Sa'myra N. Guerin v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: October 6, 2022
• Docket: 2021 CA 000952
• Status: Unknown

Opinion

RENDERED: OCTOBER 7, 2022; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2021-CA-0952-MR

SA’MYRA N. GUERIN APPELLANT

APPEAL FROM MCCRACKEN CIRCUIT COURT v. HONORABLE TIM KALTENBACH, JUDGE ACTION NO. 20-CR-00217

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; JONES AND L. THOMPSON, JUDGES.

CLAYTON, CHIEF JUDGE: Sa’Myra Guerin (“Guerin”) appeals the McCracken

Circuit Court’s judgment convicting her of second-degree assault and sentencing

her to five (5) years’ imprisonment. Guerin alleges that her trial counsel was

unable to provide effective representation due to the size of his caseload; the

COVID-19 mask mandates infringed upon her constitutional rights; the jury’s racial makeup violated Guerin’s right to a fair trial; and certain jurors were

inattentive during her trial. Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2020, Brantarius Milliken (“Milliken”) was admitted to the

hospital with numerous stab wounds to his head and upper body, including a

partially collapsed lung. Milliken and several other witnesses told Detective

Chelsee Breakfield of the Paducah Police Department that Guerin had stabbed

Milliken with a pair of scissors and fled the scene.

Guerin later contacted the Paducah Police Department and agreed to

come in for an interview. In the interview, Guerin told Detective Breakfield she

had “blacked out” during the altercation, and Milliken had started the fight.

Thereafter, Guerin was arrested and charged with first-degree assault. Guerin was

later indicted for second-degree assault by means of a deadly weapon. She

ultimately pled not guilty to the charge.

A McCracken County jury tried Guerin in May 2021 and found her

guilty of second-degree assault. Additionally, the jury recommended the minimum

penalty of five (5) years’ incarceration. The McCracken Circuit Court sentenced

Guerin consistent with the jury’s recommendation. This notice of appeal followed.

We will discuss more facts as they become relevant to this Opinion.

-2- ANALYSIS

Guerin claims the following on appeal: (1) her trial counsel’s heavy

caseload was prejudicial to her trial, (2) the COVID-19 mask mandate infringed on

her right to a fair trial, (3) the jury panel did not represent the community in which

Guerin was tried, and (4) the jurors were “inattentive” to the proceedings at trial.

I. Ineffective Assistance of Counsel

On this direct appeal, Guerin contends that her trial counsel was not

sufficiently prepared during her trial due to the size of his caseload and that Guerin

was prejudiced thereby. Although Guerin frames her argument as being

constitutional in nature, her claims are essentially that she received ineffective

assistance of counsel at the trial court level. However, Guerin’s attempt to raise a

claim of ineffective assistance of counsel in this direct appeal is procedurally

improper. “As a general rule, a claim of ineffective assistance of counsel will not

be reviewed on direct appeal from the trial court’s judgment, because there is

usually no record or trial court ruling on which such a claim can be properly

considered.” Humphrey v. Commonwealth, 962 S.W.2d 870, 872 (Ky. 1998).

In this case, the trial court held no hearing and made no ruling

concerning counsel’s actual performance at trial. See id. As the Kentucky

Supreme Court stated, “[t]he issue of insufficient assistance of counsel must be

raised at the trial level by means of a post[-]trial motion.” Hopewell v.

-3- Commonwealth, 641 S.W.2d 744, 748 (Ky. 1982) (citation omitted). Guerin did

not do so in this case.

Thus, a collateral proceeding in the trial court is the appropriate

course of action rather than a direct appeal. See Humphrey, 962 S.W.2d at 872. In

such a proceeding, the trial court and parties create a proper record concerning

whether counsel’s performance was deficient and whether such performance was

prejudicial to Guerin. See id. (“[C]laims of ineffective assistance of counsel are

best suited to collateral attack proceedings, after the direct appeal is over, and in

the trial court where a proper record can be made.”). We therefore decline to

review such claims at this time.

II. COVID-19 Mask Mandate

Guerin next argues that the mask mandate imposed by the Kentucky

Supreme Court on all courtrooms during the COVID-19 pandemic

unconstitutionally hindered jury selection, resulting in an unfair trial. Additionally,

Guerin argues that her counsel’s required mask-wearing while questioning

witnesses violated Guerin’s right to confront witnesses under the United States

Constitution’s Sixth Amendment and Section 11 of the Kentucky Constitution.

Pursuant to Kentucky Supreme Court Amended Order 2021-06,

effective at the time of Guerin’s trial, every person was required to wear “a

protective facial covering over their mouth and nose while in the courtroom.”

-4- However, the mandate specified that a judge could allow a party, attorney, or

witness to temporarily remove his or her facial covering “if it [wa]s necessary to

create a clear record[.]”

While Kentucky courts have not opined regarding the specific issues

Guerin discusses, other jurisdictions have done so. For example, in March 2021,

the United States District Court for the Southern District of New York held that a

courtroom’s mask mandate did not hinder jury selection, noting that “[b]eing able

to see jurors’ noses and mouths is not essential for assessing credibility because

demeanor consists of more than those two body parts since it includes the language

of the entire body.” United States v. Tagliaferro, 531 F. Supp. 3d 844, 851

(S.D.N.Y. 2021) (internal quotation marks and citation omitted).

Additionally, later that year, the United States District Court for the

Eastern District of Michigan, Southern Division, upheld their state’s mask

mandate. The Court stated that, “[a]ll courts that have considered this question so

far have universally reached the conclusion that a defendant can still assess a

juror’s credibility and demeanor during both voir dire and trial while the juror is

wearing a face mask.” United States v. Schwartz, No. 19-20451, 2021 WL

5283948, at *2 (E.D. Mich. Nov. 12, 2021) (citations omitted).1 Moreover,

1 This unpublished opinion is cited pursuant to Kentucky Rule of Civil Procedure 76.28(4)(c) as illustrative of the issue before us and not as binding authority.

-5- nothing in the record indicates that Guerin was not given an opportunity to submit

proposed voir dire questions for the trial court to ask prospective jurors. Based on

the foregoing, we hold that the jury’s requirement to wear masks during jury

selection and Guerin’s trial did not unconstitutionally infringe upon her

constitutional rights.

Guerin also claims that the mask mandate infringed upon her right to a

fair trial because her counsel’s masking denied Guerin her constitutional right

under the Confrontation Clause to confront witnesses face-to-face. As discussed

by the Kentucky Supreme Court:

The right to confront one’s accusers in a criminal trial is a right guaranteed by the 6th Amendment to the United States Constitution and also by Section 11 of the Kentucky Constitution. The United States Constitution grants the accused the right “to be confronted with the witnesses against him.” The Kentucky Constitution grants the accused the right “to meet the witnesses face to face.” The difference in language is not significant and both amendments are simply designed to require that a defendant in a criminal case is entitled to a confrontation with his accusers.

See v. Commonwealth, 746 S.W.2d 401, 402 (Ky. 1988). Thus, “[t]he central

concern of the Confrontation Clause is to ensure the reliability of the evidence

against a criminal defendant by subjecting it to rigorous testing in the context of an

adversary proceeding before the trier of fact.” Maryland v. Craig, 497 U.S. 836,

845, 110 S. Ct. 3157, 3163, 111 L. Ed. 2d 666 (1990). Further, as stated by the

-6- Kentucky Supreme Court, “[t]he Sixth Amendment prescribes that the only method

for testing [a witness’s] reliability is through cross-examination.” Rankins v.

Commonwealth, 237 S.W.3d 128, 132 (Ky. 2007) (citations omitted).

In this case, each witness testified under oath, the witnesses were

unmasked during their testimony at trial, and their statements were subject to

Guerin’s cross-examination. Thus, Guerin was afforded the full protection of the

Confrontation Clause. Accordingly, we affirm as to this issue.

III. Jury Composition

Guerin next argues that the jury panel selected for her trial did not

reflect a fair cross-section of the community because of its lack of African

American jurors. As Guerin did not preserve this error at the trial court level, we

will proceed under the “palpable error” standard of review. See Kentucky Rule of

Criminal Procedure (“RCr”) 10.26 (“[a] palpable error which affects the substantial

rights of a party may be considered by . . . an appellate court on appeal, even

though insufficiently raised or preserved for review, and appropriate relief may be

granted upon a determination that manifest injustice has resulted from the error.”).

The United States Supreme Court has held that “[d]efendants are not

entitled to a jury of any particular composition[.]” Taylor v. Louisiana, 419 U.S.

522, 538, 95 S. Ct. 692, 702, 42 L. Ed. 2d 690 (1975) (citations omitted). Instead,

“[t]he Sixth Amendment right to a jury trial includes the right to a petit jury

-7- selected from a representative cross-section of the community.” Miller v.

Commonwealth, 394 S.W.3d 402, 409 (Ky. 2011) (citation omitted) (emphasis

added).

In Duren v. Missouri, the United States Supreme Court detailed three

factors that a defendant must prove to establish a prima facie violation of the fair

cross-section condition of the Sixth Amendment:

(1) that the group alleged to be excluded is a “distinctive” group in the community;

(2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and

(3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

439 U.S. 357, 364, 99 S. Ct. 664, 668, 58 L. Ed. 2d 579 (1979).

The Kentucky Supreme Court in Mash v. Commonwealth, 376 S.W.3d

548, 551 (Ky. 2012), discussed the preceding factors in circumstances similar to

those in this appeal. In Mash, the defendant claimed that the jury panel did not

reflect a fair cross-section of the community, as only 1 out of 42 prospective jurors

was African American. Id. While the Mash Court found that the defendant had

met the first Duren requirement, it found that the defendant had not proven the

second or third Duren requirements. Id. at 552.

-8- First, the defendant had “not provide[d] any information to the trial

court about the number of African Americans in McCracken County or

establish[ed] that there had been systematic exclusion of the group in the jury

selection process.” Id. (citation omitted). While the defendant attempted to prove

the second and third Duren elements by supplying census data to reflect the

African American population in McCracken County, the Court determined that

census information was insufficient to prove either the second or third Duren

factors. Id. Rather, “[a] defendant may demonstrate systematic exclusion by

providing statistical information showing that a particular group was

underrepresented in a county’s jury panels over a period of time.” Id. (emphasis in

original) (citation omitted).

Ultimately, the Mash Court rejected the defendant’s allegations

regarding the jury panel, stating that “[t]he bare ‘one out of 42’ statistic, even when

considered in conjunction with the census data that was not presented to the trial

court, [was] simply not enough to demonstrate unreasonable underrepresentation

or systematic exclusion.” Id. at 553.

Similarly, in Commonwealth v. Doss, the Kentucky Supreme Court

reiterated that “[t]he right to an impartial jury . . . does not afford a litigant the right

to a jury that includes one or more members of his or her ethnic or racial

background, religious creed, gender, profession, or other personal characteristic by

-9- which one is identified.” 510 S.W.3d 830, 835 (Ky. 2016). Because “[t]he

selection of prospective jurors [wa]s . . . accomplished by an indifferent and color-

blind computer that produce[d] a randomized list of prospective jurors[,]” id. at

836, the Kentucky Supreme Court determined that a trial judge could not dismiss a

randomly selected jury panel when the defendant did not show that the panel was

drawn from a jury pool that did not reflect a fair cross-section of the community.

Id. at 837.

Here, Guerin has similarly not proven a prima facie violation of the

fair cross-section requirement of the Sixth Amendment. Indeed, in contrast to

Mash, Guerin failed to establish that she even knew the specific demographics of

the jury pool in her trial thus failing to verify that the jury pool in her case lacked

adequate representation of African Americans. Instead, Guerin acknowledges that

two African Americans were present in the jury pool and that it was “difficult to

ascertain the exact demographics of those that remained because the juror

qualification forms are race[-]neutral and the videos do not show the potential

jurors unless they actually approach[ed] the bench.”

Moreover, Guerin’s claim lacks adequate evidence to support her

claim that any underrepresentation resulted from unreasonable underrepresentation

or systematic exclusion. Under Mash, she failed to meet the second and third

-10- prongs of the Duren factors, as she only provided census data. 376 S.W.3d at 552.

Thus, we find no error.

IV. Alleged Inattentiveness of Jury Members

Guerin last argues that her Sixth Amendment right to a fair trial was

infringed upon because she and her mother saw two jurors “nodding off or not

paying attention[.]” Because Guerin did not raise this claim at trial, we will again

review Guerin’s claim under the palpable error standard.

A panel of this Court has stated that “[a] juror’s inattentiveness is a

form of juror misconduct, which may prejudice the defendant and require the

granting of a new trial.” Goff v. Commonwealth, 618 S.W.3d 503, 509 (Ky. App.

2020) (internal quotation marks and citations omitted). However, “[a]s a threshold

matter in cases involving a juror alleged to have been sleeping, an aggrieved party

must present some evidence that the juror was actually asleep or that some

prejudice resulted from that fact.” Id. at 510 (emphasis in original) (internal

quotation marks and citations omitted).

Here, Guerin acknowledges that “there is virtually no video footage of

the jurors.” Thus, she offers nothing in the way of “evidence that the juror was

actually asleep[.]” Goff, 618 S.W.3d at 510 (emphasis added). Additionally,

Guerin does not assert any prejudice that may have given rise from the juror’s

inattentiveness, but rather states that “if substantiated, it would definitely prejudice

-11- the defendant’s right to a fair trial in this matter and would warrant reversal of the

conviction.” Therefore, Guerin has failed to demonstrate a prejudicial error

resulting in manifest injustice.

CONCLUSION

For the foregoing reasons, we affirm the McCracken Circuit Court’s

judgment and sentence.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

S. Scott Marcum Daniel Cameron Paducah, Kentucky Attorney General of Kentucky

Christina L. Romano Assistant Attorney General Frankfort, Kentucky

-12-