RENDERED: JULY 9, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0985-MR
JAMES HALLON SHELL APPELLANT
APPEAL FROM CASEY CIRCUIT COURT
v. HONORABLE JUDY VANCE MURPHY, JUDGE
ACTION NO. 18-CR-00089
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
REVERSING AND REMANDING
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BEFORE: CALDWELL, DIXON, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: James Hallon Shell (“Appellant”) appeals from a
judgment and sentence rendered by the Casey Circuit Court. Appellant argues that
the trial court improperly failed to continue the trial or exclude evidence when the
Commonwealth introduced new evidence the morning of trial, that Appellant was
improperly denied his right to a fair trial and impartial jury, and that the trial court
erred in allowing the introduction of a video containing hearsay and improper
opinion. For the reasons addressed below, we reverse the judgment on appeal and
remand for a new trial.
FACTS AND PROCEDURAL HISTORY
As part of the governor’s Marijuana Eradication Task Force,
Kentucky State Trooper David Long was flying over Casey County, Kentucky in a
helicopter on July 10, 2018, when he observed a person cutting down a tree in what
appeared to be a marijuana patch. The marijuana was located on property situated
on Bryant Ridge Road which included a trailer, outbuilding, and shed.
The helicopter landed on adjacent property and Trooper Long made
contact with Appellant who was walking up a trail on the property towards the
trailer while carrying a chainsaw. Marijuana plants were present around the trailer
and in the area where he was observed cutting down the tree. Kentucky State
Police Detective Clint Walker arrived and questioned Appellant. Appellant denied
knowing anything about the marijuana plants. Appellant stated that he had slept in
the outbuilding the prior evening, and that his daughter sometimes stayed in the
trailer. Detective Walker observed that the property was littered with materials and
supplies for growing marijuana including seed trays, potting soil, fertilizer,
irrigation tubing, straw, and cups pre-filled with potting soil. Marijuana plants
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were visible throughout the property including next to the outbuilding where
Appellant said he slept.
Detective Walker and others pulled up 409 marijuana plants on the
property. Appellant subsequently was indicted by a Casey County grand jury and
charged with cultivating marijuana of more than five plants and with being a
persistent felony offender in the first degree.1
The matter proceeded to a jury trial on May 6, 2019. The
Commonwealth’s evidence included three videos which contained commentary by
Detective Walker about his observations and opinions when he encountered
Appellant and the marijuana plants. These videos, which were presented for the
purpose of demonstrating that Appellant was the cultivator of the marijuana, were
played for the jury over defense objections. In the videos, Detective Walker stated
the following: that Appellant was uncooperative; that Appellant told the neighbors
that he owned the property; that trees on the property had been cut down or had
bark removed to kill them; and that there were a myriad of items present from
chairs to beverage cans indicating that Appellant spent substantial time on the
parcel. Other evidence was adduced, including Appellant’s testimony, and
testimony that the water meter next door to the subject parcel had been placed in
Appellant’s name in November 2017.
1
Kentucky Revised Statutes (“KRS”) 218A.1423(1) and KRS 532.080.
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At the conclusion of the trial, the jury returned a verdict finding
Appellant guilty of cultivating more than five marijuana plants. The jury also
determined that Appellant was a first-degree persistent felony offender, which
enhanced his three-year sentence to 15 years in prison. Appellant’s motions for a
judgment notwithstanding the verdict and for a new trial were denied, and this
appeal followed.
ARGUMENTS AND ANALYSIS
Appellant, through counsel, argues that he was improperly denied his
right to a fair and impartial jury.2 During voir dire, the trial court asked the jury
panel if anyone knew anything about the case that was being tried. Ricky Luttrell
stated that he had once given Appellant “a ride home” but did “not really” know
anything about the case. Some time later, when questioned again, Luttrell stated
that he took Appellant “home” to “Bryant Ridge.”
Thereafter, Appellant sought to strike not only juror Luttrell but the
entire jury, as the jurors heard Luttrell state that he took Appellant home on the
same road where the marijuana field was located. This, Appellant argued, tainted
the jury because Luttrell’s statement during voir dire gave support to the
Commonwealth’s claim that Appellant exercised control over the parcel and
cultivated marijuana. Upon considering the matter, the trial judge found no
2
We will address this issue first, as it renders the remaining issues moot.
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prejudice and overruled Appellant’s motion. Luttrell was subsequently excused for
cause, after he acknowledged that he had formed an opinion about Appellant’s
guilt because of the conversation they had during the ride home.
The question for our consideration is whether the Casey Circuit Court
erred in failing to sustain Appellant’s motion to strike the jury panel based on its
members hearing Luttrell state that he took Appellant home to Bryant Ridge
Road.3 We must answer this question in the affirmative. Criminal defendants are
guaranteed the right to an impartial jury by the Sixth Amendment to the United
States Constitution, as well as Section Seven and Section Eleven of the Kentucky
Constitution. Commonwealth v. Douglas, 553 S.W.3d 795, 799 (Ky. 2018).
“Denial of a defendant’s right to an impartial jury is a structural error. . . . [T]he
defining feature of a structural error is that it affect[s] the framework within which
the trial proceeds, rather than being simply an error in the trial process itself.” Id.
at 799-800 (internal quotation marks and citations omitted). A structural error is
not subject to the harmless error doctrine as prejudice is presumed. Id. at 799.
In response to questioning, Luttrell stated in open court, and in the
presence of the jury panel, that he gave Appellant a ride “home.” The
Commonwealth repeated Luttrell’s statement before the jury and then elicited
3
The video recording of bench conference where Appellant moved to strike the jury is almost
completely inaudible. The parties agree, however, that Appellant moved to strike both juror
Luttrell and the entire jury.
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Luttrell to state that “home” was at “Bryant Ridge.” The Commonwealth’s case
against Appellant centered on whether he cultivated more than five marijuana
plants in violation of KRS 218A.1423(1). In order to prove the elements of the
offense, the Commonwealth sought to demonstrate that Appellant was not merely
an innocent and disinterested party observed wandering through a marijuana patch,
but instead that he exercised dominion and control over the parcel and was himself
the grower of marijuana. Luttrell’s statement before the jury pool bolstered the
Commonwealth’s case against Appellant by informing the jury pool members that
Appellant’s home was located on Bryant Ridge Road. Consider that Luttrell, in
theory, could have been a witness for the Commonwealth, and might have testified
that he knew Appellant lived on Bryant Ridge Road because he had given
Appellant a ride home. Such evidence would have served to refute Appellant’s
claim he was not associated with the Bryant Ridge parcel and did not know
anything about the marijuana plants. While such statements would have been
proper if offered as evidence during the trial, they were not properly made, albeit
inadvertently, during voir dire before the jury pool.
The Commonwealth makes a compelling argument that the evidence
presented at trial was sufficient to convict Appellant irrespective of Luttrell’s
statements before the jury pool. It also properly notes that Luttrell’s statements
were made during an hours-long voir dire proceeding in advance of the jury pool
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members having any inkling as to their relevance. The issue before us, however, is
not whether the evidence presented at trial was sufficient to convict Appellant.
The salient question is whether Appellant received a fair trial before an impartial
jury. Because Luttrell’s statements bolstered the Commonwealth’s case against
Appellant – even if only slightly – and as prejudice is presumed in matters of jury
impartiality and is not subject to a harmless error analysis, Douglas, 553 S.W.3d at
799, we conclude that trial court erred in denying Appellant’s motion to strike the
jury pool.
Appellant also argues that the Commonwealth should not have been
allowed to introduce new evidence on the day of trial that Appellant had a water
meter in his name; that jury pool member James Smith Roy should have been
excused based on what Roy characterized as defense counsel’s rudeness outside of
court; and, that the trial court erred in allowing the Commonwealth to introduce
three videos containing the improper opinions and hearsay of the lead detective.
Having determined that the jury pool should have been struck, we hold these
arguments are moot.
CONCLUSION
We conclude that Luttrell’s statements before the jury pool, which are
not subject to the harmless error doctrine and carry with them a presumption of
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prejudice, required the trial court to strike the jury pool. For this reason, we
reverse the judgment of the Casey Circuit Court and remand for a new trial.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Kathleen K. Schmidt Daniel Cameron
Assistant Public Advocate Attorney General of Kentucky
Frankfort, Kentucky
Matthew R. Krygiel
Assistant Attorney General
Frankfort, Kentucky
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