King v. Commonwealth

465 S.W.3d 38, 2015 Ky. App. LEXIS 99, 2015 WL 4071551
CourtCourt of Appeals of Kentucky
DecidedJuly 2, 2015
DocketNO. 2013-CA-001840-MR
StatusPublished

This text of 465 S.W.3d 38 (King v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
King v. Commonwealth, 465 S.W.3d 38, 2015 Ky. App. LEXIS 99, 2015 WL 4071551 (Ky. Ct. App. 2015).

Opinion

OPINION

LAMBERT, J., JUDGE:

Jeffrey King appeals from a Madison Circuit Court judgment and sentence entered after a jury found him guilty of first-degree trafficking in a controlled substance, first offense. We affirm.

On June 3, 2011, King drove his Jeep to the Cottage Hearth Inn. His passenger, Sean Adams, left the Jeep and entered the Inn. After a short time, Adams came out and got back into the Jeep. King pulled away from the Inn, closely followed by a green minivan, driven by an unknown white male. King parked at his residence and entered his apartment, followed by the driver of the minivan. Adams remained in the Jeep. The driver of the minivan left the apartment a short time later, followed by King. The driver of the minivan drove away. King got into his Jeep and also drove away.

Detective Johnson had followed King from the Inn and conducted a traffic stop when he saw that King was not wearing his seat belt. He arrested King after discovering he had an outstanding warrant for failure to pay a fine. King gave consent to search the vehicle. Detective Johnson directed Adams to exit from the passenger side of the vehicle. Detective Johnson and another detective searched the vehicle and found a piece of plastic containing two 30-milligram Percocet tablets between the console and the passenger seat. The detectives also found approximately thirty-two 30-milligram Percocet tablets in a wet paper towel in the center console cup holder nearest to the passenger side of the vehicle. King and Adams were each charged with first-degree trafficking in a controlled substance, first offense. ■ They were tried together. Both were found guilty and received sentences [41]*41of eight years. This appeal by King followed.1

King argues that he was denied the right to a unanimous verdict. When the trial court polled the jury after it returned a verdict convicting King of trafficking in the first degree, one juror replied “no” when she was asked whether the verdict of guilty was her verdict. Upon questioning by the trial court, she stated, “I wasn’t decisive. And I think that Jeffrey King was probably facilitation.” A facilitation instruction had been given to the jury.

The trial court stated that the verdict was not unanimous, and that the jury would be sent back to continue deliberations to see if the juror could be decisive one way or the other. Adams’s counsel said he had not heard the juror’s remarks. The trial court said, “She said that she wasn’t decisive. I think that is what she said. Is that what you said?” The juror replied, ‘Tes.” The trial court then verified that the juror was uncertain only as to the verdict against King, not the verdict against his co-defendant, Adams.

The trial court then sent the jury to deliberate further, after instructing them according to Kentucky Rules of Criminal Procedure (RCr) 9.57(1), which is the charge given to a jury that is unable to reach a verdict. When the jury returned a short time later, the juror had changed her vote to agree that King was guilty of first-degree trafficking.

King argues that the RCr 9.57(1) instruction was improper because the jury had not indicated that it was deadlocked or “hung.” He contends that the juror unequivocally stated that it was not her verdict, which indicated that there was not a unanimous verdict and should have led to the declaration of a mistrial. Our review of the record indicates that the juror in question stated that she was not decisive, and that “Jeffrey King was probably facilitation.” Her statement was ambiguous at best, and the trial court did not err by providing the RCr 9.57 instruction. In any event, even if she had unequivocally stated that it was not her verdict, the trial court followed the proper statutory procedure by sending the jury away for further deliberation.

Kentucky Revised Statutes (KRS) 29A.320(3) provides the following procedure for rendering the verdict:

(d) When the verdict is announced either party may require that the jury be polled, which is done by the judge asking each juror if it is his verdict.
(e) If more than the number of jurors required by KRS 29A.280, as appropriate to the type of case being tried, answers in the negative, the jury must be sent out for further deliberation.

In Hart v. Commonwealth, 768 S.W.2d 552 (Ky.App.1989), the initial polling of the jury revealed that one juror was ambiguous in her position. The trial court sent the jury to deliberate further and accepted the jury’s subsequent unanimous guilty verdict. A panel of this Court affirmed the judgment, stating as follows:

Under KRS 29A.320(3)(e), the trial court clearly was authorized to send the jury back for further deliberations after the initial jury poll revealed the fifth juror’s ambiguous opinion and the second poll of the entire jury revealed no lack of unanimity. To establish an absence of unanimity, upon being polled, a juror must connote that the verdict was given involuntarily or was forced upon him or [42]*42against his will. Fleming v. Commonwealth, Ky., 419 S.W.2d 754 (1967). None of the jurors indicated any coercion and the trial court clearly had no duty to interrogate the fifth juror at length simply because she previously had expressed some misgivings or misunderstanding as to the initial guilty verdict.

Hart, 768 S.W.2d at 555.

There is absolutely no evidence in the record that the initial verdict in King’s case was given involuntarily or that the indecisive juror had been coerced in any way. The trial court acted in compliance with KRS 29A.320(3)(e) when it sent the jury back for further deliberations.

Next, ? King argues that the trial court erred in refusing to strike for cause a juror who was a uniformed police officer. Although King’s attorney objected to the inclusion of the uniformed officer on the jury and used one of his peremptory strikes to exclude him, he failed to preserve the issue adequately because he did not identify which juror he would have stricken with his remaining peremptory challenge if the trooper had been stricken for cause. “[I]n order to complain on appeal that he was denied a peremptory challenge by a trial judge’s erroneous failure to grant a for-cause strike, the defendant must identify on his strike sheet any additional jurors he would have struck.” Gabbard v. Commonwealth, 297 S.W.3d 844, 854 (Ky.2009). King asks us to review this issue for palpable error.

In McDaniel v. Commonwealth, 415 S.W.3d 643 (Ky.2013), the appellant asked for palpable error review of the trial court’s alleged error in failing to strike three prospective jurors for cause. The appellant asserted that this error forced him to expend three peremptory strikes, thereby violating his right to be tried by a fair and impartial jury.

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Related

Brewer v. Commonwealth
206 S.W.3d 343 (Kentucky Supreme Court, 2006)
Woodall v. Commonwealth
63 S.W.3d 104 (Kentucky Supreme Court, 2002)
Walker v. Commonwealth
288 S.W.3d 729 (Kentucky Supreme Court, 2009)
Ward v. Commonwealth
695 S.W.2d 404 (Kentucky Supreme Court, 1985)
Gabbard v. Commonwealth
297 S.W.3d 844 (Kentucky Supreme Court, 2009)
Commonwealth v. Burge
947 S.W.2d 805 (Kentucky Supreme Court, 1997)
Fleming v. Commonwealth
419 S.W.2d 754 (Court of Appeals of Kentucky, 1967)
Hart v. Commonwealth
768 S.W.2d 552 (Court of Appeals of Kentucky, 1989)
Hellard v. Commonwealth
829 S.W.2d 427 (Court of Appeals of Kentucky, 1992)
Newcomb v. Commonwealth
410 S.W.3d 63 (Kentucky Supreme Court, 2013)
McDaniel v. Commonwealth
415 S.W.3d 643 (Kentucky Supreme Court, 2013)

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Bluebook (online)
465 S.W.3d 38, 2015 Ky. App. LEXIS 99, 2015 WL 4071551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/king-v-commonwealth-kyctapp-2015.