O'HAIR V. WELLS
CIVIL PROCEDURE: Using peremptory in lieu of denied challenge for cause is not harmless error
2004-CA-002481
NOT TO BE PUBLISHED: Reversing and remanding
Panel: STUMBO PRESIDING; CAPTERTON, BUCKINGHAM CONCUR
POWELL COUNTY
DATE RENDERED: 7/3/2008
The appeal comes from a judgment pursuant to a jury verdict in a wrongful death case finding that the owner of a funeral home, Carl Wells, was not liable for the decedent’s fall down the stairs of the funeral home.
The only issue to re-examine and determine anew is whether three jurors should have been removed for cause. The previous panel of this Court of Appeals was bound by the rule in Morgan v. Commonwealth, 189 S.W.3d 99 (Ky. 2006), and as such, found no error on the part of the trial court because the two jurors it felt should have been removed for cause did not sit on the jury due to the use of peremptory strikes. However, in Shane, the Kentucky Supreme Court overruled Morgan v. Commonwealth, 189 S.W.3d 99 (Ky. 2006), by holding that a trial court’s failure to strike a juror for cause violated a substantial right, and thus, could never be harmless.
Once a close relationship, either familial, financial, or situational, with any of the parties is established, the court should sustain a challenge for cause regardless of protestations of lack of bias. Ward v. Commonwealth, 695 S.W.2d 404 (Ky. 1985).
However, a prospective juror is not automatically disqualified merely because he is acquainted with one of the parties. Maxie, 82 S.W.3d at 862. So long as reasonable grounds exist to believe the juror can render a fair and impartial verdict based solely on the evidence, the juror is qualified to sit on a case. Juror bias “does not encompass a mere social acquaintanceship in the absence of other indicia of a relationship so close as to indicate the probability of partiality.” Sholler v. Commonwealth, 969 S.W.2d 706 (Ky. 1998).
With juror Strange’s admission that he is a close personal friend of Wells, that they are in a social club together and that he likes Wells very much, the COA believed the trial court abused its discretion in failing to strike this juror for cause.
Also, where jurors demonstrate considerable knowledge of the facts of the case such that they have formed an opinion about the main issue in the case, they must be excused for cause. Marsch v. Commonwealth, 743 S.W.2d 830 (Ky. 1987).
Shane holds that forcing a party to use a peremptory challenge to remove a juror when the juror should have been removed for cause is a violation of a substantial right. If the juror should have been removed for cause, but was not, it is reversible error. COA agreed with the previous panel of this Court that two of the jurors should have been removed for cause.
By Michael Stevens
Comments