Roberts v. Commonwealth

• Decision Date: 10 May 2019
• Docket Number: NO. 2018-CA-000438-MR,2018-CA-000438-MR
• Parties: WILLIAM R. ROBERTS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
• Court: Kentucky Court of Appeals

WILLIAM R. ROBERTS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2018-CA-000438-MR

Commonwealth of Kentucky Court of Appeals

MAY 10, 2019

NOT TO BE PUBLISHED

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE MARY M. SHAW, JUDGE

ACTION NO. 16-CR-003094

OPINION

AFFIRMING

** ** ** ** **

BEFORE: MAZE, NICKELL, AND K. THOMPSON, JUDGES.

NICKELL, JUDGE: After a night of playing cards and drinking in the renovated house they shared, William R. Roberts ("Roberts") shot and killed Michael Richardson ("Sarge"), the boyfriend and father of his sister's¹ eleven-month-olddaughter. Christine owned the home which had been converted into a duplex. All three adults—and most of the witnesses who testified in this case—were affiliated with the Horseshoe Casino in southern Indiana. Roberts and Sarge worked together in the kitchen. Roberts stood trial on a single count of murder, admitting he shot and killed Sarge, but claiming he did so while fearing for his life and acting in self-defense. After a multi-day trial, a Jefferson County jury convicted Roberts of reckless homicide, the least severe of three options.² When jurors deadlocked during the penalty phase, Roberts waived jury sentencing and agreed to accept the Commonwealth's offer of two years. At sentencing, the trial court ordered Roberts to serve one year, allowing him to remain free on bond pending appeal. After reviewing the briefs, law and record, we affirm.

ANALYSIS

We begin with Roberts' allegation of the bailiff improperly answering juror questions without input from the trial court, inaccurately answering a jury inquiry, and failing to convey to the judge all written jury requests—specifically one for a television to review part of Roberts' two hours of trial testimony.Roberts also claims the trial court's failure to convey all jury requests to counsel and the defendant—as required by RCr³ 9.74—demands reversal. We disagree.

The claims arise in the context of the trial court's denial of Roberts' new trial motion—a motion for which Roberts had to establish adequate grounds. See Truitt v. Commonwealth, 177 Ky. 397, 197 S.W. 797, 798 (1917). We review denial of a new trial motion for abuse of discretion, Commonwealth v. Clark, 528 S.W.3d 342, 345 (Ky. 2017), the test being "whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Not every rule violation demands reversal; harmless error analysis applies. Commonwealth v. Pollini, 437 S.W.3d 144, 151 (Ky. 2014); McAtee v. Commonwealth, 413 S.W.3d 608, 627 (Ky. 2013); Welch v. Commonwealth, 235 S.W.3d 555, 557 (Ky. 2007).

We start with a few basic principles. KRS 29A.320(1) dictates:

When the case is finally submitted to the jury, they shall retire for deliberation. When they retire, they shall be kept together in some convenient place, under the charge of an officer, until they agree upon a verdict or are discharged by the court, subject to the Supreme Court rules permitting them to separate temporarily at night and for their meals. The officer having them under his charge shall not allow any communications to be made to them, nor make any himself, except to ask them if they have agreed upon their verdict, unless by order of the court; and he shall not, before their verdict is rendered,communicate to any person the state of their deliberations, or the verdict agreed upon.

In a similar vein, RCr 9.74 directs:

No information requested by the jury or any juror after the jury has retired for deliberation shall be given except in open court in the presence of the defendant (unless the defendant is being tried in absentia) and the entire jury, and in the presence of or after reasonable notice to counsel for the parties.

McGuire v. Commonwealth, 368 S.W.3d 100, 115 (Ky. 2012), holds:

Pursuant to RCr 9.74, the replaying of witness testimony is to be on the record in open court in the presence of the defendant. Mills v. Commonwealth, 44 S.W.3d 366, 371-372 (Ky. 2001); Lett v. Commonwealth, 284 Ky. 267, 144 S.W.2d 505 (1940).

(Footnote omitted.) See also McAtee, 413 S.W.3d at 627-28. With the foregoing in mind, on December 13, 2017, immediately after seating the jury, the trial court told jurors to submit all questions to the court in writing.⁴ The judge then told the panel not to discuss the case with anyone or allow anyone to discuss the case with them.

All jury communications challenged by Roberts allegedly occurred after proof closed on December 18, 2017. Just before sending jurors to deliberate at 5:00 p.m., and consistent with RCr 9.68, the trial court swore the bailiff

to keep the jurors together, and to suffer no person to speak to, or communicate with, them on any subject connected with the trial, and not to do so [himself].

Thereafter, the trial court provided a few directions to the jury on how to proceed. Select a foreperson to preside; let everyone speak who wants to speak; turn off cell phones; if you need to make a call, knock on the door and advise the sheriff; take your notes and go with the sheriff to the jury room.

At some point during guilt phase deliberations, jurors asked to see the murder weapon. The judge directed the bailiff to take the handgun to the jury room where he waited while jurors examined it. The trial court apprised counsel of this development around 5:49 p.m., during discussion of a jury note the bailiff had delivered to the judge. That note posed four questions which the trial court read into the record in the presence of defense counsel, the prosecutor and Roberts. All agreed the proper response was, "you must rely on the testimony in evidence," which the trial court wrote on the bottom of the note and had the bailiff return to the jury. No specific claim of impropriety is made about the bailiff taking the gun to the jury room for examination, the trial court writing its response to the four questions at the bottom of the jury's note, nor about a second note the bailiff delivered to the trial court at 10:08 p.m. during penalty phase deliberations revealing the jury was deadlocked. These are the only two jury notes in the record.

At 8:06 p.m., still during guilt phase deliberations, the trial court learned from the bailiff—and conveyed to all counsel and Roberts—the jurors "think they're hung." The judge asked whether the attorneys wanted the jury to return to the courtroom and receive an Allen⁵ charge. While discussing the matter with counsel, the court revealed "some" jurors had previously asked to review Roberts' testimony. No written request to that effect ever reached the court after the bailiff—at the trial court's direction—reminded jurors to put requests in writing. It is unclear when or how the verbal request to replay testimony was made or whether it was reduced to writing. No such note is in the record.

Defense counsel asked whether any questions were in writing, to which the court replied,

No, they knocked on the door and asked the [bailiff] to come in to say they were hung. I could have 'em write it down if that's . . . . I think we'll go off record and tell 'em to write it down. We'll have it for appeal purposes and everything else.

Defense counsel agreed the jury should be directed to put all requests in writing. Minutes later, the court resumed recording, stating,

I told the [bailiff] to have the jury write it down. He starts walking in, jury said, "No, No, No. Go. Go. Don't say a word, don't say anything, we think we've got this worked out. Get out. So, he's out."

At 8:20 p.m., defense counsel moved for a mistrial, arguing the judge is not to know the actual vote of a hung jury. Counsel cited no authority for the premise but seemed to base the argument on the bailiff having told the court one juror had told the bailiff another juror had voted "not guilty" upon entering the jury room and would not change his position. Three minutes later, defense counsel requested a mistrial because the jury was communicating via the bailiff rather than in writing.

Defense counsel then asked for the bailiff to be called to the bench to explain his contact with the jury. The judge stated she believed the bailiff had one conversation with the jury and confirmed she, as judge, never talked with the jury—she spoke only with the bailiff. The judge also expressed doubt she knew the actual vote because all she had been told was one juror said "not guilty" when deliberations started.

At 8:30 p.m., the bailiff appeared at the bench to share his recollection of events. He said a male juror—not the female foreperson—exited the jury room saying "three-fourths" of the jurors have something, "but one person not guilty and wasn't gonna budge." The lone juror returned to the jury room, closing the door behind him. Ten to fifteen minutes later, the same juror emerged from the jury room saying, "they had something." The bailiff described this single event. He was never asked whether jurors requested a television to replay Roberts' testimony, nor if they did, whether or how he responded. The bailiff was not askedhow many jury notes he received, how he handled them, nor whether he personally answered jury questions without direction from the court.

Roberts' allegations of improper juror communications center on requests that were either never reduced to writing or if written, cannot be located. He takes the bailiff to task for not delivering to the trial court an unspecified number of written jury requests and argues all requests must be given to the trial court. Young v. State Farm Mut. Auto. Ins. Co., 975 S.W.2d 98, 99 (Ky. 1998) (jury requests should be "immediately conveyed to the trial judge. . . . Bailiffs are cautioned to follow the law and bring any question to the attention of the court.").

During the hearing on the new trial motion, the trial court said there were missing notes, but stated she had read into the record each note received. Our review shows the note asking four questions during the guilt...