Opinion
NO. 2012-CA-002047-MR
04-01-2016
TERRY GRUBB APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Julie Pearson Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Jason B. Moore Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CLAY CIRCUIT COURT
HONORABLE OSCAR G. HOUSE, JUDGE
ACTION NO. 10-CR-00095 OPINION
AFFIRMING
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BEFORE: D. LAMBERT, MAZE, AND THOMPSON; JUDGES. D. LAMBERT, JUDGE: This matter is before the Court appealing the conviction of the Appellant, Terry Grubb, by the Clay Circuit Court following a jury trial. Finding no error, we affirm.
I. Factual and Procedural History
For approximately five to six months before November 27, 2010, the victim, Doug Roberts, had been living with Grubb and his family. Roberts was the brother of Virginia Grubb, the Appellant's wife, and the brother-in-law of the Appellant. On November 27, 2010, Grubb and two friends, Charlie Gray and Brian Swafford, returned from hunting, and Roberts began insulting Gray and Swafford. At Swafford's request, Grubb asked Roberts inside the residence to have a private conversation regarding his behavior toward Grubb's guests. According to a statement given by Grubb to law enforcement, Roberts responded by verbally accosting him.
This conversation grew increasingly heated, and Grubb proceeded into his bedroom to put away some of his hunting equipment. Roberts followed Grubb into the bedroom, continuing to speak to him. According to Grubb's own statement, with a hunting knife in hand, he demanded Roberts leave the home.
Roberts proceeded out the door, after having called someone to pick him up. Grubb noted his belief that Roberts was known to carry a pocket knife, and alleged that Roberts threatened to kill him four or five times during the altercation. Other witnesses dispute Grubb's assertion regarding these threats. Roberts stayed outside for approximately ninety seconds, and started back into the residence. Grubb alleged Roberts renewed his barrage of insults and threats directed at him, while reaching for his pockets, culminating in Roberts "lunging" at Grubb, who shot Roberts with a pistol he had been carrying in his pocket while hunting.
Other eyewitnesses, including Gray and Grubb's own teenage daughters, gave statements directly contradicting Grubb on several key points. They testified that Roberts had come back inside the residence because it was extremely cold that late November day, and that he had neither threatened nor lunged at Grubb. They further testified that Roberts was not yet actually inside the residence, and was standing at the threshold of the door when Grubb fired the shot. They testified that Grubb had brandished the firearm even before Roberts had gone outside, and that both Virginia Grubb and Gray had unsuccessfully attempted to persuade him to put it away.
Grubb was indicted on December 9, 2010, for Roberts' murder. The matter was set for trial to begin on September 9, 2012. Grubb moved to dismiss the indictment on August 20, 2012, pursuant to KRS 503.085, attempting to assert immunity from prosecution based on self-defense. The Commonwealth responded, arguing first that the motion was untimely, but also opposing the motion on its substance as well. The trial court conducted a hearing on the motion on August 27, 2012, wherein it orally denied the motion. That ruling was later reduced to writing and that written order was entered on September 5, 2012.
The trial took place over four days, September 10, 2012, through September 13, 2012, despite some alleged jury irregularities discussed further below. At the close of the Commonwealth's evidence, Grubb renewed his motion to dismiss the indictment as part of his motion for directed verdict, which the trial court denied. The jury acquitted Grubb of murder, but convicted him on the lesser-included offense of manslaughter in the second degree, recommending a sentence of ten years. The trial court imposed the sentence as recommended in a final judgment entered on November 7, 2012.
This appeal followed. The Appellant asserts three errors in the proceedings below. The first two errors are of similar character: that two members of the jury venire should have been stricken for cause, and the trial court improperly denied motions to that effect. The third alleged error is that the trial court improperly denied Grubb's motions seeking to assert immunity from prosecution based on alleged self-defense.
II. Analysis
A. The Trial Court Did Not Abuse Its Discretion by Denying Grubb's Motions to Strike Two Jurors for Cause
Rule 9.36 of the Kentucky Rules of Criminal Procedure ("RCr") governs challenges to individual jurors. Under that rule, motions to strike jurors for cause should be granted when a reasonable ground exists "to believe that a prospective juror cannot render a fair and impartial verdict on the evidence . . . ." RCr 9.36(1). The determination as to whether a juror should be stricken for cause is entirely within the discretion of the trial court, and appellate courts are not to disturb such determination unless it amounted to a clear abuse of discretion. Grider v. Commonwealth, 404 S.W.3d 859, 860 (Ky. 2013). The test for whether a judicial action is an abuse of discretion is whether it was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Miller v. Eldridge, 146 S.W.3d 909, 914 (Ky. 2004). The trial court is to consider the totality of the circumstances rather than a response to any single voir dire question. Grider at 860 (citing Fugett v. Commonwealth, 250 S.W.3d 604, 612 (Ky. 2008)). The trial court should also "err on the side of caution by striking" any juror whose fairness and impartiality is justifiably doubted. Ordway v. Commonwealth, 391 S.W.3d 762, 780 (Ky. 2013).
Grubb contends that the trial court abused its discretion when denying his motions to strike two particular jurors for cause.
On the first morning of Grubb's trial, the parties completed voir dire and the trial court recessed for lunch, during which the parties were to exercise their peremptory challenges. The trial court had admonished the members of the venire not to speak about the case to anyone or to use their cellular phones or devices. Upon returning from lunch, defense counsel made the trial court aware that Virginia Grubb and a family friend of Grubb's had seen two of the potential jurors, Goldie Bowling and Charlene Hoskins, together in the vehicle of Joe B. Collins.
Bowling and Hoskins are sisters-in-law and Collins is the uncle of Hoskins. Collins also has some unspecified relationship to Wayne Roberts, the uncle of the victim. Collins had been seen earlier in the day conversing with Wayne Roberts. Further complicating matters is that Bowling is the sister of a Clay County Deputy Sheriff, though this was disclosed in voir dire, and it was also determined that the deputy had not participated in any way in the investigation of this case.
The trial court conducted a brief hearing, during which several witnesses testified. Both Bowling and Hoskins testified that they had been in the vehicle with Collins, but did not discuss the case. Both Bowling and Hoskins testified that they had placed phone calls using their cellular phones. Bowling testified that she had called her brother regarding some work needing to be done on her property. Hoskins testified that she had placed a call to her bank. The only witness who testified that either Bowling or Hoskins had any contact with Wayne Roberts was Virginia Grubb. Such assertion was specifically denied by both potential jurors, though Bowling did concede that she had been personally acquainted with Wayne Roberts, even dating him years ago. Despite the contrary assertions of Grubb in his reply brief, this Court's review of the record reveals that Bowling had, at no point, admitted to speaking with Wayne Roberts.
Having heard the testimony, the trial court concluded that there was no reason to believe these prospective jurors had been tainted by outside influence, or that they could not render fair and impartial verdicts based on the evidence. The trial court did not address the violation of the admonition not to use cellular phones.
Grubb now argues that the trial court failed to consider the "appearance of impropriety" presented in the situation. In making this argument, Grubb relies on McQueen v. Commonwealth, 669 S.W.2d 519 (Ky. 1984) and Dalby v. Cook, 434 S.W.2d 35 (Ky. 1965).
In McQueen, the trial court dismissed a seated juror based on both the violation of the admonition not to speak with anyone about the case, and the appearance of impropriety inherent in such discussion. The Supreme Court noted that the dismissed juror's "greatest impropriety, if any, was not reporting those persons [who had initiated conversations regarding the case] to the court." McQueen at 521. McQueen can clearly be distinguished from this case. The jurors denied having spoken to anyone about the case. The most condemning of the allegations advanced by Grubb is that the potential jurors spoke to a third party who had spoken to a potential witness.
In Dalby, the appellant made three assignments of error related to the verdict. First, a juror failed to disclose in voir dire that she was related by marriage to one of the winning litigants. Second, after the close of evidence, but while in the presence of the jury, a witness who had testified for the appellees confronted the appellant and accused him of lying on the stand. Third, a secretary for appellees' trial counsel told one of the jurors that the appellants had already received "all they deserved" from the decedent's estate. Dalby at 37. The trial court denied the motion for a new trial filed by Dalby. Dalby appealed, and the Court of Appeals reversed the trial court, but the ruling was based on the third ground, and the "appearance of evil" it entailed, not the undisclosed relationship. Regarding the undisclosed relationship, the Court reasoned that "[k]inship of which a juror is unaware . . . is an insufficient ground for setting aside a verdict." Id. at 36. The reversible error found by the Court was grounded in the belief that "the average citizen would find it difficult to believe that a fair jury trial has occurred when a juror suffers herself to engage in conversation about the case on trial with any person . . . ." Id. at 38. However, in Dalby, the allegation of the conversation between the juror and counsel's secretary was supported by evidence —the juror admitted to having a conversation with counsel's secretary, and the secretary did not refute the allegation that the conversation occurred. This stands in stark contrast to the instant situation, where the jurors deny any conversation occurred between themselves and anyone intimately familiar with the case, and they further deny that any conversations which did occur between themselves and any third parties pertained to the trial.
The trial court was entitled to believe the consistent testimony of the two jurors and their responses to the questions in voir dire in reaching its conclusion that their impartiality was not impugned, it was equally within the court's discretion to determine that the jurors were capable of rendering a fair, unbiased, and impartial, verdict based on the evidence. This Court cannot conclude the trial court acted arbitrarily, unreasonably, or outside of sound legal principles.
B. The Record Contains Substantial Evidence in Finding Probable Cause
The Kentucky legislature amended the law of self-defense in 2006. Chapter 503 of the Kentucky Revised Statutes governs the use of force in defense of one's self, particularly KRS 503.055 and 503.085. The authorities interpreting these statutes place the onus on the Commonwealth to prove the accused is not entitled to immunity. See Rodgers v. Commonwealth, 285 S.W.3d 740 (Ky. 2009); Commonwealth v. Eckerle, 470 S.W.3d 712 (Ky. 2015). The standard of proof in such situations is a lenient one: a court must examine the record and determine whether, in the totality of circumstances, probable cause exists to conclude that a defendant's use of deadly force was not justified. Eckerle, at 724. On appeal, this Court reviews the trial court's ruling to determine whether there was a "substantial basis for concluding that probable cause existed," and not to review the record de novo. Commonwealth v. Lemons, 437 S.W.3d 708, 714 (Ky. 2014). "Substantial evidence" has previously been defined as such evidence that, being taken alone or in light of all the evidence, has sufficient probative value to induce a reasonable person to convict. Sec'y, Labor Cabinet v. Boston Gear, Inc., 25 S.W3d 134, 134 (Ky. 2000).
After the hearing, the trial court concluded that the record presented sufficient evidence to create probable cause, and thus render the statutory provisions inapplicable. Grubb argued the trial court's order was deficient in several ways: the court issued no findings of fact, the court did not specify on which evidence it was relying, and the court failed to specify why the circumstances created probable cause. The Commonwealth contends that the alleged deficiency of the order was inconsequential because the jury later found beyond a reasonable doubt that Grubb was guilty. We disagree with both assertions.
Though the trial court made no specific findings pointing to facts or evidence supporting its probable cause finding, the record contains substantial evidence to support such a finding. The statement given by Grubb appears self-serving even at first glance, and when taking into account the Grand Jury testimony offered by his two daughters and Gray, all of whom were in the room at the time of the shooting, it appears all the more self-serving and even less credible. Taking the entirety of the evidence available at the time of the motion hearing, the trial court's conclusion that probable cause was present is supported by substantial evidence.
III. Conclusion
Having examined the record, this Court concludes that the trial court did not abuse its discretion in denying the Appellant's motions to strike the two jurors for cause, and further concludes that the trial court's findings of probable cause were supported by substantial evidence. The trial court acted appropriately when denying the Appellant's KRS 503 motion to dismiss. Having found no error, we therefore AFFIRM.
ALL CONCUR. BRIEF FOR APPELLANT: Julie Pearson
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Jason B. Moore
Assistant Attorney General
Frankfort, Kentucky