Com. v. McIntosh

Decision Date16 February 1983
Citation646 S.W.2d 43
PartiesCOMMONWEALTH of Kentucky, Movant, v. Joe McINTOSH, Jr., Respondent.
CourtSupreme Court of Kentucky

Steven L. Beshear, Atty. Gen., Suzanne Guss, Asst. Atty. Gen., Frankfort, for movant.

Jack Emory Farley, Public Advocate, Frankfort, Eleanore M. Garber, Allison, Soreff & Garber, Louisville, for respondent.


This appeal is from a judgment entered April 30, 1981, based on a jury verdict convicting McIntosh of receiving stolen property and sentencing him to two years in prison. The Court of Appeals reversed and remanded. We reverse the Court of Appeals and reinstate the conviction.

The only issue is whether the trial court's failure to give an instruction that no adverse inference should be drawn from the failure of the accused to testify is reversible error.

The Court of Appeals found that the case of Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981), was dispositive of the issue.

McIntosh was convicted of receiving stolen property consisting of four shotguns and three pistols. He did not testify in his own defense. Prior to the trial judge's instructions to the jury, the defense counsel requested an instruction on his election not to testify. The instruction was not given. The Court of Appeals reversed on the basis of Carter, supra. It did concede that the evidence of guilt was substantial. This review followed.

In Carter, the United States Supreme Court held that a Kentucky trial court is constitutionally required, upon proper request, to instruct the jury that no adverse inferences may be drawn from the defendant's failure to testify. The Supreme Court declined to reach the question of harmless error because it was not presented to the Supreme Court of Kentucky.

Consequently, Carter leaves open the question of whether under certain circumstances the failure to give the requested instruction could be nonprejudicial error pursuant to the standard set in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

We are persuaded that the Mississippi Supreme Court reached a reasonable disposition of a similar question in Richardson v. Mississippi, 402 So.2d 848 (1981). As early as 1930, Mississippi held that the failure to give such an instruction, although error, was harmless if guilt was manifest. Spencer v. State, 157 Miss. 624, 128 So. 770 (1930). In Richardson, supra, Mississippi held that where guilt is established beyond a reasonable doubt by overwhelming evidence the failure to give such an instruction is harmless. Other cases which follow this rule include Franklin v. State, Nev., 646 P.2d 543 (1982) and Parker v. State, Ind., 425 N.E.2d 628 (1981). We agree.

Here proof of guilt was overwhelming. Because of his conversation with Raleigh several days after the theft, McIntosh was on notice that the guns had been stolen. The guns were stored in an abandoned house near McIntosh's home....

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75 cases
  • Quarels v. Com.
    • United States
    • Supreme Court of Kentucky
    • August 26, 2004 the jury that no adverse inference should be drawn simply from the fact that a defendant did not testify at trial, Commonwealth v. McIntosh, 646 S.W.2d 43 (1983), and also when the trial court allowed Commonwealth to comment on the defendant's constitutional privilege against self-incrim......
  • Ragland v. Commonwealth, No. 2002-SC-0388-MR (KY 11/18/2004)
    • United States
    • Supreme Court of Kentucky
    • November 18, 2004
    ...error beyond a reasonable doubt standard to trial court's failure to give "no adverse inference" instruction); Commonwealth v. McIntosh, Ky., 646 S.W.2d 43 (1983) 19. See Childers, 56 S.W.2d at 353-54; Sebree v. Commonwealth, 200 Ky. 534, 255 S.W. 143, 145-46 (1923); McDonald v. Commonwealt......
  • Thacker v. Com., No. 2003-SC-0430-MR.
    • United States
    • Supreme Court of Kentucky
    • June 15, 2006
    ...substantial possibility that the outcome of the case would have been different without the presence of that error. Commonwealth v. McIntosh, 646 S.W.2d 43, 45 (Ky.1983). The United States Supreme Court has held that an erroneous jury instruction that omits an essential element of the offens......
  • Sherley v. Com.
    • United States
    • Supreme Court of Kentucky
    • December 22, 1994
    ...was merely cumulative, and there is no substantial possibility that the result would have been any different. Cf. Commonwealth v. McIntosh, Ky., 646 S.W.2d 43 (1983). The U.S. Supreme Court held that the proper standard in a federal habeas corpus case is that of Kotteakos v. United States, ......
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