RENDERED: DECEMBER 19, 2019 TO BE PUBLISHED
2018-SC-000277-DG ©AT i RICHARD D. FLOYD, IV M.D., APPELLANTS NEW LEXINGTON CLINIC, P.S.C.
ON REVIEW FROM COURT OF APPEALS V. CASE NO. 2017-CA-000120-MR FAYETTE COUNTY CIRCUIT COURT NO. 13-CI-00221
CHARLOTTE A. NEAL AND APPELLEES CHARLOTTE A. NEAL, EXECUTRIX OF THE ESTATE OF MICHAEL H. NEAL
OPINION OF THE COURT BY JUSTICE LAMBERT REVERSING
Dr. Richard Floyd and New Lexington Clinic challenge the Court of
Appeals’ holding that the Fayette Circuit Court erred when it declined to strike
a juror for cause. The only issues presented by this appeal are: (1) was the
error regarding the trial court’s failure to strike the juror for cause properly
preserved for appellate review; and (2) did the trial court err by failing to strike
the complained-of juror for cause. After review, we reverse.
I. FACTUAL AND PROCEDURAL BACKGROUND
This appeal originates from a medical malpractice suit brought against
Dr. Floyd and New Lexington Clinic by Charlotte Neal. Charlotte is the widow
of Michael Neal, the decedent in this case. Michael passed away due to complications following open heart surgery performed by Dr. Floyd. Charlotte
sued Dr. Floyd for medical negligence and wrongful death and brought a
respondeat superior claim against his practice group, New Lexington Clinic.
Following a jury trial, ten of the twelve jurors found that Dr. Floyd did not fail
to meet the post-operative duty of care owed to Michael. Therefore, the case
was dismissed.
Charlotte argued at the Court of Appeals that the trial court erred by
refusing to strike Juror 4243 (Juror A) for cause. Dr. Floyd responded that
Charlotte failed to properly preserve that alleged error for review. The Court of
Appeals held that the error was properly preserved and that the trial court
committed reversible error by failing to strike Juror A for cause.
Additional facts are discussed below as necessary.
II. ANALYSIS
The parties’ arguments to this Court are identical to those presented to
the Court of Appeals: Charlotte asserts that the trial court erred by failing to
strike Juror A for cause, while Dr. Floyd contends that the alleged error was
not properly preserved for our review.
Dr. Floyd supports his contention by presenting three separate, yet
interwoven, arguments: (1) Charlotte did not indicate on her strike sheet the
jurors she would have used peremptory strikes on if she had not been required
to use them on Juror A, and instead stated them orally on the record; (2) she
moved the trial court for removal of one juror for cause, yet identified two
2 jurors she would have used peremptory strikes on; and (3) she identified the
jurors she would have otherwise used her peremptory strikes on after both
parties discussed their peremptory strikes with the court. These arguments
demonstrate a need for this Court to clarify the procedure required to preserve
the argument that a trial court erred by failing to strike a potential juror for
cause. Therefore, as part of providing that clarity, a brief survey of the case
law in this area is warranted.
A good starting point is Shane v. Commonwealth.1 In Shane, we
addressed whether the holding in Morgan v. Commonwealth2 should be
overruled.3 Morgan held that use of peremptory challenges is not a substantial
right.4 Therefore, analysis under Morgan asked, “whether using a peremptory
strike for a juror who should have been excused for cause had a reasonable
probability of affecting the verdict,” i.e. harmless error analysis.5 Morgan
focused on whether the jury itself was qualified, not on whether the process of
selecting the jury was fair.6 Therefore, if the jury that tried the case was
qualified the trial was considered fair.7 It did not matter that a litigant was
1 243 S.W.3d 336, 337 (Ky. 2007), as modified (Apr. 9, 2008). 2 189 S.W.3d 99 (Ky. 2006), as corrected (Jan. 25, 2006), as modified (May 3, 2006), as modified on denial ofreh'g (May 18, 2006), overruled by Shane v. Commonwealth, 243 S.W.3d 336 (Ky. 2007). 3 Shane, 243 S.W.3d at 337. 4 Id. at 339. 5 Id. at 341. 6 Id. 7 Id.
3 forced to exercise a peremptory strike on a juror that should have been struck
for cause, because denial of a peremptory strike did not involve a litigant’s
substantial rights.8
Shane expressly overruled Morgan and held that use of peremptory
strikes is a litigant’s substantial right, making harmless error analysis
inappropriate for appellate review.9 Accordingly, Shane held it is reversible
error if a litigant is forced to exercise a peremptory strike on a juror and the
trial court abused its discretion in failing to strike said juror for cause.1011
Two years later, we gave additional guidance about the steps required to
preserve an error under Shane. In Gabbard v. Commonwealth,12 this Court
held for the first time that, “in 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 [litigant] must identify on his strike sheet any additional jurors he
would have struck.”13
In the same year as Gabbard, we established an exception to the Shane
and Gabbard rules in King v. Commonwealth.14 King held that if the additional
8 Id. 9 Id. 10 Id. 11 Of course, this rule assumes that the litigant has otherwise exhausted all her peremptory strikes. 12 297 S.W.3d 844 (Ky. 2009). 13 Id. at 854 (emphasis added). 14 276 S.W.3d 270 (Ky. 2009).
4 jurors a litigant would have struck as identified on his strike sheet did not
ultimately sit on the jury, the trial court’s error is effectively cured and the
litigant’s substantive rights have not been violated.15
Four years later, in Grubb v. Norton Hosps., Inc., we held that Shane,
Gabbard, and their progeny apply to both civil and criminal jury trials.16 Later
the same year this Court rendered Hurt v. Commonwealth17 and Mackey v.
Commonwealth.18 For our purposes in this case, Hurt did two things. First, it
established that a litigant must indicate which jurors he would have used
peremptory strikes on prior to the jury being empaneled, otherwise the error is
unpreserved as untimely.19 Second, the dicta in Hurt reinforced the notion that
Gabbard requires strict compliance insofar as would-be peremptory strikes
must be reflected on a litigant’s strike sheet:
Hurt exhausted all of his peremptory strikes and made a statement on the record immediately following the seating of the jury informing the trial court that had the motion to strike Juror 149 been granted, he would have used a peremptory strike to remove Juror 241...Despite making these declarations, Hurt concedes that he failed to indicate on his strike sheet before the jury was seated that he would have exercised a peremptory strike against Juror 241 had the trial court excused Juror 149 for cause. Hurt's challenges, arising after the seating of the jury, were untimely and therefore
15 Id. at 279. 16 401 S.W.3d 483, 487 (Ky. 2013), as modified (May 29, 2013). 17 409 S.W.3d 327 (Ky. 2013). 18 407 S.W.3d 554 (Ky. 2013). 19 Id. at 329.
5 insufficient to preserve the issue for appellate review under our Gabbard standard.20
In a similar yet more direct manner Mackey held that the Gabbard rule
requires strict compliance:
Appellant, however, has failed to preserve this alleged error for our review. As we stated in Gabbard v. Commonwealth, “[I]n order to complain on appeal that [the defendant] 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.” 297 S.W.3d 844, 854 (Ky.2009). Appellant admits that he failed to note on the strike sheet the two additional jurors whom he would have removed had the motion to strike been granted. Therefore, we decline to review whether the trial court erred in denying Appellant's motions to strike.21
Notwithstanding these precedents, this Court made a drastic change to
the Gabbard holding a year later in Sluss v. Commonwealth.22 On appeal to
this Court Sluss presented a myriad of alleged errors, but we ultimately
granted him a new trial because the trial court erred by not striking a juror,
Juror Booth, for cause.23 At trial, Sluss did everything otherwise required to
preserve the issue, but he failed to write his would-be peremptory strikes on
20 Id. (emphasis added). 21 Mackey, 407 S.W.3d at 558 (emphasis added). 22 450 S.W.3d 279 (Ky. 2014). 23 Id. at 285.
6 his strike sheet.24 Instead, Sluss stated them verbally on the record.25 On the
issue of whether the alleged error was preserved this Court held:
As to juror Booth, the ultimate issue as to preservation is whether Sluss complied with our holding in Gabbard that the defendant must identify on the strike sheet other jurors he would have struck. Sluss alleges that he “substantially complied” with Gabbard by stating orally on the record, during a request for additional peremptory challenges, that if he was granted additional challenges he would have struck four additional jurors, which he listed by name. This list included Joyce Hedges, who eventually sat on the jury. Sluss argues that this statement on the record was enough to preserve his challenge under Shane and Gabbard. We agree.2627
This was the entirety of the analysis on the issue of preservation. No
supporting case law or reasoning for this change to the Gabbard rule was
discussed. Further, the focus of Sluss was really about whether Juror Booth
24 Id. at 284. 25 Id. 26 Id. at 284-85 (emphasis in original). 27 Since Sluss was rendered, three cases have cited it to support the rule that it is sufficient to either write your would-be peremptory strikes on the record or state them verbally: (1) Noel v. Commonwealth, 2017-CA-001717-MR, 2019 WL 3763632, at *1 (Ky. App. Aug. 9, 2019) (holding the issue was preserved “under the doctrine of substantial compliance” because counsel stated the would-be peremptory strike verbally); (2) Jackson v. Wall, 2014-CA-000977-MR, 2016 WL 7414529, at *2 (Ky. App. Dec. 22, 2016) (holding the error was unpreserved because the “record containfed] no indication as to who counsel would have struck, orally or on the strike sheet.”) and (3) Swint v. Commonwealth, 2014-SC-000369-MR, 2015 WL 9243521, at *2 (Ky. Dec. 17, 2015) (holding the error was preserved because the litigant stated the strikes “verbally and in writing” prior to the jury being empaneled).
7 could have been rehabilitated under Montgomery v. Commonwealth,28 and to
clarify the holding in that case:
Over the past 22 years since Montgomery, our decisions on strikes for cause have meandered from one side of the road to the other. In recent times there have been volleys fired across the bow through strong dissents, suggesting that trial judges have allowed jurors to virtually talk themselves onto the jury...Many of our cases post-Montgomery regarding jury strikes for cause have contained shots across the bow. These have gone mostly unheeded. Today we fire directly into the bow.29
The point being, Sluss resulted in a major sea change in the Gabbard
jurisprudence when at its core it was not even about Gabbard. Therefore, the
potential problems with altering the Gabbard rule in such a way were not
sufficiently fleshed out. The arguments presented to us in this case showcased
those problems and require this Court to pause to reconsider the wisdom of
Sluss. Accordingly, a definitive statement of the procedure required to
preserve a for cause strike error is what we now aim to provide. We undertake
this task with the knowledge that every jurisdiction, and in fact every judge, is
different. Each have nuanced approaches to conducting jury selection and
trial. But we aspire to establish a procedure structured enough to provide
fairness to all parties, clear enough that litigants and courts may follow it
28 819 S.W.2d 713 (Ky. 1991) (holding there is no “magic question” that can be asked on voir dire to rehabilitate a juror who should be disqualified from service based on personal knowledge, past experience, or attitude). 29 Sluss, 450 S.W.3d at 285.
8 without issue, and yet broad enough that each court can retain many of their
own unique practices.
In order to preserve the argument that a trial court committed reversible
error by failing to strike a juror for cause a litigant must do the following.
First, the litigant must move to strike the problematic juror for cause and be
denied the strike by the trial court. Then, the litigant must use a peremptory
strike to remove the juror from the venire and show in writing on the strike
sheet that the peremptory strike was used for that juror,30 and exhaust all
other peremptory strikes.
Next, the litigant is required to clearly write on her strike sheet the
juror she would have used a peremptory strike on had she not been forced to
use the strike on the juror that she believes should have been struck for cause.
By requiring this strict compliance with Gabbard, we now overrule Sluss
prospectively, only insofar as it holds that stating would-be peremptory strikes
orally on the record constitutes substantial compliance with Gabbard and is
therefore sufficient to preserve the error.
This reversion is necessary because, as Dr. Floyd argues, Sluss’s
modification to Gabbard inadvertently opened the door for blatant unfairness
to arise during the peremptory strike process. Specifically, it allows a litigant
to forego writing her strikes down, and instead only identify them orally after
30 Ward v. Commonwealth, No. 2018-SC-000056-MR, 2019 WL 5677790, at *11
(Ky. Oct. 31, 2019).
9 the other party has, so to speak, shown its hand by identifying its peremptory
strikes. This allows a litigant to manufacture an appealable issue by choosing
a juror who was not struck by the other party, thereby increasing the chances
that the juror the litigant identifies ultimately sits on the jury. Requiring both
sides to make their peremptory strikes concrete by writing them down prior to
the parties discussing their strikes with the court safeguards the fairness of
this process.
The next requirement to preserve a for cause strike error has never been
addressed directly by this Court. Specifically, that the number of jurors a
litigant identifies on her strike sheet must be the same number of jurors the
litigant originally moved to strike for cause. Failure to abide by this rule will
render the error unpreserved.
The need for such a rule is plainly demonstrated in this case. Here,
Charlotte only identified one juror to strike for cause: Juror A. But later,
Charlotte identified two jurors she would have used peremptory strikes on:
Juror 4283 (Juror B) and Juror 4293 (Juror C). When Charlotte identified
these jurors Dr. Floyd had already used a peremptory strike on Juror B, and
Juror C ultimately sat on the jury. But, as a matter of law, Charlotte was not
permitted to request two additional peremptory strikes because she only
identified one juror to be struck for cause. The purpose of identifying
additional peremptory strikes in the first place is to identify jurors a litigant
would have struck had she not been forced to use them on a juror she
believed should have been struck for cause. Therefore, identifying two
10 jurors she would use peremptory strikes on presupposes Charlotte asked the
court to strike two jurors for cause. Accordingly, she was improperly asking
the court for an additional peremptory strike. That all parties to a case must
have an equal number of peremptory strikes to ensure fairness is clearly
codified in this Commonwealth’s statutes. For civil cases, Kentucky Rule of
Civil Procedure (CR) 47.03(1) directs that “each opposing side shall have three
peremptory challenges.” Likewise, for criminal cases, Kentucky Rule of
Criminal Procedure (RCr) 9.40(1) provides:
If the offense charged is a felony, the Commonwealth is entitled to eight (8) peremptory challenges and the defendant or defendants jointly to eight (8) peremptory challenges. If the offense charged is a misdemeanor, the Commonwealth is entitled to three (3) peremptory challenges and the defendant or defendants jointly to three (3) peremptory challenges.
Therefore, Charlotte was not entitled to, nor permitted to ask for, this
additional peremptory strike.
In addition, under this set of facts it is impossible to determine whether
Charlotte’s substantive rights were violated. As previously discussed, if a juror
the litigant identifies as a would-be peremptory strike does not ultimately sit on
the jury, any error the trial court committed is effectively cured. Again,
Charlotte was only permitted to identify one additional peremptory strike. If
she chose Juror B, the trial court’s error would have been cured because Dr.
Floyd struck Juror B and therefore Juror B did not sit on the jury. In contrast,
if she chose Juror C the error would not have been cured because Juror C sat
11 on the jury. But we have no way of knowing which juror she would have
picked if the proper procedure was followed. This further bolsters our
conclusion that this error is not properly preserved for our review, and that a
one-to-one ratio rule of for cause strikes and would-be peremptory strikes is
necessary.
The final box a litigant must check in order to preserve a for cause strike
error is to make her would-be peremptory strikes known before the jury is
empaneled. And, as already discussed, at least one of the jurors identified by
the litigant must ultimately sit on the jury. We also reiterate our previous
holding that all of the preceding rules apply in both civil and criminal jury
trials.
Based on the foregoing, we hold that Charlotte failed to preserve the error
to strike Juror A for cause. Specifically, because Charlotte identified one juror
to strike for cause, but stated she would have used peremptory strikes on two
jurors. Consequently, we decline to address the error, and reverse the Court of
Appeals’ holdings to the contrary. Further, we hold that to preserve the error
that a trial court failed to strike a juror for cause a litigant must: (1) move to
strike the juror for cause and be denied; (2) exercise a peremptory strike on
said juror, and show the use of that peremptory strike on the strike sheet, and
exhaust all other peremptory strikes; (3) clearly indicate by writing on her
strike sheet the juror she would have used a peremptory strike on, had she not
been forced to use a peremptory on the juror complained of for cause; (4)
designate the same number of would-be peremptory strikes as the number of
12 jurors complained of for cause; (5) the would-be peremptory strikes must be
made known to the court prior to the jury being empaneled; and (6) the juror
identified on the litigant’s strike sheet must ultimately sit on the jury.
III. CONCLUSION
We reverse the Court of Appeals holding that the trial court’s alleged
error of failing to strike Juror A for cause was properly preserved for appellate
review. We hold that a one-to-one ratio of for cause strikes to would-be
peremptory strikes is required to preserve a for cause strike error for review.
We also prospectively overrule Sluss v. Commonwealth’s holding that stating
would-be peremptory strikes verbally on the record constitutes substantial
compliance with Gabbard.
Minton, C.J.; Hughes, Keller, Lambert, VanMeter and Wright, J.J.;
sitting. Minton, C.J.; Hughes, Keller, Lambert and VanMeter, J.J. concur.
Wright, J. dissents by separate opinion. Nickell, J., not sitting.
WRIGHT, J., DISSENTING: I dissent, as I would hold Neal properly
preserved this issue for our review. Therefore, I would address the issue of
whether the trial court abused its discretion by denying Neal’s motion to strike
a juror for cause. I would affirm the Court of Appeals’ result in its entirety and
hold that the trial court abused its discretion in denying Appellees’ motion to
strike a juror for cause.
1. Preservation
The majority prospectively overrules the portion of Sluss that allows for
substantial compliance with Gabbard by stating which juror or jurors would
13 have been struck with a peremptory challenge had the trial court granted the
for-cause strike. However, given the prospective application, that has no
impact on this case. The majority goes on to address the number of jurors
listed whom would have been struck with peremptory strikes had the for-cause
challenge been granted.
Today, the majority imposes the rule Appellees advocate. The new rule
requires litigants to identify precisely the same number of jurors they would
have used peremptory challenges on as the number of jurors they challenged
for cause. Nothing in our prior jurisprudence requires such a one-to-one ratio.
It is inappropriate for the majority to impose the rule it creates today upon
Neal. She properly preserved this issue for our review under our precedent as
it existed at the time.
Turning to our precedent, the Gabbard rule itself states that “in 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.” 297
S.W.3d at 854 (emphasis added). I point out the structure of the sentence:_“a
for cause strike” is singular, while “additional jurors” is plural. Therefore, even
the case upon which the majority bases its holding today does not preclude a
litigant being denied a single for cause strike and then identifying multiple
jurors on whom the litigant would have used peremptory strikes.
I also note that the majority prospectively overrules Sluss “only insofar as
it holds that stating would-be peremptory strikes orally on the record
14 constitutes substantial compliance with Gabbard and is therefore sufficient to
preserve the error.” Therefore, it leaves the remainder of Sluss intact. Among
the portion of Sluss left in place is the fact that the Court found the error to be
preserved when the defendant stated “if he was granted additional challenges
he would have struck four additional jurors,” one of whom ultimately sat on the
jury. 450 S.W.3d at 284-85 (emphasis added). This Court nonetheless held
the error to be preserved, reversed Sluss’s conviction, and remanded for a new
trial. Id. at 290. This further refutes Dr. Floyd’s contention that a one-to-one
ratio rule is required, and to hold otherwise would undermine well-established
law.
While this Court has never addressed this issue head-on, we have held
that this issue was properly preserved without a one-to-one ratio. Even the
language of the Gabbard rule would allow a party to name multiple jurors to be
names for each juror she alleges should have been stricken for cause. Because
Neal complied with existing precedent, she should not now be penalized. Any
change in this rule should be prospective.
Furthermore, even had this issue not been preserved (as the majority
holds today), the denial of the for-cause strike should still be reversed, as it
amounted to a structural error.31 Structural errors “affect the framework
31 As we have noted, “[tjhough the U.S. Supreme Court has not expressly held that structural errors require reversal when not preserved (and thus “plain error review” applies), it has strongly suggested that this is the case. See United States v. Marcus, 560 U.S. 258, 130 S.Ct. 2159, 2164, 176 L.Ed.2d 1012 (2010).” McCleery v. Commonwealth, 410 S.W.3d 597, 604-05 (Ky. 2013).
15 within which the trial proceeds, rather than being simply an error in the trial
process itself.” Weaver v. Massachusetts, 137 S.Ct. 1899, 1907-08 (2017)
(internal citations and quotation marks omitted). As such “a structural error
def[ies] analysis by harmless error standards.” Id. The Supreme Court of the
United States has stated: “[t]he Constitution guarantees both criminal and civil
litigants a right to an impartial jury.” Wargerv. Shauers, 135 S.Ct. 521, 528
(2014). Appellees were denied that Constitutional right here, and that denial
amounted to an error affecting the frame work of the trial.
As the Sixth Circuit has held, “[f]ailure to remove biased jurors taints the
entire trial.” Wolfe v. Brigano, 232 F.3d 499, 503 (6th Cir. 2000). “Prejudice is
presumed from such a deprivation of a defendant’s right to an impartial jury.”
Commonwealth v. Douglas, 553 S.W.3d 795, 799-800 (Ky. 2018). We have
held,
[d]enial of a defendant’s right to an impartial jury is a structural
error. Hayes v. Commonwealth, 175 S.W.3d 574, 586 (Ky. 2005).
It is therefore not subject to harmless error analysis, as prejudice
is presumed. See Shane v. Commonwealth, 243 S.W.3d 336, 341
(Ky. 2007) (“Harmless error analysis is simply not appropriate
where a substantial right is involved.”).
Id. at 799.
16 Had Neal not been denied the for-cause strike, she would have been able
to strike another juror—one who sat on the case. This impacted the very
framework in which the trial proceeded, i.e. the trial’s structure.
2. For-Cause Strike
Because I would hold that the issue was properly preserved (or, in the
alternative, that preservation is immaterial as it amounted to structural error),
I would also address whether the trial court erred in denying Neal’s for-cause
strike. During voir dire, Appellees’ counsel asked, “[s]o, I need to ask, how
many of you have feelings against the non-economic side of damages in general
or in a wrongful death case like this?” The juror in question raised her hand.
Appellees’ attorney then said to the juror, “Okay, you raised your hand. Where
are you in it? You’ve kind of heard, we’ve got two people that said, yeah, it
may have an impact, a bit of bias.” In response, she said “it’s just a slight
bias.”
Appellees’ attorney followed up on the juror’s response by asking, “there
is a slight bias that could potentially have an impact even though you try your
best to put it aside, is that fair?” The juror replied, “I guess so.” It is important
to note that the juror’s statement that she “guessed so” was in response to
whether the attorney’s characterization of her response was “fair.” She made
no such equivocation in expressing her bias. Rather, the juror said she had a
“slight bias” against non-economic damages. She “guessed” that the attorney’s
statement that her admitted bias “could potentially have an impact even
though [she] would try her best to put it aside” was “fair.”
17 I would hold the trial court abused its discretion in failing to strike a
juror for cause who unequivocally admitted she was biased against Appellees’
recovery of non-economic damages. This Court has held that
“objective bias renders a juror legally partial, despite his claim of impartiality.”
Montgomery v. Commonwealth, 819 S.W.2d 713, 718 (Ky. 1991)
The juror’s statement as to whether that bias “could potentially have an
impact” was somewhat equivocal. The juror admitted bias—thus making her
“legally partial.” She did not even claim impartiality. The record shows a juror
making a definitive statement that she was biased against a certain type of
damages sought by Appellees.
The trial court noted that this bias was “slight.” However, even a slight
bias created an unlevel playing field.
Our caselaw is plain on this matter. “A determination whether to excuse
a juror for cause lies within the sound discretion of the trial court and is
reviewed only for a clear abuse of discretion.” Soto v. Commonwealth, 139
S.W.3d 827, 848 (Ky. 2004). However,
We have repeatedly encouraged trial courts to strike a juror when a
reasonable person would question whether the juror would be fair,
because a fair juror is at the heart of a fair and impartial trial. We
have made it clear that “when there is uncertainty about whether a
prospective juror should be stricken for cause, the prospective
juror should be stricken.” Ordway v. Commonwealth, 391 S.W.3d
762, 780 (Ky.2013). “[T]hat is, if a juror falls in a gray area, he
18 should be stricken.” Id. Further driving home the point, “[w]e
reiterate[d] that trial courts should tend toward exclusion of a
conflicted juror rather than inclusion, and where questions about
the impartiality of a juror cannot be resolved with certainty, or in
marginal cases, the questionable juror should be excused.” Id.
Basham v. Commonwealth, 455 S.W.3d 415, 421 (Ky. 2014).
As we held in Sturgeon v. Commonwealth, 521 S.W.3d 189, 194 (Ky. 2017),
“Rule 9.36(1) mandates the removal of a juror if there is merely ‘a reasonable
ground to believe’ that he cannot render a fair and impartial verdict.” Here, the
juror’s expressed bias amounted to a reasonable ground to believe that she
could not render a fair and impartial verdict and she should have been struck
for cause. Specifically, the juror in the case at hand was beyond the “gray
areas” mentioned in Ordway since she unequivocally admitted she had a bias
in the case. The trial court abused its discretion in failing to excuse the juror
for cause. Appellees were deprived of their Constitutional right to an impartial
jury and this case should be reversed and remanded on those grounds.
Neal properly preserved this issue—and, even if she had not, it amounted
to structural error which requires reversal. The trial court abused its
discretion in failing to excuse the juror for cause. Neal faced a biased jury and
this case should be reversed and remanded on those grounds. I would fully
affirm the Court of Appeals.
19 COUNSEL FOR APPELLANT:
Donald P. Moloney, II Sturgill, Turner, Barker & Moloney, PLLC Lexington, Kentucky
E. Douglas Stephan Sturgill, Turner, Barker & Moloney, PLLC Lexington, Kentucky
Stephanie Marie Wurdock Sturgill, Turner, Barker 85 Moloney, PLLC Lexington, Kentucky
COUNSEL FOR APPELLEE:
Kris Douglas Mullins Morgan & Morgan Lexington, Kentucky
Daniel Tysen Smith, II Morgan 85 Morgan Louisville, Kentucky
Keith R. Mitnik Morgan & Morgan Lexington, Kentucky