SEPT. 14, 2010

 By LawReader Senior Editor Stan Billingsley

 We have a great new Supreme Court.  The level of legal reasoning of our current seven justices is in our opinion the highest it has ever been. 

 One of the leading thinkers on the current Supreme Court is Justice Mary Noble from Lexington.  (She was recently elevated to Deputy Chief Justice.)

 The following opinions (the last one is a dissent) show the strength of her voice on the court. 

 In the Montgomery case she shows a practical justification for dealing with juror bias on voir dire.  We believe she  also makes a strong argument which can be used to rebut the “admonition presumption” which holds, “all jurors who receive an admonition not to consider  improperly admitted evidence are presumed to follow the admonition.”

 In  Edmonds, she dissents in a clear voice about the improper admission of victim impact evidence admitted during the guilt phase. (Prosecutors seek to do this to humanize the victim and deflect the jury from their duty to find facts by inflaming their passions.)

One suspects that the years Justice Noble spent as a trial judge provides her an advantage that Justices without that experience don’t have.

 Further in Edmonds Justice Noble presents the best argument yet written by the Ky. Supreme Court on the correct and incorrect use of the “harmless error” doctrine.

 Justice Noble has taken a stand in Edmonds (quoted below), that while a dissent, merits a close examination by all lawyers and judges.  If one didn’t read Justice Noble’s name on the opinion  in Edmonds,  one might think it was written by Professor Lawson or the late Justice Charles Leibson.  We can conceive of no greater compliment.

  We have found instances while writing our weekly synopsis of all Kentucky Appellate decisions (which are published weekly on, that raise questions about some rulings in which the “harmless error” doctrine appears to have been used to sweep errors under the rug.  In the past this rule was used, often without explanation, and gave the impression that it was merely being used as a shortcut to uphold convictions in favor of the Commonwealth. 

 There should be a great burden on any appellate judge  to justify the application of the Harmless Error rule after having found that an error was committed  and improper evidence has been admitted.   Justice Noble’s dissent in Edmonds reveals the correct standard that should be used before the Harmless Error rule is applied.  Someday this will be the law.

 History is full of strong dissents which ultimately become law.  We believe this dissent will one day be recognized.



KY   Montgomery v. Commonwealth of Kentucky, 819 S.W.2d 713 (Ky. 10/24/1991)


 …… Of the jurors who actually sat in the case, at least four, Kenneth Jones, Jerry Riley, James Suitor and William Rogers, answered questions acknowledging not only familiarity with the pretrial publicity surrounding the case, but also that they had formed opinions as to the appellants’ guilt.

 In each instance they asserted they believed they could put aside their preconceived opinions and be impartial, but, perhaps individually, and certainly collectively, these answers fail to meet the standard for a fair and impartial jury as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, and Section 11 of the Kentucky Constitution.

 Mere agreement to a leading question asking whether the jurors will be able to disregard what they have previously read or heard is not enough to discharge the court’s obligation to provide a neutral jury:

 ”The influence that lurks in an opinion once formed is so persistent that it unconsciously fights detachment from the mental processes of the average man. . . . No doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but the psychological impact requiring such a declaration before one’s fellows is often its father. . . .” Irvin v. Dowd, 366 U.S. 717, 728, 81 S.Ct. 1639, 6 L.Ed.2d 751, 759 (1961).

 “. . . the test is ‘whether the nature and strength of the opinion formed are such as in law necessarily. . . raise the presumption of partiality. The question thus presented is one of mixed law and fact. . . .’” Id., 6 L.Ed.2d at 756.

 Edmonds v. Commonwealth, No. 2007-SC-000350-MR (Ky. 11/25/2009) (Ky., 2009)


 I respectfully dissent as to the majority holdings that the erroneous admission of Kay Thomas’s testimony was harmless error and that the appellants were not entitled to an instruction on second-degree manslaughter as a lesser-included offense.

 I.                    Kay Thomas’s Testimony and Harmless Error

         The majority agrees that much of Thomas’s testimony was improper and exceeded the scope of allowable humanizing evidence. This means it was victim impact testimony which could not properly be given in the Commonwealth’s case in chief, if at all, because Thomas did not qualify to give such testimony as she was not among the statutorily eligible witnesses for victim impact testimony. Additionally, the record indicates that much of her

testimony was given even though the trial court had expressly ruled that she could not testify on those issues. Yet the majority concludes that this erroneous testimony—which included describing an international card campaign expressing outrage over the crime; saying that the victim had “met the devil” at the hands of the appellants; graphically describing his injuries and how she sat and held his hand; describing conversations with the victim’s exwife; and saying that his brown eyes turned blue on the day he died, among other non-substantive comments—was harmless because the evidence of guilt was otherwise overwhelming, meaning that the erroneous testimony had no influence on the verdict. I cannot join this conclusion.

         Over the years, we have struggled with how to apply the harmless error rule, RCr 9.24, to non-constitutional errors.11 At times, we have employed a guilt-based test that focuses on whether the result would have been different absent the error, usually by looking at whether the evidence other than that erroneously admitted was overwhelming (and in some outliers, merely “sufficient” for a guilty verdict). See, e.g., Brewer v. Commonwealth, 206 S.W.3d 313, 324-25 (Ky. 2006); Taylor v. Commonwealth, 175 S.W.3d 68, 72 (Ky. 2005); Abernathv v. Commonwealth. 439 S.W.2d 949, 952 (Ky. 1969). In other cases, we have looked at whether the error had any effect on, or

contributed to, the verdict returned by the jury. See Morgan v. Commonwealth, 189 S.W.3d 99, 108 n.27 (Ky. 2006); Jarvis v. Commonwealth, 960 S.W.2d 466, 471 (Ky. 1998).

  In recent years, the debate, at least as to the larger issue of “different result” versus “effect on the verdict,” appears to have been settled, with the effect-on-the-verdict test being the correct standard. See Harp v. Commonwealth, 266 S.W.3d 813, 818 (Ky. 2008); Monroe v. Commonwealth, 244 S.W.3d 69, 78 (Ky. 2008); Emerson v. Commonwealth, 230 S.W.3d 563, 570 (Ky. 2007); Vaughn v. Commonwealth, 230 S.W.3d 559, 561 (Ky. 2007). The weight of critical opinion supports this shift. See, e.g., Harry T. Edwards, To Err is Human, But Not Always Harmless: When Should Legal Error Be Tolerated?, 70 N.Y.U. L. Rev. 1167 (1995) (arguing in favor of an effect-on-the verdict test); Roger J. Traynor, The Riddle of Harmless Error (1970) (same).

 Deciding on “effect on the verdict” over “different result” alone does not answer all questions related to the harmless error doctrine, however. For example, how much effect must the error have had on the verdict before the error is sufficiently prejudicial to require reversal? Is any effect enough or must there be a substantial effect? These are difficult questions to which we have unfortunately provided inconsistent answers. Though the general focus on effects on the verdict has been steady in our recent decisions, the exact formulations of the standard to be applied have differed, sometimes substantially. See Harp, 266 S.W.3d at 818 (explaining the test as simply whether an error affected the verdict); Monroe, 244 S.W.3d at 78 (describing the test as whether an error had a “reasonable probability” affecting the verdict); Emerson, 230 S.W.3d at 570 (applying a test of whether there was a “reasonable possibility that [the errorl affected the verdict"); Vaughn, 230 S.W.3d at 561 (employing a test of whether the error "possibl[yl . . . had an effect on the verdict"). Though these "tests" arguably differ little, and despite a proper core concern for the impact of an error on a jury's verdict, they are inconsistent.

 Rather than continuing to muddle through the muck and trying to invent the wheel anew, our most recent cases have sought guidance from the federal courts. Specifically, we have adopted the harmless-error standard announced in Kotteakos v. United States, 328 U.S. 750 (1946). See Crossland v. Commonwealth, 291 S.W.3d 223, 233 (Ky. 2009) (applying Kotteakos as the harmless error standard for non-constitutional errors); Winstead v. Commonwealth, 283 S.W.3d 678, 689 (Ky. 2009) ("The Kotteakos standard is the appropriate standard for non-constitutional errors."). The standard articulated by the United States Supreme Court in that case requires that a non-constitutional error have a substantial effect on the verdict before reversal is merited:

 If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand .... But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand. Id. at 764-65 (1946) (emphasis added). Restated in simplest terms, a nonconstitutional evidentiary error must have had a substantial effect on the verdict actually returned by the jury or the judgment entered by the court in order to require reversal.

 Though we have finally adopted what I consider to be the proper standard for evaluating harmless error, we still have not engaged in a thoughtful discussion of why it is the correct standard in a published decision, having instead simply declared it to be the appropriates standard, despite the fact that it represents a clear departure from some of our earlier precedent. And even as the articulation of the rule has changed, we have failed even to admit in a published decision that the rule has changed or that the various standards we have articulated are different. Yet, that this new standard is different and how it is different are important going forward, as the harmless error standard goes to the heart of what we do when we review a criminal jury trial. Because the standard is different, it means that the results in some cases will be different, meaning that we cannot simply plug the correct standard into an opinion without demonstrating how it applies—or doesn't— which is what the majority has failed to do here. The inescapable conclusion is that the standard and the policy behind it matter. We must still think long and hard on the issue of harmless error so that we can properly apply the new standard.

 Ultimately, I think that the majority is wrong in its harmless error determination in this case. Why this is the case, however, requires a candid discussion about harmless error that acknowledges it is a difficult and subtle proposition, and not just a rule to preserve convictions for heinous crimes in the face of error. In explaining why I disagree with the majority's application, I hope to focus on what must be considered.

 To begin with, I agree with our decisions designating Kotteakos as the appropriate standard for non-constitutional errors. Such errors are likely to be less serious than constitutional errors, and by their very nature, they rarely touch on those fundamental concerns and guarantees that lie at the heart of the criminal justice system and are more likely to be merely technical or relatively minor. This distinction between the various types of errors is anticipated by the harmless error rule itself, which focuses on "substantial justice" and "the substantial rights of the parties." RCr 9.24. Kotteakos, by offering a lesser standard than that required for constitutional errors, also recognizes the distinction.

 My foremost concern is that the majority, in focusing on whether the properly admitted evidence in this case was overwhelming, has effectively applied the old different-result approach to harmless error rather than the effect-on-the-verdict approach under Kotteakos.

 The different-result approach required that an appellate court look at all the evidence, minus that which was improperly admitted, and determine whether a jury would have returned a guilty verdict. This is different from a situation where an appellate court looks at sufficiency of the evidence and must determine whether the evidence is such that a reasonable jury could return a guilty verdict. This latter analysis is a way of looking at what the jury in the case actually did and evaluating whether it was reasonable. The former requires postulating a new, entirely hypothetical verdict, one that was not returned by the jury that actually heard the case, since that jury heard the improper evidence. Looking at the evidence and deciding a different result would not have occurred is tantamount to directing a verdict for the Commonwealth after the fact. Thus, the policy underlying the different-result approach is a dangerous one that threatens to undermine our rules concerning who gets to find the facts in a case.

 Beyond the policy concerns, however, are substantial constitutional concerns about the different-result approach. "Here, special concern exists that judicial toleration of harmless error is not a license for judicial invasion of the issue-resolving province constitutionally reserved for the jury." Henry P. Monaghan, Harmless Error and the Valid Rule Requirement, 1989 Sup. Ct. Rev. 196, 200 (1989). The postulation of a non-existent jury verdict absent the error lies at the heart of the different-result test. As the United States Supreme Court has stated, such an approach runs afoul of the Sixth Amendment's jury trial guarantee:

 Consistent with the jury-trial guarantee. ...the reviewing court [is] to consider … not what effect the … error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand. Harmless-error review looks, we have said, to the basis on which the jury actually rested its verdict. The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fact rendered—no matter how inescapable the findings to support that verdict might be—would violate the jury-trial guarantee.

         … The Sixth Amendment requires more than appellate speculation about a hypothetical jury’s action, or else directed verdicts for the State would be sustainable on appeal ….

         Sullivan v. Louisiana. 508 U.S. 275, 279-80 (1993) (emphasis added, quotation marks and citations omitted).

         Any approach to harmless error that focuses on whether the result would have been different, including whether the other evidence in the case was overwhelming, is suspect for these reasons. It is possible that there could be substantial, even overwhelming, evidence of guilt in a case, and yet a piece of improper evidence could also have been admitted that substantially influenced the jury. This is, in fact, what I think happened in this case. Instead of looking at whether the other evidence was overwhelming, we should instead focus on what effect the erroneous testimony had on jury’s verdict in this case. Otherwise, we return to the old standard, albeit under a different name.

(emphasis added by LawReader)


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