Blake Haddix v. Commonwealth of Kentucky ( 2009 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE ; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
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ACTION.
RENDERED : OCTOBER 29, 2009
NO I ri. 1 pL S-N E I), - ,
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Suprrme (~vurf of 7,1
2008-SC-000842-MR
BLAKE HADDIX
ON APPEAL FROM BREATHITT CIRCUIT COURT
V. HONORABLE FRANK A. FLETCHER, JUDGE
NO . 03-CR-00139
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant Blake Haddix appeals to this Court from a judgment of the
Breathitt Circuit Court denying him a new trial . Finding no error in the circuit
court's judgment regarding alleged juror mendacity, we affirm.
I. BACKGROUND
Appellant was tried and convicted of murder and second-degree assault,
and sentenced to 35 years imprisonment and 5 years imprisonment,
respectively, to be served consecutively. Haddix appealed to this Court,
alleging that three jurors failed to disclose relevant facts on their jury
questionnaires, or during voir dire.
This Court vacated the judgment and sentence and remanded for an
evidentiary hearing to determine whether Appellant was entitled to a new trial.
The circuit court conducted a hearing on October 3, 2008 . Alter hearing
testimony from the three jurors, the circuit court denied Appellant's motion for
a new trial, and resentenced him in accordance with the jury's original
sentence. Haddix now appeals the circuit court's denial of his motion for a new
trial.
In remanding, this Court held that it was error for the trial court to not
hold a hearing to determine whether there was misconduct related to three
jurors . As to the first juror, Appellant discovered after remand that the juror
was neither a non-resident of Breathitt County, nor a convicted felon, as
Appellant had believed . Appellant stipulated to such at the hearing. As to the
second juror, Appellant concedes that he cannot meet the necessary burden for
this Court to reverse. Therefore, Appellant's claims on this appeal relate solely
to the third juror, J.S.
II. ANALYSIS
Appellant argues that it was error for the circuit court to not grant a new
trial because (1) J .S. failed to disclose her and her family's involvement with
the criminal justice system, (2) J.S.'s sister's husband was the victim's first
cousin, and (3) J.S. failed to disclose that she has memory problems due to
multiple sclerosis (MS) .
Haddix v. Commonwealth, No . 2007-SC-000214-MR, 2008 VVL 3890352 (Ky. Aug.
21,2008) .
When, as here, no challenge is made to a. juror's qualifications until after
a verdict has been rendered, the challenging party "bears a heavy burden. It is
incumbent upon such a party to allege facts, which if proven to be true, are
sufficient to undermine the integrity of the verdict." Gordon v.
Commonwealth , 916 S.W.2d 176, 179 (Ky. 1995) .
In addition, to be entitled to a new trial as a. result ofjuror mendacity
during voir dire, a defendant must show (1) that a material question was
asked, (2) that the juror answered the question dishonestly, and (3) that a
truthful answer would have subjected the juror to being stricken for cause .
Taylor v. Commonwealth , 175 S.W .3d 68, 74-75 (Ky. 2005) . Ajuror should be
stricken for cause "[w]hen there is reasonable ground to believe that a
prospective juror cannot render a fair and impartial verdict on the evidence."
RCr 9 .36(1) .
In reviewing the circuit court's findings of fact, we will not set them aside
unless they are clearly erroneous . CR 52.01 . We review the circuit court's
denial of Appellant's motion for a new trial for an abuse of discretion . Brown v.
Commonwealth , 174 S.W.3d 421, 428 (Ky. 2005) .
A. Juror Not Disclosing Previous Involvement With the Criminal
Justice System
Prior to serving as a juror, J .S. filled out a Juror Qualification Form,
which included the question "Have you or a family member been a defendant,
witness, or complainant in a criminal case?" . J .S . checked "No ."
At the October 3, 2008 hearing, Appellant's counsel asked J .S . if she
knew a Greg Carves. J.S. did not remember the name until Appellant's
counsel showed her a criminal complaint, in which J.S. alleged that Carves
committed the offense-'of terroristic threatening." As the circuit court found in
its Findings of Fact, "[alfter reviewing the complaint., [J.S .] testified a man had
beaten up one of her sisters at the Stidhamn-ailer Court and she either called
in the complaint or filed a complaint on her sister's behalf. "2
The Commonwealth asked J.S. if she recalled how the case against
Carves was resolved, because it appeared from court records that no action
was taken. J .S . testified that she believed, but was not sure, that Carves had
been taken to Newport, Kentucky to face criminal charges there.
J.S. also testified that she had called the police on her husband for
shooting at her, though it is unclear whether charges were ever filed . In
addition, though not included in the circuit court's findings of fact, J.S. also
testified that she may have called the police on her neighbor. It is not clear
whether either of these incidents resulted in a criminal complaint.
J.S. also testified that her grandfather had been accused of murder
approximately 50 years ago, when she was four years old, and apparently
convicted. Her grandfather was then apparently exonerated when another
person confessed to the murder. J. S. also testified that an uncle was shot and
killed approximately 25 years earlier, and that a cousin had "been in trouble,"
though she did not know the specifics. When asked why she did not disclose
2 Presumably, Carves had also threatened J.S.
any of this on her Juror Qualification Form, J .S. testified that she thought the
question referred only to her immediate family. She also suggested that she
had not remembered some of these details.
Upon review of the record, we cannot say that the circuit court's findings
of fact were clearly erroneous. Based upon these findings and other facts in
the record, it is clear that J .S. was asked a material question ("Have you or a
family member been a defendant, witness, or complainant in a criminal case?") .
It is not clear, however, that J.S. answered the question dishonestly.
While J.S. alleged that Carves committed the misdemeanor offense of
terroristic threatening against her, it appears from her testimony that his
aggression was directed primarily at her sister. J. S. may not have remembered
the incident when she answered the Juror Qualification Form. In either case, a
truthful answer would not have subjected J .S . to being stricken for cause.
Being the victim of a crime does not automatically disqualify a juror. Bowling
v. Commonwealth, 942 S.W.2d 293, 299 (Ky. 1997) ; Sanders v.
Commonwealth, 801 S.W.2d 665, 670 (Ky. 1990) . In no way does this isolated
incident suggest that J.S. could not render a fair and impartial verdict on the
evidence .
In addition, nothing in the record or in the facts found by the circuit
court suggests any bias on the part of J.S stemming from her relatives'
involvement with the criminal justice system. While Appellant argues that she
was a "prosecution-oriented juror," J.S. also had a grandfather wrongfully
convicted of murder, which certainly would not. make her "prosecution-
oriented." In short, Appellant has not alleged facts "sufficient to undermine the
integrity of the verdict ." Gordon, 916 S.W.2d at 179. Therefore, the circuit.
court did not abuse its discretion in denying Appellant's motion for a. new trial
on these grounds .
B. Juror Not Disclosing Unknown Relationship to Victim's First Cousin
During voir dire in Appellant's trial, the court asked the jurors whether
anyone was related by blood or by marriage to the victims, Woodrow and Estill
Mullins. Juror J.S. did not tell the court that she was related to either victim.
Appellant argues that J.S.'s sister's husband, William "Booter" Mullins,
is the first cousin of the deceased, Woodrow Mullins . J.S. stated that she did
not know much, if anything, about Booter Mullins's family. She had assumed
that Booter was not related to Woodrow, because Booter's family did not look
like Woodrow's family. J.S. testified that she did not learn that Woodrow and
Booter were first cousins until after the trial, and she stated that it had no
effect on her deliberations . 3
Based on our review of the record, we cannot say that the circuit court's
findings were clearly erroneous. Furthermore, based on the findings and other
facts in the record, we cannot say that the circuit court abused its discretion in
denying Appellant's motion for a new trial. While a material question was
3 The circuit court denied Appellant's motion for a continuance to locate Booter
Mullins in order for him to testify. Appellant's counsel stated that Booter Mullins
would testify that he was Woodrow Mullins's first cousin. However, J.S.'s testimony
had already established this fact.
asked, it does not appear that J .S. answered the question dishonestly . There
was no evidence that J .S . was aware of the relationship between Booter and
Woodrow at the time of trial . Furthermore :
Where it is shown that relationship existed between
juror and accused, and the juror is ignorant of the
existence of kinship, he stands toward the accused as
"an entire stranger, in so far as the affinity of blood
might affect his verdict. It is the knowledge of the
kinship and the feeling that arises from it. that. works
the disqualification ; and, if the knowledge is absent,
the disqualification disappears ."
Reed v. Commonwealth, 273 Ky. 607, 117 S.W.2d 589, 592 (1938) (quoting
Miracle v. Commonwealth, 148 Ky. 453, 146 S.W. 1136, 1140 (1912)) . C.f.
Anderson v. Commonwealth, 864 S.W.2d 909, 911-12 (Ky. 1993) (evidence that
juror concealed relationship by marriage to complainant's boyfriend) . The
circuit court did not abuse its discretion in overruling Appellant's motion for a
new trial on these grounds.
C. Juror Not Disclosing That She Has Memory Problems Due to
Multiple Sclerosis
In the course of questioning J.S. at the October 3, 2008 hearing, J.S.
stated for the first time that she had multiple sclerosis (MS), and that she
suffered from short-term memory problems . J.S . assumed that these memory
problems were the result of her MS. She also stated that she does not take any
medication for her MS .
J .S. testified that she asked to be excused from jury service due to work
obligations . Appellant's counsel pointed out that, even though J. S. did not
want to serve as a juror, she had not mentioned her MS on her Juror
Qualification Form. The Form had a section stating "I ask to be
PERMANENTLY EXCUSED from jury service due to a. PERMANENT MEDICAL
CONDITION." J .S . did not check the box next to this statement, and she left it
blank. During voir dire, the court. also asked, "Do any of you have any physical
or health problems that would prevent you from sitting on this four-day trial?" .
J. S. did not respond .
Upon questioning by the court at the October 3, 2008 hearing, J.S.
testified that she was currently employed as a school bus driver for the
Breathitt County Board of Education, and that she had passed a physical in
order to obtain that position. The court found this fact significant in both its
oral and written conclusions. In particular, the court found it significant that
J.S. had been found fit to hold a position involving the safety of children.
Appellant argued that being a school bus driver involved a different set of
skills, and did not require the same ability to recall facts that is involved in
serving as a juror.
Upon review of the record, we again cannot say that the circuit court's
findings of fact were clearly erroneous. In addition, it is not even clear from the
record that J.S. was ever asked a material question about her MS. While the
Juror Qualification Form gives potential jurors the option of requesting to be
permanently excused due to a permanent medical condition, the Form does not
specifically ask about medical conditions . J.S. may have simply assumed that
her MS would not qualify. The court asked during voir dire whet-her a medical
condition would prevent a juror from sitting for a four-day trial. Based on the
fact that J.S . did sit for the entire trial, she obviously answered this question
honestly.
In addition, we cannot say that. J .S. should have been stricken for cause
had her MS been known before trial. With regard to a juror with a disability,
Appellant is required to present evidence of prejudice resulting from that
juror's participation . Woodard v. Commonwealth, 147 S.W.3d 63, 69 (Ky.
2004). No such evidence has been presented here. "Many jurors have
somewhat less than perfect hearing or vision, or have other limitations on their
abilities to assimilate or evaluate testimony and evidence. A defendant is not
entitled to a perfect trial, but only a fair one ." Id. (quoting United States v.
DepMsey, 830 F.2d 1084, 1088 (10th Cir. 1987)). The circuit court did not
abuse its discretion in denying Appellant's motion for a new trial based on
J.S.'s disclosures about her MS.
III. CONCLUSION
Appellant has failed to show that any information that J .S. did not
disclose, had it been known, would have resulted in her being stricken from the
jury for cause . Therefore, Appellant has not shown facts sufficient to
undermine the integrity of the jury's verdict . The circuit court did not abuse its
discretion in denying Appellant's motion for a new trial. For the forgoing
reasons, the judgment of the Breathitt Circuit Court is hereby affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Bruce William Francisky
Attorney at Law
P.O . Box 4155
Winchester, KY 40392
COUNSEL FOR APPELLEE :
Jack Conway
Attorney General
Christian Kenneth Ray Miller
Assistant Attorney General
Office of the Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, KY 40601