         IMPORTANT NOTICE
    NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE ; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
                                                  RENDERED : OCTOBER 29, 2009
                                                        NO I ri.  1 pL S-N E I), - ,
                                                                    f




                 Suprrme (~vurf of 7,1
                       2008-SC-000842-MR


 BLAKE HADDIX



                 ON APPEAL FROM BREATHITT CIRCUIT COURT
 V.               HONORABLE FRANK A. FLETCHER, JUDGE
                             NO . 03-CR-00139



 COMMONWEALTH OF KENTUCKY                                                    APPELLEE



                   MEMORANDUM OPINION OF THE COURT

                                    AFFIRMING


      Appellant Blake Haddix appeals to this Court from a judgment of the

Breathitt Circuit Court denying him a new trial . Finding no error in the circuit

court's judgment regarding alleged juror mendacity, we affirm.

                                I. BACKGROUND

      Appellant was tried and convicted of murder and second-degree assault,

and sentenced to 35 years imprisonment and 5 years imprisonment,

respectively, to be served consecutively. Haddix appealed to this Court,

alleging that three jurors failed to disclose relevant facts on their jury

questionnaires, or during voir dire.
           This Court vacated the judgment and sentence and remanded for an

 evidentiary hearing to determine whether Appellant was entitled to a new trial.

 The circuit court conducted a hearing on October 3, 2008 . Alter hearing

 testimony from the three jurors, the circuit court denied Appellant's motion for

 a new trial, and resentenced him in accordance with the jury's original

 sentence. Haddix now appeals the circuit court's denial of his motion for a new

 trial.

          In remanding, this Court held that it was error for the trial court to not

hold a hearing to determine whether there was misconduct related to three

jurors . As to the first juror, Appellant discovered after remand that the juror

was neither a non-resident of Breathitt County, nor a convicted felon, as

Appellant had believed . Appellant stipulated to such at the hearing. As to the

second juror, Appellant concedes that he cannot meet the necessary burden for

this Court to reverse. Therefore, Appellant's claims on this appeal relate solely

to the third juror, J.S.

                                     II. ANALYSIS

          Appellant argues that it was error for the circuit court to not grant a new

trial because (1) J .S. failed to disclose her and her family's involvement with

the criminal justice system, (2) J.S.'s sister's husband was the victim's first

cousin, and (3) J.S. failed to disclose that she has memory problems due to

multiple sclerosis (MS) .


 Haddix v. Commonwealth, No . 2007-SC-000214-MR, 2008 VVL 3890352 (Ky. Aug.
  21,2008) .
       When, as here, no challenge is made to a. juror's qualifications until after

 a verdict has been rendered, the challenging party "bears a heavy burden. It is

 incumbent upon such a party to allege facts, which if proven to be true, are

 sufficient to undermine the integrity of the verdict." Gordon v.

 Commonwealth , 916 S.W.2d 176, 179 (Ky. 1995) .

       In addition, to be entitled to a new trial as a. result ofjuror mendacity

during voir dire, a defendant must show (1) that a material question was

asked, (2) that the juror answered the question dishonestly, and (3) that a

truthful answer would have subjected the juror to being stricken for cause .

Taylor v. Commonwealth , 175 S.W .3d 68, 74-75 (Ky. 2005) . Ajuror should be

stricken for cause "[w]hen there is reasonable ground to believe that a

prospective juror cannot render a fair and impartial verdict on the evidence."

RCr 9 .36(1) .

      In reviewing the circuit court's findings of fact, we will not set them aside

unless they are clearly erroneous . CR 52.01 . We review the circuit court's

denial of Appellant's motion for a new trial for an abuse of discretion . Brown v.

Commonwealth , 174 S.W.3d 421, 428 (Ky. 2005) .

A.    Juror Not Disclosing Previous Involvement With the Criminal
      Justice System

      Prior to serving as a juror, J .S. filled out a Juror Qualification Form,

which included the question "Have you or a family member been a defendant,

witness, or complainant in a criminal case?" . J .S . checked "No ."
          At the October 3, 2008 hearing, Appellant's counsel asked J .S . if she

    knew a Greg Carves. J.S. did not remember the name until Appellant's

    counsel showed her a criminal complaint, in which J.S. alleged that Carves

     committed the offense-'of terroristic threatening." As the circuit court found in

    its Findings of Fact, "[alfter reviewing the complaint., [J.S .] testified a man had

    beaten up one of her sisters at the Stidhamn-ailer Court and she either called

    in the complaint or filed a complaint on her sister's behalf. "2

          The Commonwealth asked J.S. if she recalled how the case against

    Carves was resolved, because it appeared from court records that no action

was taken. J .S . testified that she believed, but was not sure, that Carves had

been taken to Newport, Kentucky to face criminal charges there.

          J.S. also testified that she had called the police on her husband for

shooting at her, though it is unclear whether charges were ever filed . In

addition, though not included in the circuit court's findings of fact, J.S. also

testified that she may have called the police on her neighbor. It is not clear

whether either of these incidents resulted in a criminal complaint.

         J.S. also testified that her grandfather had been accused of murder

approximately 50 years ago, when she was four years old, and apparently

convicted. Her grandfather was then apparently exonerated when another

person confessed to the murder. J. S. also testified that an uncle was shot and

killed approximately 25 years earlier, and that a cousin had "been in trouble,"

though she did not know the specifics. When asked why she did not disclose

2   Presumably, Carves had also threatened J.S.
 any of this on her Juror Qualification Form, J .S. testified that she thought the

 question referred only to her immediate family. She also suggested that she

 had not remembered some of these details.

       Upon review of the record, we cannot say that the circuit court's findings

 of fact were clearly erroneous. Based upon these findings and other facts in

 the record, it is clear that J .S. was asked a material question ("Have you or a

 family member been a defendant, witness, or complainant in a criminal case?") .

 It is not clear, however, that J.S. answered the question dishonestly.

       While J.S. alleged that Carves committed the misdemeanor offense of

terroristic threatening against her, it appears from her testimony that his

aggression was directed primarily at her sister. J. S. may not have remembered

the incident when she answered the Juror Qualification Form. In either case, a

truthful answer would not have subjected J .S . to being stricken for cause.

Being the victim of a crime does not automatically disqualify a juror. Bowling

v. Commonwealth, 942 S.W.2d 293, 299 (Ky. 1997) ; Sanders v.

Commonwealth, 801 S.W.2d 665, 670 (Ky. 1990) . In no way does this isolated

incident suggest that J.S. could not render a fair and impartial verdict on the

evidence .

      In addition, nothing in the record or in the facts found by the circuit

court suggests any bias on the part of J.S stemming from her relatives'

involvement with the criminal justice system. While Appellant argues that she

was a "prosecution-oriented juror," J.S. also had a grandfather wrongfully
    convicted of murder, which certainly would not. make her "prosecution-

    oriented." In short, Appellant has not alleged facts "sufficient to undermine the

    integrity of the verdict ." Gordon, 916 S.W.2d at 179. Therefore, the circuit.

    court did not abuse its discretion in denying Appellant's motion for a. new trial

    on these grounds .

    B.    Juror Not Disclosing Unknown Relationship to Victim's First Cousin

          During voir dire in Appellant's trial, the court asked the jurors whether

    anyone was related by blood or by marriage to the victims, Woodrow and Estill

    Mullins. Juror J.S. did not tell the court that she was related to either victim.

          Appellant argues that J.S.'s sister's husband, William "Booter" Mullins,

 is the first cousin of the deceased, Woodrow Mullins . J.S. stated that she did

 not know much, if anything, about Booter Mullins's family. She had assumed

that Booter was not related to Woodrow, because Booter's family did not look

like Woodrow's family. J.S. testified that she did not learn that Woodrow and

Booter were first cousins until after the trial, and she stated that it had no

effect on her deliberations . 3

         Based on our review of the record, we cannot say that the circuit court's

findings were clearly erroneous. Furthermore, based on the findings and other

facts in the record, we cannot say that the circuit court abused its discretion in

denying Appellant's motion for a new trial. While a material question was


3   The circuit court denied Appellant's motion for a continuance to locate Booter
     Mullins in order for him to testify. Appellant's counsel stated that Booter Mullins
     would testify that he was Woodrow Mullins's first cousin. However, J.S.'s testimony
     had already established this fact.
 asked, it does not appear that J .S. answered the question dishonestly . There

 was no evidence that J .S . was aware of the relationship between Booter and

 Woodrow at the time of trial . Furthermore :

             Where it is shown that relationship existed between
             juror and accused, and the juror is ignorant of the
             existence of kinship, he stands toward the accused as
             "an entire stranger, in so far as the affinity of blood
             might affect his verdict. It is the knowledge of the
             kinship and the feeling that arises from it. that. works
             the disqualification ; and, if the knowledge is absent,
             the disqualification disappears ."

 Reed v. Commonwealth, 273 Ky. 607, 117 S.W.2d 589, 592 (1938) (quoting

 Miracle v. Commonwealth, 148 Ky. 453, 146 S. W. 1136, 1140 (1912)) . C.f.

Anderson v. Commonwealth, 864 S.W.2d 909, 911-12 (Ky. 1993) (evidence that

juror concealed relationship by marriage to complainant's boyfriend) . The

circuit court did not abuse its discretion in overruling Appellant's motion for a

new trial on these grounds.

C.    Juror Not Disclosing That She Has Memory Problems Due to
      Multiple Sclerosis

      In the course of questioning J.S. at the October 3, 2008 hearing, J.S.

stated for the first time that she had multiple sclerosis (MS), and that she

suffered from short-term memory problems . J.S . assumed that these memory

problems were the result of her MS. She also stated that she does not take any

medication for her MS .

      J .S. testified that she asked to be excused from jury service due to work

obligations . Appellant's counsel pointed out that, even though J. S. did not
 want to serve as a juror, she had not mentioned her MS on her Juror

 Qualification Form. The Form had a section stating "I ask to be

 PERMANENTLY EXCUSED from jury service due to a. PERMANENT MEDICAL

 CONDITION." J .S . did not check the box next to this statement, and she left it

 blank. During voir dire, the court. also asked, "Do any of you have any physical

 or health problems that would prevent you from sitting on this four-day trial?" .

J. S. did not respond .

       Upon questioning by the court at the October 3, 2008 hearing, J.S.

testified that she was currently employed as a school bus driver for the

Breathitt County Board of Education, and that she had passed a physical in

order to obtain that position. The court found this fact significant in both its

oral and written conclusions. In particular, the court found it significant that

J.S. had been found fit to hold a position involving the safety of children.

Appellant argued that being a school bus driver involved a different set of

skills, and did not require the same ability to recall facts that is involved in

serving as a juror.

      Upon review of the record, we again cannot say that the circuit court's

findings of fact were clearly erroneous. In addition, it is not even clear from the

record that J.S. was ever asked a material question about her MS. While the

Juror Qualification Form gives potential jurors the option of requesting to be

permanently excused due to a permanent medical condition, the Form does not

specifically ask about medical conditions . J.S. may have simply assumed that
 her MS would not qualify. The court asked during voir dire whet-her a medical

 condition would prevent a juror from sitting for a four-day trial. Based on the

 fact that J.S . did sit for the entire trial, she obviously answered this question

 honestly.

       In addition, we cannot say that. J .S. should have been stricken for cause

 had her MS been known before trial. With regard to a juror with a disability,

 Appellant is required to present evidence of prejudice resulting from that

juror's participation . Woodard v. Commonwealth, 147 S.W.3d 63, 69 (Ky.

 2004). No such evidence has been presented here. "Many jurors have

 somewhat less than perfect hearing or vision, or have other limitations on their

abilities to assimilate or evaluate testimony and evidence. A defendant is not

entitled to a perfect trial, but only a fair one ." Id. (quoting United States v.

DepMsey, 830 F.2d 1084, 1088 (10th Cir. 1987)). The circuit court did not

abuse its discretion in denying Appellant's motion for a new trial based on

J.S.'s disclosures about her MS.

                                III. CONCLUSION

      Appellant has failed to show that any information that J .S. did not

disclose, had it been known, would have resulted in her being stricken from the

jury for cause . Therefore, Appellant has not shown facts sufficient to

undermine the integrity of the jury's verdict . The circuit court did not abuse its

discretion in denying Appellant's motion for a new trial. For the forgoing

reasons, the judgment of the Breathitt Circuit Court is hereby affirmed.
      All sitting. All concur.



COUNSEL FOR APPELLANT:

Bruce William Francisky
Attorney at Law
P.O . Box 4155
Winchester, KY 40392



COUNSEL FOR APPELLEE :

Jack Conway
Attorney General

Christian Kenneth Ray Miller
Assistant Attorney General
Office of the Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, KY 40601
