751 F.2d 858 (6th Cir. 1985), 84-5157, Finney v. Rothgerber

Docket Nº:84-5157.
Citation:751 F.2d 858
Party Name:Lazarus C. FINNEY, Plaintiff-Appellant, v. Harry J. ROTHGERBER, Jr., Kentucky Parole Board, George Wilson, Defendants-Appellees.
Case Date:January 08, 1985
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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751 F.2d 858 (6th Cir. 1985)

Lazarus C. FINNEY, Plaintiff-Appellant,


Harry J. ROTHGERBER, Jr., Kentucky Parole Board, George

Wilson, Defendants-Appellees.

No. 84-5157.

United States Court of Appeals, Sixth Circuit

January 8, 1985

Argued Oct. 5, 1984.

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Frank W. Heft, Jr., Jefferson Dist. Public Defender, Louisville, Ky., for plaintiff-appellant.

David L. Armstrong, Atty. Gen. of Ky., Penny R. Warren, Asst. Atty. Gen., David W. Mossbrook, argued, Frankfort, Ky., for defendants-appellees.

Before LIVELY, Chief Judge, KRUPANSKY, Circuit Judge, and CELEBREZZE, Senior Circuit Judge.

LIVELY, Chief Judge.

Two issues are presented in this habeas corpus appeal. The first is whether the state trial court violated a criminal defendant's constitutional right to be present at every stage of the proceedings by denying a motion to postpone the conclusion of the trial when the defendant failed to return to the courtroom following a luncheon recess. If the first issue is not dispositive, the second is whether the trial court violated the defendant's Fifth Amendment right to be free of compulsory self-incrimination by declining to give a requested instruction in the persistent felony offender phase of a bifurcated trial to the effect that the jury could draw no adverse inferences from the defendant's failure to testify.



The petitioner, Finney, was charged by a Kentucky grand jury with theft by unlawful taking of property with a value in excess of $100, a "class D felony," and with being a persistent felony offender. The penalty upon conviction of a class D felony is an indeterminate sentence of one to five years imprisonment. KRS 532.060. The procedure to be followed when a person is charged as a persistent felony offender is set forth in KRS 532.080(1):

(1) When a defendant is found to be a persistent felony offender, the jury, in lieu of the sentence of imprisonment assessed under KRS 532.060 for the crime of which such person presently stands convicted, shall fix a sentence of imprisonment as authorized by subsection (4) of this section. When a defendant is charged with being a persistent felony offender, the determination of whether or not he is such an offender and the punishment to be imposed pursuant to subsection (4) of this section shall be determined in a separate proceeding from that proceeding which resulted in his last conviction. Such proceeding shall be conducted before the court sitting with the jury that found the defendant guilty of his most recent offense unless the court for good cause discharges that jury and impanels a new jury for that purpose.

Finney's trial began on July 28, 1981. Finney was present throughout his trial for theft and testified in his own defense. He was represented by counsel. On the morning of July 29th the jury found Finney guilty of theft by unlawful taking and fixed his punishment at imprisonment for one year, the minimum provided for that offense. The trial judge then commenced the second phase of the trial, with the prosecuting attorney and defense counsel making opening statements. Finney was present and seated beside his counsel during opening statements. In order to avoid an interruption in the presentation of evidence, the trial judge announced an early luncheon recess and instructed the jury to return at 12:45 to continue the trial. Finney was free on bail and left the court room following the recess.


When court reconvened at 12:45 Finney had not returned. The trial judge waited approximately 40 minutes and then made the following statement on the record:

THE COURT: The record will reflect that the jury reconvened at the time set by the Court, which is 12:45 P.M.; that the defendant, Lazarus Finney, who was also advised of the time to return, did not return at that time and the jury and the Court awaited his reappearance until twenty-two minutes after one o'clock, whereupon the Court announced that it

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would continue with the trial of the case in the absence of the defendant, Mr. Finney, who has apparently been delayed or has chosen not to re-appear.

Counsel for Finney objected on state procedural grounds to continuing the trial, but the objection was overruled.

The prosecution then presented evidence which met the requirements for finding Finney to be a persistent felony offender in the second degree as set forth in KRS 532.080(2). 1

(2) A persistent felony offender is a person who is more than twenty-one years of age and who stands convicted of a felony after having previously been convicted of two or more felonies. As used in this provision, a previous felony conviction is a conviction of a felony in this state or conviction of a crime in any other jurisdiction provided:

(a) That a sentence to a term of imprisonment of one year or more or a sentence to death was imposed therefor; and

(b) That the offender was over the age of eighteen years at the time the offense was committed; and

(c) That the defendant was imprisoned under sentence for such conviction prior to commission of the present felony.

Finney did not reappear and defense counsel offered no proof. However, he argued to the jury that Finney was not the "revolving door" type criminal at which the persistent felony offender statute was aimed since nearly ten years had passed since his two prior felony convictions and his record had been clean until his recent arrest.

Defense counsel requested the court to include the following instruction in his jury charge:

The defendant is not compelled to testify and the fact that he does not, cannot be used as an inference of guilt and should not prejudice him in any way.

The court refused to give this instruction, but did instruct on the presumption of innocence. The jury then returned a verdict finding Finney guilty of being a persistent felony offender in the second degree and enhanced his punishment for the theft charge to ten years imprisonment. This was the maximum enhancement permitted.


The trial court noted the verdict, but postponed formal imposition of sentence, making the following statement on the record:

The defendant elected or in some fashion failed to return to the court after having been found guilty of the primary charge of Theft by Unlawful Taking.

Finney appeared before the court for sentencing on August 27, 1981 and the court entered final judgment on that date. The judgment stated, inter alia:

On this 27th day of August 1981, the defendant, LAZARUS C. FINNEY, appeared in open Court with his attorney, MICHAEL MORRIS, and the Court inquired of the defendant and his counsel whether they had any legal cause to show why judgment should not be pronounced, and afforded the defendant and his counsel an opportunity to make statements in the defendant's behalf and to present any information in mitigation of punishment.

* * *

* * *

No sufficient cause having been shown why judgment should not be pronounced, sentence was imposed by the Court upon the defendant and it is therefore ORDERED AND ADJUDGED BY THE COURT that the defendant is guilty of the crimes of Theft by Unlawful Taking Over $100.00 and Persistent Felony Offender--II and his sentence is hereby fixed at one (1) year for Theft By Unlawful Taking Over $100.00, such sentence enhanced to ten (10) years by reason of the Persistent Felony Offender--II change for a maximum term of (10) years at hard labor in the State Penitentiary; and ...

(Underlining in original).

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Finney appealed to the Court of Appeals of Kentucky which affirmed with a published opinion. Finney v. Commonwealth, 638 S.W.2d 709 (Ky.App.1982). Finney argued in the court of appeals that there had been no "clear and unequivocal" waiver of his right to be present during the enhancement phase of his trial, and that continuing with the trial in his absence violated his constitutional right to be present as well as rights derived from Kentucky sources. He also asserted that the trial court's refusal to give a "no adverse inference" instruction violated his Fifth and Fourteenth Amendment right against compulsory self-incrimination as defined by the Supreme Court of the United States in Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981).

In affirming Finney's conviction and sentence the Court of Appeals wrote:

Appellant acknowledges that he was present during the opening statements of counsel and at sentencing; nevertheless, he argues that the Court abused its discretion in denying a continuance because it was not shown that his absence was voluntary. Under the facts the overwhelming inference is that his absence was voluntary: he clearly knew that the hearing was being conducted; he had prior knowledge of our system of justice; and he offered nothing on his own behalf either at the time or now to suggest that his absence was anything but a personal choice.

638 S.W.2d 710-11. The court also concluded that the Carter v. Kentucky requirement that a no adverse inference instruction be given if requested by the defendant at trial on a substantive charge was not to be extended to an enhancement proceeding. The court reasoned that when the statutorily required evidence had been presented, the persistent felony offender conviction "became a virtual fait accompli." Id. at 710. Under these circumstances the court felt that Finney was not substantially prejudiced by reason of any inference drawn from his silence.


The Supreme Court of Kentucky denied discretionary review of the court of appeals decision in an unpublished order and the Supreme Court of the United States denied certiorari. Finney v. Kentucky, 459 U.S. 1176, ...

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