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Kentucky Supreme Court: Trial Court Abused Discretion by ‘Rehabilitating’ Juror Who Indicated Could Not Be Impartial and Failing to Strike Juror

by David M. Reutter

The Supreme Court of Kentucky concluded a trial court abused its discretion by failing to find a juror had evinced “a reasonable ground to believe he or she will be partial.” The Court reversed the defendant’s conviction and remanded for a new trial.

Before the Court was the appeal of Larry Moulder. He appealed “from the judgment and sentence of the Barren Circuit Court. Moulder was convicted by a jury of rape in the first-degree, victim under twelve; sodomy in the first-degree, victim under twelve; sexual abuse in the first-degree, victim under twelve; and incest. He was sentenced to life in prison.”

On appeal, Moulder argued that “Juror A.R. should have been struck for cause; and second, several errors regarding the testimony of the victim, K.R.” The Kentucky Supreme Court concluded that Juror A.R. should have been struck for cause and reversed. It declined to discuss the other alleged errors.

“During voir dire below, the Commonwealth asked the entire venire if anyone was uncomfortable with pornography. Juror A.R. made some kind of physical indication, and the trial court had her come before the bench, flanked by counsel for both the Commonwealth and the defense. At this point, an approximately ten-minute colloquy occurred,” the Court recounted. “[A]lmost exactly five minutes after it began, Juror A.R. ha[d] not once given a firm, unequivocal answer that she could be fair and impartial. She ha[d] been unequivocally equivocal on that question. The only time she expressed any firm degree of certainty was her answers to defense counsel that it would be hard for her to sit on the jury because there is a child involved and that she believed it would be hard for her to make an objective decision because a child is involved,” the Court summarized.

The Court stated that Juror A.R. did not exhibit “a failure to grasp a legal concept—it was an honest answer that she was not sure she could be impartial because a child was involved. She was directly asked if that would make it hard for her to sit on the jury and hard for her to render an objective decision and, to these questions, she gave the only unequivocal responses: that she believed it would be.”

“When there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence, that juror shall be excused as not qualified.” Kentucky Rules of Criminal Procedure (“RCr”) 9.36(1). RCr 9.36(1) “is the only standard for determining whether a juror should be stricken for cause.” Sturgeon v. Commonwealth, 521 S.W.3d 189 (Ky. 2017).

“When there is uncertainty about the impartiality of a juror, that juror should be stricken. Id. If the questions regarding a juror’s impartiality cannot be resolved “with certainty,” that juror must be stricken. Id. In short, “if a juror falls in a gray area, he should be stricken.” Wallace v. Commonwealth, 478 S.W.3d 291 (Ky. 2015).

Turning to the present case, the Court stated that at best, Juror A.R.’s answers had placed her within the gray zone. “[T]hat is not good enough.” the Court declared. “After the first five minutes of questioning, Juror A.R. had evinced a reasonable ground to believe she could not be impartial,” determined the Court.

The remainder of the colloquy involved debate amongst counsel and the trial court. In the end, the trial court made clear to Juror A.R. what he needed to hear in order not to disqualify her, which was inappropriate, according to the Court. “The simple fact is Juror A.R. never made an affirmative declaration of impartiality until after the trial court announced in front of her that she would not be seated on the jury, and she could not be seated unless he heard her make such affirmative declarations,” the Court said. “This is textbook rehabilitation; the search for “magic words” that we have rejected time and again.” Gabbard v. Commonwealth, 297 S.W.3d 844 (Ky. 2009). The Court explained: “We have several times declared that rehabilitation of a juror who has given a reasonable ground to doubt their impartiality is not merely inappropriate, but impossible.” Thus, the Court ruled that the trial court’s failure to strike Juror A.R. was an abuse of discretion.

In reversing Moulder’s conditions, the Court stated, “It is unfortunate that the victim in this case may yet again have to endure the vicissitudes of a trial. It is not our duty, however, to save convictions when they cannot be saved, but to uphold the law. In a similar vein, trial courts would do well to remember that they cannot save a juror who has evinced a reasonable ground to believe he or she will be partial.”

Accordingly, the Court reversed the judgment and sentence of the Barren Circuit Court and remanded for further proceedings consistent with its opinion. See: Moulder v. Commonwealth, 2023 Ky. LEXIS 300 (2023).  

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Moulder v. Commonwealth



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