Monday, April 17, 2017

Operating a Motor Vehicle without a License, The Prosecutor and the Facebook Pos

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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