Blackburn v. Commonwealth

394 S.W.3d 395, 2011 WL 6543053, 2011 Ky. LEXIS 178
CourtKentucky Supreme Court
DecidedDecember 22, 2011
DocketNo. 2010-SC-000537-MR
StatusPublished
Cited by11 cases

This text of 394 S.W.3d 395 (Blackburn v. Commonwealth) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blackburn v. Commonwealth, 394 S.W.3d 395, 2011 WL 6543053, 2011 Ky. LEXIS 178 (Ky. 2011).

Opinion

[396]*396Opinion of the Court by

Justice SCOTT.

A Lawrence Circuit Court jury found Appellant, Rachel Blackburn, guilty with respect to two counts of first-degree trafficking in a controlled substance. The jury also found her to be a second-degree persistent felony offender (PFO). For these crimes, Appellant received a forty-year prison sentence. She now appeals as a matter of right, Ky. Const. § 110(2)(b), alleging that the trial court erred by failing to impanel a new jury and by entering an illegal term of imprisonment. '

I. BACKGROUND

On August 27, 2007, a Lawrence County grand jury rendered two separate indictments, each charging Appellant with one count of first-degree trafficking in a controlled substance. The charges arose from Appellant selling Roger Salyers, an informant for Operation UNITE, two 30 milligram morphine pills on March 8, 2007 and one 30 milligram morphine pill on March 13, 2007. Both transactions were captured via a video recording device worn by Sal-yers. At the time of the incidents in question, Appellant was out of prison on parole, as she had not served the entire 18 month sentence on a previous felony conviction.

At trial, the jury found Appellant guilty on both trafficking counts and recommended a sentence of ten years imprisonment for each conviction, and that the sentences run consecutively. Thereafter, the jury also found Appellant guilty of being a second-degree PFO and recommended a twenty-year sentence for each conviction. The trial court entered the sentences recommended by the jury and ran the sentences consecutively for a total sentence of forty years’ imprisonment.1 This appeal followed.

II. ANALYSIS

A. Tainted Jury Pool

Appellant contends that the trial court erred when it did not impanel a new jury after two jurors answered questions in open court without being isolated from the other prospective jurors, thus tainting the remaining jury panel. Conceding this issue was unpreserved,2 Appellant requests palpable error review pursuant to RCr 10.26.3 We find no error, palpable or otherwise.

Our precedent provides that a defendant must show actual or implied prejudice which tainted the jury pool. Shegog v. Commonwealth, 142 S.W.3d 101, 110 (Ky. 2004). The trial court must then exercise discretion in determining improper tainting of a panel of prospective jurors. Maxie v. Commonwealth, 82 S.W.3d 860, 862 (Ky.2002).

[397]*397Here, the trial court asked members of the jury pool whether any of them were acquainted with Appellant. In front of the rest of the jury pool, one potential juror said, “I was a social worker in the state of Kentucky for thirty years. But it’s been like twenty-something years ago I was her case worker.” However, he did not explain why Appellant needed a social worker and confirmed that their relationship would not make it difficult for him to try the case fairly. Neither party moved to strike this juror from the pool.

A short time later, another potential juror, again in front of the rest of the pool, acknowledged his acquaintance with Appellant. This juror stated, “I’m a police officer here in town. I know [Appellant].” The trial court subsequently excused the juror when he said he could not try the case solely on the evidence presented. However, at no point did this juror elaborate on the nature of his relationship with Appellant.4

We do not consider either of the responses given by the jurors to be prejudicial. The “social worker” juror did not explain why Appellant needed a social worker, while the “police officer” juror did not elaborate on the nature of his relationship with Appellant. Simply put, the prospective jurors did not convey enough information about their involvement with Appellant which could conceivably yield actual or implied prejudice amongst the jury pool. Accordingly, we cannot say the trial court abused its discretion in declining to dismiss the pool and impanel a new jury.

Because the trial court did not abuse its discretion with respect to its management of the jury pool, we affirm Appellant’s convictions.

B. Illegal Term of Imprisonment

Appellant’s next argument, which is unpreserved, is that her forty-year sentence violates the statutory maximum provided by law. As noted, the trial court sentenced Appellant to ten years’ imprisonment for each trafficking count, enhanced each count to twenty years based upon her persistent felony offender status, and then ran the sentences consecutively for a total sentence of forty years. We review for palpable error. RCr 10.26.

When Appellant committed her offenses, trafficking in a controlled substance in the first degree was a Class C felony, with a maximum term of imprisonment of ten years. See KRS 218A. 1412(2) (2007)5 (“Any person who violates the provisions of subsection (1) of this section shall: (a) For the first offense be guilty of a Class C felony, (b) For a second or subsequent offense be guilty of a Class B felony.”); KRS 532.060(2)(c) (“[T]he authorized maximum term[ ] of imprisonment for [a Class C felony is] ... ten (10) years.”). When that sentence is enhanced by second-degree persistent felony offender status, the maximum possible term becomes twenty years. See KRS 532.080(5) (“A person who is found to be a persistent felony offender in the second degree shall be sentenced to an indeterminate term of imprisonment pursuant to the sentencing provisions of KRS 532.060(2) for the next highest degree than the offense for which convicted.”); KRS 532.060(2)(b) (“[T]he authorized maximum term[ ] of imprisonment for [a Class B felony is] ... twenty (20) years.”).

[398]*398Appellant contends that her consecutive sentence contravenes the maximum aggregate duration allowed by KRS 532.110(1), which provides, in pertinent part:

When multiple sentences of imprisonment are imposed on a defendant for more than one (1) crime, including a crime for which a previous sentence of probation or conditional discharge has been revoked, the multiple sentences shall run concurrently or consecutively as the court shall determine at the time of sentence, except that:
(c) The aggregate of consecutive indeterminate terms shall not exceed in maximum length the longest extended term which would be authorized by KRS 532.080 for the highest class of crime for which any of the sentences is imposed.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

David R. Nunn, Jr. v. Commonwealth of Kentucky
Court of Appeals of Kentucky, 2026
Kendall Paul Scott v. Commonwealth of Kentucky
Court of Appeals of Kentucky, 2026
Michael D. Mallard v. Commonwealth of Kentucky
Court of Appeals of Kentucky, 2026
Ricky Warren Mack II v. Commonwealth of Kentucky
Court of Appeals of Kentucky, 2025
Lucas S. Fields v. Commonwealth of Kentucky
Court of Appeals of Kentucky, 2025
Commonwealth of Kentucky v. Darrell Strunk
Kentucky Supreme Court, 2025
Dorothy Ash v. Commonwealth of Kentucky
Court of Appeals of Kentucky, 2024
David Corbin v. Commonwealth of Kentucky
Court of Appeals of Kentucky, 2024
Darrell Strunk v. Commonwealth of Kentucky
Court of Appeals of Kentucky, 2023
Jack Gore v. Commonwealth of Kentucky
Kentucky Supreme Court, 2015

Cite This Page — Counsel Stack

Bluebook (online)
394 S.W.3d 395, 2011 WL 6543053, 2011 Ky. LEXIS 178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blackburn-v-commonwealth-ky-2011.