Walter Durrell GRAY, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.
No. 2004-SC-000457-MR
Supreme Court of Kentucky.
Oct. 19, 2006.
As Corrected Oct. 20 and 31, 2006.
203 S.W.3d 679
Gregory D. Stumbo, Attorney General of Kentucky, James Havey, Assistant Attorney General, Criminal Appellate Division, Office of the Attorney General, Frankfort, Counsel for Appellee.
Opinion of the Court by Justice SCOTT.
This appeal arises out of the Appellant‘s conviction for the murder of Andrea Tiller in Lexington, Kentucky, for which Appellant was sentenced to forty-five years in prison. Tiller arrived in the parking area
The Appellant argues several errors on appeal. First, he argues that the trial court erred by excluding two statements made by witnesses called by the Commonwealth. Both statements were excluded on the ground that the Appellant failed to provide the statements to the Commonwealth prior to trial in violation of reciprocal discovery. He further argues that the trial court erred (1) in refusing to continue the penalty phase until the next morning; (2) in allowing the attorney for the Commonwealth to make improper and prejudicial comments that denied him due process and a fair trial; (3) in allowing the Commonwealth to use a peremptory strike to improperly strike a prospective African-American juror violating the Appellant‘s right to equal protection under the law; (4) by denying him due process when it failed to grant a mistrial due to the admission of prior bad acts; and (5) in overruling Appellant‘s motion for a directed verdict on the murder charge.
I. RECIPROCAL DISCOVERY AGREEMENT
Appellant‘s first claim of error arises from the trial court‘s exclusion of a written statement by Octavious Eggerson and an audiotaped statement of Rose Crutcher, a resident in the neighborhood where Tiller
At the bench conference, Appellant apprised the trial judge and opposing counsel of the substance of the written and taped statements. He later tendered the tape and statements to the trial court for avowal purposes after the conclusion of his jury trial, just before the final sentencing by agreement with the Commonwealth.
While we find that counsel did not technically preserve the matter for appellate review by avowal, as argued by the Commonwealth, the issue was nevertheless preserved for appeal by the Agreed Order wherein the Commonwealth “agreed that the written statements ... and an audio tape of a statement/conversation ... be allowed as an avowal to be part of the Defendant‘s record on appeal.” This, in addition to the fact that counsel also proffered the substance of the excluded statements to the trial court and opposing counsel during the bench conferences, adequately preserved the issue for review and satisfies the purposes for making the offer of proof. Since the Appellee agreed to allow the statements to be filed as an avowal, albeit late, it thus waived any objections on appeal as to the preservation of this issue. Accordingly, we find the issue preserved.
Having found the issue adequately preserved for review, we must determine whether or not the trial court abused its discretion in excluding the written statements and audio tape of a statement/conversation. In doing so, we will look at each instance where the evidence was excluded.
A. Exclusion of Rose Crutcher‘s Audiotaped Statements.
Notwithstanding Appellant‘s offer of proof for preservation of the issue for review, we find that Appellant has nonetheless waived his right to complain of any error allegedly committed by the trial court in excluding the audiotaped statements of Rose Crutcher.
During Crutcher‘s testimony at trial, Appellant‘s defense counsel attempted to introduce audiotaped statements that defense counsel and an investigator recorded in an interview they had with Crutcher in which she stated that she thought someone other than Appellant may have held the murder weapon in her apartment immediately after Andrea Tiller was shot and killed. From the record, it appears Appellant was attempting to impeach Crutcher‘s testimony with these prior inconsistent statements when the Commonwealth objected on the grounds that this evidence was never disclosed to the prosecution pursuant to the reciprocal discovery agreement between the parties.
Upon sustaining the Commonwealth‘s objection, the trial judge reminded defense counsel that he could ask the witness if she remembered making certain statements to him which may have implicated someone other than Appellant as the person holding the murder weapon. If the witness could not remember, the trial judge instructed
The reciprocal discovery agreement between the parties stated, in pertinent part, that the Appellant agreed to provide reciprocal discovery pursuant to
Of course, failure to provide the necessary discovery mandated by
Despite finding the trial court erred in excluding this evidence, we find the error to be harmless. Defense counsel‘s failure to ask Crutcher whether she remembered making prior statements to him effectively waived any argument on appeal that the trial court‘s exclusion of the evidence constitutes reversible error. Furthermore, by foregoing the opportunity to ask Crutcher about her prior statements and thus laying the proper foundation for introduction of her prior statements, Appellant cannot now complain that the trial court erred. In this vein, the trial court‘s exclusion was proper, as Appellant failed to provide the proper basis for Crutcher‘s prior statements to be admissible.
This situation presents circumstances akin to those where an appellant has “invited error.” See, e.g., Wright v. Jackson, 329 S.W.2d 560 (Ky. 1959) (“We have often held that a party is estopped to take advantage of an error produced by his own act.“); Miles v. Southeastern Motor Truck Lines, 173 S.W.2d 990, 998, 295 Ky. 156, 173 (1943) (“It is the rule that one cannot complain of an invited error.“). Although most criminal cases addressing the issue of invited error do so in the context of a criminal defendant‘s waiver of his right to a jury trial, see United States v. Page, 661 F.2d 1080, 1082-83 (5th Cir. 1981); Jackson v. Commonwealth, 113 S.W.3d 128, 134-36 (Ky. 2003), the rationale behind the notion that one cannot commit to an act (such as waiving a jury trial) and later complain on appeal that the trial court erred to his detriment is equally applicable when a criminal defendant fails to act (such as foregoing the opportunity to question a witness) as Appellant‘s defense counsel did here. “A defendant cannot complain on appeal of alleged errors invited or induced by himself, particularly where ... it is not clear that the defendant was prejudiced thereby.” United States v. Lewis, 524 F.2d 991, 992 (5th Cir. 1975), cert. denied, 425 U.S. 938, 96 S. Ct. 1673, 48 L. Ed. 2d 180 (1976).
In this case, Appellant was given the opportunity to question Crutcher about whether or not she had made previous statements concerning the alleged shooter on the day Tiller was killed. Essentially, the trial court gave him the chance to get into evidence by way of Crutcher‘s admission that which otherwise would have been excluded based on the trial court‘s erroneous finding of a reciprocal discovery agreement violation. If she had denied making such a statement, Appellant would have been left only with her answer. Had this set of circumstances actually been realized, Appellant‘s argument that the audiotaped statements were improperly excluded becomes less tenuous. The actual circumstances in this case, however, differ greatly, and as such, any error in the exclusion of the audiotaped statements was waived, but nevertheless harmless for the reasons aforementioned.
B. Exclusion of Octavious Eggerson‘s Written Statements.
In the second instance, the trial court prohibited Appellant from introducing written statements of another witness, Octavious Eggerson (Eggerson). From the record, it appears that Eggerson‘s written statements, one six months after the murder and another two months before trial, bolstered his testimony rather than impeaching it. Again, because the trial court found Appellant‘s failure to disclose this evidence to be a violation of the reciprocal discovery rules, the evidence was excluded. Appellant now argues that the written statements should have been admissible under the hearsay exception for prior inconsistent statements or prior consistent statements. We do not agree.
Initially, we note that the trial court‘s exclusion was indeed correct, but find that the basis for such an exclusion was improper. As already stated, Appellant‘s obligation under the reciprocal discovery agreement referred to
Since Eggerson‘s testimony at trial was nearly identical to his written statements, the evidence was not admissible as prior inconsistent statements. Thus, this argument fails.
Appellant also argues that the written statements were admissible as prior consistent statements. There is no merit to this argument, as there is no rule which would allow defense counsel in this case to introduce Eggerson‘s prior statements. Prior consistent statements are admissible provided the proper foundation is laid pursuant to
Again, although the trial court erred in excluding the written statements on the basis of an alleged violation of the reciprocal discovery agreement, any error in doing so was harmless as the evidence was otherwise properly excluded for the reasons set forth herein.
II. DENIAL OF CONTINUANCE
The Appellant‘s second claim of error is the trial court‘s denial of his motion to continue the penalty phase of his trial. The jury returned its guilty verdict at approximately 5:54 p.m. on the fourth day of trial. Just prior to the jury‘s return, Appellant‘s counsel approached the bench and asked the judge if the penalty phase “absolutely [had] to be done today?” He informed the court that he was not prepared to proceed and that he would need character witnesses for the penalty phase. The Commonwealth objected to any continuances. Ultimately, the trial court denied the continuance as the jury had been told that the case would conclude that day and the following day was the trial court‘s motion day and could not be rescheduled.
Shortly thereafter, the court began the penalty phase. The Appellant then called his aunt, Dora Gray, as a character witness. She testified the Appellant got mixed up with the wrong crowd and asked
The Appellant argues that the trial court abused its discretion by denying the continuance.
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.
RCr 9.04 (emphasis added).
The Appellant‘s argument in support of a finding of error is based predominantly on the factors delineated in Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991), overruled on other grounds by Lawson v. Commonwealth, 53 S.W.3d 534, 542 (Ky. 2001), wherein we held that a trial court should, on a proper motion under
In Eldred v. Commonwealth, 906 S.W.2d 694, 699 (Ky. 1994), overruled on other grounds by Commonwealth v. Barroso, 122 S.W.3d 554 (Ky. 2003), we held that the decision as to whether to grant a continuance is within the sound discretion of the trial court based upon the unique facts and circumstances of the case, these unique facts and circumstances being the factors set forth in Snodgrass. See also Lovett v. Commonwealth, 858 S.W.2d 205 (Ky. App. 1993) (holding that only a trial court‘s abuse of its discretion would justify disturbing its ruling to grant or deny a motion for continuance).
More specifically, in Cornwell v. Commonwealth, 523 S.W.2d 224, 227 (Ky. 1975), we held that the refusal of a trial court to grant a continuance on account of an absent witness will not be disturbed unless there is a clear showing of an abuse of discretion in denying the continuance.3
The Appellant‘s trial counsel addressed the court stating his unpreparedness for the penalty phase in that his character witness was not present. At no point did counsel make a proper motion for continuance as required by
III. COMMONWEALTH‘S VOIR DIRE COMMENTS
The Appellant‘s third claim of error is that the trial court erred by failing to admonish the jury that the prosecutor represented the state, not the victim, after the attorney for the Commonwealth asked the jury if they believed the victim also deserved a fair trial and a “day in court.” The Appellant argues the questions constituted prosecutorial misconduct which effectively denied him a fair trial.
Upon this questioning by the Commonwealth, counsel for the Appellant lodged an objection. The judge stated that she was troubled by the questioning and the Commonwealth should move on but stated she would not give an admonition. The questioning resumed, along other lines, without any further objections or requests for relief by the Appellant.
It is not necessary, however, for the Commonwealth to exclude mention of the victim of a crime or for the victim to be dehumanized in order to ensure the defendant gets a fair trial. The Commonwealth is the representative of the “people” and represent their interests, including the interests of the victims. A fair trial for one, is a fair trial for all. These are not two different standards—they are the same.
In Bowling v. Commonwealth, 942 S.W.2d 293, 302-03 (Ky. 1997), this Court held that the jury may receive an “adequate ... description of the victim as long as the victim is not glorified or enlarged.” The victim of a homicide “can be identified as more than a naked statistic” and the defendant is not unduly prejudiced by the identification of the victim as a human being. Id. In Bowling, we cited Payne v. Tennessee, 501 U.S. 808, 827, 111 S. Ct. 2597, 2609, 115 L. Ed. 2d 720 (1991) (overruling two recent cases, both of which had held the admission of “victim impact evidence” in a capital trial was a per se violation of the Eighth Amendment), quoting former Justice Cardozo who said, “Justice that is due to the accused is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.” Payne, 501 U.S. at 827, 111 S. Ct. at
Because we have long held as a cornerstone of our jurisprudence that the prosecution “represents all of the people of the Commonwealth,” Goff v. Commonwealth, 241 Ky. 428, 44 S.W.2d 306, 308 (1931), we are not persuaded that the question during voir dire of the victim “receiving a fair trial” was fundamentally unfair. The Commonwealth first referred to the Appellant‘s right to a fair trial and then suggested that the trial be fair to all those involved. We do not believe the Commonwealth‘s question and the court‘s response thereto constitute error. For the sake of argument, even if we found this to be error, it would be harmless as it did not affect the substantial rights of the Appellant, or the overall fairness of the trial.
IV. PEREMPTORY STRIKE OF JUROR 764
The Appellant‘s fourth claim of error arises from the Commonwealth‘s peremptory strike of Juror 764. The Appellant argues the Commonwealth struck the juror for discriminatory purposes in violation of Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). In evaluating this claim in light of the Batson three-step process, we find no error. Id.
The trial court, sua sponte, required both the Commonwealth and trial counsel for the Appellant to disclose any jurors selected for peremptory strikes who were African-American (and female) and to explain their reasoning for the strikes.
Regarding his strike of Juror 764, the attorney for the Commonwealth stated that the juror lived in a high-crime area and that her participation in the trial would put her in a “tight spot.” Appellant objected, stating that the prosecutor did not offer a nondiscriminatory reason. The trial judge accepted the prosecutor‘s explanation as race-neutral and overruled the objection.
Ordinarily, the Appellant would bear the initial responsibility under Batson to make a prima facie showing of purposeful discrimination by the Commonwealth in the exercise of its peremptory strikes. This Appellant‘s duty, however, was rendered moot by the trial court‘s request for explanation and ruling on the strike and so we need not tarry on this issue. Commonwealth v. Snodgrass, 831 S.W.2d 176, 178 (Ky. 1992) (citing Batson, 476 U.S. at 96-98, 106 S. Ct. at 1722-1724).
Once the prima facie showing was made, or as in this case, the trial court made a request for explanation, the Commonwealth, according to Batson, then bore the burden of offering its “race-neutral” reason for striking Juror 764 (i.e., Juror 764 lived in a high-crime area). Batson, 476 U.S. at 80, 106 S. Ct. at 1714. Once the Commonwealth gave its reasoning and such was acceptable to the trial court, the burden shifted to the Appellant to rebut the neutrality of the reasoning. The Appellant objected to the strike as not based on nondiscriminatory grounds, but failed to offer any further argument or evidence of purposeful discrimination.
“Unless a discriminatory intent is inherent in the prosecutor‘s explanation, the reason offered will be deemed race-neutral.” Hernandez v. New York, 500 U.S. 352, 360, 111 S. Ct. 1859, 114 L.Ed. 2d 395 (1991). We are, thus, not persuaded that the Appellant met his subsequent burden to provide further evidence on which the trial court could determine the Commonwealth‘s peremptory strike to be discriminatory. See e.g. United States v. Uwaezhoke, 995 F.2d 388, 394 (3d Cir. 1993) (holding that a prosecutor may rationally believe that a juror who lives in a bad neighborhood may fear retaliation for her verdict or she may have had unpleasant contact with police). Because the trial court is the best “judge” of the Commonwealth‘s motives in exercising its peremptory strikes, great deference is given to the court‘s ruling. See Wells v. Commonwealth, 892 S.W.2d 299, 303 (Ky. 1995) (the trial court is in the “best position” to determine the true intent behind the Commonwealth‘s peremptory challenges); Snodgrass, 831 S.W.2d at 179 (the trial court may “accept at face value” the explanation given by the prosecutor for his strikes, depending on his “demeanor and credibility). The trial court‘s decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference,” Wells, 892 S.W.2d at 303, and must be accepted unless they are clearly erroneous. Stanford v. Commonwealth, 793 S.W.2d 112, 114 (Ky. 1990). The trial court‘s determination in this case deserves no less deference and we find no reason to disturb its ruling.
Although the dissent takes issue with both the reason proffered by the Commonwealth as well as the trial court‘s acceptance of living in a high crime area as being race-neutral, we note that the Commonwealth‘s attorney in this case peremptorily struck a total of nine jurors. Of those nine, four were African-American. The Commonwealth offered as justification for the other three jurors struck that two of them were “church friends” of defense counsel, and the third had been represented by defense counsel on a prior occasion. In short, the Commonwealth found it necessary to strike only one African-American juror on the basis of where that juror lived. While we make no finding as to the veracity of the reason proffered, we do note that three African-American jurors were left in the remaining juror pool, and of those three, two actually served on the jury, which found Appellant guilty as charged. Under these circumstances, we cannot find error in the trial court‘s decision.
V. PRIOR BAD ACTS
During the trial testimony of Detective Williams, the Commonwealth played Appellant‘s taped statement wherein he mentioned being in jail and on probation. Despite the Commonwealth‘s agreement to turn down the volume during specific references to his criminal history, the jury inadvertently heard additional references to the Appellant‘s criminal past (jail and probation). The Appellant moved for a mistrial. Though the motion was overruled, the trial court offered a curative admonition which was accepted and given. The Appellant now claims the trial court erred in denying his motion for mistrial. We disagree.
Though evidence of “prior bad acts” is generally inadmissible,
In this case, the trial court determined that the “harmful” references did not rise to the level that could only be
Because the Appellant has not provided any grounds to suggest that the reference to the Appellant‘s criminal past was not cured by the court‘s admonition5, we find no error.
VI. DIRECTED VERDICT
As his final claim of error, the Appellant argues that, under the evidence presented, it was clearly unreasonable for the jury to convict him of murder. Appellant argues that the Commonwealth‘s evidence was so contradictory that no reasonable juror could convict him of the murder of Andrea Tiller. We disagree.
On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony. On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal. Commonwealth v. Benham 816 S.W.2d 186, 187 (Ky. 1991) (citing Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983)).
The Appellant argues that the inconsistencies in the testimonies of the Commonwealth‘s witnesses entitle him to a directed verdict. The inconsistencies in the testimonies, however, were introduced by the Commonwealth as prior inconsistent statements and are admissible at trial pursuant to
In applying the standard set forth in Benham and its progeny, the trial court properly overruled the Appellant‘s motion for directed verdict, leaving the question of weight and credibility to the jury. E.g. Commonwealth v. Smith, 5 S.W.3d 126 (Ky. 1999); Webb v. Commonwealth, 904 S.W.2d 226 (Ky. 1995); Bush v. Commonwealth, 457 S.W.2d 495 (Ky. 1970). In reviewing this issue in light of Benham and Sawhill, we do not find it unreasonable for the jury to have found guilt.
For the foregoing reasons, we affirm the judgment of the Fayette Circuit Court.
GRAVES, ROACH and WINTERSHEIMER, JJ., concur.
MINTON, J., concurs by separate opinion.
MCANULTY, J., concurs in part and dissents in part by separate opinion, with LAMBERT, C.J., joining that opinion.
MINTON, Concurring Justice.
I concur with the majority‘s conclusion that Gray‘s conviction should be affirmed. But I write separately because I view Gray‘s argument regarding the reciprocal discovery agreement differently and because I share many of the concerns expressed in the dissent.
A. The Discovery Violation.
I disagree with the majority‘s conclusion that the pretrial discovery agreement only
I believe the pretrial discovery agreement was broad in scope, as evidenced by the fact that it states that “the Defendant [Gray] agrees to provide reciprocal discovery[.]” So, unlike the majority, I believe that the trial court correctly found that Gray breached the agreement when he failed to share the taped statements with the Commonwealth. And I believe that the trial court had broad authority to fashion the appropriate remedy for this breach, regardless of whether the taped statements fit nicely into any specific subsection of our criminal rules. Under
The parties clearly envisioned reciprocal discovery. And there is no indication that the Commonwealth failed to abide by that agreement. Additionally, the trial court, which was surely in the best position to judge the parties’ intent, also must have believed that the parties intended to provide broad reciprocal discovery because the trial court did not engage in the
I conclude that the trial court did not abuse its discretion by prohibiting Gray from introducing evidence that he had not disclosed to the Commonwealth. The trial court‘s ruling merely held Gray to the terms of his voluntary agreement.2
I also respectfully suggest that the majority‘s discussion of harmless error and invited error is unnecessary. When the trial court ruled that Gray could not impeach Crutcher or Eggerson with a specific inquiry into their prior statements, it concurrently allowed Gray to ask Crutcher or Eggerson whether they recalled making those statements. But Gray‘s counsel did not accept the trial court‘s invitation to ask either Crutcher or Eggerson whether they recalled making the statements at issue. So the propriety of the exclusion of those statements is not preserved for our review.3
I support Justice McAnulty‘s contention that residents of high crime areas may have as much, if not more, interest in serving as jurors in criminal cases than do residents of so-called “safe” neighborhoods. And I am troubled by the paternalistic thinking reflected in the Commonwealth‘s invocation of Juror 764‘s residence in a high crime area as possibly putting her in a “tight spot” as its reason for striking her. She, unlike others in the venire, did not respond to the Commonwealth‘s voir dire question asking if any of them were afraid to sit on the case. My concern is deepened by the fact that the Commonwealth made no discernible effort to link Juror 764 in any way to the facts of the case. But despite my concerns, I must ultimately disagree with Justice McAnulty‘s conclusion that reversible error occurred here.
Whether Gray made the requisite prima facie showing under Batson v. Kentucky4 is a moot point since the Commonwealth offered a response to the Batson inquiry.5 And the burden was on the Commonwealth to state a race-neutral reason for exercising the peremptory challenge to Juror 764.6 On its face, the Commonwealth‘s response regarding Juror 764‘s residence in a high-crime neighborhood has nothing to do with that juror‘s race.7
Although the Commonwealth‘s proffered race-neutral reason for striking Juror 764 was not specifically related to the charges against Gray, as required by Batson, that factor, standing alone, does not require reversal. Rather, a lack of a relationship between the residence of the prospective juror and the facts of the case to be tried is one factor that a trial court can take into account in determining if the prosecution‘s stated reason for the strike is race-neutral.8 Thus, I disagree with the conclusion reached by the dissent that the lack of a connection between Juror 764‘s place of residence and Tiller‘s death requires reversal of Gray‘s conviction.
Having found that the Commonwealth‘s proffered reason was, on its face, race-neutral, the final step was for the trial court to determine if the Commonwealth‘s race-neutral reason was actually a pretext for racial discrimination. Although he now argues that pretext is inherent in the Commonwealth‘s proffered reason, Gray does not show where he made that argument before the trial court.
The trial court made its ruling facing a situation in which the Commonwealth‘s proffered reason for striking a juror was facially race-neutral and the defense did not challenge the Commonwealth‘s assertion by offering to present historical or anecdotal proof.9 From the vantage point
of an appellate panel, we perhaps could differ as to whether the Commonwealth‘s explanation for striking Juror 764 was a pretext for racial discrimination. But I cannot find that the trial court‘s ruling, which necessarily had to be made on-the-spot, was clearly erroneous10 in light of the fact that the trial court was “in the arena,”11 and, thus, was uniquely positioned to judge the Commonwealth‘s demeanor and motives.12 Although I share many of Justice McAnulty‘s concerns, I do not believe that the trial court clearly erred when it found that Gray did not meet his burden to show that the Commonwealth‘s peremptory strike of Juror 764 was racially motivated.13 Accordingly, I concur with the majority‘s conclusion that no Batson-related reversible error occurred in this case.
MCANULTY, Justice, Opinion Concurring in Part, and Dissenting in Part.
While I concur in the other parts of the majority opinion, I respectfully dissent as to the peremptory strike of Juror 764.
While we are to afford trial courts deference in their determination of the issue of discriminatory intent, I believe the trial court did not effectively weigh whether the reason offered was pretextual. In the third phase of the Batson v. Kentucky analysis, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), the trial court has the duty to weigh the reason proffered as it would any fact in issue to determine if purposeful discrimination has been shown. Washington v. Commonwealth, 34 S.W.3d 376, 379 (Ky. 2000). Defense counsel pointed out that the reason proffered by the Commonwealth was not non-discriminatory.
In this case the trial court informed counsel that they needed to discuss their strikes. The Commonwealth Attorney‘s gave as his reason for striking Juror 764: “She lives on Ward Drive. Our experience is that‘s a high crime area. Whether she said she was fearful or not, I think that this puts her in a tight spot, so I struck her. Thought it would affect her.” The Commonwealth‘s Attorney finished detailing his peremptory strikes, and informed
I would find the trial court‘s determination clearly erroneous. I believe courts need to pay substantially greater attention to whether the mere claim that a person lives in a high crime area is being used as a pretext for discrimination against blacks in jury selection. I take issue with that justification as race-neutral in this case because it was unconvincing in three ways.
First, the prosecutor in this case offered no justification for why living in a high crime area should have any bearing on serving as a juror. Citizens who live in high crime areas can have just as much, if not more, interest in sitting on panels in criminal cases as jurors who experience no crime in their neighborhoods. It is stereotypical to assume that those who live in high crime areas are more likely to condone bad acts. Particularly is this true when attitudes can be explored in voir dire rather than assumed.
If conducted properly, voir dire can inform litigants about potential jurors, making reliance upon stereotypical and pejorative notions about a particular gender or race both unnecessary and unwise. Voir dire provides a means of discovering actual or implied bias and a firmer basis upon which the parties may exercise their peremptory challenges intelligently. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 143-144, 114 S. Ct. 1419, 1429, 128 L. Ed. 2d 89 (1994). The residence of a potential juror in a high crime area is not persuasive on its own. There was no attempt by the prosecutor to tie the reason for the peremptory strike to the facts of this case. The prosecutor must “articulate a neutral explanation related to the particular case to be tried.” Batson, 476 U.S. at 98, 106 S. Ct. at 1724, 90 L. Ed. 2d at 88 (emphasis supplied). The prosecutor did not assert that the area in which the juror lived was the same area in which the crime in this case occurred. Further, there was no suggestion that the juror had any involvement in criminal activity. This basis does not bear up under reasonable scrutiny, and thus courts should be wary as to whether it is being used as pretext.
Second, there is the inference that the prosecutor‘s strike is beneficial to the juror because she needed protection from possible retaliation because of living in a high crime area. The majority cites United States v. Uwaezhoke, 995 F.2d 388, 394 (3rd Cir. 1993), for the proposition that the prosecutor may believe that the juror may fear retaliation for her verdict. (Opinion at p. 16) Of course, there will be instances where this is so. But it is not the job of peremptory strikes to provide for this. To begin with, this subject should be explored in voir dire rather than guessed at or assumed. Then, it is for the court or for the parties to use their strikes for cause to avoid seating a juror in a particular case who feels threatened. In this case, the
Third, merely accepting high-crime neighborhood as a race-neutral reason for a strike ignores African-American housing patterns, particularly in our Commonwealth‘s largest cities. This creates the opportunity for the mere assertion that the juror lives in a high crime area to draw more black juror candidates into an effective exclusion from juries. The prosecutor must present a comprehensible reason in the second step of the Batson inquiry, and that explanation need not be “persuasive, or even plausible” so long as the reason is not inherently discriminatory. Purkett v. Elem, 514 U.S. 765, 767-768, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995). I believe in some circumstances, merely citing a neighborhood in which the juror lives will represent purposeful discrimination due to the African-American housing pattern of that community. For all of these reasons, I believe that it was clearly erroneous for the court to accept the explanation for the strike as race-neutral. Our Court and the trial courts of this Commonwealth should scrutinize explanations for peremptory strikes based on neighborhood alone.
LAMBERT, C.J., joins in this opinion.