Jackson v. Commonwealth , 392 S.W.3d 907 ( 2013 )

Opinion of the Court by

Justice SCOTT.

A Clay Circuit Court jury found Appellant, Clayton Jackson, guilty of three counts of murder and one count of first-degree arson. For these crimes, he was sentenced to life imprisonment without the possibility of parole.

He now appeals as a matter of right, Ky. Const. § 110(2)(b), alleging that the trial court erroneously: (1) entered non-unanimous verdicts or, in the alternative, failed to grant his motion for a directed verdict; (2) denied his motion to designate a particular juror as an alternate; (3) permitted prosecutorial misconduct and misstate-raents during the Commonwealth’s closing arguments; (4) denied his motion to suppress his confession; (5) permitted the Commonwealth’s expert to testify under KRE 702; (6) failed to include a life option instruction and reasonable doubt definition in its jury instructions; and (7) failed to give a wanton murder instruction.

I. BACKGROUND

In the early morning hours of February 6, 2004, a bus driver noticed smoke coming from Chris and Amanda Sturgill’s trailer. The fire department extinguished the fire and found five bodies inside. Chris and Amanda had been shot with arrows and Amanda’s body had been used to ignite the fire. Their three children died from smoke inhalation. A short distance from the Sturgill home, Chris Sturgill’s truck was found in an abandoned mine with the interior burned.

Appellant’s mother, who was at the scene that morning, asked authorities if they found a sixth body. Appellant’s girlfriend, Shirley Mae Barrett had informed her that Appellant was at the Sturgill trailer the previous evening and that Barrett had been unable to get in touch with him.

Barrett, along with Billy Collett, Appellant’s friend, reached Appellant through a three-way telephone conversation later that morning. When Barrett asked Appellant why he had failed to contact her before bed — as was his custom — he told her that he had passed out from drinking. The three also discussed the murders in the Sturgill trailer. When Collett referred to Chris’s coal truck, Appellant told him that fingerprints would not be found inside the vehicle’s cabin. When Barrett informed the authorities of Appellant’s whereabouts on the night in question, they questioned him.

When questioned, Appellant stated he was with Collett that night working on Collett’s ATV. After drinking beer and smoking marijuana, Appellant told Collett he was going to visit Chris and left the Collett residence with several beers in his pocket. Appellant stated that before going to Chris’s residence, however, he went down to a creek bank by a bridge to urinate and drink beer. Appellant claimed that Chris arrived at his home later that night, took him to the liquor store, and then back home to Appellant’s trailer. Appellant stated that he passed out at his home an hour or so later.

Appellant permitted detectives to search his trailer and they found a bow and arrow, marijuana, and a sawed-off shotgun. As a result of the search, Appellant was indicted on federal charges and eventually incarcerated at the Federal Correctional Institution in Beckley, West Virginia for possession of an unregistered short-barreled shotgun.

While at Beckley, Appellant shared a cell with Kinsey McLeod. After spending some time with Appellant, McLeod informed investigators that he had some information regarding the Sturgill murders. McLeod hoped providing investigators with this information would lead to a reduction of his federal sentence. Although McLeod was unable to record Appellant admitting the crimes, he did obtain a letter from Appellant in which Appellant acknowledged being inside the trailer when it was set on fire. McLeod led Appellant to believe that he would send the letter to his lawyer; however, he forwarded it to investigators.

According to Appellant’s letter, he was visiting the Sturgills when two men showed up and began arguing with Chris Sturgill over a methamphetamine deal. During their disagreement, Appellant went to the bathroom, and when he returned, he found one of the men holding Chris’s bow. Frightened, Appellant ran out of the trailer and went home. Another informant, Troy Hanley, however, contradicted the contents of Appellant’s letter, stating that Appellant told him that “we set the place on fire” after the drug deal went sour.

Other evidence presented to the jury also linked Appellant to the crime. Appellant was experienced with shooting a compound bow and arrow, having done so with Chris on occasion. A neighbor of the Sturgills also testified that Chris had been attempting to teach Appellant to drive his coal truck. According to the neighbor, Appellant ground the gears of the truck when he drove it. That morning, she heard the gears grind as the truck was driven out of Chris’s driveway.

The jury found Appellant guilty of three counts of murder (for murdering the three children) and one count of first-degree arson. It could not reach a verdict on the murders of Chris and Amanda Sturgill or on the theft by unlawful taking charge. The trial court subsequently adopted the jury’s recommendation that Appellant serve a life sentence without the possibility of parole.

Further facts shall be developed as needed.

II. ANALYSIS

A. Directed Verdict

Appellant asserts the trial court erred in failing to grant his motion for a directed verdict. This court outlined the standard we use in evaluating a motion for a directed verdict in Commonwealth v. Benham:

[T]he trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.

816 S.W.2d 186, 187 (Ky.1991). For our purposes, we review the trial court’s ruling on Appellant’s motion as follows: “ ‘If under the evidence as a whole it would not be clearly unreasonable for a jury to find the defendant guilty, he is not entitled to a directed verdict of acquittal.’ ” Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983) (quoting Trowel v. Commonwealth, 550 S.W.2d 530, 533 (Ky.1977)).

Here, the trial court properly denied Appellant’s motion because it would not be clearly unreasonable for a jury to find Appellant guilty of the murders of the three children and First-Degree Arson under the evidence adduced. For instance, Appellant often ground the gears of Chris Sturgill’s truck and the morning of the fire, a neighbor heard the gears of the truck grind as someone drove it away. Further, when informed that morning about the murders and the missing truck, Appellant, unprovoked, stated that fingerprints would not be found in the truck’s cabin. This leads to the logical inference that Appellant knew the inside of the cabin had been burned in order to prevent fingerprints from being found.

Appellant’s credibility was also called into question by the conflicting accounts he gave to others concerning his whereabouts that night. He initially told authorities that he was with Chris Sturgill that evening, but that he did not see Sturgill again after Sturgill dropped him off at his (Appellant’s) trailer. In his letter, however, Appellant stated that he was in the Stur-gill trailer that night and ran away when he saw one of the men who was arguing with Sturgill aggressively brandishing a bow. However, in another account provided by Hanley, Appellant admitted that he was involved in setting the fire to the Sturgill trailer.

These conflicting stories damaged Appellant’s credibility and Hanley’s testimony provided direct evidence of his guilt. The children’s deaths resulted from injuries caused by the fire that Appellant told Han-ley he was responsible for starting. Given Hanley’s testimony — as well as the circumstantial evidence linking Appellant to the crime — it would not be clearly unreasonable for a jury to find Appellant guilty of murdering the Sturgill children and first-degree arson. As a result, the trial court did not err in denying Appellant’s motion. B. Juror Impartiality

Appellant also claims that the trial court committed reversible error when it failed to designate a juror as an alternate (effectively striking the juror for cause). Following the empanelling of the jury, E.K., a juror, approached the trial judge in the hallway during a break in the trial. Upon resumption of the trial, based on the conversation he had with E.K., the trial judge conducted a bench conference with the attorneys and E.K. present:

Judge: Morning [E.K.].

E.K.: How you doing?

Judge: When I ran into you in the back hallway, you said you knew somebody that we didn’t talk about before. Who was that you knew?

E.K.: Eric. That’s his — the lady that got killed. That’s her brother.

Judge: So you knew—

E.K.: But it’s been ten, twelve year ago since we ran around.

Judge: Okay. So you didn’t know he was in—

E.K.: No. I didn’t know. Well I ain’t seen him any since then.

Judge: Okay. Well would it make any difference to you in your — you said you’ve not seen him in a number of years. Would it make any difference in your ability to be fair and impartial to both sides?

E.K.: I doubt it. I just wanted to let you know I knew him because—

Judge: I appreciate your complete honesty and I trust you at your word, but I want you to think for just a second. You said “I doubt it.” I need you to be able to say, now this is going to bother me or this ain’t going to bother me. I need to know one way or the other if— just search your own heart and memory. I mean.

E.K.: It would be better to let somebody else serve it.

Judge: That can’t be done.

E.K.: Well then I’ll do it. I can — I can make the right decision.

Judge: You sure that it won’t bother you about — if you knew this guy ten years ago and you sit here and you say “well that guy’s not guilty.” Can you find him not guilty?

E.K.: If he is not guilty.

Judge: Okay so that won’t bother you to see Eric, whatever his name is, it won’t bother you if you have to run into him and you found the guy—

E.K.: I mean, I don’t see him, it don’t bother me.

Judge: It won’t bother you?

E.K.: I just wanted to let you know that I did know him.

Judge: I appreciate your honesty. You’re a good man. I appreciate you. Any questions?

Commonwealth: So, as I take it, you really don’t have a relationship with this guy?

E.K.: No.

Commonwealth: Oh, okay.

E.K.: This has been back teenage years. Commonwealth: Oh, okay.

E.K.: He use to live with us. Commonwealth: Oh, okay.

E.K: We used to run around, all that deal.

Judge: Any questions?

Defense: I’m having a little trouble hearing. Did you say he used to live with you?

E.K.: Well for, yeah with my mom and stuff, for probably a couple of months or so.

Defense: So he was your friend? And you ran around — you were close enough that he actually lived in your home for a couple of months?

E.K: Yeah, we used to run around together.

Defense: And when the Judge asked you and you said it would be better if somebody else served?

E.K: It’s just when I knew him, back then.

Defense: I’m not saying you’ve already made up your mind, I’m just saying would that cause you in any way to be against Clayton, because he is accused of killing—

E.K: No, that’s—

Defense: — your friend’s sister and her whole family?

E.K.: I guess it’s been ten, twelve years ago since I’ve seen him. I didn’t even know him, he knowed me.

Judge: So if the case turns out just like she said in her opening. If it turns out that that’s the proof and you say, whoa, he ain’t guilty. You can find him not guilty and not cause you any trouble? E.K: Yeah.

Judge: But if the proof is the other way and you think he’s guilty, you can find him guilty and there 11 be no problem with you that way?

Juror: Yeah.

Judge: Okay [E.K.]. Go back to the jury room sir. Thank you for your honesty.

The trial judge and lawyers then engaged in the following conversation:

Defense: I’m concerned, because he’s actually lived in the household with them. It’s more than a friendship, he lived with them.

Judge: I understand the concern. But for him to bring it up and say what he said—

Defense: That’s true.

Judge: I don’t, I don’t think that he has a problem. He just said he thought it should be known.

Defense: Right.

Judge: He didn’t say, he said it wouldn’t be a problem. I said “well let me get the lawyers.”

Defense: Judge, just for the record, I reserve the right to bring that up again when we’re getting ready to pick alternates.

Judge: That’d be fine.

Defense: Thank you, Judge.

Judge: Thank you.

When alternates were chosen, however, the trial court denied Appellant’s motion to have E.K. designated as an alternate.¹ Thus, Appellant now argues that the trial court committed reversible error when it failed to effectively remove Juror E.K. from the panel by designating him as an alternate.

The trial court’s denial of Appellant’s motion is reviewed for abuse of discretion. Lester v. Commonwealth, 132 S.W.3d 857, 863 (Ky.2004) (“A trial court’s decision whether to remove a juror from a panel that has already been seated is reviewed for abuse of discretion.”) (internal citations omitted). Thus, we ask “whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.2000).

The Sixth Amendment to the United States Constitution and Section 11 of the Kentucky Constitution guarantee a criminal defendant the right to trial by impartial jury.² Consequently, RCr 9.36 provides that “[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.” Challenges to a potential juror’s impartiality “must be made before the jury is sworn.” RCr 9.36(3). However, a juror may be challenged after being accepted if “the court for good cause permits it.” Id. Here, E.K. informed the trial court about his concerns after he had already been seated as a juror; and the trial court brought the attorneys to the bench to discuss E.K.’s presence on the jury before ultimately deciding, over Appellant’s counsels’ reservations, to keep E.K. oh the jury. Having made this decision, however, the court also acknowledged Appellant’s right to renew the challenge during the selection of alternate jurors.

In making its RCr 9.36 determination, the court “must weigh the probability of bias or prejudice based on the entirety of the juror’s responses and demeanor.” McDaniel v. Commonwealth, 341 S.W.3d 89, 92 (Ky.2011) (citing Shane v. Commonwealth, 243 S.W.3d 336, 338 (Ky.2007)). When doing so, it must also “judge the credibility of the juror’s answers.” Shane, 243 S.W.3d at 338. And, “notwithstanding a prospective juror’s responses ..., whatever his or her protestations of lack of bias, the juror’s close relationship, ‘be it familial, financial or situational, with any of the parties, counsel, victims or witnesses,’ is sufficient to require the court ‘to sustain a challenge for cause and excuse the juror.’ ” Brown v. Commonwealth, 313 S.W.3d 577, 596 (Ky. 2010) (quoting Marsch v. Commonwealth, 743 S.W.2d 830, 833 (Ky.1988)). Moreover, as we have stated many times in the past several years, after review, “[a]ny doubts about the ability of a juror to be fair and impartial should be construed in favor of a defendant.” Paulley v. Commonwealth, 323 S.W.3d 715, 721 (Ky.2010) (internal citations omitted).

Here, we cannot say that the trial judge appropriately weighed E.K’s responses. When E.K. first addressed the trial court, he was unable to state unequivocally that he could be fair and impartial. See McDaniel, 341 S.W.3d at 94 (“[A] trial court abuses its discretion when it seats a juror who is truly equivocal with regard to his or her ability to render an impartial judgment.”)- When asked by the trial court whether his prior relationship with one of the victims’ brother would affect his ability to come to an unbiased verdict, E.K. responded: “I doubt it.” When told by the trial judge that his response was not sufficient, E.K. warned that “it would be better to let somebody else serve it.”

The trial court, in response to E.K’s wish not to serve, told him “that can’t be done.” Only after this exchange did E.K. unequivocally state that he could come to an impartial verdict. Thus, the trial court failed to properly determine whether E.K. was, in fact, impartial, as E.K’s responses to the trial court and counsels’ questions were tainted by the trial court’s implicit assertion (and corresponding pressure) that he was required to serve.³ Moreover, E.K’s close relationship with a victim’s brother makes his initial desire not to serve even more troublesome. Having weighed the questions judiciously, we conclude that the trial court abused its discretion by ultimately failing to remove Juror E.K. from the panel.

Furthermore, this error cannot be deemed harmless. Shane, 248 S.W.Bd at 341 (“Harmless error analysis is simply not appropriate where a substantial right is involved.”). Thus, the trial court committed reversible error by failing to remove E.K. from the jury.⁴

Appellant’s remaining allegations of error are either trial-specific or not properly preserved for our review.⁵ Having already found cause to reverse, we will not address them.

III. CONCLUSION

For the foregoing reasons, we reverse Appellant’s convictions for murder and first-degree arson, vacate his sentence, and remand this matter to the Clay Circuit Court for a new trial consistent with this opinion.

MINTON, C.J., ABRAMSON, CUNNINGHAM, NOBLE, and VENTERS, JJ., sitting. MINTON, C.J., ABRAMSON, NOBLE, and VENTERS, JJ., concur. ABRAMSON, J., also concurs by separate opinion in which MINTON, C.J., NOBLE, and VENTERS, JJ., join. CUNNINGHAM, JJ., dissents by separate opinion.

1 . The Commonwealth argues that Appellant failed to preserve this issue for review by merely requesting that the juror be designated as an alternate. However, our case law contemplates the removal of jurors for cause by designating them as alternates. See Lester v. Commonwealth, 132 S.W.3d 857, 863 (Ky. 2004) ("[T]he law is clear that a trial court may remove a juror for cause as an alternate juror.Hubbard v. Commonwealth, 932 S.W.2d 381, 383 (Ky.App.1996) (recognizing that a juror may be dismissed for cause by designating him or her as an alternate). As a result, we find Appellant’s motion to designate E.K. as an alternate juror, after initially indicating his concern during the bench conference, sufficiently preserved this issue for review and we treat this objection the same as one to remove a juror for cause.

2 . This guarantee applies to the states through the Fourteenth Amendment’s Due Process Clause. Duncan v. Louisiana, 391 U.S. 145, 157-58, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).

3 . We acknowledge that a juror may be rehabilitated by subsequent questions. Shane, 243 S.W.3d at 338. However, "[tjhere is no 'magic question' that can rehabilitate a juror as impartiality is not a technical question but a state of mind.” Id. Here, we cannot say that E.K. was properly rehabilitated because the trial court tainted his responses to its questions by essentially telling him that he was required to serve.

4 . Appellant made no allegations that the juror’s service on the panel had, in fact, tainted other jurors, so we need not explore that issue.

5 .Specifically, we note that Appellant failed to properly preserve his current allegation that the trial court erred by failing to suppress his confession. As this issue was not properly preserved for our review, we would be limited to reviewing it under the palpable error standard. RCr 10.26. Since Appellant does not request palpable error review of this issue and because we do not believe it would be helpful upon retrial for us to do so, we decline to address it.