Sa'myra N. Guerin v. Commonwealth of Kentucky ( 2022 )

RENDERED: OCTOBER 7, 2022; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0952-MR
SA’MYRA N. GUERIN APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
v. HONORABLE TIM KALTENBACH, JUDGE
ACTION NO. 20-CR-00217
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; JONES AND L. THOMPSON,
JUDGES.
CLAYTON, CHIEF JUDGE: Sa’Myra Guerin (“Guerin”) appeals the McCracken
Circuit Court’s judgment convicting her of second-degree assault and sentencing
her to five (5) years’ imprisonment. Guerin alleges that her trial counsel was
unable to provide effective representation due to the size of his caseload; the
COVID-19 mask mandates infringed upon her constitutional rights; the jury’s
racial makeup violated Guerin’s right to a fair trial; and certain jurors were
inattentive during her trial. Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2020, Brantarius Milliken (“Milliken”) was admitted to the
hospital with numerous stab wounds to his head and upper body, including a
partially collapsed lung. Milliken and several other witnesses told Detective
Chelsee Breakfield of the Paducah Police Department that Guerin had stabbed
Milliken with a pair of scissors and fled the scene.
Guerin later contacted the Paducah Police Department and agreed to
come in for an interview. In the interview, Guerin told Detective Breakfield she
had “blacked out” during the altercation, and Milliken had started the fight.
Thereafter, Guerin was arrested and charged with first-degree assault. Guerin was
later indicted for second-degree assault by means of a deadly weapon. She
ultimately pled not guilty to the charge.
A McCracken County jury tried Guerin in May 2021 and found her
guilty of second-degree assault. Additionally, the jury recommended the minimum
penalty of five (5) years’ incarceration. The McCracken Circuit Court sentenced
Guerin consistent with the jury’s recommendation. This notice of appeal followed.
We will discuss more facts as they become relevant to this Opinion.
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ANALYSIS
Guerin claims the following on appeal: (1) her trial counsel’s heavy
caseload was prejudicial to her trial, (2) the COVID-19 mask mandate infringed on
her right to a fair trial, (3) the jury panel did not represent the community in which
Guerin was tried, and (4) the jurors were “inattentive” to the proceedings at trial.
I. Ineffective Assistance of Counsel
On this direct appeal, Guerin contends that her trial counsel was not
sufficiently prepared during her trial due to the size of his caseload and that Guerin
was prejudiced thereby. Although Guerin frames her argument as being
constitutional in nature, her claims are essentially that she received ineffective
assistance of counsel at the trial court level. However, Guerin’s attempt to raise a
claim of ineffective assistance of counsel in this direct appeal is procedurally
improper. “As a general rule, a claim of ineffective assistance of counsel will not
be reviewed on direct appeal from the trial court’s judgment, because there is
usually no record or trial court ruling on which such a claim can be properly
considered.” Humphrey v. Commonwealth, 962 S.W.2d 870, 872 (Ky. 1998).
In this case, the trial court held no hearing and made no ruling
concerning counsel’s actual performance at trial. See id. As the Kentucky
Supreme Court stated, “[t]he issue of insufficient assistance of counsel must be
raised at the trial level by means of a post[-]trial motion.” Hopewell v.
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Commonwealth, 641 S.W.2d 744, 748 (Ky. 1982) (citation omitted). Guerin did
not do so in this case.
Thus, a collateral proceeding in the trial court is the appropriate
course of action rather than a direct appeal. See Humphrey, 962 S.W.2d at 872. In
such a proceeding, the trial court and parties create a proper record concerning
whether counsel’s performance was deficient and whether such performance was
prejudicial to Guerin. See id. (“[C]laims of ineffective assistance of counsel are
best suited to collateral attack proceedings, after the direct appeal is over, and in
the trial court where a proper record can be made.”). We therefore decline to
review such claims at this time.
II. COVID-19 Mask Mandate
Guerin next argues that the mask mandate imposed by the Kentucky
Supreme Court on all courtrooms during the COVID-19 pandemic
unconstitutionally hindered jury selection, resulting in an unfair trial. Additionally,
Guerin argues that her counsel’s required mask-wearing while questioning
witnesses violated Guerin’s right to confront witnesses under the United States
Constitution’s Sixth Amendment and Section 11 of the Kentucky Constitution.
Pursuant to Kentucky Supreme Court Amended Order 2021-06,
effective at the time of Guerin’s trial, every person was required to wear “a
protective facial covering over their mouth and nose while in the courtroom.”
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However, the mandate specified that a judge could allow a party, attorney, or
witness to temporarily remove his or her facial covering “if it [wa]s necessary to
create a clear record[.]”
While Kentucky courts have not opined regarding the specific issues
Guerin discusses, other jurisdictions have done so. For example, in March 2021,
the United States District Court for the Southern District of New York held that a
courtroom’s mask mandate did not hinder jury selection, noting that “[b]eing able
to see jurors’ noses and mouths is not essential for assessing credibility because
demeanor consists of more than those two body parts since it includes the language
of the entire body.” United States v. Tagliaferro, 531 F. Supp. 3d 844, 851
(S.D.N.Y. 2021) (internal quotation marks and citation omitted).
Additionally, later that year, the United States District Court for the
Eastern District of Michigan, Southern Division, upheld their state’s mask
mandate. The Court stated that, “[a]ll courts that have considered this question so
far have universally reached the conclusion that a defendant can still assess a
juror’s credibility and demeanor during both voir dire and trial while the juror is
wearing a face mask.” United States v. Schwartz, No. 19-20451, 2021 WL
5283948, at *2 (E.D. Mich. Nov. 12, 2021) (citations omitted).1 Moreover,
1
This unpublished opinion is cited pursuant to Kentucky Rule of Civil Procedure 76.28(4)(c) as
illustrative of the issue before us and not as binding authority.
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nothing in the record indicates that Guerin was not given an opportunity to submit
proposed voir dire questions for the trial court to ask prospective jurors. Based on
the foregoing, we hold that the jury’s requirement to wear masks during jury
selection and Guerin’s trial did not unconstitutionally infringe upon her
constitutional rights.
Guerin also claims that the mask mandate infringed upon her right to a
fair trial because her counsel’s masking denied Guerin her constitutional right
under the Confrontation Clause to confront witnesses face-to-face. As discussed
by the Kentucky Supreme Court:
The right to confront one’s accusers in a criminal
trial is a right guaranteed by the 6th Amendment to the
United States Constitution and also by Section 11 of the
Kentucky Constitution. The United States Constitution
grants the accused the right “to be confronted with the
witnesses against him.” The Kentucky Constitution
grants the accused the right “to meet the witnesses face to
face.” The difference in language is not significant and
both amendments are simply designed to require that a
defendant in a criminal case is entitled to a confrontation
with his accusers.
See v. Commonwealth, 746 S.W.2d 401, 402 (Ky. 1988). Thus, “[t]he central
concern of the Confrontation Clause is to ensure the reliability of the evidence
against a criminal defendant by subjecting it to rigorous testing in the context of an
adversary proceeding before the trier of fact.” Maryland v. Craig, 497 U.S. 836,
845, 110 S. Ct. 3157, 3163, 111 L. Ed. 2d 666 (1990). Further, as stated by the
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Kentucky Supreme Court, “[t]he Sixth Amendment prescribes that the only method
for testing [a witness’s] reliability is through cross-examination.” Rankins v.
Commonwealth, 237 S.W.3d 128, 132 (Ky. 2007) (citations omitted).
In this case, each witness testified under oath, the witnesses were
unmasked during their testimony at trial, and their statements were subject to
Guerin’s cross-examination. Thus, Guerin was afforded the full protection of the
Confrontation Clause. Accordingly, we affirm as to this issue.
III. Jury Composition
Guerin next argues that the jury panel selected for her trial did not
reflect a fair cross-section of the community because of its lack of African
American jurors. As Guerin did not preserve this error at the trial court level, we
will proceed under the “palpable error” standard of review. See Kentucky Rule of
Criminal Procedure (“RCr”) 10.26 (“[a] palpable error which affects the substantial
rights of a party may be considered 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.”).
The United States Supreme Court has held that “[d]efendants are not
entitled to a jury of any particular composition[.]” Taylor v. Louisiana, 419 U.S.
522, 538, 95 S. Ct. 692, 702, 42 L. Ed. 2d 690 (1975) (citations omitted). Instead,
“[t]he Sixth Amendment right to a jury trial includes the right to a petit jury
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selected from a representative cross-section of the community.” Miller v.
Commonwealth, 394 S.W.3d 402, 409 (Ky. 2011) (citation omitted) (emphasis
added).
In Duren v. Missouri, the United States Supreme Court detailed three
factors that a defendant must prove to establish a prima facie violation of the fair
cross-section condition of the Sixth Amendment:
(1) that the group alleged to be excluded is a “distinctive”
group in the community;
(2) that the representation of this group in venires from
which juries are selected is not fair and reasonable in
relation to the number of such persons in the community;
and
(3) that this underrepresentation is due to systematic
exclusion of the group in the jury-selection process.
439 U.S. 357, 364, 99 S. Ct. 664, 668, 58 L. Ed. 2d 579 (1979).
The Kentucky Supreme Court in Mash v. Commonwealth, 376 S.W.3d
548, 551 (Ky. 2012), discussed the preceding factors in circumstances similar to
those in this appeal. In Mash, the defendant claimed that the jury panel did not
reflect a fair cross-section of the community, as only 1 out of 42 prospective jurors
was African American. Id. While the Mash Court found that the defendant had
met the first Duren requirement, it found that the defendant had not proven the
second or third Duren requirements. Id. at 552.
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First, the defendant had “not provide[d] any information to the trial
court about the number of African Americans in McCracken County or
establish[ed] that there had been systematic exclusion of the group in the jury
selection process.” Id. (citation omitted). While the defendant attempted to prove
the second and third Duren elements by supplying census data to reflect the
African American population in McCracken County, the Court determined that
census information was insufficient to prove either the second or third Duren
factors. Id. Rather, “[a] defendant may demonstrate systematic exclusion by
providing statistical information showing that a particular group was
underrepresented in a county’s jury panels over a period of time.” Id. (emphasis in
original) (citation omitted).
Ultimately, the Mash Court rejected the defendant’s allegations
regarding the jury panel, stating that “[t]he bare ‘one out of 42’ statistic, even when
considered in conjunction with the census data that was not presented to the trial
court, [was] simply not enough to demonstrate unreasonable underrepresentation
or systematic exclusion.” Id. at 553.
Similarly, in Commonwealth v. Doss, the Kentucky Supreme Court
reiterated that “[t]he right to an impartial jury . . . does not afford a litigant the right
to a jury that includes one or more members of his or her ethnic or racial
background, religious creed, gender, profession, or other personal characteristic by
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which one is identified.” 510 S.W.3d 830, 835 (Ky. 2016). Because “[t]he
selection of prospective jurors [wa]s . . . accomplished by an indifferent and color-
blind computer that produce[d] a randomized list of prospective jurors[,]” id. at
836, the Kentucky Supreme Court determined that a trial judge could not dismiss a
randomly selected jury panel when the defendant did not show that the panel was
drawn from a jury pool that did not reflect a fair cross-section of the community.
Id. at 837.
Here, Guerin has similarly not proven a prima facie violation of the
fair cross-section requirement of the Sixth Amendment. Indeed, in contrast to
Mash, Guerin failed to establish that she even knew the specific demographics of
the jury pool in her trial thus failing to verify that the jury pool in her case lacked
adequate representation of African Americans. Instead, Guerin acknowledges that
two African Americans were present in the jury pool and that it was “difficult to
ascertain the exact demographics of those that remained because the juror
qualification forms are race[-]neutral and the videos do not show the potential
jurors unless they actually approach[ed] the bench.”
Moreover, Guerin’s claim lacks adequate evidence to support her
claim that any underrepresentation resulted from unreasonable underrepresentation
or systematic exclusion. Under Mash, she failed to meet the second and third
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prongs of the Duren factors, as she only provided census data. 376 S.W.3d at 552.
Thus, we find no error.
IV. Alleged Inattentiveness of Jury Members
Guerin last argues that her Sixth Amendment right to a fair trial was
infringed upon because she and her mother saw two jurors “nodding off or not
paying attention[.]” Because Guerin did not raise this claim at trial, we will again
review Guerin’s claim under the palpable error standard.
A panel of this Court has stated that “[a] juror’s inattentiveness is a
form of juror misconduct, which may prejudice the defendant and require the
granting of a new trial.” Goff v. Commonwealth, 618 S.W.3d 503, 509 (Ky. App.
2020) (internal quotation marks and citations omitted). However, “[a]s a threshold
matter in cases involving a juror alleged to have been sleeping, an aggrieved party
must present some evidence that the juror was actually asleep or that some
prejudice resulted from that fact.” Id. at 510 (emphasis in original) (internal
quotation marks and citations omitted).
Here, Guerin acknowledges that “there is virtually no video footage of
the jurors.” Thus, she offers nothing in the way of “evidence that the juror was
actually asleep[.]” Goff, 618 S.W.3d at 510 (emphasis added). Additionally,
Guerin does not assert any prejudice that may have given rise from the juror’s
inattentiveness, but rather states that “if substantiated, it would definitely prejudice
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the defendant’s right to a fair trial in this matter and would warrant reversal of the
conviction.” Therefore, Guerin has failed to demonstrate a prejudicial error
resulting in manifest injustice.
CONCLUSION
For the foregoing reasons, we affirm the McCracken Circuit Court’s
judgment and sentence.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
S. Scott Marcum Daniel Cameron
Paducah, Kentucky Attorney General of Kentucky
Christina L. Romano
Assistant Attorney General
Frankfort, Kentucky
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