PAULLEY v. Commonwealth of Ky.
| Decision Date | 21 October 2010 |
| Docket Number | 2009-SC-000033-MR.,No. 2009-SC-000024-MR,2009-SC-000024-MR |
| Citation | 323 S.W.3d 715 |
| Parties | Steven PAULLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee. and Henny L. Gunn (a/k/a Henry L. Gunn), Appellant, v. Commonwealth of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
OPINION TEXT STARTS HERE
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Emily Holt Rhorer, Department of Public Advocacy, Roy Alyette Durham, II, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellants.
Jack Conway, Attorney General of Kentucky, Susan Roncarti Lenz, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.
Rocky Brown was shot and killed while attempting to hold the door to prevent a forced entry into Adolphus Stone's home. A circuit court jury convicted Henny Gunn (a/k/a Henry Gunn) and Steven Paulley of, among other offenses, murdering Brown. Both Gunn and Paulley separately appealed to this Court as a matter of right. 1 Because the operative facts and many of the issues are the same for both appeals, we have elected to resolve both appeals in this combined opinion. Because the trial court improperly failed to grant a request to strike a juror for cause, we must vacate Paulley's and Gunn's convictions and remand these cases to the trial court for further proceedings consistent with this opinion.
Nine people, including three children, were present at the home Stone shared with his girlfriend. Someone knocked on the door and identified himself as B.J. The knocking became pounding and kicking, and Brown put his weight against the door to hold it closed. A shot fired through the door struck and fatally wounded Brown, who had leaned his back and shoulder against the door. When the police arrived, they could not get in through the front door because Brown was still holding the doorknob.
In the course of their investigation, the police learned of Stone's ongoing feud with Eric Ward. Eventually, Ward, Paulley, Gunn, and Eric Taylor were charged in relation to Brown's death. Two weeks before trial, Ward and Taylor agreed to testify for the Commonwealth. Ward pleaded guilty to complicity-based charges surrounding Brown's death and agreed with the Commonwealth on a sentence of four years' imprisonment for those charges. Taylor entered into an agreement with the Commonwealth in which he waived his 5th Amendment right to refuse to testify in exchange for a reduction in the severity of his charges. Nonetheless, Taylor was permitted to sit at the defense table during Gunn and Paulley's joint trial. The jury acquitted Taylor of all charges; Gunn and Paulley were convicted of all charges. Ultimately, in accordance with the jury's verdicts and recommendations, the trial court sentenced Gunn to life imprisonment and sentenced Paulley to twenty years' imprisonment. 2
Both Gunn and Paulley raise numerous, often-overlapping issues. We will discuss the failure to strike a juror for cause issue first because it is dispositive. We will then briefly discuss only those issues that are potentially dispositive or are necessary for guidance upon remand. 3
During voir dire, prospective juror # 220248 stated that she was a civilian who previously had served as a training instructor for the Indianapolis Police Department. She also stated that she had many relatives in law enforcement, none of whom lived in Kentucky. She disclaimed any bias because she did not know any of the officers involved in these cases.
Later on in voir dire, prospective juror # 220248 stated that she had been a burglary victim several times, both as a child and as an adult. Nonetheless, she insisted that she could be fair and impartial in these burglary and murder cases.
Finally in voir dire, prospective juror # 220248 stated that her son had been the victim of a robbery involving a firearm. When asked, the prospective juror admitted that she was not sure she could listen to the evidence and not allow her previous experience to cloud her ability to consider these cases. Defense counsel asked if the prospective juror's prior experience would interfere with her ability to be fair and impartial, to which the woman responded that she was not sure.
Over the Commonwealth's objection, defense counsel later moved to strike prospective juror # 220248 for cause. The trial court said it would have liked to question this prospective juror further but denied the motion to strike for cause because the court believed the juror had not expressed anything that could prevent her from serving as a juror. Defense counsel then was forced to use a peremptory strike to remove prospective juror # 220248.
Kentucky Rules of Criminal Procedure (RCr) 9.36(1) provides a juror should be struck for cause “[w]hen there is reasonable ground to believe that ... juror cannot render a fair and impartial verdict on the evidence....” A trial court generally is given “broad discretion to determine whether a prospective juror should be excused for cause....” 4 Nonetheless, “that discretion does not mean a trial judge's decision not to strike a juror for cause is beyond review by an appellate court.” 5 Ordinarily, an erroneous, discretion-abusing failure to grant a motion to strike for cause results in reversible error. 6 But we have recently made clear our requirement 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.” 7
Gunn and Paulley admit neither identified any additional jurors he would have struck if he had not been forced to use a peremptory strike on juror # 220248. The Commonwealth argues that such a failure is fatal to Gunn's and Paulley's claims. We disagree.
Gunn and Paulley's joint trial occurred in September 2008. We did not make definite our requirement that defendants set forth the names of other jurors they would have struck until October 2009-over a year after Gunn and Paulley's trials. 8 It would be unfair for us to hold Gunn and Paulley to a standard that did not exist at the time of their trials. Gunn and Paulley timely made their objection for cause to prospective juror # 220248. 9 Under the state of the law at the time, nothing more was required. So we shall deem this issue to be properly preserved. For all cases tried after finality of our decision in Gabbard, however, we reaffirm 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.” 10
Having dealt with the procedural aspects of this issue, we may now analyze it on the merits. A properly qualified juror must be impartial, which former United States Supreme Court Chief Justice Charles Evans Hughes described as comprising a “mental attitude of appropriate indifference ...” 11 In order to determine if a juror has the appropriate degree of impartiality, “[t]he test is whether, after having heard all of the evidence, the prospective juror can conform his views to the requirements of the law and render a fair and impartial verdict.” 12 Any doubts about the ability of a juror to be fair and impartial should be construed in favor of a defendant. 13
The fact that prospective juror # 220248 had personal and familial ties to law enforcement does not automatically disqualify her from sitting as a juror on the case. 14 Similarly, the fact that prospective juror # 220248 had been the victim of a similar crime did not automatically disqualify her from jury service. 15 So had those been the only allegedly disqualifying remarks made by prospective juror # 220248, we would have routinely affirmed the trial court's decision to refuse to strike her for cause.
But far more troubling is the fact that prospective juror # 220248 was unable to disclaim any bias stemming from being the mother of a crime victim. In fact, she stated she might not be able to put out of her mind the fact that her son was a victim of an armed robbery. When asked directly whether she could be fair and impartial, the juror stated she was not sure. The juror's hesitancy is highlighted all the more because it stands in marked contrast to her quick disclaimer of any bias stemming from her law enforcement ties and experience.
Unfortunately, this issue was not deeply explored by follow-up questions. The last word on this crucial subject was the juror's honest-seeming expression of doubt about her ability to be fair and impartial. From this scant record, the Commonwealth asks us to assume a lack of bias while Gunn and Paulley ask us to assume bias. As stated previously, however, we must afford a criminal defendant the benefit of the doubt as it pertains to a juror's ability to be impartial. After all, perhaps nothing strikes more at the heart of having a fundamentally fair trial than does the seating of an appropriately impartial jury. Yet, to rule in favor of the Commonwealth, we would be required to find impartial a juror who refused to so categorize herself. In other words, taking into account all the facts and circumstances, there is nothing in the record from which we could definitively conclude this juror was truly impartial.
In the absence of anything concrete to show this juror could have set aside the feelings she held as the mother of a crime victim, we are forced to conclude “there is reasonable ground to believe that ... juror [# 220248] cannot render a fair and impartial verdict on the evidence, ...” 16
The trial court's erroneous failure to grant the motion to strike prospective juror # 220248 for cause “deprived the defendant[s] of a substantial right” and, ultimately, led Gunn...
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