Released for Publication June 4, 2015.
ON APPEAL FROM HARLAN CIRCUIT COURT. HONORABLE ROBERT COSTANZO, SPECIAL JUDGE. NO. 11-CR-00182.
COUNSEL FOR APPELLANT: Paul Gregory Croushore, Cincinnati, Ohio.
COUNSEL FOR APPELLEE: Jack Conway, Attorney General, James Hays Lawson, Assistant Attorney General, Jeanne Deborah Anderson, Assistant Attorney General, Office of the Attorney General, Office of Criminal Appeals, Frankfort, Kentucky.
The Appellant, Jeremy Caraway, was convicted of various sex offenses and sentenced to the maximum term of 20 years in prison. On appeal, he claims that his right to an impartial jury was violated when a probation and parole officer served on his jury, that his trial counsel provided ineffective assistance in failing to object to the prospective juror, that the trial court erred in refusing to hear additional character testimony at final sentencing, and that the trial court erred in failing to note his presentence custody credit on the final judgment of conviction and sentence. Finding no error requiring reversal, this Court affirms.
In May 2011, Caraway was the pastor at Loyall Church of God in Harlan County, Kentucky. Sherry was a member of the church and was thirteen years old at the time. Members of Sherry's family reported sexual misconduct between her and Caraway after discovering inappropriate text messages on her cell phone.
On July 18, 2011, Caraway was indicted on two counts of rape in the second degree, KRS 510.050, two counts of sodomy in the second degree, KRS 510.080, two counts of sexual abuse in the first degree, KRS 510.110, two counts of unlawful transaction with a minor in the first degree, KRS 530.064, and one count of unlawful use of electronic means to induce a minor to engage in sexual activities, KRS 510.155. One of the sodomy counts, both unlawful transaction counts, and the unlawful use of electronic means count were later dismissed.
Following a series of pretrial motions and hearings, Caraway's jury trial commenced on April 30, 2013. Because of a judicial vacancy in the Harlan Circuit Court at that time, Special Senior Status Judge Robert McGinnis presided over the trial. Following a two-day trial, the jury returned a verdict finding Caraway guilty of one of the counts of second-degree rape, the remaining count of second-degree sodomy, and both counts of first-degree sexual abuse. The jury found Caraway not guilty of the other rape count. Following the penalty phase at which Caraway's wife was the only witness called to testify on his behalf, the jury recommended five-year prison sentences for each count to be
served consecutively for a total maximum sentence of 20 years in prison.
At the final sentencing hearing on August 1, 2013, Special Judge Robert Costanzo presided and declined to hear additional character evidence proffered by Caraway for the first time. Instead, he entered a final judgment of conviction and sentence consistent with the jury's recommendation.
Caraway now appeals as a matter of right. See Ky. Const. § 110(2)(b).
A. Caraway's acceptance of Juror 367 waived his right to appellate review of the trial court's failure to strike the juror for cause.
Caraway's first claim of error is that the trial court abused its discretion in allowing Juror 367, a probation and parole officer, to sit on the jury. He argues that this resulted in a structural error because it violated his constitutional right to an impartial jury under Sections Seven and Eleven of the Kentucky Constitution and the Sixth and Fourteenth Amendments to the United States Constitution. Because the record makes clear that Caraway ...