Whorton v. Commonwealth

570 S.W.2d 627, 1978 Ky. LEXIS 391

• Court: Kentucky Supreme Court
• Decided: July 25, 1978
• Status: Published

Opinions

PALMORE, Chief Justice.

Harold Whorton appeals from a judgment sentencing him to consecutive terms aggregating 230 years of imprisonment pursuant to a verdict finding him guilty on 10 counts of lst-degree robbery, two counts of lst-degree wanton endangerment, and two counts of lst-degree attempted robbery.

The various charges grew out of three separate incidents. At a pre-daylight hour on May 15, 1976, a black male entered the Krispy Kreme Doughnut Shop in or near Shively carrying a pistol in one hand and a knife in the other. He proceeded to rob the store and three of its employes. The three employes later identified Whorton as the robber. Late in the evening of the same day a black male carrying a gun in one hand and a knife in the other entered and robbed the Burger Chef Restaurant on Shelbyville Road. Two of the restaurant employes then present in the restaurant later identified Whorton as the robber. On June 1,1976, around midnight, a man came into Jerry’s Restaurant on Brownsboro Road and, after ordering two cheeseburgers, stuck a gun in the face of the waitress, announced that “this is a robbery,” and asked for the manager, who was in the back of the restaurant. When the manager came up front the robber herded all of the patrons and employes together, took the money from the customers’ wallets, forced the manager to give him the money from a safe, and left the assembled company together in a back room before leaving. Meanwhile, however, one of the customers managed to sneak away unnoticed and called the police from another restaurant across the street. Shortly thereafter a police officer gave chase to an automobile departing the vicinity and ran it down when it struck a fire hydrant. Whorton emerged from the automobile and pointed a pistol at the officer, but dropped it when commanded to do so. Whorton and a companion were taken at once to Jerry’s Restaurant, where 10 of the persons present during the robbery identified Whorton as the robber.

During the episode at Jerry’s Restaurant, while he was directing the employes and patrons into the rear area of the premises, Whorton said, “If you don’t think I’ll shoot you, I’ll prove it,” and fired a shot into the ceiling. This particular act on his part was the basis for one of the wanton endangerment charges (the other endangerment count was for pointing a gun at the arresting officer), pursuant to which he was sentenced to five years in the penitentiary.

Whorton did not testify. The only evidence in his defense was given by his wife and her sister, who offered alibi testimony with regard to his whereabouts during the night on which the doughnut-shop robbery occurred.

Prior to the trial Whorton moved, among other things, that the issues of guilt or innocence be submitted to the jury separately from the fixing of the penalty or penalties, in order that he might appear as a witness only at the second stage for the purpose of showing mitigating circumstances, including his valorous military service during the Korean Conflict. Although neither our statutes nor rules of court authorize such a bifurcation except in persistent-offender and capital cases (cf. KRS 532.080, KRS 532.025(l)(b)), he contends that the trial court’s refusal to grant it deprived him of a fair trial.

At the close of the evidence and before the jury was instructed, counsel for Whor-ton tendered several federal-court type instructions which the trial court declined to give. One of these, undertaking to define reasonable doubt, was as follows:

“A reasonable doubt is a fair doubt based upon reason and common sense and arising from the state of the evidence. It is rarely possible to prove anything to an absolute certainty. The meaning of the rule is that the proof must be such as to exclude, not every hypothesis or possibility of innocence, but any fair and rational hypothesis except that of guilt; what is required is not an absolute or mathematical certainty but a moral certainty. An accused is not to be convicted on mere suspicion or conjecture. A reasonable doubt may arise, not only from the evidence produced, but also from a lack of evidence. Since the burden is upon the prosecution to prove the accused guilty beyond a reasonable doubt of every essential element of the crime charged, an accused has the right to rely upon failure of the prosecution to establish such proof. (An accused may also rely upon evidence brought out on cross-examination of witnesses for the prosecution.) The law does not impose upon an accused the duty of producing any evidence. A reasonable doubt exists in any case when, after careful and impartial consideration of all the evidence, the jury members do not feel convinced to a moral certainty that an accused is guilty of the offense(s) charged.”

Another, instructing on the presumption of innocence, and substantially similar to the one offered and refused in Taylor v. Kentucky, - U.S. -, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978), was as follows:

“The law presumes an accused to be innocent of crime. He begins the trial with a clean slate, with no evidence against him. And the law permits nothing but legal evidence presented before the jury to be considered in support of any charge against the accused. So the presumption of innocence alone is sufficient to acquit an accused unless the jury members are satisfied beyond a reasonable doubt of the accused’s guilt from all the evidence in the case.”

As given by the trial court, each of the instructions covering the various charges submitted to the jury authorized a finding of guilt only if the jury believed, (a) from the evidence and (b) beyond a reasonable doubt, that the defendant had committed the acts, with the requisite criminal intent, that constituted the respective offense. In addition, and as directed by RCr 9.56 ¹, the jury was specially instructed that if upon the whole case it had a reasonable doubt as to the defendant’s guilt it was required to find him not guilty and, as to those charges on which the instructions embraced more than one degree of the offense, that if it found the defendant guilty but had a reasonable doubt as to the degree it was required to find him guilty of the lower degree. The special instruction on reasonable doubt defined the term as “a substantial doubt, a real doubt, in that you must ask yourself not whether a better case might have been proven but whether, after hearing all the evidence, you actually doubt that the defendant is guilty.” This definition originated, of course, from a passage contained in Merritt v. Commonwealth, Ky., 386 S.W.2d 727, 729 (1965). It was specifically approved for inclusion as a part of the instructions for criminal cases in Whitaker v. Commonwealth, Ky., 418 S.W.2d 750, 752 (1967), and subsequently has been upheld in numerous cases.²

With regard to the request for a bifurcated trial, the argument is that the 5th-Amendment right of silence is diluted, or “chilled,” by the fact that if a defendant elects to avail himself of its protection he pays a penalty in not being able to give mitigating testimony pertinent only to the amount of punishment in event of his conviction. We discussed a closely-related problem in Brown v. Commonwealth, Ky., 551 S.W.2d 557, 559-560 (1977), in which a defendant tried in a bifurcated persistent-offender proceeding asserted the converse proposition that his right to testify in his own behalf during the first stage of the trial would be unconstitutionally diminished by use in the second stage of information elicited from him through cross-examination at the first stage. And our answer here is much the same as it was there. In this state both functions, the finding of guilt and the fixing of punishment, always have been performed by the jury. There is no constitutional requirement that it be otherwise, or that the two be performed by different juries. So, when they are performed by the same jury the defendant simply must weigh the good he can do against the harm he may bring upon himself by electing to testify. As observed in Brown, the state’s right of cross-examination is a chilling specter for the defendant to contemplate in any criminal case. We doubt, however, that even the Supreme Court of the United States is ready to declare that it violates the 5th Amendment. Needless to say, this court is not.

The right of cross-examination to which a defendant submits himself by testifying in his own behalf exists for the protection of the people at large. It is an indispensable countervailing factor in the adversary system. What the appellant asks us to do here is to trim it down, by confining it to the particular subject on which he chooses to testify. Logically, it would be the same for an accused rapist to insist that he be permitted to testify that he did not steal the victim’s purse without submitting himself to questioning as to whether he raped her. The 5th Amendment gives him no such protection. He may not, by selecting the subject upon which he chooses to testify, use his constitutional right of silence to shield him against cross-examination on other subjects that are relevant to the case as a whole.

We agree that under the rationale of Sherley v. Commonwealth, Ky., 558 S.W.2d 615 (1977), Whorton’s use of a pistol in firing a shot into the ceiling of Jerry’s Restaurant did not constitute an offense separate from the lst-degree robbery charge for which he was being tried and was convicted. Two of the three elements listed by KRS 515.020(1) as elevating robbery to the highest degree are (1) being armed with a deadly weapon or (2) using or threatening to use a dangerous instrument. Though not every “dangerous instrument” is a “deadly weapon,” a “deadly weapon” ordinarily is a “dangerous instrument” as well. Hence both of these elements were proved in this case. That is, Whorton could have been found guilty of lst-degree robbery either on the basis of his having been armed with a deadly weapon or on the basis of his having used or threatened to use that weapon. Neither, however, can be split off from the other and be treated as a separate offense. It was error to submit to the jury the charge of wanton endangerment growing out of the firing of a shot into the ceiling.

We shall not undertake to discuss at length the definition of reasonable doubt offered by Whorton as against the one given by the trial court. The point was noticed by a faint lifting of the skirt in Taylor v. Kentucky, - U.S. -, 98 S.Ct. 1936, 56 L.Ed. 468 (1978), wherein it was observed that the definition given by the trial court “though perhaps not in itself reversible error, often has been criticized as confusing.” It probably is beyond cavil that in the field of law many things are confusing to some, and that some things, among them a good sample of opinions by the United States Supreme Court itself, are confusing to all. We are at a loss to comprehend how a doubt may be considered “reasonable” if it is without substance, and therefore is insub-' stantial. The definition of “reasonable doubt” that has been approved by this court in recent years was borne of courtroom experience and discussion with jurors who had freshly emerged from the task of wrestling with an intangible concept, and who quite often were disposed to equate the term with “any shadow of a doubt,” or with a querulous sense of disappointment that somehow the prosecution had not proved its case to the degree that the jurors could arrive at a verdict without perspiring. Be that as it may, we now throw in the towel. As noted in Merritt v. Commonwealth, Ky., 386 S.W.2d 727, 729 (1965), we were never so presumptuous anyway as to believe that where others had failed we might succeed. The long and short of it is that we can no longer approve this definition, but unless and until the highest judicial authority is willing to hold it constitutionally fatal, neither will this court do so. Under the circumstances, we are of the opinion that the jury in this case was sufficiently and properly instructed on the subject.

From time immemorial the emphasis with regard to jury instructions in this state has been placed on simplicity. “The function of instructions in this jurisdiction is only to state what the jury must believe from the evidence (and in a criminal case, beyond a reasonable doubt) in order to return a verdict in favor of the party who bears the burden of proof.” Webster v. Commonwealth, Ky., 508 S.W.2d 33, 36 (1974). Thus we have sought to avoid abstract legal principles, presumptions,³ comments on the weight of the evidence, and references to the burden of proof, which is cast by the form of instruction requiring that in order to make an affirmative finding the jury must, on the basis of the evidence, believe certain specified facts to be true. This approach minimizes the possibility of intrusion by the judge into that particular area of decisionmaking which belongs exclusively to the jury, and it minimizes the possibility of error in that respect. Many lawyers and some judges, including the writer of this opinion, abhor the system that prevails in the federal trial courts, where at the close of the evidence the judge assumes the pulpit and turns preacher, droning out sweaty reams of boilerplate that few jurors really could be expected to digest.

Any thought that our form of instructions might have been designed for the simple-minded would be absurd. Its philosophy is to keep the jury strictly in its place, to keep the judge strictly in his place, to facilitate uniformity, to minimize error, and to avoid prolixity.

To abdicate this wholesome philosophy and flee to the soporific style of the federal courts for the mere sake of taking a step toward nationwide homogeneity would be regrettable. If there is to be a uniform system for the country, better might we entertain the hope that some consideration be given to the proposition that ours may be the preferable choice. Although the Supreme Court’s reference to the instructions in Taylor as “skeletal” and “Spartan” may not have been so intended, it was more of a compliment than a slur. Indeed, we ourselves have said that instructions ought to provide “only the bare bones.” Cox v. Cooper, Ky., 510 S.W.2d 530, 535 (1974). To suggest that they are undernourished simply because they so appear in comparison with the bloated and cumbersome instructions customarily given in the federal courts is nothing less than a symptom of myopia.

In Taylor a judgment of the Franklin Circuit Court was reversed because the trial court declined to instruct the jury that the law presumes a defendant innocent — and this despite the fact that on voir dire the jurors had already signified that they understood that proposition! If the trial court’s “truncated discussion of reasonable doubt . . . was hardly a model of clarity,” as remarked in Taylor, we must confess that we have a similar difficulty with the Taylor opinion itself.

The dissenting members of our court feel that the holding in Taylor is confined to the facts of the case. They draw that inference from the next-to-last sentence of the opinion (emphasis added): “We hold that on the facts of this case4 the trial court’s refusal to give petitioner’s requested instruction in the presumption of innocence resulted in a violation of his right to a fair trial as guaranteed by the Due Process Clause of the Fourteenth Amendment.”

Admittedly, the weight of evidence against Whorton was far greater than it was against the defendant in Taylor. But does the Supreme Court actually mean to suggest that a defendant’s right to the instruction can be made, ultimately, to stand or fall on the weight of the evidence in a giyen case? If so, then every case in which the trial court refused to give it will have to be decided according to the Chapman-Harrington harmless-error test. If that was the intention, it would have been considerate of the court to say so. It may be that the question of harmless error was not argued in that case, but “a model of clarity” would have left a clean cut rather than a jagged stump. After all, it might reasonably have been foreseen that this court would have to apply the decision to a goodly number of other cases then in the process of appeal in this state, Whorton’s being but one of them.

Those of us in the majority would like to be able to hold that this newly-declared constitutional requirement is subject to the harmless-error rule, but we are afraid it might not stick. We know very well that in actuality Taylor was no more “prejudiced” in his case than Whorton was in this one. Yet Taylor contains no hint that it might have been appropriate to consider whether the error was in fact prejudicial. To bring this discussion to a merciful end, we read Taylor to mean that when an instruction on the presumption of innocence is asked for and denied there is a reversible error. If it means something short of that, we shall welcome further enlightenment from the only source that seems to be able either to construe or to amend the Constitution.

The judgment is reversed with directions for a new trial.

All concur except for CLAYTON and STEPHENSON, JJ., who dissent.

1 . In view of Taylor v. Kentucky, - U.S. -, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978), RCr 9.56 was amended as of July 1, 1978, to require inclusion of the presumption of innocence.

2 . Also in view of Taylor v. Kentucky, supra n.1, RCr 9.56 has been amended to caution against any attempt to define “reasonable doubt.”

3 . See Mason v. Commonwealth, Ky., 565 S.W.2d 140 (1978), in which future reference to the presumption of sanity was proscribed.

4 . On what other facts an appellate court might rest its decision we hesitate to guess.