Katie L. Benward, Assistant Public Advocate, Counsel for Appellant.
Jack Conway, Attorney General of Kentucky, Gregory C. Fuchs, Assistant Attorney General, Counsel for Appellee.
A Hopkins County Circuit Jury found Appellant, Albert Springfield, guilty of trafficking in a controlled substance in the first degree and of being a persistent felony offender (PFO) in the first degree. He was sentenced to the maximum of five years' imprisonment, which was enhanced to twenty years' imprisonment due to his
status as a PFO. He now appeals as a matter of right, Ky. Const. § 110(2)(b), alleging that the trial court erred by (1) allowing the jury to re-watch videotapes while in the jury deliberation room, (2) failing to instruct the jury on the offense of criminal facilitation to trafficking in a controlled substance in the first degree, (3) excusing a potential juror for cause based on his religious views, and (4) denying Appellant's request for an instruction of second-degree PFO. For the following reasons, we affirm.
On December 24, 2010, Appellant and some friends were at his apartment when an acquaintance, Tina Eisenhower, stopped by to purchase some crack cocaine. However, Appellant did not have any crack at his apartment, so he left to go get some as, according to him, a " favor." Unbeknownst to Appellant, Eisenhower had started her own " personal war against crack cocaine."
Eisenhower had an arrangement with Deputy Sheriff Shawn Bean of the Hopkins County Sheriff's Department to purchase $30 worth of crack from Appellant. Bean provided Eisenhower with a spy camera, microphone, and $30 for the purpose of catching Appellant in the act. After making the purchase from Appellant, Eisenhower met with Bean to give him the crack and recording device. For her efforts, Eisenhower received $100 in cash as payment.
Eight months later, Appellant was indicted by a Hopkins County Grand Jury for first-degree trafficking in a controlled substance, a Class D felony, and for being a first-degree PFO. The case proceeded to a jury trial, and the jury returned a verdict finding Appellant guilty of trafficking cocaine. After the Hopkins Circuit Court Clerk testified during the penalty phase and introduced evidence to establish Appellant's prior convictions, the jury also found him guilty of being a first-degree PFO and recommended that he be sentenced to the maximum, twenty years' imprisonment. The trial court adopted the jury's recommendation.
A. Excused Juror for Religious Views
Appellant first argues that the trial court erred to his substantial prejudice when it denied him his right to a randomly selected jury. Specifically, Appellant alleges that that the trial court erroneously excused a potential juror based upon his religious views. " Long-standing Kentucky law has held that a trial court's decision on whether to strike a juror for cause must be reviewed for abuse of discretion." Shane v. Commonwealth, 243 S.W.3d 336, 341 (Ky.2007) ( citing Adkins v. Commonwealth, 96 S.W.3d 779 (Ky.2003)); Pendleton v. Commonwealth, 83 S.W.3d 522 (Ky.2002).
In voir dire, the Commonwealth asked if anyone on the jury panel had personal or religious beliefs that would prevent them from sitting in judgment of another person. One juror asked to approach the bench, where he explained that " I don't feel like I should judge no one. Like, I don't feel like it's my right, it's my place." The trial judge then asked him what this belief was based upon and he stated, " Joshua, the Messiah." He agreed with the judge that he had religious beliefs that may prohibit him from sitting in judgment.
However, after further questioning the juror did report that he " guesses" he could render a verdict after hearing all of the evidence. Both parties discussed the juror and the judge came to the conclusion that if either party wished to strike, then he would strike the juror. The Commonwealth moved to strike stating: " [H]e's just been kind of wishy-washy about whether he could actually do it or not. You know, if he's told to, he guesses he could. But once he got back in, then we have to have a unanimous verdict either way. And I think, you know, that there's a possibility that if he got picked up as one of the twelve, we might not have one either way."
Appellant argues that the potential juror was unjustifiably excused for cause simply because he was " not prosecution prone." Furthermore, Appellant alleges that the trial judge's error destroyed the required randomness of the jury selection process and therefore a new trial is required.
However, as was previously established, a trial court's decision as to whether or not to strike a juror for cause must be reviewed for abuse of discretion. Shane, 243 S.W.3d at 338. " ‘ Abuse of discretion in relation to the exercise of judicial power implies arbitrary action or capricious disposition under the circumstances, at least an unreasonable and unfair decision.’ ... The exercise of discretion must be legally sound." Allen v. Devine, 178 S.W.3d 517, 523 (Ky.App.2005) ( quoting Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky.1994)).
In the present case the potential juror stated that he could not stand in judgment of another human being, and " guesses" he could listen to the facts of the case and render a verdict. The judge even expressed concern as to whether the juror possessed the ability to listen to the evidence and render ...