Robertson v. Com.
| Decision Date | 01 April 1980 |
| Citation | 597 S.W.2d 864 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | Bernard ROBERTSON, Movant, v. COMMONWEALTH of Kentucky, Respondent. |
Frank W. Heft, Jr., Asst. Deputy Public Defender, Daniel T. Goyette, Deputy Public Defender, Louisville, for movant.
Robert F. Stephens, Atty. Gen., Reid C. James, Asst. Atty. Gen., Frankfort, for respondent.
Bernard Robertson was tried and convicted of second degree forgery, KRS 516.030, and attempt at committing theft by deception, KRS 514.040 and KRS 506.010. He was sentenced to a term of five years in the penitentiary on the forgery conviction and twelve months in the county jail on the attempt conviction. On appeal, the Court of Appeals reversed and remanded the attempt conviction with direction that the trial court dismiss the charge. The Court of Appeals affirmed the forgery conviction on the ground of no showing of prejudice. We granted discretionary review on the forgery conviction and reverse the forgery conviction.
Robertson argues that the trial court committed reversible error in the method used in selecting a jury. (The other assertion of error is moot.)
RCR 9.30(1)(a) provides:
KRS 29A.060 in pertinent parts provides:
"(2) To select a grand jury or a petit jury in circuit court, the clerk shall:
(a) Draw forty (40) names at random from the jury wheel;
(b) List the names, in the order drawn, from one (1) to forty (40);
(c) Place forty (40) numbered balls in a box and shake the box;
(d) Draw the required number of balls, dependent on the number of jurors required plus alternates, from the box and record the number of each ball as it is drawn.
"(4) The names corresponding to the numbers on the balls which have been drawn shall constitute the petit jury. When alternate jurors are permitted the last ball or balls drawn, as the case may be, will represent the alternate jurors.
(5) As jurors are excused and new jurors are required additional balls shall be drawn from the box, one (1) for each juror required, until all of the balls in the box have been exhausted.
(6) In the event that all of the balls in the box have been exhausted the box shall be refilled utilizing the process required by subsection (1) to (4) of this section."
Over the objection of both the Commonwealth and Robertson, the trial court selected the jury by the following procedure. Thirty-six jurors were called by the clerk and were assigned numbers 1 through 36; jurors 1 through 12 were seated in the jury box; the twelve seated jurors were examined by the court, the Commonwealth and the defense, resulting in excusal of seven for cause; jurors 13 through 19 were seated in the excused jurors' places; the court notified Robertson that he would have eight peremptory challenges and the Commonwealth that it would have five, since this meant that even if all peremptory challenges were exercised, only thirteen of the remaining seventeen non-seated jurors would be needed as replacements; jurors 33 through 36 were excused; Robertson exercised seven of his peremptory challenges, and the Commonwealth three of its, the challenged jurors being replaced in consecutive order, by the lowest-numbered, nonseated jurors beginning with juror 20; a few minutes later, Robertson exercised his final peremptory after being informed that one of the seated jurors was a friend of the Commonwealth's attorney; that juror, too, was replaced by the lowest-numbered juror; the remaining non-seated jurors were dismissed, and the twelve were sworn in.
The procedure of jury selection used here conflicts with RCR 9.30(1)(a) and KRS 29A.060.
The Court of Appeals recognized that the procedure was not in conformity with the Rules and the statute and that the error was properly preserved.
The Court of Appeals declined to reverse on this ground for the reason that the trial court...
To continue reading
Request your trial
-
Sanders v. Com.
...the potential for abuse demonstrated in the instant case is minuscule when compared to that presented in the case of Robertson v. Commonwealth, Ky., 597 S.W.2d 864 (1980), relied upon by the appellant in urging reversal. Moreover, we note that defense counsel was informed by the court prior......
-
Smith v. Com., 83-SC-799-MR
...jurors. There was no substantial deviation from the random jury selection process required by the statute and rules. Robertson v. Commonwealth, Ky., 597 S.W.2d 864 (1980). The jury was composed of a fair cross-section of the Smith contends that the petit jury panel should have been dismisse......
-
Alholm v. Wilt
...commented that demonstration of prejudice in this instance is ordinarily and practically impossible. See, e.g., Robertson v. Commonwealth, 597 S.W.2d 864, 865-66, (Ky.1980). Although Robertson was a criminal case involving rules of criminal procedure and a criminal procedure statute, that s......
-
Douglas v. Commonwealth, No. 2006-SC-000882-MR (Ky. 12/20/2007), 2006-SC-000882-MR.
...that the deviation was objected to before the trial court. Commonwealth v. Nelson, 841 S.W.2d 628 (Ky. 1992); Robertson v. Commonwealth, 597 S.W.2d 864 (Ky. 1980). Minor deviations, on the other hand, do not entitle a defendant to relief unless the deviation actually prejudiced the defendan......