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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2375%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980

## Text

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). ° - 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2375%3A1. Public record. Not legal advice.