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NOT TO BE PUBLISHED OPINION 

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE 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UNPUBLISHED KENTUCKY APPELLATE DECISIONS, 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 

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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED 

DECISION IN THE FILED DOCUMENT AND A COPY OF THE 

ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE 

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ACTION. 
IKVANIJ.CAKVAJ: 2U, 2U lb 

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NOT ITIO-BE-PUBL-IS 

2014-SC-000742-MR 

DA' ''•-%0-tes 

APPELLANT JACK GORE 

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 thirddegree 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? Um, 

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—urn—I 

would ask that she be excused. 

Judge: As you sit here right now, you have no recollection of—? 

2 
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 "[i]t 

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 leividence of other crimes, wrongs, or 

acts . . . ." 

3 
"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 twentysomething 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 

5 
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 

6 
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 

7 
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 "Mailing to respond to open9 
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, "[e]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 

10 
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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