Robert Morrison v. Commonwealth of Kentucky

Opinion

. . RENDERED: SEPTEMBER 28, 2017 · . TO BE PUBLISHED

.juprmtt dfourt of 1Ji~~ ~ . 2015-SC-000712-DG · [L :[]~LJ\E10)1qJrzl-l~ rkln.tWt,fX- ROBERT MORRISON ·APPELLANT

ON REVIEW FROM COURT OF APPEALS v. CASE NO. 2014-CA-'001818-MR . HICKMAN CIRCUIT COURT NO. 14-CR-00023

COMMONWEALTH OF KENTUCKY· APPELLEE

OPINION OF THE COURT BY JUSTICE WRIGHT

REVERSING AND REMANDING ·

A Hickman Circuit Court jury found Appellant, Robert Morrison, gu:ilty of

esc~pe and fleeing or evading police and found him to be a first.,-degree

. persistent felonyoffender. The trial court sentenced Appellant to fifteen.years'

imprisonment. Appellant appealed to the Court of Appeals, argu:ing the trial

court erred in failing to. strike a juror for cause, 1 and that court affirmed the

trial court. Appellant sought discretionary review with this Court, which we . .

granted. For the reasons that follow, we reverse the .Court ·of.Appeals and

remand this matter to the trial court.

i Appellant also argued an unpreserved issue to the Court of Appeals; however, that issue is not before this Court. . I .. BACKGROUND

The facts underlying the escape· and fleeing or evading charges for which . . . . . . . . ..

Appellant was convicted are not at issue in· this appeal .. Appellant's sol~ issue

·.involvesjury selection. During voir dire, :a juror, Mrs. Morris revealed that she

was the mother of the County Attorney, Sue Ellen Morris. The judge called the

juror to the bench for a colloquy. She was present d:uring the ~ntirety of the

following exchange:

Judge: . How ya doing today, Mrs. Morris?

·Juror: Good.

Judge: You are Sue Ellen's mother? / Juror: . Yes .

.Judge: · Wouid that cause you any problems today sitting, he~ing ·this_ case, and rendering a decision? .

. Juror: · I don't thjnk so, but I didn't want- ·

'Judge: ·Well, we appreciate ya telling everybody so everybody else would know who you were.

Juror: Okay.

Judge: . . All right.· ..

Defense: Judge, l would ask her-·for her to be excused for ca":-lse. Su~ Ellen 1s· the-Ms. Morris-I'm sorry-is ,the attorney who did the preliminary hearing: ljust don't want there to be-albeit an appearance-:-an~ I don't think it cures it by asking her. I think there is pressure on her to say she can be unbiased and it's just too·dose to the case.

Judge: All right. :Commonwealth?·

Prosecutor: I don't have a problem· with her· sitting. Like I said, I think she is gonna make.up her mi:z:id. 2 Judge: Okay, Mrs. Morris, Jet me ask you this. Has Sue· Ellen discussed this particular case·with. you ~tall?

Juror: She doesn't discuss cases with me. ·Which she said · she wouldn't want me on ajury.

Judge: She said she wouldn't want you? That's just cause you're her mama and she's trying to give you a way ·out? · ·

(All laugh)

Juror: I guess; I don't know.'.

Judge: She doesn't discuss any case with you?·

Juror: No.

Judge: In particular, she.has not discussed this case?

Juror: She has not-any cases.

Judge: And you don't have any knowledge of this case?

Juror: No. . . Judge: And you don't feel like you have any bias one way or the other since Sue Ellen-which she is the County . Attorney-she's not in this case. She's not going to be assisting [the prosecution] today is she?

Prosecutor: No.

Judge: She's not going to be called as a witness or anything.is she? . ·

Defense: No, Judge.

Judge: Alright. And you are asking that she be excused for cause?

Deferise: Yes, I am-or even to keep her in reserve. That would be okay, too, I guess. But I don't think we're gonna · have any shortage ofjurors today.

3 Judge: What says the Commonwealth?

·Prosecutor: I just don't feel like it's a problem. Judge: Well, nor do I. Mrs. Morris said she do~sn't know anything about this case. She said Sue Ellen, the County Attorney, has not discussed any case with her. ·. I do not find that surprising or to be unusual.· I 'would expect nothing less of Ms. Mor.tjs, the County· . Attorney. She wouldn't discuss· a case going to trial. Um, M?'am?

Juror: Yes.

Judge: I am gonna allow ya to remain in box. Doesn't mean you wUl get to stay all day,. but I am gonna allow ya to remain in. box: ·Motion overruled. .

Defense: Yes· Judge.

Judge: Thank ya, ma'am.

As shown above, the court denied the challenge for cause, finding that .

the juror had no actual knowledge of the case and. that j~~or's daughter, the.

County Attorney,·was not currently involved in the case. The trial court also

found that though she had been listed on a preliminary witness list, the . . County Attorney was unlikely to be called· as a witness for the Commonwealth_.2

Later, Appellant used a peremptory strike on the juror in question and I noted, with specifidfy, the ·name of the petit juror he· would have stricken, if the

juror in question had been removed for cause. As such, Appellant complied

With Gabba.rdv. Commonwealth, 297 S.W~3d 844 (Ky. 2009).and_ properly

preser\red the issue for appellate review.

2 In fact, the County- Attorney was not called as a witness· during the trial.

4 II. ANALYSIS ·

As this· Court has noted, "[l]ong-standing Kentucky law .has held that a

triai court's decision on wheth,er to strike a juror for cause must be reviewed ·

for abuse of discretion." Shane v. Commonwealth, 243 S.W.3d 336, 338 (Ky.

2007) (citing Adkins v. Commonwealth,. 96 S.W.3d 779 (Ky. 2003); Pendleton v.

Commonwealth, 83 S.W.3d 522 (Ky. ·2002)). "The test for abuse of discretfon is

whether the trial judge's deGision was arbitrar}r, unreasonable, unfair,· or

unsupported by sound legal principles .." Commonwealth v. English, 993 S.W.2d

941, 945 (Ky. 1999).

Kentucky Criminal Rule 9.36(1) establishes the standard a trial court is

required to apply during voir dire: "When there is reason~ble ground to believe

that a prospective Jµrdr cannot render a fair and impartial verdict on the . ' . evidence, he shall be excused as not qualified." Furthermore, this Court has

recognized that a defendant's use.of peremptory strikes "is beyond. question a

· valuable right going to the defendant's peace of mind _and the public's view of

fairness." Shane, 24·3 S.W.3d at 339.

Our case law makes it clear that defendants should not be forced to use

· peremptory challenges to dismiss jurors who should be stricken for cause.

"[W]hen a _defendant is forced to use a peremptory strike on a juror who has

not been properly excused for cause, the court has actually taken away from

the number of peremptories given to the defendant by rule of this Court." Id.

Appellant argu.es that the mother-daughter relationship between the

juror and the County Attorn~y rendered the juror objectively biased and

5 partial. If that relationship standing along was the sole.factor, this case would

be a closer call-and that question remains for another day~ However, after -

reviewing the video of Appellant's voir dire· (as quoted above), it is not the

familial relationship in and of itself that tainted this juror. Rather, the juror

was tainted when she became privy to the bench ses~ion o'n the motion to

strike her for cause. By explaining the reasoning l?ehind that motion in the

juror's ·presence, defense counsel made the juror aware that her daughter had

conducted the preliminary hearing in this case. As such, counsel telegraphed

disqualifying information to the juror, regardless of whetJ;ier she had previously

been qualified. Since the juror was not involved in the felony prosecution, and

never dis.cussed cases with her daughter, without defense counsel's

· statements, she would have had no. reason 'to know that her daughter had ever

been 'involved in this case.

As it is, the juror was made aware that her daughter had once· stood in

an adversarial position against Appellant on these charges. The juror listened

as defense c~uncil expressed doubt that she could be unbiased, .and suggested

that she was under pressure to claim impartiality. Meanwhile·, the prosecutor

expressed his belief that the juror could be impartial. ·The total effect of this

juro:r; being_ privy to the bench session acted to underm~ne "the mental attitude . , of appropriate indifference" that is required of a juror at trial. Gabbard, 297

S.W.3d at 8S4.

This Court has held: "Irrespective of the answers given on voir dire, the

court should· presume the· likelihood of prejudice on the part of the prospective

6 ) .

juror because the potential juror has such .f close relationship, be it familial,

financial or situational, with any of the parties, counsel, victims or witnesses."

Mont~omery v. Commonwealth, 819 S.W.2d 713, 717 (Ky. 1991) (quotations

omitted). We do not depart from that reasoning today, and agree that "[o]nce

that close refationship is established, without regard to protestations of lack of

bias~ the court should ·sustain a challenge for cause and excuse the juror."

Ward v. Commonwealth, 695 S.W.2d 404, ·40.7 (Ky. 1985).

The juror in this case is analogous to the "doubtful jurors" for which this

Court has reversed trial courts for failing to. strike. '.fhe fact that the

adversarial post the juror's. daughter occupied was "only" as the· attorn~y.

conducting the preliminary hearing is irrelevant. For example, in Ordway v.

Commonwealth, the juror in qu~stion was the sister of a victim's advocate who

was working with.the Commonwealth. 391.S.W.3d 762, 782 (Ky. 2013). A·

victim's advocate does not normally testify, advocate, or even speak in front of

the jury. Yet, this Court noted that "[g]enerally, the victim's advocate in a

criminal case tends to be viewed as favoring, on the victim's behalf, retribution

against the defendant, and thus is generally allied with the_ interests of the_

prosecutors." Ordway, 391 S.W.3d at 782.

The County Attorney :represented the Commonwealth o.f Kentucky in the

preliminary hearing and mµst nec·essarily be viewed as "allied with the

interests . of the prosecutors." Id. In. finding reversible error due - to the trial court's failure to strike the victim's advocate's sister for cause, we stated:

7 In recent cases we have indicat.ed that, when there is uncertainty about whether a prospective juror should be stricken for cause, the prospective juror should be stricken. The trial court should err on the side .of ca,ution by, striking the doubtful juror; that is, if a juror· falls within a gray area, he should be stricken.· We have attempted to make this fundamental rule clear in a series of cases since Shane v. Commonwealth, 243 S.W.3d.336 (Ky. 2007). Nevertheless, all too often trial courts, as here, inexplicably put at risk not only the resources of the Court of Justice, ht;1.t the fundamentally fair trial they are honor-bound to provide, by seating jurors whose ability to try the case fairly and impartially is justifiably doubted. ·

Id. at 780. This Court has recently stated: "[t]rial judges are possessed of great . authority to·enla:rge jury pan~ls or change venues. They don't. have.to imperil

their cases with such miserly voir dire I?ractices." . Sluss v. Commonwealth, 450

S.W.3d 279, 285 (Ky. 2014). There is no reason for a trial court to imperil. the

integrity of its proceedings by retaining questionable jurors ..

After a careful review of the proceedings, we fi:q.d. that the: trial court

abused its discretion by denying Appellant's motion to strike the juror at issue.

for cause.·

III. CQNCLUSION

For the foregoing reasons, we reverse the decision of the Court of

Appeals, and. remand this matter to the Hickman Circuit Court for further

proceedings consistent with this opinion.

All sittjng. All concur.

'8

( COUNSEL FOR APPELLANT:

Shannon Renee Dupree Assistant Public Advocate

COUNSEL FOR A.PPELLEE:·

Andy Beshear Attorney General

Gregory C. Fuchs Assistant Attorney General