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. 2015-SC-000712-DG · ROBERT MORRISON

## :[]~**LJ\E10)1qJrzl-l~** rkln.tWt,fX- ·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 Courtjury 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 ofAppeals, argu:ing the trial courterred in failing to.strike ajuror 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 alsoargued an unpreserved issue to the Court ofAppeals; 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 notat issue in·this appeal.. Appellant's**sol~** issue ·.involvesjury selection. During voir dire, :ajuror, Mrs. Morris revealed that she

was the mother ofthe County Attorney, Sue Ellen Morris. Thejudge called the jurorto the bench for a colloquy. She was present d:uring the**~ntirety** ofthe 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. 2Judge: 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 wantme on ajury.

She said she wouldn't wantyou? That'sjust 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 ofthis case? No.

. . And you don't feel like youhave 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. 3Judge: What says the Commonwealth? ·Prosecutor: Ijust don't feel like it's 

### aproblem. Judge: Well, nor do I. Mrs. Morris said she**do~sn't** know anything about this case. She said Sue Ellen, the CountyAttorney, has not discussed any case with her. ·. I do not find that surprising or to

## be unusual.·I'would

expect nothing less ofMs. 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 getto stay all day,. but I am gonna allow ya to remain in.box: ·Motion overruled. . Defense: Yes·Judge. Judge: Thankya, ma'am. As shown above, the court denied the challenge for cause, finding that. thejuror had no actual knowledge ofthe 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

. . CountyAttorney was unlikely to be called·as a witness for the Commonwealth_.2 Later, Appellant used a peremptory strike on thejuror in question and I noted, with specifidfy, the·name ofthe petitjuror he· would have stricken, ifthe 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. 4II. 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 ofdiscretion." Shane v. Commonwealth, 243 S.W.3d 336, 338 (Ky. 2007) (citingAdkins v. Commonwealth,.96 S.W.3d 779 (Ky. 2003); Pendleton v. Commonwealth, 83 S.W.3d 522 (Ky. ·2002)). "The test for abuse ofdiscretfon is whether the trialjudge'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 prospectiveJμrdr cannot render a fair and impartial verdicton the

. '

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

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

· valuable right going to the defendant's peace ofmind_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 dismissjurors 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 ofperemptories given to the defendant by rule ofthis Court." Id. Appellant argu.es that the mother-daughter relationship between the juror and the County**Attorn~y** rendered thejuror objectively biased and 5partial. Ifthat 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 ofAppellant's voir dire· (as quoted above), it is notthe familial relationship in and ofitselfthat tainted thisjuror. Rather, thejuror 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 thejuror aware that her daughter had conducted the preliminary hearing in this case. As such, counsel telegraphed disqualifying information to thejuror, regardless ofwhetJ;ier she had previously been qualified. Since thejuror 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, thejuror was made aware that her daughter had once·stood in an adversarial position against Appellant on these charges. Thejuror listened as defense**c~uncil** expressed doubtthat she could be unbiased, .and suggested that she was underpressure to claim impartiality. Meanwhile·, the prosecutor expressed his beliefthat thejuror could be impartial. ·The total effect ofthis juro:r; being_privy to the bench session acted to**underm~ne** "the mental attitude .
, ofappropriate indifference" that is required ofa juror at trial. Gabbard, 297 S.W.3d at 8S4. This Court has held: "Irrespective ofthe answers given on voir dire, the court should·presume the· likelihood ofprejudice on the part ofthe prospective 6) . jurorbecause the potentialjuror has such 

### .f close relationship, be it familial, financial or situational, with any ofthe 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 oflack of**bias~** the court should ·sustaina challenge for cause and excuse thejuror." 

### Ward v. Commonwealth, 695 S.W.2d 404, ·40.7 (Ky. 1985). The juror in this case is analogous to the "doubtfuljurors" for which this Court has reversed trial courts for failing to. strike. '.fhe fact that the adversarial post thejuror's.daughter occupied was "only" as the·**attorn~y.** conducting the preliminary hearing is irrelevant. For example, in 

### Ordway v. Commonwealth, thejuror in**qu~stion** was the sister ofa 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 thejury. 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 ofthe_ 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 ofthe 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:

7In recent cases we have indicat.ed that, when there is uncertainty about whether a prospectivejuror should be stricken for cause, the prospectivejuror should be stricken. The trial court should err on the side.ofca,ution by, striking the doubtfuljuror; that is, ifa juror· falls within a gray area, he should be stricken.· We have attempted to make this fundamental rule clear in a series ofcases 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 ofthe Court ofJustice, ht;1.t the fundamentally fair trial they are honor-bound to provide, by seatingjurors whose ability to try the case fairly and impartially is justifiably doubted. · Id. at780. This Court has recently stated: "[t]rialjudges are possessed ofgreat


# . authority to·enla:rgejury**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 ofits proceedings by retaining questionablejurors.. After a careful review ofthe proceedings, we fi:q.d. that the:trial court abused its discretion by denying Appellant's motion to strike thejuror at issue. for cause.· III. CQNCLUSION For the foregoing reasons, we reverse the decision ofthe 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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