Tabor v. Commonwealth

SCHRODER, Judge,

concurring in part and dissenting in part.

I agree with the majority’s opinion in affirming the trial court in finding the defendant’s right to a speedy trial was not violated. However, I disagree with the decision to reverse and remand for failing to declare a mistrial when one potential juror stated during voir dire that she might have recognized the defendant from a visit to Western Kentucky Correctional Complex.

The case of Waggoner v. Commonwealth, 255 Ky. 1, 72 S.W.2d 723 (1934) is similar to appellant’s claim herein. In Waggoner, supra, the petitioner claimed that the jury panel had been prejudiced by the statement of one of the jurors “... that he had known Waggoner for several years and a little incident had happened in his store that caused him to hold prejudice against Waggoner.” Id., 72 S.W.2d at 724 and 725. The court inquired of the jury panel as to whether the statement would influence them in any way in rendering their verdict. With a negative response, the court denied the motion to discharge the jury. In the case sub judice, in retrospect, it may have been better to make further inquiries to the jury or at least give them an admonition. After the judge denied a mistrial, appellant’s counsel didn’t request the admonition. At this point I would see the error, if any, as harmless, and affirm the trial court’s denial of a mistrial.