MILES (STEVEN) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 6, 2008; 2:00 P.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-002150-DG
STEVEN MILES
APPELLANT
ON DISCRETIONARY REVIEW FROM GALLATIN CIRCUIT COURT
v.
HONORABLE KEVIN HORNE, JUDGE
ACTION NO. 06-XX-00002
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING
** ** ** ** **
BEFORE: ACREE, DIXON, AND TAYLOR, JUDGES.
ACREE, JUDGE: Steven Miles appeals his Gallatin District Court conviction for
driving a motor vehicle while under the influence. Because the manner in which
the trial court polled the jury did not comply with Kentucky Rule of Criminal
Procedure (RCr) 9.88, we reverse.
Our highest court long ago established that “the right to poll the jury
in criminal cases is an essential part of the right of trial by jury and held denial to
be prejudicial error.” Powell v. Com., 346 S.W.2d 731, 733 (Ky. 1961). The right
is one to have the conscience of each individual juror tested by an individualized
question directed at him or her, not a question directed at any group of jurors in
which individuals may find some degree of anonymity. Id., 346 S.W.2d at 733 n.1
(Ky. 1961) (purpose of polling is to determine that “the jury's verdict reflects the
conscience of each of the jurors[.]” Emphasis supplied). That much is clear from
the plain language of the Rule. Polling is “done by the clerk's or court's asking
each juror if it is his or her verdict.” RCr 9.88 (emphasis supplied).
It is clear from the videotape that the trial court did not “ask[] each
juror” if this was his or her verdict. The court’s method of polling the six jurors
took exactly four seconds.
Court:
[Visually scanning the jury as a whole] Is
that the verdict of the jury?
[looking at one juror] That your verdict?
[looking at a second juror] Your verdict
ma’am?
[looking at a third juror] Sir?
None of the jurors responded audibly. It is possible that all six jurors individually
responded in a non-verbal way to the court’s four queries. While a non-verbal
response to the court’s queries can be sufficient, id. at 732, the response must be to
a question specifically posed to that responding juror and to him alone.
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If “the trial court asked the panel as a whole, rather than each juror
individually, about the verdict[,]” this would “not satisfy the Rule's requirement
nor purpose.” Com. v. Rhodes, 949 S.W.2d 621, 624 (Ky.App. 1996). Logic
mandates that if the court polls more than one juror at a time, i.e., any subset of the
jury greater than one juror, the same rationale requires reversal.
After the trial court asked these four questions of the jury, Miles asked
the trial court to properly poll the jury. The court’s response that “I just did” was
incorrect. When Miles was denied the opportunity to have the jurors polled
individually, he was deprived his right under RCr 9.88, necessitating reversal of his
conviction.
Furthermore, we cannot agree with the Commonwealth that Miles is
objecting merely to “[s]mall irregularities in the jury poll process[.]”
[A]t no time in the whole course of the trial is this right
more valuable than at the final step when the jury are to
pronounce that decision which is to restore him to the
liberty of a citizen, or to consign him to the scaffold or to
a felon's cell in the state prison. He has a right not only
to see and know that the whole jury is present assenting
to the verdict, but by polling to demand face to face of
each juror whether the verdict is his verdict[.]
Powell, supra, at 732-33 (emphasis supplied), quoting Temple v. Commonwealth,
14 Bush 769, 77 Ky. 769, 29 Am.St.Rep. 442. While the charges against Miles
would not have sent him “to the scaffold,” the right provided by RCr 9.88 is no
less available to criminal defendants facing lesser charges.
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For the foregoing reasons, we reverse Miles’ conviction and remand
the action to the Gallatin District Court for further proceedings consistent with this
opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Stephen P. Huddleston
Warsaw, Kentucky
Michael D. Mason
Special Prosecutor
Burlington, Kentucky
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