# Petition — RICHARD CARPENTER v. KENTUCKY (Nos. 79-1798, 79-1795)

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## Record

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

## Text

Supreme Court, U.S.
FILE Dp

MAY 12 1980

JR, CLERK

SUPREME COURT OF THE UNITED STATES

October Term 1979

79-1798

RICHARD CARPENTER and
STEPHEN BORDERS . - - - Petitioners

versus

COMMONWEALTH OF KENTUCKY -_ Respondent

PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF KENTUCKY
AND
APPENDIX

FRANK E. HADDAD, JR.
529 Kentucky Home Life Building
Louisville, Kentucky 40202
(502) 583-4881

Counsel for Petitioner Carpenter

ROBERT E. FLEMING
1509 Citizens Plaza
Louisville, Kentucky 40202
(502) 587-6554

Counsel for Petitioner Borders
May 7, 1980

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

TABLE OF CONTENTS

PAGE
eo re ee rer ore ii
ee Tee rere Pe I
PI 6 8 View becca ens cok cb Keck 490 eRe 2
rere ee eae 2

Constitutional and Statutory Provisions Involved.... 2— 3

pte lh hE EEE OO Te re 3-5
Reason for Granting the Writ...................0. 5-17
I aire % <o-.n0s 500d0 bess be eae ee 17-18
MEE gk 504 5 40s Renee ea eee . See 19-42
Appendix A (Opinion of the Court of Appeals of
IT 66 ak ia eee ee 19-23
Appendix B (Opinion of the Court of Appeals of
LOE TOD oi iv dS anaes Ca eaeensas 24-32

Appendix C (Memorandum Opinion Per Curiam
Rendered by Supreme Court of Kentucky)... .33-37

Appendix D (Opinion of the Supreme Court of
MN B45 BARES 6 OER Le ee 38-41

Appendix E (Order of Supreme Court of Kentucky
Denying Petition for Rehearing).............. 42

TABLE OF AUTHORITIES

Constitutional Provisions: sain
United States Constitution, Fourteenth Amendment,
MI, Dg ic choc we bot eeesecensece 2—- 3
Statutes:
Federal Statute: 28 U.S.C. §1257(3).............. 2
Cases:
Bowie v. Columbia, 378 U.S. 347, 12 L. Ed. 2d 894,
I ED osc nbs sealer sve ewee v's 15
Bradley v. Richmond School Board, 416 U. S. 696,
40 L. Ed. 2d 476, 94S. Ct. 2006 (1974)......... 14
Hormel v. Helvering, 312 U.S. 552, 85 L. Ed. 1037,
SS 16
In re Winship, 397 U. S. 358 (1970).............. 5-6, 7
Issac v. Engle, F. 2d ___., No. 78-3488 (6th
asa vie Wiy-n's a be 6x0 dwn wa8 0 68 11, 12
Jackson v. Virginia, U. 8S. ——, 61 L. Ed. 2d
ENS i ee ee 5, 6, 7, 16
Kimbrough v. Commonwealth, Ky., 550 8. W. 2d 525
ES SE ET FS 8, 9, 12, 14, 16, 17
Mitchell v. W. T. Grant Company, 416 U. S. 600, 40
L. Ed. 2d 406, 95 S. Ct. 1895 (1974)........... 17
O’Connor v. Ohio, 385 U. S. 92, 17 L. Ed. 2d 189, 87
ss ccs bh sess eeverssesbevecsees 11
Thompson v. Louisville, 362 U. S. 199 (1960)...... 6

Thompson v. State of Utah, 18 S. Ct. 620, 170 U. S.
343, 42 L. Ed. 1061 (1898).......... eee Perey 15

SUPREME COURT OF THE UNITED STATES

October Term 1979
No.

RICHARD CARPENTER and

STEPHEN BORDERS - - - - Petitioners
v.
COMMONWEALTH OF KenTUCKY - - Respondent

PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF KENTUCKY

The Petitioners, RicHARD CARPENTER and STEPHEN
Borvers, respectfully pray 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 Supreme Court of
Kentucky was ordered to respond. The Order of the
Supreme Court of Kentucky overruling Petitioners
Petition for Rehearing was entered on February 12,
1980. (Appendix H, p. 42).

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).

QUESTION PRESENTED

Is it.a violation of a defendant’s right to due process
of law for a court to hold that there is no substantial
evidence to support a conviction, but uphold the con-
viction based on the retroactive application of a sub-
stantial change of a state procedural rule.

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

The Fourteenth Amendment to the Constitution of
the United States provides in pertinent part as follows:

[N]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 property,
without due process of law.

Article I section 10 of the Constitution of the United
States provides in pertinent part:

[el. 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 Coin

3

a Tender in Payment of Debts; pass any Bill of
Attainder, ex post facto Law, or Law impairing
the Obligation of Contracts, or grant any Title of
Nobility.

STATEMENT OF THE CASE

This case was tried by a jury in the Jefferson :Cir-
cuit Court on June 28, 29, 30 and July 1, 2, 1976. There
were three Defendants in the within action: Buatir;
Borvers; and CARPENTER. This Writ of Certiorari is
‘brought by only CARPENTER and Borpers. The Peti-
tioners were charged in a twelve count Indictment with
having fired shots into automobiles and business places
on the west side of Louisville, injuring persons and
property (Transcript of Record, hereinafter designated
as T.R., p. 2). After over fourteen hours of delibera-
tion, the jury found the Petitioners guilty of two
counts of wanton endangerment in the first degree and
two counts of criminal mischief in the third degree
and fixed their sentence at one year in the penitentiary.’
(Transcript of Evidence, hereinafter designated as
T.E., pp. 812-813).

The Petitioners perfected a timely appeal to the
Court of Appeals of Kentucky. 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
Commonwealth is substantially the same that a directed
verdict in favor of the Petitioners be entered. (Ap-
pendix A, pp. 19-23).

1By statute, K.R.S. 532.060, the Jury Fixes the Punishment in
Kentucky.

q

On June 30, 1978, the Court of Appeals withdrew
its original opinion entered on February 10, 1978, and
issued a new opinion. The Court held that where all
the evidence is circumstantial, the lack of conclusive-
ness of the test leaves the Court with no alternative
but to reverse the conviction of the Petitioners. (Ap-
pendix B, pp. 24-32).

On November 14, 1978, the Supreme Court of Ken-
tucky granted the Commonwealth’s Motion for Dis-
cretionary Review to review the June 30, 1978, decision
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 Petitioners, CARPENTER and Borpers. That Court
held that the evidence was insufficient to convict the
Petitioners. In fact, the Court stated that there was
no relevant evidence in the record before them that
linked either of the Petitioners to the charged offenses.
(Appendix C, p. 36).

On June 28, 1979, the Commonwealth filed a Peti-
tion for Rehearing in the Kentucky Supreme Court.
The Supreme Court of Kentucky granted the Com-
monwealth’s Petition for Rehearing and issued a new
opinion rendered on November 20, 1979, which com-
pletely reversed the decision of the Court of Appeals
and upheld the Petitioners’ convictions. The Court
reasoned that since the Petitioners had failed to move
for a directed verdict at the close of all the evidence,
the issue of the sufficiency of the evidence was, there-

4)

fore, not preserved for appellate review. (Appendix
D, p. 41).

The Petitioners then filed a timely Petition for Re-
hearing which was denied on February 12, 1980. Peti-
tioners filed a Motion to Recall the Mandate pending
consideration by this Court of the within Petition.
Said motion was sustained on March 5, 1980.

REASON FOR GRANTING THE WRIT

1. It Is a. Fundamental Violation of the Due Process Clause
for the Supreme Court of Kentucky to Hold That There
Is No Substantial Evidence of Guilt of These Petitioners
and Yet Sustain Their Conviction for Any Reason, Let
Alone the Retroactive Application of a Substantial
Change in a Procedural Rule.

On June 28, 1979, this Court announced a new
standard for acquittal based upon insufficiency of the
evidence. The new standard dictates that a defendant
cannot now be convicted of a crime where no rational
trier of fact could find proof of guilt beyond a reason-
able doubt.

[T]he relevant question is whether, after viewing
the evidence in the light most favorable to the
prosecution, any rational trier of fact could have
found the essential elements of the crime beyond
a reasonable doubt, Jackson v. Virginia, supra,
tiimiais Ths a, , 61 L. Ed. 2d 560, 573 (June
28, 1979).

In articulating this new standard for acquittal based
on insufficiency of evidence, this Court relied upon the
familiar constitutional standard of In re Winship, 397

6

U. S. 358 (1970), which stated that no person may be
convicted except upon proof beyond a reasonable doubt
as to every element of the offense charged.

In short, Winship presupposes as an essential
of the due process guaranteed by the Fourteenth
Amendment that no person shall be made to suffer
the onus of a criminal conviction except upon suf-
ficient proof—defined as evidence necessary to
convince a trier of fact beyond a reasonable doubt
of the existence of every element of the offense.
Jackson v. Virginia, U.S. , 61 L. Ed. 2d
560, 571 (June 28, 1979).

In fact, the Supreme Court went so far as to state that
a reasonable doubt means ‘‘the need to reach a sub-
jective state of near certitude of the guilt of the ac-
eused.’’ Jackson, supra, Id, at p. 571.

Prior to Jackson, the standard for acquittal based
upon insufficient evidence was the limited standard of
Thompson v. Louisville, 362 U. S. 199 (1960). In
Thompson, this Court held that due process protects
against a wholly arbitrary deprivation of liberty and
that a conviction must be reversed only where the
record contains no evidence of guilt.

[ W Je find no evidence whatever in the record to
support these convictions. ‘‘Just as a conviction
upon a charge not made would be sheer denial of
due process,’’ so is it a violation of due process to
convict and punish a man without evidence of his
guilt. Thompson v. Louisville, supra, 362 U.S. at
206,

7

The ‘‘no evidence’’ standard has now been held to be
simply too inadequate to protect against the misap-
plication of the constitutional standard of reasonable
doubt and is, therefore, no longer applicable.

That the Thompson ‘‘no evidence’’ rule is
simply inadequate to protect against misapplica-
tion of the constitutional standard of reasonable
doubt is readily apparent. ‘‘A mere modicum of
evidence may satisfy a ‘no evidence’ standard.”’

. Any evidence that is relevant—that has any
tendency to make the existence of an element of a
crime slightly more probable than it would be with-
out the evidence . . . —could be deemed a
‘‘mere modicum.’’ But it could not seriously be
argued that such a ‘‘modicum”’ of evidence could
by itself rationally support a conviction beyond a
reasonable doubt. The Thompson doctrine simply
fails to supply a workable or even a predictable
standard for determining whether the due process
command of Winship has been honored. Jackson
v. Virginia, supra, —— U. 8. —~—, 61 L. Ed. 2d at
574.

This Court’s reasoning makes it clear that the Winship
standard of reasonable doubt is now the standard for
acquittal guaranteed by the due process clause. Accord,
Moore v. Duckworth, U.S. , 61 L. Ed. 2d 865
(July 2, 1979); Leonard M. v. California, U.S.
—_—.,, 61 L. Ed. 2d 878 (July 2, 1979); and Pilon v.
Bordenkircher, U. S. ——, 62 L. Ed. 2d 1 (Octo-
ber 9, 1979).

Both the Court of Appeals of Kentucky and the
Supreme Court of Kentucky have agreed that there is

8

no relevant evidence connecting Petitioners with any
of the alleged offenses. The Court of Appeals of Ken-
tucky in its opinion rendered on June 30, 1978, reversed
the decision of the trial court on the ground that there
was insufficient evidence to sustain the Petitioners’
conviction (Appendix B, p. 27). Likewise, the Su-
preme Court of Kentucky in its opinion of June 12,
1979, affirmed the opinion of the Court of Appeals and
agreed that there was ‘‘no relevant evidence linking
CARPENTER and Borpers to the charged offenses.’’
(Appendix ©, p. 36).

However, the Supreme Court of Kentucky in its
opinion dated November 20, 1979, opted to set aside its
opinion of June 12, 1979, and ignore the constitutional
mandate of the new standard for conviction established
in Jackson. The Court upheld the Petitioner’s convic-
tions because of an alleged procedural error committed
at trial by counsel for Petitioners in not making a Mo-
tion for A Directed Verdict at the close of all the evi-
dence, even though its earlier opinion acknowledged
that there was no relevant evidence connecting Peti-
tioners with any of the charged offenses. (Appendix
D, p. 41). The Supreme Court of Kentucky based its
reissued opinion on the holding of Kimbrough v. Com-
monwealth, Ky., 550 S. W. 2d 525 (1977). That case
was not decided until well after the Petitioners’ trial
and held that in order to preserve the issue of suf-
ficiency of the evidence it is necessary to make a Motion
for a Directed Verdict at the close of all the evidence.

It should be noted at this point that Kimbrough’s
procedural rule represented a clear departure from the

9

customary procedure for preserving the question of
the sufficiency of the evidence that was in effect at the
time of Petitioners’ trial. In writing the opinion of
the Supreme Court of Kentucky rendered on Novem-
ber 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 clarification
of the procedural rule for preserving the sufficiency of
the evidence question. [Appendix D, p. 40.] Hence,
it was not until April 1, 1977, nine months subsequent
to the Petitioners’ trial, that a definitive statement on
this particular point of criminal procedure was estab-
lished by the Supreme Court of Kentucky. In short,
it was not until well after the Petitioners’ 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 Petitioners’ trial, required only that a Motion for
A 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 opin-
ion written by Chief Judge Martin concurring with
the decision rendered by the Kentucky Court of Ap-
peals on February 10, 1978, it was noted, and properly
so, that Kimbrough represented a clear departure from
prior case law in the Commonwealth of Kentucky.
Judge Martin also correctly pointed out that the ques-
tion of the sufficiency of the evidence could have been
preserved at the time of Petitioners’ trial by a Motion
for a Directed Verdict at the close of the Common-

10

wealth’s case or at the close of all the evidence, or even
in a Motion for a New Trial.

; a question of sufficiency of the evidence
could have been preserved either by motion for a
directed verdict at the close of the Common-
wealth’s case, or at the close of all the evidence,
or even in a motion for a new trial. See Crain v.
Commonwealth, 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. Com-
monwealth, Ky., 456 S. W. 2d 43, 44 (1970). [Ap-
pendix B, p. 30.]

Counsel for Petitioners did, in fact, adhere to the pre-
cise standards available for preserving the issue of the
sufficiency of the evidence as enumerated above by
Chief Judge Martin and by the Kentucky Court of
Appeals in Crain.* Counsel first moved for a directed
verdict at the close of the Commonwealth’s case and
then raised the question of the sufficiency of the evi-
dence in their motion for a new trial. In short, counsel |
had complied with all of the mandatory procedures
for preserving the sufficiency of the evidence question
that were in effect at the time of Petitioners’ trial.
Yet, Petitioners have been penalized and made to suffer
a manifest injustice as a result of following the very
standards prescribed 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 basic

2Until January 1, 1976, Kentucky had no intermediate appellate
court and its highest court was the Court of Appeals of Kentucky.
In 1974 Chapter 84 of the 1974 Acts of the General Assembly was
adopted creating the Kentucky Supreme Court.

11

concept of fundamental fairness and Due Process of
Law and, therefore, cannot constitutionally stand.

In a most recent case, the United States Court of
Appeals for the Sixth Circuit has relied on the reason-
ing employed by this Court in O’Conner v. Ohio, 385
U. 8. 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 'aw, due process
mandates that a defendant cannot be charged with
anticipating the new change in the law. Isaac v. Engle,
—_— F. 2d —~—, No. 78-3488 (6th Circ. Feb. 8, 1980).

The facts of Jsaac are strikingly analogous to the
ease at bar. In Jsaac, the trial court instructed the
jury that the defendant bore the burden of proving his
affirmative defense by a preponderance of the evidence.
This was the law at the time of trial and the defendant
did not object. Subsequently, the Supreme Couit of
Ohio changed this standard and held that the defend-
ant need only go forward with evidence sufficient to
raise the defense. One year later that same court
applied this new standard retroactively. The defend-
ant sought Habeas Corpus relief and the Sixtk Circuit,
relying on this. Court’s opinion in O’Connor, supra,
reversed the district court and held that the petitioner
could not be denied Habeas relief, reasoning that the
defendant should not have been charged with antici-
pating the future change in Ohio law that invalidated
the standard that was used at his trial. That Court
correctly pointed out that the defendant did not object
to the standard used by the trial court because that
was the only standard available to him at that time.

12

In essence, to require the defendant to object to the
only standard available to him at trial would have
been to require the doing of a vain act.

* * *

yet, in the case at bar every recognized
authority on affirmative defenses in Ohio as well
as dictum from the Ohio Supreme Court reinforced
the propriety of the trial court’s charge to the
jury. Thus, existing law provided no basis for an
objection to the court’s jury instructions at the
time of trial. To require an objection in these cir-
cumstances would be to require the doing of a

vain act.
* * 4

In O’Connor v. Ohio, the Supreme Court held that
the failure to object at trial to a practice that
Ohio had long allowed could not deprive the peti-
tioner of his right to attack that practice in the
state courts following its subsequent invalidation
by the Supreme Court. The Court reasoned that
defendants cannot be charged with anticipating fu-
ture decisions invalidating past practices. Though
O’Connor involved the attempted assertion of a
federal claim, we believe the logic of that decision
to be equally persuasive in the context of the
present case. [Emphasis Added.] Isaac, supra,

Id. at p. 8.

As in Isaac, Petitioners, CARPENTER and BOorpDERs,
should not have been charged with anticipating the
future standard enunciated in Kimbrough for pre-
serving the issue of the sufficiency of the evidence,
since that decision substantially changed the standard
in effect at the time of their trial. By upholding the

13

Petitioners’ convictions the Supreme Court of Ken-
tucky is, in effect, stating that Petitioners should have
deviated from the only standard available at trial for
preserving the sufficiency of the evidence issue. How-
ever, it is obvious that Petitioners would have been
performing ‘‘a vain act’’ by deviating from the only
standards available to them. Due Process of Law and
fundamental fairness prohibits the State of Kentucky
from penalizing the Petitioners for not performing
acts which would have been in vain at the time of their
trial. Petitioners should not be so deprived for their
failure to deviate from the only standards available
at their trial for preserving the sufficiency of the evi-
dence issue.

This Court has long recognized the exception to
the general rule that a court is bound to apply the
law in effect at the time it renders its decision. That
exception prevents an appellate court from applying
a current law, if the law’s application would bring
about a manifest injustice on the parties. This Court
has held that the appellate courts should struggle hard
against a construction which would by a retrospective
application create a manifest injustice to the parties.

The Court in Thorpe, however, observed that
exceptions to the general rule that a court is to
apply a law in effect at the time it renders tis
decision ‘“‘had been made to prevent manifest in-
justice,” citing Greene v. United States, 376 U.S.
149, 11 L. Ed. 2d 576, 84 S. Ct. 615 (1964). Al-
though the precise category of cases to which this
exception applies has not been clearly delineated,

14

the Court in Schooner Peggy suggested that such
injustice could result ‘‘in mere private cases be-
tween individuals,’’ and implored the courts to
‘struggle hard against a construction which will,
by a retrospective operation, affect the rights of
parties.’”” [Emphasis Added] [Citation omitted.]
Bradley v. Richmond School Board, 416 U. 8. 696,
40 L. Ed. 2d 476, 491, 94 8. Ct. 2006 (1974).

It cannot be disputed that under our system of justice
it would be a mainfest injustice to these Petitioners
to sustain their conviction where there is admittedly
no relevant or sufficient evidence to support the find-
ing of guilt.

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 rendered by Chief Judge Martin of the Ken-
tucky Court of Appeals, it was pointed out, and
properly so, that since the Kimbrough rule affected
the Petitioners’ substantial rights, its application op-
| -erated precisely like an ex post facto law which is pro-
hibited by Article I, §10 of the Constitution of the
United States. [Appendix B, p. 30.]

This Court has held that the legislature may pre-
seribe different modes of procedure in its discretion,
but in doing so it cannot lawfully dispense with any
substantial rights that the existing law affords to the
defendant. 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 Con-
stitution,

15

‘‘The legislature may abolish courts and
create new ones, and it may prescribe altogether
different modes of procedure in its discretion,
though tt cannot lawfully, we think, in so doing,
dispense with any of those substantial protections
with which the existing law surrounds the person
accused of crime.’’

* * *

. But it was held in Hopt v. Utah above cited,
that a statute that takes from the accused a sub-
stantial right given to him by the law in force at
the time to which his guilt relates would be ex post
facto in its nature and operation, and that legis-
lation of that kind cannot be sustained simply
because, in a general sense, it may be said to regu-
late procedure. Thompson v. State of Utah, 18
S. Ct. 620, 170 U. S. 348, 42 L. Ed. 1061 (1898).
[Emphasis Added. |

If a state legislature is barred by the Ex Post Facto
Clause from passing such a procedural law, it must
follow that a State Supreme Court is barred by the
Due Process Clause from achieving precisely the same
result by judicial construction.

If a state legislature is barred by the Ex Post
Facto Clause from passing such a law, it must
follow that a State Supreme Court is barred by
the Due Process Clause from achieving precisely
the same result by judicial construction. Bowie v.
Columbia, 378 U. S. 347, 12 L. Ed. 2d 894, 84 8. Ct.
1697 (1963).

From this Court’s reasoning above it becomes very
apparent that Judge Martin was correct in his con-

16

clusion that the Kimbrough rule operated like an
Ex Post Facto law. The Supreme Court of Ken-
tucky’s judicial construction of the Kimbrough rule
has resulted in the Petitioners’ loss of a most substan-
tial and fundamental right which is guaranteed by the
Due Process Clause of the United States Constitution.
That right dictates that no one can be made to suffer
the onus of a criminal conviction which is based on no
relevant evidence.

This Court has repeatedly held that the rules of
procedure are devised to promote the ends of justice
and not defeat them. Rules of procedure should not
and cannot require the sacrifice of the rules of funda-
mental justice.

Rules of practice and procedure are devised to
promote the ends of justice, not to defeat them.
A rigid and undeviating judicially declared prac-
tice under which courts of review would invariably
and under all circumstances decline to consider all
questions which had not previousiy been specif-
ically urged would be out of harmony with this
policy. Orderly rules of procedure do not require
sacrifice of the rules of fundamental justice.
[Emphasis Added.] Hormel v. Helvering, 312
U. S. 552, 85 L. Ed. 1037, 1041 (1940).

Clearly, the ends of justice and fundamental fairness
have been erroneously defeated by the Supreme Court
of Kentucky’s retroactive application of the rigid pro-
cedural rule enunciated in Kimbrough. Said applica-
tion is contrary to the new constitutional mandate of
Jackson. That new standard for acquittal allows for

17

no exceptions or deviations and dictates that a convic-
tion cannot be upheld where there is insufficient evi-
dence to establish guilt. Procedural rules must remain
flexible in order to guard against the very injustice
that these Petitioners have suffered. ‘‘The very nature
of due process negates any concept of inflexible pro-
cedures universally applicable to every imaginable situ-
ation.’’ Mitchell v. W. T. Grant Company, 416 U. 8S.
600, 610, 40 L. Ed. 2d 406, 415, 95 S. Ct. 1895 (1974),
quoting Cafeteria Workers v: McElroy, 367 U. S. 886,
895 (1961); Stanley v. Illinois, 405 U. S. 645, 650
(1972). Petitioners pray that this Court grant the
Writ of Certiorari, and negate the Supreme Court of
Kentucky’s inflexible application of the procedural rule
established in Kimbrough, since that application de-
feats the ends of justice by forcing the Petitioners to
suffer the onus of a criminal conviction when there has
been absolutely no relevant evidence establishing their

guilt.
CONCLUSION

The Supreme Court of Kentucky, in upholding
these convictions, violated the Petitioners’ right to
substantive Due Process of Law as guaranteed by the
Fourteenth Amendment of the United States Consti-
tution. The Supreme Court of Kentucky has opted to
retroactively apply an inflexible procedural rule and
uphold a conviction, where it is conceded by all of the
Appellate Courts of Kentucky that there is no relevant
evidence connecting the. Petitioners to any of the
charged offenses. The Supreme’ Court of Kentucky’s

18

judicial construction and retroactive application of the
procedural rule established in Kimbrough has stripped
the Petitioners of their fundamental right to be ac-
quitted of an alleged crime where there has been no
relevant evidence establishing guilt. For the reasons
hereinabove stated, this Petition for Writ of Certiorari
should be granted.

Respectfully submitted.

FRANK FE. Happap, JR.
529 Kentucky Home Life Building
Louisville, Kentucky 40202
(502) 583-4881

Counsel for Petitioner Carpenter

Rosert EK. FLEMING
Suite 1509, Citizens Plaza
Louisville, Kentucky 40202
(502) 587-6554

Counsel for Petitioner Borders

APPENDIX

19

APPENDIX A

OPINION RENDERED: FEBRUARY 10, 1978
TO BE PUBLISHED

COURT OF APPEALS OF KENTUCKY
File No, CA-568-MR

JEROME Buair,
RicHARD CARPENTER, and

SteEPHEN BorDERS - - - - - Appellants
v.
CoMMONWEALTH OF KerntTUCKY - - - 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
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
also peppered with the shot. A waitress in Slim’s Grill

20

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 testifr
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
cars. 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

21

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

22

might fairly find guilt beyond a reasonable doubt. Carmen
v. Commonwealth, Ky., 490 S. W. 2d 744 (1973) ; Hodges v.
Commonwealth, Ky., 473 8. W. 2d 811 (1971). After a
review of the evidence, we cannot say that the evideuce 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 ‘wo 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

23

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 all 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
Attorney General

MARTIN GLAZER
Assistant Attorney General
State Capitol

Frankfort, Kentucky 40601

24

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 Buarr,
RicHarD CARPENTER, and
STEPHEN BorprErs - - . - . Appellants

Vv.

CoMMONWEALTH OF Kentucky - - Appellee

Appeal From the Jefferson Circuit Court
Honorable Charles Leibson, Special Judge
Action No. 156577

REVERSING

Berrore: 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 tlie 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

25

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 3l1st, 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. They 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

26

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
shelis 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?

It is a sound principle of law that a conviction may be
sustained on circumstantial evidence, Rogers v. Common-

27

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 S. 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 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,

28

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 labor..:ory conditions, we can-
not say that it was a lower court abuse of discretion 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, Corer JupGE, Concurs By SEPARATE OPINION.
Howarp, Jupcr, DissEnts By SEPARATE OPINION.

Martin, Cuirer Jupcr, Concurrina. 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 8. 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,

29

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 present 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

30

“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.

Howarb, Jupce, 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-

31

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). Im 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, tt 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.

32

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
Attorney General

MARTIN GLAZER
Assistant Attorney General
State Capitol

Frankfort, Kentucky 40601

33

APPENDIX C
RENDERED: JUNE 12, 1979

SUPREME COURT OF KENTUCKY
78-SC-365-DG

CoMMONWEALTH oF KENTUCKY ° . ° Movant
v.

JEROME Buarr,
RIcHARD CARPENTER, and
STEPHEN BorpDERs - . - - - 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 car. 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 Circuit Court were reversed by a divided

34

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 ear 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. Set. 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 car traveling
toward him with its headlights off. Giuchici stopped the
oncoming ear, 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 car.

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,

35

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 car 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
ear. 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 Sgt. 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.

36

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 appetiate 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
Circuit Court against him.

All concur.

Attorneys for Movant:
ROBERT F. STEPHENS, Attorney General
MARTIN GLAZER, Assistant Attorney General
Capitol Building
Frankfort, Kentucky 40601

37

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

38

APPENDIX D
SUPREME COURT OF KENTUCKY

CoMMONWEALTH OF KENTUCKY, - - - Movant,
Vv.

JEROME Buarr,
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 granting petitions
for rehearing, the Supreme Court, Clayton, J., held that
under the Kimbrough rule, defendants failed to 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

39

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)

Tf 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 direeted 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

40

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 substantially 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.” Kim-
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).

41

[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.

42

APPENDIX E

OPINION RENDERED: NOVEMBER 20, 1979

SUPREME COURT OF KENTUCKY

CoMMONWEALTH OF KENTUCKY

v.
. File No. 78-SC-365-DG
JEROME BLAIR

RicHarp CARPENTER and
STEPHEN BorpDERS

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
Fssued 2/12/80

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2378%3A1. Public record. Not legal advice.