Shane v. Commonwealth

SCOTT, Justice,

concurring and dissenting.

While I concur with the majority opinion on the questions of pre-indictment delay, I must respectfully dissent from the majority opinion reversing Morgan v. Commonwealth, 189 S.W.3d 99 (Ky.2006), and reinstating Thomas v. Commonwealth, 864 S.W.2d 252 (Ky.1993). Thomas is simply bad law, and harkens back to a time when appellate bodies were considered “citadels of technicality.” Kotteakos v. United States, 328 U.S. 750, 759 , 66 S.Ct. 1239 , 90 L.Ed. 1557 (1946). Here’s why.

The Resurrection of Thomas

Resurrecting the rule in Thomas, supra, the majority reverses Appellant’s conviction because the trial court denied Appellant’s challenge to Juror 138 for cause, even though juror 188 never sat on the jury that convicted Appellant All because Appellant used one of his nine (9) peremptory challenges allotted to him for the very purpose for which they were granted — to strike a juror he felt would not be sympathetic to his cause. RCr 9.40. “To be clear, one should not believe that this is a case where an obviously biased juror sat on the trial jury.” Morgan, 189 S.W.3d at 105 .

As in Thomas , the majority re-adopts the doctrine that the use of Appellant’s peremptory challenge in this circumstance resulted in a violation of a “substantial right” which made, “the trial unfair,” requiring reversal. A square collision with RCr 9.24, the harmless error rule, which commands that,

[n]o error ... in anything done or omitted by the court ... is ground[s] for ... setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment ... unless it appears to the court that the denial of such relief would be inconsistent with substantial justice.

When announced in 1993, Thomas made a quantum leap from Rigsby v. Commonwealth, 495 S.W.2d 795, 799 (Ky.1973) (“[tjhere has been no showing that use of the eleven peremptories to dispose of the suspect jurors resulted in a subsequent inability to challenge additional unacceptable veniremen”) and Marsch v. Commonwealth, 743 S.W.2d 830, 831 (Ky.1987) (“[t]wo jurors who were challenged for cause actually served upon the jury because appellant’s peremptories had been *344 exhausted and he could not excuse them”), to overrule Turpin v. Commonwealth, 780 S.W.2d 619 (Ky.1989) and Dunbar v. Commonwealth, 809 S.W.2d 852, 854 (Ky.1991) (“[t]hey have failed to demonstrate that in fact any person who sat on the jury was incompetent and should have been stricken for cause”). Tre-Thomas, even Justice Leibson, acknowledged the rule of Rigsby and Marsch :

Without forewarning to the trial bar, we have quietly and subtly shifted this rule to a new one stating that no prejudice is presumed when a party is forced to use peremptory challenges to excuse jurors who should have been excused for cause unless that party not only then exhausts all peremptory challenges available to him, but also requests additional challenges on grounds that he was unfairly denied challenges for cause, or, at the least, before having a right to complain a party must state on the record additional persons against whom he would have exercised peremptory challenges had such challenges been available to him.

Turpin, 780 S.W.2d at 626 (Liebson, J., dissenting). Thomas, supra, changed the rule in Rigsby and Marsch, while Morgan, supra, did not in any way challenge, change, or disparage, Rigsby or Marsch , only Thomas . In fact, in Morgan , there was no proof, or allegations that there was any other juror that the defense needed to strike with the one peremptory challenge at issue.

Peremptory Challenges

Under Federal Constitutional Law, peremptory challenges are “auxiliary” and not of constitutional dimension. United States v. Martinez-Salazar, 528 U.S. 304, 311 , 120 S.Ct. 774 , 145 L.Ed.2d 792 (2000), citing Ross v. Oklahoma, 487 U.S. 81 , 108 S.Ct. 2273 , 101 L.Ed.2d 80 (1988). 1 Rather, they are a means to achieve the constitutionally required end of an impartial jury. Id. at 307, 120 S.Ct. 774 . By Thomas , however, Kentucky ... elevated the peremptory challenge to that of a “substantial right” requiring the highest degree of protection; even though our history acknowledges we can freely add to them, subtract from them, or take them away. Stopher v. Commonwealth, 57 S.W.3d 787 , (Ky.2001) (Keller, J., dissenting).

Historically, the number of peremptory challenges has fluctuated for both the defense and the Commonwealth. In 1877, the defense was allowed twenty (20) peremptory challenges. The number was reduced to fifteen (15) in 1893; and to eight (8) in 1978. All during these periods, the Commonwealth was allowed only five (5) peremptory challenges. In 1994, RCr 9.40 was amended to allow both the defense and the Commonwealth an equal number, eight (8) peremptory challenges each. Thus, if the peremptory challenge was intended to be a “substantial right” afforded to the defendant, as the majority again holds, I suspect amendments as drastic as those made to RCr. 9.40 would never have been allowed to stand.

Morgan, 189 S.W.3d at 105 .

Black’s Law Dictionary defines a “substantial right” as one which is essential and that potentially affects the outcome of a lawsuit and is capable of legal enforcement and protection, as distinguished from a mere technical or procedural right. *345 Black’s Law Dictionary 1324 (7th ed.1999). Conversely, a procedural right is derived from a legal or administrative procedure, a right that helps in the protection or enforcement of a substantial right. Id. at 1323. This case illustrates the quintessential exercise of the peremptory challenge. Morgan, 189 S.W.3d at 105 . Appellant’s peremptory challenge allowed him to receive a fair and impartial jury; yet its use ... is now [the] basis for reversing the verdict of that fair and impartial jury. Id. As Justice Keller pointed out in his dissenting opinion in Stopher v. Commonwealth, 57 S.W.3d 787 (Ky.2001), “bestowing a substantial right upon the exercise of a peremptory challenge serves one function and one function only — it manufactures reversible error in cases where the case has been decided by a fair and impartial jury.” Id. at 814 . (Keller, J., dissenting).

With Thomas, supra, now resurrected, we again must find error where no error exists. And again, Thomas upsets jury verdicts rendered by a fair and impartial jury only because the Fifth and Sixth Amendment safeguards worked.

Ours is an adversarial system where all parties work together to insure a fair and impartial jury. When that is done and a fair and impartial jury is seated, we should not disturb the verdict for that reason. As Justice Wintersheimer’s dissent in Thomas , pointed out, “The mere fact that the defendant exercised all his peremptory challenges does not provide a sound basis for asserting that the process relating to challenges for cause automatically deprived him of a proper number of peremptory challenges.” Thomas, 864 S.W.2d at 265 (Wintersheimer, J., dissenting). There must be more as required by Rigsby and Marsch . And as Justice Graves noted, “I am reminded, ‘the right to a jury trial free of discriminatory taint is constitutionally protected — the right to use peremptory challenges is not.’ ” Morgan, 189 S.W.3d at 116 (Graves, J., concurring). And as noted by Justice Roach, “[i]s this really the kind of error, and really the kind of ‘right,’ that justifies reversing otherwise perfectly valid convictions returned by perfectly impartial jurors? The answer must be no. This error is not constitutional, is not structural and is harmless by any measure of that inquiry.” Id. at 221 (Roach, J., concurring).

Here the Appellant was found guilty of one count of burglary in the first degree. He was also found to be a second degree persistent felony offender. As such, he was sentenced to a term of twenty years imprisonment, enhanced to thirty-five years for being a persistent felony offender. Evidence at trial established that the DNA profile from a cigarette butt found at the scene later matched the DNA profile of a prisoner in the Colorado penitentiary on all thirteen (13) points! That prisoner was Appellant.

The odds of another person having the same DNA profile as Appellant, is one in six quadrillion, roughly one million times the population of earth. Thus, “[t]his is a case where the evidence of the defendant’s guilt [is] overwhelming. To retry this case under the sole dictates of Thomas would be absurd.” Morgan, 189 S.W.3d at 107 . This is why the Court tried to leave Thomas — and we did — for awhile.

Thus, I strongly dissent in the resurrection of a doctrine which manufactures error where none should exist.

. For state trends on this issue since Martinez-Salazar , see Justice Roach’s concurring opinion in Morgan v. Commonwealth, 189 S.W.3d 99, 119, 120 (Ky.2006). Contrary to the majority’s assertion, Justice Roach concurred in result in Morgan, only because he was unwilling to concede that the reversal in Thomas was a correct result, albeit for different reasons, i.e., the change of venue issue as discussed in Morgan, 189 S.W.3d at 106 .