Caraway v. Commonwealth

459 S.W.3d 849, 2015 Ky. LEXIS 1612, 2015 WL 2266254
CourtKentucky Supreme Court
DecidedMay 14, 2015
Docket2013-SC-000610-MR
StatusPublished
Cited by4 cases

This text of 459 S.W.3d 849 (Caraway 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
Caraway v. Commonwealth, 459 S.W.3d 849, 2015 Ky. LEXIS 1612, 2015 WL 2266254 (Ky. 2015).

Opinion

OPINION OF THE COURT BY

JUSTICE NOBLE

The Appellant, Jeremy Caraway, was convicted of various sex offenses and sentenced to the maximum term of 20 years in prison. On appeal, he claims that his right to an impartial jury was violated when a probation and parole officer served on his jury, that his trial counsel provided ineffective assistance in failing to object to the prospective juror, that the trial court erred in refusing to hear additional character testimony at final sentencing, and that the trial court erred in failing to note his pre-sentence custody credit on the Final judgment of conviction and sentence. Finding no error requiring reversal, this Court affirms.

I. Background

In May 2011, Caraway was the pastor at Loyall Church of God in Harlan County, Kentucky. Sherry1 was a member of the church and was thirteen years old at the time. Members of Sherry’s family reported sexual misconduct between her and Caraway after discovering inappropriate text messages on her cell phone.

On July 18, 2011, Caraway was indicted on two counts of rape in the second degree, KRS 510.050, two counts of sodomy in the second degree, KRS 510.080, two counts of sexual abuse in the first degree, KRS 510.110, two counts of unlawful transaction with a minor in the first degree, KRS 530.064, and one count of unlawful use of electronic means to induce a minor to engage in sexual activities, KRS 510.155. One of the sodomy counts, both unlawful transaction counts, and the unlawful use of electronic means count were later dismissed.

Following a series of pretrial motions and hearings, Caraway’s jury trial commenced on April 30, 2013. Because of a judicial vacancy in the Harlan Circuit Court at that time, Special Senior Status Judge Robert McGinnis presided over the trial. Following a two-day trial, the jury returned a verdict finding Caraway guilty of one of the counts of second-degree rape, the remaining count of second-degree sodomy, and both counts of first-degree sexual abuse. The jury found Caraway not guilty of the other rape count. Following the penalty phase at which Caraway’s wife was the only witness called to testify on his behalf, the jury recommended five-year prison sentences for each count to be [851]*851served consecutively for a total maximum sentence of 20 years in prison.

At the final sentencing hearing on August 1, 2013, Special Judge Robert Costan-zo presided and declined to hear additional character evidence proffered by Caraway for the first time. Instead, he entered a final judgment of conviction and sentence consistent with the jury’s recommendation.

Caraway now appeals as a matter of right. See Ky. Const. § 110(2)(b).

II. Discussion

A. Caraway’s acceptance of Juror 367 waived his right to appellate review of the trial court’s failure to strike the juror for cause.

Caraway’s first claim of error is that the trial court abused its discretion in allowing Juror 367, a probation and parole officer, to sit on the jury. He argues that this resulted in a structural error because it violated his constitutional right to an impartial jury under Sections Seven and Eleven of the Kentucky Constitution and the Sixth and Fourteenth Amendments to the United States Constitution. Because the record makes clear that Caraway accepted Juror 367 without objection, this Court concludes that he waived his right to appellate review of this issue.

The first relevant portion of voir dire proceeded as follows:

Judge: Does anybody know anything about the events in this case? Or have you heard anything, read anything, or have any knowledge whatsoever about this case?
Prospective Juror2: I’ve been in court when [Carawayj’s come in for court [inaudible].
Judge: Do you know anything other than what you saw in the court proceedings?
Prospective Juror: No.
Judge: You didn’t hear anything about the facts of the case, did you? •
Prospective Juror: No.
Judge: Is there anything that you may have learned from that to cause you to favor or disfavor one side or the other?
Prospective Juror: No.

A short time later, the conversation returned to Juror 3673:

Judge: Does anyone have a connection to any of the attorneys in the case, Ms. West or the Commonwealth attorneys, as far as have they represented you in the past? Do they now? Have they been on the other side of a case from you? Or any involvement at all?
Juror 367: I work in the court system.
Judge: And what is your function in the court system?
Juror 367: Probation and parole officer.
Judge: And you worked with all of the attorneys involved in here?
Juror 367: Yes.
[852]*852Judge: Would you tend to favor or disfavor one side or the other because of that?
Juror 367: No.

Neither Caraway’s trial counsel nor the Commonwealth’s attorneys had any further questions for Juror 367, and there was no further discussion at all of her qualifications and impartiality. Significantly, Juror 367 was not challenged for cause, nor was she removed from the panel with a peremptory strike. She ultimately sat on the jury, which was accepted by the parties and sworn to serve. Juror 367 also served as foreperson at trial.

Caraway never raised concerns over this jury before the trial court. In fact, this issue was raised for the first time on appeal to this Court.

It has long been the rule that for-cause challenges to jurors must be made before the jury is sworn. See Pelfrey v. Commonwealth, 842 S.W.2d 524, 526 (Ky.1992); see also RCr 9.36(3). And generally, “objection to a juror because of his disqualification is waived by a failure to object to such juror until after verdict.” Pelfrey, 842 S.W.2d at 526. As Caraway readily admits, he did not request Juror 367 be struck for cause, did not use a peremptory strike on Juror 367, or otherwise challenge Juror 367’s impartiality or qualifications to the trial court below. Instead, Caraway accepted the prospective juror without reservation and in full knowledge of the juror’s employm.ent by. the Division of Probation and Parole and attendant familiarity with the attorneys and court.

He cannot now assert for the first time on appeal grounds for disqualification of a prospective juror which he was fully aware of before the trial below. See Polk v.

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Cite This Page — Counsel Stack

Bluebook (online)
459 S.W.3d 849, 2015 Ky. LEXIS 1612, 2015 WL 2266254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/caraway-v-commonwealth-ky-2015.