NICKY QUARLES v. COMMONWEALTH OF KENTUCKY
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RENDERED: June 27, 1997; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 96-CA-1288-MR
NICKY QUARLES
v.
APPELLANT
APPEAL FROM McCRACKEN CIRCUIT COURT
HONORABLE JAMES RON DANIELS, JUDGE
CRIMINAL ACTION NO. 95-CR-000296
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * *
BEFORE:
BUCKINGHAM, GUIDUGLI and MILLER, Judges.
GUIDUGLI, JUDGE.
Nicky L. Quarles (Quarles) appeals from an
order of the McCracken Circuit Court entered March 27, 1996,
finding him guilty of first-degree trafficking in a controlled
substance and trafficking in a controlled substance within 1,000
yards of a school.
We affirm.
Quarles' trial was held on March 25, 1996.
Testimony
was presented all morning, and the trial court recessed for lunch
at 11:55 a.m.
Before releasing for lunch, the trial court
admonished the jury, stating, "[r]emember not to discuss what
you've heard about the case with each other or with other persons
and do not form any opinions until you've heard all of the
evidence."
The trial resumed at approximately 1:15 p.m.
The
jury found Quarles guilty later that afternoon and recommended a
six-year sentence.
In a trial order entered from the bench by
the trial court on March 25, 1996 and dated and formally entered
on March 27, 1996, the trial court noted the findings and
recommendations of the jury and scheduled a sentencing hearing
for April 29, 1996.
No mention of juror misconduct was made when
the trial resumed after lunch, and the trial court's order does
not indicate that juror misconduct occurred during the trial.
On April 24, 1996, Quarles filed a motion to declare a
mistrial alleging that a juror approached him and his wife and
invited them to eat lunch with them in his home.
In his motion,
Quarles stated that the juror discussed the case with him and his
wife in direct violation of the trial court's admonition.1
Quarles alleged that he was entitled to a new trial on the ground
that he was prejudiced by his contact with the juror.
In its
response, the Commonwealth alleged that Quarles' motion was not
timely because it was not filed within five days after the return
1
Quarles attached an undated newspaper article which
appeared in the Paducah Sun to his brief. The article contained
interviews with the juror, the Commonwealth Attorney, and the
trial judge regarding this incident. However, the newspaper
article was not a part of the record of the trial court and thus
cannot be taken into consideration by this Court as evidence of
what transpired between Quarles and the juror or as evidence of
when the Commonwealth Attorney and the trial court were notified
as to the juror's conduct. Croley v. Alsip, Ky., 602 S.W.2d 418,
420 (1980). See also, Odley v. Wilson, Ky., 218 S.W.2d 17 (1949)
(holding that facts contained in brief but not in record cannot
be considered on appeal). Thus, in reaching our decision, we
have not considered either the article or any reference thereto
in Quarles' brief. Wemyss v. Coleman, Ky., 729 S.W.2d 174, 180
(1987). We would also point out that the Commonwealth did not
object to the inclusion of the article in its brief.
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of the verdict pursuant to Kentucky Rules of Criminal Procedure
(RCr) 10.06.
The Commonwealth further alleged that Quarles'
attorney was notified about the incident the day after the trial.
The Commonwealth argued that even if the motion was timely, an
evidentiary hearing would be necessary to determine whether
Quarles initiated contact with the juror or vice-versa.
At the sentencing hearing on April 29, 1996, Quarles'
motion for mistrial was addressed.
The trial court pointed out
that under RCr 10.06, Quarles' motion was required to have been
filed within five days from the return of the verdict, but
recognized that under RCr 10.02 it could order a new trial on its
own initiative within ten days from the return of the verdict.
The trial court also pointed out and counsel for Quarles agreed
that the information relied upon as grounds for a new trial was
within Quarles' knowledge on the date it occurred but no action
was taken by Quarles at that time.
Speaking on his own behalf,
Quarles pointed out and the trial court agreed that both the
Commonwealth Attorney and the trial court knew about the incident
the day after it occurred.
However, the trial court denied
Quarles' motion, stating:
[T]here may or may not have been misconduct
on the behalf of a juror in this case. I
have also taken into account the
consideration that that misconduct, if any,
was, if not--if not encouraged by you was
agreed to by you.
And I think you have a responsibility as well as the juror not to
engage in conversation or communication with one of the jurors
involved in your case.
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The trial court sentenced Quarles to six years, and this appeal
followed.
On appeal, Quarles does not attack the trial court's
denial of his motion for mistrial.
Instead, Quarles argues that
the trial court erred in failing to order a new trial sua sponte
pursuant to RCr 10.02 when it learned of the contact between
Quarles and the juror the day after the trial.
Under
RCr 10.02(2):
Not later than ten days after return of the verdict, the court on
its own initiative may order a new trial for any reason for which
it might have granted a new trial on motion of a defendant, and
the order shall specify the grounds therefor.
The decision as to whether a new trial is warranted due to jury
misconduct is left to the trial court's discretion and is not to
be reversed on appeal unless clearly erroneous.
Commonwealth, Ky., 320 S.W.2d 116, 119 (1958).
Colwell v.
See also,
Commonwealth v. Littrell, Ky., 677 S.W.2d 881 (1984) (trial
court's decision as to granting of new trial not to be reversed
unless clearly erroneous).
Although we find the trial court's failure to
investigate the incident of juror misconduct which occurred
during Quarles' trial puzzling,2 we find that the trial court's
refusal to grant a new trial sua sponte in this matter was not an
abuse of discretion.
Although there is nothing in the record
which indicates whether contact was initiated by Quarles or the
2
Under KRS 29A.310(2), parties to a pending action are
clearly prohibited from speaking to jurors after they have been
sworn without permission from the court. Violation of this
provision is a Class A misdemeanor.
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juror, the record does support the fact that not only the juror
but Quarles as well violated the trial court's admonishment.
It
has long been the rule in the Commonwealth that an appellant who
has knowledge of juror misconduct must immediately bring such
knowledge to the trial court's attention.
Davidson v.
Commonwealth, Ky., 555 S.W.2d 269, 272 (1977).
Here, Quarles
clearly had notice of the juror's misconduct at the moment it
occurred since, whatever the circumstances were, he was a willing
participant.
Had this been a situation where Quarles brought the
incident immediately to the trial court's attention, the trial
court's refusal to act would have been an abuse of discretion.
However, not only did Quarles not inform the trial court of the
juror's conduct immediately, he waited until after a verdict was
returned to bring the matter to light.
Such conduct on behalf of
Quarles amounts to a waiver of the error as was noted in Arnett
v. Commonwealth, Ky., 470 S.W.2d 834 (1971), where the Court
held:
When a defendant with knowledge of [juror
misconduct] elects not to call it to the
attention of the court in timely fashion
before submission of the case to the jury, he
in effect waives the error and takes his
chance with the jury verdict. Upon being
disappointed with the verdict, it is too late
to come in the back door with a complaint
about the alleged error.
Arnett, 470 S.W.2d at 838.
Despite the fact that the trial court
learned of the juror misconduct the day after the trial, it did
not abuse its discretion in failing to undertake an investigation
pursuant to RCr 10.02(2) to determine sua sponte if a new trial
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was warranted because of Quarles' failure to inform the court
immediately after the incident.
Having been found guilty at
trial, Quarles cannot be rewarded for concealing information of a
juror's misconduct which was known to him by allowing him to use
that information to obtain the proverbial second bite at the
apple.
Having considered the parties' arguments on appeal, the
order of the McCracken Circuit Court is affirmed.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Paula Fitzgerald
Louisville, KY
A. B. Chandler, III
Attorney General
J. Kirk Ogrosky
Assistant Attorney General
Joseph R. Johnson
Assistant Attorney General
Frankfort, KY
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