Hubbard v. Commonwealth

932 S.W.2d 381, 1996 Ky. App. LEXIS 90, 1996 WL 238691
Court of Appeals of Kentucky·Decided May 10, 1996·No. No. 94-CA-002811-MR·Published·Cited by 11 cases

Opinion

JOHNSON, Judge:

Appellant Arville Hubbard (Hubbard) appeals his conviction and 10-year prison sentence for robbery in the first degree (Kentucky Revised Statutes (KRS) 515.020) entered by the Knox Circuit Court on November 9, 1994, following a jury trial. We affirm.

Hubbard’s conviction arose from a purse snatching incident. According to the testimony offered at trial, Dolly Hensley, age 74, was sitting on a bench outside of a grocery store when Hubbard sat down next to her. After attempting a conversation with Mrs. Hensley, Hubbard grabbed her purse and began to run away. Mrs. Hensley testified that Hubbard grabbed her purse hard enough to pull her off the bench and onto the sidewalk before the shoulder strap of the [382] purse broke. Additional facts will be further developed where necessary.

Hubbard’s first argument on appeal is that the trial court committed reversible error in dismissing one of the jurors. Thirteen jurors were seated to hear the case. Following the conclusion of evidence and prior to instructing the jury, the trial court was informed that one of the jurors needed to discuss something with the trial court. After two previous conversations with the juror and discussions with both counsel, the conversation between the trial judge and the juror continued as follows:

Court: ... Are you telling me now then, that if you were ordered by the Court to follow the instructions, that you could not do so, based on your religious beliefs?
Juror: The Bible says not to judge anyone, and, I am not no judge.
Court: Okay — does that mean that it will be as difficult for you to judge a person not guilty, as it would guilty?
Juror: Do you mean for me to go in there and say he’s guilty?
Court: Right.
Juror: I mean, not guilty.
Court: Not guilty — do you believe it’s just — are you saying that it’s against your religious beliefs to participate as a juror?
Juror: Yeah — and, I shouldn’t have come up here — I mean, I should have told you before, but I didn’t — but, even though that I am — think that he is guilty, I couldn’t judge — that would be judging, even if I thought he was not guilty.
Court: So, it would be judging, either way — is that what you are saying? Juror: Yeah.
Court: Okay — okay—you may be excused as the alternate.
Juror: I am sorry I caused so much trouble. I didn’t mean to.
Court: That’s all right. You are excused until tomorrow. As the Court indicated, I have excused her as the alternate under 47.02 and 9.36 of the Criminal Rules — 47.02 of the Civil Rules — the Court is aware of defense counsel’s objections, but those objections are overruled. In the Court’s opinion, this juror — the excuse of this juror has not prejudiced the defendant nor the Commonwealth, due to the fact that the juror, particularly in the last response, has indicated that she could not vote for a verdict, either in favor of the defendant, or in favor of the Commonwealth. She could not, in fact, follow the Court’s instructions, as she has stated [], so over the defense’s objections, she is excused as an alternate.

Following dismissal of the juror as the alternate, the trial continued with the remaining twelve jurors. Hubbard contends that the trial court’s dismissal of the juror as the alternate resulted in non-random selection of the alternate in violation of his rights to due process and a fair trial.

Under Kentucky Rules of Civil Procedure (CR) 47.02,1 if it becomes necessary to dismiss a juror for any reason, the trial is to continue unless the number of remaining jurors is less than that required by law. Thus, this rule contemplates that occasions will arise when it becomes necessary to dismiss a juror. Davis v. Commonwealth, Ky., 795 S.W.2d 942, 949 (1990). We must consider whether the trial court’s dismissal of the juror in question was clearly erroneous resulting in an abuse of discretion. Sanders v. Commonwealth, Ky., 801 S.W.2d 665, 670 (1990), cert. denied, 502 U.S. 831, 112 S.Ct. 107, 116 L.Ed.2d 76 (1991); McQueen v. Commonwealth, Ky., 669 S.W.2d 519, 521 [383] (1984), cert. denied, 469 U.S. 893, 105 S.Ct. 269, 83 L.Ed.2d 205 (1984).

Here, the reason for the juror’s disqualification did not become evident until the close of evidence due to the juror’s failure to voice her religious beliefs during voir dire. The trial court engaged in extensive questioning of the juror and only after it became evident that the juror would not follow the instructions as given by the trial court due to her religious beliefs was the juror removed. Thus, it was shown that the juror would have been unable to conform her views to what was required by law and would be unable to render a fair and impartial verdict. Mabe v. Commonwealth, Ky., 884 S.W.2d 668, 671 (1994). The trial court’s dismissal of the juror by designating her as the alternate did not interfere with the randomness of the jury selection process. See George v. Commonwealth, Ky., 885 S.W.2d 938, 941 (1994).

Hubbard correctly asserts that a trial court is to resolve all doubts as to the competency of a juror in favor of the defendant. Calvert v. Commonwealth, Ky.App., 708 S.W.2d 121, 123 (1986). However, as shown by the dialogue between the juror in question and the trial court, there was no ambiguity as to the juror’s inability to return a fair and impartial verdict as she clearly stated that due to her religious beliefs she would be unable to return a verdict in favor of Hubbard or the Commonwealth. Therefore, the trial court’s dismissal of the juror by designating her as the alternate was proper and not clearly erroneous so as to amount to an abuse of discretion.

Hubbard next argues that the trial court erred in not granting his motion for a directed verdict as to the charge of robbery in the first degree due to lack of adequate proof of injury.2 On review, we can reverse a trial court’s refusal to grant a directed verdict only if it would be clearly unreasonable for a jury to find a defendant guilty based upon the evidence as a whole. Commonwealth v. Benham, Ky., 816 S.W.2d 186, 187 (1991).

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Hubbard v. Commonwealth, 932 S.W.2d 381, 1996 Ky. App. LEXIS 90, 1996 WL 238691 (Ky. Ct. App. 1996).

932 S.W.2d 381 (Hubbard v. Commonwealth) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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