RENDERED: SEPTEMBER 28, 2017 TO BE PUBLISHED

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# filnurl nf**~tnfurku** 2015-SC-000712-DG
ROBERT MORRISON APPELLANT·.



### v. ON REVIEW FROM COURT OF APPEALS CASE NO. 2014-CA-001818-MR HICKMAN CIRCUIT COURT NO. 14-CR-00023
COMMONWEALTH OFKENTUCKY·

OPINION OF THE COURT BY JUSTICE WRIGHT REVERSING AND REMANDING · APPELLEE

A Hickman Circuit.CourtjuryfouncfAppellant, Robert Morrison, guilty of escape and fleeing or evading police and found him to be a first-degree persistent felony offentjer. The trial court sentenced Appellant to fifteen ·years' imprisonment.· Appellant appealed to the Court ofAppeals, arguing the trial court erred in failing to strike a juror for cause,1 and that courtaffirmed the

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

granted. For the reasons.that follow, we reverse the Court.ofAppeals and

### r~mand this matter to the trial

### court~

i Appellant also argued 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**s~lection.** ··During voir dire, :ajuror, Mrs. Morris reverued that she

was the mother ofthe County Attorney, Sue**~llen** Morris. Thejudge called the jurorto the- bench for 

### a colloquy. She wa:s present d:uring the entirety ofthe following exchange: Judge:

-Juror:

Judge: )

- Juror: .Judge:
Juror: ·Judge:_
Juror: Judge:_ Defense:

Judge: .Howya doing today, Mrs. Morris? 

# Good. You are Sue Ellen's mother? _Yes.

Would that cause you any problems today sitting, hearing this_ case, and rendering a decision?

· -I don't thjnk so, but I didn;t want- · Well, we appreciateya telling everybody so everybody else wouldknow who you were. _Okay. All right.·.

- Judge, 

## r would ask her-· for her to be excused for cause. Sue Ellen :ls·the-Ms. Morris-I'm sorry-is the attorney who did the preliininary hearing. l just

### do~'t want there to be-albeit an appearance-:-and 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. All right. ·Commonwealth? Prosecutor: I don't have a problem with her sitting
.. Like I said, I think she is gonna make up her mind. 2Judge:
Juror: Judge:

Juror: Judge: Juror: Judge: Juror: Judge: Juror: Judge: Okay, Mrs. Morris, Jet me askyou**this.~**Has Sue·Ellen discussed this particular case·with you at all? She doesn't discuss cases with me. Which she said

. she wouldn't want me on a jury. ·

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 dot'.l'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 notgoing to be assisting [the prosecution] today is she? Prosecutor: No. Judge:
Defense: Judge:
Defense: She's not going to be called as a witness or anything.is she? · · No, Judge. Alright. Arid 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 of.jurors today. 3Judge: What says the Commonwealth? Prosecutor: Ijust 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 CountyAttorney, has not discussed any case with her. ·.. I do not find that surprising or to be unusual.·I would

. expect nothingless of

### Ms. Morris, the County · Attorney
..She wouldn't discuss·a case going to trial. Um,**M~'am?** Juror: Yes. Judge: I 

### 8.m gonna allow ya to remain in box. Doesn't mean you 

### wi.11 get·to 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 forcause, finding that. thejuror had no actual knowledge ofthe case

# and that

### J~ror's daughter, the. County Attorney, was not currently involved in the case. The trial court also found that though she had been list6d on

# apreliminary witness list, the. County Attorney 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 specifidty, the.name ofthe petitjuror he would have stricken, ifthe juror in question had been removed for cause. As such, Appellant complied with**Gab~ard** 

### v. Commonwealth,_ 297. S.W._3d 844 (Ky. 2009)and properly preserired the issue for appellate review.

2 In fact, the Count}'Attorney was notcalled as a witness·during the trial.
4II. ANALYSIS · As this Court has noted, "[l]ong-standing Kentucky law.has held that a trial 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. Common,wealth,. 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 arbitrru}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 reasonable ground to believe that a prospectivejuror cannot render a fair and impartial verdict on 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 argues that the mother-daughter relationship between the

. . juror and the County Attorney rendered thejuror objectively biased and
5partial. Ifthat relationship standing along was the sole factor, this case would be a closer call-and t_hat question remains for another**day~** However, after· reviewing the video ofAppellant's voir dire (as quoted above), it is notthe familial relationship iri and ofitselfthat tainted thisjuror. Rather, theju:ror
was tainted when she became privy to the bench session on 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 the.juror wasnot 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 kri.ow that her daughter had ever

been'involved in this case. As it is, thejurorwas made aware that her daughter had once stood in
an adversarial position against Appellant on these charges. TheJuror listened
as defense council .expressed d·oubt that she could be unbiased, .and sl,lggested that she was under ·pressure to claim impartiality. Meanwhile·, the prosecutor expressed his beliefthat thejuror could be impartial. -The total effect ofthis juror being_privy to the bench session acted to undermine "the mental attitude. ' . . ' ofappropriate indifference" that is required ofa juror at trial. Gabbard, 297 

### s.W.3d at 854.

- This Court has held: "Irrespective ofthe answers given on voir dire, the court should presume the· likelihood ofprejudice on the part ofthe prospective 6; . juror because the potentialjuror has sucha close relationship, be it familial, ,! finan_cial or situational, with any ofthe parties, counsel, victims or witnesses." Mont[!o1nery 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 thatdose 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). Thejurorin this case is analogous to the "doubtfuljurors" for which this

. . Court has reversed trial courts for failing to strike. The 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. Comrrwnwealth,·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 ofKentucky in the preliminary hearing and must necessarily 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 indicated 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.ofcaution by striking the doubtfuljuror; 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 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, bl1t 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 enlargejury**pan~ls.or** change venues. They don't_ have-to imperil

. their cases with such miserly voir dire l?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**rev~ew** ofthe proceedings, we fiqd that the: trial court abused its discretion by denying Appellant's motion to**strik~** thejuror at issue. for cause. III. CONCLUSION For the foregoing reasons, we reverse the decision ofthe Court of Appeals, and_ remand this matter to the Hickman**Ci~cuit** Court for further proceedings consistent with this opinion. All sittjng. All concur.

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(COUNSEL FORAPPELLANT: Shannon Renee Dupree Assistant Public Advocate
COUNSEL FORAPPELLEE:· Andy Beshear Attorney General Gregory C. Fuchs Assistant Attorney General

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