LEONARD FITZGERALD v. COMMONWEALTH OF KENTUCKY
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RENDERED:
OCTOBER 22, 2004; 2:00 p.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002216-DG
LEONARD FITZGERALD
v.
APPELLANT
ON DISCRETIONARY REVIEW FROM MERCER CIRCUIT COURT
HONORABLE DARREN W. PECKLER, JUDGE
ACTION NO. 03-XX-00002
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, GUIDUGLI AND McANULTY, JUDGES.
GUIDUGLI, JUDGE: This Court granted Leonard Fitzgerald’s motion
for discretionary review in order to address his argument
concerning the minimal number of jurors to be seated in a trial
and the Commonwealth’s waiver of a peremptory challenge.
Having
thoroughly reviewed the parties’ arguments, applicable case law,
criminal rules and statutory law, we affirm.
The facts are not in dispute.
Fitzgerald had been
charged with operating a motor vehicle while under the
influence, third offense, with aggravating circumstances.1
He
pled not guilty and a jury trial was scheduled for May 23, 2003.
On that day, the clerk had summoned twenty-seven individuals for
jury duty.
Six prospective jurors had previously been excused
for various reasons, such as illness, employment or vacation.
Twenty-one prospective jurors were anticipated to appear and
serve on Fitzgerald’s jury, but only twelve actually reported
for jury duty that day.
Without objection, the trial started.
During voir dire, one of the twelve jurors was excused
for cause leaving only eleven prospective jurors.
At this point
Fitzgerald’s counsel motioned the court to release the jury in
that with only eleven jurors remaining, a jury of six members
could not be empanelled.
(If each party took its three
peremptory challenges it was entitled to, then only five jurors
would remain).
To this motion the Commonwealth responded that
it would waive a peremptory challenge and thus there was a
sufficient number of jurors still available to constitute a sixmember jury.
The trial court accepted the Commonwealth’s waiver
and denied Fitzgerald’s motion.
The jury trial continued and
Fitzgerald was found guilty as charged and sentenced to twelve
months in the county jail plus fines and community service.
Fitzgerald appealed his conviction to the Mercer
Circuit Court.
1
In a well-reasoned order entered September 18,
KRS 189A.010(5)(c).
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2003, the circuit court affirmed the conviction.
Judge Darren
W. Peckler, in affirming the district court, held:
Appellant’s argument concerns due
process with regard to the minimum number of
jurors required from which to select a jury.
The issue presented in the instant case
appears to be one of first impression in
Kentucky, and as such, this Court is without
precedent upon which to rely. It is a wellestablished legal principle that criminal
defendants are entitled to due process.
This principle is, however, intended to be
interpreted liberally by the legislature and
the court. (Patterson v. New York) 432 US
197. Under this liberal interpretation, the
Court finds no violation of substantive due
process.
Appellant argues that the trial court
erred when it allowed appellee to waive one
of its peremptory challenges. Under
Kentucky statute, RCr 9.40 states that “the
Commonwealth is entitled to (3) peremptory
challenges”, but nowhere does the statute
require that the Commonwealth utilize said
challenges. In the instant case, appellee
chose to forego one of its challenges in the
interest of allowing the trial to go forward
as scheduled. There is nothing in Kentucky
statutes that would preclude that decision.
Appellant further argues that the court
erred in refusing to excuse the elevenmember jury panel, maintaining that eleven
people is too small a jury panel. KRS
29A.280(1) states that “Juries for all
trials in District Court shall be composed
of six (6) persons”. It does not however,
mandate a minimum number of jurors that are
required to be present in order to choose a
jury. As long as the jury is comprised of
six persons, the mandates of the statute
have been met. Appellant himself concedes
that previous minimums for jury pools set
out under KRS 29A.060 are no longer
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applicable under current law, and asks the
Court to assign an arbitrary minimum. This
court is not so inclined.
The cases cited by appellant are not on
point. They reference situations where
defendants were forced to use peremptory
challenges due to the court’s failure to
strike for cause. Such is not the case
here. Appellant’s substantive due process
rights were not denied in the instant case.
It fell within the discretion of the trial
court judge to allow the Commonwealth to
waive its peremptory challenge. The
appellant’s argument is without merit.
For the above-stated reasons, IT IS
HEREBY ORDERED AND ADJUDGED that the
judgment of the District Court is AFFIRMED.
This order is FINAL and APPEALABLE.
Fitzgerald timely filed a motion for discretionary review which
was granted by this Court on January 9, 2004.
On discretionary review, Fitzgerald continues to
contend that his constitutional rights were violated when too
few jurors were available to seat a jury without the
Commonwealth waiving one of its peremptory challenges and that
the trial court erred by permitting the Commonwealth to waive
one of its peremptory challenges.
Fitzgerald relies on Thomas
v. Commonwealth, Ky., 864 S.W.2d 252 (1993).
In Thomas, the
Supreme Court of Kentucky held that “[t]he rules specifying the
number of peremptory challenges are not mere technicalities,
they are substantial rights and are to be fully enforced.”
agree with this statement.
We
However, Fitzgerald was not denied
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his mandated three peremptory strikes.
See RCr 9.40.
He
received the required peremptory strikes and exercised them
accordingly.
He can show no violation of his rights nor any
prejudice caused him.
Instead, he contends the Commonwealth’s
peremptory challenge waiver somehow affected his rights.
He can
point to no rule, statutory right or case law that supports his
position.
The cases Fitzgerald cite deal with deviation in the
rules or statutes on how a jury is selected.
In Allen v.
Commonwealth, Ky.App., 596 S.W.2d 21, 22 (1979), this Court
stated:
On reflection as to how disparate procedures
for jury selection might affect our whole
system of justice, we have decided that it
is in the interest of justice that the
statutes and rules for jury selection be
closely followed, and that no substantial
deviation be allowed, regardless of
prejudice. The matter of jury selection is
too important a part of our judicial system
to permit variations, from one court to
another, in compliance with controlling
statutes.
Had such a procedural or statutory violation occurred, we might
agree with his contention.
But Fitzgerald has not shown any
procedural violation or deviation from the rules and statutes.
In fact, there is a recent Supreme Court of Kentucky decision
that while not published addresses the issue of the Commonwealth
waiving a peremptory challenge.2
2
Although that case is not
Wagers v. Commonwealth, 2001-SC-000807-MR (rendered June 12, 2003).
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controlling law, its rationale is persuasive.
That case is
similar to this one in that a jury was empanelled from only
twenty-six available venire persons, rather than the twentyeight the defendant contended was required by RCr 9.40 and KRS
29A.060.3
When the trial court realized this situation, it
requested the Commonwealth to give up two of its peremptory
challenges.
objected.
The Commonwealth agreed but defense counsel
On appeal, the Supreme Court of Kentucky determined
that to forego peremptory strikes does not rise to the level of
deviation that would deprive a defendant of a jury selected at
random as required by Robertson v. Commonwealth, Ky., 597 S.W.2d
864 (1980).
The Court also held that minor errors in jury
selection is not cause to reverse a judgment absence a showing
of prejudice citing the Robertson case.
Finally, the Court held
that the trial court had substantially complied with RCr 9.30
and KRS 29A.060 governing the jury selection process and thus,
no error occurred.
While the various rules and cases cited by Fitzgerald
do require strict compliance in procedural matters related to
juror selection, he fails to point out any such violation in the
jury selection in this case.
It should also be noted that any
challenge to the juror panel must be made prior to the
3
Prior to July 15, 2002, KRS 29A.060 required a specific number of jurors be
present in circuit and district court before a jury trial could begin. That
provision has been removed by legislation effective July 15, 2002.
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examination of the jurors.
RCr 9.34.
Fitzgerald, if he
believed he was actually prejudiced, should have objected to
only twelve jurors reporting for jury duty prior to the start of
the trial.
Had a timely motion occurred, the trial court’s
decision would then be reviewed under an abuse of discretion
standard.
However, based upon the recent legislative change in
KRS 29A.060 and the holding in the recent Supreme Court case, it
is unlikely a different result would be rendered.
For the foregoing reasons, the order of the Mercer
Circuit Court affirming the district court’s judgment and
sentence is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Astrida Liana Lemkins
Department of Public Advocacy
Frankfort, KY
Gregory D. Stumbo
Attorney General
Natalie Lynn Lewellen
Assistant Attorney General
Frankfort, KY
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