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RENDERED: FEBRUARY 16, 2023

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2021-SC-0381-MR

2021-SC-0384-MR

KEVIN RUSSELL APPELLANT

ON APPEAL FROM CASEY CIRCUIT COURT

V. HONORABLE JUDY VANCE MURPHY, JUDGE 

NO. 19-CR-00167

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

The Sixth and Fourteenth Amendments to the United States 

Constitution, and Section 11 of the Kentucky Constitution, guarantee a fair 

trial by a panel of impartial, indifferent jurors. Ordway v. Commonwealth, 391 

S.W.3d 762, 780 (Ky. 2013). RCr1 9.36(1) establishes the standard for 

dismissal: “When there is reasonable ground to believe that a prospective juror 

cannot render a fair and impartial verdict on the evidence, that juror shall be 

excused as not qualified.” The primary issue in this appeal is whether the 

Casey Circuit Court abused its discretion by denying Kevin Russell’s motion to 

strike Juror 432 for cause. Concluding that it did not, we affirm. 

1 Kentucky Rule of Criminal Procedure.
2

I. Factual and Procedural Background

A jury convicted Russell of one count of trafficking in a controlled 

substance, first-degree, first offense, two or more grams of methamphetamine;

one count of persistent felony offender (“PFO”) in the second degree; one count 

of possession of marijuana; and one count of possession of drug paraphernalia. 

The jury recommended a sentence of twenty years for the trafficking count, as 

enhanced by the PFO count, which the trial court imposed. Russell now 

appeals as a matter of right.

2

II. Analysis

A. Russell’s motion to strike Juror 432 was properly denied.

Russell first argues that the trial court improperly denied his motion to 

excuse Juror 432 for cause. The Sixth and Fourteenth Amendments to the 

United States Constitution, as well as Section 11 of the Kentucky Constitution, 

protect a criminal defendant’s right to an impartial jury. Ordway, 391 S.W.3d

at 780. Because denial of this right is structural, we do not apply harmless 

error analysis to such claims. Commonwealth v. Douglas, 553 S.W.3d 795, 799 

(Ky. 2018). Rather, where the right is infringed, prejudice is presumed. Id.

To preserve this issue, a party must follow the six-step process outlined 

in Floyd v. Neal:

[A] litigant must: (1) move to strike the juror for cause and be denied; 

(2) exercise a peremptory strike on said juror, and show the use of 

that peremptory strike on the strike sheet, and exhaust all other 

peremptory strikes; (3) clearly indicate by writing on her strike sheet 

the juror she would have used a peremptory strike on, had she not 

2 Ky. Const. § 110(2)(b).
3

been forced to use a peremptory on the juror complained of for 

cause; (4) designate the same number of would-be peremptory 

strikes as the number of jurors complained of for cause; (5) the 

would-be peremptory strikes must be made known to the court prior 

to the jury being empaneled; and (6) the juror identified on the 

litigant’s strike sheet must ultimately sit on the jury.

590 S.W.3d 245, 252 (Ky. 2019). No party disputes that Russell has fulfilled

these preliminary requirements and our review of the record confirms Floyd

was followed. Following Juror 432’s initial interview at the bench, Russell 

moved to strike Juror 432 for cause, which the trial court denied. Russell 

renewed his motion after Juror 432 was recalled to the bench and the trial 

court again denied the motion. Russell used all his peremptory strikes, 

including one for Juror 432. Defense counsel noted on the strike sheet that 

had Russell not used a peremptory strike on Juror 432, he would have used it 

on Juror 355. Juror 355 subsequently sat on the jury and was not excused as 

an alternate. Floyd having been satisfied, we turn to the merits of Russell’s 

claim.

This Court reviews a trial court’s ruling on a motion to strike a juror for 

cause for an abuse of discretion. Sturgeon v. Commonwealth, 521 S.W.3d 189,

192 (Ky. 2017). “The test for abuse of discretion is whether the trial judge’s 

decision was arbitrary, unreasonable, unfair, or unsupported by sound legal 

principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). 

Whether a juror has formed an opinion or expressed a bias which makes her 

unqualified for service on the jury is a mixed question of law and fact. 

Gabbard v. Commonwealth, 297 S.W.3d 844, 854 (Ky. 2009). 
4

The standard for striking a juror for cause is found in RCr 9.36(1): 

“[w]hen there is reasonable ground to believe that a prospective juror cannot 

render a fair and impartial verdict on the evidence, that juror shall be excused 

as not qualified.” “The central inquiry is whether a prospective juror can 

conform his or her views to the requirements of the law, and render a fair and 

impartial verdict based solely on the evidence presented at trial.” Hubers v. 

Commonwealth, 617 S.W.3d 750, 762 (Ky. 2020) (quoting Wood v. 

Commonwealth, 178 S.W.3d 500, 516 (Ky. 2005)). Generally, “‘where questions 

about the impartiality of a juror cannot be resolved with certainty, or in 

marginal cases, the questionable juror should be excused.’” Jerome v. 

Commonwealth, 653 S.W.3d 81, 88 (Ky. 2022) (quoting Ordway, 391 S.W.3d at 

780).

In Russell’s case, Juror 432 approached the bench after defense counsel 

asked the panel of prospective jurors if any of them had strong feelings about 

methamphetamine and, generally, whether they had friends or family who 

grapple with addiction. The recording of this first round of questioning 

between the court and Juror 432 is nearly inaudible. As such, we are left with 

only snippets of what was said as well as Juror 432’s body language. Juror 

432 appeared to state he had family members who struggled with alcohol 

addiction, but he could not be sure how or if that would affect his ability to

judge Russell. During this first interaction, Juror 432 kept his head down for 

much of the questioning, though he did raise it to respond to questions from 

the trial court. When Juror 432 returned to his seat, defense counsel moved to 
5

strike him for cause based upon his inability to say exactly how his experience 

with addiction would affect his ability to judge Russell. The trial court denied 

the motion on the basis that his general statements regarding drugs and 

addiction did not amount to a bias against Russell.

Although the court denied the motion, discussion of Juror 432 continued 

and the judge elected to call him back to the bench. This interaction remains 

difficult to understand but the recording is an improvement over the first 

round of questioning. This time the questioning focused on Juror 432’s ability 

to consider the full range of punishments in the event Russell was found guilty:

Judge: If you were to find the defendant is guilty, would you 

consider the full range of penalties, bringing the life experiences 

that you have to the table [inaudible] against drugs, as most people 

have, is there anything in your experience or anything that you 

have in your mind right now that would prevent you from being 

able to consider the full range of penalties if you were to believe 

that the defendant is guilty in this case?

Juror 432: I don’t have [inaudible], I really don’t.

Judge: Okay.

Juror 432: You’re saying, consider the full range.

Judge: Yes.

Juror 432: Being lenient, or being [inaudible]? Is that what you’re 

asking me?

Judge: Let me ask you kind of a hypothetical question: if you were 

to find someone guilty and I tell you that you have to sentence him 

anywhere from one year to five years, could you consider one year? 

Could you consider five years? Could you consider everything in 

between?

Juror 432: I don’t think I can answer that. I’m sorry. I really 

don’t. I don’t know anything about the trial so how could I...?
6

Judge: Have you ever been on a jury before?

Juror 432: Yeah. I have been. Once or twice.

Judge: Was it a criminal case?

Juror 432: No. It wasn’t. At least I don’t think. I don’t remember 

it. I don’t think it was a criminal case.

Judge: Okay. [Inaudible] speculate what you might or might not 

do with regard to a situation, but I need to know that you can 

consider a high end and a low end if we ever get to that point.

Juror 432: Okay, I could consider it then.

Judge: I appreciate that. I want to know that you can give it due 

consideration.

Juror 432: Yeah.

Judge: [Inaudible] think about you could do this, or you could do 

that, or anything in between.

Juror 432: Yes, I’d consider that.

Judge: Can you give it meaningful consideration?

Juror 432: Yeah, sure.

* * *

Prosecutor: I take it from your answer that you would need to 

know more information before you could commit to a penalty.

Juror 432: Yes.

Prosecutor: Just knowing that it’s a drug case you will know 

more, you will know a lot more about the case, about the facts, 

about him, about- just, without knowing anything about the case 

can you give fair and meaningful consideration of the entire range 

of punishment before you choose and impose a particular sentence 

which would be based on the [inaudible] information you have 

right now.

Juror 432: I can try, I can try.
7

Prosecutor: You’re not gonna automatically say “he oughta get the 

max” or “he oughta get the minimum.”

Juror 432: I don’t believe I would, no.

Prosecutor: You would consider whatever range this court 

instructs you to consider.

Juror 432: Yes.

Prosecutor: You could give fair and meaningful consideration to 

the entire range of punishments.

Juror 432: Yes.

Defense counsel: [Inaudible] consider [inaudible] addiction. Can 

you be sure that will not play a role in your decision making?

Juror 432: I can’t be sure, but I can say I will try. I will try. 

Sorry.

* * *

Judge: [Juror 432], [inaudible] of the charges [inaudible], just 

knowing that that is the charge with the life experiences you do 

bring to the table, does that cause you [inaudible] your mind 

against this defendant?

Juror 432: No, not against the defendant.

During this interaction, Juror 432 largely looked toward the judge and 

answered clearly and deliberately. After Juror 432 left the bench, Russell’s 

counsel again moved to strike the juror. The trial court denied the motion.

Considering the totality of the circumstances, we cannot say the trial 

court abused its discretion in declining to strike Juror 432 for cause. As to the 

initial questioning of Juror 432, the audio record is simply too unclear for us to 

make a meaningful assessment of what was said. The video record, however, 

shows little that would provide a reasonable ground to strike the juror. His 
8

head was often facing down, but whether this was out of embarrassment about 

his family’s drug history or out of an attempt to focus on what was being said—

as the prosecutor presumably was doing—cannot be discerned. And whether 

his soft voice arose from shame or was a result of the recording setup that 

rendered almost everyone’s voices inaudible is similarly unclear. We defer to 

the ruling of the trial court in the initial examination of Juror 432 because it is 

“in the best position to evaluate a juror's demeanor and answers during voir 

dire.” Hayes v. Commonwealth, 320 S.W.3d 93, 100 (Ky. 2010).

While some of Juror 432’s responses can be characterized as equivocal 

on his ability to consider the full range of possibilities in Russell’s trial, we 

cannot say those equivocations stem from an inability to render a fair and 

impartial verdict such that the trial court abused its discretion in not striking 

the juror. We further find little in Juror 432’s body language to suggest any 

level of discomfort above and beyond that usually suffered by laymen forced 

into a discussion at the bench. “Even if Juror [432] could be deemed a close 

call, the trial court is afforded great deference in evaluating a juror's ability to 

be fair and impartial[.]” Hubers, 617 S.W.3d at 766.

We find the situation here similar to that in Sturgeon. There, the defense 

was intended to be Extreme Emotional Disturbance (“EED”) and prospective 

jurors were questioned on the concept. 521 S.W.3d at 195. Juror 500 stated 

during voir dire that he “rejected the notion of temporary insanity because he 

believed a person was either sane or not sane[.]” Id. However, when defense 

counsel questioned him, Juror 500 indicated that he could accept the legal 
9

concept and apply it if so instructed. Id. Juror 500 nonetheless continued to 

vacillate on his ability to apply the EED concept. Id. The prosecutor requested 

a second round of questioning to rehabilitate the juror, and the trial court

followed suit by asking additional questions to clarify Juror 500’s stance. Id. 

On appeal, this Court found,

Although significant portions of the voir dire record reflecting Juror 

500's comments are hampered by inaudibility, and we have no 

specific findings of the trial court pertaining to Juror 500's 

responses, and despite his apparent vacillations, upon a review of 

his audible voir dire responses taken in their entirety, we find 

nothing in the record to establish a reasonable ground to doubt his 

qualifications, and we are afforded no reason to doubt that the trial 

court applied the appropriate standard.

Id. at 196. Accordingly, the Court affirmed the trial court’s decision not to

excuse Juror 500. Id.

Here, Juror 432’s second interaction with the court was similar in 

character. Juror 432 admitted he would have difficulty not letting his feelings 

on drugs impact his judgment, but he was not certain what impact those 

feelings would have. After further questioning, Juror 432’s answers became 

clearer and indicated he could conform his views to the requirements of the 

law, and render a fair and impartial verdict. We further observe Juror 432’s 

responses suggest his equivocation could also have been the result of his lack 

of familiarity with the criminal justice process and not an inability to fairly 

apply the law. See Hubers, 617 S.W.3d at 767 (noting juror’s equivocation 

could be the result of inexperience with the legal system where juror mentioned 

he had “never been in this situation before” with regard to jury duty).
10

While “in the event of uncertainty as to ‘whether a prospective juror 

should be stricken for cause, the prospective juror should be stricken,’” 

Simpson v. Commonwealth, 653 S.W.3d 855, 865 (Ky. 2022) (quoting Ordway, 

391 S.W.3d at 780), we remain cognizant of the responsibility the trial court 

bears in making decisions during voir dire particularly because the distinction 

between an impartial and partial juror “will often be anything but clear and will 

hinge to a large extent on the trial court's estimate of the potential juror's 

demeanor[.]” Brown v. Commonwealth, 313 S.W.3d 577, 599 (Ky. 2010). 

Accordingly, where Juror 432’s demeanor was not “so substantially at odds 

that it is obvious the judge has abused his discretion in deciding the juror is 

unbiased,” Robinson v. Commonwealth, 647 S.W.3d 136, 141 (Ky. 2022), we 

can find no abuse of discretion in denying Russell’s motion to strike.

B. Testimony on the street value of methamphetamine was proper.

Russell’s second argument is that Detective Atwood impermissibly 

testified as to the street value of the drugs in Russell’s possession. Because

Russell did not object to this testimony at trial, we review this claim pursuant 

to RCr 10.26.3 We will not reverse a conviction under the palpable error 

standard unless the “error is clear and plain, affects the substantial rights of a 

3 RCr 10.26 states, 

A palpable error which affects the substantial rights of a party 

may be considered by the court on motion for a new trial or by an 

appellate court on appeal, even though insufficiently raised or preserved 

for review, and appropriate relief may be granted upon a determination 

that manifest injustice has resulted from the error.
11

party, and is more likely than other ordinary errors to affect the outcome of the 

case.” McCleery v. Commonwealth, 410 S.W.3d 597, 605 (Ky. 2013).

The Commonwealth has commonly offered, and we have permitted,

testimony as to the street value of narcotics to show a defendant was 

trafficking, rather than simply possessing, narcotics. See, e.g., Burdell v. 

Commonwealth, 990 S.W.2d 628, 631-32 (Ky. 1999) (finding testimony that 

cocaine seized had a street value of $10,000 was admissible to show intent to 

distribute); P’Simer v. Commonwealth, No. 2019-SC-0344-MR, 2020 WL 

6390322, at *1-2 (Ky. Oct. 29, 2020) (evidence, which included the street value 

of narcotics, was sufficient to overcome directed verdict on count of trafficking 

in controlled substance); White v. Commonwealth, No. 2002-SC-0937-MR, 2004 

WL 314624, at *2 (Ky. Feb. 19, 2004) (Commonwealth offered testimony as to 

the street value of crack cocaine to show intent to distribute crack cocaine). 

Thus, Detective Atwood was permitted to opine as to whether, in his 

experience, the drug evidence was consistent with trafficking and not personal 

use. McGuire v. Commonwealth, 595 S.W.3d 90, 95 (Ky. 2019). No error 

occurred in its admission, let alone palpable error.

III. Conclusion

For the foregoing reasons, the Casey Circuit Court is affirmed in all 

respects.

All sitting. All concur. 
12

COUNSEL FOR APPELLANT:

Jennifer Leigh Wade

Department of Public Advocacy

COUNSEL FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Courtney J. Hightower

Assistant Attorney General