Karen Shuff Maurer, Krankfort, Counsel for Appellant.
Jack Conway, Attorney General of Kentucky, James Daryl Havey, Counsel for Appellee.
Lester Hurt appeals as a matter of right from a judgment of the Perry Circuit Court sentencing him to life in prison for wanton murder, three counts of wanton endangerment in the first degree, criminal mischief, and assault in the fourth degree. Hurt raises two errors on appeal. First, he claims that the trial court abused its discretion when it refused to excuse a juror for cause on the basis of a lack of impartiality. Second, Hurt claims the trial court erred when it denied his motion for directed verdict as to his wanton murder and wanton endangerment charges. Having reviewed the record, we affirm the judgment of the Perry Circuit Court.
On October 2, 2010, Lester Hurt joined his brothers and friends at an abandoned strip-mine for a night of drinking around a campfire. At some point in the evening, Julius " Ed" Williams and others, including Williams's son Keith and friend Jordan Estep, arrived at the site. In the early morning hours of October 3rd, a fight broke out between the two groups. In a hurried attempt to leave the campsite, the Jeep carrying Williams and his party struck Hurt's friend as the vehicle sped away. Hurt gave chase in his pick-up truck, quickly reaching Williams's vehicle on a dirt road. He repeatedly rammed the back of the Jeep, causing it to veer off the road and become stuck on a steep embankment. A skirmish ensued, with Hurt exiting his vehicle and attacking Estep through the open windows of the Jeep. Hurt then returned to the truck and continued to push the Jeep further down the embankment until it stalled. Williams, who exited the vehicle during the melee and had fallen down, was crushed to death by Hurt's truck. The attack continued with Hurt and his brother pulling Estep and Keith Williams from the Jeep and onto the ground, where they were beaten and kicked. Estep and Keith Williams eventually fled on foot and hid in the woods before retreating to a nearby cabin. Williams's body was found later that morning.
Kentucky State Police detectives interviewed several witnesses over the course of four days before arresting Hurt, who admitted that he may have struck Williams with his truck. Hurt was tried and convicted of wanton murder, three counts of wanton endangerment in the first degree, criminal mischief, and fourth degree assault. He received a sentence of life in prison for the wanton murder. The five-year sentences on each wanton endangerment charge, twelve-month sentence for assault and ninety-day sentence for criminal mischief were ordered to run concurrently. This appeal followed.
I. The Challenge to the Trial Court's Refusal To Remove a Juror For Cause is Unpreserved.
During voir dire, the Commonwealth inquired of the prospective jurors if
personal experiences with drugs and/or alcohol would impair their ability to render a fair verdict. In response, Juror 149 revealed some uncertainty in his ability to serve because members of his family had struggled with substance abuse in the past. After relating his experiences to the trial court, Juror 149 stated that he could listen to all of the evidence and independently render a verdict. The trial court denied Hurt's ensuing motion to strike for cause, finding that Juror 149, through some of his responses, was likely trying to avoid jury service, and that nothing in the totality of his responses indicated that he would be biased in favor of or against the defendant.
Hurt now argues that the trial court abused its discretion when it refused to excuse the juror for cause, forcing Hurt to use a peremptory strike on Juror 149 that he would have otherwise used on Juror 241, who ultimately sat on the jury. A trial court's erroneous failure to excuse a juror for cause necessitating the use of a peremptory strike is reversible error. Shane v. Commonwealth,243 S.W.3d 336 (Ky.2007). While prejudice is presumed in such cases, in Gabbard v. Commonwealth, 297 S.W.3d 844 (Ky.2009) we declared that the error is non-prejudicial when other jurors whom the party would have excused with peremptory strikes do not actually sit on the jury. In Gabbard, this Court concluded that in order to bring a claim under Shane, the complaining party must, in addition to exhausting all peremptory strikes, " identify on his strike sheet any additional jurors he would have struck." Gabbard, 297 S.W.3d at 854; see also Grubb v. ...