. . 

RENDERED: SEPTEMBER 28, 2017 · 

. TO BE PUBLISHED 

.juprmtt dfourt of 1Ji~~ ~ [L . 2015-SC-000712-DG · 

ROBERT MORRISON 

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·APPELLANT 

ON REVIEW FROM COURT OF APPEALS 

v. CASE NO. 2014-CA-'001818-MR . 

HICKMAN CIRCUIT COURT NO. 14-CR-00023 

COMMONWEALTH OF KENTUCKY· APPELLEE 

OPINION OF THE COURT BY JUSTICE WRIGHT 

REVERSING AND REMANDING · 

A Hickman Circuit Court jury found Appellant, Robert Morrison, gu:ilty of 

esc~pe and fleeing or evading police and found him to be a first.,-degree 

. persistent felonyoffender. The trial court sentenced Appellant to fifteen.years' 

imprisonment. Appellant appealed to the Court of Appeals, argu:ing the trial 

court erred in failing to. strike a juror for cause, 1 and that court affirmed the 

trial court. Appellant sought discretionary review with this Court, which we . . 

granted. For the reasons that follow, we reverse the .Court ·of.Appeals and 

remand this matter to the trial court. 

i Appellant also argued an unpreserved issue to the Court of Appeals; however, 

that issue is not before this Court. 
. I .. BACKGROUND 

The facts underlying the escape· and fleeing or evading charges for which . . . . . . . . .. 

Appellant was convicted are not at issue in· this appeal .. Appellant's sol~ issue 

·.involvesjury selection. During voir dire, :a juror, Mrs. Morris revealed that she 

was the mother of the County Attorney, Sue Ellen Morris. The judge called the 

juror to the bench for a colloquy. She was present d:uring the ~ntirety of the 

following exchange: 

Judge: . How ya doing today, Mrs. Morris? 

·Juror: Good. 

Judge: You are Sue Ellen's mother? 

/ 

Juror: . Yes . 

. Judge: · Wouid that cause you any problems today sitting, 

he~ing ·this_ case, and rendering a decision? . 

. Juror: · I don't thjnk so, but I didn't want- · 

'Judge: ·Well, we appreciate ya telling everybody so everybody 

else would know who you were. 

Juror: Okay. 

Judge: . . All right.· .. 

Defense: Judge, l would ask her-· for her to be excused for 

ca":-lse. Su~ Ellen 1s· the-Ms. Morris-I'm sorry-is ,the 

attorney who did the preliminary hearing: ljust don't 

want there to be-albeit an appearance-:-an~ I don't 

think it cures it by asking her. I think there is 

pressure on her to say she can be unbiased and it's 

just too·dose to the case. 

Judge: All right. :Commonwealth?· 

Prosecutor: I don't have a problem· with her· sitting. Like I said, I 

think she is gonna make.up her mi:z:id. 

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Judge: 

Juror: 

Judge: 

Juror: 

Judge: 

Juror: 

Judge: 

Juror: 

Judge: 

Juror: 

Judge: 

Okay, Mrs. Morris, Jet me ask you this. Has Sue· Ellen 

discussed this particular case·with. you ~tall? 

She doesn't discuss cases with me. ·Which she said 

· she wouldn't want me on ajury. 

She said she wouldn't want you? That's just cause 

you're her mama and she's trying to give you a way ·out? · · 

(All laugh) 

I guess; I don't know.'. 

She doesn't discuss any case with you?· 

No. 

In particular, she.has not discussed this case? 

She has not-any cases. 

And you don't have any knowledge of this case? 

No. 

. . 

And you don't feel like you have any bias one way or 

the other since Sue Ellen-which she is the County . 

Attorney-she's not in this case. She's not going to be 

assisting [the prosecution] today is she? 

Prosecutor: No. 

Judge: 

Defense: 

Judge: 

Deferise: 

She's not going to be called as a witness or anything.is she? . · 

No, Judge. 

Alright. And you are asking that she be excused for 

cause? 

Yes, I am-or even to keep her in reserve. That would 

be okay, too, I guess. But I don't think we're gonna · 

have any shortage ofjurors today. 

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Judge: What says the Commonwealth? 

·Prosecutor: I just don't feel like it's a problem. 

Judge: Well, nor do I. Mrs. Morris said she do~sn't know 

anything about this case. She said Sue Ellen, the 

County Attorney, has not discussed any case with her. 

·. I do not find that surprising or to be unusual.· I 'would 

expect nothing less of Ms. Mor.tjs, the County· . 

Attorney. She wouldn't discuss· a case going to trial. 

Um, M?'am? 

Juror: Yes. 

Judge: I am gonna allow ya to remain in box. Doesn't mean 

you wUl get to stay all day,. but I am gonna allow ya to 

remain in. box: ·Motion overruled. . 

Defense: Yes· Judge. 

Judge: Thank ya, ma'am. 

As shown above, the court denied the challenge for cause, finding that . 

the juror had no actual knowledge of the case and. that j~~or's daughter, the. 

County Attorney,·was not currently involved in the case. The trial court also 

found that though she had been listed on a preliminary witness list, the 

. . 

County Attorney was unlikely to be called· as a witness for the Commonwealth_.2 

Later, Appellant used a peremptory strike on the juror in question and 

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noted, with specifidfy, the ·name of the petit juror he· would have stricken, if the 

juror in question had been removed for cause. As such, Appellant complied 

With Gabba.rdv. Commonwealth, 297 S.W~3d 844 (Ky. 2009).and_ properly 

preser\red the issue for appellate review. 

2 In fact, the County- Attorney was not called as a witness· during the trial. 

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II. ANALYSIS · 

As this· Court has noted, "[l]ong-standing Kentucky law .has held that a 

triai court's decision on wheth,er to strike a juror for cause must be reviewed · 

for abuse of discretion." Shane v. Commonwealth, 243 S.W.3d 336, 338 (Ky. 

2007) (citing Adkins v. Commonwealth,. 96 S.W.3d 779 (Ky. 2003); Pendleton v. 

Commonwealth, 83 S.W.3d 522 (Ky. ·2002)). "The test for abuse of discretfon is 

whether the trial judge's deGision was arbitrar}r, unreasonable, unfair,· or 

unsupported by sound legal principles .. " Commonwealth v. English, 993 S.W.2d 

941, 945 (Ky. 1999). 

Kentucky Criminal Rule 9.36(1) establishes the standard a trial court is 

required to apply during voir dire: "When there is reason~ble ground to believe 

that a prospective Jμrdr cannot render a fair and impartial verdict on the 

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. evidence, he shall be excused as not qualified." Furthermore, this Court has 

recognized that a defendant's use.of peremptory strikes "is beyond. question a 

· valuable right going to the defendant's peace of mind _and the public's view of 

fairness." Shane, 24·3 S.W.3d at 339. 

Our case law makes it clear that defendants should not be forced to use 

· peremptory challenges to dismiss jurors who should be stricken for cause. 

"[W]hen a _defendant is forced to use a peremptory strike on a juror who has 

not been properly excused for cause, the court has actually taken away from 

the number of peremptories given to the defendant by rule of this Court." Id. 

Appellant argu.es that the mother-daughter relationship between the 

juror and the County Attorn~y rendered the juror objectively biased and 

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partial. If that relationship standing along was the sole.factor, this case would 

be a closer call-and that question remains for another day~ However, after -

reviewing the video of Appellant's voir dire· (as quoted above), it is not the 

familial relationship in and of itself that tainted this juror. Rather, the juror 

was tainted when she became privy to the bench ses~ion o'n the motion to 

strike her for cause. By explaining the reasoning l?ehind that motion in the 

juror's ·presence, defense counsel made the juror aware that her daughter had 

conducted the preliminary hearing in this case. As such, counsel telegraphed 

disqualifying information to the juror, regardless of whetJ;ier she had previously 

been qualified. Since the juror was not involved in the felony prosecution, and 

never dis.cussed cases with her daughter, without defense counsel's 

· statements, she would have had no. reason 'to know that her daughter had ever 

been 'involved in this case. 

As it is, the juror was made aware that her daughter had once· stood in 

an adversarial position against Appellant on these charges. The juror listened 

as defense c~uncil expressed doubt that she could be unbiased, .and suggested 

that she was under pressure to claim impartiality. Meanwhile·, the prosecutor 

expressed his belief that the juror could be impartial. ·The total effect of this 

juro:r; being_ privy to the bench session acted to underm~ne "the mental attitude . 

, 

of appropriate indifference" that is required of a juror at trial. Gabbard, 297 

S.W.3d at 8S4. 

This Court has held: "Irrespective of the answers given on voir dire, the 

court should· presume the· likelihood of prejudice on the part of the prospective 

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juror because the potential juror has such .f close relationship, be it familial, 

financial or situational, with any of the parties, counsel, victims or witnesses." 

Mont~omery v. Commonwealth, 819 S.W.2d 713, 717 (Ky. 1991) (quotations 

omitted). We do not depart from that reasoning today, and agree that "[o]nce 

that close refationship is established, without regard to protestations of lack of 

bias~ the court should ·sustain a challenge for cause and excuse the juror." 

Ward v. Commonwealth, 695 S.W.2d 404, ·40.7 (Ky. 1985). 

The juror in this case is analogous to the "doubtful jurors" for which this 

Court has reversed trial courts for failing to. strike. '.fhe fact that the 

adversarial post the juror's. daughter occupied was "only" as the· attorn~y. 

conducting the preliminary hearing is irrelevant. For example, in Ordway v. 

Commonwealth, the juror in qu~stion was the sister of a victim's advocate who 

was working with.the Commonwealth. 391.S.W.3d 762, 782 (Ky. 2013). A· 

victim's advocate does not normally testify, advocate, or even speak in front of 

the jury. Yet, this Court noted that "[g]enerally, the victim's advocate in a 

criminal case tends to be viewed as favoring, on the victim's behalf, retribution 

against the defendant, and thus is generally allied with the_ interests of the_ 

prosecutors." Ordway, 391 S.W.3d at 782. 

The County Attorney :represented the Commonwealth o.f Kentucky in the 

preliminary hearing and mμst nec·essarily be viewed as "allied with the 

interests of the prosecutors." Id. In finding reversible error due to the trial . . -

court's failure to strike the victim's advocate's sister for cause, we stated: 

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In recent cases we have indicat.ed that, when there is uncertainty 

about whether a prospective juror should be stricken for cause, the 

prospective juror should be stricken. The trial court should err on 

the side .of ca,ution by, striking the doubtful juror; that is, if a juror· 

falls within a gray area, he should be stricken.· We have attempted 

to make this fundamental rule clear in a series of cases since 

Shane v. Commonwealth, 243 S.W.3d.336 (Ky. 2007). 

Nevertheless, all too often trial courts, as here, inexplicably put at 

risk not only the resources of the Court of Justice, ht;1.t the 

fundamentally fair trial they are honor-bound to provide, by 

seating jurors whose ability to try the case fairly and impartially is 

justifiably doubted. · 

Id. at 780. This Court has recently stated: "[t]rial judges are possessed of great . 

authority to·enla:rge jury pan~ls or change venues. They don't. have.to imperil 

their cases with such miserly voir dire I?ractices." . Sluss v. Commonwealth, 450 

S.W.3d 279, 285 (Ky. 2014). There is no reason for a trial court to imperil. the 

integrity of its proceedings by retaining questionable jurors .. 

After a careful review of the proceedings, we fi:q.d. that the: trial court 

abused its discretion by denying Appellant's motion to strike the juror at issue. 

for cause.· 

III. CQNCLUSION 

For the foregoing reasons, we reverse the decision of the Court of 

Appeals, and. remand this matter to the Hickman Circuit Court for further 

proceedings consistent with this opinion. 

All sittjng. All concur. 

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( 
COUNSEL FOR APPELLANT: 

Shannon Renee Dupree 

Assistant Public Advocate 

COUNSEL FOR A.PPELLEE:· 

Andy Beshear 

Attorney General 

Gregory C. Fuchs 

Assistant Attorney General 

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