James v. Com., 82-SC-394-MR

• Decision Date: 15 November 1984
• Docket Number: No. 82-SC-394-MR,82-SC-394-MR
• Citation: 679 S.W.2d 238
• Parties: Michael P. JAMES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 238

679 S.W.2d 238

Michael P. JAMES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 82-SC-394-MR

Supreme Court of Kentucky.

Nov. 15, 1984.

C. Thomas Hectus, Gittleman & Barber, Louisville, for appellant.

David L. Armstrong, Atty. Gen., Penny R. Warren, Asst. Atty. Gen., Frankfort, for appellee.

WINTERSHEIMER, Justice.

The convictions of Michael P. James for first-degree rape, second-degree burglary, receiving stolen property under $100, and first-degree persistent felony offender, were originally affirmed by this Court on March 30, 1983. James v. Commonwealth, Ky., 647 S.W.2d 794 (1983).

The United States Supreme Court granted certiorari and held that for federal constitutional purposes, James adequately invoked his substantive right to jury guidance, and Kentucky's distinction between admonitions and instructions is not the kind of firmly established and regularly followed state practice that can prevent implementation of a federal constitutional right. James v. Kentucky, --- U.S. ----, 104 S.Ct. 1830, 1835, 80 L.Ed.2d 346 (1984), mandate issued June 25, 1984. The U.S. Supreme Court did not reach the question of harmless error and remanded the matter for further proceedings.

In our first consideration of the James case, it was not necessary to decide whether it was harmless error beyond a reasonable doubt for the trial court to refuse to give a no-adverse inference instruction during the penalty phase of the trial because this Court determined that under long-standing Kentucky law, James's request for an "admonition" was not the equivalent of a request for an "instruction." James, supra.

Following the return of the guilty verdict, James was sentenced to 20 years on the rape charge, 10 years on burglary, 12 months on receiving stolen property, and his sentence on the rape charge was enhanced from 20 years to life after his conviction as a first-degree persistent felon.

The issue presented here is whether the refusal of the trial court to give a requested admonition regarding the defendant's failure to testify was harmless error beyond a reasonable doubt.

James argues that the failure to give an admonition can never be harmless error.

This Court affirms the judgment because the denial of the requested admonition under the facts of this case was nonprejudicial or harmless error.

In Commonwealth v. McIntosh, Ky., 646 S.W.2d 43 (1983), we held that the failure to give a requested instruction on the effect of the defendant's refusal to testify can be nonprejudicial error if there is overwhelming evidence of guilt and the result would not have been any different when the case is considered as a whole.

In Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981), 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 U.S. Supreme Court declined to reach the question of harmless error. Consequently, Carter, supra, 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 out in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

In Chapman, supra, the court emphasized that some constitutional rights are so basic to a fair trial that their infraction can never be harmless error. Chapman involved repeated and direct references to the silence of the defendant at trial, coupled with inconclusive evidence. It appears that the court did not believe that any and all references by the trial court and/or the prosecutor to the defendant's silence were of such a constitutional magnitude that they could never be harmless error. As noted in Chapman, reversal is inappropriate where the comments did not contribute to the verdict.

In Carter, supra, the court compared the lack of jury guidance with the impact of adverse comment and instructions on the defendant's failure to testify, such as occurred in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). The argument by James that a Carter violation is more harmful than a Griffin violation is unconvincing. We believe that because adverse comment on a defendant's silence may be nonprejudicial error, then also, the absence of comment may be equally harmless. See, Chapman.

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