BRIAN NORMAN v. COMMONWEALTH OF KENTUCKY
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RENDERED: July 2, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-000947-MR
BRIAN NORMAN
APPELLANT
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE CHARLES E. LOWE, JR., JUDGE
ACTION NO. 96-CR-000084
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, KNOX, AND SCHRODER, JUDGES.
JOHNSON, JUDGE: Brian Norman (Norman) has appealed from the
judgment of the Pike Circuit Court entered on April 8, 1997,
which convicted him of the offense of unauthorized use of a motor
vehicle (Kentucky Revised Statutes (KRS) 514.100), and which
sentenced him to serve a sentence of twelve months’ confinement
in the Pike County Jail and pay a fine of $500.00.
We affirm.
The events which led to Norman’s arrest and conviction
occurred on the evening of December 14, 1995.
Iva Jane Hurley
(Hurley) had taken several items to an auction in Pikeville to
sell.
While she was busy selling these items, Hurley learned
that her car was blocking traffic outside the auction house.
Although she was not well acquainted with Norman, Hurley had seen
him at the auction on previous occasions and asked him to move
her car for her.
He agreed.
Instead of merely moving the car out of the way of
other traffic, Norman, accompanied by his older brother, Jimmy
Norman (Jimmy), drove the car away from the auction house.
He
had not gone far when he was observed on the Pikeville by-pass
driving at a high rate of speed without the vehicle’s headlights
on.
Sergeant Larry Sanders of the Pikeville Police Department
turned his emergency lights on and attempted to pull Norman over,
but Norman did not stop.
After a short chase, Norman stopped the
car and he and Jimmy exited the vehicle.
The two men hid under
bushes near the jail before they were eventually apprehended.
Norman was charged with the offense of theft by unlawful
taking over $300.00 and was tried on April 2, 1997.
On the day
before his trial, Norman sought a continuance on the basis that
the jury would be chosen from the same panel from which a jury
had been selected the week before in Jimmy’s trial on unrelated
criminal charges.1
The motion was denied.
On the morning of trial, Norman renewed his motion for a
continuance and also moved to strike for cause all jurors from
the panel who actually served on his brother’s criminal case.
These motion were also denied.
When, during voir dire, a venire
person asked the name of Norman’s mother, Norman’s counsel, Hon.
1
Jimmy was scheduled to be tried for the crime of receiving
stolen property, which charges had been pending since 1993. On
the first day of Jimmy’s trial, the trial court declared a
mistrial when, during lunch, Jimmy was escorted, in handcuffs, in
the presence of several jurors.
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John Nelson (Attorney Nelson), insisted that his client could not
get a fair trial with the same panel.
Counsel asked for a
mistrial, stating as follows:
Attorney Nelson: Your honor, I think at this
time, I need to make a motion for mistrial on
the basis of the grounds I raised in my
motion to continue. One of the jurors has
asked me who this boy’s mother was and I am
forced to ask her to approach the bench and
you know, Brian Norman’s mother is Connie
Norman and his brother was on trial last week
before the same jury panel. They were
identified before this same jury panel as
Jimmy Norman’s parents and you know, Brian is
Jimmy’s brother. They look alike. He’s on
trial a week later for a similar type of
charge to the one Jimmy was on trial for last
week. I believe that Brian cannot get a fair
trial based upon what happened last week and
based upon the issues I raised in my motion
to continue.
Judge Lowe: Well, if she said she knew the
boy then I might be inclined to agree with
you, but as far as she’s concerned he’s a
stranger.
Attorney Nelson: Well, I’m not so much
concerned about her answer as that when these
jurors make inquiries about who his mother is
and we have to approach the bench for that,
that invites speculation by the jury and the
last case was tried so recent in time and I
can’t very well ask each of these jurors
whether they know about this family
relationship between Brian and Jimmy or Brian
and his parents for obvious reasons.
Judge Lowe: Well, John, there’d be a lot of
cases I couldn’t try every term if I couldn’t
try relatives. We try cousins and even
brothers during the same term of court. It’s
unfortunate, but I don’t know how to get
around it. I don’t know that we can go to a
rule that we can’t try anybody that’s related
to anybody else during the same term of
court. If that’s what the Court of Appeals
tells me to do, I’ll do it, but right now I
don’t think we’ve got such a law, so your
motion’s overruled.
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During the trial, the Commonwealth agreed with Norman
that the identity of Norman’s companion on the night of the
alleged crime would not be revealed to the jury.
At the close of
the evidence, the trial court instructed the jury on theft by
unlawful taking over $300, and the lesser included offense,
unauthorized use of a motor vehicle.
As stated earlier, the jury
returned a verdict of guilty on the misdemeanor offense and
recommended the maximum penalty, confinement in the county jail
for twelve months and payment of a fine of $500.00.
This appeal
followed.
The sole issue raised by Norman concerns the trial
court’s failure to grant his motions for a continuance and to
strike for cause those jurors who had actually served on the jury
during Jimmy’s trial the previous week.
Norman argues that he
was deprived of his federal constitutional right to a trial by an
impartial and unbiased jury by the trial court’s rulings.
While
we agree that a criminal defendant’s right to an impartial jury
is fundamental, see Smith v. Commonwealth, Ky., 734 S.W.2d 437,
455 (1987), we disagree with Norman’s argument that his rights in
this regard were infringed by the rulings of the trial court.
Kentucky Rules of Criminal Procedure (RCr) 9.36(1),
which concerns when it is appropriate to remove a juror for
cause, states that “[w]hen there is reasonable ground to believe
that a prospective juror cannot render a fair and impartial
verdict on the evidence, he shall be excused as not qualified.”
“This rule invests discretion in the trial court to detect and
determine partiality and bias from particular circumstances or
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relationships between the juror and the accused or the case.”
Bowling v. Commonwealth, Ky., 942 S.W.2d 293, 299 (1997).
Absent
an abuse of that discretion, this Court will not disturb the
trial court’s decision.
Mabe v. Commonwealth, Ky., 884 S.W.2d
668 (1994).
Norman argues that the jury panel that tried him “was
biased because some of the venre (sic) persons had prior
knowledge of the fact[s] in the case.”
He relies on Gapoian v.
Commonwealth, 302 Ky. 867, 196 S.W.2d 744 (1946), a case in which
a robbery conviction was reversed because the trial court refused
to strike for cause potential jurors who had previously tried the
appellant’s co-defendant.
The trial court’s refusal to grant the
appellant’s motion in Gapoian was characterized as “manifest
error.”
Id. at 745.
However, the facts in the instant case are
significantly distinguishable from those in Gapoian.
Specifically, Jimmy was not tried the week prior to Norman for
his involvement in the events of December 14, 1995, and the
unlawful use of Hurley’s automobile.
Accordingly, even if the
jurors made a connection between Norman and his brother, Jimmy,
based on their last names or similar physical characteristics,
the potential jurors in this case did not actually serve as
jurors in a prior trial involving the same offense.
In Gapoian,
the jurors were involved with the trial and sentencing of the
appellant’s co-defendant on charges stemming from the same
robbery as the appellant.
As Bowling, supra, states “[b]ias is not automatically
implied even where a juror has heard evidence at a previous trial
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of the same case.”
Id. (citation omitted).
Despite Norman’s
argument to the contrary, there is no evidence in this record
that the jurors had any prior knowledge of the facts of his case.
Thus, we are not persuaded that the trial court abused its
discretion by refusing to strike potential jurors for cause
merely because of their participation in the earlier aborted
trial of Jimmy on unrelated charges.
Next, Norman insists that the trial court abused its
discretion in refusing to grant his motion for a continuance.
Again, this is a matter left to the sound discretion of the trial
court.
A denial of a request for a continuance will not be
disturbed “unless such discretion was plainly abused or resulted
in a manifest injustice.”
Lear v. Commonwealth, Ky., 884 S.W.2d
657, 659 (1994)(citation omitted).
“In order to obtain a
continuance, a criminal defendant must show sufficient cause.”
Dishman v. Commonwealth, Ky., 906 S.W.2d 335, 339 (1995)
(citation omitted); RCr 9.04.
Norman insists that he was denied “substantial justice”
by the fact that he was tried by the same jury “that convicted
his brother one week prior to [his] trial.”
As noted earlier,
Norman’s brother was not convicted of any crime prior to Norman’s
trial, nor were the issues involved in the earlier trial the same
as those for the jury’s consideration in Norman’s trial.
Thus,
any potential prejudice created by the nearness in time of two
unrelated trials of related defendants was lessened by the
parties’ agreement that the jury not be informed of the
relationship between Norman and Jimmy.
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Further, while not argued
by the parties, we note that any error would have been harmless
since the jury accepted Norman’s defense.
For these reasons, we
do not believe the trial court’s denial of Norman’s request for a
continuance warrants a reversal of his conviction.
Accordingly, the judgment of the Pike Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Hon. Ann T. Eblen
Louisville, KY
Hon. A. B. Chandler, III
Attorney General of Kentucky
Frankfort, KY
Hon. Dana Todd
Assistant Attorney General
Frankfort, KY
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