Grooms v. Com., No. 85-SC-418-MR

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtSTEPHENS, C.J., concurs in part and dissents in part by separate opinion in which LEIBSON; WINTERSHEIMER, J., concurs in part and dissents in part by separate opinion in which STEPHENSON; LAMBERT, J., concurs with the opinion of the court except that
Citation756 S.W.2d 131
PartiesFred GROOMS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
Decision Date09 June 1988
Docket NumberNo. 85-SC-418-MR

Page 131

756 S.W.2d 131
Fred GROOMS, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
No. 85-SC-418-MR.
Supreme Court of Kentucky.
June 9, 1988.
As Modified on Denial of Rehearing Sept. 8, 1988.

Page 133

Kevin Michael McNally, R. Neal Walker, Assts. Public Advocate, Frankfort, for appellant.

David L. Armstrong, Atty. Gen., C. Lloyd Vest II, Rickie L. Pearson, Assts. Atty. Gen., Frankfort, for appellee.

OPINION OF THE COURT

The appellant was convicted of the murder of Patricia Ross and was sentenced to death. He was also convicted of the attempted murder of Larry Lehner and sentenced to imprisonment for 20 years. At the time of the commission of these offenses, appellant was an inmate at the Kentucky State Penitentiary at Eddyville, Kentucky. Patricia Ross was an employee at the penitentiary, and Larry Lehner was a fellow inmate. The incident began when the appellant asked Patricia Ross for some supplies from the storeroom and accompanied her into the storeroom to get them. While in the storeroom he struck her with an industrial can opener, knocking her to the floor and causing her death. After this incident, Larry Lehner came into the storeroom, and appellant hit and injured him, knocking him to the floor, but death did not result to him.

The appellant has instituted this appeal from each of the convictions. We affirm in part and reverse in part.

THE MURDER CONVICTION

The appellant filed a motion for a change of venue supported by the affidavits of 13 residents of Lyon County, Kentucky, who expressed the opinion that appellant could not have a fair trial in Lyon County. A hearing was conducted on the motion during which numerous newspaper clippings which had been published near the time of the crime were introduced. A public opinion poll conducted by a clinical psychologist was introduced to show that the percentage of people who had heard about the case; who thought that the defendant was probably guilty; and who, if guilt was actually proven, would favor the death penalty as a punishment, was somewhat higher in Lyon County than in two other neighboring counties. It also showed that the percentage of people who thought that the defendant could obtain a fair trial in their respective counties was higher in the adjoining counties than in Lyon County. The polls showed, however, that a majority of those polled in Lyon County felt that appellant could have a fair trial in Lyon County. The Commonwealth filed the affidavits of two witnesses who stated that in their opinion the appellant could obtain a fair trial in Lyon County.

The trial court denied the motion for change of venue. The question of whether change of venue should be granted is a matter entrusted to the sound discretion of the trial court. Hurley v. Commonwealth, Ky., 451 S.W.2d 838 (1970). We have examined the affidavits, the newspaper clippings, and the evidence concerning a public opinion survey offered by the appellant. We find nothing therein to convince us that

Page 134

the trial judge abused his discretion by denying the motion to change the venue.

Before the commencement of the trial, the trial court sustained the appellant's motion for individual examination of prospective jurors outside the presence of the other jurors. In a hearing on the motion, appellant's counsel indicated it would need individual examination outside the hearing of other jurors only as to matters concerning pretrial publicity and on the jurors' views concerning the death penalty.

During the voir dire, the trial court instructed counsel that separate examination of individual jurors would be limited to their opinions as to the death penalty. Counsel then proceeded to inquire of all jurors, who had previously indicated they had some knowledge of the case, what specific knowledge they had, what they had heard about the case, and from whom they had heard it. The court sustained objections to the questions. As a result, counsel for appellant were never permitted to learn what information the prospective jurors had learned about the case.

A basic principle of due process is the right to an unbiased decision. In jury trials, one of the purposes of a voir dire examination is to enable the court and counsel to screen from the jury panel those individuals whose verdict might be influenced by prior knowledge of the case. This screening is accomplished through challenges for cause to jurors and also through the exercise of peremptory challenges.

The record here substantiates that there was a great amount of pretrial publicity concerning this case. A public opinion survey showed that 98 percent of the prospective jurors polled were aware of the case. All but four of the 28 jurors questioned on voir dire acknowledged having some information about it. Several of these prospective jurors or members of their family worked at the penitentiary. Some of them had discussed the case with others.

The exclusion of any question as to the extent of the knowledge about the case possessed by the prospective jurors and the inability of counsel to learn what they had heard about it and from whom they had heard it, kept from the trial judge information important to the determination of whether a challenge for cause to a particular juror should have been sustained and kept from counsel information important to the determination of which jurors should be peremptorily challenged. See Silverthorne v. United States, 400 F.2d 627 (9th Cir.1968); Stone v. Monticello Construction Company, 135 Ky. 659, 117 S.W. 369, 371 (1909); American Bar Association Standards for Criminal Justice, Fair Trial and Free Press, Sec. 8-3.5.

Inquiry in the presence of other jurors as to what a prospective juror has heard about the case poses the danger of bringing that information to the ears of the other prospective jurors. The better procedure is to question jurors separately and out of the presence of each other on such matters. Such a request was made by counsel for appellant and was denied.

We do not hold that counsel for appellant had any absolute right to question prospective jurors on these matters because the extent of direct questioning by counsel during voir dire is a matter within the discretion of the trial court. If the trial judge conducts the voir dire, on request by appellant's counsel, inquiry should be made into the extent of the knowledge possessed by prospective jurors about the case and the source of that knowledge.

Appellant contends that he was prejudiced because he was forced to use peremptory challenges upon jurors who should have been excused for cause and that he was further prejudiced because three jurors who should have been excused for cause actually sat on the jury. Those three were allowed to remain on the jury because appellant had used all of his peremptory challenges and was unable to excuse them.

The question of whether a juror should be excused for cause is a matter within the discretion of the trial court. If the trial judge abuses his discretion by denying a challenge for cause, we have held it reversible error in a case where the

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defendant has elected to use a peremptory challenge to excuse that juror and it later develops that the defendant is prevented thereby from exercising a peremptory challenge to another juror whom he desired to challenge. Marsh v. Commonwealth, Ky., 743 S.W.2d 830 (1988); Rigsby v. Commonwealth, Ky., 495 S.W.2d 795 (1973). This is true because a defendant should not be required to waste his peremptory challenges on jurors who should have been excused for cause.

The appellant challenged Juror Veech for cause. The challenge was denied, and appellant exercised a peremptory challenge upon him. There were other jurors as to whom his challenges for cause were denied and who actually sat upon the jury because he had exhausted his peremptory challenges. It is apparent he would have exercised a peremptory upon at least one of them if he had not been forced to use his last peremptory upon Juror Veech.

In pretrial examination Juror Veech testified as follows:

"Mr. McNally: Mr. Veech, I think it is my turn. I need to ask you in a little bit of privacy about two subjects. The first is, why don't you tell the judge and the rest of us here what you think about the death penalty.

"Mr. Veech: I think there should be a death penalty.

"Mr. McNally: Good. Can you tell me why?

"Mr. Veech: Well, I figure that when somebody takes somebody's life like that, that they should pay for it.

"Mr. McNally: Do you feel strongly about that?

"Mr. Veech: Yes.

"Mr. McNally: Do you feel that this country should use it more often?

"Mr. Veech: Yes, I do.

"Mr. McNally: Do you feel that is true, that somebody intentionally, and I am not talking about self-defense or something where there is a fight, but intentional murders, do you feel that the death penalty is an appropriate punishment for taking another life intentionally?

"Mr. Veech: Yes, I do.

"Mr. McNally: Let me explain to you the statute a little more than we did yesterday and Bill will correct me if I misstate it. Somebody is killed. Somebody is accused of murder and there is a trial. The jury comes back and convicts them of intentional murder, all right, not manslaughter or something else. Sometimes in those intentional murders, the Legislature says, can be death penalty possibilities. A couple of examples would be murder during an armed robbery or during a rape. One of those statutory things is the intentional killing of a correctional officer in the course of his duties. That is why we are asking these questions. If this jury should convict Fred of the intention (sic) murder of a correctional officer in the course of his duties, then there is a second side of the trial, and there can be evidence presented by either side. The jury then has a lot of choices. They can go 20 years, they can go all of the way to the death penalty. They have a lot of freedome (sic), okay? What I am hearing you...

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64 practice notes
  • Dunlap v. Commonwealth, 2010-SC-000226-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • June 20, 2013
    ...the full range of penalties. While a juror is disqualified if he or she cannot consider the minimum penalty, Grooms v. Commonwealth, Ky., 756 S.W.2d 131 (1988), excusal for cause is not required merely because the juror favors severe penalties, so long as he orPage 62she will consider the f......
  • Morgan v. Commonwealth, No. 2003-SC-0489-MR (Ky. 5/18/2006), No. 2003-SC-0489-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • May 18, 2006
    ...766 S.W.2d 58, 60 (Ky. 1989) (failure to excuse for cause jurors who would only consider the death penalty); Grooms v. Commonwealth, 756 S.W.2d 131, 138 (Ky. 1988) (failure to excuse for cause juror who would not consider full range of penalties); Marsch v. Commonwealth, 743 S.W.2d 830, 831......
  • Meece v. Commonwealth, 2006-SC-000881-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • June 16, 2011
    ...range of penalties. While a juror is disqualified if he or she cannotPage 138consider the minimum penalty, Grooms v. Commonwealth, Ky., 756 S.W.2d 131 (1988), excusal for cause is not required merely because the juror favors severe penalties, so long as he or she will consider the full rang......
  • Caudill v. Commonwealth of Kentucky, 2000-SC-0296-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • June 12, 2003
    ...which death is an authorized penalty. That proposition first entered our jurisprudence via obiter dictum in Grooms v. Commonwealth, Ky., 756 S.W.2d 131, 137 (1988). Grooms anticipated the holding in Morgan, supra, by holding that it was reversible error not to excuse for cause a juror who "......
  • Request a trial to view additional results
64 cases
  • Dunlap v. Commonwealth, 2010-SC-000226-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • June 20, 2013
    ...the full range of penalties. While a juror is disqualified if he or she cannot consider the minimum penalty, Grooms v. Commonwealth, Ky., 756 S.W.2d 131 (1988), excusal for cause is not required merely because the juror favors severe penalties, so long as he orPage 62she will consider the f......
  • Morgan v. Commonwealth, No. 2003-SC-0489-MR (Ky. 5/18/2006), No. 2003-SC-0489-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • May 18, 2006
    ...766 S.W.2d 58, 60 (Ky. 1989) (failure to excuse for cause jurors who would only consider the death penalty); Grooms v. Commonwealth, 756 S.W.2d 131, 138 (Ky. 1988) (failure to excuse for cause juror who would not consider full range of penalties); Marsch v. Commonwealth, 743 S.W.2d 830, 831......
  • Meece v. Commonwealth, 2006-SC-000881-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • June 16, 2011
    ...range of penalties. While a juror is disqualified if he or she cannotPage 138consider the minimum penalty, Grooms v. Commonwealth, Ky., 756 S.W.2d 131 (1988), excusal for cause is not required merely because the juror favors severe penalties, so long as he or she will consider the full rang......
  • Caudill v. Commonwealth of Kentucky, 2000-SC-0296-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • June 12, 2003
    ...which death is an authorized penalty. That proposition first entered our jurisprudence via obiter dictum in Grooms v. Commonwealth, Ky., 756 S.W.2d 131, 137 (1988). Grooms anticipated the holding in Morgan, supra, by holding that it was reversible error not to excuse for cause a juror who "......
  • Request a trial to view additional results

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