Petition — BLAIR v. COMMONWEALTH OF KENTUCKY (Nos. 79-1795, 79-1798)

T Supreme Court, U.S.

ee a me

a

IN THE froma. aguns ie. cirag

SUPREME COURT OF THE UNITED STATES

October Term, 1979

JEROME ©. BLAIR - - - - ~-« Petitioner

versus

COMMONWEALTH OF KENTUCKY -_ Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF KENTUCKY

JOHN TIM McCALL

200 Hart Block Building

730 West Main Street

Louisville, Kentucky 40202

(502) 589-6190

Counsel for Petitioner

Member of the Bar of the

Supreme Court of the

United States

May / 2, 1980

WESTERFIELD-BONTE CO., 619 W. KENTUCKY~—P.O,. BOX 3251, LOUISVILLE, Ky.

TABLE OF CONTENTS

PAGE

po FS Pee ii

GEOR TROT ons cececcevcccseccueseseetesseeess 1

PS OCs ore died siteuee 2

oo Ter erry rer eee 2

Constitutional Provisions Involved ..............44. 2- 3

gL Tere ee 3- 5

Reason for Granting the Writ .......... 6... cc eeeees 5- 9

CIIIIIUE i ions dN 4440540000550 eee 9

pi PNT ee ee me 11-34

Appendix A (Opinion of the Court of Appeals of

So ft OP EREE CTS eer ee ee 11-15

Appendix B (Opinion of the Court of Appeals of

Rantacky Bemmeee) .osakxsacekovicaceuevees 16-24

Appendix C (Memorandum Opinion Per Curiam

Rendered by Supreme Court of Kentucky)... . 25-29

Appendix D (Opinion of the Supreme Court of

|e 5d PEPER EERO ETE Ee ey er ere 30-33

Appendix E (Order of Supreme Court of Kentucky

Denying Petition for Rehearing) ............. 34

TABLE OF AUTHORITIES

Constitutional Provisions: race

United States Constitution, Fourteenth Amendment,

ey tae ENON SF a's xd 45 ob ORK Hehe ORE 2- 3

Statutes:

Federal Statute: 28 U.S.C. §1257(3).............. 2

Cases:

Bowtie v. Columbia, 378 U.S. 347, 12 L. Ed. 2d 894,

G6 BS. Ct, 1697 (1963) .......crcescccecssegens 8

Hormel v. Helvering, 312 U. S. 552, 85 L. Ed. 1037

ad i sie ans a6 44:0 640 o,0640 Cooked RE 8

Isaac v.. Engle, F. 2d ___, No. 78-3488, (6th

Se BOND o.k.j 0 000 odd p bind ana daWeenn 7

Jackson v. Virginia, U. S. —_, 61 L. Ed. 2d

EE al, ies se dice dxan vdeeh.oweee eee 9

Kimbrough v. Commonwealth, Ky., 550 8. W. 2d 525

I i oie Beh sha dk Aw ean ae 4, 5, 6, 8,9

O’Connor v. Ohio, 385 U. S. 92, 17 L. Ed. 2d 189, 87

ee RN Uhh akd bWechod nuance ar eaeaaes 7

Thompson v. State of Utah, 18 S. Ct. 620, 170 U.S.

$43, 42 L. Ed. 1061 (1898) ................000e 8

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No.

JEROMEC. BLAIR - - - - ~- _ Petitioner

Vv.

COMMONWEALTH OF KENTUCKY - - Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF KENTUCKY

The Petitioner, JEROME C. Bair, respectfully prays

that a Writ of Certiorari issue to review the Order and

Opinion of the Supreme Court of Kentucky entered

in this proceeding on November 20, 1979.

OPINIONS BELOW

The Opinion of the Supreme Court of Kentucky

is reported-at 592 S. W. 2d 132 (1980). <A Petition

for Rehearing was filed and the Commonwealth was

ordered to respond. The Order of the Supreme Court

overruling Petitioner’s Petition for Rehearing was

entered on February 12, 1980. (Appendix E, p. 34).

JURISDICTION

The Order of the Supreme Court of Kentucky was

entered on November 20, 1979, and a timely Petition

for Rehearing was denied by Order of the Supreme

Court of Kentucky on February 12, 1980. This

Court’s jurisdiction is invoked pursuant to 28 U.S.C.

§1257(3).

QUESTIONS PRESENTED

Whether retroactive application of a substantially

different preservation of error rule is constitutionally 4

permissible.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourteenth Amendment to the Constitution of

the United States provides in pertinent part as follows:

. . . LN]o State shall make or enforce any law

which shall abridge the privileges or immunities

of citizens of the United States; nor shall any

state deprive any person of life, liberty, or prop-

erty, without due process of law .. .

Article I, Section 10 of the Constitution of the

United States provides in pertinent part:

[cl. 1] No State shall enter into any Treaty,

Alliance, or Confederation; grant Letters of

Marque and Reprisal; coin Money; emit Bills of

Credit ; make any Thing but gold and silver Coins

a Tender in Payment of Debts; pass any Bill of

3

Attainder, ex post facto law, or Law impairing

the Obligation of Contracts, or grant any Title of

Nobility.

x.

STATEMENT OF THE CASE

This case was tried by a jury in the Jefferson Cir-

cuit Court of Louisville, Kentucky on June 28, 29, 30

and July 1, 2, 1976. There were three defendants in

the within action: SrepHEeNn Borvers, RicHarp Car-

PENTER, AND JEROME Buarr. This Writ of Certiorari

is brought by JERoME Buarr. Another Writ of Certio-

rari has been brought at this time by CARPENTER and

Borpers. The Petitioner was charged in a twelve

count Indictment with having fired shots into auto-

mobiles and business places on the west side of Louis-

ville, injuring persons and property. (Transcript of

Record, hereinafter designated as T.R., p. 2). After

over fourteen hours of deliberation, the jury found the

Petitioner guilty of two counts of wanton endanger-

ment in the first degree and two counts of criminal

mischief in the third degree and fixed his sentence at

one year in the penitentiary. (Transcript of Evidence,

hereinafter designated as TE., pp. 812-813).

The Petitioner perfected a timely appeal to the

Court of Appeals. On the 10th day of February, 1978,

that Court rendered its opinion which reversed the

conviction and ordered that a new trial be granted

with directions that if the evidence for the Common-

wealth was substantially the same that a directed ver-

dict in favor of the Petitioner be entered. (Appendix

A, p. 11).

4

On June 30, 1978, the Court of Appeals withdrew

its original opinion and issued a new opinion. The

Court held that where all the evidence is circumstan-

tial, the lack of cunclusiveness of a gun powder resi-

due test left the Court with no alternative but to

reverse the conviction. (Appendix B, p. 16).

On November 14, 1978, the Supreme Court of

Kentucky granted the Commonwealth’s Motion for

Discretionary Review to review the June 30, 1978 de-

cision of the Court of Appeals.

In a Memorandum Opinion Per Curiam rendered

on June 12, 1979, the Kentucky Supreme Court affirmed

the Court of Appeals’ opinion reversing the conviction

of CARPENTER and Borpers but reversed the Court of

Appeals Opinion regarding Petitioner Bam. That

Court held that because of a recent Kentucky Decision,

Kimbrough v. Commonwealth, Ky., 550 8. W. 2d 525

(1977) the Petitioner had failed to properly preserve

the error regarding sufficiency of evidence by failing

to make a motion for directed verdict of acquittal at

the close of all the evidence and thus since there was

some relevant evidence linking Buarr to the crime his

conviction must stand. (Appendix C, p. 25).

Petitioner filed a Petition for Rehearing in the Ken-

tucky Supreme Court and the Commonwealth filed a

Petition for Rehearing in the cases involving CARPEN-

TER and Borpers. The Supreme Court granted the

Commonwéalth’s Petition for Rehearing and issued a

new opinion rendered on November 20, 1979 which

completely reversed the decision of the Court of Ap-

peals and upheld all three convictions. The Court

5

reasoned that since the parties had failed to move for

a directed verdict at the close of all the evidence, the

issue of the sufficiency of the evidence was, therefore,

not preserved for Appellate Review, regardless of the

quantity or quality of the evidence. (Appendix D,

p. 30).

Petitioner BLarr, and CARPENTER and Borpers filed

Petitions for Rehearing which were denied on Febru-

ary 12, 1980.

REASON FOR GRANTING THE WRIT

It is constitutionally impermissible for the Supreme

Court of Kentucky to retroactively apply a substan-

tially different preservation of error rule. The Su-

preme Court of Kentucky ruled that Petitioner BLAIR

and his co-defendants CARPENTER and BORDERS were

precluded from raising a sufficiency of the evidence

issue before the Appellate Court due to the fact that

they failed to make a Motion for Directed Verdict at

the close of all the proof. The parties had made such

a motion at the close of the prosecution’s case when it

ought to have been granted. Further, the sufficiency

of evidence is argued at length in a Motion for New

Trial when the trial judge stated that he would have

directed a verdict had he felt it was justified. The

Supreme Court’s decision was based on a 1977 Ken-

tucky case, Kimbrough v. Commonwealth, Ky., 550

S. W. 2d 525 (1977). Kimbrough held that a suffi-

ciency of evidence issue was not preserved if a Motion

for Directed Verdict was not made at the close of the

6

prosecution’s case, the close of the defendant’s case,

and at the close of any rebuttal. The present case, was

tried in 1976. Thus, Kimbrough case was not cited

until well after the Petitioner’s trial.

It should be noted at this point, that Kimbrough’s

procedural rule presented a clear departure from the

customary procedure preserving the question of the

sufficiency of the evidence that was in effect at the time

of Petitioner’s trial. In writing the opinion of the

Supreme Court of Kentucky rendered on November

20, 1979, Justice Clayton noted that prior to Kim-

brough the state of the law on that issue was uncertain,

and that the decision in Kimbrough was a clarifica-

tion of the procedural rule for preserving the suffi-

ciency of the evidence question. (Appendix D, p. 30).

Hence, it was not until April 1, 1977, some nine months

after the Petitioner’s trial, that a definitive statement

on this particular point of criminal procedure was

established by Supreme Court of Kentucky. In short,

it was not until well after the Petitioner’s trial that

attorneys were given notice of the new manner in

which the sufficiency of the evidence issue could be

preserved for appellate review.

The law in effect prior to Kimbrough, at the time

of Petitioner’s trial, required only that a Motion for

Directed Verdict of Acquittal be made at the close of

the Commonwealth’s case in order to preserve the

sufficiency of the evidence issue. In a separate opinion

written by Chief Judge Martin concurring with the

decision rendered by the Kentucky Court of Appeals

on February 10, 1978, it was noted, that Kimbrough

7

indeed represented a clear departure from prior law

in the Commonwealth of Kentucky. He stated that

the question of the sufficiency of the evidence could

have been preserved at the time of the trial by a Mo-

tion for a Directed Verdict at the close of the Com-

monwealth’s case or at the close of all the evidence,

or even in a Motion for a New Trial. (Appendix D,

p. 30).

As stated before, Counsel first moved for a directed

verdict at the close of the Commonwealth’s case and

then raised a question of the sufficiency of the evi-

dence in a Motion for a New Trial. In short, counsel

had complied with all the mandatory procedures for

preserving the sufficiency of the evidence question that

were in effect at the time of Petitioner’s trial. Yet,

Petitioner has been penalized and made to suffer a

manifest injustice as a result of following the very

standards described by the Courts of Kentucky at the

time of their trial for preserving the sufficiency of the

evidence question. Said penalty is contrary to the

basie concept of fundamental fairness and Due Process

of Law and, cannot constitutionally stand.

In a recent case, United States Court of Appeals

for the Sixth Circuit has relied on the reasoning em-

ployed by this Court in O’Connor v. Ohio, 385 U. S.

92,17 L. Ed. 2d 189, 87 S. Ct. 252 (1966) and held that

when a retroactive application of an opinion of the

Court substantially changes the law, due process man-

dates that a defendant cannot be charged with antici-

pating the new change in the law. Isaac v. Engle,

—— F. 2d —_, No. 78-3488 (6th Cir., Feb. 8, 1980).

8

The retroactive application of Kimbrough is also

violative of the due process clause since it operates

precisely like an ex post facto law. In a concurring

opinion written by Chief Judge Martin of the Ken-

tucky Court of Appeals, it was pointed out, that since

the Kimbrough rule effected the Petitioner’s substan-

tial rights, its application operated precisely like an

ex post facto law which is prohibited by Article I, §10

of the Constitution of the United States. (Appendix

B, p. 16).

This Court has held that a statute which takes from

the defendant a substantial right is said to be ex post

facto in nature, and, therefore, prohibited by the

United States Constitution. Thompson v. State of

Utah, 18S. Ct. 620, 170 U.S. 3438, 42 L. Ed. 1061 (1898).

Clearly, ii a State Legislature is barred from the ex

post facto clause compassing such a procedural law, it

must follow that a State Supreme Court is also barred

by the Due Process Clause from achieving precisely the

same result by judicial construction. Bouie v. Colum-

bia, 378 U. S. 347, 12 L. Ed. 2d 894, 84 S. Ct. 1697

(1963).

This Court has held that rules of procedure are

devised to promote the ends of justice and not de-

feat them. Orderly rules of procedure do not require

sacrifice of the rule of fundamental justice. Hormel

v. Helvering, 312 U.S. 552, 85 L. Ed. 1037, 1941 (1940).

Obviously the ends of justice and fundamental fair-

ness have been defeated by the Supreme Court’s retro-

active application of the procedural rule ennunciated

active application of the procedural rule enunciated

9

in Kimbrough. Said application is contrary to the

new constitutional mandate of Jackson v. Virginia,

U. 8. ——, 61 L. Ed. 2d 560 (1979). That new

standard for acquittal allows for no exceptions or

deviations and dictates that a conviction cannot be

upheld where there is insfficient evidence to establish

guilt. Procedural rules must remain flexible to guard

against the very injustice that this Petitioner has suf-

fered. Petitioner prays that this Court will grant the

Writ of Certiorari and correct the grave injustice that

has been done him.

CONCLUSION

For the reasons set forth above, this Petition for

Writ of Certiorari should be granted.

Respectfully submitted,

JOHN Tim McCatu

200 Hart Block Building

730 West Main Street

Louisville, Kentucky 40202

(502) 589-6190

Counsel for Petitioner

APPENDIX

11

APPENDIX A

OPINION RENDERED: FEBRUARY 10, 1978

TO BE PUBLISHED

COURT OF APPEALS OF KENTUCKY

File No. CA-568-MR

JEROME Buarr,

RicHarD CARPENTER, and

STEPHEN Borpers - - - - - Appellants

v.

CoMMONWEALTH OF KENTUCKY - - - Appellee

Appeal From the Jefferson Circuit Court

Honorable Charles Leibson, Special Judge

Action No. 156577

REVERSING AND REMANDING

Berore: Martin, Chief Judge, Cooper and Howarp, Judges.

Cooper, Judge. The appellants were convicted in Jefferson

Circuit Court on two counts of wanton endangerment and

two counts of third degree criminal negligence.

The trial and conviction of the appellants arose out of

an incident in the early morning hours in the West end of

Louisville, Kentucky, on the 30th and Sist of March, 1976.

On that date, Slim’s Grill located at 421 South 19th Street,

Club Cobra located at 38th and Broadway Streets, and

Victory Liquors located at 2600 West Jefferson Street in

Louisville were peppered by shotgun fire. Several auto-

mobiles parked on the streets in the adjacent areas were

also peppered with the shot. A waitress in Slim’s Grill

12

was severely injured with a wound in the head. She suf-

fered brain damage and blindness to the extent of being

mentally incompetent, and therefore was unable to testify

at the appellants’ trial.

The appellants were police officers for the Louisville

Police Department and were off-duty during the night and

early morning of March 30th and 31st, 1976. All were in-

dicted in a twelve (12) count indictment.

The testimony of the various witnesses is lengthy and

sometimes contradictory, but for the purpose of this opin-

ion a statement of the basic facts will be given.

The appellants, Blair, Borders and Carpenter, left a

meeting of the Fraternal Order of the Police at the Ramada

Inn on Hurstborne Lane on March 30, 1976, between 8 :30-

9:00 p.m. and proceeded to the Willow Lake Inn in separate

ears. They were accompanied, by Richard Gary Dickenson,

who testified at the appellants’ trial. .The four (4) police

officers left the Willow Lake Inn in Sergeant Blair’s car

with Blair driving. Dickenson got out of the car at Wat-

terson Expressway and Shelbyville Road after Blair re-

fused to take Dickenson home. After dropping off Dicken-

son, the three proceeded to the Ramada Inn where Carpen-

ter got his car and followed Borders and Blair to the

Rooster Tail Bar on Chestnut Street in downtown Louis-

ville. Sandra Stacey, a dancer at the Rooster Tail, iden-

tified the appellants at the Rooster Tail on March 30, 1976,

at around 11:00-11:30 p.m. She sat at a table with them

where they were having a drink. Following their drinks,

the appellants all left together. Stacey testified that fol-

lowing her work and breakfast, she saw the appellant,

Blair, at Gargotto’s Liquor Store on Jefferson Street be-

tween 3:30-4:00 a.m. She told an investigating officer that

she also saw the other two appellants, Borders and Car-

penter, with Blair at the liquor store. At the trial however

she stated that she only saw Blair at the liquor store during

that time, Witnesses at Slim’s Grill and the Club Cobra

13

identified the car from which the shootings came as a

brown car that looked like an unmarked police car; con-

sequently a teletype was put out for a brown car resem-

bling a police car. Two spent 12-gauge shotgun shells were

turned over to the Evidence Technician Unit after being

found at the site of the shootings.

Sergeant Pete Giuchici testified that he investigated the

shootings at the scene. As he proceeded in a westwardly

direction away from the scene, after being advised by

witnesses that they heard shots coming from that direction,

he noticed a car coming toward him without headlights.

Upon stopping the car, which was of a brown color, a voice

came from within the car stating, “What’s up, Pete?” By

voice, Giuchici identified the speaker as appellant, Blair,

and stated that there were two other white males in the car,

and a 12-gauge shotgun was in the front end of the car.

He could not identify the other two individuals. At the

trial, Giuchici hedged as to the positive identity of Blair’s

voice.

A Harrison-Gilroy test for gunpowder residue was per-

formed on Blair’s car to determine whether shots had been

fired from the automobile. Tests at the Kentucky State

Police Crime Laboratory indicated that an unfired shotgun

shell found at the Club Cobra had markings similar to the

markings on the shells tested in one of Blair’s guns.

We believe that the sole issue of merit before the Court

is:

WHETHER THERE WAS SUFFICIENT EVIDENCE

TO CONVICT THE APPELLANTS?

It is a sound principle of law that a conviction may be

sustained on circumstantial evidence. Rogers v. Common-

wealth, Ky., 444 S. W. 2d 548 (1969); Moore v. Common-

wealth, Ky., 446 S. W. 2d 217 (1969). The question then

is whether the totality of the evidence was of such a nature

that the judge could have concluded that reasonable minds

14

might fairly find guilt beyond a reasonable doubt. Carmen

v. Commonwealth, Ky., 490 8. W. 2d 744 (1973) ; Hodges v.

Commonwealth, Ky., 473 S.W. 2d 811 (1971). After a

review of the evidence, we cannot say that the evidence is

of such a nature and sufficiency to sustain the verdict of

the jury.

The crux of the incriminating evidence submitted by

the Commonwealth in this case revolves around the evi-

dence that the defendants had recently fired a gun, not-

withstanding the evidence that they were in the locality of

the time it occurred.

The Commonwealth introduced evidence through an ex-

pert witness from the Kentucky State Police Laboratory

who performed a Harrison-Gilroy test on the defendant

Blair’s car to determine whether or not a gun had recently

been fired from the car. The purpose of the test is to find

evidence of lead and barium which are two principal in-

gredients of gunpowder. The expert witness who per-

formed the Harrison-Gilroy test testified that standard

procedures for this test are as follows: Swabs of the area

to be tested are saturated with hydrochloric acid and

allowed to dry. Those swabs are sprayed with tartaric

acid; then the swabs are sprayed with sodium rhodizonate.

If lead is present it reacts with a red color and barium, if

present, reacts with an orange color. Hydrochloric acid is

again sprayed on the area. Lead then reacts with a blue

color and the barium will turn to pink or red. The expert

further testified that he had performed over 3,300 Harrison-

Gilroy tests. The results of the tests in the present case

revealed traces of lead, but no barium.

The admissibility of the Harrison-Gilroy test for dis-

covering gunpowder residue is apparently not well estab-

lished in Kentucky law. However, in this case, where this

scientific test of recognized validity was performed com-

petently under laboratory conditions, we cannot say that

15

the lower court abused its discretion in admitting the re-

sults of the test into evidence. State v. Ross, Mo., 523 S.W.

2d 841 (1975) ; Commonwealth v. Sousa, Mass., 215 N. E. 2d

910 (1966). The test for gunpowder residue in this case,

however, was inconclusive at best. The absence of barium

in the swabs taken from the defendant Blair’s car leaves

the jury with only an opportunity to speculate that a gun

was actually fired from the defendant Blair’s car.

Combined with more conclusive evidence, the Harrison-

Gilroy test in question would not be determinative. Here,

however, where al¥the evidence is circumstantial, the lack

of conclusiveness of the test leaves the Court with no alter-

native but to reverse and remand to the lower court on

grounds of insufficient evidence, and order that a new trial

be granted -with directions that if the evidence for the

Commonwealth is substantially the same that a directed

verdict in favor of the defendants be entered.

Aut Concur.

Attorneys for Appellants:

JOHN TIM McCALL

835 West Jefferson Street

Louisville, Kentucky 40202

ROBERT E. FLEMING

Citizens Plaza

Louisville, Kentucky 40202

FRANK E. HADDAD, JR.

Kentucky Home Life Building

Louisville, Kentucky 40202

Attorneys for Appellee:

ROBERT F.. STEPHENS 4

Attorney General

MARTIN GLAZER

Assistant Attorney General

State Capitol

Frankfort, Kentucky 40601

16

APPENDIX B

OPINION RENDERED: FEBRUARY 10, 1978

ORIGINAL OPINION WITHDRAWN

AND REISSUED: JUNE 30, 1978

TO BE PUBLISHED

COURT OF APPEALS OF KENTUCKY

CA-568-MR

JEROME Buair,

RicHarD CARPENTER, and

STEPHEN BorpDeErs - - - - - Appellants

v.

CoMMONWEALTH OF KENTUCKY - - - Appellee

Appeal From the Jefferson Circuit Court

Honorable Charles Leibson, Special Judge

Action No. 156577

REVERSING

Berore: Martin, Chief Judge, Cooper and Howarp, Judges.

Cooper, Judge. The appellants were convicted in Jefferson

Cireuit Court on two counts of wanton endangerment and

two counts of third degree criminal negligence.

The trial and conviction of the appellants arose out of

an incident in the early morning hours in the West End

of Louisville, Kentucky, on the 30th and 31st of March,

1976. On that date, Slim’s Grill located at 421 South 19th

Street, Club Cobra located at 38th and Broadway Streets,

and Victory Liquors located at 2600 West Jefferson Street

in Louisville were peppered by shotgun fire. Several auto-

mobiles parked on the streets in the adjacent areas were

17

also peppered with the shot. A waitress in Slim’s Grill

was severely injured with a wound in the head. She suf-

fered brain damage and blindness to the extent of being

mentally incompetent and, therefore, was unable to testify

at the appellants’ trial.

The appellants were police officers for the Louisville

Police Department and were off-duty during the night and

early morning of March 30th and 31st, 1976. All were

indicted in a twelve (12) count indictment.

The testimony of the various witnesses is lengthy and

sometimes contradictory, but for the purpose of this opin-

ion a statement of the basic facts will be given.

The appellants, Blair, Borders and Carpenter, left a

meeting of the Fraternal Order of the Police at the

Ramada Inn on Hurstbourne Lane on March 30, 1976,

between 8:30-9:00 P.M. ‘and proceeded, in separate cars, to

the Willow Lake Inn. y were accompanied by Richard

Gary Dickenson, who testified at the appellants’ trial. The

four (4) police officers left the Willow Lake Inn in Ser-

geant Blair’s car with Blair driving. Dickenson got out of

the car at Watterson Expressway and Shelbyville Road

after Blair refused to take Dickenson home. After drop-

ping off Dickenson, the three proceeded to the Ramada Inn

where Carpenter got his car and followed Borders and

Blair to the Rooster Tail Bar on Chestnut Street in down-

town Louisville. Sandra Stacey, a dancer at the Rooster

Tail, identified the appellants at the Rooster Tail on March

30, 1976, at around 11:00-11:30 P.M. She sat at a table

with them where they were having a drink. Following

their drinks, the appellants all left together. Stacey testi-

fied that following her work and breakfast, she saw the

appellant Blair at Gargotto’s Liquor Store on Jefferson

Street between 3:30-4:00 A.M. She told an investigating

officer that she also saw the other two appellants, Borders

18

and Carpenter, with Blair at the liquor store. At the trial,

however, she stated that she only saw Blair at the liquor

store during that time. Witnesses at Slim’s Grill and the

Club Cobra identified the car from which the shootings

came as a brown car that looked like an unmarked police

car; consequently a teletype was put out for a brown car

resembling a police car. Two spent 12-gauge shotgun

shells were turned over to the Evidence Technician Unit

after being found at the site of the shootings.

Sergeant Pete Giuchici testified that he investigated

the shootings at the scene. As he proceeded in a west-

wardly direction away from the scene, after being advised

by witnesses that they heard shots coming from that direc-

tion, he noticed a car coming toward him without head-

lights. Upon stopping the car, which was of a brown color,

a voice came from within the car stating, “What’s up,

Pete?” By voice, Giuchici identified the speaker as appel-

lant Blair, and stated that there were two other white males

in the car, and a 12-gauge shotgun was in the front end of

the car. He could not identify the other two individuals.

At the trial, Giuchici hedged as to the positive identity of

Blair’s voice.

A Harrison-Gilroy test for gunpowder residue was per-

formed on Blair’s car to determine whether shots had been

fired from the automobile. Tests at the Kentucky State

Police Crime Laboratory indicated that an unfired shotgun

shell found at the Club Cobra had markings similar to the

markings on the shells tested in one of Blair’s guns.

We believe that the two issues before us are the suf-

ficiency of the evidence and the admission of the results of

the Harrison-Gilroy test.

WAS THERE SUFFICIENT EVIDENCE TO CON-

VICT THE APPELLANT?

Tt is a sound principle of law that a conviction may be

sustained on circumstantial evidence. Rogers v. Common-

19

wealth, Ky., 446 S. W. 2d 217 (1969). The question then

is whether the totality of the evidence was of such a nature

that the judge could have concluded that reasonable minds

might fairly find guilt beyond a reasonable doubt. Carmen

v. Commonwealth, Ky., 490 8S. W. 2d 744 (1973); Hodges

v. Commonwealth, Ky., 473 S. W. 2d 811 (1971). After a

review of the evidence, we cannot say that the evidence is

of such a nature and sufficiency to sustain the verdict of

the jury.

The crux of the incriminating evidence submitted by

the Commonwealth in this case revolv. around the evi-

dence that the defendants were in the locality where the

offense occurred and that a gun was recently fired in the

car.

HARRISON-GILROY TEST RESULTS

The Commonwealth introduced evidence through an ex-

pert witness from the Kentucky State Police Laboratory

who performed a Harrison-Gilroy test on the defendant

Blair’s car to determine whether or not a gun had recently

been fired from the car. The purpose of the test is to find

evidence of lead and barium which are two principal in-

gredients of gunpowder. The expert witness who per-

formed the Harison-Gilroy test testified that standard

procedures for this test are as follows: Swabs of the area

to be tested are saturated with hydrochloric acid and al-

lowed to dry. Those swabs are sprayed with tartaric acid;

then the swabs are sprayed with sodium rhodizonate. If

lead is present, it reacts with a red color and barium, if

present, reacts with an orange color. Hydrochloric acid is

again sprayed on the area. Lead then reacts with a blue

color, and the barium will turn to pink or red. The expert

further testified that he had performed over 3,300 Harrison-

Gilroy tests. The tesults of the tests in tre present case

revealed traces of lead, but no barium,

20

The admissibility of the Harrison-Gilroy test for dis-

covering gunpowder residue is apparently not well estab-

lished in Kentucky law. If, however, as was not true in

this case, a scientific test of recognized validity was per-

formed competently under laboratory conditions, we can-

not say that it was a lower court abuse of discrevion to

admit the results of the tests into evidence. State v. Ross,

Mo., 523 S. W. 2d 841 (1975); Commonwealth v. Sousa,

Mass., 215 N. E. 2d 910 (1966). The test for gunpowder

residue in this case, however, was inconclusive at best.

The absence of barium in the swabs taken from the defend-

ant Blair’s car leaves the jury with only an opportunity to

speculate that a gun was actually fired from the defend-

ant Blair’s car.

Combined with more conclusive evidence, the Harrison-

Gilroy test could be determinative. Here, however, where

all the evidence is circumstantial, the lack of conclusiveness

of the test leaves the court with no alternative but to re-

verse the conviction of these appellants.

The judgment of the circuit court is reversed.

Martin, Cuter Jupce, Concurs sy Separate OPINION.

Howarb, Jupcr, DisseNts By SEPARATE OPINION.

Martin, Curer JupGe, Concurrine. I fully concurred

with the conclusion of this panel when our original opinion

was issued on February 10, 1978. However, in the Com-

monwealth’s petition for rehearing, a new issue has been

raised. The purpose of this concurrence is to explain my

position in regard to this argument and to answer the dis-

senting opinion of my associate judge.

The Commonwealth argues in their petition for rehear-

ing that the panel overlooked the decision in Kimbrough v.

Commonwealth, Ky., 550 S. W. 2d 525 (1977), and Long v.

Commonwealth, Ky., 559 S. W. 2d 482 (1977). I do not

believe that the panel overlooked either of these decisions.

21

It is my opinion that either of these decisions is applicable

to the present case. The decisions in these cases require

that a motion for a judgment of acquittal must be made at

the conclusion of all the proof in order for the appellate

court to review the sufficiency of the evidence on appeal.

In the présent case, the record indicates that the defense

attorneys did not make a motion for a directed verdict at

the conclusion of all the proof. They did test the suf-

ficiency of the evidence in a motion for a new trial.

The argument of the Commonwealth is that under Kim-

brough and Long we are foreclosed from the consideration

of the issue of the sufficiency of the evidence as to the guilt

of these appellants. I do not believe these decisions were

intended to be held retroactively. The decisions in both of

these cases were issued after the trial in the present case.

As was held in Pendleton v. Pendleton, Ky., 560 S. W. 2d

538 (1978), retroactivity will not be applied except when a

specific dispositive issue was in litigation at the time of the

controlling decision.

Furthermore, Kimbrough represents a clear departure

from prior law in this Commonwealth. Proviously, a ques-

tion of sufficiency of evidence could have been preserved

either by a motion for directed verdict at the close of the

Commonwealth’s case, or at the close of all the evidence, or

even in a motion for a new trial. See Crain v. Common-

wealth, Ky., 484 S. W. 2d 839, 842 (1972) ; Civil Rule 61.02,

made applicable to criminal cases pursuant to Criminal

Rule 13.04; Stone v. Commonwealth, Ky., 456 S. W. 2d 43,

44 (1970).

Inasmuch as Kimbrough marks a clear departure from

_prior law and since appellant could not have had notice of

the change, it would be fundamentally unfair to apply this

newly created preservation of error rule to the facts and

circumstances of this case. Since this procedural change

would significantly affect appellant’s substantial rights, it

22

“operates precisely like an ex post facto law, such as Art.

I $10 of the [federal] Constitution forbids.” Bowie v. City

of Columbia, 378 U. S. 347, 353, 84 S. Ct. 1697, 12 L. Ed. 2d

894 (1964). See also: Kentucky Constitution, §19.

While I agree that on the sufficiency of evidence issue a

motion for a judgment of acquittal at the conclusion of all

the evidence would seem to be appropriate, I think that this

is a very technical approach to the law. Kimbrough, in my

opinion, does not supersede principles of due process and

certainly in the present case, based on our earlier opinion,

it would create a technical deficiency only, rather than a

substantive issue. In the present case, certainly the error

is the failure of the Commonwealth to prove beyond a rea-

sonable doubt that these appellants committed the offense

with which they were charged. The duty of an appellate

court to insure that the appellants receive a fair trial can-

not be foreclosed by a mere technicality.

It may be that the controlling authorities in this case

would be those decisions, such as Vachon v. New Hampshire,

414 U. S. 481 (1974), in which the United States Supreme

Court stated:

It is beyond question, of course, that a conviction based

on a record lacking any relevant evidence as to a

crucial element of the offense charged violates due

process. Id., 414 U.S. at 480.

In the present case, the record would appear to lack any

relevant evidence to prove the defendants’ presence at the

scene of the offense.

Howarp, Jupcr, Dissentine. I respectfully dissent from

the majority in this case. In the first place, the majority

opinion should have dealt with the recent case of Kim-

brough v. Commonwealth, Ky., 550 S. W. 2d 525 (1977).

The Supreme Court held therein that a motion for directed

verdict made only at the close of the Commonwealth’s evi-

23

dence and not renewed at the conclusion of all the evidence

does not preserve for review the question of the sufficiency

of the evidence to convict. This holding was followed by

the Supreme Court in the case of Long v. Commonwealth,

Ky., 559 S. W. 2d 482 (1977). In the case at bar, in the

Kimbrough case, and in the Long case, motions for directed

verdict were made at the conclusion of the Commonwealth’s

evidence and in the case at bar the motions were sustained

as to several counts of the indictments. However, in all

three of these cases no motions were made at the conclusion

of all the evidence and, therefore, the alleged errors were

not preserved for review on appeal. In Kimbrough and

Long the convictions were affirmed, and I think we should

do likewise in this case.

In addition, there was sufficient evidence to convict, in

my opinion, even in the absence of the evidence in regard

to the Harrison-Gilroy test. In view of the fact that it was

admitted that shots had been fired from Blair’s car on a

hunting trip, it does not appear that the test would be too

important anyway. It was for the jury to determine the

reason guns were fired from Blair’s car.

There was, of course, conflicting evidence with some

of the Commonwealth’s witnesses changing their testimony,

but the evidence of their prior inconsistent statements was

entitled to be submitted to the jury as substantive evidence.

Jett v. Commonwealth, Ky., 436 S. W. 2d 788 (1960).

If, under the evidence as a whole, it would not be clearly

unreasonable for the jury to find the defendants guilty,

they are not entitled to a directed verdict of acquittal even

if the motions had been properly made. Trowel v. Com-

monwealth, Ky., 550 S. W. 2d 530 (1977). There was suf-

ficient evidence of probative value to sustain the convic-

tions.

I would affirm the judgment of the lower court.

Attorneys for Appellants:

JOHN TIM McCALL

835 West Jefferson Street

Louisville, Kentucky 40202

ROBERT E. KLEMING

Citizens Plaza

Louisville, Kentucky 40202

FRANK E. HADDAD, JR.

Kentucky Home Life Building

Louisville, Kentucky 40202

Attorneys for Appellee:

ROBERT F. STEPHENS

Attorney General

MARTIN GLAZER

Assistant Attorney General

State Capitol

Frankfort, Kentucky 40601

™

APPENDIX C

RENDERED: JUNE 12, 1979

SUPREME COURT OF KENTUCKY

78-SC-365-DG

CoMMONWEALTH OF KENTUCKY > ° - Movant

v.

JEROME Buatr,

RicHARD CARPENTER, and

STEPHEN BorpDErRS - - - - - Respondents

On Review from the Court of Appeals

CA-568-MR

(Jefferson Circuit Court No. 156577)

MEMORANDUM OPINION PER CURIAM—AFFIRM-

ING IN PART; REVERSING IN PART

This case involves an incident in the early morning

hours of March 31, 1976, in which two establishments in

Louisville’s West End, Slim’s Grill (19th and Cedar) and

Club Cobra (38th and Broadway), were peppered with

gunfire from a moving ear. Lubertha Pugh, a waitress at

Slim’s Grill, was seriously injured by the gunfire, sustain-

ing brain damage and blindness. Respondents Blair,

Carpenter and Borders, three Louisville police officers,

were found guilty of two counts of wanton endangerment

and two counts of third-degree criminal mischief and sen-

tenced to imprisonment for one year. The judgments of

the Jefferson Cireuit Court were reversed by a divided

26

panel of the Court of Appeals, which held that the evidence

was not sufficient to support the convictions. We granted

discretionary review.

We begin with a summary of the facts based upon our

review of the record. Blair, Borders and Carpenter at-

tended an FOP meeting at Ramada Inn (I-64 and Hurst-

bourne Lane) on the night of March 30. Accompanied by

Officer Dickinson, respondents left the meeting about 8:30

and went to the Willow Lake Inn (La Grange Road near

Anchorage), taking Blair’s and Borders’ cars. After about

and hour the four left in Blair’s car. Dickinson was

dropped off at Shelbyville Road and Watterson Expressway

around 11:00. Respondents then drove back to Ramada

Inn, where Carpenter picked up his car and followed Blair

and Borders downtown to the Rooster Tail (Chestnut

Street). Sandra Stacy, a dancer at the Rooster Tail, saw

the trio arrive between 11:00 and 11:30 and sat with them

as they drank beer. Respondents left between 12:30 and

1:00 a.m.

The shooting at Slim’s Grill occurred about 1:15; the

Club Cobra shooting followed about 1:30. <A police tele-

type was put out for a brown car resembling a police car

that was seen leaving the scene at Club Cobra. Sgt. Pete

Giuchici was investigating the Slim’s Grill shooting when

the Club Cobra call came on the radio. He headed west in

the direction of Club Cobra and spotted a ear traveling

toward him with its headlights off. Giuchici stopped the

oncoming car, and the front-seat passenger said, “What’s

up, Pete?” Giuchici identified the voice as that of respond-

ent Blair. Giuchici also observed two unidentified white

males and a shotgun in the ear.

Betty Houchins, Blair’s girl friend, told the grand jury

that Blair told her he was stopped in the West End. At

trial, however, she testified that Blair told her the police

said he was stopped in the West End. In addition, Sgt.

Browder, who investigated the case against respondents,

27

testified that Blair had mentioned in a conversation with

him that he had a legitimate reason for being in the West

End. Blair denied making the statement.

An expert who performed a Harrison-Gilroy test on

Blair’s ear found traces of lead, but no barium or antimony.

He testified that the results were consistent with the dis-

charge of a firearm, close proximity of a firearm, or having

held a firearm not recently cleaned. A number of police

officers testified that they had shot groundhogs from Blair’s

car. Another expert expressed his opinion that a spent

12-gauge shotgun shell found near Club Cobra had been

chambered in, but not fired from, a shotgun owned by Blair.

Sandra Stacy told investigating officers that she saw

Blair at Gargotto’s, a downtown (Second and Jefferson)

liquor store on her way home from work between 3:30 and

4:00 and that he got into a dark car in which his two com-

panions from the Rooster Tail were sitting. At trial,

however, she testified that Blair was definitely alone when

she saw him.

Borders testified that he left the Rooster Tail with Blair

and went to the Fish Bowl (1700 Preston). They left

between 1:00 and 1:30, and Blair drove him back to the

Willow Lake Inn to get his car. During the investigation

Borders told Set. Browder that he passed out in his car and

never left the Willow Lake Inn. At trial Borders explained

that he lied to Browder at the time because he didn’t want

his wife to know he had been at the Rooster Tail.

Blair testified that he left the Rooster Tail with Borders,

went to the Fish Bowl, took Borders to the Willow Lake

Inn, returned downtown to buy beer at Gargotto’s, and went

to Betty Houchins’ apartment where he slept on the couch.

Carpenter testified that he went home after leaving the

Rooster Tail. Officer Warman, who lived in the same apart-

ment building as Carpenter, told the jury that he borrowed

some records from Carpenter between 1:00 and 2:00.

28

The Commonwealth argues on this appeal that there

was sufficient evidence to convict respondents, and that in

any event the issue was waived by the failure of respond-

ents to move for a directed verdict at the close of all the

evidence, citing Kimbrough v. Commonwealth, Ky., 550

S. W. 2d 525 (1977).

The Supreme Court of the United States has held that

a conviction based on a record lacking any relevant evi-

dence as to a crucial element of the offense charged violates

due process. Vachon v. New Hampshire, 414 U. S. 478, 480

(1974). We are of the opinion that the record before us

contains no relevant evidence linking Carpenter and

Borders to the charged offenses. It follows that their con-

victions amounted to a denial of constitutional rights which

could not be waived under Kimbrough. The Court of Ap-

peals correctly ruled that the evidence was insufficient to

convict Carpenter and Borders.

The Court of Appeals erred, however, with respect to

Blair. Blair was identified in the vicinity of the shootings

shortly after they occurred in a car with its lights off which

contained a shotgun. The record contains relevant evi-

dence against Blair, and Vachon is therefore inapplicable.

Kimbrough forecloses Blair from raising the sufficiency of

the evidence before an appellate court.

That part of the opinion of the Court of Appeals re-

versing the convictions of Carpenter and Borders is af-

firmed. That part of the opinion dealing with Blair is

reversed, thereby affirming the judgment of the Jefferson

Cireuit Court against him.

All concur.

Attorneys for Movant:

ROBERT F. STEPHENS, Attorney General

MARTIN GLAZER, Assistant Attorney General

Capitol Building

Frankfort, Kentucky 40604.

29

Attorney for Respondent Blair:

JOHN TIM McCALL

835 West Jefferson Street

Louisville, Kentucky 40202

Attorney for Respondent Carpenter:

FRANK E. HADAD, JR.

529 Kentucky Home Life Building

Louisville, Kentucky 40202

Attorney for Respondent Borders:

ROBERT E. FLEMING

1509 Citizens Plaza

Louisville, Kentucky 40202

30

APPENDIX D

SUPREME COURT OF KENTUCKY

CoMMONWEALTH OF KENTUCKY, - - - Movant,

v.

JEROME B.iatr,

RicHarD CARPENTER and

STEPHEN Borpers, - - - - - Respondents.

OPINION

Nov. 20, 1979.

Rehearing Denied Feb. 12, 1980.

Defendants were convicted before the Jefferson Circuit

Court on two counts of wanton endangerment and two

counts of third-degree criminal mischief, and they appealed.

The Court of Appeals reversed, holding that the evidence

admitted at trial was insufficient to support the jury’s ver-

dict, and a petition for discretionary review was granted.

The Supreme Court affirmed as to two respondents but re-

versed with respect to the third. Upon granti:.g petitions

for rehearing, the Supreme Court, Clayton, J., held that

under the Kimbrough rule, defendants failed 10 preserve

for appellate review the issue of sufficiency of the evidence

where they failed to move for a directed verdict at the close

of all the evidence.

Opinion of Court of Appeals reversed; judgments of

conviction affirmed.

1. Criminal Law—Key 1044.1(7)

In order for the issue of the sufficiency of the evidence

to be preserved for appellate review, the party wishing to

use insufficiency as a basis for his appeal must have moved

31

for a directed verdict at the close of all the evidence, not

just at the close of the Commonwealth’s case-in-chief.

2. Criminal Law—Key 1044.1(7)

If there has been no motion for a directed verdict at the

close of all the evidence, it cannot be said that the trial

judge has ever been given an opportunity to pass on the

sufficiency of the evidence as it stood when finally submitted

to the jury.

3. Criminal Law—Key 1044.1(7)

Insufficiency of the evidence to support a verdict must

be timely raised in the trial court, ordinarily by a motion

for a directed verdict, in order for the question to be re-

viewable on appeal.

4. Criminal Law—Key 1044.1(7)

Under the Kimbrough rule, defendants failed to pre-

serve for appellate review the issue of sufficiency of the evi-

dence where they failed to move for a directed verdict at

the close of all the evidence.

5. Courts—Key 89

Judicial consistency must be observed in order to main-

tain a responsible and efficient court system.

Robert F. Stephens, Atty. Gen., Martin Glazer, Asst.

Atty. Gen., Frankfort, for movant.

John Tim McCall, Louisville, for respondent Blair.

Frank E. Haddad, Jr., Louisville, for respondent Car-

penter.

Robert E. Fleming, Louisville, for respondent Borders.

CLAYTON, Justice.

Over three years ago, respondents, Blair, Carpenter

and Borders, Louisville police officers at the time, were con-

victed of two counts of wanton endagerment and two counts

of third-degree criminal mischief and sentenced to one

year’s imprisonment. The Court of Appeals reversed the

32

convictions, holding that the evidence admitted at trial was

insufficient to support the jury’s verdict. This court

granted the Commonwealth’s petition for discretionary re-

view and in an opinion issued last June, affirmed the deci-

sion of the Court of Appeals as to respondents Carpenter

and Borders but reversed that court’s decision with respect

to respondent Blair.

Petitions for rehearing were submitted by both sides

and after careful consideration we now find it necessary to

completely reverse the decision of the Court of Appeals

and to uphold the judgments of the Jefferson Circuit Court.

[1-3] We rely substantialy on two recent cases, Kim-

brough v. Commonwealth, Ky., 550 8. W. 2d 525 (1977) and

Rudolph v. Commonwealth, Ky., 564 S. W. 2d 1, cert.

denied, 439 U. S. 1004, 99 S. Ct. 616, 58 L. Ed. 2d 680 (1978).

The procedural rule, as clarified in Kimbrough, is that in

order for the issue of the sufficiency of the evidence to be

preserved for appellate review, the party wishing to use

the insufficiency as a basis for his appeal must have moved

for a directed verdict at the close of all the evidence, not

just at the close of the Commonwealth’s case in chief. The

rationale behind this rule being that: “If there has been

no motion for a directed verdict at the close of all the evi-

dence, it cannot be said that the trial judge has ever been

given an opportunity to pass on the sufficiency of the evi-

dence as it stood when finally submitted to the jury.” Kin-

brough, 550 S. W. 2d at 529. Furthermore, “[wle have

held consistently that insufficiency of the evidence to sup-

port a verdict must be timely raised in the trial court—

ordinarily by a motion for a directed verdict . . . in

order for the question to be reviewable on appeal. Rudolph,

564 S. W. 2d at 4. See e. g., Long v. Commonwealth, Ky.,

559 S. W. 2d 482 (1977) and Butler v. Commonwealth, Ky.,

560 S. W. 2d 814 (1977).

33

[4, 5] Since respondents failed to move for a directed

verdict at the close of all the evidence, the Kimbrough rule

must be applied as we perceive no reason to retract from

this position. We must remain firm in our adherence to

specified procedure because “an appellate hearing is condi-

tioned upon compliance with essential rules, without which

this Court could not effectively conduct its business. It is

our duty to enforce those rules as a part of the judicial

process . . . .” United Mine Workers of America v.

Morris, Ky., 307 S. W. 2d 763, 766 (1957). Judicial con-

sistency must be observed in order to maintain a responsible

and efficient court system.

The opinion of the Court of Appeals is reversed, and

the judgments of conviction for all three respondents are

affirmed.

All concur.

34

APPENDIX E

OPINION RENDERED: NOVEMBER 20, 1979

SUPREME COURT OF KENTUCKY

CoMMONWEALTH OF KENTUCKY

v.

. File No. 78-SC-365-DG

JEROME BLAIR

RicHarD CARPENTER and

SrePHEN BorDERs |

Appeal from Jefferson Circuit Court

Action No. 156577

MANDATE

The Court being sufficiently advised, it is therefore con-

sidered that the decision of the Court of Appeals is re-

versed, and the judgments of conviction for all three

respondents are affirmed; which is ordered to be certified

to said court.

February 12, 1980 Respondents’ Petition for Rehearing

Denied.

A Copy—Attest:

(s) Rose Tomlinson, D. C,

John C. Scott, Clerk

Issued 2/12/80