ISIAH FUGETT V. COMMONWEALTH OF KENTUCKY
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RENDERED : APRIL 24, 2008
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2006-SC-000051-MR
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ON APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE LISABETH HUGHES ABRAMSON, JUDGE
NO. 04-CR-000391
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE SCOTT
REVERSING
I. Introduction
Isiah Fugett was convicted of two counts of Manslaughter in the Second Degree,
Kentucky Revised Statute (KRS) 507.040, and one count of Tampering with Physical
Evidence . KRS 524.100. By agreement with the Commonwealth, Fugett was
sentenced to thirty (30) years in prison . Appealing to this Court as a matter of right,
Kentucky Constitution §110(2)(b), Fugett argues the circuit court erred by: (1) failing to
comply with the administrative procedures governing jury selection; (2) denying his
Batson challenge ; (3) denying his juror challenges for cause; (4) denying his motion to
suppress his statements ; and (5) admonishing the jury to disregard evidence that the
victims had previously admitted to being in possession of a stolen 9mm pistol . Finding
error, regarding a juror challenge for cause, we must reverse for a new trial.
11. Factual Background
On January 26, 2004, Eric Ray and Robert Robbins went to a downtown
Louisville Chevron station looking for marijuana. Fugett met with Robbins and agreed
he would get the marijuana and call with arrangements for the sale. Around 10 :30 p.m .,
Fuget got Dalisha Fields to drive him. He borrowed her cell phone and confirmed that
Robbins would meet him across from the Chevron in the parking lot of the Clarion Hotel.
Fields then drove Fugett to the Clarion Hotel and parked near a van.
Shortly, a black Lincoln Navigator pulled in beside them and Fugett got into the
rear seat of the Navigator. A short time later, Fugett returned to Fields' car with a
shotgun . He informed Fields that he shot the boys when one pulled the shotgun on him .
He then told her to drive to her apartment .
As she drove, FugeR wiped the blood off the shotgun . At her apartment, Fugett
gave her the shotgun and a 9mm pistol to hide . Later, police contacted Fields and she
admitted she had hidden the weapons at FugeWs request and had driven him to the
Clarion Hotel. Both weapons were recovered .
Eric Ray's body was found partially underneath the passenger side of the
vehicle. His wounds were consistent with being shot once from the back, once from
behind while falling from the vehicle, and once while on the ground . Robert Robbins,
who was lying fifteen feet from the vehicle, was alive when officers arrived . His wounds
were consistent with being shot while running from the vehicle. He died at the hospital.
A patron at the hotel had heard the shots and observed Robbins being shot as
.he ran . A clerk at the Chevron, Jeffery Johnson, knew the victims and said he had seen
them on the evening of the shooting talking with an African-American known as Bosco.
"Bosco" was an alias used by Fugett.
They further learned that Fugett was being released from jail on an unrelated
marijuana charge. When later approached by detectives, Fugett agreed to accompany
them to headquarters to answer questions . During the initial portion of the interview,
Fugett led the officers to believe he had information and would be willing to assist in the
investigation . However, in the early morning hours of January 28t", he approached a
detective and indicated for the first time that he may have had a role in the incident.
Thus, when the detectives returned at 5 :50 a .m ., Fugett was given his Miranda
warnings . After executing a waiver, Fugett informed the officers he had been present at
the shootings . While he denied pulling the trigger, he admitted he had hidden the guns.
He was then arrested . Around 10 :30 a.m ., he again approached the officers and said
he had shot the victims in self-defense using a pistol he had taken from Ray's pocket.
Ill. Analysis
A. Jury Selection
Fugett first argues the method of jury selection in Jefferson County violated his
right to a jury pool made up of a fair cross section of the community . He points out that
of the 700 summonses sent out, 3281 were unaccounted for. Fugett argues that under
Part II, § 6 of the Administrative Procedures of the Court, the court was required to have
the sheriff personally serve a summons on each of the 328 jurors . Instead, the circuit
court relied on KRS 29A.060(4), which leaves it to the court's discretion as to whether
the jurors are to be personally served . Citing to Kentucky Rules of Criminal Procedure
(RCr) 1 .02, Fugett argues the court erred in holding that the statute controls.
Fugett's brief, in footnote 1, acknowledges that the parties agreed two
prospective jurors should be excused . However, Fugett subsequently counts these two
along with the 132 not accounted for, leaving a total of 134.
3
In accordance with the procedures of the Jefferson Circuit Court, a summons
was issued by mail along with a qualification form, however, the prospective jurors were
directed to return the qualification form only if they felt they were disqualified, were
seeking a postponement, or believed they should be excused . If the form was not
returned, the prospective juror was expected to appear. In Fugett's case, 196 of the
700 issued were returned as non-deliverable . Another 132 failed to respond or appear .
Therefore, the court rejected Fugett's motions to have the unresponsive jurors
personally served, leaving 150 prospective jurors available to hear his case . Of these,
two were excused by agreement of the parties . The remaining 148 had to then be
randomly reduced to 125 to meet the fire code limitations imposed on the circuit
courtrooms in Jefferson County . The remainder was available for jury service, if
selected, in his case .
Under § 116 of the Kentucky Constitution, this Court has the authority to
prescribe the rules governing procedures before Kentucky courts . Part II, § 6 of the
Administrative Procedures of the Court states in pertinent part, that "[i]f the summons is
served by mail, any prospective juror who does not return the juror qualification form
within ten (10) days . . . shall be personally served by the sheriff." Further, RCr 1 .02(2)
states that "[t]o the extent that they are not inconsistent with these Rules, the
regulations, administrative procedures, and the manuals published by the Administrative
Office of the Courts . . . shall have the same effect as if incorporated in the Rules." Thus,
2 For those who fail to respond or appear, the chief circuit judge sends out letters
informing the prospective jurors of the importance of responding, and that they are
subject to contempt should they continue to ignore the summons . The majority of those
who receive the letter respond with an explanation . The chief circuit judge then reviews
the responses and takes appropriate action (i .e. assigning the prospective juror to a
later pool, granting a postponement, or excusing the person) . For the remaining
prospective jurors who fail to respond, the court issues a second summons .
4
the procedures adopted by the rules of this Court require that the summons be
personally served . This is in conflict with KRS 29A.060(4), which states that "[i]f the
summons is served by mail, any prospective juror who does not return the juror
qualification form within ten (10) days may be personally served by the sheriff at the
discretion of the Chief Circuit Judge[.]" (Emphasis added) .
Fugett argues that since the statute deals with rules of practice or procedure
before the court, it violates the separation of powers doctrine set out in § 28 of the
Kentucky Constitution . In light of the differences between § 6 and KRS 29A.060(4), we
are forced to conclude that a conflict does exist. However, this conclusion does not
mandate a finding that the circuit court erred in relying on KRS 29A.060(4) for reasons
that we .may consider questions of comity.
As noted in Taylor v. Commonwealth , 175 S.W.3d 68, 77 (Ky. 2005), comity
"means the judicial adoption of a rule unconstitutionally enacted by the legislature not as
a matter of obligation[,] but out of deference and respect ." We went on to say that "for a
statute to be extended comity this Court must find that such a statute is a statutorily
acceptable substitute for current judicially mandated procedures or can be tolerated in a
spirit of comity because it does not unreasonably interfere with the orderly functioning of
the courts ." Id . at 77 (Internal quotes and citations omitted) . "The decision to extend
comity to a statute otherwise unconstitutional because it violates the separation of
powers doctrine is one of institutional
policy reserved for the
Supreme Court only."
Foster v. Overstreet, 905 S.W .2d 504, 507 (Ky. 1995).
Here, comity and common sense dictate that we accept the application of KRS
29A .060(4). Under the statute, the court is left with the discretion to utilize the personal
summons as it deems necessary. As the statute grants broader discretion to the court,
we cannot say it hampers or unreasonably interferes with the administration of justice .
Further, this broader discretion is appropriate in places like Jefferson County,
where the size limitations of the courtrooms mandate that jury pools be no larger then a
certain number . Thus, even if personal service had been used to bring in more than
150 jurors, the number would still have been reduced to 125 based on limitations under
its fire code. Finally, we note Fugett did not show that any portion of the county, or a
specific class, was excluded from the pool . Under these circumstances, we cannot say
the court erred in applying KRS 29A.060(4). Nor can we say Fugett was denied a jury
pool made up of a fair cross section of the community .3
B. Establishing a Batson Challenge
Fugett next argues the Commonwealth impermissibly used two of its peremptory
challenges against African-American jurors. While acknowledging the Commonwealth
offered race-neutral reasons, he argues those reasons do not withstand scrutiny.
Fugett asserts that two jurors were treated differently from similarly situated jurors.
Thus, he argues the court erred in rejecting his Batson challenge.
"Challenging prospective jurors on the basis of race violates the Equal Protection
Clause ." Washington v. Commonwealth , 34 S.W.3d 376, 378-79 (Ky. 2000) .
Therefore, an objection to the use of peremptory challenges on this grounds is
evaluated under a three-step process set out in Batson v. Kentucky, 476 U.S . 79, 106
S .Ct. 1712, 90 L.Ed .2d 69 (1986). Citing to Batson , this Court in Washington described
the process, as follows :
3 In granting comity to KRS 29A .060(4), we must reject Fugett's claim that the
court's reliance on the statute was in error. Further, as we find no error in the
procedures used by the Jefferson Circuit Court in selecting the jury pool, Fugett's
argument that the process involves a substantial deviation is now moot.
6
First, the defendant must make a prima facie showing of racial bias for the
peremptory challenge . Second, if the requisite showing has been made,
the burden shifts to the Commonwealth to articulate "clear and reasonably
specific" race-neutral reasons for its use of a peremptory challenge .
"'While the reasons need not rise to the level justifying a challenge for
cause,' self-serving explanations based on intuition or disclaimers of
discriminatory motive" are insufficient . Stanford v. Commonwealth, 793
S .W.2d 112, 114 (Ky. 1990) (quoting Batson, supra, at 98, 106 S .Ct. at
1724.) Finally, the trial court has the duty to evaluate the credibility of the
proffered reasons and determine if the defendant has established
purposeful discrimination .
Washington, 34 S .W.3d at 379.
Applying the three-step process set out in Batson , the trial court concluded that
Fugett, an African-American, had established a prima facie case by showing the
Commonwealth had exercised four of its nine peremptory challenges against African
American jurors. On the other hand, we note that the fourteen-person panel that heard
Fugett's case included three African-American jurors . Fugett's challenge, however,
focuses on only two of the four African-American jurors struck by the Commonwealth .
As a consequence of the objection, the Commonwealth was required to articulate
clear and reasonably specific race-neutral reasons for its use of the peremptory
challenges . As to Juror 116572, the Commonwealth noted that the juror believed
African-Americans were discriminated against by the system, that whites had too much
political power, and that the death penalty should not be used for population control .
The juror also noted that his own research had shown only one white person had ever
received the death penalty for killing an African-American .
As to Juror 125118, the Commonwealth pointed out that the juror had described
in detail a very negative experience with police . Juror 125118 had expressed the belief
that African-Americans were unfairly treated by the system, that they were more likely to
be charged, and that the system seemed to impose more time for marijuana offenses
than murder.
In response, Fugett argued the jurors were being treated differently from similarly
situated white jurors . Fugett noted that several white jurors admitted to having negative
experiences with police. Fugett also argued that Juror 116572's answers concerning
historical discrimination and the use of the death penalty as population control were
taken out of context.
Having heard both arguments, the court concluded the Commonwealth had
proffered race-neutral reasons . The court specifically noted that the Commonwealth
was free to consider the totality of the juror's responses . The court further noted that
the responses could be interpreted as out-spoken beliefs . Finally, the court noted that
three African-Americans were on the panel . Of significance to the court was the fact
that these jurors had shared views of discrimination, yet had not been so extreme or
out-spoken. These circumstances led the court to conclude the Commonwealth was
looking at individual jurors, and not simply acting on racially-impermissible grounds.
The record thus supports our conclusion that the three-step process was applied
properly and the court complied with its duty in evaluating the reasons offered . Under
these circumstances, we cannot say the court erred in rejecting Fugett's Batson
challenge.
C. Motions to Strike a Juror For Cause
Fugett's third argument concerns the circuit court's decision to deny his motions
to strike Jurors 119631 and 123804 for cause. The record established that he used all
nine (9) of his peremptory challenges . Moreover, Appellant argues that, since he was
forced to remove Jurors 119631 and 123804 with his peremptory challenges, when they
should have been stricken for cause, he was denied a substantial right and tool
necessary to selection of an impartial jury, as well as the right to an impartial jury.
In Kentucky, the right to an impartial jury is protected by § 11 of the Kentucky
Constitution, as well as the Sixth and Fourteenth Amendments to the U .S . Constitution .
See Fugate v. Commonwealth , 993 S.W.2d 931, 939 (Ky. 1999) . Under RCr 9 .36(1), a
juror shall be excused for cause "[w]hen there is reasonable ground to believe that a
prospective juror cannot render a fair and impartial verdict on the evidence[ .]"
Fugett, however, made no attempt to show that the jury that heard his case was,
in fact, impartial. Instead, he argues we should reverse our position in Morgan v.
Commonwealth , 189 S .W .3d 99 (Ky. 2006), overruled by Shane v. Commonwealth, 243
S .W .3d 336 (Ky. 2007), and return to the standard set out in Thomas v. Commonwealth,
864 S .W.2d 252 (Ky. 1993).4 This we did, in our recent opinion of Shane v.
Commonwealth , 243 S.W.3d 336 (Ky. 2007) . Thus, if a court abuses its discretion in
denying a challenge for cause and the party had to use a peremptory challenge to strike
the juror and, in fact, used all his peremptory challenges, it is reversible error. See
Stopher v. Commonwealth , 57 S .W.3d 787, 796 (Ky. 2001). As Fugett used all of his
peremptory challenges, we are left to decide if the court abused its discretion in denying
his challenges for cause as to either Juror 119631 or Juror 123804.
Kentucky has long recognized that "a 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, an appellate court will not
reverse the trial court's determination ." Pendleton v. Commonwealth , 83 S.W.3d 522,
4 Fugett also raised the issue of retroactive application of Morgan to his preMor an trial, arguing an "Ex Post Facto" violation of Article l, Section 10 of the United
States Constitution and Section 19 of the Kentucky Constitution . We do not address
this argument, since it is now moot.
9
527 (Ky. 2002) (internal quotes and citations omitted) . See also Soto v.
Commonwealth, 139 S .W .3d 827, 848 (Ky . 2004) ("A determination whether to excuse a
juror for cause lies within the sound discretion of the trial court and is reviewed only for
a clear abuse of discretion ."). However, the decision to exclude a juror for cause is
based on the totality of the circumstances, not on a response to any one question . See
Moman v. Commonwealth, 189 S .W.3d at 104, overruled in part on other grounds by
Shane v. Commonwealth, 243 S .W .3d 336 (Ky. 2007). This recognizes the duty of the
trial court "to evaluate the answers of prospective jurors in context and in light of the
juror's knowledge of the facts and understanding of the law." 51gptgr, 57 S.W.3d at
797 .
This having been said, "[t]he test for determining whether a juror should be
stricken for cause is `whether . . . the prospective juror can conform his views to the
requirements of the law and render a fair and impartial verdict."' Thompson v.
Commonwealth, 147 S.W.3d 22, 51 (Ky. 2004) (gg!gffl Mabe v. Commonwealth, 884
S.W.2d 668, 671 (Ky. 1994)). As such, "[t]he court must weigh the probability of bias or
prejudice based on the entirety of the juror's responses and demeanor . There is no
`magic question' that can rehabilitate a juror as impartiality is not a technical question
but a state of mind ." Shane, 243 S.W .3d at 338 .
During voir dire, Juror 119631 stated that his wife's second cousin, a former
Louisville police officer, Mackenzie Mattingly, was on duty when he shot and killed a
drug suspect. Mattingly was subsequently charged and acquitted of murder. While he
did not believe his relationship with Mattingly would factor into his jury service, he
acknowledged that he would probably give more weight or greater credibility to the
testimony of a police officer, simply because he was a police officer . He felt firmly about
10
his belief that the police have greater credibility in their testimony and it would not
depend on which officer testified ; he simply felt police have more credibility than other
witnesses.
Juror 119631 also presented a problem in considering mitigating evidence in the
penalty phase, stating his belief that punishment should be based only on what
occurred on the day of the killing, rather than consideration of a person's past. He did
not believe that a person's use, or abuse, of alcohol should have any effect on his
actions, and so those factors should not be considered . Moreover, he believed that only
a person's history of violence should be considered on the issue of punishment. When
asked by the prosecution as to whether he would, in his sentencing decision, consider
factors like a defendant's age, IQ, or the kind of home in which he was raised, he
responded that he could consider age, if the person were 10, 11, or 12 years of age.
Moreover, he stated in general he could consider other factors, but they would not have
much effect on his opinion .
Thereafter, he was informed by the court that if the defendant were convicted,
there would be a penalty phase in which the Commonwealth would put on evidence of
aggravation to obtain a sentence at the high end of the sentencing range and the
defense could introduce mitigating evidence such as a defendant's age, IQ, home life as
a child, and drug or substance abuse by him or his parents. The court then stated :
The question is, is there any of that evidence that's described as
mitigators that wouldn't have any bearing with you in setting a penalty?
Because some people say I can consider all of that evidence and some
people say well no in my view that's not proper. And again we're past the
guilty and not guilty. We are at the penalty phase. So the question is, is it
evidence that you would consider or is it evidence that you wouldn't
consider?
Juror 119631 then stated, "I would consider it." The court then denied Appellant's
motion to strike Juror 119631 for cause .
In Stopher, this Court found no error in the trial court's refusal to strike a juror for
cause when his father had been a police officer . There we found the juror "did not have
any preference for police officers and . . . his family connection to the law enforcement
profession would in no manner affect his ability to decide the case based on the
evidence presented ." Stopher, 57 S .W .3d at 797 . In Soto , the juror "stated that he
might give `slightly' more weight to the testimony of a police officer than to that of a lay
person. He also stated that he could render a fair and impartial decision concerning all
the facts of the case, including the entire range of penalties and mitigating
circumstances ." Soto , 139 S .W.3d at 850. In Soto, we ruled that the response of the
juror "did not establish implied bias" against the defendant based, in part, on there
having been no testimonial inconsistencies between the officer's testimony and that of
the lay witnesses. Id. Also in Sholler v. Commonwealth, 969 S .W.2d 706, 709 (Ky.
1998), we ruled that it was not an abuse of discretion in failing to strike a juror who was
a Secret Service Agent, because he "did not indicate a bias against defendants,"
although he "would tend to give credence to the testimony of a police officer." Id . This
notwithstanding, when questioned by the defense, the juror admitted he was very prolaw enforcement and placed substantial credence in police officers. When asked if he
thought all law enforcement officers told the truth, he replied, "I don't know, I think so,
yeah, I've never experienced one who lied in court." Id. at 708.
We recently revisited this issue in Shane , where the juror in question, a Louisville
Metro Police Officer, stated his association with police officers would not affect his
ability to be an impartial juror, but then went on to say:
12
he had "an inside point of view"; that he was "absolutely" pro-police ; that
while "police are just like everybody else," he did not believe they would lie
under oath because they took the oath more seriously ; and that he would
find it more likely that a police officer was telling the truth than a lay
witness.
Shane , 243 S .W.3d at 337 . As a result, we held :
Here, Juror 138's responses in their entirety indicated a probability that he
could not enter the trial giving both sides a level playing field . His
statement that he was "absolutely" pro-police and that he did not believe
an officer would lie under oath clearly indicated that a defendant would
have little or no chance of challenging an officer's testimony in this juror's
mind .
Id. at 338.
Considering Shane, Stopher, Soto , and Sholler together, they support the
conclusion that Juror 119631 should have been stricken for cause in this case. The
statements made by the prospective jurors in Sto her, Soto, and Sholler were not as
unequivocal as those made by the juror in Shane and Juror 119631 in this case, who
indicated they would believe the testimony of a police officer, simply because he was a
police officer and because police officers have greater credibility in their testimony than
other witnesses . However, when contrasted directly with our finding in Shane -- that
"he did not believe that they would lie under oath because they took their oath more
seriously ; and that he would find it more likely that a police officer was telling the truth
than a lay witness" - the factual similarity is apparent. Shane , 243 S .W .3d at 337.
Moreover, as to the mitigation issue, the totality of the juror's responses form a
reasonable basis to conclude that he could not consider all the mitigation evidence that
the law demands . He believed that only a person's history of violence should be
considered on the issue of punishment and he would consider age only if the person
were 10, 11, or 12 years old . He said he could consider some factors such as the
defendant's IQ or the kind of home in which he was raised, but they would not have
13
much effect on his opinion . Nor did he believe that factors such as the use, or abuse, of
alcohol should be considered .
"Any juror to whom mitigating factors are . . . irrelevant should be disqualified for
cause, for that juror has formed an opinion concerning the merits of the case without
basis and the evidence developed at trial ." Morgan v. Illinois , 504 U .S . 719, 739, 112
S.Ct. 2222, 2235, 119 L.Ed .2d 492, 509 (1992). Thus, heeding our recent dictates in
Shane , designed not only to insure an impartial jury, but to ensure a "level playing field"
in the selection of a jury, we must conclude that the failure to excuse Juror 119631 for
cause was an abuse of discretion in this case . On its facts, we can read Shane no
other way.
Fugett also challenged Juror 123804 for cause. Yet, during voir dire, the juror
made it clear that he would consider the entire range of penalties . He indicated he
would consider evidence of aggravating factors as well as mitigating factors . When
asked if it was his expectation that the defendant should show the death penalty is not
appropriate, the juror replied, "Yes ." However, when asked by the defense if he would
impose death unless the defendant showed him otherwise, Juror 123804 replied, "No."
Fugett argued that Juror 123804's answers made it clear that he would
improperly impose a burden on the defense during the penalty phase. The circuit court,
however, properly considered the totality of the juror's answers within the appropriate
context. The court reasoned that while Juror 123804's answers indicated that if
mitigating evidence was going to be put on, it would logically be done by the defense,
the court concluded that this did not indicate he was improperly imposing a burden on
the defense. Further, the court noted that Juror 123804 had clearly indicated he would
consider evidence of both aggravating and mitigating factors, and that he would
14
consider the full range of penalties. Under these circumstances, the court did not err, or
abuse its discretion, in denying Fugett's challenge for cause against Juror 123804.
Relying on Shane, however, we find the court abused its discretion in not
excusing Juror 119631 for cause, and thus committed error. For reasons that such
"substantial errors" are not subject to "harmless error" review, we find the error to be
cause for reversal .
D. Motion to Suppress
Fugett's fourth argument concerns the court's decision to deny his motion to
suppress statements he made to police. Fugett asserts that from the time he was taken
from the jail to headquarters for questioning, he was in custody and entitled to his
Miranda warnings. Since no warnings were given until approximately 5 :50 a.m . on the
28t", he argues his statements were obtained in violation of his right against selfincrimination . Further, Fugett argues that statements made after he was given his
Miranda, warnings were tainted and should be excluded as fruit of the poisonous tree .
The Fifth Amendment to the U .S. Constitution guarantees a defendant the right
against self-incrimination . See United States v. Crossley, 224 Wd 847, 861 (60 Cir.
2000). The U .S . Supreme Court has determined that a suspect under custodial
interrogation must be given notice of the right against self-incrimination, with such notice
being contained in the Miranda warnings. Id ., Citing Miranda v .Arizona, 384 U .S . 436,
478-79, 86 S .Ct . 1602, 1630, 16 L.Ed-2d 694 (1966). In reviewing a challenge to the
denial of a motion to suppress, this Court is faced with a mixed question of law and fact.
Commonwealth v. Lucas, 195 S.W.3d 403, 405 (Ky. 2006). Findings of fact are
conclusive if supported by substantial evidence. Id. See also RCr 9.78. However,
questions of law are reviewed de novo .
Lucas, 195 S .W .3d at 405.
15
Shortly after the investigation began, detectives learned that the victims had
been seen shortly before the shooting at the Chevron station with a person known as
Bosco. Detectives also learned that "Bosco" was an alias used by Rgett, and that he
was in jail on unrelated marijuana charges. When Fugett was released from custody at
approximately 11 :30 p .m. on January 27th, he was met by Detectives Lawson and
SeaboR
who
identified themselves and asked if Fugett would be willing to go to police
headquarters and answer some questions . The detectives informed Fugeft that he did
not have to go and that he was free to leave. At approximately 11 :52 p.m ., Fugeft
agreed to accompany the detectives to police headquarters.
Fugett, without handcuffs, rode in the back of the detectives' car to headquarters.
The detectives then escorted him through a non-public entrance and up a rear stairwell
- a method commonly used to protect the identity of witnesses - to the offices of the
Homicide Division on the second Poor. Fugeh, still unrestrained, was led to an interview
room . Throughout his interview, Fugett was often left alone, was never restrained, and
was allowed free use of the restroom, with the exception of a facility not open for public
use . Fugett was also allowed to have sodas and smoke . At no time did Fugett ask that
the questioning be stopped, nor did he indicate a desire to leave .
During the initial portion of the interview, Fugeft led officers to believe he had
information about the shooting and that he would assist in the investigation . He
acknowledged he had been at the Chevron station and that he knew one of the victims .
Further, he claimed he could identify possible witnesses, as well as a vehicle that may
have been involved . As a result of FugeWs disclosures, three detectives accompanied
Fugett on a drive through areas of Louisville at approximately 4 :30 a .m . When they
were unsuccessful, the detectives returned Fugett to the interview room to await the
return of Detectives Lawson and Seabolt who had left to get food for them and Fugett .
While the lead detectives were out, Fugett left the interview room, approached
another detective, and indicated for the first time that he had been at the scene and may
have had a role in the incident . It was approximately 5:25 a .m. When the lead
detectives returned at 5 :50 a .m., Fugett was given his Miranda warnings . After
executing a waiver of his rights, Fugett informed officers he had been present at the
time of the shooting . While he indicated another person pulled the trigger, Fugett
admitted he had agreed to hide the guns. After this disclosure, Fugett was arrested .5
Around 10:35 a.m ., Fugett approached officers and admitted he had been the
shooter. Fugett claimed that when he looked up from getting the marijuana, Ray had
the shotgun aimed at him. As he and Ray struggled over the shotgun, Fugett reached
into the pocket of Ray's sweatshirt, took a 9mm pistol, and shot in self-defense .
Fugett argues the approach used by the detectives in this case amounted to a
question first and then warn technique which was rejected in Missouri v. Seibert , 542
U .S. 600, 124 S .Ct. 2601, 159 L .Ed .2d 643 (2004). We disagree . In the Seibert case,
police arrested Seibert as a suspect in the case. Initially, the officers intentionally
questioned him without giving him his Miranda warnings. At the conclusion of a
systematic and exhaustive interview, with little or no incriminating potential left, the
officers took a short break. At the conclusion of the break, officers then gave Seibert his
Miranda warnings without explaining that his unwarned statement could not be used
5 Fugett has suggested police lacked probable cause to arrest. We disagree . At
the conclusion of his disclosure, police knew he had been on the scene and that he had
hidden the guns . As tampering with physical evidence is a felony, we are not
persuaded police lacked probable cause to arrest Fugett for his role in the incident. See
Eldred v. Commonwealth, 906 S .W .2d 694, 705 (Ky. 1994), overruled in part on other
grounds in Commonwealth v. Borroso , 122 S .W.3d 554, 564 (Ky. 2003).
17
against him . Referring to the original statement, officers re-interviewed Seibert on the
record until all of the earlier responses were repeated . On review, the U .S. Supreme
Court concluded the police strategy undermined the Miranda warnings. 542 U.S . at
616, 124 S .Ct. at 26123. The Court in Seibert then concluded the statements were
obtained in violation of the Fifth Amendment and should have been suppressed .
The Seibert case is distinguishable on its facts. Fugett was not arrested as a
suspect. Nor was he subjected to a systematic and exhaustive interview intended to
obtain incriminating details from him. Instead, Fugett was brought in as a witness who
had been with the victims at the Chevron station prior to the shooting . Further, Fugett
was given the choice of whether he desired to accompany the detectives. The length of
the initial portion of the interview was due in large part to the fact that Fugett led the
officers to believe he knew information and was willing to act in concert with their efforts
to solve the crime . It was not until he voluntarily approached a detective at 5:25 a.m .
that officers had any idea he may have had a larger role in the incident . Then, before
beginning systematic questioning, detectives properly provided him with his Miranda
warnings. Given the distinction between this case and Seibert , we conclude Fugett's
reliance on that case is misplaced .
As noted in Crossley , notice of the right against self-incrimination must be given
only when a suspect is subjected to custodial interrogation . 224 F .3d at 861 . By
custodial interrogation we mean "questioning initiated by law enforcement after a person
has been taken into custody or otherwise deprived of freedom of action in any
significant way." Lucas, 195 S .W.3d at 405. In Lucas we went on to say that "[t]he
inquiry for making a custodial determination is whether the person was under formal
arrest or whether there was a restraint of his freedom or whether there was a restraint
18
on freedom of movement to the degree associated with formal arrest." Id . Further,
"[c]ustody does not occur until police, by some form of physical force or show of
authority, have restrained the liberty of an individual ." Id . In making this determination,
we must ask ourselves whether, "considering the surrounding circumstances, a
reasonable person would have believed he or she was free to leave." Id.
Having reviewed the facts, we do not find Fugett was in custody prior to his arrest
at 5 :50 a .m. Previous to that time, the purpose of the questioning was to gather
information from a witness who had been with the victims at the Chevron station shortly
before the incident, and who had led the officers to believe he could both identify
witnesses and identify a vehicle that may have been involved . From the beginning,
detectives informed Fugett that it was his choice to come to headquarters and answer
questions. At no time was he restrained in any way. He retained freedom to leave the
interview room and to use the restroom . In fact, at no time did they assert authority over
him or threaten the use of physical force. Finally, at no time did officers deny a request
by Fugett either to stop the interview or to allow him to leave. Thus, we reject Fugett's
claim that he was in custody from the moment he accompanied the detectives to
headquarters for questioning .
Fugett suggests that the coercive atmosphere supports his claim that he was in
custody. This argument was rejected in California v. Beheler, 463 U.S . 1121, 103 S .Ct.
3517, 77 L .Ed.2d 1275 (1983). In Beheler , the Court recognized that "[a]ny interview of
one suspected of a crime by a police officer will have coercive aspects to it, simply by
virtue of the fact that the police officer is part of a law enforcement system which may
ultimately cause the suspect to be charged with a crime ." 463 U .S . at 1124, 103 S.Ct.
at 3519 (Citation omitted .) . Thus, the Court concluded "a non-custodial situation is not
19
converted to one in which Miranda applies simply because a reviewing court concludes
that, even in the absence of any formal arrest or restraint on freedom of movement, the
questioning took place in a coercive environment." Id . Likewise, Miranda warnings are
not required because the questioning took place at police headquarters . 463 U .S . at
1125, 103 S .Ct. at 3520 Thus, Fugett's coercive atmosphere argument is without
merit .
As a final note we would point out that the definition of custodial interrogation
focuses on "words and actions on the part of police." Watkins v . Commonwealth 105
S.W-3d 449, 451 (Ky. 2003). In this case, Fugett voluntarily left the interview room at
approximately 5:25 a .m. and approached a detective to inform him that he had not been
fully honest. Prior to structured questioning on this disclosure, detectives gave Fugett
his Miranda warnings . Having conducted a de novo review on this issue, we conclude
the court did not err in denying Fugett's motion to suppress his statements .
E. Admonishing Jury to Disregard Evidence
Fugett's last argument relates to the court's decision to exclude evidence that the
victims may have been in possession of a stolen 9mm pistol months prior to the
incident . No one disputes the fact that the only guns recovered following the incident
were a shotgun and a dark gray or black 9mm pistol .
The shotgun belonged to Steve Davison, a man who had a long-term relationship
with Ray's mother. Davison, formerly a licensed firearms dealer, retained many guns,
including several 9mm pistols . However, the 9mm pistol recovered from Fields was not
owned by Davison . It had been stolen from Anthony Jenkins during a burglary four
months prior to the shooting .
Fugett attempted to introduce evidence concerning a third pistol. During trial, a
clerk from the Chevron station stated that months before the incident Ray and Bobbins
had shown him a pistol that they claimed to have stolen . In response to the
Commonwealth's objection, Fugett argued the evidence rebutted the Commonwealth's
theory that he had brought the stolen 9mm pistol to the drug sale. Initially, the court
agreed and allowed Johnson, the clerk, to testify. As the testimony developed, it
became apparent that the pistol Johnson had seen was silver and could not be the one
involved in the incident.
The Commonwealth moved the court to reconsider its decision as to
admissibility . The Commonwealth argued the evidence lacked the corroborating
circumstances required under Kentucky Rule of Evidence (KBE) 804(b)(3) . The
Commonwealth pointed out that while Johnson claimed he was not a friend of the
victims, it appeared that they thought he was . Further, the evidence suggested they
were attempting to impress Johnson . Fugett replied that sufficient corroborating
circumstances had been shown . Fugett suggested the victims had no reason to lie, that
they believed they were talking to a friend, that the disclosure appeared to be
spontaneous, and that Ray did not have unlimited access to the guns belonging to
Davison.
After considering the arguments, the court concluded corroborating
circumstances were absent and it reversed its decision . In addition to the
Commonwealth's arguments, the court noted there was no evidence that the gun was
actually stolen . Further, the court felt Fugett's argument would have been stronger if
Davison had not owned several 9mm pistols . Having found Fugett had failed to satisfy
the requirements of KRE 804(b)(3), the court instructed the jury to disregard the
evidence.
The admissibility of evidence under KRE 804(b)(3) is left to the discretion of the
trial court. See generally United States v. Guillette , 547 F.2d 743, 754 (2nd Cir. 1976) .
KRE 804(b)(3) creates an exception to the hearsay rule for statements against interest.
In the case of statements against penal interest, the rule states that "[a] statement
tending to expose the declarant to criminal liability is not admissible unless
corroborating circumstances clearly indicate the trustworthiness of the statement." The
burden of establishing the requirements under the rule rests with the proponent of the
statement .
This Court, in Crawley v. Commonwealth , adopted the broader approach used by
the federal rules in evaluating declarations against interest . 568 S.W.2d 927, 931 (Ky.
1978). In Crawley, this Court, citing to Chambers v. Mississippi , 410 U .S. 284, 93 S .Ct .
1038, 35 L .Ed .2d 297 (1973), set out four considerations relevant to the trustworthiness
of statements under KRE 804(b)(3), including: "(1) the time of declaration and the party
to whom made ; (2) the existence of corroborating evidence in the case; (3) the extent to
which the declaration is really against the declarant's penal interest; [and] (4) the
availability of the declarant as a witness ." Id . As noted in Guilette , these factors are not
intended to be exhaustive or absolute . 547 F.2d at 754 . Thus, the court must consider
"the totality of the circumstances, including not only the circumstances surrounding the
making of the statement, but also other evidence at trial that corroborates the truth of
the statement ." See dissenting opinion in Harrison v. Commonwealth 858 S .W.2d 172,
180 (Ky. 1993).
A review of the record confirms that the trial court applied the appropriate factors
when it considered this issue. The court was free to accept the Commonwealth's
interpretation . In particular, the court agreed the declarants may have had a motive to
lie, and that they appeared to be bragging . Further, the court pointed out that the
surrounding circumstances failed to support Fugett's interpretation . The court noted
there was no evidence confirming the pistol shown to Johnson was actually stolen .
Finally, the record supported the conclusion that Davison possessed several pistols .
Under these circumstances, we cannot say the court abused its discretion when it
concluded Fugett had failed to establish the corroborating circumstances required under
KRE 804(b)(3) . 6
IV. Conclusion
Having found the court erred in denying the Appellant's challenge for cause as to
Juror 119631, his convictions and sentencing are herby reversed and this matter is
remanded for further proceedings consistent herewith .
Lambert, C.J ., Minton, Noble, and Schroder, JJ., concur. Cunningham, J.,
dissents by separate opinion . Abramson, J., not sitting .
6 Fugett has also argued the court compounded the errors surrounding evidence
as to weapons by allowing the Commonwealth to cross-examine Fields concerning her
initial statement that Fugett had a pistol in his possession when she drove him to the
Clarion Hotel. Fugett argues the Commonwealth was precluded from raising the prior
inconsistent statement because they had stipulated Fields made a statement denying
the fact that she knew Fugett had a gun when they drove to the scene . We agree with
the circuit court's interpretation that the Commonwealth's stipulation simply
acknowledged Fields had made a statement inconsistent with her initial statement . As
such, we agree the Commonwealth was able to raise the inconsistent statement during
cross-examination of Fields . See KRE 613.
23
COUNSEL FOR APPELLANT :
Daniel T. Goyette
Louisville Metro Public Defender
200 Advocacy Plaza
719 West Jefferson Street
Louisville, KY 40202
Frank William Heft, Jr.
Elizabeth B. McMahon
Office of the Jefferson District Public Defender
200 Advocacy Plaza
717-719 West Jefferson St.
Louisville, KY 40202
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
James C . Shackelford
Assistant Attorney General
Office of Criminal Appeals
Attorney General's Office
1024 Capital Center Drive
Frankfort, KY 40601
RENDERED : APRIL 24, 2008
TO BE PUBLISHED
6;VUyrrMr (~Ourf of ~irufurhv
2006-SC-000051-MR
ISIAH FUGETT
V.
APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE LISABETH HUGHES ABRAMSON, JUDGE
NO . 04-CR-000391
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION BY JUSTICE CUNNINGHAM
CONCURRING IN PART AND DISSENTING IN PART
While I believe the majority has resolved most of Fugett's issues in a logical and
appropriate manner, I disagree with the handling of Fugett's claim that the circuit court
abused its discretion in failing to grant a motion to strike Juror 119631 for cause. As
this issue led the majority to reverse Fugett's conviction, I must dissent .
The majority reasons that when "[c]onsidering Shane, Stopher, Soto and Sholler
together, they support the conclusion that Juror 119631 should have been stricken for
cause in this case." See slip opinion at 13. I disagree . I believe Shane can be
distinguished and, thus, does not mandate this result. Further, I believe the reasoning
applied by this Court in Stopher, Soto, and Sholler supports my conclusion that the
circuit court did not abuse its discretion in denying the motion to strike Juror 119631 for
cause .
In Shane, the juror being challenged was an officer employed by the same
organization and assigned to the same district as the officers testifying in the case . See
243 S.W.3d 336-37, (Ky. 2007). Further, the prospective juror personally knew the
officers. While the juror in Shane stated he did not believe his relationship with the
witnesses or his position with the department would affect his ability to be impartial, he
did indicate
he had "an inside point of view"; that he was "absolutely" pro-police ; that
while "police are just like everybody else" he did not believe they would lie
under oath because they took the oath more seriously; and that he would
find it more likely that a police officer was telling the truth than a lay witness.
See slip opinion at 13, quoting Shane , 243 S .W.3d at 337 .
When the facts in the case before us are compared to those in Shane , I believe
the distinction is clear. Juror 119631 was neither a police officer, nor was he employed
by the department or working with the officers who testified . Further, unlike the
prospective juror in Shane, Juror 119631 did not personally know, nor did he have any
relationship with the officers who testified . Rather, as acknowledged by the majority,
Juror 119631 stated that his wife's second cousin, a former member of the Louisville
Police Department, had been acquitted after shooting a suspected drug dealer. Juror
119631 stated that he had a lot of respect for police and the job they do . Rather than
firmly asserting a belief that officers would not lie under oath, or that officers took the
oath more seriously than lay witnesses, Juror 119631, in response to leading questions,
agreed more weight should be given to the testimony of a police officer and that police
were more credible . This contrasts sharply with the juror in Shane who went on to say
"he would find it more likely that a police officer was telling the truth than a lay witness."
Id at 13, quoting Shane, supra .
I also believe these factual distinctions place this case more in line with our
reasoning in Stopher, Soto, and Sholler. In Sholler v. Commonwealth , 969 S.W.2d at
706, a retired Secret Service agent was a member of the jury pool. The juror admitted
he was very pro-law enforcement and indicated he would give substantial credence to
the testimony of police. Further, when asked if all law enforcement officers told the
truth, the juror replied, "I don't know, I think so, yeah, I've never experienced one who
lied in court ." In finding no error in the court's decision to reject a challenge for cause,
this Court concluded that the juror's answers did not indicate bias against the
defendant. Id . at 708-09 . See also Sanders v. Commonwealth , 801 S.W.2d 665, 670
(Ky. 1990) (that a juror was a police officer in the county of the trial and knew several of
the testifying officers did not establish bias).
Likewise, in Soto v. Commonwealth , 139 S .W.3d at 850, this Court concluded the
facts surrounding the prospective jurors did not establish bias against the defendant.
We reached this conclusion knowing one juror knew members of the police department,
and another juror stating he might give more weight to the testimony of police over that
of a lay witness. In Stopher v. Commonwealth , 57 S.W.3d at 797, the prospective juror
acknowledged his father had been a police officer . The juror went on to say that he "did
not have any preference for police officers and . . . his family connection to the law
enforcement profession would in no manner affect his ability to decide the case based
on the evidence presented ."
In all three of these cases, the prospective jurors' relationships with law
enforcement were closer than those present in the case before us. While the juror in
Sto her indicated that the relationship would not affect his ability to decide the case
before him, the other cases involved jurors who indicated they were pro-law
enforcement and would give credibility to the testimony of police officers. What
distinguishes these cases and the case before us from Shane 'is not only the degree
with which the juror expressed these views, but also the fact that the prospective juror
simply did not believe a police officer would lie under oath . The prospective juror went
further and stated that he believed it was more likely that a police officer was telling the
truth than a lay witness. These statements focus directly on the level playing field we
sought in Shane . This circumstance simply is not present in the case before us, nor did
we find it present in Stopher, Soto, and Sholler.
Further, the majority makes the point that one of the keys to our decision in Soto
was our conclusion that there were no testimonial inconsistencies between the officers'
testimony and that of lay witnesses . I believe this same reasoning applies in Fugett's
case . The majority fails to point to any inconsistencies between the testimony of police
officers and the testimony of lay witnesses. Fugett has not contested the substance of
his changing version of events: first, as a helpful witness who could assist police ;
second, as a bystander present at the crime whose only participation was hiding the
weapons at the shooter's request ; and finally, as a participant in the drug sale who shot
in self-defense .
While one witness, Fields, stated at trial that she had not told police Fugett had a
pistol when they went to the hotel, this is not a case of the word of police versus the
word of a lay witness. Fields' statement, given after receipt of her Miranda rights, was
recorded on January 28, 2004. Thus, in effect the dispute was between the initial
recorded words of Fields and her subsequent testimony at trial . Under these
circumstances, as in Soto , supra , there are no testimonial inconsistencies between the
officers' testimony and the testimony of lay witnesses . This reinforces my conclusion
that the answers given by Juror 119631, in response to leading questions, that more
weight should be given to the testimony of a police officer and that police were more
credible, simply did not create an uneven playing field for Fugett .
The majority expresses concern over whether Juror 119631's responses indicate
he could not consider mitigating evidence. I disagree . I believe a review of the juror's
answers simply indicates his lack of knowledge as to the law concerning aggravating
factors and mitigating evidence. Those answers also indicate his surprise that some
things, such as age and substance abuse, can be considered as mitigating factors . As
this Court noted in Mabe v. Commonwealth
Voir dire examination occurs when a prospective juror quite properly has
little or no information about the facts of the case and only the most vague idea
about the applicable law. At such time a juror is often presented with the facts in
their harshest light and asked if he could consider imposition of a minimum
punishment. Many jurors find it difficult to conceive of minimum punishment
when the facts as given suggest only the most severe punishment. Similarly,
many citizens are astounded to learn that being under the influence of drugs or
alcohol may be considered by them as factors mitigating the punishment which
should be imposed . Predictably, when asked whether they believe being under
the influence should mitigate punishment, the answer is often in the negative . A
per se disqualification is not required merely because a juror does not instantly
embrace every legal concept presented during voir dire examination. The test is
not whether a juror agrees with the law when it is presented in the most extreme
manner . The test is whether, after having heard all of the evidence, the
prospective juror can conform his views to the requirements of the law and
render a fair and 'impartial verdict .
884 S .W.2d 668, 671 (Ky. 1994).
In the case before us, the circuit court gave examples and asked Juror 119631 if
he could consider evidence of mitigation . Juror 119631 indicated he would consider the
evidence, but could not say whether he would automatically give a certain penalty if
there was mitigating evidence. When the court rephrased the question in terms of being
in a group who could take the evidence into consideration, or being in a group who
simply would not give it any consideration, Juror 116931 indicated that he would be in
5
the group that could consider everything presented. Further, Juror 119631 indicated
that he could consider the full range of penalties. In light of the totality of the juror's
answers, I am unable to say the circuit court abused its discretion in denying Fugett's
motion to strike Juror 119631 for cause based on this reason .
As noted by the majority,
Kentucky has long recognized that "a 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, an appellate court will not reverse the trial court's determination ."
Pendleton v. Commonwealth, 83 S.W.3d 522, 527 (Ky. 2002) (internal quotes
and citations omitted .) . See also Soto v. Commonwealth , 139 S.W.3d 827, 848
(Ky. 2004) ("A determination whether to excuse a juror for cause lies within he
sound discretion of the trial court and is reviewed only for a clear abuse of
discretion .").
See slip opinion at 9-10. The majority goes on to recognize that
the decision to exclude a juror for cause is based on the totality of the
circumstances, not on a response to any one question . See Morgan v.
Commonwealth , 189 S.W.3d at 104, overruled in part on other grounds by
Shane v. Commonwealth , 243 S.W.3d 336 (Ky. 2007). This recognizes the
duty of the trial court "to evaluate the answers of prospective jurors in context
and in light of the juror's knowledge of the facts and understanding of the law ."
Stopher, 57 S .W.3d at 797."
Id . It is my belief that the circuit court's decision simply does not amount to an abuse of
its discretion . While the possibility exists that any one of us, sitting as a trial judge, may
have reached a different conclusion, this is not the standard for review. The fact that
this trial judge reached another result after considering the totality of Juror 119631's
answers, the forms of the questions asked, and the juror's knowledge of the law at the
time, simply does not amount to reversible error.
I am also seriously concerned that this decision, coupled with our holding in
Shane , will place too much pressure upon our trial judges when dealing with the very
difficult and inexact science of selecting fair jurors. This case will resonate with every
trial judge in this state . Judge Abramson struggled with a troublesome issue that is
even more prevalent in the rural areas of the state where jurors are more likely to know
witnesses and law enforcement personnel involved in a case.
It is not a far fetched notion that many persons hold members of the law
enforcement profession to a higher standard than ordinary citizens. If that is the case,
these same persons, when serving as jurors, would reasonably be inclined to give more
weight to the testimony of law enforcement personnel . Indeed, it would make for a
more wholesome and orderly society if the star of our law enforcement cadre shone so
brightly that all of us would have more confidence in their word than we would in the
word of the rabble and the rude . If fact, there are many who do.
Perhaps an area where this dilemma is most acute concerns lay witnesses with
whom prospective jurors are familiar. Again, this is most likely to occur in rural areas of
the Commonwealth. It seems to me that to ask a juror to initially give no greater weight
to the statements of someone he or she knows, even if remotely, than to a rank stranger
defies common sense and the ways of the world . This problem can become a double
whammy when jurors are both friends and acquaintances of the sheriff, the leading law
enforcement officer in the state, and a witness in the case.
How to deal with these citizen jurors in a way which does not bleed our jury
panels dry, and yet balances the interest of the defendant, is not a simple task. This
reality brings us back to the current case before us. Trial judges must be given ample
leeway and deference in their voir dire of these types of jurors . There must be sufficient
give and take so that the judge's determination is not evaluated on one or two
comments or answers of the jurors .
For these reasons, I respectfully dissent from the decision reached by the
majority and would affirm Fugett's conviction in the Jefferson Circuit Court .
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