RENDERED: MARCH 5, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0309-MR
DARRELL JACKSON APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE OLU A. STEVENS, JUDGE
ACTION NO. 13-CR-000616
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; CALDWELL AND COMBS, JUDGES.
COMBS, JUDGE: This criminal appeal arises from an allegation by the
Appellant, Darrell W. Jackson (Jackson), of ineffective assistance of appellate
counsel (IAAC) pursuant to RCr1 11.42. His first appeal of this issue resulted in
our remanding the case to the circuit court for an evidentiary hearing. This second
1
Kentucky Rules of Criminal Procedure.
appeal alleges error resulting from the evidentiary hearing. After our review, we
affirm.
A jury convicted Jackson of first-degree manslaughter, and the trial
court imposed a sentence of twenty-years’ imprisonment. On direct appeal, our
Supreme Court affirmed Jackson’s conviction. Jackson v. Commonwealth, 481
S.W.3d 794 (Ky. 2016).
On August 29, 2016, Jackson, pro se, filed a motion pursuant to RCr
11.42 and the Kentucky and United States Constitutions to vacate, set aside, or
correct the sentence. In his supporting memorandum, Jackson argued that
appellate counsel was ineffective for failing to raise an issue of possible juror
misconduct. Jackson alleged that on the last day of trial, July 18, 2014, a bailiff
“approached the bench and discreetly informed the Court that he had a close family
member on the jury. The Judge thanked him for making it aware and the trial
continued with nothing more about the matter ever [being] brought up.” Jackson
argued that the matter should have been made known to him and acknowledged
that trial counsel could not have properly objected as he had never been made
aware of the issue by the trial court. However, Jackson argued that the failure of
his appellate counsel to raise the issue on appeal as palpable error constituted
ineffective assistance.
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Jackson explained that during the July 15, 2014, voir dire, trial
counsel had asked the jury pool if anyone had a close friend or family member in
law enforcement, the FBI, the prosecutor’s office, or corrections.
Approximately 4 Jurors raised their hand, but not
one of them asserted to having a family member as a
bailiff which worked in that particular courthouse on that
particular floor. The closes[t] would be a Juror who said
she had a family member who was a retired correctional
officer.
The fact that this mysterious Juror did in fact have
family who worked in law enforcement within the actual
functions of the Courtroom and did not make the court
aware raises serious questions as to their ability to render
an unbiased and fair verdict.
The Movant argues that, the appropriate relief at
the very least would have to be [an] evidentiary hearing
on the matter of potential Juror misconduct.
On January 20, 2017, the trial court entered an opinion and order
denying Jackson’s motion for RCr 11.42 relief -- and also denying his motions for
an evidentiary hearing and to proceed in forma pauperis.
Jackson appealed. On January 4, 2019, this Court rendered an
Opinion Affirming in Part, Vacating in Part, and Remanding in Jackson v.
Commonwealth, 567 S.W.3d 615 (Ky. App. 2019). With respect to Jackson’s
IAAC claim for failure to raise juror misconduct in his direct appeal, this Court
explained as follows:
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Jackson must meet the prongs of “deficiency” and
“prejudice” for the Court to grant him relief. Hollon, 334
S.W.3d at 436-37.[2] The first prong . . . relating to
counsel’s deficient performance, requires that appellate
counsel omitted the argument from the direct appeal. Id.
Jackson’s juror misconduct claim meets this prong . . . .
Therefore, Jackson must now prove . . . the remaining
“prejudice” prong under Hollon.
To prove the alleged juror misconduct resulted in
prejudice against him, Jackson must show there is a
“reasonable probability that the appeal would have
succeeded” had the appellate attorney raised the claim.
Id. at 437. Juror misconduct issues touch on the
constitutional right to an impartial jury. Sluss v.
Commonwealth, 381 S.W.3d 215, 225 (Ky. 2012).
Kentucky’s criminal rules also protect this right. RCr
9.36(1) (“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.”).
...
It is well-established that evidentiary hearings are
critical to resolving juror misconduct cases. See Smith v.
Phillips, 455 U.S. 209, 215, 102 S.Ct. 940, 945, 71
L.Ed.2d 78 (1982) (“the remedy for allegations of juror
partiality is a hearing in which the defendant has the
opportunity to prove actual bias.”). . . . On remand, the
trial court must determine whether a motion challenging
the juror for cause would have been granted. Moss, 949
S.W.2d at 581. “The motives for concealing information
may vary, but only those reasons that affect a juror’s
impartiality can truly be said to affect the fairness of a
trial.” Gullett [v. Commonwealth, 514 S.W.3d 518, 524
2
Hollon v. Commonwealth, 334 S.W.3d 431 (Ky. 2010) (recognizing IAAC claims based upon
appellate counsel's alleged failure to raise a particular issue on a direct appeal).
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(Ky. 2017)] (quoting McDonough Power Equipment, Inc.
v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d
663 (1984)).
...
Because Jackson’s juror misconduct claim cannot
be refuted by the record as it stands, and the relief
commonly awarded for juror misconduct is an
evidentiary hearing which provides some due process
relief, this claim would have been more successful than
the other failed claims Jackson’s appellate attorney
argued. Accordingly, Jackson has proven the elements of
IAAC and should be awarded an evidentiary hearing
because it is the relief he would have received had juror
misconduct been raised in his direct appeal.
Id. at 621-23.
On October 11, 2019, the trial court conducted an evidentiary hearing
pursuant to our remand instructions. The juror in question, Kara O’Bannon,
testified first. The deputy, Michael Brown, is related to her father. She calls him
“uncle” -- only because he is an elder -- and not because he is actually an uncle.
Ms. O’Bannon testified that she does not have Brown’s phone number, that she
does not know his children, and that they do not communicate other than seeing
each other randomly.
Ms. O’Bannon did not specifically recall the questions posed during
voir dire; however, she explained that she had served on jury duty before, and she
disclosed that she has relatives in law enforcement and that her brother is military.
A portion of the voir dire record was played during the evidentiary hearing and
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reflected that O’Bannon responded that her brother is military police and that her
uncle is a retired sheriff. The trial court asked that the question posed to the jurors
at voir dire be played, clarifying that a “close friend or family member was the
question.”
Ms. O’Bannon was referring to Brown when she testified that she had
an uncle who was a retired sheriff. She did not know that Brown was still working
at the time. She did not know he was acting as a bailiff until she saw him. Ms.
O’Bannon could not recall at what point during the trial she saw Brown. When
asked if she spoke to Brown at any time before she was excused as a juror, Ms.
O’Bannon responded, “probably not.”
On cross-examination Ms. O’Bannon testified that she has not seen
Brown since the case. He is her “uncle,” but he is more distantly related to her
father, who has been dead for ten years. She thinks that Brown is actually her third
cousin. In her family, they routinely refer to elders as “uncles” or “aunts” as a
reflection of age rather than a fact of consanguinity.
Deputy Michael Brown testified. He is employed by the Jefferson
County Sheriff’s Office and works as a Deputy Sheriff in the courtroom. He
testified that Ms. O’Bannon is a cousin; her grandfather and his mother are brother
and sister. He would see Ms. O’Bannon at family functions; he summed up by
noting, “that’s about it.”
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Deputy Brown believes that he replaced Deputy Winstead at
Jackson’s trial. Deputy Brown was present when the jury went out, and he sat at
the door waiting on the jury. He escorted the jury. Deputy Brown recognized Ms.
O’Bannon when the jury took a break. He then notified the judge that she was a
cousin. He did not discuss this disclosure with anyone else. Deputy Brown did not
speak to Ms. O’Bannon at any time before she was excused as a juror at the
conclusion of the trial.
The trial court asked Deputy Brown if he was the deputy assigned to
this courtroom. He testified that he was not. He had not been in the courtroom
during voir dire. He replaced the assigned deputy whom he believed to be John
Winstead.
The matter was submitted on briefs. By Order entered December 2,
2019, the trial court denied Jackson’s motion pursuant to RCr 11.42, announcing,
as follows:
The question is whether the juror was being untruthful
during voir dire when she and other jury panel members
were asked whether they had a “close friend or family
member” in law enforcement.
The deputy sheriff, Michael Brown, who disclosed
the relationship to the trial judge was not the same deputy
sheriff present during voir dire. That deputy sheriff, John
Winstead, was the regularly assigned deputy sheriff to
the trial judge and division of Jefferson Circuit Court.
On the last day of trial, Deputy Winstead was absent. . . .
Deputy Brown . . . was temporarily assigned on the last
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day of trial and at that time he indicated his relation to
one of the jurors. . . .
The trial judge decided against interrupting the
jury trial on the last day to make inquiry as to the relation
between a juror and a deputy sheriff temporarily assigned
to the trial judge and courtroom during a shift change at
the Jefferson County Sheriff’s Office. . . .
During the evidentiary hearing, the juror in
question acknowledged her relationship to Deputy
Michael Brown. She said Deputy Brown was a friend of
the family and she referred to him as her “play uncle.”
They are of no familial relation. She testified she could
not recall the last time she saw Deputy Brown before the
trial and could not recall whether or not she had seen him
since. The inquiry of the entire jury panel called for a
response if a juror had a “close friend or family member”
in law enforcement. The Court finds Deputy Brown is
neither. Notwithstanding, Deputy Brown was not present
in the courtroom on the day of voir dire. Under the
circumstances, any concern about juror misconduct
would seemingly center on the juror’s failure to disclose
her relation to a deputy sheriff present in the courtroom
at the time of questioning. That was not the case here.
The Court finds no juror misconduct. The Court finds
the contrary. The juror in question discharged her duties
in compliance with her oath and took no action and made
no omission that compromised the rights of the
Defendant.
Jackson appealed. “[W]hen reviewing a trial court’s findings of fact
following an RCr 11.42 evidentiary hearing, an appellate court utilizes the clearly
erroneous standard set forth in CR3 52.01. Findings of fact are not clearly
3
Kentucky Rules of Civil Procedure.
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erroneous if supported by substantial evidence.” Saylor v. Commonwealth, 357
S.W.3d 567, 570-71 (Ky. App. 2012) (internal citations omitted).
Appellate review concerning IAAC under an RCr
11.42 motion employs an abuse of discretion standard.
In determining whether a trial court’s actions amount to
an abuse of discretion, we must consider whether the
decision reflected arbitrariness, unreasonableness,
unfairness or a lack of support from sound legal
principles.”
Jackson, 567 S.W.3d at 619-20 (internal citations omitted).
Jackson argues that his constitutional rights to a fair and impartial jury
were violated. He contends that Ms. O’Bannon should have been stricken for
cause because the test of totality of the circumstances supports a finding of
presumptive bias by a juror. We do not agree. In Ward v. Commonwealth, 695
S.W.2d 404, 407 (Ky. 1985), our Supreme Court explained:
[T]he law is well stated in Commonwealth v. Stamm, 286
Pa.Super. 409, 429 A.2d 4, 7 (1981):
[I]rrespective of the answers given on voir
dire, the court should presume the likelihood
of prejudice on the part of the prospective
juror because the potential juror has such a
close relationship, be it familial, financial
or situational, with any of the parties,
counsel, victims or witnesses.
Once that close relationship is established, without
regard to protestations of lack of bias, the court should
sustain a challenge for cause and excuse the juror.
(Emphases added.)
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In the case before us, no close relationship was established that would
support the presumptive bias of the juror or a challenge for cause. The trial court
explained that the inquiry of the entire jury panel called for a response if a juror
had a close friend or family in law enforcement. The trial court found that Deputy
Brown did not fit the description. It also found that there was no juror misconduct.
Substantial evidence supports these findings. Ms. O’Bannon testified that she did
not see Brown other than randomly, that she did not know his children, and that
she did not have his phone number. Ms. O’Bannon answered the voir dire
questions honestly. The fact that she mistakenly believed that Brown was retired
at the time only reinforces the remoteness of any relationship. George v.
Commonwealth, 885 S.W.2d 938, 941 (Ky. 1994) (no evidence of close
relationship to create presumption of bias where juror realized that victim was his
third cousin while she was testifying: “[F]amilial relationship was tenuous as
evidenced by the juror not being initially aware of a relationship.”).
We agree with the trial court that Ms. O’Bannon took no action and
made no omission that compromised Jackson’s rights. As the Commonwealth
states in its brief, “[t]here was no meritorious claim or valid claim to be raised by
appellate counsel as to the issue of juror misconduct by way of a failure to disclose
or due to mendacity, so there could have been no error.” We agree and thus find
no abuse of discretion.
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Jackson next argues that the trial court erred by misstating the facts
and misinterpreting the law as it relates to the family relationship between Ms.
O’Bannon and Deputy Brown. In its order of the December 2, 2019, the trial court
did make the statement that“[t]hey are of no familial relation.”4 That statement is
erroneous insofar as Ms. O’Bannon and Deputy Brown are cousins of some
degree. Regardless, however, the error is harmless and does not require reversal in
light of our determination that substantial evidence supports the trial court’s
finding that Deputy Brown is neither a close friend nor a close family member.
We note the language of RCr 9.24 that defines “harmless error” as follows:
No error . . . in any ruling or order . . . is ground
for granting a new trial or for setting aside a verdict or
for vacating, modifying or otherwise disturbing a
judgment or order unless it appears to the court that the
denial of such relief would be inconsistent with
substantial justice.
In light of this rule, we have no basis to disturb the order at issue.
Because the remainder of Jackson’s second argument is substantially
repetitive, we decline to address it.
We AFFIRM the order of Jefferson Circuit Court of December 2,
2019, denying Jackson’s motion claiming ineffective assistance of counsel
pursuant to RCr 11.42.
4
Record on appeal at page 284.
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ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Andrea Reed Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Leilani K.M. Martin
Assistant Attorney General
Frankfort, Kentucky
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