author: PARK, Judge.

text:
    Henry Thomas CANE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 27, 1977.
    Rehearing Denied July 29, 1977.
    Discretionary Review Denied Nov. 14, 1977.

      Robert F. Stephens, Atty. Gen., Raymond M. Larson, Asst. Atty. Gen., Frankfort, for appellee.
    Jack Emory Farley, Public Defender, Kevin M. McNally, Asst. Public Defender, Frankfort, for appellant.
    Before GANT, LESTER and PARK, JJ.
   PARK, Judge.

Henry Thomas Cane appeals from a judgment of conviction entered by the Franklin Circuit Court following his jury trial on the charge of first degree robbery. A brief summary of the evidence is necessary for an understanding of the grounds for reversal raised by Cane on this appeal.

On December 19, 1975, three black persons robbed the Brown’s Clothing Store in downtown Frankfort. During the course of the robbery, two female store employees and a female customer were threatened with a knife. Money and a substantial quantity of clothing were taken from the store during the course of the robbery. Shortly after the robbery, an automobile driven by Cane was stopped on the outskirts of Frankfort by the city police. The clothing taken from the Brown’s Clothing Store during the robbery was found on the backseat of the car. Cane and another occupant of the car, Glenn Duncan, were arrested. A third occupant of the car slipped away in the confusion and was not apprehended.

The robbery in question was unusual because of the attire of the three persons who carried out the robbery of Brown’s Clothing Store. All three robbers were attired in women’s clothing. At all times during the course of the robbery, the two store employees and the one customer believed the assailants to be women. When the car with the stolen property was stopped by the police, all three occupants were attired in women’s clothing. The arresting officer believed both Cane and Duncan to be women, and their true gender was not discovered until they were booked at the police station.

Both Cane and Duncan gave their occupations as “female imitator.” Duncan entered a plea of guilty, and at Cane’s trial Duncan testified that he and two other “female imitators” robbed the clothing store. Not having an automobile with which to transport the loot from the robbery back to Louisville, Duncan testified that he and the other two robbers telephoned Cane for a ride. According to Cane and Duncan, Cane innocently picked up the three robbers and their loot only to let one of the robbers out of the car shortly before Cane was stopped by the police. Consequently, there were two rather than three persons with Cane in the car.

The primary allegations of error relate to the identification of Cane as one of the three robbers. Other than the fact that Cane was arrested operating the automobile carrying the stolen merchandise, the only evidence linking Cane to the robbery was the testimony of Mrs. Opal Oliver, one of the two clerks at the store. Mrs. Oliver conceded that she had been unable to identify Cane at the examining trial in quarterly court. However, she attributed her inability to identify Cane to her distance from him. According to Mrs. Oliver, as she was preparing to leave court she had a closer view of Cane and was able to identify him as one of the three robbers. She further testified that she picked out Cane’s photograph and Duncan’s photograph from a book of mug-shots the morning of the trial. She also identified Cane in court during the course of the trial.

The photographs of Cane and Duncan were taken by the Frankfort police immediately following their arrest. Both Cane and Duncan were shown in the women’s clothing and wigs in which they were dressed at the time of their arrest. Before the two photographs were introduced at trial, the bottom of the photographs had been cut off so as to delete identification plates which were suspended around the necks of Cane and Duncan. However, the chains which held the identification plates were still visible, and any juror of ordinary intelligence would have recognized that the photographs had been taken by the police.

Cane asserts that it was error to introduce the photograph taken of him at the time of his arrest. Cane claims that the Commonwealth was able to introduce improper evidence of past criminal conduct by means of the mug-shot. This contention is without merit. The photograph in question was not introduced for the purpose of showing past criminality. The photograph was offered solely for identification purposes. As Cane was disguised as a woman at the time of his arrest, the photograph represented the best evidence of his appearance at the time of the commission of the crime. We hold that the photograph was properly admissible for purposes of identification. Urbanski v. Commonwealth, Ky., 526 S.W.2d 7 (1975); Matters v. Commonwealth, Ky., 245 S.W.2d 913 (1952); Annotation 30 A.L.R.3d 908, 911-14 (1970). This is not a situation in which a mug-shot is introduced solely for the purpose of branding the defendant as a criminal. See Roberts v. Commonwealth, Ky., 350 S.W.2d 626 (1961). The circuit court did not err in admitting the photograph of Cane for purposes of identification.

Cane’s trial counsel was not present when the mug-shot book containing Cane’s photograph was shown to Mrs. Oliver on the morning the trial commenced. Conceding that this procedure did not deny him the right to counsel guaranteed by the Sixth Amendment to the United States Constitution, United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), Cane contends that he was denied right to counsel as guaranteed by Section 11 of the Kentucky Constitution. Kentucky has never specifically considered the application of the decision in the Ash case to the right of counsel guaranteed by Section 11 of the Kentucky Constitution. Nevertheless, in Rolack v. Commonwealth, Ky., 514 S.W.2d 47 (1974) this state’s highest court held that the presence of counsel required at a post-indictment lineup by the decision in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), did not apply to the examination of photographs for the purpose of identification. The decision in the Ro-lack case is not directly in point because the photographic identification was pre-indictment. Presence of counsel is not required at a pre-indictment lineup. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Ashcraft v. Commonwealth, Ky., 487 S.W.2d 892 (1972). Assuming that the Rolack decision is completely inapplicable, we still conclude that the right of counsel guaranteed by Section 11 of the Kentucky Constitution is no greater than the right of counsel guaranteed by the Sixth Amendment of the United States Constitution as construed in the Ash case. The right of counsel does not include the right of the defendant’s counsel to be present when witnesses are interviewed by attorneys for the Commonwealth, even though the interview takes place on the morning of trial and includes an examination of photographs for purposes of identification. The right of cross-examination of that witness is sufficient protection for the defendant.

The defendant’s counsel objected to Mrs. Oliver’s identification of Cane, suggesting that the manner in which she was shown Cane’s photograph was prejudicially suggestive. The trial court did not conduct an evidentiary hearing on the objection. However, a conference with attorneys did take place in chambers. The record reflects the following discussion took place in chambers following counsel’s objection to the manner in which Mrs. Oliver was shown Cane’s photograph:

“MR. PREWITT (Commonwealth’s Attorney): Unless I’m mistaken she’s never seen any Photographs prior to this morning. Perhaps he intended to show her some- photos. That’s why I wanted to make it clear she picked it out of a large volume of pictures and picked out these two.
She also, I think, the only other time she had any contact with this defendant or the other one was over at police court. She had not been furnished any pictures. MR. JUDY (Defendant’s Counsel): Without being able to see what the random sampling was, the Court has no basis of knowing or basing a decision on whether or not it was an accepteble [sic] random sampling of twenty white females in which there was one black female. It would be highly suggestable (sic) and focused clearly upon this defendant as being the one she should pick out. Without being able to see how it was done and I think it is highly prejudicial to the defendant to allow this witness to testify.
MR. PREWITT (Commonwealth’s Attorney): This portion of the book included nothing but black female pictures.
THE COURT: I heard you make that statement to the witness that there were just black females in it, did I not? Am I not right? Did you not state that in front of the jury?
MR. PREWITT (Commonwealth’s Attorney): Yes.
THE COURT: That being the case I will overrule the objection.”

In light of Mrs. Oliver’s inability to identify Cane at the preliminary hearing, there was a substantial question respecting the photographic identification made by her the morning of the trial. The trial court was required to determine not only the admissibility of the out-of-court photographic identification, but also the validity of Mrs. Oliver’s in-court identification of the defendant. If it is claimed that a photographic identification was so suggestive that mis-identification was likely, that question should be determined by the trial court in a hearing outside of the presence of the jury following the procedures outlined in Bradley v. Commonwealth, Ky., 439 S.W.2d 61 (1969) and Britt v. Commonwealth, Ky., 512 S.W.2d 496 (1974). A proper record for appellate review exists only if the trial court conducts an evidentiary hearing and makes findings of fact. See Lee v. Commonwealth, Ky.App., 547 S.W.2d 792 (1977). If an evidentiary hearing had been requested, the trial court’s failure to conduct such a hearing would have been grounds for vacating the judgment and remanding the case for a hearing on the identification procedures followed. Francis v. Commonwealth, Ky., 468 S.W.2d 287, 293 (1971).

The defendant’s counsel did object to the introduction of the photographs of Cane and Duncan. He also objected to the introduction of the evidence of Mrs. Oliver’s identification of Cane from the mug-shot book the morning of the trial. However, there was never any specific request that the trial court conduct an evidentiary hearing out of the presence of the jury at which defendant’s counsel could have cross-examined Mrs. Oliver with respect to the out-of-court photographic identification. The defendant’s counsel did express concern about the racial composition of the persons in the mug-shot book inasmuch as both Cane and Duncan were black. The attorney for the Commonwealth then assured the court and defendant’s counsel that the mug-shots shown Mrs. Oliver were all of black females. The trial court was satisfied by this explanation on the part of the attorney for the Commonwealth and, as far as the record indicates, the defendant’s counsel was similarly satisfied. No further inquiry was made or requested into the mug-shots that had been shown Mrs. Oliver.

Under RCr 9.22, an attorney making an objection must indicate to the court the action which he desires the court to take or he must object to the action being taken by the court. This rule should be given a broad or liberal construction, rather than a narrow or supertechnical construction. Nevertheless, this court concludes that the record does not contain a request for an evidentiary hearing. Trial counsel are frequently acquainted with each other. They know when they can, and cannot, accept the word of opposing counsel on some question involving the evidence in the case. The defendant’s counsel was not required to accept the explanation given by the Commonwealth’s attorney with respect to the composition of the mug-shot book. On the other hand, the defendant’s counsel was not required to reject that explanation if he had confidence in the word of his fellow attorney.

In the absence of a request for an evidentiary hearing the trial court was under no duty to conduct such a hearing. United States v. Mitchell, 540 F.2d 1163 (3rd Cir. 1976). The defendant’s counsel was clearly aware of the identification issue. The trial court was entitled to rely upon the defendant’s counsel to request an evidentiary hearing. Cf. Phelps Roofing Company v. Johnson, Ky., 368 S.W.2d 320 (1963). As stated by Chief Justice Burger in Estelle v. Williams, 425 U.S. 501, 512, 96 S.Ct. 1691, 1697, 48 L.Ed.2d 126 (1976):

“Under our adversary system, once a defendant has the assistance of counsel the vast array of trial decisions, strategic and tactical, which must be made before and during the trial rests with the accused and his attorney. Any other approach would re-write the duties of trial judges and counsel in our legal system.”

The trial court did not err in failing to hold an evidentiary hearing on the identification issue, in the absence of a request for such a hearing by the defendant’s counsel.

Based upon the record before this court, we conclude that the procedures followed in identifying Cane as one of the three robbers were not unduly suggestive. This court has examined the two photographs of Cane and Duncan taken at the time of their arrest showing them in female attire. In the photographs, both Duncan and Cane give the appearance of being females. There is nothing which would cause a person to select Cane and Duncan’s photographs from a book of female mug-shots solely on the basis that the persons to be identified were male. The two store clerks, the store customer and the arresting officer were all led to believe that they were dealing with females. Under the unusual circumstances of this case, fairness dictated that Cane’s photograph while attired as a female should be included in a set of female photographs for purposes of identification. There was no error in the identification procedures followed.

Cane argues that the trial court committed reversible error by permitting the Commonwealth’s attorney to question him concerning a prior conviction without first holding a hearing in chambers outside of the presence of the jury as required by Cotton v. Commonwealth, Ky., 454 S.W.2d 698 (1970). The record fails to establish that a Cotton hearing was in fact held. During the pendency of this appeal, the Commonwealth has filed a “motion to supplement record” which attempts to introduce into the record the affidavit of the trial attorney for the Commonwealth that, in fact, a Cotton hearing was held. RCr 12.60 provides:

“It is not necessary for the record on appeal to be approved by the trial court or judge thereof except as provided in Rules 12.68 and 12.72 but if any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If any thing material to either party is omitted from the record on appeal by error or accident or is misstated therein, the parties by stipulation, or the trial court, either before or after the record is transmitted to the appellate court, or the appellate court on a proper suggestion or its own initiative, may direct that the omission or misstatement shall be corrected, and if necessary that a supplemental record shall be certified and transmitted by the clerk of the circuit court. All other questions as to the content and form of the record shall be presented to the appellate court.”

In response to the Commonwealth’s motion to supplement the record, Cane’s appellate counsel continued to assert that no Cotton hearing was held. RCr 12.60 does permit an appellate court to correct an omission in the record “on a proper suggestion or its own initiative.” However, this portion of the rule assumes that the appellate court is in a position to make an intelligent determination that the material in question was in fact omitted from the record of what transpired before the trial court. In the present case, this court has no way to determine whether a Cotton hearing was held. The trial judge is the only person in a position to settle the question. If the Commonwealth desired to supplement the record to show that a Cotton hearing was in fact conducted, the matter should have been submitted to the trial court as permitted by RCr 12.60. The Commonwealth’s motion to supplement the record is denied.

Nevertheless, it does not follow that the trial court committed reversible error by failing to conduct a Cotton hearing. There was no objection of any kind to the Commonwealth’s cross-examination of Cane respecting his prior record. Nor was there any objection to the trial court’s admonition that the jury consider Cane’s prior felony conviction solely on the issue of credibility. Consequently any objection to the trial court’s failure to conduct a Cotton hearing was waived.

Cane objects to the trial court’s failure to give an instruction on the presumption of innocence. Kentucky has long held that it is not necessary to give an instruction on the presumption of innocence when the trial court has given the usual instructions on reasonable doubt. E. g. Johnson v. Commonwealth, 297 Ky. 760, 181 S.W.2d 262 (1944). The rule was recently reaffirmed by this court in Taylor v. Commonwealth, Ky.App., 551 S.W.2d 813 (decided April 1,1977). We believe the Kentucky rule to be realistic and sound. See McCormick on Evidence § 310, at 648 (1st ed. 1954). The presumption of innocence would most appropriately be mentioned by the court or counsel at the commencement of the trial before the introduction of any evidence of the defendant’s guilt.

As his last ground for reversal, Cane asserts that the attorney for the Commonwealth engaged in improper conduct during the course of the trial and in closing argument. In seeking to impeach Duncan’s testimony which attempted to exonerate Cane, the attorney for the Commonwealth first inquired whether Cane and Duncan were cellmates in the county jail awaiting trial. When Duncan answered that they were not cellmates, but had shared the same cell block, the attorney for the Commonwealth next asked: “Well, you all are intimate friends?” The attorney for the Commonwealth was entitled to impeach Duncan’s testimony by showing bias. There was nothing improper in asking whether Cane and Duncan “were intimate friends.” The trial court did not err in overruling the objection to the question. The question was not grounds for declaring a mistrial. Cane also objects to one statement in closing argument. This court finds the statement to be no more than fair comment on the evidence. Furthermore, any impropriety in the closing argument was waived by failure to make a timely objection. Hopper v. Commonwealth, Ky., 516 S.W.2d 855 (1974).

For the foregoing reasons, the judgment of the circuit court is affirmed.

All concur.


source: Caselaw Access Project

author: HAYES, Judge.

license: Public Domain

text:
    Ron PATTERSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    July 8, 1977.
    Discretionary Review Denied Nov. 14, 1977.

      Dale B. Mitchell, Mitchell & Gillum, Somerset, for appellant.
    Robert P. Stephens, Atty. Gen. by James L. Dickinson, Asst. Atty. Gen., Frankfort, for appellee.
    Before HAYES, HOWARD and WIN-TERSHEIMER, JJ.
   HAYES, Judge.

This is an appeal wherein the appellant, Patterson, attacks the constitutionality of the “cold check” statute, KRS 514.040.

Ron Patterson, a thirty-six (36) year old Baptist minister, had a part-time job selling handcrafted leather goods to retail outlets. While selling his leather wares, Patterson became acquainted with one John Rankin of Rankin & Grider, Inc., importers and exporters of leather products with offices in Nicholasville, Kentucky. Patterson sold Rankin some watch bands and Rankin told Patterson he could sell him some leather ponchos at a low price. As a result, Patterson on October 9, 1975, ordered from Rankin a large quantity of ponchos. The sale amounted to $2,955.04 for which Patterson gave his check, No. 113. At this time, Rankin and Patterson discussed Rankin ordering some $10,000.00 worth of leather goods for Patterson at a substantial discount to Patterson. Check No. 113 was deposited by Rankin in his bank on October 10,1975, and on October 17th the check was returned by the drawee bank, First and Farmers National Bank of Somerset, Kentucky, with a slip explaining that there were insufficient funds in the account of the drawer, Patterson, to cover the check. On the same date Rankin told Patterson that “the check had come back insufficient funds and he told me to run it back through again”. On October 18th Rankin ran the check through the bank again. The check “bounced” again for insufficient funds. The check was returned to Rankin on October 24th. From this point the testimony is in conflict on whether the $1,000.00 money order received by Rankin from Patterson on October 28th and an additional $400.00 money order received by Rankin from Patterson on November 6, 1975, were in part payment for check No. 113 or on open account for the later ordered goods in the amount of $7,000.00 In any case, Rankin, after discussing the “cold check” No. 113 with Patterson some eighteen (18) times, filed suit in Jessamine Circuit Court. An arrest order was issued and Patterson was indicted for violation of KRS 514.040. Upon trial by a jury, appellant was found guilty and sentenced to one (1) year in the penitentiary.

The applicable Kentucky Penal Code provision is found in KRS 514.040, which is as follows:

(1) A person is guilty of theft by deception when he obtains property of another by deception with intent to deprive him thereof. A person deceives when he intentionally:
* * * * * *
(e) Issues or passes a cheek or similar sight order for the payment of money, knowing that it will not be honored by the drawee.
* * * * * *
(4) For purposes of subsection (1), an issuer of a check or similar sight order for the payment of money is presumed to know that the check or order, other than a postdated check or order, would not be paid if:
* * * * * *
(b) Payment was refused by the drawee for lack of funds, upon presentation within thirty (30) days after issue, and the issuer failed to make good within ten (10) days after receiving notice of that refusal.

The net result of the “cold check” statute is that the knowledge required by subsection (e) is imputed to the issuer of the check if he does not make the check good within ten (10) days after he learns the check has been dishonored. This imputed knowledge in turn meets the requirements of subsection (1) concerning “intent to deprive”.

Patterson contends that this rebut-table presumption is “irrational and arbitrary” and therefore unconstitutional as a violation of the 14th Amendment of the U.S. Constitution. This is a case of first impression in Kentucky.

In determining whether or not a criminal statute making one fact presumptive or pri-ma facie evidence of another fact satisfies the due process requirements of the 14th Amendment to the U.S. Constitution, certain standards have been established by the U.S. Supreme Court:

(1) There must be a rational connection between the fact proved and the ultimate fact presumed, U.S. v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965).

(2) An inference is “irrational” or “arbitrary” and hence unconstitutional unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend, Leary v. U.S., 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969).

(3) The evidence necessary to invoke the inference is sufficient for a rational juror to find the inferred fact beyond a reasonable doubt. This is the most stringent test, Barnes v. U.S., 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973).

Mr. Justice Powell, delivering the opinion of the court in Barnes v. U.S., supra, stated:

To the extent that the “rational connection,” “more likely than not,” and “reasonable doubt” standards bear ambiguous relationships to one another, the ambiguity is traceable in large part to variations in language and focus rather than to differences of substance. What has been established by the cases, however, is at least this: that if a statutory inference submitted to the jury as sufficient to support conviction satisfies the reasonable-doubt standard ... as well as the more-likely-than-not standard, then it clearly accords with due process.

As noted in 35 A.L.R. 375, 43 A.L.R. 49 and 95 A.L.R. 486 most state statutes on worthless checks require the intent to defraud as an essential element. These statutes commonly contain the “prima facie” presumption or inference provision of intent to defraud. Of course these are rebuttable presumptions and conviction will not be had where the accused can satisfactorily explain otherwise. In other words, the statutes generally do not create conclusive presumptions which normally are held unconstitutional because such are within the sole province of the jury.

In interpreting a Kansas Statute very much like the Kentucky Statute, the court stated in State v. Haremza, 213 Kan. 201, 515 P.2d 1217 (1973):

One of the well-recognized presumptions of law is that a person intends all the natural and probable consequences of his voluntary acts. Where a person has written an insufficient funds check and receives property or other consideration therefor from the payee of the check, and further, where the maker of the check has been notified that the check has not been paid and fails to make payment within seven days after such notice, we find that there is nothing unreasonable or arbitrary in making such fact prima facie evidence of fraudulent intent or guilty knowledge. . . . The notice provision gives to the drawer of the check a final opportunity in which to make the check good and is peculiarly for his benefit. In a worthless check case it is obviously the defendant who has the more convenient access to evidence relating to his intent and knowledge. These are matters within his own head and usually are not within the knowledge of the prosecutor.

The legislature of this Commonwealth created the “cold check” statute in such a manner that proof of one fact (failure to cover the check within ten (10) days after due notice) is prima facie evidence of another fact (criminal intent to deceive) essential to the guilt of the accused. The verdict still must rest upon all the evidence which must establish his guilt beyond a reasonable doubt.

Since the inference satisfied the reasonable doubt standard, and the “more-likely-than-not” standard, we conclude as the U.S. Supreme Court did in Barnes, supra and the Kansas Supreme Court did in Haremza, supra that this satisfies the requirements of due process.

The appellant in his brief states that to uphold his conviction would be the same as imprisoning him for a debt which is a violation of the Kentucky Constitution. We believe that the worthless check statute does not punish one for a debt but rather for a fraudulent act. Since intent to defraud is an essential element, it is not in violation of Section 18 of the Kentucky Constitution prohibiting imprisonment for debt.

The appellant’s contention that the evidence was insufficient as a matter of law to sustain a conviction is clearly refuted by the record since there was an abundance of evidence to convict. And in light of all the evidence, the fact that the trial court erred in admitting evidence that Rankin borrowed money in order to buy the leather ponchos and in turn sell them to Patterson, was not harmful or prejudicial beyond a reasonable doubt.

The judgment is affirmed.

All concur.


text:
    Lonnie SCHOOLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    July 8, 1977.
    Discretionary Review Denied Nov. 14, 1977.

      Jack Emory Farley, Public Defender, Larry H. Marshall, Assistant Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Robert L. Chenoweth, Asst. Atty. Gen., Frankfort, for appellee.
    Before MARTIN, C. J., and GANT and PARK, JJ.
   PARK, Judge.

The appellant, Lonnie Sehooley, appeals from an order of the Jackson Circuit Court overruling his motion under RCr 11.42 seeking to vacate and set aside an earlier judgment of the Jackson Circuit Court sentencing him to two consecutive five year terms for storehouse breaking. Sehooley was a juvenile at the time the offenses were committed. In his motion under RCr 11.42, Sehooley asserted that the circuit court never acquired jurisdiction over the charges against him because there was no valid transfer of the case by the Jackson County Juvenile Court.

Sehooley was originally charged with seven counts of breaking and entering at a time when he was sixteen years of age. Following a hearing on October 8,1968, the juvenile court entered an order transferring Schooley’s case to the circuit court. On October 15, 1968, the grand jury returned two indictments against Sehooley for storehouse breaking. Sehooley entered a plea of guilty to both charges, and he was sentenced by the circuit court on October 21, 1968, to two consecutive five year sentences.

There was no direct appeal of the judgment of conviction, but the record reflects that Sehooley filed an earlier motion under RCr 11.42 in the circuit court on February 14, 1972. The circuit court overruled this motion to vacate the judgment of conviction. Sehooley apparently attempted to prosecute an appeal from the denial of his first motion under RCr 11.42, but the record does not establish an appellate decision on the merits. This first motion under RCr 11.42 was filed by Sehooley pro se.

The motion now under consideration was filed with the circuit court on July 23,1974, by the public defender’s office on Schooley’s behalf. The disposition of this motion was delayed when Sehooley escaped from the Jackson County jail while awaiting the hearing on his motion. Following his return to custody, the circuit court conducted hearings on the motion on February 12 and February 20, 1976. The circuit court denied the motion to vacate judgment, holding that there was a valid transfer of jurisdiction from the juvenile court to the circuit court in 1968.

The provisions of KRS 208.170(1) govern the transfer of felony charges against a juvenile from juvenile court to circuit court. In construing KRS 208.-170(1), this state’s highest court held in Hubbs v. Commonwealth, Ky., 511 S.W.2d 664, 666 (1974):

“ * * * either the waiver order, and accompanying statement, or the juvenile court record must include (1) a showing that the juvenile had a hearing at which he was represented by counsel and (2) a statement of the reasons for the transfer which are specific enough to permit meaningful review for the purpose of determining whether there has been compliance with KRS 208.170(1).”

See also, Kent v. United States, 383 U.S. 541, 561, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966); Bingham v. Commonwealth, Ky., 550 S.W.2d 535 (1977); Risner v. Commonwealth, Ky., 508 S.W.2d 775 (1974); Whitaker v. Commonwealth, Ky., 479 S.W.2d 592 (1972). A transfer order does not meet the foregoing test if the statement of reasons for the transfer does no more than parrot the language of KRS 208.170(1). The transfer order is not sufficient if it merely states that “the best interest of the child and of the public” require that the juvenile be tried as an adult in circuit court. Bingham v. Commonwealth, supra; Hamilton v. Commonwealth, Ky., 534 S.W.2d 802 (1976).

If the juvenile court fails to make adequate findings, the transfer order is deemed invalid. In Richardson v. Commonwealth, Ky., 550 S.W.2d 538 (1977) the Supreme Court held that an order transferring jurisdiction from the Christian County Juvenile Court was invalid. The Supreme Court then stated that the circuit court did not acquire “jurisdiction” of either the “person or the subject matter” of the case. Not having jurisdiction, the indictment and subsequent judgment in the circuit court were “void.” Juvenile offenders convicted in circuit court have successfully challenged their convictions on the grounds of the inadequacy of the transfer order in a number of different circumstances. In the Richardson and Hubbs cases, the challenge was by direct appeal from a judgment based upon a jury verdict. In the Bingham case, the challenge was by direct appeal from a judgment entered upon a guilty plea. In the Hamilton case, the challenge was successfully raised in a subsequent prosecution for being an habitual criminal. Strange as it may seem, there never has been a successful challenge by a motion under RCr 11.42.

In determining whether the Jackson Circuit Court had jurisdiction to enter judgment on Schooley, consideration must be given to the meaning of the term “jurisdiction.” In Duncan v. O’Nan, Ky., 451 S.W.2d 626 (1970), the argument was made that a circuit court had no jurisdiction in a will contest case because there was no valid judgment of the county court by which the circuit court could gain jurisdiction on appeal. In holding that the circuit court judgment was not invalid for want of jurisdiction, the court stated:

“As we pointed out in Commonwealth Dept. of Highways v. Berryman, Ky., 363 S.W.2d 525: ‘The word “jurisdiction” is more easily used than understood.’ That case recognized the general elementary principle that subject-matter jurisdiction cannot be waived. A party will not be estopped to show lack of subject-matter jurisdiction at any time. The parties may not confer subject-matter jurisdiction by agreement. The problem, however, is in delineating the concept ‘jurisdiction of the subject matter.’ Chief Judge Desmond of the Court of Appeals of New York undertook to do so in In Re Estate of Rougeron, 17 N.Y.2d 264, 271, 270 N.Y.S.2d 578, 583, 217 N.E.2d 639, 643, in this language:
‘In other words the rule that subject-matter jurisdiction cannot be born of waiver, consent or estoppel has to do with those cases only where the court has not been given any power to do anything at all in such a case, as where a tribunal vested with civil competence attempts to convict a citizen of a crime. In other words, “subject matter” does not mean “this case” but “this kind of case” * * *.’
******
“The circuit court had general jurisdiction of the subject matter. It had the power to try this kind of case. A jurisdictional element of this particular case was a judgment complying with formal requisites properly entered in county court. * * *.
“Once it is understood that the circuit court had subject-matter jurisdiction in the pervasive sense and that the mechanics of perfecting invocation of that jurisdiction were jurisdictional elements, then the emphasis shifts from a power concept to a policy concept.” 451 S.W.2d at 631-32.

Whether a circuit court has “jurisdiction” of a juvenile felony offender is governed by the foregoing principles.

Circuit courts have general jurisdiction' to try felony cases, including charges of storehouse breaking. Circuit courts also have general jurisdiction to try juvenile felony offenders if there has been a valid transfer order pursuant to KRS 208.170(1). Therefore, the Jackson Circuit Court had general subject-matter jurisdiction. The question to be determined is whether the Jackson Circuit Court had jurisdiction of Schooley’s particular case. Applying the principles adopted in Duncan v. O’Nan, supra, the question is one of policy rather than power. The policy consideration is one of due process. In Anderson v. Commonwealth, Ky., 465 S.W.2d 70 (1971), the claim was made that the juvenile court acquired no jurisdiction because of its failure to notify the juvenile’s parent, guardian or custodian as required by KRS 208.080 and 208.090. As the juvenile court allegedly lacked jurisdiction, it was then argued that it was impossible for the juvenile court to transfer the ease to circuit court. In rejecting the jurisdictional argument, the court stated:

“No sound reason appears for holding that the juvenile court lacks jurisdiction respecting a child charged with crime for failure to notify the child’s parent, guardian, or custodian. It might well be that a proceeding, totally without notice, would be invalid, but its invalidity would stem from its failure to afford due process and fair treatment, not from any fundamental infirmity in the court’s jurisdiction. To the extent that the prior decisions of this court (whether specifically cited herein or not) have been premised on a question of jurisdiction, they are regarded as unsound and nonauthoritative.
“In this framework the failure of appellant, through counsel, to challenge, at least in circuit court, the due-process adequacy of the juvenile court proceedings could well be regarded as failure to preserve the question for appellate review. However, in light of the language of earlier opinions, such a ruling would itself be at least unfair. But, viewed as a due-process question rather than a jurisdictional one, nothing appears which suggests lack of due-process or fair treatment. Appellant had able counsel who was far better able to protect his rights than a parent, guardian or custodian. Not a word is hinted to indicate that more could have been done for appellant in juvenile court than was done there. In light of this, the court holds that appellant’s transfer from the jurisdiction of the juvenile court to the jurisdiction of the circuit court was duly accomplished.” 465 S.W.2d at 74-75.

In Fields v. Commonwealth, Ky., 498 S.W.2d 130 (1973), the court specifically stated that due process was the basis for holding that a juvenile court order must set forth the reasons for transfer of the same case to circuit court.

Schooley contends that the transfer order entered by the juvenile court on October 8, 1968, was invalid because it failed to state the reasons for the transfer with sufficient particularity. Due process requires that the reasons for transfer be stated with particularity in order to permit meaningful review of the transfer order by the circuit court or by an appellate court. Unless appellate review is sought it cannot be said that the transfer order was a nullity and that the circuit court was without jurisdiction. In Holt v. Commonwealth, Ky., 525 S.W.2d 660 (1975), the juvenile defendant raised the validity of the transfer order during the proceedings in circuit court. However, there was no direct appeal from the judgment of conviction entered by the circuit court. Subsequently, the validity of the transfer order was challenged by a motion under RCr 11.42 on the grounds that the juvenile court’s failure to state the reasons for transfer constituted a denial of due process. The appellate court affirmed the trial court’s denial of the motion under RCr 11.42. As the issue had been raised in the original circuit court proceedings, the motion under RCr 11.42 was barred by the failure to take a direct appeal from the judgment of conviction. In Crick v. Commonwealth, Ky., 550 S.W.2d 534 (1977), the Supreme Court held that the failure to raise the issue of the sufficiency of the juvenile court transfer order in the first RCr 11.42 motion barred the defendant from raising the issue in a second RCr 11.42 motion. If a transfer order is invalid on its face and a subsequent circuit court judgment is “void” because of a lack of “jurisdiction,” it would seem that the issue could not be waived, but could be raised at any time. On the other hand, if the issue is considered as a question of due process there can be a waiver under certain circumstances by failure to appeal. Cf. Smith v. Commonwealth, Ky., 412 S.W.2d 256 (1967).

The order of the juvenile court transferring Schooley’s case to circuit court contained the following findings: (1) that Schooley was a juvenile under the age of eighteen but over the age of sixteen years; (2) that a hearing was held on October 4, 1968; (3) that Schooley was present at the hearing and represented by his attorney, Paul E. Hieronymus; (4) that a report of the Kentucky Department of Child Welfare had been filed containing its findings and recommendations concerning Schooley; (5) that there were “reasonable grounds to believe” that Schooley was guilty of six counts of breaking and entering, Schooley “having admitted or entered a plea of guilty * * * at least to 6 of the 7 counts;” and (6) that “public justice and the best interests” of Schooley required that the case be transferred to circuit court. The last finding is not a statement of the specific reasons for the transfer as required by the test laid down in the Hubbs case. However, this finding must not be taken out of context, and it should be considered in light of the language of the entire order.

The transfer order specifically refers to the report filed by the Department of Child Welfare. Unlike the record involved in the Bingham case, the report from the Department of Child Welfare supports the decision of the juvenile judge to transfer the case to circuit court. The report from the Child Welfare worker stated: (1) that Schooley was first committed to the Department of Child Welfare at age eleven on a charge of breaking and entering; (2) that subsequently he had been “in and out of Kentucky Village many times;” (3) that he was returned to Kentucky Village on a charge of auto theft in January 1968; (4) that, according to his juvenile counselor in Lexington, Schooley had not attended school regularly after being placed with his mother in June 1968; and (5) that it would be a waste of time to return Schooley to Kentucky Village and therefore it was recommended that Schooley be “certified” to circuit court. There is nothing in the record to indicate that the decision of the juvenile judge to transfer Sehooley’s case to circuit court was arbitrary or capricious.

There was no explicit statement anywhere in the record by the juvenile judge that his transfer order was based upon the contents of the Child Welfare worker’s report. However, common sense strongly suggests that the juvenile judge’s decision was based upon Schooley’s admission of guilt to six charges and the Child Welfare worker’s report which was referred to in the transfer order. When the validity of a transfer order is raised on a direct appeal, it would be reasonable to require that the reasons for transfer be stated explicitly and that it not be necessary to infer the specific reasons for transfer from the record. However, this case arises on a motion under RCr 11.42, and different considerations are applicable. There are errors which would require reversal on direct appeal but which do not justify vacating a judgment of conviction by a motion under RCr 11.42. That rule is confined to prisoners in custody under a sentence “subject to collateral attack.” The error must be of such magnitude as to render the judgment of conviction so fundamentally unfair that the defendant can be said to have been denied due process of law. The interest of the public in the finality of criminal judgments of long standing weighs heavily in the determination when the error is relatively minor. When the trial court has general subject matter jurisdiction, an erroneous finding of the existence of a jurisdictional fact necessary to the court’s jurisdiction in the particular case does not necessarily render the judgment subject to collateral attack. Sharp v. Waddill, Ky., 371 S.W.2d 14 (1963).

More than eight years have elapsed since Schooley entered his pleas of guilty in the circuit court and was sentenced. Schooley is now twenty-five years of age and the juvenile court has consequently lost any power of disposition over Schooley. KRS 208.200; Smith v. Commonwealth, supra at 260. When the issue of the validity of a transfer order is raised on direct appeal, there is a practical possibility that the juvenile defendant can still receive the benefit of an adjudication in juvenile court. No such possibility exists in this case.

There is no issue with respect to Schooley’s guilt. He admitted his guilt both in the juvenile court and the circuit court, where he pled guilty. While the entry of a guilty plea in circuit court would not cure a substantial denial of due process in the proceedings in juvenile court leading to transfer, the entry of a guilty plea has been a significant factor in the decision of other courts holding that there was no denial of due process to a juvenile defendant who seeks to make a collateral attack upon a judgment based upon a guilty plea following transfer from juvenile court. Harris v. Procunier, 498 F.2d 576 (9th Cir. 1974); Smith v. Yeager, 459 F.2d 124 (3rd Cir. 1972); and Acuna v. Baker, 418 F.2d 639 (10th Cir. 1969).

Furthermore, Schooley has previously filed a motion under RCr 11.42. Whether the earlier motion challenged the transfer order does not appear of record. However, it is clear that Schooley failed to prosecute an appeal from the circuit court’s order overruling the earlier motion under RCr 11.42. As Schooley has had ample opportunity to challenge the validity of the transfer order by direct appeal or by the earlier motion under RCr 11.42, his challenge to the validity of the transfer order in the present motion under RCr 11.42 is not timely. Crick v. Commonwealth, supra; Holt v. Commonwealth, supra.

For the foregoing reasons, this court concludes that there was no denial of due process justifying setting aside his judgment of conviction. The order and judgment of the circuit court overruling his motion under RCr 11.42 is affirmed.

All concur.


author: WILHOIT, Judge.

text:
    Cleveland JONES, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    July 15, 1977.
    Discretionary Review Denied Nov. 14, 1977.

      Richard L. Receveur, Asst. Dist. Defender, Terrence R. Fitzgerald, Deputy Public Defender, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., James S. Goldberg, Asst. Atty. Gen., Frankfort, for appellee.
    Before HOWARD, LESTER and WIL-HOIT, JJ.
   WILHOIT, Judge.

Appellant, Cleveland Jones, was indicted by the Jefferson County Grand Jury on November 25, 1975. The indictment charged Jones with robbery in the first degree, KRS 515.020, and robbery in the second degree, KRS 515.030. On May 26, 1976, the day of trial, the court dismissed the indictment count charging robbery in the second degree. Jones was found guilty of robbery in the first degree and the jury set punishment at confinement in the penitentiary for 10 years. Jones appeals alleging the following grounds for reversal: 1) a photograph of him introduced into evidence was obtained as the fruit of an illegal arrest and, therefore, not properly admissible or properly used for identification; 2) this photograph was impermissibly suggestive and led to his identification by the victim which identification should have been suppressed; and 3) the court failed to give a tendered instruction on reasonable doubt concerning the identification of him.

On the afternoon of October 10,1975, the victim went to Bashford Manor Mall in Louisville, Kentucky, to get her hair fixed. After parking her car, she observed a man coming across the parking lot toward her. The man grabbed her purse and she resisted; he struck her twice with his fist, knocking her to the ground and causing her injury. The man then took the purse and ran off across the parking lot.

Later that same day, the Jefferson County Police Department received a telephone call from a reliable confidential informant who told the officer: “if we were looking for the gentleman that was taking all the purses over at Bashford Manor Mall, to talk to Cleveland Jones.” The officer who had received the telephone call stated that the informant gave his name and that he had given information in the past. The informant did not say that he was an eyewitness to the crime or that he had any personal knowledge of the crime. Based solely on the informant’s tip, Cleveland Jones, Jr., was arrested the following day, October 11, 1975.

After his arrest, Jones was photographed by the Jefferson County Police Department. In the photographs Jones has a board suspended around his neck containing the following:

15071

Jefferson County PD

Lou Ky

OCT 11 1975

19 509 140 ROB

On the same card there appears both a front view and a side view of Cleveland Jones.

On October 28,1975, Detective Jones took the above photograph and 5 others to the victim to see if she could identify the man who struck her and took her purse. The other 5 photographs are also police photographs and each individual is shown in both a front view and a side view. The photo of individual 21912 contains the date “Feb. 11 1975” and, at the bottom of the board, the following: “27 508170 MISC”; individual 9344 contains the date “JUNE 28 1973” and “20 508 150 N”; individual 22799 contains the date “JUNE 3 1975” and “27 506 145 ROB”; individual 173068 contains the date “3 02 ’74” and “POLICE DEPT. LOUISVILLE, KY.” (all the others are Jefferson County Police Department); and individual 15963 contains the date “APRIL 17 1975” and “20 509 155 R”. All are black males but only Cleveland Jones and 15963 are pictured wearing caps.

On March 31, 1976, the defendant moved to suppress the identification made by the victim. A suppression hearing was held on the day of trial, May 26, 1976. At the hearing, the victim testified that the individual who stole her purse was wearing a cap and that Cleveland Jones was pictured in the photograph wearing a cap, and the fact that he had a cap on aided in her identification. From the time she was shown the photograph, including at actual confrontation, the victim was certain that he was her assailant. A detective testified that the “ROB” on the picture indicated that the defendant had been arrested for robbery. The trial court overruled the motion to suppress. At trial evidence was introduced concerning the picture identification and the victim made an in-court identification of Jones as her assailant.

Under the facts before us we have no hesitancy in holding that the warrantless arrest of Jones was illegal. An officer does not have reasonable grounds to believe the person being arrested has committed a felony when the only information he has is that a reliable confidential informant has told him if he is “looking for the gentlemen that was taking all the purses over at Bashford Manor Mall, to talk to Cleveland Jones”. KRS 431.005(1); Iles v. Commonwealth, Ky., 476 S.W.2d 170 (1972); Smallwood v. Commonwealth, 305 Ky. 520, 204 S.W.2d 945 (1947).

This being so, this case then appears to fall within the rule enunciated by the United States Supreme Court in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). There the Court held that fingerprints taken from a defendant while he was being illegally detained by police were taken in violation of his rights under the fourth amendment to the United States Constitution and were consequently not admissible into evidence against him. It reasoned that fingerprints, like statements and articles taken from a prisoner’s possession, have the characteristic of being something of evidentiary value which an arrested person has been caused by the public authorities to yield to them during an illegal detention. The Court concluded that if one such product of an illegal detention is proscribed, then all should be. Davis v. Mississippi, supra, at 724, 89 S.Ct. 1394.

We believe that the photographs taken of Jones by the Jefferson County authorities while he was being illegally detained were no less subject to the restrictions of the fourth amendment than were the fingerprints of Davis taken by the Mississippi authorities. Davis was caused to yield physical impressions of his fingertips there and Jones was caused to yield physical impressions of his appearance here. The photographs and the victim’s identification of them should not have been admitted into evidence. Davis v. Mississippi, supra; Iles v. Commonwealth, supra. Under the circumstances of this case we are unable to say that there is no substantial possibility that the result would have been different had this evidence not been admitted since the case for the Commonwealth is based entirely on the identification of Jones by the victim. This error thus requires reversal. Niemeyer v. Commonwealth, Ky., 533 S.W.2d 218 (1976).

We do not wish to imply by this holding that it goes beyond the situation in which photographs are secured as the result of an illegal arrest. It does not. There are many ways in which police officers without probable cause for arrest can properly obtain photographs of a suspect. Neither are we confronted here with a situation in which photographs originally taken illegally are later used under circumstances sufficiently removed from the original taint as to fall outside of the purposes of the exclusionary rule.

As to the suggestiveness of the photographs, when we take into account the facts that the photograph of Jones bore a date which was the next day after the robbery in question, and the only date shown on any of the photographs which was close to the date of the crime, that it was one of two bearing the notation “ROB”, and that it was one of two in which the individuals were wearing caps, we believe it was impermissibly suggestive. Even so, under the rule announced in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the central issue to be determined is whether under the “totality of the circumstances” the in-court identification of Jones was reliable even though the picture identification procedure was suggestive. Factors to be considered are the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of the witness’s prior description of the criminal, the level of certainty of the witness demonstrated at the confrontation, and the length of time between the crime and the confrontation. Neil v. Biggers, supra, at 199, 93 S.Ct. 375.

Consideration of all but one of these factors would favor the likelihood that Jones was correctly identified by the victim. Unfortunately, the record offers us almost no information as to any description she made prior to being shown the photographs. We are able to determine that she stated that her assailant was wearing a cap and apparently that he was a black male, nothing more. On retrial the court should also explore this factor in any hearing to suppress the victim’s identification of Jones. Findings of fact also should be made to make a proper record for any possible appellate review. Lee v. Commonwealth, Ky.App., 547 S.W.2d 792 (1977).

Finally, we believe that the trial court did not err in refusing to give the tendered instruction on reasonable doubt concerning the identification. The substance of this instruction is encompassed by the reasonable doubt instruction which was given by the court.

The judgment of the trial court is reversed.

ALL CONCUR.


text:
    Herbert Gene SALISBURY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Aug. 12, 1977.
    Discretionary Review Denied Nov. 14, 1977.

      Robert F. Stephens, Atty. Gen., Carl Miller, Asst. Atty. Gen., Frankfort, for appel-lee.
    Jack Emory Farley, Public Defender, Larry H. Marshall, Asst. Public Defender, Frankfort, for appellant.

      Before GANT, LESTER and PARK, JJ.
   PARK, Judge.

The indictment in this case charged that the defendant-appellant, Herbert Gene Salisbury, murdered Crit Butler on October 22, 1974, by shooting him with a pistol. Following a trial of the ease in the Floyd Circuit Court, a jury returned a verdict finding Salisbury guilty of voluntary manslaughter and fixing his maximum term of imprisonment at thirteen years. Salisbury appeals from the judgment entered by the circuit court on the jury verdict.

As his first ground for reversing the judgment of conviction, Salisbury argues that the trial judge erred in declining to disqualify himself from presiding over the case. In his motion to require the trial judge to vacate the bench, Salisbury’s trial counsel stated:

“That the victim, Crit Butler was the son of Bessie Martin Butler, who was the daughter of Crit Martin, after who the victim was named, and Zella Martin; that Judge Hollie Conley married Minnie Martin Conley, who is blood relation to the victim, or married relation to the victim, Crit Butler, herein, and Herbert Gene Salisbury, the legal husband of Diane Rector Salisbury, and to the defendant herein.”

This argument is without merit for two reasons. First, the affidavit in support of the motion to vacate fails to show the degree of relationship between the trial judge’s wife and the victim, Crit Butler. In the absence of an allegation of the degree of relationship, an appellate court cannot hold that a trial judge erred in refusing to disqualify himself on the grounds of relationship. Second, the motion to vacate the bench came too late. Salisbury was represented by counsel at his arraignment on January 28, 1975, at which time he entered a plea of not guilty. The case was assigned for trial on April 28, 1975, by an order entered April 10, 1975. On April 25, 1975, Salisbury’s trial counsel made a motion for a continuance. The motion to vacate the bench was not filed until April 28, 1975. There is nothing in the record to indicate that the relationship between the trial judge’s wife and the decedent was unknown to Salisbury prior to April 28, 1975. The motion to vacate the bench was not seasonably made. Neace v. Commonwealth, 233 Ky. 545, 26 S.W.2d 489 (1930).

For his second argument for reversal, Salisbury asserts that the record was insufficient to sustain a verdict of guilty of voluntary manslaughter. Salisbury claims that his own voluntary intoxication was a complete defense to the prosecution and that, in any event, there was no evidence which would justify the giving of a voluntary manslaughter instruction.

Butler was shot around four o’clock in the morning following a night of drinking and card playing by Salisbury, Butler and a third person, Ed Wright. There was very little dispute in the evidence respecting the circumstances leading up to the shooting. All three men were armed. Butler had been losing at cards, and an argument arose over the division of a pot. According to Salisbury who testified on his own behalf, Butler suddenly jumped up from the table with a gun in his hand, and he shot Butler in the face in self-defense. Salisbury testified further that Wright administered the coup de grace by shooting Butler in the head as he lay writhing on the floor. According to Wright, Butler did not have a gun in his hand when he was shot, and Salisbury fired all of the shots. State Trooper Estep testified that he found Salisbury “passed out or asleep” when he arrived at the scene and that a breathalizer test administered at 10:00 a. m. registered a blood alcohol ratio of .21% by weight. Salisbury also testified that he was intoxicated at the time of the shooting.

The evidence in the case indicates that Salisbury was intoxicated at the time of the shooting. However, the evidence is not so overwhelming as to compel a finding by the jury as the trier of fact that Salisbury was intoxicated to the degree that he did not know what he was doing. Salisbury testified to the circumstances of the shooting. He claimed self-defense for the shot he fired and attempted to blame Wright for the fatal shot. Salisbury was not entitled to a directed verdict because of his voluntary intoxication.

Salisbury also claims that he could not properly be convicted of the offense of voluntary manslaughter. It is true that intoxication alone is not sufficient to reduce a homicide from murder to voluntary manslaughter. See Richards v. Commonwealth, Ky., 517 S.W.2d 237 (1974), and Elmore v. Commonwealth, Ky., 520 S.W.2d 328 (1975). However, the opinions in the Richards and Elmore cases also state that a voluntary manslaughter instruction is proper if, in addition to the evidence of intoxication, there is evidence that the shooting occurred in sudden affray or sudden heat of passion. According to Salisbury’s own testimony, the argument over the card game was followed by Butler’s standing up with a gun in his hand. An instruction on voluntary manslaughter was proper.

For his third grounds for reversal, Salisbury attacks the methods used by the attorney for the Commonwealth to buttress the credibility of Wright’s testimony and at the same time undermine Salisbury’s credibility. At various stages in the trial, the Commonwealth’s attorney directed the jury’s attention to the fact that Wright gave the same story to the police immediately following the shooting as he gave from the witness stand. Wright’s consistency was contrasted with Salisbury’s request for an attorney and his silence at the time of his arrest. In the opening statement, the Commonwealth’s attorney stated:

“The defendant said he wanted to see a lawyer and that was his right, and after he said that there wasn’t anybody that questioned him. And Ed Wright talked.”

During the examination of State Police Detective Rose, the Commonwealth’s attorney brought out the fact that Wright gave a voluntary statement after he had been arrested and advised of his constitutional rights. The Commonwealth’s attorney did not go into the question of Salisbury’s silence in his examination of the arresting officer, State Trooper Estep. During his cross-examination of Salisbury, the Commonwealth’s attorney unsuccessfully attempted to extract from Salisbury an admission that the police had asked him what had happened. Salisbury replied: “They advised me of my rights is all.”

In his closing argument, the Commonwealth’s attorney returned to his theme first raised in the opening statement. With respect to the closing argument, the record reveals:

“Mr. Hammonds has made a great argument here about the fact that we took Ed Wright’s statement and we didn’t take Gene Salisbury’s . . .
MR. HAMMOND: (Counsel for defendant) Your Honor, I made no comment about that.
THE COURT: Sustained.
MR. STUMBO: (Attorney for Commonwealth) Now, let me ask you this question. How are you going to talk to a man when he won’t talk to you? The defendant never would talk to you. He waits until he gets in the courtroom to come up with his side of the story. And at the time Ed Wright gave that story to Detective Rose over there he gave him a statement similar to what he testified here in this trial.
MR. HAMMOND: (Counsel for defendant) Your Honor, there’s no proof to that.
MR. STUMBO: (Counsel for plaintiff) We’ve got proof to that. He testified to that.
THE COURT: Overruled, Detective Rose testified to that.
MR. STUMBO: He gave it. He gave us a statement similar to what he testified to and he gave it the day of the shooting. The day after the shooting he gave a statement on the day of the shooting. I’ll correct that. He gave it to Detective Rose and he was advised of his rights too like Salisbury was. But, he didn’t say, T want a lawyer.’ He gave it to us. And at that time there was no promise give to him of immunity. At that time there was no promise of immunity to him. Now, all up until this time, at the time of the examining trial, Ed Wright has testi- tied essentially the same story.” (emphasis added)

The methods used by the Commonwealth’s attorney to impeach Salisbury’s credibility were objectionable. When a criminal defendant has received Miranda warnings following arrest, his subsequent silence cannot be used to impeach his testimony at trial. Niemeyer v. Commonwealth, Ky., 533 S.W.2d 218 (1976); Cessna v. Commonwealth, Ky., 465 S.W.2d 283 (1971); Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The difficulty in this case arises from the fact that Salisbury’s trial counsel did not make any objection to the Commonwealth’s use of the defendant’s silence following his arrest. Under very similar circumstances, this state’s highest court has held that the Commonwealth’s argument was not subject to appellate review in the absence of an objection at the trial level. Minor v. Commonwealth, Ky., 478 S.W.2d 716 (1971). However, this court is also aware that federal courts do not consider themselves similarly limited in habeas corpus proceedings by a failure to object at the trial level. The very conviction affirmed in the Minor case was set aside by the United States Court of Appeals in Minor v. Black, 527 F.2d 1 (6th Cir. 1975). This court also takes note of the recent decisions of the Supreme Court which indicate that a failure to object at the trial level may bar review of an error by the federal courts. Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976).

Salisbury’s appellate counsel asserts that the conviction may be set aside under the “palpable error” rule without regard to the absence of an objection at the trial level. RCr 9.22 which requires contemporaneous objections is a salutary rule because it gives the trial judge an opportunity to remedy any errors in the proceedings. As Chief Justice Burger stated in Estelle v. Williams, supra:

“The reason for this rule is clear: if the defendant has an objection, there is an obligation to call the matter to the court’s attention so that the trial judge will have an opportunity to remedy the situation.” 425 U.S. 501, 508 n.3, 96 S.Ct. 1691, 1695.

In many circumstances a timely objection by the defendant will permit the Commonwealth to produce additional testimony in order to establish that the evidence in question is properly admissible. Sykes v. United States, 373 F.2d 607 (5th Cir. 1966), cert. den., 386 U.S. 977, 87 S.Ct. 1172, 18 L.Ed.2d 138; State v. Woods, 5 Wash.App. 399, 487 P.2d 624 (1971).

Notwithstanding the contemporaneous objection rule embodied in RCr 9.22, an appellate court can consider a “palpable error” which affects the “substantial rights” of a defendant even though the error was insufficiently raised or preserved on the trial level. CR 61.02 (as made applicable to criminal proceedings by RCr 13.04); Stone v. Commonwealth, Ky., 456 S.W.2d 43 (1970). Applying the standards of CR 61.-02, the Commonwealth’s comment on Salisbury’s silence following his arrest was not a harmless error, but rather involved “substantial rights” of the defendant. The jury was required to determine whether it should believe Salisbury’s testimony or the testimony of the witness Wright. The Commonwealth’s comparison of Salisbury’s silence with Wright’s voluntary statement at the time of his arrest went to the vital issue in the case, the credibility of the two persons present at the shooting. The only remaining question is whether the Commonwealth’s comment constituted “palpable error” requiring a reversal of the conviction.

Even though Salisbury’s substantial rights were involved by the Commonwealth’s comment on his post-arrest silence, it does not necessarily follow that there was palpable error. During the trial of a criminal case, there are many strategic and tactical decisions which must be made by the defendant’s counsel in the “heat of battle.” Many of these decisions will have constitutional implications. During the trial itself, the burden of raising those constitutional questions rests primarily on the shoulders of the defendant’s trial counsel. As Chief Justice Burger stated:

“Under our adversary system, once the defendant has the assistance of counsel, the vast array of trial decisions, strategic and tactical, which must be made before and during trial rests with the accused and his attorney. Any other approach would re-write the duties of trial judges and counsel in our legal system.” Estelle v. Williams, supra, 425 U.S. at 512, 96 S.Ct. at 1697.

When a defendant’s attorney is aware of an issue and elects to raise no objection, the attorney’s failure to object may constitute a waiver of an error having constitutional implications. In the absence of exceptional circumstances, a defendant is bound by the trial strategy adopted by his counsel even if made without prior consultation with the defendant. The defendant’s counsel cannot deliberately forego making an objection to a curable trial defect when he is aware of the basis for an objection. See the concurring opinion of Justice Powell, Estelle v. Williams, supra, 513-515, 96 S.Ct. 1691, Henry v. Mississippi, 379 U.S. 443, 451-52, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965). If a defendant’s counsel could not waive constitutional issues by failing to object during the course of a trial, the trial judge would be placed in an impossible position. In discussing the effects of such a rule the Supreme Court of Alaska stated:

“Not only would it hamper the attorney, it might force the trial judge to interrupt the proceedings whenever a waiver might be occurring in order to protect the record on appeal. If the judge did not do so, the defendant could later challenge his conviction by asserting that he had not consented to the waiver. In addition, such a procedure would distract and confuse a jury. If carried far enough, it could not only slow a trial to a snail’s pace, but it might also involve the judge in the conduct of the defense to an unacceptable degree.” Lanier v. State, 486 P.2d 981, 987 (Alaska 1971).

This court will not adopt a rule which would require the trial judge to stop the trial whenever a possible constitutional issue is raised in order to inquire of counsel and the defendant whether a waiver is intended.

A defendant will not always be bound by his attorney’s failure to object. When the question of waiver arises in a non trial context, the trial judge may have much greater responsibilities to insure that there has been a knowing waiver of constitutional rights by the defendant himself. E. g. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (guilty plea). In holding that a defendant’s counsel can bind the defendant by failing to make an objection on constitutional grounds during trial, this court assumes that the defendant’s attorney was aware that there was an “arguable basis” for such an objection. Compare Kuhl v. United States, 370 F.2d 20 (9th Cir. 1966), with Pineda v. Craven, 424 F.2d 369 (9th Cir. 1970). If the defendant’s attorney is completely unaware that there may be an objection which clearly affects the substantial rights of his client, a serious question may be raised whether the defendant was denied effective assistance of counsel. See United States ex rel. Henderson v. Brierley, 300 F.Supp. 638 (E.D.Pa.1969).

The record in this case fails to reveal the reason why no objection was made to the Commonwealth’s comment on Salisbury’s silence following his arrest. In this connection it may be significant on the question of the defendant’s counsel’s awareness of the issue that he went into the subject while cross-examining State Trooper Estep. The record reveals:

“RE-CROSS EXAMINATION BY: Jim Hammond (defendant’s counsel)
Q 107 Did he make any comment to you at all that morning?
A Yes, the only thing he said when I advised him of his rights, he said, I want to see my lawyer or a lawyer, and that’s all he said and I said, o. k., we’re going down to the car.
Q 108 And did you tell him that he had that right?
A I advised him of his right.
Q 109 You told him, you advised him he had a right to be silent, that he had a right to an attorney?
A That’s right.
Q 110 And did you take it that be responded in that manner because of your diligent reading to him of his rights?
A That was my understanding.”

The record does not contain the closing argument made by the defendant’s trial counsel so this court cannot know what reference, if any, he made to the subject at that time.

This court cannot determine whether the defendant’s trial counsel failed to object as a matter of trial tactics, whether he deliberately withheld making an objection in the hopes that reversible error would slip into the record, or whether he was unaware that there was a possible objection. Consequently, Salisbury has not demonstrated that there was palpable error. As the merits of the issue cannot be reached on direct appeal with the present record, Salisbury is not foreclosed from raising the issue in further proceedings pursuant to RCr 11.42. In such proceedings the trial court would, for the first time, have an opportunity to determine whether there had been a valid waiver of the defendant’s constitutional objection.

For the foregoing reasons, the judgment is affirmed.

All concur.

ON PETITION FOR REHEARING

Our opinion in this case is supported by the subsequent decision in Wainwright v. Sykes,-U.S.-, 97 S.Ct. 2497, 2507-8, 53 L.Ed.2d 594 (1977) rendered by the Supreme Court of the United States on June 23, 1977. The opinion of the Court states:

A contemporaneous objection rule may lead to the exclusion of the evidence objected to, thereby making a major contribution to finality in criminal litigation. Without the evidence claimed to be vulnerable on federal constitutional grounds, the jury may acquit the defendant, and that will be the end of the case; or it may nonetheless convict the defendant, and he will have one less federal constitutional claim to assert in his federal habe-as petition. * * * An objection on the spot may force the prosecution to take a hard look at its whole card, and even if the prosecutor thinks that the state trial judge will admit the evidence he must contemplate the possibility of reversal by the state appellate courts or the ultimate issuance of a writ of federal habeas corpus based on the impropriety of the state court’s rejection of the federal constitutional claim.
We think that the rule of Fay v. Noia, broadly stated, may encourage ‘sand bagging’ on the part of defense lawyers, who may take their chances on a verdict of not guilty in a state trial court and intend to raise their constitutional claims in a federal habeas court if their initial gamble does not pay off. The refusal of federal habeas courts to honor contemporaneous objection rules may also make state courts themselves less stringent in their enforcement. Under the rule of Fay v. Noia, supra, state appellate courts know that a federal constitutional issue raised for the first time in the proceeding before them may well be decided in any event by a federal habeas tribunal. Thus their choice is between addressing the issue notwithstanding the petitioner’s failure to timely object, or else face the prospect that the federal habeas court will decide the question without the benefit of their views.
The failure of the federal habeas courts generally to require compliance with a contemporaneous objection rule tends to detract from the perception of the trial of a criminal case in state court as a decisive and portentous event. A defendant has been accused of a serious crime, and this is the time and place set for him to be tried by a jury of his peers and found either guilty or not guilty by that jury. To the greatest extent possible all issues which bear on this charge should be determined in this proceeding; the accused is in the court room, the jury is in the box, the judge is on the bench, and the witnesses, having been subpoenaed and duly sworn, await their turns to testify. Society’s resources have been concentrated at that time, and place in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens. Any procedural rule which encourages the result that those proceedings be as free of error as possible is thoroughly desirable, and the contemporaneous objection rule surely falls within this classification.
* ⅜ * There ⅛ nothing in the Constitution or in the language of § 2254 which requires that the state trial on the issue of guilt or innocence be devoted largely to the testimony of fact witnesses directed to the elements of the state crime, while only later will there occur in a federal habeas hearing a full airing of the federal constitutional claims which were not raised in the state proceedings. If a criminal defendant thinks that an action of the state trial court is about to deprive him of a federal constitutional right there is every reason for his following state procedure in making known his objection.

The petition for rehearing is DENIED.

ALL CONCUR.

      . “It is seldom that counsel can really ‘know’ that a constitutional objection, on fourth amendment grounds, is good, either as a matter of fact or as a matter of law. He may believe that it is; he may hope that it is; he may think that it is not. As to any of these views, he may be mistaken. It is for him to decide, whichever of these views he holds, and even if he ‘knows’ that the claim is good, whether he will assert the claim. If he does so, he may be more or less surprised to find that the court does or does not agree with him. If he decides not to do so, his decision is still ‘an intentional relinquishment or abandonment of a known right or privilege’ (Fay v. Noia, 1963, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837). The ‘known right or privilege’, in such a case as this, is the right or privilege of presenting the contention to the court and getting a ruling on it.” Kuhl v. United States, 370 F.2d 20, at 25-26 (9th Cir. 1966)