Asa Pieratt Gullett IV v. Commonwealth of Kentucky
2017 Ky. LEXIS 82
| Ky. | 2017Background
- Defendant Asa P. Gullett IV was tried in Shelby Circuit Court and convicted of incest, first‑degree rape, first‑degree sodomy, first‑degree sexual abuse, and second‑degree sexual abuse; sentenced to 65 years (maximum).
- Victim (pseudonym "Betty") was the defendant's biological child; incidents occurred in 2012 and 2013 while she lived with her grandparents.
- During voir dire, juror/foreperson Marla Ethington failed to disclose that a brother, sister, and nephew had been prosecuted/convicted; the juror answered "no" on the qualification form and repeatedly denied family involvement when asked in court.
- Defense counsel had previously represented two of Ethington's siblings and her office represented the nephew; counsel testified she would have struck Ethington for cause or used a peremptory strike if she had known.
- Trial court denied a new trial motion, finding no actual bias and that Ethington had misconstrued "family member" to mean household members; the Supreme Court of Kentucky reversed and remanded for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Juror misconduct (non‑disclosure of relatives' prosecutions) | Juror lied/withheld material info; deprived right to challenge for cause or use peremptory strike; requires new trial | Trial court: defendant must show actual bias; juror misconstrued "family" to mean household; no demonstrated prejudice | Reversed: juror dishonesty was deliberate as to siblings, blocked inquiry, impaired peremptory right; new trial required |
| Sufficiency (forcible compulsion) — first‑degree sodomy and sexual abuse | Directed verdict required because insufficient evidence of forcible compulsion | Commonwealth: testimony and facts allow reasonable juror to find forcible compulsion beyond reasonable doubt | Denied: victim's testimony (resistance and physical disparity) sufficed to defeat directed verdict; retrial not barred by double jeopardy |
| Jury unanimity (multiple acts alleged within same counts) | Instructions allowed conviction based on different acts for same charge, violating unanimity | Commonwealth: not addressed in depth at trial | Court: instructions ambiguous; must identify the specific act (e.g., "performing oral sex on B.N.") on retrial to ensure unanimous verdict |
| Admission of prior bad acts (KRE 404(b)) | Prior uncharged acts improperly admitted to show propensity | Commonwealth: prior acts admissible for non‑propensity purposes (motive, intent, plan); prior acts against same victim often relevant | Preserved instance (January uncharged sodomy) admissible as proof of motive/intent; unpreserved objections not reviewed now (trial court to consider on retrial) |
Key Cases Cited
- McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984) (voir dire dishonesty test: must show juror failed to answer honestly and that correct answer would have provided a valid basis for challenge for cause)
- Shane v. Commonwealth, 243 S.W.3d 336 (Ky. 2007) (peremptory challenge is a substantial right in Kentucky; not subject to harmless‑error analysis)
- Jenkins v. Commonwealth, 496 S.W.3d 435 (Ky. 2016) (forcible compulsion does not require victim resistance or proof of violence)
- Driver v. Commonwealth, 361 S.W.3d 877 (Ky. 2012) (prior acts against same victim can be admissible for non‑propensity purposes under KRE 404(b))
- Olympic Realty Co. v. Kamer, 141 S.W.2d 293 (Ky. 1940) (false or withheld voir dire information that impairs peremptory challenges warrants new trial)