Opposition Brief — Kentucky v. Cosby (Nos. 89-872, 89-871)

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JEFYERSOW DISTRICT PUBLIC

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t hereby certify that a copy of this brief was deposited

in the U.S. Mail, first-claus postage prepaid, properly addressed

to Mr. David A. @mith and Ms. Carol Ullerich, Assistant Attorneys

General, Counsel for Petitioner, State Capitol weil diac Frankfort, °

Kentucky 40601-3494, on December 7/ , 1989. -

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J. DAVID NIEHAUS

BEST AVAILABLE COPY{

TABLE OF CONTENTS

TABLE OF AUTHORITIES

CONSTITUTIONAL AND STATUTORY PROVISIONS

INTRODUCTION

ARGUMENT I:

ARGUMENT II:

ARGUMENT III:

CONCLUSION

THE SUPREME COURT OF KENTUCKY PROPERLY

DECIDED THAT COSBY WAS DENIED A FAIR

TRIAL BECAUSE THE JURY COULD NOT KEEP THE

EVIDENCE SEPARATED. ANY PURPORTED

CONFLICT AMONG THE JURISDICTIONS

CONCERNING REDACTION IS IRRELEVANT TO

THIS CASE.

THE COURT SHOULD DENY THE PETITION

BECAUSE KENTUCKY IS ASKING THIS COURT FOR

AN ADVISORY OPINION CONCERNING THE

CONSTITUTIONAL UNDERPINNINGS OF

KENTUCKY’S CAPITAL APPELLATE REVIEW RULE.

THE KENTUCKY SUPREME COURT CORRECTLY

INTERPRETED STATE CRIMINAL STATUTES

GOVERNING KIDNAPPING AND MURDER. FEDERAL

COURTS DO NOT RE-INTERPRET STATUTES

CONSTRUED BY A STATE COURT OF LAST RESORT

AND THEREFORE THE WRIT SHOULD BE DENIED.

ee

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Uric

TABLE OF POINTS AND AUTHORITIES

Banner v. Davis, 886 F.2d 777, 779-781 (6th Cir., 1989)

Beck v. Alabama, 447 U.S. 625 (1980)

Blockburger v. U.S., 284 U.S. 299 (1932)

Brown v. Ohio, 432 U.S. 161, 165 (1977) }

Bruton v. U.S., 391 U.S. 123 (1968)

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

Cosby v. Commonwealth, 776 S.W.2d 367, 369 (Ky., 1989)

Cruz v. New York, 481 U.S. 186, 194 (1987)

Ice v. Commonwealth, 667 S.W.2d 671, 674 (1984)

Jones v. Commonwealth, 756 S.W.2d 462 (Ky., 1988)

Kentucky v. Stincer, 482 U.S. 730 (1987)

Kinser v. Commonwealth, 741 S.W.2d 648, 654 (Ky., 1987)

Michigan v. Long, 463 U.S. 1032 (1983)

Missouri v. Hunter, 459 U.S. 359, 366-368 (1983)

Muskrat v. U.S., 219 U.S. 346, 361 (1911)

Ohio v. Johnson, 467 U.S. 493, 499, fn. 8 (1983)

Phillips v. Commonwealth, Ky., 679 S.W.2d 235 (1984)

Richardson v. Marsh, 481 U.S. 200 (1987)

Sherley v. Commonwealth, Ky., 558 S.W.2d 615 (1977)

Whalen v. U.S., 445 U.S. 684, 691-692

Woodson v. North Carolina, 428 U.S. 280 (1976)

STATUTORY PROVISIONS

Rule 22, Rules of Supreme Court

Rule i7, Rules of Supreme Court

Ky. Rev. Stat. 532.075

Ky. Rev. Stat. 507.020(1) (a)

Ky. Rev. Stat. 509.040

Ky. Rev. Stat. 505.020

Ky. BR. Ceim. Proc. 9.16

Ky. R. Crim. Proc. 10.26

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TABLE OF POINTS AND AUTHORITIES CONT.

Ky. Rev. Stat. 507.020

Ky. Rev. Stat. 505.020(2) (a)

Ky. Rev. Stat. 509.040(1)

Ky. Rev. Stat. 509.040(2)

Ky. Rev. Stat. 501.030

Ky. Rev. Stat. 501.020

CONSTITUTIONAL PROVISIONS

Eighth Amendment, U.S. Constitution

Fourteenth Amendment, U.S. Constitution

Article III, U.S. Constitution

MISCELLANEOUS

1 Rotunda, et. al, Treatise on Constitutional Law, §2.13,

p- 98-100; 101-102 (1986)

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PAGE

10

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11

CONSTITUTIONAL AND STATUTORY PROVISIONS

Article III, §2, U.8. Constitution

The judicial power shall extend to all cases, in law and

equity, arising under this Constitution, the laws of the United

States, and treaties made, or which shall be made under their

authority ...

Ky. Rev. Stat. 532.075(2)

The Supreme Court shall consider the punishment as well

as any errors enumerated by way of appeal.

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INTRODUCTION

Pursuant to Rule 22 of the Rules of this Court

respondent, Teddy Lee Cosby, by counsel, moves the Court to deny

the petition for certiorari filed in this case by the Commonweaith

of Kentucky because petitioner does not state sufficient grounds to

demand the attention of this Court under the criteria set out by

Rule 17° The state has proposed three questions for review by

this Court. The first issue is whether Richardson v. Marsh,

(citation omitted) requires that all references to a defendant’s

existence be deleted from the confession of his non-testifying co-

defendant. In this argument the state claims that the Supreme

Court of Kentucky has misunderstood and alesgel ied the rule set out

in Bruton v. U.S., 391 U.S. 123 (1968) and Richardson v. Marsh, 481

U.S. 203 (1987) and argues that there is confusion among the

various jurisdictions arising from footnote 5 of Richardson v.

Marsh in which the Court expressly refused to deal with the

question of adequacy of redaction in co-defendant confession cases.

Kentucky lists a number of different results obtained, both before

and after this Court’s decision in Marsh and claims that there is

great confusion among the circuits and that this Court should

settle the question left open by footnote 5. Respondent answers

that this case does not present the issue raised by Kentucky. In

this case, the Supreme Court of Kentucky correctly applied Bruton

and Marsh to the facts of this case and found that it was

impossible to assume that the jury could keep the evidence

separated as to each defendant. That court therefore ruled that

separate trials were required. Obviously, such a ruling does not

deal with the question raised by the Commonwealth.

ithe statement of the case provided by Kentucky is an outline of

the evidence adduced which is mostly accurate except for its

interpretation of all facts in the light most favorable to the

prosecution. There are some specific factual errors that should be

noted. Cosby had some unspecified money problems, but according to

the witness who spoke about Cosby, “so does everybody for that

matter." (TE 6, 71). Cosby’s car payment was $150.00 every two

weeks. (TE 7, 14). Cosby was on vacation the week before the

robbery and was not even present to ask questions about receipts.

(TE 6, 79). Cosby never asked the witness any questions about

receipts, although he was present when Walls asked on a number of

eccasions. (TE 6, 79). Cosby’s wife was employed full-time during

this period. (TE 10, 56). The Commonwealth continues to try to

prove Cosby’s guilt by evidence primarily applicable to Walls.

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As to the second issue raised, Kentucky is asking this

Court for an advisory opinion. In this argument Kentucky maintains

that the Kentucky Supreme Court has misread Beck v. Alabama, 447

U.S. 625 (1980) and Woodson v. North Carolina, 428 U.S. 280 (1976)

in ruling that the statutory standard of review in capital cases

{Ky. Rev. Stat. 532.075) is but a codification of U.S. Supreme

Court mandate. [Cosby v. Commonwealth, 776 S.W.2d 367, 369 (Ky.,

1989)). Careful reading of the state court opinion reveals that

this comment is dicta because the "Ice" rule complained of is

merely an application of Ky. Rev. Stat. 532.075 and that the

decision of the Supreme Court of Kentucky, based on that statute,

is an adequate independent state ground of decision and therefore

not amenable to correction by this Court as a matter of federal

constitutional law. In addition, the opinion shows clearly that

review under the "Ice" standard reaches only unobjected to errors

that render the trial a miscarriage of justice. [776 S.W.2d at

369). Certainly, this Court would not let stand a conviction which

under “the totality of circumstances persuades [the) Court that the

defendant may not have been found guilty of a capital offense or

the death penalty may not have been imposed but for the unpreserved

error." [776 S.W.2d 369}. Therefore, on the merits, this Court

would reach no different result from that of the Supreme Court of

Kentucky. In any event, Kentucky was not injured by the "Ice" rule

in this case. The argument presented by Kentucky in this case is a

complaint about review of the issue presented in Question 3 of this

petition, concerning double jeopardy. Reference to the Kentucky

Supreme Court opinion shows clearly that this issue was not reached

under Ky. Rev. Stat. 532.075 or Ice v. Commonwealth, 667 S.W.2d

671, 674 (1984) but instead was decided under another state

appellate rule which allows review of cumulative punishment double

jeopardy cases even in the absence of timely objection. [776

S.W.2d at 372}. Under these circumstances, Kentucky has no

standing to complain hecause it was not injured by the application

of the so-called "Ice" rule. Kentucky’s request here for a review

of the federal constitutional issue is a request for an advisory

opinion which should be denied.

The third issue raised is a complaint about the Kentucky

Supreme Court’s handling of the cumulative punishment issue. In

its petition, Kentucky ignores the many recent decisions of this

Court in which it says that it will not override a state court’s

construction of its own statutes. The Supreme Court of Kentucky

has construed Ky. Rev. Stat. 507.020(1)(a) and Ky. Rev. Stat.

509.040 and has decided that the General Assembly of Kentucky did

not intend cumulative punishments for these offenses. Relying on

Ky. Rev. Stat. 505.020 the Supreme Court of Kentucky determined

that the offenses merge. As shown in Argument III of this

response, this Court has on several occasions stated that when the

state court of last resort construes statutes federal courts will

not overrule such a construction in determining double jeopardy

issues. Obviously, for this reason as well the petition for writ

of certiorari must be denied.

The issues set out above will be discussed in the order

presented.

I. THE SUPREME COURT OF KENTUCKY PROPERLY DECIDED THAT

| COSBY WAS DENIED A FAIR TRIAL BECAUSE THE JURY COULD

| NOT KEEP THE EVIDENCE SEPARATED. ANY PROPOSED

| CONFLICT AMONG THE JURISDICTIONS CONCERNING REDACTION

IS IRRELEVANT TO THIS CASE.

The Commonwealth of Kentucky has identified a conflict

among the jurisdictions concerning the correct interpretation of

footnote 5 of Richardson v. Marsh, 481 U.S. 200 (1987). Apparently

some courts interpret Marsh to require excision of any reference tc

the co-defendant of the non-testifying confessor while others do

not. (Petition, p. 11-12). The existence of such a controversy is

irrelevant to this case because the Supreme Court of Kentucky,

relying on its own Ky. R. Crim. Proc. 9.16 has ruled that Cosby is

entitled to a trial separate from that of Chris Walls, the non-

testifying confessor in this case. [Cosby v. Commonwealth, 776

S.W.2d 367, 369 (Ky., 1989))}. The Supreme Court of Kentucky ruled

"We are compelled to conclude that Cosby was so

badly prejudiced by the failure to provide

separate trials that his convictions must be

reversed. In the peculiar circumstances of

this case the jury could not individualize

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Cosby in his relation to the mass of evidence

represented by Walls’ statement."

The Kentucky court went on to note that an admonition as to the

correct use of this evidence was given, but not until the closing

argument by the co-defendant in which he tried to imply that Cosby

was the “blank” referred to in the statement. As the court noted,

". . « this was as likely to compound the error as to cure it.”

[776 S.W.2d at 369 and 370}. The court also later noted that

neither the prosecutor nor the trial judge was able to keep the

evidence straight. [776 S.W.2d at 370). From these premises

“(t)he only responsible conclusion is that in present circumstances

this [individualization of evidence) cannot be done.” (776 S.W.2a

at 370-371). It is for this reason that separate trials have been

ordered.

There is no question that the Supreme Court of Kentucky

applied Bruton v. U.S., 391 U.S. 123 (1968) and@ Richardson v.

Marsh, 481 U.S. 200 (1987) correctly. The only important inguiry

in a non-testifying co-defendant confession case is whether it is

safe to assume that the jury will follow its instruction not to use

the confession against anyone other than the person who made it.

(Bruton, 391 U.S. at 135-136; Marsh, 481 U.S. at 208: 221). If it

is safe, courts will assume that the jury used the evidence for its

proper, non-hearsay purpose and no confrontation issue arises.

(Marsh, 481 U.S. at 211). If it is not safe so to conclude, Bruton

requires courts to recognize that ". . . the practical and human

limitations of the jury system cannot be ignored.” (Marsh, 481

U.S. at 207, citing Bruton, 391 U.S. at 135-136). The issue then,

according to Marsh, is whether the jury can reasonably be expected

to forget what it heard in the co-defendant’s confession when it is

assessing the other defendant’s guilt. [481 U.S. at 208}. And, of

course, even if a confrontation error occurs, it, like other

constitutional errors, may be deemed harmless if the reviewing

court can say beyond a reasonable doubt that it did not affect the

jury’s determination. [Cruz v. New York, 481 U.S. 186, 194 (1987);

Chapman v. California, 386 U.S. 18 (1967)}. The ruling of the

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Supreme Court of Kentucky on this issue amounts to a paraphrase of

this Court’s holdings set out just above.

"The fundamental premise in Bruton v. United

States, supra, is that the confession of a co-

endant n utilized as evidence in a joint

trial is prejudicial nearsay as to the non-

confessing defendant to the extent that it

incriminates him, and cannot be used unless the

mame of the non-confessing defendant can be so

redacted or deleted that its use is harmless

beyond a reasonable doubt." [Cosby v.

Commonwealth, 776 S.W.2d at 370).

The Supreme Court of Kentucky has not misunderstood or misapplied

this Court’s precedents. Application of those precedents to the

facts of this case show that there was practically no possibility

that the jury would use Chris Walls’ confession correctly.

In this case the prosecutor began by saying in opening

that he could prove that Teddy Cosby was in the manager’s office at

Applegate’s Landing and that he was at Fisherman’s Park at the time

Kevin Miller was killed. (TE 6, 14). In response to Cosby’s

objection, the prosecutor said that he could not use the statement

to identify Cosby, but that he could use the statement to prove

what had happened. (TE 6, 15). During the course of argument of

the directed verdict at the close of the prosecutor’s case the

prosecution met respondent's argument that there was no proof that

he participated in the crimes by saying that "with the statement,

we know there was a second person who assisted Mr. Walls". (TE 10

48). The prosecution also pointed out that Walls and Cosby had

been together and that “"(wje know by Chris Walls’ statement that

@uring that time period is wher the crime did occur." (TE 10, 49-

50). As noted in the opinion, even the trial judge used Walls’

statement in determining the propriety of the directed verdict

motion made by Cosby. (776 S.W.2d at 370).

In ruling on respondent’s objection to the prosecutor’s

closing argument that Cosby actually stabbed Kevin Miller the trial

judge overruled saying that it was

“An argument incorporating a reasonable

inference from the evidence that has been

introduced . . . The evidence introduced is the

statement of Kevin (sic) Walls, the person that

was with him did the stabbing. The evidence by

the Commonwealth was that the person with him

was Teddy Cosby, thus the reasonable inference

that Teddy Cosby did the stabbing." (TE 11,

84).

Of course, the only evidence that any person other than Chris Walls

was at Fisherman’s Park where Kevin Miller was stabbed was Walls’

statement to police, which was inadmissible hearsay as to Cosby.

If the trial judge thought this was fair use of the contession,

there is little doubt that the jury would reach the same

conclusion.

During the course of this same closing argument the

prosecutor used Walls’ statement to tie Cosby to the car that Walls

used that night, and to argue that Cosby was the other person with

Chris Walls in the Applegate’s Landing office, armed with the

kitchen knife that was the purported murder weapon. (TE 11, 96;

100-101). Of course, again, the evidence used by the prosecutor

came from the statement made by Chris Walls. The only admonition

about the proper use of this confession came during the co-

defendant’s closing argument. (TE 11, 64). This argument preceded

the closing argument of the prosecutor. Obviously, the admonition

had little effect, because the prosecutor did not hesitate to use

Walls’ confession to establish facts that would link Cosby with the

offense. Thus, the Supreme Court of Kentucky correctly concluded

that “this [admonition] was as likely to compound the error as to

cure it." [Cosby, 776 S.W.2d at 369). There can be n> credible

argument that the jury did not use the statement of Chris Walls in

determining Teddy Cosby’s guilt. Certainly, no court could find

the use of such evidence harmless beyond a reasonable doubt. Thus,

Kentucky’s claim that the Supreme Court of Kentucky has

misunderstood Marsh and Bruton is simply wrong. This claim is

amply refuted in the state court opinion, particularly where the

Supreme Court of Kentucky acknowledges that Marsh states a rule

under which "a joint trial utilizing a properly redacted statement

is appropriate where given the totality of circumstances no

substantial prejudice will result." (Cosby, 776 S.W.2d at 370).

Kentucky’s claim on this point must be rejected. The fact that

there may be “confusion” among the jurisdictions as to footnote 5

of Marsh is not grounds to grant review in this case. In this case

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the prosecutor systematically used the co-defendant’s confession to

establish critical points of evidence against Cosby. Of course

redaction failed to prevent prejudice in this case. The only

confusion present here is Kentucky’s understanding of the Supreme

Court of Kentucky’s opinion. Review under these circumstances

should be denied.

II. REVIEW SHOULD BE DENIED BECAUSE KENTUCKY IS ASKING

THIS COURT FOR AN ADVISORY OPINION CONCERNING THE

CONSTITUTIONAL UNDERPINNINGS OF KENTUCKY’S CAPITAL

APPELLATE REVIEW RULE.

On page 13 of its petition, Kentucky points out that of

35 issues raised on direct appeal, 19 were unpreserved. Kentucky

also notes on page 13 that the Supreme Court of Kentucky reversed,

as to Cosby, on two grounds, one of which was unpreserved.

"(Question #3 herein)". Question #3 concerns the cumulative

punishment argument dealt with by the Supreme Court of Kentucky on

pages 372-373 of the Kentucky court opinion, On page 372 the

Supreme Court of Kentucky explicitly bases its review on the merits

on state court rules as follows

"Because this is a double jeopardy claim it

must be considered even though it was not

preserved by objection for appellate review.

Phillips v. Commonwealth, Ky., 679 S.W.2d 235

(1984); Sherley v. Commonwealth, Ky., 558

S.W.2d 615 (1977)". [Cosby, 776 S.W.2d at

972).

The double jeopardy question was reviewed under a Kentucky legal

principle which allows review of unpreserved cumulative punishment

double jeopardy arguments. The Supreme Court of Kentucky premised

its review explicitly on this rule by citing the cases set out in

the excerpt. On direct appeal to the State Supreme Court

respondent presented his claim under Ky. R. Crim. Proc. 10.26

(plain error rule) and Sherley v. Commonwealth, cited above.

(Appellant’s Brief, p. 97). This rule of Kentucky appellate law is

applied consistently in criminal law cases. [e.g. Kinser v.

Commonwealth, 741 S.W.2d 648, 654 (Ky., 1987), “of course a double

jeopardy violation can be reviewed despite the lack of

preservation."; Jones v. Commonwealth, 756 S.W.2a 462 (Ky., 1988),

"the appellant may properly raise a double jeopardy claim even

though it was not preserved by objection for appellate review.")}.

It is clear that review of the double jeopardy claim in this case

was based on state law dealing with double jeopardy claims and not

on any law dealing with death penalty cases. This basis of review

is a separate, adequate, and independent state ground as that

concept is defined by Michigan v. Long, 463 U.S. 1032 (1983) and

Kentucky v. Stincer, 482 U.S. 730 (1987). It is clear from the

face of the Kentucky Supreme Court opinion that it is not following

an Eighth or Fourteenth Amendment-compelled rule of review on this

particular issue. Therefore, this Court has no grounds for

assuming that the state court believed that its decision was

compelled by federal law. [Michigan v. Long, 463 U.S. at 1040-

1041}. Rather, the contrary conclusion is shown clearly in the

state court opinion.

Kentucky does not present the Court with a justiciable

controversy on this issue. Article III of the Constitution permits

the Court to decide only cases or controversies. Because Kentucky

does not show that it was injured by the ruling concerning Ky. Rev.

Stat. 532.075 (if it was a ruling) it has no standing to complain.

Even if the Court were to rule favorably on Kentucky’s argument

concerning Ky. Rev. Stat. 532.075 review, the ruling would have no

effect. Review of the double jeopardy argument was based on other

grounds. Therefore, Kentucky is asking this Court for an advisory

opinion, ". . . a function never conferred upon it by the

Constitution and against the exercise of which this Court has

steadily set its face from the beginning." (Muskrat v. U.S., 219

U.S. 346, 361 (1911); 1 Rotunda, et. al, Treatise on Constitutional

Law, §2.13, p. 98-100; 101-102 (1986)]. In this question Kentucky

asks the Court to decide whether the Kentucky Supreme Court has

misinterpreted the holdings of Beck v. Alabama, 447 U.S. 625 (1980)

and Woodson v. North Carolina, 428 U.S. 280 (1976), (Petition, p.

13-14) and is "laboring under the mistaken impression that the

death is different approach required in evidentiary matters also

requires a state court to abandon its rules of procedure."

(Petition, p. 15). But the Supreme Court of Kentucky used its own

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rules of procedure to reach and decide the question of double

jeopardy in Cosby’s case. Respondent therefore respectfully states

that any resolution of Kentucky’s claim about Beck and Woodson

would be irrelevant to this case. In any event, it is clear that

the comment concerning Beck and Woodson is simply dicta.

On page 369 of Cosby v. Commonwealth the court stated

that its rule of review set out in Ice v. Commonwealth, 667 S.W.2d

671, 674 (Ky., 1984) “is generated by KRS 532.075, the statute

specifying the duties of our Court in reviewing death penalty cases

- -". The court adopted this position because "(ijt is a

function of the General Assembly to say when and if the death

penalty shall be imposed, and this includes the right to prescribe

the special type of review of punishment and errors enumerated by

way Of appeal prescribed in KRS 532.075, limited only by the

Kentucky Constitution, the United States Constitution, and the

decisions of the United States Supreme Court." [776 S.W.2d at

369}. Fair reading of the state court opinion shows that review in

death penalty cases is a result of the Kentucky Supreme Court’s

construction of Ky. Rev. Stat. 532.075. Any discussion of this

Court’s cases is simply an explanation of the source of the "idea

of imposing a higher standard of review in cases where the death

penalty has been imposed ...". [776 S.W.2d at 369]. Therefore,

the state is asking this Court to review dicta comments made by the

Supreme Court of Kentucky. This is not a proper use of the

certiorari power. And, in any event, this Court certainly would

agree that any court should review an error, preserved or

unpreserved, that under the circumstances persuades the Court that

the defendant might not have been found guilty of a capital offense

or sentenced to death but for the error.. That is all the "Ice"

rule says. (776 S.W.2d at 369}. Because no useful purpose would

be served by consideration of Question #2, certiorari should be

denied.

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III. THE KENTUCKY SUPREME COURT CORRECTLY INTERPRETED

STATE CRIMINAL STATUTES GOVERNING KIDNAPPING AND

MURDER. FEDERAL COURTS DO NOT RE-INTERPRET

STATUTES CONSTRUED BY A STATE COURT OF LAST RESORT

IN CUMULATIVE PUNISHMENT DOUBLE JEOPARDY CASES.

In Banner v. Davis, 886 F.2d 777, 779-781 (6th Cir.,

1989) the basic principles of cumulative punishment analysis are

set out: (1) The double jeopardy clause protects against multiple

punishments for the same offense. [Brown v. Ohio, 432 U.S. 161,

165 (1977)}; (2) Whether punishments are "multiple" under the

double jeopardy clause is essentially a question of legislative

intent. [Missouri v. Hunter, 459 U.S. 359, 366-368 (1983)]; (3)

When assessing the intent of a state legislature, a federal court

is bound by a state court’s construction of that state’s own

statutes. (Missouri v. Hunter, 459 U.S. at 368}; and (4) The

Blockburger [(v. U.S., 284 U.S. 299 (1932)] test is simply a rule of

federal statutory construction. [Whalen v. U.S., 445 U.S. 684,

691-692; Banner v. Davis, 886 F.2d at 781).

In Ohio v. Johnson, 467 U.S. 493, 499, fn. 8 (1983) the

Court held that ". . . the Blockburger test does not necessarily

control the inquiry into the intent of the state legislature."

From this it is clear that Blockburger is not necessarily a test

for determining federal constitutional violations. Kentucky’s

reliance on the case as a federal test for determining cumulative

punishment violations (Petition, p. 19) is misplaced. The inquiry

here is not whether the Supreme Court of Kentucky may have

misapplied a federal standard. The inquiry rather is what types of

punishment the General Assembly of Kentucky intended to allow when

it enacted Ky. Rev. Stat. 507.020 and Ky. Rev. Stat. 509.040. The

only court authorized to make that determination is the Supreme

Court of Kentucky.

In its opinion, the Supreme Court of Kentucky applied Ky.

Rev. Stat. 505.020(2)(a) which provides that an offense merges with

another when it is established by proof of the same or less than

all of the facts required to establish the commission of the

(other) offense." [Cosby, 776 S.W.2d at 372]. The Kentucky court

noted that this is a statutory codification of Blockburger, but

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that the rule could not be applied in the abstract. Thus, under

the circumstances of this case, where the proof of murder is relied

on to establish the capital offense of kidnapping, "the offenses

merge." (776 S.W.2d at 373]. This is because ". . . [t]he

additional element that aggravates kidnapping to a capital offense

is the murder." [776 S.W.2d at 373]. The validity of this

conclusion is shown easily by reference to the statutes involved.

The jury in this case was instructed on intentional

murder and on kidnapping, capital offense. (TPR, 423-425).

Intentional murder is proved when the prosecutor shows that the

defendant, with the intent to cause the death of another, causes

the death of that: person or of a third person. [Ky. Rev. Stat.

507.020(1)(a)]. Kidnapping consists of unlawful restraint of

another with the intent to accomplish one of five unlawful

purposes. [Ky. Rev. Stat. 509.040(1)}. It is a capital offense

when the kidnapped person is not released alive. [Ky. Rev. Stat.

509.040(2)}. The phrase "when the victim is not released alive"

refers to the victim’s death caused by some aspect of the

kidnapping. [776 S.W.2d at 372]. This conclusion is compelled by

the limitation on criminal liability found at Ky. Rev. Stat.

501.030 which prohibits conviction of a criminal offense unless

there is the conjunction of a voluntary act or omission and a

culpable mental state as defined in Ky. Rev. Stat. 501.020. Murder

consists of the voluntary act of killing another and the conscious

purpose to do so. Certainly, the phrase not released alive is

broad enough to encompass such an act. Obviously, the Supreme

Court of Kentucky accepted respondent’s argument that this language

was broad enough to cover the murder of the kidnap victim. This

construction of Kentucky’s statutory language is not open to

question at this point. [Missouri v. Hunter, 459 U.S. at 368].

The Kentucky Supreme Court has determined, by a method provided by

the General Assembly of Kentucky [Ky. Rev. Stat. 505.020}, that the

General Assembly did not intend cumulative punishments for murder

and capital kidnapping. Because of this finding, the issue of

double jeopardy is closed. Because grant of certiorari on this

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issue could serve no useful purpose respondent respectfully moves

the Court to deny Kentucky’s request for certiorari.

CONCLUSION

For the reasons set out above the Court is urged to deny

the petition for writ of certiorari requested in this case.

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yy a Wa. \ ;

a Liou { Thou ere

J. DAVID NIEHAUS — DANIEL T. GOYETTE

DEPUTY APPELLATE DEFENDER OF THE JEFFERSON DISTRICT PUBLIC DEFENDER

JEFFERSON DISTRICT PUBLIC DEFENDER OF COUNSEL

200 CIVIC PLAZA

719 WEST JEFFERSON STREET

LOUISVILLE, KENTUCKY 40202

(502) 625-3800 —

COUNSEL FOR RESPONDENT

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