On petitions for writs of certiorari to the Supreme Court of
Kentucky.
The petitions for writs of certiorari are denied.
Justice BRENNAN, with whom Justice MARSHALL joins,
dissenting.
These petitions present the question whether the decision of the
Supreme Court of Kentucky rests upon an independent and adequate
state procedural ground that bars this Court's review of
petitioners' constitutional claim, inter alia, that their
convictions were based on a record lacking sufficient evidence.
Because the question of when and how failure to comply with state
procedural rules precludes our consideration of a federal
constitutional claim is itself a federal question, Henry v.
Mississippi,
379 U.S.
443, 447-448, 567-569 ( 1965), and because I have serious
doubts whether the Kentucky Supreme Court could properly insist on
compliance with the procedural rule it invoked, I dissent from the
denial of certiorari.
Petitioners Carpenter, Borders, and Blair were convicted in a
Kentucky trial court of wanton endangerment in the first degree and
criminal mischief in the third degree. The charges stemmed from the
allegation that they fired a shotgun at businesses and automobiles,
injuring one person and damaging property. All three petitioners
moved for directed verdict of acquittal at the close of the
Commonwealth's case, and also moved for new trial after the jury
verdict. Both motions were grounded on claims that the evidence was
insufficient to sustain guilty verdicts. However, no petitioner
Page 449 U.S.
962 , 963
moved for a directed verdict on that ground at the close of all
the evidence.
The Kentucky intermediate appellate court entertained
petitioners' appeals from their convictions, and set them aside
after finding that the evidence was insufficient to sustain the
convictions. [
Footnote 1] The
Supreme Court of Kentucky affirmed as to Carpenter and Borders, but
reversed as to Blair . The court rejected the Commonwealth's
argument that under state procedural law, Kimbrough v.
Commonwealth,
550
S.W.2d 525, 529 (Ky.1977), petitioners Carpenter and Borders'
failure at the close of all the evidence to move for a directed
verdict for insufficiency of the evidence forfeited their right of
review on that ground. Citing Vachon v. New Hampshire,
414 U.S.
478, 480, 665 (1974), the Kentucky Supreme Court not only held
that "the evidence was insufficient" but also concluded that "the
record before us contains no relevant evidence linking Carpenter
and Borders to the charged offenses." ( Emphasis added.) Blair's
case differed, the Court held, because there was " relevant
evidence" as to him. See Thompson v. Louisville,
362 U.S.
199, 206, 629 (1960). The court therefore applied the Kimbrough
rule and held that Blair had waived his right to raise the
insufficiency-of-the-evidence issue on appeal.
The Commonwealth filed a petition for rehearing. This time, the
Kentucky Supreme Court reversed itself and reinstated the
convictions of Carpenter and Borders. The court held that, "as
clarified in Kimbrough , . . . in order for the issue of the
sufficiency of the evidence to be preserved for appellate review,
the party wishing to use the insufficiency as a basis for his
appeal must have moved for a directed verdict at the close of all
the evidence, not just at the close of the Commonwealth's case in
chief."
592
S.W.2d 132, 133 (1979).
Page 449 U.S.
962 , 964
But Kimbrough was decided eight months after petitioners' trial
and announced new Kentucky law. Prevailing Kentucky law at the time
of the trial embodied the procedural rule that the issue of
insufficiency of the evidence was preserved for appellate review
when the motion for a directed verdict was made either at the close
of the Commonwealth's case or at the close of all the evidence.
Crain v. Commonwealth, 484 S.W.2d 839, 842 (Ky. 1972).2 Plainly
petitioners could not fairly be charged with anticipating the new
rule first announced eight months after their trial. This is thus
clearly a case where "[n]ovelty in procedural requirements cannot
be permitted to thwart review in this Court applied
Page 449 U.S.
962 , 965
for by those who, in justified reliance upon prior decisions,
seek vindication in state courts of their federal constitutional
rights." NAACP v. Alabama,
357 U.S. 449, 457-458,
1169-1170d 1488 (1958). See Henry v. Mississippi, 379 U.S., at 448,
n. 3, 85 S.Ct ., at 567, n. 3.3
These cases are particularly compelling given the two explicit
findings by the Supreme Court and Court of Appeals of Kentucky to
the effect that the evidence was not only insufficient but also
irrelevant to support the guilty verdicts of Carpenter and Borders.
[
Footnote 4] Although
petitioners may now obtain federal habeas corpus relief, it is
wasteful of sparse judicial resources to require resort to that
remedy since the issues presented are only questions of law and no
hearing is required to develop a record upon which to decide the
cases. [
Footnote 5]
Because I am unable to reconcile the Kentucky Supreme Court's
procedural holding in the present cases with its unambiguous
procedural rule applicable at the time of petitioners' trial, I
would grant the petitions for certiorari.
Footnotes
Footnote 1 The Court of
Appeals initially remanded for a new trial but six months later
withdrew that original opinion and substituted a new one reversing
the convictions outright.
Footnote 2 Every other case
cited by the Kentucky Supreme Court in support of the Kimbrough
procedural rule was decided after Kimbrough. The Commonwealth's
brief cites two cases, Delong v. Commonwealth, 225 Ky. 461, 9
S.W.2d 136, 137 (1928), and Harvey v. Commonwealth, 423 S.W.2d 535,
537 ( Ky.1967), both decided before petitioners' trial, for the
view that Kimbrough merely reiterated prior state law. If anything,
however, these two cases lend support for the opposite proposition
that, prior to Kimbrough, the court would review a claim that the
trial court erred in denying a motion for a directed verdict made
at the close of the prosecutor's case. In Delong, the defendants
claimed that the trial court's failure to direct a verdict on their
motion at the close of the Commonwealth's case was reversible
error. The appellate court noted that, instead of resting their
case after their motion, defendants proceeded to " take the stand
and . . . furnis[h] enough evidence themselves to sustain the
conviction." 225 Ky., at 463, 9 S.W.2d, at 137. The court therefore
declined to reverse the trial court, not because defendants failed
to renew their motions for directed verdicts, but precisely because
the court, after reviewing the full evidentiary record, found
sufficient evidence to support their convictions.
In Harvey, the court similarly concluded after a review of all
the evidence that "any deficiency which may have existed in the
Commonwealth's evidence" was rectified after defendant presented
his evidence. 423 S.W. 2d, at 537. For this reason, the court found
no reversible error in the trial court's failure to direct the
verdict at the conclusion of the Commonwealth's evidence. This
appellate posture also has been regularly followed by the Kentucky
courts in the civil context in reviewing a motion for a directed
verdict at the close of the plaintiff's case. E. g., Lyon v.
Prater,
351
S.W.2d 173, 175 (Ky.1961).
Footnote 3 The
Commonwealth's argument that Kentucky Criminal Rule 9.54(2),
applicable at the time of petitioners' trial, effectively embodied
the Kimbrough rule, is unavailing. The Kentucky Supreme Court
relied solely on Kimbrough and later cases in reversing itself and
did not so much as mention Rule 9.54(2). In any event, the Rule,
which deals with motions for jury instructions "fairly and
adequately presented," on its face does not support the Kimbrough
rule, and interpretative case law is similarly unsupportive.
Footnote 4 Because the
convictions of Carpenter and Borders were struck down under the "no
evidence" test, Thompson v. Louisville,
362 U.S.
199, 206, 629 (1960), it follows a fortiori that the
convictions were faulty under the now controlling
insufficiency-of-the- evidence constitutional standard, Jackson v.
Virginia,
443 U.S.
307, 318- 319, 2789 (1979). Moreover, although the Supreme
Court found "relevant evidence" linking Blair to the crime, this
would not end the inquiry as to him under the Jackson test.
Footnote 5 This is certainly
true at least as to Carpenter and Borders.
Comments
Be the first to comment
Leave a Comment