Marsch v. Com.

• Decision Date: 24 September 1987
• Docket Number: No. 86-SC-434-MR,86-SC-434-MR
• Citation: 743 S.W.2d 830
• Parties: Robert David MARSCH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 830

743 S.W.2d 830

Robert David MARSCH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 86-SC-434-MR.

Supreme Court of Kentucky.

Sept. 24, 1987.

Modified Jan. 21, 1988.

Robert Cetrulo, Jr., Appellate Public Advocate, Covington, for appellant.

David L. Armstrong, Atty. Gen., Daniel E. Cohen, Asst. Atty. Gen., Frankfort, for appellee.

LAMBERT, Justice.

This is a matter of right appeal from the judgment of the Hancock Circuit Court sentencing appellant to sixty-five years imprisonment upon his conviction of murder and arson. The principal claim of error concerns jury selection.

Appellant contends that the trial court abused its discretion in failing to sustain his motions to excuse certain prospective jurors for cause. He argues that as a result of the trial court's error in this respect, he was required to exhaust his peremptory challenges to eliminate as many unqualified jurors as possible, but was nevertheless unable to eliminate all prospective jurors who should have been excused for cause. He further argues that this resulted in the de facto denial of peremptory challenges.

Appellant specifically contends that ten prospective jurors were disqualified by reason of a "close relationship" with the victim or his family, by reason of a newspaper story published during jury selection and earlier newspaper accounts published shortly after the crime occurred, by reason of a blurted-out statement by a prospective juror, or by reason of the prosecutor's definition of reasonable doubt during the in camera voir dire examination of a prospective juror.

The record reveals that appellant moved the court to excuse each of the ten prospective jurors for cause, that his motion as to each was overruled, and that he subsequently exercised all of his peremptory challenges to remove eight of the ten from the panel. Appellant's practice satisfied the requirement that peremptory challenges must be exhausted before complaint may be heard concerning jury selection. See Rigsby v. Commonwealth, Ky., 495 S.W.2d 795 (1973) and Calvert v. Commonwealth, Ky.App., 708 S.W.2d 121 (1986). It is apparent that appellant desired to excuse all of the ten prospective jurors and would have done so but for the unavailability of additional peremptory challenges. Two jurors who were challenged for cause actually served upon the jury because appellant's peremptories had been exhausted and he could not excuse them. If any one of the jurors he unsuccessfully challenged for cause and had to excuse by peremptory should have been excused for cause, the error of the court in not excusing that juror resulted in appellant's having to needlessly use a peremptory challenge. He was therefore deprived of the ability to use that peremptory challenge to strike either of the two jurors who sat on the panel whom he would otherwise have stricken peremptorily. Therefore, if the trial court erred in overruling his motion to excuse any one of the ten for cause, appellant's right to challenge peremptorily was infringed and we must review his claims of error on the merits.

During that portion of voir dire examination which took place in open court, one prospective juror commented that he had served on a jury which had previously convicted appellant of another offense. Defense counsel moved the court to dismiss the entire panel and this motion was overruled, but the juror who made the comment was excused. The panel was then discharged for the evening. The next morning, the Owensboro Messenger and Inquirer, a newspaper of wide circulation in Hancock County, published an article which appeared under the headline "Marsch Trial Halted Temporarily." The article disclosed that "Court records show Marsch was convicted on March 26, 1984, for manufacturing less than eight (8) ounces of marijuana, a misdemeanor. He was sentenced to one hundred and twenty (120) days in prison." The statement made in open court and the Owensboro newspaper article prompted the court to order completion of voir dire in camera.

When voir dire examination was resumed, a prospective juror, Mary Baker testified that she had read several newspaper articles concerning the crimes, had seen photographs of the burned car, and had heard the blurted-out statement in open court and understood it to be in reference to the appellant. She said: "It seemed they had a lot of evidence (against Marsch).... At first (I) thought that he probably was (guilty)." This prospective juror also testified that her husband was a deputy coroner in Hancock County and that she had discussed the case with him. The trial court overruled the motion to excuse this juror for cause, but she was removed by appellant's peremptory challenge.

Prospective juror J.K. Kennedy heard and understood the blurted-out statement in open court. His wife and the murder victim were second cousins and he went to the funeral home to express his condolences to the victim's family. He also testified that he had known the victim since he was a teenager and had worked with him in church. The trial court overruled the motion to excuse this juror for cause, but he was removed by appellant's peremptory challenge.

Prospective juror Florence Brandell testified that she had read several newspaper articles concerning the crime, that her husband is a third cousin to the victim, and that she went to the funeral home to express her sympathy to the family. The trial court overruled the motion to excuse this juror for cause, but she was removed by appellant's peremptory challenge.

Prospective juror James D. Gabbard testified that he had read the newspaper article relating to appellant's past conviction and had read several earlier newspaper articles concerning the crime. He also testified that he had discussed the case with Mr. Driskill, a person who was scheduled to testify for the Commonwealth. He stated that he and Driskill had expressed opinions about the guilt or innocence of appellant. When asked his opinion as to whether or not appellant was guilty, he said: "I have my doubts one way or the other. One time maybe he was guilty and maybe he wasn't guilty." The trial court overruled the motion to excuse this juror for cause, but he was removed by appellant's peremptory challenge.

Four other prospective jurors against whom motions were made and overruled testified that they had read the newspaper articles, or discussed the case, or were acquainted with the victim or members of his family. These persons were likewise removed by appellant's peremptory challenges.

Prospective juror Diane Carter was present when the blurted-out statement was made in open court, but she did not understand it to have any reference to appellant. She did not read the newspaper article which disclosed appellant's past conviction, but had read earlier newspaper articles about the crime and remembered some of the facts as reported. When asked if she had discussed the case with anyone, she testified that a girlfriend with whom she worked had discussed the case with her and expressed the opinion that appellant was guilty. She also overheard two other prospective jurors discussing the case, one of whom said he thought appellant would "plead insanity." The trial court overruled the motion to excuse this juror for cause and she was seated on the jury.

Finally, prospective juror Edward Kirk appeared to be fully qualified. During voir dire examination, however, and over objections which were made and overruled, the attorney for the Commonwealth engaged at length in a discussion of reasonable doubt. He asked Kirk if he equated "beyond a shadow of a doubt" with "reasonable doubt." He provided an example using himself as a hypothetical witness to an accident and suggested to the prospective juror that his hypothetical testimony would satisfy the "reasonable doubt" standard, but might not eliminate any possibility of doubt. Finally, the attorney for the Commonwealth explained that there was a significant distinction between being convinced beyond a reasonable doubt and being convinced beyond all or a shadow of a doubt. The trial court overruled appellant's motion to excuse this juror for cause and he was seated on the jury.

In addition to the voir dire testimony summarized herein, all of the prospective jurors also testified in substance that they could disregard any knowledge or opinions which they may have had and decide the case solely on the evidence presented in court.

In Ward v. Commonwealth, Ky., 695 S.W.2d 404 (1985), this Court held that the existence of a "close relationship" was sufficient to require the court to sustain a challenge for cause and excuse the juror. We quoted with approval from Commonwealth v. Stamm, 286 Pa.Super. 409, 429 A.2d 4, 7 (1981) as follows:

[I]rrespective of the answers given on voir dire, the court should presume the likelihood of prejudice on the part of the prospective juror because the potential juror has such a close relationship, be it familial, financial or situational, with any of the parties, counsel, victims or witnesses.

In Ward, we concluded:

Once that close relationship is established, without regard to protestations of lack of bias, the court should sustain a challenge for cause and excuse the juror. We have no fault to find in regard to the ex-brother-in-law or even the distant cousin and we trust that, under this statement of principle, no uncles will survive the challenge for cause on retrial.

In the case at bar, two members of the prospective jury panel who were not excused for cause were married to persons who were second or third cousins of the victim. In addition, these prospective...