         IMPORTANT NOTICE
    NOT TO BE PUBLISHE D OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
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                                                            RENDERED : AUGUST 21, 2008
                                                                 NOT TO BE PUBLISHED


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                                      2007-SC-000214-MR


 BLAKE HADDIX                                                                    APPELLANT


                    ON APPEAL FROM BREATHITT CIRCUIT COURT
 V.                   HONORABLE FRANK A. FLETCHER, JUDGE
                                NO . 03-CR-000139


 COMMONWEALTH OF KENTUCKY                                                         APPELLEE


                        MEMORANDUM OPINION OF THE COURT

                               VACATING AND REMANDING

                                         I. Introduction

       A Breathitt County jury convicted Blake Haddix of murder' and of second-degree

assault . 2 In accordance with the jury's recommendation, Haddix was sentenced to

thirty-five (35) years for murder and five (5) years for second-degree assault, to be

served consecutively, for a total of forty (40) years in prison . Appealing to this Court as

a matter of right, Haddix argues the circuit court erred by: (1) failing to conduct a

hearing into the possible impropriety of two jurors; and (2) failing to consider evidence of

non-disclosure by a third juror. Finding the circuit court abused its discretion in failing to

hold a hearing, we vacate the judgment of the court and remand this matter for a

hearing to determine whether Haddix's allegations of juror misconduct are true and, if

so, whether a new trial is warranted.

        Kentucky Revised Statute (KRS) 507 .020.
      2 KRS 508 .020 .
      3 Kentucky Constitution §110(2)(b) .
                                   11 . Factual Background

         On the evening of September 5, 2003, Estill Mullins and his father, Woodrow

 Mullins, were sitting on Estill's front porch in Breathitt County . Appellant Haddix, who

 had known Estill and Woodrow for some time, arrived on a four-wheeler to visit with

 them . As they talked, the three men drank beer. After Woodrow came inside, Estill's

 wife, Gladys, went to the door and called Estill inside. As Estill was closing the front

 door behind him, he was struck by a bullet that came through the window of the front

 door. Estill fell to the floor, bleeding from a wound to the head .

        Having heard the shot, Gladys headed for the back door so that she could leave

 and call the police. As the Mullins's home had no phone, Gladys intended to drive a

short distance to her sister's house. Gladys heard two more shots as she drove away.

        As Gladys was leaving, Woodrow grabbed a .410 gauge shotgun and went

outside to confront Haddix . Haddix shot Woodrow twice, with one round traveling from

the chest to the neck and the other round entering the abdomen .

       Officers arrived to find Woodrow lying dead on the front porch and Estill lying in

the hallway bleeding from a head wound . Officers also discovered Haddix lying in the

driveway. Haddix appeared to be very intoxicated and had one hand near the grip of a

revolver sticking out of a pocket. Haddix was taken into custody and a .32 caliber

revolver was recovered .

       Officers also recovered the .410 gauge shotgun that was found lying near

Woodrow's body. The shotgun had one live round in the chamber . Testimony at the

preliminary hearing indicated no spent shotgun shells were recovered from the scene.

Further, while officers were unable to recover the round that struck Estill, they did
  recover both of the rounds that struck Woodrow. Ballistics tests indicated both rounds

  that struck Woodrow were fired from the .32 caliber revolver recovered from Haddix.

         At trial, Haddix confirmed that he drove to the Mullins's residence on a four-

  wheeler, and that the men sat outside drinking beer. However, Haddix claimed that the

  men argued over a timber cutting contract . While Haddix denied shooting Estill, he

 claimed he shot Woodrow in self defense. Haddix testified that Woodrow came out of

 the house with the shotgun and fired it. As Woodrow was reloading, Haddix warned him

 not to continue . When Woodrow aimed the shotgun at him, Haddix shot Woodrow.

         Haddix's four day trial began on September 26, 2006. While thirteen (13) jurors

 were initially seated, one juror was excused on the third day of trial when she advised

 the court that she was an acquaintance of James Haddix, a relative of the defendant .

 The remaining jurors returned a verdict convicting Haddix and recommending a prison

 term of forty (40) years.

                                         111 . Analysis

        All claims of error by Haddix relate to juror misconduct . In particular, Haddix has

argued three jurors failed to disclose information during voir dire . In his first post-trial

motion for a new trial, Haddix rated concerns that one juror failed to disclose that he

was a convicted felon and a non-resident of Breathitt County, and that a second juror

failed to disclose that she or a family member had been the victim of a crime . In a

subsequent motion, Haddix alleged that a third juror failed to disclose her relationship to

the victim . Specifically, Haddix alleges the juror's sister was married to the first cousin

of the victim . Haddix contends he did not learn of the information until after trial and,

thus, was denied a fair trial .
            Following the first motion, the circuit court agreed to consider the matter and

 entered an order directing the Kentucky Bureau of Investigation (KBI) to investigate and

 report its findings to the court within sixty (60) days. Apparently, no investigation took

 place, nor was a report filed . Nearly three months later, the parties appeared before a

 newly elected judge on Haddix's motion to be released on bond . The judge denied the

 request for bond, as well as Haddix's pending motions for a new trial based on juror

 misconduct, and set a date for final sentencing . Haddix contends this was error.

            This Court has recognized that the right to an impartial adjudicator, be it judge or

jury, is basic to a fair trial . See Paenitz v . Commonwealth, 820 S.W.2d 480, 482 (Ky.

 1991) . Further, we have long recognized that:

            the right of challenge includes the incidental right that the information elicited
            on the voir dire examination shall be true; the right to challenge implies its fair
            exercise, and, if a party is misled by erroneous information, the right of rejection
            is impaired[ .]

Johnson v. Commonwealth, 311 Ky. 182, 223 S.W .2d 741, 743 (1949). Underlying this

rationale is our conclusion that "the question is not whether an improperly established

tribunal acted fairly, but it is whether a proper tribunal was established[ .]" Id .

        We agree the circuit court erred in failing to hold a hearing on the allegations

concerning the alleged misconduct of the three jurors. In Smith v. Commonwealth, this

Court recognized the trial court had the option to hold a post-trial hearing to determine

allegations of juror bias . 734 S.W.2d 437, 445 (Ky. 1987) (citation omitted) . In this

case, Haddix brought allegations of juror misconduct. If it is shown that,the first juror

was a convicted felon or a non-resident of Breathitt County at the time of trial in

September of 2006, Haddix would be entitled to a new trial . See Johnson, 223 S .W.2d
        4
          We do not address the legitimacy of the circuit court's order directing the KBI to investigate . As
we have found the original order to be interlocutory, the KBI issue becomes collateral and irrelevant to our
consideration . Since the first order was interlocutory, it was subject to reconsideration by the court.
Thus, we reject Haddix's claim that collateral estoppel applies to the circumstances present in this case.
                                                       4
 at 743. In the case of the juror who may have failed to disclose that she or a family

 member had been the victim of a crime, the court would have discretion, based on the

 circumstances and the juror's knowledge at the time of the verdict, to determine if

 Haddix is entitled to a new trial. Likewise, should the third juror be related to the victim

 as alleged, the court would have the discretion to determine if Haddix has demonstrated

 implied bias based on a relationship by consanguinity or affinity. Pennington v.

 Commonwealth , 316 S.W.2d 221, 223 (Ky. 1958) . See also Kentucky Rule of Criminal

 Procedure (RCr) 9.36. However, Haddix terminates the analysis without considering all

of the requirements.

        In Gordon v. Commonwealth, this Court recognized that

        In circumstances where no challenge is made to juror qualification prior to or
        during trial and the challenge first occurs after rendition of a verdict, a party
        seeking relief from the effect of the verdict 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.

916 S.W.2d 176, 179 (Ky. 1995) . Further, we recognized that "[w]hile we are prepared

to grant relief in a proper case, such will not be lightly undertaken and without a

substantial basis in fact." Id. (internal citation omitted) .

       In making a motion for new trial based on juror misconduct, Haddix must show

that the juror was questioned concerning the matter; that the juror failed to disclose the

existence of the relationship; and that he was not aware of the juror's non-disclosure

until after the trial. See Shepherd v. Commonwealth , 269 Ky. 237, 106 S.W.2d 988,

990 (1937) (citation omitted) .

       Assuming, without deciding, Haddix's allegations can be supported by evidence,

the burden then shifts to the Commonwealth to prove the juror's knowledge of the

relationship at the time of the verdict. See Pennington, 316 S.W.2d at 224 . See also
 Horton v. Commonwealth, 240 S .W.2d 612, 613 (Ky. 1951) . Only after the

 Commonwealth has an opportunity to respond can the trial court determine if a new trial

 is warranted. In reaching this conclusion, we have recognized that "where the

 relationship of a juror to a deceased is remote and unknown to the juror at the time the

verdict was rendered, it does not constitute a valid ground for reversal." Horton , 240

S .W.2d at 613 (citations omitted) .

         Further, in the case of the juror with the alleged relationship to the victim, the

circuit court must consider whether the relationship alleged (the juror's sister was

married to a first cousin of the victim) exists and was known to the juror. The court must

then determine whether implied bias based on consanguinity or affinity has been

established . See Davis v. Commonwealth, 271 Ky. 180, 111 S .W.2d 640 (1937) (juror's

husband was the uncle of the husband to the mother of the deceased - found

relationship not sufficient) ; Cox v. Commonwealth, 255 Ky. 391, 74 S.W.2d 346 (1934)

(one juror was shown to have the following relationships : (1) the juror was the second

cousin to the wife of the brother of the deceased; and (2) the juror's wife's uncle married

the niece of the deceased - neither relationship was found to be sufficient) . Only if the

circuit court finds that each of the requirements of the analysis is satisfied is a new trial

warranted concerning the allegation that the third juror failed to disclose a relationship to

the victim .

        In light of the fact that the court failed to hear evidence concerning Haddix's

allegations of juror misconduct, we reject the Commonwealth's argument that Haddix

failed to meet the heavy burden set out under Gordon , 916 S .W.2d at 179 . Until

evidence has been presented and ruled upon, it is premature to conclude Haddix

cannot meet the required burden .
                                       IV. Conclusion

        In light of Haddix's allegations concerning juror misconduct, we conclude the

 circuit court abused its discretion by failing to hold a hearing to resolve the claims. For

this reason, we vacate the judgment of the Breathitt Circuit Court and remand this

 matter for a hearing to determine whether Haddix's allegations of juror misconduct are

true and, if so, whether a new trial is warranted.

        Minton, C.J .; Abramson, Cunningham, Noble, Schroder and Scoff, JJ ., concur .

Venters, J ., not sitting .




COUNSEL FOR APPELLANT :

Bruce William Francisky
Michael A. Stidharn
Stidharn & Francisky Law Office
500 Brown Street
P .O. Box 732
Jackson, KY 41339


COUNSEL FOR APPELLEE:

Jack Conway
Attorney General

David A. Smith
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
