REGINALD L. GRIDER APPELLANT
COMMONWEALTH OF KENTUCKY APPELLEE
ON APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE SUSAN SCHULTZ GIBSON, JUDGE NOS. 08-CR-003131 AND ll-CR-003681
Daniel T. Goyette Executive Director/Chief Louisville Metro Public Defender, James David Niehaus Deputy Appellate Louisville Metro Public Defender
Jack Conway Attorney General, David Wayne Barr Assistant Attorney General
In December of 2011, Appellant, Reginald L. Grider, was indicted for the robbery and murder of Caesaro Gomez in Jefferson County, Kentucky. Appellant maintains that he, along with Crystal Gordon and Damon Phelps, went to Gomez's apartment with the intention of obtaining Gordon's personal property. He claims that when they arrived at Gomez's apartment, an altercation quickly ensued. Appellant claims that he raised his pistol towards Gomez and unintentionally fired one round. As a result, Gomez was shot and later died.
During the trial, however, both Gordon and Phelps testified that Appellant conjured up the idea of robbing Gomez at his apartment. Gordon testified that Appellant hid behind her while she knocked on Gomez's door. When Gomez answered, Appellant reached over Gordon's shoulder and shot Gomez. According to their testimony, no altercation occurred. Afterwards, Appellant took money from Gomez's pockets.
Appellant was sixteen years old when he committed the crimes and was tried as a youthful offender. A Jefferson Circuit Court jury found Appellant guilty of murder, first-degree robbery, and intimidating a participant in the legal process. Appellant was sentenced to life imprisonment. Appellant now appeals his conviction and sentence as a matter of right pursuant to Ky. Const. §H0(2)(b).
Appellant argues that the trial court erred in failing to strike Juror 624855. This particular juror was an Assistant Jefferson County Attorney who worked in the Real Estate and Tax Division. The juror stated that, while he occasionally prosecuted criminal cases in the past, he had not been involved in any criminal matters within the four years prior to Appellant's trial date.
Whether to strike a potential juror for cause is within the trial court's discretion. E.g., Commonwealth v. Lewis, 903 S.W.2d 524, 527 (Ky. 1995). We will not disturb the trial court's determination absent a clear abuse of discretion. Id. "Under RCr 9.36(1), a juror shall be excused for cause '[w]hen there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidencef.]"' Fugett v. Commonwealth, 250 S.W.3d 604, 612 (Ky. 2008). The court must consider the totality of the circumstances and "not  a response to any one question." Id. at 613.
Absent any evidence of actual bias, the sole fact that this juror is an Assistant County Attorney is not sufficient ground to sustain a motion to strike for cause. At the time of Appellant's trial, the juror practiced exclusively in civil cases and was unacquainted with the Commonwealth's prosecuting attorneys. In fact, Appellant's counsel conceded that there was nothing the juror stated which led him to believe the juror was partial to the Commonwealth's case. The trial judge correctly noted that "at no time did [the juror] indicate that his position would cause him to be biased one way or the other." Consequently, we do not believe the trial court abused its discretion in denying Appellant's motion to strike for cause.
Validity of RCr 9.40
Appellant urges this Court to overturn his conviction by finding that RCr 9.40, the rule prescribing the number of peremptory challenges in a criminal case, exceeds the authority granted to this Court in Section 116 of the Kentucky Constitution. Appellant also implores us to declare KRS 29A.290(2)(b), which grants this Court authority to promulgate RCr 9.40, unconstitutional. Specifically, Appellant believes KRS 29A.290(2)(b) violates the separation of powers doctrine. See Ky. Const. § 27, 28. Notably, Appellant does not argue that the trial court improperly allotted the correct number of peremptory challenges. For the reasons set forth below, Appellant's argument is unpreserved for our review.
KRS 418.075(1) states that "[i]n any proceeding which involves the validity of a statute, the Attorney General of the state shall, before judgment is entered, be served with a copy of the petition, and shall be entitled to be heardf.]" We have found the notification requirement of KRS 418.075(1) to be mandatory. Adventist Health Systems/Sunbelt Health Care Corp. v. Trude, 880 S.W.2d 539, 542 (Ky. 1994) (overruled on other grounds by Sisters of Charity Health Systems, Inc. v. Raikes, 984 S.W.2d 464 (Ky. 1998)). Raising a constitutional issue for the first time on appeal is insufficient. Benet v. Commonwealth, 253 S.W.3d 528, 532 (Ky. 2008) ("[W]e reject any contention that merely filing an appellate brief, which necessarily occurs post-judgment, ...