Carpenter v. Leibson, s. 81-5179
| Decision Date | 23 July 1982 |
| Docket Number | 81-5516,Nos. 81-5179,s. 81-5179 |
| Citation | 683 F.2d 169 |
| Parties | Richard CARPENTER, Stephen Borders, Petitioners-Appellees (81-5179), Jerome C. Blair, Petitioner-Appellee (81-5516), v. Charles M. LEIBSON, Respondent-Appellant (81-5179 & 81-5516). |
| Court | U.S. Court of Appeals — Sixth Circuit |
Steven L. Beshear, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, Ky., for respondent-appellant.
Frank E. Haddad, Jr., Louisville, Ky., for Richard Carpenter.
Robert E. Fleming, Louisville, Ky., for Stephen Borders.
John Tim McCall, Martha A. Lawfer, Louisville, Ky., for Jerome C. Blair.
Before WEICK, * Senior Circuit Judge, KENNEDY, Circuit Judge and PHILLIPS, Senior Circuit Judge.
Respondent, Charles M. Leibson, appeals from the judgments by United States District Judge Allen (in the case of Carpenter and Borders) and United States District Judge Ballantine (in the case of Blair), both of the Western District of Kentucky, granting Petitioners' separate applications for writs of habeas corpus under 28 U.S.C. section 2254. For these reasons hereinafter stated, we affirm.
Petitioners-Appellees were all members of the Louisville Police Department. In 1976 they were convicted by a jury in the Jefferson Circuit Court at Louisville, Kentucky, of two counts of wanton endangerment in the first degree and two counts of criminal mischief in the third degree, and sentenced to one year in the penitentiary. The convictions were for incidents which occurred on the night of March 30-31, 1976, in which shotgun and rifle shots were fired into various stores, bars, and automobiles.
Respondent Leibson was the trial judge in the case. He is the respondent because Petitioners Carpenter and Borders have not yet served their sentences, being on bond pending their state court appeals and these habeas proceedings; Petitioner Blair has served his sentence but is on probation under Respondent's supervision.
During their trial, their counsel moved for a directed verdict of acquittal on the grounds of insufficiency of the evidence at the close of the Commonwealth's case, but did not formally renew the motion at the close of all the evidence.
In an opinion dated February 19, 1978, the Court of Appeals of Kentucky reversed the convictions and ordered a new trial because of insufficient evidence to support the convictions. The Commonwealth petitioned for rehearing and on June 30, 1978, the Court of Appeals withdrew its original opinion and reissued it. This time the court reversed the convictions outright because of a total lack of evidence.
Chief Judge Boyce Martin, now of this court, filed a concurring opinion. He noted that the Commonwealth had raised for the first time on the petition for rehearing the question of the timing of the defendants' motion for directed verdict. In two cases decided after the defendants' trial-Kimbrough v. Commonwealth, 550 S.W.2d 525 (Ky.1977) and Long v. Commonwealth, 559 S.W.2d 482 (Ky.1977)-the Kentucky Supreme Court had laid down a new rule that the question of sufficiency of the evidence would not be preserved for appellate review unless the defendant had moved for a directed verdict at the close of all the evidence, not just at the close of the Commonwealth's case in chief. Chief Judge Martin stated:
Furthermore, Kimbrough represents a clear departure from prior law in this Commonwealth. Previously, a question of sufficiency of evidence could have been preserved either by a motion for directed verdict at the close of the Commonwealth's case, or at the close of all the evidence, or even in a motion for a new trial. See Crain v. Commonwealth, Ky., 484 S.W.2d 839, 842 (1972); Civil Rule 61.02, made applicable to criminal cases pursuant to Criminal Rule 13.04; Stone v. Commonwealth, Ky., 456 S.W.2d 43, 44 (1970).
The Commonwealth argued that since the defendants had not moved for a directed verdict at the close of all the evidence, they were foreclosed from raising the issue of sufficiency of the evidence on appeal.
Chief Judge Martin stated that those cases were not meant to be applied retroactively because they represented a clear departure from prior Kentucky law, in which a motion at the close of the state's evidence was sufficient. He held that "it would be fundamentally unfair to apply this newly created preservation of error rule to the facts and circumstances of this case" because the appellants could not have had notice of the change. Since the procedural change would significantly affect the appellants' substantial rights, applying the change retroactively would make it operate in the same manner as an ex post facto law, and would thus violate due process.
The Commonwealth appealed to the Supreme Court of Kentucky. On June 12, 1979, the Supreme Court of Kentucky issued an opinion affirming the Court of Appeals as to Petitioners Carpenter and Borders, but reversing as to Petitioner Blair. The court stated specifically that the evidence against Carpenter and Borders was insufficient. As to Blair, the court stated there was some relevant evidence but did not rule on its sufficiency.
The Kentucky Supreme Court granted the Commonwealth's petition for rehearing and on November 20, 1979, it vacated its first opinion and issued a new one. This time it reversed the Court of Appeals as to all three petitioners, thereby reinstating the convictions of all three. It did so solely on the basis that, under the new rule of Kimbrough v. Commonwealth, supra, the appellants' motions for directed verdict were not timely. Commonwealth v. Blair, 592 S.W.2d 132 (Ky.1979).
The posture of the sufficiency of the evidence question in the Kentucky Supreme Court therefore was that, in the first opinion which was later vacated, the court found insufficient evidence to support the convictions of Carpenter and Borders and some relevant evidence as to Blair; and in the second, final opinion it refused to consider the question of sufficiency of the evidence as to any of them because no formal motions for directed verdict were made at the close of all of the evidence.
In its opinion, the Supreme Court of Kentucky stated:
We rely substantially on two recent cases, Kimbrough v. Commonwealth, Ky., 550 S.W.2d 525 (1977) and Rudolph v. Commonwealth, Ky., 564 S.W.2d 1, cert. denied, 439 U.S. 1004, 99 S.Ct. 616, 58 L.Ed.2d 680 (1978). The procedural rule, as clarified in Kimbrough, is that 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. The rationale behind this rule being that: "If there has been no motion for a directed verdict at the close of all the evidence, it cannot be said that the trial judge has ever been given an opportunity to pass on the sufficiency of the evidence as it stood when finally submitted to the jury." Kimbrough, 550 S.W.2d at 529. Furthermore, "(w)e have held consistently that insufficiency of the evidence to support a verdict must be timely raised in the trial court-ordinarily by a motion for a directed verdict ... in order for the question to be reviewable on appeal." Rudolph, 564 S.W.2d at 4. See e.g., Long v. Commonwealth, 559 S.W.2d 482 (1977) and Butler v. Commonwealth, Ky., 560 S.W.2d 814 (1977).
Since respondents failed to move for a directed verdict at the close of all the evidence, the Kimbrough rule must be applied as we perceive no reason to retract from this position. We must remain firm in our adherence to specified procedure because United Mine Workers of America v. Morris, Ky., 307 S.W.2d 763, 766 (Ky.1957). Judicial consistency must be observed in order to maintain a responsible and efficient court system.
The opinion of the Court of Appeals is reversed, and the judgments of conviction for all three respondents are affirmed. (Id. 592 S.W.2d at 133; emphasis added.)
Certiorari was subsequently denied by the Supreme Court of the United States. Blair v. Kentucky, 449 U.S. 962, 101 S.Ct. 377, 66 L.Ed.2d 230 (1980). Justices Marshall and Brennan filed a dissent to the denial of certiorari, in which they analyzed the matter in much the same way that Chief Judge Martin had in the state court of appeals.
Petitioners Carpenter and Borders filed a petition for a writ of habeas corpus in the District Court for the Western District of Kentucky on December 8, 1980. On February 10, 1981, Chief Judge Allen granted the writ. He held that the retroactive application of the new procedural rule by the Kentucky Supreme Court was a denial of due process and, since both the Kentucky Court of Appeals and the Kentucky Supreme Court had found the evidence against them to be insufficient, the convictions should be set aside and the indictments dismissed.
Petitioner Blair filed his petition in the same District Court on March 9, 1981. On June 10, 1981, Judge Ballantine granted it. He found that Petitioner could not fairly be charged with anticipating the new rule of law, and that therefore consideration of the petition would not be barred by his untimely motion for directed verdict in the state court. He then went on to grant the petition on the basis that there was insufficient evidence against him.
Respondents' appeals from both judgments have been consolidated for oral argument.
The only issue in these appeals is whether the defendants in the trial court adequately raised the issue of the sufficiency of the evidence, so as to require the Supreme Court of Kentucky to rule on the issue which it avoided doing.
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