APPEAL FROM CAMPBELL CIRCUIT COURT HONORABLE FRED A. STINE,
V, JUDGE NO. 13-CR-00699
COUNSEL FOR APPELLANT: Robert Chung-Hua Yang Assistant Public
COUNSEL FOR APPELLEE: Andy Beshear Attorney General of
Kentucky Gregory C. Fuchs Assistant Attorney General
Anthony Ray Sturgeon, appeals from a judgment of the Campbell
Circuit Court convicting him for the murder of his brother,
Randal Sturgeon; and sentencing him to twenty-five years in
prison. He contends that the trial court erred by: (1)
failing to dismiss two jurors for cause; (2) failing to
instruct the jury on the lesser offense of reckless homicide;
and (3) admitting into evidence several hearsay statements of
the victim made shortly before his death. We affirm the
judgment of the Campbell Circuit Court.
FACTUAL AND PROCEDURAL BACKGROUND
was an ironworker in northern Kentucky who fell upon hard
times as construction jobs dwindled during the recent
economic recession. Eventually, he moved back into his
childhood home where his brother, Randal, lived.
Appellant's son, Jason, also moved into the house. The
residence was subject to a foreclosure proceeding so each of
the three occupants knew he must soon find another place to
1, 2013, Appellant shot and killed Randal who was reclining
on the couch in the living room of the residence they shared.
Immediately after the shooting, Appellant called 911. He told
the 911 operator that he and his brother had argued; that he
did not intend to shoot him; and that he fired the gun
next morning Appellant gave police investigators a more
complete explanation of the event. He said that he and Randal
argued over a number of things, including Randal's
failure to clean up the kitchen, his excessive consumption of
milk, and Appellant's belief that Randal had pocketed for
himself the money he collected from Appellant and Jason to
matter came to a head when Appellant learned that Randal was
moving out and taking with him the Wi-Fi router used at the
residence for internet service. Jason had just paid the
monthly internet service fee and without the router the
payment would be wasted. Appellant said that he paced about
his room pondering what to do as the pressure mounted within
him. After concluding that he was "fucked" and
would be the "weak one" if he did not do
"something, " Appellant decided to confront Randal
with a loaded gun. He told police that at one point he feared
Randal was "going to get" him and that he wanted to
hurt Randal,  but that his purpose for wielding the gun
was only to scare Randal.
explained when he approached Randal, he touched the trigger
of the gun and "it just went off." Appellant said
he had not previously handled the gun and was surprised when
it fired so easily. The bullet struck Randal in the chest; he
died almost immediately.
principal theory of defense was that he was not guilty of
murder because he had acted under the impelling force of
extreme emotional disturbance triggered by his anger that
Randal was taking the Wi-Fi router right after Jason had paid
the bill for internet service. The jury rejected this defense
and convicted Appellant of murder.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN FAILING TO
STRIKE JUROR 500 FOR CAUSE.
Application of RCr 9.36(1)
first contends that the trial court erred by failing to grant
his motions to strike for cause two prospective jurors,
identified as Juror 500 and Juror 566. In the final analysis,
whether to excuse a juror for cause rests upon the sound
discretion of the trial court and on appellate review, we
will not reverse the trial court's determination
"unless the action of the trial court is an abuse of
discretion or is clearly erroneous." Ordway v.
Commonwealth, 391 S.W.3d 762, 780 (Ky. 2013). Implicit
in that rule is the assumption that the trial court has
applied the correct standard for exercising it discretion. We
conclude that, the trial court applied the correct standard;
however, we concede that we have allowed the standard for
judging for-cause challenges of prospective jurors to drift
too far from its anchor: RCr 9.36(1).
9.36(1) plainly and succinctly establishes the standard by
which trial courts are to decide whether a juror must be
excused for cause. The rule says: "When there is
reasonable ground to believe that a prospective juror cannot
render a fair and impartial verdict on the evidence, that
juror shall be excused as not qualified."
9.36(1) is the only standard for determining whether a juror
should be stricken for cause. A clearer, more concise
expression would be difficult to conceive. "Reasonable
ground to believe" is a familiar, easily-applied concept
that trial judges use regularly in a variety of situations.
As with statutes, courts are obligated to interpret our
formally-adopted rules in accordance with their plain
language. Hazard Coal Corporation v. Knight, 325
S.W.3d 290, 296 (Ky. 2010) ("[W]e interpret the civil
rules in accordance with their plain language .... The
mandate of CR 39.01 is unmistakable in its clarity.");
Parrish v. Commonwealth, 283 S.W.3d 675, 677 (Ky.
2009) ("[W]e must accept the plain meaning of the
language of the rule [RCr 11.42]."); Lanham v.
Commonwealth, 171 S.W.3d 14, 21 (Ky. 2005) ("More
importantly, however, we cannot ignore the plain language of
the rule [KRE 103(d)]."). Despite the plain and
forthright language of RCr 9.36(1), in a variety of cases
over the years, we have expounded upon the rule to the
detriment of its plain language.
divergence from RCr 9.36(1)'s plain language started
after Mabe v. Commonwealth, 884 S.W.2d 668
(Ky. 1994). Mabe explained why a prospective juror
who had voiced a personal aversion to certain legal
principles could not simply be "rehabilitated" with
a "magic question" allowing the juror to disavow
his previously-expressed opinion on the law, as held in
Montgomery v. Commonwealth, 819 S.W.2d 713
(Ky. 1992). Our explanation concluded with this statement:
A per se disqualification is not required merely because a
juror does not instantly embrace every legal concept
presented during voir dire examination. The test is not
whether a juror agrees with the law when it is presented in
the most extreme manner. The test is whether, after
having heard all of the evidence, the prospective Juror can