SHELBY LITTLE, JR. APPELLANT
COMMONWEALTH OF KENTUCKY, APPELLEE
Released for Publication March 20, 2014.
ON APPEAL FROM MEADE CIRCUIT COURT. HONORABLE BRUCE T. BUTLER, JUDGE. NO. 04-CR-00098.
COUNSEL FOR APPELLANT: Shannon Renee Dupree, Assistant Public Advocate.
COUNSEL FOR APPELLEE: Jack Conway, Attorney General of Kentucky, David Bryan Abner, Assistant Attorney General.
Minton, C.J.; Noble, and Venters, JJ., concur. Cunningham, J., dissents by separate opinion in which Keller and Scott, JJ., join.
AFFIRMING IN PART AND REVERSING IN PART
Shelby Little, Jr. appeals as a matter of right from a judgment of the Meade Circuit Court sentencing him to a 70-year prison term for two counts of first-degree assault, first-degree wanton endangerment, operating a motor vehicle under the influence of alcohol, driving without an operator's license, and being a persistent felony offender in the first degree. On appeal, Little first claims that the trial court violated his due process right to a fair trial by failing to remove two jurors for cause. Second, Little argues that his right to confrontation was violated by the introduction of a hospital laboratory report without the testimony of the author. Finally, Little asserts that the wanton endangerment conviction violated the constitutional prohibition on double jeopardy and his right to a unanimous verdict. After review, we affirm except as to Little's conviction for wanton endangerment, which we reverse as explained fully herein.
On the afternoon of August 9, 2004, Shelby Little's truck crossed over the center line of a roadway in Meade County and collided with a vehicle driven by Angela Sosh. Ms. Sosh and her passengers, her two-year-old son Nathan Hamill and sixteen-year-old Courtney Moon, all suffered injuries as a result of the accident. Little, who was also injured, was taken to the hospital where he was treated and where the Kentucky State Police (" KSP" ) executed a search warrant to draw Little's blood in order to perform a toxicology screening.
The test results indicated that Little had a blood alcohol level of .29%.
Little was indicted for three counts of first-degree assault, first-degree wanton endangerment, operating a motor vehicle under the influence (" DUI" ), driving with no insurance, driving without a license, and persistent felony offender in the first degree. His 2007 trial ended with a Meade County jury convicting Little of all charges. On appeal, this Court reversed Little's convictions and sentence on the basis of the trial court's failure to properly instruct the jury on second-degree assault as to Sosh and the erroneous introduction of evidence of Little's four prior DUI convictions.
Little's second trial began on July 25, 2011. The trial court directed a verdict of acquittal on the first-degree assault charge as to Courtney Moon, and also on the driving with no insurance charge. The jury found Little guilty on all remaining counts and recommended a total sentence of 105 years but the trial court imposed the maximum sentence of 70 years pursuant to Kentucky Revised Statute (" KRS" ) 532.110(1)(c).
I. The Trial Court's Refusal to Strike Two Jurors Was Not an Abuse of Discretion.
Little's first allegation of error is that the trial court abused its discretion when it failed to strike two jurors for cause, forcing him to remove those jurors by using peremptory challenges. A juror whom Little would have stricken sat on the jury. In Shane v. Commonwealth, this Court declared that a trial court's erroneous failure to excuse a juror for cause necessitating the use of a peremptory strike is reversible error. 243 S.W.3d 336 (Ky. 2007). We must thus determine if the trial court abused its discretion when it refused to remove the challenged jurors for cause. Adkins v. Commonwealth, 96 S.W.3d 779 (Ky. 2003); Pendleton v. Commonwealth, 83 S.W.3d 522 (Ky. 2002).
During voir dire, the Commonwealth asked the panel members if anyone in their immediate family had been a victim of drunk driving. Potential Juror Wright answered in the affirmative and disclosed that her husband, mother, and younger sister had been killed in two separate accidents caused by drunk drivers. When asked if she could serve on the jury knowing that the case involved a drunk-driving charge, Juror Wright replied that she could, explaining that the individuals who had killed members of her family " had served their time" and that Little's case was a " separate case." When pressed, she said, " He's not the person who did it to my family." Later she said, " it's two totally different persons." Juror Wright further asserted that she could remain fair and impartial, and that she could follow the court's instruction in fixing a penalty. Little moved to strike Juror Wright for cause, arguing that she could not possibly set aside her personal circumstances despite the fact that she claimed that she could be
impartial. The trial court denied the motion.
Later, Juror Thompson was called to the bench to discuss how his experience as a first-responder in adjacent Hardin County would affect his ability to hear the case, if selected. Juror Thompson admitted to having encountered many victims of drunk-driving accidents over the course of his career, and that he believed that drunk-driving laws could be stricter. When asked if his experiences or beliefs would affect his impartiality, Juror Thompson stated that he would have to hear the evidence before he could make a decision regarding Little's case. When asked if he could impose the minimum sentence, he first replied, " I don't know." He later said, " Like I said, I don't know all the particulars of this case. I would have to give them what the law says in this case." Juror Thompson stated that his personal beliefs would not influence his judgment. Little's counsel moved to strike Juror Thompson for cause, characterizing his answers as indicative of an attempt to secure his presence on the jury. The trial court denied the motion. As noted, Little exercised peremptory strikes against Jurors Wright and Thompson so neither actually served on his jury.
A potential juror must be excused on the basis that he or she is unqualified for service if there are reasonable grounds to believe that the juror could not render a fair and impartial verdict. Kentucky Rules of Criminal Procedure (" RCr" ) 9.36. In ruling on a motion to strike a juror for cause, a judge must make a determination of the juror's ability to serve based on the entirety of his responses. Shane, 243 S.W.3d at 338. This undertaking includes an assessment of both the content of all of the juror's responses, as well his demeanor and candor. Id.; Moss v. Commonwealth, 949 S.W.2d 579, 581, 44 6 Ky. L. Summary 22 (Ky. 1997). There are occasions when, despite the juror's answers, a juror's " familial, financial or situational" relationship with the parties will be sufficient to sustain a motion to strike for cause, where such relationships are likely to " subconsciously affect [the juror's] decision in the case." Marsch v. Commonwealth, 743 S.W.2d 830, 833-34 (Ky. 1987) ( citing Ward v. Commonwealth, 695 S.W.2d 404 (Ky. 1985)). However, this Court has consistently held that the mere fact that a juror or her family member has been the victim of a crime similar to the one charged against the defendant does not, in and of itself, justify that juror's excusal. Brown v. Commonwealth, 313 S.W.3d 577, 598 (Ky. 2010) (juror victim of burglary); Richardson v. Commonwealth, 161 S.W.3d 327, 330 (Ky. 2005) (juror victim of sexual abuse); Woodall v. Commonwealth, 63 S.W.3d 104, 118 (Ky. 2001) (juror sister of rape victim); Hodge v. Commonwealth, 17 S.W.3d 824 (Ky. 2000) (citing several earlier cases holding similarly). In those cases, additional evidence of bias is required, with " [o]bvious factors bearing on the likelihood of bias [being] the similarity between the crimes, the length of time since the prospective juror's experience, and the degree of trauma the prospective juror suffered." Brown, 313 S.W.3d at 598. Ultimately, " [i]t is the totality of all the circumstances, however, and the prospective juror's responses that must inform the trial court's ruling." Id.
In Brown v. Commonwealth, this Court held that the fact that a prospective juror was the victim of a burglary one year earlier did not automatically warrant the juror's removal from a burglary-murder prosecution. Id. The juror in Brown explained that a year had passed since the incident, and asserted that she could base her decision exclusively on the evidence presented. Id. In Dunn v. Commonwealth, we held that a trial court did not abuse its discretion when it declined to remove a juror whose daughter had been
sexually abused about eight years earlier. 360 S.W.3d 751 (Ky. 2012). Although the defendant in Dunn had been charged with sodomizing a teenage boy, the Court concluded that there was " no additional evidence of bias that would necessitate disqualification" of the challenged juror where he " candidly answered questions from the judge, the prosecutor, and defense counsel," professing to be impartial and unbiased. Id. at 771.
We are satisfied that Juror Wright's answers were sufficient to withstand a motion to strike for cause, as she explained that her personal tragedies would not affect her ability to listen to the evidence, follow the court's instructions, and render a fair and impartial verdict. But cf. Paulley v. Commonwealth, 323 S.W.3d 715 (Ky. 2010) (reversible error occurred when the trial court failed to remove a juror for cause after the juror, a mother of a crime victim, admitted that she was unsure if she could remain unbiased given her personal history). Moreover, Ms. Wright did not share any personal, financial, or situational relationships with the parties in the case that would subconsciously undermine her professed impartiality. But cf. Fugate v. Commonwealth, 993 S.W.2d 931, 938, 46 8 Ky. L. Summary 39 (Ky. 1999) (juror shared professional relationship with prosecutor); Ward v. Commonwealth, 695 S.W.2d at 404 (juror was uncle to Commonwealth's Attorney); Hayes v. Commonwealth, 458 S.W.2d 3 (Ky. 1970) (juror was brother to sheriff who would testify at trial).
Like the potential jurors in Brown and Dunn, Juror Wright was unequivocal in her ability to remain unbiased. Moreover, a significant amount of time (26 years and 16 years, respectively) had elapsed between the deaths of her family members and the time of Little's trial.See Richardson v. Commonwealth, 161 S.W.3d at 330 (no abuse of discretion when trial court allowed a juror to remain on the panel in sexual abuse case despite the fact that the juror had been sexually abused fourteen years earlier). Perhaps because she was not asked, she did not expound upon the exact details of the drunk driving accidents involving her family members, nor did she divulge the level of trauma she experienced. Juror Wright did, however, emphasize that Little was a " totally different person" and that his situation ...