Dissenting.
With upmost respect for members of the majority, I strongly dissent.
In early February 2004, the Appellant wiped out the family of Chris and Amanda Sturgill. This included them and their three little sons, Michael, Robert and Jor-don. The small children were asphyxiated in their sleep. Their parents were killed by bow and arrow and their home burned to the point that Amanda was unrecognizable.
After a twelve-day-long trial in Clay County, on change of venue from Leslie County, Appellant was convicted for the murders of the children and of arson in the first degree. The jury was unable to reach a verdict on the deaths of Chris and Amanda. A sentence of life without parole was imposed.
The trial court guided this death penalty case through almost two weeks of trial. A change of venue, individual voir dire, numerous motions and rulings, and a myriad of witnesses culminated in final instructions and a verdict. Yet, this Court second guesses the trial judge on one solitary issue to send this case back to be tried again. The convictions for these merciless crimes of infanticide have been set aside because we deem the trial court abused its discretion in not excusing for cause one juror.
For us to find the trial court abused its discretion, we must find that its decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v, English, 993 S.W.2d 941, 945 (Ky.1999). See also Sanders v. Commonwealth, 801 S.W.2d 665 (Ky.1990) (Trial court did not err in refusing to strike juror for cause who had a current, casual business relationship with the victim. Juror also stated that he “liked” the victim.); Wood v. Commonwealth, 178 S.W.Sd 500 *916(Ky.2005) (Trial court did not err in refusing to strike juror for cause who went to junior high school with victim. Juror stated that it had been “years” since she had last seen victim.); Dillard v. Commonwealth, 995 S.W.2d 366 (Ky.1999) (Trial court did not err in refusing to strike juror who was a fireman and victim was the fire chief. The juror and the victim worked different shifts and had not discussed the case.); Derossett v. Commonwealth, 867 S.W.2d 195 (Ky.1993) (Trial court did not err in refusing to strike juror who lived on the same street as victim’s family and knew the victim’s sisters “pretty well.”)
The brother of one of the victims had lived with the juror’s family some twelve years before. This distant association of a relative of one of the victims failed to solicit the slightest concern through extensive individual and general voir dire.
Only after fourteen jurors were seated did he recall the relationship with the brother of one of the victims some twelve years before. Conscientiously, the juror approached the judge in the hallway. Appropriately, the judge took it up at the bench with him and the attorneys. “I just wanted you to know that I knew him,” the juror explained. His answers, when taken as a whole, clearly show that the prior relationship would not affect his deliberation.
Almost at the end of the judge’s very considerate and balanced questioning, he asked the juror: “So if the case turned out just like she (defense lawyer) said in her opening; if it turns out that that’s the proof and you say he ain’t guilty, you can find him not guilty and not cause you any problem? Juror: “Yeah.”
Untutored and inexperienced jurors are often placed in the uncomfortable position of trying to answer confusing and hypothetical questions thrown at them by lawyers and judges. We have repeatedly stressed that a trial judge must assess the totality of a prospective juror’s responses. Shane v. Commonwealth, 243 S.W.3d 336, 338 (Ky.2007). Just as there are no “magic” words to rehabilitate a juror, there should be no “magic” words that automatically disqualify a juror. The juror’s demeanor and sincerity should be taken in account by the trial judge as much as the actual content of what they are saying. It is impossible for appellate judges to do as well. Adkins v. Commonwealth, 96 S.W.3d 779 (Ky.2003).
The juror did say it would be better to get someone else to serve in his place. Who wouldn’t want another juror to take his place in a death penalty case? The judge correctly told him he couldn’t do that. There were no jurors to replace him as only the fourteen selected remained in the courtroom. If a preference not to serve constituted grounds to strike for cause, there would be no one left to serve on our juries.
Interestingly, and perhaps telling, the jury failed to convict the Appellant for the death of Amanda, the brother of whom was the person the juror had some relationship with a dozen years before.
The record very fairly supports the conclusion that the juror was simply conscientious. He came forward not to ask the judge to be excused, nor even to express doubt about his ability to serve fairly and impartially. He simply belatedly remembered a faraway relationship and wanted to clear his conscience. Were all jurors so disciplined, our justice system would be more just. In the objective evaluation of a trial judge there on the ground looking the juror in the eye and listening to the nuances of the voice, and especially the equivocation of the defense lawyer, there was no abuse of discretion. “The trial judge properly may chose to believe those *917statements that were the most fully articulated or that appeared to have been least influenced by leading.” Mabe v. Commonwealth, 884 S.W.2d 668, 671 (Ky.1994) (quoting Patton v. Yount, 467 U.S. 1025, 1038-39, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984)).
Even the defense lawyer had limited concern about the juror’s ability to serve. After the questioning by the judge and the lawyers, she did not move for the juror to be struck for cause. The attorney only reserved her right to request the designation of the juror as an alternate to be struck near the end of the trial when alternates are pulled. As we will see, the criminal rule dealing with alternates does not allow this late challenge.
The trial court was nothing, if not conscientious, in this case. In no way did the judge act “arbitrarily, unreasonably, or unfairly.” In addition to his painstaking inquiry of the jury in question, he pondered studiously the proper method of excusing alternates in criminal cases. Just prior to the alternates being struck at the end of the case and in pondering his options, he read out loud in open court the pertinent part of RCr 9.32(1). It reads in part:
If the membership of the jury exceeds the number required by law, the alternate juror or jurors may be designated by agreement of the parties and the Court; otherwise, immediately before the jury retires to consider its verdict, the clerk, in open court, shall by random selection reduce the jury to the number required by law. (Emphasis added.)
There are only two ways to pick the alternates to be struck. First is by agreement. There was no agreement in this case. The other is by random selection. Under the rule, at that point of the trial, the trial court had no choice but to pull two jurors at random. Absent an agreement the rule does not allow for the selection of an alternate to be struck by name.
After reading the rule, the court invited comments by both sides. There was rather vague recollection by the attorneys of even what the juror had said nineteen days before. “To be very cautious, he did have some kind of relationship with the victim’s family,” explained counsel for Appellant in requesting that the juror be dismissed as one of the alternates.
The judge did not cite the rule in denying the request of Appellant’s counsel. But he was in compliance with the rule by denying the motion to strike the juror for cause at this stage of the proceeding. This can hardly be considered an abuse of discretion. In denying the request to strike the juror in question, the trial court said, “He said it would have no effect and he just wanted us to know.” To this conclusion, counsel for Appellant agreed, “That’s correct. He said he could sit.”
We should not second guess the trial judge on such an encounter and reverse this very serious case. Justice is not served when we reverse the trial of a mass murderer on such a thin reed of speculation.
I respectfully, but strongly, dissent.