Crossland v. Com.

• Decision Date: 27 August 2009
• Docket Number: No. 2007-SC-000689-MR.,2007-SC-000689-MR.
• Citation: 291 S.W.3d 223
• Parties: Mark Lee CROSSLAND, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

291 S.W.3d 223

Mark Lee CROSSLAND, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2007-SC-000689-MR.

Supreme Court of Kentucky.

August 27, 2009.

Julia Karol Pearson, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General of Kentucky, Jason Bradley Moore, Assistant Attorney General, Office of Criminal Appeals, Attorney General's Office, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Chief Justice MINTON.

I. INTRODUCTION.

Shortly after submitting this case to the jury, the trial court excused one of the jurors and replaced him with a discharged alternate juror, who was apparently located and returned to the courthouse. Such a post-submission substitution of jurors is reversible error under current Kentucky precedent if the error is preserved.¹ By contrast, we held in an unpublished case that such a post-submission substitution did not require reversal if the error is unpreserved.² Having re-examined the post-submission juror substitution issue in this appeal, we remain convinced that a trial court lacks the authority to order post-submission substitution of a juror. But we now also hold that a post-submission substitution error is subject to harmless error analysis. The substitution error is not harmless in this case because the trial court failed (1) to ascertain by a colloquy on the record that the replacement juror had not been tainted by outside contacts after being discharged and (2) to order the reconstituted jury to start their deliberations over after the replacement joined them.

II. FACTUAL AND PROCEDURAL HISTORY.

A jury convicted Crossland of second-degree arson, first-degree burglary, two counts of theft by unlawful taking (of a firearm), second-degree cruelty to animals, and of being a persistent felony offender in the second degree (PFO 2).³ The jury recommended PFO 2-enhanced sentences of thirty-years' imprisonment each for the burglary and arson convictions and seven-years' imprisonment each for the theft by unlawful taking convictions, all to run consecutively for a total recommendation of seventy-four years' imprisonment.⁴ In the final judgment, the trial court properly reduced that sentence to seventy years' imprisonment,⁵ after which Crossland filed this appeal.

III. ANALYSIS.

Crossland raises three main issues. First, he contends that the trial court erred by substituting an alternate juror for a juror who was excused after the case had been submitted to the jury. Second, he contends that the trial court erred by failing to direct a verdict of acquittal on the arson charge.⁶ And, third, Crossland contends that the Commonwealth engaged in prosecutorial misconduct four times in statements made during its closing argument. We agree that the juror substitution was reversible error under the facts of this case but find no reversible error in any of the other issues.

A. The Trial Court Erred By Replacing a Juror After Deliberations Had Begun.

We must decide if the trial courts of this Commonwealth have the authority to engage in post-submission juror substitutions. We conclude that they do not. Having determined that such substitutions are erroneous, our next inquiry is whether those errors should be subject to harmless error analysis. Although previous cases did not use harmless error analysis, we conclude that such juror substitution errors are subject to harmless error analysis, but only if the error is properly preserved. Finally, we must decide whether the error in this case was harmless. We conclude that it was not.

1. Relevant Facts on the Juror Substitution Issue.

Approximately fifteen minutes after the case had been submitted to the jury in the guilt phase, the trial court appeared on the record stating that one of the jurors had previously been excused from jury duty by the Chief Circuit Judge because the juror had advised the Chief Circuit Judge that he could not sit in judgment of another. After the trial court stated that an alternate juror was available, the Commonwealth suggested that the alternate should take the place of the juror in question. The trial court agreed with the Commonwealth and ordered the alternate juror to be located and returned to the courthouse so he could join the already deliberating jury.

Shortly afterwards, the trial court called the jury back into the courtroom. At the bench, the trial court asked the juror who had previously been excused by the Chief Circuit Judge why he had not spoken up during voir dire. Unfortunately, the juror's answer was somewhat unintelligible. The trial court then dismissed that juror⁷ and informed the remaining eleven jurors that something had happened, and the alternate juror was on his way back to join their deliberations. The trial court ordered the jury not to deliberate until the new juror arrived. As the trial court was leaving the bench, the Commonwealth Attorney asked if the new juror needed to be re-sworn; but the trial court's answer (if any) was not audible. The proceedings then went off the record.

A little over an hour later, the proceedings came back on the record after the jury informed the trial court that it had reached a verdict. Before the jury was brought into the courtroom to announce its verdict and before Crossland's counsel apparently knew what the verdict would be, she objected to the post-submission substitution of the alternate juror. The Commonwealth stated the objection was belated, to which Crossland's attorney stated she planned to object when the alternate arrived and was re-sworn but did not make her objection then because there had been no additional proceedings on the record. The trial court overruled the objection, citing an unnamed federal case as authority for the replacement of the discharged juror with the alternate juror.

2. Trial Courts Lack the Authority Under Kentucky Law to Engage in a Post-Submission Juror Substitution.

Kentucky precedent clearly holds that a trial court errs by replacing a juror with an alternate juror, who has been previously discharged, once the jury has begun deliberating. We believe that precedent is sound.

In a case decided by our predecessor court, the jury had been deliberating for an unspecified amount of time when the trial court, over the defendant's objection discharged one juror in order to permit that juror to attend his father's funeral, then substituted a thirteenth juror (i.e., an alternate juror) in the discharged juror's place.⁸ Our predecessor court held that "the court had no right after the jury began its deliberations to substitute the thirteenth juror[,]" even though the then-applicable Criminal Code of Practice permitted the selection and qualification of a thirteenth juror. And "when the case has been finally submitted to the jury, the function of the thirteenth juror ceases and he should be discharged."⁹ Our predecessor court did not address whether that erroneous juror substitution was a harmless error, perhaps because the Commonwealth had conceded on appeal that the substitution was a reversible error.¹⁰

The Court of Appeals confronted a similar situation in Thurman. In that case, an alternate juror heard all of the evidence but was discharged after closing arguments.¹¹ Shortly after the discharge of the alternate, one of the jurors fell ill and needed to be hospitalized. The trial court called the discharged alternate juror back to the judge's chambers. In a notable departure from the present case, the trial court and counsel questioned the alternate juror about his activities and whereabouts since his discharge.¹² Over the defendant's objections, the trial court returned the discharged alternate to the jury.

On appeal, the Court of Appeals held that the substitution of the discharged alternate juror was erroneous because "the discharging of [the alternate juror] released him from his oath and relieved him of his responsibilities as a juror."¹³ Although the Court of Appeals expressed empathy to the trial court's quandary, it "found no procedure for augmenting a jury to increase its number to that required by law once the jury has begun deliberating."¹⁴

The Court of Appeals recognized that Woods was based upon the former Criminal Code of Practice but believed that the then-applicable Kentucky Rules of Criminal Procedure (RCr) 9.32, which required the clerk randomly to reduce the number of jurors to the number required by law before the jury retired to consider its verdict, was "an embodiment of the Woods holding...."¹⁵ So "[o]nce [the alternate juror] was discharged from the panel he could not be recalled[,]" meaning that "[t]he trial court should have granted Thurman's motion for mistrial."¹⁶ The Court of Appeals, however, did not engage in any analysis of whether the erroneous substitution could have been a harmless error.

RCr 9.32, the rule upon which Thurman was based, was abolished in 1981; and we have not enacted a similar provision in our Rules of Criminal Procedure. But Kentucky Rules of Civil Procedure (CR) 47.02 contains an express provision analogous to the former RCr 9.32. Since there is no criminal rule to the contrary, CR 47.02 applies to criminal cases.¹⁷ Under CR 47.02, a trial court may empanel up to two additional jurors. Significantly, that rule provides only for a pre-submission substitution of an alternate. CR 47.02 provides that "[i]f the membership of the jury exceeds the number required by law, immediately before the jury retires to consider its verdict the clerk, in open court, shall ... reduce the jury to the number required by law, whereupon the jurors so selected for elimination shall be excused." In the case now before us, the trial court's decision to order a post-submission juror substitution finds no support in CR 47.02.

We are aware that when the trial court discharged the alternate juror and allowed him to leave the courtroom after closing arguments, it admonished the alternate juror not to discuss the case with...