Parson v. Com.

• Decision Date: 17 June 2004
• Docket Number: No. 2002-SC-0103-MR.,2002-SC-0103-MR.
• Citation: 144 S.W.3d 775
• Parties: Michael Wayne PARSON, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

144 S.W.3d 775

Michael Wayne PARSON, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.

No. 2002-SC-0103-MR.

Supreme Court of Kentucky.

June 17, 2004.

As Modified on Denial of Rehearing October 21, 2004.

Appeal from the Circuit Court, Jefferson County.

Bruce P. Hackett, Deputy Appellate Defender of the Jefferson District, Louisville, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, Dennis W. Shepherd, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.

Opinion of the Court by Justice COOPER.

On May 30, 2000, a motor vehicle owned and operated by Appellant, Michael Wayne Parson, crossed the center line of a highway in Jefferson County, Kentucky, and struck a vehicle owned and operated by Lisa Eberle, injuring her and damaging her automobile. Appellant was transported to University Hospital where a test of his blood revealed an alcohol concentration of 0.238 grams per deciliter and a test of his urine revealed the presence of an unquantified amount of cocaine and cannabinoids (marijuana).

Appellant was subsequently convicted by a Jefferson Circuit Court jury of assault in the second degree (wanton) ("assault 2nd"), a Class C felony, KRS 508.020(1)(c) and (2); operating a motor vehicle while under the influence of intoxicants (fourth offense) ("DUI 4th"), a Class D felony, KRS 189A.010(1) and (5)(d); operating a motor vehicle while license is revoked or suspended for DUI (third offense) ("OSL/DUI 3rd"), a Class D felony, KRS 189A.090(1) and (2)(c); criminal mischief in the first degree ("criminal mischief 1st"), a Class D felony, KRS 512.020; no motor vehicle liability insurance ("no insurance"), KRS 304.39-080(5), a misdemeanor, KRS 304.99-060(1)(a); and expired vehicle registration, KRS 186.170(1), a violation, KRS 186.990(1).

The jury initially sentenced Appellant to imprisonment for ten years for assault 2nd and five years each for DUI 4th, OSL/DUI 3rd, and criminal mischief 1st, and to fines of $1,000 for no insurance and $100 for expired vehicle registration. The jury recommended that the sentences for assault 2nd, DUI 4th and OSL/DUI 3rd be served consecutively and the sentence for criminal mischief 1st be served concurrently for a total of twenty years, the maximum aggregate sentence allowable under KRS 532.110(1)(c). Young v. Commonwealth, Ky., 968 S.W.2d 670, 675 (1998); Hendley v. Commonwealth, Ky., 573 S.W.2d 662, 668 (1978). However, because the jury also found Appellant to be a persistent felony offender in the first degree ("PFO 1st"), KRS 532.080(3), it recommended enhanced sentences of twenty years each for assault 2nd, DUI 4th, and OSL/DUI 3rd, and fifteen years for criminal mischief 1st. KRS 532.080(6)(b). The jury then recommended that all of the enhanced sentences be served concurrently for a total of twenty years, again the maximum aggregate sentence allowable under KRS 532.110(1)(c). Appellant appeals to this Court as a matter of right. Ky. Const. § 110(2)(b).

I. JUROR QUALIFICATION FORMS.

Section 7 of Part II of the Administrative Procedures of the Court of Justice ("Ad.Proc.") requires that each prospective juror fill out a juror qualification form devised by the Administrative Office of the Courts and submit it to the clerk within five days of the receipt of the juror summons. Part II, Section 7(7) further provides:

The contents of the juror qualification forms shall be made available to the trial judge and to parties or their attorneys of record unless the chief circuit judge or designee determines in any instance in the interest of justice that the information shall be kept confidential or its use limited in whole or in part.

The form is a questionnaire. In addition to identifying data, i.e., name, address, date and place of birth, marital status, and employment, the questionnaire also contains inquiries designed to determine whether the prospective juror is legally disqualified from jury service for any of the reasons set forth in Ad. Proc., Part II, § 8. Finally, it contains questions pertaining to the juror's experience with the court system, e.g., whether the juror has ever been a party to a lawsuit or been a defendant, witness, or complainant in a criminal case. The very language of Part II, Section 7(7) clarifies that a criminal defendant does not have an absolute right to inspect the completed forms.

Thrice, this Court has approved a local rule of the Jefferson Circuit Court that denies a criminal defendant access to the addresses of the jurors who serve on that defendant's case. Thompkins v. Commonwealth, Ky., 54 S.W.3d 147, 151 (2001); Cornelison v. Commonwealth, Ky., 990 S.W.2d 609, 610 (1999); Samples v. Commonwealth, Ky., 983 S.W.2d 151, 152-53 (1998), overruled on other grounds by Lawson v. Commonwealth, Ky., 53 S.W.3d 534, 544 (2001). Accordingly, instead of copying the larger original forms with the addresses blacked out, the jury pool administrators create a smaller, typewritten (thus fully legible) form containing all of the data provided by the juror except the juror's address and the juror's answers to the questions regarding legal qualifications.

Prior to voir dire, defense counsel demanded to see the original qualification forms submitted by the jurors selected for the panel in this case, suggesting that the jury pool administrators may have inaccurately transferred information from the original form to the typewritten form. Instead, the jury pool administrators furnished the forms for all of the 248 jurors who had been impaneled for that month — except one, Juror No. 24366, whose original form apparently had been lost or misplaced. Voir dire lasted approximately two hours and Appellant does not claim that defense counsel's voir dire was restricted in any fashion. After forty-eight minutes of deliberating over peremptory strikes, and after some prompting by the trial judge, defense counsel submitted his peremptory strike list, complaining that he had not had enough time to examine all 248 juror qualification forms. Examination of the peremptory strike sheets revealed that the prosecutor and defense counsel had both struck the same three jurors.

A jury of twelve, plus two alternate jurors, was sworn and seated and the remainder of the jurors were excused. Four witnesses then testified before court adjourned for the day. On the following morning, defense counsel demanded a mistrial claiming that he had now had a full opportunity to examine all 248 juror qualification forms and that he would have struck four different jurors than he actually struck had he not been forced to prematurely complete the exercise of his peremptory strikes. The jurors he claims he would have struck were Juror No. 24366, whose original form was missing; Juror No. 28117, who failed to sign his form and who, therefore, was deemed irresponsible; Juror No. 491, who worked a night shift (information not transferred to the typewritten form); and Juror No. 23788, who wrote "invasion of privacy" in the margin next to the inquiries about his marital status and occupation (though he did furnish the requested information).

It is voir dire that is the "sine qua non to the seating of a fair and impartial jury." McCarthy v. Commonwealth, Ky., 867 S.W.2d 469, 471 (1993), overruled on other grounds by Lawson v. Commonwealth, supra, at 544. To the extent that juror qualification forms contain information related to subjects other than a juror's legal qualifications, its purpose is to expedite the voir dire process by eliminating questions routinely asked of every juror.

Juror No. 24366, whose original form was missing, had obviously submitted a form because the data she presumably provided had been transferred from the original form to the typewritten form. Appellant could have made a record on the accuracy question by asking that she be questioned in chambers as to whether the information on the typewritten form was inaccurate or incomplete. He chose not to do so. The fact that Juror No. 28117 was the president of a medical staff company leaves us skeptical that Appellant would have exercised a peremptory strike against him solely on grounds that he was "irresponsible." We note that Appellant did not claim entitlement to a mistrial on grounds that three additional jurors, Nos. 494, 23788, and 26060, whom he failed to peremptorily strike also, did not fully complete their original forms. Juror No. 491 did not request excusal from jury service because she worked at night. If Appellant desired to excuse night-shift workers, he could have inquired during voir dire whether any prospective jurors were so employed. He might have learned that Juror No. 491, like many persons in public employment, had been excused from work while performing jury service. When the issue was raised, the trial judge noted and no one disagreed that Juror No. 491 appeared highly attentive and exhibited no signs of being tired or sleep-deprived. With respect to Juror No. 23788, if Appellant was truly concerned whether a juror considered an inquiry into marital status and occupation an invasion of privacy, he could have so inquired during voir dire. We note in passing that defense counsel refused the prosecutor's offer to have Juror No. 23788 excused as an alternate juror.

The bottom line on this issue is that it would not have been an abuse of discretion for the trial court to have denied Appellant and his counsel access to the original forms since they contained the jurors' home addresses. That being so, the trial court could not have abused its discretion in limiting the time for defense counsel to peruse the forms for evidence that might have prompted the exercise of a peremptory strike.

II. URINALYSIS RESULTS.

A screen of a urine sample taken from Appellant at University Hospital approximately one hour after the accident was positive for unquantified amounts of cocaine and marijuana. Appellant made a motion in limine to suppress expected testimony from Dr. George...