Commonwealth v. Simmons

394 S.W.3d 903

COMMONWEALTH of Kentucky, Appellant

v.Deonte SIMMONS, Appellee.

No. 2011–SC–000118–DG.

Supreme Court of Kentucky.

March 21, 2013.

Jack Conway, Attorney General of Kentucky, Jeffrey Allan Cross, Assistant Attorney General, Office of Criminal Appeals, Office of the Attorney General, Frankfort, KY, Counsel for Appellant.

Linda Roberts Horsman, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellee.

OPINION OF THE COURT BY JUSTICE ABRAMSON

ABRAMSON, Judge.

In July 2008, the Madison Circuit Court convicted Deonte Simmons of first-degree trafficking in a controlled substance (cocaine) and sentenced him as a second-degree persistent felon to fifteen years in prison. The jury that ultimately found Simmons guilty of that offense had only eleven members, one of the jurors having broken her ankle during an over-night recess. Simmons appealed his conviction to the Court of Appeals and claimed, among other things, that the eleven-member jury deprived him of his constitutional right to a jury trial. The Court of Appeals agreed and, finding the record ambiguous as to whether Simmons had waived the jury right he was asserting, remanded the matter to the trial court for a hearing on the question of Simmons's waiver of a twelve-person jury. If the trial court found that Simmons had validly waived any objection to the depleted jury, its judgment was to be reinstated, but if the court found insufficient evidence of a knowing and voluntary waiver, Simmons, in the Court of Appeals' view, would be entitled to a new trial. We granted the Commonwealth's motion for discretionary review to consider its contention that the Court of Appeals, in assessing the adequacy of a defendant's waiver of a twelve-member jury, applied the wrong standard.

Given Section 7 of the Kentucky Constitution and the intent clearly reflected in the Constitutional Debates, we affirm the Court of Appeals' conclusion that a twelve-person jury is a fundamental right in our Commonwealth. Any waiver of that right must be knowingly and voluntarily made by the defendant personally, not by his counsel unilaterally as a trial-management decision. While waiver of a twelve-person jury should be established through the trial court's colloquy with the defendant on the record, failure to do so may be harmless error. Where, as here, counsel has stipulated to proceeding with less than twelve jurors and the defendant has seemingly acquiesced, on remand the trial court should conduct an evidentiary hearing to determine if the defendant knowingly and voluntarily consented to that decision.

RELEVANT FACTS

Simmons was tried along with two co-defendants in April, 2008. The three were charged with having jointly sold or transferred a small quantity of cocaine to a witness cooperating with Kentucky State Police detectives. As part of the Commonwealth's case, the cooperating witness and one of the detectives identified Simmons as an active participant in the transaction. The Commonwealth closed its case shortly before 5:00 pm the first day of trial, at which point the trial court recessed and instructed the jury to return at 9:30 the next morning.

The record resumes at about 8:45 am the next day with counsel and the three defendants present and with the court ruling on the defendants' motions for directed verdict. Those motions having been denied and the defendants having indicated that none of them would be testifying or introducing any other evidence, the court and counsel began a discussion of the jury instructions. Not long into the discussion, the court invited counsel into the court's library for a conference that was off the record. When the record resumes, at about 10:15 am, the court explains to the just assembled jury that a fellow juror has suffered a broken ankle and so will not be able to continue with the trial. “Nevertheless,” the court continues, “the defendants and the Commonwealth have agreed to proceed with eleven jurors as opposed to the twelve as normally constituted.” ¹

At that point, the defendants all announced that their cases were closed, and the court sent the jury to an early lunch so that the court and counsel could finish preparing the instructions. Following the lunch recess, the court came back on the record and before recalling the jury stated, “Before we begin, the court does want to note for the record that we have previously discussed the problem with one of the jurors being absent and everyone has waived that objection.” Counsel for all the defendants responded, “That's correct, your Honor.” The eleven-member jury was then recalled, and eventually found Simmons guilty of having been complicit in the alleged cocaine transaction.

Simmons appealed from the judgment based on that verdict, and the Court of Appeals agreed with him that under Section 7 of our Kentucky Constitution a criminal defendant's right to a “trial by jury” means a jury composed of twelve members, and thus the right to a twelve-member jury is as fundamental as his right to a jury altogether. Accordingly, the Court held that a defendant's waiver of his right to a twelve-person jury must satisfy the same standards as his waiver of a jury trial, i.e., that it must have come from the defendant himself and must have been entered knowingly and voluntarily. Simmons's counsel's acquiescence to proceeding with an eleven-member jury was, in the Court of Appeals' view, insufficient by itself to effect the waiver of Simmon's right to a full, twelve-person jury. Because otherwise the record gave no indication that Simmons had been advised of and had personally waived that right, the appellate court concluded that at least to the extent that the trial court had failed to create an adequate record of Simmons's waiver an error had occurred. On the other hand, the Court of Appeals believed that Simmons's presence when his counsel acquiesced in the eleven-juror proceeding together with his failure to raise any sort of objection created enough uncertainty about the harmfulness of the error to require that the matter be remanded to the trial court for an evidentiary hearing. At the hearing, the trial court was to determine whether at some point off the record Simmons had been advised of his right to a jury of twelve and had voluntarily agreed to forego it.

The Commonwealth moved for discretionary review and now claims that, even if constitutionally grounded, the right to a twelve-member jury is not of the same stature as the right to a jury trial and, being of such inferior status, the defendant's personal waiver is not required. According to the Commonwealth, a waiver by counsel, as occurred in this case, should be deemed effective absent some contemporaneous objection by the defendant. Because we are not persuaded by its deprecation of the full-jury right accorded by the Kentucky Constitution, we reject the Commonwealth's claim.

ANALYSIS

I. The Kentucky Constitution's Guarantee of the “Ancient Mode of Trial By Jury.”

As the parties note, Section 7 of our Kentucky Constitution provides that “The ancient mode of trial by jury shall be held sacred, and the right thereof remain inviolate, subject to such modifications as may be authorized by this Constitution.” ²Section 11 of our Constitution provides in part that “in prosecutions by indictment or information, he [the accused] shall have a speedy public trial by an impartial jury of the vicinage.” Together these sections preserve the ancient mode of trial by jury in felony cases and require this trial, among other things, to be speedy and public. In construing these rights, this Court and its predecessor have long understood the “ancient mode” of trial by jury to require a jury of twelve persons all of whom must agree upon a verdict, as was the practice at common law. Wendling v. Commonwealth, 143 Ky. 587, 137 S.W. 205 (1911); Wells v. Commonwealth, 561 S.W.2d 85 (Ky.1978); Burnett v. Commonwealth, 31 S.W.3d 878 (Ky.2000).³ This interpretation accords with the drafters' discussion of the matter.

At the 1890 Constitutional Convention for the drafting of our current Constitution, what became Section 7 was offered as it now appears by the Committee on the Preamble and the Bill of Rights to the Committee of the Whole. Before that latter Committee an amendment to Section 7 was proposed which, among other changes, would have stricken the words “ancient mode.” Those words; in the view of the amendment's proponents, were imprecise, possibly pernicious, and unnecessary. They were imprecise and possibly pernicious because “there were so many ancient modes of trial by jury,” and because not all ancient practices were to be emulated—an early practice, for example, of encouraging jury unanimity by punishing “refractory” jurors was surely not to be revived. Official Reports of the 1890 Constitutional Convention at 1154 (Mr. Washington, Campbell County). The words “ancient mode” were unnecessary to the new Constitution, the supporters of the amendment to Section 7 argued, because even without them, “The word ‘jury’ is of distinct, well-defined significance. It means in law twelve men, just as certainly and as unmistakably as the word ‘trio’ means three.” Id. at 1153 (Mr. Washington).

Against the amendment, one delegate noted that Kentucky had

already had three Constitutions ... and in each and all of them are the words ‘the ancient mode of trial by jury shall remain sacred.’ What does that mean? It means every man who is put upon trial, every man who has a case to be tried, shall have a trial before a jury of twelve persons, and that they shall return a unanimous verdict.

Id. at 1154–55 (Mr. Carroll, Henry County). Given that history, the delegate queried what it would mean for the 1890 Convention to strike the words “ancient mode.” Would not the courts, the delegate worried, applying standard rules of construction, be apt to conclude that the change in language was intended to reflect a change in...