# Respondents Brief — James v. Kentucky

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1984
- **Citation:** 466 U.S. 341

## Text

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.

ii

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

2

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

3

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

4

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

5

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

6

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

7

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.)

8

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).

9

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).

10

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,

11

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

12

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-

13

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

14

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

15

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

16

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.

17

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’

b

unexplained request for an isolated ‘‘admonition”’ on

18

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,

19

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

20

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.

21

**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

23

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

24

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.

25

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.

26

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.’’

27
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

28

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.

29

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

30

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

a

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).

31

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.

32

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

33

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).

34

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

35

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

36

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

37

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

38

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

39

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.

40

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

41

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-

42

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.

43

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

44

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.

45

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-

46

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,

47

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

la

SUPREME COURT OF KENTUCKY

File No. 82-8SC-394-MR

Micuae.t P. JAMgs, - - - - - Appellant,
v.
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”).

2a

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.

3a

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.

4a

SUPREME COURT OF KENTUCKY

File No. 82-SC-394-MR

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

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

Ja

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). .

6a

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1439%3A5. Public record. Not legal advice.