IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED " PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: MARCH 14, 2019 NOT TO BE PUBLISHED
2018-SC-000183-MR
GEORGE ROBERT WHITE APPELLANT
ON APPEAL FROM MCLEAN CIRCUIT COURT V. HONORABLE BRIAN WIGGINS, JUDGE NO. 17-CR-00065
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
George Robert White appeals from a judgment of the McLean Circuit
Court convicting him of first-degree trafficking in a controlled substance, over
two grams of methamphetamine; tampering with physical evidence; possession
of drug paraphernalia; and being a first-degree persistent felony offender. With
these convictions, White was sentenced to twenty years in prison.
White contends that his right to due process and right to be presumed
innocent were denied: (1) because a member of the jury pool saw him in his jail
clothing and told another prospective juror about it; and (2) because the trial
court made statements concerning the order of presentation of evidence, which
White claims amounted to impermissible comments on the burden of proof and
his right to remain silent. I. FACTUAL AND PROCEDURAL BACKGROUND
Morgan Crane was an undercover informant for the police. Crane asked
Sarah Lyons if she could get him an ounce of methamphetamine. Lyons
contacted Erica Fentress about getting the ounce, and the drug deal was set
up. Crane contacted police and told them about the impending drug deal.
White was driving when he, Lyons, and Fentress showed up at a grocery store
parking lot to deliver the methamphetamine to Crane.
The police were monitoring the deal and quickly arrested White, Lyons,
and Fentress. Lyons and Fentress pled guilty to trafficking in
methamphetamine and testified for the Commonwealth at trial. White’s
defense was that he was only giving Lyons and Fentress a ride and was
unaware of the drug deal. White was convicted of all charges and sentenced to
twenty years in prison. This appeal followed.
II. JAIL CLOTHING ISSUES
White contends that he is entitled to a new trial because he was seen by
a member of the jury pool wearing his jail clothing the morning of trial, who
then told another jury pool member about it. White speculates that he may
have been seen by other members of the jury pool in his prison clothing. But
the only two members of the venire who are known to have seen White arriving
for trial in his jail attire were excused for cause, and White’s assertion that
other members may have seen him is speculative. We are therefore persuaded
that no error occurred.
2 When White arrived the morning of trial in his jail uniform, jury pool
member Monica Wilson saw him in the parking lot. Wilson told jury pool
member April Simmons about it. Wilson and Simmons did not tell any of the
other members of the venire about the clothing, and both jurors were excused
for cause and did not serve on the jury at White’s trial.
There is no evidence that any other members of the jury saw White in his
jail attire. Indeed, trial counsel directly asked the venire during voir dire if
anyone had seen White prior to his entering the courtroom for trial, and there
was no response from the panel. Defense counsel also asked the jury members
when they had first seen White that day before he entered the court room.
None of the jurors indicated that they had seen White prior to his entering the
courtroom.
Nevertheless, trial counsel moved to strike the entire jury panel over the
jail attire issue because jurors may “later remember” that they did indeed see
White in his jail attire and realize that he is “the guy sitting there in the blue
shirt.” The trial court held a hearing in chambers on the matter and White
testified about his movements that day while in his jail attire. White stated
that he was taken to the restroom from the holding cell while still in his jail
clothing. White stated that while he was being led down the hallway, even
though there was a partition, he could see jurors in the courtroom, “meaning,
of course, they could also see him.”
At the end of the hearing the trial court found that the jurors had been
questioned, two jurors had been identified and excused, and no other jurors
3 said they saw White prior to his entry into the courtroom with counsel. The
trial court therefore denied White’s motion to strike the entire jury panel.
“Central to the right to a fair trial, guaranteed by the Sixth and
Fourteenth Amendments, is the principle that ‘one accused of a crime is
entitled to have his guilt or innocence determined solely on the basis of the
evidence introduced at trial, and not on grounds of official suspicion,
indictment, continued custody, or other circumstances not adduced as proof at
trial.’” Holbrook v. Flynn, 475 U.S. 560, 567 (1986) (quoting Taylor v. Kentucky,
436 U.S. 478, 485 (1978)); Stacy v. Commonwealth, 396 S.W.3d 787, 799-800
(Ky. 2013). Consistent with these principles, the “State cannot, consistently
with the Fourteenth Amendment, compel an accused to stand trial before a
jury while dressed in identifiable prison clothesf.]” Estelle v. Williams, 96 S.Ct.
1691, 1697 (U.S. 1976); Scrivener v. Commonwealth, 539 S.W.2d 291, 292 (Ky.
1976); Stacy at 799-800; RCr1 8.28(5) (“During his or her appearance in court
before a jury the defendant shall not be required to wear the distinctive
clothing of a prisoner.”); 9 Leslie W. Abramson, Kentucky Practice—Criminal
Practice 8s Procedure § 24.54 (5th ed. 2017). The same principles would of
course be implicated if the defendant were to be seen by one or more members
of the jury pool prior to trial who then served on the guilt phase jury.
As explained above, the only two members of the jury pool who were
known to have been aware of White and his jail attire were Wilson and
1 Kentucky Rules of Criminal Procedure.
4 Simmons, and they were dismissed for cause. Further, we have no reason to
suspect that the remainder of the venire members were not truthful when they
indicated by their silence upon questioning during voir dire that none of them
had seen White in his jail uniform. We also have no basis to suppose that any
of the jurors, as suggested by White, “later remembered” that they had indeed
seen White in jail attire after indicating during voir dire that they had not.
We are also unpersuaded by White’s argument that other jurors may
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IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED " PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: MARCH 14, 2019 NOT TO BE PUBLISHED
2018-SC-000183-MR
GEORGE ROBERT WHITE APPELLANT
ON APPEAL FROM MCLEAN CIRCUIT COURT V. HONORABLE BRIAN WIGGINS, JUDGE NO. 17-CR-00065
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
George Robert White appeals from a judgment of the McLean Circuit
Court convicting him of first-degree trafficking in a controlled substance, over
two grams of methamphetamine; tampering with physical evidence; possession
of drug paraphernalia; and being a first-degree persistent felony offender. With
these convictions, White was sentenced to twenty years in prison.
White contends that his right to due process and right to be presumed
innocent were denied: (1) because a member of the jury pool saw him in his jail
clothing and told another prospective juror about it; and (2) because the trial
court made statements concerning the order of presentation of evidence, which
White claims amounted to impermissible comments on the burden of proof and
his right to remain silent. I. FACTUAL AND PROCEDURAL BACKGROUND
Morgan Crane was an undercover informant for the police. Crane asked
Sarah Lyons if she could get him an ounce of methamphetamine. Lyons
contacted Erica Fentress about getting the ounce, and the drug deal was set
up. Crane contacted police and told them about the impending drug deal.
White was driving when he, Lyons, and Fentress showed up at a grocery store
parking lot to deliver the methamphetamine to Crane.
The police were monitoring the deal and quickly arrested White, Lyons,
and Fentress. Lyons and Fentress pled guilty to trafficking in
methamphetamine and testified for the Commonwealth at trial. White’s
defense was that he was only giving Lyons and Fentress a ride and was
unaware of the drug deal. White was convicted of all charges and sentenced to
twenty years in prison. This appeal followed.
II. JAIL CLOTHING ISSUES
White contends that he is entitled to a new trial because he was seen by
a member of the jury pool wearing his jail clothing the morning of trial, who
then told another jury pool member about it. White speculates that he may
have been seen by other members of the jury pool in his prison clothing. But
the only two members of the venire who are known to have seen White arriving
for trial in his jail attire were excused for cause, and White’s assertion that
other members may have seen him is speculative. We are therefore persuaded
that no error occurred.
2 When White arrived the morning of trial in his jail uniform, jury pool
member Monica Wilson saw him in the parking lot. Wilson told jury pool
member April Simmons about it. Wilson and Simmons did not tell any of the
other members of the venire about the clothing, and both jurors were excused
for cause and did not serve on the jury at White’s trial.
There is no evidence that any other members of the jury saw White in his
jail attire. Indeed, trial counsel directly asked the venire during voir dire if
anyone had seen White prior to his entering the courtroom for trial, and there
was no response from the panel. Defense counsel also asked the jury members
when they had first seen White that day before he entered the court room.
None of the jurors indicated that they had seen White prior to his entering the
courtroom.
Nevertheless, trial counsel moved to strike the entire jury panel over the
jail attire issue because jurors may “later remember” that they did indeed see
White in his jail attire and realize that he is “the guy sitting there in the blue
shirt.” The trial court held a hearing in chambers on the matter and White
testified about his movements that day while in his jail attire. White stated
that he was taken to the restroom from the holding cell while still in his jail
clothing. White stated that while he was being led down the hallway, even
though there was a partition, he could see jurors in the courtroom, “meaning,
of course, they could also see him.”
At the end of the hearing the trial court found that the jurors had been
questioned, two jurors had been identified and excused, and no other jurors
3 said they saw White prior to his entry into the courtroom with counsel. The
trial court therefore denied White’s motion to strike the entire jury panel.
“Central to the right to a fair trial, guaranteed by the Sixth and
Fourteenth Amendments, is the principle that ‘one accused of a crime is
entitled to have his guilt or innocence determined solely on the basis of the
evidence introduced at trial, and not on grounds of official suspicion,
indictment, continued custody, or other circumstances not adduced as proof at
trial.’” Holbrook v. Flynn, 475 U.S. 560, 567 (1986) (quoting Taylor v. Kentucky,
436 U.S. 478, 485 (1978)); Stacy v. Commonwealth, 396 S.W.3d 787, 799-800
(Ky. 2013). Consistent with these principles, the “State cannot, consistently
with the Fourteenth Amendment, compel an accused to stand trial before a
jury while dressed in identifiable prison clothesf.]” Estelle v. Williams, 96 S.Ct.
1691, 1697 (U.S. 1976); Scrivener v. Commonwealth, 539 S.W.2d 291, 292 (Ky.
1976); Stacy at 799-800; RCr1 8.28(5) (“During his or her appearance in court
before a jury the defendant shall not be required to wear the distinctive
clothing of a prisoner.”); 9 Leslie W. Abramson, Kentucky Practice—Criminal
Practice 8s Procedure § 24.54 (5th ed. 2017). The same principles would of
course be implicated if the defendant were to be seen by one or more members
of the jury pool prior to trial who then served on the guilt phase jury.
As explained above, the only two members of the jury pool who were
known to have been aware of White and his jail attire were Wilson and
1 Kentucky Rules of Criminal Procedure.
4 Simmons, and they were dismissed for cause. Further, we have no reason to
suspect that the remainder of the venire members were not truthful when they
indicated by their silence upon questioning during voir dire that none of them
had seen White in his jail uniform. We also have no basis to suppose that any
of the jurors, as suggested by White, “later remembered” that they had indeed
seen White in jail attire after indicating during voir dire that they had not.
We are also unpersuaded by White’s argument that other jurors may
have seen him as he was being led down the hallway because he could see into
the courtroom through a partition, “meaning, of course, they could also see
him.” Again, this theory for reversal is based upon pure speculation and it is
not consistent with the statements given by the jurors. We will not speculate
that any of the jurors in the courtroom saw White as he passed by, hidden by a
partition, particularly since none of the jurors spoke up when directly asked
that question in voir dire nor upon later questioning.
White’s arguments that he is entitled to a new trial because he was seen
by members of the jury pool are either contradicted by the record or based
upon unsupported speculation. Having suffered no prejudice due to the
excused jurors’ awareness of his arrival at the courthouse in his prison attire,
White is not entitled to relief based upon a theory that any member who sat on
the juiy may have seen him in jail attire.
III. TRIAL COURT’S STATEMENTS CONCERNING THE ORDER OF PROOF
White contends that an error requiring reversal occurred as a result of
statements made by the trial court at the conclusion of voir dire concerning the
5 order of proof. White concedes he failed to object to the statements at the time
they were made and has requested palpable error review under RCr 10.26:
We will reverse under the palpable error standard only when a “manifest injustice has resulted from the error.” RCr 10.26. “[T]he required showing is probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law.” Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky.2006). When we engage in palpable error review, our “focus is on what happened and whether the defect is so manifest, fundamental and unambiguous that it threatens the integrity of the judicial process.
Tackett v. Commonwealth, 445 S.W.3d 20, 26 (Ky. 2014) (quoting Baumia v.
Commonwealth, 402 S.W.3d 530, 542 (Ky. 2013)).
At the conclusion of voir dire the trial court stated as follows: “After
opening statements, the Commonwealth will put on evidence. After that, Mr.
White will present evidence, then I will instruct you on the law of the case.”
White contends that this statement resulted in reversible error because:
When the trial court informed the jury that Mr. White would present evidence after the Commonwealth’s proof, it implicitly shifted the burden of proof to the defendant.
After the trial court’s statement that the jury would hear proof presented by Mr. White, the jury was left with the impression that it would indeed hear from Mr. White, and his side of the story. The statement directed the jury’s attention to the defendant’s exercise of his right to remain silent. The jury was left thinking it would get to hear both sides. This is erroneously commenting on Mr. White’s right to remain silent, and coupled with the comment also shifting the burden of proof, was highly prejudicial to Mr. White.
White is correct that in a criminal case, except in the case of certain
affirmative defenses not applicable here, the burden of proof is always on the
6 Commonwealth. KRS2 500.707; Kirk v. Commonwealth, 6 S.W.3d 823, 828-
829 (Ky. 1999). And a defendant has the right to remain silent. U.S. Const.
Amend. V. However, we are unpersuaded that the trial court’s statement
violated either of these rights.
RCr 9.42, titled “Order of proceedings,” states as follows:
The jury shall be sworn to try the issue after which the trial shall proceed in the following order, unless the court for special reasons otherwise directs:
(a) The attorney for the Commonwealth shall state to the jury the nature of the charge and the evidence upon which the Commonwealth relies to support it;
(b) The defendant or the defendant's attorney may state the defense and the evidence upon which the defendant relies to support it or the defendant may reserve opening statement until the conclusion of the evidence for the Commonwealth;
(c) The attorney for the Commonwealth must offer the evidence in support of the charge;
(d) The defendant or the defendant's attorney may make opening statement, if reserved, and offer evidence in support of the defense;
(e) The parties respectively may offer rebutting evidence, unless the court, for good reason in furtherance of justice, permits them to offer evidence-in-chief;
(f) The parties may submit or argue the case to the jury. In the argument, the attorney for the Commonwealth shall have the conclusion and the defendant or the defendant's attorney the opening. If more than one (1) counsel is to take part in the closing argument on either side, or if several defendants have separate defenses and appear by different counsel, the court shall arrange the order of argument, always giving the attorney for the Commonwealth the closing argument.
2 Kentucky Revised Statutes
7 A comparison of the trial court’s statement (“After opening statements,
the Commonwealth will put on evidence. After that, Mr. White will present
evidence, then I will instruct you on the law of the case”) with RCr 9.42 reflects
that all the trial court did was merely summarize the Rule for the jury so that
they would be aware of what to expect as the actual trial unfolded over the next
several hours. The statement had nothing to do with shifting the burden of
proof to the defendant, nor was it a comment on the defendant’s right to
remain silent. Rather the statement was simply an accurate and routine
summary of RCr 9.42. There was no error, let alone palpable error, when the
trial court simply told the jury generally how the trial would proceed under the
criminal rules.
IV. CONCLUSION
For the foregoing reasons the judgment of the McLean Circuit Court is
affirmed.
Minton, C.J.; Hughes, Keller, Lambert, VanMeter and Wright, J.J.;
sitting. Minton, C.J.; Hughes, Keller, Lambert, VanMeter and Wright, J.J.
concur. Hughes J., also concurs, agreeing that no palpable error occurred
regarding the judge’s statements with respect to the order of proof, but believe
the more accurate and less problematic statement would be: “After that, Mr.
White may, if he chooses, present evidence, then I will instruct you on the law
of the case.”
8 COUNSEL FOR APPELLANT:
Karen Shuff Maurer Assistant Public Advocate, Department of Public Advocacy
COUNSEL FOR APPELLEE:
Andy Beshear Attorney General of Kentucky
Todd Dryden Fergusson Assistant Attorney General of Kentucky