Sanders v. Com.

Decision Date27 September 1990
Docket NumberNo. 87-SC-674-MR,87-SC-674-MR
Citation801 S.W.2d 665
PartiesDavid Lee SANDERS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
CourtUnited States State Supreme Court — District of Kentucky

Mark A. Posnansky, Allison Connelly, Asst. Public Advocates, Frankfort, for appellant.

Frederic J. Cowan, Atty. Gen., Rickie L. Pearson, Denise A. Garrison, Asst. Attys. Gen., Criminal Appellate Div., Frankfort, for appellee.

COMBS, Justice.

David Lee Sanders appeals from a judgment of Madison Circuit Court sentencing him to death on each of two convictions for murder and to consecutive twenty year terms of confinement on two convictions of robbery in the first degree.

According to the overwhelming evidence, including his own trial testimony, Sanders, on January 28, 1987, killed and robbed the proprietor of a convenience store, and also killed and robbed a visitor who had happened into the store and upon the crime in progress. Each victim was shot once in the back of the head. At trial, insanity was offered as the sole defense.


Appellant seeks review of forty-one listed issues, some of which comprise numerous sub-issues, and many of which were not preserved for review pursuant to RCr 9.22 or 9.54. Indeed, more than a few of these questions were not even raised below. Except where the trial court has a duty to intervene sua sponte to prevent manifest injustice, considerable semantic agility is required in order to assign error to the court respecting issues with which it has not been presented. 1 Where the death penalty has been imposed, we nonetheless review allegations of these quasi errors. Assuming that the so-called error occurred, we begin by inquiring: (1) whether there is a reasonable justification or explanation for defense counsel's failure to object, e.g., whether the failure might have been a legitimate trial tactic; and (2) if there is no reasonable explanation, whether the unpreserved error was prejudicial, i.e., whether the circumstances in totality are persuasive that, minus the error, the defendant may not have been found guilty of a capital crime, or the death penalty may not have been imposed. Cosby v. Commonwealth, Ky., 776 S.W.2d 367 (1989); Ice v. Commonwealth, Ky., 667 S.W.2d 671 (1984). All unpreserved issues are subject to this analysis.


Appellant contends that a number of errors compromised the integrity of the jury selection process. Claiming that he was denied an impartial jury and due process of law, appellant names eight members of the jury panel who he argues should have been excused for cause, but were not. Trial counsel objected to only three of the eight. 2 None of those three, and only one of the five challenged for the first time on appeal, sat on the final jury. It is elementary logic and sound law that a defendant's right to be tried by an impartial jury is infringed if and only if an unqualified juror participates in the decision of the case. Randolph v. Commonwealth, Ky., 716 S.W.2d 253 (1986); Sanborn v. Commonwealth, Ky., 754 S.W.2d 534 (1988); Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). 3

In the present case, therefore, our attention focuses first on the one allegedly objectionable panelist who became a member of the final jury. The juror under scrutiny visited the bench twice in response to questions during general voir dire, and was also examined in individual voir dire. He advised the court and counsel that, although he did not know her well, he and the wife of one of the victims were employed at the same hospital, he as a respiratory therapist on the third shift, and she as a business office employee on the day shift. He added that he had been introduced to her husband at a Christmas party. This juror further volunteered that he had heard some talk about the crime at the hospital, and had read some accounts, not amounting to much, in the newspaper. Counsel for the defense inquired of the juror whether his verdict might be affected due to his acquaintanceship with the wife of the victim, and, evidently satisfied with a negative response, declined to challenge for cause, or by peremptory strike.

In light of the record, we see nothing amiss in the proposition that counsel reasonably and responsibly found this juror to be competent, qualified, and impartial. Moreover, had the trial court been presented with a motion to excuse this juror for cause, we are not persuaded that denial of such motion would have amounted to an abuse of discretion. The juror disclaimed any bias. In our view, the facts that he had a passing acquaintance with the victim and the victim's wife, and a passing familiarity with the reported circumstances of the crime, are insufficient to demonstrate a probability of prejudice. Certainly the relationship here is of much less import than that in Pennington v. Commonwealth, Ky., 316 S.W.2d 221 (1958), where the juror was a first cousin to the prosecution's key witness, or that in Randolph v. Commonwealth, Ky., 716 S.W.2d 253 (1986), where the juror in question was an employee of the Commonwealth's Attorney. Nor do we find here significant additional circumstances implying bias, as was the case in Sanborn v. Commonwealth, Ky., 754 S.W.2d 534 (1988), where a juror was first cousin by affinity to a key prosecution witness, and in addition responded on voir dire that he would have to lean toward what that witness might say. Cf. Marsch v. Commonwealth, Ky., 743 S.W.2d 830 (1988); Peters v. Commonwealth, Ky., 505 S.W.2d 764 (1974). We conclude that the lately contested seating of the juror in the present case deprived the defendant neither of trial by an impartial jury nor due process of law.

The appellant also complains, with some justification, that the trial judge commented to the prosecutor, ex parte, that this same juror was "dying to get on." This brief remark casually conveyed a subjective opinion as to the juror's attitude toward service (an attitude as discernible by counsel as by the court); it conveyed no opinion that the juror was disposed either to serve and convict, or to serve and acquit. While we do not condone the comment, we are unable to perceive in it any prejudice to defendant's rights to due process, a fair trial, or rational sentencing.

We next examine the three potential jurors whom the defense unsuccessfully challenged for cause. The first of these stated on voir dire that he could decide the case solely upon the evidence heard in court, and could consider all penalty options and impose sentence according to the evidence. He further affirmed that he could follow the court's instructions. The court then asked whether there was any reason why the juror could not be fair and impartial. He replied, "Only that I've been robbed myself with a gun put to my head ... I'm a little paranoid over that, I think." When asked whether his experience would prevent him from being fair and impartial he replied, "I would hope not, but I never know." Defense counsel inquired whether, if a case involved a gun pointed at the victim's head and a robbery, the juror thought he could be objective and fair, to which he replied, "Well, you always think you can be objective. People with mental problems think they can be objective, but they aren't." Pursuing the possibility of bias, the court asked whether the juror could set aside whatever feelings he might have as a result of being a robbery victim and render a decision in this case upon the evidence heard. The juror replied, "I think I've come out of the trauma." The court, apparently satisfied that this juror was qualified, overruled the defendant's challenge for cause. Having reviewed the interrogation, we are unable to conclude that the trial court's ruling was clearly erroneous and an abuse of discretion. Peters v. Commonwealth, Ky., 505 S.W.2d 764 (1974); Scruggs v. Commonwealth, Ky., 566 S.W.2d 405 (1978); Caldwell v. Commonwealth, Ky., 634 S.W.2d 405 (1982).

A second potential juror stated on voir dire that, as a member of the Berea Police Department, he had seen a teletype message alerting the department to look for a Chevrolet Blazer which reportedly had been seen in the vicinity of the crimes. He stated that he had no other involvement with the investigation, and did not know who owned the Blazer. (He added that his judgment would not be affected if it were to be shown that the defendant was driving that vehicle.) Upon further questioning, this juror acknowledged that he was acquainted with two of the three officers expected to testify for the Commonwealth. When asked by the court whether he would give more weight to the testimony of these officers, he responded that he would listen to all the evidence and give it all equal weight. He added that he had no information concerning the case and was not involved in any investigation with any officer expected to testify for the Commonwealth.

We cannot agree with the appellant that this juror "participated in the investigation" in any substantial way. The fact that he was a law enforcement officer was not sufficient reason to excuse him for cause. Smith v. Commonwealth, Ky., 734 S.W.2d 437 (1987). Nor does the fact that the juror was acquainted with the officers who would testify for the Commonwealth establish bias as a matter of law. We conclude that the trial court did not abuse its discretion in denying the defense motion to excuse this juror for cause.

A third juror disclosed upon voir dire that he was acquainted, through his business, with one of the victims in the case. He stated that he had liked the victim, but also described the relationship as a casual one. When asked by the defense whether he had an opinion as to the guilt or innocence of the accused, the juror replied, "Oh, no." Responding to the court, he indicated that he thought he could be fair and impartial, regardless of his relationship with the victim.

The record does not persuade us that this juror had...

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