CRIMINAL – Disqualified juror sitting: Commonwealth v. Brewer (COA 10/30/2009)

Commonwealth v. Brewer
2008-CA-001503 10/30/09 2009 WL 3486704
Opinion by Judge Acree; Judges Taylor and Thompson concurred.

The Court reversed a trial court order declaring a jury verdict void ab initio and granting appellee a new trial and ordered the trial court to reinstate the verdict and enter a judgment of conviction. The Court held that while upon a proper and timely motion, appellee would have been entitled to a new trial when a juror admitted to having a prior felony conviction. However, the verdict entered by a jury that included a disqualified juror was not void ab initio and therefore, was not subject to collateral attack. Pursuant to RCr 10.02, ten days after the jury rendered its guilty verdict the trial court lost its authority to grant a new trial. Because the defendant knew about the potential disqualification of the juror in time to file a proper and timely motion pursuant to RCr 10.02(1), appellee’s due process concerns were protected.

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