Sheriff Wood. Wood in-
spected the billfolds and found that one belonged ot Byrns
and the other to a person named James Stillwell. The
petitioner was subsequently indicted and tried on charges
of grand larceny and storchouse breaking.

The petitioner plead not guilty and did not testify in
his own behalf at trial. On December 13, 1973, a jury in
the Warren Circuit Court in Warren County, Kentucky,
returned a verdict of guilty as to the grand larceny charge
and fixed the petitioner’s punishment at five years im-
prisonment. (Transcript of Record, hereinafter TR, 19).
Judgment was entered pursuant to the jury's verdict on
December 21, 1973, and was affirmed on appeal to the
Kentucky Court of Appeals in a Memorandum Opinion
rendered on October 25, 1974. (TR, 28). The petitioner
now seeks review of the aforementioned Opinion by way
of a petition for writ of certiorari to this Honorable Court.

ARGUMENT
I

THE CIRCUMSTANTIAL EVIDENCE PRESENTED AT
TRIAL BY THE PROSECUTION WAS MORE THAN
SUFFICIENT TO SUPPORT THE PETITIONER’S
CONVICTION OF GRAND LARCENY; THUS, NO SUB-
STANTIAL CONSTITUTIONAL QUESTION IS PRE-
SENTED NOR IS THERE A CONFLICT AMONG THE
VARIOUS STATE AND FEDERAL JURISDICTIONS.

The petitioner was indicted for the offenses of store-
house breaking and grand larceny, as proscribed by KRS

12

433.190 and 433.220. (Transcript of Record, hereinafter
TR, 2). Upon conviction on the grand larceny charge,
the petitioner alleged on appeal to the Kentucky Court of
Appeals that there was insufficient evidence to sustain
such conviction for grand larceny. In rejecting this con-
tention the Kentucky Court of Appeals indicated “that
the evidence was sufficient to sustain the conviction.”
The petitioner now seeks review by certiorari and clothes
this contention with the allegation that his right to due
process of law has been violated. He also urges a conflict
in the decisions among the various federal and state juris-
dictions in regard to the issue now in question. The
respondent disagrees.

KRS 433.220 reads as follows:

“Any person guilty of larceny of money or other
property of the value of one lundred dollars or more
shall be confined in the penitentiary for not less than
one nor more than five years. Any person who un-
lawfully takes, drives or operates a vehicle without
the knowledge and consent of the owner shall be sub-
ject to the same punishment.” (Emphasis ours).

Under Kentucky law, the elements of the aforementioned
offense are as follows:

“1. Taking and carrying away

Money or other property of another
Of the value of $100 or more
With intent to steal it,

- wh

Venue.” Russell's Kentucky Practice, Vol. 1, Part
Page 15.

&

it St 5 Na ae Oo 8

13

As this Court is aware, the mere fact that the prose-
cution’s evidence may be totally circumstantial is not re-
levant to a determination of whether that evidence is suf-
ficient to support a guilty verdict. Circumstantial evidence
which convinces a jury beyond any reasonable doubt is
sufficient to sustain a conviction. Holland v. United States,
348 U.S. 121 (1954). Although the petitioner vigorously
urges that the prosecution failed to prove all of the ele-
ments of the offense charged, oddly enough the petitioner
fails to make specific mention of precisely what
element or elements the prosecution failed to prove.
Under Kenutcky law, in essence, the elements of
larceny consist of a taking of and asportation of property
of another by trespass with a felonious intent to perman-
ently deprive the owner of his property. Hunt v. Common-
wealth, Ky., 338 S.W.2d 912 (1960) ; Wombles v. Com-
monwealth, Ky., 317 S.W.2d 169 (1958).

Admittedly, the prosecuiton’s case against the appel-
lant was based solely upon circumstantial evidence since
there were no eye witnesses as to the actual commission
of the crime. However, the offense of grand larceny may
be proved by circumstantial evidence. Eversole v. Com-
monwealth, Ky., 288 S.W.2d 58 (1956). In the instant
case, the incriminating evidence presented by the prosecu-
tion established the petitioner’s guilt beyond any reasonable
doubt. For example, (1) it was established that Mr.
Bevarly’s drugstore had been broken into during the
middle of the night; (2) that hundreds of dollars of
merchandise, including watches and drugs, had been car-
ried away (TE, 167-169) ; (3) Byrns had some of the
stolen goods in his possession when he was apprehended ;
(4) that the petitioner was apprehended within one-half

14

mile of the scene of the crime; (5) the petitioner was
observed pulling off the road, turning off his lights before
his engine had stopped, got out of his car, walked to the
rear of a residence allegedly looking for water for his
overheated car although there was no evidence to indicate
that the car was in fact overheated; (6) the petitioner (a
stranger in town) had told the officers that he could not
find an open service station at which to get water for his
car although he would have had to have passed an all
night service station which was open when he took the exit
off 1-65 — the direction from whence he said he had
come; (7) when brought to the scene of the crime, he
denied knowing Byrns although a key was found in Byrns’
possession which also fit the ignition of the Chevrolet au-
tomobile which the appellant was driving that night (TE,
121-124); (8) moreover, two wallets were found in the
Chevrolet automobile — one belonging to Byrns and the
other to a man, James Stillwell; (9) two witnesses testified
that they saw three men in the drugstore and thereafter
on the roof attempting to flee and it appears that the
petitioner, Byrns, and an unknown person were these
three men; (10) two separate sets of bootprints were found
at the spot where two men jumped from the roof of the
drugstore and witnesses for the prosecution testified that
one of those sets of prints was very similar to the prints
of the boots worn by the petitioner (TE, 118, 161); (11)
also, two identical books of matches were found, one in
the possession of Byrns and the other in the possession of
the petitioner at the time they were arrested.

In light of the foregoing, it is obvious that there was
ample evidence to support the jury’s belief beyond any

15

reasonable doubt as to the guilt of the appellant. Hollowell
v. Commonwealth, Ky., 492 S.W.2d 884 (1973). Thus,
the conviction shoud be upheld. Shelton v. Commonwealth,
Ky., 484 S.W.2d 95 (1972); Faughn v. Commonwealth,
Ky., 453 S.W.2d 743 (1970); Winn v. Commonwealth,
Ky., 303 S.W.2d 275 (1957).

Finally, the petitioner asserts that there is a conflict
of decisions in regard to the issue at bar and, for this rea-
son too, urges that certiorari review should be granted.
However, for the reasons previously set out in the Jurisdic-
tional Statement and in this argument, the respondent sub-
mits that the petitioner has failed to demonstrate the ex-
istence of any real conflict of decisions in state and/or
federal courts pertaining to the issue now presented. An
examination of this contention clearly indicates that there
exists no such conflict nor does it reveal any alleged viola-
tion of the constitutionally protected right to due process
of law — an allegation raised too late to be a basis for
certiorari review. The petition should be denied.

Il.

THE SEARCH OF THE AUTOMOBILE DRIVEN BY
THE PETITIONER DOES NOT PRESENT A SUB-
STANTIAL CONSTITUTIONAL QUESTION PERTAIN-
ING TO HIS FOURTEENTH AMENDMENT DUE

PROCESS RIGHT TO A FAIR TRIAL.

The petitioner maintains that the police made an
illegal search of the automobile which he had been driving
on the nicht of his arrest. He further alleged that the ad-
mission into evidence of two wallets found in the automo-

16

bile over his motion to suppress, violated his constitutional
right to a fair trial. Respondent disagrees.

As >reviously set out in the Jurisdictional Statement,
the con titutional issue now presented was not properly
raised in the state courts and thus review by certiorari is
unwarranted here. In any event, the precise question pre-
sented under the facts of the case at bar is neither novel,
unsettled, or reflective of a conflict of decisions between
jurisdictions, nor does the law in this matter require a
change in the law or warrant further consideration. More-
over, the petitioner has failed to establish in what manner
the decision by the Kentucky Court of Appeals is at variance
with any prior decision of this Court, nor has he established
that this state court has ruled upon a substantial federal
question not heretofore decided by this Honorable Court.
Under these circumstances certiorari jurisdiction simply
does not exist.

The Kentucky Court of Appeals indicated that “the
search was valid.” (Petitioner’s Appendix 1A). Respon-
dent would point out that there is no indication whatso-
ever that the court based its opinion on federal law in
regard to the search and seizure. This issue could have
been resolved under state law since the Fourth Amend-
ment of the United States Constitution and Section Ten
of the Constitution of Kentucky are of similar import.
Furthermore, the concept of due process of law, vouch-
safed to all citizens under the Fourteenth Amendment of
the United States Constitution is similarly vouchsafed to
the citizens of Kentucky by the Bill of Rights of the Con-
stitution of Kentucky, Section Fourteen. See O’Brien v.
O’Brien, 294 Ky. 793, 172 S.W.2d 595, 609 (1943).

cent la a se te he ala AA TR et OS eo ANE NG ere OG att nN ¢ ed me

17

Mere recitation of United States Supreme Court authority
in petitioner’s state court briefs is insufficient, per se, to
raise a federal question or establish certiorari jurisdiction
since such jurisdiction cannot be founded by surmise.
Lynch v. New York ex rel Pierson, 293 U.S. 52 (1934).
Therefore, the respondent submits that the Kentucky
Court of Appeals opinion in regard to the allegedly illegal
search and seizure was, in essence, a state decision and
not based upon federal law. Simply stated, petitioner has
failed to establish, or preserve for review any issue per-
taining to alleged violations of federal constitutional rights,

Secondly, the facts in the instant case indicate that
the automobile in question was registered in the name of
a Mr. Walton from Jefferson County, Kentucky. (Tran-
script of Evidence, 176). In fact, nowhere in the record

does there appear an affirmative allegation on the part of
the petitioner that he had any possessory or proprietary
rights or any other indicia of ownership in the automobile
which was the subject of the search and the source of the
seized evidence. Petitioner does not maintain that he owned
the automobile, leased it, or borrowed it. Under these cir-
cumstances, the respondent maintains that the petitioner
does not have standing to raise the issue of an alleged
illegal search and seizure of that automobile. /les v. Com-
monwealth, Ky., 476 S.W.2d 170 (1972) ; also see United
States v. Brown, 452 F. 2d 868 (6th Cir. 1971).

Thirdly, this Court has made a very definite distinc-
tion in the law of search and seizure between house, office,
and storehouse on one hand and motor vehicles on the

18

other. Carroll v. United States, 267 U.S. 132 (1925). If
exigent circumstances exist in the reasonable judgment of
the police officer as to probable cause, a predicate suffi-
cient to authorize a search comes into existence. Cliambers
v. Maroney, 399 U.S. 42 (1970). The facts in the case at
bar as reflected in the Counterstatement of the Case, were
sufficient to permit a search of the automobile by Chief
Denham. For instance, the police had been advised that
three men had particinated in the breakin which had oc-
curred only minutes earlier. By the time Denham return-
ed to the automobile two men were under arrest for the
robbery, Byrns and the petitioner, and one was still at large.
When Denham opened the car door, reached in, and placed
the key found on Byrns in the ignition, and started the
automobile, there was even more justification to search
the automobile immediately because this fact, along with
several others, was more than sufficient to implicate the
petitioner in the offense which had previously been per-
petrated. Moreover, it is most certainly conceivable that
the third man who was still at large, or some passerby,
could have whisked the automobile away in the dead of
night or taken or destroyed the contraband or whatever
incriminatory evidence the car siay have contained. Also,
at the time Denham returned to the automobile it was not
known by the police whether ail the items stolen from the
drugstore had been recovered. It was possible that con-
traband could have been hidden in the automobile. This
fact, in and of itself, would have justified an immediate
search of the vehicle. United States v. Gargotto, 476 F. 2d
1009 (6th Cir. 1973); Coolidge v. New Hampshire, 403
U.S. 443 (1971); Chambers v. Maroney, supra. Lastly,
it should be kept in mind that the wallets were seized not

19

as a consequence of a “‘searcli’”’ in the common sense, but
because Denham, upon reaching into the car to place the
key in the ignition observed the two wallets protruding
from under the front seat. The law of search and seizure
is based upon “reasonableness.” And, under the facts of
this case, the petitioner has failed to establish that his
federal constitutional rights were violated by the actions
of the police on the night he was arrested.

Il.

PETITIONER’S DUE PROCESS RIGHTS TO A FAIR
TRIAL WERE NOT VIOLATED BY THE ADMISSION
INTO EVIDENCE OF PHOTOGRAPHS OF ONLY ONE
SET OF BOOTPRINTS.

The Kentucky Court of Appeals also rejected the
petitioner’s contention that he was denied a fair trial due
to an alleged failure of the Commonwealth to allow dis-
covery of crucial evidence. This contention was predicted
upon photographs which did not turn out of two pair of
bootprints left at the scene of the crime and which were
not introduced into evidence at the trial. Petitioner pre-
sents this same issue to this Honorable Court with the ad-
ditional allegation of a violation of federal constitutional
rights. However, perusal of petitioner's argument estab-
lishes no violation of federal rights was ever timely raised
in the state courts. More significantly the contention
presented for consideration is not one which would merit
certiorari review in any event.

The petitioner’s due process rights to a fair trial
were not violated by the admission into evidence of pho-
tographs of only one set of bootprints.

20

Petitioner's allegation that he was denied access to
certain unclear photographs of unclear bootprints is in-
consequential. Perusal of the prosecution’s evidence in-
dicates that two seis of bootprints were found at the spot
where two men landed after jumping off the roof of the
drugstore. One set of prints was well set into the ground,
clearly distinguishable, and easily photographed. Two
photographs of this particular set of bootprints were made
by the mobile crime lab and subsequently introduced into
evidence at trial along with numerous other photographs
of the drugstore, the hole torn in the roof of the building,
and other companion photographs dealing with the crime.

No photographs were introduced as evidence of the
second set of bootprints because they were not well set in
the ground, not clearly distinguishable and the photo-
graphs of those prints did not turn out. Therefore, these
photographs were not kept nor were they used as evidence
at trial, and obviously not presented for inspection to the
defense nor for that matter the jury., However, it was this
set of prints that was similar to the soles of the petitioner's
boots. (TE, 118, 161). This was established not by the
photographs, but by eyewitness testimony.

This situation is somewhat analogous to dusting for
fingerprints, which did occur in this case. For instance,
when such dusting reveals prints of the accused these are
documented, samples are taken as exhibits, and may become
subject to procedural discovery pursuant to Kentucky
Criminal Rules and thereafter they may be presented as
evidence at trial to the jury and court. However, where
dusting for fingerprints reveals only smudges or undefined
prints (as happened in this case), these samples are not

21

kept since they are of no value and will not be used at trial,
and of course are not subject to procedural discovery.

At the trial no prosecution witnesses testified that
the photographs introduced into evidence of a set of boot-
prints were those belonging to the petitioner. In fact, the
contrary is true. Thus if there is any issue at all as to the
probity of the prosecution’s witnesses concerning their
personal identification and comparison of the petitioner’s
boots to one of the two sets of bootprints found at the
scene of the crime, it was a matter for the jury to deter-
mine. Moreover, no proper objection was made by the
petitioner insofar as these “unclear photographs of un-
clear boot prints.” Even if such an objection had been
made the respondent submits that it would have been im-
proper since these photographs were in fact unclear, re-
vealed nothing, were not used or introduced at the trial
and were of no consequence. Again, the testimony of wit-
nesses at the scene who identified and matched the petition-
er’s boots to those bootprints which were found was pro-
per and its relevancy, weight and credibility were matters
for the jury. Webb Transfer Lines, Inc. v. Taylor, Ky.,
439 S.W. 2d 88 (1969) ; Hayes v. Hayes, Ky., 357 S.W.2d
863 (1962). Therefore, the respondent submits that this
contention, obviously not a basis for reversal of the peti-
tioner’s conviction under state law, is equally without merit
as a basis for review by certiorari since it presents no fed-
eral constitutional questions at all.

22

CONCLUSION

The issues presented by the petitioner alleging a den-
ial of federally protected constitutional rights have not
been raised in the state courts below and thus are not a
basis for the granting of certiorari review. Moreover,
these same issues do not constitute or raise a substantial
federal question. Nor do any of those issues involve any
real conflict of decisions between or among other state or
federal courts. For the foregoing reasons, the respondent
respectfully submits that the petitioner has failed to meet
the jurisdictional requirements of 28 U.S.C. § 1257(3)
and requests that the petition for writ of certiorari be
dismissed.

Respectfully submitted,

ED W. HANCOCK
ATTORNEY GENERAL

By: Patrick B. Kimberlin, II
Assistant Attorney General
Capitol Building
Frankfort, Kentucky 40601

COUNSEL FOR RESPONDENT

a

23

PROOF OF SERVICE
I, Patrick B. Kimberlin, III, one of counsel for
respondent herein, and a member of the Bar of the Sup-
reme Court of the United States, hereby certify that on
e2 tay of Decree, 1975, I served the petitioner
with Brief for Respondent in Qpposition to Petition for

Writ of Certiorari, by placing-—_ copies of the same in

the United States mail, first class postage prepaid, and
addressed to Hon. J. Marshall Hughes, WHITE &
HUGHES, 439 Park Row, Executive Building, Bowling
Green, Kentucky 42101, Counsel for Petitioner.

Lik Kabel ma

Patrick B. Kimberlin, III
Assistant Attorney General
Office of Litigation

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0489%3A3. Public record. Not legal advice.