by Douglas Ankney

The Supreme Court of Kentucky heldthat a trial court’s ex parte discussion with a juror who was offered a bribe was a structural error because it denied Steven Dale Eversole his right to an impartial jury.

Eversole was tried by jury on charges of first-degree fleeing or evading, first-degree wanton endangerment, reckless driving, and being a first-degree persistent felony offender. During a lunch break, Juror #262 (“Juror”) reported an incident of attempted bribery to the bailiff. The bailiff informed the judge, who in turn called the Juror to the bench. Eversole wasn’t yet present in the courtroom. Even though defense counsel and the Commonwealth were present, neither party was called to the bench or made aware of the conversation.

At the bench, the Juror told the judge that an elderly man with a beard “offered me $50 to change my jury selection.” During the colloquy, the judge learned that the man offering the bribe did not refer to any particular case or request a vote of “guilty” or “not guilty.” The judge praised the Juror for reporting the incident but did not instruct the Juror to disregard the incident, inquire if the Juror was prejudiced by the incident, or admonish the Juror not to discuss the incident with the other jurors. The Juror remained on the jury, which found Eversole guilty on all counts.

Eversole appealed to the Kentucky Supreme Court. Among his appellate issues, Eversole argued that he was deprived of counsel at a critical stage of trial in relation to the trial court’s ex parte discussion with the Juror.

The Supreme Court recognized that the error was unpreserved but observed “it is clear from the record that the Commonwealth, defense counsel, and Eversole were never made aware of the information provided by the [J]uror. Without that information, we would not expect to find a timely objection in the record....” (The error apparently wasn’t discovered until appellate counsel reviewed the video record of the trial.)

The Court observed, “[t]he Sixth Amendment to the Constitution of the United States and Sections Seven and Eleven of the Constitution of the Commonwealth of Kentucky guarantee the right to an impartial jury. Structural error occurs when that right is denied.” Hayes v. Commonwealth, 175 S.W.3d 574 (Ky. 2005). A structural error affects the framework within which the trial proceeded as opposed to a procedural error that occurs during the trial process itself. Commonwealth v. Douglas, 553 S.W.3d 795 (Ky. 2018). As such, a structural error is not subject to harmless error analysis. Shane v. Commonwealth, 243 S.W.3d 336 (Ky. 2007).

“When an ex parte communication relates to some aspect of the trial, the trial judge generally should disclose the communication to counsel for all parties.” Rushen v. Spain, 464 U.S. 114 (1983). This enables counsel for both parties to conduct further inquiry to determine whether “after having heard all of the evidence,” the juror can still “conform his views to the requirements of the law and render a fair and impartial verdict.” Mabe v. Commonwealth, 884 S.W.2d 668 (Ky. 1994). A complete denial of counsel may occur when counsel is prevented from providing assistance to the accused during a critical stage even though counsel may have been physically present. Commonwealth v. Tigue, 459 S.W.3d 372 (Ky. 2015). When a juror hears something he should not, the trial court should not admonish the juror to “forget” it (as that would be impossible), but the court should admonish the juror to “disregard” it. Bartley v. Commonwealth, 400 S.W.3d 714 (Ky. 2013).

In the instant case, the trial court did not inform defense counsel of the attempted bribery. Counsel was not afforded an opportunity to examine the Juror to determine if the Juror believed Eversole was responsible for the attempted bribery or to determine if the Juror felt harassed or had been prejudiced by the incident in some other manner. The trial court did not admonish the Juror to disregard the incident or to give it no consideration during deliberations. Nor did the trial court instruct the Juror not to discuss the incident with other jurors. The record did not reveal the impact the attempted bribery may have had on the Juror or other jurors.

Because the trial court neither informed defense counsel of the attempted bribery nor of the ex parte discussion that followed, the Court held that Eversole was denied representation at a critical stage of the trial. The error was structural because it denied Eversole his right to an impartial jury.

Accordingly, the Court reversed Eversole’s conviction, vacated his sentence, and remanded to the trial court for further proceedings consistent with the opinion. See: Eversole v. Commonwealth, 600 S.W.3d 209 (Ky. 2020).

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