COM. V. WOOD
CRIMINAL: RCR 11.42 re juror misconduct and ineffective assistance of counsel
PANEL: VANMETER, PRESIDING; STUMBO, PAISLEY CONCUR
DATE RENDERED: 6/22/2007
CA affirmed Circuit Court’s order pursuant to RCr 11.42 granting Wood a new trial based upon evidence that the jurors consulted a dictionary during their deliberations for the definition of the word “rape”. TC did not err by hearing the juror’s testimony about the alleged misconduct. The jury’s use of a dictionary falls into the other category described in Doan v. Brigano, 237 F.3d 722 (6th Cir. 2001), i.e., it is an “overt act” about which a court may receive testimony in order to ensure a defendant is given a fair trial. As to the merits of the juror’s testimony regarding the alleged misconduct, Kentucky courts have recognized that “[t]here is a time and a place for all things. Permitting a jury to take a dictionary to the jury room is neither the time nor the place.” Cole v. Commonwealth, 553 S.W.2d 468, 471 (Ky. 1977). Nevertheless, a jury’s use of a dictionary in the jury room is not reversible error per se. Rather, a defendant must show that he was prejudiced by the conduct. In this matter, Wood clearly was prejudiced by the juror misconduct. The jury foreperson testified that during deliberations, the jurors were confused as to the “description” of rape, specifically as to whether it required penetration. So the jurors would be on the same “platform,” they consulted a dictionary for the definition of “rape” and found that according to such definition, rape could occur without ejaculation or penetration. It is clear, however, that penetration is a required element in each of Kentucky’s rape offenses. See KRS 510.040 – 510.060; KRS 510.010(8). Since the jury here was instructed not only as to first-degree rape, but also as to first-degree sexual assault which only requires “sexual contact” and thus no penetration, it is clear that Wood’s substantial rights were prejudiced.