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Wright v. Commonwealth

Supreme Court of Kentucky

December 19, 2019



          COUNSEL FOR APPELLANT: Julia Karol Pearson Department of Public Advocacy

          COUNSEL FOR APPELLEE: Andy Beshear, Attorney General of Kentucky Micah Brandon Roberts Assistant Attorney General of Kentucky



         Preston 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.


         Wright was charged with one count of sodomizing his then-girlfriend's five-year-old daughter Tammy.[1] 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.

         A. Juror C's Dismissal

         The 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.

         First, 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.

         The 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[2] 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.

         Finally, 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.

         Following this, the trial court sent Juror C back to the jury room and had a discussion with counsel about how they wished to proceed.[3] 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."

         However, 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 jurors.[4]

         Ultimately, 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.

         B. Jury Deliberations

         On the 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 Allen charge.

         So, at 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 deliberate.

         At 3:24 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.

         At 3:46 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.[5]

         The 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 3:57 PM.

         At 4:58 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.

         At 5:11 PM, after a total of four hours of deliberation, the jury came back with a guilty verdict.

         Additional facts are discussed below as necessary.

         II. ANALYSIS

         A. 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.

         On 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.

         As 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 ...

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