In a Capital Murder Case, SCOKY Upholds Conviction Notwithstanding JeffCo’s Noncompliant Voir Dire Process — Where Defendant Agreed to It; Also Discussed Preservation of Error for Denial of Juror Challenge

In a May 2014 post we discussed the case of Oro-Jimenez v. Com. 412 S.W.3d 174 (Ky. 2013), in which the Kentucky Supreme Court held, under a palpable error review standard, that the voir dire process used in Jefferson County, which does not follow the method prescribed by Kentucky court rules and administrative procedures, did not warrant reversal in the absence of a showing of prejudice. That voir dire process is also used in civil cases in Jefferson County.

More recently, in St. Clair v. Com., 451 S.W.3d 597 (Ky. 2014), a capital murder case, the Supreme Court held that the defendant had failed to preserve for review any error relating to the noncompliant Jefferson County process where his counsel stated a preference for that method and the defendant himself apparently agreed to it.

St. Clair also reiterated the proper procedure for preserving for review a trial court’s denial of a challenge for cause of a potential juror. Unless the party who made the challenge uses a peremptory challenge on the juror whose challenge for cause was denied, and then designates an alternate juror on whom that party would have used a peremptory challenge if the for-cause challenge had been sustained, the issue is not preserved for appeal. See also Grubb v. Norton Hosps., Inc., 401 S.W.3d 483 (Ky. 2013); Gabbard v. Com., 297 S.W.3d 844 (Ky. 2009).

David Kramer is a Partner in the law firm of Dressman Benzinger LaVelle, with offices in Cincinnati, Ohio, Crestview Hills, Kentucky, and Louisville, Kentucky.