Criminal voir dire and strikes: SHANE V. COM. (SC 12/20/2007)

SHANE V. COM.
CRIMINAL:  Voir Dire, Peremptory Strikes
2006-SC-000096-MR.pdf
PUBLISHED: AFFIRMING IN PART AND REVERSING IN PART
OPINION: NOBLE; SCOTT CONCURS IN PART AND DISSENTS IN PART BY SEP. OP.
DATE RENDERED: 12/20/2007

SC reversed Shane’s convictions and 35 year sentence in Jefferson Circuit Court, specifically overruling Morgan v. Commonwealth, 189 S.W.3d 99 (Ky. 2006), which held the trial court error in failing to strike a juror for cause was harmless. Here, Juror 138’s responses in their entirety indicated a probability that he could not enter the trial giving both sides a level playing field. His statement that he was "absolutely" pro-police and that he did not believe an officer would lie under oath clearly indicated that a defendant would have little or no chance of challenging an officer’s testimony in this juror’s mind.

It is a fundamental tenet that a person charged with a crime is entitled to a fair trial. RCr 9.36(1) establishes the standard a trial judge is required to apply in voir dire: "When there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence, he shall be excused as not qualified ." The language to the trial court is mandatory. RCr 9.40 gives a defendant eight peremptory challenges plus one if alternates are seated. The correct inquiry is not whether using a peremptory strike for a juror who should have been excused for cause had a reasonable probability of affecting the verdict (harmless error), but whether the trial court who abused its discretion by not striking that juror for reasonable cause deprived the defendant of a substantial right. Harmless error analysis is simply not appropriate where a substantial right is involved, and is indeed logically best suited to the effect of evidence on a verdict, though some procedural errors may also be reviewed in this light. Here, the defendant did not get the trial he was entitled to get. For these reasons, the holding in Morgan must be overturned.

Digested by Scott C. Byrd
Olgin and Byrd

Overruling Morgan v. Commonwealth, 189 S.W.3d 99 (Ky. 2006), SC held Shane was entitled to a new trial because the trial court erred in failing to strike a juror for cause, forcing Defendant to utilize a peremptory strike.

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