Carter v. Kentucky

• Decision Date: 09 March 1981
• Docket Number: No. 80-5060,80-5060
• Citation: 101 S.Ct. 1112,450 U.S. 288,67 L.Ed.2d 241
• Parties: Lonnie Joe CARTER, Petitioner, v. Commonwealth of KENTUCKY
• Court: U.S. Supreme Court

450 U.S. 288

101 S.Ct. 1112

67 L.Ed.2d 241

Lonnie Joe CARTER, Petitioner,

v Commonwealth of KENTUCKY.

No. 80-5060.

Argued Jan. 14, 1981.

Decided March 9, 1981.

Syllabus

At petitioner's criminal trial in a Kentucky court in which no testimony was introduced on behalf of the defense, the trial judge refused petitioner's requested jury instruction that "[t]he [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." On appeal from petitioner's conviction, the Kentucky Supreme Court rejected his argument that the Fifth and Fourteenth Amendments require the trial judge to give the requested instruction, holding that such instruction would have required the judge to "comment upon" the petitioner's failure to testify in violation of a Kentucky statute prohibiting such a comment.

Held: Petitioner had a right to the requested instruction under the privilege against compulsory self-incrimination of the Fifth Amendment as made applicable to the States by the Fourteenth Amendment, a state trial judge having a constitutional obligation, upon proper request, to minimize the danger that the jury will give evidentiary weight to a defendant's failure to testify. Pp. 295-305.

(a) The penalty imposed upon a defendant for the exercise of his constitutional privilege not to testify is severe when there is an adverse comment on his silence, Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, but even without adverse comment, a jury, unless instructed otherwise, may well draw adverse inferences from a defendant's silence. Instructions to the jury on the law are perhaps nowhere more important than in the context of the Fifth Amendment privilege against compulsory self-incrimination. While no judge can prevent jurors from speculating about why a defendant stands mute in the face of a criminal accusation, a judge can, and must, if requested to do so, use the unique power of the jury instruction to reduce that speculation to a minimum. Pp. 299-303.

(b) Kentucky's interest in protecting the defendant is insufficient justification for refusing the requested instruction, since "[i]t would be strange indeed to conclude that this cautionary instruction violates the very constitutional provision it is intended to protect." Lakeside v. Oregon, 435 U.S. 333, 339, 98 S.Ct. 1091, 1094, 53 L.Ed.2d 319. The fact that the jury was instructed to determine petitioner's guilt "from the evidence alone" does not excuse the refusal to give the requested instruction, since a jury, not knowing the technical meaning of "evidence," can be expected to notice a defendant's failure to testify, and, without limiting instructions, to speculate about incriminating inferences from a defendant's silence. Nor was an instruction that the law presumes a defendant to be innocent a substitute for the requested instruction, since it is doubtful that it contributed significantly to the jury's proper understanding of petitioner's failure to testify. And defense counsel's own argument that petitioner did not have to take the stand could not have had the purging effect that the requested instruction would have had. Pp. 303-304.

Ky., 598 S.W.2d 763, reversed and remanded.

Kevin Michael McNally, Frankfort, Ky., for petitioner.

Robert V. Bullock, Frankfort, Ky., for respondent.

Justice STEWART delivered the opinion of the Court.

In this case a Kentucky criminal trial judge refused a defendant's request to give the following jury instruction: "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 Supreme Court of Kentucky found no error.¹ We granted certiorari to consider the petitioner's contention that a defendant, upon request has a right to such an instruction under the Fifth and Fourteenth Amendments of the Constitution. 449 U.S. 819, 101 S.Ct. 71, 66 L.Ed.2d 21.²

I

A.

In the early morning of December 22, 1978, Officer Deborah Ellison of the Hopkinsville, Kentucky, Police Department, on routine patrol in downtown Hopkinsville, noticed something in the alley between Young's Hardware Store and Edna's Furniture Store. She backed her car up, flashed her spotlight down the alley, and saw two men stooped alongside one of the buildings. The men ran off. Officer Ellison drove her squad car down the alley and found a hole in the side of Young's Hardware Store. She radioed Officer Leroy Davis, whom she knew to be in the area, informing him that two men had fled from the alley.

Soon after receiving Ellison's call, Officer Davis saw two men run across a street near where he had been patrolling. The two ran in opposite directions, and Davis proceeded after one of them. Following a chase, during which he twice lost sight of the man he was pursuing, Davis was finally able to stop him. The man was later identified as the petitioner, Lonnie Joe Carter. During the course of the chase, Davis saw the petitioner drop two objects: a gym bag and a radio tuned to a police band. When apprehended, the petitioner was wearing gloves but no jacket. While Davis was pursuing the petitioner, Officer Ellison inspected the alley near the hole in the building wall. She found two jackets, along with some merchandise that had apparently been removed from the hardware store.

After arresting the petitioner, Davis brought him to Officer Ellison to see if she could identify him as one of the men she had seen in the alley. Ellison noted that he was of similar height and weight to one of the men in the alley, and that he wore similar clothing, but because it had been too dark to get a good view of the men's faces, she could not make a more positive identification. The petitioner was then taken to police headquarters.

B

The petitioner was subsequently indicted for third-degree burglary of Young's Hardware Store. The indictment also charged him with being a persistent felony offender, in violation of Ky.Rev.Stat. § 532.080 (Supp.1980), on the basis of previous felony convictions. At the trial, the voir dire examination of prospective jurors was conducted solely by the judge.³ The prosecutor's opening statement recounted the evidence expected to be introduced against the petitioner. The opening statement of defense counsel began as follows:

"Let me tell you a little bit about how this system works. If you listened to Mr. Ruff [the prosecutor] you are probably ready to put Lonnie Joe in the penitentiary. He read you a bill, a true bill that was issued by the Grand Jury. Now, the Grand Jury is a group of people that meet back here in a room and the defendant is not able or not allowed to present any of his testimony before this group of people. The only thing that the Grand Jury hears is the prosecution's proof and I would say approximately what Mr. Ruff has said to you. I suppose that most of you would issue a true bill if Mr. Ruff told you what he has just told you and you didn't have a chance to hear what the defendant had to say for himself.

"Now, that is just completely contrary to our system of law. A man, as the Judge has already told you, . . . is innocent until . . . proved guilty . . . ."

The prosecution rested after calling Officers Ellison, Davis, another officer, and the owner of Young's Hardware Store. The trial judge then held a conference, outside of the hearing of the jury, to determine whether the petitioner would testify, and whether the prosecutor would be permitted to impeach the petitioner with his prior felony convictions. Defense counsel stated:

"Judge, I think possibly the only reservation Mr. Carter might have about testifying would be his impeachment by the use of these previous offenses that he is aware of and has told me about. I would like to explain to him in front of you what this all means."

Counsel then explained to the petitioner that if he testified the Commonwealth could "use the fact that you have several offenses on your record . . . [to] impeach your . . . propensity to tell the truth . . . ." Counsel added that in his experience this was "a heavy thing; it is very serious, and I think juries take it very seriously . . . ." The judge indicated that under Kentucky law he had "discretionary control" over the use of prior felony convictions for impeachment, and cautioned the prosecutor that he might be inviting a reversal if he introduced more than three prior felony convictions, strongly suggesting that the prosecutor rely on the most recent convictions only. The judge then addressed the petitioner:

"THE COURT: . . . You can sit there and say nothing and it cannot be mentioned if you don't testify but if you do these other convictions can be shown to indicate to the jury that maybe you are not telling the truth.

* * * * *

"THE COURT: . . . [Y]ou talk to Mr. Rogers [defense counsel] and then tell us what you want to do.

* * * * *

"THE COURT: Now, Lonnie, you have come back after a private conference with your lawyer, Mr. Rogers[,] and you have told me you have decided not to take the stand?

"LONNIE JOE CARTER: Yes, Sir." ⁴

Upon returning to open court, the petitioner's counsel advised the court that there would be no testimony introduced on behalf of the defense. He then requested that the following instruction be given to the jury:

"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 trial court refused the request.

The prosecutor began his summation by stating that he intended to review the evidence "that we were privileged to hear," and cautioned the jury to "[c]onsider only what you have heard up here as evidence in this case and not something that you might speculate happened or could have happened. . . ." After mentioning admissions that the petitioner had allegedly made at police headquarters,⁵ the prosecutor argued:

"Now that...