Trent v. Com.

CourtCourt of Appeals of Kentucky
Writing for the CourtBefore HAYES; HAYES
Citation606 S.W.2d 386
Decision Date03 October 1980
PartiesEarl TRENT, Appellant, v. COMMONWEALTH of Kentucky, Appellee. . Opinion Rendered

Page 386

606 S.W.2d 386
Earl TRENT, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
Court of Appeals of Kentucky.
Opinion Rendered Oct. 3, 1980.
Ordered Published Oct. 10, 1980.

Jack Emory Farley, Public Advocate of Kentucky, Frankfort, for appellant; William H. Mohr, Sullivan, Jacobs & Mohr, Lexington, of counsel.

Steven L. Beshear, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee.

Before HAYES, C. J., and GANT and WINTERSHEIMER, JJ.

HAYES, Chief Judge.

Earl Trent was convicted in December of 1979 of second degree assault for shooting a

Page 387

man named Shaun Mitchell with a shotgun. On appeal he argues that the jury was improperly selected, the court should have given an instruction on third degree assault, and the prosecutor's closing argument was unfairly prejudicial.

A panel of twenty-five prospective jurors was seated and examined as a group. The court announced that after counsel exercised their strikes the top twelve remaining on the panel would become the jury. This method is practically identical to the method which was held to be reversible error in Robertson v. Commonwealth, Ky., 597 S.W.2d 864 (1980). In Robertson, the court held that this method violated RCr 9.30(1) and KRS 29A.060.

The Commonwealth contends that the jury selection method which was used is now permissible under amendments to the criminal rules which were effective January 1, 1980, and that it would be senseless to remand for a new trial because the result would be a trial using the same jury selection method. The Commonwealth cites RCr 9.32, which states that CR 47.02 shall apply in criminal cases. However, this rule relates to selection of alternate jurors and is not relevant to the case before us.

The relevant rule is RCr 9.36, which states that CR 47.03(2) and (3) shall apply to peremptory challenges in criminal cases. Under this rule each side is given a list of qualified jurors "equal to the number of jurors to be seated plus the number of allowable peremptory challenges for all parties." The trial court chose the correct number by adding the twelve to be seated and the eight peremptory challenges which the defendant could exercise and the five peremptories which the Commonwealth could exercise, for a total of 25.

However, the court deviated from the rule by announcing that after both sides had exercised their peremptory challenges the court would select the top twelve to be the jury. This meant that counsel knew in advance who the...

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8 practice notes
  • Caretenders, Inc. v. Com., No. 90-SC-000813-DG
    • United States
    • United States State Supreme Court (Kentucky)
    • 19 Diciembre 1991
    ...is not made during the course of the argument. Barnett v. Commonwealth, Ky., 403 S.W.2d 40 (1966). Trent v. Commonwealth, Ky.App., 606 S.W.2d 386 (1980). Caretenders did not move for a mistrial or in any other way object on this ground until after the conclusion of the prosecution's argumen......
  • Samples v. Com., No. 97-SC-015-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • 3 Septiembre 1998
    ...the rule rather than the statute. Williams v. Commonwealth, Ky.App., 734 S.W.2d 810, 812 (1987); Trent v. Commonwealth, Ky.App., 606 S.W.2d 386 (1980). Regardless, we do not perceive any conflict between KRS 29A.070(7) and Ad.Proc. Part II § 7(7). The statute vests the discretion in the "co......
  • Williams v. Com., No. 86-CA-1270-MR
    • United States
    • Court of Appeals of Kentucky
    • 12 Junio 1987
    ...between the rules and the statute must be resolved by following the rules rather than the statute. See Trent v. Commonwealth, Ky.App., 606 S.W.2d 386, 387 (1980), where we found that an initial panel of 25 potential jurors conformed with RCr The central principle in any jury selection is th......
  • Phillips v. Commonwealth, No. 2005-CA-001151-MR (Ky. App. 4/20/2007), No. 2005-CA-001151-MR.
    • United States
    • Court of Appeals of Kentucky
    • 20 Abril 2007
    ...Therefore, the instruction was not warranted. See Taylor v. Commonwealth, 995 S.W.2d 355, 362 (Ky. 1999). Further, Trent v. Commonwealth, 606 S.W.2d 386 (Ky. App. 1980), is instructive on this issue. In Trent the court determined that firing a gun "wildly without aiming" constituted intenti......
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8 cases
  • Caretenders, Inc. v. Com., No. 90-SC-000813-DG
    • United States
    • United States State Supreme Court (Kentucky)
    • 19 Diciembre 1991
    ...is not made during the course of the argument. Barnett v. Commonwealth, Ky., 403 S.W.2d 40 (1966). Trent v. Commonwealth, Ky.App., 606 S.W.2d 386 (1980). Caretenders did not move for a mistrial or in any other way object on this ground until after the conclusion of the prosecution's argumen......
  • Samples v. Com., No. 97-SC-015-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • 3 Septiembre 1998
    ...the rule rather than the statute. Williams v. Commonwealth, Ky.App., 734 S.W.2d 810, 812 (1987); Trent v. Commonwealth, Ky.App., 606 S.W.2d 386 (1980). Regardless, we do not perceive any conflict between KRS 29A.070(7) and Ad.Proc. Part II § 7(7). The statute vests the discretion in the "co......
  • Williams v. Com., No. 86-CA-1270-MR
    • United States
    • Court of Appeals of Kentucky
    • 12 Junio 1987
    ...between the rules and the statute must be resolved by following the rules rather than the statute. See Trent v. Commonwealth, Ky.App., 606 S.W.2d 386, 387 (1980), where we found that an initial panel of 25 potential jurors conformed with RCr The central principle in any jury selection is th......
  • Rowe v. Com., No. 1999-CA-002300-MR.
    • United States
    • Court of Appeals of Kentucky
    • 6 Julio 2001
    ...as a matter of law because the injury could only reasonably be found to be a serious physical injury. Trent v. Commonwealth, Ky.App., 606 S.W.2d 386, 387-88 (1980)(victim was shot and hospitalized requiring five surgeries and sustained muscle and nerve damage that prevented him from moving ......
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