Petition — Sowders v. Wiley

Office- Supreme Court, U.S.

FIle

D

84,°113 JUL 20 1981

ALEXANDER L. STEVAS,

CLERK

SUPREME COURT OF THE UNITED STATES

Term, 1981

DEWEY SOWDERS, Superintendent,

Kentucky State Reformatory - - - Petitioner

versas

EARL WAYNE WILEY - - - ~- _ Respondent

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

STEVEN L. BESHEAR

Attorney General

MICHAEL R. BEITING

Assistant Attorney General

PAUL E. REILENDER, JR.

Assistant Attorney General

Capitol Building

Frankfort, Kentucky 40601

Telephone: (502) 564-4058

Counsel for Petitioner

WESTERFIELO-BONTE CO., 619 W. KENTUCKY~-P.O. BOX 3251, LOUISVILLE, KY.

The petitioner prays that a writ of certiorari issue to

review the decision of the United States Court of Appeals

for the Sixth Circuit rendered April 24, 1981.

QUESTIONS PRESENTED FOR REVIEW

Did the decision by the United States Court of Appeals for

the Sixth Circuit, that respondent had exhausted his

state remedies with respect to his ineffective assistance

of counsel claim, circumvent an available state procedure

in which respondent could have presented his ineffec-

tive assistance of counsel claim, thereby usurping the

authority of the Kentucky state courts in this matter?

Does a trial counsel’s concession of guilt during the closing

argument, done as part of a legitimate trial strategy,

deny the accused effective assistance of counsel within

the meaning of the Sixth and Fourteenth Amendments

of the United States Constitution where the client’s

consent does not appear of record?

Is a “Boykin” type inquiry constitutionally mandated when

trial counsel concedes his client’s guilt arguing for

leniency in the closing argument?

PARTIES TO THE PROCEEDING

All the parties to this proceeding are set forth in the

caption of the case before this Court,

TABLE OF CONTENTS

PAGE

Questions Presented for Review...............60005 i

Reference to Opinions............cccccscceveeeeees 1- 2

Statement of Jurisdiction...................0e ees 2- 3

Constitutional Provisions Involved................. 3

Statement of the Case................4.. iiababesed 4-7

Arguments and Reasons for Granting the Writ of

OP POPTPTTTETYTITLererel err errr ee 7-28

ls cad oo x b6es onsen beeen eternes oa 28

NEO, wae ddccecasecsacecetsneesisaceeee 29

SIE 004 6.660 nbd 4500000006000) 000050000008 00

SL UL GAG 5G bab iwddu ddd scesvensekacnskeseees 31-47

GRE OME FURMIIEE oc cc ccccscccsccvssvescescces 48-45

Findings of Fact, Conclusion of Law, and Recom-

PIE Sidccvcctvescdechasacédeceseaseenee

Memorandum Opinion Per Curiam—Affirming ....64-67

The Constitution of the United States

EE ards ed ons cher ee buewsaccutns 67

IEE OE 5 Sh v'd.kd 0d cab 000 ews eedonee sbbae 68

RUM AEhL cea Sc awdGas sce'saueesceeés 0408s bd eee’ 69-71

TABLE OF AUTHORITIES

Cases: PAGE

Beasley v. United States. 491 F. 2d 687 (6th Cir.

BOUVET bd kh Avecascorsccsdbeccersasecuséeaciens 23, 24

Blankenship v. Commonwealth, Ky. App., 554 8. W.

Pe SEO TTR iscccbequbbsedcrianccistetesass 12

Boykin v. Alabama, 395 U. 8. 238, 89 8. Ct. 1709,

oe Gt Perr rrr 3, 26, 27, 28

Brady v. United States, 397 U. S. 742 (1970)...... 27

Brookhart v. Janis, 314 U. S. 1, 8, 86 8S. Ct. 1245,

3B Tn WG, BE SEG (REGS) oo ccecvcccccssccccese 18

Brown v. Commonwealth, Ky., 551 8S, W. 2d 557

(SOUT ho 6 cha vhbescoesdetceevccnewevonnne ts 9

Carothers v. Rhay, 594 F. 2d 225 (9th Cir. 1979)... 13

Cleaver v. Commonwealth, Ky., 569 S. W. 2d 166

CREO) 0 ve bicwseecusesenccsascavggQatessdesech 12

Coleman v. Commonwealth, 276 Ky. 802, 125

BS. W. Bd 726, 720 (19GB)... wcsccccccccccccccces 22

Crowell v. Zahradnick, 571 F. 2d 1257 (4th Cir.

IOUT 6 a cctddeevetncccccvecesecsveeeeseseves 14

Dombrowski v. Johnson, 488 F’. 2d 68 (6th Cir. 1973) 13

Flener v. Commonwealth, Ky., 514 S. W. 2d 201

CUE cok eso eeeKUebaddwotcccddntsdacebubese 14

Foremost Insurance Company v. Shephard, Ky.,

588 S. W. 2d 468 (1979)... ..ccccccccccccccces 9

Galtieri v. Wainwright, 582 F. 2d 248 (5th Cir.

BUG) « cb adavadededbetenshssduetcdvevecseces 16

Gardner v. Blackburn, 569 F. 2d 856 (5th Cir. 1978) 16

Gonzales v. Stone, 546 F. 2d 807 (9th Cir. 1976).... 16

Haggard v. Alabama, 550 F, 2d 1019 (5th Cir. 1977) 24

Hamilton v. Commonwealth, Ky., 580 S. W. 2d 208

COTO ass ct bednceavedscedvedsoveccoscsvecce 9

Hennemeyer v. Commonwealth, Ky., 580 8S. W. 2d

ME MOUNT cc ceaddcwsesvaos ceyscerverdboseades 9

Herring v. Estelle, 491 F. 2d 125 (5th Cir, 1974). ..23-24

Hibbs v. Commonwealth, Ky. App., 570 8S. W. 2d

GOB (IDTS) cciciwsccccceseceses usveeeees pisee Oe

iv

Cases (Cont'd):

Johnson v. United States, 506 F. 2d 640, 643 (8th

Cir, 1974), cert. denied 420 U. S. 978 (1974).... 25

Keener v. Ridenour, 594 F’, 2d 581 (6th Cir. 1979).. 18

Knoxson v. Estelle, 574 F. 2d 1339 (5th Cir. 1978)... 15

Lay v. Commonwealth, Ky., 506 S. W. 2d 507 (1974) 12

McMann v. Richardson, 397 U. S. 759, 771, 25 L. Ed.

2d 763, 90 S. Ct, 1441 (1970)..........0000 23, 24, 27

McQueen v. Swenson, 498 F’. 2d 207 (8th Cir. 1974) 23

Meadows v. Commonwealth, Ky., 550 S. W. 2d 511

A Per Pe Peer eye errr Tey Tr ere 21

Miller v. Harvey, 566 F’. 2d 879 (4th Cir. 1977).... 13

Moran v. Hogan, 494 F’. 2d 1220 (1st Cir. 1974).... 24

Parker v. North Carolina, 397 U. S. 790, 25 L. Ed.

PAGE

2d 785, 90 S. Ct. 1458 (1970)... ...cccccccccees 24

Parr v. United States, 351 U. S. 513, 76 S. Ct, 912,

PE A OORT. COUN ccdccececcbdecccdvcsenss 16

Picard v. Connor, 404 U. S. 270, 92 S. Ct. 509, 30

ee SF eo) ee per ery ere 9,13

Powell v. Alabama, 287 U.S, 45, 68-69, 53 S, Ct, 55,

pe SE RS fp | a ere 18, 23

Raisor v, Commonwealth, Ky., 278 S. W. 2d 635

Ss SN eb od baad be ness eCdn dh man ones bn 14

Ramsey v. Commonwealth, Ky., 399 S. W. 2d 473

(1966), cert. denied, 385 U. 8. 865 (1966) ....... 12

Smith v. Commonwealth, Ky., 567 S. W. 2d 304

SES ci oraaks chy ceae) 00s clus icreaee es 9-10

Tollett v. Henderson, 411 U. S. 258, 36 L. Ed. 2d 235,

SE SEDUIEDS i G5 Gwrekcee s AWceee be vecce 23

United States v. Cotton, 446 F. 2d 865 (8th Cir.

1 RB PES A ne a ee 24

United States v. Hager, 505 F. 2d 737 (8th Cir.

Dt coue Mi ciel cepine ease Oeekeweeceet 25

United States v. Israel, 556 F’. 2d 865 (7th Cir.1977) 13

United States, ex rel. Allum v. Twomey, 484 F. 2d

Oy 2 Foo Re: ) See 19

United States v. Yelardy, 567 F. 2d 863 (6th Cir.

1978), cert. denied 99 S. Ct. 133 (1979)......... 25

Cases (Cont'd):

Vaughan v. Commonwealth, Ky., 505 S. W. 2d 768

PAGE

SEE a's Grid LA KGA UC EMED Coveraddeuceassadeees 14, 25

Wainwright v, Sykes, 433 U. S. 72, 94-95, 97 S. Ct.

Debt, GS Tse, TG. BR: GE CIOTT).. sv vccccveczcccs 19

Walker v. Henderson, 492 F. 2d 1311 (2d Cir. 1974),

cert. denied 417 U. S. 972 (1974)..........006. 24

Watkins v. Estelle, 527 F. 2d 1336 (5th Cir. 1976).. 13

Williams v. Perini, 557 F. 2d 1221 (6th Cir. 1977).. 13

Williams v. Twomey, 510 F. 2d 634 (7th Cir. 1975) 24

Wilson v. Commonwealth, Ky., 601 S. W. 2d 280

CEE vnc Ctprecvdsedsracccccvcaceresenencns 9

Constitutional Provisions (U. 8.):

United States Constitution, Fourteenth Amendment 3

United States Constitution, Sixth Amendment..... 3

Statutes and Rules:

REED, ‘SS oulsoadeenskcchadesceventenael 2

28 U.S.C, See. 2254(b) and (c) .......ceeeeees 3, 4, 8, 28

ic. a's Vel uc de ee sbaeed.eneeneaeeeawe 21

DET 64. Cid oobes 6 bebsabeecdeaenenereeke 21

Rule 17.1(a) and (c), Supreme Court of the United

PN ceueadateecheeas bones seeneseoes obeeee 2, 3

Other:

Kentucky RCr 9.84(1) .....cccecccccccccccccccece 3, 20

POURUORT TOP BEAD cicivcisevcsvesccss 2, 3, 7, 8, 10, 12

SUPREME COURT OF THE UNITED STATES

Term, 1981

No.

Dewey Sowpers, Superintendent,

Kentucky State Reformatory - - Petitioner

v.

Earn WayNE Witty - - - - ~ Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR PETITIONER WITH APPENDIX

REFERENCE TO OPINIONS

Decision herein by the United States Court of Ap-

peals for the Sixth Circuit was filed on April 24, 1981,

and styled Earl Wayne Wiley v. Dewey Sowders, Su-

perintendent, Kentucky State Reformatory, No. 80-

3445. The decision reverses the judgment of the United

States District Court for the Western District of Ken-

tucky. The decision of the Sixth Circuit may be found

at Appendix 31-47. The order and judgment of the

United States District Court for the Western District

of Kentucky, reviewed on an appeal to the Court of

Appeals, dated March 31, 1980, may be found at Ap-

pendix 48-49. The magistrate’s findings of fact, con-

clusions of law, and recommendations of March 3, 1980,

which were accepted by the District Court order above

set forth, may be found at Appendix 50-63. The

memorandum opinion per curiam of the Kentucky

Supreme Court rendered September 11, 1979, which

2

affirmed the respondent’s trial court conviction may be

found at Appendix 64-67.

STATEMENT OF JURISDICTION

The filing date of the decision of the United States

Court of Appeals for the Sixth Circuit of which review

is sought in this Court is Apri] 24, 1981. The appellate

decision resulted from a civil appeal from a habeas

corpus proceeding in the District Court.

No rehearing was sought by any party.

Jurisdiction is conferred upon this Court to review

by writ of certiorari the appellate decision in question

by 28 U.S.C. 1254(1).

This Court should grant the writ of certiorari ieades

the authority of Rule 17.1(a) and (ce) of this Court.

Rule 17.1(a). The Sixth Cireuit has ruled that the

respondent exhausted his state remedies with respect

to his ineffective assistance of counsel claim by the

mere presentation of this claim to the Kentucky

Supreme Court, notwithstanding that the Kentucky

Supreme Court never reached the merits of the claim

because it had not been properly preserved for appel-

late review. In so doing, the Sixth Circuit has denied

the Kentucky courts a first opportunity to rule on the

question by way of its post-conviction relief procedure

(Kentucky Rule of Criminal Procedure, hereinafter

RCr 11.42), which is the prescribed way for an ag-

grieved defendant to raise constitutional questions of

this type. The federal court of appeals has so departed

from this Court’s principles of comity and federalism

3

as to call for this Court’s supervision to resolve the

issue. Additionally, the Sixth Circuit has decided a

federal question in a way in conflict with the Kentucky

Supreme Court regarding the application of a ‘‘ Boy-

kin’’ inquiry to a closing argument where guilt is con-

ceded as trial strategy in trying to obtain leniency for

the client.

Rule 17.1(c). The Sixth Circuit has decided a

nationally important question involving the scope and

application of Boykin v. Alabama, 395 U.S. 238 (1969).

As a corollary to that question, the Sixth Cireuit has

ruled that it is ineffective assistance of counsel to

concede the client’s guilt during closing argument

while trying to obtain leniency for the client.

CONSTITUTIONAL PROVISIONS INVOLVED

Petitioner asserts there is no Constitutional au-

thority to justify the results of the court below. Such

absence of authority involves reference to

The Sixth Amendment, Constitution of the United

States

The Fourteenth Amendment (Section 1), Consti-

tution of the United States

28 U.S.C, 2254 (b)

28 U.S.C. 2254 (ce)

RCr 11.42

RCr 9.84

The full text of this authority is set forth at Ap-

pendix 69-71,

STATEMENT OF THE CASE

References herein will be to either the Joint Ap-

pendix of the parties as filed in the Court of Appeals

and which is presently not before this Court (JA), or

to the Appendix which accompanies this petition (A).

Respondent invoked federal jurisdiction under 28

U.S.C. 2254 in the District Court.

Earl Wayne Wiley, the respondent, was indicted

by the Henderson County Grand Jury on August 1,

1978, along with his brother, Elmer Wiley, of first de-

gree burglary, theft of the value of one hundred (100)

dollars or more and being a persistent felony offender

in the second degree. The offenses were committed on

July 13, 1978 (JA 1-3).

On August 8, 1978, the respondent was arraigned

and an attorney was appointed to represent him (JA

4-5). Separate counsel was also appointed for Elmer

Wiley (Transcript of State Trial Record, hereinafter

TR 6). Earl and Elmer both pled ‘‘not guilty’ (JA

5; TR 7).

Karl and Elmer were jointly tried on September

20, 1978 (Transcript of State Trial Evidence, herein-

after TE 1). At the close of all the evidence in the

first phase of the trial, the respondent’s attorney pre-

sented the closing argument on behalf of both the re-

spondent, and his brother Earl (JA 83). During the

closing argument, the attorney admitted that both the

respondent and Elmer were guilty (JA 87-88, 90-91, 93,

96-97). As was later explained in their amicus brief

to the Kentucky Supreme Court, the trial counsel felt

5

that in light of the fact that the evidence against their

clients was overwhelming, their only hope was to con-

cede guilt and ask the jury to be lenient and merciful in

rendering their verdict (JA 137-147). Both defend-

ants were found guilty of first degree burglary and

theft, and each was sentenced to ten (10) and fifteen

(15) years, respectfully (JA 6-7).

During the persistent felony offender stage of the

trial, Elmer’s lawyer made the closing argument for

both the respondent and Elmer. Again, guilt was

admitted as part of the same trial strategy (JA 123-

129). The jury found both the respondent and Elmer

guilty as second degree persistent felony offenders and

sentenced each to life imprisonment (JA 8). The

judgment of the trial court was entered on October 2,

1978, sentencing the respondent to life imprisonment

(JA 9-10).

The respondent, along with his brother, appealed to

the Kentucky Supreme Court which affirmed their con-

victions on September 11, 1979 (A 64-67). Of import-

ance to this petition are the issues raised on appeal to

the Kentucky Supreme Court regarding the application

of the ‘‘ Boykin”’ inquiry to the closing argument, and

the ineffective assistance of counsel claim. Principally,

the respondent argued that he was denied effective as-

sistance when his court-appointed lawyer repeatedly

admitted his guilt to the jury without prior consent, and

further, the trial court, sua sponte, should have con-

ducted an on-the-record inquiry into whether or not the

respondent and his brother voluntarily and intelligently

consented to counsel’s admissions, With respect to the

ineffective assistance of counsel claim, the Kentucky

Supreme Court said the claim was not preserved for

appellate review because it had never been presented

to the trial court, hence they did not address it on ap-

peal (A 66). Concerning the argument that the de-

fense counsel’s closing argument amounted to a guilty

plea, the voluntariness of the plea, the Kentucky

Supreme Court classified this as a ‘‘frivolous assign-

ment of error’’ (A 66).

The respondent filed a petition for writ of habeas

corpus and supporting memorandum in the United

States District Court for the Western District of Ken-

tucky on December 3, 1979 (JA 159-163). Again, of

importance to this petition are the resolution by the

District Court of the issues relating to whether a

**Boykin”’ inquiry should have been held to determine

the voluntariness and knowledge of the import of the

plea, and whether the respondent was denied effective

assistance of counsel. The District Court concluded

(per magistrate King) that the contention, that a

“Boykin’’ inquiry should take place where guilt is

conceded during closing argument was ‘patently

frivolous’’ (A 59). The District Court also coneluded

that the respondent was not denied effective assistance

of counsel (A 59). The petition for writ of habeas

corpus was denied on March 31, 1980 (A 49).

On April 25, 1980, the respondent filed his notice of

appeal to the United States Court of Appeals for the

Sixth Cireuit (JA 184). Although the respondent

raised basically the same issues raised earlier in the

Kentucky Supreme Court and the United States Dis-

7

trict Court, the Court of Appeals decided the case on

the ineffective assistance of counsel claim and did not

consider the other claims raised (A 31-47). The Sixth

Circuit found that the respondent had been denied

effective assistance of counsel and reversed the deci-

sion of the District Court (A 47). This petition for

writ of certiorari stems from the findings of the United

States Court of Appeals for the Sixth Circuit that

respondent had exhausted his state remedies and re-

ceived ineffective assistance of counsel.

I.

ARGUMENTS AND REASONS FOR GRANTING

THE WRIT OF CERTIORARI

The Finding of Exhaustion of State Remedies by the Sixth

Circuit and the District Court Was Incorrect and Denied

the Kentucky Courts a First Opportunity to Rule on the

Respondent’s Ineffective Assistance of Counsel Claim.

The ramifications of the decision by the Sixth Cir-

cuit that the respondent had exhausted his state

remedies, extend far beyond the instant case and ef-

fectively emasculate the Kentucky post-conviction

relief procedure [RCr 11.42 (A 69-70) ].

The petitioner submits that the respondent failed

to exhaust his available state remedies with respect to

the ineffective assistance of counsel claim, and, there-

fore, federal habeas corpus relief was inappropriate.

In its decision, the Sixth Circuit stated that the

exhaustion of state remedies is satisfied and comity

preserved when a federal constitutional claim is “fairly

8

presented”’ to the state court for initial determination

(A 38). The Sixth Circuit seemed to ignore the fact

that the merits of the claim were not considered by the

Kentucky Supreme Court because it was not preserved

before the trial, and hence, not properly preserved for

appellate review. The decision of the District Court

and the Sixth Circuit that state remedies were ex-

hausted is clearly incorrect.

28 U.S.C, Sec, 2254 specifically requires that a peti-

tioner seeking federal habeas corpus relief first ex-

haust any existing remedies in state court. An ap-

plicant is not deemed to have exhausted his state

remedies if he has the right under state law to raise,

by any available procedure, the question presented

(A 68). In the case at bar it is uncontroverted that

the merits of Wiley’s claim of ineffective assistance of

counsel may be asserted in the Kentucky courts by a

motion to vacate sentence under RCr 11.42 (A 69-70).

Wiley’s failure to pursue his claim of ineffective

assistance of counsel through available remedies in

state court results in a failure to exhaust this claim,

thereby rendering his present attack premature, Con-

sequently, the issue of inadequate representation was

not properly before the District Court or the Sixth

Circuit.

The issue of ineffective assistance of counsel was

raised on direct appeal in the Kentucky Supreme

Court, but rejected without a consideration of the

merits because it had not been properly preserved for

appellate review by a prior presentation to the trial

court (A 66). The petitioner submits that this was not

a “fair presentation”’ of the issue to the state courts

as is required to exhaust an available state remedy. In

Picard v. Connor, 404 U.S, 270, 92 8. Ct. 509, 30 L. Ed.

2d 438 (1971), the Supreme Court ruled that a peti-

tioner had failed to exhaust his state remedies with

respect to his constitutional claim even though he had

asserted virtually the same challenge in the context of

state law on direct appeal to the Massachusetts

Supreme Judicial Court. The Court held that the peti-

tioner’s equa! protection argument had never been

fairly presented to the state court. Consequently, it

required the petitioner to present his constitutional

claim to the state courts before seeking federal habeas

corpus relief.

This same rationale applies to foreclose review of

respondent’s claim of ineffective assistance of counsel.

It cannot be said that the respondent’s briefing of an

unpreserved question gave the Kentucky courts a fair

oppertunity to resolve his constitutional claim. Ken-

tucky has a strong and consistent policy of requiring

strict compliance with its procedural rules. Foremost

Insurance Company v. Shephard, Ky., 588 8. W. 2d

468 (1979); Brown v. Commonwealth, Ky., 551 8. W.

2d 557 (1977). In particular, the Kentucky courts

routinely refuse to address the issue of trial counsel’s

effectiveness in the absence of a post-trial motion pre-

senting the matter for the trial judge’s consideration.

Wilson v. Commonwealth, Ky., 601 8. W. 2d 280

(1980); Hamilton v. Commonwealth, Ky., 580 8. W.

2d 208 (1979); Hennemeyer v. Commonwealth, Ky.,

580 S. W. 2d 211 (1979); Smith v. Commonwealth,

10

Ky., 567 8. W. 2d 304 (1978). Thus, respondent raised

this issue on appeal with full knowledge that the matter

would be disposed of on non-preservation grounds.

This is borne out by counsel’s failure to cite a single

Kentucky case as authority for the review of the un-

preserved issue in the Kentucky Supreme Court. Con-

sequently, it is clear that when Wiley raised this issue

on direct appeal of his conviction he did not afford the

Kentucky Supreme Court a fair opportunity to resolve

his constitutional claim.

The respondent’s resort to federal habeas corpus

as a vehicle for litigation of his ineffective assistance

of counsel claim, and the acquiescence of the Sixth

Cireuit in such maneuvering, smacks of a deliberate

by-pass of an available state remedy. The Sixth

Circuit puts misplaced emphasis on the filing, in the

Kentucky Supreme Court, of an amicus curiae brief

by the respondent’s trial counsel outlining and de-

fending his trial strategy. The Sixth Circuit also con-

sidered important the fact that the trial judge sub-

mitted an affidavit to the Kentucky Supreme Court

stating that in his opinion defense counsel were com-

petent and their trial strategy was sound. The Sixth

Circuit stated that with this additional information

before it, the Kentucky Supreme Court had the posi-

tion of all the parties concerned and was obligated to

decide the ineffective assistance of counsel claim on the

merits (A 40). The Sixth Circuit stated further that

the trial judge’s affidavit effectively foreclosed the re-

spondent’s relief through the RCr 11.42 procedure, and

that exhaustion does not require pursuit of a futile

11

state remedy (A 40). The Sixth Cireuit seemed to

consider as unimportant the fact that (1) the Kentucky

Supreme Court was not obligated to reach the merits

on an issue not properly preserved for appellate review

and (2) the respondent still had a state remedy avail-

able which was infinitely better suited to resolve the

type of claim raised by the respondent.

In effect, the Sixth Cireuit has ruled that state

remedies are exhausted when an unpreserved trial

claim, of a type ordinarily handled by way of the state’s

post-conviction relief procedure, is briefed on direct

appeal to the state appellate court. This ruling has

the practical effect of emasculating not just the Ken-

tucky post-conviction relief procedure, but also any

similar procedures in other states. As a result of the

Sixth Circuit opinion, a defendant who briefs, and

thereby ‘‘fairly presents,’’ an unpreserved trial claim

to the state appellate court is now able to proceed

directly with that claim from the state appellate courts

to the United States District Courts seeking federal

habeas corpus relief. The state post-conviction relief

procedure is therefore by-passed without ever having

given the state courts an opportunity to rule on the

defendant’s constitutional claim. As a further con-

sequence, this will inundate the already overburdened

federal courts with claims that in the past have been

presented first to the state courts for resolution by way

of the state’s post-conviction relief procedure. This

results in an unnecessary expenditure of federal judi-

cial energy and resources.

12

Although the Kentucky courts do not generally

consider such claims on direct appeal because of the

absence of a timely objection, and more importantly,

because of the absence of an evidentiary hearing below

in which the relevant facts can be developed, these

claims are routinely considered by the Kentucky courts

pursuant to motions to vacate under RCr 11.42 (A

69-70). Hibbs v. Commonwealth, Ky. App., 570 8. W.

2d 642 (1978); Lay v. Commonwealth, 506 S. W. 2d

507 (1974) ; Ramsey v. Commonwealth, Ky., 399 8. W.

2d 473 (1966), cert. denied, 385 U. S. 865 (1966). This*

is true even where the issue was not preserved for re-

view at trial, nor raised on direct appeal. Blanken-

ship v. Commonwealth, Ky. App., 554 8. W. 2d 898

(1977). In Hibbs, supra, the Court noted that the

issue of the effective assistance of counsel is generally

the subject of a RCr 11.42 motion, and not a direct

appeal. It is only where a claim of ineffective assist-

ance of counsel has been rejected on the merits on

direct appeal that RCr 11.42 becomes an inappropriate

vehicle for seeking relief. Cleaver v. Commonwealth,

Ky., 569 S. W. 2d 166 (1978). Consequently, RCr

11.42 was an available and state remedy for the asser-

tion of Wiley’s constitutional claim, whereby evidence

of the factual dispute over whether the respondent had

consented to the strategy of conceding guilt in closing

argument could be presented and resolved in an evi-

dentiary hearing.

The petitioner has pointed out that respondent’s

briefing of the unpreserved claim under Kentucky law

was the functional equivalent of a failure to present

13

his argument to the Commonwealth’s highest court at

all. Thus, Wiley failed to exhaust his state remedy.

Picard, supra; Williams vy. Perini, 557 F. 2d 1221 (6th

Cir. 1977); Watkins v. Estelle, 527 F. 2d 1336 (5th

Cir. 1976). Exhaustion of state remedies can require,

as here, report to state statutes providing for post-

conviction attacks on a judgment. Keener v. Ridenour,

594 F. 2d 581 (6th Cir. 1979) ; Carothers v. Rhay, 594

F, 2d 225 (9th Cir. 1979) ; Miller v. Harvey, 566 F. 2d

879 (4th Cir. 1977) ; Dombrowski v. Johnson, 488 F. 2d

68 (6th Cir. 1973). Consequently, the respondent’s

‘*by-pass’’ of an available procedure under Kentucky

law for litigating his constitutional claim of ineffective

assistance of counsel rendered his habeas corpus action

premature.

The Seventh Circuit reached this same conclusion

in United States v. Israel, 556 F. 2d 865 (7th Cir. 1977).

There the petitioner sought relief on the ground

(among others) that he was denied the effective assist-

ance of counsel. The Court ruled that since the peti-

tioner based his claim in part on matters not con-

tained in the record that he had an available remedy

under the Illinois post-conviction hearing act. <Ace-

cordingly, it held that the petitioner had failed to ex-

haust his available state remedies. The Court also re-

jected the argument that resort to this process would

be futile because of Tlinois’ less stringent standard for

the effectiveness of counsel.’

IThis was not a situation where it would have been futile to

resort to an available state remedy, since state law did not preclude

Wiley from obtaining relief on his ineffective assistance of counsel

(Footnote continued on next page)

14

A similar result was reached in Crowell v. Zahrad-

nick, 571 F. 2d 1257 (4th Cir. 1977). There the peti-

tioner argued that he had exhausted his constitutional

claim because he was procedurally barred from raising

it on direct appeal under Virginia law. The Court

rejected this position, finding that the petitioner could

still raise this contention by attacking the inadequacy

of his counsel in a state habeas corpus petition. Con-

sequently, it ruled that the petitioner had failed to

exhaust an available state remedy.

These cases provide convincing support for the

petitioner’s position that Wiley failed to exhaust an

available state remedy with regard to his claim of in-

effective assistance of counsel. Contrary to the opin-

ion of the Sixth Circuit, the petitioner submits that

Wiley’s futile attempt to assert this claim for the first

time on direct appeal in the Kentucky Supreme Court

was not a ‘‘fair presentation”? of his constitutional

claim to the state’s highest court.

The Sixth Circuit decision, that the exhaustion re-

quirement was satisfied, was incorrect in another re-

spect. The opinion of the Sixth Circuit regarding the

claim of ineffective assistance of counsel attached great

significance to the respondent’s assertion below that he

(Footnote continued from preceding page)

claim. Kentucky courts have reversed convictions on the basis of

ineffective assistance of counsel in the past. Flener v. Common-

wealth, Ky., 514 8S. W. 2d 201 (1974) ; Vaughan v. Commonwealth,

Ky., 505 8. W. 2d 768 (1974); Raisor v. Commonwealth, Ky., 278

S. W. 2d 635 (1955). The fact that the Sixth Circuit thought it

was unlikely that Wiley would succeed on the merits of his claim

in state court was a totally insufficient basis for the Sixth Circuit

waive compliance with the exhaustion requirement.

15

did not consent to the concession of guilt in closing

argument. However, there was absolutely no evidence

of any kind in the record to support this contention.

The petitioner submits that as a result of the signi-

ficance attached to the consent issue by the Sixth Cir-

cuit, the resolution of the issue of respondent’s consent

to the closing argument became crucial in determining

whether or not there was ineffective assistance of coun-

sel. The need for an evidentiary hearing to resolve

this issue was obvious. Instead, the Sixth Circuit,

without any support for so doing, found that the re-

spondent had not given his consent to the closing argu-

ment (A 45). Ata minimum, the Sixth Circuit should

have ordered the District Court to hold an evidentiary

hearing on the matter. It has been held that where a

petitioner makes factual contentions going outside the

record, and a remedy is available in state court, that

the petitioner has failed to exhaust his available state

remedies. Knozson Vv. Estelle, 574 F. 2d 1339 (5th Cir.

1978). There the Court ruled that new factual conten-

tions in support of an alleged error should be reviewed

by the state courts. This is only logical. The policy

of federal-state comity embodied in the exhaustion

doctrine is designed to give the state courts the first

opportunity to hear and resolve constitutional claims.

This policy is violated when a petitioner is permitted

to by-pass an available state post-conviction remedy,

which provides for evidentiary hearings, in order to

seek a similar hearing on his claim in the federal

courts. Consequently, the Sixth Circuit should have

ruled that Wiley was precluded from seeking federal

16

habeas corpus relief on his claim of ineffective assist-

ance of counsel.

Although the respondent’s petition for writ of

habeas corpus contained both exhausted and unex-

hausted claims, the Sixth Circuit did not dismiss the

petition, but instead chose to base its entire opinion on

the unexhausted claim of ineffective assistance of coun-

sel. The petitioner submits that the better approach to

follow where a petition contains both exhausted claims

and one or more unexhausted claims is for the court to

dismiss the entire petition, including the exhausted

contentions. Galtieri v. Wainwright, 582 F. 2d 348

(5th Cir. 1978) ; Gardner v. Blackburn, 569 F. 2d 856

(5th Cir. 1978) ; Gonzales v. Stone, 546 F. 2d 807 (9th

Cir. 1976). A rule allowing a federal court to consider

the exhausted claims in a petition for writ of habeas

corpus would almost certainly interfere with the state

court’s subsequent review of the petition’s unexhausted

claims. This would impair comity. Gonzales, supra.

Such a rule would also lead to piecemeal litigation,

thereby frustrating the judicial policy against frag-

mentary appeals, and creating unnecessary work for

an already overburdened court. Parr v. United States,

351 U. 8. 513, 76 8S. Ct. 912, 100 L. Ed. 1377 (1956).

Therefore, the petitioner submits that the respondent

failed to exhaust his state remedies with respect to his

ineffective assistance of counsel claim.

For the foregoing reasons, the petitioner respect-

fully requests this Honorable Court to grant the peti-

tion for writ of certiorari to rectify the misapplication

and misinterpretation of the doctrine of exhaustion of

17

state remedies to the case at bar, and to undue the

destructive effect of the Sixth Circuit’s opinion on

Kentucky’s post-conviction relief procedure.

II,

THE SIXTH CIRCUIT'S DECISION THAT THE RE-

SPONDENT WAS DENIED EFFECTIVE ASSIST-

ANCE OF COUNSEL CONFLICTS WITH THE

DECISION OF OTHER COURTS.

The Sixth Circuit incorrectly found that the re-

spondent was denied effective assistance of counsel

when his attorney conceded his guilt during the closing

argument. The Sixth Circuit in reaching its decision

seemed to dismiss without consideration that this con-

cession was done as part of a legitimate trial strategy

to obtain leniency for the respondent.

The Sixth Circuit found, without any support in

the record for so doing, that the respondent had not

consented to the concession of guilt in closing argu-

ment. Because of this alleged lack of consent, the re-

spondent was allegedly denied effective assistance of

counsel. As stated earlier, the Sixth Circuit has made

the respondent’s consent the pivotal factor in determin-

ing whether or not there was ineffective assistance of

counsel. As such there needed to be some evidence in

the record before the court could make such a finding.

In the case at bar, there was absolutely no evidence

whatsoever. Thus, the need for an evidentiary hear-

ing was obvious in order to gather evidence on the

matter.

18

In effect, the Sixth Circuit has established a per se

rule of ineffective assistance of counsel: It is ineffee-

tive assistance of counsel when an attorney adopts a

trial strategy, such as conceding guilt in closing argu-

ment in order to obtain leniency, without first getting

his client’s approval on the record. Needless to say,

such a rule takes control of the case away from the

attorney, An attorney should certainly be able to

pursue a trial strategy the client may not understand.

It is clear that it is within the discretion of defense

counsel to select trial tactics which he believes will best

advance his client’s interests. As Justice Harlan stated °

in his concurrence in Brookhart v. Janis, 314 U. 8. 1,

8, 86 S. Ct. 1245, 16 L. Ed. 2d 314 (1966) :

‘“‘T believe that a lawyer may properly make a

tactical determination of how to run a trial even in

the face of his client’s incomprehension or even

explicit disapproval.”’

In this same vein, it has been stated that:

“If counsel is to have the responsibility for con-

ducting a contested criminal trial, quite obviously

he must have the authority to make important

tactical decisions promptly as a trial progresses.

The very reasons why counsel’s participation is of

such critical importance in assuring a fair trial

for the defendant, see Powell vy. Alabama, 287

U. S. 45, 68-69, 53 S. Ct. 55, 77 L. Ed. 158, make it

inappropriate to require that his tactical decisions

always be personally approved, or even thoroughly

understood, by his client. Unquestionably, assum-

ing the lawyer’s competence, the client must accept

the consequences of his trial strategy. A rule

19

* which would require the client’s participation in

every decision to object, or not to object, to prof-

fered evidence would make a shambles of orderly

procedure. United States ex rel. Allum v. Twomey,

484 F, 2d 740, 744-745 (CA 7 1973).”’

Justice Stevens has likewise repudiated the notion that

an accused must give prior approval of counsel’s trial

tactics:

“The notion that a client must always consent to a

tactical decision not to assert a constitutional ob-

jection to a proffer of evidence has always seemed

unrealistic to me. Wainwright v. Sykes, 433 U. 8.

72, 94-95, 97 S. Ot. 2497, 53 L. Ed. 2d 594 (1977)

concurring opinion.’’

Clearly then, trial counsel was not required to obtain

the respondent’s prior approval before adopting the

complained-of trial tactie in his closing argument.

The ripple effect of such a rule, requiring on-the-

record consent to strategic trial matters, will have

tremendous repercussions in the state and federal

courts. The criminal defendant’s consent will have to

appear in the record on such matters of strategy as the

strategic failure to object when appropriate, the type

of questions to be asked of witnesses, the decision on

whether or not to call a certain witness, the decision on

whether or not to introduce evidence, ete. The practical

effect of such a rule will be to lengthen the trial time of

a case in the already crowded state and federal trial

courts.

The Sixth Circuit’s ineffective assistance of counsel

rule will also open the floodgates to the appellate courts

20

with ineffective assistance of counsel claims. In a case

where a defendant’s consent does not appear on the

record, the defendant can choose to be bound or not

bound depending on the outcome of the case. This will

greatly increase the number of such claims raised in

the state courts. More importantly, the federal courts,

in light of the Sixth Circuit’s handling of the exhaus-

tion issue, will be confronted with the increased num-

ber of such claims in the form of petitions for writ of

habeas corpus.

As mentioned before, trial counsel conceded the

brothers’ guilt in his closing argument at trial before

arguing mitigating factors on the theft-related offenses

(JA 86-97). The Magistrate’s Report, later adopted

by Judge Johnstone, found that this was a competently

conceived and applied trial strategy which did not deny

the respondent effective assistance of counsel (A 63).

The Sixth Circuit paid little attention to petitioner’s

argument that this was a competent trial tactic, especi-

ally under Kentucky procedure where the jury deter-

‘mines guilt or innocence and also fixes the penalty.

[RCr 9.84(1) (A 71)].

It must be recognized that respondent’s counsel had

very little to go on in the ease. His client was stopped

by the police within minutes of the theft with the stolen

goods in his possession (JA 49-53, 62). The stolen

goods were found in the same Budget Rent-A-Truck

seen leaving the Tegethoff home only a few minutes

earlier (JA 28). Burglar tools and a pistol were found

in the front seat of the van (JA 65, 68). Earl Wiley

fled the scene (JA 52).

21

Neither co-defendant took the stand on his own be-

half, nor did they offer any explanation for their con-

duct. The possibility of a successful defense in this

situation was simply non-existent. In light of this

telling case against his client, defense counsel took what

he felt to be the most reasonable course ; that is, to argue

for lienency for his elient (JA 139-140).

It should be noted that trial counsel vehemently

disputed the Public Advocate’s assessment of his rep-

resentation in a highly unusual amicus brief filed with

the Kentucky Supreme Court (JA 137-147). Trial

counsel argued that they saw no hope of avoiding con-

viction for the principal offenses, but hoped to minimize

the punishment received. They were successful in

achieving the latter objective, since Earl Wiley and

his co-defendant received the minimum sentence per-

mitted by Kentucky law for burglary (JA 6; KRS

511.020; 532.060). Also, defense counsel’s avowed

strategy in the persistent felony offender (PFO) stage

of the proceeding was to win acquittal or minimum

punishment (JA 139-141). Although the trial counsel

was not successful at the PFO stage (the respondent

received the maximum sentence—life imprisonment),

this does not mean that the trial tactic was ill-conceived.

The strategy of conceding guilt finds support in

Kentucky law. In Meadows vy. Commonwealth, Ky.,

550 S. W. 2d 511 (1977), the Court held that an appeal

to the jury’s merey accompanied by a concession of

guilt was a permissible trial tactic. Furthermore, the

Kentucky courts have long noted that a jury is free to

disregard evidence of prior felonies in a habitual of-

22

fender trial. As the Court stated in Coleman vy. Com-

monwealth, Ky., 276 Ky. 802, 125 S. W. 2d 728, 729

(1939) :

‘*. . . Perhaps they deemed the principal crime

for which the accused was being tried not to merit

such severe punishment or that the character of

the man itself did not justify it.”’

Thus, by invoking the sympathy of the jury, defense

counsel hoped to obtain a minimal punishment for his

client. His lack of suceess in this attempt may have

disappointed his client, but it did not amount to in-

effective assistance of counsel.

The District Court’s review of the record indicated

that counsel did not abdicate his professional duty to

zealously represent the interests if his client. The

court stated defense counsel conducted a vigorous de-

fense of his client throughout the proceedings (JA

175-176). The court noted that counsel moved for a

directed verdict of acquittal on two occasions. He

also requested instructions on second and third degree

burglary, which were denied by the court (JA 82).

He argued vigorously that several mitigating factors

were present which reduced the gravity of the appel-

lant’s offense (JA 91-98). He continually objected to

the procedure followed by the Commonwealth during

the persistent offender stage of the proceedings (JA

107, 116, 119, 121-122). Finally, the presiding judge,

by affidavit submitted on appeal, stated his opinion that

both defense attorneys were competent members of the

local bar, and had performed as such in the case sub

judice (JA 146-147). It is the petitioner’s contention

that defense counsel employed a permissible trial tactic

in making his closing argument to the jury. Petitioner

submits that his decision to do so was well within his

discretion in conducting Wiley’s defense.

The Sixth Circuit's finding of ineffective assistance

of counsel is the result of misapplication of its own case

of Beasley v. United States, 491 F, 2d 687 (6th Cir.

1974) and other decisions relating to ineffective as-

sistance of counsel. The United States Supreme Court

has long interpreted the Sixth Amendment right to

‘the Assistance of Counsel’’ to mean “‘effective’’ as-

sistance of counsel. Powell v. Alabama, 287 U. 8. 45,

77 L. Ed. 158, 53 8. Ct. 55 (1932). The Court has also

stated that advice given by counsel must be ‘within

the range of competence demanded of an attorney in

criminal cases.’”’ McMann v. Richardson, 397 U. 8.

759, 771, 25 L. Ed. 2d 763, 90 8S. Ct. 1441 (1970). See

also Tollett vy. Henderson, 411 U. 8. 258, 36 L, Ed. 2d

235, 93 8. Ct. 1602 (1973). However, this Court has

not articulated a constitutional test which has an ap-

plication broader than a “guilty plea”’ situation. Thus,

the defining of the proper standard for judging the

effectiveness of trial counsel has been left primarily

to the lower federal courts and the state courts.

McQueen v. Swenson, 498 F', 2d 207 (8th Cir. 1974).

Many courts have adopted the standard of counsel

‘reasonably likely to render and rendering reasonably

effective assistance,’’ including the federal courts in

the 6th Cireuit. Beasley v. United States, 491 F, 2d

687 (6th Cir. 1974); Herring v. Estelle, 491 F’. 2d 125

24

(5th Cir. 1974); Williams v. Twomey, 510 F. 2d 634

(7th Cir. 1975). Although the Beasley court stated

expressly that it was rejecting the ‘farce and mockery”’

standard, petitioner submits that the distinction be-

tween the two standards is more apparent than real.

It is perhaps more informative to state that an accused

is denied the effective assistance of counsel, when his

attorney’s incompetence deprives him of a substantial

defense. Beasley, supra, at 696. Error free represen-

tation is not required. Parker v. North Carolina, 397

U. 8. 790, 25 L. Ed, 2d 785, 90 S. Ct. 1458 (1970),

In Beasley, the Court stated at 696 that:

“Tf however, action that appears erroneous from

hindsight was taken for reasons that would ap-

pear sound to a competent criminal attorney, the

assistance of counsel has not been constitutionally

defective. McMann v. Richardson, 397 U. 8. 759,

90 8. Ct. 1441, 25 L. Ed, 2d 763 (1970).”’

The petitioner submits that this same rationale sup-

ports rejection of respondent’s claim in this case.

Courts have been particularly reluctant to second-guess

the strategy or trial tactics of defense counsel in ef-

fectiveness of counsel cases. Moran v. Hogan, 494 F, 2d

1220 (1st Cir. 1974); Walker v. Henderson, 492 F, 2d

1311 (2d Cir. 1974), cert. denied 417 U. 8. 972 (1974) ;

Haggard vy. Alabama, 550 F’, 2d 1019 (5th Cir, 1977) ;

and United States v. Cotton, 446 F. 2d 865 (8th Cir.

1971). As the 8th Circuit has noted ‘‘a wrong or

poorly advised decision by a defense attorney is not

alone enough to support a subsequent claim of ineffeec-

25

tive counsel.’’ United States v. Hager, 505 F. 2d 737

(8th Cir. 1974).

Although the opinion of the Sixth Circuit espouses

these same principles, the Sixth Circuit did judge the

effectiveness of counsel from hindsight. Further, the

Court did second guess counsel’s judgment and trial

strategy. It completely ignored and discounted the

representation rendered at all other phases of the trial.

It based its finding of ineffectiveness totally on the

content of the closing argument. The total circum-

stances surrounding the case must be reviewed before

deciding on the effectiveness of counsel by the attorney.

Vaughan v. Commonwealth, Ky., 505 S. W. 2d 768

(1974). Trial tactics are often hard decisions made in

the tempo of the adversary proceeding and, once made,

are not subject to rejection in the event one misfires.

Johnson v. United States, 506 F. 2d 640, 643 (8th Cir.

1974) cert. denied 420 U. 8. 978 (1974). Yet, this is

precisely what the Sixth Circuit has done in the case

at bar. The Sixth Circuit has rejected the trial strat-

egy because it was not successful. Trial counsel’s judg-

ment in the case may be subject to debate, but it does

not amount to ineffective assistance of counsel. United

States v. Yelardy, 567 F. 2d 863 (6th Cir. 1978), cert.

den. 99 8. Ct. 133 (1979).

For the foregoing reasons, this Court should review

this error because of the grave implications it carries

and the flood of claims to the federal and state courts

that will likely ensue as a result.

26

Il.

THE CONCESSION OF GUILT IN THE CLOSING WAS

NOT A DE FACTO GUILTY PLEA AND THERE.

FORE THE SIXTH CIRCUIT WAS INCORRECT IN

DECIDING THAT A “BOYKIN” TYPE INQUIRY

WAS CONSTITUTIONAL.

The Sixth Circuit stated in its opinion that the

concession of guilt in the closing argument amounted

to a guilty plea and as such the trial court was obligated

to make an on the record inquiry of the defendant to

ensure the plea was voluntary and intelligent.

The petitioner submits that the concession of guilt

in the closing argument was not a guilty plea and the

Sixth Circuit incorrectly extended Boykin v. Alabama,

395 U.S. 238 (1969), to the closing argument phase

of the trial. Contrary to the opinion of the Sixth

Cireuit, the respondent was not denied the right to

have his guilt or innocence decided by the jury. Fur-

ther he was extended those constitutional rights funda-

mental to a fair trial.

The respondent herein, presented the same argu-

ments to the Kentucky Supreme Court and the United

States District Court. It is interesting to note that

the Kentucky Supreme Court and District Court re-

spectively characterized the argument as ‘‘a frivolous

assignment of error’ and ‘‘patently frivolous’? (A

59, 66).

It was clear to the courts below, with the exception

of the Sixth Circuit, that Boykin supra, and its progeny

deal only with the situation where an accused, prior

27

to trial, makes the decision to plead guilty to the

charges against him. In those circumstances, this

Court requires that the judge inquire as to whether

the defendant understands the nature and consequences

of his plea, the constitutional rights that he is relin-

quishing, and whether or not the plea is voluntary,

Boykin, supra.

This Court has also noted that the decision to plead

guilty involves the making of difficult judgments. The

accused and his counsel must assess the weight of the

prosecution’s case without having the opportunity to

test that case. Brady v. U. S., 397 U. 8S. 742 (1970) ;

McMann v. Richardson, 397 U. 8. 759 (1970). The

accused relinquishes his right to a trial by jury, his

privilege against self-incrimination, and the right to

confront his accusers.

The foregoing discussion makes it abundantly clear

that there is absolutely no analogy between a concession

of guilt in closing argument and a guilty plea. In the

case at bar, the respondent certainly had the oppor-

tunity to confront his accusers and to test the strength

of the prosecution’s case. In fact, it was seeing the

overwhelming evidence against his client that mandated

the trial counsel’s strategy (JA 139). Secondly, the

accused was not denied his right to a jury trial. The

jury returned a verdict of guilty and imposed the

minimum sentence permitted by law in the first phase

of the trial. The prosecution had sought the maxi-

mum penalty. Finally, the respondent did not waive

his privilege against self-incrimination, In Boykin,

28

supra, at 242, footnote 4, the Court approved the state-

ment that even a voluntary confession by the defend-

ant in open court did not amount to a guilty plea.

Surely, then, an admission by counsel in closing argu-

ment cannot be said to be the equivalent of a guilty

plea. The petitioner submits that this rebuts the Sixth

Cireuit’s decision that a concession of guilt by counsel

in closing argument is the ‘‘functional equivalent’ of

a guilty plea, and requires a Boykin inquiry.

CONCLUSION

For the foregoing reasons the petitioner respect-

fully requests this Honorable Court to grant the pe-

tition for writ of certiorari in this case in order to

rectify the misinterpretation and misapplication of the

exhaustion requirement of 28 U.S.C. 2254, and Boykin

v. Alabama, supra, to the case at bar.

Respectfully submitted,

STeveN L. BESHEAR

Attorney General

MicHae. R. Beitrna

Assistant Attorney General

PAu E. REMENpDeER, JR.

Assistant Attorney General

Capitol Building

Frankfort, Kentucky 40601

Telephone: (502) 564-4058

Counsel for Petitioner

29

PROOF OF SERVICE

I, Michael R. Beiting, one of counsel for the petitioner,

hereby certify that three copies of the foregoing Petition

for hee of Certiorari were mailed postage prepaid this

{7% day of July, 1981, to Hon. Kevin Michael McNally,

Assistant Public Advocate, State Office Building Annex,

Third Floor, Frankfort, spate 40601, ieee for Earl

Wayne Wiley.

Micuast R. Berrine

Assistant Attorney General

Counsel of Record for Petitioner

APPENDIX

31

No. 80-3445

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Earn Wayne Wutzy, - - ~- _ Petitioner-Appellant,

v.

Dewey Sowpers, Superintendent, Kentucky

State Reformatory, - - Respondent-Appellee.

Appeal from the United States District Court for

the Western District of Kentucky, Paducah.

OPINION—Decided and Filed April 24, 1981.

Before: Weick and Enoet, Circuit Judges; and Hu1-

MAN,” District Judge.

Hitiman, District Judge. Earl Wiley, petitioner, was

indicted by the Henderson County Grand Jury on August

1, 1978, along with his brother, Elmer Wiley, of first de-

gree burglary,' theft of the value of $100 or more? and be-

ing a persistent felony offender in the second degree.* The

offenses were allegedly committed on July 13, 1978.

On August 8, 1978, Earl Wiley was arraigned and

counsel appointed to represent him. Earl Wiley pled “not

guilty.” Separate counsel was appointed for Elmer Wiley.

Elmer Wiley also pled “not guilty.”

*Honorable Douglas W. Hillman, United States District Judge

for the Western District of Michigan, sitting by designation.

IKRS § 511.020.

2KRS § 514.030.

SKRS § 532.080(2).

32

The Wileys were tried together on September 20, 1978.

The jury found both Earl Wiley and Elmer Wiley guilty

of first degree burglary and theft, and sentenced each to

10 and 5 years respectively. At the persistent felony

phase of the trial held that evening, the same jury found

the Wileys guilty and the first degree burglary charge was

enhanced to life imprisonment. Judgment was entered

October 2, 1978, sentencing Earl Wiley to life.

The Wileys appealed to the Supreme Court of Kentucky

which affirmed their convictions on September 11, 1979. In

this habeas corpus petition, Earl Wiley challenges both the

conviction and the habitual criminal sentence. The district

court denied his petition. We reverse.

In challenging his convictions, Wiley raises several

constitutional challenges. Principally, he argues that be-

cause his court-appointed lawyer repeatedly admitted his

guilt to the jury without his prior consent, he was denied

effective counsel in violation of his rights under the Sixth

and Fourteenth Amendments to the United States Consti-

tution. Our disposition of this issue makes it unnecessary

to consider his other constitutional claims.

At the close of proofs in the first phase of trial, peti-

tioner’s counsel presented the closing argument on behalf

of both defendants.®

*Under Kentucky procedure, the jury, in addition to determin-

ing the guilt or innocence of a defendant, also fixes the penalty.

Kentucky Criminal Rule 9.84(1). Thereafter, the court imposes

sentence. Criminal Rule 11.02.

‘The practice of one attorney making a closing argument on

behalf of two defendants, whose interests could well be in conflict,

might well in and of itself constitute reversible error. ‘‘Irrespec-

tive of any conflict of interest, the additional burden of repre-

senting another party may conceivably impair counsel's effective-

ness.”’ Glasser v. United States, 315 U.S. 60, 75 (1942).

33

Defense counsel’s closing argument, apparently a “trial

tactic,” contained several unequivocal admissions that the

defendants were guilty while at the same time attempting

to obtain mercy. The following are excerpts from defense

counsel’s closing argument:

“Ladies and gentlemen, I think it’s very important that

you realize what the function of [counsel for Elmer

Wiley] and mine is in the case. We were appointed

to represent these two men, and we are going to repre-

sent them to the best of our ability, and that is what

I want to talk to you about right now. (emphasis

added.)

®Although not raised as error, this statement constitutes highly

questionable practice. Compare with the conduct of Harold R.

Medina, eminent trial attorney and later Circuit Judge on the

U. S. Court of Appeals for the Second Circuit. Medina was court-

appointed counsel for Anthony Cramer, an alleged German sabo-

teur, charged with treason during World War II. Feeling ran

high against Medina and, among other indignities, he was spat on

by a spectator. At the close of the government’s case, the trial

judge asked Medina to stand and then proceeded to praise him

highly for his skill and vigor in defending Cramer as assigned

counsel without compensation. In response, Medina immediately

took exception to the court’s remarks as he had not wanted the jury

to think that he personally thought Cramer was guilty and was

defending him only because he had been assigned by the court to

do it. Medina said:

‘*May it please your Honor, I have a most distressing and dis-

agreeable task, and that is to object to the fact that you have

mentioned that to this jury, and to take exception o your

Honor’s comment. It is something I do with the most extreme

regret, but I honestly feel that my duty requires that I do it.

I do not think the jury should have been told that. I have

tried to keep it from them myself, and I have not mentioned

it."’ The Anatomy of Freedom, Harold R. Medina, Henry

Holt and Company, 1959, p. 59.

34

“Often times when a lawyer gets involved in a case,

he gets stars in his eyes and he starts having notions

that there may be some way, you know, if I examine

this case . . . and I do my homework and I go out

and I investigate as much as I can and I interview all

the witnesses, that I'll be able to get a man off. That

I will be able to prove to a jury that he is not guilty

with what they have got him charged with.

“The stars aren’t in our eyes in this case, ladies and

gentlemen. They never have been. We're all adults.

We're all mature thinking human beings .. .

“But as I said, the stars aren’t in my eyes in this case.

. . » Because unfortunately for these two men that

you see here today, they are guilty. They're guilty as

charged by the Commonwealth’s Attorney’s office.

(Emphasis added.)

“Mr. Walker [the prosecutor] in voir diring you all

said, do you understand that the indictment .. .

doesn’t become a question of fact until I prove beyond

a reasonable doubt that they are in fact guilty.

“We have to stand and give him credit for that because,

ladies and gentlemen of the jury, he has proved to you

beyond a reasonable doubt that these gentlemen are

guilty of this crime. We don’t have stars in our eyes,

and we never have. They're guilty. (Emphasis added.)

“T couldn’t stand up here and argue to you on behalf

of Earl Wiley — you know there were no eye witnesses,

and I could make the same argument about Elmer

Wiley — you know there were no eye witnesses, nobody

saw them go in and come out. I’m not that foolish.

I’m not that naive. And I know you're not.

35

“T know, and you know, you're going to give these men

time in the penitentiary. And they know it, or they

had better know it after they've heard the evidence

here today. They’re going to the penitentiary. That

part’s easy because they're guilty. I can’t stand up

here and say they didn’t do it, they haven’t proven

that they did it, I’d be foolish and naive and immature.

Because they did do it. And the Commonwealth’s At-

torney’s office has proven to you that they have done

it. ("2mphasis added.)

“T told you before we know they are going to the peni-

tentiary. And they know that they’re going to the

penitentiary. And you know they’re going to the

penitentiary.

“ . . It’s bad, and it’s a crime, and you know and I

know and they know they are going to the peniten-

lary...

“Ladies and gentlemen, we submit to you that in this

case, in this case, that we are here about today the

question of guilt is absolutely clear. Absolutely clear,

beyond a question of a doubt. You know sometimes

we stand up and we argue beyond a reasonable doubt.

We don’t have that argument here today. We don’t

have that argument here today. I don’t think there

is reasonable doubt. I don’t think there is a shadow

of a doubt that these two men are guilty. (Emphasis

added. )

“We ask that you be a compassionate jury and a merci-

ful jury within reason because we know good and well

as I stand here today that you’re going to find these

36

boys guilty. I know you are going to find them guilty.

There is no question in my mind about it. There is

no question in your mind about it . . . I'd venture to

say that there’s not a single one of you sitting here

who is not going to say that these boys are guilty.

I know that. It’s going to happen. We know that it

is going to happen.” (Emphasis added.)

At the close of the proofs of the second phase of trial,

counselor for petitioner’s brother made the closing argu-

ment for both defendants. Again, the predominant theme

of this closing argument was that both men were guilty

of the burglary and theft with the added admission that

both men had prior convictions. The specific strategy is

unclear, particularly when counsel told the jury he was

not asking for mercy. Following is an excerpt from the

closing argument:

“Your first verdict reflects what [attorney for Earl

Wiley] forthrightly told you before you went out to

deliberate on it that these men did that. That they

definitely did do it. He also told you in first summa-

tion here that these men had been, his quote was ‘down

the road before’...

“Elmer and Earl Wiley have been here before. Each

of these men has been previously adjudged guilty of

going where they had no right to be, and taking what

did not belong to them. That’s in the record here.

“Earl in 1974. Elmer in 1972. Both in McCracken

Circuit Court down in Paducah. In the most literary

sense of the term, ladies and gentlemen, when that

happened in ’74 and ’72 to him both of these men in-

curred a debt to society ...

37

“Elmer Wiley’s first debt in ’74—excuse me, in °72,

and Earl’s first one in ’74, that that means that you

must assess an ultimate toll here today that is far far

heavier than anything that you have done before.

“I submit that you folks had a very very strong sug-

gestion, a very very strong indication before you were

sent out the first time garnered from [counsel’s] state-

ment that these guys had been down the road before.

Well there it is. They have. They have been down

the road before and they are still on the same road .. .

“(Attorney for Earl Wiley] told you if you will recall

in the first summation before you ever went out that

first time that these men were guilty. That those men

were guilty ...

“We don’t ask you folks for mercy here. I feel there’s

little enough of that in the world anyway and what

there is isn’t to be applied in a case like this. These

men are guilty. They are guilty of a serious crime.

We haven’t tried to duck that. We haven't tried to

pull any wool over your eyes on that.” (Emphasis

added.)

EXHAUSTION OF STATE REMEDIES

Before addressing petitioner’s claim of ineffective coun-

sel, a threshold question must be considered. Respondent

contends that petitioner has failed to exhaust available

state remedies with respect to the ineffective counsel claim

and therefore federal habeas relief is inappropriate.

It is, of course, well recognized that a state convicted

prisoner must first exhaust his available and adequate state

remedies as a condition precedent to federal habeas relief.

38

28 U.S.C. § 2254(b). See, Preiser v. Rodriguez, 411 U. S.

475 (1973), The exhaustion doctrine springs from eonsider-

ations of comity between the states and federal govern-

ment. Fay v. Noia, 372 U. S. 391 (1963). The required

exhaustion is “designed to give the state an initial op-

portunity to pass upon and correct alleged violations of its

prisoners’ federal rights.” Wilwording v. Swenson, 404

U. S. 249, 250 (1971).

Exhaustion is satisfied and comity preserved when a

federal constitutional claim which arises in a state criminal

proceeding is “fairly presented” to the state court for ini-

tial determination. Picard v. Connor, 404 U. S. 270, 275

(1971).

Under the law of Kentucky, claims of ineffective counsel

are initially addressed to the trial court through a post-

trial motion under Kentucky Rule of Criminal Procedure

11.42. Petitioner made no such motion. Instead his in-

effective counsel claim was first presented on direct appeal

to the Kentucky Supreme Court. Nevertheless, the Ken-

tucky Supreme Court has, on occasion, reviewed unpre-

served error to prevent “manifest injustice.” Stone v.

Commonwealth, Ky., 456 S. W. 2d 43 (1970). In the past,

the state appellate court has both agreed and refused to

consider the issue of ineffective assistance of counsel on

direct appeal. Wilson v. Commonwealth, Ky., 601 S. W.

2d 280 (1980); Nickell v. Commonwealth, Ky., 565 S. W.

2d 145 (1978).

In the present case, the Kentucky Supreme Court re-

ceived the parties’ briefs which contained arguments on the

ineffective counsel issue. In addition, the Kentucky Sup-

reme Court took the unusual step of gathering supplemental

material relative to this claim. For example, petitioner's

trial counsel was permitted to file an amicus brief outlining

and defending his trial strategy. In addition, the presid-

ing trial judge submitted an aflidavit stating that in his

39

opinion defense counsel were competent and their trial

strategy sound. After having received these materials, the

state supreme court nevertheless backed off the issue by

declining to rule on the ineffective connsel claim stating

that absent a post-trial motion, the claim was not preserved

for appellate review. Nevertheless, it is clear that the

Kentucky Supreme Court, by virtue of its own orders, had

before it the position of all parties concerned: Petitioner,

the Commonwealth, both trial counsel, and the trial judge.

Unquestionably the issue of trial counsel’s ineffectiveness

was “fairly” presented. Relevant in this regard is the case

of Rachel v. Bordenkircher, 590 F. 24 200 (6th Cir. 1978).

In Rachel, the constitutional claim which formed the basis

of the habeas petition was not preserved at the trial court.

Nevertheless, the petitioner urged the Kentucky Supreme

Court to consider the claim on the theory that the uif-

preserved error resulted in “manifest injustice.” The Ken-

tucky Supreme Court did not directly address the issue

but rejected the claim as either “(1) without merit or (2)

not properly preserved for review.” Rachel then filed a

petition for a writ of habeas corpus. The Attorney Gen-

eral, as he does here, argued that Rachel was required to

return to Kentucky and file a state post-conviction motion

before the trial judge. This Court stated:

“We disagree. As already noted, the Kentucky appel-

late court has already had a fair opportunity to review

this issue and to require petitioner to trek through

Kentucky’s post-conviction relief procedure again is

simply to further delay redress of a clear infraction of

his constitutional rights . . . Furthermore, requir-

ing petitioner to apply for relief again in the Ken-

tucky courts might be an exercise in futility. [Cita-

tions and footnotes omitted.]” /d., at 204

Consistent with Rachel, we conclude that although peti-

tioner’s claim was not preserved before the trial court the

40

claim was fairly presented to the state supreme court. Our

opinion that petitioner’s claim was fairly presented to the

appellate court is further reinforced by the unusual manner

in which the claim came before that court. Having sub-

mitted an affidavit to the state supreme court, the trial

judge effectively foreclosed petitioner’s further relief

through the conventional post-trial motion. Petitioner’s

remedy at the trial court level was prejudiced and any

further pursuit rendered futile. The exhaustion doctrine

does not require pursuit of a state remedy where such a

pursuit is clearly futile. Coley v. Alvis, 381 F. 2d 870 (6th

Cir. 1967); Galtierit v. Wainright, 582 F. 2d 348 (5th Cir.

1978).

Conversely, the fact that the appellate court received

this expanded record placed that court in substantially the

same position as if the post-trial motion had been made,

denied, and incorporated into the appellate record. After

receiving the affidavit which foreclosed petitioner’s trial

court remedies, the appellate court was obligated to decide

the ineffective counsel claim on the merits. Petitioner can-

not be penalized because the Kentucky Supreme Court re-

fused to decide an issue put squarely before it. Likewise,

it is settled that satisfaction of the exhaustion require-

ment “cannot turn upon whether a state appellate court

chooses to ignore in its opinion a federal constitutional

claim squarely presented in petitioner’s brief in state

court.” Smith v. Digmon, 434 U. S. 332, 333 (1978).

Accordingly, we conclude that petitioner has exhausted

his state remedies with respect to his ineffective counsel

claim and that his claim is appropriately before this court.

EFFECTIVENESS OF COUNSEL

Since Powell v. Alabama, 287 U.S. 45 (1932), the Sixth

Amendment of the United States Constitution has been

construed to require that a criminal defendant be afforded

41

effective assistance of counsel.’ As the Supreme Court

noted in McMann v. Richardson, 397 U. S. 759 (1970),

counsel’s performance must be “within the range of com-

petence demanded of attorneys in criminal cases.” Td., at

771.

In his opinion in Beasley v. United States, 491 F. 2d 687

(6th Cir. 1974) Judge Celebrezze chronicled the history of

the law of ineffective counsel within this cireuit. The opin-

ion recounts the early “see-saw between a ‘reasonably ef-

fective assistance of counsel’ standard [United States v.

Johnson, 318 F. 2d 288 (6th Cir. 1963)] and a ‘farce and

mockery’ test [O’Malley v. United States, 285 F. 2d 733

(6th Cir. 1961)].” Beasley, supra, at 695. Beasley resolved

this fluctuation by adopting a standard more probing and

more objective than the farce and mockery standard.

Beasley held the Sixth Amendment to require that

“(djefense counsel must perform at least as well as a

lawyer with ordinary training and skill in the criminal law

and must conscientiously protect his client’s interest, un-

deflected by conflicting considerations.” Id., at 696.

The Beasley standard of effective counsel incorporates

several well-settled principles of law. The requirement

that counsel be effective is not a result-oriented standard.

Counsel is required to be competent, but not necessarily

victorious. The measure of competence is that of the

ordinary practitioner in the heat of trial. Counsel's ef-

fective assistance is not to be judged from hindsight. J/d.,

at 696. Error-free representation is not requirec, Parker

v. North Carolina, 397 U. S. 790 (1970).

Any claim alleging counsel's ineffective trial perform-

ance requires the court to mediate between the funda-

The Sixth Amendment of the United States Constitution guar-

antees that ‘‘[in] all criminal prosecutions, the accused shall enjoy

the right . . . to have the Assistance of Counsel for his defense.’’

42

mental due process rights of the accused and the need of

defense counsel to structure his case. It is not the purpose

of this court to second-guess counsel’s judgment and trial

strategy. As Justice Harlan asserted in his coneurring

opinion in this case of Brookhart v. Janis, 384 U. S. 1, 8

(1966) :

“, . . A lawyer may properly make the tactical de-

termination of how to run a trial even in the face of

his client’s incomprehension or even explicit disap-

proval.”

The welfare of the client, our adversarial system and

orderly judicial procedure require that an attorney chart

his course of litigation free from undue intervention. It

is axiomatic that no two lawyers would ever try the same

case in exactly the same manner. The court is particularly

sensitive to counsel’s need to freely structure his own argu-

ment on his client’s behalf.

Notwithstanding the strong policy favoring attorney

autonomy, ethical, professional and constitutional princi-

ples establish limits to counsel’s control over a criminal

ease. Canon 7 (EC 7-24) of the Code of Professional Re-

sponsibility of the American Bar Association provides:

“The expression by a lawyer of his personal opinion

as to the justness of a cause, as to the credibility of a

witness, as to the culpability of a civil litigant or as to

the guilt or innocence of an accused is not a proper

subject for argument to the trier of fact.”

The decision to plead “guilty” or “not guilty” is a deci-

sion reserved solely for the accused based on his intelligent

and voluntary choice. Boykin v. Alabama, 395 U. S. 238

(1969). The defendant’s decision to plead guilty cannot be

presumed from the plea itself in the context of an other-

wise silent record. Instead, the trial court must make an

43

on the record inquiry of the defendant to insure that the

defendant’s plea is voluntary and intelligent. Jd., at 243-

244. Similarly, an attorney may not admit his client’s guilt

which is contrary to his client’s earlier entered plea of “not

guilty” unless the defendant unequivocally understands the

consequences of the admission. Brookhart v. Janis, supra.

Counsel may believe it tactically wise to stipulate to a

particular element of a charge or to issues of proof. How-

ever, an attorney may not stipulate to facts which amount

to the “functional equivalent” of a guilty plea. United

States v. Brown, 428 F. 2d 1100 (D.C. Cir. 1970); Coz v.

Hutto, 589 F. 2d 394 (8th Cir. 1979) ; Achtien v. Dowd, 117

F. 2d 989 (7th Cir. 1941).

Appellee relies on Meadows v. Commonwealth, Ky., 550

S. W. 2d 511 (1977), for the proposition that in Kentucky

an appeal to the jury’s mercy accompanied by a concession

of guilt is a permissible trial tactic. That is not a correct

reading of Meadows. Meadows’ counsel, in closing argu-

ment, said, “I think he deserves punishment.” The Court

held this did not constitute a plea of guilty, but instead was

a “ploy.” The Court went on to say:

“The action of trial counse! in this particular instance

may have amounted to a tactical retreat but certainly

it did not surrender the cause.” IJd., at 512.

Here, however, the admissions of Wiley’s counsel con-

stituted a surrender of the sword.

In People v. Carter, 41 Til. App. 3d 425, 354 N. E. 2d 482

(1976), the Appellate Court of Illinois analyzed a factual

and legal situation similar to the case at bar. In Carter,

the defendant was charged with armed robbery. The victim

testified that after the defendant lost his money in a dice

game, he pulled a gun and stated that this was a stickup.

The defendant took the stand and denied robbing the

victim or taking ‘a gun to the apartment. Defense counsel,

44

during closing argument, not only stated that his client

was not very brilliant in doing what he did, but specifically

declined to discuss the factual discrepancy concerning

whether the defendant was armed. Reversing the defend-

ant’s conviction on the grounds the defendant was denied

effective assistance of counsel by defense counsel’s closing

argument, the court stated:

“In the instant case, we believe defendant was denied

the effective assistance of counsel. Counsel’s closing

argument is the most notable incident that leads us to

this conclusion. A defendant’s closing argument per-

mits an answer to the State on the law and the facts

and a presentation of the defense theory . . . Here,

counsel’s closing argument not only failed to perform

this function, but was tantamount to an admission of

his client’s guilt. . . . Counsel abdicated his client’s

position. . . . Such failures cannot be overlooked as

mere errors in judgment or trial startegy.” (Citation

omitted, emphasis added.) Id., at 485.

Also, in Commonwealth v. Lane, 382 A. 2d 460 (1978),

the Supreme Court of Pennsylvania analyzed a similar

situation. The defendant was charged with knowingly re-

ceiving stolen property. During closing argument, defense

counsel said this to the court, “If he didn’t have a record I

would ask Your Honor to give him the benefit of the doubt

and find him not guilty.” Reversing the defendant’s con-

viction because he was denied effective assistance of coun-

sel, the court stated:

“It is urged counsel was engaged in a strategic trial

tactic to obtain leniency for his client. We are not so

persuaded. At the particular moment, Lane was chal-

lenging his guilt and the issue confronting the court

was guilt or innocence. We are unable to see how trial

45

counsel’s statement would aid Lane’s claim of inno-

cence.” Id., at 461.

Throughout the closing arguments, both attorneys for

petitioner repeatedly stated to the jury that petitioner was

“guilty,” “guilty as charged,” and “guilty beyond reason-

able doubt.” Counsel’s argument represented the precise

admission which the defendant rejected in making his

earlier plea of “not guilty.” Counsel made his remarks

with knowledge of petitioner’s earlier “not guilty” plea,

and without petitioner’s consent.®

A plea of “not guilty” has at least two dimensions recog-

nizable by this court. First, in pleading “not guilty” a

defendant reserves in toto those constitutional rights fun-

damental to a fair trial. Included in this category of con-

stitutional rights is the accused’s right to trial by jury, his

privilege against self-incrimination, and his right to con-

front his accusers. Boykin, supra. Second, in pleading

“not guilty,” a defendant exercises his right to make a

8Petitioner first raised before the Kentucky Supreme Court his

assertion that he did not consent to counsel’s concession of guilt by

his response to the amicus brief submitted by his trial counsel. No

claim was ever made by trial counsel in their amicus brief to the

Kentucky Supreme Court that their trial strategy was made known

or consented to by petitioner. Petitioner reaffirmed his non-consent

in his sworn petition for habeas corpus. Respondent did not dis-

pute this issue. The United States Magistrate, in his © ading of

fact number 11, summarized the facts surrounding trial counsel’s

confession of guilt without mentioning that petitioner did not

consent to this confession. The Magistrate’s conclusion of law

number 3 noted that no facts were in dispute. Petitioner objected

to these findings insofar as they did not reflect his lack of consent

to counsel’s trial tactic. Petitioner’s statement that he did not

consent to counsel’s trial tactic is not controverted. In any event,

an alleged consent in the present case cannot be presumed from a

silent trial record. Consent obtained without the protection of an

on the record inquiry as required by Boykin, supra, is a nullity.

46

statement in open court that he intends to hold the govern-

ment to strict proof beyond a reasonable doubt as to the

offense charged. Byrd v. United States, 342 F. 2d 939

(D.C. Cir. 1965).

Unquestionably, the constitutional right of a criminal

defendant to plead “not guilty,” or perhaps more accurately

not to plead guilty, entails the obligation of his attorney to

structure the trial of the case around his client’s plea. We,

therefore, hold that petitioner was deprived of effective as-

sistance of counsel when his own lawyer admitted his

client’s guilt, without first obtaining his client’s consent to

this strategy. In those rare cases where counsel advises

his client that the latter’s guilt should be admitted, the

client’s knowing consent to such trial strategy must appear

outside the presence of the jury on the trial record in the

manner consistent with Boykin, supra.

Although statements made by attorneys in closing argu-

ments are not evidence, nevertheless, for all practical pur-

poses, counsel’s admission of guilt on behalf of his client

denied to petitioner his constitutional right to have his

guilt or innocence decided by the jury. Petitioner, in

pleading not guilty, was entitled to have the issue of his

guilt or innocence presented to the jury as an adversarial

issue. Counsel’s complete concession of petitioner’s guilt

nullified the adversarial quality of this fundamental issue.

Finally, the question remains open whether an adjudica-

tion of ineffective assistance requires a showing that de-

fense counsel’s performance adversely affeated the trial’s

outcome and, if such a showing is required, on whom the

burden of proving or disproving prejudice falls. Chapman

v. California, 386 U.S. 18 (1967) ; United States v. Yelardy,

567 F. 2d 863 (6th Cir. 1978), cert. denied, 439 U.S. 842

(1978); and United States v. Beasley, supra. Under the

facts of this case, however, no such claim could seriously

be raised. Despite strong circumstantial evidence against

47

petitioner, no witness observed the burglary. No one saw

a gun in the hand of either defendant. Yet use of a “deadly

weapon” is one of the essential elements under Kentucky

law of first degree burglary. Who can be sure that both or

either of these brothers would have been convicted had not

the jury been told by defendant’s own attorney “they’re

guilty”? 7

A criminal defendant has a constitutional right to expect

during trial that his attorney will, at all times, support him,

never desert him, and will perform with reasonable com-

petence and diligence. Defense counsel in this case fell

short of this modest standard.

Accordingly, the judgment of the district court is re-

versed and the case is remanded to the district court with

instructions to grant petitioner’s release unless the state

initiates procedures to retry him within a reasonable period

of time.

48

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY AT PADUCAH

No. 79-0230-P(J)

Eart Wayne Witey . . . . . Petitioner

Vv,

Dewey Sowpers”~ - - - - - Respondent

ORDER AND JUDGMENT—Entered March 31, 1980

This matter being before the Court on a petition for

writ of habeas corpus filed by the petitioner pursuant to

28 USC §2254; this matter having been referred to the U.S.

Magistrate and the Magistrate having filed his report pur-

suant to 28 USC §636 and the petitioner having filed timely

objections thereto; the Court having made a de novo de-

termination of those portions of the Magistrate’s report to

which the petitioner has objected; there appearing to be

no affirmative allegations in the pleadings before this

Court or in the trial court record that the petitioner did or

did not consent or have prior knowledge of the content of

his counsel’s closing argument addressed to the jury; the

Court having determined that it should modify in part the

findings of fact of the Magistrate’s report and should other-

wise accept the Magistrate’s report; and the Court being

sufficiently advised ;

It is hereby Onveren that:

1. The report of the Magistrate is accepted by tho

Court and is incorporated by reference herein. In addition

to the findings of fact of the Magistrate’s report which are

49

made a part of this judgment, the following factual finding

is made, to-wit: “The petitioner's penalty was enhanced to

a life prison sentence by the jury following his conviction

as a persistent felony offender.”

2. The petition for writ of habeas corpus be Dentep.

Dated: March 31, 1980

(s) Edward H. Johnstone

U.S. District Judge

50

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY AT PADUCAH

No. 79-0230-P(J)

Eart Wayne Witey ° . ° ° ° Petitioner

v.

Dewey Sowpers - - - - = Respondent

FINDINGS OF FACT, CONCLUSIONS OF LAW,

AND RECOMMENDATIONS—Entered March 3, 1980

This matter coming before the court on proceeding filed

pursuant to 28 USC §2254; upon a conviction and judgment

exacted by the Henderson Circuit Court on the 2nd of

October, 1978; it appearing that the petitioner was granted

leave to proceed in forma pauperis and his petition was

filed on the 3rd of December, 1979; it appearing that the

respondent filed his Answer with all exhibits required by

Rule 5 of the Rules Governing Section 2254 Proceedings;

the Court having referred this matter to the undersigned

Magistrate pursuant to 28 USC §636(b) and Rule 8 of the

above-mentioned Rules; the undersigned having considered

the record as a whole, makes the following proposed find-

ings and recommendations to the Court:

FINDINGS OF FACT

1. On the 13th of July, 1978, at approximately 1:00 to

1:15 p.m., the petitioner, using the name Darl W. Riley,

entered the Budget Rent-a-Truck Agency operated by Mrs.

Margaret Rumans. Mrs. Rumans rented the petitioner a

cargo van (truck no. CV 701, license mo. 74494 A). The

51

petitioner was identified by the witness as the man who

rented the truck (TR 74-87).

2. On the 13th of July, 1978, at approximately 2:15

p-m., Kenneth Tegethoff, son of Edward Tegethoff, was

traveling to his parents’ home on the Geneva-Alzey Road in

Henderson County, Kentucky. As he was driving on the

one-lane driveway from the Geneva-Alzey Road to his

parents’ house; a white truck, which had previously been

parked behind the house, approached the witness, passed

him, and proceeded out the driveway. The truck, being

driven by two white males, had the words Budget Rent-a-

Truck painted on the side and was similar to the truck

referred to in Finding 1 above and depicted in photographs

admitted as exhibits. The witness entered his parents’

home and, after noticing several items out of place, saw

that his mother’s sewing machine was missing. He then

called the sheriff's department. Upon the sheriff’s arrival;

the witness, Kenneth Tegethoff, gave information concern-

ing the missing items.

The next day, the witness saw a truck similar to the

truck that had passed him in his parents’ driveway at a

Henderson service station. Upon inspection, he found

property which he could identify as belonging to his par-

ents in the back of the truck (TR 88-110).

3. The property taken from the Tegethoff home had a

fair market value of in excess of $100.00 (TR 117, 124-125).

4. On the 13th of July, 1978, Officer Robert Williams

along with Officer Young, set up a road block in order to

try to intercept the white van involved in the burglary.

At approximately 2:45 p.m., the witness, Williams, stopped

a van answering the description and identified the peti-

tioner as the driver of the van. The petitioner fled the

area on foot. At the trial, the witness identified the peti-

tioner as the driver of the van and as the man who fled on

foot (TR 126-132).

52

5. Shortly after the petitioner fled the scene; Bobby

Sauls, Sheriff of Webster County, arrived at the scene

where the van had been stopped. After taking the peti-

tioner’s co-defendant into custody from Officer Williams,

Sheriff Sauls obtained a description of the stolen articles

from the Henderson County Sheriff’s Office. He then

looked in the window of the van and saw “that most of

these articles were there” (TR 138-144). Upon inspecting

a pillow slip found between the two bucket seats in the van,

Sheriff Sauls found, among other things, a loaded .22 cali-

ber pistol (TR 144, 147).

6. Sheriff Sauls testified as follows:

“And at that time I went back and asked Mr. Wiley

(petitioner’s co-defendant and brother) where he had

gotten the articles and who was with him in the van.

And he told me that it was his brother that was with

him and he was helping him move.

Mr. Norment: Objection, Your Honor.

The Court: Overruled.

Mr. Norment: May we approach the bench please?

The Court: You may.

(At this point, counsel for the parties and the re-

porter approached the bench and the following record

was made, in low tones.)

Mr. Norment: Judge, any testimony about what

one co-defendant says about another is inadmissible.”

“The Court: . . . Do you want me to admonish

the jury not to consider the last response.

Mr. Norment: Yes, on behalf of Earl Wiley also,

(The following proceedings were had in normal

tones.)

The Court: All right, members of the jury, Sheriff

Sauls just testified as to what one of the defendants

53

said concerning his co-defendant. That answer that

the sheriff just gave, you’re to remove that from your

mind and not to consider it in arriving at a verdict in

this case.”

(TR 141-143)

7. Sheriff Sauls received a citation from Officer Wil-

liams which had been found at the scene of the arrest. The

Indiana traffiic citation named Earl Wayne Wiley as the

recipient of the citation with an operator’s number of

W 400 162 866 587 (TR 157-159). This operator’s license

number is the same as given by the petitioner when he

rented the truck (Pla.ntiff’s Exhibit 5).

8. At the close of evidence by the Commonwealth, the

petitioner’s attorney moved for a directed verdict of ac-

quittal on the grounds that the Commonwealth had failed

to establish a prima facie case of burglary in the first

degree against the petitioner. The motion was overruled

(TR 173-174).

9. On query of the court, petitioner’s counsel indicated

that he did not wish to make an opening statement or pre-

sent any evidence for the defense. The counsel for the co-

defendant likewise announced closed. The court then ad-

vised the jury in pertinent part as follows:

“The Court: All right, members of the jury, all

of the evidence is in in this case and it will be neces-

sary for me to take up some matters in chambers and

get the instructions ready for you. It’s now more im-

portant than ever that you do not discuss the case or

let anybody discuss it with you. You are to refrain

from forming or expressing an opinion thereon. We

might be in the neighborhood of 15 minutes hopefully

getting these ready for you.”

(TR 174-175)

o4

10. Upon recess to chambers, petitioner’s counsel re-

newed his motion for directed verdict of acquittal. The

motion was overruled. Counsel also unsucessfully sought

an instruction on circumstantial evidence (TR 175-180).

11. Mr. Norment, petitioner’s counsel, presented the

closing argument on behalf of both defendants. In his

presentation, he stated on more than one occasion that the

petitioner and his co-defendant were guilty as charged.

He further asked the jury to consider the totality of the

circumstances surrounding the offense, to be “merciful,”

and to arive at a minimal sentence (TR 187-198).

12. The jury found the petitioner guilty under In-

structions Nos. 1 and 2 and assessed a penalty of ten years

and five years respectively (TR 183, 184, 209).

13. On the 2nd of October, 1978, the petitioner’s coun-

sel, on petitioner’s behalf, filed a Notice of Appeal (Clerk’s

Transcript of Record p. 61).

14. All issues raised herein by the petitioner were

presented to the Supreme Court of Kentucky on appeal

(See Appellant’s brief).

15. By Memorandum Opinion Per Curiam rendered

the 11th of September, 1979, the Supreme Court of Ken-

tucky affirmed the conviction of the petitioner (Memoran-

dum of Law in Support of Petition for Writ of Habeas

Corpus A 140-143).

CONCLUSIONS OF LAW

1. This court has jurisdiction over the subject matter

of this action pursuant to 28 USC §2241 et seq. §2254.

2. The petitioner has exhausted his state remedies by

appearing all issues raised in this action to the Supreme

Court of Kentucky. Deitch v. Maxwell, 337 F. 2d 424 (C.A.

6 1964).

55

3. There being no facts in dispute as raised by the

petition, no evidentiary hearing is required. Townsend v.

Sam, 372 U.S. 293.

4. The petitioner’s conviction was not obtained in vio-

lation of his right to be confronted with the witness against

him as guaranteed by the 6th and 14th Amendments to

the United States Constitution.

Authority

The testimony, subsequent objection, and ruling of the

court objected to and giving rise to this issue may be found

in Finding of Fact 6 above.

The witness testified that the petitioner’s codefendant

and brother told him (the witness) that the petitioner had

been in the van and was moving with the codefendant’s

help. Petitioner’s counsel objected, the objection was sus-

tained, and the jury was admonished not to consider the

statement in arriving at a verdict in the case.

The petitioner cites Bruton v. United States, 391 U. 8S.

123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1966), in support of

his position. In that case, the Supreme Court held that

admission of codefendant’s confession that implicated de-

fendant at joint trial constituted prejudicial error even

though the trial court admonished the jury not to consider

the statement as to the defendant. This case is clearly

distinguishable from the case at bar in that the statement

by petitioner codefendant was not a confession of any

criminal act and did not allege that the petitioner had com-

mitted any criminal act or acts. As this distinetion can

be made, further language from the Bruton opinion becomes

particularly relevant to the testimony and resulting ad-

monition of which the petitioner complains. At 77 S. Ct.

2d 300 the court stated:

“Unless we proceed on the basis that the jury will

follow the court’s instructions where those instructions

56

are clear and the circumstances are such that the jury

can reasonably be expected to follow them, the jury

system makes little senes.” 352 U.S., at 242, 77 S. St.,

at 300. We agree that there are many circumstances

in which this reliance is justified. Not every admission

of inadmissible heresay or other evidence can be con-

sidered to be reversible error unavoidable through

limiting instructions; instances occur in almost every

trial where inadmissible evidence creeps in, usually

inadvertently. “A defendant is entitled to a fair trial

but not a perfect one.”

The Supreme Court more recently discussed its Bruton

reasoning in Parker v. Randolph, U.S. —_—., 99 S. Ct.

2132, 60 L. Ed. 2d 713 (1979). The Court, in discussing

the harmlessness of the error, stated at 99 S, Ct. at 2138:

In some cases the properly admitted evidence of guilt

is so overwhelming, and the prejudicial effect of the

codefendant’s admission so insignificant by comparison,

that it is clear beyond a reasonable doubt that intro-

duction of the admission at trial was harmless error.

If the Magistrate, for argument’s sake, were to accept the

position that the petitioner’s codefendant’s statement made

to Sheriff Sauls constituted a confession under Bruton; we

feel that the implication of the petitioner arising from the

statement is so “insignificant by comparison” to the “prop-

erly admitted evidence of guilt” as set forth in the record

and the Findings of Fact above constitutes harmless error.

We conclude that the statement of petitioner’s code-

fendant was not a confession and was not admitted into

evidence. Therefore, the petitioner’s Sixth Amendment

rights were not deprived by its making.

5. The burglary statute under which the petitioner was

convicted is not unconstitutional for vagueness,

57

Authority

KRS 511.020, the statute attacked and under which the

petitioner was convicted on September 20, 1978, states, in

pertinent part as follows:

Burglary in the first degree. — (1) a person is guilty

of burglary in the first degree when, with the intent

to commit a crime, he knowingly enters or remains

unlawfully :

(a) In a dwelling;

(b) In a building, and when in effecting entry or

while in the building or in the immediate flight there-

from, he or another participant in the crime:

1. Is armed with explosives or a deadly weapon;

The term “dwelling” and “building” are defined by KRS

511.010 as:

(1) “Building,” in addition to its ordinary meaning,

means any structure, vehicle, watercraft or aircraft:

(a) Where any person lives; or

(b) Where people assemble for purposes of busi-

ness, government, education, religion, entertainment or

public transportation.

Each unit of a building consisting of two (2) or more

units separately secured or occupied is a separate

building.

(2) “Dwelling”’means a building which is usually oceu-

pied by a person lodging therein.

The petitioner bases his argument on the assertion that

the definitions of “building” and “dwelling” are synono-

mous and therefore the petitioner could not have reason-

ably been expected to know whether his actions constituted

58

burglary in the first degree or burglary in the second de-

gree. It is not necessary for the Magistrate to determine

whether these terms are indistinguishably synonomous.

The petitioner is apparently basing his argument under

prior law and not under the law that was in effect on the

date of the offense and as cited above. The petitioner’s

lack of knowledge of the provisions of this statute has

given rise to this issue. According to the statute in effect

on July 13, 1978; burglary in the first degree could be

effected by the unlawful entering of a “dwelling” or the

entering of a “building” and being in possession (either

personally or by a codefendant) of a deadly weapon. We

are sure that the petitioner will not deny that a pistol is

a “deadly weapon” as defined by KRS 500.080(4)(a). The

jury found the petitioner guilty under instruction number

1. See Finding of Fact 12 above. Under that instruction,

the jury not only found that the Tegethoff home was a

“dwelling” but found that the petitioner or another par-

ticipant had in his possession during the immediate flight

a pistol. See Finding of Fact 5 herein. Therefore, it is

of no consequence whether the edifice where the Tegethoffs

lived should be defined, or understood by the petitioner, to

be a “dwelling” or “building” under KRS 511.010. The

facts as found by the jury in instruction 1 would support

a conviction of burglary in the first degree as defined by

KRS 511.020 as amended.

Notwithstanding the above analysis of the specific pro-

visions of the Kentucky Revised Statutes complained of

by the petitioner, the Magistrate rejects the contention

that Chapter 511 as amended effective June 17, 1978, is

unconstitutionally vague as defined by the United States

Supreme Court in McBoyle v. United States, 283 U. 8. 25,

51 S. Ct. 340, 75 L. Ed. 816 (1931).

6. The statements made by petitioner’s counsel in his

closing argument did not constitute a guilty plea so as to

59

require an inquisition by the Court into the voluntariness

and knowledge of the import of the plea.

Authority

This allegation is patently frivolous and only a short

discussion will be made.

The United States Supreme Court stated in Boykin v.

Alabama, 395 U. S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274

(1969) ;

A plea of guilty is more than a confession which ad-

mits that the accused did various acts; it is itself a

conviction; nothing remains but to give judgment and

determine punishment.

Obviously, if the petitioner’s counsel’s statements had

constituted a guilty plea; the evidence would have never

gone to the jury. It was the jury who determined the pe-

titioner’s guilt and judgment was imposed pursuant to

those verdicts and not upon some imagined plea of guilty

submitted by counsel on behalf of a petitioner during the

course of a trial. This argument is without merit.

7. Petitioner received effective assistance of counsel at

his trial as required by the Constitution of the United

States.

Authority

In assessing the merit, or the lack of merit, of the

petitioner’s assertion that his trial counsel failed to pro-

vide adequate assistance of counsel at trial on the specific

grounds that counsel, in his argument before the jury,

stated that the petitioner was guilty; the Magistrate read

the complete trial transcript made a part of the record

herein. The Magistrate concludes that, considering the

totality of circumstances, the assistance of counsel fur-

nished the petitioner was effective. The Sixth Circuit

60

Court of Appeals in United States v. Yelardy, 567 F. 2d

863 (1978) discussed its approach in assessing the merits

of such a Sixth Amendment claim. At page 865, the Court

stated:

our evaluation of appellant’s Sixth Amend-

ment claim turns “not on a mere assessment of partic-

ular missteps or omissions by counsel, whether or not

caused by negligence . . . but on the District Court's

evaluation of the total picture, with the objective of

determining whether petitioner was deprived of

rudimentary legal assistance,”

There is no question that upon review of the trial tran-

script and the specific findings of fact in this report, the

weight of evidence against the petitioner was overwhelm-

ing. A further undisputed fact revealed by the record is

that petitioner’s counsel vigorously represented the in-

terests of his client both prior to, during, and after trial.

The record reveals that counsel filed several pretrial

motions on petitioner’s behalf soon after his appointment.

During the trial, counsel conscientiously objected to the

introduction of damaging evidence, both documentary and

testimentary, against the petitioner. Counsel moved for

directed verdicts of acquittal on behalf of his client both

at the close of the Commonwealth’s case-in-chief and at

the close of the evidence in the case. Petitioner’s counsel

filed a Notice on Appeal on behalf of the petitioner. See

Finding of Fact 13 above.

During counsel’s closing argument to the jury, he

stated that petitioner was guilty and beseeched the jury to

assess a minimal sentence, See Finding of Fact 11. De-

fense counsel, in his amicus brief addressed to the Supreme

Court of Kentucky (Petitioner’s Appendix 106-114), as-

serted that his statement to the jury was a part of his trial

strategy. He stated that his plan of strategy was adopted

61

after having considered the overwhelming weight of evi-

dence against his client. The petitioner does not challenge

counsel’s intent or good faith in adopting his strategy.

The United States Court of Appeals for the Sixth Cir-

cuit examined this issue and formulated the proper guide-

lines to be used in its determination in Beasley v. United

States, 491 F. 2d 687 (C.A. 6, 1974). Effective assistance

of counsel was defined as “counsel reasonably likely to

render and rendering reasonably effective assistance.”

With this general definition in mind, we now must apply

this test to the sole area of ineffective assistance raised by

the petitioner, i.e., application of counsel's trial strategy.

The Sixth Circuit Court stated in Beasley at 696:

Defense strategy and tacties which lawyers of ordinary

training and skill in the criminal law would not con-

sider competent deny a criminal defendant the ef-

fective assistance of counsel, if some other action

would have better protected the defendant and was

reasonably forseeable as such before trial. United

States v. Katz, 425 F. 2d 928, 930 (C.A. 2, 1970). If,

however, action that appears erroneous from hind-

sight was taken for reasons that would appear sound

to a competent criminal attorney, the assistance of

counsel has not been constitutionally defective. Me-

Mann v. Richardson, 397 U. S. 759, 90 8. Ct. 1441, 25

L. Ed. 2d 763 (1970).

The Supreme Court of Kentucky considered a case

similar to the case at bar styled Meadows v. Commonwealth,

550 S. W. 2d 511 (Ky. 1977). In this case, the appellant

had been convicted of capital murder. In his closing argu-

ment, appellant’s trial counsel made the following state-

ment:

“So, if you would think about the evidence when you

get back into the jury room and apply it to the law

*

62

which the Judge will give you and arrive at a fair and

impartial judgment and give Ronnie Meadows, I think

he deserves punishment, but give him what you think

he deserves.”

Appellate counsel argued that such a statement denied

appellant effective assistance of counsel. The court, in an

opinion written by Justice Palmore, addressed this argu-

ment at pages 512 and 513 with language which eloquently

expresses the opinion of the Magistrate:

This last point leads into another cortention that has

become all too common in the appeals being presented

by the Public Defender, which is that because trial

counsel did or did not do this, that or the other which

he should or should not have done, according to the

hindsight judgment of appellate counsel, the defend-

ant was deprived of his Sixth Amendment right of

counsel and, indeed, of his due process right to a fair

trial. It is easy for brilliant young lawyers to flyspeck

a trial record and pick out flaws in the manner in

which it was practiced. It is even more simple if one

has had no first-hand experience of his own in the

pit. We have read the transcript of this trial and are

not at all convinced that it was incompetently tried or

that any of the alleged errors and irregularities, singly

or in toto, resulted in an unfair trial. This was a

mean, desperate case. In our opinion it is beyond any

reasonable doubt whatever that even if it were prac-

ticed, and every trial action taken, as appellate counsel

would have it, any impartial jury in the country would

find Meadows guilty of murder just as this jury in

McCracken County did. The outcome was just plainly

inevitable, . . .

The Magistrate sees it as very unfortunate that, given

the set of circumstances in the case at bar, the petitioner

63

found it necessary to assail the ethical standards of his

trial counsel. Since petitioner did not rely on the ethies

related allegations in significant proportions, further dis-

cussion of this matter is not necessary.

In conclusion; the Magistrate, after having considered

the record as a whole, finds that the strategy adopted by

trial counsel was competently conceived and applied and

that, therefore, the petitioner was afforded effective assist-

ance of counsel at trial as required by the Sixth and

Fourteenth Amendments of the United States Constitution.

RECOMMENDATION

Based on the foregoing Findings of Fact and Con-

clusions of Law; the Magistrate recommends that the peti-

tion for writ of habeas corpus herein be denied.

(s) W. David King

United States Magistrate

CERTIFICATE

Pursuant to Title 28, U.S. Code, Section 636, Rule 8 of

the Rules Governing Section 2254 Procedures, and Rule

6.05 of the Federal Rules of Civil Procedure; the parties

shall have thirteen days from the date hereof to file written

objections to the foregoing report with the Clerk of the

Court. An extra copy of same shall be mailed to the under-

signed at P.O. Box 826, Padueah, Kentucky.

Dated: 3-03-80

(s) W. David King

United States Magistrate

64

RENDERED: SEPTEMBER 11, 1979

SUPREME COURT OF KENTUCKY

78 SC 626 MR

78 8C 627 MR

Exuaer Lee Witey and

Ean Warye Winey - - - «+ «= Appellants

v.

Commonweattn or Kentucky - - ~- Appellee

Appeal from Henderson Circuit Court

Honorable Carl B. Melton, Judge

Indictment No. 78 CR 049

MEMORANDUM OPINION PER CURIAM—

AFFIRMING

Appellants are brothers who were convicted of first-

degree burglary (10 years), theft (5 years), and of being

persistent felony offenders in the second degree. They

appeal from a judgment sentencing them to life imprison-

ment,

On July 13, 1978, appellants rented a van from Budyet-

Rent-a-Truck. A short time later the van was seen depart-

ing from the Tegethoff house, whose owners were known to

be away. It was discovered that the house had been

burglarized, so the police were alerted. A half hour later,

in neighboring Webster County, officers stopped appellants

in the van. Earl, the driver, fled, leaving Elmer to explain

the presence of numerous stolen goods, burglar’s tools, and

a loaded .22 caliber pistol in the van, At trial, neither

brother offered any defense.

65

Several issues were raised by both appellants and can

be readily disposed of. 1) They contend KRS 511.020 and

KRS 511.030 are unconstitutionally vague, in that the

broad definition of “building” [KRS 511.010 (1)(a)] would

seem to encompass “dwelling,” which traditionally has been

one distinguishing element between first and second degree

burglary. Appellants are correct that after amendment of

KRS 511,020 by Chapter 125, Acts of 1978, first degree

burglary may be committed in a building not a “dwelling.”

However, they overlook the fact that KRS 511.020 as

amended requires that one of several aggravating factors

be present if the building is not a “dwelling.” See Palmore,

Kentucky Instructions to Juries, Comment See. 3.01, p. 14

(1979 Supp). We find no vagueness in these statutes.

2) Appellants seek to raise for the first time on appeal

the sufficiency of the indictment, which omitted the phrase

“with intent to commit a crime” on the burglary count.

Though this issue has not been properly preserved for

review, we remind appellate counsel that the indictment did

specify KRS 511,020 and otherwise comport with Official

Form 15 which is appended to the Kentucky Rules of

Criminal Procedure, Those forms are deemed sufficient as

a matter of law. RCr 13,06,

8) Appellants contend the trial court erred in giving a

complicity instruction too broad for these facts, But no

objection was made by either defense counsel, so the error

will not be reviewed. RCr 9.54 (2).

4) During the persistent felon phase of trial, the deputy

clerk testified and read into evidence five previous judg-

ments of conviction for storehouse or dwelling house

breaking, three for Earl and two for Elmer, Contrary

to appellants assertion, this was not unnecessary repe-

tition and detail, but was the proper procedure to follow.

The jury was informed in a straightforward fashion of

66

facts relevant to its determination of the appropriate

penalty for these recidivist offenders.

5) Appellants contend they were denied effective as-

sistance of counsel when defense counsel in closing chése

to concede that appellants had been proven guilty and to

argue instead for leniency, citing such facts as no endanger-

ment to human life. This claim has never been presented

to the trial court, hence we will not address it on appeal.

Davidson v. Commonwealth, Ky., 555 8. W. 2d 269, 272

(1977).

6) A connected argument is that defense counsel's

closing argument amounted to a de facto guilty plea, neces-

sitating an immediate hearing to determine the voluntari-

ness and competency of appellants’ pleas. This is a friv-

olous assignment of error,

7) Appellants also attack the instructions given on the

persistent felony offender charges, but failed to record

any objections at the proper time, RCr 9.54(2).

Individually, Elmer asserts he was entitled to a directed

verdict of acquittal simply because he was not driving the

van and did not flee as Earl did. Suffice it to say there was

sufficient evidence to submit the case to the jury. Trowel

v. Commonwealth, Ky., 550 8, W. 2d 530, 533 (1978),

Earl raises two separate questions, First, he criticizes

the instruction on first-degree burglary on the ground

there was no proof of entry with the pistol. Not only was

this error not preserved by timely objection, but KRS

511.020 was amended effective June 17, 1978, so as no

longer to require the element of armed intrusion if a dwel-

ling is involved. Second, Earl claims denial of confron-

tation by the admission of Elmer's prior statement to the

police that he was helping his brother move. Elmer did

not take the stand, it is true, but this is a far ery from

Bruton v, United States, 391 U, 8, 128 (1966). Elmer had

not made a confession of guilt implicating Earl; the judge

67

admonished the jury not to consider the statement. We

do not hesitate to declare this error harmless beyond a

reasonable doubt in light of the overwhelming evidence of

guilt. IZarrington v. California, 395 U. 8S. 250 (1969).

The judgments are affirmed.

All concur,

Attorneys for Appellants:

JACK EMORY FARLEY, Public Advocate

RODNEY MeDANIEL, Assistant Public Advocate

State Office Building Annex, Third Floor

Frankfort, Kentucky 40601

Attorneys For Appellee:

ROBERT F. STEPHENS, Attorney General

MICHAEL R. BEITING, Assistant Attorney General

Capitol Building

Frankfort, Kentucky 40601

THE CONSTITUTION OF THE UNITED STATES

Amendment 6

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been

committed, which district shall have been previously ascer-

tained by law, and to be informed of the nature and cause

of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining

witnesses in his favor, and to have the assistance of counsel

for his defense.

68

Amendment 14

Section 1

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

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; nor deny

to any person within its jurisdiction the equal protection of

the laws.

§ 2254. State custody; remedies in State courts

(b) An application for a writ of habeas corpus in be-

half of a person in custody pursuant to the judgment of a

State court shall not be granted unless it appears that the

applicant has exhausted the remedies available in the

courts of the State, or that there is either an absence of

available State corrective process or the existence of cir-

cumstances rendering such process ineffective to protect

the rights of the prisoner.

(c) An applicant shall not be deemed to have exhausted

the remedies available in the courts of the State, within

the meaning of this section, if he has the right under the

law of the State to raise, by any available procedure, the

question presented.

69

RULE 11.42 Motion To Vacate, Set Aside Or

Correct Sentence

(1) A prisoner in custody under sentence who claims

a right to be released on the ground that the sentence is

subject to collateral attack may at any time proceed di-

rectly by motion in the court which imposed the sentence

to vacate, set aside or correct it.

(2) The motion shall be signed and verified by the

movant and shall state specifically the grounds on which

the sentence is being challenged and the facts on which

the movant relies in support of such grounds. Failure to

comply with this section shall warrant a summary dis-

missal of the motion.

(3) The motion shall state all grounds for holding the

sentence invalid of which the movant has knowledge.

Final disposition of the motion shall conclude all issues

that could reasonably have been presented in the same

proceeding.

(4) The clerk of the court shall notify the attorney

general and the commonwealth’s attorney in writing that

such motion (whether it be styled a motion, petition or

otherwise) has been filed, and the commonwealth shall

have 20 days after the date of mailing of notice by the

clerk to the attorney general in which to serve an answer

on the movant,

(5) Affirmative allegations contained in the answer

shall be treated as controverted or avoided of record. If

the answer raises a material issue of fact that cannot be

determined on the face of the record the court shall grant

a prompt hearing and, if the movant is without counsel of

record and is financially unable to employ counsel, shall

appoint counsel to represent him in the proceeding, in-

cluding appeal.

70

(6) At the conclusion of the hearing or hearings the

court shall make findings determinative of the material

issues of fact and enter a final order accordingly. If it

appears that the movant is entitled to relief, the court

shail vacate the judgment and discharge, resentence, or

grant him a new trial, or correct the sentence as may be

appropriate.

(7) Either the movant or the Commonwealth may ap-

peal from the final order or judgment of the trial court

in a proceeding brought under this Rule.

Amended effective July 1, 1976.

(8) The final order of the trial court on the motion

shall not be effective until expiration of time for notice of

appeal under RCr 12.04 and shall remain suspended until

final dispossition of an appeal duly taken and perfected.

Amended effective November 1, 1978.

(9) Counsel appointed for the movant under this rule

shall be entitled to reimbursement by the commonwealth

for his reasonable expenses of travel and subsistence for

necessary conferences with the movant at his place of con-

finement, provided that each trip made for that purpose

be authorized in advance thereof by order of the trial court.

(10) Original applications for relief of the nature de-

scribed in this rule that are addressed directly to a court

other than the one in which the sentence was imposed shall

be transmitted to the court in which the sentence was im-

posed for further disposition in the manner above set forth.

Amended effective January 1, 1965; January 1, 1970;

September 1, 1970; July 1, 1976.

71

RULE 9.84 Penalty

(1) When the jury returns a verdict of guilty it shall

fix the degree of the offense and the penalty, except where

the penalty is fixed by law, in which case it shall be fixed

by the court.

(2) When the defendant enters a plea of guilty, the

court may fix the penalty, except in cases involving offenses

punishable by death.