This post examines a recent opinion from the Court of Appeals of Kentucky. Huff v. Commonwealth,
2017 WL 1102994 (2017). The court begins the opinion by explaining that it granted
discretionary review in this case to
address Appellant's contentions that (1) the trial court erred when it failed
to strike a juror for
cause for violating Kentucky Revised Statutes 29A.310(2); and (2) a Facebook post made by the prosecutor in Appellant's case
disparaging the jury trial process in an unrelated matter one week prior to
Appellant's trial created a substantial likelihood of prejudicing the
defendant.
Huff v. Commonwealth,
supra.
This is how the court explains the
second issue:
Approximately one week prior to Huff's
trial, the prosecutor, Perry Arnold, posted the following comment on his Facebook page in regard to a
criminal matter unrelated to Huff's trial:
`I want to thank all the jurors who showed up today and
especially the 7 who had to serve all day long. And considering the evidence
they were allowed to hear, I think they made the right decision in finding the
defendant not guilty. The
man was charged with possession of meth and possession of drug paraphernalia
for having a meth pipe next to where he was sitting in an apartment. The Judge
threw out the meth charge before we even got started on a technicality and that
left us with just the drug paraphernalia charge. What absolutely drives me
crazy is that we can never tell a jury everything that we know about the facts
of the case. I am so glad that I can say Trooper Chad Johnson told the absolute
truth in this case. He could have said the defendant had the meth pipe in his
pocket. He could have said the defendant told him he brought the meth pipe to
the apartment. But Chad told the truth. But we weren't able to tell the whole
truth. There was a co-defendant who told Chad that the defendant today brought
meth pipe with him to the apartment and that he smoked meth with her there. The
Judge wouldn't let us tell the jury that even though the defense was allowed to
bring out other hearsay testimony from the co-defendant which made it sound
like she probably had all the drugs and paraphernalia. My job as a prosecutor
is to see that justice is done and I know that today justice was not done
because we were not allowed to present all the evidence.’
(R. at 409–10).
The Court of Appeals then explained that,
[b]ecause of the post, Huff's defense
counsel moved the court for a change in venue
and requested that Mr. Arnold
recuse himself. The court denied the motion. Defense counsel moved to
individually voir dire the pool, but the request was denied.
However, the court permitted defense counsel to prepare a questionnaire that
addressed the Facebook issue.
The court excused jurors,
based on their answers to the questionnaire, if there was indication that he or
she had either seen the Facebook post
or was a Facebook friend
with Mr. Arnold. During voir dire of the panel, free rein was
given regarding the Facebook post.
During voir dire, the
prosecutor acknowledged and discussed the statements made on Facebook with the potential jurors. Defense counsel provided no
commentary nor did he conduct any questioning on the Facebook issue during voir
dire.
Huff v. Commonwealth,
supra.
In his appeal, Huff argued that
Arnold's Facebook post mocked the jury trial process, which rendered
Huff's trial unfair. Huff contends Mr. Arnold violated Kentucky [Rules of
Professional Conduct for Lawyers] SCR 3.130(3.8);he
relies on the fact that several potential jurors from Huff's venire saw Mr. Arnold's Facebook post.
The trial court made every effort to
remove any member of the venire who may have seen or heard about the Facebook
post. Defense counsel was unable to individually question each remaining member
of the venire, but was able to distribute the questionnaire specifically on the
Facebook issue. It reasonably appears that all potential prejudice created by
Mr. Arnold's post was removed. Additionally, defense counsel chose not to
conduct questioning specific to the Facebook post during voir dire.
Accordingly, Huff has not demonstrated any prejudice to the trial as a result
of Mr. Arnold's Facebook post.
Huff v. Commonwealth,
supra.
The opinion notes that Huff also argued that Arnold’s
Facebook post violated Kentucky rules governing the ethical obligations of
lawyers admitted to practice in that state.
Huff v.
Commonwealth, supra.
The Court of Appeals declined to address that argument, noting that
whether Arnold violated bar rules was “a matter reserved for the Kentucky Bar
Association.”
Huff v. Commonwealth,
supra.
That brings us back to the issue this post examines. As the
opinion explains,
[a]fter the jury was seated and sworn,
the trial court instructed the jurors not to have any contact with any parties,
witnesses, counsel, or anyone associated with the trial. The admonition was
repeated before all recesses and prior to the lunch break. Despite the
instruction, Juror 68 was observed speaking with KSP Sergeant Charles Kelton
during the trial's lunch break. Sergeant Kelton was a witness for the
prosecution at Huff's trial.
Juror 68 was then questioned in
chambers about his conversation with the Sgt. Kelton. Juror 68 admitted to the
conversation, but stated that they were discussing that night's softball game;
Sgt. Kelton and Juror 68 played on a softball team together. Nothing about the
trial was mentioned in their discussion. The relationship between Sgt. Kelton
and Juror 68 was previously disclosed and discussed during voir dire.
Defense counsel moved the court to dismiss Juror 68 from the panel and proceed
with an alternate. The trial court denied the motion stating `the standard is
whether it's prejudicial to the trial in and of itself.’ . . .
The case proceeded, and the jury found
Huff guilty on all
charges and recommended the maximum sentence. The district court entered a
judgment against Huff in accordance with the jury's verdict and recommendation.
Huff sought review by the circuit court on the issues relating to the
prosecutor's and Juror 68's conduct. The circuit court affirmed the district
court. This Court granted discretionary review.
Huff v. Commonwealth,
supra.
The Court of Appeals found that
Juror 68 was questioned in chambers
regarding the interaction with Sgt. Kelton after the admonishment. Based on
Juror 68's responses, the trial court found the encounter to be
non-prejudicial. It was certainly within the trial court's authority to find
otherwise and replace the juror with the alternate. Trial courts are vested
with considerable discretion when making prejudice determinations.
Huff v. Commonwealth,
supra. The court therefore found that “[a]ccordingly,
we discern no abuse of discretion in the trial court's determination that Juror
68's misconduct was non-prejudicial.” Huff
v. Commonwealth, supra.
The Court of Appeals also declined to accept Huff’s argument
about the prosecutor’s Facebook post, explaining that
The trial court made every effort to
remove any member of the venire who may have seen or heard about the Facebook
post. Defense counsel was unable to individually question each remaining member
of the venire, but was able to distribute the questionnaire specifically on the
Facebook issue. It reasonably appears that all potential prejudice created by
Mr. Arnold's post was removed. Additionally, defense counsel chose not to conduct
questioning specific to the Facebook post during voir dire.
Accordingly, Huff has not demonstrated any prejudice to the trial as a result
of Mr. Arnold's Facebook post.
Huff v. Commonwealth,
supra.
The Court of Appeals therefore affirmed Huff’s conviction. Huff v. Commonwealth, supra.
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