Gabbard v. Com.
| Decision Date | 29 October 2009 |
| Docket Number | No. 2008-SC-000062-MR.,2008-SC-000062-MR. |
| Parties | Richard GABBARD, Appellant v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Appellant Richard Gabbard was convicted of murdering his girlfriend by shooting her. On appeal, he claims that the trial court erred by failing to strike two jurors for cause, by not to allowing him to ask lay witnesses their opinion about whether the shooting was accidental, and by allowing evidence of prior threats he had made. Because this Court agrees that the trial court erred by not striking one of the jurors for cause, Appellant's conviction must be reversed.
Appellant lived with the victim, Michelle Davidson Krystofik, who had been his girlfriend for five years. Kelly and Kim, who were the victim's daughters, along with Kim's infant son, also lived with them.
Kelly testified that on the night of the shooting Appellant and the victim had been sitting in the living room. Appellant was cleaning his guns. Kelly was in her bedroom when she heard a gunshot. She went to the living room and saw that her mother had been shot. She testified that Appellant told her it had been an accident. She had heard no arguing between her mother and Appellant prior to the shooting.
Kim testified that earlier in the evening, Appellant had argued with her, her exboyfriend (via telephone), and the victim about an incident at a family gathering several weeks earlier during which Appellant had argued with the victim's father. She stated that her mother and Appellant appeared angry at each other. She claimed that Appellant then took a gun from the cabinet and walked outside. When he returned, according to Kim, the victim asked him why he needed a gun. He replied, "Because I might need to shoot somebody." Kim testified that she started to walk to her room when she heard the shot.
It was revealed at trial that Kim had given two interviews to police after the shooting in which she said it was an "ordinary" evening. In the interviews, she did not say that there had been any arguing or that Appellant said he "might need to shoot somebody," though she said Appellant may have been cleaning his gun when the shooting occurred.
Appellant admitted to police that he had "kinda" been arguing with the victim about the incident at her father's house several weeks before. He claimed that he had been cleaning his guns and that he took a gun when he went outside because a neighbor had threatened him earlier. He told police that when he came back into the house, he may have been "goofing off and raised the gun "like a fool," but claimed never to have pointed the gun at the victim. He admitted he may have pulled the trigger, though he did not think he did. One of the officers testified that Appellant had also stated that the gun went off while he was cleaning it.
Other testimony at trial came from competing expert witnesses (about what would have been necessary for the gun to accidentally fire), a medical examiner, an accident reconstructionist, and witnesses who testified about other incidents where Appellant had threatened or pointed a gun at people, including the victim. In addition to his expert witness, Appellant presented witnesses who testified that he and the victim appeared to be getting along prior to the shooting and did not argue.
The jury convicted Appellant of wanton murder. To avoid a penalty phase, Appellant and the prosecution agreed to a sentence of twenty years in prison. This appeal, then, is a matter of right. Ky. Const. § 110(2)(b).
Appellant complains that two jurors should have been struck for cause and that he was forced to use peremptory challenges on them. He notes that if the jurors should have been struck for cause, the trial judge's failure to do so was reversible error under Shane v. Commonwealth, 243 S.W.3d 336 (Ky.2007).
The first juror stated that she knew the defendant's sister, had worked with her for at least the last ten years, and saw, worked with, and talked to her every day. When asked if that relationship could interfere with her "deciding the facts of this case based upon the law," she replied,
No, it would not. The problem I have is from what I heard, the gun was supposed to accidentally went off. My dad was a game warden. I've lived in a house with guns all my life, loaded guns, taught hunter safety. My brother taught hunter safety, my sons taught hunter safety. It's not impossible, but it's improbable to me —
She was interrupted at that point by the prosecutor, and the following exchange took place:
Prosecutor: Could you wait to make your determination of whether that happened in this case until you've heard all the evidence?
Juror: I have pretty much made up my mind on that.
Prosecutor: If the judge were to instruct you to set that aside, would you be able to make your decision based on what you hear in court? I mean, I'm not telling you not to use your common sense and your life experiences, but in judging this case whether or not he's guilty or not guilty, could you set aside any previous opinions you might have and reach a decision based upon the law and the evidence in the case?
Juror: It would still be in the back of my mind.
Judge: Let me ask you this. When you come in — everybody comes in with their life's experiences, everybody comes in here — nobody comes in here with a clean, empty blackboard of a mind. They all come in with certain beliefs and things. What I'm asking you is, when you — the evidence you hear in this courtroom, and the law that I give you, that will you be able to make a decision based on the evidence using your common sense and listening to the evidence and following the law that I give you? Can you make your decision on that, and put aside any preconceived notions at the same time?
Juror: Common sense, I believe I could.
(Emphasis added.)
The judge then allowed defense counsel to ask questions, and the following discussion took place:
Defense: You said based upon your family's history of having guns and using guns, and something about a hunter's course, that you are skeptical that a gun would go off accidentally. Is that right?
Juror: Uh-huh. [Indicating the affirmative.]
Defense: So if you were to hear evidence at the trial that — from the defense that — or you know by Rick Gabbard, "The gun accidentally went off in my hand.", are you saying that based on your experience and your family's experience, and your knowledge of firearms and their knowledge of firearms, and handling them that you would not really believe that?
Juror: I would do as the judge instructed me and put it aside.
Defense: Are you sure that you could put that aside or would you — you know, I mean, that's kind of hard to —
Juror: It is hard.
Defense: — to say for sure, because I thought earlier, hearing that what you said, from what you knew about the case, you — and your own family's history — that you didn't think that the gun would go off accidentally?
Juror: I said it was, it's not impossible, but it's improbable.
Defense: Okay, could you explain more what you mean by that?
Juror: It's not impossible that accidents do happen, but to my knowledge of firearms, it's improbable if handled correctly.
Defense: Okay, so you're leaning against, I mean, and if I'm misstating it, please let us know that. You say that it's not probable. In your mind, does that mean that you think it's a lot more likely that it didn't go off accidentally?
Juror: Yes.
Judge: I'll ask you this question, now you worked with [Appellant's sister] for ten years, so you kind of got, you're sort of got two —
Juror: Yes, I'm caught between the two.
Judge: You're the tug o' war party here. So, if you're chosen to sit on this jury, and the Commonwealth has got to prove it beyond a reasonable doubt that the defendant is guilty, and the defendant's presumed to be innocent. And if you're unsatisfied that the Commonwealth has shown guilty beyond a reasonable doubt, could you find the defendant not guilty?
Juror: Yes, I could.
Judge: And if you were satisfied that the defendant was guilty beyond a reasonable doubt, you could do that?
Juror: Yes, I could.
The court then allowed more defense questions:
Defense: Based on what you said about the history of using firearms and firearms in your family, you would approach it, you're skeptical that the gun could go off by accident?
Juror: Yes, I am skeptical
Defense: Is that fair to say, that you're skeptical of that right now? And that skepticism won't go away, will it, just based on the facets from your personal history?
Juror: Um, I could listen to it, yes. And I could take everything into consideration.
Defense: Okay. But —
Juror: But I still have my own opinions.
Defense: Okay, and part of your own opinions are based on your own —
Juror: My own personal experience.
Defense: — your own personal experience and your own belief based on that that guns — it's a lot more likely that they do not go off accidentally, is that right?
Juror: More or less that they don't go off accidentally.
Prosecutor: Would you agree with me that anybody with common sense knows it's much more probable that the gun goes off when somebody pulls the trigger than it just goes off by itself?
Juror: Oh, yes.
The juror then indicated that she knew members of the victim's family — specifically the victim's father and his grandchildren (the victim's nephews and nieces) — who she "had ... in school." She did not know them socially but said she spoke with them "on a regular basis." She did not live near them.
The following discussion then took place:
Defense: Based on — you said that, you know, you had heard, I guess, things about the case. Do you have an...
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