Morgan v. Commonwealth, No. 2003-SC-0489-MR (Ky. 5/18/2006)

Decision Date18 May 2006
Docket NumberNo. 2003-SC-0489-MR.,No. 2002-CR-0080.,2003-SC-0489-MR.,2002-CR-0080.
PartiesDarryl Wayne MORGAN, Appellant v. COMMONWEALTH of Kentucky Appellee.
CourtUnited States State Supreme Court — District of Kentucky

Appeal from Ballard Circuit Court, Honorable William Lewis Shadoan, Judge

Emily Holt Rohrer, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Gregory D. Stumbo, Attorney General of Kentucky, Tami Allen Stetler, Assistant Attorney General, Criminal Appellate Division, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.


Appellant, Darryl W. Morgan, was convicted in the Ballard Circuit Court of first-degree burglary, second-degree stalking, two counts of kidnapping, first-degree sexual abuse, terroristic threatening, and first-degree criminal trespass. He was sentenced to a total of thirty-five years imprisonment and appeals to this Court as a matter of right. For the reasons hereafter set out, we affirm all of Appellants convictions, except the conviction for second degree stalking, which we hereby reverse and remand for entry of an amended judgment of conviction and resentencing order consistent herewith.


The bulk of the charges against appellant stem from Morgan's actions on the night of October 2nd, and the early morning of October 3rd, 2002, wherein Morgan broke into the home of D.C. and essentially terrorized and victimized D.C. and her guest M.S Around 10:30 p.m. on October 2, 2002, Morgan went to the residence of D.C. in Barlow, Kentucky. Morgan, who admits to being a voyeur, watched through the bedroom window of D.C.'s trailer and observed her and her boyfriend, M.S., having sexual intercourse. After the couple went to sleep, Morgan lingered outside the trailer for several hours before cutting the telephone line and a window screen and going inside.1 He then awoke the couple, and ordered them onto their stomachs.

Morgan, then armed with her son's shotgun and knife, repeatedly told the victims throughout the ordeal that if they did not do exactly as he told them, he would blow both of their heads off and burn the trailer down around them. When asked how he had gotten the gun, he replied he had been in her house numerous times and knew where everything was. He also boasted he had been in hundreds of houses in Ballard County.

Initially, Morgan ordered D.C. to get out from underneath the covers. When she cried and asked him not to make her, he put the gun up to M.S.'s head and said to do what he said or he would shoot M.S. D.C. eventually complied with Morgan's demands.

Later, Morgan asked D.C. if she had any painkillers or any alcoholic beverages. All she had was some tea. He then allowed her to put on her robe and bring him some tea and Tylenol. However, he kept his gun on M.S. When she returned, and after tying M.S.'s hands behind his back, Morgan told her to take her robe off. When she cried, he again put the gun to M.S.'s head.

Morgan told the couple that he only wanted to see D.C. naked and that no one would get hurt if they listened to him. He then told D.C. to get her vibrator out of her dresser drawer. When she denied owning a vibrator, he boasted he had been in her house before and knew she owned one. When she cried and asked him not to make her, he again put the gun up to M.S.'s head and said to do what he said or he would shoot M.S. However, when D.C. went to her dresser to get the vibrator out of the drawer, she dialed 911 from a phone on the dresser. According to the 911-dispatch log, the call from the D.C.'s residence came in at 2:44 a.m. The 911 dispatcher immediately sent officers to the trailer.

Subsequently, Morgan forced D.C. to sexually touch herself with her vibrator, threatening to shoot M.S. if she did not cooperate. As D.C. complied, Morgan rubbed her foot and leg.

Several minutes into the ordeal, a car drove up to the trailer. Morgan told D.C. to answer the door and get rid of whoever it was. It was Barlow City Police Chief Tony Hall, who then pulled D.C. out the front door of the trailer after she whispered the intruder had a weapon. Appellant then fled the premises and was later arrested.


Morgan's first claim of error concerns the trial court's refusal to remove Juror 19 for cause. Morgan alleges that this was prejudicial to him under Thomas v. Commonwealth2 as he was required to use a peremptory strike to remove Juror 19.

During voir dire, Juror 19 disclosed that he was good friends with D.C.'s ex-husband, J.C., and that as a result, he had heard a great deal about the crimes from J.C., who in turn had heard the details directly from D.C. When asked whether he could find Morgan not guilty if the Commonwealth failed to prove its case, Juror 19 responded, "I would feel like I was betraying [J.C.] maybe," and told defense counsel that he "probably wouldn't be your best choice." Several questions later, Juror 19 stated that based on what he had read and heard he thought the case was "open and shut." When asked by the trial court whether he could render a fair verdict based solely upon the evidence presented, Juror 19 further replied, "Maybe I should not... I would like to think I could, but I have formed a pretty strong opinion, but I don't know him. I would like to hear his side of it actually." Nonetheless, after repeated questions by the Commonwealth and trial court, Juror 19 finally said, "Well, I hope I can [make a decision strictly based on the evidence and the law]. I think I can, yeah."

A trial court's decision as to whether to excuse a juror for cause is reviewed for abuse of discretion. Adkins v. Commonwealth3; Pendleton v. Commonwealth4. "It is the probability of bias or prejudice that is determinative in ruling on a challenge for cause." Pennington v. Commonwealth5. The Commonwealth contends that removal for cause was not warranted because, despite Juror 19's prior comments, he eventually stated that he could decide the case based on the law and evidence presented. However, in Montgomery v. Commonwealth,6 we noted:

One of the myths arising from the folklore surrounding jury selection is that a juror who has made answers which would otherwise disqualify him by reason of bias or prejudice may be rehabilitated by being asked whether he can put aside his personal knowledge, his views, or those sentiments and opinions he has already, and decide the case instead based solely on the evidence presented in court and the court's instructions. Thus has come to be referred to in the vernacular as the "magic question." But, as Chief Justice Hughes observed in United States v. Wood, 299 U.S. 123, 146, 57 S.Ct. 177, 185, 81 L. Ed 78 (1936), "[i]mpartiality is not a technical conception. It is a state of mind." A trial court's decision whether a juror possessed "this mental attitude of appropriate indifference" must be reviewed in the totality of the circumstances. It is not limited to the juror's response to a "magic question."

Juror 19's answers during voir dire established an inference of bias so pervasive that his eventual assertion that he could put aside his knowledge and preconceived opinions of the case simply did not rehabilitate him within the standard for a fair and impartial jury as guaranteed by the United States and Kentucky Constitutions. Concedingly, the trial court abused its discretion in not striking Juror 19 for cause.

However, Juror 19 never sat on the jury that convicted the Morgan, because Morgan used one of his eight (8) peremptory challenges allotted to him for the very purpose for which they were granted — to strike a juror he felt would not be sympathetic to his cause.7 To be clear, one should not believe this is a case where an obviously biased juror sat on the trial jury.

Morgan claims the use of his peremptory challenge in this circumstance resulted in a violation of a "substantial right" and thus requires reversal under Thomas.8

Under federal constitutional law, peremptory challenges are "auxiliary" and not of constitutional dimension.9 Rather, they are a means to achieve the constitutionally required end of an impartial jury.10 By Thomas, however, Kentucky elevated the peremptory challenge to that of a "substantial right" requiring the highest degree of protection, even though our history acknowledges we can freely add to them, subtract from them or take them away.11

Historically, the number of peremptory challenges has fluctuated for both the defense and the Commonwealth. In 1877, the defense was allowed twenty (20) peremptory challenges. The number was reduced to fifteen (15) in 1893; and to eight (8) in 1978. All during these periods, the Commonwealth was allowed only five (5) peremptory challenges.12 In 1994, RCr 9.40 was amended to allow both the defense and the Commonwealth an equal number, eight (8) peremptory challenges each.13 If the peremptory challenge was intended to be a substantial right afforded to the defendant, as Thomas holds, we suspect amendments as drastic as those made to RCr 9.40 would never have been allowed to stand.

Black's Law Dictionary defines a substantial right as one which is essential and that potentially affects the outcome of a lawsuit and is capable of legal enforcement and protection, as distinguished from a mere technical or procedural right.14 Conversely, a procedural right is derived from a legal or administrative procedure; a right that helps in the protection or enforcement of a substantial right.15 This case illustrates the quintessential exercise of the peremptory challenge. Morgan's peremptory challenge allowed him to receive a fair and impartial jury; yet its use is now argued under Thomas as the basis for reversing the verdict of that fair and impartial jury.

As Justice Keller charged in his dissenting opinion in Stopher v. Commonwealth, "bestowing a substantial right upon the exercise of a peremptory challenge serves one function and one function only — it...

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