Stroud v. Com., 95-SC-197-MR
| Decision Date | 23 May 1996 |
| Docket Number | No. 95-SC-197-MR,95-SC-197-MR |
| Citation | 922 S.W.2d 382 |
| Parties | Ramone L. STROUD, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Daniel T. Goyette, Jefferson District Public Defender, J. David Niehaus, Deputy Appellate Defender of the Jefferson District Public Defender, Louisville, for Appellant.
A.B. Chandler III, Attorney General, Vickie L. Wise, Assistant Attorney General, Criminal Appellate Division, Office of the Attorney General, Frankfort, for Appellee.
This appeal is from a judgment based on a jury verdict which convicted Stroud of first-degree robbery and second-degree escape. He was sentenced to a total of 31 years in prison.
The questions presented relate to the selection of the members of jury venire, the imposition of an enhanced sentence and whether the defendant was guilty of second-degree escape as a matter of law.
The robbery victim testified that he was approached by Stroud on a Louisville street who stuck a gun in his stomach and took $170 from him. Stroud testified in his own behalf to the effect that the two had been negotiating about a "taxi ride." The jury found Stroud guilty of first-degree robbery. After a sentencing hearing, the jury imposed an initial penalty of 15 years in prison which was enhanced to 30 years upon conviction as a persistent felony offender in the second degree. The parties entered into a plea agreement as to the escape charge which was based on the fact that Stroud had disconnected a bracelet required to be worn by him by the home incarceration program in Jefferson County. Stroud was required to serve one additional year on the second-degree escape charge to run consecutively to the enhanced 30 year sentence for a total of 31 years in prison. This appeal followed.
Stroud's first allegation of error is that members of the jury panel were improperly selected because the trial judge allowed a jury pool official to choose members of the panel rather than have such a selection made in open court.
We affirm the trial court for two reasons. First, this issue was not properly preserved for appellate review. Copley v. Commonwealth, Ky., 854 S.W.2d 748 (1993); RCr 9.22. RCr 9.34 mandates that any challenge to the jury selection process must "precede the examination of the jurors." Brodgen v. Commonwealth, Ky., 476 S.W.2d 192 (1972).
In addition, the arguments presented by Stroud are totally without merit. It is not the first time this type of argument has been presented. RCr 9.30(1)(a) states that the circuit court clerk shall draw names from the jury box in open court sufficient to compose an actual jury in a jury trial. Subsection 2 of the rule provides that the jury selection process shall be conducted in accordance with Part Two (2) of the Administrative Procedures of the Court of Justice. RCr 9.30 makes no reference of any kind to prior stages of determining the composition of a jury panel. Sections Two through Sixteen of the Administrative Procedures of the Court of Justice provide that a jury pool be randomly selected by a computer from registered voters and adults holding drivers licenses. The procedure also allows the chief circuit judge, or a designee thereof, to select a sufficient number of names from this randomized list to constitute a jury pool. There is no requirement that any of these steps be performed in open court.
In this case, the jury pool designee filed a "certificate of randomization" verifying the prospective jury panel members as being randomly selected from the pool of those available for such service.
RCr 9.30 requires only that the selection of the actual petit jury from the jury panel be in open court. The random selection of the names which consist of the jury panel from which the actual petit jury is chosen is not required to be performed in open court. The administrative procedure was correctly followed in this case. Commonwealth v. Nelson, Ky., 841 S.W.2d 628 (1992) determined that statutes and regulations pertaining to the impaneling of juries, the duty of judges and other officials are not mandatory and will not result in reversal unless a substantial deviation from those statutes or regulations occur. In this case, there was no substantial deviation, or any deviation of any kind.
Stroud contends that he was ineligible for enhancement because the second-degree PFO statute cannot enhance a conviction of first-degree robbery. He claims that the trial judge improperly enhanced his 15 year sentence on the robbery charge to 30 years after finding him guilty of being a second-degree PFO. The method of enhancement of Stroud's sentence following conviction as a second-degree felony offender was proper pursuant to KRS 532.080(5) and KRS 532.060(2).
Stroud's reliance on Offutt v. Commonwealth, Ky., 799 S.W.2d 815 (1990), is misplaced. Offutt, supra, stated that the foundation of our conclusion was that KRS 532.080 provides for enhanced penalties only in lieu...
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