Mcdaniel v. Commonwealth of Ky.

• Decision Date: 16 June 2011
• Docket Number: No. 2009–SC–000443–MR.,2009–SC–000443–MR.
• Citation: 341 S.W.3d 89
• Parties: Nathan McDANIEL, Jr., Appellant,v.COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

341 S.W.3d 89

Nathan McDANIEL, Jr., Appellant,

v.COMMONWEALTH of Kentucky, Appellee.

No. 2009–SC–000443–MR.

Supreme Court of Kentucky.

June 16, 2011.

Linda Roberts Horsman, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.Jack Conway, Attorney General of Kentucky, Perry Thomas Ryan, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.Opinion of the Court by Justice SCOTT.

This is another case where we must reverse due to a trial court's reluctance to strike a juror for cause, necessitating the loss of two of Appellant's peremptory strikes. Equivocation, on such an essential issue as impartiality is simply not sustainable. Paulley v. Commonwealth, 323 S.W.3d 715, 721 (Ky.2010) (finding error where “[t]he last word on this crucial subject was the juror's honest-seeming expression of doubt about her ability to be fair and impartial.”); See also Shane v. Commonwealth, 243 S.W.3d 336, 338 (Ky.2008).

Appellant, Nathan McDaniel, Jr., was convicted of murder arising from the beating death of Gerald Sizemore. It was uncontroverted at trial that a fight broke out at the home of Johnny Sizemore in the late hours of August 18, 2007. Gerald, who is not related to Johnny, was at Johnny's home drinking, along with Eugene Sizemore, Johnny's brother. According to Eugene, he eventually passed out on Johnny's couch after hours of drinking and ingesting prescription drugs. He awoke some time later to find Gerald on top of Johnny, beating him.

Eugene, who was physically frail due to a recent surgical procedure, ran to his mother's nearby home for assistance. He awoke Michael Sizemore, his nephew, and Appellant, his brother-in-law, both of whom were staying the night at Eugene's mother's home. The three returned to Johnny's house to find that the fight had ended. Gerald was standing on the porch. Eugene testified that Appellant, without provocation, tackled Gerald and dragged him off the porch. Johnny, Michael, and Appellant continued to beat Gerald with their fists, a stick, and a metal pipe. At trial, Eugene testified that Appellant hit Gerald in the head with the metal pipe, though in a prior statement to police he identified Michael as the person inflicting that blow. Johnny, in a recorded statement to police, admitted striking Gerald with a glass ashtray and corroborated Eugene's statement that Michael and Appellant relentlessly beat Gerald, even after he was lying on the ground.

Eugene eventually convinced the men to stop the beating and helped Gerald into his car. As Gerald drove away, he threatened the men, which prompted Appellant to use the metal pipe to knock a hole in the car window. Gerald drove home, in the process hitting several utility poles and a neighbor's car. When he arrived home, his adult children did not recognize him because he was so badly beaten. Police were called and Gerald was eventually airlifted to UK Medical Center. Physicians found a subdural hematoma and a tearing of brain tissue due to a serious head injury. Gerald was pronounced brain dead and later removed from life support. He died on August 19, 2007.

Police investigation of the fight eventually led to the indictment of Johnny Sizemore, Eugene Sizemore, Michael Sizemore, and Appellant on charges of murder and complicity to commit murder. Eugene entered into a plea agreement in exchange for his testimony against Appellant. Johnny and Michael were tried and convicted of murder. See John Sizemore v. Commonwealth, No. 2008–SC–000562–MR, 2009 WL 4251685 (Ky. Nov. 25, 2009). Appellant was similarly tried and convicted of murder and the trial court imposed a sentence of imprisonment for a term of thirty years. From this conviction, he appeals as a matter of right. Ky. Const. § 110(2)(b).

Jury Selection

Appellant first argues that the trial court erred in failing to strike two jurors for cause. The issue is properly preserved for appellate review by defense counsel's motions to strike.¹ Ultimately, defense counsel struck the two jurors using peremptory challenges. Finding error, we reverse.

Kentucky law holds that a trial court's decision on whether to strike a juror for cause rests in the sound discretion of the trial court. Adkins v. Commonwealth, 96 S.W.3d 779 (Ky.2003); Pendleton v. Commonwealth, 83 S.W.3d 522 (Ky.2002). In making such a determination, the court must weigh the probability of bias or prejudice based on the entirety of the juror's responses and demeanor. Shane, 243 S.W.3d at 338. Where the trial court determines that a juror cannot be impartial, RCr 9.36 requires a judge to excuse that juror. RCr 9.36 is mandatory, and provides no room for a trial court to seat a juror who demonstrates his or her inability to be fair.² Generally, the impartiality of a juror manifests itself as a state of mind, and not simply through the juror's responses to questioning, although that possibility certainly exists. United States v. Wood, 299 U.S. 123, 57 S.Ct. 177, 81 L.Ed. 78 (1936); Pennington v. Commonwealth, 316 S.W.2d 221 (Ky.1958). Indeed, a juror may indicate that he or she can be impartial, but may demonstrate a state of mind to disprove that statement “by subsequent comments or demeanor so substantially at odds that it is obvious the [trial court] has abused [its] discretion in deciding the juror is unbiased.” Shane, 243 S.W.3d 336, 338. In contrast, an individual may flatly and blatantly demonstrate his inability to be impartial and fair, and “no magic question” can rehabilitate his impartial state of mind. Id.

In Shane, we held that the failure to strike a clearly biased juror for cause, necessitating the use of a peremptory strike to ensure an unbiased jury, is the denial of a substantial right. 243 S.W.3d at 340. There, we held that a trial court abuses its discretion when it seats a juror who “indicated a probability that he could not enter the trial giving both sides a level playing field.” Id. at 338. Likewise, in Paulley, we again found reversible error where a trial court seated a juror who was equivocal with regard to her ability to be fair and impartial. 323 S.W.3d 715, 721. In that case, we noted:

[F]ar more troubling is the fact that prospective juror ... was unable to disclaim any bias.... In fact, she stated she might not be able to put out of her mind the fact that her son was a victim of an armed robbery. When asked directly whether she could be fair and impartial, the juror stated she was not sure.

....

The last word on this crucial subject was the juror's honest-seeming expression of doubt about her ability to be fair and impartial.

Id. (emphasis added). With these principles in mind, we turn to the case at bar.

On voir dire, juror S.W. informed counsel and the court that she had worked with the Gerald's wife, Bobbie, at the Clay County Board of Education. When asked by the trial court whether this would make her tend to favor one side over the other, she replied it was “hard to say.” Counsel for Appellant pointed out that Manchester is a small town and that S.W. likely knew about the case since Bobbie had also been charged that night.³ Although she stated that she had not yet formed an opinion about the case, she acknowledged she knew about it from the paper “and stuff.” Thus, S.W. clearly had knowledge about the crime and the people involved and her manner made it clear that she was very uncomfortable with the notion of serving on this jury. When later asked whether she would base her verdict only on the evidence shown at trial, she answered, “I guess.”

Juror A.W. acknowledged having worked years ago with the decedent, who had retired from the Clay County Board of Education. When asked if this relationship might affect his deliberations and verdict, he replied it was “hard to say.” He acknowledged, however, that the victim was “a good fellow to work with” who “acted a fool a lot.” He also indicated that he was a deacon of the church and this would also affect his deliberations, as he had problems “sitting in judgment” of others. In a particularly telling exchange, A.W. was asked and answered:

Defense Counsel: And my concern, representing Mr. McDaniel, and this is a man you said you worked with?

[A.W.]: Yes, yes.

Defense Counsel: And you said you worked with him. You sound like you liked him.

[A.W.]: Yeah, yeah.

Defense Counsel: And I'm just asking, is that something where we kind of start off with a disadvantage?

[A.W.]: Could. Could be, you know. I want to be honest about it, you know.

Defense Counsel: I understand. That's why Mr. Gregory's here. Sometimes jury service means that you shouldn't, if you have that type of feeling, I understand that.

[A.W.]: Yeah, yeah.

Defense Counsel: Judge, with all due respect to [A.W.], I'm going to move to strike him for cause because I understand working with a fellow, and liking a fellow, that long, and having this type of situation, it's very emotional, and I'm afraid that it will bring back emotions in him and that's just human nature.

[A.W.]: Yeah, yeah.

Defense Counsel: So I move to strike him [for cause].

Counsel for Appellant also moved to strike S.W. for cause. Both strikes, however, were denied.

Thus, the defense was forced to use one of its peremptory strikes to strike S.W., who had worked with the victim's wife, and another to strike A.W. who had worked with the victim, and liked him—neither of whom could say unequivocally that they could be fair and impartial in their deliberations; just “I guess” and “it's hard to say,” and as to A.W., when asked if the defense was starting off at a disadvantage, “[c]ould be, you know. I want to be honest about it, you know.” Given the equivocal responses provided by A.W. and S.W. in this case, we hold that the trial court abused its discretion when it overruled Appellant's motion to strike them for cause.

The failure to strike a clearly biased juror for cause, necessitating the use of a peremptory strike to ensure an...