Petition for Writ of Certiorari — Beasley v. Kentucky

- : Suprene Coert, US.

86 1938 wTTLE D

No Bos = JUN 1 8?

: re ees

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1987

JIMMIE L. BEASLEY .- - - . Petitioner

versus

COMMONWEALTH OF KENTUCKY -_ Respondent

On Petition for a Writ of Certiorari to the

Supreme Court of Kentucky

PETITION FOR WRIT OF CERTIORARI

PHYLLIS K. LONNEMAN

204 N. Mulberry St.

Elizabethtown, KY 42701

(502) 765-2139

Counsel for Petitioner

June 1, 1987

QUESTION PRESENTED FOR REVIEW

Is it a denial of a criminal defendant’s Fourteenth

Amendment Rights of Due Process and Equal Protection

of Law, when a Trial Judge reads an indictment to venire-

men and the prosecution only lists the Statutory designa-

tions of the charges and witnesses, when there is a Crim-

inal Rule which specifically states: “The Attorney for the

Commonwealth shall state to the jury the nature of the

charge and the evidence upon which he relies to support

it”?

In other words, when there is a Criminal Rule which

specifically states a Prosecutor must inform the Jury, can

a Judge relieve a Prosecutor of that duty without infring-

ing upon the Due Process Right of the Defendant?

ii

TABLE OF CONTENTS

PAGE

oe RB eer rrr i

EE Te IE i oo nck vba kan ke cannes li-iil

TABLE OF AUTHORITIES ...................... iv— \

ST I hak a hb wh cea We Same eee nee

JURISDICTION ......... is Aas hae eR aminate 2

CONSTITUTIONAL PROVISIONS INVOLVED ... 2

STATUTORY PROVISIONS INVOLVED ..“....... 2

STATEMENT OF THE CASE .................... 2- 7

REASONS FOR GRANTING THE WRIT:

The Opinion Below Conflicts with United States v.

Dietrich, Rose v. United States, Webb v. United

States and the Due Process Clause of the United

States Constitution as Well as Decisions in Many

Jurisdictions. The Present Case Presents an Ap-

propriate Vehicle for Deciding an Important Ques-

tion of Constitutional Law Regarding Defining the

Role of the Prosecutor in Apprising the Jury of the

Charges Facing a Defendant and Due Process, ... 8-14

A. The Question Presented is Narrow and Prop-

erly Before the Court in an Appropriate Con-

ee A Cel 8- 9

B. The Question Presented is an Important Issue

of Federal Constitutional Law Which Should Be

Deamied by This Coere, é<.inck ceaneecue ee 9-11

C. The Opinion Below Conflicts with United States

v. Dietrich, United States v. Rose, United States

v. Webb, and United States v. Robles and the

Due Process Clause of the United States Con-

WATRRIOE, an nnc vc xiddneaneane eee 11-13

D. The Opinion Below Conflicts with Decisions in

Many State and Federal Jurisdictions, ........ 13-14

iii

PAGE

EE nn 15

GE en la-9a

Opinion of Court of Appeals .................... la-4a

Opinion of Supreme Court of Kentucky .......... 5a-Ta

TA ONS SE OPE EET CTR EE ET EE EELS 8a-9a

NOTICE OF APPEARANCE ..................... 10a

CERTIFICATE OF SERVICE .................... lia

iv

TABLE OF AUTHORITIES

Cases: PAGE

Archer v. Port Clinton, 35 Ohio App. 2d 88, 215

ee ye errr Teer er rer ere 11

Best v. District of Columbia, 291 U. S. 411, 415, 54

o Ce. Sy Fe ae eke enkic yc: 10

Calhoun v. Commonwealth, 378 S. W. 2d £22 (Ky.

DE Gteccusaaeeaxs PRE ere yore Cree 7,12

Carrier v. Commonwealth, 356 S. W. 2d 752 (Ky.

SE deo 50s dads ce beeen eee ad eee 9

Chatman v. State, 164 Ind. App. 97, 326 N. E. 2d

ri dicds sca wee ape ade eeee new rues eens 14

eg OE i ae ae kas ek eek Re ewes ee 10

Donnelly v. DeChristoforo, 416 U. S. 637, 40 L. Ed.

Se ee ee el ke Cader denies aes 10

Duncan v. Louisiana, 391 U. 8. 145, 88 S. Ct. 1444,

eee FS Ce ror rr ree 10

Farris v. Commonwealth, 111 Ky. 236, 23 KLR 580,

2 Se ee eee er ee 12

Galloway v. Commonwealth, 5 KLR 213, 11 Op. 951

ie. Bee sete eis Chua a eek Sak oe as 6, 12

Hanley v. United States, 5 Cir., 416 F. 2d 1160, cert.

den., 397 U.S. 910, 90 S. Ct. 908, 25 L. Ed. 2d 91 14

Umited States v. Hickman, 592 F. 2d 93 (1979) ...11,13

In re Murchison, 349 U.S. 133, 186 .............. Po

Irwin v. Dowd, 366 U.S. 717, 722; 81S. Ct 1639,

1642, 6 L. Ed. 2d 751, 755 (1961) ............. 10

Lickliter v. Commonwealth, 60 S. W. 2d 355 (1933) = 11

Mills v. Commonwealth, 310, 240, 220 S. W. 2d 376

Co NE, 6 a es eke en eae eek wed cae bakes 6

People v. Arnold, 250 P. 168, 199 C. 471 .......... 11

People v. Bailey, 47 N. Y. 2d 965, 419 N.Y.S. 2d 956,

oy S| reer rrr rer eee 14

People v. Clayton, 211 N. W. 42, 236 Mich. 692 .... = 11

People v. Gomez, 283 P. 2d 949, 131 Colo. 576 ...... 11

PAGE

People v. Kurtz, N. Y. 414 N. E. 2d 699 (1980) ...13, 14

Robles v. United States, 9 Cir., 279 F. 2d 401, 403

: PR Pe ree rere tee pert ee 12

Rose v. United States, 149 F. 2d 755 (1945) ...... 8

Sheppard v. Commonwealth, 322 S. W. 2d 115 (Ky.

| Bere r er Lite eee esas eehaadaniie sds 7

State v. Deppe, FOB SB. W. 20 TIG 2. cece anes 11

State v. Gray, 423 S. W. 2d 776 (Mo.) ............ 14

State v. Stahl, 107 S. 2d 670, 236 La. 362 ......... 11

Stuthman v. United States, 8 Cir., 67 F. 2d 521,

Spree perrenery enn Sek eerate ETUC TanE eigl gery ye gee 10

Turner v. Commonwealth, 240 S. W. 2d 80 (Ky.

|) ee arte eee ee ee part eee ae % 3

United States v. D’ Alora, 585 F. 2d 16 (1978) ..... - 10

United States v. Dietrich, 10 Cir., 126 F. 676 ...... 8, 14

United States v. Scott, 487 U. S. at pp. 98-99, 98

ek oid olen aa ee eae eeeeaenn ees 14

Webb v. United States, 191 F. 2d 512 (1951)...... 8

Statutes:

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Rg Serer errr rr rere Tero rete. 12

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I nk a RAS ee ae een ee ee 3

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No

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1987

JIMMIE L. BEASLEY - - - - Petitioner

Vv.

COMMONWEALTH OF KENTUCKY - - Respondent

ON PETITION FOR A WRIT OF CERTIORARI FROM THE

SUPREME COURT OF KENTUCKY

PETITION FOR WRIT OF CERTIORARI

Petitioner, Jimmie L. Beasley, respectfully prays

that a Writ of Certiorari issue to review the opinion

of the Kentucky Supreme Court entered on April 2,

1987.

OPINIONS BELOW

The opinion of the Court of Appeals of Kentucky

reversing Petitioner’s conviction is unpublished Beas-

ley v. Commonwealth (File No. 85-CA-2210-MR) (May

2, 1986) (Appendix to Petition, hereinafter App. pages

1-4). The opinion of the Supreme Court of Kentucky

reversing the Court of Appeals on discretionary review

is also unpublished (App. pages 5-7).

JURISDICTION

The opinion of the Supreme Court of Kentucky

was issued on April 2, 1987. The jurisdiction of the

Court is invoked under 28 U.S.C. See. 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourteenth Amendment to the United States

Constitution, Section One, in pertinent part:

. nor shall any State deprive any person of

liberty . . . without due process of law;

nor deny to any person within its jurisdiction the

equal protection of the laws.

STATUTORY PROVISIONS INVOLVED

Kentucky Rule of Criminal Procedure 9.42(a)

states:

The Attorncy for the Commonwealth shall state to

the jury the nature of the charge and the evidence

upon which he relies to support it.

STATEMENT OF THE CASE

This criminal case evolved from a civil action for

modification of custody of the complaining witness.

[Civil Action No. 12,080-C, 94 and 218]. The com-

plainant wished to live with her natural father and

when her natural mother refused to agree the com-

plainant’s father instituted a custody change proceed-

ing on or about July 20, 1984. After the paperwork

for the custody hearing had been submitted to the

Court, the mother (Petitioner’s wife) signed an

3

Agreed Order relinquishing custody to the natural

father. However, before the complainant was notified

that her mother had voluntarily agreed to allow her

to permanently live with her father, the story which

resulted in this criminal case was presented to a So-

cial Worker. (Transcript of State Evidence Vol. 11,

pages 169-170).

On October 1, 1984, the Hardin Circuit Court,

Division I Grand Jury for Hardin County, Kentucky,

returned Indictment Number 84-CR-94 against Peti-

tioner, Jimmie L. Beasley. . (Transcript of State Evi-

dence, Vol. 1, page 2; Appendix to Petition, App. page

8). This indictment was from a direct submission to

the Grand Jury. There were no preliminary inquiries

at the District Court level. (Transcript of State Evi-

dence, Vol. 1, page 35). The only witnesses before the

Grand Jury were the Complaining witness and the So-

cial Worker. (Transcript of State Evidence, Vol. 1;

page 35). Petitioner was indicted for Sexual Abuse

in the First Degree; Rape in the Second Degree; and

Sodomy in the Second Degree.’

When the case was called for trial in April, 1985,

the trial Judge read the indictment to the jury pool

before voir dire commenced. The Commonwealth be-

gan its voir dire and on three separate instances, three

jurors were brought to the bench and then excused

from serving. The Commonwealth then attempted to

reread the indictment to the Jury pool during her

voir dire. Trial Counsel objected on the basis of re-

IKRS 510.110; KRS 510.050; KRS 510.080.

4

dundancy and was sustained. The Commonwealth then

stated the statutory name for each charge: Rape, Sod-

omy and Sexual Abuse, then rested. Trial Counsel

then commenced his voir dire and again three more

jurors were brought up to the bench and questioned.

The jury was finally selected and before a recess was

taken for in chamber discussion, admonished not to

discuss the case. (Transcript of State Evidence, pages

4-29).

After the in-chamber preliminaries were completed,

the trial commenced. The Prosecutor gave the follow-

ing as an opening statement. Because the content of

this opening is the subject of this petition, Petitioner

will quote in full:

Mrs. Coleman: Please the Court, Mr. Watson,

ladies and gentlemen of the jury. What we have

for you today is a most unpleasant case. As a

matter of fact, this is probably one of the most un-

pleasant cases that I will ever have had to try, be-

cause the allegations here are very serious, and the

testimony that you will hear from Lynn Decker, to

me, is very upsetting. Of necessity, because the

charges are sexual abuse, sodomy, and rape, we will

be using words and language that I was brought

up and taught never to use. So I would like to

ask, first of all, that you try to prepare yourselves

for some language and discussion of things that

we don’t normally talk about. I would ask you for

your patience and your understanding. Beeause I

consider this to be a very important case. Now,

because of the type of case that this is, as you

might guess, if you think about it, the prosecu-

5

tion and the defense are not going to have a lot

in the way of eye witness testimony. And that’s

because when somebody rapes a person, or sodom-

izes a person, or commits sexual abuse, they do not

do it in a crowd. So usually you have the two

parties — the victim and the perpetrator, the de-

fendant — and you don’t have anybody else there

watching it. So my witness in chief is going to be

the victim. A young lady sixteen years of age,

named Lynn Decker, sitting here at the prosecu-

tion table. This is going to be very hard for Lynn,

and I have talked with her about how we do things

here. I am going to make it as easy as I can on

her, but I ask for your patience. This is the kind

of thing that’s embarrassing to discuss, it’s upset-

ting to discuss. If she speaks a little low and you

can’t hear very well just let us know and we will

erank up the microphone and do everything that

we can to insure that you hear every bit of this,

because every bit of it is going to be very impor-

tant. I will also have Jane McCormick, who is

the sexual abuse expert with the Cabinet for

Human Resources. Jane has investigated the

ease at length. And I am going to have her

take the stand and tell you something about sexual

abuse of children — what she knows about it, and

what she knows about this case as it relates to her

background. We have rebuttal witnesses that we

may be using later on, but that will be my case in

chief, because I don’t want to bog you down at the

beginning here with a lot of extra information to

consider. I just want you to hear what happened.

— Thank you. (T.E. I, pages 40-42).

6

After the close of the Commonwealth’s opening

statement, trial counsel moved for a ‘‘directed ver-

dict of acquittal’? on the ground that the opening

statement was insufficient. (Transcript of State Evi-

dence, page 43). The Trial Court overruled the mo-

tion: ‘‘If it is going to be thrown out on that kind of

technicality the Court of Appeals will have to do it.’’

(Transcript of State Evidence, page 48). The Trial

Judge further added ‘‘Whether the Court of Appeals

will rule that the Judge advising the jury of the

charges relieves the Commonwealth’s Attorney of her

duty to advise the jury of the charges in this rule, we

will have to wait and see.’’ (Transcript of State Evi-

dence, page 49).

The Court of Appeals did reverse the conviction for

that very reason. The Court of Appeals, slip opinion

at 4 (App. page 4), stated in part:

Therefore, while a statement of the evidence is not

mandatory, the jury, as opposed merely to the

veniremen of the jury pool, must be made aware

during the opening statement by the Common-

wealth of information of a nature such as that

contained in the indictment. In this respect, it

cannot be assumed that the jurors ‘‘comprehend

the issue they are sworn to well and truly try.”

Galloway v. Commonwealth, 5 KLR 213, 11 Ky.

Op. 951 (1883). Hence, the office of an opening

statement by a prosecuting officer is to state the

nature of the charge against the defendant and the

law and evidence relied in support of it and to pre-

pare the minds of the jurors for evidence to be

heard. Mills v. Commonwealth, 310 Ky. 240, 220

7

S. W. 2d 376 (1949); Turner v. Commonwealth,

Ky., 240 S. W. 2d 80 (1951) ; Shepherd v. Common-

wealth, Ky., 322, S. W. 2d 115 (1959). The Com-

monwealth having failed to do more than state the

statutory designation of each charge and the names

of its witnesses, failed to comply with RCr 9.42.

After granting discretionary review, the Kentucky

Supreme Court Reversed:

‘‘It is the opinion of this Court that the Court of

Appeals totally ignored the language of Calhoun,

supra, at page 224, in which this Court stated:

Since we have concluded that RCr 9.42 was not

intended to do more than preserve the necessity of

apprising the jury of the nature of the charges,

it follows that a statement of the evidence is not

mandatory, even though a blindly literal construc-

tion would make it so. That such a construction

would lead to an entirely impracticable result is

an addition basis for our determination that it was

not so intended.

‘‘However, it is manifestly clear that the proce-

dure utilized here — viz., the reading of the indict-

ment by the judge and the opening statement it-

self by the prosecutor — not only apprised the jury

of the charges but also included a statement of the

evidence.”’

Petitioner now seeks review by this Court.

REASONS FOR GRANTING THE WRIT

The Opinion Below Conflicts with United States v. Dietrich’,

Rose v. United States’, Webb v. United States* and the

Due Process Clause of the United States Constitution

as Well as Decisions in Many Jurisdictions. The Pres-

ent Case Presents an Appropriate Vehicle for Decid-

ing an Important Question of Constitutional Law Re-

garding Defining the Role of the Prosecutor in Appris-

ing the Jury of the Charges Facing a Defendant and

Due Process.

A. THE QUESTION PRESENTED IS NARROW AND

PROPERLY BEFORE THE COURT IN AN APPRO-

PRIATE CONTEXT.

This Court is asked to decide whether, as a matter

of due process, a prosecutor must inform a jury of the

specific charges facing a criminal defendant or if the

prosecutor is relieved of this duty when a trial judge

reads an indictment although there is a state criminal

rule which states that a prosecutor shall state the

charges. This case is an appropriate vehicle to resolve

this important constitutional question by deciding and

determining conclusively what role the prosecutor and

Judge must play in a criminal trial to apprise the jury

of charges facing a defendant so he gets a fair and im-

partial trial.

The lack of an opening by the Commonwealth pre-

judiced the Appellant’s rights to a fair trial. The jury

had no outline of the evidence the Commonwealth

2United States v. Dietrich, 10 Cir., 126 F. 676.

3Rose v. Umted States, 149 F. 2d 755 (1945).

4Webb v. United States, 191 F. 2d 512 (1951).

9

would have to present in order to convict the defend-

ant. The jury needed the outline of the charges

against the accused and the law and the facts that the

prosecution would rely upon to support their case.

This the jury needs so they will understand testimony

as it falls from the lips of witnesses. Criminal Code

Procedures § 220, Turner v. Commonwealth, Ky., 240

S. W. 2d 80 (1951).

The record in this case is an appropriate context in

which to address this issue because the federally con-

stitutional question was properly presented below and

was directly addressed by both Kentucky’s appellate

Courts.

Another reason why this case is an appropriate ve-

hicle to decide this question is that the facts illustrate

a situation where if a jury is not specifically informed

of the charges facing a defendant and what elements

must be proven by the Commonwealth, the emotion and

public outery against this type crime will alone con-

vict the defendant.°

B. THE QUESTION PRESENTED IS AN IMPORTANT

ISSUE OF FEDERAL CONSTITUTIONAL LAW

WHICH SHOULD BE DECIDED BY THIS COURT.

The Due Process Clause of the Fourteenth Amend-

ment guarantees trial by an impartial jury in state

5As stated in Carrier v. Commonwealth, Ky. 356 S, W. 2d 752

(1962) since the time Lord Hale, admonished, ‘‘it must be re-

membered that this is an accusation easily to be made and hard

to be proved, and harder to be defended by the party accused,

though ever so innocent.”’

10

criminal prosecutions. Duncan v. Louisiana, 391 U. S.

145, 88 S. Ct. 1444, 20 L. Ed. 491 (1968).

‘*In essence, the right to jury trial guarantees to

the criminally accused a fair trial by a panel of

impartial, ‘indifferent jurors . . . A fair trial in

a fair tribunal is a basic requirement of due proc-

ess.” In re Murchison, 349 U. S. 133, 136. In the

ultimate analysis, only the jury can strip a man

of his liberty or his life. In the language of Lord

Coke, a juror must be as indifferent as he stands

unsworn. Co. Litt. 155b. His verdict must be

based upon the evidence developed at the trial.’’

Irwin v. Dowd, 366 U.S. 717, 722; 81 S. Ct. 1639,

1642, 6 L. Ed. 2d 751, 755 (1961).

In United States v. D’ Alora, 585 F. 2d 16 (1978)

it was stated by this court that the prosecutor has a

duty to ‘‘outline the evidence fairly for each count in

the indictment”’

When specific guarantees of the Bill of Rights are

involved, the United States Supreme Court takes spe-

cial care to assure that prosecutional conduct in no way

impermissibly infringes them. Donnelly v. DeChristo-

foro, 416 U.S. 637, 40 L. Ed. 2d 431, 94 S. Ct. 1868.

There is no question of the power of a trial court

to direct a verdict upon the opening statement of coun-

sel. Best v. District of Columbia, 291 U. S. 411, 415,

54 8. Ct. 487, 78 L. Ed. 882; Stuthman v. United States,

8 Cir., 67 F. 2d 521, 523.

The importance of this question of due process in

trial procedure can best be seen when the lack of uni-

formity of the Criminal Procedure Rules of different

11

states are viewed. Under some state statutes and

rules an opening statement is required or mandatory.

State v. Stahl, 107 8. 2d 670, 236 La., 362; People v.

Clayton, 211 N. W. 42, 236 Mich. 692; State v. Deppe,

286 S. W. 2d 776. In other states an opening is not

required. People v. Gomez, 283 P, 2d 949, 131 Colo.

567; People v. Arnold, 250 P. 168, 199 C. 471.

Omissions cannot be supplied by the Trial Court.

The Trial Court cannot be impartial and dispassionate

if it supplies omissions on the part of the prosecution

and when doing this gives an appearance of advocacy.

Archer v. Port Clinton, 35 Ohio App. 2d 88, 215 N. E.

2d 707. In a trial by jury, the judge is not a mere

moderator but is the governor of the trial for the pur-

pose of assuring its proper verdict and it’s function

is to conduct the trial in an orderly way with a view

to elicit the truth and attain justice between the par-

ties; the Judge must always be calmly judicial, dis-

passionate and impartial and should sedulously avoid

all appearances of advocacy. United States v. Hick-

man, 592 F. 2d 931 Ky. (1979).

C. THE OPINION BELOW CONFLICTS WITH DIE-

TRICH; ROSE, WEBB, AND ROBLES AND THE

DUE PROCESS CLAUSE OF THE UNITED STATES

CONSTITUTION.

In Lickliter v. Commonwealth, 60 S. W. 2d 355

(1933) the office of an opening statement was permis-

sive, however the reading of the indictment was man-

datory. If the clerk or the Commonwealth’s Attorney

failed to read the indictment to the jury then it was

12

grounds for reversal. Farris v. Commonwealth, 111

Ky. 236, 23 KLR 580, 63 S. W. 615 (1901). When

Kentucky adopted the Rules of Criminal Procedure

(effective January 1, 1963), these new rules abandoned

this requirement. The Criminal Code of Practice § 220

provided as follows: ‘‘The attorney for the Common-

wealth may then state to the jury the nature of the

charge against the defendant and the law and evidence

upon which he relies in suport of it.’”’ In the process

of transition to RCr 9.42(1) the word ‘‘may’’ became

‘*shall’’.

‘‘The attorney for the Commonwealth shall state

to the jury the nature of the charge against the

defendant and the law and evidence upon which he

relies in support of it.’’

Statutory instructions, KRS 446.080 deems the

word ‘‘shall’’ in all statutes as meaning mandatory not

permissive.

It is well settled that a ‘‘jury must be fairly ap-

prised of the nature of the charges against the defend-

ant.’’ Robles v. United States, 9 Cir. 279 F. 2d, 401,

403 (1960). Some statement informing the jury of

the nature of the charge is fundamental and indispens-

able otherwise, as the Court suggested in Galloway v.

Commonwealth, 5 KLR 213, 11 Ky. Op. 951 (1883),

it cannot be assumed that the jurors ‘‘comprehend the

issue they are sworn to well and truly try.’’ In Cal-

houn v. Commonwealth, 378 S. W. 2d 222 (1984) which

Kentucky’s Supreme Court cites, the indictment was

read by the Commonwealth in lieu of opening state-

13

ment which sufficed however in the case at hand, the

Judge read the indictment to the veniremen. The Ken-

tucky Supreme Court has held that if the trial Judge

reads the indictment to the jury pool before voir dire

that is sufficient so then the trial can commence with-

out even giving an opening even though one is required

under RCr 9.42(a). Does the Judge now supply the

missing parts so the Commonwealth can meet its bur-

den of proof? Kentucky’s highest Court has appar-

ently held that the Judge can even though Federal

Courts have held that he ‘“‘must avoid all appearances

of advocacy’’. United States v. Hickman, Ky, 592

F. 2d 93 (1979).

D. THE OPINION BELOW CONFLICTS WITH DECISIONS

IN MANY STATE AND FEDERAL JURISDICTIONS.

Neither the Attorney General nor the Courts below

relied upon a single non-Kentucky authority. Nu-

merous Courts have dealt with this situation and have

reached results directly opposite to that reached below.

In People v. Kurtz, N. Y. 414 N. E. 2d 699 (1980),

the prosecutor as in the instant case, gave an opening

statement which was a brief summary of the evidence

and a list of the witnesses and failed to delineate any

particular offenses or how the offenses were to be

proven. The New York Court of Appeals ruled that

the prosecutor failed to satisfy the statutory require-

ment that the prosecutor make an opening statement to

the jury. Further, an overwhelming majority of

Courts faced with motions to dismiss because of the

inadequacy of the prosecutor’s opening statement feel

14

the motion should be denied unless two tests are met.

The two tests are 1. that it is clearly apparent from

the opening statement that the defendant cannot be

lawfully convicted and 2. then only after the prosecu-

tor has been made aware of the difficulty and fails or

is otherwise unable to correct it. (See, e.g., Hanley

vy. United States, 5 Cir., 416 F. 2d 1160, Cert. den.

397 U.S. 910, 905 8S. Ct. 908, 25 L. Ed. 2d 91, United

States v. Dietrich, 10 Cir., 126 F. 676. Chatman v.

State, 164 Ind. App. 97, 326 N. E. 2d 839; State v.

Gray, 423 S. W. 2d 776 (Mo.) In Petitioner’s case,

the prosecution was made aware and failed to correct.

The Commonwealth failed to state with sufficiency any

charge.

People v. Kurtz, supra, further held that because

the dismissal was permissible, because ‘‘the defendant,

by deliberately choosing to seek termination of the pro-

ceeding against him on the basis unrelated to factual

guilt or innocence of the offense of which he is accused,

suffers no injury cognizable under the Double J eopardy

Clause’. United States v. Scott, 4837 U. S. at pages

98-99, 98 S. Ct. 2187; cf. People v. Bailey, 47 N. Y. 2d

965, 419 N.Y. S. 2d 956, 393 N. E. 2d 1029.

Petitioner submits that the conflict between Ken-

tucky and these and other state and federal jurisdic-

tions is another important reason for this court to

grant review.

15

CONCLUSION

The present case presents the essential, yet still

unclear, constitutional question of who in a trial pro-

ceeding must apprise the tryers of fact, the jury, of

the charges facing the defendant. Who has the bur-

den to show a crime has been committed and committed

by the defendant. For the reasons stated above, a writ

of certiorari should be issued to review the opinion of

the Supreme Court of Kentucky.

Respectfu oh

Ss

. NNEMAN

204 N. Mulberry St.

Elizabethtown, KY 42701

(502) 765-2139

Counsel for Petitioner

APPENDIX

la

OPINION RENDERED: MAY 2, 1986; 10:00 A.M.

NOT TO BE PUBLISHED

COURT OF APPEALS OF KENTUCKY

No. 85-CA-2210-MR

Jimmie L, BeasLey - - - - - - Appellant

v.

CoMMONWEALTH OF KENTUCKY - - - Appellee

Appeal from Hardin Circuit Court

Honorable William S. Cooper, Judge

Action No. 84-CR-94

REVERSING AND REMANDING

Berore: Cuiayton, Lester, and Reynoups, JupcEs.

Ciayton, Jupce. Jimmie L. Beasley appeals from a judg-

ment of the Hardin Circuit Court sentencing him to con-

current sentences of imprisonment of five, ten, and eight

years based upon his trial and conviction on charges of

first-degree sexual abuse, second-degree rape and second-

degree sodomy. Now on appeal, Beasley argues that the

trial court denied him his constitutional right to due proc-

ess: 1) By denying him the opportunity to introduce testi-

mony that the victim, his 16-year-old step-daughter, once

reached into a boy’s pocket to remove a rabbit’s foot he

had taken from her, 2) By refusing to direct a verdict of

acquittal following the opening statement of the Common-

wealth, 3) By allowing his conviction without adequate

evidence of his guilt, 4) By permitting inflammatory state-

ments and personal expressions of opinion to be made dur-

2a

ing the Commonwealth’s closing argument; and finally,

5) By abusing its discretion by denying his motion for

probation.

On October 1, 1984, appellant was indicted by the

Hardin County Grand Jury. By its three counts, the in-

dictment charges first that Beasley, from 1976 through

1981, committed first-degree sexual abuse upon Jessica

Decker, by having sexual contact with her when she was

less than 12 years of age. Count II charges the appellant

with committing second-degree rape upon Jessica in the

spring of 1982 when he had sexual intercourse with her

when she was less than 14 years of age. Count III, the

final count, charges Beasley with committing the offense

of second-degree sodomy on or about the period from 1976

~ through 1981 by engaging in deviate sexual intercourse with

Jessica when less than fourteen years of age.

On April 19, 1985, trial was begun, the assistant county

attorney acting as special prosecutor. Voir dire was had,

during which time the indictment was read to the venire-

men by the trial court. Following selection and empanel-

ment of the jury, the Commonwealth gave its opening state-

ment. In effect, that statement sets out only that the

charges ar sexual abuse, sodomy and rape and that the vic-

tim will testify along with a social worker who will testify

about “sexual abuse of children.” No further reference to

the charges, or the evidence to be introduced in support of

them, was made. At the close of the statement, defense

counsel objected requesting a directed verdict of acquittal,

“as the prosecution made no indication whatsoever of what

it intends to prove, or will prove.” Following an incham-

bers hearing, the trial court denied the defendant’s motion,

but conceded that defendant had a “very good issue on

appeal.” We agree, and are reluctantly compelled to re-

verse and remand the judgment of the Hardin Circuit

Court based upon the Commonwealth’s failure to comply

3a

with RCr 9.42(a). As for the remaining issues raised on

appeal, we need not devote extended discussion to them

other than to observe that we believe them to be without

substantial merit.

Criminal Rule 9.42(a) expressly provides that,

The attorney for the Commonwealth shall state to

the jury the nature of the charge and the evidence upon

which he relies to support it;

(our emphasis).

While appellate judicial authority interpreting the cur-

rent version of this portion of the rule is sparse, the case

law in existence indicates that “some statement informing

the jury of the nature of the charge is fundamental and in-

dispensible .” Calhoun v. Commonwealth, Ky., 378 S. W. 2d

222, 224 (1964) (citing Galloway v. Commonwealth, 5 K.L.R.

213, 11 Ky. Op. 951 (1883)). In Calhoun, appeal was taken

from a conviction of voluntary manslaughter based upon

the failure of the Commonwealth to do no more than read

the indictment during its opening statement. Pointing to

the statutory reference to stating the evidence found in

RCr 9.42(a), Calhoun argued he was prejudicially sur-

prised by evidence later introduced at trial given the state’s

failure to make reference to it during opening statement.

Rejecting this argument, the Court instead held that the

reading of the indictment to the Jury, although not required

under the present rules, was adequate to satisfy the re-

quirement that the jury be apprised of the nature of the

charge and the evidence relied upon to support it. Jd. at

224.

Therefore, while a statement of the evidence is not

mandatory, the jury, as opposed merely to the veniremen

of the jury pool, must be made aware during the opening

statement by the Commonwealth of information of a nature

4a

such as that contained in the indictment. In this respect,

it cannot be assumed that the jurors “ ‘comprehend the

issue they are sworn to well and truly try.” Galloway,

5 K.L.R. 213, 11 Ky. Op. 951 (1883). Hence, the office of

an opening statement by a prosecuting officer is to state

the nature of the charge against the defendant and the law

and evidence relied in support of it to prepare the minds of

the jurors for evidence to be heard. Mills v. Common-

wealth, 310 Ky. 240, 220 8S. W. 2d 376 (1949); Turner v.

Commonwealth, Ky., 240 S. W. 2d 80 (1951) ; Sheppard v.

Commonwealth, Ky., 322 S. W. 2d 115 (1959). The Com-

monwealth having failed to do more than state the statutory

designation of each charge and the names of its witnesses,

failed to comply with RCr 9.42.

Accordingly, the judgment is reversed and remanded

for retrial.

Ati Concur.

Attorney for Appellant:

PHYLLIS K. LONNEMAN

204 N. Mulberry Street

Elizabethtown, KY 42701

Attorney for Appellee:

DAVID A. SMITH

Assistant Attorney General

Capitol Building

Frankfort, KY 40601-3494

DAVID ARMSTRONG

Attorney General

ibe Rts SN nA ee My A a. a

PA ad ay Bill an: CA

5a

RENDERED: APRIL 2, 1987

NOT TO BE PUBLISHED

SUPREME COURT OF KENTUCKY

No. 86-SC-386-DG

CoMMONWEALTH OF KENTUCKY . . Movant

v.

Jimmie L. BeasLEY-~ - - - - Respondent

On Review from the Court of Appeals

No. 85-CA-2210-MR

(Hardin Circuit Court No. 84-CR-94)

MEMORANDUM OPINION OF THE COURT

REVERSING

Respondent Beasley was indicted for and found guilty

of first-degree sexual abuse, second-degree rape, and sec-

ond-degree sodomy. The case was called for trial in April,

1985. The clerk called the roll and ascertained the pres-

ence of the entire panel, and the veniremen were sworn

to make true and correct answers to such questions as

might be asked them on voir dire. At this juncture, the

presiding judge, Hon. William S. Cooper, introduced the

defendant and his attorney and then proceeded to thor-

oughly describe the contents of and charges contained

in the indictment. He further informed the jury that the

defendant had entered a plea of not guilty to these charges,

that he was presumed innocent until proven guilty beyond

a reasonable doubt, and admonished the jury that “the in-

6a

dictment is not evidence against the accused, and affords no

inference of his guilt.”

During voir dire, the prosecutor sought to again read

the indictment, but the defendant objected on the grounds

that “the charges had been read and the court had admon-

ished the jury.” This objection was sustained. After the

12 jurors were empaneled, the prosecutor made a brief

opening statement in which she again stated the charges,

the name and age of the victim, the name of an expert she

intended to call, and the fact that the victim was the only

eyewitness to the crimes. Thereafter, counsel for Beasley

moved for a directed verdict of acquittal on the ground that

the opening statement was insufficient under RCr 9.42(a),

which reads: “The attorney for the Commonwealth shall

state to the jury the nature of the charge and the evidence

upon which he relies to support it.”

The trial judge denied the motion, stating “If it’s going

to be thrown ont on that kind of technicality, the Court

of Appeals will have to do it.” The Court of Appeals

promptly accommodated Judge Cooper, and reversed the

conviction.

The principal reason given by the Court of Appeals

was the case of Calhoun v. Commonwealth, Ky., 378

S. W. 2d 222 (1964), in which this court held that a reading

of the indictment by the prosecutor after the jury was

empaneled was sufficient without any opening statement.

The question presented in this case never arose in the

Calhoun case, where the indictment was read by the judge

before the final 12 were sworn to try the case.

It is the opinion of this court that the Court of Appeals

totally ignored the language of Calhoun, supra, at p. 224,

in which this court stated:

Since we have concluded that RCr 9.42 was not in-

tended to more than preserve the necessity of appris-

et Bans

ia

ing the jury of the nature of the charge, it follows that

a statement of the evidence is not mandatory, even

though a blindly literal construction would make it

so. That such a construction would lead to an entirely

impracticable result is an additional basis for our de-

termination that it was not so intended.

We are cited no case requiring that the indictment be

read by the prosecutor himself, or stating that the read-

ing of the indictment by the judge is not sufficient, or at

what interval it should be read. However, it is manifestly

clear that the procedure utilized here—viz., the reading

of the indictment by the judge and the opening statement

itself by the prosecutor—not only apprised the jury of the

charges but also included a statement of the evidence. We

would even note that the respondent objected to the read-

ing of the indictment by the prosecutor.

The Court of Appeals is reversed, and the judgment of

the Hardin Cireuit Court is affirmed.

All concur.

Attorney for Appellant:

DAVID L. ARMSTRONG

Attorney General

Capitol Building

Frankfort, KY 40601

DAVID A. SMITH

Assistant Attorney General

Attorney for Appellee:

PHYLLIS K. LONNEMAN

204 North Mulberry Street

Elizabethtown, KY 42701

8a

a HARDIN CIRCUIT COURT

NINTH JUDICIAL DISTRICT

DIVISION 1

Case No. 84-CR-94

August Term A.D., 1984

The Commonwealth of Kentucky

Against .

Jimmie L. Beaslie Sexual Abuse First Degree

Rape Second Degree

Sodomy Second Degree

CHARGE

K.R.S. 510.110

K.R.S. 510.050

K.R.S. 510.080

The Grand Jurors of the County of Hardin, the name and by the

authority of the Commonwealth of Kentucky, charge:

Count I: That on or about the period from 1976 through 1981,

in Hardin County, Kentucky, the above named Defendant com-

mitted the offense of Sexual Abuse First Degree when he did have

sexual contact with Jessica Decker, a person less than 12 years

of age.

Count II: That on or about the Spring, 1982, in Hardin County,

Kentucky, the above named Defendant committed the offense of

Rape Second Degree when he had sexual intercourse with Jessica

Decker, a female less than 14 years of age.

Count III: That on or about the period from 1976 through 1981,

in Hardin County, Kentucky, the above named Defendant com-

mitted the offense of Sodomy Second Degree by engaging in de-

viate sexual intercourse with Jessica Decker, a person less than

14 years of age.

9a

Against the peace and dignity of the Commonwealth of Kentucky.

Witnesses: Jane McCormack

Jessica Decker A TruE Bru

(s) John C. Roseberry

Foreman

October 1, 1984

RecetveD, from the Foreman of the

Bond $ Grand Jury, in their presence, and

filed in open Court.

Stand on Bond $

Artest: David Owsley, Clerk

Summons Indictment Hardin Circuit Court

(s) Wm. 8. Cooper (s) By: Judy Boone, D.C.

Judge, 9th Judicial District

10a

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1987

JimMiE L. BEasLey - - - - - - Petitioner

v.

CoMMONWEALTH OF Kentucky - - - Respondent

NOTICE OF APPEARANCE

The Clerk will enter my appearance as counsel for Pe-

titioner. I certify that I am a member of the bar of the

United States Supreme Court. The Clerk is requested to

notify the undersigned e of by regular

FO

mail.

° NNEMAN

204 N. Mulberry St.

Elizabethtown, KY 42701

(502) 765-2190

Counsel for Petitioner

ee la me

lla

No.

IN THE

SUPREME COURT OF THE UNITED STATES

Mctober Term, 1987

Jimmigz L. Beasiry - - - - - - Petitioner

v.

CoMMONWEALTH OF Kentucky - - - Respondent

CERTIFICATE OF SERVICE

> * * > * co .

I, Phyllis K. Lonneman, counsel for Petitioner, certify

that the attached Petition for Writ of Certiorari, Appen-

dix, and notice of Appearance was mailed to the Office

of the Clerk of the United States Supreme Court, Wash-

ington, D.C. 20543, and to Counsel for Respondent, Hon.

David Smith, Attorney General, Commonwealth of Ken-

yr by Capitel Building, Frankfort, Kentucky 40601, this

Vac day oi , 1987, by personally depositing

same in a Phited States mail box, first-class postage paid.

SUBSCRIBED AND Sworn to-hefore me by Phyllis K.

ngjeman on tis ay of.

Notary Public

Puytus K. LonnemMan

Attorney at Law

Member, Bar of the

United States Supreme Court

, — 7

My Commission expires: £ ee