Sturgeon v. Commonwealth

• Decision Date: 15 June 2017
• Docket Number: 2015-SC-000585-MR
• Citation: 521 S.W.3d 189
• Parties: Anthony STURGEON, Appellant v. COMMONWEALTH of Kentucky, Appellee
• Court: United States State Supreme Court — District of Kentucky

521 S.W.3d 189

Anthony STURGEON, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2015-SC-000585-MR

Supreme Court of Kentucky.

JUNE 15, 2017

COUNSEL FOR APPELLANT: Robert Chung-Hua Yang, Assistant Public Advocate.

COUNSEL FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, Gregory C. Fuchs, Assistant Attorney General.

OPINION OF THE COURT BY JUSTICE VENTERS

Appellant, Anthony Ray Sturgeon, appeals from a judgment of the Campbell Circuit Court convicting him for the murder of his brother, Randal Sturgeon; and sentencing him to twenty-five years in prison. He contends that the trial court erred by: (1) failing to dismiss two jurors for cause; (2) failing to instruct the jury on the lesser offense of reckless homicide; and (3) admitting into evidence several hearsay statements of the victim made shortly before his death. We affirm the judgment of the Campbell Circuit Court.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant was an ironworker in northern Kentucky who fell upon hard times as construction jobs dwindled during the recent economic recession. Eventually, he moved back into his childhood home where his brother, Randal, lived. Appellant's son, Jason, also moved into the house. The residence was subject to a foreclosure proceeding so each of the three occupants knew he must soon find another place to live.

On July 1, 2013, Appellant shot and killed Randal who was reclining on the couch in the living room of the residence they shared. Immediately after the shooting, Appellant called 911. He told the 911 operator that he and his brother had argued; that he did not intend to shoot him; and that he fired the gun accidentally.

The next morning Appellant gave police investigators a more complete explanation of the event. He said that he and Randal argued over a number of things, including Randal's failure to clean up the kitchen, his excessive consumption of milk, and Appellant's belief that Randal had pocketed for himself the money he collected from Appellant and Jason to pay bills.

The matter came to a head when Appellant learned that Randal was moving out and taking with him the Wi-Fi router used at the residence for internet service. Jason had just paid the monthly internet service fee and without the router the payment would be wasted. Appellant said that he paced about his room pondering what to do as the pressure mounted within him. After concluding that he was "fucked" and would be the "weak one" if he did not do "something," Appellant decided to confront Randal with a loaded gun. He told police that at one point he feared Randal was "going to get" him and that he wanted to hurt Randal,¹ but that his purpose for wielding the gun was only to scare Randal.

Appellant explained when he approached Randal, he touched the trigger of the gun and "it just went off." Appellant said he had not previously handled the gun and was surprised when it fired so easily. The bullet struck Randal in the chest; he died almost immediately.

Appellant's principal theory of defense was that he was not guilty of murder because he had acted under the impelling force of extreme emotional disturbance triggered by his anger that Randal was taking the Wi-Fi router right after Jason had paid the bill for internet service. The jury rejected this defense and convicted Appellant of murder.

II. ANALYSIS

A. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN FAILING TO STRIKE JUROR 500 FOR CAUSE.

1. Application of RCr 9.36(1)

Appellant first contends that the trial court erred by failing to grant his motions to strike for cause two prospective jurors, identified as Juror 500 and Juror 566. In the final analysis, whether to excuse a juror for cause rests upon the sound discretion of the trial court and on appellate review, we will not reverse the trial court's determination "unless the action of the trial court is an abuse of discretion or is clearly erroneous." Ordway v. Commonwealth , 391 S.W.3d 762, 780 (Ky. 2013). Implicit in that rule is the assumption that the trial court has applied the correct standard for exercising it discretion. We conclude that, the trial court applied the correct standard; however, we concede that we have allowed the standard for judging for-cause challenges of prospective jurors to drift too far from its anchor: RCr 9.36(1).

RCr 9.36(1) plainly and succinctly establishes the standard by which trial courts are to decide whether a juror must be excused for cause. The rule says: "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."

Rule 9.36(1) is the only standard for determining whether a juror should be stricken for cause. A clearer, more concise expression would be difficult to conceive. "Reasonable ground to believe" is a familiar, easily-applied concept that trial judges use regularly in a variety of situations. As with statutes, courts are obligated to interpret our formally-adopted rules in accordance with their plain language. Hazard Coal Corporation v. Knight , 325 S.W.3d 290, 296 (Ky. 2010) ("[W]e interpret the civil rules in accordance with their plain language.... The mandate of CR 39.01 is unmistakable in its clarity."); Parrish v. Commonwealth , 283 S.W.3d 675, 677 (Ky. 2009) ("[W]e must accept the plain meaning of the language of the rule [ RCr 11.42 ]."); Lanham v. Commonwealth, 171 S.W.3d 14, 21 (Ky. 2005) ("More importantly, however, we cannot ignore the plain language of the rule [ KRE 103(d) ]."). Despite the plain and forthright language of RCr 9.36(1), in a variety of cases over the years, we have expounded upon the rule to the detriment of its plain language.

Our divergence from RCr 9.36(1)'s plain language started after Mabe v. Commonwealth , 884 S.W.2d 668 (Ky. 1994). Mabe explained why a prospective juror who had voiced a personal aversion to certain legal principles could not simply be "rehabilitated" with a "magic question" allowing the juror to disavow his previously-expressed opinion on the law, as held in Montgomery v. Commonwealth , 819 S.W.2d 713 (Ky. 1992). Our explanation concluded with this statement:

A per se disqualification is not required merely because a juror does not instantly embrace every legal concept presented during voir dire examination. The test is not whether a juror agrees with the law when it is presented in the most extreme manner. The test is whether, after having heard all of the evidence, the prospective juror can conform his views to the requirements of the law and render a fair and impartial verdict.

884 S.W.2d at 671 (emphasis added). Mabe made no mention of RCr 9.36(1).

Taken out of context, the last sentence of the above quote might appear to express a new and definitive test ("the test") for determining when a juror must be excused for cause, and indeed, numerous opinions rendered after Mabe construed it in precisely that manner. See e.g. Little v. Commonwealth, 422 S.W.3d 238, 244 (Ky. 2013) ; Dunlap v. Commonwealth , 435 S.W.3d 537, 581 (Ky. 2013) ; Ordway v. Commonwealth, 391 S.W.3d 762, 781 (Ky. 2013) ; King v. Commonwealth, 276 S.W.3d 270, 278 (Ky. 2009) ; Fugett v. Commonwealth, 250 S.W.3d 604, 622-623 (Ky. 2008) ; Wheeler v. Commonwealth, 121 S.W.3d 173, 179 (Ky. 2003) ; Caudill v. Commonwealth, 120 S.W.3d 635, 656 (Ky. 2003) ; and Thompson v. Commonwealth, 147 S.W.3d 22, 51 (Ky. 2004).

Wheeler further diminished the primacy of RCr 9.36(1) by identifying the Mabe phraseology not as "the test," but as "the true test," for determining when a juror should be stricken for cause.

121 S.W.3d at 179. We repeated the unfortunate expression in King , 276 S.W.3d at 278, and Ordway, 391 S.W.3d at 781 (referring to the Mabe phrasing as "the established test").

To be clear, the Mabe iteration was not intended to replace RCr 9.36(1), and properly construed, it does not do so. However, as subsequently applied, the phrasing has been construed to mean that a prospective juror is excused for cause only if the trial court specifically finds that the juror cannot render a fair and impartial verdict or conform his views to the requirements of the law.² Rule 9.36(1) requires no such finding; instead, regardless of the juror's actual ability to render a fair and impartial verdict, Rule 9.36(1) mandates the removal of a juror if there is merely "a reasonable ground to believe" that he cannot render a fair and impartial verdict. The difference is palpable. Just as "probable cause" or "reasonable grounds" to support an arrest does not require an actual belief in the verity of the charge, "a reasonable ground to believe" a prospective juror cannot be fair and impartial is not tantamount to an actual finding that the juror cannot be fair and impartial. RCr 9.36(1) requires only that there be a "reasonable ground to believe" that he cannot. When the trial court is satisfied that a "reasonable ground" exists, the juror "shall be excused." RCr 9.36(1).

We confronted the issue less directly in Ordway by holding:

[W]hen there is uncertainty about whether a prospective juror should be stricken for cause, the prospective juror should be stricken. The trial court should err on the side of caution by striking the doubtful juror.... [W]here questions about the impartiality of a juror cannot be resolved with certainty, or in marginal cases, the questionable juror should be excused.

391 S.W.3d at 780. That is the essence of RCr 9.36(1). The trial court's ultimate belief that a challenged juror "can conform his views to the requirements of the law and render a fair and impartial verdict" does not necessarily dispel a "reasonable ground to believe" otherwise, and thus does not satisfy the requirement of RCr 9.36(1).

As reflected in the standards set forth above, a juror who explicitly admits that he will not or cannot follow the law as contained in the instructions, has by definition identified himself as a "doubtful" juror who must be excused for cause. Ordway , 391 S.W.3d at 780. We...