Commonwealth v. Snodgrass
831 S.W.2d 176
Ky.
1992
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*1 176 Code, adoption Respectfully, I penalty

state’s of the Model Penal dissent as to the phase approved because the Court has con- we held that incest is not a lesser-included sentencing jury secutive where the decided rape. Breeding offense of v. Common- 128, appropriate. wealth, (1921); concurrent sentences were Ky. 191 229 372 S.W. provided by Commonwealth, 428, jury Thus sentence Ky. 144 Burdue v. effectively from 40 (1911). been doubled 20 to We this rule S.W. believe years. My dissenting reasons for are the ap- is correct and should continue to be Dissenting my Opinion same as stated in plied. The trial court did not abuse its Commonwealth, Ky., 740 Dotson v. discretion. No error occurred. 930, (1987). S.W.2d 932-34 Wombles’ final claim of error is also without merit. Wombles claims that the

trial court abused its discretion when it contrary

sentenced him the recommenda to jury. jury The recom twenty-year a each

mended sentence on

conviction, with the sentences to run con currently. imposed The trial court a twen Kentucky, COMMONWEALTH of ty-year sentence on each count and ran Appellant, one, two, concurrently counts and three consecutively with each other but with v. four, five, six, a sen counts and total SNODGRASS, Appellee. Tim forty years. tence of No. 91-SC-360-DG. The recommended concurrent sentence Kentucky. Supreme Court of jury returned was no more than “recommendation,” binding upon and is not 14, May 1992. the trial court at the defendant’s final sen- As Amended June 532.110(1). tencing. KRS We have held judge trial run that it is not error consecutively though

sentences even sen- has recommended concurrent Commonwealth, Ky.,

tences. Dotson subject, This is

course, imposing the trial court’s not an

illegal sentence. Smith v. Common- (1991). Here,

wealth, Ky., 806 S.W.2d 647 not its discretion

the trial court did abuse

and there was no error. judgment of conviction and the sen- Clay are af-

tence of the Circuit Court

firmed. C.J., COMBS,

STEPHENS,

LAMBERT, REYNOLDS

WINTERSHEIMER, JJ., concur.

LEIBSON, J., part concurs in separate opinion. part by

dissents in

LEIBSON, Justice, concurring in part.

part/dissenting Opinion Majority

I concur

guilt phase of this case. *2 Gen., Gorman, Atty. Ann Louise

Chris Pearson, Cheuvront, Attys. Rickie L. Asst. Frankfort, Gen., Div., Appellate Crim. appellant. Francis, Advo- Appellate Public

Ruth W. cate, Winchester, appellee.

SPAIN, Justice. man, Snodgrass, was convict- Tim a black Court by jury of the Garrard Circuit ed of a possession criminal on two counts of degree. A forged instrument the second years on each sentence of three concurrent by the trial court. imposed count was judgment of reversed Court disagree 2-1 decision. We in a conviction decision of the Court with the and reverse. 3, 1990, began April on

Snodgrass’ trial being twenty-five member venire with a Randolph Clark was randomly chosen. selected who of the venire only member dire, During voir was black. knew the anyone venire

asked witness, de- prosecuting prosecutor, counsel, Snodgrass. one re- No fense exercising perempto- Prior to sponded. prosecutor learned from ry challenges, the Mr. Clark did know Snod- a source that prosecutor then exercised grass. The challenge pursuant 9.40 to RCr from the venire. strike Mr. Clark by the tri- recess was called fifteen-minute impaneled. court after al chambers, Thereafter, judge’s in the trial on the mistrial requested a counsel defense black striking of basis the dictates violated person from the venire 79, 106 476 U.S. Kentucky, of Batson sion, 90 L.Ed.2d 69 The trial interroga- but there was no such inquired prosecutor why court circumstances, he tion. Under the we think peremptorily prose- struck Clark. The upon was incumbent the Common- cutor stated: wealth to show that Clark was not ex-

Yes, Judge, I think the case cluded because of his race. The remarks [Batson] says that I need to be able to articulate a of the Commonwealth fail to fulfill this him, why reason I I struck can do burden. a mistrial. and overruled defense counsel’s motion for

had articulated a race-neutral Clause as prosecutor peremptorily struck the black reiterated the Clark, and added: wealth’s on voir cutor sel’s The trial court ruled that the the same strike. panel Our focus in this case is on whether the Snodgrass all or lived close If The trial court then heard defense coun- must hood and concerns about sit on a guilty to Mr. he would be a struck him for have information close that. Mr. opportunity there was would have some argument juror why acquainted [*] known each other for who knew dire as to whether he knew the failure to on Mr. Snodgrass interpreted by he struck Clark. The jury seated in the venire. The Court violated the facing found fault one another. Their families n Clark, to above that returned anybody his Snodgrass. juror the reason that returning express with this defendant. The inquire the them or had known Mr. I % Mr. again life, and would have some I had is that reasons people degree who would most believe, Snodgrass’ family Batson, Equal I in the else on the asked the n the further of Clark to his would exercise if he were to of fact that years. a verdict prosecutor had Protection >k sensitivity when the I Common- neighbor- they be striking felt like prose- ample only jury So I [*] live he of the Batson his discrepancies. We first must be indicates that defense counsel was sworn and stressed that cess. prompt rulings carried his v. New neutral 114 L.Ed.2d 395 of the challenges discrimination. Id. at lenges on the basis of race. must make a prosecutor shifts to the “The site Equal Protection Clause. Id. at tory challenges 106 lined a S.Ct. at 1722-24. claims that a In In question. case, Batson appellate S.Ct. showing Batson, determine whether Simmons analysis jury Prior to York, explanation three-step process we must first note two timely: at selection has exercised without substantial burden challenge issue was prosecutor 1722-23. an effective Batson — prima prosecutor review. the U.S. has been Id. set forth deciding given in a manner U.S.-, objections Finally, for of Commonwealth, Ky., facie process.” First, 98, until after the Second, proving purposeful The record properly to articulate a (1988), this Court striking made, the fifteen-minute re has used the substance 106 S.Ct. at 1724. peremptory showing Batson the the defendant for to defendant violating Id. at did not raise if the Hernandez the burden procedural evaluating Court out- 96-98, the disruption preserved challenge whether that the peremp- permits jurors 96-97, requi- 1859, race- chal- jury 106 the of timely chal- Snodgrasses and whether he could consider had made a appellant ... If objectively. peremptories by The Court of the case the exercise of lenge to prosecutor by stating Commonwealth, further criticized the trial court could upon “intuition if hearing that his decision was based determine held a have opinion or information aliunde.” The add- discrimination exist- prima facie case of page 3: so, ed on in Bat- ed, steps set forth complied with ... could have been may have re- son questioning of Clark If determined delay. it were legitimate reason for his exclu- without vealed a challenge any juror gives great was the of his race. Batson deference discrimination, challenge result of determining trial court in whether ju- could have been disallowed and that racially strike is motivat- panel. ror would have remained on the give appropriate ed. A trial court should happened, disparate impact prose- objection weight As no was made to the appellant decision, until stated sat- cutor’s criterion its but this after jury, remaining with the preliminary factor is not conclusive in the isfaction jurors discharged were and had inquiry. supra race-neutral at left courtroom, and was sworn to may accept at face 1863. The trial court try the case. The sought was explanation given by value relief a mistrial and a continuance depending upon tor the demeanor and cred- *4 case. doWe not think the Common- ibility prosecutor. v. Com- Stanford wealth should subjected be to such de- monwealth, Ky., 793 lay expenses and additional as would inquiry evidentiary No additional or hear- by ap- be caused a new trial when the ing required is under Batson. pellant could have avoided the situa- There will seldom much evidence bear- be entirely by tion making timely a mo- issue, ing on that the best evidence [Emphasis tion. added.] often will be the demeanor of the attor- However, we find that this issue is moot ney challenge. exercised As who since the issue was not raised before the juror, with the state of mind of a evalua- Appeals Court, Court of and before this nor prosecutor’s of mind state of by was it addressed the Court of credibility based on demeanor and lies in its decision. “peculiarly judge’s prov- a trial within ince.” question

We next whether defense prong counsel ever satisfied the first Hernandez, supra, 111 S.Ct. at 1869. by setting prima Batson test forth a facie prosecu no We find fault with the showing purposeful discrimination. His exercising peremptory challenge tor for a objecting sole reason for to the strike was against juror a where the decision to strike only because Mr. Clark was the black se prose upon is based information which the lected jury pool. from the In Common a source other cutor has received from Hardy, Ky., wealth v. 775 S.W.2d 920 than information from voir dire. received (1989), stated requires we that “Batson expla require Batson does not the neutral simple more than a numerical calculation. peremptorily striking potential for a nation Numbers alone cannot form the basis juror to be derived from voir dire. Neither prima showing.” a facie But since explanation to a level does the have to rise prosecutor a explana offered race-neutral satisfy a strike for cause. sufficient peremptory challenge tion for the and the Batson, supra. prosecutor may utilize trial court has ruled on the ultimate issue personal knowledge concerning a his own discrimination, prelimi of intentional juror supplied and information from out nary issue of whether the defendant had is side sources. Whether the information prima showing made a facie also becomes is true or false is The test not the test. supra, moot. 111 S.Ct. at good-faith a prosecutor whether the has and whether he belief the information Our next turns review substantive to the trial court can articulate the reason finding issue of whether the trial court’s is not invio in a manner which race-neutral prosecutor articulated a race-neu- constitutional late of the defendant’s explanation striking tral Mr. Clark court, arbiter, as the final rights. trial from the venire was erroneous. whether then decides Here the forbidden intent. a by The sole determination the tri acted with otherwise, intentionally or hearing either juror, al court when it holds a Batson is question posed by the respond to a per exercised a failed to whether pros- jury panel which the emptory challenge court to the on a venireman because trial response; merited a The decision of the Court of is ecutor believed judgment of being any reversed and the conviction of whether venire- is reinstated. Garrard Circuit Court the defendant. The men knew knowledge that Mr. Clark did know Snod- J., COMBS, except All concur who dissents grass in a race-neutral was then articulated by separate opinion. explanation to the trial The trial court. COMBS, Justice, dissenting. properly court found that the respectfully I dissent and would affirm rejected Snodgrass’ was race-neutral and Appeals. the Court of pretextual. that the reasons assertion were questioned The venireman’s silence when equal process We find no due implied the court an assertion that he prosecutor in protection violation If did not know the defendant. the Com- striking juror nearby a who lives or in the Attorney contradictory in- monwealth’s neighborhood same as the defendant. The “source,” every he had formation from juror’s locality of a residence relation to opportunity on dire to confront Clark voir may the defendant raise an inference of information, directly and to insist with juror “sensitive” to bias and cause to be Instead, response. on a sworn *5 party pure one over another. This is hu exclusively tor relied on the wwswornstate- regardless man nature of the race of the informant, ment of an whom moreover he permissible juror. “Where there are two failed to name. evidence, the factfinder’s views of the According majority: to the “Whether the clearly choice them cannot be er between information is true or false is not the test. City, roneous.” Anderson v. Bessemer had a The test is whether the 564, 574, 1504, 1511, 470 U.S. S.Ct. in information and good-faith belief the L.Ed.2d 518 the to the whether he can articulate reason manner_” in a race-neutral Ap- agree While we with the Court of Ante 179. I am not convinced that the at peals questioning further of Mr. Clark degree categorical. Surely the test is so by the Commonwealth or the trial court credibility of the information affects suspicions might well have reaffirmed the question prosecutor’s ac- of whether prosecutor, of the we do not believe that context, is, in the Batson ceptance of Federal or State Constitutions either our posture The of the matter good-faith. especially required inquiry, such where the 1) this: the trial court ruled was when challenge. strike arises from a court, represented to the venireman had We find that the Court oath, defen- that he did not know the under substituting by its discretion its abused dant; 2) exam- prosecutor had failed to trial court without

findings for that of the silence; concerning his ine the venireman error, imposing finding clear 3) identify his prosecutor had failed to prosecutor than re- higher standard on the any indica- give of information or to source quired by this Court and the United States that the source was reliable. Hernandez, supra, In Court. view, its court abused my In the trial Supreme Court at the U.S. the Common- ruling discretion finding on the trial court’s has ruled that race- explanation was Attorney’s wealth’s discriminatory intent is a question of inquiry which neutral, eschewing further fact and is not to be question of historical Why did the clearly in order. was clearly errone- aside unless shown to be set juror on prospective tor not ous. was Who voir dire? prosecutor be- why “source,” did finding of the trial court that statements, unverified race- his/her was lieve (black) venire- erroneous, believe clearly implication and ac- is not neutral while under the truth concealed occurred. cordingly no abuse of discretion man re- begs question to (It merely supra. oath? supra; Stanford, ply that Clark had motive to lie he knew defendant.) “[tjhere

While it is true that will seldom bearing

be much issue” evidence [the]

(ante 179), at much more evidence was case,

readily ought available this and it explored.

to have been Under the circum-

stances, precipitous ruling the trial court’s erroneous. WILLIAMS,

Burks and his wife Pau- Jr. Williams;

line John and his wife Wolfe Wolfe;

Virginia Caple Elmer and his Williams; Caple;

wife Martha Neill B. Nancy

Coleman Robison and wife

Robison; Company, H.G. Shaw Inc. and *6 Co., Inc., Appellants,

Bullitt Investment

CITY OF HILLVIEW Chris

Gorman, General, Attorney

Appellees.

No. 91-SC-342-DG. Kentucky. Court of

June Spainhour, Spainhour, Givhan &

John E. P.S.C., appellants. Shepherdsville, Edison, Shepherdsville, Chris

Mark E. Gen., Frankfort, appel- Gorman, Atty. lees.

WINTERSHEIMER, Justice. from a decision of appeal

This is affirmed a sum- which Court