STEVEN WAYNE ASHBAUGH V. COMMONWEALTH OF KENTUCKY
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2004-SC-000562-MR
STEVEN WAYNE ASHBAUGH
V.
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1
ON APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BARRY WILLETT, JUDGE
NO . 02-CR-000736
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Steven Wayne Ashbaugh, was convicted of one count of
robbery in the second degree and of being a persistent felony offender in the first
degree . Appellant was sentenced to an enhanced term of twenty years of
imprisonment . This appeal is as a matter of right.' At issue in this case is Appellant's
claim that failure of the trial court to excuse three prospective jurors during voir dire
requires reversal for a new trial .
On March 14, 2002, Appellant entered a PNC banking center located at
9804 Old Third Street Road in Jefferson County . Appellant presented a teller a note on
the back of a pay check stub bearing his name and address, as follows :
"Don't make
any sudden moves. I'm ready to die. Are You? Count out the 100s 50s 20s." The
teller complied and Appellant left the bank with approximately $4,000.00 from the teller's
Ky. Count . ยง 110(2)(b).
money drawer, and $460.00 from the teller's personal deposit. With the assistance of
his family, Appellant was located and arrested within six days following the bank
robbery . Subsequently, on March 27, 2002, Appellant was indicted by a Jefferson
Circuit Court Grand Jury on charges of one count of robbery in the first degree and one
count of being a persistent felony offender in the first degree . On June 14, 2004,
Appellant was convicted of robbery in the second degree and of being a persistent
felony offender in the first degree . He was sentenced to twenty years as recommended
by the jury.
Appellant argues that the trial court erred with respect to its failure to
exclude three prospective jurors from the case. Appellant asserts that the trial court
abused its discretion by failing to excuse for cause all of the three challenged jurors.
Specifically, two of the jurors had informed the court that they had been victims of
robberies in the past. The third juror asserted that he had a propensity to "phase out" in
regard to defense counsel's questioning regarding his ability to give the case his
undivided attention.
Appellant relies on the language of RCr 9.36(1) in support of his
argument. "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 . ,2 This Court recognized in Commonwealth v. Lewis3 that "determination as to
whether to exclude a juror for cause lies within the sound discretion of the trial court,
and unless the action of the trial court is an abuse of discretion or is clearly erroneous,
2 RCr 9.36(1) .
1 903 S.W.2d 524 (Ky. 1995) .
an appellate court will not reverse the trial court's determination ." 4 In the present case;
the trial court determined that prior robberies committed against two of the jurors were
not sufficient justification to exclude them from Appellant's case. During the
Commonwealth's questioning during voir dire, both jurors gave satisfactory assurance
that their past experiences of being robbed would not prevent them from being fair and
maintaining a presumption of innocence for Appellant . Such responses are reasonable
and portray individuals who can be fair and impartial, rather than possessing prejudice
or bias. As stated in Lewis, deference must be paid to the trial judge's "determination
as to whether to exclude a juror for cause" and "[a] party must show prejudice to obtain
reversal ."
The fact that both jurors had prior experience as robbery victims does not,
as Appellant suggests, decide the issue . The trial court's decision to overrule
Appellant's motion to excuse these two jurors was appropriate because there was
nothing shown that "would prevent or substantially impair the performance of their
duties in accordance with their instructions or their oaths ."s
Another juror was challenged by Appellant based on his admission that he
had a propensity to "phase out" or lose concentration and would be unable to focus on
the case throughout its duration . The trial court denied Appellant's motion to strike the
juror. As asserted by the Commonwealth, this statement in no way indicates that the
juror would be unable to return an impartial verdict. Thus, there was no abuse of
discretion by the trial court in overruling Appellant's motion to excuse this juror.
4
5
Id. at 527.
_Id
.
Wainwright v. Witt, 469 U.S. 412, 424,105 S .Ct. 844, 852, 83 L.Ed .2d 841 (1985)
(citing Adams v. Texas, 448 U .S. 38, 100 S.Ct. 2521, 2523, 65 L.Ed.2d 581 (1980)) .
6
Since the trial court "is vested with discretion in deciding whether ra] juror
should be excused for cause," deference is granted to the decision .' The trial court
must decide whether a prospective juror can "conform his views to the requirements of
the law and render a fair and impartial verdict."8 Nothing presented here reveals an
abuse of trial court discretion.
Accordingly, the judgment of conviction is affirmed .
Lambert, C .J ., and Cooper, Graves, Johnstone, Roach, Scott, and
Wintersheimer, JJ ., concur.
' Humble v. Commonwealth, 887 S.W . 2d 567, 569 (Ky. App. 1994) .
1 Mabe v. Commonwealth, 884 S.W.2d 668, 671 (Ky. 1994) .
COUNSEL FOR APPELLANT :
Karen Maurer
William Robert Long, Jr .
Assistant Public Advocates
Department of Public Advocacy
Suite 302, 100 Fair Oaks Lane'
Frankfort, KY 40601
COUNSEL FOR APPELLEE :
Gregory D . Stumbo
Attorney General of Kentucky
Kenneth Wayne Riggs
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
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