James v. Kentucky

PETITIONER:James
RESPONDENT:Kentucky
LOCATION:Franklin County Sheriff

DOCKET NO.: 82-6840
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: Kentucky Supreme Court

CITATION: 466 US 341 (1984)
ARGUED: Feb 28, 1984
DECIDED: Apr 18, 1984

ADVOCATES:
C. Thomas Hectus – on behalf of the Petitioner
Penny R. Warren – on behalf of the Respondent

Facts of the case

Question

Audio Transcription for Oral Argument – February 28, 1984 in James v. Kentucky

Warren E. Burger:

We will hear arguments next in James v. Kentucky.

Mr. Hectus, you may proceed whenever you are ready.

C. Thomas Hectus:

Mr. Chief Justice, and may it please the Court:

This case is here on petition for writ of certiorari to the Supreme Court of Kentucky.

The issue involved is whether or not the trial court was constitutionally required to admonish the jury that they could draw no adverse inference from petitioner’s failure to testify at his state criminal trial.

The Kentucky Supreme Court apparently applied a procedural bar to the relief requested, relying on this court’s decision in Carter v. Kentucky that although an instruction was constitutionally compelled, an admonition was not.

Implicitly, the Kentucky Supreme Court also ruled that as a matter of substantive constitutional criminal procedure, that petitioner was not entitled to an admonition regardless of Kentucky evidentiary rules.

Warren E. Burger:

Was there anything to prevent counsel, when the court ruled, to say I intend my motion in the sense of an instruction, an admonition or an instruction, in the alternative, treating them, even though they are not, treating them as though they are synonyms?

C. Thomas Hectus:

Certainly, Mr. Chief Justice, there is nothing requiring counsel from asking for relief in the alternative.

Warren E. Burger:

Nothing preventing him.

C. Thomas Hectus:

Nothing preventing him, and certainly there was nothing preventing the trial court from performing its obligation that once it was put on notice that the defendant wanted some sort of jury guidance, no matter how that jury guidance is phrased, whether as an admonition, an oral, authoritative communication to the jury, or as an instruction in writing containing the law of the case, certainly I think the judge was on notice as to the relief that the defendant wanted.

If he thought it was improper, I think he had fair notice under the Kentucky rules of criminal procedure to go ahead and give the instruction that is also mandated under those same rules upon timely request.

I think that this issue has great importance because of the fact that the petitioner in this case was tried on three separate and distinct charges.

He was tried for receiving stolen property, a handgun that had been stolen from the victim.

He was tried for a subsequent burglary.

And he was also tried for a still later rape, all of the same victim.

Petitioner presented no evidence in his behalf as to either the receiving stolen property or as to the burglary.

He presented only evidence as to his apparent lack of presence at the scene at the time of the rape.

So in other words, at the time this case went to the jury on the receiving stolen property charge, the only thing that the jury had before them was evidence that he was in fact in possession of a handgun which had been stolen.

There was no evidence showing that possession was in any way knowing, and I think in that particular case the absence of the admonition was critical.

As to the burglary, the only evidence of the burglary of May 1, 1981 of the victim’s residence linking the petitioner to that residence was one fingerprint on the inside of a door panel at petitioner’s apartment.

Warren E. Burger:

Well, when you emphasize one, would it have made any difference if there were eight of them?

C. Thomas Hectus:

I think it would have made a difference depending upon where those fingerprints were.

I think the locations of certain fingerprints are more incriminating than the location of the fingerprint in this case.

In this case the victim testified that petitioner had been in her apartment on several other occasions.

It is not unreasonable to assume that somebody entering or leaving an apartment might leave their fingerprint on the inside of a glass door panel as opposed to, for example, a safe breaking case where a defendant’s fingerprints are found on the inside of a safe to which he had no legal or proper access.

I think in this case that fingerprint was certainly neutral as to incriminating the defendant.

The defendant had asked for a severance of that particular charge from the other charges.

That severance was denied, and I think that that is one of the things that the Court should consider in considering the entire context of this case.

We are not merely speaking to petitioner’s rape conviction here which was subsequently enhanced in terms of sentencing to a life sentence on the basis of his being a persistent felony offender, which–

Sandra Day O’Connor:

Mr. Hectus, was the defendant in the case below represented by different counsel at trial?

C. Thomas Hectus:

–Yes, Justice O’Connor.

Sandra Day O’Connor:

And counsel, for whatever reason, did not request a written or present the court with a written instruction in this regard?

C. Thomas Hectus:

No, but I would like to point out to you–

Sandra Day O’Connor:

And Kentucky law, I take it, is perfectly clear that only written instructions will be given and that counsel has to present written instructions?

C. Thomas Hectus:

–It is perfectly clear that the trial court has an obligation to instruct the jury in writing.

It is not perfectly clear because it is not a matter of state law that the defendant has to tender written instructions in order to preserve that issue.

Kentucky rule of criminal procedure specifically provides that the defendant can request an instruction or by motion request an instruction or object to an instruction.

Certainly here there was an adequate motion made.

Sandra Day O’Connor:

And in Kentucky law… all right.

And in Kentucky law there has been a distinction made, has there not, between instructions and admonitions?

C. Thomas Hectus:

Absolutely.

An admonition has been defined in Kentucky law as any authoritative communication of the court to the jury regarding their duty or conduct as jurors.

I certainly think that with regard to the Fifth Amendment privilege, an admonition with regard to the defendant’s Fifth Amendment privilege and the use to which the jury should put that has to do with their duty as jurors.

So I think that we come squarely within the terms of an admonition.

As a matter of fact, this Court is well aware that oftentimes when Griffin errors are committed by prosecutors with regard to comment on the defendant’s failure to testify, the appropriate relief is for the court to admonish the jury that they can’t consider the defendant’s failure to testify.

I certainly don’t think that it would be logical to have to wait for an error of that magnitude before you are entitled as a matter of constitutional law to the relief that was requested in this case.

If I could get back procedurally, there are some other important points that I think the Court ought to consider with regard to the overall context of the request for the instruction, its importance to this case, and later with regard to the Commonwealth of Kentucky’s assertion of harmless error.

One, the judge did overrule defendant’s motion for severance.

That was critical later on due to the extreme paucity of the Commonwealth’s evidence of the burglary.

Furthermore, the prosecutor noted his intention early on, prior to presentation of any evidence, that he was going to impeach the defendant with a prior forgery conviction.

The defendant in the persistent felony offender stage of this trial, contested that that was in fact a felony conviction and asserted that it was a misdemeanor conviction.

I think that it is implicit in the defendant’s failure to testify in this case that because the judge was going to allow that forgery conviction which he contested to be used as impeachment, that that was a consideration in his failure to testify, so that we are dealing with a reason, a likely inference for his failure to testify that is unrelated to guilt or innocence, and I think that that is an important consideration.

During the voir dire, the defense counsel was precluded from fully exploring with the jury their feelings, their attitudes about the defendant’s failure to testify if in fact he did not testify.

Defense counsel was allowed to inquire as to one juror’s attitude.

After exploring that attitude with the juror, defense counsel attempted to explore the rest of the venire’s attitude toward that particular consideration–

Warren E. Burger:

Sometimes a judge’s ruling on that score in that stage is to prevent error getting into the case right at the outset because of the view that that is a good way, a good way to call attention to the failure to testify by having a great deal of discussion about it when they are picking a jury.

C. Thomas Hectus:

–That may be, Mr. Chief Justice, but I think in this point, the trial judge’s response to his attempt to do that was that the jurors have already been instructed that they are to decide this case on the law and the evidence.

This Court specifically repudiated that sort of admonition or instruction in Carter as being a substitute for a full explanation as to the defendant’s right to not testify.

William H. Rehnquist:

At what stage did your client request the admonition to the jury, Mr. Hectus?

C. Thomas Hectus:

At the close of all the evidence, and apparently during the instruction conference.

William H. Rehnquist:

So that if his request for an instruction had been given… for an admonition had been granted by the trial court, the trial court would have admonished the jury presumably at the next time the jury was brought in, which might have–

C. Thomas Hectus:

Presumably, immediately prior to his giving the law of the case in instruction.

William H. Rehnquist:

–And are there written instructions given to the jury in Kentucky?

C. Thomas Hectus:

Yes, as an–

William H. Rehnquist:

So that the jury takes the–

C. Thomas Hectus:

–The normal practice is to give a copy of the written instructions to jurors.

William H. Rehnquist:

–Under your client’s request the admonition, being oral, would not have gone in writing.

C. Thomas Hectus:

Assuming that the request for an admonition wasn’t an inadvertent use of the word, or request for an instruction, yes, then I assume that he wanted them to be orally admonished right then and there prior to the instructions.

William H. Rehnquist:

Well, you are not suggesting, are you, that the trial court was obligated to determine whether the lawyer’s request was inadvertent?

C. Thomas Hectus:

Not at all.

I’m not suggesting that at all.

I think that the request for an admonition in this case is a perfectly logical request.

If the defendant was entitled to instruction, as the Kentucky Supreme Court agreed, then certainly he’s entitled to less than what this Court has mandated, assuming this Court finds that an admonition is in any way less than an instruction.

I don’t think that that’s true because I think this Court’s concern in this area has been with jury guidance, and I think that the concept of jury guidance includes either an admonition or instruction, and–

Lewis F. Powell, Jr.:

Well, I come back to the practice in Kentucky.

Is it not unusual for counsel not to make a written request for an instruction?

C. Thomas Hectus:

–I don’t think that’s unusual at all, Mr. Justice Powell.

Lewis F. Powell, Jr.:

And the court makes its own instructions without any help from counsel?

C. Thomas Hectus:

Usually during the instruction conference, instructions are discussed, and most instructions, from my practice in Kentucky, including some–

Lewis F. Powell, Jr.:

What do you discuss if there is nothing in writing?

C. Thomas Hectus:

–Well, for example, lesser included offenses, whether or not–

Lewis F. Powell, Jr.:

Was this particular question of admonition discussed in this conference?

C. Thomas Hectus:

–Apparently it was.

The–

Lewis F. Powell, Jr.:

It’s not clear from the record, to me, as I read it.

C. Thomas Hectus:

–The record apparently was not made during the instruction conference, but when the proceedings went back on the record, defense counsel indicated that there had been a request for an admonition on the defendant’s failure to testify, and the apparent request for a no inference admonition.

There was also indication from defense counsel that that had been overruled.

There was no response from either the Court or to the… or by the prosecutor as to defense counsel’s assertion of that.

I am sure had that not occurred, that there would have been some response.

Lewis F. Powell, Jr.:

Did counsel except on the record to the overruling by the judge?

C. Thomas Hectus:

There is no requirement in Kentucky for exceptions.

Lewis F. Powell, Jr.:

In Kentucky.

C. Thomas Hectus:

The reason I think that the whole notion of instructions and the request for the admonition in Kentucky is not really important is because the Kentucky practice, as this Court is aware I think from cases like Taylor v. Kentucky, is to give very spartan and skeletal instructions, in this Court’s own language, they give very brief instructions which have only to do with the elements of the crime, which come right out of the statute book.

In response to this Court’s mandate that on request the courts in Kentucky give an instruction on the presumption of innocence, the response of the Kentucky courts has been to instruct the defendant is presumed to be innocent.

That’s it.

There is no fleshing out of instructions in Kentucky.

I think when compared to federal instructions, the difference is extreme.

While this Court has not constitutionally condemned that, I think it is a factor to consider.

William H. Rehnquist:

Well, it might actually, if one were looking at the thing from some other planet, spare, skeletal instructions might be better than these convoluted things you see some courts give where, you know, the presumption of innocence takes fifteen pages to define, and the jurors are all asleep at the end of the definitions.

C. Thomas Hectus:

I Would respectfully assert that I would prefer the fleshed cut sort.

Byron R. White:

And in some places, years ago, the instructions were in effect do what you want to, I mean, do what you think is just.

C. Thomas Hectus:

Nonetheless, I think that now there are at least certain constitutional prerequisites.

This Court indicated in Carter that the trial judge had an obligation upon request to diminish the possibility of the jury drawing any adverse inference from the defendant’s failure to testify.

If I could proceed on with some of the evidence in this case, which I also think has to do both with the consideration of whether this should have been given and the consideration, given that it wasn’t, whether it was harmless error–

John Paul Stevens:

Mr. Hectus, before you do that, let me just ask one question similar to the one Justice Powell asked.

As I read the appendix, the critical statement is the defendant requests, in the present test, that an admonition be given to the jury that no emphasis be given to the defendant’s failure to testify, which was overruled, sort of internally inconsistent, but you read that as indicating that in the instruction conference, such a request was made and overruled.

C. Thomas Hectus:

–I think that the Kentucky Supreme Court and the Commonwealth of Kentucky per the Attorney General’s Office have assumed that that was the state of affairs.

John Paul Stevens:

I see.

And then immediately after that happened, he went ahead and gave the instructions.

So if the admonition had been given, it would have been given right in, as part of the–

C. Thomas Hectus:

Prior to instructions.

John Paul Stevens:

–I mean, at the same time.

C. Thomas Hectus:

Prior to instructions, right.

And in fact, the Court reads the instructions, as is the federal practice, and then would give the instructions.

So the only thing… the defendant would have been prejudiced, in fact, by not having that included in the written instructions, to the jury, but certainly this Court has indicated it’s unwilling to presume that jurors do not listen to the admonitions of the trial court.

John Paul Stevens:

And the oral admonition and the oral instructions are given consecutively, right together.

C. Thomas Hectus:

Assuming that there are any admonitions to give.

John Paul Stevens:

Right, okay.

C. Thomas Hectus:

Moving on with the evidence, after Ms. Richardson testified–

Harry A. Blackmun:

Counsel, in Kentucky practice, is there just one copy of the written instructions that goes into the jury room, or does each juror get a copy?

C. Thomas Hectus:

–There is not a rule on it.

In my experience, I have only seen that happen, it is basically according to a judge’s preference, There is no rule prohibiting it and there is no rule mandating it.

Most judges will only send back one copy of the instructions.

Harry A. Blackmun:

All right.

As far as you know, do many states have this practice?

C. Thomas Hectus:

With regard to the… with regard to the instructions?

Harry A. Blackmun:

Of written instructions going into the jury room?

C. Thomas Hectus:

I don’t think that it’s novel.

I’m not sure whether it’s unusual.

Two state police officers, Trooper John Sparks and Detective Claude Owen, very briefly testified as to the arrest of the defendant.

I would like to point out to the Court that both those officers, in response to questions by the prosecutor, made statements in front of the jury as to the defendant’s exercise of his Fifth Amendment privilege.

Trooper Sparks specifically said in response to a question, after advising the defendant of his rights, he did not make any statement whatsoever regarding anything.

I would submit that that’s an error in violation of Doyle v. Ohio that is unpreserved, but I certainly think the Court should consider it in deciding whether or not this error is harmless.

Detective Owen also testified that the defendant made no statement upon his arrest.

This was a post-arrest, post-Miranda comment on silence.

Detective Courtney went on to make a statement that the only statement that he recalled the defendant making was that he didn’t own a gym bag.

Of course, Detective Courtney, Detective Owen and Trooper Sparks were all present at the time and neither Trooper Sparks or Detective Owen recalled that statement.

Mr. Evans testified as to the fingerprint on the inside of the glass.

Of course, that in and of itself is not either incriminating or exculpatory, depending on the circumstances.

Mr. Evans did state, though, that fingerprints on the inside of buildings car remain for years, again reminding the Court that Ms. Richardson had stated the defendant had been in her apartment on several occasions.

There was also some evidence from a serologist as to the Group A secretions on some rags that were found and that the victim was a Group A secretor apparently trying to corroborate the victim’s story.

Later on the prosecutor made a reference to the fact that the defendant’s wife did not testify, in violation of Kentucky statute on spousal immunity, to the effect that had the victim’s wife been a Group A secretor she would have been brought forward, which I think is still yet another consideration of the Court, to decide whether or not this error was harmless.

Finally, David Adams testified, who is her immediate supervisor, that she came back upset from lunch.

He also testified that she was four and a half hours late, that her job performance had been fluctuating in the preceding weeks.

The defendant then presented evidence simply as to the rape charge.

Mr. Marion Bates testified that he was actually in the basement of the defendant’s residence where the rape allegedly occurred, and that he heard no noises up there but a record player going on.

He specifically recalls leaving that apartment sometime between 20 minutes to 1:00 and 1:00 o’clock in the afternoon to work on his car in the driveway, which was next-door to the defendant’s residence.

He also specifically recalled seeing the defendant leave at ten minutes… at 2:00 o’clock or shortly before 2:00 o’clock.

The defendant testified that she was unlawfully imprisoned by the defendant in his apartment from approximately a short time after 12:30 until almost 4:30.

C. Thomas Hectus:

So there was defense evidence calling into question the victim’s account of the case.

Then a Mr. Lambert also testified that he often would show Mr. Bates the basement in the apartment where the defendant lived and where the crime allegedly occurred, didn’t recall the specific date, but did corroborate Mr. Bates’ testimony to the extent that he said he often shows Mr. Bates that property because it was under renovation.

It was at this point, after all the evidence, that the defendant requested the admonition that was denied–

In the prosecutor’s closing argument, he made two references to the defendant’s failure to contradict the victim’s story.

I think that at least the Federal Circuit Courts have held that when the defendant is the only person that can contradict testimony, that a reference to the failure to contradict is an indirect reference on the failure to testify, which again is two occurrences of Griffin error.

There was no request for an admonition in that particular–

Warren E. Burger:

Well, an alibi witness would contradict, too, or ten alibi witnesses if he was off at a football game with them.

So your statement is not accurate that only, only the defendant could contradict.

C. Thomas Hectus:

–I think under the circumstances of this particular case where the defendant’s evidence was limited to the rape charge and there wasn’t any evidence on the other charges, that that had to be considered by the jury as a reference to the defendant, even though–

Warren E. Burger:

Did he bring in any alibi witnesses?

C. Thomas Hectus:

–As to those charges?

Warren E. Burger:

Did he bring any alibi witnesses saying he was somewhere else at the time?

C. Thomas Hectus:

No, sir.

Warren E. Burger:

Well, such witnesses could contradict.

C. Thomas Hectus:

If such witnesses were available, but then, we don’t know whether they were available or not or why he did not.

I think that–

Warren E. Burger:

Well, I suppose a fact-finder or a judge or anyone else in the courtroom would assume the reason they didn’t bring alibi witnesses is because there weren’t any.

C. Thomas Hectus:

–Right, and that’s exactly the point, Mr. Chief Justice, that they would assume that the reason he didn’t bring any evidence forward and the reason he didn’t testify was because he guilty.

The Court indicated in Lakeside v. Oregon that that is the natural inference.

Warren E. Burger:

Of course, a great many people think that’s what juries do, no matter what any judge instructs or admonishes them.

C. Thomas Hectus:

Well, Mr. Chief Justice, all I can say is that I would agree with the Court’s statement in Lakeside that the Court has yet not come to a conclusion that juries are going to disregard admonitions or instructions of the court.

I think that in this particular case, the Court has to assume that if they were instructed to disregard this, then they would.

That is the basis and the rationale of the Court’s holding in Carter v. Kentucky.

If that’s not held true, then Carter doesn’t make sense.

Now–

Byron R. White:

Nor does Griffin.

Nor does Griffin, nor does Griffin.

Nor Chapman.

Would you want Carter to depend on such a weak reed as Griffin?

C. Thomas Hectus:

–I think Carter simply stands for the proposition that Mr. Justice Stevens and Mr. Justice Brennan stated in their concurring opinion that whether… I take that back… in Lakeside, that whether or not the jury is going to be given any guidance on the failure to testify is going to be up to counsel and the defendant, and in this particular case, it’s obvious that counsel and the defendant requested some jury guidance and were denied it.

C. Thomas Hectus:

I would like to talk briefly about what I think are the constitutional underpinnings of this case.

Obviously the Court’s familiar with Wilson that applied a federal statute precluding comment on a defendant’s failure to testify.

Wilson was constitutionalized in Griffin.

Bruno, which was a precursor to Carter, mandated that upon request, a jury be instructed as to a defendant’s failure to testify.

Also in Bruno, the Court held that it was not going to apply the harmless error rule to that type of error because it didn’t have to do with the mere etiquette of trial rules.

In Malloy v. Hogan, this court stated that a defendant should suffer no penalty as a result of his exercise of his Fifth Amendment privilege.

In later cases, particularly Lakeside and Carter, the Court found that when a defendant either requests instruction on the Fifth Amendment, or alternatively, when the Court gives it over the defendant’s objection, that all that does is prevent undue speculation, I believe the Court’s language was to the effect of allowing a jury to roam at large guided only by its untutored instincts with regard to the meaning of the Fifth Amendment privilege.

The Court also cited in footnotes that many commentators and many sociologists believe that most persons are going to equate the failure to testify with guilt.

Again, in this case, there was an apparent reason for not testifying, not having to do with guilt or innocence, that being the defendant’s threatened impeachment with a felony conviction which was at issue in a subsequent proceeding as a persistent felony offender–

If I can move on to the procedural bar that was applied by the Kentucky Supreme Court, they basically stated that the defendant asked for the wrong relief, consequently, he is barred from the correct relief.

In addition to the fact that I don’t think that the defendant asked for relief that was constitutionally improper, I don’t think that the state has substantial interest in applying a procedural bar to a Fifth Amendment violation.

This Court took into consideration a Fifth Amendment violation in Brooks v. Tennessee and conceded that the State of Tennessee had a substantial interest in making a defendant testify first in that it precluded the defendant from coloring his testimony due to other defense witnesses testifying first, the defendant changing his testimony.

This Court conceded that that was as substantial interest and stated that was not compelling enough to overcome his Fifth Amendment violation by infringing upon the right of the defendant to decide when he will testify or if he will testify.

It also infringed on his Sixth Amendment right to counsel.

I think in this particular case, Kentucky has advanced no substantial interest that would overcome the Defendant’s Fifth Amendment right to jury guidance on this particular issue.

I think Henry v. Mississippi also speaks as to the state’s interest in applying a procedural bar.

William H. Rehnquist:

Is your basic argument, Mr. Hectus, that your client was entitled to an instruction because he had requested something almost like an instruction or that he was entitled to an admonition because he had requested an admonition?

C. Thomas Hectus:

My basic argument is that he was entitled to an admonition, at the very least.

If I have a few minutes, I would like to address the state’s assertion of harmlessness.

First, I would like to say that I don’t think that this type of error can ever be harmless, based upon the Court’s pronouncement in Bruno, based upon the Court’s pronouncement in Malloy, that no watered-down version of the privilege applies to the states.

The significance of Lakeside as to harmlessness is the following: The Court in Lakeside stated that the petitioner Lakeside’s assertion that the trial court intruded on his Fifth Amendment privilege by giving an instruction rested on two very doubtful instructions, one, that the jury didn’t notice the defendant didn’t testify, and two, that the jury would disregard any admonition or instruction.

In this case we are left with the proposition that this Court certainly believes that the jury noticed that the defendant didn’t testify, that they were not given the benefit of any jury guidance.

As I pointed out in my brief, this is not like a Griffin error, which I think the Court believes may be harmless.

As I stated earlier in my argument, when a Griffin error occurs, even though in Griffin it was a combination of the trial court and the prosecutor, currently Griffin errors are most often committed by a prosecutor.

The relief is an admonition by the trial court.

There is no relief for this type of error in violation of Carter.

Again, it also invades the Sixth Amendment right to counsel which I don’t think that the Court should hold harmless.

There are numerous reasons why if the Court finds that it can be susceptible to harmless error analysis, it should not be harmless in this case.

One, the court’s refusal to sever the burglary charge and the ESP charge, of which there was very little or scant evidence, the limitation of voir dire, the two Doyle errors by Detective Sparks and Detective Owen, the Griffin errors in closing argument by the prosecutor, the violation of the spousal immunity privilege by the prosecutor in closing argument, the fact that petitioner’s failure to testify was not related to guilt or innocense, the fact that petitioner’s defense as to the rape charge tended to raise a reasonable doubt as to his presence at the scene of the crime, and finally, that if this Court’s statement in Lakeside and later in Carter is true that an inference that the jury might draw from failure to testify as to the defendant’s guilt is inevitable, then certainly it occurred in this case by virtue of the fact that the jury convicted this defendant of a burglary charge where there was certainly no evidence of an entry other than one fingerprint in an apartment where he had been before.

If this case had been tried alone, I think that the defendant would have been entitled to a directed verdict as a matter of law on that kind of evidence.

C. Thomas Hectus:

And finally–

Warren E. Burger:

Was there a motion for a directed verdict on that count?

C. Thomas Hectus:

–There was a motion for a directed verdict as to all counts.

Warren E. Burger:

Well, not separately as to some?

C. Thomas Hectus:

No, sir, it wasn’t articulated such that it broke the… that defense counsel broke down the evidence as to each charge, but he did move for a directed verdict of acquittal after the Commonwealth’s evidence and after the state’s evidence.

Thank you.

Warren E. Burger:

Ms. Warren?

Penny R. Warren:

Mr. Chief Justice, and may it please the Court:

I would like to take a moment to address the suggestion that this was an inadvertent request for an admonition when in fact the trial counsel meant to ask for an instruction.

I believe that the case was practiced throughout in the Kentucky Supreme Court as though all he asked for was an admonition, and that’s what he intended.

In the State Court brief, which is reproduced in our appendix, the claim is that the trial court erred by failure to admonish–

Warren E. Burger:

What page are you on?

Penny R. Warren:

–Pardon me?

Warren E. Burger:

What page are you on?

Penny R. Warren:

On page 1a in the Addendum, Your Honor, and this is Petitioner’s brief before the state court… the trial court refused to admonish the jury, and then the first sentence, Appellant, by counsel, requested that an admonition be given, and on page 2a at the top, appellant submits that the requested admonition is now constitutionally mandated, and in their footnote that trial counsel apparently requested an admonition rather than a written instruction.

William H. Rehnquist:

Where are you, Ms. Warren, in the–

Penny R. Warren:

Respondent’s brief.

I apologize.

William H. Rehnquist:

–The back part?

Penny R. Warren:

Yes, sir, the addendum reproduces the state court brief.

Sandra Day O’Connor:

Thank you.

If we were to–

–Is it not… I’m sorry–

–If we were to treat the request for an admonition as it was phrased, to wit, for an admonition, would it be a proper subject under Kentucky law for an admonition, the instruction on the failure of the defendant to testify?

Penny R. Warren:

Justice O’Connor, in Kentucky the term “admonition” means only an oral comment by the judge for two purposes: one, a curative purpose to eliminate from the jury’s consideration evidence that was improperly presented to them, the classic example being incriminating impeachment evidence, to limit their consideration only for impeachment purposes; and the other purpose of an admonition is to guide the jury as to their duties, you are not to speak with others outside of the courtroom.

There’s approximately 60 years of case law in Kentucky, three or four cases over that timeframe, fairly clearly establishing this distinction, and that instructions are written and are not admonitions.

William H. Rehnquist:

Do I judge from your answer to Justice O’Connor’s question the admonitions are really something that occurs during the testimony of witnesses–

Penny R. Warren:

Yes.

William H. Rehnquist:

–such as the objection is sustained and the jury admonished to disregard it, that it really fulfills quite a different function, it isn’t just an oral instruction?

Penny R. Warren:

That’s correct.

Penny R. Warren:

It is not an oral instruction, and Kentucky case law I believe is very clear on that point.

Harry A. Blackmun:

And yet in Kentucky practice on may have oral instructions, may he not, if he asks for them?

Penny R. Warren:

Yes, Your Honor.

The case law on that is quite old and–

Harry A. Blackmun:

Is quite what?

Penny R. Warren:

–Quite old.

I belief the case law is something like 1912, but of course, it is still the law in Kentucky, and we acknowledge that it is.

Harry A. Blackmun:

Well, I was living in 1912 and–

Penny R. Warren:

My comment was that the… now the rules of procedure say, you know, shall be written, and I don’t know that the Kentucky court, after 70 years of experience with the written instructions, would now say that they may be waived, but in fact they do, and it is the law in Kentucky today, you may waive written… if there is a clear waiver… and all instructions are given orally, all are given alike.

Sandra Day O’Connor:

–Would that require waiver by the state as well as the defendant?

Penny R. Warren:

According to current case law, it appears to be only the defendant–

John Paul Stevens:

May I ask you a question about the material that you called our attention to at the beginning of your argument?

Penny R. Warren:

–Yes.

John Paul Stevens:

That, as I read it, it really is just a repetition of the colloquy that is found on page 11 of your brief where the defendant merely said the defendant requested an admonition be given to the jury that no emphasis be given to the defendant’s failure to testify, which was overruled.

That’s the same statement that’s quoted in the other brief, as I read it.

Penny R. Warren:

Yes, sir, but–

John Paul Stevens:

So do we have anything in the record other than that one sentence about what really happened here?

Penny R. Warren:

–I believe we do have some inferences.

John Paul Stevens:

Do you have some–

Penny R. Warren:

No, we do not have an expression.

John Paul Stevens:

–No quotation in the transcript?

Penny R. Warren:

No quotation.

This isn’t–

John Paul Stevens:

Well, then, do you disagree with your opponent’s reading of this as something that was requested during the conference on instructions?

Penny R. Warren:

–I believe it was requested during the conference because of the choice of terms, which was overruled, yes, Your Honor.

John Paul Stevens:

Yes, so that it was asked by the defendant’s lawyer as something to be given to the jury along with the written instructions.

Wouldn’t that be true, because the evidence was all over.

It’s the only time he could have done it.

Penny R. Warren:

It would have been an oral comment by the court preceding the reading of the instructions.

John Paul Stevens:

Immediately preceding.

Penny R. Warren:

And then the instructions–

John Paul Stevens:

Immediately preceding the instruction.

Penny R. Warren:

–That’s correct, Your Honor.

John Paul Stevens:

Because the instructions were given right after that comment.

Penny R. Warren:

That’s correct, Your Honor.

I also would note that in the discussion… I’m sorry, in the record, we have some inferences of experienced attorney.

I am looking particularly at the discussion at the very beginning of trial where he, on pages 13 through 17 of the Joint Appendix, where he is arguing with the trial judge a rather complex point concerning our persistent felony offender statute, and the issue there is whether the term “probation” qualifies as a term of imprisonment for purposes of Kentucky law.

An attorney who understands the importance of words and the distinction between words, an attorney who throughout this record has planned his strategy and who anticipates the fact that the defendant will not testify, and then when he quoted, he repeated on the record what had occurred before, he repeated it for purposes of preserving the record, he did not choose a common term such as I want you to tell the jury or I want the jury to be advised, he chose a word of art, and we submit that he was familiar with the words of art, and there are strategic reasons for not wanting written–

John Paul Stevens:

Would it have been error as a matter of Kentucky law for the judge to have given the admonition he had requested?

Penny R. Warren:

–Yes, Your Honor, it would have been.

John Paul Stevens:

It would have been?

Penny R. Warren:

Because instructions must be given in writing; this is an instructional–

John Paul Stevens:

And if the judge orally tells the jury something that he doesn’t put in writing, he commits error?

Penny R. Warren:

–Yes, Your Honor.

John Paul Stevens:

It’s a rather strange procedure.

Penny R. Warren:

Oral instructions, separate, isolated oral instruction is not permitted in Kentucky.

I would also note for the Court that we submit this is a case in which there is not an attempt to apply Carter but an attempt to expand Carter, and I believe petitioner in his brief makes that rather clear on several occasions.

He says that the Carter case mandates both admonitions and instructions.

He… under the, using the term “functional equivalency” says that we are to focus o the underlying purpose of the defense attorney’s request for protecting a Fifth Amendment right and that Carter mandates that a state provide any of various forms of relief that serve that underlying purpose.

He acknowledges that an instruction pursuant to Carter was available to him.

Again, in state court the acknowledgement was that it was not requested, the written instruction was not requested, nor after he said that the judge had denied his request for admonition did he turn around and say, well, okay, judge, then I would like the written instruction.

He did not pursue any alternative form of relief–

Lewis F. Powell, Jr.:

Ms. Warren.

Penny R. Warren:

–Yes, sir.

Lewis F. Powell, Jr.:

Is there a decision of the Kentucky Supreme Court says that an oral request for instruction is not appropriate?

Penny R. Warren:

No, Your Honor.

Oral requests are appropriate.

Lewis F. Powell, Jr.:

Oh, well–

Penny R. Warren:

Oral instructions, a separate, isolated oral instruction or an instruction given by way of an admonition are not appropriate, Your Honor, and I believe there are some cases cited in the brief.

Lewis F. Powell, Jr.:

–So you don’t have to write out anything, he just has to ask him to give an instruction.

Penny R. Warren:

Good practice is to prepare written instructions so that there is something to discuss in that charging conference, but no, it is not required.

You may do it by motion.

And again, we are at a disadvantage in this case because we do not know the discussion that occurred.

Defense counsel chose not to put it on the record, and we don’t know precisely what was–

Lewis F. Powell, Jr.:

Well, I find this record very confusing.

It is hard to tell what was said when and where, and it is a very incomplete, uninformative record, it seems to me.

I know you didn’t prepare it.

Penny R. Warren:

–Yes, sir.

Are you speaking of this particular segment of it as just isolated from context?

Lewis F. Powell, Jr.:

Well, that’s just one element.

The whole appendix, I haven’t looked at the record beyond the appendix.

Penny R. Warren:

The position of Kentucky in this case is that the defendant had available to him a constitutionally adequate vehicle to protect his Fifth Amendment right, but now he insists that he has a right to ride in every other car going in the same direction so long as it serves that underlying purpose.

We submit that Carter was not to be the beginning of litigation on this subject but in fact establish a prophylactic rule to bring to an end this type of litigation.

Carter closed the circle on this issue in a manner that provides every defendant in all jurisdictions to have available a constitutionally adequate safeguard upon request.

Petitioner here would initiate an endless spiral of litigation based on strategic decisions of functional equivalency.

The line of reasoning ignores the nature of the request, it ignores any rules applicable to it, and ignores any state interest that might be involved, and instead, focuses on the underlying purpose.

If Carter mandates alternative forms of relief under this analysis, as James states it, functional equivalency, we submit then Carter would also mandate that the defendant be permitted to put a witness on the stand to say that there shall be no adverse inference from the defendant’s failure to testify.

Any number of alternatives would then become functional equivalents, I choose not to do it this way, I prefer another.

John Paul Stevens:

May I go back to my confusion about Kentucky law for a minute?

Penny R. Warren:

Yes, sir.

John Paul Stevens:

I understood you to tell me that it would be error in Kentucky to give an oral instruction on the law.

Penny R. Warren:

Yes, a defendant may waive all written instructions under Kentucky law, and all–

John Paul Stevens:

But could he not waive a… your brief at pages 24 and 25 quote the law as I understand it to say that if it is clear that the defendant was satisfied to have the instruction be given orally, that there is no error.

Penny R. Warren:

–That applies to all… all instructions may be given orally or all written, but we found no authority that would suggest that you should isolate one and pull it out.

John Paul Stevens:

But is there any authority in Kentucky for the proposition that if the defendant asks for one oral instruction, as he did here, or you call it an admonition, and the judge gives it, that that would be error?

Penny R. Warren:

There is not a case on that point, Your Honor.

This is the first time this issue has been presented.

John Paul Stevens:

So there is no consistent body of state law that supports that.

Penny R. Warren:

There is a body of state law that says that there must be a clear waiver–

John Paul Stevens:

The instruction should be in writing unless the defendant asks for it to be oral.

Penny R. Warren:

–Waives.

Then again, in–

John Paul Stevens:

And here he asked for it to be oral.

Penny R. Warren:

–He asked for this particular… he asked for an admonition which is a term of art in Kentucky meaning an oral comment, not an instruction, but an oral comment by the court.

Again, strategically, we think he wanted less emphasis on this particular subject, not before the jury, not in writing to be read over and over, but to have been commented upon and passed by.

There is no provision in Kentucky law for an admonition on an instructional issue.

Kentucky would also note that this type of functional equivalency argument would also apply to other constitutional rights and to other instructional issues.

Why not have a defendant throw the burden of proof instruction out and ask that it be treated differently?

If all instructions are given orally, then ask that that be given written, again, we would turn defense attorneys’ strategic decisions into rulemaking organs, the state court procedure.

This Court rejected a similar notion in Lakeside, and we request that it be rejected here.

This is not an attempt to use Carter but, in fact, an attempt to misuse Carter, and it would place judges in a posture of forever being subject to hindsight interpretation as to what is the functional equivalent.

We urge this Court to hold that Carter means what it says, an admonition… I’m sorry, an instruction must be made available… terrible slip of the tongue… must be made available upon request, and Carter is not to be expanded to include all ingenious defense remedies that they may desire.

John Paul Stevens:

But can you really call this an ingenious defense remedy, saying he wants this particular admonition?

Penny R. Warren:

In that it was–

John Paul Stevens:

Why wouldn’t the judge give it?

I just don’t understand it.

Penny R. Warren:

–Your Honor, I am at a disadvantage, and we are all at a disadvantage because we do not know what was discussed before.

I can only say that I believe the trial court–

John Paul Stevens:

We don’t know if the judge said you can have it in writing if you want it but you can’t have it orally.

That’s–

Penny R. Warren:

–I believe the… I’m sorry.

John Paul Stevens:

–That’s what you are assuming he must have said something like that.

Penny R. Warren:

Yes, Your Honor, and again, during that early discussion when there was some confusion about what the defense attorney wanted, when we were talking about the persistent felony offender issue, when the judge had some confusion, he clarified and he repeatedly asked defense counsel.

We do not have any of that discussion, we do not have the clarification.

I would submit there is an inference that he understood defense counsel wanted exactly what he asked for, an admonition.

That’s the only inference that we can draw from it.

Warren E. Burger:

Well, in Kentucky do you… I take it that you regard the term “admonition” as being something of less force than an instruction.

Penny R. Warren:

Yes, Your Honor.

Warren E. Burger:

Other than the technical differences you are talking about.

Penny R. Warren:

It serves very different purposes and also is not that directive on the law to be applied by the jury in their deliberations.

Penny R. Warren:

It is a comment by the court during the course of trial.

Warren E. Burger:

Well, do you think in Kentucky a juror or a jury can have greater latitude in disregarding an admonition than an instruction?

Penny R. Warren:

They certainly must follow the advice and caution of the trial court, but I believe in Kentucky that all instructions are presented in a unified manner, whether it be all oral or all written, and in my practice, I have never seen any request for an oral instruction at all.

They are always written, and they are submitted in the same way and then made available to the jury.

If this Court should decide that Carter does compel an admonition in addition to an instruction, then Kentucky requests that the case be remanded for determination as to whether or not that error were harmless.

The state court did not decide that issue because it determined that there was no error.

Any discussion of harmless error by the Kentucky Supreme Court would have been advisory at that point.

Petition suggests that the Kentucky court would not hold the error harmless and there is no need to remand, but we would respectfully disagree.

The charges against James were for rape, burglary and receiving stolen property, arising from incidents within a two-week time frame and all involving the same victim.

The defense as to the rape was basically mistaken identity or fabrication, and similar defenses, mistaken identity or no involvement or alibi.

Defense counsel portrayed the victim as seeking an excuse for her absence that afternoon to satisfy her employer.

Witnesses were presented to argue that had the events taken place as she testified, they would have been seen crossing the short yard, and in fact, petitioner was seen leaving his apartment at some time when the victim testified that she was being held inside at gunpoint.

This testimony of the defense witnesses was based on recollection of common events on routine days many months earlier, and the testimony as to the timing was not inconsistent with the fact that the victim was not seen.

The testimony on the timeframes put Mr. Bates in the basement at about the same time the yard crossing occurred, and his statement was that he stayed out in the yard sometimes until four.

The victim said she left at 4:30.

So it was not at all surprising that she was not seen.

There were not the numerous adverse comments as there were in Chapman, nor was there an adverse instruction, and counsel repeatedly… defense counsel repeatedly said there is no evidence on this issue.

In cases such as this where there is merely a possibility of misinterpretation, we submit the weight of evidence is more significant.

The prosecution presented an unequivocal identification of the victim.

James’ positive fingerprint was found on the back door of the house, and I believe the victim’s testimony was that he had come to use the phone, and the trial record reflects the phone is in the front room.

Also, Mr. James, I believe the testimony reflects, was six feet eleven inches tall, and this fingerprint was on the bottom inside of a glass storm door after it was pushed out.

Also, there were prompt reports to the police corroborating the victim’s testimony, and there was medical evidence.

Mr. James had in his possession within a few hours of the rape cloth strips that were impregnated with the saliva of a blood type… a secretor with a blood type similar to that of the victim’s, and also in his possession was the pistol stolen from her apartment two weeks earlier.

We believe it is clear beyond a reasonable doubt that the jury would have returned a verdict of guilty and request this Court to affirm the Kentucky Supreme Court decision finding that there was no error, or if it finds that it is error, to remand it for an appropriate decision by the Kentucky Court.

Warren E. Burger:

Thank you, Counsel.

The case is submitted.