Whorton v. Com.

• Decision Date: 25 July 1978
• Citation: 570 S.W.2d 627
• Parties: Harold WHORTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 627

570 S.W.2d 627

Harold WHORTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Supreme Court of Kentucky.

July 25, 1978.

Rehearing Denied Oct. 10, 1978.

Terrence R. Fitzgerald, Deputy Public Defender, Daniel T. Goyette, Associate Director, Louisville, for appellant.

Robert F. Stephens, Atty. Gen., Victor Fox, Asst. Atty. Gen., Frankfort, for appellee.

PALMORE, Chief Justice.

Harold Whorton appeals from a judgment sentencing him to consecutive terms aggregating 230 years of imprisonment pursuant to a verdict finding him guilty on 10 counts of 1st-degree robbery, two counts of 1st-degree wanton endangerment, and two counts of 1st-degree attempted robbery.

The various charges grew out of three separate incidents. At a pre-daylight hour on May 15, 1976, a black male entered the Krispy Kreme Doughnut Shop in or near Shively carrying a pistol in one hand and a knife in the other. He proceeded to rob the store and three of its employes. The three employes later identified Whorton as the robber. Late in the evening of the same day a black male carrying a gun in one hand and a knife in the other entered and robbed the Burger Chef Restaurant on Shelbyville Road. Two of the restaurant employes then present in the restaurant later identified Whorton as the robber. On June 1, 1976, around midnight, a man came into Jerry's Restaurant on Brownsboro Road and, after ordering two cheeseburgers, stuck a gun in the face of the waitress, announced that "this is a robbery," and asked for the manager, who was in the back of the restaurant. When the manager came up front the robber herded all of the patrons and employes together, took the money from the customers' wallets, forced the manager to give him the money from a safe, and left the assembled company together in a back room before leaving. Meanwhile, however, one of the customers managed to sneak away unnoticed and called the police from another restaurant across the street. Shortly thereafter a police officer gave chase to an automobile departing the vicinity and ran it down when it struck a fire hydrant. Whorton emerged from the automobile and pointed a pistol at the officer, but dropped it when commanded to do so. Whorton and a companion were taken at once to Jerry's Restaurant, where 10 of the persons present during the robbery identified Whorton as the robber.

During the episode at Jerry's Restaurant, while he was directing the employes and patrons into the rear area of the premises, Whorton said, "If you don't think I'll shoot you, I'll prove it," and fired a shot into the ceiling. This particular act on his part was the basis for one of the wanton endangerment charges (the other endangerment count was for pointing a gun at the arresting officer), pursuant to which he was sentenced to five years in the penitentiary.

Whorton did not testify. The only evidence in his defense was given by his wife and her sister, who offered alibi testimony with regard to his whereabouts during the night on which the doughnut-shop robbery occurred.

Prior to the trial Whorton moved, among other things, that the issues of guilt or innocence be submitted to the jury separately from the fixing of the penalty or penalties, in order that he might appear as a witness only at the second stage for the purpose of showing mitigating circumstances, including his valorous military service during the Korean Conflict. Although neither our statutes nor rules of court authorize such a bifurcation except in persistent-offender and capital cases (cf. KRS 532.080, KRS 532.025(1)(b)), he contends that the trial court's refusal to grant it deprived him of a fair trial.

At the close of the evidence and before the jury was instructed, counsel for Whorton tendered several federal-court type instructions which the trial court declined to give. One of these, undertaking to define reasonable doubt, was as follows:

"A reasonable doubt is a fair doubt based upon reason and common sense and arising from the state of the evidence. It is rarely possible to prove anything to an absolute certainty. The meaning of the rule is that the proof must be such as to exclude, not every hypothesis or possibility of innocence, but any fair and rational hypothesis except that of guilt; what is required is not an absolute or mathematical certainty but a moral certainty. An accused is not to be convicted on mere suspicion or conjecture. A reasonable doubt may arise, not only from the evidence produced, but also from a lack of evidence. Since the burden is upon the prosecution to prove the accused guilty beyond a reasonable doubt of every essential element of the crime charged, an accused has the right to rely upon failure of the prosecution to establish such proof. (An accused may also rely upon evidence brought out on cross-examination of witnesses for the prosecution.) The law does not impose upon an accused the duty of producing any evidence. A reasonable doubt exists in any case when, after careful and impartial consideration of all the evidence, the jury members do not feel convinced to a moral certainty that an accused is guilty of the offense(s) charged."

Another, instructing on the presumption of innocence, and substantially similar to the one offered and refused in Taylor v. Kentucky, --- U.S. ----, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978), was as follows:

"The law presumes an accused to be innocent of crime. He begins the trial with a clean slate, with no evidence against him. And the law permits nothing but legal evidence presented before the jury to be considered in support of any charge against the accused. So the presumption of innocence alone is sufficient to acquit an accused unless the jury members are satisfied beyond a reasonable doubt of the accused's guilt from all the evidence in the case."

As given by the trial court, each of the instructions covering the various charges submitted to the jury authorized a finding of guilt only if the jury believed, (a) from the evidence and (b) beyond a reasonable doubt, that the defendant had committed the acts, with the requisite criminal intent, that constituted the respective offense. In addition, and as directed by RCr 9.56 ¹, the jury was specially instructed that if upon the whole case it had a reasonable doubt as to the defendant's guilt it was required to find him not guilty and, as to those charges on which the instructions embraced more than one degree of the offense, that if it found the defendant guilty but had a reasonable doubt as to the degree it was required to find him guilty of the lower degree. The special instruction on reasonable doubt defined the term as "a substantial doubt, a real doubt, in that you must ask yourself not whether a better case might have been proven but whether, after hearing all the evidence, you actually doubt that the defendant is guilty." This definition originated, of course, from a passage contained in Merritt v. Commonwealth, Ky., 386 S.W.2d 727, 729 (1965). It was specifically approved for inclusion as a part of the instructions for criminal cases in Whitaker v. Commonwealth, Ky., 418 S.W.2d 750, 752 (1967), and subsequently has been upheld in numerous cases. ²

With regard to the request for a bifurcated trial, the argument is that the 5th-Amendment right of silence is diluted, or "chilled," by the fact that if a defendant elects to avail himself of its protection he pays a penalty in not being able to give mitigating testimony pertinent only to the amount of punishment in event of his conviction. We discussed a closely-related problem in Brown v. Commonwealth, Ky., 551 S.W.2d 557, 559-560 (1977), in which a defendant tried in a bifurcated persistent-offender proceeding asserted the converse proposition that his right to testify in his own behalf during the first stage of the trial would be unconstitutionally diminished by use in the second stage of information elicited from him through cross-examination at the first stage. And our answer here is much the same as it was there. In this state both functions, the finding of guilt and the fixing of punishment, always have been performed by the jury. There is no constitutional requirement that it be otherwise, or that the two be performed by different juries. So, when they are performed by the same jury the defendant simply must weigh the good he can do against the harm he may bring upon himself by electing to testify. As observed in Brown, the state's right of cross-examination is a chilling specter for the defendant to contemplate in any criminal case. We doubt, however, that even the Supreme Court of the United States is ready to declare that it violates the 5th Amendment. Needless to say, this court is not.

The right of cross-examination to which a defendant submits himself by testifying in his own behalf exists for the protection of the people at large. It is an indispensable countervailing factor in the adversary system. What the appellant asks us to do here is to trim it down, by confining it to the particular subject on which he chooses to testify. Logically, it would be the same for an accused rapist to insist that he be permitted to testify that he did not steal the victim's purse without submitting himself to questioning as to whether he raped her. The 5th Amendment gives him no such protection. He may not, by selecting the subject upon which he chooses to testify, use his constitutional right of silence to shield him against cross-examination on other subjects that are relevant to the case as a whole.

We agree that under the rationale of Sherley v. Commonwealth, Ky., 558 S.W.2d 615 (1977), Whorton's use of a pistol in firing a shot into the ceiling of Jerry's Restaurant did not constitute an offense separate from the 1st-degree robbery charge for which he was being tried and was convicted. Two of the three elements listed by KRS 515.020(1) as elevating robbery to the highest degree are (1) being armed with a deadly weapon or (2) using or...