Pelfrey v. Com., 92-SC-36-DG

• Decision Date: 22 October 1992
• Docket Number: No. 92-SC-36-DG,92-SC-36-DG
• Parties: Lindon PELFREY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 524

842 S.W.2d 524

Lindon PELFREY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 92-SC-36-DG.

Supreme Court of Kentucky.

Oct. 22, 1992.

Rehearing Denied Jan. 21, 1993.

Grover A. Carrington, White, Peck & Carrington, Mt. Sterling, for appellant.

Chris Gorman, Atty. Gen., Michael L. Harned, Asst. Atty. Gen., Criminal Appellate Div., Frankfort, for appellee.

SPAIN, Justice.

Lindon Pelfrey appeals his conviction of first-degree manslaughter for which he received a ten-year prison sentence. We granted review in this case to determine whether the Sixth Amendment to the Federal Constitution and Section Eleven of our State Constitution were violated when a criminal defendant was tried by a jury which included jurors who had previously tried and convicted a confederate. The Court of Appeals, in a unanimous decision, found no such violation. We agree, and affirm.

On June 6, 1990, Pelfrey and his friend, Clayton Wise, were playing pool at Route 11 Liquors in Mount Sterling, Kentucky. While there, Pelfrey played pool with James Baker, for money. Pelfrey and James Baker began to argue over the terms of the bet after playing the final game. Pelfrey then pulled out his pistol and threatened James Baker. James Baker's brother, Ronnie, tried to take the pistol from him, causing the weapon to discharge. Pelfrey and Ronnie Baker scuffled and fell to the floor. Two more shots were fired, one mortally wounding Ronnie Baker in the head. After the shooting, Pelfrey handed the pistol to Wise as both men ran from the bar. As they reached the parking lot adjacent to the bar, a truck pulled into the lot. Wise approached the driver of the truck and pointed the pistol at the driver's head, demanding that they be provided transportation to Powell County. The police then arrived and arrested Pelfrey and Wise before they could escape.

Pelfrey was indicted for murder while Wise was separately indicted for first-degree wanton endangerment for the parking lot incident. The Commonwealth chose to try Wise and Pelfrey separately, with Wise being tried first, on September 25, 1990. Wise did not take the stand in his own defense nor did he present any evidence. The jury found Wise guilty of first-degree wanton endangerment, for which he received a three-year sentence.

Pelfrey's trial was set for October 23, 1990. Prior thereto, his defense counsel made a motion for a continuance until a new jury panel was available. The trial court denied the motion. Twenty-one of the twenty-five jurors drawn in the Wise case were selected as potential jurors in the appellant's trial. Four of the jurors who sat on the panel which had convicted Wise were impaneled as jurors for Pelfrey's trial. Defense counsel did not challenge for cause any of these four jurors nor any of the other jurors who were impaneled. The trial judge admonished the jury to consider against Pelfrey only what they heard from the witness stand.

Appellant argues that the trial court erred when it overruled his pretrial motion for a continuance until a new jury panel was available. The basis for this motion is the fact that this same panel convicted appellant's companion one month earlier of an offense closely associated with appellant's charge. He further maintains that his continuance motion relieved him of his affirmative duty during voir dire to challenge jurors that he believed would be unable to render a fair and impartial verdict based on the evidence. In essence, appellant asserts that his motion to continue served as an ongoing objection to all the jurors during voir dire examination. We disagree with both of these contentions.

A continuance motion is a general motion, and "a trial court has broad discretion in granting or refusing to grant a continuance and that ruling will not be disturbed absent an abuse of discretion." Walker v. Farmer, Ky., 428 S.W.2d 26, 28 (1968). Here, the trial judge concluded, and we concur with his and the Court of Appeals' reasoning, that there were adequate safeguards in place to assure an unbiased jury. Our Rules of Criminal Procedure provide for the examination of jurors on voir dire to determine bias and impartiality. RCr 9.30. When there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence, that juror is to be excused as not qualified. RCr 9.36. Further, jurors may be dismissed on peremptory challenges. RCr 9.40.

The record indicates that defense counsel conducted a thorough examination of the jurors on voir dire and accepted this panel without challenging any of the jurors who had been previously impaneled in the Wise trial, including the four jurors who had actually sat on the Wise trial. Further, the trial judge admonished the jury that the Wise event happened after the shooting and did not concern the guilt or innocence of Pelfrey in any way whatsoever. We conclude, since voir dire did not produce any evidence which prompted the appellant to challenge a juror for cause, and the trial judge admonished the jury, that the trial court's denial of appellant's earlier motion to impanel a new jury was not an abuse of discretion.

Next, we will address the question of whether appellant's failure to challenge any of the potential jurors for cause was a waiver of his right to raise the issue on appeal, claiming bias or partiality of certain jurors.

The rule is well settled that a challenge to a juror for cause must be made before the trial. Galliaer v. Southern Harlan Coal Co., 247 Ky. 752, 57 S.W.2d 645 (1933). The general rule is that objection to a juror because of his disqualification is waived by a failure to object to such juror until after verdict. Higgins v. Commonwealth, 287 Ky. 767, 155 S.W.2d 209 (1941) (quoting 31 Am.Jur. Sec. 119, p. 647) and also see 47 Am.Jur.2d Jury Sec. 219, p. 808 (1969). The trial lawyer has a specific procedure to follow when he believes a juror is biased. RCr 9.36(1) provides that "challenges for cause shall be made first...