APPEAL FROM BARREN CIRCUIT COURT HON. JOHN T. ALEXANDER,
JUDGE NO. 16-CR-00192
COUNSEL FOR APPELLANT: Julia Karol Pearson Department of
COUNSEL FOR APPELLEE: Andy Beshear, Attorney General of
Kentucky Micah Brandon Roberts Assistant Attorney General of
Wright challenges his conviction in Barren Circuit Court of
one count of first-degree sodomy, victim under twelve years
old, and resulting forty-year sentence. The only issues
presented by this appeal are: (1) did a juror's failure
to disclose that she went to school with Wright's
sister-in-law during voir dire entitle Wright to a
new trial; (2) did the trial court commit reversible error by
dismissing a juror as the alternate instead of declaring a
mistrial; and (3) did the trial court coerce the jury into
reaching a verdict by issuing two Allen charges.
After careful review, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
was charged with one count of sodomizing his
then-girlfriend's five-year-old daughter
Tammy. Because the issues raised on appeal are
limited to the circumstances surrounding a juror's (Juror
C) dismissal and the jury's deliberations, we will not
discuss the details of the crime itself.
Juror C's Dismissal
first person to testify at trial was Tammy's biological
father. When his testimony concluded, the court recessed for
lunch. After lunch, the defense reported that several people
made allegations against Juror C during the lunch break. They
alleged that Juror C knew Wright; that she sat with
Tammy's father and a group of people, presumably his
family, during the lunch recess; and that she hugged
Tammy's father on the courthouse steps before the court
came back from recess. Therefore, out of the presence of the
rest of the jury, the court discussed the allegations with
Juror C, the Commonwealth, and defense counsel.
when asked whether she knew Wright, Juror C said she did not,
but she did know his sister-in-law. His sister-in-law was a
grade ahead of her in school, but Juror C said she did not
"know know" her. She stated she saw her
around town occasionally but could not recall the last time
she spoke to her. The trial court then asked why she did not
disclose this information during voir dire. She
responded that she was going to but counsel moved on to their
next question before she could.
court went on to ask Juror C if she sat with Tammy's
father and his family at lunch, and she admitted she did sit
at the same table. She explained that she was sitting by
herself in a Subway Restaurant near the courthouse at a table
where three small tables were pushed together. Tammy's
father and about six other people asked if they could sit
there, and she told them they could. However, Juror C
maintained that she did not say anything else to them; she
simply finished eating in silence and left.
Juror C denied hugging Tammy's father on the courthouse
steps. She said she was standing on the steps and he walked
past her, hugged a woman Juror C did not know, and got into
his car and left.
this, the trial court sent Juror C back to the jury room and
had a discussion with counsel about how they wished to
proceed. The trial court stated that it did not
believe Juror C's knowledge of Wright's sister-in-law
as she described it would have qualified her to be struck for
cause. Defense counsel said twice during the discussion that
he "agree[d] with that 110%," and that "none
of that worr[ied] [him] at all."
defense counsel moved for a mistrial based on the lunchtime
allegations. First, he was concerned that Juror C purportedly
talked to a testifying witness, which would have been
inappropriate in and of itself. He also argued it was
therefore possible that she tainted the other members of the
jury with information she gained during that conversation.
The Commonwealth responded that a mistrial was the most
severe remedy available and that it would be better to strike
her as the alternate and continue the trial with twelve
the trial court accepted the Commonwealth's position and
immediately dismissed Juror C. Then, in order to address the
defense's concern about her tainting the rest of the
jury, the court asked the remaining members of the jury if
any of them received any improper information from Juror C.
The members responded they did not, and the trial proceeded.
second day of trial the jury began its deliberations at about
one o'clock. An hour later the jury requested, and was
permitted, to see the video of Tammy's testimony again.
The jury went back in to deliberate at 2:38 PM.
At 3 PM
the foreperson told the court that several jurors were
"not comfortable making a decision yea or nay, guilty or
not guilty, based on the evidence." The judge admitted
he had never encountered that situation before and wanted to
talk to counsel about their preferred course of action. The
judge suggested reading through the instructions again,
telling the jury to think about those instructions, and to
make it clear that each individual juror had a duty to either
vote guilty or not guilty; that they could not abstain from
voting altogether. The Commonwealth agreed, but the defense
argued that the only thing they could do was to bring the
jury out, read the Allen charge to them and send
them back in, or declare a mistrial. The judge replied that
an Allen charge is read to a deadlocked jury, and
that was not what they had. They simply had jurors that were
unwilling to vote either way. The judge further noted that
juries come out with questions all the time about a myriad of
things, and the court has options beyond reading them an
3:08 PM the court explained to the jury that they each had an
individual obligation to vote guilty or not guilty based on
the instructions and the evidence. He told them that if they
reached a point where everyone voted and it was not
unanimous, then they could let the court know and they would
deal with that issue. He then sent them back in to
PM the foreperson reported that everyone had voted, but they
were now deadlocked. The judge read them the Allen
charge verbatim and sent them back in to deliberate at 3:26
PM the foreperson informed the court that they had another
issue. Anticipating that they were still deadlocked, the
court asked counsel what they wanted to do if that was indeed
the case. The Commonwealth suggested asking the foreperson if
he thought further deliberations would be helpful, while the
defense suggested declaring a mistrial. The court proposed
telling the foreperson the court's only two options were
to either read the Allen charge again and continue
deliberations or declare a mistrial and get the
foreperson's opinion. The defense agreed.
court therefore asked the foreperson if he thought there
would be any utility in having them deliberate further. The
foreperson said that if the court would have asked him that
an hour ago, he would have said no. But a few jurors had
changed their opinion, while a couple of jurors were holding
firm. The trial court then brought the jury out and explained
that he was not trying to "twist their arm," but
that he was required to read the Allen charge again
because they were still deadlocked. He read it again verbatim
and said "111 ask you to return to the jury room and
continue your deliberations. I'm not asking for a
specific amount of time. If and when you come to a decision
one way or the other or convince yourselves you're at an
intractable spot, then just let us know and well go from
there, okay?" The jury was sent back in to deliberate at
PM, the foreperson came out and asked if the judge could
provide a definition of "reasonable doubt." The
judge explained that he could not, that what constitutes
reasonable doubt is a judgment call for each individual
juror. The foreperson went back to deliver the court's
answer at 5 PM.
PM, after a total of four hours of deliberation, the jury
came back with a guilty verdict.
facts are discussed below as necessary.
The argument that Wright is entitled to a new trial based
on Juror C's failure to disclose on voir dire was not
properly preserved for appellate review.
appeal to this Court, Wright first argues that Juror C's
failure to disclose that she went to school with his
sister-in-law during voir dire is structural error
and he is therefore entitled to a new trial. However, this
argument was not properly preserved for our review.
discussed, supra, when the trial court stated it did
not believe Juror C's knowledge of Wright's
sister-in-law would qualify her to be struck for cause,
defense counsel said he "agreed with that 110%" not
just once, but twice. He even went further and stated that
the voir dire issue did not worry him at all.
Defense counsel did move for a mistrial during the same
colloquy, but he did so only in relation to the allegation
that Juror C was seen talking to and hugging Tammy's
father during the lunch recess. Defense ...