Russell v. Commonwealth
| Decision Date | 16 February 2023 |
| Docket Number | 2021-SC-0381-MR,2021-SC-0384-MR |
| Parties | KEVIN RUSSELL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | United States State Supreme Court — District of Kentucky |
The Sixth and Fourteenth Amendments to the United States Constitution, and Section 11 of the Kentucky Constitution guarantee a fair trial by a panel of impartial, indifferent jurors. Ordway v. Commonwealth, 391 S.W.3d 762, 780 (Ky. 2013). RCr[1] 9.36(1) establishes the standard for dismissal: "When there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence, that juror shall be excused as not qualified." The primary issue in this appeal is whether the Casey Circuit Court abused its discretion by denying Kevin Russell's motion to strike Juror 432 for cause. Concluding that it did not, we affirm.
A jury convicted Russell of one count of trafficking in a controlled substance, first-degree, first offense, two or more grams of methamphetamine; one count of persistent felony offender ("PFO") in the second degree; one count of possession of marijuana; and one count of possession of drug paraphernalia. The jury recommended a sentence of twenty years for the trafficking count, as enhanced by the PFO count, which the trial court imposed. Russell now appeals as a matter of right.[2]
Russell first argues that the trial court improperly denied his motion to excuse Juror 432 for cause. The Sixth and Fourteenth Amendments to the United States Constitution, as well as Section 11 of the Kentucky Constitution, protect a criminal defendant's right to an impartial jury. Ordway, 391 S.W.3d at 780. Because denial of this right is structural, we do not apply harmless error analysis to such claims. Commonwealth v. Douglas, 553 S.W.3d 795, 799 (Ky. 2018). Rather, where the right is infringed, prejudice is presumed. Id.
To preserve this issue, a party must follow the six-step process outlined in Floyd v. Neal:
[A] litigant must: (1) move to strike the juror for cause and be denied; (2) exercise a peremptory strike on said juror, and show the use of that peremptory strike on the strike sheet, and exhaust all other peremptory strikes; (3) clearly indicate by writing on her strike sheet the juror she would have used a peremptory strike on, had she not been forced to use a peremptory on the juror complained of for cause; (4) designate the same number of would-be peremptory strikes as the number of jurors complained of for cause; (5) the would-be peremptory strikes must be made known to the court prior to the jury being empaneled; and (6) the juror identified on the litigant's strike sheet must ultimately sit on the jury.
590 S.W.3d 245, 252 (Ky. 2019). No party disputes that Russell has fulfilled these preliminary requirements and our review of the record confirms Floyd was followed. Following Juror 432's initial interview at the bench, Russell moved to strike Juror 432 for cause, which the trial court denied. Russell renewed his motion after Juror 432 was recalled to the bench and the trial court again denied the motion. Russell used all his peremptory strikes, including one for Juror 432. Defense counsel noted on the strike sheet that had Russell not used a peremptory strike on Juror 432, he would have used it on Juror 355. Juror 355 subsequently sat on the jury and was not excused as an alternate. Floyd having been satisfied, we turn to the merits of Russell's claim.
This Court reviews a trial court's ruling on a motion to strike a juror for cause for an abuse of discretion. Sturgeon v. Commonwealth, 521 S.W.3d 189, 192 (Ky. 2017). "The test for abuse of discretion is 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). Whether a juror has formed an opinion or expressed a bias which makes her unqualified for service on the jury is a mixed question of law and fact. Gabbard v. Commonwealth, 297 S.W.3d 844, 854 (Ky. 2009).
The standard for striking a juror for cause is found in RCr 9.36(1): "[w]hen there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence, that juror shall be excused as not qualified." "The central inquiry is whether a prospective juror can conform his or her views to the requirements of the law, and render a fair and impartial verdict based solely on the evidence presented at trial." Hubers v. Commonwealth, 617 S.W.3d 750, 762 (Ky. 2020) (quoting Wood v. Commonwealth, 178 S.W.3d 500, 516 (Ky. 2005)). Generally, "'where questions about the impartiality of a juror cannot be resolved with certainty, or in marginal cases, the questionable juror should be excused.'" Jerome v. Commonwealth, 653 S.W.3d 81, 88 (Ky. 2022) (quoting Ordway, 391 S.W.3d at 780).
In Russell's case, Juror 432 approached the bench after defense counsel asked the panel of prospective jurors if any of them had strong feelings about methamphetamine and, generally, whether they had friends or family who grapple with addiction. The recording of this first round of questioning between the court and Juror 432 is nearly inaudible. As such, we are left with only snippets of what was said as well as Juror 432's body language. Juror 432 appeared to state he had family members who struggled with alcohol addiction, but he could not be sure how or if that would affect his ability to judge Russell. During this first interaction, Juror 432 kept his head down for much of the questioning, though he did raise it to respond to questions from the trial court. When Juror 432 returned to his seat, defense counsel moved to strike him for cause based upon his inability to say exactly how his experience with addiction would affect his ability to judge Russell. The trial court denied the motion on the basis that his general statements regarding drugs and addiction did not amount to a bias against Russell.
Although the court denied the motion, discussion of Juror 432 continued and the judge elected to call him back to the bench. This interaction remains difficult to understand but the recording is an improvement over the first round of questioning. This time the questioning focused on Juror 432's ability to consider the full range of punishments in the event Russell was found guilty:
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