             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        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED!'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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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 BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
 DECISIO,N 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: AUGUST 20, 2015
                                                       NOT TO BE PUBLISHED

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                               2014-SC-000742-MR


JACK GORE                                                              APPELLANT


                    ON APPEAL FROM BELL CIRCUIT COURT
V.                 HONORABLE ROBERT COSTANZO, JUDGE
                             NO. 12-CR-00327


COMMONWEALTH OF KENTUCKY                                                 APPELLEE



                   MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING

      A Bell Circuit Court jury found Appellant, Jack Gore, guilty of third-

degree burglary and found him to be a first-degree persistent felony offender.

The jury recommended that Appellant be sentenced to twenty years'

imprisonment and the trial court sentenced him accordingly. Appellant now

appeals as a matter of right, Ky. Const. § 110(2)(b), and raises the following

issues: (1) the trial court erred in denying Appellant's motion for a mistrial

during voir dire and (2) the trial court erred in denying a continuance to

investigate alleged juror misconduct.


                                  I. BACKGROUND
      The facts surrounding the burglary for which Appellant was convicted

are not at issue in this appeal. We will discuss the facts surrounding

Appellant's allegations of error below in our analysis.
                                    II. ANALYSIS
   A. Mistrial

      Appellant first argues that his motion for a mistrial should have been

granted after the following exchange occurred during voir dire:

      Prosecutor: Okay, now sometimes we stand up here and ask you a
      ton of questions and we hope that we've asked everything. But,
     you might be sitting there thinking, "I know something that, if she
     knew, she would know I am not the right person to sit on this
     jury." So, if there's anybody who has anything like that? Urn,
     okay, Juror 6? Okay, is this something you wanna just tell the
     judge or is it something you—?

     Juror #6: I dispatched for three years for the Middlesboro Police
     Department and I might have been working there at the time of the
     offense.

     Prosecutor: Okay. That. Okay. So you don't have actual
     knowledge of the case?

     Juror #6: I've not been there for about six months and I worked
     there for three years prior.

     Prosecutor: Okay. Urn. Since you might have actual knowledge of
     the case—um—I'm assuming it would be difficult for you to give a
     fair trial to both sides, since you might actually know something
     about the case—is that correct?

     Juror #6: I don't really recall anything, but, it's a possibility that I
     do know something. I don't know what.

     Prosecutor: Okay.

     Juror #6: I don't really remember anything, but, I just think that
     you guys need to know.

     Prosecutor: Your Honor, since—um—this juror—we may get into
     the facts and she may recall actual things from the case—um—I
     would ask that she be excused.

     Judge: As you sit here right now, you have no recollection of—?



                                         2
        Juror #6: I know who he is, but, I don't know anything really
        about the details.

        Judge: All right. You will be excused. Thank you.

Appellant's counsel objected to the jury panel on the grounds that Juror #6's

statements tainted the panel and asked for a mistrial. Trial counsel argued lilt

is equal to hearsay testimony coming from the jury." Appellant now argues

Juror #6's statements "implied that she had received phone calls regarding him

in her work as a police dispatcher. This information should not have been

provided to the jury at large and improperly implied that [Appellant] was a

known trouble maker in the community." Appellant insists this issue would

have been avoided if the juror had been asked to approach the bench rather

than being questioned in front of the entire panel.

       Appellant argues he was denied a fair and impartial trial and that

granting a mistrial was the only way for the trial court to remove the prejudicial

effect of Juror #6's statements. Bray v. Commonwealth, 177 S.W.3d 741, 752

(Ky. 2005) overruled on other grounds by Padgett v. Commonwealth, 312 S.W.3d

336 (Ky. 2010) ("The error must be 'of such character and magnitude that a

litigant will be denied a fair and impartial trial and the prejudicial effect can be

removed in no other way [except by grant of a mistrial]."') (quoting Gould v.

Charlton Co., Inc., 929 S.W.2d 734, 738 (Ky.1996)). Furthermore, Appellant

argues that the juror's statements were inadmissible character evidence under

KRE 404(b), as they constituted "[e]vidence of other crimes, wrongs, or

acts . . . ."



                                         3
      "Our precedent provides that a defendant must show actual or implied

prejudice which tainted the jury pool. Shegog v. Commonwealth, 142 S.W.3d

101, 110 (Ky. 2004). The trial court must then exercise discretion in

determining improper tainting of a panel of prospective jurors. Maxie v.

Commonwealth, 82 S.W.3d 860, 862 (Ky. 2002)." Blackburn v. Commonwealth,

394 S.W.3d 395, 396 (Ky. 2011). "We review [Appellant's claim] for abuse of

discretion. Tabor v. Commonwealth, 948 S.W.2d 569, 571 (Ky.App.1997) ("The

trial court has broad discretion in determining whether a jury panel should be

dismissed, and its ruling should not be disturbed absent a clear abuse of

discretion.")." King v. Commonwealth, 374 S.W.3d 281, 288 (Ky. 2012).
                    ,




      In Blackburn, 394 S.W.3d 395, the appellant argued that she was denied

her right to trial by an impartial jury when two different potential jurors made

statements in front of the entire panel. When the trial court asked members of

the jury pool if they knew the appellant, one potential juror said "I was a social

worker in the state of Kentucky for thirty years. But its been like twenty-

something years ago I was her case worker." Id. at 397 . That was the extent of
                                                         .




that juror's statement—he did not elaborate as to why the appellant needed a

social worker. The second potential juror who acknowledged his acquaintance

with the appellant in that case stated, "I'm a police officer here in town. I know

[the appellant]." Again, he did not elaborate on the nature of his knowledge of

the appellant.

     We held:




                                         4
             We do not consider either of the responses given by the jurors
       to be prejudicial. The "social worker" juror did not explain why
       Appellant needed a social worker, while the "police officer" juror
       did not elaborate on the nature of his relationship with Appellant.
       Simply put, the prospective jurors did not convey enough
       information about their involvement with Appellant which could
       conceivably yield actual or implied prejudice amongst the jury
       pool. Accordingly, we cannot say the trial court abused its
       discretion in declining to dismiss the pool and impanel a new jury.
             Because the trial court did not abuse its discretion with
       respect to its management of the jury pool, we affirm Appellant's
       convictions.

Id. Appellant here points out that the issue was unpreserved in Blackburn and

that palpable error analysis is a different standard than that of abuse of

discretion. However, this Court did not use palpable error analysis in

Blackburn, but spoke clearly in terms of whether the trial court had abused its

discretion. In fact, we stated, "[w]e find no error, palpable or otherwise."    Id. at

396.

       Juror #6's statements in the case at bar are far less prejudicial than

those of the social worker and police officer in Blackburn. Here, the potential

juror merely stated that she was working as a dispatcher at the time of the

offense. While she did not recall any specifics, she wanted to make the parties

aware of her circumstances. When the judge asked her if she had any

recollection, she responded that "I know who he is, but I don't know anything

really about the details." Appellant insists that this created an insinuation that

the juror knew who Appellant was through her job as a police dispatcher and

that it implied he was a trouble maker in the community. We disagree. Just

as with the social worker and police officer in Blackburn, the potential juror



                                         5
here did not give any details of her knowledge of Appellant in front of the jury

panel.

         We affirm the trial court on this issue, as Appellant failed to "show actual

or implied prejudice which tainted the jury pool." Shegog, 142 S.W.3d at 110.

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

mistrial.

   B. Continuance

         On the day of sentencing, Appellant was represented by stand-in

counsel. When the trial court asked if there was any reason to delay

sentencing, stand-in counsel responded that that he had been informed by

Appellant's trial counsel of irregularities with the jury. Specifically, stand-in

counsel alleged that one of the members of the jury had previously dated

Appellant's father. On that basis, he asked for more time before Appellant's

final sentencing. Appellant now argues trial counsel wanted more time in order

to investigate these allegations, but that was never explicitly stated in the trial

court.

         The day of sentencing was the first time the trial court heard of the

potential issue; however, the Commonwealth had been alerted to the matter

more than ten days prior. The Commonwealth asked stand-in counsel if he

had any evidence of this purported relationship. Stand-in counsel responded

that he did not and that he was just attempting to get it on the record. The

Commonwealth pointed out that no investigation had been attempted nor had

any affidavits or motions been filed in the ten days since it was made aware of


                                           6
 the potential issue. As such, the trial court denied Appellant's request for more

 time.

         Appellant now argues that the trial court erred in failing to grant his

motion for a continuance in violation of his rights to present a defense, due

process of the law, and to an impartial jury. We review a trial court's denial of

a motion for a continuance under the abuse of discretion standard.        Snodgrass

 v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991) overruled on other grounds

by Lawson v. Commonwealth, 53 S.W.3d 534 (Ky. 2001).

         Kentucky Rules of Criminal Procedure 9.04 provides:

         The court, upon motion and sufficient cause shown by either
         party, may grant a postponement of the hearing or trial. A motion
         by the defendant for a postponement on account of the absence of
         evidence may be made only upon affidavit showing the materiality
         of the evidence expected to be obtained, and that due diligence has
         been used to obtain it. If the motion is based on the absence of a
         witness, the affidavit must show what facts the affiant believes the
         witness will prove, and not merely the effect of such facts in
         evidence, and that the affiant believes them to be true. If the
         attorney for the Commonwealth consents to the reading of the
         affidavit on the hearing or trial as the deposition of the absent
         witness, the hearing or trial shall not be postponed on account of
         the witness's absence. If the Commonwealth does not consent to
         the reading of the affidavit, the granting of a continuance is in the
         sound discretion of the trial judge.

We assume that Appellant bases his argument on the "absence of evidence."

However, Appellant did not comply with the dictates of the Rule. Here, by the

time of the sentencing hearing, more than ten days had elapsed since the

Commonwealth was first made aware of these purported irregularities with the

jury. During that time, Appellant neither filed a motion for a continuance nor




                                           7
obtained any affidavits showing the materiality of the evidence he expected to

gather. In short, he did not use due diligence in investigating the allegations.

       We dealt with a similar matter under RCr 9.04 in Gray v. Commonwealth,

203 S.W.3d 679 (Ky. 2006). While that case dealt with an absent witness

rather than missing evidence, the appellant had, likewise, failed to comport

with the requirements of RCr 9.04 We held:

             It is not error to deny a continuance where the affidavit does
       not comply with the provisions of RCr 9.04. McFarland v.
       Commonwealth, 473 S.W.2d 121, 122 (Ky.1971).

              . . . . At no point did counsel make a proper motion for
      continuance as required by RCr 9.04. The trial counsel failed to
      show upon affidavit what the witness would say. He failed to
      establish that the witness would give substantial favorable
      evidence. Thus, the trial court properly denied counsel's request
      that the penalty phase be continued. Simply put, there was no
      abuse of discretion.

Id. at 689. In Gray, just as in the present case, the appellant's argument was

based upon factors set out in Snodgrass, 814 S.W.2d at 581 ("length of delay;

previous continuances; inconvenience to litigants, witnesses, counsel and the

court; whether the delay is purposeful or is caused by the accused; availability

of other competent counsel; complexity of the case; and whether denying the

continuance will lead to identifiable prejudice"). However, the Gray Court did

not delve into the individual factors, as the appellant there—much like

Appellant in the present case—failed to comport with RCr 9.04 in order to show

sufficient cause for the continuance. Thus, neither trial court abused its

discretion.
       Though we have already held that there is no abuse of discretion, we will

address Appellant's other arguments on this matter. Appellant posits that,

pursuant to Commonwealth v. Wood, 230 S.W.3d 331, 333 (Ky. App. 2007), the

trial court should have held an evidentiary hearing and questioned the jurors

regarding any prior relationships with Appellant's father. In Wood, the Court of

Appeals relied on Mattox v. United States, 146 U.S. 140 (1892), and a Sixth

Circuit case applying Mattox, Doan v. Brigano, 237 F.3d 722, 732 (6th Cir.

2001), overruled on other grounds by Wiggins v. Smith, 539 U.S. 510 (2003).

However, in Wood, our Court of Appeals pointed out the difference between the

sorts of issues for which it is appropriate to set aside a jury verdict and those

for which it is not. As the Doan Court explained: "[t]he [Mattox] Court stated

that it would not give the 'secret thought[s] of one [juror] the power to disturb

the expressed conclusions of twelve.' In sharp contrast to the secret thoughts of

jurors, the Court held that juror testimony as to 'overt acts' of misconduct can

be considered because the remaining members of the jury can testify as to

whether or not those acts of misconduct actually occurred." Doan, 237 F.3d at

732. In Woods, our Court of Appeals relied upon this reasoning to affirm a trial

court's receipt of testimony from a juror regarding the use of a dictionary in the

jury room. That was clearly an "overt act" that other members of the jury could

testify about. There is no such act here about which other members of the jury

panel could testify and Appellant's reliance upon Wood is, therefore, misplaced.

      Appellant next points us to Sluss v. Commonwealth, 381 S.W.3d 215,

221 (Ky. 2012), in support of his position that "[flailing to respond to open-

                                         9
ended questions has been held to be grounds for reversal for an evidentiary

hearing where jurors may have lied by omission when they failed to respond to

the general voir dire question about whether they knew anyone involved in the

case."' In Sluss, the appellant presented the trial court with screenshots of the

murder victim's mother's Facebook page indicating that she was friends with

persons having the same names as two of the jurors. We ultimately sent the

case back to the trial court for a hearing to determine whether the two jurors'

"answers during voir dire were false" and to determine "whether they should

have been struck for cause." Id. at 229. There is a key difference in the case at

bar, however, that readily distinguishes it from Sluss: a complete lack of

evidence in support of the motion for a continuance.

      In Sluss, le]vidence was presented after trial . . ." in the form of

Facebook screenshots which seemed to indicate that two of the jurors lied in

their answers during voir dire. Id. at 221. Appellant presents no such

evidence in this case. He could have presented an affidavit from his father that

he had previously dated one of the jurors, but he did not. He did not even

present the court with the name of the juror in question or with any other

identifying information. Appellant had known of these allegations for a

minimum of ten days prior to his final sentencing hearing. However, he made

no move during that time to gather evidence to present to the trial court.

Rather, he asked for more time on the basis of a mere allegation.

      Appellant never filed a formal motion for a continuance with affidavits

showing sufficient reason for the trial court to grant said motion. As previously

                                        10
stated, the trial court did not abuse its discretion in failing to allow Appellant

more time before his final sentencing.


                                 III. CONCLUSION
      For the foregoing reasons, we affirm Appellant's convictions and

sentence.

      All sitting. All concur.




                                         11
COUNSEL FOR APPELLANT:

Jason Apollo Hart, Assistant Public Advocate


COUNSEL FOR APPELLEE:

Jack Conway, Attorney General of Kentucky
Leilani K. M. Martin, Assistant Attorney General




                                      12
