WARD (WILLIAM WILSON) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: NOVEMBER 7, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
WILLIAM WILSON WARD
ON REMAND FROM SUPREME COURT OF KENTUCKY
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE JEFFREY T. BURDETTE, JUDGE
ACTION NO. 02-CR-00246
COMMONWEALTH OF KENTUCKY
REVERSING AND REMANDING
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BEFORE: COMBS, CHIEF JUDGE; STUMBO, JUDGE; GUIDUGLI,1 SENIOR
STUMBO, JUDGE: William Wilson Ward (hereinafter Appellant) appeals from a
final judgment and sentence of the Pulaski Circuit Court convicting him of flagrant
nonsupport and sentencing him to three-years’ imprisonment. This case was
Senior Judge Daniel T. Guidugli sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
remanded to this Court from the Kentucky Supreme Court in order for us to
reconsider it in light of Shane v. Commonwealth, 243 S.W.3d 336 (Ky. 2007). In
Shane, the Kentucky Supreme Court held that the use of peremptory strikes is a
substantial right; therefore, when a defendant is forced to use one to remove a juror
from the panel when that juror should have been removed for cause, it is a
violation of that substantial right. Id. at 341.
Here, Appellant argues that he was denied a fair trial when the trial
judge failed to strike certain jurors for cause. We find that one of the jurors should
have been removed for cause due to his biased feelings toward the crime with
which Appellant was charged. As such, we reverse and remand to the Pulaski
Circuit Court for a new trial.
Appellant was indicted on flagrant nonsupport for having over nine
thousand dollars in child support arrears. During voir dire, Appellant’s attorney
asked a number of questions regarding the jurors’ feelings toward paying child
support, a defendant’s right not to testify, and a defendant’s presumption of
innocence. After voir dire, Appellant’s attorney moved to strike six jurors for
cause. The trial judge denied the motion. Subsequently, Appellant used
peremptory strikes on all but two. Upon review, we find that of the six jurors
Appellant sought to remove for cause, all but one were qualified to sit on the jury
As mentioned above, during voir dire, counsel for Appellant asked the
potential jury members questions about child support. One potential member,
Juror “A,” made it quite clear on multiple occasions that he had a problem with
someone not paying child support.
At one point, Juror “A” stated that he had two brothers who were
dealing with child support issues. Of them, he stated that “they wouldn’t take care
of their kids so they got what they deserved.”
Later, another potential juror member indicated that he was raised to
support a child no matter what and that there was no excuse not to do so. Counsel
for Appellant then asked the entire panel if anyone agreed with that statement and
Juror “A” indicated that he did.
Then, Appellant’s trial attorney indicated to the panel that Appellant
might not testify on his own behalf during trial. He asked the panel if anyone
would hold this against him. Juror “A” had a problem with this and asked, “Why
would you not stick up for yourself?” Counsel then asked the panel whether
Appellant’s not testifying would weigh on their minds. Juror “A” stated that it
could and that “[he] wouldn’t want to sit up there and explain why [he] wasn’t
taking care of the kids. It’s the kind of person I am, if you have it, you take care of
The trial judge then questioned the juror, asking him specifically
whether he could put aside his biases and follow the law and by asking the jury
panel as a whole if they could follow the law as instructed. Juror “A” stated that
he would listen to the evidence. However, Juror “A” later stated that his beliefs
about supporting a child were ones he had held for a long time.
“When there is reasonable ground to believe that a prospective juror
cannot render a fair and impartial verdict on the evidence, that juror shall be
excused as not qualified.” RCr 9.36(1). Additionally:
[e]ven where jurors disclaim any bias and state that they
can give the defendant a fair trial, conditions may be such
that their connection would probably subconsciously
affect their decision in the case. It is always vital to the
defendant in a criminal prosecution that doubt of
unfairness be resolved in his favor.
Randolph v. Commonwealth, 716 S.W.2d 253, 255 (Ky. 1986), overruled on other
grounds by Shannon v. Commonwealth, 767 S.W.2d 548 (Ky. 1988). “A trial
court’s decision whether a juror possessed ‘this mental attitude of appropriate
indifference’ must be reviewed in the totality of circumstances. It is not limited to
the juror’s response to a ‘magic question.’” Montgomery v. Commonwealth, 819
S.W.2d 713, 718 (Ky. 1991).
Here, Juror “A” was adamant in his feelings about supporting one’s
children and on multiple occasions voiced his opinion on the issue. Even after the
trial judge specifically asked him if he could put aside his feelings and follow the
law, he continued to state that he felt a person should take care of their children no
matter what. “The influence that lurks in an opinion once formed is so persistent
that it unconsciously fights detachment from the mental processes of the average
man. . . .” Montgomery at 716 (quoting Irvin v. Dowd, 366 U.S. 717, 728, 81 S.Ct.
1639, 1645, 6 L.Ed.2d 751, 759 (1961)).
It is clear that Juror “A” had a clear bias against the crime with which
Appellant was charged and should have been removed for cause. Because
Appellant had to use a peremptory strike to remove Juror “A,” his right to have a
fair and unbiased jury was violated.
While a party can reasonably expect to be given all the
rights granted to him by state law or rule, he has a certain
right to a trial that is fair in its entirety. This Court has
granted the use of peremptory strikes to a party and made
it mandatory for trial courts to excuse biased jurors for
cause when a reasonable person would view the juror as
biased. Not removing a biased juror from the venire, and
thereby forcing a defendant to forfeit a peremptory strike,
makes the defendant take on the duty of the court and
prevents him from getting the jury he had a right to
choose. This violates a substantial right accorded great
weight in our legal history, and can never be harmless
Shane at 343.
Appellant made other arguments on appeal, but these were addressed
by the previous panel of this Court. For the purposes of this opinion we were only
concerned with the issues raised by the remand of this case from the Kentucky
Accordingly, we reverse Appellant’s conviction and remand to the
lower court for a new trial.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Erin Hoffman Yang
Assistant Public Advocate
Department of Public Advocacy
Gregory D. Stumbo
Attorney General of Kentucky
Michael L. Harned
Assistant Attorney General