MARK LEE CROSSLAND V. COMMONWEALTH OF KENTUCKY
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RENDERED : AUGUST 27, 2009
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2007-SC-000689-MR
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MARK LEE CROSSLAND
V.
ON APPEAL FROM McCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
NO . 06-CR-00029
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
REVERSING AND REMANDING
I . INTRODUCTION .
Shortly after submitting this case to the jury, the trial court excused one
of the jurors and replaced him with a discharged alternate juror, who was
apparently located and returned to the courthouse . Such a post-submission
substitution ofjurors is reversible error under current Kentucky precedent if
the error is preserved .' By contrast, we held in an unpublished case that such
a post-submission substitution did not require reversal if the error is
unpreserved.2 Having re-examined the post-submission juror substitution
Thurman v. C ommonwealth, 611 S.W.2d 803, 804 (Ky.App. 1980); Woods v .
Commonwealth, 287 Ky. 3 12, 152 S .W.2d 997, 999 (1941) .
Holland v. Commonwealth, No. 2004-SC-0111-MR, 2005 WL 2045375 at *3-4 (Ky.
Aug. 25, 2005 .
issue in this appeal, we remain convinced that a trial court lacks the authority
to order post-submission substitution of a juror. But we now also hold that a
post-submission substitution error is subject to harmless error analysis. The
substitution error is not harmless in this case because the trial court failed (1)
to ascertain by a colloquy on the record that the replacement juror had not
been tainted by outside contacts after being discharged and (2) to order the
reconstituted jury to start their deliberations over after the replacement joined
them.
II . FACTUAL AND PROCEDURAL HISTORY .
A jury convicted Crossland of second-degree arson, first-degree burglary,
two counts of theft by unlawful taking (of a firearm), second-degree cruelty to
animals, and of being a persistent felony offender in the second degree
(PFO 2) .3 The jury recommended PFO 2-enhanced sentences of thirty-years'
imprisonment each for the burglary and arson convictions and seven-years'
imprisonment each for the theft by unlawful taking convictions, all to run
consecutively for a total recommendation of seventy-four years' imprisonment .
Oddly, the circuit court record provided to us does not contain the indictment .
Instead, the record we have begins shortly before trial. In addition, Crossland's
brief references videotapes of the trial as having occurred in November 2007 . Since
the trial occurred in July 2007, we will assume the references to a November trial
are typographical errors .
The jury recommended incarceration for eight months and a $350 fine for the
misdemeanor cruelty to animals conviction .
In the final judgment, the trial court properly reduced that sentence to seventy
years' imprisonment, 5 after which Crossland filed this appeal.
III . ANALYSIS.
Crossland raises three main issues. First, he contends that the trial
court erred by substituting an alternate juror for a juror who was excused after
the case had been submitted to the jury. Second, he contends that the trial
court erred by failing to direct a verdict of acquittal on the arson charge .6 And,
third, Crossland contends that the Commonwealth engaged in prosecutorial
misconduct four times in statements made during its closing argument . We
agree that the juror substitution was reversible error under the facts of this
case but find no reversible error in any of the other issues .
A.
The Trial Court Erred By Replacing a Juror
After Deliberations Had Begun .
We must decide if the trial courts of this Commonwealth have the
authority to engage in post-submission juror substitutions. We conclude that
they do not. Having determined that such substitutions are erroneous, our
next inquiry is whether those errors should be subject to harmless error
analysis . Although previous cases did not use harmless error analysis, we
conclude that such juror substitution errors are subject to harmless error
See Kentucky Revised Statutes (KRS) 532.1 1010(1)(c)
.
The heading for this argument in Crossland's brief states that "[c]ircumstantial
evidence of arson, assault, and manslaughter failed to meet Kentucky's standards
for sufficiency." Crossland was not convicted of assault or manslaughter, so we
will assume that the references to those offenses are typographical errors and that
Crossland only argues that his arson conviction was unsupported by evidence
sufficient to withstand a motion for directed verdict.
analysis, but only if the error is properly preserved . Finally, we must decide
whether the error in this case was harmless . We conclude that it was not .
1 . Relevant Facts on the Juror Substitution Issue .
Approximately fifteen minutes after the case had been submitted to the
jury in the guilt phase, the trial court appeared on the record stating that one
of the jurors had previously been excused from jury duty by the Chief Circuit
Judge because the juror had advised the Chief Circuit Judge that he could not
sit in judgment of another. After the trial court stated that an alternate juror
was available, the Commonwealth suggested that the alternate should take the
place of the juror in question . The trial court agreed with the Commonwealth
and ordered the alternate juror to be located and returned to the courthouse so
he could join the already deliberating jury.
Shortly afterwards, the trial court called the jury back into the
courtroom. At the bench, the trial court asked the juror who had previously
been excused by the Chief Circuit Judge why he had not spoken up during voir
dire. Unfortunately, the juror's answer was somewhat unintelligible . The trial
court then dismissed that juror? and informed the remaining eleven jurors that
Because it is not necessary to the resolution of this case, we express no opinion on
the propriety of the dismissal of the juror. Obviously, the juror should have
notified the parties and the trial court during voir dire of his supposed reluctance
to sit in judgment of another. His failure to do so could possibly have meant that
he no longer deemed himself unable to sit in judgment of another . Accordingly,
better practice would have been for the trial court to engage in a colloquy with the
juror to ensure that he persisted in his previously self-professed inability to sit in
judgment of another. The need for a colloquy is reinforced by the fact that the
juror excusal form signed by the Chief Circuit Judge excused the juror for an
indefinite period of time due to "[exxtreme [innconvenience[ .]" An inability to sit in
judgment of another does not appear to us to be an "extreme inconvenience ." In
other words, there appeared to be no inherent statutory or constitutional reason
something had happened, and the alternate juror was on his way back to join
their deliberations. The trial court ordered the jury not to deliberate until the
new juror arrived. As the trial court was leaving the bench, the Commonwealth
Attorney asked if the new juror needed to be re-sworn; but the trial court's
answer (if any) was not audible . The proceedings then went off the record .
A little over an hour later, the proceedings came back on the record after
the jury informed the trial court that it had reached a verdict. Before the jury
was brought into the courtroom to announce its verdict and before Crossland's
counsel apparently knew what the verdict would be, she objected to the postsubmission substitution of the alternate juror. The Commonwealth stated the
objection was belated, to which Crossland's attorney stated she planned to
object when the alternate arrived and was re-sworn but did not make her
objection then because there had been no additional proceedings on the record .
The trial court overruled the objection, citing an unnamed federal case as
authority for the replacement of the discharged juror with the alternate juror.
2 . Trial Courts Lack the Authority Under Kentucky Law
to Engage in a Post-Submission Juror Substitution .
Kentucky precedent clearly holds that a trial court errs by replacing a
juror with an alternate juror, who has been previously discharged, once the
jury has begun deliberating. We believe that precedent is sound.
why the juror could not serve (i.e., not being a United States citizen, being a
convicted felon, etc.), meaning that the issue should have been fleshed out by the
trial court.
In a case decided by our predecessor court, the jury had been
deliberating for an unspecified amount of time when the trial court, over the
defendant's objection, discharged one juror in order to permit that juror to
attend his father's funeral, then substituted a thirteenth juror (i.e., an alternate
juror) in the discharged juror's place .8 Our predecessor court held that "the
court had no right after the jury began its deliberations to substitute the
thirteenth juror[,]" even though the then-applicable Criminal Code of Practice
permitted the selection and qualification of a thirteenth juror. And "when the
case has been finally submitted to the jury, the function of the thirteenth juror
ceases and he should be discharged ."9 Our predecessor court did not address
whether that erroneous juror substitution was a harmless error, perhaps
because the Commonwealth had conceded on appeal that the substitution was
a reversible error. t o
The Court of Appeals confronted a similar situation in Thurman. In that
case, an alternate juror heard all of the evidence but was discharged after
closing arguments ." Shortly after the discharge of the alternate, one of the
jurors fell ill and needed to be hospitalized . The trial court called the
discharged alternate juror back to the judge's chambers . In a notable
departure from the present case, the trial court and counsel questioned the
a
Woods , 152 S.W.2d at 998 .
Id. at 998-99.
Id. at 999 .
Thurman, 611 S.W.2d at 803 .
alternate juror about his activities and whereabouts since his discharge . 12
Over the defendant's objections, the trial court returned the discharged
alternate to the jury.
On appeal,. the Court of Appeals held that the substitution of the
discharged alternate juror was erroneous because "the discharging of [the
alternate juror] released him from his oath and relieved him of his
responsibilities as a juror." 13
Although the Court of Appeals expressed
empathy to the trial court's quandary, it "found no procedure for augmenting a
jury to increase its number to that required by law once the jury has begun
deliberating ." 14
The Court of Appeals recognized that Woods was based upon the former
Criminal Code of Practice but believed that the then-applicable Kentucky Rules
of Criminal Procedure (RCr) 9 .32, which required the clerk randomly to reduce
the number ofjurors to the number required by law before the jury retired to
consider its verdict, was "an embodiment of the Woods holding . . . ." 15 So
"[onnce [the alternate juror] was discharged from the panel he could not be
recalled[,]"meaning that "[t]he trial court should have granted Thurman's
motion for mistrial." 16 The Court of Appeals, however, did not engage in any
12
Id. at 803-04.
13
Id. at 804 .
14
Id.
15
Id.
16
Id.
analysis of whether the erroneous substitution could have been a harmless
error .
RCr 9.32, the rule upon which Thurman was based, was abolished in
1981 ; and we have not enacted a similar provision in-our Rules of Criminal
Procedure . But Kentucky Rules of Civil Procedure (CR) 47 .02 contains an
express provision analogous to the former RCr 9 .32 . Since there is no criminal
rule to the contrary, CR 47.02 applies to criminal cases. 17 Under CR 47 .02, a
trial court may empanel up to two additional jurors. Significantly, that rule
provides only for a pre-submission substitution of an alternate . CR 47 .02
provides that "[i]f the membership of the jury exceeds the number required by
law, immediately before the jury retires to consider its verdict the clerk, in open
court, shall . . . reduce the jury to the number required by law, whereupon the
jurors so selected for elimination shall be excused." In the case now before us,
the trial court's decision to order a post-submission juror substitution finds no
support in CR 47.02 .
We are aware that when the trial court discharged the alternate juror
and allowed him to leave the courtroom after closing arguments, it admonished
the alternate juror not to discuss the case with anyone or to make any ultimate
17
RCr 13 .04 provides that "[t]he Rules of Civil Procedure shall be applicable in
criminal proceedings to the extent not superseded by or inconsistent with these
Rules of Criminal Procedure ." CR 47 .02's applicability to criminal cases was
recognized by the Court of Appeals in Hubbard v . Commonwealth, 932 S .W.2d 381,
382 n.1 (Ky.App. 1996); and we have also cited CR 47 .02 in criminal cases, albeit
for different reasons. See, e.g., Lester v. Commonwealth , 132 S .W.3d 857, 862-63
(Ky. 2004) .
conclusions about the case. But this admonition to the discharged alternate
was not effective for replacement purposes .
Thurman specifically holds that discharging an alternate juror relieves
him of his responsibilities as a juror. 18 Likewise, CR 47.02 requires the jury to
be reduced to twelve members before retiring to consider its verdict, whereupon
any additional jurors (i.e., alternates) "shall be excused ." So when the twelve
jurors retire to deliberate, any alternate jurors are necessarily discharged from
further jury service regardless of any limiting oral instruction from the trial
court. Even if we assume for argument that the juror had not been fully
"discharged" from service because of the trial court's parting admonition, the
trial court erred by simply permitting that juror to join the other eleven jurors
without undertaking any colloquy with the returning alternate to ensure that
he had not discussed the case with anyone or otherwise encountered any
circumstance after leaving the courtroom that might have affected his ability to
serve as an impartial juror. 19
The third and most recent time this post-deliberation substitution
problem has been addressed by Kentucky's appellate courts was in our recent
is Thurman, 611 S.W.2d at 804 .
19
See, e.g., People v. Roberts, 824 N .E.2d 250, 259-61 (111. 2005) (holding that post-
submission juror substitution was permissible but reversing because, among other
things, the trial court had not taken steps to ensure that the alternate juror had
not been biased due to outside influences) ; Hayes v. State, 735 A.2d 1109, 1121
(Md. 1999) ("Assurance that the alternate juror remains qualified to serve is a
prerequisite to a substitution and, unless waived by the defendant, must be
established on the record.") .
unpublished decision in .Holland.20 In Holland, the jury had. deliberated for
about two hours when a school principal notified the court that one of the
juror's children had suffered a seizure and was in the hospital. The trial court
then discussed its options with counsel, and defense counsel suggested
substituting the dismissed alternate juror for the juror whose child had fallen
ill . The trial court ultimately agreed, and the alternate juror was recalled and
substituted. 21
On appeal, the appellant relied upon Thurman for the proposition that
the post-deliberation substitution was erroneous . Nevertheless, we refused to
reverse, instead holding that the appellant had waived the issue. 22 More
specifically, we observed that defense counsel had "expressed her support" for
recalling the alternate juror and that it was "simply impermissible . . . for
defense counsel to advocate one course of action at trial, then appeal the trial
court's decision to follow that very recommendation . 1123
Admittedly, Woods, Thurman, and Holland are distinguishable in many
respects. But we find nothing in any of the three cases that would authorize
the post-submission substitution of a juror. Similarly, we find nothing in our
procedural rules or statutes to authorize a post-submission substitution of a
juror. CR 47 .02 requires the alternate jurors to be excused "immediately
before the jury retires to consider its verdict . . . ." We must conclude that a
20
2005 WL 2045375 .
21
Id. at *2
22
Id. at *4.
23
Id.
10
trial court simply lacks the authority under Kentucky law to order a juror
substitution after the jury has begun deliberation .
The trial court attempted to justify its decision to recall the alternate
juror by discussing an unnamed- federal case . But the trial court erred by
relying upon federal law on this point for two reasons. First, as previously
discussed, Kentucky law specifically forbids post-submission juror
substitutions. Second, federal law specifically permits the post-submission
substitution of a juror. 2 4 Similarly, other states have court rules or statutes
that would permit post-submission juror substitutions. 25 In contrast, under
Kentucky law, there must be twelve jurors in trials in circuit court;26 but the
parties may stipulate "that the jury shall consist of any number less than
twelve (12), except that no jury shall consist of less than six (6) persons ." 27
However, such a stipulation can only be made "at any time before the jury is
sworn . . .
24
25
26
27
28
."28
So, unlike the law in federal court or the law in some other
See Federal Rules of Criminal Procedure 23 (b) (3) (permitting a jury of eleven to
return a verdict, even without the parties' agreement, if the court finds good cause
to excuse a juror) and FRCrP 24(c)(3) (authorizing the retention of alternate jurors
after the jury retires to deliberate, and requiring trial court to instruct the jury to
begin deliberations anew if an alternate replaces a juror after the jury had begun
deliberating) .
See 75B Am.Jur.2d Trial § 1462 (2009) ("Some states have adopted statutory
criminal rules provisions allowing the substitution of an alternate juror after
deliberations have begun . In such states, a trial court is statutorily authorized to
seat an alternate juror in the place of a juror who becomes ill or for other good or
legal cause is incapacitated, and the trial court must exercise its discretion in
making the substitution and is free to do so even after deliberations have begun.")
(footnote omitted) .
KRS 29A.280(1) .
KRS 29A.280(2) .
Id.
states, Kentucky's trial courts have no authority to force the parties to accept
the verdict of a jury composed of less than twelve members or unilaterally to
order the post-submission substitution of a juror.
Reasonable minds could perhaps differ about whether we should provide
a mechanism for the post-submission substitution of a juror. After all, we are
empathetic to the quandary faced by trial courts and the parties who have
invested time and resources in a jury trial only to discover during deliberation
that a juror must be excused . But current Kentucky law does not authorize
such post-submission substitutions.
3.
Post-submission Juror Substitution Errors
are Subiect to Harmless Error Analysis .
None of the three Kentucky cases previously discussed addresses
whether an improper post-submission juror substitution could be a harmless
error. Upon reflection, however, we conclude that this type of error should be
subjected to a harmless error analysis .
Foremost in our reasoning is the inescapable fact that RCr 9 .24
mandates that "no error or defect in any ruling . . . or in anything done or
omitted by the court . . . is ground for granting a new trial or for setting aside a
verdict . . . unless it appears to the court that the denial of such relief would be
inconsistent with substantial justice." RCr 9 .24 further provides that we "must
disregard any error or defect in the proceeding that does not affect the
substantial rights of the parties ." Virtually all errors, therefore, are subject to
harmless error analysis .
In addition, a seeming majority of other courts have held that juror
substitution of this sort does not violate the constitution .29 Similarly and
significantly, neither Woods . Thurman, nor Holland concluded. that post
submission juror substitution was an issue of constitutional import. In fact,
none of those three cases even mentions in passing any constitutional
dimension to this issue.
Even if we were to assume, for the sake of argument alone, that this type
ofjuror substitution error was one of constitutional import, our conclusion that
a harmless error standard would apply would be unchanged . Errors of
constitutional import-the most fundamental and serious type of errors-are
generally analyzed under a harmless error standard.30 As the Court of Appeals
29
30
Claudio v. Snyder, 68 F.3d 1573, 1575 (3d Cir. 1995) (collecting cases and stating,
"[t]he Supreme Court has not specifically ruled on the constitutionality of
substituting an alternate juror after jury deliberations have begun. Most of the
federal courts that have addressed the issue, however, have held that when
circumstances require, substitution of an alternate juror in place of a regular juror
after deliberations have begun does not violate the Constitution, so long as the
judge instructs the reconstituted jury to begin its deliberations anew and the
defendant is not prejudiced by the substitution ."); 50A C .J.S. Juries § 531 (2009)
("Under many state statutes and court rules, a deliberating juror may be replaced
with an alternate juror at any time, even if the discharge occurs during
deliberations, for good cause shown ; such a procedure is not unconstitutional, and
does not violate the Federal Constitution or a state constitution .") (footnotes
omitted) . But see, e.g., State v. Bobo , 814 S .W.2d 353, 356 (Tenn . 1991) (holding
that post-submission juror substitution, "coupled with the trial court's failure to
instruct the jury to begin deliberations anew," violated right to trial by jury section
of Tennessee Constitution) .
Neder v . United States, 527 U.S. 1, 8 (1999) ("We have recognized that most
constitutional errors can be harmless . If the defendant had counsel and was tried
by an impartial adjudicator, there is a strong presumption that any other
constitutional errors that may have occurred are subject to harmless-error
13
of Michigan noted, "[t]he prevailing holding among the [federal] circuits is that
reinstating a discharged alternate juror during deliberations, absent consent of
the defendant, requires reversal of a conviction only when the defendant has
been prejudiced by the procedure . We believe that this is the better, more
reasonable rule ."31
Our decision to apply the harmless error standard to this issue should
come as no great surprise since we refused to reverse an unpreserved juror
substitution error in Holland .32 After all, we would have had to reverse the
conviction in Holland if juror substitution errors were structural errors, not
subject to harmless error analysis. By contrast, non-constitutional errors will
rarely-perhaps never-rise to the level of being a structural error . 33
We reject Crossland's contention that this type of juror substitution error
rises to the level of a structural error-errors which are, per se, reversible
31
analysis . Indeed, we have found an error to be structural, and thus subject to
automatic reversal, only in a very limited class of cases.") (citations, quotation
marks, and brackets omitted) ; Talbott v. Commonwealth, 968 S .W.2d 76, 83-84
(Ky. 1998) ("The fact that an error involves a constitutional right does not preclude
harmless error analysis .") .
People v. Dry Land Marina, Inc., 437 N.W.2d 391, 394 (Mich .Ct.App. 1989)
(citations omitted) . See also DAVID B. SWEET, ANNOTATION, PROPRIETY, UNDER STATE
STATUTE OR COURT RULE, OF SUBSTITUTING STATE TRIAL JUROR WITH ALTERNATE AFTER
CASE HAS BEEN SUBMITTED TO JURY, 88 A. L.R.4th 711 (1991) .
32
33
2005 WL 2045375 .
State v. Colon, 885 N.E.2d 917, 922 (Ohio 2008) ("If an error in the trial court is
not a constitutional error, then the error is not structural error.") ; Green v. United
States , 262 F.3d 715, 719 (8th Cir . 2001) (Bye, J., dissenting) ("Structural errors
appear to be confined to the constitutional sphere because Congress has mandated
the application of harmless error review by statute . See 28 U.S .C. § 2111
(requiring the circuit courts to disregard `errors or defects which do not affect the
substantial rights of the parties') . Presumably, only grave constitutional errors
could surmount the statutory default rule that harmless error analysis applies .") .
14
because they undermine the fundamental legitimacy of the judicial process . 34
Structural errors are rare. Examples of errors that have been held to be
structural (and, thus, compel reversal) are such fundamental errors as a
complete denial of counsel, a biased trial judge, or denial of a public trial . 35
Although a criminal defendant has a constitutional right to a trial by jury
under both the federal and Kentucky Constitutions, 36 we join many federal
courts in concluding that generally, "substitution of an alternate juror in place
of a regular juror after deliberations have begun does not violate the
Constitution . . .
."37
Because we have already determined that this error is not of
constitutional dimension, we conclude that it is both permissible and
appropriate to analyze a post-submission juror substitution error under the
harmless error standard, provided the error is properly preserved . If the error
34
35
36
37
Washington v. Recuenco , 548 U .S. 212, 218-19 (2006) ("We have repeatedly
recognized that the commission of a constitutional error at trial alone does not
entitle a defendant to automatic reversal . Instead, most constitutional errors can
be harmless . If the defendant had counsel and was tried by an impartial
adjudicator, there is a strong presumption that any other constitutional errors that
may have occurred are subject to harmless-error analysis . Only in rare cases has
this Court held that an error is structural, and thus requires automatic reversal .
In such cases, the error necessarily renders a criminal trial fundamentally unfair
or an unreliable vehicle for determining guilt or innocence.") (citations, footnote,
and brackets omitted) .
Id. at 218 n.2 (listing only six cases in which United States Supreme Court has
found errors to be structural errors) .
U.S. Const. Amend. VI; Ky. Const. § 7 .
Claudio, 68 F.3d at 1575 (collecting cases) . See also DAVID B . SWEET, ANNOTATION,
PROPRIETY, UNDER STATE STATUTE OR COURT RULE, OF SUBSTITUTING STATE TRIAL
JUROR WITH ALTERNATE AFTER CASE HAS BEEN SUBMITTED TO JURY, 88 A.L.R.4th
§ 3(a) at 727-31 (1991) .
15
711
is not properly preserved, it should be analyzed for palpable error under
RCr 10.26.
4.
We Cannot Say From the Record Before Us that the
Juror Substitution Error in this Case was Harmless .
Having determined that we can use harmless error analysis to examine a
properly preserved post-submission juror substitution error, we must now
determine whether the error in this particular case was preserved . We
conclude it was.
Crossland's attorney did not object to the juror substitution until after
the trial court had been notified that the jury had reached a verdict. That
objection was not, therefore, contemporaneous with the trial court's decision to
substitute the discharged alternate . However, when Crossland's counsel made
her objection, she explained that she had assumed the trial court would
address the alternate juror on the record before dispatching the alternate to
join deliberations; and she had intended to make her objection at that time .
But that event did not occur on the record .
We will not penalize Crossland because the trial court did not afford his
attorney a proper forum in which to lodge a contemporaneous objection .
Crossland's attorney objected at the first moment the trial court came back on
the record after deciding to recall the alternate juror . Importantly, Crossland's
counsel objected before knowing the jury's verdict. So we will apply the
harmless error standard for preserved errors to this case.
A preserved, non-constitutional error is harmless "if one cannot say, with
fair assurance, after pondering all that happened without stripping the
erroneous action from the whole, that the judgment was not substantially
swayed by the error . . .
."33
But "[t]he inquiry cannot be merely whether there
was enough to support the result, apart from the phase affected by the error.
It is rather, even so, whether the error itself had substantial influence . If so, or
if one is left in grave doubt, the conviction cannot stand. "39 So we must
determine whether the erroneous post-submission juror substitution had a
"substantial influence" on the outcome, or whether we at least have a "grave
doubt" as to whether the error substantially influenced the jury's guilty
verdicts against Crossland.4o
We have a grave doubt about whether the jury's verdict was substantially
influenced by the improper jury substitution for two reasons. First, as
previously discussed, the trial court failed to ensure that the alternate juror
had not been subjected to outside influences that would have compromised his
ability to function as an impartial juror.41 So we are left to speculate as to
38
Kotteakos v. United States, 328 U.S . 750, 765 (1946) .
39
40
41
If we deemed the error to be of constitutional import, we would have to find the
error to be harmless beyond a reasonable doubt. Chapman v. California , 386 U.S .
18, 24 (1967) ("[B]efore a federal constitutional error can be held harmless, the
court must be able to declare a belief that it was harmless beyond a reasonable
doubt.") .
See, e.g., Roberts, 824 N.E.2d at 261 (criticizing trial court for not questioning
recalled alternate juror to ensure alternate not biased due to outside influences);
People v. Patterson, 832 P.2d 1083, 1085 (Colo .Ct.App . 1992) (holding that there
was no evidence to show that defendant was not prejudiced by post-submission
17
what the alternate juror did or said, or what was done or said to him, during
the period between the submission of the case to the jury and the alternate's
reentry into the trial .42 The importance of jurors not being subjected to outside
influences is highlighted by the fact that, absent stipulation of the parties and
approval of the court, RCr 9 .66 requires deliberating jurors in felony cases to
be sequestered. As the Court of Appeals of Maryland held, "[a]ssurance that
the alternate juror remains qualified to serve is a prerequisite to a substitution
and, unless waived by the defendant, must be established on the record ." 43
Second, the trial court failed to instruct the newly reconstituted jury to
begin its deliberations afresh once the alternate juror joined them . 44 It is well
settled that even in jurisdictions that permit post-submission substitutions, a
trial court "must instruct the jury to begin deliberating anew"; and the trial
court's failure to do so is reversible error.45 As the Supreme Court of California
has noted, a judge must instruct the jury to set aside any past deliberations
and to begin deliberating anew when a post-submission juror substitution
juror substitution because, inter alia, alternate juror was not questioned about his
activities while discharged until after verdict rendered) .
42
43
44
45
Though the trial court admonished the juror not to discuss the case with anyone
after he was permitted to leave the courtroom, the juror should still have been
examined to ensure that he complied with the court's admonishment .
Haves , 735 A.2d at 1121 .
The trial judge did tell the eleven jurors to not deliberate until the alternate arrived,
but did not tell them to begin their deliberations anew once the alternate arrived .
50A C.J.S . Juries F 531 (2009) . For example, the Supreme Court of Nevada has
reversed an appellant's conviction for committing lewd acts with a seven-year oldeven though the evidence against the appellant was overwhelming-solely because
the trial court failed to follow the law by instructing the jury to begin their
deliberations afresh once a post-submission juror substitution occurred . Carroll v.
State, 892 P.2d 586, 587-88 (Nev. 1995) .
18
occurs in order to "insure that each of the 1.2 jurors reaching the verdict has
fully participated in the deliberations, just as each had observed and heard all
proceedings in the case."46 In short, we agree with the Colorado Court of
Appeals that a direction from the trial court for the jurors to begin their
deliberations afresh is "vital to the integrity of the deliberative process . . .
."47
The jury had not been deliberating Crossland's fate long when the
improper substitution occurred. A brief deliberation time before substitution
would tend to support a conclusion that the erroneous substitution was a.
harmless error. 4s Had the trial court examined the substitute and instructed
the jury to begin deliberations afresh, we may have found the error to be
harmless because Crossland has not pointed to any specific prejudice
stemming from the alternate's ultimate participation in deliberating the issues
in the case .49 But the trial court did not engage in either of those prophylactic
measures . So we are left to speculate about whether the recalled juror was free
of outside taint and whether the newly reconstituted jury began its
deliberations afresh or whether the newly recalled juror simply acceded to a
46
47
48
49
People v . Collins, 552 P.2d 742, 746-47 (Cal . 1976), disapproved on another point in
People v. Boyette, 58 P.3d 391, 443 n.19 (Cal . 2002) . Accord State v. Trent ,
398 A.2d 1271, 1272-74 (N.J. 1979) .
Patterson , 832 P.2d at 1085 .
See id. ("The length of time the jury has deliberated may, indeed, influence the
issue of prejudice . And, it may be true that the longer the delay in inserting a
substitute juror into the process the stronger the presumption of prejudice .")
(citation omitted) .
Since the juror, who had been discharged as an alternate, had been vetted through
examination in the jury selection process, it would be difficult for Crossland to
point to any inherent prejudice in having that same juror included among the
twelve jurors who deliberated the verdict.
19
decision already arrived at by the other eleven jurors who had begun their
deliberations . 50 As the Court of Appeals of Maryland concluded in a similar
case, "on this record, we would be left to speculate whether the criteria . we
believe minimally necessary have been satisfied, and we are unwilling to engage
in such speculation ."51 And the fact that the jury deliberated a very short time
after being reconstituted is a factor that we may take into account in
determining whether the erroneous jury substitution prejudiced Crossland .52
Because we are "left in grave doubt" about whether the erroneous postsubmission substitution had a "substantial influence" over the outcome of the
proceedings, we must reverse Crossland's convictions.53
B. Crossland Was Not Entitled to a Directed
Verdict on the Arson-CharP,e .
Although this case is being reversed because of the improper jury
substitution, we will briefly address Crossland's directed verdict claim since it
is potentially dispositive of the arson charge.
Crossland contends that there was insufficient evidence to convict him of
arson for setting his estranged wife's home afire . We disagree .
5o
51
52
53
Bobo, 814 S.W.2d at 356 ("It may be that deliberations began anew once the
alternate was reseated. But without an explicit instruction to that effect from the
trial judge, we cannot assume that the reconstituted jury panel started from the
beginning.").
Ha es, 735 A.2d at 1121 .
Roberts, 824 N.E.2d at 260 (holding that "length of deliberations both before and
after substitution" is a factor to be considered in determining ifjuror substitution
was prejudicial.) .
Kotteakos , 328 U.S. at 765 .
20
A defendant is entitled to a directed verdict, drawing all reasonable
inferences in favor of the Commonwealth, only "if under the evidence as a
whole, it would be clearly unreasonable for a jury to find guilt . . . ... 54- Even
"circumstantial evidence may form the basis for a conviction so long as the
evidence is sufficient to convince a reasonable jury of guilt ."55
Here, the Commonwealth offered proof of a broken window in the burned
home. According to the evidence, the window had been broken from the
outside . Debris from the areas of origin of the fire, the master bedroom and
bath, contained ignitable fluids, including gasoline . A detective noted a
significant pour pattern where an accelerant had been poured onto the floor
near the master bath. Crossland's estranged wife had told Crossland the day
before the fire that she was going to file for divorce, and Crossland had told her
that he was not going to let someone else "lay up in that house . . . ." A
camcorder and handgun, which were missing from the burned residence, were
found in Crossland's residence . Finally, when interviewed shortly after the fire,
Crossland smelled of gasoline; and he had what appeared to be burn marks on
his hands .
From that evidence, a reasonable juror could certainly have concluded
that Crossland had intentionally set afire his estranged wife's home . We reject
Crossland's contention that his conviction was based upon only conjecture and
an impermissible pyramid of inferences . To the contrary, we believe the
54
55
Commonwealth v. Benham, 816 S .W .2d 186, 187 (Ky. 1991) .
Davis v. Commonwealth , 147 S.W.3d 709, 729 (Ky. 2004) .
21
Commonwealth adduced sufficient evidence for a reasonable juror to infer
Crossland's guilt .
C. Alleged Prosecutorial Misconduct Either
Not Properly Preserved or Not Erroneous.
Crossland complains of four alleged instances of prosecutorial
misconduct . Three of those instances of alleged misconduct were not
preserved for appellate review, and Crossland has not explicitly sought
palpable error review in either his original brief or in his reply brief. Because
this case does not present truly extraordinary circumstances where justice
demands we undertake palpable error review on our own motion, we decline to
address the three unpreserved claims of prosecutorial misconduct .56 Since this
case is being sent back to the trial court for other reasons, we will briefly
discuss the lone remaining claim of prosecutorial misconduct to provide
guidance upon remand.
The only arguably preserved claim of alleged prosecutorial misconduct is
when the prosecutor referred in closing argument to General Norman
Schwarzkopf's statement that "all that needs to happen for evil to prevail is for
good people to do nothing," and then asked the jury to "do something ."57
56
57
Shepherd v. Commonwealth , 251 S .W.3d 309, 316 (Ky. 2008) ("Absent extreme
circumstances amounting to a substantial miscarriage ofjustice, an appellate
court will not engage in palpable error review pursuant to RCr 10.26 unless such a
request is made and briefed by the appellant.") .
Preservation of this issue is highly questionable because Crossland's attorney did
not make her objection until minutes after the jury had retired to deliberate.
Because the statement in question is not improper, however, we need not
definitively decide whether this issue is properly preserved.
22
A prosecutor is afforded "wide latitude" in closing argument ; 58 and "when
reviewing claims of prosecutorial misconduct, we must focus on the overall
fairness of the trial and may reverse only if the prosecutorial misconduct was
so improper, prejudicial, and egregious as to have undermined the overall
fairness of the proceedings ." 59
We construe the prosecutor's request for the jury to "do something" to be
only a request for the jury to find Crossland guilty. Immediately following
asking the jury to "do something," the prosecutor specifically asked the jury to
find Crossland guilty. A prosecutor's request in closing argument for a jury to
find a defendant guilty is proper and falls well within the wide latitude afforded
during closing argument .
IV. CONCLUSION .
The judgment of the trial court is reversed, and this case is remanded for
further proceedings consistent with this opinion .
All sitting . All concur.
Brewer v. Commonwealth, 206 S .W.3d 343, 350 (Ky. 2006) .
59 Id. at 349.
58
23
COUNSEL FOR APPELLANT :
Julia Karol Pearson
Department of Public Advocacy
100 Fair Oaks Lane, Suite 301
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE :
Jack Conway
Attorney General of Kentuc
Jason Bradley Moore
Assistant Attorney General
Office of Criminal Appeals
Attorney General's Office
1024 Capitol Center Drive
Frankfort, Kentucky 40601-8204
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