Hicks v. Com.

• Decision Date: 07 December 1990
• Docket Number: No. 89-CA-750-MR,89-CA-750-MR
• Citation: 805 S.W.2d 144
• Parties: Christopher Lynn HICKS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

Page 144

805 S.W.2d 144

Christopher Lynn HICKS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 89-CA-750-MR.

Court of Appeals of Kentucky.

Dec. 7, 1990.

Discretionary Review Denied

by Supreme Court April 3, 1991.

Christopher L. Hicks, La Grange, pro se.

Frederic J. Cowan, Atty. Gen., Gerald Henry, Asst. Atty. Gen., Frankfort, for appellee.

Before EMBERTON, HOWARD and REYNOLDS, JJ.

REYNOLDS, Judge.

This is an appeal from a judgment of McCracken Circuit Court convicting appellant of complicity to second-degree arson and of first-degree wanton endangerment for which he was sentenced to ten years' imprisonment.

Appellant, Christopher Lynn Hicks, was indicted on one count of complicity to second-degree arson, one count of burning personal property to defraud an insurer, and one count of first-degree wanton endangerment. The indictment charged an accomplice, David Lynn Crayton, with second-degree arson and with first-degree wanton endangerment. Appellant was alleged to have conspired with Crayton on September 9, 1986, to burn a building known as Club Cabana, a nightclub business operated by appellant in Paducah, Kentucky. Separate trials were granted. Appellant's case was tried first and the jury returned a verdict finding appellant guilty of complicity to second-degree arson, and guilty of first-degree wanton endangerment. A verdict of not guilty of attempted burning of personal property to defraud an insurer was returned.

In this appeal, appellant presents seven assignments of error. He first contends that the trial court erred by overruling a motion for a change of venue and to empanel a new jury. Basis for the motion was the fact that the jury panel that was chosen to try him was drawn from the same pool of jurors that had previously convicted the co-indictee, David Crayton, on a charge of growing marijuana. Appellant further alleges that the trial court abused its discretion in failing to strike certain jurors for cause even though they indicated that they could possibly be biased against appellant and his attorney.

There can be no doubt that in a criminal prosecution, a defendant has the right to a trial by an impartial and unbiased jury. Butler v. Commonwealth, Dept. of Highways, Ky., 387 S.W.2d 867 (1965). This right is guaranteed by the Sixth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment and is further guaranteed by Sec. 11 of the Kentucky Constitution. RCr 9.36(1) also provides: "When there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence, he shall be excused as not qualified."

Normally, bias and impartiality are determined on voir dire. Jurors may then be dismissed for cause or on peremptory challenges. A trial court is vested with a certain amount of discretion in determining whether a prospective juror shall be permitted to serve on a particular jury. Absent an abuse of that discretion, the trial court's determination will not be reversed on appeal. Scruggs v. Commonwealth, Ky., 566 S.W.2d 405 (1978); Jones v. Commonwealth y.App., 737 S.W.2d 466 (1987). To obtain a reversal of a judgment based on failure of a trial court to grant a challenge for cause, prejudice from the failure to strike the challenged juror must be shown. Prejudice is not demonstrated unless the party challenging the juror is forced to exercise all of his peremptory challenges. Commonwealth, Dept. of Highways v. Ginsburg, Ky., 516 S.W.2d 868 (1974); Rigsby v. Commonwealth, Ky., 495 S.W.2d 795 (1973).

Herein, appellant claims he was denied a fair trial by an impartial jury because even after he had used all peremptory challenges to strike some of the jurors he thought were personally biased against him or his attorney, the jury panel still contained three jurors that he felt were prejudiced against him. He asserts that at least some of these biased jurors should have been struck for cause by the trial court. We do not agree.

Bias and preconceived ideas must be adequately proven by the party alleging it and cannot be presumed. Caldwell v. Commonwealth, Ky., 634 S.W.2d 405 (1982); Watson v. Commonwealth, Ky., 433 S.W.2d 884 (1968). Such biases and prejudices may be as a result of a connection to the case, parties or attorneys and must be determined by the trial court based on the particular facts of each case. Randolph v. Commonwealth, Ky., 716 S.W.2d 253 (1986); Tayloe v. Commonwealth, Ky., 335 S.W.2d 556 (1960).

Even where jurors disclaim any bias and state that they can give the defendant a fair trial, conditions may be such that their connection would probably subconsciously affect their decision in the case. Randolph v. Commonwealth, supra. To empanel a totally unbiased jury, it is vital in a criminal prosecution that any and all doubts as to the competency of a juror be resolved in favor of the defendant. Randolph v. Commonwealth, supra; Godsey v. Commonwealth, Ky.App., 661 S.W.2d 2 (1983).

Upon review we cannot find where appellant has shown actual or implied bias or prejudice resulting from the failure of the trial court to strike the challenged jurors for cause. There is a void of evidence to demonstrate prejudice to his substantial rights to a fair and impartial trial. To hold that the mere existence of a possible preconceived bias as to appellant's co-indictee Crayton, is by itself, without more, insufficient to rebut the presumption of prospective jurors' fairness and impartiality.

All of the challenged jurors that were not struck for cause by the trial court indicated during voir dire that they could set aside any possible notions or biases and render a fair and impartial decision. It is always sufficient if such jurors can lay aside their preconceived biases, impressions and opinions and render a verdict based solely on the evidence presented in court. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Peters v. Commonwealth, Ky., 505 S.W.2d 764 (1974). We specifically find no error in the failure of the court to excuse juror Hussman for cause even though she stated that she had taken offense to some of the comments made by appellant's trial counsel during voir dire. Her answers to other questions demonstrated that she could render a fair and impartial decision. Therefore, under the facts presented in this case, we do not find that the rulings made by the trial court with respect to excusing the challenged jurors to be an abuse of discretion. We further conclude that since voir dire examination did not provide any evidence of a clear and substantial bias by the prospective jurors against appellant because of his connection with co-indictee Crayton, the court's decision to overrule appellant's motion for a change of venue and to empanel a new jury was not clearly erroneous.

Next, appellant argues that the trial court erred by overruling his motion for a directed verdict of acquittal based on the fact that there was insufficient evidence to convict him of complicity to second-degree arson. He asserts that in order to find him guilty of this offense according to the instructions submitted to the jury, the jury had to believe "that David Crayton started the fire intentionally" at the Club Cabana building. Appellant claims that the Commonwealth, however, failed to prove this particular element of the offense beyond a reasonable doubt at trial.

We are not required to address the specific merits of this issue since our review of the record indicates that it was not preserved for review. While the record reflects the fact that appellant did move for a directed verdict at both the close of the Commonwealth's case and at the close of all the evidence, in both instances, he merely asserted that there was insufficient evidence as to each and every charge pending against him to submit the case to the jury. No specific mention was made concerning a lack of evidence as to any particular element of any of the charges including a claim of insufficient evidence that Crayton started the fire intentionally under the complicity to second-degree arson count. The record further demonstrates that when given an opportunity by the trial court to present objections to the proposed jury instructions tendered by the Commonwealth and ultimately adopted by the court, appellant's counsel failed to voice any complaint to the instruction on the complicity charge. The trial court was never given an opportunity to address the question of whether there was a lack of evidence on this particular element of the offense. Therefore, since no specific objection was made by appellant to the element in either of his motions for a directed verdict or in his objections to the jury instructions, it may not be raised for the first time on appellate review. Anastasi v. Commonwealth, Ky., 754 S.W.2d 860 (1988); McDonald v. Commonwealth, Ky., 554 S.W.2d 84 (1977).

In appellant's third assignment of error, he states that the trial court erred in failing to require the Commonwealth to produce the statements of two of its witnesses, Mark Hobbs and Darold Edwards. He specifically alleges that the Commonwealth failed to provide him with any of the statements made by Hobbs and produced a prior written statement of Edwards in an untimely fashion only after Edwards had already testified on direct examination. Appellant contends that this failure to produce the witness statements constitutes a violation of Criminal Rule 7.26 and requests that this Court vacate his convictions and remand the case for a new trial.

In this case, the Commonwealth had adopted an "open file" policy which allowed the appellant and his counsel to have full access to all of the state's evidence relevant to the case. Thereby, through this policy of open file discovery, the Commonwealth had apparently provided appellant with all or practically all evidence of the case except for one ten page statement written by Mr. Edwards before the...