Opinion
NO. 2015-CA-000788-MR
10-21-2016
CLIFFORD MUENSTER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Roy A. Durham Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General Thomas A. Van De Rostyne Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BALLARD CIRCUIT COURT
HONORABLE TIMOTHY A. LANGFORD, JUDGE
ACTION NO. 14-CR-00007 OPINION
REVERSING AND REMANDING
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BEFORE: CLAYTON, JONES, AND NICKELL, JUDGES. JONES, JUDGE: Clifford Muenster appeals from the Ballard Circuit Court's Judgment and Sentence entered November 21, 2014, following a jury trial. Having reviewed the record in conjunction with applicable legal authorities, we conclude that reversal is mandated in this instance. The trial court abused its discretion when it refused to strike a juror who: (1) worked at the jail where Appellant and his wife were held following their arrest on the charges underlying this conviction; (2) had contact with Appellant and his wife during their period of pretrial detention; and (3) stated that she was aware that Appellant and his wife had been arrested on "many" prior occasions. Despite the juror's assertions that she could be fair and impartial, we believe these facts would cause any reasonable person to question whether the juror would be fair under the circumstances. Therefore, we reverse the judgment and conviction and remand this matter to the circuit court for further proceedings.
I. BACKGROUND
On or about January 9, 2014, Henry Elias returned from a trip out of town to his home in Barlow, Kentucky, and in his driveway discovered a pickup truck that he knew belonged to husband and wife acquaintances of his, Clifford and Connie Muenster. Upon further investigation, he found that his garage door was halfway up and the light was on in his garage. Elias entered his home and found the Appellant, Clifford Muenster, standing in the kitchen. When Elias asked him what he was doing there, Connie Muenster entered the area carrying a box of silverware that had belonged to Elias' mother. Elias asked the two if they had taken anything to their truck, and stated that he was going to take a look. The three exited, whereupon Elias went back inside his house, and locked the door. He looked around his house for a few minutes, then called the Ballard County Sheriff's Department.
When the deputy sheriffs arrived, they questioned Elias and both Muensters, then placed the Muensters in the patrol car while they investigated the premises with Elias. In the garage, they observed that the door had been pried open and the wood molding was damaged. In the bedroom, they discovered that two safes in the closet had been rummaged through, one of which had been pried open. Two dresser drawers were open, and jewelry was missing that had been kept within. Elias also noted the absence of his will and insurance papers from another drawer. Elias did not notice anything else missing at that point. One deputy took a brief look at the Muensters' truck, but did not immediately see anything that appeared to be from the house. The deputies then locked the truck, and Elias gave permission for the truck to be left until a relative of the Muensters could retrieve it. The Muensters were then placed under arrest for the suspected burglary.
Sheriff Todd Cooper followed up on the investigation the next day at the Elias residence. He took photographs of the dresser drawers, the damage to the door of the home, and the Muensters' truck. The truck was impounded and a search conducted at the impound lot. Inside the truck, a deputy found a loose piece of jewelry as well as a blue bag containing paperwork belonging to Elias. Sheriff Cooper contacted Elias again and asked him to try to determine if any other items were missing. Based on conversations with Elias, Sheriff Cooper obtained a search warrant for the Muenster residence, where various items belonging to Elias were discovered. Further conversations with Elias resulted in more items reported as missing, which the Sheriff remembered seeing at the Muenster residence. Another search warrant was obtained, and the items recovered.
A jury trial was held August 18 and 19, 2014. Clifford Muenster was convicted of two counts of Burglary in the Second Degree, Criminal Mischief in the Third Degree, Theft by Unlawful Taking under Five Hundred Dollars, and First Degree Persistent Felony Offender. Subsequent to the trial, the circuit court sentenced him to a term of ten years in prison. This appeal followed.
II. ANALYSIS
A. The Trial Court's Failure to Strike Juror Dahl
During voir dire, Muenster moved to strike Danielle Dahl from the jury pool for cause. Dahl, a deputy jailer, in uniform, was questioned during voir dire concerning her contact with and knowledge of the Muensters. Dahl admitted to the court that she had contact with the Muensters during their six-day pretrial detention at her place of work. She further admitted that through her work at the jail, she had knowledge about the charges facing the Muensters. Finally, she admitted to knowledge that the Muensters had been arrested "many times" previously, and that she had had contact with them in the past. The circuit court asked Dahl follow-up questions, in response to which she asserted that she did not have an opinion about the Muensters' guilt or innocence and could make a decision based on the evidence heard in the courtroom.
Muenster moved the circuit court to strike Dahl for cause. While the circuit court expressed some reservations about allowing Dahl to remain in the jury pool, it ultimately denied the motion due in part to concerns about the number of jurors available for service. After the circuit court denied the motion, Muenster used a peremptory strike on Dahl. Muenster properly noted for the record that, had he not been forced to use the peremptory strike on Dahl, he would have used it on another juror, Marcia Byas, who had admitted that the Commonwealth Attorney, Michael Stacy, had represented her in her divorce.
"In Kentucky, the right to an impartial jury is protected by Section 11 of the Kentucky Constitution, as well as the Sixth and Fourteenth Amendments to the [United States] Constitution." Ordway v. Commonwealth, 391 S.W.3d 762, 780 (Ky. 2013) (quoting Fugett v. Commonwealth, 250 S.W.3d 604, 612 (Ky. 2008)). "When there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence, that juror shall be excused as not qualified." RCr 9.36(1). "A determination as to whether to exclude a juror for cause lies within the sound discretion of the trial court, and unless the action of the trial court is an abuse of discretion or is clearly erroneous, an appellate court will not reverse the trial court's determination." Ordway, 391 S.W.3d at 781 (quoting Fugett, 250 S.W.3d at 613).
Kentucky Rules of Criminal Procedure.
"In order to complain on appeal that he was denied a peremptory challenge by a trial judge's erroneous failure to grant a for-cause strike, the defendant must identify on his strike sheet any additional jurors he would have struck." Gabbard v. Commonwealth, 297 S.W.3d 844, 854 (Ky. 2009). So long as the issue is properly preserved, reversal will automatically follow if the trial court is determined to have abused its discretion in refusing to strike the juror for cause. See Shane v. Commonwealth, 243 S.W.3d 336, 340 (Ky. 2007). "Not removing a biased juror from the venire, and thereby forcing a defendant to forfeit a peremptory strike, makes the defendant take on the duty of the court and prevents him from getting the jury he had a right to choose. This violates a substantial right accorded great weight in our legal history, and can never be harmless error." Id. at 343.
Muenster complied with the Kentucky Supreme Court's requirements by moving to have Dahl stricken for cause, objecting to her inclusion on the jury, and identifying on his strike sheet the additional jurors he would have stricken had he not been forced to use one of his preemptory strikes on Dahl. Therefore, the question then becomes whether the circuit court's refusal to strike Dahl for cause amounts to abuse of discretion.
We "adhere to the long standing principle 'that objective bias renders a juror legally partial, despite his claim of impartiality.'" Sluss v. Commonwealth, 450 S.W.3d 279, 282 (Ky. 2014) (quoting Montgomery v. Commonwealth, 819 S.W.2d 713, 718 (Ky. 1991)). Our Supreme Court has "repeatedly encouraged trial courts to strike a juror when a reasonable person would question whether the juror would be fair, because a fair juror is at the heart of a fair and impartial trial." Basham v. Commonwealth, 455 S.W.3d 415, 421 (Ky. 2014). "If a juror falls in a gray area, he should be stricken." Wallace v. Commonwealth, 478 S.W.3d 291, 298 (Ky. 2015) (quoting Ordway, 391 S.W.3d at 780)).
Despite Dahl's assurances to the contrary, there were reasonable grounds to believe that Dahl should have been excused as not being able to render an impartial verdict. She not only admitted to having some knowledge of the particulars in this case, but she was also employed as a jailer and had seen the Muensters incarcerated, in her own words, "many times." We should stress that, standing alone, Dahl's employment as a jailer is not determinative as to her eligibility to serve on the jury, as there is case law indicating that being a law enforcement officer is not sufficient reason to dismiss for cause. See Sanders v. Commonwealth, 801 S.W.2d 665, 670 (Ky. 1990). In Sanders, however, the police officer in question had no knowledge of the defendants and no real knowledge of the investigation. Dahl, on the other hand, not only had knowledge of the case from outside the courtroom, she also had knowledge of the Muensters' extensive past criminal history.
Kentucky Rule of Evidence (KRE) 404(b) states, in part: "Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." --------
To be clear, we do not question Dahl's subjective honesty in answering the trial court's question concerning her ability to be impartial. However, given Dahl's knowledge of the Muensters and her dealings with them as a jailer during their pretrial detention, legitimate doubt as to her impartiality is reasonable. See Marsch v. Commonwealth, 743 S.W.2d 830, 834 (Ky. 1987). Given the "probability of bias or prejudice," the trial court should have granted Muenster's request to strike Dahl. Sluss, 450 S.W.3d at 282. Under these facts, Muenster's conviction must be reversed. Shane, 243 S.W.3d at 341.
B. Muenster's Request to Cross-examine Mr. Elias
Though Muenster's conviction is being reversed, it is necessary to briefly address one of Muenster's other assignments of error as is likely to recur on remand.
Great confusion appears to have surrounded Muenster's request to cross-examine Mr. Elias about the events surrounding his conviction for misdemeanor shoplifting that predated the robbery at issue in this case by approximately four months. Relying on KRE 609, the trial court refused to allow Muenster to inquire about a misdemeanor conviction. Muenster asserts on appeal that the trial court erred because KRE 608(b) allows inquiry into matters that relate to truthfulness or untruthfulness.
In Allen v. Commonwealth, 395 S.W.3d 451 (Ky. 2013), the Kentucky Supreme Court reassessed the interplay between KRE 608 and 609. The Allen court concluded that the conduct giving rise to a misdemeanor can be inquired into on cross-examination if the conduct is "probative of truthfulness or untruthfulness." Id. at 466. "As long as the conduct in question is so probative, whether it resulted in a criminal conviction or not, the court may, in its discretion, allow inquiry into it but not extrinsic proof of the conviction itself." Id. "KRE 608 also lays out two procedural safeguards: the conduct cannot be proved with extrinsic evidence, and may only be inquired into on cross-examination." Id.
The trial court was correct that the misdemeanor conviction itself was not admissible. Id. However, the trial court should have expanded its inquiry beyond the conviction. Even though Muenster could not have introduced evidence of the conviction, the trial court had the discretion to allow Muenster to inquire into the underlying conduct if it determined that the conduct related to Mr. Elias' honesty or lack thereof and "subject of course to limits imposed by other rules, such as KRE 403." Id. Given the trial court's wide discretion over the admission of evidence and the limited record, we do not deem it prudent to decide the ultimate issue of admissibility prior to retrial. Suffice it to say, the trial court should consider KRE 608 and KRE 403 in conjunction with KRE 609 should this issue arise again.
III. CONCLUSION
For the foregoing reasons, we reverse the Ballard Circuit Court Judgment and Sentence entered November 21, 2014, and remand for further proceedings consistent with this opinion.
ALL CONCUR. BRIEF FOR APPELLANT: Roy A. Durham
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General Thomas A. Van De Rostyne
Assistant Attorney General
Frankfort, Kentucky