Jack Gore v. Commonwealth of Kentucky ( 2015 )

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NOT TO BE PUBLISHED OPINION
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RENDERED: AUGUST 20, 2015
NOT TO BE PUBLISHED
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2014-SC-000742-MR
JACK GORE APPELLANT
ON APPEAL FROM BELL CIRCUIT COURT
V. HONORABLE ROBERT COSTANZO, JUDGE
NO. 12-CR-00327
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A Bell Circuit Court jury found Appellant, Jack Gore, guilty of third-
degree burglary and found him to be a first-degree persistent felony offender.
The jury recommended that Appellant be sentenced to twenty years'
imprisonment and the trial court sentenced him accordingly. Appellant now
appeals as a matter of right, Ky. Const. § 110(2)(b), and raises the following
issues: (1) the trial court erred in denying Appellant's motion for a mistrial
during voir dire and (2) the trial court erred in denying a continuance to
investigate alleged juror misconduct.
I. BACKGROUND
The facts surrounding the burglary for which Appellant was convicted
are not at issue in this appeal. We will discuss the facts surrounding
Appellant's allegations of error below in our analysis.
II. ANALYSIS
A. Mistrial
Appellant first argues that his motion for a mistrial should have been
granted after the following exchange occurred during voir dire:
Prosecutor: Okay, now sometimes we stand up here and ask you a
ton of questions and we hope that we've asked everything. But,
you might be sitting there thinking, "I know something that, if she
knew, she would know I am not the right person to sit on this
jury." So, if there's anybody who has anything like that? Urn,
okay, Juror 6? Okay, is this something you wanna just tell the
judge or is it something you—?
Juror #6: I dispatched for three years for the Middlesboro Police
Department and I might have been working there at the time of the
offense.
Prosecutor: Okay. That. Okay. So you don't have actual
knowledge of the case?
Juror #6: I've not been there for about six months and I worked
there for three years prior.
Prosecutor: Okay. Urn. Since you might have actual knowledge of
the case—um—I'm assuming it would be difficult for you to give a
fair trial to both sides, since you might actually know something
about the case—is that correct?
Juror #6: I don't really recall anything, but, it's a possibility that I
do know something. I don't know what.
Prosecutor: Okay.
Juror #6: I don't really remember anything, but, I just think that
you guys need to know.
Prosecutor: Your Honor, since—um—this juror—we may get into
the facts and she may recall actual things from the case—um—I
would ask that she be excused.
Judge: As you sit here right now, you have no recollection of—?
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Juror #6: I know who he is, but, I don't know anything really
about the details.
Judge: All right. You will be excused. Thank you.
Appellant's counsel objected to the jury panel on the grounds that Juror #6's
statements tainted the panel and asked for a mistrial. Trial counsel argued lilt
is equal to hearsay testimony coming from the jury." Appellant now argues
Juror #6's statements "implied that she had received phone calls regarding him
in her work as a police dispatcher. This information should not have been
provided to the jury at large and improperly implied that [Appellant] was a
known trouble maker in the community." Appellant insists this issue would
have been avoided if the juror had been asked to approach the bench rather
than being questioned in front of the entire panel.
Appellant argues he was denied a fair and impartial trial and that
granting a mistrial was the only way for the trial court to remove the prejudicial
effect of Juror #6's statements. Bray v. Commonwealth, 177 S.W.3d 741, 752
(Ky. 2005) overruled on other grounds by Padgett v. Commonwealth, 312 S.W.3d
336 (Ky. 2010) ("The error must be 'of such character and magnitude that a
litigant will be denied a fair and impartial trial and the prejudicial effect can be
removed in no other way [except by grant of a mistrial]."') (quoting Gould v.
Charlton Co., Inc., 929 S.W.2d 734, 738 (Ky.1996)). Furthermore, Appellant
argues that the juror's statements were inadmissible character evidence under
KRE 404(b), as they constituted "[e]vidence of other crimes, wrongs, or
acts . . . ."
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"Our precedent provides that a defendant must show actual or implied
prejudice which tainted the jury pool. Shegog v. Commonwealth, 142 S.W.3d
101, 110 (Ky. 2004). The trial court must then exercise discretion in
determining improper tainting of a panel of prospective jurors. Maxie v.
Commonwealth, 82 S.W.3d 860, 862 (Ky. 2002)." Blackburn v. Commonwealth,
394 S.W.3d 395, 396 (Ky. 2011). "We review [Appellant's claim] for abuse of
discretion. Tabor v. Commonwealth, 948 S.W.2d 569, 571 (Ky.App.1997) ("The
trial court has broad discretion in determining whether a jury panel should be
dismissed, and its ruling should not be disturbed absent a clear abuse of
discretion.")." King v. Commonwealth, 374 S.W.3d 281, 288 (Ky. 2012).
,
In Blackburn, 394 S.W.3d 395, the appellant argued that she was denied
her right to trial by an impartial jury when two different potential jurors made
statements in front of the entire panel. When the trial court asked members of
the jury pool if they knew the appellant, one potential juror said "I was a social
worker in the state of Kentucky for thirty years. But its been like twenty-
something years ago I was her case worker." Id. at 397 . That was the extent of
.
that juror's statement—he did not elaborate as to why the appellant needed a
social worker. The second potential juror who acknowledged his acquaintance
with the appellant in that case stated, "I'm a police officer here in town. I know
[the appellant]." Again, he did not elaborate on the nature of his knowledge of
the appellant.
We held:
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We do not consider either of the responses given by the jurors
to be prejudicial. The "social worker" juror did not explain why
Appellant needed a social worker, while the "police officer" juror
did not elaborate on the nature of his relationship with Appellant.
Simply put, the prospective jurors did not convey enough
information about their involvement with Appellant which could
conceivably yield actual or implied prejudice amongst the jury
pool. Accordingly, we cannot say the trial court abused its
discretion in declining to dismiss the pool and impanel a new jury.
Because the trial court did not abuse its discretion with
respect to its management of the jury pool, we affirm Appellant's
convictions.
Id. Appellant here points out that the issue was unpreserved in Blackburn and
that palpable error analysis is a different standard than that of abuse of
discretion. However, this Court did not use palpable error analysis in
Blackburn, but spoke clearly in terms of whether the trial court had abused its
discretion. In fact, we stated, "[w]e find no error, palpable or otherwise." Id. at
396.
Juror #6's statements in the case at bar are far less prejudicial than
those of the social worker and police officer in Blackburn. Here, the potential
juror merely stated that she was working as a dispatcher at the time of the
offense. While she did not recall any specifics, she wanted to make the parties
aware of her circumstances. When the judge asked her if she had any
recollection, she responded that "I know who he is, but I don't know anything
really about the details." Appellant insists that this created an insinuation that
the juror knew who Appellant was through her job as a police dispatcher and
that it implied he was a trouble maker in the community. We disagree. Just
as with the social worker and police officer in Blackburn, the potential juror
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here did not give any details of her knowledge of Appellant in front of the jury
panel.
We affirm the trial court on this issue, as Appellant failed to "show actual
or implied prejudice which tainted the jury pool." Shegog, 142 S.W.3d at 110.
The trial court did not abuse its discretion in denying Appellant's motion for a
mistrial.
B. Continuance
On the day of sentencing, Appellant was represented by stand-in
counsel. When the trial court asked if there was any reason to delay
sentencing, stand-in counsel responded that that he had been informed by
Appellant's trial counsel of irregularities with the jury. Specifically, stand-in
counsel alleged that one of the members of the jury had previously dated
Appellant's father. On that basis, he asked for more time before Appellant's
final sentencing. Appellant now argues trial counsel wanted more time in order
to investigate these allegations, but that was never explicitly stated in the trial
court.
The day of sentencing was the first time the trial court heard of the
potential issue; however, the Commonwealth had been alerted to the matter
more than ten days prior. The Commonwealth asked stand-in counsel if he
had any evidence of this purported relationship. Stand-in counsel responded
that he did not and that he was just attempting to get it on the record. The
Commonwealth pointed out that no investigation had been attempted nor had
any affidavits or motions been filed in the ten days since it was made aware of
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the potential issue. As such, the trial court denied Appellant's request for more
time.
Appellant now argues that the trial court erred in failing to grant his
motion for a continuance in violation of his rights to present a defense, due
process of the law, and to an impartial jury. We review a trial court's denial of
a motion for a continuance under the abuse of discretion standard. Snodgrass
v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991) overruled on other grounds
by Lawson v. Commonwealth, 53 S.W.3d 534 (Ky. 2001).
Kentucky Rules of Criminal Procedure 9.04 provides:
The court, upon motion and sufficient cause shown by either
party, may grant a postponement of the hearing or trial. A motion
by the defendant for a postponement on account of the absence of
evidence may be made only upon affidavit showing the materiality
of the evidence expected to be obtained, and that due diligence has
been used to obtain it. If the motion is based on the absence of a
witness, the affidavit must show what facts the affiant believes the
witness will prove, and not merely the effect of such facts in
evidence, and that the affiant believes them to be true. If the
attorney for the Commonwealth consents to the reading of the
affidavit on the hearing or trial as the deposition of the absent
witness, the hearing or trial shall not be postponed on account of
the witness's absence. If the Commonwealth does not consent to
the reading of the affidavit, the granting of a continuance is in the
sound discretion of the trial judge.
We assume that Appellant bases his argument on the "absence of evidence."
However, Appellant did not comply with the dictates of the Rule. Here, by the
time of the sentencing hearing, more than ten days had elapsed since the
Commonwealth was first made aware of these purported irregularities with the
jury. During that time, Appellant neither filed a motion for a continuance nor
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obtained any affidavits showing the materiality of the evidence he expected to
gather. In short, he did not use due diligence in investigating the allegations.
We dealt with a similar matter under RCr 9.04 in Gray v. Commonwealth,
203 S.W.3d 679 (Ky. 2006). While that case dealt with an absent witness
rather than missing evidence, the appellant had, likewise, failed to comport
with the requirements of RCr 9.04 We held:
It is not error to deny a continuance where the affidavit does
not comply with the provisions of RCr 9.04. McFarland v.
Commonwealth, 473 S.W.2d 121, 122 (Ky.1971).
. . . . At no point did counsel make a proper motion for
continuance as required by RCr 9.04. The trial counsel failed to
show upon affidavit what the witness would say. He failed to
establish that the witness would give substantial favorable
evidence. Thus, the trial court properly denied counsel's request
that the penalty phase be continued. Simply put, there was no
abuse of discretion.
Id. at 689. In Gray, just as in the present case, the appellant's argument was
based upon factors set out in Snodgrass, 814 S.W.2d at 581 ("length of delay;
previous continuances; inconvenience to litigants, witnesses, counsel and the
court; whether the delay is purposeful or is caused by the accused; availability
of other competent counsel; complexity of the case; and whether denying the
continuance will lead to identifiable prejudice"). However, the Gray Court did
not delve into the individual factors, as the appellant there—much like
Appellant in the present case—failed to comport with RCr 9.04 in order to show
sufficient cause for the continuance. Thus, neither trial court abused its
discretion.
Though we have already held that there is no abuse of discretion, we will
address Appellant's other arguments on this matter. Appellant posits that,
pursuant to Commonwealth v. Wood, 230 S.W.3d 331, 333 (Ky. App. 2007), the
trial court should have held an evidentiary hearing and questioned the jurors
regarding any prior relationships with Appellant's father. In Wood, the Court of
Appeals relied on Mattox v. United States, 146 U.S. 140 (1892), and a Sixth
Circuit case applying Mattox, Doan v. Brigano, 237 F.3d 722, 732 (6th Cir.
2001), overruled on other grounds by Wiggins v. Smith, 539 U.S. 510 (2003).
However, in Wood, our Court of Appeals pointed out the difference between the
sorts of issues for which it is appropriate to set aside a jury verdict and those
for which it is not. As the Doan Court explained: "[t]he [Mattox] Court stated
that it would not give the 'secret thought[s] of one [juror] the power to disturb
the expressed conclusions of twelve.' In sharp contrast to the secret thoughts of
jurors, the Court held that juror testimony as to 'overt acts' of misconduct can
be considered because the remaining members of the jury can testify as to
whether or not those acts of misconduct actually occurred." Doan, 237 F.3d at
732. In Woods, our Court of Appeals relied upon this reasoning to affirm a trial
court's receipt of testimony from a juror regarding the use of a dictionary in the
jury room. That was clearly an "overt act" that other members of the jury could
testify about. There is no such act here about which other members of the jury
panel could testify and Appellant's reliance upon Wood is, therefore, misplaced.
Appellant next points us to Sluss v. Commonwealth, 381 S.W.3d 215,
221 (Ky. 2012), in support of his position that "[flailing to respond to open-
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ended questions has been held to be grounds for reversal for an evidentiary
hearing where jurors may have lied by omission when they failed to respond to
the general voir dire question about whether they knew anyone involved in the
case."' In Sluss, the appellant presented the trial court with screenshots of the
murder victim's mother's Facebook page indicating that she was friends with
persons having the same names as two of the jurors. We ultimately sent the
case back to the trial court for a hearing to determine whether the two jurors'
"answers during voir dire were false" and to determine "whether they should
have been struck for cause." Id. at 229. There is a key difference in the case at
bar, however, that readily distinguishes it from Sluss: a complete lack of
evidence in support of the motion for a continuance.
In Sluss, le]vidence was presented after trial . . ." in the form of
Facebook screenshots which seemed to indicate that two of the jurors lied in
their answers during voir dire. Id. at 221. Appellant presents no such
evidence in this case. He could have presented an affidavit from his father that
he had previously dated one of the jurors, but he did not. He did not even
present the court with the name of the juror in question or with any other
identifying information. Appellant had known of these allegations for a
minimum of ten days prior to his final sentencing hearing. However, he made
no move during that time to gather evidence to present to the trial court.
Rather, he asked for more time on the basis of a mere allegation.
Appellant never filed a formal motion for a continuance with affidavits
showing sufficient reason for the trial court to grant said motion. As previously
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stated, the trial court did not abuse its discretion in failing to allow Appellant
more time before his final sentencing.
III. CONCLUSION
For the foregoing reasons, we affirm Appellant's convictions and
sentence.
All sitting. All concur.
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COUNSEL FOR APPELLANT:
Jason Apollo Hart, Assistant Public Advocate
COUNSEL FOR APPELLEE:
Jack Conway, Attorney General of Kentucky
Leilani K. M. Martin, Assistant Attorney General
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