Morgan v. Commonwealth

power) and is often primary used as a of heating

means homes. join

I also with Justice Roach in ac-

knowledging any event, that in the distri- propane

bution of to its customers awas “requested,

service or deemed advisable operate

desirable to a utility.” There was

simply no put evidence forth to contradict

this. course,

Of legislature early will meet year

nеxt and consider again— this issue ” but there “a cold winter eomin.’ And logic of the majority, we have inhib-

ited competition in a enterprise sys- “free

tem” to the detriment of all the Appellee’s

customers. reasons,

For the foregoing I sincerely

believe the trial court and Court Ap-

peals were correct in analysis their —thus

I strongly dissent from majority opin-

ion.

Darryl Wayne MORGAN, Appellant, KENTUCKY,

COMMONWEALTH OF

Appellee.

No. 2003-SC-0489-MR.

Supreme Court of Kentucky.

Jan. 2006.

As Corrected Jan. 2006. 3,May

As Modified 2006.

As Modified on Denial of Rehearing

May Rohrer,

Emily Assistant Ad- Holt Public vocate, Advocacy, Department Public Frankfort, Appellant. for Counsel Stumbo, Attorney D. General of Gregory Stetler, Tami Kentucky, Allen Assistant General, Appellate Divi- Attorney Criminal sion, Frankfort, Appellee. Counsel Opinion of Court Justice SCOTT. was con- Appellant, Darryl Morgan, W. of first- victed in the Ballard Circuit Court burglary, second-degree stalking, degree first-degree kidnapping, two counts of sex- abuse, threatening, and ual terroristic He trespass. criminal first-degree thirty-five years to a total of sentenced to this Court as imprisonment appeals right. a matter For reasons hereaf- out, Appellants all ter set we affirm convictions, except sec- conviction hereby we re- degree stalking, ond which entry an amended verse remand for resentencing judgment of conviction order consistent herewith. hands tying

FACTS after M.S.’s behind his back, Morgan told to take her off. her robe charges against appel- bulk cried, again put gun When she he Morgan’s lant stem from actions on the M.S.’s head. 2nd, night of early October and the morn- 3rd, ing Morgan of October wherein Morgan couple that he told the broke into the home D.C. and essential- wanted to see D.C. naked and that no one ly terrorized and victimized D.C. and her get would hurt if listened to him. He they guest M.S. get then told D.C. to her vibrator out of p.m. Around 10:30 on October her dresser drawer. When she denied Morgan went to the residence of D.C. in vibrator, owning a he he had been boasted Barlow, Kentucky. Morgan, who admits in her house before and knew she owned to being voyeur, through watched one. When she cried and asked him not to bedroom window of D.C.’s trailer and ob- her, make again put gun up boyfriend, M.S., served her and her having M.S.’s head and said to do what he said or sexual couple intercourse. After the went However, he would shoot M.S. when D.C. to sleep, Morgan outside the trail- lingered get went to her dresser to vibrator out er several hours before cutting the drawer, 911 from phone she dialed a telephone line a and window screen and on the According dresser. to the 911- going couple, inside.1 He then awoke the dispatch log, the call from the D.C.’s resi- and ordered them onto their stomachs. dence in at a.m. came 2:44 dis- Morgan, then armed her son’s shot- patcher immediately officers to the sent gun knife, repeatedly and told the victims trailer.

throughout they that if ordeal did not Subsequently, Morgan forced D.C. them, exactly do as he told he would blow vibrator, sexually touch herself with her both of their heads off bum the trailer threatening to M.S. if she shoot did down around thеm. When asked how he cooperate. complied, Morgan As D.C. gotten had gun, replied he he had been rubbed her foot leg. in her house numerous times and knew everything where He was. also boasted ordeal, Several a car minutes into he had been in hundreds of houses in up Morgan drove told the trailer. D.C. County. Ballard get answer the door and rid of whoever Initially, Morgan ordered get D.C. to City it was. It was Police Barlow Chief out from underneath the covers. When Hall, Tony pulled who then D.C. out the her, she cried and him not asked to make front door of the trailer after she whis- put he the gun up to M.S.’s head and said pered weapon. Appel- the intruder had to do what he he said or would shoot M.S. lant premises then fled the and was later eventually complied D.C. with Morgan’s arrested. demands. Later, if Morgan asked D.C. she had PEREMPTORY CHALLENGE any painkillers or alcoholic beverages. claim Morgan’s All she first of error con had was some tea. He then al- lowed her cerns the trial refusal to remove put bring on her robe and court’s Tylenol. However, Morgan alleges him Juror 19 some tea and he for cause. kept returned, him gun prejudicial his When she this was under Thomas M.S. kitchen, Apparently phone 1. cut he line to not the bedroom. one in D.C.'s case required he was could decide the based on the law and v. Commonwealth2 as However, in presented. evidence Mont to remove Juror use strike Commonwealth6, gomery v. we noted: myths arising from the One of dire, During voir 19 disclosed that Juror surrounding jury selection is folklore good D.C.’s he was friends with ex-hus- juror that a has made answers who band, J.C., result, and that as he had him disqualify which would otherwise great from heard deal about crimes prejudice may reason be reha of bias J.C., heard who turn had the details by being can bilitated asked whether he directly from asked he D.C. When whether put personal knowledge, his aside guilty could find Morgan the Com- views, opinions or those sentiments case, prove monwealth failed to its Juror already, the case in has decide “I feel I responded, would like was solely on pre stead based the evidence betraying and told maybe,” [J.C.] defense in court and the court’s instruc sented your counsel that he wouldn’t “probably tions. has come referred to Thus to be later, questions best choice.” Several Juror “magic ques the vernacular 19 stated based on what he had read But, Hughes tion.” ob as Chief Justice thought “open and heard he the case was Wood, served United States by the and shut.” When asked trial court 177, 185, 57 S.Ct. 81 L.Ed. U.S. a fair he could render verdict whether (1936), not a techni “[i]mpartiality solely upon presented, the evidence based cal It is a оf mind.” conception. state replied, “Maybe 19 further I should Juror A decision trial court’s whether could, I I I not ... would like to think but appro possessed “this mental attitude of pretty strong opinion, formed a I have but priate indifference” must be reviewed know I like to his don’t him. would hear the It is totality circumstances. Nonetheless, actually.” of it after side juror’s not the to a response limited to questions by the repeated Commonwealth “magic question.” court, ‘Well, finally said, and trial Juror 19 strictly I can a decision hope during I voir dire es- [make Juror 19’s answers on the and the I pervasive law]. based evidence an inference of bias so tablished can, yeah.” think I he could that his eventual assertion that put knowledge preconceived and aside A decision trial court’s as not rehabil- opinions simply of the case did juror a for whether excuse cause is fair and itate him the standard for a within for reviewed abuse of discretion. Adkins impartial jury guaranteed the United Commonwealth3; Pendleton v. v. Commonwealth Kentucky and Constitutions. Con- States . probability 4 “It is the of bias cedingly, trial court its discre- abused prejudice ruling or that is determinative in cause. striking tion in Juror 19 for not challenge a Pennington on for cause.” However, never sat on Juror 19 Commonwealth5. Commonwealth Morgan, convicted because contends that removal for cause (8) because, Morgan peremp despite pri- eight Juror used one of his warranted 19’s comments, very tory allotted to eventually stated that he him for or (Ky.1958). (Ky.1993). 5. 316 2. (Ky.2003). 3. 96 S.W.3d (Ky.1991). 6. 819 S.W.2d (Ky.2002). 4. 83 S.W.3d 522 holds, suspect for

purpose they granted which were we amendments as drastic —to juror a sympa- strike he felt would not be as those made to RCr 9.40 would never clear, thetic his cause.7 To be one have been allowed to stand. is a case should believe this where an Dictionary Black’s Law defines a sub- obviously biased trial jury. sat stantial which is right as one essential and Morgan claims the of his perempto- use a potentially affects outcome of

ry challenge in this circumstance resulted legal lawsuit and is capable enforcement in a violation of right” a and “substantial distinguished and protection, as from requires thus reversal under Thomas.8 procedural right.14 mere technical or Conversely, procedural right is derived law, Under federal constitutional from legal procedure; or administrative peremptory challenges “auxiliary” are right helps protection Rather, not of constitutional dimension.9 enforcement right.15 of a substantial This they are a means to achieve the constitu quintessential case illustrates the exercise tionally required an impartial jury.10 end of pеremptory challenge. Morgan’s Thomas, however, By Kentucky elevated him challenge allowed to re- that of a “sub jury; ceive a fair impartial yet its use right” stantial requiring highest de argued now under Thomas as the basis protection, gree though history even our reversing the verdict that fair and acknowledges freely them, we can add to impartial jury. subtract from them or take away.11 them Historically, the of peremptory number As charged Justice Keller his dissent- challenges has fluctuated both the de- ing opinion in Stopher fense Commonwealth. “bestowing upon substantial (20) twenty the defense was per- allowed peremptory challenge exercise of a serves emptory challenges. The number was re- one only-it function and one function (15) 1893; duced to fifteen eight manufactures reversible error in cases (8) in All during periods, these the where the case has been decided a fair (5) only Commonwealth was allowed five impartial jury.”16 challenges.12 In RCr Morgan finding is now error no where 9.40 was amended to allow both the de- error again, should exist. And and the Thomas fense an equal Commonwealth (8) number, upsets a verdict rendered a fair and eight peremptory challenges only peremptory challenge impartial If the jury each.13 because the Fifth and was right safeguards intended to be a Sixth substantial af- Amendment worked. defendant, forded to the as something Thomas RCr 9.40 is we created and we 7. RCr. 9.40. 12. As was the case here.

8. Id. 13. Id. Martinez-Salazar, 9. United States v. 528 U.S. 120 S.Ct. 145 L.Ed.2d 792 (7th ed.1999) added). (emphasis 14. 1324 Oklahoma, (2000), citing Ross v. S.Ct. 101 L.Ed.2d 80 15. Id. at 1323. 10. Id. at 120 S.Ct. 774. (Ky.2001). 16. 57 S.W.3d 787 Stopher v. (Keller, J., (Ky.2001) dissenting). that and never-has dire in Thomas revealed

allow to exist. It is not Voir status, jurors ques- prospective were except for of 67 who been constitutional n knowledge- tioned on the record were our decision Thomas.' “Of the 67 prospec- able about the case. system an where all Ours is adversarial jurors, the trial court struck for tive a fair and parties together to insure work they they could cause when admitted jury. that is done and a When impartial fair, an expressed opinion or based on be seated, jury we should impartial fair is unsuc- pre-trial publicity. Defense counsel that reason. As not disturb verdict for cessfully moved to strike ten more Wintesheimer, in his dissent Justice they grounds for cause on admitted Thomas, out, “The mere fact that pointed this case in the they had read the details of all his the defendant exercised was, indeed, There an abuse of paper.”18 provide does not challenges sound basis by the trial court in Thomas discretion asserting relating to process for ..., grant to was the failure but abuse automatically cause de- And, chаnge of venue. to the extent number prived proper peremp- him of opinion, with this Thomas is inconsistent tory' challenges.”17 hereby overruled. Morgan peremptory challenges used his hereto, Cooper, in dissent Justice his jury fair impartial to make that a sure conjures a less than up scene where case, as was in his best interest decided his judge intentionally allows a scrupulous to do. To otherwise is ac- suggest party of one jury to be “stacked” favor that one has the knowledgment party goes suggest on to over other and Many her to a that favors or side. activi stage for such our decision sets the change or change have said Thomas RCr contrary, majority relies ties. On the working. 9.40. One the other judges, as the credibility of trial on join time to the chorus—it We now judicial operate system, backbone of our And do. overrule Thomas. we according the facts of the law and Thomas, departed we ad- Having from case, they are deal particular with which proper. mit the reversal therein was We great deference the deci ing. giveWe compelled join in such a again would rely judges sions of trial because we facts, opinion under those but reasonable and to the oath their adherence to the law grounds point- proper were according of office administered them concurring out in Justice ed Leibson’s this Commonwealth. the Constitution of There, opinion thereto. Justice Leibson Commonwealth;19 Com Harris v. See noted, ... front-page the “death news Deloney;20 Commonwealth monwealth the ‘Troublesome newspaper, in the local High Dept. Transportation Cabinet Times, trial, ... Prior Thom- Creek ways Taub;21 v. Walker. v. Commonwealth venue, change attaching as for moved the newspaper. news articles from seven denied, suggest- any In the one The motion was renewed after voir scenario such as are means for by Cooper, there again. dire and denied ed Justice (Ky.1988). Id. 265. 17. 21.

18. Thomas 261. (Ky.1987). 22. 729 S.W.2d 440 (Ky.2004). 19. 134 S.W.3d 603 (Ky.2000). S.W.3d 471 sole dictates of

dealing retry with such conduct. This case deals this case under the the facts us one would be before and involves Thomas absurd. juror and one strike. There is Morgan’s Thus we find no error trial no evidence in this case to suggest regard. in this The error the court posi- favoritism for the Commonwealth’s for failing to strike Juror 19 cause was sug- and Morgan’s tion over no one has play part harmless since did not otherwise, gested otherwise. And were it conviction. Morgan’s simply would rule It appropriately. we is our appropriate ruling today for BATSON CHALLENGE upon based facts not before us. Morgan alleges next Common- Thomas, Kentucky,25 wealth Batson v. violated rеlied the Commonwealth Alabama,26 J.E.B. v. exercised all when Turpin on v. Dun- Commonwealth23 and Commonwealth,24 on male peremptory challenges pro- its bar v. dispute jurors. spective We have reviewed the contention of a constitutional violation with grounds striking Commonwealth’s for respect of peremptory the use chal- juror proffered each and conclude that it lenges. Dunbar held: gender-neutral explanations sufficient for A right defendant’s to be tried challenges. No error occurred. impartial jury infringed if an unqualified juror participates in de SHERIFF COOPER’S TESTIMONY Commonwealth, Rigsby cision. v. Morgan argues prejudiced he was (Ky.1973); S.W.2d 795 Randolph v. Todd Cooper’s Sheriff reference to the Commonwealth, (Ky. 716 S.W.2d 253 bag camouflage “rape and its contents as a 1986); Commonwealth, v. Sanborn disagree. “bag kit.” We its con S.W.2d 534 (Ky.1988). long As as the tents” admitted were into evidence without jury actually hears and decides the objection. subject Thus its were contents case impartial, there is no constitu to fair comment. tional violation. Even if a should cause, have been removed such error presented of rape No evidence was does not violate the constitutional fact, not, in jury rape as this was impartial jury to an person did jury case. The knew this within the con- actually jury. sit Turpin text of the evidence it No one ever heard. Cf. (Ky. 780 S.W.2d 619 anyone. suggested Morgan raped 1989); Oklahoma, Ross Cf. Moreover, thorough- Sheriff was Cooper S.Ct. L.Ed.2d 80 ly presence cross-examined in the jury by Morgan’s regarding counsel Dunbar at 854-55. The bag, decision contents as other possi- well abrogated Turpin Thomas the holdings in ble explanations bag containing these and Dunbar. This is a Testimony bag, case where the items. as to the as well as contents, evidence of guilt the Defendant’s was appropriate abhorrent conduct are To overwhelming. pre- allowed conduct its duties as (Ky.1989). 23. 780 S.W.2d 26. 511 U.S. 114 S.Ct. L.Ed.2d . (1994) (Ky.1991). 24. 809 S.W.2d 852 25. 476 S.Ct. U.S. 90 L.Ed.2d 69 examination, Later, weigh pre- during

scribed to it—to the evidence cross Mor of gan’s questioning no initiated a line sented and reach verdict. find counsel We regarding she was aware in this the D.C! whether error mischaracterization of house, Morgan any had been in her taken bag. anything, If use contents the the anything. She then re thing moved “rape kit” error as find was harmless we Morgan had plied she had not known been possibility there no that this is reasonable home, explained Morgan that her might mischaracterization have contribut- her; during ordeal, told the of her course to Morgan’s ed conviction.27 he from the anything did not take houses in; only he around to had been he looked DC’S TESTIMONY response had. this they see what D.C.’s examination, On direct D.C. testi regard relevant thе was somewhat more during Morgan, fied that her ordeal with question posed by counsel than defense he told her had been “hundreds of he that of the Commonwealth. County” houses in Ballard but did . this, complains Morgan all now From of houses, things rather he take from these “prior bad acts” jury heard evidence of they Following looked to see what had. even, had though the Commonwealth Morgan’s unsolicited reference 404(b) KRE agreed not to introduce her, Morgan’s made statements counsel multiple evidence. He claims that D.C.’s al a motion for a mistrial based on the being in “hundreds of references to leged erroneous introduction KRE County” only violat- houses Ballard 404(b) trial evidence. At time the 404(b) agreement, but pretrial ed the KRE its court overruled motion based on “unduly prejudiced” his case before prejudicial impact opinion jury enough to warrant mistrial. necessary did not rise to level statement However, to warrant a mistrial. the court First, it is a presump well-settled give jury offered to an admonition to the tion that a will a curative ad follow counsel, rather, rejected desired. Defense potentially prejudicial monition when Therefore, on the belief it offered .admonition statement has been made.28 compound the impact provid would testimo timely appropriate admonition ny. jury following trial to the ed court sufficient to generally such a statement is examination, Later in the direct D.C. court Obviously, cure an error.29 the trial to the “hundreds of hous- started refer declaring did not a mistrial was the believe again, was cut-off es” statement but but, cure statements appropriate for D.C.’s Commonwealth the statement before rather, believed that admonition' was completed. could Defense counsel the court of an sufficient. Yet the offer of waited, until end of D.C.’s direct again admonition was refused. examination, object and move mistri- court, A mistrial is warranted again; trial overruled al. The “a where the record reveals manifest ne- motion. Commonwealth, question there a reason- Mills 27."The whether complained possibility (Ky.1999). able evidence might to the conviction.” have contributed California, Chapman v. 29. Charles v. 634 S.W.2d 407 (1967), citing S.Ct. 17 L.Ed.2d 705 (Ky.1982). Connecticut, Fahy U.S. v. State 229, 11 S.Ct. L.Ed.2d 171. an cessity urgent weapon for such or an action or control? It was as much a used necessity.”30 real The trial court has dis- by Morgan to further restrict and confine deciding cretion whether to declare a mentally emotionally, her and as were the mistrial, and its decision should not be shotgun Morgan and knife. wanted absent an disturbed discretion.31 abuse know he could do whatever he D.C. trial court wаs the tier of fact of the fact, helpless. In wanted and she was she and, impact of the upon statement evaluat- compelled was to do as he wanted —as it, ing the evidence determined before and embarrassing frightful as it was. urgent the situation did not an create or This Johnny is no different than Gil- necessity real to declare a mistrial. alcohol, marijuana use of and porno- bert’s not, fact, A mistrial was warranted in control, or graphic movies force induce instance, but admonition would stepdaughters his into adult sexual activi- appropriate.32 have been Morgan’s coun- stated, ty; necessary “[i]t wherein we sel, however, waived his to the admo- ..., jury that the see picture the entire nition. There was no abuse discretion necessary provides evidence that perspec- by trial in overruling court the motion competent. tive is Juries do not have for mistrial.33 perform fact-finding their function of in a In addressing Morgan’s KRE given vacuum.”34 D.C. could not have 404(b) argument, we Kentucky’s refer to truthful account of the ordeal without tes- kidnapping statute. KRS 509.010 defines tifying Morgan’s as to fear use of the restraint of kidnapping element as be intimidation, shotgun as well as the ing one that can accomplished by knife, weapons as the to effectuate her force, “physical intimidation, decep or kidnapping and control. tion, by Moreover, or means ...” KRS relevant, KRE provides “[Although 509.040(1)(c)establishes an intent “[t]o ter may probative evidence be excluded if its another,

rorize the victim ...” as an substantially outweighed value Thus, alternative element of kidnapping. ” danger of .... In prejudice, undue ad- Morgan’s distinguish statement to D.C. is whether or judging probative value 404(b) able from KRE evidence other substantially outweighed evidence is crimes, acts, wrongs, or in that the state undue prejudice, this Court has consis- ment was intended as one of his several willingness tently protect indicated (or restraint). tools of domination mental “probative evidence.” Why else would he made have the state Commonwealth,35 (or except intentionally up- ment v. Springer intimidate we terrorize) D.C. while she was under his held admission of evidence that maintaining control as a means of romantically defendant was involved with Inc., ed, 30. v. purposes potential Gould Charlton Co. 929 S.W.2d but of its effect Commonwealth, citing Skaggs her; control on her or restraint (Ky.1985) S.W.2d truth it. Commonwealth, 31. St. Clair v. 140 S.W.3d Commonwealth, Cf., Grundy Ky., (Ky.2004), citing Jones v. Common- wealth, (Ky.App.1983) 662 S.W.2d 483 34. Gilbert v. 32. The have could been reminded it was (Ky.1992). only trying charges in front of it at the time and that it could consider statement (Ky.1999). made under the circumstances that then exist- 35. 998 S.W.2d evidence; it its introduce the statemеnt person on the basis of relevan- another cy non-responsive a motive for the defendant from a answer originated to establish upheld to her we also the spouse; loll direct and a later in the Commonwealth’s testimony of “three admission witness from the response questions a series the same de- person involving sexual acts” Thus we on cross-examination. defense spouse. We have also fendant her regard. no error occurred in this find held, Authority, in Hall Transit v. of a harassment Plaintiffs evidence sexual REFUSAL TO SUPPRESS MORGAN’S affair was previous extramarital relevant STATEMENT objec- prejudice a KRE “undue over immediately During an interview Ap- tion.” States Court of United arrest, Morgan Depu admitted to after his Circuit, in peals Turpin for the Sixth problem voyeu ty that he had Gaia Kassulke, admission upheld of a letter the into home and had broken D.C.’s rism by a defendant as evidence

written murder A he to see her naked. because wished (which expressed envy of motive interview, Morgan into the few minutes following wealth friend received no longer that he wished indicated husband) diary her as well as a death of im deputy. Deputy speak with the Gaia by displayed which entry defendant Later mediately questioning. ceased the longing for wealth.37 Morgan approached was day, the same Turpin, In the Sixth Circuit discussed Batts, Carey again deputy, who another of review for evidence admit- standard rights. him Mor of his Miranda advised under KRE “A trial ted or excluded the mat gan agreed thereafter to discuss enjoys substantial discre- judge ‘various gave an extensive statement ter and one ‘balancing’ probative tion’ in value on Deputy Batts. prejudice’ hand and ‘unfair on other. Indeed, judge’s reviewing trial bal- Deputy Morgan claims that because now appellate under court ancing KRE him ask whether specifically Batts did not light in the most must view the evidence being Mir- rights his after he understood giving the evi- proponent, favorable its time, willing- andized the second probative dence its maximum reasonable consid- the case cannot be ness discuss minimum prejudi- its force and reasonable voluntary waiver of his knowing ered value of probative cial value.”38 Thus otherwise, court found The trial rights. any prejudi- outweighed D.C.’s statements finding. uphold and we Morgan’s cial on case. There was effect no abuse of discretion. ruling on a motion A trial court’s deemed conclusive suppress evidence is requirement respect to the notice

With evidence.40 supported substantial 404(c), prosecutor first of KRE must in hearing suppression The record of other introducing the evidence of intend absolutely no evidence crimes, diсates there was wrongs, or act's before notice Morgan not understand instance, indicating that did required.39 intent knowingly or that did not rights to his not the intent of Commonwealth Commonwealth, Cf., Hodge 17 S.W.3d (Ky.App.1994). 39. 36. (Ky.2000). Cir.1994). (6th 37. 26 F.3d 9.78; RCr Talbott v. 40. (Ky.1998). 38.Id.

Ill voluntarily it, agree way to the- jury interview with “stalk.” Without has no ‍‌‌‌‌‌‌‌‌‌‌​​​‌​​‌‌‌​‌‌‌‌‌‌‌‌​​​‌​‌‌‌‌‌​​​​​‌‌‌​​‍of Deputy Batts. No error knowing pattern occurred. that the of conduct neces-

sary prove stalking include at least must Here, jury two intentional acts. SECOND DEGREE STALKING “stalk,” definition provided the of written Morgan takes issue with the trial but not the definition of “course of con- court’s refusal to jury instruct the on the duct.” And the trial that while court ruled definition of of per “course conduct” as it argue defense counsel could the definition tained second-degree stalking jury, prosecutor’s comments charge. The record that indicates while any explanation giv- eviscerated that was orally counsel requested defense such in Morgan en. an was entitled to instruction struction, he did not tender a written defi as all of the elements of the of offense Nonetheless, nition. court trial ruled stalking. The con- definition of “course of definition, that it would not give written duct” must accompany the definition of but that defense counsel was free to argue stalk. We must conclude that the failure jury. to the Accordingly, during closing to properly instruct the on all of argument, explained defense counsel that stalking of elements was reversible error. second-degree stalking requires proof of conduct, an intentional course which is pattern defined as “a composed conduct DIRECTED VERDICT (2) acts, or two evidencing more a conti asserts, Morgan further with re

nuity However, purpose.”41 in the spect second-degree stalking closing Commonwealth’s argument charge, he to a was entitled directed followed, the prosecutor made the follow verdict because the Commonwealth failed ing statements: to prove the elements the offense as set get You to decide what did that 508.150, forth in provides: KRS which day, that’s what these instructions talk (1) person A guilty stalking in the about. Let’s look this. The third one degree intentionally: second when he is definitions and I’m going to come back, you’ll only (a) need these words person; Stalks another they are used in an you instruction and (b) Makes an or explicit implicit don’t understand them. Mr. Preston threat to place intent you told things some that are not in person in fear reasonable of: here. He said some I things. didn’t 1. Sexual contact in as defined object. It’s closing argument. He 510.010; KRS you told some of what he said was the 2. Physical injury; or judge you law. The tells what the law is .... you said [Y]ou would follow the law 3. Death. judge gave you in form of in- “Stalking” 508.130(1) is defined KRS as here, structions. If it’s not written follows: it’s not the law. (a) To “stalk” means engage As noted 1 Cooper, Kentucky Instruc- intentional course of conduct: (Criminal) 3.10, § tions to Juries p. 91 (4th ed.1999), the definition of “course of specific person 1. Directed at a accompany conduct” must persons; the definition of 508.130(2). 41. KRS result of Mor- alarms, distress annoys, serious mental seriously

2. Which her trailer because gan’s entry into first intimidates, per- or harasses the had aware that it occurred. she was never person; son or Moreover, that al- herself testified D.C. pur- legitimate Which no serves was, she Morgan knew who though she pose. only couple him a of times over seen had (b) that of conduct shall be course with had no contact years personal per- a cause reasonable which would that never claimed Mor- him at all. D.C. mental dis- substantial son to suffer any in acts which caused her gan engaged tress. night to the prior distress serious mental “ noted, ‘course of of 3. Finally, previously October as com- pattern of conduct conduct’ means a that the Commonwealth conclude We (2) acts, evidencing a posed of more two or that not introduce sufficient evidence did Thus, continuity to be purpose.”42 of conduct engaged pattern in a of Morgan stalking, Morgan second-degree of guilty acts, evidencing of or more composed two course of had in an intentional engage Accordingly, as continuity purpose. conduct, comprised prove of two or more acts that failed the Commonwealth D.C., alarmed, “stalked” as seriously intentionally Morgan at D.C. which directed 508.130, in he her, term is defined KRS that or annoyed, intimidated harassed on this a directed verdict was entitled to purpose. no legitimate which served charge argues that The Commonwealth (1) course of conduct was established INSTRUCTION VOYEURISM alleged into D.C.’s trailer Morgan’s entry he enti Morgan argues that 2002, and during the summer of sometime voyeurism lesser- to a instruction tled (2) 3, 2002 the October incident. Without burglary. first-degree included offense place on took question, the events which have rea jury could that the He contends were directed at evening of October 3 he D.C.’s sonably that entered believed alarmed, seriously D.C., and would have to see her only trailer the intent with intimidated, any rea- or harassed annoyed, naked, another crime. The to commit However, Morgan’s person. while

sonable on the denied the instruction trial court trailer was entry into D.C.’s prior alleged not a lesser- grounds voyeurism that her, absolutely no she had directed at burglary. first-degree included offense evening Octo- knowledge until the agree. We ber 2002. “is offense A lesser-included 7(b), Law, § Kentucky p. Criminal 9— or less of the same proof established For- (1998), Professors Lawson to establish required than all the facts to the crime of respect note that with tune charged.” KRS commission of the offense that the victim stalking, requirement 505.020(2)(a). words, “if the less In other intimidated, alarmed, or ha- annoyed, of a fact not proof requires er offense of a rassed, the conduct “requires offense, greater then prove required mental actually cause serious defendant not included the lesser offense is Here, offense, simply separate, it cannot greater but is distress to victim.” uncharged offense.”43 argued that D.C. suffered reasonably be Commonwealth, Colwell 508.130(2). 42. KRS also Commonwealth see (Ky.2000); Day, 983 S.W.2d 505 (Ky.1999). i.e., First-degree burglary theory, is committed that he entered D.C.’s trailer person, when a with the intent to commit a to look at her and not to commit crime, knowingly enters or remains unlaw- (although recognize crime he fails to and, fully in a building effecting when en- crime), voyeurism is a he was entitled try building or while in the or in the trespass, an instruction on criminal which therefrom, flight immediate he or another was, fact, given. (a)

participant the crime: armed Moreover, beyond found a rea- (b) explosives deadly weapon; or a or Morgan unlawfully sonable doubt en- injury causes physical person iswho tered “with D.C.’s trailer the intention crime; (c) not a participant or uses committing crime therein” and “was dangerous threatens the use of a instru- a deadly weapon.” armed with Under the against any person ment who is not a presented, jury facts not possibly could participant the crime.44 In comparison, Morgan have that believed entered without 531.090(1)provides, pertinent part, KRS thus, to intent commit crime and person voyeurism that a is of guilty when: voyeurism even had he been entitled to a (a) intentionally: He or she instruction, any to give failure such would have been harmless.45 (3) unlawfully Enters or in or remains upon premises of another for the VOLUNTARY INTOXICATION purpose viewing of or observing Morgan’s next claim is that conduct, genitals, sexual or nipple in refusing trial court erred to instruct the the female breast of person another jury voluntary on the defense of intoxi consent; person’s without the cation. Morgan While did tender a re (b) person The place other is in a instruction, quested presented he no evi person where would reasonable support dence to such. believe that his or her con- sexual duct, genitals, nipple of the fe- Voluntary intoxication is a de observed, male breast will not be charge to a “[negatives fense criminal

viewed, filmed, or photographed, the existence of an element of the off videotaped without her his or justified ense!.]”46 The defense is knowledge. reasonably where there evidence suffi Voyeurism requires proof that de- the' cient to that the prove defendant was so fendant entered or unlawfully remained that he intoxicated did know what he for purpose viewing doing.47 another individ- was Evidence mere drunken body ual’s or sexual conduct. Proof that ness is not to sufficient warrant instruct fact required is not person convict a Although Morgan ion.48 claimed he had and, such, burglary voyeurism as not a many consumed as as eleven Jack Daniels Morgan’s lesser-included offense. night Under and cokes in question, he also 511.020(1). Commonwealth, 44. KRS 48.Jewell v. 549 S.W.2d 807 (Ky.1977), grounds Payne overruled oh other 45. 9.24. RCr Commonwealth, (Ky.1981), v. 623 S.W.2d 867 denied, cert. U.S. 102 S.Ct. 501.080(1). 46. KRS L.Ed.2d 167 Rogers 86 S.W.3d 29 (Ky.2002); Springer see also v. Common- wealth, (Ky.1999). 998 S.W.2d 439 closing arguments always be con- was “cool as a cucumber” should stated he during the There was no evi- incident. sidered “as whole” and wide latitude presented Morgan was so intox- parties during closing argu- dence be allowed know icated that he did not what he was arguments Opening closing ments.50 doing Ac- when he entered D.C.’s trailer. and counsel is are not evidence allowed not entitled to a cordingly, volun- great latitude in both.51 tary instruction. intoxication made did not rise to the statements misconduct. As we prosecutorial level

IMPROPER CLOSING ARGUMENT Commonwealth,52 in Stopher have held claims the Finally, Morgan Com reversal, justify “In the miscon- order prejudicial monwealth made several state must so serious prosecutor duct of the jury during the penalty phase ments to fundamentally trial render the entire arguments. Morgan closing Counsel Here, asked unfair.” the Commonwealth to, review, objected preserved and thus clear, strong “give him a mes- his the Commonwealth’s reference One, sage. that this won’t be tolerated subsequent guilt courtroom behavior going are to be County. Ballard That we off tie phase, specifically pulled that he safe, long as safe. can be [D.C.] top Sprite. and on a The claim popped the And, two, that away. locked it’s because for of error the Commonwealth’s state actions_” evaluating over- give ment that should defen trial, cannot conclude all fairness of this we clear “strong, message” dant a was conduct of the Commonwealth trial, preserved for review at therefore entire trial so as to render the was serious palpable must for error. review be The statements fundamentally unfair. RCr 10.26 states: closing in its by made the Commonwealth palpable A error which аffects latitude the wide argument were within rights party may substantial of a be them, argument closing allowed and the by the court on motion for considered improper. nor neither unfair by on appellate new trial or an court though insufficiently appeal, even raised However, if, argu- the sake even for review, preserved appropriate and ment, in the error Com- we were find may upon a determina- granted relief be statements, monwealth’s error would injustice tion has that manifest resulted not, any way, it be harmless as did from the error. On the evi- contribute to his conviction.53 dence, just was both Morgan’s It is settled and conviction recognized well reversal be allowed coun and and warrant that broad latitude must does in the state- jury.49 It find no error sel case to the this issue. We presenting by the Commonwealth. long opinion has been this Court’s ments made denied, Commonwealth, 1059, (Ky.2001), cert. 49. Dean v. 535 U.S. 844 S.W.2d 805 Commonwealth, (Ky.1992), citing (2002). Stasel v. 421 829 152 L.Ed.2d 122 S.Ct. (Ky.1955). 278 729 S.W.2d citing Sum 52. 57 S.W.3d (Ky.2001), 805 Commonwealth, Young v. 50. 66 25 S.W.3d Bordenkircher, (6th mitt v. F.2d 247 Cir. (Ky.2000). Commonwealth, 1979), Chumbler Commonwealth, (Ky.1995). S.W.2d 488 Slaughter 51. denied, (Ky.1987), cert. U.S. (1989); 109 S.Ct. 104 L.Ed.2d 1036 Chapman, U.S. at 87 S.Ct. 824. Stopher v. attorney’s CONCLUSION such an inquiry, accepting pretextual reasoning may at face value We therefore affirm convictions for the most attractive alternative if trial (2) first-degree burglary charge, two judge colleague does not wish to accuse a counts of kidnapping, terroristic threaten- discriminatory Raymond motives. J. ing, first-degree abuse, sexual and first- Broderick, Why Peremptory Challenge degree criminal trespass.54 hereby re- We Abolished, Should Be 65 TEMP. L. REV. verse second-degree and dismiss the stalk- 369, 422 ing Further, conviction. we remand to the trial entry court for of an judg- amended opinion majority The per knocks ment of conviction sentencing order emptory challenges prior from their “sub consistent herewith. right” perch. Consequently, ap stantial plying harmless error review a curative WINTERSHEIMER, GRAVES peremptory challenge unfairly does not de JJ., concur. prive challenge; of a litigant rather furthers the state’s seat valid interest in ROACH, J., concurs result Childs, ing jury. an impartial William G. separate concurs opinion which Peremptory Intersection Chal J., GRAVES, joins. Cause, lenges, Challenges and Harm GRAVES, J., also concurs separate Error, less 27 AM. J. CRIM. L. opinion. (1999) (discussing the policy concerns Oklahoma, Ross v. S.Ct. COOPER, J., by separate dissents (1988)). 2273, 101L.Ed.2d 80 opinion LAMBERT, C.J.; in which JOHNSTONE, J., join. Kentucky, Batson v. U.S. (1986) 1712, S.Ct. 90 L.Ed.2d 69 intended JOHNSTONE, J., by separate dissents prohibit jury to race discrimination in the

opinion LAMBERT, C.J., in which and In process. concurring selection a opinion, COOPER, J., join. recognized, Justice Marshall will “[Batson] Concurring opinion by Justice GRAVES. not end per- the racial discrimination that inject emptories jury-selection I into the concur in majority the opinion, but I process. goal That can be accomplished write separately question to efficacy only by eliminating peremptory challenges system. modern 102-03, entirely.” at Id. 106 1712 S.Ct. no There is even-handed method in (Marshall, J., concurring). place for trial courts to evaluate the neu- trality of a peremptory challenge, thereby Breyer recently Justice also this quoted creating application inconsistent po- passage concurring and in his opinion in Mil- Dretke, tential seating juror. 231, a biased For ler-El v. 545 U.S. 125 S.Ct. instance, 2317, (2005). Commonwealth, in this a trial 162 L.Ed.2d 196 Justice judge sitting in County may Breyer difficulty finding McCracken “the simply

This conclusion was incorrect. tory challenge achieve that result does was not mean the Amendment violat- Sixth right impar- context of the to an the ed.”). in It is clear that defendant by tial as guaranteed Sixth Thomas, much like the defendant in this Amendment, Supreme the United States case, right an deprived not was “long in Ross that Court noted had jury. impartial recognized challenges are peremptory Ross, dimension.” constitutional this side-stepped This Court issue (emphasis at at 487 U.S. 108 S.Ct. the relevant explaining Thomas “ added). recently, the reit- More Court has question” rath process’ issue was ‘due “ point: and this amplified erated jury’ and ‘impartial question” er than an by noting that Ross v. Okla challenge part is of our concluded peremptory process question heritage. felony recognized Its this due common-law use homa Dunbar, misapplying already “Turpin trials in Black was venerable Oklahoma, Thomas, Blackstone, not.” See 4 W. Ross v. do stone’s time. (1769). chal have Because Commentaries 346-348 We S.W.2d granted by the long recognized peremp lenges right the role of the are not a Constitution, however, the tory reinforcing defen United States process only due on question right turns wheth to use one’s chal- er defendant what he lenges received under the rules and the so-called Ross, entitled to under state law. “impairment” right by of this the errone- 90-91, 108 S.Ct. at 2279-80. juror ous failure to strike a for cause. right Denial of a peremp- number of Therefore, question the sole before this tory challenges, say six the eight instead of issue Kentucky Court this is whether 9.40(1) granted felony prose- in a RCr law mandates result dictated in Thom- cution, literally is a denial of is al- what by elevating peremptory challenges as by Kentucky lowed law. a defendant Such right. the level of a I agree substantial precluded from full exercising his com- with Justice Keller when he noted that he plement of peremptory challenges. On the support could “find no it in for the Ken- hand, other “impairment” right, tucky Constitution.” Stopher v. Common- exist, can really such said is not a wealth, (Kel- (Ky.2001) denial of peremptory or misallocation chal- ler, J., dissenting). The dissent claims Consider, lenges. example, felony predecessor that “we our court have criminal defendant who peremp- uses two always deemed the to peremptory tory challenges to strike who should ie., challenges to be a right, substantial have been struck for cause and uses the party one to which a clearly entitled and arbitrary other six manner. Such a denial erroneous of which cannot be eight defendant has exercised deemed harmless for purposes of our all challenges, which is he is allowed under harmless error and palpable error rules.” 9.40a).1 RCr Post at 123. The dissent itself demon- strates that this characterization is inaccu- Many of upon by the authorities relied First, above, rate. noted from the Tur- distinction, recognize dissent pin decision in 1989 until Thomas was well-grounded the distinction is in our own decided, Kentucky did employ “per all, law. After Section of the Criminal Second, se reversible” rule. the dissent Code of Practice mandated that a convic- admits that from 1870 until 1935 this tion of felony could be reversed for Court did not review to the grounds, four which one of was an “error panel Therefore, for cause. the issue be- in allowing disallowing a peremptory fore us today would have never been be- challenge.” This error did not include the fore our predecessor during court erroneous failure strike a time frame. See, e.g., cause. Moore v. (7 Bush) Ky. prede- As our

Moreover, many of the cases relied upon court explained: cessor by the dissent concern the denial of the actual of peremptory number to challenges by It is conceded counsel for defen- n their which a brief, defendant is to entitled under the argument in oral dant See, applicable e.g., Pendly court, rules. v. Illi- case this before that under Co., nois R.R. Ky.L.Rptr. Central 28 section 281 of the Criminal Code we (1906); held, 92 S.W. 2 Pryor innumerable, v. Common- have in cases that it wealth, (2 Dana) (1834). Ky. 32 298 But to a in pros- denied defendant a criminal there is a distinction between the denial of ecution the to appeal from the This, course, 9.40(2), that grant assumes the defen- RCr the trial court's refusal to eight dant’s perempto- situation calls peremptory challenges for the extra would fall ry challenges. Where the rules category peremp- allow for under the former of denied more, called, e.g., challenges. when tory alternate are

118 (1935), “upon Ky. chal- 258 80 817 contain

decisions of the trial court S.W.2d lenges panel, language to the and for cause.” We that refers a defendаnt’s fail- suppose exaggera- that it would be no ure to exercise all of chal- peremptory that, say adoption lenges, early tion to since the none of those articulate cases Code, Tate, that in per Criminal with section a se reversal rule. the Court it, upheld applied addressing we have it at was whether the defendant was cases, consequently least 100 have change entitled a of venue. The Court declined to review the decisions and rul- concluded that the defendant had failed to reversal, ings prose- provide grounds of the trial court criminal noting touching “Moreover, upon questions part: cutions the im- it appears nowhere that paneling any jury one on the list who had read the held, jurymen. so prospective newspaper We accounts of the homicide was coming the great eventually accepted jury, number of cases be- on the or that us, upon ground compelled accept any fore the all-sufficient defendant was by express that terms of that section having such one because of exhausted his the right peremptory challenge.” defendant was denied Id. at 820. This appeal from the decision of the trial complete is not even a articulation of the upon urged by court those matters. rule the dissent. And would appear requires objec- an that Tate Commonwealth, Ky. Lake v. Moreover, jury. tionable sat on the 511, 512 S.W. dicta, single line of this which serves as Therefore, agree I the dissent that “rule” foundation of the advanced consistently “our courts have held dissent, appears supporting without denial or misallocation of chal- best, reasoning was, It or citation. lenges, properly preserved, per when se ground truism thrown in as alternative reversible error.” Post 137. See also affirming the conviction. pages cases 136-37. cited dissent However, upon by relied the dis specific is not before other cases issue contain little more than restatement allegation the Court. There is no sent See, e.g., v. there a misallocation of this truism. Messer Com monwealth, strikes, Ky. e.g., party where one S.W.2d receives other, (Ky.1944); Jones v. Common per- more than the denial of wealth, strikes, (Ky.1955); Le emptory e.g., party where a S.W.2d Commonwealth, 558 S.W.2d given less strikes than allowed fevers Commonwealth, (Ky.1977); Smith v. by the statute. (Ky.1987); Derossett however, I importantly, More think that Kentucky the dissent’s claim that law has fact, (Ky.1993). In some these cases always applied per se reversal rule is For ambiguous language. contain rather above, simply incorrect. As discussed Lefevers, noting that the example, in аfter periods, quite there were at least two one remaining peremptory defendant had five recent, apply per where we did not se strikes, court stated: despite rule. And claim dissent’s Commonwealth, Ky., 495 Rigsby In v. contrary, the it is far from clear that we (1973), 795 we said: S.W.2d applied the se reversal in per rule the leading up Turpin “Appellants complain to the of an abuse of years decision. cases, many it is the trial court refus- While true that the discretion Commonwealth, ing challenges certain for cause. beginning with Tate v.

119 cases, argument unavailing coming is because fore this Court. And those decision, do after Ross focused on appellants they nowhere assert soon the rights. about federal constitutional peremp- were forced to exhaust their claims again, pro- But real is what is tory challenges, inquiry the nor does examination by Kentucky earlier em- of the record circum- vided law—the reveal such on effect question phasis All the of Ross and whether jurors stance. the challenges implicated due way pro- were removed challenges. herrings. A to cess were red Since our cases who defendant fails present from 1933 until Thomas failed to exhaust such cannot com- rule, I compelling the consistent or believe it is plain concerning jury selection. us to Certainly juror appropriate the for revisit the issue. biased not impanelled, prejudice no can result. alleged several The dissent discusses er- There been showing has no use simply rors that are claimed this peremptories dispose eleven attempts impute holdings case and suspect jurors of the resulted theories that I for do not one believe are inability subsequent ad- necessarily of our For ex- part holding. ditional unacceptable veniremen. ample, majority the dissent claims Therefore, favorable consideration opinion would an uneven allotment deem may given not be appellants’ as- is, in peremptory challenges, that direct sertions.” rule, contravention of the as harmless er- appears It were the part majority opinion ror. No expressed who bias not impaneled, but And, holding. this as I discuss makes appellant had remaining unused above, five there a clear difference between challenges. prejudice No resulted to the such a claim of error and the actually one appellant. presented in this case.

Lefevers, at 588 (emphasis 558 S.W.2d add attempts The dissent also to claim that ed). Other upon by cases relied the dis in American current trend law is to present sent situations where thе per ward the se rule. But reversal who should have been struck cause weight authority clear across the United actually served after defen count, rejects my By States view. dant exhausted their strikes. twenty-six unequivocally states have re See, e.g., Commonwealth, Tayloe v. 335 jected per Dailey rule. se reversal See 556, (Ky.1960); 557 S.W.2d v. Brumfield State, 340, (Ala.2001); v. 828 343-44 So.2d Commonwealth, 499, 374 (Ky. S.W.2d 500 (Alas State, 764, v. 934 769-70 Minch P.2d 1964); Marsch v. 743 Hickman, ka v. Ct.App.1997); State 205 830, (Ky.1987). 831 192, 418, (2003); P.3d Bangs Ariz. 68 427 State, fall

These cases far short of v. presenting a 338 Ark. (1999); Pelletier, consistent rule. Before Thomas deci- 744-45 State v. Conn. sion, (1989); per urged by Manley se reversal rule 552 A.2d v. (Del. was, most, State, dissent hinted at—full real- 709 A.2d n. 15 655-56 Ramos, application 1998); ization and of the rule from ‍‌‌‌‌‌‌‌‌‌‌​​​‌​​‌‌‌​‌‌‌‌‌‌‌‌​​​‌​‌‌‌‌‌​​​​​‌‌‌​​‍State v. Idaho State, requires (1991); good Dye those cases bit of infer- P.2d fact, (Ind.1999); I ence. have been to find N.E.2d n. 13 State v. unable (Iowa case, Dunbar, Kentucky except Neuendorf, N.W.2d Thomas, 1993); Turpin, Manning, that contains sub- State v. 270 Kan. Bell, (2001); analysis specific People

stantive issue be- P.3d 120 In (2005); provided than statute. 275, 128, ry challenges 138

Mich. 702 N.W.2d Anderson, 354, aggrieved party v. 356 such a circumstance 603 N.W.2d State (1) v. (citing party State has harmful error (Minn.Ct.App.1999) suffered Stuffle bean, 314, (Minn.1983)); challenge 317 peremptory 329 N.W.2d a to strike used (Miss. State, 576, (2) veniremember; v. 754 578 So.2d challenged, disqualified Johnson 40 Ct.App.2000); Storey, State v. S.W.3d remaining peremptory chal- exhausted all Quintana, 898, (Mo.2001); 904-05 State v. (3) an requested and was denied lenges; 38, 121, (2001); 134 (4) 261 621 Neb. N.W.2d challenge, and peremptory additional (Nev. State, 567, 121 P.3d Blake v. 578 specific who identified a veniremember DiFrisco, 434, 2005); N.J. 645 v. 137 State addi- would have been removed (1994); Entzi, 734, v. A.2d 751-53 State sat as challenge, and who thereafter tional (N.D.2000); 145, 149 v. 615 State N.W.2d omitted). two of the juror.”(citation And 1013, 68, Barone, Or. 969 P.2d 1018-19 328 effectively re- cites states that dissent 535, (1998); Maynard, v. 349 S.C. Green showing prejudice an quire affirmative 83, (2002); Verhoef, v. State 564 S.E.2d they objectionable an require since 437, (S.D.2001); 441-42 State 627 N.W.2d will sat before reversal have on the (Tenn. 239, 246 Thompson, v. State, Busby v. 894 So.2d granted. be See Menzies, 1989); 399- v. 889 P.2d State that “ex- (Fla.2004)(explaining 96-97 (Utah 1994); Fire, v. State challenge to penditure peremptory (2001); 1218, 1225 34 P.3d Wash.2d denial of improper cure the trial court’s Lindell, v. 245 Wis.2d State er- challenge cause constitutes reversible State, (2001); v. Klahn N.W.2d remaining all ror if a defendant exhausts addition, In (Wyo.2004). P.3d 483-84 can show peremptory challenges and over of the states listed above have some on the objectionable juror has served an long-standing precedent after Ross turned State, 72 P.3d Hanson v. jury.”); See, e.g., v. State and Martinez-Salazar. (“In order show (Okla.Crim.App.2003) (Iowa 509 N.W.2d Neuendorf error, Hanson by this prejudiced he was 1993)(abandoning forty years prece peremptory must show Fire, dent); 145 Wash.2d State v. forced, objec- so he was over were reduced 1218, 1222-23 (2001)(overruling case P.3d juror.”)). tion, unacceptable keep 1902). decided addition, the dissent’s reliance In fact, by the dis- the view articulated (Me.2002) McLean, 815 A.2d 799 State minority position. At sent is an extreme State, Md.App. Whitney v. of the states that dissent least one (2004) misguided. Both of 857 A.2d 625 retaining per rever- characterizes as se prop- the denial of these cases concern actually describes the as one rule sal rule strikes and do er number of stringent imposes “harmful error” and this Court. the issue before not address in order re- procedural requirements denial or misallocation are claims of These See, e.g., benefit of the rule. ceive the again, And challenges. State, McBean a different issue than present such cases 2004) (“[W]hen a chal- (Tex.App.-Amarillo currently the Court. before the one erroneously denied and lenge for cause appears analysis, In the final challenging party uses Louisiana, Colorado, Georgia, six disqualified venire- strike the states — Montana, Virginia New York and member, may then the erroneous denial —follow hardly consti- This postion. dissent’s challenging par- error harmful because a nationwide trend. effectively perempto- tutes ty has received fewer 1, 2, 3, although ap- error certain- Interestingly, the dissent Scenario and 5 is pears heavily ly to have relied on constitutional error. Because a Professor not Judge right any Pizzi and Hoffman for its historical no criminal defendant has overview, William T. Pizzi & Morris B. it peremptory challenges, see is difficult to Hoffman, Jury Ap- per- Selection Errors on an how imbalance understand peal, 38 challenges Am.Crim. L.Rev. could rise to the lev- emptory (2001) (similarly history recounting the of Legislatures el of error. constitutional peremptory challenges), it fails to discuss and courts could all supreme abolish their er- concerning challenges conclusions harmless tomorrow with- peremptory They hypothetical ror. offer six inflicting injury scenarios out constitutional on involving peremptory challenges. They proba- One criminal defendants. could 3”, hypotheticals, bly their “scenario is the perempto- even eliminate all defense ry identical situation before us in this matter: all prosecution and retain erroneously “The trial court de- challenges. denies a A peremptory trial court’s cause, challenge fense single the defendant unintentional elimination of a de- peremptory exhausts all his or her chal- in- fense likewise lenges, and the defendant one of the injury. uses constitutional flicts no erroneously challenges on the (footnotes omittеd). Id. at 1431-32 juror.” retained Id. 1429. Professor Judge Pizzi and Hoffman fur- Professor Judge Prizi and Hoffman then note explain: ther simply there is no a error such situation: Moreover, Chapman since and Fulmi 2,1, Notwithstanding that Scenario nante, 1, 2, it is clear that also Scenario “errors,” and errors are in fact we 3 and are not 5 errors structural errors general nevertheless contend that subject and are therefore harmless rule each of these four scenarios review, error even if some stretch of jury should be selection error is imagination might we them label harmless and that the convictions must An “constitutional” errors. error is no scenarios, be affirmed. each of these just longer structural because it is con demonstrably ju- no prospective biased error or stitutional because involves rors end up sitting jury, so none important right, some other especially any the scenarios involves violation just may even impacts because its be impartial a defendant’s to an to gauge. inquiry difficult The is relia under the Sixth Amendment. In other bility. How can it be said that words, jurors actually all the who sit reliability likely of a trial is com 2,1, Scenario 3 or properly 5 case were promised when defendant loses sin passed for cause. gle peremptory challenge, but when all actually hear case who are

The effect of Scenario 3 or impartial? By any fair It cannot. error is imbalance in error,” sensible measure “structural challenges. really Is this kind certainly by increasingly the Court’s error, really “right,” the kind of measures, jury strict selection error of justifies reversing perfectly otherwise is not “structural.” this sort by perfectly valid returned convictions jurors? impartial brings must be This us to the error answer harmless constitutional, If inquiry. category no. This error is ever there were a structural “harmless harmless errors that borders on law,” inquiry. measure of that matter of it is the in Scenar- errors juries analyzed in at 3 and 5. The these Court Martinez-Salazar ios cause, other length and all and also considered states’ were vetted for Scenarios fact, were, definition, the court them fair and treatment of the issue. of they Stopher. Keller’s dissent in impartial. Yet returned convic- cited Justice harmlessness, federal and By any analyzing applicable tions. measure of After single per- a a depriving length, high defendant of state Wisconsin’s decisions surely challenge be harm- emptory per will se error rule court stated in not less most if all cases. meant that uniqueness jury The of selection er- of the court of two members whenever they very their nature rors is supreme four members of appeals or evidentiary оffer no to the or resistance call on bias than court make different typically counterweights instructional we court, automatic result is the circuit place on the scales of harmlessness. Or- This rule notwith- a new trial. is the inquiry the harmless error re- dinarily, deficiency of standing the absence an court to ask whether quires appellate first trial. would reached the jury the same have puts in “win-win” This the defendant evidence or same result with different situation, explained as Justice Crooks However, different instructions. under If the circuit court Ramos dissent. scenarios, jury has impartial these erroneously prospec- fails exclude determined, all already based struck for tive who should be law, and the instructions evidence cause, may or take his her the defendant proved prosecution that the has defen- per- chances and refuse to exercise beyond a guilt dant’s reasonable doubt. jury until the challenge, wait emptory jury in Scenarios The selection errors verdict, appeal she renders its courts to ask require appellate 3 and 5 result, then like the and receive does not impartial equally a different but whether hand, the a new trial. On the other the same result jury would have reached may defendant exercise a and the same with the same evidence ju- the prospective strike very upon The foundations instructions. ror, pro- then claim after a trial that system which our is built —that cases that his or her duces bad result due and the are decided based on the law rule process The latter was violated. evidence, peccadilloes on the per- though the defendant’s applies even always almost re- the fact-finders —will that the quickly so emptory strike comes are us to conclude that such errors quire a strike prosecutor no chance to use has harmless. This sort to correct the error. omitted). (footnotes Id. at 1432-33 instill gamesmanship does confi- policy compelling There are also other justice. system dence in our arguments against retaining a se re- per numbering and (paragraph Id. at 248-49 versal rule. After Martinez-Salazar added). omitted, This issued, Supreme emphasis con- citations the Wisconsin Court Kentucky reasoning equally to law. applies its analysis ducted an own Lindell, noted, per recognition 245 As Justice Keller challenge law in State v. (2001), rights emptory challenges substantial Wis.2d 629 N.W.2d one function one function and long-standing per se “serves reversed that state’s error manufactures reversible light of Ross and Mar- position error —it by a fair decided Supreme where case has been tinez-Sаlazar. Wisconsin inviolate,” 7,§ jury.” impartial Stopher, Ky. Const. refers (Keller, J., challenges. dissenting). GRAVES, J., joins concurring by jury of trial The common-law opinion. Constitution, preserved but regulate attempt instrument does not

Dissenting by opinion Justice COOPER. in shall the manner which be they qualifications selected or the must intelligible briefing1 Without benefit possess .... argument, majority oral a even of this has upon Court seized this case to alter Commonwealth, Ky. Wendling v. 143 trials, jury the manner in which crim- both Haight 137 S.W. 207 See also civil, inal practiced will hereafter be Commonwealth, (Ky. 444 v. (at Kentucky least until the membership of (“There 2001) to right is no constitutional changes again). this Court once In doing However, peremptory challenges.”). be so, majority to suggest seems the ... “they cause are means to the con [a] per rule, se error reversible heretofore impartial jury of an a stitutional end applied litigant when a is the per- denied McCollum, trial,” Georgia fair v. 505 U.S. emptory challenges to which is he/she/it 2348, 2358, 112 S.Ct. 120 L.Ed.2d entitled, lawfully created out whole (1992), predecessor 33 and our we court Commonwealth, cloth in v. Thomas 864 always right peremp have deemed the to (a 252 (Ky.1993) S.W.2d case unmentioned tory challenges right, to be a substantial brief). in the Commonwealth’s On the i.e., clearly a party one to which entitled out, contrary, pointed infra, as will be and the erroneous denial of which cannot denial of strikes author- purposes be deemed harmless for of our by prejudi- ized law has been regarded as harmless and palpable error error rules. cial a litigant’s rights to substantial 10.26; & RCr 9.24 CR 61.01 & 61.02. Kentucky for more years. Pryor than 170 [Ejvery error is prejudicial deemed Commonwealth, (2 Dana) v. Ky. 32 298 rights party the substantial of a which (criminal (1834) case); Goode, v. Clarke 29 clearly which denies him relief to he is (6 Marsh.) (1831) (civil Ky. J.J. entitled, only in view the —clear case). majority opinion seems to right depends, basis which the but as equate a right” “substantial with a “consti- to the mode which the is to result however, right”; tutional neither Thomas reached. any Kentucky nor other case has ever Mason, suggested requirement Ky. that the v. 264 95 “[t]he Clark S.W.2d (1934); trial by jury ancient mode of v. 12 Byrne, shall be held Wathen S.W. 197, 198 ... right (Ky.1889). sacred and the remain thereof secured.”), jury The Commonwealth's brief United cites tial is all that is and that "[i]t Martinez-Salazar, appellant States 528 U.S. cannot be reversible error for (2000), only peremptory against juror L.Ed.2d S.Ct. for exercise a a he cause, propositions if, strikes are have wishes could struck for like dimension, juror, qualified not of constitutional an issue set- other there is not basis to States, brief, long ago Appellee's tled in Stilson v. United cause.” strike 583, 586, 28, 30, added). (emphasis Obviously, U.S. 40 S.Ct. 63 L.Ed. 1154 Martinez-Sa- ("Thеre (1919) nothing nothing peremptorily the Constitution has to do with lazar qualified juror respect requires challenging of the United States which Con- gress grant challenge peremptory challenges de- no whom there is basis for cases; impar- fendants criminal trial cause. Oklahoma, majority opinion’s apparent Ross Despite (1988) 2273, 2279, 101 L.Ed.2d S.Ct. of all that Thomas is source belief added) omitted). (citations (emphasis errors, I have reversals for selection tendency early among state While the Court, only, opinion one of this Jus found Martinez-Salazar, courts was embrace opinion in majority tice Wintersheimer’s cases, majority the recent as dis- Fugate v. against (by have trended infra, cussed on Thomas in (Ky.1999), that relied 2002). margin three-to-one since reversing case under facts such as these. of this Commonwealth at Under law cases, Two one criminal and one other n characterization of trial and at the Appellant’s the time civil, cited Thomas writing, prosecution time of this as a criminal to eight defendant are entitled right” reversing a trial “substantial 9.40(1). challenges RCr peremptory each. of allocation of improper court because the cause, By to refusing excuse Juror for brother” of peremptory strikes —the “older thereby Appellant to excuse him forcing Springer v. what occurred here. Com by Ap the trial court reduced peremptory, monwealth, (Ky. 444-45 challenges to seven pellant’s peremptory 1999); Bowling Mun. Utils. v. At Green leaving prosecution with its full while the Energy mos 579-80 Corp., indirectly of thus mis- complement eight,2 (Ky.1999). pro challenges the allocating peremptory by Despite agreeing law. that Juror vided Furthermore, infra, as United discussed biased, clearly and that the trial was Martinez-Salazar, States v. 528 U.S. him for cause court’s refusal to excuse (2000), 145 L.Ed.2d S.Ct. error, majority opinion the relies on Mar opinion primarily upon majority which the holding that Appellant’s tinez-Salazar relies, only misconception not a of reflects juror by peremptory the choice to remove law practice the of in “real realities by a challenge rather than be tried biased courtrooms, thankfully applies it world” juror the trial court’s error rendered only binding to federal cases and is majority and Martinez- harmless.3 The state as ours. precedent on courts such that, to preserve hold in order Salazar challenges are a Because review, litigant such an error for a must not required creature of statute and aré jury, on the then leave the biased Constitution, is State to appeal resulting that the convic assert on determine number (the tion must bе reversed because challenges to their allowed and define right to a fair and litigant) his was denied their exer- purpose and the manner of Martinez-Salazar, jury. impartial See such, “right” perempto- to 315-16, cise. As 120 S.Ct. at 781-82. ry challenges impaired” course, is “denied or responsible lawyer no or liti Of only gant pursue does receive or her mind would defendant except in rare circumstances.4 provides. which state laiu that route a reason such 2. all of their 4.The conceivable Both sides exercised challenges, guilty and neither side's du- verdict is strategy be when would plicated any of other’s. sought primary is the relief certain and the retrials, e.g., delay in reversals and inherent however, Martinez-Salazar, ground did not penalty imposed. when death is error,” but, appar- Holding its on “harmless error,” ently, “unpreserved as discussed on text. in the infra if, here, juror’s Even as bias I. admitted PEREMPTORY CHALLENGES was so obvious as make vir reversal IN ENGLISH COURTS. tual certainty, litigant opt will still jury The of a the arbiter of notion as prevail least to trial attempt at the first disputes origin, probably orig ancient so as to expense appeal avoid the of an inating with the Athenian “dikasteria.” trial, or, worse, intervening jail and second Moore, Lloyd generally Jury: See E. The time during delay appeal. the inherent Kings, Liberty Tool Palladium Referring this proposition (2d 1988). concept Anderson The ed. analysis,” “strained T. Pizzi & William peremptory challenges generally traced Hoffman, Morris B. Jury Errors Selection originated senatorial Roman trials that on Appeal, 38 Am.Crim. L.Rev. year, era. Each pre-Christian (2001), “strange invitation,” id. at eighty-one of Senate chose its members Judge Professor Pizzi and jurors. litigant Each prospective serve as imagine Hoffman5 conclude: “We cannot fifteen, leaving jury could a circumstance in which a de competent Id. at 3. fifty-one. lawyer

fense could ethically, or would practically, decide infect his client’s concept of trial jury probably did demonstrably with a juror who biased England prior exist in to the Norman could have removed been with an available Conquest 1066 generally thought of and is If, peremptory challenge.” Id. at 1404.6 origins to have its Norman/English Martinez-Salazar, by asserted “inquisitio.” at Charlemagne’s Id. 13-19 315, 120 781, at at “strange S.Ct. its invita Brunner, (citing Origin Heinrich The of choice,” tion” certainly is not a “no (Berlin 1872)). Juries to the Prior Con- Hobson’s choice.7 quest, three basic trial methods in

A full understanding England by of trial significance compurgation,8 were trial of today’s combat,9 and, requires by decision in felony some historical most often perspective. cases, by trial ordeal.10 Judge pre- 5. judge Language Hoffman is Diсtionary English “hands on” Una- of siding (1993). over bridged the District Court for the Second 1076 (Denver). Judicial District of Colorado by compurgation employed pri 8. Trial was hand, Judge 6. posits On the marily other Posner minor criminal matters and civil puts aggrieved "litigant an disputes. party civil in a The winner was the who heads-I-win-tails-you-lose position: produce requisite if he wins could the most aor number verdict, jury pocket victory, willing can his of witnesses to swear to the truth of loses, Moore, 27; get Thomp- supra, if he he can a new his oath. 3 William trial.” Blackstone, 621, Gray, Eng son v. & Law Altheimer 248 F.3d 623 Commentaries on the of (7th Cir.2001). why, young land: A Facsimile the First Edition 1765- That is as a law- of of (1979); Moschzisker, yer, rejoice I 1769 342-44 Robert von was schooled to if the court trial (B 43-45, by §§ Trial Combat at 34—37 my opponent erred in favor of com- isel1 922). negotiations mence if the court erred in favor my of client. by usually royals 9. battle Trial between choice, represented by "champions.” William For 7. A Hobson's named Hob- for Thomas (1875); History son, syth, by Jury 81 Trial 3 English liveryman required who of Blackstone, 337-41; supra note von customers to the horse stable take nearest the Moschzisker, 8, 17, supra § note at 14. none, necessity door or is defined as of "[t]he accepting something objectionable through get nothing the fact that would one otherwise 10. If the accused survived unscathed the or- of, e.g., inserting at all.” Webster's Third New into a vat of International deal his arm 126 (also 1215), regarded as more decisive years after exactly 100 the Con trials, employment jury of the increased

quest, Henry proclaimed II Assize Plucknett, A Concise Histo Clarendon, Theodore F.T. banning by compurgation trials (5th Law ry Common 118-19 system juries a uniform establishing ed.1956), or because abolition of the civil criminal dis resolve and minor jury logical by left trial as the deal putes; pri felonies continued to be tried deciding serious criminal 35-39; alternative Moore, by supra, at marily ordeal. Hoffman, Peremptory cases. Morris B. Proffatt, By A. A John Treatise Trial A Challenges Be Trial Should Abolished: Questions Law and Jury, Including Judge’s Perspective, 64 U. Chi. L.Rev. 1880). (Riverside 25-26, §§ Fact at 37-39 (1997). by By jury trial had Carta,11 Magna XXXIX of the Chapter primary method determin become signed in has been attributed as the guilt in criminal ing a defendant’s serious by jury source of the to a trial Green, Thomas A. Verdict Accord cases. Utah, Thompson v. peers. twelve jurors, ing to Conscience S.Ct. L.Ed. U.S. often grand petit, both were most (1898), grounds overruled on other King’s judiciary. knights selected 37, 51-52, Youngblood, Collins U.S. Moore, supra, at 53-54. S.Ct. L.Ed.2d (1990); Blackstone, supra note at 342- As trials flourished the thir- However, theory largely has been century, concept peremp- teenth See, rejected by e.g., modern scholars. tory prosеcu- for the least —at Holt, (1965); Magna J.C. Carta Felix root, particularly in began to take tion— Corcoran, Petty & Frankfurter Thomas G. chal- capital party cases.12 Either could and the Constitutional Federal a rela- lenge a for cause because of Offenses Guaranty by Jury, blood, 39 Harv. Trial or tionship litigant by marriage, to a of (1926) 917, 14 (debunking 922 n. Dyke, L.Rev. & M. Van economic interest. Jon Thompson the attribution in as “one of the Our Jury Selection Procedures: Uncer- fables”). legal Pope Inno Pan- Representative most revered of tain Commitment to addition, ordeal, 141 In by pro cent Ill’s ban on trials the Crown els effectively an at Fourth could exercise unlimited claimed the Lateran Council water, recipe walking [Pjutting scalding hot to death was a much in barefoot over coals, body being professions, or bound and thrown into a vogue with all trades water, by [Bank], of he was declared innocent inter- least all with Death not of Tellson’s God; otherwise, guilty. of he was vention things, why remedy is Nature’s for all Blackstone, 8, 336-41; supra note von Legislation’s? Accordingly, forger the Moschzisker, 8, 49, § supra note at 38-39. Death; put was utterer of a bad note to Death; put opener of a was to the unlawful taken, impris- freeman shall be or "No 11. Death; purloiner put to of letter was oned, of liber- or be disseised his freehold or pence put forty shillings and was to six customs, exiled, ties, be or free or outlawed or Death; horse the holder of a at Tellson’s destroyed; pass or nor will we otherwise it, door, put to made with was who off him, him, upon by condemn but lawful nor Death; put shilling was the coiner of a bad judgment peers, of his the law of the Death; the sounders of three-fourths of to land....” gamut of Crime were the notes in the whole course, Ages, 12. Of even into the late Middle put to Death. punishable by most felonies were death. Dickens, (Sig- Two Charles A Tale Cities Blackstone, 8, supra note at 95-96. Dickens 1960). net penalty prevalence the death described eighteenth thusly: century in the late challenges jurors aside” until had explanation number without to “stand each side simply royal infallibility, on the basis of challenges for cause and the exercised all i.e., challenges irrebuttably pre- were her accused exercised all of his or had sumed to be for a Id. at proper purpose. challenges. Only if num- peremptory Thus, Judge that this posits Hoffman jurors remaining ber of then were insuffi- early English peremptory challenge was jurors “standing cient could the aside” hybrid peremptory more of between a course, recalled, challenges subject, to Hoffman, and a for cause. Per- Proffatt, 159-160, §§ supra, for сause. Abolished, Challenges emptory Should Be 211-13. In supra, response, at 820-21. some 1305, the peremptory After number of began permit courts criminal defendants En challenges allotted to defendants in cases to capital peremptory exercise trials glish gradually criminal reduced By challenges. the end of the thirteenth (22 8, twenty13 ch. thirty-five from Hen. century, it was well settled in common (1530); 4, 50, § § 6 Geo. ch. law that Crown could an un- exercise (11 (1825)); to seven ch. then & Geo. challenges limited number of peremptory (1948)); (The 58, § then to three Crimi thirty-five. and the accused could exercise Act, 43); they § ch. nal Law until Proffatt, § supra, at 207-08. abolished, finally along were Parliament enacted the Ordi- procedure, “standing aside” effective Janu Inquests, nance for Edw. Stat. (The Act, ary Criminal Justice attempt power restrict the Crown’s 118(1)).14 33, § ch. handpick all prospective but also exercise unlimited II. PEREMPTORY CHALLENGES The challenges. Ordinance abolished IN UNITED STATES FEDERAL Crown’s es- while COURTS. tablishing law the accused’s accepted courts English The colonial peremptorily challenge thirty-five jurors. Blackstone, thirty-five standards of chal- supra note at 346-48. courts, however, lenges treason, twenty King’s for those accused of largely avoid- felonies, ed the prosecution’s per- elimination those accused other and the emptory challenges by practice recognizing “standing prosecutors. a new aside” for procedure supra, common law Dyke, known “stand- Van 148. The first draft as device, ing By aside.” this of prosecutor the the Sixth Amendment to the United any included, could direct prospective corollary number of States Constitution as a male, right acquitted 13. One accused of treason the young retained and all seven defen- thirty-five peremptory challenges. to any rep- case dants. This more than other campaign resented a watershed in the to challenge of The demise the in challenge, though abolish the critics even England reportedly was jury pan- the fact that overlooked the entire campaign [during of a "the result sustained el summoned for the trial had vetted been press 1980s] the Parliament and the by prosecution Special for the and Branch alleging system- that defence counsel were MI5.” trials, abusing atically it. In multi-handed Broderick, Raymond Why Peremptory J. the said, pooling it was counsel were chal- Abolished, Challenge Temple Be Should lenges 'pack' juries to with individuals who (1992) added) (emphasis L.Rev. 373 n. likely acquit. Cyprus spy to were The trial Enright, Challenge (quoting Reviving Sean the example. was often cited as an In that Cause, (Jan. 6, 1989)). L.J. 9 New for by challenged seven de- instance were acting together. jury, counsel all The fence States, § ch. Stat. 119 right jury, right an “the United impartial to (1790), explicitly the defen- requi- accustomed which afforded challenge of other Gutman, Attorney- if peremptory challenges S. Mac The thirty-five sites.” dant A twenty Voir Dire Jurors: Consti- charged Conducted with treason of 39 Brook. L.Rev. Right, any capital tutional other offense. charged with (1973) (quoting Journal the House peremp- was made either for provision No of of The First compiled by Representatives, or the tory by prosecution the strikes Project); the U.S. 58 Congress Gazette “standing aside.” practice law common 1789). language ulti- (Aug. This was However, in in United States v. dictum deleted, mately probably urging (12 Wheat) the Marchant, 25 6 L.Ed. U.S. Madison, the James who believed Amend- the (1827), Story that Justice indicated guarantee “impartial jury” ment’s procedure was common “standing aside” the to right ques- sufficient to include was inher- right that our federal courts had law jurors. challenge tion and England. from the common law of ited word used [trial “Where technical But conclusion a still more direct jury], to it by belonging all incidents right may against the be drawn from it. to necessarily right attended challenge to right of the crown admitted by jury, challenge is incident to the trial cases, practice in criminal under secured, and, as is is the other.” one so say that the same right. We do Gutman, right belongs any to the States in supra, (quoting at 297 Madison’s Union; may diversity there right by regarding the trial remarks jurisprudence by respect as to the local guaranteed as jury criminal cases is, inquiry not as practice. The here III, during Virginia Article Section but, prerogative, to what is State reported in ratification debates as Jona- simply, is the common law doctrine Elliot, what than The Debates in the Several under point as to the consideration. Adoption Conventions on the State 1836) (2d crown the statute of 33 Edw. Until Federal Constitution 531 ed. any juror, debate, might peremptorily (Virginia ratification June cause; 1788)). assigning but disagreed: without Henry Patrick away right and nar- took statute “I rather the trial were would challenges of the crown rowed the together. all There no struck out is practice cause shown. But those for jurors. challenging partial right of been, uniformly has since this statute America, nor There no common law of is settled, clearly now constitution, right can be no there cause at the compel the crown show challenge partial jurors. right Yet taken, objection put aside time of but to trial valuable as panel gone until the whole the jury itself.” through. Henry’s remarks as (quoting reported Id. 483, to (emphasis L.Ed. 700 added 541-42). Id. Elliot, supra, respect With procedures highlight selection cause, predic- Madison’s always pre- state courts have been true; state respect per- proved

tions with rogative). challenges, Henry’s predictions emptory (at ultimately least in the consti- prevailed Shackleford, In 59 U.S. United States context). tutional How.) (1855), (18 588, howev- 15 L.Ed. 495 1790, er, Act of that the 1790, An Act for the held Congress In enacted Court challenge right peremptory Against giving the the Punishment of Certain Crimes accused, cases; along felony did not “draw with ‍‌‌‌‌‌‌‌‌‌‌​​​‌​​‌‌‌​‌‌‌‌‌‌‌‌​​​‌​‌‌‌‌‌​​​​​‌‌‌​​‍it” and three each in civil and government’s prerogative to exercise 3, misdemeanor cases. Law of March right the common law of “standing aside.” 1911, 231, 287, § ch. Final- Stat. 1166. 590, Thus, Id. at 15 L.Ed. 495. after ly, when the Federal Rules of Criminal Shackleford, prosecutors federal in the 1946, adopted Procedure were Rule United predica- States were the same 24(b) prosecution’s peremp- increased the ment as the prosecutors Crown’s in Eng- in capital equal tories cases to the defen- land had been after enactment of the Ordi- dant’s, ie., twenty. Note that each succes- Inquests: nance for possessed the accused change sive peremptory decreased the right challenge; challenges of the accused vis-a-vis those of prosecution did not. The effect of Shack- prosecution per- increased the and/or was not as short-lived as the Ordi- leford emptory challenges prosecution of the vis- Inquests been, nance for had perhaps be- a-vis those of the accused. As will be cause Congress was more concerned with infra, pattern noted dupli- has been preliminaries prosecution to and of the in Kentucky. trials, cated In federal civil American Civil War than party each right continues to have the challenges. But under majority opin- three challenges. 28 U.S.C. theory ion’s that the denial of peremptory § 1870. harmless, challenges is why would federal 1986, Prior to peremptory challenges in prosecutors need them at all?15 the federal regarded courts were as both In in an apparent if belated re- unconditional and “Experience inviolate. sponse Shackleford, Congress estab- has shown that one of the most effective lished that in all non-capital felony trials in means to free jurybox from men unfit federal courts the defendant would have to be there is the exercise of peremp- ten peremptory challenges and prose- tory Missouri, challenge.” Hayes v. two, cution would have and that in capital 68, 70, 350, 351, U.S. 7 S.Ct. 30 L.Ed. 578 cases the defendant twenty would have (1887). right “The ... challenge has peremptory challenges prosecution and the always been held essential to the fairness would 3, 1865, have five. Law of March States, by jury.” trial Lewis v. United 2,§ ch. 13 Stat. 500. In Con- 370, 376, 136, 138, 146 U.S. 13 S.Ct. gress increased the number of prosecutori- (1892), abrogated L.Ed. 1011 on other al peremptory challenges in non-capital grounds Massachusetts, by Snyder v. and, cases to time, three for the first ex- U.S. 118 n. 54 S.Ct. 337 n. tended right of peremptory challenge (1934). L.Ed. 674 “The to civil cases and misdemeanors tried in given number of three). showing without federal (giving courts each side cause is one of the important most 2,§ Law June ch. 17 Stat. rights secured to the Congress accused.” Pointer v. again changed the States, 396, 408,

peremptory challenge United twenty numbers: U.S. S.Ct. 410, 414, for the defendant prosecu- and six for the 38 L.Ed. 208 Though not cases; tion in capital ten for the defendant constitutional in origin, Stilson v. United prosecution States, and six for the in non-capital 28, 30, 40 S.Ct. Yet, Judge Abolished, reports 15. Peremptory Challenges Hoffman that an infor- Should Be poll lawyers mal practicing of in his court supra, prosecutor report- at 852-53. One is prosecutors revealed that were more zeal- asserted, get ed to have "I'd rather rid of ously protective peremptory of challenges for cause.” Id. at 852 n. 194. Hoffman, challenge attorneys. than defense

130 associations, yet his and and (1919), chal- from habits peremptory 63 L.Ed. 1154 the a statutory privi- a it difficult to formulate and sustain lenge “in the of find is nature States, cases, objection the lege.” 335 U.S. to him. In such legal Frazier v. United 497, 11, 201, 11, protection n. a challenge n. 69 205 93 S.Ct. (1948). “necessary part being accepted.” Hayes, It is a against L.Ed. 187 his 70, ... allows at at by [because it] of trial 7 S.Ct. 351. U.S. of bias possibility to ascertain the

counsel the perempto- The essential nature of probing on the voir dire through questions ry challenge is it is one exercised that challenges and of facilitates the exercise being subject to the court’s ... without by removing incurring for the fear of cause per- for cause control. While hostility juror’s through a examination and narrowly a mit on rejection Alabama, for Swain v. challenge cause.” legally provable cogniza- specified, 219-20, 85 S.Ct. U.S. partiality, ble basis (1965), overruled Batson L.Ed.2d 759 or rejection imagined a real permits for Kentucky, 476 U.S. S.Ct. easily designated partiality that less (1986). L.Ed.2d or demonstrable. Swain, two for 85 S.Ct. at 836

Blackstone offered rationales U.S. (citations omitted). added) peremptory challenge: (emphasis sensible, must every 1. As one prem are often Peremptory challenges unaccount- impressions what sudden hunches and upon “experienced edu ised apt prejudices are to conceive able we rel. guesses.” v. Alabama ex cated J.E.B. upon gеstures the bare looks T.B., 148, 114 S.Ct. 511 U.S. another; necessary it is that a and how (1994) (O’Connor, J., L.Ed.2d 89 (when life) prisoner put to defend his jurors during voir “[M]any concurring). jury, opinion a his good have should an articulable may give party a dire discon- might totally of which the want cause, though challenge for reason to them him; wills cert the law hostility instinctively senses party against one man should be tried T. juror.” Robert from prospective a even prejudice, he has conceived whom Prior, Challenge: A Lost Peremptory being assign a reason for without able to Cause?, L.Rev. 44 Mercer such his dislike. lawyer’s instinctive assess “That a trial Because, upon challenges cannot juror’s predisposition ment a shown, assigned if the reason cause high standards of meet the juror, prove insufficient to set aside lawyer’s mean that cause does not perhaps questioning J.E.B., his indif- bare instinct is erroneous.” may provoke a re- J., ference sometimes (O’Connor, con 148, 114 at 1431 S.Ct. sentment; consequence all ill prevent describes curring). commentator One which, liber- prisoner is still at from “one based challenge as ty, pleases, if he to set him peremptorily attorney, but persuades evidence that aside. persuade judge” is insufficient to liti against the Blackstone, potential juror is biased supra note at 347. A Anthony position.16 or her strongest gant reasons to party “may have the offered, Spot: Unconscious Page, of a Batson’s Blind distrust the character County, personal injury lawsuit attorney thirty years practicing some 16. As a city fire defending between a ago, arose out of collision I was to assist in retained Bardstown, My co-counsel neighboring truck another motorist. City Nelson 131 Stereotyping 352, 1859, and the Peremptory Chal 111 114 U.S. S.Ct. L.Ed.2d 395 (2005). 155, 158 (1991) (as lenge, Martinez-Salazar, 85 L.Rev. B.U. stated 528 781), gender, U.S. at 120 S.Ct. at Prior to Ross v. Oklahoma and United J.E.B., 130-31, 511 at 114 at U.S. S.Ct. Martinez-Salazar, States v. only re prohibition 1422. The Batson against the party’s striction on a peremptory use of a discriminatory peremptory use of chal challenge was that it could not be em cases, lenges has been extended to civil ployed purposeful discrimination Co., Edmonson Leesville Concrete 500 against jurors a class of on the basis of 614, 630, 2077, 2088, U.S. 114 S.Ct. race, gender, or ethnic origin. (1991), L.Ed.2d 660 and to the United States Supreme Court held in exercised criminal defen Batson v. Kentucky that the dants, McCollum, Georgia v. 505 U.S. not entirely was peremptory but 2348, 2359, 112 S.Ct. 120 L.Ed.2d 33 subject was to scrutiny under Equal (1992). premised Because Batson was not Protection Clause of the Fourteenth only on purposeful against discrimination Amendment to the United States Constitut opposing party purposeful but also on Batson, ion.17 at U.S. 106 S.Ct. at against discrimination jurors, the excluded Specifically, 1719. the Court held that a 87-88, U.S. S.Ct. prosecutor could not use peremptory chal party objection can raise a Batson even lenges jurors to excuse “solely on account race, party is not of gender, the same of their race or on the assumption that or ethnic origin jurors. as the excluded black a group will be unable Ohio, 400, 416, Powers v. U.S. impartially to consider the State’s cse 1364, 1373-74, S.Ct. 113 L.Ed.2d against a black defendant.” Id.18 The (1991). Court later extended holding pur poseful discrimination However, on the basis of eth the Batson line of cases does origin, York, nic Hernandez v. New purport deprive a party per- of a city Smith, attorney. At the conclusion of 538 U.S. 123 S.Ct. dire, suggested voir I that we use our three L.Ed.2d 1056 peremptory challenges plain to excuse the teacher, Sunday tiff's School her childhood Although premised 17. Batson was on the schoolmate, lady and a litigated Amendment, who had her applicable Fourteenth which is personal injury own states, case ato successful con only holding its has been held to My pointed clusion. co-counsel out that he apply as well to federal trials because "the previously represented had clause, the ex-wives of process appli- Fifth Amendment's due prospective jurors pro States, two in their divorce cable to the United has been construed ceedings prosecuted and had to conviction implicitly equal protection guar- include an prospective the son of juror another for drunk anty generally as broad as that of the Four- teacher, driving. Sunday Leslie, The School teenth Amendment.” United States v. schoolmate, (5th previously Cir.1987) childhood and the suc (citing 813 F.2d Buck- Valeo, plaintiff 612, 670, jury. cessful remained ley on the 96 S.Ct. city (1976) curiam) needed challenges, (per six ("Equal 46 L.Ed.2d 659 per- three. If the Analysis trial court had allotted six Protection in the Fifth Amendment emptories city to the three area is the same as that to the under the Fourteenth Amendment.”)). plaintiff, today’s majority opinion would deem that allotment "harmless error” unless the plaintiff prove could that a biased actu Presumably, Batson also extends to non- ally jury. Caucasians, Energy, races, sat on the Sand Hill Inc. v. minority e.g., see Caudill v. Co., (Ky. Ford Motor 83 S.W.3d (Ky. 2002) J., (Keller, 2003), concurring), granted though cert. Supreme the United States judgment yet vacated Ford Motor Co. v. Court has to address the issue. 89-91,

emptory require or to that a Id. 108 S.Ct. at 2279-80. challenge at The challenge judicial to left specifically open exercised correct Court “the broader error; whether, those in only preclude party question cases the absеnce Okla- utilizing for a limitation peremptory challenge from on to ‘right’ homa’s the exercise discriminatory purpose. “Absent inten- peremptory challenges, impair- ‘a denial or Equal tional discrimination violative the peremptory ment’ of the exercise of chal- Clause, parties lenges Protection should be free if the one occurs defendant uses or peremptory to exercise their strikes for to challenges more remove who reason, at all.” no reason Hernan- cause.” should have been excused for Id. dez, 500 U.S. at S.Ct. at 1874 at 91 n. 108 S.Ct. 2280 n. 4. at That (O’Connor, J., concurring). question respect was addressed with to in federal law United States v. Martinez- only Supreme United States Court Salazar, 528 U.S. 120 S.Ct. purporting require party case to to use a (2000), L.Ed.2d 792 which held to peremptory challenge judicial to correct preserve appeal, an error such Oklahoma, Ross error is must on defendant leave the (1988), 108 S.Ct. L.Ed.2d 80 jury, a conviction the hands of suffer at it was law to a case applying Oklahoma jury, pursue biased a Sixth resultant tried an Oklahoma court. argument appeal. Id. at Amendment on principle It is a long settled of Okla- at 120 S.Ct. 781. Martinez-Salazar homa law that a defendant who dis- reject purported also for federal courts agrees with court’s ruling the trial requirement that a criminal Oklahoma must, for-cause order to peremptory use her defendant must his or preserve the that the ruling claim de- error, cure trial court’s challenges to trial, prived him fair of a exercise a 314-15, though id. S.Ct. ju- peremptory challenge to remove the practical holding of its same. result then, grounds ror. Even the error is reversal if the defendant exhausts III. PEREMPTORY CHALLENGES peremptory challenges all and an incom- IN KENTUCKY COURTS. petent juror upon him.... is forced concluding the ineffective alloca- Thus, provides although Oklahoma challenges any par- tion peremptory capital nine defendant with criminal, ty, may civil or be “harmless challenges, qualified by grant this error,” majority due con- acts without requirement must defendant significance with sideration for the which those cure challenges use erroneous jurisprudence have re- Kentucky law by refusals trial court to excuse 1700s. garded right since the late jurors for cause.... a stat

Initially, criminal defendants had required law, utory peti- twenty-four peremptory As Oklahoma right charged tioner one of his if treason and challenges exercised rectify charged felony.” the trial with “murder or twenty court’s er- ror, only Act Lit consequently he retained of December William (“Littell’s tell, Kentucky eight challenges to use in Law of Statutе Laws”), § he re- ch. pp. his unfettered discretion. But This all statute ceived that Oklahoma law allowed broadened him, in “all crim process twenty peremptory challenges and therefore his due chal- whatsoever,” except fails. inal courts lenge cases Commonwealth, Ky. “penal” subject only guage where offenses—those Montee v. (3 Marsh.) penalty (1830), to pecuniary prosecuted.19 sup- to appears J.J. —were 22,1798,1 Laws, Act of December Littell’s port position. (1810) 169, p. ch. in (“except courts of seem, therefore, It would sessions”). quarterly During this time the conclusion, is, most safe and consistent prosecution any was not to per entitled right peremptorily challeng- that the 17, emptory challenges. Act of December “penal in ing twenty, does not exist 1796,1 Laws, 262, 18, 469; § p. Littell’s ch. cases,” allowed, in all other crimi- but is (7 Bailey, Ky. Commonwealth v. J.J. cases, right prosecute that the to nal Marsh.) (1832). However, this omis error, in in given penal, a writ of but substantially sion was counterbalanced no other criminal case. that, the fact whereas a writ of error or an Id. at 144-45. appeal could be taken to the Court of Appeals20 case, “penal” from civil or However, while there had been no statu appeal writ of error or an could not be in tory right peremptory challenges tri taken from other criminal case. Act (those in “penal” als of offenses tried 19, 1796, Laws, December Littell’s ch. sessions), quarterly courts of Montee also (no 277, 13, certiorari, § p. 563 appeal, equitable held that “[a]n and reasonable supersedeas, or writ of error from allowed construction, will right extend the same district judgments court21 in criminal cases,’ peremptory challenge, ‘penal cases). logic denying right The behind cases,” i.e., which is allowed [civil] appeal criminal serious cases was the right challenges. to three justice.22 simple: swift Id. at a party’s 149. Thus the reason for blush, right peremptory challenges to its allotted At first the distinction between could not have was no allowing appeals in been because there “penal cases” but not cases, right In appeal. “penal” other criminal the ac may cases have been right because the accused in cused had both the other criminal (albeit three) cases twenty peremptory only was allowed chal- and the Furthermore, lenges expected appeal. Pryor to use them to v. Com —and judicial (2 Dana) monwealth, (1834), correct following Ky. error. The lan- 1802, "penal” 19. Prior to all cases were tried court held that a writ could be of error taken case, penаl quarterly in the court of from circuit court in a over which sessions—a court of quarterly previously jurisdiction; limited the court of sessions had the district court was a cases, jurisdiction, 1802, but not in other criminal general jurisdiction. court of In dis- previously over which the district court had quarterly trict courts and courts of sessions jurisdiction. Montee v. jurisdiction were abolished and their trans- (3 (1830). Marsh.) Ky. J.J. ferred to circuit courts. Act of December Laws, §§ 3 Littell’s ch. explained: 22.Chief Justice Robertson (1811). pp. 37-48 tolerating for not writs of reason highest 20. Prior to our court was the error, cases, punishable by in criminal cor- Appeals.” Upon adoption "Court of infliction, be, poral may because such a Judicial Article that Court became the Su- would, cases, proceeding, in such Acts, 2(1), preme Ky. § Court. 1974 ch. unusual, inconvenient, oppressive, but degree, and in some subversive the exi- gencies, pun- inflicting corporal and end of quarterly 21. After the court of sessions and ishment. (e Montee, (3 Marsh.) mp merged the district court were Ky. into the circuit J.J. at 144—45 court, added). supra, predecessor see note our hasis challenges allowed law was emptory error held that it was reversible court three chal inviolate. deny the defendant though in a case lenges “penal” even Assembly officially the General of error prosecute a writ defendant could adopted first Criminal Code Prac- years in such a Id. at Sixteen case. al., M.C. et Practice tice. Johnson Code of later, intervening of a after the enactment (eff. 1854).23 July in Criminal Cases authorizing of a writ of prosecution statute allotted to of the Code Section 203 any punishable by in criminal case error twenty challenges peremptory defendant imprisonment, Act of fine or and fine in in a and three felony prosecution 37, the held that it 3 Stat. Law court 204 al- prosecution; misdemeanor section deny to a defendant was reversible error peremp- to five lotted the Commonwealth in the trial twenty peremptory challenges felony prosecution in a tory challenges result in any charge criminal that could prosecution. in a Sec- three misdemeanor Hayden v. Common imprisonment. gave appel- Appeals tion 327 the Court of Mon.) (1850). wealth, (10 125, 126 49 B. Ky. convictions, jurisdiction felony late over litigation, an Act of respect to civil With contained in “subject the restrictions to Laws, 27, 1806, 3 ch. December Littell’s respect, In that Section 334 this article.” (1811), provided § that “each p. 402 judgment of a provided that a of conviction litigant per- party right shall have the on the fol- felony could be reversed emptory chаllenge to one fourth lowing grounds: McGee, Sodousky summoned.” admitting An in 1st error of court (4 Marsh.) (1830), a civil Ky. J.J. rejecting important or evidence. battery, prede- for our action assault in or instructing refusing 2d An error interpreted litigant” “parties cessor court jury. to instruct the of the contro- antagonistic to mean sides An arrest failing 3d to error thus, deny sepa- versy; to it was error judgment. challenges nine non- peremptory rate allowing disallowing An or 4th error in In Clarke v. antagonistic defendants. (6 Marsh.) challenge. Goode, (1831), J.J. Ky. however, held that it was revers- the Court 349(1) added.) specifi- (Emphasis Section deny litigant ible error to a civil allowing an cally provided that error challenges to exercise all three overruling cause was not important him. not only “It is allotted 276, which grounds for reversal. Section justice impartially that should be adminis- Ky. Acts later became section tered, but it can be without where effected 1877), (eff. Bullitt Joshua F. & January rule any propriety, the violation of that Feland, Code Practice Ken- John as clear through

it should flow channels (1876), provid- tucky Cases Criminal suspicion possible.” Id. from court decision of the ed “[t]he cause,

Thus, panel, jurisprudence, it our earliest (Em- subject exception.” defen- shall not be well a criminal established added.) per- litigant’s right phasis or a to the dant’s civil Procedure, id. subsequent with the Rules of Criminal of the Crimi- 23. This and editions governed practice subject in Ken- and the § nal Code criminal to future amendments tucky until when the General authority Depart- from 1854 rule-making of the Judicial Code, Assembly repealed the last Criminal Id., pmbl. ment. Acts, 62(2), replaced § Ky. ch. (13 (7 Commonwealth, Ky. Ky. In Moore v. Rutherford Bush) Bush) (1870), predecessor our court held that section 334 of the Criminal Code pass- noted in opinions of these Several precluded reviewing it from a trial court’s erroneous failure ing that the trial court’s ju allegedly erroneous failure to strike a have for cause could not to excuse (oddly failing ror for cause to also cite because the defendant prejudicial been 349(1)),rejecting argument section that he had exhausted all of failed to show the effect of the error was to disallow the challenges. Conley, 8 appellant peremptory challenge so as 513; 417; Lake, 273 S.W. at 334(4). appeal authorize an under section Gilbert, at 591. That was the 51 S.W. thereafter, Shortly Assembly the General in civil prevailing harmless error rule 349(1) repealed section and amended sec course, which, section 281 cases judgment tion 344 to read: “A of convic apply. Day’s did not Criminal Code tion shall be reversed for error of law Ky., 116 Comm. v. Exch. Bank S.W. of prejudiсe appearing to the defendant’s 259, (Ky.1909). 259-60 Despite record.”24 Assem General 1932, Assembly once the General Moore, bly’s attempt obvious to overrule make the again attempted to erroneous predecessor consistently our court inter challenges appealable, for cause denial of 281, preted precluded only section which amending this time section 281 to read: “exceptions” to trial court “on decisions challenges, upon “The decision of the court cause,” the panel, and for as cause, upon motions to set aside precluding appeal an errone for indictment, subject excep shall be grant ous failure to excusal for cause. Acts, 63, § 2 Ky. (empha tion.” 1932 ch. See, Commonwealth, e.g., Conley v. 225 added). thereafter, Shortly prede sis our 275, Ky. 415, (1928); 8 S.W.2d 417 Harris held that it would find the cessor court Commonwealth, 787, v. 214 Ky. 283 S.W. juror failure to excuse a for erroneous 1063, 1065 Commonwealth, (1926); Lake v. juror cause to harmless unless the actu (1925) 832, 511, Ky. 209 273 S.W. 512-13 ally served on the case or defendant (also holding that section 281 did not vio juror peremptorily ex excused 11 late Section of the Constitution of Ken chal hausted all of his or her Commonwealth, tucky); McKinzie v. 193 lenges process. in the Tate v. Common 781, Ky. 386, (1922); 237 S.W. 387 Lawler wealth, 685, 817, Ky. 258 80 S.W.2d 820 Commonwealth, 185, v. Ky. 182 206 S.W. (1935). dic (1918) Except for some unfortunate 306, (applying 309 section 281 Commonwealth, in v. 780 Turpin tum deny admittedly im prosecutor’s review 619, (Ky.1989), and a short- 621 S.W.2d proper jurors advice to dire during voir Commonwealth, in v. that, murder, holding lived Dunbar if convicted of the defendant 852, (Ky.1991), 853 that was 809 S.W.2d eligible parole eight years); would be Commonwealth, 827, premised upon the absence of a Constitu Barnes v. 70 S.W. (a Commonwealth, guarantee strikes (Ky.1902); 828 Gilbert v. tional 590, rejected in Thom holding quickly that was (Ky.1899); 51 S.W. 590-91 Burton v. Commonwealth, as, 258-60, (1882); an incorrect Ky. Op. 11 841 864 S.W.2d case, Acts, (eff. 1, 1877), Ky. January the court is satisfied Bul ation of the whole 1876 Feland, 3, 61, (1876). By supra, litt & 65 rights the defendant that the substantial 340 an Act of March section Ky. prejudiced thereby.” 1880 been have again amended to add additional harmless Acts, 360, § p. 42. i.e., "where, language, upon error consider

136 (failure Oklahoma), for cause of Ross v. (Ky.1988) to excuse interpretation we range penal not consider full predecessor and our court have consistent who would Commonwealth, Tate dur v. ties); Marsch ly applied the rule announced 743 Derossett v. years. ing ensuing seventy 830, (Ky.1987); S.W.2d 831 Brumfield Commonwealth, 195, 197 Commonwealth, v. 499, 867 (Ky. S.W.2d 500 374 S.W.2d Commonwealth, v. Smith (Ky.1993); 734 1964) (some jurors who should have been v. 437, (Ky.1987); 444 S.W.2d actually served because excused for cause Lefevers Commonwealth, 585, 558 S.W.2d 587-88 chal exhausted his defendant Commonwealth, (Ky.1977); Rigsby v. 495 who also should lenges other overruled 795, (Ky.1973), 798-99 S.W.2d v. cause); Tayloe have been excused by Pendleton v. Com grounds on other Commonwealth, 556, (Ky. 557 335 S.W.2d monwealth, (Ky.1985); 552 685 S.W.2d Commonwealth, 1960) v. (same); Calvert Commonwealth, Jones v. 281 S.W.2d God (Ky.App.1986); 708 S.W.2d Commonwealth, Messer v. (Ky.1955); sey v. 4-5 S.W.2d Ky. S.W.2d (Ky.App.1983). applies The same rule also civil cases. applied been The same rule has also Commonwealth, Dep’t. Highways v. cases, 47.03. governed civil now CR Ginsburg, 516 S.W.2d (Ky. Perkins, v. Bowman ex rel. Bowman Ex’r, 1974); Carrithers Jean’s Ky. (Ky.2004) (plurality opin S.W.3d (1933); Day’s Denney, ion); Conner Comm., 116 at 259-60. S.W. Ephraim v. (Ky.1975); Davenport 515 Conversely, our courts also have consis 56, Hosp., 769 S.W.2d (Ky. McDowell 59 tently held that the erroneous denial of a (reversing specifically without App.1988) challenge prejudicial for cause is and re aggrieved party ex reporting that reversal for a new trial the defen quires not, then peremptories hausted all —if challenge to ex peremptory dant used that denial of holding erroneous and exhausted all of his or cuse litigant even if for cause is reversible error process. in the her Gins peremptories). all failed to exhaust Commonwealth, 931, Fugate v. 993 S.W.2d Carrithers, 870-71, burg, 516 S.W.2d at 61 Thomas, 259; (Ky.1999); at 938 864 S.W.2d Committee, Day’s 323, 116 at S.W.2d Commonwealth, Thompson v. 862 S.W.2d 259-60, clearly implied also S.W. at (death case), 871, (Ky.1993) penalty 874-75 the result had the such would have been grounds by Clair v. overruled on other St. peremptory challenges. all party exhausted Commonwealth, 510, (Ky. 140 S.W.3d 570 long court have predecessor and our We superseded by rule on other 2004), right held that to have recognized by Perdue v. Com grounds in according to law challenges allotted monwealth, 148, 159 (Ky.1995); 916 S.W.2d See, e.g., right.” is a “substantial civil case Commonwealth, Alexander v. 862 S.W.2d v. Atmos En Bowling Green Mun. Utils. on other 856, overruled (Ky.1993), 864-65 577, ergy Corp., 989 S.W.2d (Ky.1999); 580 Commonwealth, v. grounds by Stringer Cook, Mut. Ins. Co. v. Ky. Farm Bureau (Ky.1997); Montgom 883, 891 956 S.W.2d (Ky.1979); Eads v. 875, Commonwealth, 877 713, 590 S.W.2d ery v. 819 S.W.2d Stockdale, 971, 446, Ky. 220 S.W.2d 310 v. Morris Common (Ky.1991); 717-18 Kamer, Realty v. (1949); wealth, Olympic Co. (fail 972 58, (Ky.1989) 60 766 S.W.2d (1940); 293, 432, 297 Ky. 141 283 S.W.2d to excuse for cause who would ure Franke, Drury v. Ky. 57 S.W.2d 247 Grooms penalty); the death consider Pendly v. Ill. Cent. (1933); v. 138 756 S.W.2d

137 (When partial, Co., or avoid impartial, 2 cure an (Ky.1906) R.R. 92 S.W. jurors, enforced; to remove six ... next they permitted fully were jury, are to appellant substantial trial for impartial a fair and securing her”). Thus, from our courts have taken they should important it is parties, or misallo- consistently held the denial trial, had such a they feel that have challenges, when cation of belief impair their anything that tends per reversible properly preserved, se seriously diminish respect must properly pre error. the error is “[W]hen public that of the their confidence and served, reversal and a new trial should be ability of the state to generally Cook, 590 awarded as a matter of law.” dispens- tribunals for provide impartial at S.W.2d subjects. its ing justice between Kentucky This has been law Franke, Ky. 247 57 S.W.2d Drury v. both civil and criminal cases since 1834. added) (1933) (emphasis (applying 984 (“Viola Energy, 989 at Atmos S.W.2d 580 juror’s failure to re- prospective rule to 47.03, subject tions of CR order to be question, preclud- thus spond to voir dire reversal, appellate need not show actual ju- to excuse ing litigant opportunity from suffices.”); prejudice. simple A violation challenge). by peremptory ror Conley, (Ky. Wells v. 384 S.W.2d 498 1964); Taylor, Roberts v. 339 S.W.2d Supreme Court has The United States Bates, (Ky.1960); Price v. at trial recognized also that some errors Whitaker, (Ky.1959); Williams under the harmless analyzed cannot be (Ky.1956); Pendly, S.W.2d error standard. (10 Mon.) 2; Hayden, Ky. at B. at S.W. Fulminante, In Fulminante [Arizona (2 Dana) 126; 298; Pryor, Ky. at 279, 111 S.Ct. (6 Marsh.) Clarke, 638; Ky. J.J. (1991)], distinguished L.Ed.2d 302 we

Davenport, (“Granting hand, between; on the one “structural ‍‌‌‌‌‌‌‌‌‌‌​​​‌​​‌‌‌​‌‌‌‌‌‌‌‌​​​‌​‌‌‌‌‌​​​​​‌‌‌​​‍non-antagonistic per the two appellees six of the trial emptory strikes was reversible error as a defects in the constitution law.”). mechanism, by matter of defy analysis which standards,” U.S., at 499 right challenge When the of is lost or ‘harmless-error’ S.Ct., 1265, and, impaired, statutory 309, the conditions and on the other at setting up jury terms for an authorized hand, “during occur trial errors which met; right challenge are not the to jury, presentation of the case to the the given showing of number without may quantita therefore be and which of important cause is one the most other tively assessed the context of rights litigant; any system to a for the id., 307-308, presented,” evidence jury prevents or empaneling of S.Ct., 1252, 1264. full, the unrestricted exer- embarrasses Louisiana, 275, 281, Sullivan right of the of must be cise 2082-83, 2078, 124 L.Ed.2d S.Ct. condemned; reject ... the to ju- (1993). words, which oc- In other errors by peremptory challenge rors is material of the case to during presentation cur the tendency give parties in its to assur- jury prejudicial can be evaluated for in valu- ance of the fairness of a trial the introduc- by examining whether effect way; and effective the terms able of grav- tion of other evidence diminished peremptory statutes with to reference However, in the ity the error. errors challenges are substantial rather than trial, technical; rules, allotting as of the such aiding to se- structure such twenty for the defense and original challenges than peremptory fewer party 1854, to to prosecution prior law, none for defy analysis.25 by allowed such 1854 until twenty and five from more the State has When 204; al., fif §§ supra, et Johnson accused, the State challenges than the D. John and five from 1893 teen advantage tactical has an unmistakable Carroll, Practice Criminal Code impartiality jury of the is com- and the Acts, (1893); Ky. §§ Cases im- which affect the promised. Errors 9.40; eight § and five Rule ch. are, definition, by partiality of the 9.40(1); Order RCr from 1978 require and reversal. structural Rules, Proce Amending Administrative Good, 309 Mont. 43 P.3d State v. Justice, II, Jury- Part dures of Court (2002). (eff.Jan. at 20 Management, Selection to use the Appellant If had been able 1, 1978); eight eight, finally an- peremptory challenge to excuse wasted 9.40(1); Amend today. Order until RCr (to him) juror, thus objectionable other (CR), Rules Procedure ing Rules of Civil jury, changing composition (RCr), Procedure Rules Su of Criminal favor- the outcome have been more would (eff.Oct. 94-1, (SCR), at 8 preme Court guilt respect him—either with able to 1994). mean that entitle That does not type incapa- That of issue is punishment? allotted law is no the number ment to to harm- proof, unsusceptible thus ble of right.” It longer a “substantial analysis. less error and, Assembly the General means showing of a of actu- requirement gradually have subsequently, this Court the re- effectively al nullifies prejudice cases, as has in criminal recognized that of the rule on allocation quirements cases, there true civil always been To actual challenges. show field between playing a level should be would complaining litigant prejudice, purpose defense. The prosecution and to discover the unknowable required allocating peremp limiting specifically might have and to reconstruct what so one or rule is tory strikes statute was, jury properly never been and deck” unfairly “stack the cannot side gauntlet of running after constituted Illinois, Holland against the other. in accordance with challenge performed 807-08, 110 S.Ct. U.S. game. prescribed rule of the party one “[I]f L.Ed.2d 905 words, Cook, In other at 877. challenges than more allowed per- of a prejudice from the loss proving effect, other, an advan given in he is fatuus, a will ignis strike “is like emptory by indirection may in that he select tage Hill wisp incapable proof.” Sand o’ the cause.” try veniremen particular J., 16, (Cooper, at 510 Energy, supra note Pichard, 371, 7 150 Fla. So.2d v. Williams dissenting). (1942). egregious to particularly It is 468 a disad at such a criminal defendant majority opinion, place

As noted him and the state “Between vantage. challenges allotted peremptory number of Hayes v. evenly held.” are to be felony cases scales criminal defendants 351, 70, 350, Missouri, 68, 7 S.Ct. vis-a- Kentucky gradually has diminished L.Ed. 578 prosecution: from 30 granted those vis course, That, does not Supreme error. Court has nev- structural United States 25. The Kentucky the failure to allocate cannot do so. er addressed whether mean that according a to law is peremptory

139 Harm- for cause?26 to be excused require to- longer. No Because of our decision less error. civil day, peremptory challenges both at the chal-

and criminal trials can be allocated accused’s “If one of an him, away from judges, of trial who can control their be taken lenges whim could five, taken, why and if by refusing grant why chal- not five be allotment either ” ten, leaving none .... thereby lenges forcing for cause and per- aggrieved party waste (Tex. 1, his/her/its State, 6 v. 43 S.W.3d Johnson emptory strikes on who should have State, (quoting v. Crim.App.2001) Wolfe cause, by simply mis- been excused 62, 274, 279-80 147 178 S.W.2d Tex.Crim. peremptory challenges by allocating the (1944)).

awarding party more than or less than allo- strikes to be permit peremptory To action the number allowed law. Either on a arbitrarily inconsistently cated error” unless will be deemed “harmless case-by-case, court-by-court basis would aggrieved party prove can that a bi- It be better be intolerable. would juror actually ased sat on the case—an per- than to abolish strikes improbable “Providing feat. an accused ... the tool of mit them to become by jury with the to be tried of his judicial arbitrariness.

peers gave safeguard him an inestimable J., Hill, (Cooper, at 512 Sand 83 S.W.3d biased, against ... compliant, or ec- dissenting). Louisiana, judge.” centric Duncan v. 391 AFTERMATH OF MARTINEZ- IV. 1444, 1451, 20

U.S. 88 S.Ct. SALAZAR. (1968). Every experienced L.Ed.2d 491 ap supra, As noted Martinez-Salazar lawyer story” trial has “war about local ” is not plies only to federal courts and judge who “took folks.’ care his ‘home years binding on the states. the five required We were to reverse Atmos Ener- decided, nine states have since gy, involving multiple plaintiffs a case with per se reversible error rule abandoned the multiple identical interests and defendants reasoning. Dailey its v. and embraced interests, antagonistic because the State, 340, (Ala.2001); So.2d State judge equalized trial Hickman, 205 Ariz. 68 P.3d v. strikes “as matter of fairness.” Santana, (2003); v. 135 Idaho State today, S.W.2d at 579. After such whimsi- Entzi, (2000); v. 14 P.3d State cal rulings will be deemed “harmless er- (N.D.2000); Green v. N.W.2d judge ror.” What the trial is a former 535, 564 Maynard, 349 S.C. S.E.2d prosecutor yet whose mind-set has not (2002); Verhoef, State N.W.2d neutral, ignores switched to so he Fire, (S.D.2001); 441-42 State Montgomery mandate of v. Common- (2001); 1218, 1225 Wash.2d 34 P.3d wealth, judges that trial Lindell, 245 State v. Wis.2d ‘magic question’] from their “remove [the State, (2001); Klahn v. N.W.2d lexicon,” thinking and strike it from their 472, (Wyo.2004). 96 P.3d 483-84 perempto- a defendant to use requires and hand, courts, state “reha- the other eleven ry challenges to excuse one more On 2002, declined to follow the jurors Montgomery whom would six since have bilitated” fact, Dickerson v. Com recently presented permit excusáis for cause. we were monwealth, 451, appeal (Ky. this exact scenario in another from n. 3 461 circuit, apparently an in 2005). this same because jurors were available to sufficient number of 140 Martinez-Salazar, peremptory specifical party’s a allotment

reasoning of strikes.”). ly retaining “per reversible” rule. se (Colo. 295,

People Lefebre, v. 5 P.3d 307 Good, 113, also v. 309 Mont. See State 2000) (rejecting Martinez-Salazar (2002) 948, (prejudice pre- 959-60 P.3d holding that decisions have consis “[o]ur juror if sumed should have been excused that, tently recognized under Colorado cause, peremptory defendant used law, preju a defendant suffers reversible juror, to excuse and defendant ex- strike peremptory dice if to use a forced peremptory all strikes —structural hausted challenge juror the trial to remove whom subject analy- error error not to harmless court failed to remove for cause and he Cahill, 14, sis); v. People N.Y.3d challenges”); peremptory exhausts his (2003) 561, 809 N.E.2d N.Y.S.2d (Fla. State, Busby v. 894 So.2d 96-105 (“An of a defendant’s erroneous denial 2004) (rejecting Ross and Martinez-Sala ‘harm- challenge for cause is rendered retaining zar and its rule the failure less’ because the defense later excuses per to excuse for cause is reversible error juror contrary, To the peremptorily. if peremptories se the defendant exhausts loss of the chal- defendant’s (Citations juror per have identifies he would constitutes the harm.” lenge State, omitted.)); v. 72 P.3d emptorily excused he had exhausted Hanson (reversal State, re- (Okla.Crim.App.2003) peremptories); Fortson v. 277 Ga. (2003) juror quired one should have been where (ignoring 587 S.E.2d cause, removed for and defendant exhaust- urging that dissent’s Martinez-Salazar be peremptories ed all and identified addition- recognizing “causing applied and (objection- juror al he would have stricken unnecessarily peremp defendant to use a cause) not removable for with the able but tory juror on a that should strike have State, v. peremptory); lost Johnson per been excused for cause is se harmful (Johnson, concurring) at 10-11 J. error”); Taylor, 875 So.2d State (“[T]he primary rationale for (La.2004) (noting that Martinez-Salazar help ... ‘to federal court [is] than follows a different rule is followed of trial guarantee secure the constitutional Louisiana); McLean, State v. 815 A.2d Martinez-Salazar, impartial jury,’ by an (Me.2002) (“[W]hen 799, 805 a defendant’s 120 S.Ct. at 782.... [W]e to have selected in the manner consistently convictions and have reversed by impaired, it prescribed the Rules ... trial ordered a new trial when case, virtually would be improperly court denied impossible for the State to show after con thereby forced the defendant to cause injury viction that the to the defendant is challenge ... to correct use a harmless, equally difficult for the de cоurt.”); by trial Brown v. Com- error prejudice.”); fendant to demonstrate Whit monwealth, Va.App. 533 S.E.2d State, ney Md.App. 857 A.2d (2000) error occurs when (prejudicial 8 n. (2004) (“Although Supreme to use a a trial court forces a defendant Court Martinez-Salazar has clarified as him peremptory challenge afforded from Swain that the dictum statement who should have statute excuse impairment per of a federal defendant’s cause, rejecting Mar- been excused for emptory challenges per dictates reversal ). tinez-Salazar se, no courts of we discern effort by jurisdictions ‘reversibility generally accepted It is this State to retreat from ’ n regi- judicial operating under Martinez-Salazar per impairment se rule for the Martinez-Salazar, ap regime ac- der the principles apply men that its to civil case-by- on a prosecutions. as to criminal courts evaluate pellate tions as well will Gray, case, v. Altheimer & 248 F.3d number Thompson basis the party-by-party (7th Cir.2001) (“Martinez-Sa- lost, 623-24 challenges that must be peremptory a criminal cannot lost, lazar was case but we they were of case which type or the that think of difference which would them, in litigant who lost type or the make.”); Joseph Hosp., v. St. State Walzer litigant’s a to determine whether order (8th Cir.2000) (apply- 231 F.3d it impaired? are Does rights” “substantial ing Martinez-Salazar to a Title VII ac- aggrieved whether the make a difference tion); Jordan, Cruz v. 357 F.3d or a medical cf. defendant party is criminal (2d Cir.2004) other (deciding issue on peremp one who lost malpractice plaintiff that “we no reason grounds noting but see giant corporation tory challenge, or why apply Martinez-Salazar would not five? lost claim”). Indeed, civil Kel- Cruz’s Justice Although majority opinion purports ler, accurately by identified who Thomas v. Common- only to overrule having majority opinion as first advanced (while; concluding that curiously, wealth Kentucky, this notion in assumed it would because, like rightly decided Thomas was cases, apply to both civil and criminal Motors, preju- the defendant was General grant to both the erroneous failure to has, fact, much), overruled diced too challenge for cause and the failure to allo- respect judicial history with our entire according to law. Sand peremptories cate crimi- challenges in civil and peremptory (Keller Hill, J., at 497-501 con- S.W.3d so, majority doing In nal27 cases. curring); Stopher v. delegated the allo- effectively (Keller, J., opinion has (Ky.2001) 808-17 challenges to trial of peremptory cation dissenting). majori- of the vast judges, the motivations Interestingly, Supreme the Alabama undoubtеdly exemplary. ty of whom are Court, which invoked Martinez-Salazar However, determination I believe that the deny peremptory challenge to a criminal peremptory allocation of proper of the Dailey, defendant 828 So.2d at in the hands of challenges should remain malpractice to a plaintiff medical Bethea the whims of one appellate courts where Springhill Hosp., Mem’l 833 So.2d 6- judge, or eccentric” “compliant, biased (Ala.2002), judge balked when a trial Louisiana, at Duncan v. erroneously challenges denied five be, 1451, if cannot alone one there S.Ct. products in a cause General Motors or her substantial deprive litigant of his action, liability thereby requiring the com challenges allowed right peremptory to the five of pany to use its nineteen I historical treatment by law. believe our jurors. those challenges to excuse Gen. right to the 646, of the Corp. Jernigan, Motors 883 So.2d (Ala.2003). by law as a substantial circumstance, allotted decisis. and a matter of stare rights both correct the court held that General Motors’s fifty-five Assembly took the General “substantially impaired.” Id. It had been (1877-1932) prede- our years abrogate un familiar? Does that mean that Sound bly peremptory strikes period that the denial of Except for the from 1877 to 1932 held error because inexplicably was harmless predecessor our court con- when guaranteed by Constitu- apply provisions Criminal strikes were not tinued to Dunbar, 853, abrogated period 809 S.W.2d repealed been and the tion. Code had Thomas, at 258-60. inexplica- to 1993 when this Court from 1991 counsel a point, cessor erroneous denial crimi- At that defense moved for court’s of a mistrial, During nal to the which was denied. cross- defendant’s examination, law. guaranteed by Today, attempted strikes this defense counsel by delving mitigate Court has not returned those “dark the situation further ages,” compounded has error into characterization of Cooper’s it the Sheriff in applying way bag. explained the denial a that affects the The sheriff that he had litigants, recently both and a seminar he civil criminal whether attended where defendant, plaintiff person corpora- bag or or learned that and the found the items Hopefully, require tion. it will not used to “stalk another inside could be someone.” conceded, however, fifty-five years egregious Cooper to correct this Sheriff that items, important error. camera and two a binocu- lars, the bag, were not found inside nor Accordingly, I dissent. bag Appellant’s possession was the in Further, time the of his arrest. Sheriff JOHNSTONE, J., joins opinion. this Coopеr agreed that the items were consis- LAMBERT, C.J., in joins the legal in a hunting tent with those often found analysis in opinion. set forth this fishing bag. opinion by Dissenting Justice Although focuses on the Commonwealth JOHNSTONE. requested a the fact that defense counsel I respectfully dissent from part that admonition, mistrial an I must rather than majority holding opinion Appel- that that an admonition agree Appellant with prejudiced by testimony lant was prejudicial effect would have cured Cooper and D.C. I Sheriff believe that “rape reference a Cooper’s Sheriff their, testimony the cumulative .effect Further, wholly disagree of. kit.” I with the denied a fair trial. I further Appellant majority simply opinion that because majority’s dissent opinion from the with case, any was not a mischaracteriza- rape respect issue to the tion of contents was harmless bag’s join Cooper’s dissent on that Justice Appellant’s and did con- not contribute issue. contrary, Sheriff Coo- victions. On conjunction in per’s testimony, considered testimony Cooper's

Sheriff testimony, amounted to error D.C.’s Appellant’s The that substan- majority clearly concludes because which affected a bag and its ad- him fair trial. camouflage rights contents were tial and denied objection, subject mitted without 9.24. RCr

fair, unfettered, .comment. apparently Testimony D.C.’s

I disagree. by the Com- during' Ap- During a examination bag, found search of direct residence, monwealth, night that pellant’s contained miscellane- D.C. testified twine, fluid, told her he had including lighter question, Appellant ous items book, cards, prior on at least one empty deck been her house address fact, sticks, that, he had pens glow military ra- occasion and been pencils, tions, sauce, County.” “hundreds in Ballard magnifying and a of houses Tabasco examination, objected again re- glass. prosecu- direct Defense counsel On trial court specifically Cooper quested tor if mistrial. The denied asked Sheriff motion, prosecutor bag, but advised had term for such to which mouth more it was her one responded “rape popped “[D.C.] Sheriff kit.” Commonwealth, 843 S.W.2d time,” Billings v. they trying again. the case would later, also Bell v. Com- Nonetheless, (Ky.1992); see several minutes D.C. monwealth, (Ky.1994). 875 S.W.2d 882 Appellant hav- made a second reference houses, fact that there damaging is the in hundreds of other al- Even more ing been a claim that support prosecutor attempted to cut was no evidence though the other hous- illegally had entered Appellant her off midsentence. Thus, testi- County. in Ballard D.C.’s es cross-examination, coun- During defense value, absolutely probative no mony had sel asked D.C. whether she was aware that jury and only to inflame the and served in Appellant prior had been her residence Appellant. further prejudice responded in night question. to the D.C. jury had re- Interestingly, after actually that she did not know whether he verdict, trailer, explained only in that he told the trial court had been her turned its evidentiary that Again, open her so. D.C. told in court several respect in “hundreds of Appellant rulings said he had been that had been made. With overruling County.” testimony, houses Ballard trial court com- to D.C.’s objection counsel’s to this third defense mented:

reference, the trial court ruled that counsel knowing I that position had taken the opened asking had the door D.C. you, you’ve got that sense most Appellant previous- whether she knew had you’ve got to take enough to know that ly disagree. in her trailer. I De- been you here on the everything that do solely question fense counsel’s was limited is, not some- proof, proof whatever the knowledge Appellant of whether D.C.’s had been body’s opinion of whether it residence, previously had been in her or two houses or five houses. 100 houses anyone that of else. consequence. no The issue was There’s boy broke into the whether or not this argues, and the ma- Commonwealth home of and did what [D.C.] mobile jority that agrees, Appellant because re- That’s proof here indicates that he did. fused the trial court’s offer of an admoni- peeping had into all. been Whether tion, complain he cannot now be heard to and houses or a bunch of other homes any I opinion, error. am of the howev- nothing whatsoever broke into them had er, only that an admonition would have any that have effect to do with it. Did by drawing further exacerbated the error you? any you did even any Or statement, attention to D.C.’s made not that notice statement? once, during but three times her testimo- ny. had respond did that he [or she] One taken note of D.C.’s statement.

Although agreed pri- the Commonwealth ma- Admittedly, perplexed I am or to trial not to introduce evidence of acts, not KRE testimony jority’s that conclusion that this was other crimes bad 404(b) evidence, but rather evidence Appellant allegedly had entered other under County unquestionably as a form of restraint houses Ballard intimidation 404(b). majority analogizes KRE 509.010. The falls within the arnblt of KRS Commonwealth, 838 criminal other than this case to Gilbert v. conduct “[EJvidence (Ky.1991), we held only proba- tried if wherein being is admissible to the defendant’s independent pertaining an issue of character that evidence tive of alcohol, marijuana, pornograph- predisposition, or criminal its use of showing how he outweighs ic movies was relevant to probative value on issue engage step-daughters forced his prejudice respect unfair to character.” Here, majority activity. adult sexual

opines Appellant told D.C. that he had

entered hundreds of houses Ballad

County to control and intimidate her.

Thus, majority that Appel- concludes weapon

lant’s much statement was as of a

as the and knife he used to re- shotgun vehemently disagree.

strain ID.C. majority recognize fails to absolutely Ap-

there was no evidence that actually had

pellant entered other houses or, County frankly, quite Ballard alleged

even made the statement to D.C.

Furthermore, clearly the Commonwealth Appellant’s

did not offer as evi- statement

dence of a “tool of domination” or “mental

restraint,” majority. as posited

Simply put, testimony was unsolicit- D.C.’s

ed, irrelevant, certainly prejudicial.

Moreover, testimony, coupled D.C.’s Cooper’s testimony, the in-

Sheriff created Appellant

ference that a habitual potential rapist,

stalker and characteriza- supported by

tion that was not the evi- presented

dence trial. Because the

Commonwealth introduced no other evi- activities, Appellant’s alleged

dence of

testimony question must be deemed re- error.

versible C.J., COOPER,

LAMBERT, J., join dissenting opinion. Director, Davis,

Bruce K. Executive Counsel, Gosnell, Dana Linda Bar Chief Counsel, Nickles, Bar Ken- Deputy Cox ASSOCIATION, BAR KENTUCKY Association, Frankfort, ‍‌‌‌‌‌‌‌‌‌‌​​​‌​​‌‌‌​‌‌‌‌‌‌‌‌​​​‌​‌‌‌‌‌​​​​​‌‌‌​​‍tucky Bar Counsel Movant, for Movant. NESBITT, Respondent. Kevin Lee Nesbitt, Danville, Respon- Kevin Lee dent. No. 2006-SC-0057-KB. Kentucky.

Supreme Court of AND OPINION ORDER April of the Ken- The Board of Governors has recommended tucky Bar Association notes neutral, a peremptory challenge legal find objectively while test that will measure judge Fayette County subjective may inherently find the underlie reasons that challenge a pretext same peremptory challenge!,]” discrimina- use of a Id. at 2340, tion. Notwithstanding subjectivity “it proposes necessary is to first-degree trespass 54. The criminal convic- D.C.’home in June of 2002. Morgan's prior entry tion stemmed from into 116 jury. trial an peremp- right impartial and the dant’s to reconsider Batson’s test See, Alabama, at tory challenge system e.g., as a whole.” Id. v. 380 U.S. Swain J., (Breyer, concurring). 202, 212-213, 218-219, 2344 85 13 S.Ct. (1965); v. L.Ed.2d 759 Pointer United I that will support changes While States, 151 14 S.Ct. U.S. I opinion, hope occur as a result of this (1894). long But 38 L.Ed. 208 we have may step be one closer the inevitable well, recognized, challenges as that such implosion of the current chal- right are unlike the to an auxiliary; reminded, lenge closing, I am system. impartial jury guaranteed by the Sixth discriminatory right “the free Amendment, challenges are protected constitutionally taint is —the not of federal constitutional dimension. is peremptory challenges to use not.” Ross, U.S., 2273, 101 487 108 S.Ct. J., (Breyer, concurring). Id. 80; see v. L.Ed.2d Stilson United States, Concurring Justice opinion ROACH. U.S. 40 S.Ct. (1919) (“There nothing L.Ed. agree I in the the result reached Constitution United States Court, Opinion separate I write but Congress to requires grant which I ly because believe that the discussion of peremptory challenges.”). Commonwealth, 864 S.W.2d Thomas (Ky.1993), Martinez-Salazar, and the historic treatment United States v. further attention. 774, 779, issue deserve U.S. S.Ct. Turpin overruled v. Common Thomas rising Rather than L.Ed.2d wealth, (Ky.1989), 780 S.W.2d 619 peremp- right, the level of Constitutional Dunbar v. 809 S.W.2d 852 merely tory are a means (Ky.1991), proclaimed Turpin right, namely another that of secure Ross, “premised Dunbar were a misunder jury. impartial Supreme standing of the United States are a (“They S.Ct. at 2278 means Oklahoma, Court decision Ross impartial jury. of an So achieve end U.S. 108 S.Ct. L.Ed.2d 80 long jury.that impartial, sits (1988).” Thomas, at 259. peremp- fact that a defendant had use

Case Details

Case Name: Morgan v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: May 18, 2006

Citation: 189 S.W.3d 99

Docket Number: 2003-SC-0489-MR

Court Abbreviation: Ky.