Respondents Brief — James v. Kentucky

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No. 82-6840

5 SR ee a

IN THE

Supreme Court Of The United States

October Term, 1983

MICHAEL P. JAMES, - . - - Petitioner,

versus

COMMONWEALTH OF KENTUCKY -_ Respondent.

On Writ of Certiorari to the Supreme Court

of Kentucky

BRIEF FOR RESPONDENT

DAVID L. ARMSTRONG

Attorney General

PENNY R. WARREN

Assistant Attorne Gone ral

ROBERT L. CHENOWETH

Assistant Deputy Attorney General

121 Capito! Building

Frankfort, Kentucky 40601-3494

Telephone: (502) 564-7600

Counsel for Re sponds nt

Petition for Certiorari Filed May 27, 1983

Certiorari Granted October 17, 1983

WESTERFIELO-BONTE CO., 619 W. KENTUCKY—P.0. BOX 3251, LOUISVILLE, KY.

QUESTION PRESENTED

Whether the Supreme Court of Kentucky Correctly Con-

cluded That, While a No Inference Instruction Is Required

To Be Given When Requested, Pursuant to Carter v. Ken-

tucky, the Privilege Against Compulsory Self-Incrimina-

tion Does Not Mandate the Granting of an Unexplained

Alternative Defense Request in the Form of an Admoni-

tion to the Jury Where Such a Request Conflicts With

Established State Practice and Procedure.

TABLE OF CONTENTS

QUESTION PRESENTED ....................000. oT

TABLE OF CONTENTS ..........0.........0005. i

TABLE OF AUTHORITIES ..................... iii- v

OPINION BELOW .................ccseeeee scenes 1

FORMU 2... 5 ic cese cs setpa vag oeinds 1

CONSTITUTIONAL PROVISIONS ............... 1

COUNTERSTATEMENT OF THE CASE ......... 1-18

SUMMARY OF ARGUMENT ..................... 17-18

ARGUMENT: The Supreme Court of Kentucky Cor-

rectly Concluded That, While a No Inference In-

struction Is Required To Be Given When Requested,

Pursuant to Carter v. Kentucky, the Privilege

Against Compulsory Self-incrimination Does Not

Mandate the Granting of an Unexplained Alterna-

tive Defense Request in the Form of an Admonition

to the Jury Where Such a Request Conflicts With

Established State Practice and Procedure ........ 19-46

A. Carter Mandates a Jury Instruction Upon

PII? TO ooo vads nsec serene 19-41

B. Even If It Is Determined That an Admonition

Was Constitutionally Required, Denial of the

Requested Admonition, Under the Facts of This

Case, Was Harmless Error .......0cscccces: 41-46

GP bas vacevnvencncssnyvickecbunsweee 47

GEE oct cocecdéscscndendetancebheeweaenae la—6a

ili

TABLE OF AUTHORITIES

-_—----

Cases: PAGE

Allen vy. Commonwealth, 148 Ky. 327, 146 S. W,

Ess sc ccccccccccccceccceee 23

Bartram v. Commonwealth, 233 Ky. 244, 25 S. W,

oO. wan cc cccccccee, 24

Bell v. Commonwealth, Ky., 473 S. W. 2d 820, 821

ee ena cc ced cnccccccercec. 26

Brewer v. Commonwealth, Ky. App., 682 S, W, 2d

cee c cu ccecnce 26

Brown vy. Simpson, 293 Ky. 277, 170 S. W. 2d 345

AER awa ccacccccccccccacccces 27

Brown vy. State, Tex, Cr, App. 617 S. W. 2d 234

eG eas eck ccnccacccescccceces 44

Brown vy. United States, 411 U. S, 228, 231-232

Ras sce ukccncccrccocecccccce 42

Bruno v. United States, 308 U, S, 287 (1939) ..... 31

Carter v. Kentucky, 450 U. S, 288 ( ER passim

Chambers v. Maroney, 399 U. S, 42, 52-53 (1970)... 42

Chapman v. California, 386 U.S, 18 se Tee 41-42

Coleman y. Alabama, 399 U. S. 1, 11 ae 42

Commonwealth v. Baker, 466 Pa. 382, 353 A. 2d

ee ios ciccccscccscccacecece 22

Commonwealth v, McIntosh, Ky., 646 S. W. 2d 43

isa cccsncccccccccccccecce 44

Copeland vy. “United States, 152 F. 2d 769 (D.C.

ee ae cc canes ccceccce 21

Dunean vy. Louisiana, 391 U.S, 145 (| ae 39

Evans v. Commonwealth, 299 Ky, 273, 184 8. W. 2d

es ccc ccc cecccccee 27-28

Eversole v. Commonwealth, Ky., 550 S. W. 2d 513,

EES 30

Fahy v. Connecticut, 875 U. S. 85 (1963) “ee ey 42

Franklin v. State, Nev., 646 P. 2d 453 ‘a 44

Gipson v, Commonwealth, 251 Ky. 793, 66 S. W.

Gr SRP ASH OO Nee Cee 24

PAGE

Griffin v. California, 380 U.S, 609 (1965) ...... 31-338, 48

Harrington v. California, 395 U.S, 250 (1969) ..... 42

Hart v. Commonwealth, 198 Ky, 844, 250 S. W, 108,

SOF CONOR 6 bu cetaceans Seuaseee ceeds ueeeens 25

Henry v. Mississippi, 379 U.S. 443 (1965) ....... 38

Hounchell v. Commonwealth, 273 Ky, 172, 116 S. W.

DE Gee CONOOD wauatc i eviscevatescevaeaewe sane 25

Hunt v. Commonwealth, Ky., 466 S. W, 2d 957, 959

(FPCRP AS a) ViNIS ba acess de ki ekens dawdeaeeeae 30

James v. Commonwealth, Ky., 647 8S. W. 2d 794,

FOTOS CEPONE. 6 uib cbc neuss cecaeavdersaeee tne 34-35

Lakeside v. Oregon, 435 U. S. 333 (1978) ......... 32-33

Long v. Commonwealth, Ky., 559 S. W, 2d 482,

GRE LOOTED 2 ia < bn kde Vekeevebus celts donee 30

Manner vy. Raskin, 113 Ariz, 3, 545 P. 2d 927 (1976), — 21

McCranney v. Commonwealth, Ky., 449 8S. W. 2d

ONG, Dae CHOCO Aces et v00s uc ea aleas pene eer es 30

Miller v. Noell, 198 Ky. 659, 237 S. W, 373 (1922). .26, 27

Milton v. Wainwright, 407 U. S, 371 (1972) ....... 42

Moore vy. Illinois, 434 U. S, 220, 232 (1977) ........ 42

Mosley vy. State, Fla. App., 402 So. 2d 559 (1981).. 44

Nickell v. Commonwealth, Ky., 565 S, W, 2d 145,

BED CUETO Seiansindy i Ncewelccasabes ccsebaces 30

Parker v. State, Ind., 425 N. EB, 2d 628 (1981) ..... 44

People v. Crawford, Colo, App., 632 P, 2d 626 (1981) 44

Richardson v, State, Miss., 402 So. 2d 848 (1981)... 48

Robbins v. California, 453 U.S. 420 (1981) ........ 34

Sampson v. Commonwealth, Ky., 609 S. W. 2d 355,

SOP LEOESD onc kcWesaR ich abies donee sabe be eens 30

Sanders v. State, 264 Ind. 688, 348 N, BE. 2d 642

CROVUD 6 + ita ccetvcwes ed ses aNs cuba tineseose 21

Schneble v. Florida, 405 U.S. 427, 432 (1972) ..... 42

Spencer v. Texas, 385 U. S. 554 (1967) ........... 39

United States v. Hasting, 461 U.S. __. (1983) ...43, 45

United States v. Patterson, 648 F. 2d 625 (9th Cir.

SOD 0 eis 6000506 bees ENS T OR SSRI aes ne 33

PAGE

United States v. Wade, 388 U. S. 218, 242 (1967)... 42

Wainwright v, Sykes, 433 U. S, 72 (1977) ........ 36-38

Weichhand vy. Garlinger, Ky., 447 S. W. 2d 606

TE Ca VOvameukesad oedubie Ueteeekiohesand 28

Williams v Florida, 399 U.S. 78 (1970) .......... 39

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

Be CROED. Ri cvbschd sel evedereuvesbccelewtuse 30

Wolfe v. North Carolina, 364 U. S. 177 (1960) ..... 35-36

Constitutional Provisions:

ERT SENS nu wv tcvbdiecdes cccccntectnane passim

Rules:

SE PUR nv gatavanss pedeneses Vawnees 22-23, 24, 28, 29, 34

Books:

McBride, The Act of Instructing the Jury (1969).. 21

Palmore, Kentucky Instructions to Juries (1975 Re-

WE Ee PED Nabvckwasdenyeaseebabuas 25, 28-29

Wigmore on Evidence, §13 (Tillers rev. 1983) .... 26

Other Authorities:

ABA Standards, Trial Courts, §2.13 ............. 21, 24

American Bar Association, Standards for Criminal

Justice, Trial By Jury, §15-3.6 .......... cece 20, 24

Comment, The Jury Instruction Process—Apathy

or Aggressive Reform?, 49 Marq. L. Rev. 137,

Se SMD. Aba n.cned chusdenb as sadeebenanesone 24

National Center for State Courts, Facets of the

Jury System 30-31 (1976) ....... ccc ccceceees 20

IN THE

Supreme Court Of Che United States

October Term, 1983

No. 82-6840

MICHAEL P, JAMES, - : - - Petitioner,

Vv.

COMMONWEALTH OF Kentucky, - - Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF KENTUCKY

BRIEF FOR RESPONDENT

OPINION BELOW

Respondent respectfully corrects petitioner's state-

ment that the opinion of the Kentucky Supreme Court

‘tis not to be published.’’ The published opinion may

be found at: James v. Commonwealth, 647 S. W. 2d

794 (Ky. 1983).

JURISDICTION

Respondent accepts petitioner’s statement of the

jurisdictional facts.

CONSTITUTIONAL PROVISIONS INVOLVED

Petitioner seeks relief before this Court under the

Fifth and Fourteenth Amendments to the United

States Constitution and accurately sets forth the rele-

vant provisions.

COUNTERSTATEMENT OF THE CASE

On April 23, 1981, the female victim returned to her

City of Frankfort, Kentucky, home from a university

night class and found her front porch light unscrewed

and her front door, which was always locked, inex-

plieably ajar (Joint Appendix [hereinafter ‘J A’’] 30-

31, 40). Examination of her apartment revealed her

bed pillows ‘‘messed up”’ and that the .22 caliber pistol

she kept there was missing (JA 930-31). Early the next

morning she obtained the serial number of the gun and

reported the burglary (JA 30-31, 40). Investigating

officers found evidence of possible entry through a

front porch window (JA 40). Soon thereafter, Michael

James, and his wife, who were next-door neighbors, ob-

served the victim nailing her windows shut and in-

quired about the incident (JA 42-43),

On May 1, 1981, the victim came home from work

and discovered the lower glass panel of her locked

kitchen storm door had been removed and a small pane

broken out of the back door to gain entry (JA 31-32).

Again the pillows of her bed were messed up but

nothing apparently taken this time. (Jd.) She im-

mediately told a neighbor who called the police (JA

32). City of Frankfort Officer Clark found the storm

door panel in some bushes beneath the porch (JA 31,

51). One latent print on the inside of the glass panel

was subsequently identified as petitioner’s by twenty-

six positive comparison points (JA 51, 52; 76-77).

On May 6, 1981, the victim came home for lunch

and was about to return to work around 12:30 p.m.

when petitioner Michael James knocked at the door

and asked to call a doctor for his ill wife (JA 32). <Al-

though the victim barely knew James, he and his wife

had used her phone on a few occasions during the past

several mouths and she thought nothing of the re-

quest (JA 382, 42-45). As she dialed the number,

James grabbed her mouth, poked a gun in her side, and

threatened to kill her if she did not follow instructions

(JA 32). While attempting to push hard to close the

front door with his other hand, James accidentally

fired his gun and became angry (JA 33). During the

subsequent investigation police officers found what ap-

peared to be a .22 caliber bullet on the floor near the

door and a slash mark where it apparently hit the

wall (JA 59, Transcript of Trial [hereinafter ‘*T’’]

Vol. III, 46).

James took his victim into the bedroom where he

bound her hands with a strip of cloth and gagged her

mouth with a similar strip having a knot already tied

in it (JA 33). Tle leaned her across the bed, covered

her head with bed linens and then proceeded to walk

about the house and search through her purse. (Jd.)

After a time he stood her up, pulled the hood of her

sweater over her head and, atter checking to make sure

no one was watching, took her across a yard to his apart-

ment in a nearby building (JA 33-34). The victim was

reminded she would be killed if she tried anything.

(Id.) After ensuring they were not seen, he took her

to the bedroom, ordered her to undress and to climb on

the towel he had placed on the bed (J A 34). She testi-

fied she was afraid to make any physical resistance to

his advances (JA 35, 36). After raping her, James

sat on the bed for a long time and would not allow her

to dress. (Id.) Subsequently, he permitted her to get

dressed but then told her to go in the bathroom and

wash (JA 34-35).

James seemed unable to decide what to do with her

and sat in the bedroom for a long time and then in the

living room where she was told to sit in the middle of

the floor. (Jd.) At one point he mentioned putting

her in the attie (JA 35). Throughout the afternoon

the victim promised to tell no one and kept suggesting

reasons he should let her go before anyone came home

(JA 35-36). She also said she could not explain to

her father if the second gun he purchased for her was

missing from her purse. (Jd.) Late that afternoon

James was finally persuaded to return her purse and

gun and let her go (JA 35). Her supervisor, Mr.

Adams, testified she returned to work between 4:30

and 5:00 p.m. and was visibly upset (JA 80-81). After

calming her down a bit and learning of the incident,

Mr. Adams urged her to call the police, but the victim

explained petitioner said he would kill her if she

told anyone and that reporting the robbery (sic) had

not done any good (JA 36, 80-81). Adams continued

to urge her to go to the hospital and to report the

crime to the state police (JA 81).

She left work and went to a girlfriend’s and then

to a friend who called the police at approximately

6:00 pan. (JA 36, 60-61, 71). Following the police

interview during which she gave them James’ deserip-

tion, his first name (the only name she knew) and

approximate address, the victim was taken to the hos-

pital for examination and tests (JA 36, 54, 71-72; T.

Vol. I, 28). Subsequent lab analysis revealed semen

on the vaginal swabs, vaginal smear, a tampon, and

her panties (JA 79).

Petitioner’s last name and exact address were ob-

tained through fire department records of a recent fire

and an arrest warrant was obtained (JA 71-72). At

his residence, James’ wife said he was refereeing a

basketball game at Kentucky State University; there-

fore, four officers proceeded to the University gym

where they found an intramural game in progress and

recognized James by his height, 6 feet 11 inches (JA

55, 72; T. Vol. 1,28; Vol. III, 53). When the game

concluded in a few minutes, James picked up a gym

bag from the bleachers and began to leave (JA 55, 72;

T. Vol. III, 53). He was stopped at the door and

placed under arrest, the gym bag being taken from

him at the time (JA 55-56, 72). The bag was

placed in the front seat of the police cruiser and James

in the back (JA 56, 63). At that time and when ques-

tioned later, James repeatedly denied knowledge or

ownership of the gym bag and said it was handed to

him by someone (JA 75; T. Vol. I, 30; T. Vol. III, 57).

He declined to consent to a search of his residence and

was transported to headquarters while a search war-

rant was obtained for his apartment (JA 56-57, 73).

During the execution of the search, State Trooper

Sparks and Detective Courtney, City of Frankfort Po-

lice Department, returned to the cruiser for additional

evidence bags (JA 57). Reaching for evidence bags

under the gym bag, which remained on the front seat,

Trooper Sparks felt what seemed through the canvas

of the gym bag to be a gun. (/d.) He took the gym

bag inside where it was found to contain the victim's

.22 caliber pistol reported stolen on April 23, 1981, and

two cloth strips, one with a knot in it (JA 57-58, 74).

Analysis of the cloth strips revealed saliva of a

blood Group A secreter in the knot and a blood test

disclosed the victim was a Group A secreter (JA 77-

78). Petitioner was found to have Group B blood

(T. Vol. III, 11). A towel from James’ bathroom

contained semen, but in all instances the quantities of

semen were too limited to determine blood type (JA

78).

James was subsequently indicted for the May 1,

1981, burglary, KRS 511.030, for the May 6, 1981 rape,

KRS 510,040, and for a misdemeanor of receiving

stolen property arising from his possession of the re-

cently stolen gun, KRS 514.110 (JA 3). He was also

charged as a first degree persistent felon, KRS 532.080,

based on his 1972 Nebraska forgery conviction for

which he received a two-year probated sentence and

his 1973 Virginia murder conviction from which he

was on active parole (JA 4, 14, 17).

The case was tried by jury January 18, 1982. Dur-

ing a pretrial motion the prosecutor requested and

received permission to impeach James based on his

1972 forgery conviction, should James choose to testify

(JA 17). The prosecutor acknowledged the murder

conviction could not be mentioned until the second

stage of the bifurcated proceedings which follow a jury

determination of guilt on the primary offenses (/d.).

The voir dire examination of prospective jurors was

conducted by counsel. The prosecutor included in his

inquiry questions as to the prospective jurors’ under-

standing of the presumption of innocence and burden

of proof.’ Defense counsel included in his inquiry

questions concerning prior jury experience; relation-

ships to law enforcement personnel; knowledge of the

participants in the case; and attitudes concerning sex

crimes, Womanhood and community crime (JA 19-29),

The possible impact of a person’s mistake in the past

was explored with one juror who responded a single

past mistake would not pose a problem or ‘‘get in my

way.’’ (JA 27). The jurors were again reminded

that Mike James is presumed to be innocent and were

questioned in greater detail concerning this presump-

tion and the prosecution’s burden to prove guilt beyond

a reasonable doubt (JA 27-28). The jurors promised

to listen to all evidence presented from the witness

stand and to give it equal consideration (JA 29). One

juror was asked if the defendant's failure to testify

would create any inference as to guilt or innocence and

he responded ** No, sir.’’ Defense counsel continued by

asking if the juror could still afford the defendant his

presumption of innocence and consider all evidence

presented from the witness stand, to which the juror

responded affirmatively (JA 29). Upon repetition of

this question to the panel at large, the trial judge noted

that the jurors said they would try the case solely upon

the law and the evidence which excludes other consid-

1The venire were asked by the prosecutor: ‘‘Do you under-

stand that under the Jaw in this state that the defendant is pre-

sumed innocent until proven guilty beyond a reasonable doubt?

You understand that’s the law? Will you grant to this defendant

that presumption if you sit in this case ’’ (JA 18.)

erations (JA 29-30). Defense counsel announced he

had concluded his voir dire examination (JA 30). The

court then advised the jury as follows:

‘*Ladies and gentlemen, let me simply add to

what counsel have already said to you. Any de-

fendant in any case is entitled to the presumption

of innocence unless and until he is proven guilty

beyond a reasonable doubt by credible, believable,

competent evidence produced by the Common-

wealth. The indictment of the defendant is not to

be considered by the jury as evidence of guilt. It

is simply an accusation made by the Grand Jury

based on evidence presented to the Grand Jury by

the Commonwealth and without evidence presented

on behalf of the defendant.’’ (T. Vol. IT, 49).

The case proceeded with presentation of the Com-

monwealth’s evidence described above. Defense counsel

in his opening statement diagrammed the location of

the apartment at the scene and summarized the evi-

dence to be presented by two defense witnesses who

testified as follows.

Marion Bates testified that he is retired and spends

most of his time around the front porch or front of his

residence at 266 East Main* (JA 85, 89). He recalled

that, beginning around noon on May 6, 1981, he was in

the driveway by his house using putty to plug a leak in

his automobile windshield (JA 85-86). During this

time a good friend and owner of the building at 268

East Main, Chuck Lambert, stopped by and invited

“Previous testimony established the victim’s address as 270

East Main, Frankfort, Kentucky (JA 30) and petitioner’s address

as 268 East Main, Frankfort, Kentucky (JA 71-72).

Mr. Bates to see recent improvements to the basement

of that building (JA 86-87). While they were in the

basement beneath James’ apartment, Mr. Bates heard

no sounds other than James’ record player (JA 88).

When Mr. Lambert mentioned needing to be back at

work at 1:00 p.m., they left the basement and Mr. Bates

continued his work on the ear (/d.). He could not

recall how long he stayed outside that day cleaning out

the car and ‘‘doing other things’? but mentioned he

often stayed out until 4:00 p.m. (JA 89). He recalled

seeing James leave his apartment around 2:00 p.m. and

walk in the direction of Kentucky State University

(JA 88). James ‘hollered’ a greeting to Mr. Bates as

he customarily did (JA 88-89). Mr. Bates also recalled

Mrs. James coming home while Bates was outside and

stopping at his house to visit her friends, Dorothy and

Annette, and/or to use the telephone (JA 90). Mr.

Bates mentioned she often stopped by for these rea-

sons. (Id.). He also testified he did not see James

return nor did he see James and the victim walk be-

tween their buildings (JA 90-91).

On cross-examination Mr. Bates could not recall the

day or month he was contacted by defense counsel

concerning this case but thought it was four or five

mouths ago (JA 91). He described the distance be-

tween James’ and the victim’s apartment as ‘short’

and estimated walking time for that distance at ‘‘about

a minute, I guess.’’ (JA 92.) On redirect he re-

sponded he would have seen James on that date if

James ‘‘ walked from his -ouse (sie) down to his apart-

ment’ in the presence of a lady (JA 93).

Chuck Lambert testified he owned the rental prop-

erty at 268 East Main and was in the process of slowly

cleaning it up (JA 93). He and Mr. Bates ‘‘kind of

had a daily relationship while [Lambert] was doing the

work on the property.’’” (JA 94). When asked if he

recalled showing Mr. Bates the property on May 6, Mr.

Lambert responded, *‘I don’t recall showing the prop-

erty to Mr. Bates on that particular date; but I’ve

shown the property to Mr. Bates on many oecasions.”’

(JA 95.) He also said, ‘*. . . if Mr. Bates said I

showed him the property on that date then he would be

correct.’’ (Id.)

At this point in the trial the jury recessed for lunch

(T. Vol. IV, 47). Upon their return, the following

exchange occurred:

‘Judge Meigs: Ladies and gentlemen, I re-

mind you once again of the admonition given be-

fore the recess and unless you indicate otherwise,

I will assume that you have not discussed the case

among yourselves nor allowed anyone to discuss it

with you during the recess. Does the Common-

wealth waive the call ?

Mr. Corns: We do, Your Honor.

Judge Meigs: Does the defendant waive the

eall?

Mr. Peale: We do, Your Honor.

Judge Meigs: Call your witness. You have

closed, I am sorry.

Mr. Peale: We have closed and has a matter

in regard to the instructions,

Off the Record

Mr. Peale: Note that the defendant objects to

several of the instructions being given to the jury.

Judge Meigs: Overruled.

Mr. Peale: The defendant requests that an ad-

monition be given to the jury that no emphasis be

given to the defendant’s failure to testify which

was overruled.

Judge Meigs: Ladies and gentlemen of the

jury, these are your instructions as to the law ap-

plicable to the facts which you have heard from

the witness stand in the course of this trial... .”’

(JA 95; T. Red. Vol., 3-4.)

The jury was then instructed for each offense :

‘You will find the defendant, Michael P. James,

guilty under this instruction if, and only if, you

believe from the evidence beyond a reasonable

doubt all of the following:’’ [elements of offense

followed] (JA 5-6).

They were further instructed:

‘The law presumes a defendant to be innocent of

a crime, and the indictment or warrant shall not

be considered as evidence or as having any weight

against him. You shall find the defendant not

guilty unless you are satisfied from the evidence

alone, and beyond a reasonable doubt, that he is

guilty. If upon the whole case you have a reason-

able doubt that he is guilty, you shall find him not

guilty.”’ (JA 6).

In his closing statement defense counsel reminded

the jurors of the presumption of innocence which they

promised to afford James and the prosecution’s burden

of proving the case beyond a reasonable doubt (JA 96).

He then turned to the instructions on each offense and

argued, with respect to the burglary, ‘‘There is no

evidence that Mr. James entered that house’’ (/d.).

He dismissed the fingerprint on the inside of the storm

door by arguing it could have been there for any length

of time and further noted there were no fingerprints on

the outside of the door (Jd.) James’ counsel turned to

the rape charge and noted that no one saw them cross-

ing the yard, despite the noon hour on a busy street and

despite Mr. Bates’ presence in the area (JA 97-98).

He questioned why James would ask to use the victim's

phone when Mr. Bates’ phone was used often (JA 98).

He further questioned why Mr. Bates did not see them

leave even if he happened to miss their entry while he

was in the basement (JA 98). The victim’s upset de-

meanor upon reporting back to work was attributed to

a fear of her authoritarian supervisor (JA 99). The

victim’s version of events was characterized as a

‘‘story”’ told for unknown reasons (JA 99). The vie-

tim’s delay for an hour or so in reporting the crime

was also questioned (JA 100). Defense counsel ques-

tioned why no blood sample was taken from Mrs. James

to eliminate her saliva as that present on the cloth

strip (/Jd.). The absence of corroboration of the vie-

tim’s testimony was emphasized through the inconclu-

sive testimony concerning the bullet as well as the

limited quantity of semen which could not be tested

(JA 101). Then the identification of the gun was

challenged and the absence of documentation of pur-

chase or testing of the weapon (JA 102). In counsel’s

words, ‘* There was nothing. Nothing. Nothing. How

ean there be proof beyond a reasonable doubt if there

is nothing.’’ (/d.). On at least ten occasions the

prosecution’s case was characterized as ‘‘no evidence’”’

or ‘‘nothing.’’ (JA 95-103.) The jury was lastly re-

minded of the presumption of innocence, the Common-

wealth’s burden and that there was nothing to establish

‘‘ouilt beyond a reasonable doubt’? (JA 102-103).

The prosecutor in his closing argument similarly

reviewed the clements of each offense and the evidence

presented. On the May 1, 1981, burglary charge the

evidence showed an absence of permission to enter, the

bottom glass panel of a back storm door removed, and

a pane broken out of the kitchen door so that entry

could be gained. A latent print, with twenty-six posi-

tive points identifying petitioner, was found on the

inside bottom portion of the glass storm door (JA 105).

The prosecutor reviewed the victim’s testimony that

petitioner had only been in the front of her apartment

on previous occasions and the improbability of a six-

foot, eleven-inch person leaving a fingerprint on the

lower portion of this door in some innocent fashion

(JA 105). James’ observations and inquiries when the

windows were nailed shut between April 23, 1981, and

May 1, 1981, were noted (JA 105-106). The prosecutor

responded to defense counsel’s repeated argument that

there was no evidence other than the victim’s testimony

by noting that her testimony was repeatedly corrobo-

rated and not contradicted (JA 106). Her reporting of

the April 23, 1981, burglary and providing the serial

number of the stolen gun was mentioned along with her

immediate reporting of the May 1, 1981 burglary (Jd.).

He described the discovery of a small metal slug, intro-

duced by the defense, in a position consistent with the

victim's testimony of an accidental firing of the .22

caliber pistol. The prosecutor reminded the jury that

the victim's stolen pistol was missing only one live

round when it was taken from James that night and

that James also had in his possession two cloth strips

which matched the victim’s previous description down

to the knot in one strip (JA 107-108). He further

noted the report of saliva from a Group A secreter on

the cloth strip and that the victim was a Group A

secreter (JA 108). In response to defense counsel's

inquiry regarding a blood test of Mrs. James, he said

that information was not available to the prosecution

and that the defense had not provided the information

(Id.). Tle continued by discussing the testimony of

direct threats, the considerable disparity in size be-

tween the victim and the accused, and the documenta-

tion of semen on the victim and on James’ towel in

limited quantities (Jd.). He noted the victim’s prompt

reporting of the rape to her supervisor, the supervisor's

testimony concerning her conduct and her related fear

of the threats and that this close neighbor might not be

immediately apprehended, and her reporting the crime

to the police soon thereafter (JA 109). Turning to the

charge of receiving stolen property, the prosecutor

noted the serial number of the gun in James’ possession

May 6, 1981, matched that on the victim’s police report

of April 24, 1981 (JA 110). The jury was reminded

that two police officers observed petitioner pick up the

bag containing the gun and strips of cloth as he left the

gym (/d.). The prosecutor concluded by reviewing the

verdict form, arguing the seriousness of the offenses

involved and recommending the jury ‘ fix what [they]

believe to be a reasonable punishment.”’ (JA 111).

Following the return of a guilty verdict on all three

charges, the case was continued until January 27, 1982

for the persistent felony offender stage of trial (T. Red

Vol., 38-39; Transcript of Record [hereinafter ‘*R’’]

p. 53). At that time the jury was apprised of James’

1972 forgery conviction in Nebraska and his 1973

guilty plea to the charge of murder committed in Vir-

ginia for which he received a sentence of 28 years.

(T. Vol. V, 9-13). Other elements of the persistent

felony offender offense were established, including

James’ date of birth as March 1, 1953, and the fact that

he was on active parole from the Virginia murder

when he committed the present offenses (T. Vol. V,

20-21, 29.)

James took the stand in his own defense at the per-

sistent felony offender stage and stated he thought his

pleas in Nebraska involved only a misdemeanor charge

and that he served no time in prison on that offense

(T. Vol. V, 33-35). He testified he never was required

to report to a probation officer because the University

of Nebraska handled everything for him (T. Vol. V,

36, 40). James denied appearing in court for proba-

tion revocation and denied any knowledge of court

documents reflecting confinement in jail until he could

make arrangements to return to Virginia in July of

1972 (T. Vol. V, 31-42). He acknowledged returning

to Virginia in July or August, 1972 and subsequently

serving time in that state, but not on the forgery

charge (T. Vol. V, 43, 45-46). James was found guilty

as a first-degree persistent felon pursuant to KRS

532.080 and his sentence on the rape charge enhanced

from twenty years to life (T. Vol. V, 45-47).

On direct appeal of his conviction to the Supreme

Court of Kentucky as provided for under its rules,

James acknowledged that trial counsel ‘‘requested an

‘admonition’ rather than a written instruction’’ but

argued that the requested admonition is constitution-

ally mandated by this Court’s decision in Carter v.

Kentucky, 450 U. S. 288, 305 (1981).°

The Commonwealth of Kentucky responded on

appeal that Carter entitles a defendant only to an in-

struction upon request and that Kentucky has long

distinguished between admonitions and instructions

and the purposes of each. Alternatively, the state

argued that if there had been error, it was harmless.

The Supreme Court of Kentucky held that no instrue-

tion had been requested and, in light of the difference

between an admonition and an instruction, the request

for an admonition had been properly denied (JA 114).

The petition for certiorari was granted October 17,

1983.

®The state court arguments of petitioner and the Common-

wealth of Kentucky are reproduced as an addendum herein for

the convenience of the court.

SUMMARY OF ARGUMENT

In Carter v. Kentucky this Court held that the Fifth

Amendment compels state trial courts to provide, upon

request, a prophylactic jury instruction concerning a

criminal defendant's failure to testify. Since opinion

and practice vary widely among jurisdictions regarding

the method of instructing a jury, implicit in this hold-

ing was that a Carter instruction would be provided in

the same manner as all other jury instructions in that

jurisdiction.

Kentucky promptly amended its Rules of Criminal

Procedure to require that the Carter instruction be in-

cluded with other written instructions upon request.

Kentucky’s interest in its requirement for written in-

structions includes full and accurate guidance to the

jury; avoidance of misunderstanding or misconstruc-

tion of the law by jurors, counsel or the court; a clear

understanding between the court and counsel as to the

instructions requested and to be given; avoidance of

error from hasty, extemporaneous charges to a jury,

expedited trials and reduction in errors or retrials

arising from disputes about the oral charge or frequent

recharging on points not remembered or comprehended

by all. Kentucky also historically and consistently has

distinguished between ‘tadmonitionus’’ defined as oral

advice or caution by the court to the jury, and ‘*instrue-

tious’’ which contain the controlling law of the case and

must be given in writing absent clear and affirmative

waiver on the record.

The Kentucky trial court correctly denied James’

unexplained request for an isolated ‘‘admonition”’ on

his failure to testify sinee the full measure of the Carter

protection was available to James, but not requested,

and he has never asserted any interest or authority,

other than Carter, to support his request for a form of

relief not available or appropriate under long estab-

lished practice and procedure. James’ assertion that

Carter compels relief in the form of any alleged fune-

tional equivalent of an instruction clouds the clear and

final mandate of Carter,

State rules of procedure which encourage trial pro-

ceedings as free of error as possible and resolution of

all issues at the time when society’s resources are con-

ceutrated to decide the question of guilt or innocence

make a major contribution to finality in criminal liti-

gation. The Fifth Amendment does not require each

state to employ what some consider to be better or wiser

methods of practice and procedure. It compels only

that, upon request, an instruction on a defendant’s fail-

ure to testify be given in the same manner as all other

instructions in that jurisdiction. The Supreme Court

of Kentucky correctly interpreted Carter as so holding

and its decision should be affirmed.

Even if this Court should determine that an ad-

monition is constitutionally mandated, Kentucky sub-

mits that the denial of James’ request was harmless

error under the facts and circumstances of this case,

ARGUMENT

The Supreme Court of Kentucky Correctly Concluded That,

While a No Inference Instruction Is Required To Be

Given When Requested, Pursuant to Carter v. Kentucky,

the Privilege Against Compulsory Self-Incrimination

Does Not Mandate the Granting of an Unexplained Al.

ternative Defense Request in the Form of an Admonition

to the Jury Where Such a Request Conflicts With Estab-

lished State Practice and Procedure,

A. Carter Mandates A Jury Instruction Upon

Proper Request.

The Court in Carter v. Kentucky, 450 U. S. 288

(1981), carefully considered the Fifth Amendment

privilege against self-incrimination and the unique

value of jury instructions ‘‘to direct the jurors’ atten-

tion to important legal concepts that must not be mis-

understood, such as reasonable doubt and burden of

proof.”’ Id., at 299. The Court noted;

**We have repeatedly recognized that ‘instructing

a jury in the basie constitutional principles that

govern the administration of criminal justice,’

Lakeside, 435 U. S., at 342, is often necessary.

Jurors are not experts on legal principles; to fune-

tion effectively, and justly, they must be acen-

rately instructed in the law.”

* * * * * * *

‘A trial judge has a powerful tool at his disposal

to protect the constitutional privilege—the jury

instruction—and he has an affirmative obligation

to use that tool when a defendant seeks its employ-

ment. No judge can prevent jurors from specu-

lating about why a defendant stands mute in the

face of a criminal accusation, but a judge can, and

must, if requested to do so, use the unique power

of the jury instruction to reduce that speculation

toa minimum.” /d., 450 U.S., at 302-303,

Thus, a new rule of constitutional law was created re-

quiring that a prophylactic instruction be given when

the defendant makes a timely and proper request.

We believe the Carter opinion, expressing a consti-

tutional rule applicable to all states, was thoughtfully

drafted so that the constitutional principle could be

protected by all states without undue encroachment

upon established trial procedures and a state’s deter-

mination of the ‘‘best’’ method of educating the jury

on the law of the case. This Court no doubt recognized

the variation and experimentation among the states

regarding jury instructions. By 1976 well over one-

half of the states used pattern jury instructions and

development of such instructions was in progress in

other states.'. Some authorities state these instructions

are simply available for use while others presume errors

from unnecessary modification of the pattern instrue-

tions.” State statutes and rules of practice differ on

whether requested histructions must be submitted in

writing.” Additionally, there is disparity of opinion

as to the manner of delivering jury instructions. One

judge discussed the dilemma as follows:

‘National Center for State Courts, Facets of The Jury System

30-31 (1976); NDAA, National Prosecution Standards, Appendix

17.8-1.

‘American Bar Association, Standards for Criminal Justice,

Trial By Jury, §15-3.6(b). (2nd Ed. 1980) Comments, pp.

15,104-105.

*Id., §15-3.6(¢) Comments.

**Spontaneous oral delivery may accomplish un-

derstanding more readily but is fraught with the

danger of reversal by the appellate court which

cousiders the printed word out of its environment

of the trial. A judge who instructs conversation-

ally without a prepared script tends to ramble,

to weaken his statements and to become obscure.

Occasional use of conversational language main-

tains attention; its continued use is dangerous and

not always convincing.’”

The American Bar Association Commission on Stand-

ards of Judicial Administration determined that:

‘All jury instruction techniques necessarily in-

volve accommodations among the sometimes con-

flicting objectives of technical accuracy, intelli-

gibility to a lay audience, and the simplicity of

procedural administration.’’ ABA Standards,

Trial Court §2.13, Comment p. 35.

Finally, courts differ on the benefits or prejudicial

effect of sending written instructions with the jury for

use during its deliberations in a criminal ease. Com-

pare Copeland y. United States, 152 F, 2d 769 (D.C.

Cir, 1945), affirming trial court’s denial of jury’s re-

quest for written instructions when both counsel ob-

jected but seeing no reason the jury must be forced to

rely on its recollections; Manner vy, Raskin, 113 Ariz.

3, 545 P. 2d 927 (1976), noting mandatory practice of

sending written instructions into the jury room in

criminal trials; Sanders y. State, 264 Ind. 688, 348

N. FE. 2d 642 (1976), where the trial judge was said to

have contravened prevailing practice by permitting the

™R. McBride, The Act of Instructing the Jury (1969) at 191.

»)

jury to take the final instructions to the jury room;

and Commonwealth vy, Baker, 466 Pa, 382, 353 A, 2d

406 (1976) in which the court said that by sending only

the verdict form the jury might overemphasize the mat-

ters touched on in the writings and concluded the

dangers inherent in this procedure outweighed the

possible benefits.

The Carter opinion accommodated these diverse

viewpoints and rules of practice by requiring only that

an instruction, in whatever form or manner is utilized

for other instructions in the jurisdiction, be given if

requested,

Promptly after the Carter decision, Kentucky

amended its Rule of Criminal Procedure [hereinafter

“RCr’’] 9.54) to add subsection (3). The rule in

effect at the time of James’ trial was as follows:

*RuLE 9.54 INSTRUCTIONS,

(1) It shall be the duty of the court to instruct the

jury in writing on the law of the case. The instrue-

tions shall be read to the jury prior to the closing

summations of counsel,

(2) No party may assign as error the giving or

the failure to give an instruction unless he has

fairly and adequately presented his position by an

offered instruction or by motion, or unless he

makes objection before the court instructs the

jury, stating specifically the matter to which he

objects and the ground or grounds of his objection.

(3) The instructions shall not make any reference

to a defendant's failure to testify unless so re-

quested by him, in which event the court shall give

an instruction to the effect that he is not compelled

to testify and that the jury shall not draw any in-

ference of guilt from his election not to testify and

shall not allow it to prejudice him an any way.

[Amended effective March 1, 1974; September 1,

1981.]”’

Kentucky has long required written jury instructions

to be submitted to the jury when they begin delibera-

tions. In Allen v. Commonwealth, 148 Ky. 327, 146

S. W. 762 (1912), one purpose of the requirement was

explained as follows:

“Tt is of the highest importance that the jury

should be accurately and fully advised as to the

law applicable to the case when they retire to their

jury room to consider the verdict and determine

the guilt or innocence of the accused by the appli-

eation of the law as given by the court to the

evidence as related by the witnesses. It was to

prevent misunderstanding or misconstruction of

the law that the Code provision was inserted, re-

quiring instructions to be in writing. If the in-

structions are oral, the jurors may have different

views as to what the court stated was the law of

the case, and this, of course, might often result to

the prejudice of the accused. But when the jury

have before them in writing the law of the case,

there is no room for misunderstanding or dispute

as to what it is; and the probability that the ac-

cused will be prejudiced by error of the jury in

understanding and applying the law is largely, if

not altogether, removed.’’ Jd., 146 8S. W., at 763.

— Additional interests served by a mandatory require-

ment for written instructions include: (1) compliance

with the rule ensures that the jury will always have

before them, plainly written out, the rules of law they

are to apply in a particular case, (2) juries, being un-

trained in the law and unfamiliar with its technical

language, will almost of necessity have an indistinct

recollection of the charge given them by the judge, (3)

both the defendant and the state are entitled to a sound

exposition of the law, (4) there should be no misunder-

standing between the court and counsel as to the in-

structions requested and/or the instructions to be given,

(5) written instructions prevent the evil of repeated

retrials resulting from errors committed in hasty, ex-

temporaneous charges to the jury, and (6) the trial

of criminal cases is expedited by ending not only dis-

putes among the jurors as to what the oral charge was

but also the jurors’ frequent return into court to be

recharged on points not remembered or comprehended

by all. See also: Comment, The Jury Instruction

Process—Apathy or Aggressive Reform?, 49 Marq.

L. Rev. 137, 139 (1965).

Kentucky’s RCr 9.54 is consistent with related

American Bar Association Standards, except that no

position was taken in the standard on whether all in-

structions should be in writing.’ Kentucky’s require-

ment is mandatory and the giving of oral instructions

may constitute reversible error. Bartram v. Common-

wealth, 233 Ky. 244, 25 S. W. 2d 378 (1930) ; Gipson

v. Commonwealth, 251 Ky. 793, 66S. W. 2d 16 (1933) ;

‘See: ABA Standards, Trial by Jury, §15-3.6; ABA Standards,

Trial Courts, §2.13.

*ABA Standards, Trial by Jury, §15.3.6(e), Commentary, pp.

15.110-111.

Hounchell v. Commonwealth, 273 Ky. 172, 116 S. W. 2d

332 (1938). Kentucky law does provide for the giving

of oral instructions upon request by the defense, but

in a felony case ‘‘it must affirmatively and clearly ap-

pear that the accused consented to the jury’s being in-

structed orally or that he waived his right to have them

instructed in writing.’’ Palmore, Kentucky Instruc-

tions to Juries, §1.51 (1975 Revision of Stanley), p. 21;

See: Hart v. Commonwealth, 198 Ky. 844, 250 S. W.

108, 109 (1923) (reversing because the record was in-

adequate to show an affirmative waiver by the de-

fendaunt.)

Consistent with the foregoing principles, Kentucky

has long distinguished between the terms ‘‘admonition”’

and ‘‘instruction.’? Admonitions are given orally; in-

structions must be in writing absent clear waiver.

Admonitions before and after recesses and other times

while the trial is not in progress are designed to advise

or caution jurors concerning their duty or conduct as

jurors.’"® Admonitions during the course of trial are

curative and for the purpose of removing from or lim-

iting the jury’s consideration of evidence improperly

placed before them."? These admonitions are to be re-

1°See, for example, the admonition given just preceding the

request at issue here:

‘*Ladies and gentlemen, I remind you once again of the admoni-

tion given before the recess and unless you indicate otherwise, I

will assume that you have not discussed the case among yourselves

nor allowed anyone to discuss it with you during the recess.’’ (T.

Red Vol., 3).

See, for example, the ten admonitions cited by petitioner in

the Appendix to his brief.

quested at the time the evidence is heard but may be

given at the conclusion of that witness’ testimony.

See: Bell v. Commonwealth, Ky., 473 S. W. 2d 820,

821 (1971); Brewer v. Commonwealth, Ky. App., 632

S. W. 2d 456, 457 (1982). While perhaps other juris-

dictions and certainly some writers may use the terms

differently or interchangeably,’* Kentucky clearly and

consistently has required its practitioners to be mindful

of the foregoing distinction.

As early as 1922, in Miller v. Noell, 193 Ky. 659,

237 8S. W. 373 (1922), the highest court in Kentucky

made it clear that there is a susbtantial difference be-

_ tween an ‘‘admonition’’ and an ‘‘instruction.”’

*. . . [A]n ‘admonition’ is any authoritative

oral communication or statement by way of advice

or caution, made by the court to the jury during

the trial of a case, respecting their duty or con-

duct as jurors, the admissibility or nonadmissi-

bility of evidence offered by the parties, or the

purpose, if competent only for a particular pur-

pose, for which any of that admitted might or

should be considered by them. But by the Civil

Code of Practice and the courts of the state the

term ‘instructions’ has a wholly different legal

meaning. The instructions are from the court and

12See Wigmore on Evidence, §13 (Tillers rev. 1983), p. 697.

In discussing evidence admissible for a limited purpose, the author

states:

‘*Here the only question can be what the proper means are for

avoiding the risk of misusing the evidence. It is uniformly con-

ceded that the instructions of the court suffice for that purpose,

and the better opinion is that the opponent of the evidence must

ask for that instruction.’’

addressed to the jury, and contain the law of the

case by which they are to be guided and controlled

in arriving at a verdict.’’ Jd. at 374. [Emphasis

added }.

Since Miller, the Kentucky courts have consistently

and repeatedly adhered to the distinction between ad-

monitions and instructions as the following cases illus-

trate. In Brown y. Simpson, 293 Ky. 277, 170 8S. W. 2d

345 (1943), a civil action for damages for assault and

battery, appellant complained that the trial court’s

admonition limiting the effect of reputation evidence

was incomplete. Citing Miller, the appellate court

noted the absence of any objection and declined to rule

on the alleged error in the admonition. Jd. at 347. The

opinion continued:

**This Miller case also disposes of Brown’s conten-

tion that the admonition was an instruction and the

court having given it sua sponte it was incumbent

upon him to give it correctly, by pointing out that

an ‘admonition’ is but an oral statement by way of

advice made by the court to the jury during the

trial respecting the purpose for which such evi-

dence may be considered; while ‘instructions’ are

always written, unless the parties agree otherwise,

and contain the law of the case which guides the

jury in reaching a verdict.’”’ Id.

Again, in Evans v. Commonwealth, 299 Ky. 273, 184

S. W. 2d 981, 985 (1945) the court said:

‘“‘We therefore hold that an admonition, such as

the court gave here relating to the weight to be

given to the testimony of an accomplice, isenot an

instruction embraced within section 225,'* supra,

of the Criminal Code of Practice. . . .’’ [requir-

ing instructions to be in writing. ]

In Weichhand v. Garlinger, Ky., 447 S.W. 2d 606

(1969) the court held it error, but harmless error, to

give an admonition that evidence of a criminal conviec-

tion was not conclusive on the question of negligence in

a related civil action. In discussing the issue, the

court again emphasized the distinction between re-

quests for instructions and admonitions:

‘‘On the trial of the instant case evidence of the

criminal conviction was admitted, over Garlinger’s

objections. He made no request, at the time of

admission, for any admonition. However at the

close of the trial he requested an instruction that

the criminal conviction could be considered as evi-

dence of negligence but was not conclusive. The

trial court refused to give such an instruction but

did give an admonition to that effect.’’ Id. at 610.

[Emphasis by the Court. ]

In his pattern jury instruction text the former Chief

Justice of the Supreme Court of Kentucky states:

‘‘Oral admonitions in reference to questions of

evidence made during the progress of trial, not

being on the merits of the prosecution or defense,

are not instructions within the meaning of the

criminal rule of procedure which requires all in-

structions to be in writing, or within the rule that

the court must give the whole law of the case.’’

18Criminal Code of Practice Sec. 225 was the precursor of

RCr 9.54 in Kentucky.

Palmore, Kentucky Instructions to Juries, §1.31

(1975 Rev. of Stanley), p. 16.

The difference between an admonition and an instrue-

tion is further apparent in the following definitional

sources:

‘*‘The word admonish means to caution or advise.’’

Guth v. People, 402 Ill. 286, 88 N. E. 2d 590, 591

(1949) ; People v. Pennington, 267 Ill. 45, 107 N. E.

871, 872.

‘‘Admonish. To caution or advise. To counsel

against wrong practice, or to warn against danger

of an offense.’’ Black’s Law Dictionary, 4th Ed.

(1957), p. 69, and 5th Ed. (1979), p. 45.

‘Instruction. Trial Practice. A direction given

by the judge to the jury concerning the law of the

case; a statement made by the judge to the jury

informing them of the law applicable to the case in

general or some aspect of it; an exposition of the

rules or principles of law applicable to the case or

some branch or phase of it, which the jury are

bound to accept and apply. The generally accepted

meaning of the word instruction, when applied to

courts, means a direction that is to be obeyed.”’

Black’s Law Dictionary, 4th Ed. (1957), p. 941;

See also: 5th Ed. (1979), ‘‘jury instructions,’’

p. 769.

Likewise, Kentucky courts have consistently held

under RCr 9.54(2) that no claim of error regarding

instructions may be raised on appeal unless the position

urged was fairly and adequately presented to the trial

court by tendered instruction or by motion or by objec-

tion, stating specifically the grounds in support."

Rather than follow these established procedures,

petitioner failed to place on the record a clear and

affirmative waiver of the written instruction require-

ment and further asked the court to risk reversible

error by any or all of the following: (1) giving an

‘‘admonition”’ rather than an ‘‘instruction,’’ (2) iso-

lating one item from the law of the case and treating it

in a substantially different manner from all others, or

(3) granting the request even though counsel had not

fairly and adequately presented his position by an

offered written instruction or by motion or by making

an objection which specifically stated his grounds.

To date petitioner has yet to cite any authority per-

mitting partially oral and partially written instruc-

tions, any interest he has in such a request, or any

manner in which he would have been prejudiced by

entirely written or entirely oral instructions which

would include a ‘‘no adverse inference instruction.”’

Nor has he cited any Kentucky authority which would

bring his request within the recognized definition of

admonition. It must be noted that counsel did not refer

to the court’s written instructions as admonitions in

4See, for example: Sampson v. Commonyealth, Ky., 609

S. W. 2d 355, 360 (1980); Wilson v. Commonwealth, Ky., 601

S. W. 2d 280, 285 (1980); Nickell v. Commonwealth, Ky., 565

S. W. 2d 145, 148 (1978); Long v. Commonwealth, Ky., 559

S. W. 2d 482, 484-485 (1977) ; Eversole v. Commonwealth, Ky., 550

S. W. 2d 513, 515-516 (1977); Hunt v. Commonwealth, Ky., 466

S. W. 2d 957, 959 (1971) ; McCranney v. Commonwealth, Ky., 449

S. W. 2d 914, 915 (1970).

his previous breath (JA 95). He correctly referred to

them as ‘‘instructions.’’ Yet he plainly chose the term

‘*admonition”’ seconds later when he stated his request

for relief. (Id.)

The Commonwealth of Kentucky has never re-

garded this case as simply a question of semantics or

some word game. Rather, the issue is the scope of the

Fifth Amendment protection associated with a possible

adverse inference arising from a defendant’s failure to

testify. This Court in Carter established a clear pre-

ventive rule to be applied in all jurisdictions. The

decision in Carter was not the beginning of inquiry on

this subject but, rather, we believe it was designed to be

the end, save the question of harmless error.

Bruno v. United States, 308 U. S. 287 (1939), inter-

preted the legislative intent of 18 U.S.C. §3481 as ‘‘an

implied direction to judges to exercise their traditional

duty in guiding the jury by indicating the considera-

tions relevant to the latter’s verdict on the facts’’ and

held that the substance of the requested instruction

should have been granted. Jd., 308 U. S. at 293, 294.

In Griffin v. California, 380 U. S. 609 (1965) the Court

considered a California constitutional provision stating

in part:

‘*. . , in any criminal case, whether the defend-

ant testifies or not, his failure to explain or to deny

by his testimony any evidence or facts in the case

against him may be commented upon by the court

and by counsel, and may be considered by the

court or the jury.’’ California Constitution, Ar-

ticle I, §13; Id., 380 U. S., at 610, note 2.

Such a rule, permitting repeated prosecutor com-

ments explicitly referring to the defendant’s failure to

take the stand and the trial court’s acquiescence therein,

constituted a solemnization of ‘‘the silence of the ac-

cused into evidence against him. . . .”’ Jd.,380U.S.,

at 614. This Court held:

‘“. . . Thatthe Fifth Amendment .. . forbids

either comment by the prosecution on the accused's

silence or instructions by the court that such sil-

ence is evidence of guilt.’”’ Jd., 380 U. S., at 615.

The question whether an accused could require a jury

instruction that his silence must be disregarded was

expressly reserved. IJd., 380 U.S., at 615, note 6. The

issue of the Fifth Amendment and jury instructions

was considered again in Lakeside v. Oregon, 435 U. S.

333 (1978), wherein a ‘‘no adverse inference’’ instruc-

tion was given over the defendant’s objections. The

Lakeside Court concluded:

‘*It may be wise for a trial judge not to give such

a cautionary instruction over a defendant’s objec-

tion. And each state is, of course, free to forbid its

trial judges from doing so as a matter of state law.

We hold only that the giving of such an instruction

over the defendant’s objection does not violate the

privilege against compulsory self-incrimination

guaranteed by the Fifth and Fourteenth Amend-

ments.”’ Jd., 435 U.S., at 340-341.

‘**Yet the petitioner argues that his constitutional

right to counsel means that this instruction could

constitutionaliy be given only if his lawyer did not

object to it. We cannot accept the proposition that

the right to counsel, precious though it be, can

operate to prevent a court from instructing a jury

in the basic constitutional principles that govern

the administration of criminal justice.’’ IJd., 435

U.S. at 342.

The remaining question, reserved in Griffin, supra,

was resolved in Carter v. Kentucky when the court

announced a per se rule, that upon proper request, a

defendant has a right to a prophylactic instruction

under the Fifth and Fourteenth Amendments.

Petitioner here urges this Court to make the plain

rule of Carter the beginning of another round of liti-

gation rather than the resolution of the issue. The

unanswered questions would include: In what ‘‘form’’

must the instruction be given? When must it be given?

If requested, must it be given more than once or in both

an oral and written manner? If an admonition is the

“functional equivalent’’ of an instruction, what other

‘functional equivalents’ might there be? When has a

defendant substantially complied with the requirement

of a “‘request’’? How is a trial judge to know, in the

heat of trial, that when defense counsel says one thing

he really means something else ?

At least one Court has already considered an ad-

monition given during jury selection and held:

**But such preliminary admonition is no substitute

for the required instruction which must be given

with others as the jury prepares to deliberate.’’

United States v. Patterson, 648 F. 2d 625, 631 (9th

Cir. 1981).

In a Fourth Amendment context it was said:

‘‘Our entire profession is trained to attack ‘bright

lines’ the way hounds attack foxes. Acceptance by

Courts of arguments that one thing is the ‘fune-

tional equivalent’ of the other, for example, soon

breaks down what might have been a bright line

into a blurry impressionistic pattern.’’ Robbins v.

California, 453 U. 8, 420, at 443 (1981). (Rehn-

quist dissenting).

In the present case Kentucky fully complied with

the mandate of Carter by providing an automatic right,

upon proper request, to a ‘‘no adverse inference”’ in-

struction to be given in the same manner as all other

instructions. RCr 9.54(3). The Supreme Court of

Kentucky recognized James’ right to such an instruc-

tion but affirmed the trial court’s denial of his alterna-

tive request.

‘‘James requested that the trial court give an

‘admonition’ to the jury that no emphasis be given

to James’ failure to testify. This request was

denied by the trial court. In his argument on this

appeal James attempts to equate this request for

an admonition with a request for an ‘instruction’

on failure of a defendant to testify. Carter v.

Kentucky, 450 U. 8. 288, 101 S. Ct. 1112, 67 L. Ed.

2d 241 (1981), held that a state trial judge has the

constitutional obligation to give a prophylactic

instruction upon proper request to minimize the

danger that the jury will give evidentiary weight

to a defendant's failure to testify. There is a vast

difference in a request for an admonition and a

requested instruction. James was entitled to the

instruction, but did not ask for it. The trial court

properly denied the request for an admonition.”

James Vv. Commonwealth, Ky., 647 8. W. 2d 794,

795-796 (1983).

Petitioner urges this Court to hold that the privilege

against compulsory self-incrimination compels state

courts to grant a request not only for an ‘‘instruction’”’

but also for an admonition or other alternative relief

regardless of the impact upon established state prac-

tice and procedure. He argues the decision of the

Supreme Court of Kentueky on procedural grounds:

‘*. . . represents an obvious attempt by that

court to circumvent the mandate of this court in

Carter v. Kentucky and deprives petitioner of the

benefit of judicial guidance as to the jurors’ un-

derstanding of the privilege against compulsory

self-incrimination.”’

In Wolfe v. North Carolina, 364 U. S. 177 (1960),

the Court considered a similar allegation, that the Su-

preme Court of North Carolina’s decision not to con-

sider a claim of racial discrimination due to the peti-

tioner’s procedural failure to complete the trial record,

was untenable and inadequate in light of the constitu-

tional right involved. That claim was rejected as

follows:

‘**Examination of the whole course of North Caro-

lina decisions thus precludes the inference that the

Supreme Court of North Carolina in this case

arbitrarily denied the appellant an opportunity to

present their federal claim. . . . Without any

doubt it rests with each state to prescribe the

jurisdiction of its appellate courts. The mode and

time of invoking that jurisdiction, and the rules of

practice to be applied in its exercise, and the state

law and practice in this regard are no less ap-

plicable when Federal rights are in controversy

than when the case turns entirely upon questions

of local or general law.’ [Citations omitted. ]

‘[W]hen as here there can be no pretence that the

[state] Court adopted its view in order to evade a

constitutional issue, and the case has been decided

upon grounds that have no relation to any federal

question, this Court accepts the decision whether

right or wrong.’ ’’ Id., at 194-195,

The North Carolina Supreme Court did not decide the

federal question raised ‘‘because of the requirement of

rules of state procedural law within the constitutional

power of the states to define, and here clearly delineated

and evenhandedly applied.’”’ Jd., at 196. Similarly,

the Kentucky Supreme Court declined to decide

whether there was constitutional error in the failure

to give an instruction on the right not to testify be-

cause no such instruction was requested and petitioner

failed to follow the requirements of state procedural

law.

Subsequently this Court, on review of a habeas

corpus claim, declined to consider whether a confes-

sion was improperly admitted into evidence at a state

trial. Wainright v. Sykes, 433 U. 8. 72 (1977).

‘‘We therefore conclude that Florida procedure

did, consistently with the United States Constitu-

tion, require that respondent’s confession be chal-

lenged at trial or not at all, and thus his failure

to timely object to its admission amounted to an

independent and adequate state procedural ground

which would have prevented direct review here.”’

Id., 433 U. S., at 87-88.

In rejecting the ‘‘sweeping language of Fay v. Noia,’’

372 U.S. 391 (1963), which required a ‘knowing and

deliberate waiver of the federal constitutional conten-

tion,’’ the Court emphasized the ‘‘major contribution

to finality in criminal litigation’’ fostered by a con-

temporaneous objection rule. Jd., 433 U.S., at 87-88.

‘The failure of the federal habeas corpus courts

generally to require compliance with a contempor-

aneous objection rule tends to detract from the

perception of the trial of a criminal case in state

court as a decisive and portentous event. <A de-

fendant has been accused of a serious crime, and

this is the time and place set for him to be tried

by a jury of his peers and found either guilty or

not guilty by that jury. To the greatest extent

possible all issues which bear on this charge should

be determined in this proceeding; the accused is

in the court-room, the jury is in the box, the judge

is on the bench, and the witnesses having been

subpoenaed and duly sworn, await their turn to

testify. Society’s resources have been concen-

trated at that time and place in order to decide,

within the limits of human fallibility, the questions

of guilt or innocence of one of its citizens. Any

procedural rule which encourages the result that

those proceedings be as free of error as possible

is thoroughly desirable, and the contemporaneous-

objection rule surely falls within this classification.

We believe the adoption of the Francis rule in this

situation will have the salutary effect of making

the state trial on the merits the ‘main event,’ so

to speak, rather than a ‘tryout on the road’ for

what will later be the determinative federal habeas

hearing.”’ Jd., 433 U.S., at 90.

In a similar manner, state decisions that written in-

structions accurately apprise the jury of the law of

the case and prevent unnecessary delays or retrials

and requirements that requests for instructions be

made in conformity with established practice or that,

at least, the groundsfter-TNbnconforming request be

made clear to the trial judge, serve the salutary pur-

pose of encouraging final resolution of all issues at

the state trial on the merits.

James relies on the case of Henry v. Mississippi,

3879 U. 8. 448 (1965), which the Court remanded for

consideration of the possible issue of waiver. James’

reliance on Henry for the proposition that compliance

with procedural rules may be unnecessary appears

misplaced in light of the Wainwright court’s explana-

tion of the holding as follows:

‘‘In Henry v. Mississippi, 379 U. S. at 451, the

Court stated that decisions of counsel relating to

trial strategy, even when made without the consul-

tation of the defendant, would bar direct federal

review of claims thereby forgone, except where ‘the

circumstances are exceptional’.’”?” Wainwright,

supra, 433 U.S. 72, at 91, note 14.

Petitioner has not urged any exceptional circumstances

here.

Kentucky submits that the present case bears a

stronger resemblance to the due process challenge of

the unitary habitual offender proceeding in Spencer vy.

Teras, 385 U. S. 554 (1967) where this Court said:

‘Cases in this Court have long proceeded on the

premise that the Due Process Clause guarantees

the fundamental elements of fairness in a criminal

trial. [Citations omitted.] But it has never been

thought that such cases establish this Court as a

rule-making organ of state rules of criminal pro-

cedure, And none of the specific provisions of the

Constitution ordains this Court with such author-

ity. . . . As Mr, Justice Cardozo had occasion

to remark, a state rule of law ‘does not run foul

of the Fourteenth Amendment because another

method may seem to our thinking to be fairer or

wiser or to give a surer promise of protection to

the prisoner at bar.’ Snyder v. Massachusetts,

391 U. 8. 97, 105.”" Id., 385 U. S., at 563-564.

This Court explained that determination of the ‘‘best’’

procedure requires consideration of a wide variety of

criteria including adequacy of notice and an oppor-

tunity to challenge evidence, the allocation in a par-

ticular jurisdiction of responsibility between the court

and jury, the method best accommodated to the State’s

established trial procedures, and which method is apt

to be the least prejudicial. Jd.,385 U.S. 567. ‘*Toler-

ance for a spectrum of state procedures’’ was deemed

to be especially appropriate. Jd., 385 U. S. at 566.

See also: Duncan vy. Louisiana, 391 U. S. 145 (1968),

and Williams v. Florida, 399 U. S. 78 (1970), consid-

ering state practices relating to jury size and una-

nimity.

Inthe case.at bar, Kentucky in no way denigrated

the privilege against compulsory self-incrimination by

requiring that the constitutionally required instruc-

tion be given in some manner different from other in-

structions on the law of the case. James, however,

urges this Court to hold that the decision in Carter

gives rise not only to an instruction in conformity with

stute procedure but also to entitlement to any ‘‘prac-

tical substitute’’ requested by defense counsel, whether

or not accommodated by established trial procedure.

In other words, the Fifth Amendment privilege is not

simply equal to all other constitutional rights but is

superior and deserves extraordinary treatment when

requested.

Among other problems presented by this approach

is the determination of what is or is not a practical

substitute for an instruction to the jury. When the

constitutionally-rooted mandate of Carter is confined

to an instruction to the jury upon request, there is no

doubt. In each state, in every jurisdiction, the pro-

viding of a jury instruction can be uniform and with-

out equivocation. Expanding the constitutional man-

date in Carter to a court being required to recognize

and carry out what any given defense counsel may

believe to be a ‘‘functional equivalent”’ or practical

substitute for a jury instruction precipitates disagree-

ments and misunderstandings of defense tactics by

trial judges, state appellate courts and federal habeas

courts. The consequence is extended litigation based

on hindsight or speculation. Surely, such is not the

mandate of Carter. Again, Kentucky has accepted this

Court’s prophylactic constitutional rule as enunciated

in Carter. The constant dripping of water on a rock

over a period of time will eventually erode away the

rock. What James is asking this Court to do is to let

the dripping begin. If this is permitted, in time there

will be no certainty as to what a court must do at the

request of a defendant regarding the no-inference rule

rooted in the Fifth Amendment, but rather the court’s

decision, if the request is not granted, will always be

subject to review as to whether the requested action is

the ‘‘functional equivalent’’ of an instruction.

Kentucky urges this Court to hold that the language

of Carter means what it says. Upon request, a crim-

inal defendant is entitled to a jury instruction that

there be no adverse inference from his failure to

testify. The Supreme Court of Kentucky correctly

interpreted the Carter opinion as so holding. Its deci-

sion should be affirmed.

B. Even If It Is Determined That An Admonition Was

Constitutionally Required, Denial Of The Requested

Admonition, Under The Facts Of This Case, Was

Harmless Error.

Should this Court decide that a criminal defendant

is entitled, upon request, to an admonition or to some

other practical substitute concerning his failure to

testify, Kentucky submits that the error in denying

James’ request was harmless error under the totality

of the circumstances.

In Chapman v. California, 386 U. 8S. 18 (1967),

this Court clarified that federal, rather than state law,

applies to any determination of what constitutes harm-

less error when the error involves denial of a federal

constitutional right. While this Court emphasized

that ‘‘some constitutional rights [are] so basic to a fair

trial that their infraction can never be treated as

harmless error’ (386 U. S. at 23), it appears this

Court did not believe that references by the court and

prosecutor to the defendants’ failure to testify were in

that category. Instead, this Court applied the stand-

ard articulated in Fahy vy. Connecticut, 375 U. S. 85

(1963), and held reversal is inappropriate when the

comments did not contribute to the verdict.’ Chap-

man, supra, 386 U. S., at 24.

Subsequent to Chapman, this Court has consistently

refused to reverse state and federal convictions for

constitutional errors which it deemed harmless. See,

e.g., Chambers v. Maroney, 399 U. S. 42, 52-53 (1970)

(Fourth Amendment); Brown v. United States, 411

U. S. 223, 231-232 (1973) (Sixth Amendment) ; Milton

v. Wainwright, 407 U. S. 371 (1972) (same) ; Schneble

v. Florida, 405 U. S. 427, 432 (1972) (same) ; Harring-

ton v. California, 395 U. S. 250 (1969) (same). In

other cases where it has found errors of a constitutional

magnitude, the Court has often remanded the case for

a determination of whether the error was harmless.

See, ¢.g., Moore v. Illinois, 434 U. S. 220, 232 (1977)

(Sixth Amendment); Coleman v. Alabama, 399 U. S.

1, 11 (1970) (same) ; United States v. Wade, 388 U.S.

218, 242 (1967) (same).

15U'nder the facts of Chapman this Court concluded the error

of repeated and direct references to the defendants’ silence, coupled

with sufficiently inconclusive evidence, was not harmless.

Last term, this Court reiterated its affirmative re-

jection of a per se rule requiring automatic reversal in

cases involving violations of Griffin v. California, 380

U.S. 609 (1965), i.e., prosecutorial comment on a de-

fendant’s failure to testify. United States v. Hasting,

461 U. S. —_, ——, 103 S. Ct. 1974, 1980 (1983).

‘Since Chapman, the Court has consistently made

clear that it is the duty of a reviewing court to

consider the trial record as a whole and to ignore

errors that are harmless, including most constitu-

tional violations, see, e.g., Brown [v. United States,

411 U. S. 223, 230-232 (1973)]; Harrington v.

California, 395 U. S. 250 (1969) ; Milton v. Wain-

wright, 407 U. S. 371 (1972).”’ Id., 461 U. S.,

at ——, 103 S. Ct., at 1980.

The test to be applied in such cases was stated as

follows:

‘*The question a reviewing court must ask is this:

absent the prosecutor’s allusion to the failure of

the defense to proffer evidence to rebut the testi-

mony of the victims, is it clear beyond a reasonable

doubt that the jury would have returned a ver-

dict of guilty?’’ Id.,461 U.S., at ——, 103 S. Ct.,

at 1981.

While the question of whether it can be harmless

error to refuse to give a requested no-inference instruc-

tion was expressly left open in Carter, since the argu-

ment was not raised in state court, several state courts

subsequently have recognized their duty to determine

whether Carter violations are harmless. Applying the

Chapman standard in Richardson vy. State, Miss., 402

So. 2d 848 (1981), the Court affirmed the conviction

after noting identification of the defendant as the burg-

lar and his guilt of the crime were proved by over-

whelming evidence. In Franklin vy, State, Nev., 646

P. 2d 543 (1982), the Court said, in affirming the

conviction :

‘“We have already noted the analogous relation-

ship between the Griffin and Carter holdings; we

ean see no justification for applying a different

standard of review to the rule announced in Carter.

We join several other jurisdictions which have

determined that Carter did not abrogate the Chap-

man test: The error is not reversible if the Court

determines that it was harmless beyond a reason-

able doubt.”’

In Parker v. State, Ind., 425 N. E. 2d 628 (1981), the

court recognized the applicability of the harmless

error rule to Carter violations, although the case was

decided on the ground that the instruction was not re-

quested. Most recently, the Supreme Court of Ken-

tucky held that the refusal to give a Carter instruction

was harmless error where the evidence supporting a

charge of receiving stolen property included notice to

the defendant that the guns were stolen, storage of

the guns near the defendant’s home and evidence of

his distribution of the guns with warnings that the

recipients should get rid of them. Commonwealth v.

McIntosh, Ky., 646 8. W. 2d 43 (1983).’*

16Compare: People v. Crawford, Colo. App., 632 P. 2d 626

(1981) ; Mosley v. State, Fla. App., 402 So. 2d 559 (1981) ; Brown

v. State, Tex. Cr. App., 617 S. W. 2d 234 (1981), in which neither

harmless error nor the facts were discussed and an automatic re-

versal rule apparently imposed.

In the present case, the question of harmless error

was plainly presented to the Supreme Court of Ken-

tucky (see: Addendum, Brief for Appellee) but that

court felt it unnecessary to address the issue due to

James’ failure to request an instruction. As in Hast-

ing, this Court has before it the same record reviewed

by the Supreme Court of Kentucky and is ‘‘in precisely

the same position of that Court in addressing the issue

of harmless error.’”’ 461 U. S. at ——, note 8.

We believe that, absent the denial of the requested

admonition, it is clear beyond a reasonable doubt that

the jury would have returned a verdict of guilty.

At trial the victim unequivocally identified her May

6, 1981, attacker as Mike James, a neighbor whom she

knew only by his first name (J A 32, 63,71). From her

report and other available information, the police were

able to identify petitioner and to apprehend him at a

basketball game later that evening. (JA 55, 71-72).

James was observed picking up a gym bag from the

bleachers as he prepared to leave the gymnasium be-

fore he was apprehended at the exit (JA 55, 62). The™”

bag contained a .22 caliber pistol with the same serial

number as the gun the victim reported stolen from her

apartment on April 23, 1981 (JA 57-58). It also con-

tained two cloth strips matching the victim’s descrip-

tion of the items used to bind and gag her (JA 58).

Saliva from a person with the same blood type as the

victim’s was found in the knot of the cloth strip de-

scribed as that used for a gag (JA 36, 58, 77-78). A

metal slug was found in the victim’s front room in a

position consistent with her description of James’ acci-

dental firing of the pistol, and the gun in his possession

that evening was missing only one live round (JA 59,

73, 76). Following the May 6 hospital examination of

the victim, laboratory reports revealed semen in the

vaginal swabs, vaginal smear, a tampon, and her

panties (JA 54, 79). On the inside lower portion of a

storm door panel discarded during the May 1, 1981,

burglary of the victim’s apartment, the police found

a fingerprint which was conclusively established as

James’ print (JA 51-52, 76-77).

The defense presented testimony that James was

seen alone May 6 leaving his apartment at a time in-

consistent with the victim’s testimony of the facts (JA

85-88). There was a strong inference, however that

Mr. Bates might have been mistaken about the date

since he observed James’ coming and going regularly

or that he might have forgotten the exact date during

the months between the rape, the first contact by de-

fense counsel, and the trial (JA 88-91). Bates’ testi-

mony that he did not see James or the victim enter

or leave James’ apartment was not inconsistent with

other testimony concerning the time Bates was in the

basement, the time he remained in the yard, and the

victim’s testimony that James made sure they were

not seen (J A 85-93, 33-34).

In short, the direct and circumstantial evidence of

James’ guilt was overwhelming. Under the totality of

the evidence and the whole record of the case, it must

be said beyond a reasonable doubt that the error relied

upon was harmless,

CONCLUSION

The privilege against compulsory self-incrimination

does not require an admonition, in lieu of an instrue-

tion, on the defendant’s failure to testify. Even if an

admonition is constitutionally required, under the facts

of this case the denial of the requested admonition was

harmless error.

Respectfully submitted,

Davip L, ARMSTRONG

Attorney General

Penny R. WARREN

Assistant Attorney General

Rosert L. CHENOWETH

Assistant Deputy

Attorney General

121 Capitol Building

Frankfort, Kentucky 40601-3494

(502) 564-7600

Counsel for Respondent

CERTIFICATE OF SERVICE

I, Penny R. Warren, counsel for respondent, hereby cer-

tify that the foregoing Brief for Respondent was served

on petitioner by personally mailing three copies of the same

to counsel for the petitioner, Hon. C. Thomas Hectus,

GittLeMAN & Barser, 635 West Main Street, Louisville,

Kentucky 40202, this 30th day of December, 1983. I further

certify that all parties required to be served have been

served. ;

Penny R

Assistant Attorney General

Capitol Building

Frankfort, Kentucky 40601-3494

ADDENDUM

SUPREME COURT OF KENTUCKY

File No. 82-8SC-394-MR

Micuae.t P. JAMgs, - - - - - Appellant,

CoMMONWEALTH OF KENTUCKY, - - - Appellee.

BRIEF FOR APPELLANT

ARGUMENT IV

Appellant’s Convictions of the Principal Offenses Were

Obtained in Vioiation of Due Process of Law Where the

Trial Court Refused to Admonish the Jury Regarding

Appellant’s Right to Not Testify.

Appellant, by his counsel, requested prior to the instruc-

tion of the jury that “an admonition be given to the jury

that no emphasis be given to the defendant’s failure to

testify . . .” [T.E. (Red Volume) p. 4]. Appellant sub-

mits that the failure to do so deprived him of due process

of law.

The law iy, this Commonwealth has apparently been to

the effect that no comment (even one protective in nature)

could be made on defendant’s failure to testify. Green v.

Commonwealth, Ky., 488 S. W. 2d 339 (1972), interpreting

KRS 421.225; but see Spencer v. Commonwealth, Ky., 467

S. W. 2d 128 at 130-131 (1971) and Kelley v. Common-

wealth, 300 Ky. 136, 187 S. W. 2d 796, 800 (1945) (holding

that the defendant was entitled to instruction upon request;

the language in Spencer was rejected in Green, supra, as

“dicta”).

However, appellant submits that the requested “ad-

monition”’ in this case is now constitutonally mandated.

In Carter v. Kentucky, __ U. 8. ___,, 101 S.. Ct. 1112,

L. Ed. 2d (1981), the United States Supreme

Court reviewed a decision of this Court affirming Carter’s

conviction despite the refusal of the trial court to instruct

the jury on Carter’s failure to testify. The U. S. Supreme

Court reversed, stating that

The freedom of a defendant in a criminal trial to re-

main silent ‘unless he chooses to speak in the unfettered

exercise of his own free will’ is guaranteed by the Fifth

Amendment and made applicable to state criminal pro-

ceedings through the Fourteenth. [cite omitted].

And the Constitution further guarantees that no ad-

verse inferences are to be drawn from the exercise of

that privilege. [cite omitted]. Just as adverse

comment on a defendant’s silence “cuts down on the

privilege by making its assertion costly,” [cite omit-

ted], the failure to limit the jurors’ speculation on the

meaning of that silence, when the defendant makes a

timely request that a prophylactic instruction be given,

exacts an impermissible toll on the full and free exer-

cise of the privilege. Accordingly, we hold that a state

trial judge has the constitutional obligation, upon

proper request, to minimize the danger that the jury

%Appellant’s trial counsel apparently requested an ‘‘admoni-

tion’’ rather than a written instruction. Nonetheless, the consti-

tutional underpinnings are the same, at least in the sense that an

admonition is ‘‘any authoritative ora] communication or statement

by way of advice or caution by the court to the jury respecting their

duty or conduct as jurors ... .’’ Black’s Law Dictionary, Re-

vised Fourth Edition, p. 69 (1968) citérfg Muller v. Noell, 193 Ky.

659, 237 S. W. 373, 374.

will give evidentiary weight to a defendant’s failure to

testify.

[Id., 101 S. Ct. at 1121-1122].

It cannot be assumed that the jury did not notice the

appellant’s failure to testify, and therefore drew no adverse

inference therefrom. The U. S. Supreme Court has labeled

such an assumption as “very doubtful . . . speculative

. . .{and] dubious. . . .” Lakeside v. Oregon, 435 U. S.

333, 98 S. Ct. 1091, 55 L. Ed 2d 319 (1978).

Beceuse the trial court refused appellant’s timely re-

quest for an admonition on his right to not testify, this

Court should reverse his conviction and grant him a new

trial.

SUPREME COURT OF KENTUCKY

File No. 82-SC-394-MR

Micuaet P. JAMEs, - - - - - Appellant,

COMMONWEALTH OF KENTUCKY, - - - Appellee.

BRIEF FOR APPELLEE

ARGUMENT IV

The Trial Court Properly Declined to Give an Admonition

Regarding Appellant’s Right Not to Testify.

Acknowledging that no instruction was requested, ap-

pellant relies on Carter v. Kentucky, 450 U. S. 288, 101

S. Ct. 1112, 67 L. Ed. 2d 241 (1981), for the proposition that

the trial court was required, upon request, to give an

admonition “that no emphasis be given to the defendant’s

failure to testify” (TE 426). The Commonwealth respect-

fully disagrees with appellant’s attempt to equate instruc-

tions and admonitions and submits that Carter is not sup-

portive of appellant’s position.

As the Court made clear in Miller v. Noell, 193 Ky. 659,

237 S. W. 373 (1922), there is a substantial difference be-

tween an admonition and an instruction.

[A]n ‘admonition’ is any authoritative oral

communication or statement by way of advice or cau-

tion, made by the court to the jury during the trial of

a case, respecting their duty or conduct as jurors, the

admissibility or nonadmissibility of evidence offered

by the parties, or the purpose, if competent only for a

particular purpose, for which any of that admitted

might or should be considered by them. But by the

Civil Code of Practice and the courts of the state the

term ‘instructions’ has a wholly different legal mean-

ing. The instructions are from the court and addressed

to the jury, and contain the law of the case by which

they are to be guided and controlled in arriving at a

verdict.” Jd. at 374. (Emphasis added.)

Similarly, in Carter, supra, the Court noted “ ‘the very

purpose’ of a jury instruction is to direct the jurors’ atten-

tion to important legal concepts . . .” /d., 450 U.S. at

299. Later in the same Opinion the Court said:

“No judge can prevent jurors from speculating about

why a defendant stands mute in the face of a criminal

accusation, but a judge can, and must, if requested to

do so, use the unique power of the jury instruction to

reduce that speculation to a minimum.” Jd., 450 U.S,

at 303. (Emphasis added.)

If appellant had requested the instruction, the court would

have heen obligated to give a proper instruction. However,

appellant may not predicate reversible error on a request

for an admonition which was correctly denied by the court.

Should this Court decide the trial judge was nonetheless

obligated to instruct the jury that no inference shall be

drawn from the defendant's election not to testify, the

Commonwealth submits that any error was harmless be-

yond a reasonable doubt. In Carter the Court explicitly

left open the issue of whether the failure to give the re-

quested instruction would be harmless under the standard

established in Chapman v. California, 386 U. S. 18, 87 S. Ct.

824, 17 L. Ed. 2d 705 (1976). Subsequently, two other

states which have considered the issne have found the error

harmless. Richardson v. State, Miss., 402 So, 2d 848, 851-

852 (1981); Parker v. Indiana, Ind., 425 N. E. 2d 628, 630

(1981). .

The record in the present case reveals both the prose-

cutor and defense attorney discussed during voir dire that

a defendant is presumed innocent until proven guilty

beyond a reasonable doubt and that the burden of proof

is on the Commonwealth (TE 143, 165-166). The defense

attorney also inquired whether the defendant’s failure to

testify would create any inference as to innocence or guilt

or would cause them to form a decision (TE 167-168).

Unlike Carter, supra, the prosecutor in his closing com-

ments did not repeatedly argue that the Commonwealth’s

evidence was “not controverted” or that the defendant's

explanation for his conduct was “not in the record.” Id.,

450 U.S. at 294.

Additionally, the evidence of appellant’s guilt was over-

whelming. He was positively identified as the perpetrator

of the rape. Examination of the victim revealed semen in

the vagina, and appellant that night had in his possession

two strips of cloth like those used to bind and gag the

victim. One strip was knotted and contained saliva of the

same blood group as the victim’s. Appellant also had in

his possession the pistol recently stolen from beneath the

victim’s pillows. His fingerprint was found on the inside

of the storm door bottom panel the day it was forcibly

removed and the victim’s pillows again disturbed. While

appellant did receive the maximum sentence, he may not

attribute the severity of his punishment to the failure to

give an instruction on his right not to testify. Appellant

took the stand in the second phase of the bifureated pro-

ceeding, yet there he also received the maximum sentence,

The Commonwealth submits that upon the whole case there

is not “a substantial possibility that the result would have

been any different.” Abernathy v. Commonwealth, Ky.,

439 S. W. 2d 949, 952 (1969). If there were any error, it is

harmless beyond a reasonable doubt.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.