JEFFREY D. MCGAHA APPELLANT
COMMONWEALTH OF KENTUCKY APPELLEE
MODIFIED: SEPTEMBER 26, 2013
ON APPEAL FROM ADAIR CIRCUIT COURT HONORABLE JAMES L. BOWLING, JR., JUDGE NO. 11-CR-00079
COUNSEL FOR APPELLANT: W. Currie Milliken Wesley Vernon Milliken
COUNSEL FOR APPELLEE: Jack Conway Attorney General Jeffrey Allan Cross Assistant Attorney General
Appellant, Jeffrey D. McGaha, appeals from a judgment of the Adair Circuit Court convicting him of murder and sentencing him to twenty years' imprisonment. Appellant makes these arguments in support of reversing his conviction: (1) one of the jurors failed to disclose during voir dire that she was a Facebook "friend" of the victim's wife; (2) the jury improperly considered penalty issues during the guilt phase deliberations; and (3) that on four separate occasions, the trial court improperly excluded evidence relevant to Appellant's belief that his use of force in self-defense was necessary. For the reasons stated below, we affirm the Judgment of the Adair Circuit Court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant and the victim, Mike Cowan, were neighbors in a rural part of Adair County. The evidence presented at trial by the Commonwealth indicated that the relationship between Appellant and Cowan was marred by a series of disputes. The most recent difficulty was over a light on Appellant's storage building that shone onto Cowan's property and annoyed him. Cowan retaliated by shining spotlights at Appellant's residence. On the evening before the fatal incident, Appellant complained to the police about the spotlights. When police officers arrived at the scene in response to that complaint, Cowan and his wife became belligerent. They were arrested and taken to jail.
The following afternoon, after his release from jail, Cowan visited a neighbor's residence on his ATV. As Cowan returned home, Appellant, driving in his car, saw him and steered directly into his ATV without braking. The impact knocked Cowan off the ATV. As a result of the blow from Appellant's vehicle, Cowan suffered severe blunt force trauma which alone would have been fatal. After the collision, however, while Cowan was lying on the ground, Appellant approached him and delivered a second fatal injury by shooting him in the head with a shotgun.
Appellant was indicted for murder. At trial, Appellant admitted that he killed Cowan, but claimed that he was acting in self-defense. In support of that claim, Appellant presented evidence of Cowan's threats, harassment, and intimidation directed toward Appellant and members of his household. Appellant also alleged that shortly before the fatal incident, Cowan had pointed a gun at Appellant and gestured, as if he was pretending to shoot at Appellant. Appellant saw Cowan place the gun on his ATV, and ride it over to the neighbor's residence. Appellant testified that he followed Cowan to speak with him, and that he took his shotgun for protection. Appellant said that when he encountered Cowan on his ATV, Cowan aimed his gun at Appellant. Fearing that he would be shot, Appellant drove his car into Cowan's ATV. After the collision, Appellant claims he got out of his car with his shotgun, and demanded that Cowan show his hands. According to Appellant, Cowan then said, "I'm still going to fucking kill you." Believing that Cowan was reaching for his gun, Appellant shot him in the head.
The jury, rejecting Appellant's self-defense claim, convicted him of murder and recommended a sentence of twenty years' imprisonment. The trial court entered final judgment consistent with the jury's verdict and sentencing recommendation. Appellant's post-judgment motions for judgment notwithstanding the verdict and for a new trial were denied. This appeal followed.
II. THE FAILURE OF A JUROR TO DISCLOSE SOCIAL MEDIA RELATIONSHIP WITH THE VICTIM'S WIFE
Appellant first contends that he is entitled to a new trial because one of the jurors who served on his trial, "Juror 234", failed to disclose during voir dire that she was a Facebook "friend" of the victim's wife, Charlene Cowan. Before the voir dire examination began, the trial court instructed the members of the jury panel who were not among the first panel of thirty-two jurors selected for examination to remain in the courtroom, and listen to the questions being asked of the prospective jurors so that they could later respond to those same questions in the event they were added to the panel. Juror 234 was not among the first set of thirty-two potential jurors seated for the voir dire examination at Appellant's trial. About four hours into the jury selection process and after a lunch break, Juror 234 was called to join the panel undergoing the voir dire examination. .
After being seated among the jury panel, Juror 234 was directly asked by the trial court if she was related to anyone involved in the case. She responded that she was not. The following discussion then occurred:
Trial Court: Do you know any of these folks?
Juror 234: I know some of the Cowan family, not close but I do know them.
Trial Court: How would you describe your ...