McGaha v. Commonwealth

• Decision Date: 26 September 2013
• Docket Number: No. 2012–SC–000155–MR.,2012–SC–000155–MR.
• Citation: 414 S.W.3d 1
• Parties: Jeffrey D. McGAHA, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

414 S.W.3d 1

Jeffrey D. McGAHA, Appellant

v.COMMONWEALTH of Kentucky, Appellee.

No. 2012–SC–000155–MR.

Supreme Court of Kentucky.

June 20, 2013.

As Modified Sept. 26, 2013.

W. Currie Milliken, Wesley Vernon Milliken, Bowling Green, KY, for appellant.

Jack Conway, Attorney General, Jeffrey Allan Cross, Assistant Attorney General, for appellee.

Opinion of the Court by Justice VENTERS.

Appellant, Jeffrey D. McGaha, appeals from a judgment of the Adair Circuit Court convicting him of murder and sentencing him to twenty years' imprisonment. Appellant makes these arguments in support of reversing his conviction: (1) one of the jurors failed to disclose during voir dire that she was a Facebook “friend” of the victim's wife; (2) the jury improperly considered penalty issues during the guilt phase deliberations; and (3) that on four separate occasions, the trial court improperly excluded evidence relevant to Appellant's belief that his use of force in self-defense was necessary. For the reasons stated below, we affirm the Judgment of the Adair Circuit Court.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant and the victim, Mike Cowan, were neighbors in a rural part of Adair County. The evidence presented at trial by the Commonwealth indicated that the relationship between Appellant and Cowan was marred by a series of disputes. The most recent difficulty was over a light on Appellant's storage building that shone onto Cowan's property and annoyed him. Cowan retaliated by shining spotlights at Appellant's residence. On the evening before the fatal incident, Appellant complained to the police about the spotlights. When police officers arrived at the scene in response to that complaint, Cowan and his wife became belligerent. They were arrested and taken to jail.

The following afternoon, after his release from jail, Cowan visited a neighbor's residence on his ATV. As Cowan returned home, Appellant, driving in his car, saw him and steered directly into his ATV without braking. The impact knocked Cowan off the ATV. As a result of the blow from Appellant's vehicle, Cowan suffered severe blunt force trauma which alone would have been fatal. After the collision, however, while Cowan was lying on the ground, Appellant approached him and delivereda second fatal injury by shooting him in the head with a shotgun.

Appellant was indicted for murder. At trial, Appellant admitted that he killed Cowan, but claimed that he was acting in self-defense. In support of that claim, Appellant presented evidence of Cowan's threats, harassment, and intimidation directed toward Appellant and members of his household. Appellant also alleged that shortly before the fatal incident, Cowan had pointed a gun at Appellant and gestured, as if he was pretending to shoot at Appellant. Appellant saw Cowan place the gun on his ATV, and ride it over to the neighbor's residence. Appellant testified that he followed Cowan to speak with him, and that he took his shotgun for protection. Appellant said that when he encountered Cowan on his ATV, Cowan aimed his gun at Appellant. Fearing that he would be shot, Appellant drove his car into Cowan's ATV. After the collision, Appellant claims he got out of his car with his shotgun, and demanded that Cowan show his hands. According to Appellant, Cowan then said, “I'm still going to fucking kill you.” Believing that Cowan was reaching for his gun, Appellant shot him in the head.

The jury, rejecting Appellant's self-defense claim, convicted him of murder and recommended a sentence of twenty years' imprisonment. The trial court entered final judgment consistent with the jury's verdict and sentencing recommendation. Appellant's post-judgment motions for judgment notwithstanding the verdict and for a new trial were denied. This appeal followed.

II. THE FAILURE OF A JUROR TO DISCLOSE SOCIAL MEDIA RELATIONSHIP WITH THE VICTIM'S WIFE

Appellant first contends that he is entitled to a new trial because one of the jurors who served on his trial, “Juror 234”, failed to disclose during voir dire that she was a Facebook “friend” of the victim's wife, Charlene Cowan. Before the voir dire examination began, the trial court instructed the members of the jury panel who were not among the first panel of thirty-two jurors selected for examination to remain in the courtroom, and listen to the questions being asked of the prospective jurors so that they could later respond to those same questions in the event they were added to the panel. Juror 234 was not among the first set of thirty-two potential jurors seated for the voir dire examination at Appellant's trial. About four hours into the jury selection process and after a lunch break, Juror 234 was called to join the panel undergoing the voir dire examination.

After being seated among the jury panel, Juror 234 was directly asked by the trial court if she was related to anyone involved in the case. She responded that she was not. The following discussion then occurred:

Trial Court: Do you know any of these folks?

Juror 234: I know some of the Cowan family, not close but I do know them.

Trial Court: How would you describe your relationship to them?

Juror 234: Casual.

The juror also disclosed that she worked with the victim's nephew, and in response to the trial court's inquiry about whether she had heard about the case, she stated, “just [through] the news.” She also said that she had no opinion about the case. During questioning by the prosecutor, Juror 234 disclosed that she had worked with the victim's former wife several years before the trial. The prosecutor asked if this would cause any positive or negative feelingsabout the victim, and the juror stated that it would not.

The following exchange occurred during defense counsel's voir dire examination of Juror 234:

Defense Counsel: You've heard all the questions I've asked. Has anything that I've asked, would you have given any different answer than anybody, the other members of the panel?

Juror 234: No.

Defense Counsel: You have no opinion about this case whatsoever; you've got a clean slate what we're talking about?

Juror 234: As clean as it can be, I think.

Defense Counsel: Thank you.

No one asked Juror 234 about any social media relationship she may have with any of the participants in the case. Juror 234 was not challenged for cause by either side, and she was eventually seated on the jury to try the case.

After the trial, Appellant learned that Charlene Cowan was one of Juror 234's 629 Facebook “friends.” Appellant, in support of his motion for a new trial, asserted the juror's failure to disclose this social media association. The trial court denied Appellant's motion.

On appeal, Appellant argues that having Charlene Cowan, the victim's wife, as a Facebook friend “rendered [Juror 234] an impermissible member of the jury panel.” Appellant contends that if Juror 234 had disclosed that association with Mrs. Cowan, he would have moved to strike her for cause, and if she was not stricken for cause, then he would have used a peremptory strike against her. He describes Juror 234's failure to disclose the relationship as a “failure to uphold her duty to be forthcoming and truthful” and as a “clear instance of juror misconduct.”

“As a general rule, anything which is good cause for challenge for disqualification of a prospective juror is deemed good cause for a new trial if not known or discoverable to the defendant or his counsel before the verdict and they were misled by a false answer on voir dire.” Combs v. Commonwealth, 356 S.W.2d 761, 764 (Ky.1962).¹ “Basically, the consideration is whether the rights of the accused have probably been prejudiced by concealed impartiality [sic].” Id. Thus, if Appellant is correct in his argument that Juror 234 improperly failed to disclose a disqualifying relationship, then his motion for a new trial based upon the post-trial discovery of that disqualification would be well-taken.

In support of his claim that the trial court erred by failing to grant a new trial, Appellant relies primarily upon the initial voir dire questions directed to the original thirty-two members of the venire concerning whether they knew Appellant, the victim, or their families. None of those questions specifically inquired about social media relationships. However, as shown by the voir dire discussion transcribed above, Juror 234 was specifically asked if she knew “any of these folks.” A simple “yes” or “no” would have been a properly responsive answer, but Juror 234 forthrightly disclosed that she knew “some of the Cowan family” and that her association with them was “casual.”

Although succinct, her answers were responsive to the questions and truthful. We see in the record no indication that Juror 234 was attempting to conceal the social media relationship, or that she was in any way deceptive. Moreover, by her acknowledgment that she casually knew some of the Cowan family, Appellant was given an unfettered invitation to inquire further. He could have asked: “Which members of the Cowan family do you know?” Then, he could have followed up with other questions allowing him to discover the depth and scope of her acquaintances within the Cowan family. But, Appellant declined to do so.

While the parties have the right to assume that the answers given by potential jurors are complete, candid and truthful, we cannot expect potential jurors to appreciate the nuances of potentially disqualifying relationships, and volunteer answers to the questions that counsel failed to ask. Juror 234 manifestly did not give a false answer regarding her Facebook relationship with the victim's wife. If her casual relationship with some members of the Cowan family was cause for concern for any party, it was incumbent upon that party, not the juror, to delve more deeply into the matter. We see no misconduct on the part of Juror 234.

Moreover, the post-trial revelation that Charlene Cowan and Juror 234 were Facebook friends does not...