Brown v. State

The majority places reliance upon Carter v. Kentucky, - U.S. -, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981). I, too, find that the Carter decision is both informative and self-limiting. In that case, the Supreme Court of the United States expressly stated:

“... While it is arguable that a refusal to give an instruction similar to the one that was requested here can never be harmless, cf. Bruno [v. United States], 308 U.S., [287] at 293, [60 S.Ct. 198 at 200, 84 L.Ed. 451], we decline to reach the issue, because it was not presented to or considered by the Supreme Court of Kentucky. See Sandstrom v.…