Gullett v. Commonwealth

• Decision Date: 23 March 2017
• Docket Number: 2016-SC-000242-MR
• Citation: 514 S.W.3d 518
• Parties: Asa Pieratt GULLETT, IV, Appellant v. COMMONWEALTH of Kentucky, Appellee
• Court: United States State Supreme Court — District of Kentucky

514 S.W.3d 518

Asa Pieratt GULLETT, IV, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2016-SC-000242-MR

Supreme Court of Kentucky.

MARCH 23, 2017

COUNSEL FOR APPELLANT: Susan Jackson Balliet, Assistant Public Advocate.

COUNSEL FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, Joseph Todd Henning, Assistant Attorney General.

OPINION OF THE COURT BY JUSTICE VENTERS

Appellant, Asa Pieratt Gullett, IV, appeals from a judgment convicting him of incest, first-degree rape, first-degree sodomy, first-degree sexual abuse, and second-degree sexual abuse and sentencing him to a total of sixty-five years in prison, which is the maximum sentence allowable in this case.

Appellant argues that he is entitled to relief because (1) during voir dire, the juror who ultimately became foreperson improperly withheld material information which would have justified a for-cause challenge or would have prompted Appellant to use a peremptory challenge against her; (2) a directed verdict should have been granted on the first-degree sodomy and first-degree sexual abuse charges because there was a lack of evidence of forcible compulsion; (3) the phrasing of the first-degree sodomy and first-degree sexual abuse instructions resulted in a unanimous verdict violation; and (4) the trial court erroneously permitted the introduction of prior bad act evidence.

Because the jury foreperson wrongfully withheld material information concerning the past criminal record of her close relatives, and the concealment of that information denied Appellant the opportunity to challenge the juror for cause or alternatively, use a peremptory strike to remove the juror, we conclude that Appellant was deprived "of a substantial right" not subject to harmless error analysis. Shane v. Commonwealth , 243 S.W.3d 336, 341 (Ky. 2007). For that reason we reverse and remand for a new trial.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant grew up in Perry County and in 2000, at the age of nineteen, he moved with his parents to Shelby County. In 2003 or 2004, Appellant moved to Maryland. A few years later, Appellant's parents discovered that Appellant had fathered a child in Perry County. That child, who we refer to as Betty,¹ was born in 2000. It was only at this time that Betty, too, first came to know of her father and grandparents.

Betty had a difficult home life, and so in January of 2008, she moved into the Shelby County home of her grandparents, Appellant's parents. They became her permanent guardians. While Appellant was still in Maryland, he began to develop a relationship with Betty by talking with her on the telephone every night. A year later, he returned to Kentucky and resumed living at his parents' home. Appellant began to develop a closer relationship with Betty.

According to the evidence, Appellant's interest in Betty became increasingly sexual and his parents began to suspect improprieties. They would later report information to police leading to an investigation. Betty then began to disclose more details of her relationship with Appellant, including details of the crimes that were eventually charged.

Police interviewed Appellant and the suspicions that had arisen based upon Betty's allegations were confirmed. Appellant was initially indicted on one count of first-degree rape, one count of first-degree sodomy, and three counts of first-degree sexual abuse (one count age related and the other two based upon forcible compulsion). He was later separately indicted for one count of incest and that count was joined into the original indictment.

At trial, the court dismissed one count of sexual abuse. The remaining charges were submitted to the jury. Ultimately, the jury convicted Appellant of incest (victim under eighteen years of age); first-degree forcible rape; first-degree forcible sodomy; first-degree forcible sexual abuse; and second-degree sexual abuse. As a result of these convictions Appellant was sentenced to a total of sixty-five years in prison. This appeal followed.

II. ANALYSIS

A. Appellant is entitled to a new trial based upon juror misconduct.

We first consider Appellant's contention that he is entitled to a new trial because the jury foreperson, Marla Ethington, lied on her juror qualification form and also during the voir dire proceedings concerning whether a member of her family had ever been prosecuted in a criminal matter. After being summonsed for jury duty, Ethington completed a juror qualification form which included the following question: "Have you or a family member been a defendant, witness, or complainant in a criminal case?" Ethington answered "No."

It is undisputed that Ethington has a brother, a sister, and a nephew who have each been convicted of criminal offenses; and, indeed, her siblings had each served time in prison as a result of previous criminal convictions, and her nephew was currently undergoing a criminal prosecution. Although Appellant's trial counsel, public defender Elizabeth Curtin, was unaware of the relationship, she had previously represented Ethington's siblings in their respective criminal prosecutions, and another lawyer in her office was currently representing Ethington's nephew.

Ethington was not among the jury initially drawn to fill the jury box, but as a member of the reserve pool, she was in the courtroom throughout the voir dire proceedings, and presumably she was aware of the proceedings as they unfolded. During the voir dire examination, the trial court asked the venire if any of them had had any dealings with "[the prosecutor's] office? Friends? Family ? Anybody that may have had dealings with [the prosecutor's office]?" The question was clearly intended to discover if any prospective juror, personally or indirectly through friends or family, had had dealings with the prosecutor's office. A similar question was asked concerning defense counsel.

After a juror on the venire was excused for cause, another juror, "Juror A," was called to replace him. When the trial court asked Juror A if any of the questions asked so far indicated a reason for concern, he answered that his stepson had been prosecuted for rape by the prosecutor's office and that defense counsel had been his attorney. Juror A was then excused for cause. Ethington was selected to replace him.

Similarly asked by the trial court if she had "[any] concerns to this point [based upon the questions asked so far]," and even though Juror A had just identified his stepson's prosecution as a concern, for which he was excused for cause, Ethington responded "No."

Later in the voir dire process, the Commonwealth asked whether "anyone had a family member , friend, or close acquaintance that's been a witness, a victim, or a defendant in a criminal case." Ethington again failed to disclose that she had a brother, a sister, and a nephew who had been prosecuted for criminal conduct. The Commonwealth then asked specifically whether anyone in the second row, where Ethington was seated, had a "friend or family member who was a witness or charged with a crime," and then repeated "witness, victim, or defendant ?" Another juror responded that she had a friend who was prosecuted, but again, Ethington did not disclose the prosecutions of her close relatives.

It was not until after Appellant's convictions that defense counsel learned of the prosecutions of Ethington's relatives. Based upon that discovery and other reasons not relevant here, Appellant moved for a new trial. At the hearing on Appellant's motion, the court records establishing the prior prosecutions of Ethington's relatives were introduced. The validity of those records is not in dispute. Ethington was called as a witness to explain her failure to respond to the voir dire questions. She explained that she construed the questions about her family to mean only members of her present household, which consisted of her, her son, and her daughter, and therefore did not include her siblings, nephew, and other family members outside of her immediate household. She further testified that she was not deliberately trying to mislead anyone about the criminal backgrounds of her siblings and nephew, and that everyone in the county knew her and so she supposed the prosecutors and defense counsel would have known the relevant information without her assistance. She further testified that the undisclosed backgrounds of her kinsmen did not have any impact on her deliberations in the case, and did not create any bias in her one way or the other.

Defense counsel explained at the hearing that she had actively represented a brother and sister of Ethington's, and that her office was currently representing a nephew. Defense counsel explained that if she had known of Ethington's relationship to her other clients, she would have challenged her for cause or used a peremptory challenge to remove her. Defense counsel also said: "During the course of my representation [of Ethington's siblings] I have knowledge that would have precluded me ... I would never have allowed her to serve, not only serve but be the jury foreperson."

Defense counsel added that truthful responses identifying the relatives "was essential to our ability to select a fair and impartial jury." She further stated, "I've been practicing out here for over 20 years [and] not a year goes by an Ethington is not in court."² Finally, defense counsel reiterated that the fact that the information was not disclosed impacted "our ability to select ... a fair and impartial jury."

The Commonwealth argued that the burden was on the defendant to prove "actual bias," and that with greater diligence Appellant could have found out the information before trial, or could have asked better questions during voir dire to have obtained the information.

The trial court concluded that Appellant had the burden of showing actual bias in order to obtain relief; that Ethington denied having a bias, but even so, one would expect her bias to run against the Commonwealth since it was the prosecutors who had...