dissenting.
I respectfully dissent, and would reverse and remand for a new trial.
With respect to the three jurors’ reading of the newspaper report of the trial, the aggrieved defendant can find little solace in the fact that “they were specifically admonished not to consider the report” (ante at 274), for these were the same jurors who had already violated an admonition “not [to] read any ... accounts of this trial which might appear in the newspaper.” At least two of these jurors read at least enough of the story to learn the previous jury’s vote, and were sufficiently impressed to be able to recall when examined that there had been eight votes to convict. At the time they gained this knowledge, there was evidence yet to be heard in the trial in progress. Not only was outside information prohibited, but the jurors were not to discuss the case even among themselves, nor to form any opinion. RCr 9.70. A principal aim of this rule is to ensure that no juror will be influenced by a premature opinion — not his/her own, not that of any colleague, and certainly not that of anyone else. Perhaps it was only a little prejudicial for one of these jurors to know at this juncture that eight of twelve persons similarly situated had, upon hearing the whole case, been convinced of guilt. Perhaps this juror was unmoved by the knowledge that two out of three jurors surveyed recommended conviction. Perhaps it was only a little more harmful when a second juror, and then possibly a third, acquired this information. Perhaps their tainted opinions had minimal effect upon the remaining members of the jury during deliberations. But on the other hand, perhaps these irregularities determined the outcome of the trial.
And quite probably the defendant’s presence at the in-chambers examination of these jurors, which proceeding resulted in his being tried by them, would not have prevented the court’s denial of the motion for mistrial. Nevertheless, Section 11 of the Kentucky Constitution guarantees his right to be heard “by himself and counsel.” (Emphasis added.) Section 11 does not say “or counsel,” and the presence of counsel does not justify the absence of the party in peril. The majority notes that Byrd “offered nothing to suggest that his absence was anything other than a personal choice.” Ante at 274. I venture to suggest that neither the trial court nor counsel spent a passing thought on this constitutional right, and Byrd was never made aware of it, wherefore he could not *279have made an informed waiver or “personal choice.” Choice requires knowledge that alternatives exist.
It was also error, I believe, to admit evidence of a defense witness’s assault upon a prosecuting witness after the first trial. These two had offered, and offered again, contradictory testimony. The fact that the one had assaulted the other bore no relevance to the credibility of either. The assault certainly demonstrated hostility between the witnesses (which was already obvious, considering that each, by his testimony, effectively accused the other of lying). But it did not demonstrate that one more than the other had any particular interest, bias, or hostility for or against a party. The evidence had nothing to do with truthfulness; it merely showed a particular wrongful act, which is not legitimate impeachment, serving only to inflame the jury against the aggressor and his testimony. CR 43.07.
The testimony that Byrd had terminated a post-arrest interrogation and demanded counsel was patently inadmissible. Perhaps this incident alone would not require reversal, particularly since no objection was made. And the prosecutor’s arguments touching on the defendant’s silence were in this case not highly prejudicial. But by my count, there are eight issues in this appeal which are treated by the majority as “not reversible error,” or “no reversible error.” (Emphasis added.) As a camel can bear but a finite number of insignificant straws, so a trial can remain fair under a burden of only so many non-reversible errors. Upon reviewing this record and its accumulation of errors, I cannot affirm the integrity of the trial nor the reliability of the verdict.
LEIBSON, J., joins in this dissent.