RENDERED: SEPTEMBER 28, 2017
TO BE PUBLISHED
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2015-SC-000712-DG
ROBERT MORRISON APPELLANT·.
ON REVIEW FROM COURT OF APPEALS
v. CASE NO. 2014-CA-001818-MR
HICKMAN CIRCUIT COURT NO. 14-CR-00023
COMMONWEALTH OF KENTUCKY· APPELLEE
OPINION OF THE COURT BY JUSTICE WRIGHT
REVERSING AND REMANDING ·
A Hickman Circuit. Court jury founcf Appellant, Robert Morrison, guilty of
escape and fleeing or evading police and found him to be a first-degree
persistent felony offentjer. The trial court sentenced Appellant to fifteen ·years'
imprisonment.· Appellant appealed to the Court of Appeals, arguing the trial
court erred in failing to strike a juror for cause, 1 and that court affirmed the
. trial court. Appellant sought.discretionary review wi.th this Court, which we
granted. For the reasons.that follow, we reverse the Court.of Appeals and
r~mand this matter to the trial court~
i Appellant also argued an unpreserved issue to the Court of Appeals; however,
that issue is not before this Court.
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. I. BACKGROUND
The facts underlying the escape· and fleeing or evading charges for which
Appellant was convicted are not at issue in·. this appeal. Appellant's sol~ issue
·_ involvesjury s~lection. ··During voir dire, :a juror, Mrs. Morris reverued that she
was the mother of the County Attorney, Sue ~llen Morris. The judge called the
juror to the- bench for a colloquy. She wa:s present d:uring the entirety of the
following exchange:
Judge: .How ya doing today, Mrs. Morris?
- Juror: Good.
Judge: You are Sue Ellen's mother?
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- Juror: _Yes.
.Judge: Would that cause you any problems today sitting,
hearing this_ case, and rendering a decision?
Juror: · - I don't thjnk so, but I didn;t want- ·
·Judge:_ Well, we appreciate ya telling everybody so everybody
else would know who you were.
Juror: _Okay.
Judge:_ All right.·. -
Defense: Judge, r would ask her-·for her to be excused for
cause. Sue Ellen :ls· the-Ms. Morris-I'm sorry-is the
attorney who did the preliininary hearing. l just do~'t
want there to be-albeit an appearance-:-and I don't
think it cures it by asking her. I think there is
pressure on her to say she can be unbiased and it's
just too dose to the case.
Judge: All right. ·Commonwealth?
Prosecutor: I don't have a problem with her sitting.. Like I said, I
think she is gonna make up her mind.
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Judge: Okay, Mrs. Morris, Jet me ask you this.~ Has Sue· Ellen
discussed this particular case·with you at all?
Juror: She doesn't discuss cases with me. Which she said
. she wouldn't want me on a jury. ·
Judge: She said she wouldn't want you? That's just cause
. you're her mama and she's trying to give you a way
out?
(All laugh)
Juror: I guess. I dot'.l't know ..
Judge: She doesn't discuss any case with you?·
Juror: No.
Judge: In particular, she ·has not discussed this case?
Juror: She has not-any cases.
Judge: And you don't have any knowledge of this case?
Juror: No.
Judge: And you don't feel like you have any bias one way or
the other since Sue Ellen-which she is the County .
Attorney-she's not in this case. She's not going to be
assisting [the prosecution] today is she?
Prosecutor: No.
Judge: She's not going to be called as a witness or anything.is
she? · ·
Defense: No, Judge.
Judge: Alright. Arid you are asking that she be excused for
cause?
Defense: Yes, I am-or even to keep her in reserve. That would
be okay, too, I guess. But I don't think we're gonna ·
have any shortage of.jurors today.
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Judge: What says the Commonwealth?
Prosecutor: I just don't feel like it's, a problem.
Judge: Well, nor do I. Mrs. Morris said she do~sn't know
anything about this case. She said Sue.Ellen, the
County Attorney, has not discussed any case with her.
·. I do not find that surprising or to be unusual.· I would
.expect nothing less of Ms. Morris, the County ·
Attorney .. She wouldn't discuss· a case going to trial.
Um, M~'am?
Juror: Yes.
Judge: I 8.m gonna allow ya to remain in box. Doesn't mean
you wi.11 get·to stay all day,. but I am gonna allow ya to
remain in. box: Motion overruled. ·
Defense: Yes Judge.
Judge: Thank ya, ma'am.
As shown above, the court denied the challenge for cause, finding that.
the juror had no actual knowledge of the case and that J~ror's daughter, the.
County Attorney, was not currently involved in the case. The trial court also
found that though she had been list6d on a preliminary witness list, the.
County Attorney was unlikely to be called· as a witness for the Commonwealth_.2
Later, Appellant used a peremptory strike on the juror in ,question and
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noted, with specifidty, the .name of the petitjuror he would have stricken, if the
juror in question had been removed for cause. As such, Appellant complied
with Gab~ard v. Commonwealth,_ 297. S.W._3d 844 (Ky. 2009)and properly
preserired the issue for appellate review.
2 In fact, the Count}' Attorney was not called as a witness· during the trial.
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II. ANALYSIS ·
As this Court has noted, "[l]ong-standing Kentucky law .has held that a
trial court's decision on wheth,er to strike a juror for cause must be reviewed ·
for abuse of discretion." Shane v. Commonwealth, 243 S.W.3d 336, 338 (Ky.
·2007) (citing Adkins v. Common,wealth,. 96 S.W.3d 779 (Ky. 2003); Pendleton v.
Commonwealth, 83 S.W.3d 522 (Ky. ·2002)). "The test for abuse of discretfon is
whether the trial judge'°s deGision was arbitrru}r, unreasonable, unfair,· or
unsupported by sound legal principles.·" Commonwealth v. English, 993 S.W.2d.
941, 945 (Ky. 1999)'.
Kentucky Criminal Rule 9.36(1) establishes the standard a trial court is
. .
required to apply during voir dire: "When there is reasonable ground to believe
that a prospective juror cannot render a fair and impartial verdict on the
. evidence, he shall be excused as not qualified." Furthermore, this Court has
recognized that a defendant's use.of peremptory strikes "is beyond. question a
· valuable right going to the defendant's peace of mind .and the public's view of
fairness." Shane, 24·3 S.W.3d at 339.
Our case law makes it clear that defendants should not be forced to use
. peremptory challenges to dismiss jurors who should be stricken for cause.
"[W]hen a .defendant is forced to use a peremptory strike on a juror who has
not been properly excused for cause, the court has actually taken away from
the number of peremptories_ given to the defendant by rule of this Court." Id.
Appellant
.
argues that
.
the mother-daughter relationship between the
juror and the County Attorney rendered the juror objectively biased and
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partial. If that relationship standing along was the sole factor, this case would
be a closer call-and t_hat question remains for another day~ However, after·
reviewing the video of Appellant's voir dire (as quoted above), it is not the
familial relationship iri and of itself that tainted this juror. Rather, the ju:ror
was tainted when she became privy to the bench session on the motion to
strike her for cause. By explaining the reasoning l?ehind that motion in the
juror's presence, defense counsel made the juror aware that her daughter had
conducted the preliminary hearing in this case. As such, counsel telegraphed_
disqualifying information to the juror, regardless of whetJ;ier she had previously
been qualified. Since the.juror was not involved in the felony prosecution, and
never dis.cussed cases with her daughter, without defense counsel's
· statements, she would have had no· reason to kri.ow that her daughter had ever
been 'involved in this case.
As it is, the juror was made aware that her daughter had once stood in
an adversarial position against Appellant on these charges. The Juror listened
as defense council .expressed d·oubt that she could be unbiased, .and sl,lggested
that she was under ·pressure to claim impartiality. Meanwhile·, the prosecutor
expressed his belief that the juror could be impartial. -The total effect of this
juror being_privy to the bench session acted to undermine "the mental attitude.
' . .
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of appropriate indifference" that is required of a juror at trial. Gabbard, 297
s. W.3d at 854. -
This Court has held: "Irrespective of the answers given on voir dire, the
court should presume the· likelihood of prejudice on the part of the prospective
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juror because the potential juror has such a close relationship, be it familial,
,!
finan_cial or situational, with any of the parties, counsel, victims or witnesses."
Mont[!o1nery v. Commonwealth, 819 S.W.2d 713, 717 (Ky. 1991) (quotations
omitted). We do not depart from that reasoning today, and agree that "[o]nce
that dose refationship is established, without regard to protestations of lack of
bias~ the court should ·sustain a challenge for cause and excuse the juror."
Ward v. Commonwealth, 695 S.W.2d 404,'40.7 (Ky .. 1985).
The juror in this. case is analogous to the "doubtful jurors"
.
for which this
Court has reversed trial courts for failing to strike. The fact that the
adversarial post the juror's. daughter occupied was "only" as the- 'attorn~y
conducting the preliminary hearing is irrelevant. For example, in Ordway v.
Comrrwnwealth, ·the juror in qu~stion was the sister of a victim's advocate who
was working with the Commonwealth. 391.S.W.3d 762, 782 (Ky. 2013). A
victim's advocate does not normally testify, advocate, or even speak in front of
the jury. Yet, this Court noted that "[g]enerally~ the victim's advocate in a
criminal case tends to be viewed as favoring, on the victim's behalf, retribution
against the defendant, and thus is generally allied with the interests of the
prosecutors." Ordway, 391 S.W.3d at 782.
The County AttOrney represented_ the Commonwealth of Kentucky in the
preliminary hearing and must necessarily be viewed as "allied with the
interests
. of the prosecutors." Id. In. finding reversible error due
. . to the trial
court's failure to strike the victim's advocate's sister for cause, we stated:
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In recent cases we have indicated that, when 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; that is, if a juror
falls within a gray area, he should be stricken.· We have attempted
to make this fundamental rule clear in a series of cases since
Shane v. Commonwealth, 243 S.W.3d 336 (Ky. 2007).
Nevertheless, all too often trial courts, as here, inexplicably put at
risk not only the resources of the Court of Justice, bl1t the
fundamentally fair trial they are honor-bound. to provide, by
seating jurors whose ability to try the case fairly and impartially is
justifiably doubted. · ·
Id. at 780. This Court has recently stated: "[t]rial judges are possessed of great
authority to enlarge jury pan~ls.or change venues. They don't_ have-to imperil
. their cases with such miserly voir dire l?ractices." . Sluss v. Commonwealth, 450
S.W.3d 279, 285 (Ky. 2014). There is no reason for a trial court to imperil. the
integrity of its proceedings by retaining questionable jurors ..
After a careful rev~ew of the proceedings, we fiqd that the: trial court
abused its discretion by denying Appellant's motion to strik~ the juror at issue.
for cause.
III. CONCLUSION
For the foregoing reasons, we reverse the decision of the Court of
Appeals, and_ remand this matter to the Hickman Ci~cuit Court for further
proceedings consistent with this opinion.
All sittjng. All concur.
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COUNSEL FOR APPELLANT:
Shannon Renee Dupree
Assistant Public Advocate
COUNSEL FOR APPELLEE:·
Andy Beshear
Attorney General
Gregory C. Fuchs
Assistant Attorney General
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