Commonwealth of Kentucky v. Johnnie Douglas

• Court: Kentucky Supreme Court
• Decided: August 16, 2018
• Docket: 2017-SC-0024
• Status: Unpublished

Opinion

RENDERED: AUGUST 16, 2018 TO BE PUBLISHED

2017-SC-000024-DG

COMMONWEALTH OF KENTUCKY APPELLANT

ON REVIEW FROM COURT OF APPEALS V. CASE NO. 2014-CA-000381-MR JEFFERSON CIRCUIT COURT NO. 05-CR-002357

JOHNNIE DOUGLAS APPELLEE

OPINION OF THE COURT BY JUSTICE CUNNINGHAM

AFFIRMING IN PART AND REVERSING IN PART

On February 24, 2005, Appellant, Johnnie Ray Douglas, robbed a Check

Advance store in Louisville, Kentucky, at gunpoint. He left the clerk handcuffed

to a pipe. On June 25, 2005, Douglas robbed $2,700 cash from Cash Tyme at

gunpoint. This was another check-cashing business just up the road from his

prior robbery. His unidentified accomplice left two Cash Tyme employees tied

up in a back room. The victims and other eyewitnesses identified Douglas as

one of the robbers.

On August 4, 2005, a Jefferson County grand jury indicted Douglas on

multiple counts relating to the two incidents: two counts of first-degree

robbery, three counts of kidnapping, one count of being a first-degree Persistent Felony Offender (“PFO”), and two counts of possession of a firearm

by a convicted felon. The latter charges stemmed from Douglas’ prior

convictions, including his conviction for a bank robbery in 1985. Ultimately,

the two charges of possession of a firearm by a convicted felon were severed.

Voir dire was conducted in 2006 to empanel a jury. During voir dire.

Juror 151651 (henceforth “juror”) informed counsel and the trial judge that he

had been the victim of an armed robbery when he worked as a bank teller

many years ago. The only follow-up question anyone asked him was whether

he could be fair despite his personal experience, to which he answered in the

affirmative. Later, defense counsel attempted to use a peremptoiy strike to

remove that juror. However, counsel accidentally struck the juror sitting next

to the juror in question instead. He had already used his allotted peremptory

strikes and the trial judge denied his request for an additional peremptory

strike. As a result, the juror at issue sat on the jury.

There was overwhelming evidence of Douglas’ guilt at trial, including:

eyewitness testimony from his robbery victims; testimony that an eyewitness

tailed him after the Cash Tyme robbery and gave his vehicle’s description to the

police; and the robbery weapon, about $1,200 cash, and other evidence

obtained from his traffic stop. After hearing the evidence, the jury deliberated

and returned guilty verdicts for one count of robbery and two counts of

kidnapping. Then the jury heard evidence regarding Douglas’ PFO charge and

the corresponding sentencing options. After further deliberation, the jury found Douglas to be a PFO and recommended an enhanced sentence of 35

years to run concurrently.

Following the jury’s release, the juror in question approached the trial

judge and informed him that a document introduced to the jury during the

PFO consideration and sentencing phase—Douglas’ indictment for the 1985

bank robbery—listed that juror by name as the victim of the robbery. The juror

told the judge that he did not recall Douglas being the man who robbed him

until Douglas’ 1985 indictment refreshed his recollection during the PFO

consideration and sentencing phase.

Afterward, the judge informed Douglas, defense counsel, and the

Commonwealth of the juror’s recollection. The judge instructed counsel to

address the issue at the sentencing hearing. At the sentencing hearing,

defense counsel told the judge that Douglas had decided to appeal his

conviction rather than ask for a new trial based upon the potential bias of the

juror at issue. The trial court adopted the jury’s recommended 35-year

sentence.

On a matter of right appeal to this Court, Douglas argued for reversal of

his conviction because the jury was tainted by the juror in question. He

alleged that the trial judge committed reversible error when he denied defense

counsel’s request for an additional peremptory strike, so the juror could have

been removed. We rejected his arguments because any issue related to the

juiy’s composition was not preserved by post-verdict objections during the

sentencing phase. Douglas v. Commonwealth, 2006-SC-000882-MR, 2007 WL 4462309, at *4 (Ky. Dec. 20, 2007). As noted, Douglas instructed defense

counsel to make no post-verdict motions.

Further, we held that the trial court acted within its discretion when it

denied Douglas an extra peremptoiy strike. Douglas, 2007 WL 4462309, at *4.

In so ruling, we noted that, at the time Douglas requested an additional

peremptory strike, everyone knew the juror at issue was a bank robbery victim,

but no one knew that he was Douglas ’ former victim. Considering the juror’s

statement that he could be fair and impartial, we held that the juror’s

disclosures up to that point were not disqualifying. Although we reversed the

two kidnapping charges against Douglas and remanded them for a new trial to

consider exemptions to the kidnapping instructions, we upheld his conviction

and enhanced PFO sentence for first-degree robbery. Id. at * 11.

After we rendered our opinion on Douglas’ direct appeal, and before he

was retried on the kidnapping charges, he filed an RCr 11.42 motion pro se in

2009 and requested new counsel. The trial court appointed counsel from the

Kentucky Department of Public Advocacy (“DPA”), who filed a supplemental

motion. These motions alleged Douglas received ineffective assistance of

counsel for two reasons: (1) for counsel’s alleged failure to properly question

the juror at issue during voir dire about the details of the robbeiy he was the

victim of; and (2) for counsel’s failure to move for a new trial when the juror

revealed he was a victim of Douglas’ prior robbery, rather than appealing on an

unpreserved issue. In 2014, the circuit court held a hearing and denied Douglas’ RCr 11.42

motion. The circuit court concluded that even though defense counsel was

likely deficient for failing to ask the juror follow-up questions, Douglas was not

prejudiced by counsel’s deficient performance. The circuit court further

reasoned that the overwhelming evidence against Douglas meant he was likely

to be convicted. Thus, the court said the juror did not affect the trial’s

outcome. Lastly, the circuit court found that defense counsel’s decision to

appeal the case rather than move for a new trial was a trial strategy that

Douglas could not attack under RCr 11.42.

Douglas appealed the circuit court’s denial of his RCr 11.42 motion to

the Kentucky Court of Appeals. On appeal, the court reversed the circuit court

and remanded Douglas’ case for a new trial. The court agreed that defense

counsel should have questioned the juror further to determine if his robbery

was connected to Douglas’ former robbery. However, the Court of Appeals

found that the presence of a biased juror like the juror in question is a

structural error from which prejudice is presumed. Moreover, the court stated

that, even if the error were not structural, Douglas’ relationship to the juror

was sufficient proof of prejudice to warrant reversal. Further, the court

proposed that defense counsel’s failure to move for a new trial was ineffective

assistance, rather than a sound trial strategy.

The Commonwealth petitioned this Court for discretionary review of this

case, which we granted. Analysis

Structural Error and Harmless Error

Defendants are guaranteed the right to an impartial jury by the Sixth

Amendment to the United States Constitution, as well as Seetions Seven and

Eleven of the Kentucky Constitution. Denial of a defendant’s right to an

impartial jury is a structural error. Hayes v. Commonwealth, 175 S.W.Sd 574,

586 (Ky. 2005). It is therefore not subject to harmless error analysis, as

prejudice is presumed. See Shane v. Commonwealth, 243 S.W.Sd 336, 341 (Ky.

2007) (“Harmless error analysis is simply not appropriate where a substantial

right is involved.”). “[T]he defining feature of a structural error is that it

‘affect[s] the framework within which the trial proceeds,’ rather than being

‘simply an error in the trial process itself.’ For the same reason, a structural

error ‘def[ies] analysis by harmless error standards.”’ Weaver v.

Massachusetts, 137 S.Ct. 1899, 1907-08 (2017) (internal citations omitted).

For instance, “[f|ailure to remove biased jurors taints the entire trial,” Wolfe v.

Brigano, 232 F.3d 499, 503 (6th Cir. 2000), and prejudice is presumed from

such a deprivation of a defendant’s right to an impartial jury.

The test for harmless error “is whether it appears ‘beyond a reasonable

doubt that the error . . . did not contribute to the verdict obtained.’” Stewart v.

Commonwealth, 306 S.W.3d 502, 508 (Ky. 2010) (quoting Neder v. United

States, 527 U.S. 1, 2 (1999)). Right to Impartial Jury

For his first argument, Douglas alleges that his Sixth Amendment right

to an impartial jury was violated when the trial court permitted the juror in

question to be empaneled on the jury. Attendant to this issue is an ineffective

assistance claim that defense counsel failed to strike the juror or to move the

court to strike the juror for cause. Douglas argues that these are both

structural errors.

“[P]art of the guarantee of a defendant’s right to an impartial jury is an

adequate voir dire to identify unqualified jurors.” Fields v. Commonwealth, 274

S.W.3d 375, 393 (Ky. 2008) (quoting Morgan v. Illinois, 504 U.S. 719, 729

(1992)) (overruled on other grounds by Childers v. Commonwealth, 332 S.W.3d

64 (Ky. 2010)). Here, the trial court provided the parties with voir dire to

empanel a jury. Foremost, it is important to emphasize that the trial court and

counsel were unaware that the juror in question was one of Douglas’ former

robbery victims until the sentencing phase of the trial. To that end, the juror

himself stated that he was unaware of his relationship with Douglas until the

jury deliberated whether to recommend an enhanced sentence based on

Douglas’ PFO status—after the guilt phase had concluded.

We find that the Court of Appeals erred in ruling that bias could be

presumed against Douglas by the juror. It was not an abuse of discretion for

the court to not strike the juror because he was a robbery victim. The juror

stated during voir dire that he could be an impartial juror despite having been

a robbery victim.

7 As such, the juror in question lacked prejudice in the guilt phase. There

is no evidence in the record that shows the juror was biased against Douglas

during the guilt phase of the trial. The only evidence that the juror was aware

Douglas had robbed him twenty-one years prior appeared during sentencing—

after the juiy had rendered its guilty verdict. Because the court, the parties,

and the juror himself were unware of the juror’s bias against Douglas, we do

not find that Douglas’ right to a fair trial was impeded. Since the juror’s

presence on the jury was not structural error, we analyze the trial court’s

actions for an abuse of discretion under harmless error analysis.

As such, we reaffirm our holding in Douglas’ matter of right appeal: the

trial court did not abuse its discretion by not declaring a mistrial during the

guilt phase. “A trial court is authorized to use its discretion to declare a

mistrial only when there is a manifest necessity, when the right to a fair trial

has been infringed upon and the prejudicial event cannot otherwise be

remedied.” Gray v. Commonwealth, 534 S.W.3d 211, 215 (Ky. 2017). Through

the guilt phase, there was no manifest necessity to protect Douglas’ right to a

fair trial. Because Douglas has not shown a reasonable probability of a

different outcome but for defense counsel's failure to question the juror or to

request a new trial, he is not entitled to a new trial. The guilt phase of the trial

was not fundamentally unfair.

In Douglas’ matter of right appeal, we held that his argument based on

Morgan v. Commonwealth, 189 S.W.3d 99 (Ky. 2006) (overruled by Shane, 243

S.W.3d at 341)—claiming the sentencing jury was tainted—was unpreserved

8 and misplaced. However, given the U.S. Supreme Court’s precedent in Weaver,

combined with this Court’s precedent in Shane overruling Morgan, it is clear

that the taint in the sentencing jury was a structural error for which harmless

error analysis is inappropriate. Thus, we must now assess his claim of a

tainted PFO and sentencing jury for structural error under Weaver, rather than

the harmless error analysis from Morgan that we conducted in Douglas’ matter

of right appeal.

The juror’s realization that he was Douglas’ former victim made the

penalty phase fundamentally unfair. Once the trial court and counsel learned

about the juror’s bias after the PFO and sentencing trial, a mistrial should have

been entered and a new PFO and sentencing trial held. It is unreasonable to

believe that Douglas was not prejudiced by a former victim—who realized he

was Douglas’ victim—sitting on the jury that decided whether his sentence

warranted PFO enhancement. Nothing short of a retrial of the sentencing

phase PFO consideration with a newly-empaneled jury will remedy the

prejudice Douglas suffered. See Gray, 534 S.W.3d at 215.

Right to Effective Assistance of Counsel

For his second argument, Douglas alleges that his Sixth Amendment

right to the effective assistance of counsel was violated when his attorney

acquiesced with the prosecutor to permit the trial court to not declare a

mistrial for empaneling the juror in question. Douglas argues that his trial

counsel provided ineffective assistance by failing to seek post-verdict relief after learning from the court that the juror at issue was a victim of Douglas’ other

robbery in 1985.

In support of his ineffective assistance claim, Douglas cites Weaver for

the proposition that an ineffective assistance claim pertaining to the right to an

impartial jury raises a structural error. In Weaver, the U.S. Supreme Court

broadly defined structural error analysis. However, contrary to Douglas’ view,

the U.S. Supreme Court did not hold that all errors during jury selection

amount to structural errors. Rather, Weaver dealt specifically with the

deprivation of the Sixth Amendment right to a public trial, which the high court

held does not create a presumption of prejudice for an ineffective assistance of

counsel claim. Weaver, 137 S.Ct. at 1912-13.

Even though we find that Weaver clarifies that a biased juror’s

participation during sentencing is a structural error, we are not persuaded that

structural error analysis applies to all claims of ineffective assistance dealing

with jury selection. Therefore, we review defense counsel’s alleged errors under

a harmless error standard.

However, since Douglas expressly declined to move for a new trial or

other post-verdict grounds for relief, this error is unpreserved. Thus, the

proper inquiry is whether the error is a palpable. RCr 10.26.

In order for a client to establish that his counsel was ineffective under

Strickland v. Washington, 466 U.S. 668 (1984), he or she must demonstrate: (1)

counsel’s representation was deficient; and (2) the client suffered actual

prejudice as a result of the alleged ineffective assistance. Id. at 687.

10 Defense counsel did not move to strike the juror for cause during voire

dire, as the court and the parties were unaware of the juror’s bias at the time.

That was no error. Additionally, while defense counsel erred in mistakenly

striking another juror instead of the juror in question, counsel’s error did not

entitle Douglas to additional peremptory challenges.

Despite this procedural error on the part of defense counsel, failure to

strike the juror at issue did not subject Douglas to actual prejudice until the

penalty phase. Douglas still received a fair jury trial through the guilt phase

because the juror was objectively unbiased until sentencing, when he realized

that Douglas was the man who robbed him.

Finally, Douglas argues that defense counsel’s failure to seek post-verdict

relief upon learning the juror was biased amounted to ineffective assistance.

However, at the sentencing hearing, defense counsel stated that he and

Douglas had discussed which avenue to take upon learning of the juror’s bias,

and that Douglas had directed that they proceed with an appeal rather than

seek a new trial. Douglas cannot now claim that his attorney provided him

with ineffective assistance by following his direction as part of their trial

strategy.

Conclusion

For the foregoing reasons, we hereby affirm the decision of the Court of

Appeals in part and reverse in part. Prejudice could not be presumed from the

juror’s presence on the jury because no one knew of his bias toward Douglas

during voir dire or the guilt phase of the trial—including the juror himself.

11 However, once the juror realized his relationship with Douglas and so

informed the court, prejudice could be presumed. Therefore, Douglas is

entitled to a new PFO and sentencing trial because those proceedings were

fundamentally unfair.

All sitting. Minton, C.J.; Cunningham, Hughes, Keller, VanMeter, and

Venters, JJ., concur. Wright, J., concurs in result only.

COUNSEL FOR APPELLANT:

Andy Beshear Attorney General of Kentucky

Thomas Allen Van De Rostyne Assistant Attorney General

COUNSEL FOR APPELLEE:

Robert C. Garrison Assistant Public Advocate