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After a jury trial, Defendant was convicted of murder and sentenced to twenty years in prison. The Supreme Court affirmed, holding (1) the post-trial revelation that the victim's wife and one of the jurors were Facebook friends did not establish grounds for a new trial, as the juror did not manifestly give a false answer regarding her Facebook relationship with the victim's wife, and merely being friends on Facebook does not, per se, establish a close relationship from which partiality on the part of a juror may reasonably be presumed; (2) Appellant's argument that the jury improperly considered penalty phase issues during the guilt phase deliberations was without merit; and (3) the trial court's exclusion of certain evidence did not afford Appellant grounds upon which his conviction should be reversed.Receive FREE Daily Opinion Summaries by Email
RENDERED: JUNE 20, 2013
TO BE PUBLISHED
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JEFFREY D. MCGAHA
ON APPEAL FROM ADAIR CIRCUIT COURT
HONORABLE JAMES L. BOWLING, JR., JUDGE
COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE VENTERS
Appellant, Jeffrey D. McGaha, appeals from a judgment of the Adair
Circuit Court convicting him of murder and sentencing him to twenty years'
imprisonment. Appellant makes these arguments in support of reversing his
conviction: (1) one of the jurors failed to disclose during veil- dire that she was a
Facebook "friend" of the victim's wife; (2) the jury improperly considered
penalty issues during the guilt phase deliberations; and (3) that on four
separate occasions, the trial court improperly excluded evidence relevant to
Appellant's belief that his use of force in self-defense was necessary. For the
reasons stated below, we affirm the Judgment of the Adair Circuit Court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant and the victim, Mike Cowan, were neighbors in a rural part of
Adair County. The evidence presented at trial by the Commonwealth indicated
that the relationship between Appellant and Cowan was marred by a series of
disputes. The most recent difficulty was over a light on Appellant's storage
building that shone onto Cowan's property and annoyed him. Cowan retaliated
by shining spotlights at Appellant's residence. On the evening before the fatal
incident, Appellant complained to the police about the spotlights. When police
officers arrived at the scene in response to that complaint, Cowan and his wife
became belligerent. They were arrested and taken to jail.
The following afternoon, after his release from jail, Cowan visited a
neighbor's residence on his ATV. As Cowan returned home, Appellant, driving
in his car, saw him and steered directly into his ATV without braking. The
impact knocked Cowan off the ATV. As a result of the blow from Appellant's
vehicle, Cowan suffered severe blunt force trauma which alone would have
been fatal. After the collision, however, while Cowan was lying on the ground,
Appellant approached him and delivered a second fatal injury by shooting him
in the head with a shotgun.
Appellant was indicted for murder. At trial, Appellant admitted that he
killed Cowan, but claimed that he was acting in self-defense. In support of that
claim, Appellant presented evidence of Cowan's threats, harassment, and
intimidation directed toward Appellant and members of his household.
Appellant also alleged that shortly before the fatal incident, Cowan had pointed
a gun at Appellant and gestured, as if he was pretending to shoot at Appellant.
Appellant saw Cowan place the gun on his ATV, and ride it over to the
neighbor's residence. Appellant testified that he followed Cowan to speak with
him, and that he took his shotgun for protection. Appellant said that when he
encountered Cowan on his ATV, Cowan aimed his gun at Appellant. Fearing
that he would be shot, Appellant drove his car into Cowan's ATV. After the
collision, Appellant claims he got out of his car with his shotgun, and
demanded that Cowan show his hands. According to Appellant, Cowan then
said, "I'm still going to fucking kill you." Believing that Cowan was reaching for
his gun, Appellant shot him in the head.
The jury, rejecting Appellant's self-defense claim, convicted him of
murder and recommended a sentence of twenty years' imprisonment. The trial
court entered final judgment consistent with the jury's verdict and sentencing
recommendation. Appellant's post-judgment motions for judgment
notwithstanding the verdict and for a new trial were denied. This appeal
II. THE FAILURE OF A JUROR TO DISCLOSE SOCIAL MEDIA
RELATIONSHIP WITH THE VICTIM'S WIFE
Appellant first contends that he is entitled to a new trial because one of
the jurors who served on his trial, "Juror 234", failed to disclose during voir
dire that she was a Facebook "friend" of the victim's wife, Charlene Cowan.
Before the voir dire examination began, the trial court instructed the members
of the jury panel who were not among the first panel of thirty-two jurors
selected for examination to remain in the courtroom, and listen to the
questions being asked of the prospective jurors so that they could later respond
to those same questions in the event they were added to the panel. Juror 234
was not among the first set of thirty-two potential jurors seated for the
examination at Appellant's trial. About four hours into the jury selection
process and after a lunch break, Juror 234 was called to join the panel
undergoing the voir dire examination.
After being seated among the jury panel, Juror 234 was directly asked by
the trial court if she was related to anyone involved in the case. She responded
that she was not. The following discussion then occurred:
Trial Court: Do you know any of these folks?
Juror 234: I know some of the Cowan family, not close but I do know
Trial Court: How would you describe your relationship to them?
The juror also disclosed that she worked with the victim's nephew, and
in response to the trial court's inquiry about whether she had heard about the
case, she stated, "just [through] the news." She also said that she had no
opinion about the case. During questioning by the prosecutor, Juror 234
disclosed that she had worked with the victim's former wife several years before
the trial. The prosecutor asked if this would cause any positive or negative
feelings about the victim, and the juror stated that it would not.
The following exchange occurred during defense counsel's voir dire
examination of Juror 234:
Defense Counsel: You've heard all the questions I've asked. Has
anything that I've asked, would you have given any different answer than
anybody, the other members of the panel?
Defense Counsel: You have no opinion about this case whatsoever;
you've got a clean slate what we're talking about?
As clean as it can be, I think.
Defense Counsel: Thank you.
No one asked Juror 234 about any social media relationship she may
have with any of the participants in the case. Juror 234 was not challenged for
cause by either side, and she was eventually seated on the jury to try the case.
After the trial, Appellant learned that Charlene Cowan was one of Juror
234's 629 Facebook "friends." Appellant, in support of his motion for a new
trial, asserted the juror's failure to disclose this social media association. The
trial court denied Appellant's motion.
On appeal, Appellant argues that having Charlene Cowan, the victim's
wife, as a Facebook friend "rendered [Juror 234] an impermissible member of
the jury panel." Appellant contends that if Juror 234 had disclosed that
association with Mrs. Cowan, he would have moved to strike her for cause, and
if she was not stricken for cause, then he would have used a peremptory strike
against her. He describes Juror 234's failure to disclose the relationship as a
"failure to uphold her duty to be forthcoming and truthful" and as a "clear
instance of juror misconduct."
"As a general rule, anything which is good cause for challenge for
disqualification of a prospective juror is deemed good cause for a new trial if
not known or discoverable to the defendant or his counsel before the verdict
and they were misled by a false answer on voir dire." Combs v. Commonwealth,
356 S.W.2d 761, 764 (Ky. 1962). 1 "Basically, the consideration is whether the
rights of the accused have probably been prejudiced by concealed impartiality
[sic]." Id. Thus, if Appellant is correct in his argument that Juror 234
improperly failed to disclose a disqualifying relationship, then his motion for a
new trial based upon the post-trial discovery of that disqualification would be
In support of his claim that the trial court erred by failing to grant a new
trial, Appellant relies primarily upon the initial voir dire questions directed to
the original thirty-two members of the venire concerning whether they knew
Appellant, the victim, or their families. None of those questions specifically
inquired about social media relationships. However, as shown by the voir dire
discussion transcribed above, Juror 234 was specifically asked if she knew
"any of these folks." A simple "yes" or "no" would have been a properly
responsive answer, but Juror 234 forthrightly disclosed that she knew "some of
the Cowan family" and that her association with them was "casual."
Although succinct, her answers were responsive to the questions and
truthful. We see in the record no indication that Juror 234 was attempting to
See Johnson v.
1 This has long been the rule in this jurisdiction.
Commonwealth, 223 S.W.2d 741, 743 (Ky. 1949) ("This statute [now-repealed by KRS
29A.280] makes it necessary for a party to inform himself as to the qualifications of
jurors before the jury is sworn in order that he may exercise his right of challenge,
general or peremptory, but the statute does not apply where he has been misled by a
false answer of the juror on the latter's voir dire, and he has thus been deprived of his
right of challenge."); Polk v. Commonwealth, 574 S.W.2d 335, 336-37 (Ky. App. 1978)
("When bias is apparent or known before trial, and a juror is permitted to remain, the
objection to the juror is waived. When such facts are not known and would not
reasonably have been determined prior to the selection of the jury, no waiver is
involved, and an objection may be raised upon discovery of the bias.").
conceal the social media relationship, or that she was in any way deceptive.
Moreover, by her acknowledgment that she casually knew some of the Cowan
family, Appellant was given an unfettered invitation to inquire further. He
could have asked: "Which members of the Cowan family do you know?" Then,
he could have followed up with other questions allowing him to discover the
depth and scope of her acquaintances within the Cowan family. But, Appellant
declined to do so.
While the parties have the right to assume that the answers given by
potential jurors are complete, candid and truthful, we cannot expect potential
jurors to appreciate the nuances of potentially disqualifying relationships, and
volunteer answers to the questions that counsel failed to ask. Juror 234
manifestly did not give a false answer regarding her Facebook relationship with
the victim's wife. If her casual relationship with some members of the Cowan
family was cause for concern for any party, it was incumbent upon that party,
not the juror, to delve more deeply into the matter. We see no misconduct on
the part of Juror 234.
Moreover, the post-trial revelation that Charlene Cowan and Juror 234
were Facebook friends does not establish grounds for a new trial. It is now
common knowledge that merely being friends on Facebook does not, per se,
establish a close relationship from which bias or partiality on the part of a
juror may reasonably be presumed. See Sluss v. Commonwealth, 381 S.W.3d
215, 222-23 (Ky. 2012). This principle is well illustrated in this case. Here, an
attachment to the supplemental motion for a new trial that Appellant filed with
the trial court discloses that Juror 234 had, at the time of the trial, 629
"friends" on Facebook. She could not possibly have had a disqualifying
relationship with each one of them. As we held in Sluss, "[F]riendships' on
Facebook and other similar social networking websites do not necessarily carry
the same weight as true friendships or relationships in the community, which
are generally the concern during voir dire."
Id. at 222. Therefore, no
presumption arises about the nature of the relationship between a juror and
another person with an interest in the litigation simply from their status as
Facebook friends. "As with every other instance where a juror knows or is
acquainted with someone closely tied to a case, it is the extent of the
interaction and the scope of the relationship that is the relevant inquiry."
223. We note that in Sluss, where the jurors manifestly failed to give truthful
responses regarding their social media connections to the victim's mother, we
held the defendant was entitled to a retrospective evidentiary hearing to
determine whether he was prejudiced by the jurors' failure to disclose a social
media relationship. Id. at 220-21, 228-29. The instant case is easily
distinguishable from Sluss because Juror 234's answers were truthful.
If Juror 234's acquaintance with the victim's wife, from Facebook or
otherwise, was such that it required disqualification of the juror, "[i]t [was]
incumbent upon the party claiming bias or partiality to prove the point."
v. Commonwealth, 574 S.W.2d 335, 337 (Ky. App. 1978). We will not simply
speculate that the juror was biased. It was Appellant's responsibility to present
facts, if they exist, casting doubt about the impartiality of the juror "sufficient
to undermine the integrity of the verdict."
Sluss, 381 S.W.3d at 225 (quoting
Gordon v. Commonwealth, 916 S.W.2d 176, 179 (Ky. 1995)).
In summary, Appellant has failed to meet his heavy burden for
disturbing the jury verdict, and the trial court did not abuse its discretion by
denying Appellant's motion for a new trial based upon Juror 234's failure to
disclose her social media relationships. Appellant has failed to establish any
partiality or bias whatsoever as a result of the social media relationship.
III. CONSIDERATION OF PENALTY ISSUES DURING GUILT PHASE
Appellant next contends that he is entitled to a reversal because the jury
impermissibly considered sentencing phase issues during its guilt phase
deliberations. This allegation is based upon a note sent by the jury to the trial
court during the middle of its guilt phase deliberations. The note read, "Who
decides the length of the sentence - the jury or the judge?" In response, rather
than specifically answering the question, the trial court advised the jury that
the determination of "guilty" or "not guilty" was the only matter to be concerned
with at that point; that the jury should not concern itself with a possible
penalty; and that the jury should follow its instructions.
To assume from the question alone that the jury was considering the
applicable penalties during the guilt phase deliberation is pure speculation. At
most we can assume no more than what the question itself revealed: the jury,
or some member or members of the jury, wondered who would fix the penalty.
Just before the jury retired for its guilt phase deliberations, defense counsel
told them: "This is an important case. If you find [Appellant] guilty then we've
got to go through the penalty phase. His life is in the balance here. His life is
in your hands." Given defense counsel's statements, it is not surprising that
the jury would wonder about the process of setting a sentence. There is
nothing improper about the jury seeking clarification about what it is required
The note was an innocuous question concerning the jury's function in
the trial court proceedings and does not compel a presumption that they were
factoring in improper penalty phase concerns during their guilt phase
deliberations. In any event, the trial court gave a perfectly correct response to
the jury's inquiry by making it abundantly clear that the jury should not be
concerned with penalty phase issues, but must instead focus on the
determination of guilt. We have no reason to doubt the presumption that this
jury followed the judge's admonition and that Appellant suffered no prejudice
in connection with its note to the trial court. 3
IV. EXCLUDED EVIDENCE
Appellant next contends that the trial court erred by excluding evidence
which would have supported his self-defense theory. More specifically he
argues that the trial court improperly excluded evidence relating to his state of
mind by excluding the following evidence: (a) the victim's wife's testimony
regarding the victim's history of domestic violence; (b) the victim's racist speech
A jury is presumed to follow an admonition given by the trial court.
v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003).
directed towards Appellant and his household; (c) testimony from members of
Appellant's household about their fear of the victim; and (d) the testimony of
Jimmy Burton concerning the victim's conduct toward him.
We begin by noting that evidence of a victim's prior acts of violence,
threats, and even hearsay evidence of such acts and threats, may be
admissible if offered to prove that the defendant so feared the victim that he
believed it was necessary to use physical force (or deadly physical force) in selfprotection "provided that the defendant knew of such acts, threats, or
statements at the time of the encounter." Robert G. Lawson, The Kentucky
Evidence Law Handbook § 2.15[d] (4th ed. 2003); Moorman v.
Commonwealth, 325 S.W.3d 325, 332 (Ky. 2010); Murphy v. Commonwealth,
266 S.W. 33, 34 (Ky. 1924) (prior threats, as well as language and conduct of
the victim, of which the defendant was aware, were admissible as substantive
evidence on the issue of self-defense); Commonwealth v. Girkey, 42 S.W.2d 513,
514 (Ky. 1931) (threats and hostile acts on the part of the deceased against a
defendant claiming self-defense are admissible); Campbell v. Commonwealth,
11 S.W. 290, 292 (Ky. 1889) ("The threats of the deceased to take the life of the
accused, accompanied by an effort to do so, . . . would, of course, be competent
on the issue of the defense of the [accused]." With the above principles in
mind, we turn to the four instances of alleged error.
A. The Victim's Acts of Domestic Violence Against His Wife
Appellant contends that the trial court erred by disallowing testimony
from Charlene Cowan concerning two episodes of domestic violence which
occurred in 1995 and 1996, some fifteen years prior to the crime being tried.
Appellant argues that the evidence was admissible to show Cowan's propensity
to violence and because in response to questioning about whether the victim
"had a reputation for being a violent man," Charlene Cowan responded "[w]ell,
he didn't take anything from people. I don't know that he was violent." During
her avowal testimony Charlene indicated that during their relationship they
had exchanged threats to kill each other; that they had been "very mad at each
other"; and that the domestic violence orders [DVOs] were a result of "one of
our many heated arguments years ago." 4
"Because prior acts of violence or threats of violence against persons
other than the victim in the case on trial have significantly less probative value
than similar prior acts and threats against the same victim, as a general rule
`specific threats directed against third parties are inadmissible."'
Commonwealth, 361 S.W.3d 877, 885-86 (Ky. 2012) (quoting Sherroan v.
Commonwealth, 142 S.W.3d 7, 18 (Ky. 2004). "[A] threat to kill or injure
someone which is specifically directed at some individual other than the
deceased is inadmissible, as it shows only a special malice resulting from a
transaction with which the deceased had no connection." Id. at 886 (quoting
Jones v. Commonwealth, 560 S.W.2d 810, 812 (Ky. 1977)). "An exception has
been recognized when the threat against the third person is so close in time to
4 While reviewing her affidavits from the DVO cases Charlene stated, "You just
had to understand our relationship. If he wasn't threatening to kill me, I was going to
kill him. We got so mad at each other . . . . You never used a term that you didn't
the charged offense as to be considered a part of the same transaction."
see Chatt v. Commonwealth, 103 S.W.2d 952, 954-55 (Ky. 1937) (threat against
third party less than a minute before the killing); see also Smith v.
Commonwealth, 92 S.W. 610, 610-11 (Ky. 1906) (threat against third party five
minutes before the killing).
In Driver v. Commonwealth, 361 S.W.3d at 885-86, we discussed the rule
of remoteness and held in that case that evidence of the defendant's violence
against his ex-wife, a third party in the trial, twelve years prior to the crimes
being tried was inadmissible because it was too remote in time. By that same
rationale, we conclude that the trial court in this case properly excluded the
remote domestic violence evidence. Furthermore, Appellant offered no evidence
that he was aware of the victim's domestic violence toward his wife, and thus
her testimony would not have been relevant to establishing Appellant's fear of
Appellant argues, in the alternative, that the evidence was admissible to
impeach Mrs. Cowan's testimony disputing the victim's character for violence.
Generally, a homicide defendant may introduce evidence of the victim's
character for violence in support of a claim that he acted in self-defense or that
the victim was the initial aggressor. KRE 404(a)(2); Johnson v. Commonwealth,
477 S.W.2d 159, 161 (Ky. 1972); Robert G. Lawson, The Kentucky Evidence
Law Handbook § 2.15[b], at 104. However, such evidence may only be in the
form of reputation or opinion, not specific acts of misconduct. KRE 405(a); 5
The Kentucky Evidence Law Handbook §
2.20 , at 116 ("By
providing only for the use of reputation or opinion evidence in this situation,
the rule plainly implies a prohibition on evidence of particular acts of
conduct."). In Johnson, our predecessor court held that a homicide defendant
could not introduce the victim's police record for the purpose of showing his
propensity for violence. 477 S.W.2d at 161. Similarly, the trial court in this
case properly excluded the particular acts of conduct regarding the events
surrounding the 1995 and 1996 DVOs. Moreover, Appellant may not avoid the
foregoing rule by characterizing his effort to elicit the same evidence as
"impeachment." Slaven v. Commonwealth, 962 S.W.2d 845, 858 (Ky. 1997) (A
party cannot knowingly elicit testimony as a guise or subterfuge to impeach a
witness with otherwise inadmissible evidence.).
5 KRE 405 provides that "(a) Reputation or opinion. In all cases in which
evidence of character or a trait of character of a person is admissible, proof may be
made by testimony as to general reputation in the community or by testimony in the
form of opinion. (b) Inquiry on cross-examination. On cross-examination of a
character witness, it is proper to inquire if the witness has heard of or knows about
relevant specific instances of conduct. However, no specific instance of conduct may
be the subject of inquiry under this provision unless the cross-examiner has a factual
basis for the subject matter of the inquiry. (c) Specific instances of conduct. In cases
in which character or a trait of character of a person is an essential element of a
charge, claim, or defense, proof may also be made of specific instances of that person's
conduct." The evidence was not admissible under KRE 405(b) because the
Commonwealth had not called Charlene in support of the victim's good character so as
to open the door to specific instances of prior conduct, and it was not admissible
under KRS 405(c) because no character trait of the victim was an essential element of
any charge, claim, or defense in this case.
B. The Victim's Racist Speech
Cowan was, and Appellant is, Caucasian; Appellant's fiancé and her
daughter, who lived with Appellant, are African-American. As previously noted,
the evening before Cowan's death, Trooper Wolking responded to Appellant's
911 complaints about harassment by Cowan, involving the spotlights focused
upon Appellant's property. Appellant proffered Wolking's testimony, as avowal
evidence, that Cowan referred to Appellant's fiancé and her child as the "nigger
baby and its nigger mother." Wolking also said in his avowal testimony that
Cowan had stated repeatedly that the "nigger baby and nigger mother needed
to live down the road with the other niggers and Mexicans."
Appellant contends that this evidence was relevant to show Cowan's
propensity for violence. While the statements made by Cowan were
outrageously racist, it does not follow that this character flaw translates into a
propensity for violent conduct. Thus, this particular evidence was of little
probative value. On the other hand, its admission into evidence at trial would
have substantially diminished the character of the victim in a way that would
have been highly prejudicial to the Commonwealth's case. Cowan's racist
comments to the police officer would unduly influence the jury simply because
of the victim's verbal expressions of a racist attitude. It follows that the trial
court did not abuse its discretion by excluding the evidence.
C. Appellant's Family's Fear of Victim
Appellant contends that the trial court improperly excluded the
testimony of his fiancé and her child regarding their personal fear of Cowan
because he had harassed and terrorized them. However, both witnesses
testified, to a degree, regarding their fear of Cowan, and Appellant fails to cite
us to any avowal testimony, or other means of making known the substance of
the, testimony6 that was excluded by the trial court. Thus, because of
Appellant's failure to develop this argument sufficiently for us to undertake a
meaningful review of the issue, he is not entitled to relief upon the grounds
that the trial court excluded testimony of his household regarding their fear of
Cowan. Bayless v. Boyer, 180 S.W.3d 439, 447 (Ky. 2005) ("[W]ithout an
avowal to show what a witness would have said an appellate court has no basis
for determining whether an error in excluding his proffered testimony was
prejudicial"). See also CR 76.12(4)(c)(v); Harris v. Commonwealth, 384 S.W.3d
117, 130-31 (Ky. 2012) (defendant did not comply with the civil rule
requirements relating to the "arguments" section in his appellant's brief, and
thus those claims would not be addressed).
D. The Victim's Threatening Gesture to Jimmy Burton
Finally, Appellant contends that the trial court erred by excluding Jimmy
Burton's testimony that twenty-five years before he was killed, Cowan had
pointed a gun at Burton. Exclusion of this evidence was proper for two
reasons. First, there is no indication that Appellant was aware of this event in
the moments leading up to Cowan's death. Second, Cowan's implied threat
6 KRE 103(a) provides, "Error may not be predicated upon a ruling which
admits or excludes evidence unless a substantial right of the party is affected; and .. .
(2) . . . If the ruling is one excluding evidence, the substance of the evidence was made
known to the court by offer or was apparent from the context within which questions
against Burton, as manifested by the act of pointing the gun at him, was far
too remote in time to have any relevance in this action.
See Driver, 361 S.W.3d
In summary, we conclude that the trial court's exclusion of the evidence
described above affords Appellant no grounds upon which his conviction
should be reversed.
For the foregoing reasons, the Judgment of the Adair Circuit Court is
All sitting. All concur.
COUNSEL FOR APPELLANT:
W. Currie Milliken
Wesley Vernon Milliken
COUNSEL FOR APPELLEE:
Jeffrey Allan Cross
Assistant Attorney General