author: PALMORE, Chief Justice.

text:
    Ex parte Jack Emory FARLEY, Public Advocate, Office for Public Advocacy, Commonwealth of Kentucky, Larry Otis Bendingfield, and Robert E. Martin, III.
    Supreme Court of Kentucky.
    July 25, 1978.

      Jack Emory Farley, Public Advocate, Kevin Michael McNally, Erwin W. Lewis, Asst. Public Defenders, Frankfort, for petitioners.
    Robert F. Stephens, Atty. Gen. by Carl T. Miller, Jr., Asst. Atty. Gen., Frankfort.
   PALMORE, Chief Justice.

This proceeding began in the form of a “Complaint for Declaration of Rights” filed by the petitioners in the Franklin Circuit Court. Named as defendants were the Supreme Court of Kentucky “both individually and collectively,” the Chief Justice and individual Justices of the Supreme Court in their respective official capacities, the Administrative Office of the Courts and its Director, and the Executive Assistant to the Chief Justice. For reasons presently discussed we ordered the proceeding transferred to this court and directed that it be styled, treated and practiced as an ex parte application for the ultimate relief desired by the petitioners, which is that they be provided “periodic inspections” and the right to copy whatever records are being compiled pursuant to KRS 532.075(6).

KRS 532.075 was enacted at the 1976 Extraordinary Session of the General Assembly as part of a series of statutory sections relating to the death penalty for serious criminal offenses. Ch. 15, Acts of 1976 (Ex. Session). These statutory sections were patterned after similar provisions enacted by the State of Georgia had passed constitutional muster in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).

With exceptions not here pertinent, the laws of this state always have required that the quantum of punishment in a criminal case be prescribed, within the applicable statutory limits, by the jury. See, for example, Chapter IV, § 15, Acts of 1798, as contained in 2 Littell’s Statute Laws of Kentucky, p. 14; § 1136, Carroll’s Kentucky Statutes (Baldwin, 1922); Criminal Code § 258, Carroll’s Kentucky Codes (Baldwin, 1938); KRS 431.130 (Baldwin, 1955). By Chapter 234, Acts of 1962, the Rules of Criminal Procedure (RCr) were recognized as superseding the old Criminal Code and, among other things, KRS 431.130 was amended to delete reference to the fixing of punishment. Since that time the jury requirement has been preserved in RCr 9.84.

From a reading of the 1976 Act (KRS 532.025-532.100, inch) it may be seen that from the beginning of the trial in a capital case there are four successive inquiries leading to final confirmation of the death sentence. First is a trial on the question of guilt or innocence. Then if the defendant is found guilty the court is required to resume the trial and conduct a presentence hearing, at which the same jury hears evidence of aggravating and mitigating circumstances as defined in KRS 532.025(2), determines whether any of those circumstances exist, and recommends a sentence. Thirdly, whatever may be the jury’s recommendation, “upon the findings of the jury, the judge shall fix a sentence within the limits prescribed by law.” Lastly, if the death sentence is imposed, KRS 532.075 requires that it be reviewed by the Supreme Court “on the record.” This much must be done regardless of whether there is an appeal. Cf. KRS 532.075(2), (8).

In addition to those matters that are discernible “on the record,” KRS 532.075(3) introduces a question calling for another category of information (which, of course, would not appear in the record of the case) to be considered by the Supreme Court incident to its review of the sentence: “Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.”

To implement this latter provision, KRS 532.075(6) provides as follows:

“(6) The chief justice shall assign to an administrative assistant who is an attorney the following duties:
(a) To accumulate the records of all felony offenses in which the death penalty was imposed after January 1,1970, or such earlier date as the court may deem appropriate.
(b) To provide the court with whatever extracted information it desires with respect thereto, including but not limited to a synopsis or brief of the facts in the record concerning the crime and the defendant.
(c) To compile such data as are deemed by the chief justice to be appropriate and relevant to the statutory questions concerning the validity of the sentence.”

KRS 532.075(5) provides in part as follows (referring to the Supreme Court): “The court shall include in its decision a reference to those similar cases which it took into consideration.”

The petitioner Farley is Public Advocate (formerly Public Defender, cf. Ch. 155, § 20, Acts of 1978) for the Commonwealth. His office is an “independent agency of state government,” KRS 31.010, and its duties include the defense of indigent defendants in criminal cases. KRS 31.030. Despite this legislative designation of his office as an independent agency of state government, the Public Advocate is “directly responsible” to the Secretary of Justice. KRS 31.020. The Secretary of Justice is head of the Department of Justice, and is an executive cabinet officer appointed by the Governor. KRS 11.065, 12.020. The Office for Public Advocacy is, in fine, an agency of the executive branch of the state government, and insofar as his relationship to the Court of Justice (cf. Const. § 109) is concerned, the position of the Public Advocate is no more and no less than that of any other lawyer practicing before it.

The Court of Justice and its officers and employes are the judicial department of the Commonwealth. Const. §§ 27, 28,109. The Court of Justice is a “unified judicial system for operation and administration.” Id., § 109. In addition to its appellate jurisdiction with regard to matters in litigation, Const. § 110 expressly recognizes the authority of the Supreme Court “to exercise control of the Court of Justice.” The existence of such authority at some point in the structure is, of course, indispensable to a “unified judicial system for operation and administration.” Though Const. § 110(5)(b) provides that the Chief Justice “shall be the executive head of the Court of Justice,” there can be little doubt that § 110 vests the supervisory and policy-making authority of the judicial department in the Supreme Court. Cf. SCR 1.020(l)(a).

Const. § 110(5) directs the Chief Justice to appoint such administrative assistants as he deems necessary. KRS 27A.015 provides for an administrative office of the courts (hereinafter AOC) and a director of that office to serve as the staff of the Chief Justice in executing the policies and programs of the Court of Justice. Clearly, this office and its director and employes are part and parcel of the judicial department of the state. They are, in fact, inseparable from the office of the Chief Justice itself.

We have recited these humdrum details in order that things may be kept in proper focus as we go along.

As of this writing, no case has been brought to this court for review of a death sentence under KRS 532.075, though at least one appears to be in the offing and the petitioners Bendingfield and Martin evidently regard themselves as likely candidates. Meanwhile, the task of accumulating the information mentioned in KRS 532.-075(6) has been undertaken by personnel of AOC under the supervision of its Director and of the Chief Justice, but the court has not yet considered or determined which, if any, of the informational materials so collected (beyond the death-penalty cases since January 1, 1970) might be appropriate and relevant to the statutory questions concerning the validity of any particular death sentence or any prospective sentences of that nature.

In July of 1977 Farley’s office wrote a letter to AOC expressing the desire “to have input into what types of data will be collected and . . . have access to that data.” In August of 1977 another such letter was addressed to the then Chief Justice reporting that the petitioner Bending-field had been convicted of two capital offenses and requesting all information compiled pursuant to KRS 532.075(6) so that the trial judge might be advised of the “factors . . . relevant to his decision regarding whether to accept the jury’s recommendation of death for our client” and “relevant to our challenge to the constitutionality of the statute.” In a reply prepared at the direction of the Chief Justice, AOC advised that the work had just begun, that no information was available thus far, and that whether it would become available at some time in the future was a question to be taken up with the Chief Justice. In November of 1977 the Public Advocate wrote the present Chief Justice to the effect that although the statute did not so require, it would avoid wasteful duplication of effort if the material being accumulated by AOC were made available to his office. A reply from the Chief Justice advised the Public Advocate that the matter had been discussed with the members of the court and the court was not convinced it was desirable.

On March 21, 1978, by letter, Farley requested the opportunity of inspecting “the public records” compiled by AOC pursuant to KRS 532.075 and cited KRS 61.870, et seq., the “Open Records Law,” as authority for him to do so. A reply prepared by AOC advised that the court considered the information as being for its own use and that it would not be made available until the Chief Justice determined otherwise. Meanwhile, at least two efforts were made, unsuccessfully, by members of the Public Advocate’s staff to bring the desired materials into court through subpoenas served upon the Administrative Director of the Courts in criminal trial proceedings, and on April 20, 1978, the Attorney-General, replying to an appeal made by the Public Advocate under KRS 61.880 (a provision of the Open Records Law), issued an opinion advising that the records of the Supreme Court do not come within the purview of the Open Records Law. Being aggrieved by that opinion, the Public Advocate instigated the proceeding that is the subject of this opinion.

In considering the arguments presented it is necessary to distinguish between those claims by the Public Advocate and his office in their official capacity and those claims purportedly being made in behalf of Bend-ingfield and Martin. Whatever may be his duties toward a client, there is no legal principle under which an attorney has a cause of action in his own name and right for a wrong or fancied wrong to the client. Neither in the role of counsel for Bending-field and Martin nor in his statutory capacity does the Public Advocate have any of the constitutional rights that he claims are being trampled asunder by this court. In so saying, we do not overlook the contention that he is being denied access to the courts, but we regard that argument as nothing short of frivolous. He is, after all, in court now, even though he prefers to be in some other court. The rights he claims, if they exist, are purely statutory.

We shall deal first with the rash of hyperbolic arguments pertaining to jurisdiction and propriety.

Const. § 110(2)(a) confers upon the Supreme Court “the power to issue all writs . as may be necessary to exercise control of the Court of Justice.” Prior to its amendment in 1975 (effective January 1, 1976) Const. § 110 provided that the Court of Appeals (now the Supreme Court) “shall have power to issue such writs as may be necessary to give it a general control of inferior jurisdictions.” It was under this section that the Court of Appeals had authority to issue the familiar writs of mandamus and prohibition. Board of Prison Com'rs v. Crumbaugh, 161 Ky. 540, 170 S.W. 1187, 1188 (1914); Childers v. Stephenson, Ky., 320 S.W.2d 797, 799 (1959). But its authority was never restricted to that which was familiar. Quite apart from the express authority conferred with respect to inferior courts, “The right of self-preservation is inherent in the court, and is not derived from, or dependent upon, any act of the Legislature, or any express provision of the Constitution. It inheres in the court as such, and is necessary to vindicate its authority and to maintain its integrity.” Capps v. Gore, 231 Ky. 185, 21 S.W.2d 266, 267 (1929). “It is the prime duty of this Court to assure to the best of its ability the orderly and effective administration of justice in this jurisdiction, and it has the inherent power to do what is reasonably necessary to attain that goal. . . . And, indeed, a court 'may, in appropriate cases, make ex parte orders without formally instituting an action to secure the desired relief.’ ” In re Appointment of Clerk of Court of Appeals, Ky., 297 S.W.2d 764, 765 (1957).

Nothing in the 1975 amendment to Const. § 110 suggests any intention to whittle down either the express or the implied authority theretofore declared and recognized as belonging to the old Court of Appeals.

Const. Sec. 112(5) gives the Circuit Court “original jurisdiction of all justiciable causes not vested in some other court.” The petitioners say that because this proceeding was initiated as a declaratory judgment action the Circuit Court has jurisdiction. Our conclusion, however, is that except for matters in which the United States Supreme Court has the right of review over the judgments of this court, the jurisdiction to hear and determine any cause that has as its ultimate objective a judgment declaring what this court must do or not do is vested exclusively in this court, for the very simple reason that our Constitution makes it the highest court of the state and gives it the authority to “exercise control of the Court of Justice.” It could not be said to possess such authority if it or its members in their official capacities were held subject to the authority of the Circuit Court or any other court of the state. The Circuit Court can have no more jurisdiction to issue a declaratory judgment than to issue a writ of mandamus or prohibition against this court or against its members and administrative staff in their official capacities.

According to a recent magazine article as recalled by this writer, it is the philosophy of a leading scholar and advocate who occupies a chair at the law school of one of the great universities of this country to “confront the government” wherever he finds it. The courts, of course, are a part of the government. Clearly, what the Public Advocate has sought in this particular instance is a confrontation with this court. But how does one “confront” a court? Every plaintiff or petitioner who institutes a legal proceeding asks the court to do something. If the court declines to do it, he is aggrieved. He is, in fact, aggrieved by and at the court itself. But his only means of confrontation or redress is by way of an appeal; certainly he cannot sue the court. In any event, sooner or later he reaches the end of the line, and when the court that rejects his claim happens to be the court of last resort in that jurisdiction he finds himself with no place else to go, because there is no appeal from that court. It is precisely the same if the action is an original proceeding in a state supreme court. There is no appeal. And fundamentally it is the same also when, as in this case, someone who wants something from the Supreme Court asks for it and is denied, whether the request be made by letter or by formal petition; The denial is final because there is nowhere else to go. Regrettable as it may be, all things mortal are destined to end at some time and at some place, some without further appeal and some without any appeal at all.

This does not mean, as suggested by the Public Advocate during the course of the oral argument, that the court is “above the law,” or that it so regards itself. That hackneyed canard was bruited about and confounded long ago. The final authority to say what the law is must reside somewhere in any governmental structure. In our systems, state and federal, it resides in the judicial department. “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch.) 137, 177, 2 L.Ed. 60 (1803). That this court is the final rung of the state’s judicial ladder does not make it an oligarch, because even if the discipline of our profession were ignored, we simply could not bring it off.

“It may in the last place be observed that the supposed danger by judiciary encroachments on the legislative authority is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpation by force.” The Federalist, No. 81.

In this state, judges like other public officers are elected by popular suffrage, and that is the ultimate protection against any supposed aggrandizement of power.

The petitioners evince shock and great umbrage that the members of this court, having already formed and expressed an adverse opinion by refusing to give that which was first demanded by letter, decline to declare themselves disqualified and vacate the bench now that the matter has been formally demanded by litigation. But we see no difference in principle from the participation by judges in the rehearing of a case in which they have rendered an opinion. Judges understand that they can be and at times are in error. If they were disqualified by reason of having made a previous ruling, most motions for a new trial and every petition for rehearing would call for a new judge or a new court. What we have done in this case is to reconsider our initial response to the Public Advocate’s demand and to afford him an ample opportunity to present and argue the merits of that demand.

One further point and we shall leave off this tilting with procedural windmills. The petitioners apparently are of the impression that courts, as such, including of course this court, can be sued and that the judge or judges of the defending court are disqualified by reason of interest. We do not think so, in this jurisdiction at least. The function of a court is to resolve disputes, and it cannot have an interest or be an adversary party in a proceeding carried on within its own system. And if in this case now before it the court could be regarded as an adversary of the petitioners, how would matters be any different if its regular members saw fit to vacate the bench? The special members appointed temporarily to replace them would still constitute that same court and, perforce, they too would be disqualified.

In reality, what the petitioners have sought to do here is to appeal an action of this court to the circuit court with the objective of an eventual appeal back to this court, anticipating that the members of the court participating at the time of the initial decision would be replaced by others — in substance, a circuitous appeal from this court as regularly constituted to this same court as specially constituted. For the reasons already indicated, it cannot be done.

The further argument is made that because the members of this court were named as parties defendant in the proceeding as originally brought in the Franklin Circuit Court they became disqualified, not only by virtue of KRS 26A.015(2)(d)(l) but also by the principles of due process. Except for sheer ignorance, however, there is little to distinguish a suit brought in the Circuit Court against the Supreme Court and its members in their official capacities from a mere sham. It is constructive sham if not actual, the result being the same in either event. There can be no concealing that in this instance it was conceived and designed for the purpose of removing the members of the court from the consideration of a question that was their prerogative to decide. At the very most, the justices of the court were no more than nominal parties. Whatever interest they had, and have now, is strictly impersonal, and not of a substantive nature which might otherwise have been cause for disqualification. Cf. 46 Am.Jur.2d, Judges, § 111; Commonwealth v. Murphy, 295 Ky. 466, 174 S.W.2d 681, 683 (1943). It is true, as expressed in In re Murchison, 349 U.S. 133, 137, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955), cited by petitioners, that “no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome,” but this case bears no resemblance to Murchison, or to Commonwealth v. Murphy, in which an amended petition alleged that the judge actually had aided and abetted the other defendants in their conduct of illegal gambling activities. Here we have, on the merits, only a question of law. Even if it be conceded for sake of the argument that the viewpoint indicated by the court through its previous rejection of the demands made upon it was legally in error, that would not be a ground for disqualification. Cf. Noe v. Commonwealth, 267 Ky. 607, 103 S.W.2d 104, 106 (1937); Sessmer v. Commonwealth, 273 Ky. 40, 115 S.W.2d 337, 338 (1938).

The interest of this court and of its members is not to thwart or evade the law, but only to ascertain what it is, and whatever may be the answer, it is not a matter of personal concern or of such official inconvenience as would pose a ground for disqualification. We reject the claim that there is a violation of KRS 26A.015 or of due process.

Coming now to the question whether at this stage any of the petitioners has a legal right of access to the work-in-process accumulated by AOC, we presume that they have abandoned the notion that such access is contemplated or authorized by KRS 532.-075 itself. Quite obviously it is not.

On its face, the Open Records Law, KRS 61.870-61.884, inch (Ch. 273, Acts of 1976), appears to apply. Whether its provisions conflict with or are harmonious with KRS 26A.200-26A.220, inch (Ch. 22, Acts of 1976 Ex.Sess.), we need not decide, because we are firmly of the opinion that the custody and control of the records generated by the courts in the course of their work are inseparable from the judicial function itself, and are not subject to statutory regulation.

“It is elementary law, of course, that a court has the right to protect the integrity of its own records.” Gaston v. Collins, 146 Kan. 449, 72 P.2d 84, 86 (1937). Not much has been written on this isolated principle (perhaps, indeed, because it is elementary), but the court touched upon it in Summers v. City of Louisville, 140 Ky. 253, 130 S.W. 1101 (1910). In that case the Jefferson Circuit Court, acting under statutory rule-making power, promulgated a rule permitting the city attorney of Louisville to have temporary custody of records in tax cases. The circuit court clerk contended that the rule conflicted with a statute requiring the clerk to “carefully preserve in his office all books and papers coming into his hands by virtue of his office.”

In holding that the latter statute applied only while the records were in physical custody of the clerk, the court pointed out that the validity of the rule rested on the power of the court over its own records:

“But the records in the hands of the clerk are the records of the court. He holds them simply as the custodian of the court. The court can require its own records brought to the courtroom, or to a judge of the court, or to the office of its commissioner. So much of the rule is practically conceded to be valid. But the validity of this part of the rule does not rest on the necessity of the case, but on the power of the court over its records. The provision of the statute that the clerk shall carefully preserve all books and papers coming to his hands was not intended to interfere with the power of the court over its records, and means that he is to carefully preserve the records while in his custody. . . . The rule is simply a determination by the courts as to its own records.” (Emphasis added.)

It is not our disposition to be jealous or hypertechnical over the boundaries that separate our domain from that of the legislature. Where statutes do not interfere or threaten to interfere with the orderly administration of justice, what boots it to quibble over which branch of government has rightful authority? We respect the legislative branch, and in the name of comity and common sense are glad to accept without cavil the application of its statutes pertaining to judicial matters, just as we accept KRS 532.075, even though it has been argued with much force that there is no constitutional basis for a statute enlarging the scope of appellate review beyond the matters of record in the proceeding under consideration. Cf. American Beauty Homes Corp. v. Louisville, etc., Ky., 379 S.W.2d 450, 455 (1964).

The Open Records Law was enacted after this court had decided in City of St. Matthews v. Voice of St. Matthews, Inc., Ky., 519 S.W.2d 811 (1974), that most public records should be and are open to public inspection. It was conceded in that opinion that ordinarily we look to the General Assembly for an expression of public policy in that area of governmental choice. However, with respect to records that belong to the courts and are a part of their ongoing work, the only conclusion consistent with the constitutional right of control over their own records is that the public policy must be articulated by the courts themselves. We do not believe that this viewpoint represents any actual conflict with the policy intended by the General Assembly itself. KRS 26A.200, which was enacted at a later date than was the Open Records Law, implicitly recognizes it. As a matter of fact, KRS 26A.200 was drafted by AOC.

But we do not intend to retreat from the wholesome principles expressed in City of St. Matthews. We fully appreciate that whatever belongs to the courts belongs to the public. In a fundamental sense, we are only trustees, but in the sphere of authority that is constitutionally vested in the courts we are direct representatives of the public no less than is the General Assembly, or, for that matter, the Governor of the Commonwealth, to whom the public probably looks more for actual leadership and exercise of authority than to either of the other two branches of government.

There is very little in the policies evinced by the Open Records Law that we could not accept as a matter of comity. Some details of that law, however, present interferences that we regard as inconsistent with the orderly conduct of our own business, and those we do not accept. One is that we adopt and post rules and regulations. Cf. KRS 61.876. Another is that we conform to the procedure set forth in KRS 61.880. Still another is that as to the accessibility of our own records we adhere to the list of exceptions stated in KRS 61.878, and it is especially in this statutory section that we see an impediment to the efficient conduct of our work. KRS 61.878(l)(g) excepts preliminary drafts and notes, but KRS 61.-878(2) provides that there is no exemption for “statistical information not descriptive of any readily identifiable person.” If this latter subsection means materials and data in the process of being accumulated, or which already have been accumulated, to the end that the court may select from it such portions as it deems pertinent for comparison with the facts of a case or cases to be reviewed by it, then a compliance with the statute would interfere with our work.

Every opinion from a casebook, every text or treatise, every law review article, every philosophical, historical or religious document a judge might see fit to read and consider, including the Holy Bible, is a tangible source of information from which he may pick and choose in arriving at a judgment. Fifty years ago lawyers and judges did not have at their disposal the sophisticated copying machines of today, but suppose that during the accumulation of facts, figures and studies which became the hallmark of his work the late Mr. Justice Bran-déis had been obliged to let the lawyers and litigants make xerox copies of what lay on his library table from day to day. It would have been just about as outlandish a notion as a suit against the United States Supreme Court in one of the federal district courts.

From the standpoint of its effect upon the operation of the court, there would be no difference between permitting the Public Advocate to look at our work while it is in progress and permitting all lawyers to see what we are reading while we are working on their cases. The mere looking would be only the beginning. Why look, without the right to comment — that is, to participate in the court’s deliberations? If the door were thrown open for lawyers, litigants, or anyone else to rummage through the papers on our desks, not only would the interruptions be intolerable, but also the court would be deluged by floods of letters, supplemental briefs, motions for leave to file supplemental briefs, responses and further motions, all addressed to the subject of whether and why we might or might not to consider this, that or the other. We simply cannot and will not have it.

According to the petitioners’ brief, “No interest is served by continuing to hide these records.” We shall let the insult pass, ascribing it more to stupidity than to insolence. This court has no reason to conceal anything. Indeed, not a member of the court has seen any of the material in question. We have not been advised and do not know what it contains or does not contain. The simple fact is that we are not ready to look at it yet, and we do not intend to be led to it in a halter. It is enough, meanwhile, to be engulfed in the morass of this asinine litigation.

One of the melancholy developments of the passing era has been the decline in respect exhibited by lawyers to each other and to the courts. Battles in court were just as hard-fought 40 years ago as they are today — perhaps more so — but the prevailing decorum had the flavor of old bourbon. Though it is no longer so refined, most lawyers still adhere to the traditional standards of professional savoir faire. Regrettably, there seem to be so many more exceptions. We have exercised great restraint toward the Public Advocate and his staff thus far, but there are limits to the impudence that even this court will tolerate.

There is one fairly respectable argument in support of the petition. In Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), the Supreme Court of the United States held that a defendant had been deprived of due process by the withholding of a confidential presentence report considered by the trial judge in sentencing him to death in the face of an advisory jury verdict recommending life imprisonment. There are obvious differences between individualized information pertaining to the defendant personally, which is to be considered by a trial judge in fixing a sentence, and the impersonal data that may be used by an appellate court in determining whether the judgment of a trial court is or is not in line with what has been done in comparable cases. Whether those differences would command significance in the eyes of the Supreme Court of the United States we cannot be certain. We can only guess, being fully conscious that we have not always been successful in similar efforts.

It seems to us that the difference is quite fundamental. If a judge or jury deciding one’s fate is going to consider reports of what other people say about him, certainly he should be entitled to see them. “The risk that some of the information accepted in confidence may be erroneous, or may be misinterpreted, by the investigator or by the sentencing judge, is manifest.” Gardner v. Florida, supra, at 430 U.S. 359, 97 S.Ct. 1205. But we are not the sentencing court. In any given case before us we intend to comply with the statutory request to include in our decision a reference to those similar cases that have been taken into consideration. Presumably, however, the petitioners want to know not only what will be taken into consideration, but what will not, and to know it in advance, so that they can urge upon us what to choose and what to avoid. If they are constitutionally entitled to that much, perhaps they have the further right to submit the individual members of the court to exhaustive questionnaires designed to discover and provide against their tastes and predilections. After all, “No fixed legal categories or concepts can wholly isolate this process of selection and shaping; on the contrary, the influence of any inquirer’s biological and social matrices is an inevitable limitation on the ‘purity’ of his reasoning.” Patterson, Edwin W., Logic in the Law, 90 University of Pennsylvania Law Review 875, 894 (1942).

We do not find it possible to believe that in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), the Supreme Court of the United States meant to lay down a principle so pervasive as to require an appellate court to lay out for inspection by the appellant, even in a capital case, all of the information in its hands from which it may seek perspective and guidance in reviewing the propriety of his sentence. We therefore hold that Gardner does not apply.

It follows a fortiori that a defendant has no right to the production of this court’s files for use at the trial stage. The Public Advocate contends that because it was observed in Gregg, 428 U.S. at p. 181, 96 S.Ct. at p. 2929, that the jury “is an objective index of contemporary values,” this kind of information is relevant as trial evidence to which a defendant has the right of compulsory process. The fault in this line of reasoning lies in the premise that evidence of what has happened in other similar cases is, because it tends to indicate contemporary values, admissible in the trial of a capital case. So far as we are concerned, that is a preposterous notion and such evidence is not admissible in the trial of a capital or any other criminal case. There is nothing in Gregg from which it may reasonably be inferred that the necessary standards for guidance of the jury in a capital case extend beyond pointing to “the main circumstances of aggravation or mitigation that should be weighed and weighed against each other when they are presented in a concrete case.” ALI, Model Penal Code § 201.6, Comment 3, p. 71 (Tent.Draft No. 9, 1959), as quoted with approval in Gregg, 428 U.S. at p. 193, 96 S.Ct. 2909. KRS 532.025 enumerates these factors and requires that they be embraced in the instructions to the jury. They do not and should not include what has happened to other defendants in other cases, at other times and in other places.

In keeping with our observation that the fundamental principles expressed in City of St Matthews v. Voice of St. Matthews, Inc., Ky., 519 S.W.2d 811 (1974), apply to the courts as well as to other governmental institutions, the materials compiled by AOC for this court pursuant to KRS 532.075(6) will be open to the public and, perforce, to all who may be interested, as soon as we have had the occasion and opportunity to examine and consider them ourselves. Until then, they are in the same category as any other source of knowledge or information, apart from the record of proceedings relating to an individual appellant, from which the members of the court may properly seek assistance or inspiration in the formulation of their judgments.

The petition is denied.

All concur.

      . Whether the trial judge may fix a penalty not recommended by the jury is a question that has not been litigated in this court. In Georgia the trial judge is bound by the jury’s recommended sentence, though a sentence of death cannot be imposed unless at least one of the aggravating factors has been found to exist. §§ 26-3102, 27-2514, Ga.Code Ann. (1977).

      . The provision of Const. § 115 that in all cases there shall be allowed as a matter of right at least one appeal to another court obviously cannot apply to an original proceeding in the court of last resort.

      . Since 1952 such power has been recognized in this state as exclusively judicial. Cf. Ch. 84, Acts of 1952.

      . This, incidentally, is not the first time the Public Advocate has demanded access to materials generated by the court incident to its decision-making process. On prior occasions members of his staff have moved that we provide copies of recommendations prepared by our staff attorneys. These motions have been denied.

      . This again is not the first instance in which the Public Advocate or members of his staff have taken what this court regards as undue liberties in the form of insinuating remarks, resulting on one such occasion in a cautionary letter from the Chief Justice.

      . We are reminded of the apocryphal story of a conference long ago during which, after one judge of this court had looked at a case cited by another and said, “This case doesn’t say that,” the other judge grabbed up the book and retorted, “Show me where it doesn’t say that!”


source: Caselaw Access Project

author: PALMORE, Chief Justice. LUKOWSKY, Justice, REED, Justice, CLAYTON, Justice, STEPHENSON, Justice,

license: Public Domain

text:
    Harold WHORTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    July 25, 1978.
    Rehearing Denied Oct. 10, 1978.

      Terrence R. Fitzgerald, Deputy Public Defender, Daniel T. Goyette, Associate Director, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., Victor Fox, Asst. Atty. Gen., Frankfort, for appel-lee.
   PALMORE, Chief Justice.

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

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

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

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

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

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

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

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

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

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

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

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

We agree that under the rationale of Sherley v. Commonwealth, Ky., 558 S.W.2d 615 (1977), Whorton’s use of a pistol in firing a shot into the ceiling of Jerry’s Restaurant did not constitute an offense separate from the lst-degree robbery charge for which he was being tried and was convicted. Two of the three elements listed by KRS 515.020(1) as elevating robbery to the highest degree are (1) being armed with a deadly weapon or (2) using or threatening to use a dangerous instrument. Though not every “dangerous instrument” is a “deadly weapon,” a “deadly weapon” ordinarily is a “dangerous instrument” as well. Hence both of these elements were proved in this case. That is, Whorton could have been found guilty of lst-degree robbery either on the basis of his having been armed with a deadly weapon or on the basis of his having used or threatened to use that weapon. Neither, however, can be split off from the other and be treated as a separate offense. It was error to submit to the jury the charge of wanton endangerment growing out of the firing of a shot into the ceiling.

We shall not undertake to discuss at length the definition of reasonable doubt offered by Whorton as against the one given by the trial court. The point was noticed by a faint lifting of the skirt in Taylor v. Kentucky, - U.S. -, 98 S.Ct. 1936, 56 L.Ed. 468 (1978), wherein it was observed that the definition given by the trial court “though perhaps not in itself reversible error, often has been criticized as confusing.” It probably is beyond cavil that in the field of law many things are confusing to some, and that some things, among them a good sample of opinions by the United States Supreme Court itself, are confusing to all. We are at a loss to comprehend how a doubt may be considered “reasonable” if it is without substance, and therefore is insub-' stantial. The definition of “reasonable doubt” that has been approved by this court in recent years was borne of courtroom experience and discussion with jurors who had freshly emerged from the task of wrestling with an intangible concept, and who quite often were disposed to equate the term with “any shadow of a doubt,” or with a querulous sense of disappointment that somehow the prosecution had not proved its case to the degree that the jurors could arrive at a verdict without perspiring. Be that as it may, we now throw in the towel. As noted in Merritt v. Commonwealth, Ky., 386 S.W.2d 727, 729 (1965), we were never so presumptuous anyway as to believe that where others had failed we might succeed. The long and short of it is that we can no longer approve this definition, but unless and until the highest judicial authority is willing to hold it constitutionally fatal, neither will this court do so. Under the circumstances, we are of the opinion that the jury in this case was sufficiently and properly instructed on the subject.

From time immemorial the emphasis with regard to jury instructions in this state has been placed on simplicity. “The function of instructions in this jurisdiction is only to state what the jury must believe from the evidence (and in a criminal case, beyond a reasonable doubt) in order to return a verdict in favor of the party who bears the burden of proof.” Webster v. Commonwealth, Ky., 508 S.W.2d 33, 36 (1974). Thus we have sought to avoid abstract legal principles, presumptions, comments on the weight of the evidence, and references to the burden of proof, which is cast by the form of instruction requiring that in order to make an affirmative finding the jury must, on the basis of the evidence, believe certain specified facts to be true. This approach minimizes the possibility of intrusion by the judge into that particular area of decisionmaking which belongs exclusively to the jury, and it minimizes the possibility of error in that respect. Many lawyers and some judges, including the writer of this opinion, abhor the system that prevails in the federal trial courts, where at the close of the evidence the judge assumes the pulpit and turns preacher, droning out sweaty reams of boilerplate that few jurors really could be expected to digest.

Any thought that our form of instructions might have been designed for the simple-minded would be absurd. Its philosophy is to keep the jury strictly in its place, to keep the judge strictly in his place, to facilitate uniformity, to minimize error, and to avoid prolixity.

To abdicate this wholesome philosophy and flee to the soporific style of the federal courts for the mere sake of taking a step toward nationwide homogeneity would be regrettable. If there is to be a uniform system for the country, better might we entertain the hope that some consideration be given to the proposition that ours may be the preferable choice. Although the Supreme Court’s reference to the instructions in Taylor as “skeletal” and “Spartan” may not have been so intended, it was more of a compliment than a slur. Indeed, we ourselves have said that instructions ought to provide “only the bare bones.” Cox v. Cooper, Ky., 510 S.W.2d 530, 535 (1974). To suggest that they are undernourished simply because they so appear in comparison with the bloated and cumbersome instructions customarily given in the federal courts is nothing less than a symptom of myopia.

In Taylor a judgment of the Franklin Circuit Court was reversed because the trial court declined to instruct the jury that the law presumes a defendant innocent — and this despite the fact that on voir dire the jurors had already signified that they understood that proposition! If the trial court’s “truncated discussion of reasonable doubt . . . was hardly a model of clarity,” as remarked in Taylor, we must confess that we have a similar difficulty with the Taylor opinion itself.

The dissenting members of our court feel that the holding in Taylor is confined to the facts of the case. They draw that inference from the next-to-last sentence of the opinion (emphasis added): “We hold that on the facts of this case the trial court’s refusal to give petitioner’s requested instruction in the presumption of innocence resulted in a violation of his right to a fair trial as guaranteed by the Due Process Clause of the Fourteenth Amendment.”

Admittedly, the weight of evidence against Whorton was far greater than it was against the defendant in Taylor. But does the Supreme Court actually mean to suggest that a defendant’s right to the instruction can be made, ultimately, to stand or fall on the weight of the evidence in a giyen case? If so, then every case in which the trial court refused to give it will have to be decided according to the Chapman-Harrington harmless-error test. If that was the intention, it would have been considerate of the court to say so. It may be that the question of harmless error was not argued in that case, but “a model of clarity” would have left a clean cut rather than a jagged stump. After all, it might reasonably have been foreseen that this court would have to apply the decision to a goodly number of other cases then in the process of appeal in this state, Whorton’s being but one of them.

Those of us in the majority would like to be able to hold that this newly-declared constitutional requirement is subject to the harmless-error rule, but we are afraid it might not stick. We know very well that in actuality Taylor was no more “prejudiced” in his case than Whorton was in this one. Yet Taylor contains no hint that it might have been appropriate to consider whether the error was in fact prejudicial. To bring this discussion to a merciful end, we read Taylor to mean that when an instruction on the presumption of innocence is asked for and denied there is a reversible error. If it means something short of that, we shall welcome further enlightenment from the only source that seems to be able either to construe or to amend the Constitution.

The judgment is reversed with directions for a new trial.

All concur except for CLAYTON and STEPHENSON, JJ., who dissent.

LUKOWSKY, Justice,

concurring.

I concur with my brothers in the result we reach in this case. However, it seems to me that this case provides a forum in which we should articulate the paradoxical philosophies with which we are besieged and propose a course of action to minimize the problems which they create.

In the field of criminal procedure we have observed a decisional process by the Supreme Court of the United States which has crushed the status of the several states as “insulated chambers” of legal experimentation. The fuel which has fed this juggernaut is the concept that the due process clause of the Fourteenth Amendment of the Constitution of the United States makes the First, Fourth, Fifth, Sixth and Eighth Amendments of that document binding upon the several states.

The purpose of this discussion is not to ascertain whether this fuel is historically distilled or artificially synthesized. Rather it is to examine the path made by the steamroller and determine how it may be traveled most smoothly.

Most of the path in Kentucky was free of obstacles because the federal constitutional rules imposed by these decisions were in force here as matters of state law long prior to their enunciation by the Supreme Court of the United States. However, as the Supreme Court continues its journey it digs deeper in the terrain of state procedure, destroys traditional state prerogatives and causes adjustments to be made which are of uncalculated impact. The court has also chosen to examine but has refrained so far from disturbing other state procedural devices. It is fair to say that this process has nationalized criminal procedure, even though there are those who would dispute this conclusion. The course of the Burger court is not significantly different from that of the Warren court, except that it has limited the use of federal habeas corpus as a method of enforcing these newly promulgated constitutional rights.

State systems of criminal procedure are like delicate Swiss watches. They are designed to equally balance the rights of the parties. When the balance is externally disturbed the shockwave requires a reevaluation and readjustment of the entire system.

Taylor v. Kentucky, - U.S. -, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978), provides a perfect example. The case in effect establishes the principle that the due process clause of the Fourteenth Amendment requires a state trial judge to instruct the jury on the presumption of innocence when requested by a criminal defendant. The system of instructing juries developed in Kentucky prohibits instructions on presumptions and permissible inferences. The theory is that to avoid undue influence by the trial judge on the fact finding process for or against either party the instructions should simply focus the attention of the jury on those ultimate facts which it must decide in order to reach a verdict. Consequently, the instructions are skeletal in form, given prior to closing argument and leave to the lawyers the task of fleshing them out in closing argument insofar as the evidentiary facts of the case, the weight of the evidence and the credibility of the witnesses are concerned.

This rule was a two-edged sword and cut equally for and against both sides of the case. For example, we recently held that the Commonwealth was not entitled to an instruction on either the presumption of sanity or the presumption of knowledge which arises from the possession of recently stolen goods. Mason v. Commonwealth, Ky., 565 S.W.2d 140 (1978); Wells v. Commonwealth, Ky., 561 S.W.2d 85 (1978). Obviously, Taylor, supra, requires the restoration of balance to the rights of the parties. No thought was given to this aspect of the problem by those who mandated the change because they were neither conversant with the operation of the system, nor responsible for its maintenance.

A trial is no more than a search for the truth. The method by which that search is conducted is of little import so long as it is rational, fair to all parties and civilized. The concept of a national mode of criminal procedure is not too unpalatable to be swallowed in America a century after the Civil War. The Supreme Court of the United States has made it clear that it will no longer pay homage to “federalism” by permitting the states to experiment with an ever lengthening list of new found “fundamental” rights of defendants in criminal cases.

We should abandon the obsolete fortresses of local criminal procedure. Their unique character may be matters of pride, but their use does not so improve the search for the truth as to justify the time and energy lost in their defense. The litigation they spawn diffuses our efforts to apply, develop, and interpret substantive law and subordinates the question of guilt or innocence to the justification for the retention of local practices.

I would end the conflict and equalize the position of the parties now by:

1. Amending our Rules of Criminal Procedure to conform as closely as possible with the Federal Rules of Criminal Procedure including:

(a) Permitting the trial judge to charge the jury orally after closing argument and to comment on the weight of the evidence and the credibility of the witnesses. Contra, RCr 9.54(1).

(b) Abandoning the rule that a conviction may not be based on the uncorroborated testimony of an accomplice. Contra, RCr 9.62.

(c)Requiring the trial judge to fix all penalties other than death upon conviction. Contra, RCr 9.84.

(2) Adopting the Federal Rules of Evidence in toto, at least for use in criminal cases.

This approach would insure that if the Supreme Court of the United States should reverse a Kentucky case on procedural grounds it would have to dine on a procedure, which it prepared and we could take comfort in the lament of the homemaker that the dullest food is that which you cook yourself.

REED, Justice,

concurring.

I join the majority opinion to the extent it holds that the only reversible errors presented were the trial judge’s refusal to comply with the submitted request of the appellant for an instruction on the “presumption” (more properly, assumption) of innocence, and his submission to the jury of the charge of wanton endangerment growing out of the firing of a shot into the ceiling despite appellant’s objection that the submission constituted an impermissible multiplicity. I do not, however, agree with some of the observations made in the majority opinion, although I do thoroughly agree with other statements made therein.

When the trial judge refused to instruct on the “presumption” of innocence, he followed the settled law of this state. That law redounded to the benefit of criminal defendants in many instances where an evi-dentiary presumption favored the prosecution’s case. If the Kentucky system of jury instructions in criminal cases is now to become one where “presumptions” favorable to defendants must be given but there shall be no instructions on “presumptions” favorable to the prosecution, then the entire procedure is way out of balance and the interests of society to protect the innocent victims of crime and to punish and to prevent the repetition of dangerous and sometimes fatal criminal activity are critically denigrated.

I am in substantial agreement with most of what is said in my brother Lukowsky’s concurring opinion. I am persuaded, however, that the United States Supreme Court is not the only agency seeking to impose a gray blanket of national uniformity on the court systems of the several states. So-called national “standards,” “guidelines” and “goals” are poured forth without much, if any, consideration given to the experience, record and workability of individual state systems, more particularly those not represented on the frequently formed “conferences,” “committees,” “commissions,” “sections,” and “task forces,” which with boring frequency are usually composed of the same people who apparently nominate each other for inclusion in the proliferating projects. It taxes one’s credulity to conclude that these individuals possess expertise in so many diverse areas.

I do not share the asperity of the majority concerning the federal trial method. After all, it has delivered a good and acceptable product of justice in Great Britain for a long time and fourteen states of the Union are using it with results satisfactory to them. I disagree with my brother Lukow-sky that it is either necessary or desirable for a trial judge to comment on the credibility of witnesses or for us to swallow indiscriminately the complete Federal Code of Evidence to assure federal acceptance of our system’s results or to provide a fairer system than we have.

My present uneasiness about our jury instruction methods is that they are too complicated rather than too “sparse” or “truncated.” I would prefer letting a trial judge explain in concise layman’s language, in all places possible, what a jury’s function is and to relate it to the particular case on trial. I would recommend that this procedure be used by the judge at the commencement of trial and after final arguments have been completed. This procedure basically is nothing more than an adaptation and extension of the interrogatories to the jury provisions we already have in our procedural rules for civil cases.

CLAYTON, Justice,

dissenting.

I believe that the result in Taylor v. Kentucky, - U.S. -, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978), was meant to, and that it should, be limited to factual situations similar to the one in that case, and I am greatly surprised and disappointed that the majority of my brothers do not agree.

It should be noted from the outset that although I too resent the Taylor decision because it represents yet another encroachment by the United States Supreme Court upon the once hallowed ground of state procedural law, I hardly see how we can take offense at the principle espoused therein. The notion that a man is presumed innocent until proven guilty is every bit as firmly embedded in the criminal law of Kentucky as in its federal counterpart, and in light of the recent revelation that over a third of 'all Americans believe it is the responsibility of the accused to prove his or her innocence, it might be a good idea to remind jurors of this fundamental rule.

Whether an instruction on the presumption of innocence should be given whenever requested, however, is not the question before us. Rather, the question which must be answered is whether the failure to do so automatically constitutes reversible error in every case. Those who join in the majority today answer this query in the affirmative, alleging that they would like to be able to hold the requirement enunciated in Taylor subject to the harmless-error doctrine, but asserting that they cannot because “Taylor contains no hint that it might [be] appropriate to consider whether [a failure to instruct on the presumption] was in fact prejudicial.” Apparently their hearts were not really in it when they embarked upon the hunt.

Not once, but three times the clue the majority says it is searching for appears in the Taylor opinion, the Supreme Court initially referring to the “cumulative effect of the potentially damaging circumstances of this case,” and the “particular need for such an instruction in this case ” and concluding by stating that “[w]e hold that on the facts of this case the trial court’s refusal to give petitioner’s requested instruction on the presumption of innocence resulted in a violation of his right to a fair trial as guaranteed by the Due Process Clause of the Fourteenth Amendment.” - U.S. at - n. 15, -, and -, 98 S.Ct. at 1937 (emphasis added). I submit that it is apparent from these passages that the Supreme Court fully intended to limit Taylor to its facts. Although certainly not determinative of the issue, this position is hardly undermined by the comment of the dissenters in Taylor that “[i]n some cases the omission [of an instruction on the presumption of innocence] may be fatal, but the court wisely avoids holding that this is always so.” - U.S. at -, 98 S.Ct. at 1938 (Stevens, J., dissenting).

Far more important than the appearance of those specific passages, however, is the thrust of the Taylor decision as a whole. As I read the majority opinion in that case, there are three significant points to be derived therefrom: first, that instructions on the presumption of innocence and reasonable doubt do not necessarily perform the same function — although both instructions inform the jury who has the burden of establishing guilt (the prosecution), the instruction on the presumption of innocence tells the jury how that guilt must be proven (by legal evidence only), while the instruction on reasonable doubt tells the jury how much proof is required; secondly, that the crucial question in determining whether there is any “purging” function to be performed by an instruction on the presumption is whether there exists “a genuine danger that the jury [might] convict [the accused] on the basis of those extraneous considerations, rather than on the evidence introduced at trial,” - U.S. at -, 98 S.Ct. at 1936 — in Taylor the extraneous circumstances cited as creating a need for this purging effect were the prosecutor’s reading of the indictment to the jury and his remarks during summation implying that the mere fact Taylor had been charged with a crime was evidence of his guilt; and finally, and most importantly for our purposes, that in answering the preceding question, the level of danger can be affected by the weight of the evidence for or against the accused — in Taylor the court specifically found that the risk was “heightened because the trial was essentially a swearing contest between [the] victim and [the] accused.” Id.

If the danger that the jury might convict the accused on the basis of extraneous matters is increased where the case is close on the evidence, surely that danger must be decreased where the evidence against the accused is overwhelming in relation to the evidence in his favor. In the case at hand, the indictment against Whorton was read into the record in the presence of the jury unaccompanied by an admonition that it was not to be considered as evidence. Immediately thereafter, there followed a parade of fifteen eyewitnesses who positively identified Whorton as the perpetrator of the crimes charged therein. Under these circumstances, I simply cannot believe there is any real possibility that the reading of the indictment could have affected either the jury’s determination of guilt or punishment.

In closing I wish to emphasize that I do not believe that either Taylor or the decision reached by the majority today disturbs the time-honored and salutary rule in this jurisdiction prohibiting instructions on presumptions and inferences. For as pointed out in Taylor itself, the presumption of innocence, unlike the presumption of knowledge from possession of recently stolen goods, for example, is not really a true “presumption” — i. e., a mandatory inference drawn from a fact in evidence — at all, but is rather merely an “assumption” to be indulged in the absence of evidence to the contrary. - U.S. at - n. 12, 98 S.Ct. 1930.

I would affirm each of Whorton’s convictions except that involving wanton endangerment, which I agree is reversible on double jeopardy grounds.

STEPHENSON, Justice,

dissenting.

I agree with the majority opinion to the extent of the holding that Whorton’s use of a pistol in firing a shot into the ceiling of Jerry’s Restaurant did not constitute a separate offense from the first-degree robbery charge. In all other respects I dissent.

The majority opinion oversimplifies my dissent. A careful reading of Taylor demonstrates to me that the failure to give a presumption of innocence instruction was held reversible error, primarily for the reason stated in Taylor that there was a risk that the jury would convict on the basis of the extraneous considerations mentioned in Taylor and “That risk was heightened because the trial essentially was a swearing contest between victim and accused.” Taylor went on to state “the particular need for such an instruction in this case.”

It is my view that with the equivocal language in Taylor the simple solution in this case is to apply the Chapman-Harrington test. Here we have three witnesses who identified Whorton in the robbery of the Doughnut Shop, two witnesses who identified Whorton in the robbery of the Burger Chef, ten witnesses who identified Whorton in the robbery of Jerry’s and the arresting officers on the charge of wanton endangerment. The only defense offered at all was the testimony of Whorton’s wife and sister who offered alibi testimony for the robbery of the Doughnut Shop. With Whorton not testifying we have a case for the prosecution that passes overwhelming evidence of guilt and reaches conclusive evidence of guilt. I do not believe that any thoughtful person would say that the failure to give a “presumption of innocence” instruction constituted unfair prejudice to Whorton. There can be no doubt at all that a conviction would have resulted if the instruction had been given; so, it follows that the error was harmless beyond a reasonable doubt, the basis of the Chapman-Harrington test.

Taylor does not pretend to hold that the constitutional right to a “presumption of innocence” instruction is so absolute that failure to give the instruction is reversible in all cases. It is my opinion that Taylor should be applied on a case by case basis depending on the circumstances in the particular case, and I am willing to handle the problem in this fashion rather than the rigid rule enunciated in the majority opinion which goes beyond the requirements of Taylor.

      . In view of Taylor v. Kentucky, - U.S. -, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978), RCr 9.56 was amended as of July 1, 1978, to require inclusion of the presumption of innocence.

      . Also in view of Taylor v. Kentucky, supra n.1, RCr 9.56 has been amended to caution against any attempt to define “reasonable doubt.”

      . See Mason v. Commonwealth, Ky., 565 S.W.2d 140 (1978), in which future reference to the presumption of sanity was proscribed.

      . On what other facts an appellate court might rest its decision we hesitate to guess.

      . Traux v. Corrigan, 257 U.S. 312, 344, 42 S.Ct. 124, 134, 66 L.Ed. 254, 268 (Holmes, J., dissenting) (1921).

      . The historical validity of this rationale is supported by Hutchinson, The Foundations of the Constitution (1975) and Gora, Due Process of Law (1977).

      . The historical validity of this rationale is undermined by Meyer, The History and Meaning of the Fourteenth Amendment, Judicial Erosion of the Constitution Through the Misuse of the Fourteenth Amendment (1977) and Berger, Government by Judiciary, the Transformation of the Fourteenth Amendment (1977).

      . Compare: Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) with Youman v. Commonwealth, 189 Ky. 152, 224 S.W. 860 (1920) (suppression of evidence illegally obtained); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) with Turner v. Commonwealth, 89 Ky. (7 Bush) 78, 81, 1 S.W. 475, 476 (1886) and Holland v. Commonwealth, 241 Ky. 813, 45 S.W.2d 476, 477 (1932) (indigent’s right to appointed counsel in serious criminal cases); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) with Constitution of Kentucky Sec. 11 (1891) (right to trial by jury); Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978) with Constitution of Kentucky Sec. 248 (1891) (permissible size of juries); Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) with KRS 422.110(2) (1942) (method of determination of admissibility of confessions); Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) with KRS 510.040(2) and 532.030 (1975) (imposition of the death penalty for rape).

      . See, e. g., In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (constitutionalization of juvenile procedures); Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); Roberts v. Louisiana, 428 U.S 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (procedure for invoking death penalty); Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) (right to counsel at preliminary hearing); Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976) (guilty plea procedure); Chambers v.

        Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (evidentiary rules); Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971) (indigents not subject to imprisonment for non-payment of a fine); Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593, (1975) (closing argument at trial required); Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973) (notice of alibi rule requires reciprocal discovery).

      . See, e. g., Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973) (jury sentencing permissible); McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971) (bifurcated trial not required); Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972) (voluntariness of a confession may be determined by the trial judge on a preponderance of the evidence standard and need not be redetermined by the jury); Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972); Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972) (unanimous verdict not required); McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971) (juveniles have no right to a jury in a delinquency trial).

      . E. g., Pye, The Warren Court and Criminal Procedure, 67 Mich.L.Rev. 249 (1968); Meador, Are We Heading for a Merger of Federal and State Courts?, 17 The Judges’ Journal, No. 2, 9 (1978).

      . E. g., Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif.L.Rev. 929 (1965); Burger, To Weaken Our State Courts Is to Destroy Federalism, 17 The Judges’ Journal, No. 2, 10 (1978).

      . Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976).

      . Compare Crist v. Bretz, - U.S. -, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978) with Graham v. Commonwealth, Ky., 562 S.W.2d 625 (1978) and Cross v. Commonwealth, 270 Ky. 537, 109 S.W.2d 1214 (1937) (when jeopardy attaches).

      . This change has been advocated in civil as well as criminal cases on state constitutional grounds. Lukowsky, The Constitutional Right of Litigants to Have the State Trial Judge Comment Upon the Evidence, 55 Ky.L.J. 121 (1966); Hoyt, the Judge’s Power to Comment on the Testimony in his Charge to the Jury, 11 Marq.L.Rev. 67 (1927); Shelton, Is the Common-Law Relation of Judge and Jury Subject to Legislative Change?, 3 Va.L.Rev. 275 (1916). There are those who maintain that this should not he permitted because state trial judges are not as able as their federal counterparts. It must be remembered that federal judges are “appointed” not “annotated.” There is no valid reason why the political accident that a man is a federal rather than a state judge should make him more competent, or conscientious, or learned than his opposite number in the state courthouse. Stone v. Powell, supra, 428 U.S. at 474 n. 6, 493 n. 35, 96 S.Ct. at 3043 n. 6, 3052 n. 35, 49 L.Ed.2d at 1076 n. 6, 1087 n. 35. Three of the six United States district judges presently sitting in Kentucky were appointed to their posts while they were sitting as judges of the Circuit Court of Kentucky. This method of instructing juries is in satisfactory use in fourteen states. Lukowsky, supra, at 125 n. 12.

        . Compare Chambers v. Mississippi, supra n. 5 with Crawley v. Commonwealth, Ky., 568 S.W.2d 927 (1978).

       According to a comprehensive national survey conducted by the National Center for State Courts, the actual figure is 37%. See Law-scope: State Courts Seeking to Draw Blueprint for the Future, 64 A.B.A. Journal 653 (May 1978).


author: HOWERTON, Judge.

text:
    Jo Ann AMBS, Ann G. Tucker, and Nancy Lawson, Appellants, v. BOARD OF EDUCATION OF JEFFERSON COUNTY, Kentucky, and the following persons as Members of the Board of Education of Jefferson County, Kentucky, Orville R. Miller, Jr., Roberta B. Tully, Fred Pfannenschmidt, Jr., Jean Ruffra, William Summers, III, John P. Bell, Carolyn G. Hutto, Carol Ann Haddad, Thomas R. Shultz, C. B. Young, Jr., Don M. Randolph, Carl R. Hines, Scott C. Detrick, Appellees.
    Court of Appeals of Kentucky.
    Feb. 24, 1978.
    Rehearing Denied April 21, 1978.
    Discretionary Review Denied Oct. 3, 1978.

      Charles C. McConnell, Louisville, for appellants.
    E. Preston Young, Dan C. McCubbin, Louisville, for appellees.
    Before HOWERTON, GANT and WHITE, JJ.
   HOWERTON, Judge.

This is an appeal from a summary judgment dismissing appellants’ complaint. The facts are undisputed, but appellants contend that they were entitled to judgment as a matter of law, rather than the judgment which was entered on behalf of the appel-lees.

On February 28, 1975, the Kentucky State Board of Education adopted a Resolution merging the Louisville Independent School District with the Jefferson County School District. The effective date of the merger was April 1, 1975, but it was not until July 1, 1975 that the two systems actually merged for employment and fiscal purposes.

Prior to the merger, each district had for many years paid its teacher personnel on a rank and experience step basis. The various ranks reflected the educational qualifications of the teacher. The various ranks were based on such criteria as type of degree and number of hours above each degree. The salaries of teachers in each rank increased within the rank as the teacher progressed along a higher number of experience steps. The portion of the salary schedule, which is the subject of this lawsuit, is commonly referred to as experience steps. Under the present policies of the new Board, a teacher is allowed advancement to the next higher experience step for each full year of teaching service up to the maximum number of years allowed in each rank.

Beginning in the school year 1955-56, the former Louisville system adopted a single salary schedule based on training, experience and such other factors as the State Board approved. This was done pursuant to KRS 157.320(13). An enrichment program was adopted to award teachers pay increments for each year of experience where the teacher had earned additional college credit, engaged in study or research, served in professional organizations, etc. The former Jefferson County system adopted a similar policy in 1957. The former Louisville School system’s enrichment program was terminated in 1970 and the enrichment program for the Jefferson County system was discontinued pursuant to a negotiated agreement with the Teacher’s Association in 1974. The enrichment programs generally required a pay freeze, if a teacher did not obtain certain credits each four years in order to qualify for normal advancement on the experience steps in the pay scale.

As a result of these facts, there were approximately 189 county teachers who had been full-time employees within the county system during the years 1970-1973 who were not advanced on that system’s salary schedule because they did not qualify under the enrichment program. There was a corresponding group of teachers from the Louisville system who had been allowed advancement on the experience steps during one or more of the same four years between 1970-1973 on the basis of teaching experience alone. The appellants are among the former county teachers who did not choose to participate in the enrichment program, and who were therefore not placed as high on the new salary scale as were some of the Louisville teachers who had been promoted on the basis of experience or time alone.

The Kentucky State Board of Education Resolution establishing the terms for the merger provided in part:

The merged school district shall treat all certified and non-certified personnel in a fair and equitable manner. These conditions shall include but not be limited to contractual salaries.

On August 11, 1975, the merged Board adopted a Resolution which recognized that there existed within the two former systems different salary schedules, salary policies and fringe benefit programs. That Resolution adopted a new salary schedule for the merged school system which equalized the basic salary between the former Louisville and Jefferson County teachers and maintained the previous number of ranks and experience steps that had been customarily used in determining salaries. The Board then awarded individual teachers in the merged system a position on the salary schedule based on rank and experience. In so doing, the teachers from each system were given the credit that the former system had allowed them.

No claims are made by the appellants in this action that any discrimination existed prior to merger in the separate systems with respect to the enrichment and pay freeze policies. Appellants admit that each school system had a right to allow experience credits on any basis so long as all teachers within the system were treated alike. Appellants do complain, however, that if the School Board elected to classify teachers for placement on the experience steps of a salary schedule for the merged district, it was required to do so by applying the same criteria for that right to all teachers with similar experience, and the failure to do so constituted invidious discrimination.

In granting summary judgment in favor of the appellees, the trial judge took the positions that (A) a school system has the right to adopt reasonable classifications for purposes of pay; (B) the pay freeze policies maintained by the separate Louisville and Jefferson County systems prior to merger did not discriminate as applied within these separate systems; and (C) the merged Board satisfied its obligation to treat all of its teachers equally for pay purposes by placing them on the experience scale, one step higher than they had been the prior year under the salary schedule of their former employer. The reasoning of Circuit Judge Jack Mudd, in his opinion supporting the summary judgment, agrees with the views of this court and will be quoted in substantial part and adopted as the opinion of this court.

Plaintiffs would have all teachers equalized on the pay scale, without regard to training or participation in existing programs in the district of which they were a part prior to the merger. Plaintiffs entered the new schedule under the merger without benefit of experience credits for their teaching of 1970-1973, not because of the merger and the new salary schedule, but for the reason that they did not qualify for the credits under the program in effect in Jefferson County for that period.
Differential in pay based on experience, qualification and education, has long been upheld. The court finds no issue with the law in the cases cited by plaintiff, but fails to find their applicability to the facts of this case. Whether in a single, separate school district or in a merged district, the reasonableness of the classification would still apply. Surely, it is not suggested that all teachers in the merged district would receive the same pay regardless of experience, education and training.
KRS 157.390 provides for determination of teacher salary on the basis of Ranks I-Y, as determined by college credits and degrees and other factors. This was and is still in effect and upheld by the Court of Appeals in the case of Gullett v. Sparks, Ky., 444 S.W.2d 901 (1969) and Board of Education of Nelson County v. Lawrence, Ky., 375 S.W.2d 830 (1963). KRS 157.350 enacted in 1976 provided under Subsection 3, for compensation of all teachers on the basis of a single salary schedule and in conformity with the provisions of KRS 157.310 to 157.440 (including 157.390 cited above with respect to ranks). Counsel for both parties refer to, without furnishing copy of the Opinion, the case of Phillips v. Board of Education, 300 U.S. 391, and Austin [Alston] v. School Board of Education of Norfolk, 112 F.2d 992, CA 4. Plaintiff cites these cases as holding that an unreasonable classification of teachers for salary and other purposes would be a violation of the equal protection clause if all persons within the class were not treated alike. It is noted by the court, and pointed out by defendant, that there is no showing by plaintiff that these cases and others cited prohibit classification of teachers for the purpose of salaries.
This court fails to find any facts supporting an unreasonable classification or discrimination of teachers within each class or rank. The rank of each of the plaintiffs is based on their credits earned while in their school district before merger. This court finds no basis to put all teachers in the same salary classification regardless of earned credits. The fact that teachers in one district earned credits on a different basis than those of another but separate school district would not support any discrimination within a single district. Nor would the merger of the two districts such as in Louisville and Jefferson County, create as invalid an otherwise valid classification within the separate districts.

We agree with the findings and the conclusions of the trial court. Many statutes and cases have prohibited discrimination on many grounds and within several classifications. Among them are race, sex, national origin and marital status. Teachers, as such, are not within a suspect classification, and appellants’ alleged discrimination must be clear and convincing to be actionable. The authorities cited by the appellants have generally dealt with the more suspect classifications, or with cases not using a uniform salary schedule.

The teachers are now in one group, and there must be a starting point on the salary scale for each teacher. Each teacher will be treated equally hereafter. The new Board acted reasonably in establishing its new pay schedules. The pay freezes in the salary system of the old Board were proper and were not discriminatory. The policy of placing all teachers in the comparable position the teacher held under the old system certainly does not discriminate, and the policy meets the fair and equitable requirements of the State Board of Education’s merger resolution.

The appellants could have enriched themselves, but they did not. To give them the relief they now seek would be unfair to all those who did sacrifice the effort and expense to improve their qualifications and to enhance their experiences. Both former systems used the pay freeze method for a time, and therefore, to completely correct all of the inequities claimed by the appellants, each and every teacher’s record would have to be reviewed and all freezes eliminated. The appellants even admit that the freezes were lawful when the enrichment programs were in operation.

The trial court was correct in concluding that the new pay plan was reasonable and that its implementation was not discriminatory. The judgment is affirmed.

All concur.


author: HAYES, Judge.

text:
    Joseph Sylvester HIBBS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 3, 1978.
    Rehearing Denied April 14, 1978.
    Discretionary Review Denied Oct. 3, 1978.

      Terrance R. Fitzgerald, Deputy Dist. Defender, Frank W. Heft, Jr., Asst. Dist. Defender, C. David Johnstone, Chief Trial Atty., Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., David M. Whalin, Asst. Atty. Gen., Frankfort, for appellee.
    Before HAYES, VANCE and WHITE, JJ.
   HAYES, Judge.

This case is before us on a direct appeal from the judgment of the Jefferson Circuit Court by which appellant, Joseph Sylvester Hibbs, was sentenced to the penitentiary for ten (10) years for violation of KRS 515.020 (Robbery I) and from an order overruling his RCr 11.42 motion on the same subject matter. We have consolidated these appeals in this case only and do not recommend it is appropriate that the defendant in a criminal case be permitted to have two (2) appeals at the same time on the same case. The reason it is permitted here is because there is only one issue propounded by the appellant in the RCr 11.42 appeal, ineffective assistance of counsel, which is the same issue involved on the direct appeal. Generally, this issue is the subject of an RCr 11.42 motion and not one on a direct appeal. We believe, however, the defendant-appellant properly preserved this issue for review on direct appeal when he included it in his grounds for a motion for new trial. It would appear then that the RCr 11.42 procedure was unnecessary.

On the night of July 31, 1976, in Jefferson County, Kentucky, the Convenient Food Mart Store was robbed by two (2) white males. One carried a .38 calibre revolver. This unknown individual demanded the store’s receipts and when the lady cashier did not respond to suit the robber, he fired a shot into the floor, which bullet ricocheted off the floor into the ceiling. Upon hearing a shot, the night manager came from the back of the store and was confronted by the two (2) robbers. Both employees of the grocery store noticed one of the robbers, the unarmed one, was shirtless and bare from the waist up. The cashier said this individual had obviously been drinking; the night manager testified he was drunk. Both employees were positive about his description and the fact he had tattoos on both arms and across his chest. They later identified the defendant, Hibbs, from a packet of mug shots produced for their viewing by the police department.

Hibbs was eventually arrested by the police at the Jefferson County Jail where he was serving time on a public intoxication charge. He voluntarily permitted the police to take a photograph of his bare upper torso. This photograph reveals a large tattoo of a nude woman on Hibbs’s right forearm, a small tattoo of a nude woman on his left forearm; a large design of a wolf’s head with a question mark over it in the center of his chest, and the words crime doctor in large letters appearing over the wolf’s head. On either side of the words crime doctor was the design of a bird in flight. Appearing in the webbing between Hibbs’s right thumb and forefinger was the numeral 13. This photograph was introduced at the trial.

The two store employees testified positively that Hibbs was one of the robbers. Four (4) character witnesses testified for Hibbs, who also testified.

The above facts have been set forth in more detail than usual in order to indicate what Hibbs’s counsel was faced with at trial. Hibbs is complaining of ineffective assistance of counsel on three (3) grounds.

First, he states counsel, who was appointed, and who was not a public defender, was not properly prepared. Second, Hibbs states the attorney made prejudicial statements during the trial within hearing of the jury about Hibbs’s past criminal record, and, thirdly, counsel failed to secure a transcript of a previously held probable cause hearing in Jefferson Quarterly Court.

The record indicates that defense counsel talked to Hibbs on at least two (2) occasions before trial, and he produced the four character witnesses Hibbs told him about. A careful reading of the record further reveals that defense counsel’s strategy, in view of the rather substantial evidence against him, was to picture the defendant Hibbs as an alcoholic who was merely along for the ride and who was so inebriated he didn’t know what he was doing or where he was. Although some other attorney might not have used this approach, we have said in Ramsey v. Commonwealth, Ky., 399 S.W.2d 473 (1966) that effective assistance of counsel does not guarantee error free representation, nor does it deny to counsel freedom of discretion in determining the means of presenting his client’s case. See also Meadows v. Commonwealth, Ky., 550 S.W.2d 511 (1977). Trial counsel has been a practicing attorney for twenty-seven (27) years and eleven and one half (11½) of those have been in the criminal practice field. Hibbs received the minimum sentence. Apparently trial counsel made his point to the jury. We choose not to retry the case and second guess the trial counsel as to what he should have or should not have done at the time. Dorton v. Commonwealth, Ky., 433 S.W.2d 117 (1968).

Trial counsel did state in his opening statement to the jury that Hibbs had been convicted of auto theft in 1952 or 1953 and went to the penitentiary. From the record it is apparent Hibbs told his trial counsel he had been in no trouble with the law since then. Trial counsel was obviously aware that once he placed in evidence the defendant’s good character through the witnesses Hibbs asked trial counsel to produce, then the Commonwealth could go into his complete arrest record for impeachment purposes, Pruitt v. Commonwealth, Ky., 487 S.W.2d 940 (1972). Trial counsel stated he was attempting to prove to the jury that Hibbs had not had any criminal problem for twenty-five (25) years and was rehabilitated. This apparently was in furtherance of trial counsel’s efforts to obtain the minimum sentence. This he accomplished. The defendant’s previous arrest record was going to be introduced anyway by the Commonwealth, once the character witnesses took the stand. We point out here that Hibbs apparently lied to his trial counsel, for once the character witnesses testified, the Commonwealth introduced evidence of other crimes which Hibbs plead guilty to in 1974. We fail to see where Hibbs was prejudiced from this strategy by trial counsel.

Thirdly, no place in the record of this case can we find where Hibbs ever requested a transcript of the Quarterly Court proceedings until after the trial was concluded and the attorneys were preparing to give their closing statements. There was no indication that a transcript was even available. Nevertheless, trial counsel effectively argued to the jury during closing arguments that Hibbs wanted a transcript of the Quarterly Court proceedings because the witnesses for the Commonwealth testified differently at that hearing. This was improper; however, the defendant Hibbs can’t complain.

We are not prepared to hold, when reviewing the entire record, and, since Hibbs received the minimum sentence, that trial counsel’s conduct in this case “shocks the conscience” or renders the proceedings a farce and mockery of justice, Bishop v. Commonwealth, Ky., 549 S.W.2d 519 (1977).

The Commonwealth has conceded that this case must be remanded for failure of the trial court to follow the mandates of KRS 532.050 and KRS 533.010. We agree.

We feel that it is necessary and appropriate to comment upon accusations concerning the private bar in the brief by the Public Defender’s Office of Jefferson County, which office was appointed to prosecute these appeals for Hibbs. We quote from page 6 of that brief:

The record before this court highlights dramatically the undesirability of appointing volunteer counsel instead of the public defender to represent indigent criminal defendants. All too frequently, volunteer counsel is preoccupied with the prospect of squeezing a fee or expenses out of relatives who are either unwilling or unable to make any financial contribution to the defense. If no money is generated within a reasonable time, volunteer counsel may be permitted to withdraw in favor of the public defender. Alternatively, as in the case at bar, volunteer counsel may choose to remain on the case without fee or expenses. In either event, the appointment of unfunded volunteer counsel has a marked tendency to disrupt the continuity of defense efforts, to postpone and thus dilute the independent investigation of the case, to foster scant and haphazard trial preparation, and to produce bizarre and ill-considered defenses at trial.

We believe the public defender’s above statements are not only unwarranted and unprofessional but are also untrue.

The judgment of the trial court is affirmed on the direct appeal and on the RCr 11.42 proceedings. The case is remanded for the trial court to comply with KRS 532.050 and KRS 533.010.

ALL CONCUR.