Riddle v. Com., 92-CA-1988-MR

• Decision Date: 22 October 1993
• Docket Number: No. 92-CA-1988-MR,92-CA-1988-MR
• Citation: 864 S.W.2d 308
• Parties: Richard RIDDLE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

Page 308

864 S.W.2d 308

Richard RIDDLE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 92-CA-1988-MR.

Court of Appeals of Kentucky.

Oct. 22, 1993.

Robert L. Wilson, Wilson & Smith, Jamestown, for appellant.

Chris Gorman, Atty. Gen., Joseph R. Johnson, Asst. Atty. Gen., Criminal Appellate Div., Frankfort, for appellee.

Before GARDNER, HOWERTON and McDONALD, JJ.

OPINION

McDONALD, Judge:

Appellant Richard Riddle was convicted by a jury of two counts of trafficking in a controlled substance. The jury fixed his prison sentence at five years to serve on each count. The circuit court ordered the sentences to be served consecutively.

On appeal, six errors are asserted for reversal. We reverse on the first argued error and, because it will aid the trial court upon remand, we will affirm on the third assigned error. All other errors alleged will not be discussed because they are either moot or harmless.

Riddle's first alleged error asserted that the circuit court refused to discharge prospective jurors who had a close personal relationship with the Commonwealth Attorney's Office, and in the alternative to allow Riddle to further develop the prejudice of the potential jurors so affected.

During the voir dire of the venire, counsel for Riddle inquired of the panel, and from the record we quote:

Counsel for Riddle: I guess several of you have been represented by Mr. Cary or Mr. Capps [Commonwealth's Attorney and Assistant Commonwealth's Attorney, respectively] for some type of legal work in the past. If you would, indicate how many of you, if any of you have been represented by Mr. Capps or Mr. Cary.

There are several. Now, let's exclude just common deed work, or drafting a will or doing an income tax return. Other than those 3 items have any of you been represented by Mr. Capps or Mr. Cary?

Okay. Now how many of you would now at this point, consider Mr. Capps or Mr. Cary to be your attorney, the one that you would go to for advice and counsel?

One, two ... twelve [eventually number fourteen].

Counsel moved to excuse for cause the 14 venire persons who had been represented by the prosecutors and stated they would seek their representation in the future.

Comment to court by Mr. Capps: If we accept this as challenge for cause we can't get a jury in Cumberland County, at any time.

Later, the court inquired of the 14 venire persons:

Court: Alright, now the question was asked several of you if you employed Cary and Capps. Course this is a small county and I believe that the questions may have been a little bit confusing at times because counsel started out with if you had a deed written or a will, we want to exclude that, and this sort of thing. The question really needs to be, those of you who said that you would employ them again, or if you needed legal services you'd go with them, I want to ask each one of those to raise your hand. I'll ask you specifically, do you have a close relationship with Cary and Capps individually, and as a law firm, that you would give preferential treatment to their testimony? Do you have a close relationship that you would favor them?

Jurors: No.

Court: I'll state it again, another way. Can you hear the testimony and be fair and impartial and no--to the defendant, and not mistreat him in any way. Just listen to the testimony from this witness stand. Can you be fair and impartial? Would the fact that you employed, or know them or maybe go to them, would that affect you in any way, affect your being fair and impartial?

Jurors: No.

Court: Do you know of any reason why you could not sit here, listen to the testimony from this witness stand, and be fair and impartial both for the defendant and for the Commonwealth?

Jurors: Yes. ¹

Court: Prepare your list.

(Proceedings at bench)

Counsel for Riddle: Comes the defendant and renews the challenges for cause for the 14 individual jurors who are potential clients of the Commonwealth Attorney's Office. We further, as grounds, in addition to as previously state, state the question generated by the court was confusing to the jury and that the first time the question was asked whether or not it would prejudice them or they would favor the Commonwealth Attorney's Office, 8 jurors kept their hands in the air, and then only after pointing at them and giving them a leading question, did they say that they would not be prejudiced by the fact that their attorneys were on one side and the strangers were on the other.

Capps: I would note for the record that the reason they had their hands up was to be able to identify themselves as the people who were being talked to.

Cary: Yeah, they weren't holding them up in response to the question.

Court: For the first time in my life I would state that I'd be delighted to have a video camera present because the jurors clearly indicated to the court and counsel and everybody else that they did not have any prejudice or bias whatsoever. Motion to challenge for cause is overruled.

The circumstances portrayed are affected by two recent cases from the Kentucky Supreme Court, namely, Thomas v. Commonwealth, Ky., 864 S.W.2d 252 (1993), and Alexander v. Commonwealth, Ky., 862 S.W.2d 856 (1993).

Thomas v. Commonwealth, supra, reaffirms the proposition that a disqualified member of the venire cannot be rehabilitated by any pronouncement of a magic formula from the bench. The disqualification, in our opinion, is in the question and response, not from any subsequent disclaimer on the part of the venire person.

The rehabilitation question from the bench, in times past, was: "Yes, but can you set aside your bias and prejudice and give the defendant a fair trial?" Invariably the venire person would respond "yes" to such a disclaimer query but, as Thomas instructs, objective bias has already been established and there is no rehabilitation that can remove it. See additionally, Montgomery v. Commonwealth, Ky., 819 S.W.2d 713 (1992).

Alexander v. Commonwealth, supra, relied on a declaration found in Pennington v. Commonwealth, Ky., 316 S.W.2d 221, 224 (1958):

It is the probability of bias or prejudice that is determinative in ruling on a challenge for cause.

Further, as guided by Tayloe v. Commonwealth, Ky., 335 S.W.2d 556, 558 (1960), we quote:

We have many times stated that a party charged with a criminal offense is entitled to be tried by a fair and impartial jury composed of members who are disinterested and free from bias and prejudice, actual or implied or reasonably inferred. This principle of justice is as old as the history of the jury system. (Emphasis added).

Does prior attorney-client relationship automatically disqualify a venire person when challenged for cause under a presumed bias theory? It would be too presumptive of us to answer affirmatively in light of Altman v. Allen, Ky., 850 S.W.2d 44 (1993). In Altman,...