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THE ADVOCATE Volume 30, No. 1 January 2008
The Court of Appeals also declined to follow Tabor in a case very similar to Hall. In Bryant v.
Commonwealth, 2003 WL 22110576 (Ky.App.2003), unpublished, a prospective juror also said
during voir dire that he knew the defendant from jail. In that case, unlike in Tabor, the defendant
took the stand and was impeached with his prior felonies. The court ruled that the error was
therefore harmless and a mistrial was not necessary.
Juror a Victim of Similar Crime - In Jett v. Commonwealth, 862 S.W.2d 908, 910-11 (Ky.App.1993),
the defendant on trial for trafficking moved to set aside the jury panel when one prospective
juror stated, in the presence of the entire panel, that a drug trafficker had killed his daughter.
Instead, the trial court struck the prospective juror. The Court held it was not error to refuse to
strike the entire panel because the defendant had proven no prejudice. A prejudicial remark by
a juror does not necessarily require striking the entire panel.
Where the defendant was on trial for robbery, the fact that two prospective jurors had been
robbery victims was not sufficient to render prospective jurors unqualified. Stark v.
Commonwealth, 828 S.W.2d 603, 608 (Ky.1991), overruled on other grounds. Also, where the
defendant was on trial for assault and burglary and knew the victim, it was not error for the trial
court to fail to strike for cause a juror who had been raped at her home three months before by
a perpetrator who she did not know and who had not yet been caught. Butts v. Commonwealth,
953 S.W.2d 943, 945 (Ky.1997).
Juror Also a Witness in the Case - In Hellard v. Commonwealth, 829 S.W.2d 427 (Ky.App.1992),
overruled on other grounds, the defendant was charged with theft by deception and forgery
based on a forged rental agreement with a video store. The owner of the video store was a
member of the jury pool. The defendant moved for a continuance of her trial until a new jury
pool was called. The Kentucky Court of Appeals held that, even though the issue had not been
preserved, it was palpable error for the trial court to deny the motion for continuance because
the “possibility of a jury according the testimony of a witness greater weight than it otherwise
would have received is just too great when the witness is a member of the same jury pool.”
Furthermore, the court did “not feel that Hellard was required to show bias or prejudice under
these circumstances.” Id. at 429. Compare, Colwell v, Commonwealth, 37 S.W.3d 721 (Ky.2001),
in which the complaining witness was also a member of the jury pool but no reversible error
ocurred because the witness was excused before the day of trial and therefore did not mingle
with other jurors prior to trial.
In Jones v. Commonwealth, 737 S.W.2d 466 (Ky.App.1987), a member of the juror pool was also
a witness in the defendant’s trial. The juror was removed from the jury pool before trial began
and the defendant was allowed to voir dire on the issue of the weight other jurors might place
on the witness’s testimony. It was not error to deny a continuance when all the remaining jurors
answered they would not be unduly influenced by the testimony of the former juror.
Juror Convicted a Co-Defendant – In Pelfrey v. Commonwealth, 842 S.W.2d 524 (Ky.1993), the
defendant moved for a continuance until a new jury pool could be empanelled because the jury
that had convicted the defendant’s companion one month earlier had been selected from this
same jury pool. The trial court denied the continuance motion.
On appeal, the Court held the trial court had not abused its discretion in denying the continuance
motion because “there were adequate safeguards in place to assure an unbiased jury” (i.e., forcause
and peremptory challenges). Id., 525 Furthermore, the defendant had conducted a
thorough voir dire examination and had not challenged any prospective jurors for cause, and
the trial court had admonished the jurors to consider only what they heard from the witness
stand.
The Kentucky Supreme Court further held that because the defendant had not challenged any
of the prospective jurors for cause “we can only assume that he was satisfied with the jury.”
And that, “a continuance motion for a new panel is not the equivalent of individually challenging
jurors for cause. Once trial counsel’s [continuance] motion was denied, his method for reviewing
the bias issue was to specifically challenge jurors. Without doing so, counsel clearly waived
his jury challenge.” Id.
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