Linda Roberts Horsman, Assistant Public Advocate, Counsel for Appellant.
Jack Conway, Attorney General of Kentucky, Bryan Darwin Morrow, Assistant Attorney General, Counsel for Appellee.
Appellant, Yasmany Oro-Jimenez, appeals as a matter of right, Ky. Const. § 110, from a judgment of the Jefferson Circuit Court, based upon jury verdicts convicting him of two counts of first-degree robbery, possession of a handgun by a convicted felon, resisting arrest, five counts of third-degree terroristic threatening, and of being a second-degree persistent felony offender (PFO).
For those offenses Appellant was sentenced to a total of twenty-five years' imprisonment. On appeal, Appellant raises the following arguments: (1) reversal is required because he suffered prejudice when the trial court's voir dire procedure was not consistent with the applicable statutes and rules; (2) the trial court improperly allowed Appellant's single prior felony conviction to be used for dual purposes: once as the underlying felony that established his conviction for possession of a handgun by a convicted felon and once to establish his status as a PFO for enhancement of the robbery sentence; and (3) reversal of the penalty phase is required
because the trial judge improperly refused to grant a mistrial after a juror had contact with a victim-witness. For the reasons set forth herein, we affirm.
I. FACTUAL AND PROCEDURAL HISTORY
Evidence presented at trial demonstrated that Appellant robbed two men at gunpoint at a Louisville apartment complex. Soon after the robbery, police apprehended Appellant with a gun in his possession and they ordered him to lie on the ground. Although he was initially compliant with police orders, Appellant soon became combative and four officers were required to restrain him. Thereafter, the stolen items were recovered from Appellant's vehicle. As he was being transported to the police station, Appellant directed derogatory remarks to the transport officer and, at the police station, he struggled and threatened to kill several police officers. After a jury trial, Appellant was convicted and sentenced as set forth above.
II. VIOLATION OF RULES FOR JURY SELECTION
Appellant first argues reversal is required because he suffered prejudice when the trial court employed a voir dire procedure that diverged from the applicable statutes and rules. At trial, the full panel of prospective jurors consisted of forty-six persons. Rather than drawing at random the number of jurors needed to fill the jury box and provide for peremptory strikes, and then conducting the voir dire examination of only those jurors, the trial court opted to begin by allowing a voir dire examination of all forty-six potential jurors. Consequently, eleven of the forty-six jurors were excused for cause, mostly by agreement between the defense counsel and the prosecutor. Of the remaining thirty-five, three were removed by random selection, so that thirty-two jurors remained. Since the trial court intended to seat a trial jury of fourteen jurors (twelve plus two extra as alternates), each side was allotted nine peremptory challenges pursuant to RCr 9.40. The Commonwealth exercised all nine of its peremptory strikes and Appellant used eight, four of which matched the Commonwealth's peremptory strikes, leaving nineteen jurors qualified to try the case. By random selection, the number was then reduced to fourteen jurors, including two undesignated alternates.
Appellant contends that the foregoing process did not comply with our rules for jury selection, and that he was prejudiced by it. Appellant claims that the trial court's unorthodox voir dire required him and his defense counsel to observe for possible challenge all forty-six individuals, rather than the thirty-two potential jurors seated for voir dire under the conventional process. Appellant contends that the need to be attentive to an extra fourteen potential jurors might have led to his failure to use all of his peremptory strikes which, in turn, might also have deprived him of the ability to challenge the trial court's failure to strike one additional juror for cause. However, the error was not preserved by appropriate and timely action in the trial court, and so we review it only for palpable error pursuant to RCr 10.26.
RCr 9.30 through RCr 9.40, along with Part Two of the Administrative Procedures of the Court of Justice, sets forth the jury selection procedures for criminal cases in Kentucky. Brown v. Commonwealth, 313 S.W.3d 577, 596 (Ky.2010). " Under these provisions the trial court is vested with broad discretion to oversee the entire process, from summoning the venire to choosing the petit jury which actually hears and decides the case." Id. Accordingly, we review the jury selection
procedures employed by the trial court for abuse of discretion; " that is, whether the ruling can be characterized as arbitrary, unreasonable, or contrary to sound legal principles." Id.
RCr 9.30(1)(a) articulates the rules governing the selection of jurors, providing, in pertinent part:
In a jury trial in circuit court the clerk, in open court, shall draw from the jury box sufficient names of the persons selected and summoned for jury service to compose a jury as required by law. If one or more of them is challenged, the clerk shall draw ...