Justin Curry v. Commonwealth of Kentucky

               Supreme Court of Kentucky
                                 2019-SC-0306-MR

JUSTIN CURRY                                                         APPELLANT


               ON APPEAL FROM JEFFERSON CIRCUIT COURT
V.                HONORABLE MITCHELL PERRY, JUDGE
                           NO. 17-CR-002410


COMMONWEALTH OF KENTUCKY                                              APPELLEE



 ORDER DENYING PETITION FOR REHEARING AND MODIFYING OPINION

      The Petition for Rehearing, filed by the Appellant, Justin Curry, of the

Opinion of the Court rendered May 28, 2020, is DENIED.

      The Opinion of the Court is corrected on its face by substitution of the

attached corrected Opinion entered December 17, 2020, in lieu of the original

Opinion of the Court. Said correction does not affect the holding of the original

Opinion of the Court.

      All sitting. All concur.

      ENTERED: December 17, 2020.



                                        _______________________________________
                                                 CHIEF JUSTICE
                                             MODIFIED: DECEMBER 17, 2020
                                                  RENDERED: MAY 28, 2020
                                                         TO BE PUBLISHED


               Supreme Court of Kentucky
                              2019-SC-0306-MR



JUSTIN CURRY                                                        APPELLANT


               ON APPEAL FROM JEFFERSON CIRCUIT COURT
V.                HONORABLE MITCHELL PERRY, JUDGE
                           NO. 17-CR-002410


COMMONWEALTH OF KENTUCKY                                               APPELLEE


              OPINION OF THE COURT BY JUSTICE LAMBERT

                                 AFFIRMING

      Justin Curry was convicted of one count of murder and one count of

possession of a firearm by a convicted felon. He was sentenced to life

imprisonment after he was found to be a first-degree persistent felony offender.

He now appeals his convictions to this Court. After review, and finding no

error, we affirm.

                       I.   FACTUAL BACKGROUND

      At the time of the offenses committed in this case, Curry had recently

been released from jail and placed in Louisville Metro Department of

Corrections’ home incarceration program (HIP). HIP enrollees are still

considered inmates of Louisville Metro Corrections but are permitted to serve

out their sentence at a HIP approved residence rather than in jail. Enrollees
are only allowed to leave their HIP residence with prior approval or in

emergency situations. Curry’s HIP residence was the apartment of the victim

in this case, James Harris. Curry and Harris were life-long friends and

considered each other to be family.

       The night before the murder several people went to Harris’ apartment to

hang out, Tierra Coleman was among them. Evidence about the nature of

Curry’s relationship with Coleman was conflicting. Text messages between the

two suggested they were in a romantic relationship and Coleman testified that

she was Curry’s girlfriend, but Curry denied this. He also denied that Coleman

stayed at the apartment that night at his request. Regardless, it was

undisputed that there was a no contact order between the two of them at the

time due to a domestic violence incident that was not addressed in any detail

at trial.

       At approximately 8 a.m. on the day of the shooting, Curry texted his

mother and asked her to call 911 and have police sent to Harris’ apartment.

When Officers Marquez Hughes and Benjamin Shelton arrived, Curry told them

he wanted to go back to jail. He explained to Ofc. Hughes that one of the

people who was at the apartment the night before spilled something in the

kitchen, Harris was blaming him for it, and he wanted to leave the apartment.

He did not mention the no contact order between himself and Coleman. Ofc.

Hughes testified that Curry’s demeanor was calm, and that he did not sense

any potential danger at the scene. Ofc. Shelton spoke to Coleman and Harris,

and testified Harris was relaxed.

                                        2
       Ofc. Hughes told Curry that they could not take him to jail because he

had not committed a crime. But he contacted Curry’s assigned HIP officer,

Officer Wes Prebeck, to try to remedy the situation. Curry was instructed to

either call the HIP office or go to the HIP office to change his HIP address. The

officers left the scene, and Coleman left shortly after them. Curry never

contacted the HIP office that day.

       Later that morning Curry began texting another one of his friends,

Arthur Simpson. The relevant portions of those texts read:1

              CURRY: I need you to go to my mom’s and bring me
              something.

              CURRY: If anybody ask you coming to use.

              CURRY: I need that thing over here ASAP and show
              her the right ones that go in.

              SIMPSON: Where’s it at, Fam?

              CURRY: Mom.

              SIMPSON: You want me to get it now?

              CURRY: Yeah, if you can.

              CURRY: Show which one goes.

              SIMPSON: What?

              CURRY: Bullets.

              CURRY: I need 9.



       1The record submitted to us on appeal does not contain copies of the
photographs of the text messages. We are therefore using the Commonwealth’s
restatement of the texts from its appellate brief, as it was the only party to provide
them. The Commonwealth acknowledges its restatement is not verbatim.

                                            3
The Commonwealth theorized that Curry was asking Simpson to bring Curry’s

9mm handgun from his mother’s home, and to make sure that Simpson got the

right kind of bullets for the gun. Curry, who testified on his own behalf, said

that he did not know what he meant by the texts. Simpson testified2 that he

brought Curry a bag with underclothes and a belt in it from Curry’s mother’s

house, but the bag did not contain a gun. Simpson told Detective Jody Speaks

in a recorded interview shortly after the shooting that when he arrived at the

apartment to give Curry the bag, Curry did not have a gun. Simpson then

went to the store to get some things for Curry, and when he arrived back at the

apartment Curry had a 9mm pistol tucked in his waistband.

      Curry testified to the following regarding Harris’ death: shortly after

10:40 that evening, Curry and Harris were the only people in the apartment.

Curry said Harris “started talking crazy to him” and getting aggressive. Curry

was scared of Harris and did not know what to do, and Harris started coming

towards him. Curry looked down and saw a gun on the couch he was sitting

on; he picked up the gun and shot Harris. He did not know how many times

he fired the gun or how many times he hit Harris. Curry said he did not know

where the gun came from and it was not his. He called 911 immediately.

      The forensic evidence demonstrated that Curry fired eight rounds from a

Taurus 9mm pistol. Three of the rounds struck Harris: one round went in his




       2 It should be noted that Simpson was a hostile witness and refused to swear

that his testimony would be the truth prior to testifying.

                                          4
back and out his armpit, one hit his left thigh and fragmented, and one entered

through his forehead and exited through the back of his head. The medical

examiner testified that the shot to the head would have been immediately

incapacitating. A firearms expert testified that, based on the absence of a

gunshot residue pattern on Harris’ shirt, it was unlikely the shots were fired

any closer than two and a half feet away. Finally, Detective Jody Speaks found

pieces of Harris’ brain matter on the floor near his body, which he testified was

consistent with the shot to his head being fired while he was lying on the floor.

      Based on the foregoing, the jury convicted Curry of murder and of being

a convicted felon in possession of a firearm. He was later found to be a first-

degree persistent felony offender and was sentenced to life imprisonment.

      Additional facts are discussed below as necessary.

                               II.    ANALYSIS

      Curry asserts two arguments on appeal. First, he alleges the trial court

erred by denying his request for a “no duty to retreat” jury instruction. He also

contends that the trial court erred by failing to strike two jurors for cause. We

will address each argument in turn.

                       A. No duty to retreat instruction

      Curry’s first argument on appeal is that the trial court erred by failing to

give the jury a no duty to retreat instruction. This argument was properly




                                        5
preserved by Curry’s tender of an instruction on no duty to retreat.3 We review

a trial court’s ruling regarding jury instructions for abuse of discretion.4 A trial

court abuses its discretion when it rules in a way that is arbitrary,

unreasonable, unfair, or unsupported by sound legal principles.5

      While we otherwise agree that the evidence presented at trial warranted a

no duty to retreat instruction, Curry was not entitled to that instruction

because he was engaged in an unlawful activity when he shot Harris.

      To begin, although it is not dispositive of this issue, we believe it is

important to address whether the evidence, standing alone, warranted a no

duty to retreat instruction, as our case law in this area is fairly scant.

      Kentucky’s codification of a criminal defendant’s right to stand his or her

ground is found in KRS6 503.055(3), which states:

               A person who is not engaged in an unlawful activity
               and who is attacked in any other place where he or
               she has a right to be has no duty to retreat and has
               the right to stand his or her ground and meet force
               with force, including deadly force, if he or she
               reasonably believes it is necessary to do so to prevent
               death or great bodily harm to himself or herself or
               another or to prevent the commission of a felony
               involving the use of force.

The first case to address this codification was Commonwealth v. Hasch, which

ultimately held:




      3   Kentucky Rule of Criminal Procedure (RCr) 9.54(2).
      4   Ratliff v. Commonwealth, 194 S.W.3d 258, 274 (Ky. 2006).
      5   Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
      6   Kentucky Revised Statute.

                                           6
                 [t]herefore, in light of the enactment of KRS 503.055
                 and KRS 503.050(4),7 we now agree that when
                 presented with circumstances in which the provisions
                 of those statutes are applicable, and upon the request
                 of one of the parties, the trial court must include
                 among the jury instructions, a “no duty to retreat”
                 instruction[.]8

      Two years later, in Ragland v. Commonwealth9 we expounded upon and

clarified our holding in Hasch. In Ragland, the trial court gave the jury a no

duty to retreat instruction in addition to an instruction on self-defense.10 On

appeal to this Court, Ragland argued that it was reversible error for the trial

court to do so because the no duty to retreat instruction “introduced several

factors and conditions that did not apply under the facts of [the] case and,

instead, served only to confuse the jury and prevent them from properly

considering his defense.”11 The Commonwealth argued that the instruction

was proper because “it was almost identical to the language this Court

expressly approved in Commonwealth v. Hasch.”12

      To address these arguments, this Court began by making it clear that the

fact that a criminal defendant is entitled to a jury instruction on self-defense




      7  KRS 503.050(4) provides simply that “[a] person does not have a duty to
retreat prior to the use of deadly physical force.”
      8   421 S.W.3d 349 (Ky. 2013).
      9   476 S.W.3d 236 (Ky. 2015).
      10   Id., at 243.
      11   Id.
      12   Id.

                                           7
does not automatically entitle him to an additional instruction on no duty to

retreat.13 Specifically,

               it is only in such situations where evidence of an
               apparent means of retreat is so intertwined in the
               evidence in the case that the trial court should give an
               appropriate no-duty-to-retreat instruction based on
               KRS 503.055(3). This is because so doing prevents the
               jury from improperly considering the available means
               of retreat, or the defendant's knowledge of the
               available means, as evidence that the use of force was
               not reasonably necessary or that the defendant did not
               subjectively believe that the use force was necessary.
               But when there is no such risk, because the jury is not
               presented with any such evidence to improperly
               consider, there is no need to give the instruction.14

We ultimately concluded that it was reversible error for the trial court to

instruct the jury on no duty to retreat because

               [n]one of the circumstances surrounding the incident
               at [the victim’s] apartment suggested that Ragland had
               an available route for retreat, or other opportunity to
               altogether avoid the confrontation and his violent
               response, that could have otherwise created a risk that
               the jury w[ould] be misdirected to give it improper
               consideration.15

      In this case, we are presented with the inverse situation to that of

Ragland; Curry wanted an instruction on no duty to retreat and the trial court

declined to give it. However, our analysis of the issue remains the same.

Whether Curry would have otherwise been entitled to a no duty to retreat

instruction had he not been engaged in an unlawful activity at the time of the



      13   Id., at 244.
      14   Id. (internal citations and quotation marks omitted).
      15   Id. (internal quotation marks omitted).

                                             8
shooting still revolves around one question. That is, whether there was

evidence of an available route for retreat or other opportunity to altogether

avoid the confrontation that was so intertwined in the evidence that it makes it

more logical to give a no duty to retreat instruction because the jury might

have improperly considered the means of retreat as evidence that Curry’s use

of force was not reasonably necessary or that Curry did not subjectively believe

that use of force was necessary. We believe it was.

      The “opportunity to avoid the confrontation” with Harris that Curry had

in this case was his chance to get his HIP residence changed on the morning of

the shooting. This fact was discussed numerous times throughout both the

Commonwealth and the defense’s case-in-chief.

      In the Commonwealth’s opening statement, it mentioned that Curry was

directed to contact Ofc. Prebeck that morning and failed to do so. Ofc. Hughes

later testified that he told Ofc. Prebeck that Curry was afraid of violating the

rules of his HIP agreement if he stayed at Harris’ apartment and wanted to get

his HIP address changed. Ofc. Hughes testified that Ofc. Prebeck told him

Curry could “absolutely” do that, and all Curry needed to do was contact the

HIP office.

      Ofc. Prebeck himself also testified. According to Prebeck, a HIP enrollee

does not need a court order to get his HIP address changed, that it is at the

discretion of their assigned HIP officer. He further noted that, even if Curry

could not be placed at an address he requested because of HIP’s rules, he had

the option to be returned to jail. Ofc. Prebeck testified that he intended to

                                         9
discuss all of Curry’s options with him that day, but Curry never tried to

contact him. During cross-examination of Ofc. Prebeck, the defense asked

whether being in violation of a no contact order was a criminal offense, and

Ofc. Prebeck responded that it was. Because of this, the jury could discern

that Curry had another possible means of leaving the apartment that morning:

if he would have told the officers about the no contact order between himself

and Coleman, they would have had grounds to take him to jail, which was

what Curry initially told them he wanted.

      Finally, during the Commonwealth’s cross-examination of Curry, counsel

specifically stated, “you had opportunities to get out [of the apartment] and you

didn’t go.” The Commonwealth first discussed how Curry had at least twenty

dollars in his pocket that morning based on Ofc. Hughes’ body cam footage of

Curry’s person being searched. Based on this, she suggested he could have

called a taxi, but did not. Counsel also noted that Curry had at least two

people, Coleman and Simpson, bring him things like clothing, food, and

cigarettes, and that either one of them could have taken him to the HIP office

but he did not ask them to. The Commonwealth again noted Curry’s failure to

contact the HIP office that day in its closing argument.

      We believe that the unfolding of these facts was so interwoven with the

evidence against Curry that it created a risk that the jury would improperly

consider his failure to have his HIP address changed when he had the ability to

as evidence that his use of deadly force was not reasonably necessary or that

he did not subjectively believe that the use deadly force was necessary.

                                       10
      However, because of clear statutory language, we hold that the trial court

did not abuse its discretion by declining to give the jury a no duty to retreat

instruction because it correctly found that Curry was engaged in an unlawful

activity at the time of the shooting.

      As previously mentioned, KRS 503.055(3) requires both that a defendant

is “not engaged in unlawful activity” and “is attacked in any other place where

he or she has a right to be” before the provisions of that statute apply. While

Curry was lawfully in Harris’ apartment, the trial court declined to give Curry a

no duty to retreat instruction because it found that he was a convicted felon in

possession of a firearm, which is unlawful under Kentucky law.16 Curry argues

that the trial court’s ruling was reversible error for two reasons, each of which

we will address in turn.

      Curry first asserts that possessing a firearm is not an inherently

unlawful activity, and it is only his status as a convicted felon that made it

unlawful. By that standard, he reasons, a person who possessed a firearm and

used it while acting in self-defense is entitled to a no duty to retreat jury

instruction, while an otherwise identically situated convicted felon is not.

Curry essentially advocates for an exception to the no duty to retreat statute

that would allow juries to be instructed as to no duty to retreat even if the

defendant was a convicted felon in possession of a firearm.

      But as we have discussed, Kentucky’s no duty to retreat rule is a

creature of statute. Creating exceptions to clearly worded statutes is not

      16   See KRS 527.040.

                                         11
within the province of this Court: “[w]here a statute is plain and unambiguous

on its face, we are not at liberty to construe the language otherwise[.]”17 KRS

503.055(3) could not be more clear that a defendant is not entitled to a no duty

to retreat instruction if they are engaged in unlawful activity. And KRS

527.040 provides that being a convicted felon in possession of a firearm is

either a Class C or Class D felony. Therefore, we hold that being a felon in

possession of a firearm is an unlawful activity for the purposes of determining

a defendant’s entitlement to a no duty to retreat instruction.18

       We acknowledge the angst as expressed in the separate concurring

opinion that this holding, at first glance, may seem like cause for concern.

However, we believe that opinion conflates the circumstances necessitating a

self-defense instruction and those necessitating a no duty to retreat

instruction. Again, simply because a defendant is entitled to a self-defense

instruction does not automatically entitle him to an additional instruction on

no duty to retreat.

       In the hypothetical, a situation is presented where “a felon is inside his

home. There are no guns inside of the home, and he is not otherwise engaged

in any illegal activity. A burglar breaks into his home, armed with a firearm.

The homeowner/felon is able to disarm the intruder and shoots him while

defending himself and his home.” Under these facts, assuming the

       17   Pennyrile Allied Cmty. Servs., Inc. v. Rogers, 459 S.W.3d 339, 343 (Ky. 2015).
       18We also note that, in addition to the right to bear arms, many other
constitutionally protected rights are taken away when an individual is convicted of a
felony such as the right to hold office (Ky. Const. § 150), the right to vote (Ky. Const. §
145), and the right to serve on a jury (KRS 29A.080).

                                             12
requirements of KRS 503.050 are met, the homeowner would most certainly be

entitled to an instruction on self-defense, or possibly a choice of evils

instruction under KRS 503.030. However, the homeowner would not be

entitled to a jury instruction on no duty to retreat regardless of whether or not

he was a convicted felon. This is because the evidence, presumably, would not

include an apparent means for the homeowner to retreat that was so entwined

in the evidence that it would cause the jury to give it improper consideration of

the homeowner’s mental state. The homeowner, in all likelihood, could not

have foreseen his home being burglarized, let alone have an opportunity to

leave the home prior to the break in to avoid shooting the burglar. Therefore,

regardless of his potential felon status, a no duty to retreat instruction would

not be proper.

      Curry next argues in the alternative that, even assuming arguendo for

the purposes of a no duty to retreat instruction that a convicted felon is

engaging in an unlawful activity by possessing a handgun, the evidence was

conflicting as to exactly when he began “possessing” the gun. Therefore, he

argues, whether he was in possession of the gun prior to the victim allegedly

attacking him should have been a factual determination for the jury. We

disagree.

      The Commonwealth’s theory of the case was that Curry asked Simpson

to bring him a 9mm from Curry’s mother’s home, and that it was the same

9mm he used to shoot Harris. Curry claimed that the gun he used to shoot

Harris was not his, that he did not have a gun that day, and that it was not

                                        13
until Harris charged him that he looked down and saw a gun on the couch,

which he picked up and fired. But, even assuming Curry’s version of events to

be true, the second he picked up the handgun he became a felon in possession

of a handgun. This means that, while he was entitled to an instruction on self-

defense, which the jury was instructed on, he was not entitled to a stand your

ground instruction because he was engaged in an unlawful activity. There was

therefore no reason to submit that factual determination to the jury, and the

trial court did not abuse its discretion in declining to do so.

                         B. Failure to strike jurors for cause

      Curry next argues that the trial court erred by failing to strike two jurors,

Juror 5 and Juror 50,19 for cause.20 This alleged error was properly preserved

for appellate review: Curry moved the court to strike Jurors 5, 50, and 3021 for

cause, and his motions were denied. He then exercised peremptory strikes on

Jurors 5, 50, and 30, and exhausted his remaining peremptory strikes. Next,

Curry identified on his strike sheet three jurors he would have struck for cause

had he not been forced to use them on Jurors 5, 50, and 30.22 One of the




      19Presumably for the sake of simplicity, both parties refer to the jurors by their
seat numbers rather than their juror numbers: 2151623 and 2325391, respectively.
      20 A criminal defendant’s right to an impartial jury is safeguarded by both
Section 11 of the Kentucky Constitution and the Sixth and Fourteenth Amendments to
the United States Constitution.
      21   The trial court’s failure to strike Juror 30 is not at issue in this appeal.
      22   Gabbard v. Commonwealth, 297 S.W.3d 844, 854 (Ky. 2009).

                                              14
jurors that he would have otherwise exercised a peremptory strike on

ultimately sat on the jury.23    24


       This Court reviews a trial court’s alleged error of failing to strike a juror for

cause for abuse of discretion.25 A trial court abuses its discretion when it acts

in a way that is arbitrary, unreasonable, unfair, or unsupported by sound legal

principles.26 With the foregoing principles in mind, we will address the

arguments against each juror.

Juror 5

       Curry asserts that Juror 5 was impermissibly biased in favor of law

enforcement based on the following portion of her voir dire:

                DEFENSE: So I know the Commonwealth had asked
                you before people who were, friends and family in law
                enforcement, can I see those hands again? People who
                have close friends and family. (speaking to Juror 5)
                Ma’am could you tell me what they do, where they
                work for?

                JUROR 5: My stepdad raised me, growing up he was
                chief of police of our town in Pennsylvania, not here.

                DEFENSE: What kinds of things was he investigating?


       23   King v. Commonwealth, 276 S.W.3d 270, 279 (Ky. 2009).
       24 We further note that, although Curry’s trial took place before this Court’s
recent holdings in Floyd v. Neal, 590 S.W.3d 245 (Ky. 2019) and Ward v.
Commonwealth, 587 S.W.3d 312 (Ky. 2019), and is therefore not subject to their
authority, Curry nonetheless also complied with their holdings regarding preservation
of this issue.
       25Pendleton v. Commonwealth, 83 S.W.3d 522, 527 (Ky. 2002) (“[A]
determination as to whether to exclude a juror for cause lies within the sound
discretion of the trial court, and unless the action of the trial court is an abuse of
discretion or is clearly erroneous, an appellate court will not reverse the trial court's
determination.”).
       26   English, 993 S.W.2d at 945.

                                            15
               JUROR 5: He was on their on-call team, so I mean he
               did every aspect of it, a lot of the detective type stuff, a
               lot of the on-call response team stuff. He got called in
               the middle of the night to go investigate murders.

               DEFENSE: So you were kind of pretty close to seeing
               what that experience was like?

               JUROR 5: Yeah.

               DEFENSE: Did you kind of form an opinion about the
               work he was doing?

               JUROR 5: I think so, yeah.

               DEFENSE: Did you meet his friends and colleagues
               and that sort of thing?

               JUROR 5: Yeah.

               DEFENSE: Okay, and do you think that kind of made
               you trust people in that occupation more?

               JUROR 5: Yeah.

Curry contends that this line of questioning required Juror 5 to be struck for

cause in accordance with RCr 9.36(1), which requires that a juror be struck

when “there is reasonable ground to believe that [the] prospective juror cannot

render a fair and impartial verdict on the evidence[.]” More specifically, he

maintains that under Shane v. Commonwealth,27 Juror 5’s connection to law

enforcement mandated that she be struck for cause. We disagree.

      In Shane, this Court held that the trial court committed reversible error

by failing to strike a juror for cause.28 To reach that conclusion we pointed to



      27   243 S.W.3d 336 (Ky. 2007).
      28   Id., at 338.

                                           16
the juror’s unequivocal statements that he, a local police officer himself, “had

an inside point of view” regarding law enforcement, was “absolutely pro-police,”

and, most damning, that “he did not believe [police officers] would lie under

oath because they took the oath more seriously” and “he would find it more

likely that a police officer was telling the truth than a lay witness.”29 We held

that the juror’s statements when considered as a whole “indicated a probability

that he could not enter the trial giving both sides a level playing field…that a

defendant would have little or no chance of challenging an officer's testimony in

[the] juror's mind.”30

      In subsequent cases we developed more specific parameters to our

holding in Shane regarding a potential juror’s connection to law enforcement.

A succinct restatement of the rule as it now stands is provided in Brown v.

Commonwealth,31 which states:

               a close relationship to a police officer does not,
               standing alone, give rise to a presumptive bias. We
               have required, rather, such additional evidence of bias
               as the prospective juror's personal acquaintance with
               the officers involved in the investigation of the case
               being tried, or his assertion during voir dire that police
               officers are less apt than other witnesses to lie because
               they take their oaths more seriously.32



      29   Id., at 337.
      30   Id., at 338.
      31   313 S.W.3d 577 (Ky. 2010).
      32  Id., at 597 (internal citations omitted). See also, e.g., Fugett v.
Commonwealth, 250 S.W.3d 604, 615 (Ky. 2008) (holding the trial court abused its
discretion by failing to strike a juror that indicated he would believe the testimony of a
police officer “simply because he was a police officer and because police officers have
greater credibility in their testimony than other witnesses.”).

                                           17
      In this case, Curry has failed to demonstrate any “additional evidence of

bias” that Juror 5 may have had in favor of law enforcement. She was never

asked to expound on the exact nature of the opinion she formed regarding the

work her stepfather did. And while she stated that her experiences made her

trust members of law enforcement more in general, at no point does she state

that she would favor members of law enforcement in relation to the case or that

she would believe the testimony of a police officer over that of a civilian

witness. Therefore, there were no reasonable grounds to believe that Juror 5

would be unable to render a fair and impartial verdict on the evidence, and the

trial court did not err.

Juror 50

      Curry’s final argument is that Juror 50 should have been struck for

cause both because he may have been exposed to information about the case

prior to trial and because he had some general knowledge of the criminal

justice system from his family members. The relevant portions of his voir dire

are as follows:

             COURT: You indicated that you may remember
             something now that you’ve heard some questions. Do
             you think you have a memory or knowledge of this
             [case] somehow?

             JUROR 50: I think there was something dealing with
             drugs, and he was on home incarceration, and they
             went out and robbed somebody.

             COURT: Well I can’t confirm or deny what you think
             […] here’s the real question though, let me just very
             gently suggest, the news has only an obligation to
             report, they have no obligation to get it correct.


                                        18
JUROR 50: Yes, right.

COURT: And you realize they can report anything.

JUROR 50: Yes, mhm.

COURT: If you were chosen as a juror would you be
willing, or could you in fact put whatever, because I
don’t even know that you’re thinking about the right
case. Whatever you think you think you’ve heard,
could you put that completely out of your mind and
only base a verdict on what you hear in the courtroom
and not what you’ve read or heard?

JUROR 50: Yes.

COURT: Could you do that?

JUROR 50: Right.

COURT: Okay, how recently do you think you’ve
heard something about this?

JUROR 50: Well, I’m going to say this, I have family
members that are pre-trial officers and corrections
officers, you know—

COURT: They talk.

JUROR 50: Right.

COURT: Alright, well let me see if the lawyers want to
ask you anything.

DEFENSE: Do you feel like your experience with pre-
trial services gives you any kind of information about
the criminal justice system that you wouldn’t
otherwise know? Like penalty ranges, that kind of
thing?

JUROR 50: Yes, mhm.

DEFENSE: This is, you’re just getting information from
friends and family?

JUROR 50: Well my wife is a—
                          19
            COURT: Your wife is a pre-trial officer?

            JUROR 50: Yes.

            COURT: Here in the county?

            JUROR 50: Yes, she’s been here fifteen. My sister
            retired.

            DEFENSE: What you’re thinking of, is it specifically
            somebody who had been on HIP or was charged with
            something and then released? Or what was it that you
            remember hearing about?

            JUROR 50: That he was at the time on HIP and went
            out to do a deal and it went bad or went to rob the
            person.

            DEFENSE: Okay.

            COURT: Anything else?

            DEFENSE: No.

            COURT: Alright. Flash all the way forward. Whether
            you’re correct or not, none of us are going to confirm
            that. My question to you though, if chosen, could you
            put all of that out of your mind and only render a
            verdict as to Mr. Curry based on what happens in the
            courtroom? Could you do that?

            JUROR 50: Yes.

      Regarding Juror 50’s possible pre-trial exposure to the case, Curry notes

first that the information Juror 50 thought he had about the case was

incorrect: this case did not involve a robbery. He goes on to argue that Juror

50’s belief that this case involved a robbery may have lingered with him

throughout the trial and led him to believe that information was being withheld

from the jury. Therefore, he believes there were reasonable grounds to believe

                                       20
Juror 50 could not render a fair and impartial verdict on the evidence

presented at trial. We disagree.

      It is well-established that “[t]here is no constitutional prohibition against

jurors…having knowledge of the case. The Constitution does not require

ignorant or uninformed jurors; it requires impartial jurors.”33 Accordingly, in

order to have a juror struck for cause based upon his or her pre-trial exposure

to information about a case, that information must “engender a predisposition

or bias that cannot be put aside.”34 Juror 50 never indicated that he had any

pre-conceived notions about the case based on the information he believed he

heard. He in fact stated twice that he could put that information out of his

mind and render a verdict solely on the evidence presented to him at trial.

      Furthermore, we have previously found no error in failing to strike

potential jurors who were exposed to more pre-trial information than Juror 50.

For example, in Hodge v. Commonwealth, the appellant argued that three

jurors should have been struck for cause based on their prior knowledge of the

case.35 “Juror No. 63 recognized Appellant's name and the names of several

potential witnesses. She also had heard about the case but had not formed an

opinion as to Appellant's guilt or innocence,” “Juror No. 72 had read about the

case and the previous trial but could not recall the outcome. She had not

formed an opinion as to Appellant's guilt or innocence,” and “Juror No.



      33   Hodge v. Commonwealth, 17 S.W.3d 824, 838 (Ky. 2000).
      34   Id.
      35   Id.

                                         21
73…recognized Appellant's name. She did not know any of the details of the

case but had heard it was a ‘bad case.’”36 This Court found no error in failing

to strike the aforementioned jurors for cause.37

      In contrast, the only accurate information Juror 50 had about this case

was that Curry was a HIP enrollee. That alone is insufficient to create a

presumption that Juror 50 could not render a fair and impartial verdict on the

evidence. This is particularly true in light of his unequivocal statements that

he could put any pre-trial information he may have received, accurate or not,

completely out of his mind. Curry’s contention that Juror 50 may have

believed information was being withheld from the jury is therefore speculative

at best.

      Next, Curry contends that Juror 50 should have been struck because he

had some information about the criminal justice system due to his wife and

sister’s involvement in it. The fact that Juror 50 had some knowledge about

the inner workings of the criminal justice system in no way suggests that he

was unable to render a fair and impartial verdict based on the evidence in

Curry’s case. The trial court did not err in failing to strike him for cause.

                             III.   CONCLUSION

      Finding no reversible error, we affirm.

      All sitting. Minton, C.J.; Hughes and VanMeter, JJ. concur.




      36   Id.
      37   Id.

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      Keller, J., Concurring In Part And Concurring In Result Only In Part:

Although I agree that in this case the trial court did not abuse its discretion in

denying Curry’s request for a no duty to retreat instruction, I write separately

to express my concern with the breadth of the majority’s holding on this issue,

namely that being a felon in possession of a firearm always prevents a

defendant from obtaining a no duty to retreat instruction.

      Consider the following factual scenario: A felon is inside his home. There

are no guns inside of the home, and he is not otherwise engaged in any illegal

activity. A burglar breaks into his home, armed with a firearm. The

homeowner/felon, despite having a potential avenue of retreat, is able to

disarm the intruder and shoots him while defending himself and his home.

Under Kentucky law, the homeowner would not have a duty to retreat, despite

having a potential avenue for such, and at trial, I believe that homeowner

would be entitled to a no duty to retreat instruction despite technically

possessing, at that moment, a firearm after being convicted of a felony.

      Accordingly, while I disagree with the majority’s broad holding regarding

the no duty to retreat instruction, I concur with the result in this case, as the

trial court did not abuse its discretion in denying Curry’s request for the

instruction.

Nickell and Wright, JJ., join.




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COUNSEL FOR APPELLANT:

Joshua Michael Reho
Leo Gerard Smith
Louisville Metro Public Defender


COUNSEL FOR APPELLEE:

Daniel Jay Cameron
Attorney General of Kentucky

Courtney J. Hightower
Assistant Attorney General




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