Chesher v. Commonwealth

485 S.W.3d 347, 2016 Ky. App. LEXIS 25, 2016 WL 834306
CourtCourt of Appeals of Kentucky
DecidedMarch 4, 2016
DocketNO. 2014-CA-000759-MR
StatusPublished

This text of 485 S.W.3d 347 (Chesher v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chesher v. Commonwealth, 485 S.W.3d 347, 2016 Ky. App. LEXIS 25, 2016 WL 834306 (Ky. Ct. App. 2016).

Opinion

OPINION

LAMBERT, J., JUDGE:

William Chesher has directly appealed from the final judgment , of the Metcalfe Circuit Court convicting him of first-degree manslaughter and tampering with physical evidence, and sentencing him to a total of eighteen years’ imprisonment. On appeal, Chesher seeks review of the circuit court’s denial of his Batson1 challenge and the introduction of testimony from a police officer. Having carefully reviewed 'the record and the parties’ arguments in their briefs, we affirm.

On the morning of June 4, 2013, Chesher went to the home of Ronnie and Karen Hiser in Edmonton, Kentucky. Chesher and Karen had been communicating through Facebook, text messages, and telephone conversations over the previous six months, and they had entered into a sexual affair in the weeks prior to that date. Karen told Chesher that she had not been happy in her marriage to Ronnie since her son passed away nine years ago and that she intended to leave him. The police had responded to several domestic abuse calls due to arguments between Karen and Ronnie, but Karen did not express any fear of him. Claiming to believe that Ronnie had been abusing and intended to kill Karen, despite her explanations for hér various injuries that did not involve Ronnie, Chesher went to the Hiser residence to get Karen. Instead, Chesher shot Ronnie between his eyes through the storm door. Ronnie passed away from the gunshot wound the next day. Kentucky State Police responded to a 911 call at the residence after the shooting, and Karen identified Chesher as the shooter. Chesher left the scene after the shooting and threw the weapon in a pond. Upon questioning by the police, Chesher admitted to [349]*349shooting Ronnie once in the head and disposing of the' weapon, which the police later recovered in the pond, Chesher was arrested for first-degree assault1 and tampering with physical evidence. After Ronnie’s death, Chesher was arrested for his murder. •

On the basis of these facts, the Metcalfe County grand jury indicted- Chesher on charges of murder pursuant to Kentucky Revised Statutes (KRS) 507.020 and of tampering with physical evidence pursuant to KRS 524.100. Following a trial, where Chesher presented the defenses of self-protection and protection of another, the jury found Chesher guilty of the lesser-included crime of first-degree manslaughter and tampering with physical evidence for disposing of the gun. The jury recommended a fifteen-year sentence on the manslaughter -conviction and a three-year sentence on the tampering with physical evidence conviction to run consecutively for a total of eighteen years. The circuit court entered a judgment finding Chesher guilty and sentencing him in accordance with the jury’s recommendation. This direct appeal now follows.

On appeal,. Chesher raises three issues; The first issue addresses the propriety of the circuit court’s ruling on his second Batson challenge. The second and third issues address the testimony of Officer Maxwell. One argument posits that the Commonwealth elicited improper bolstering testimony from him with regard to Karen’s credibility, and the other posits that the officer was an unannounced witness who should not have been called without first determining whether the jurors had any connection to him.

First we shall address Chesher’s Batson argument. Chesher asserts that the Commonwealth violated Batson’s prohibition against purposeful discrimination when the prosecutor struck an African-American female from the jury1 using a peremptory strike. When Chesher objected to the striking of this juror, the court clerk stated that she (the juror) had not made any statements. The prosecutor pointed' out that two African-Americans remained. in the jury pool after striking this juror, meaning that the' decision to strike her was not based upon her race. The prosecutor stated instead that she was stricken based upon her demeanor during‘the voir dire process, noting -that she did not appear to be interested in the proceedings. In response, Chesher responded that several members of-the jury had been staring into space. The circuit court ultimately determined that the prosecutor had provided a racially neutral reason for striking this juror and denied Chesher’s Batson challenge.

In McPherson v. Commonwealth, 171 S.W.3d 1, 2-3 (Ky.2005), the Supreme Court of Kentucky addressed the law, surrounding equal protection and the use of peremptory strikes, summarizing this area of the law as follows:

■ A prosecutor’s purposeful discrimination in jury selection violates the Fourteenth Amendment’s- equal protection clause; - Though initially invoked to challenge discrimination based on race, the Amendment’s protections extend to discrimination based on gender.
A three-prong inquiry aids in determining whether a prosecutor’s use of peremptory strikes -violated the equal protection -clause'. Initially, discrimination may be inferred from the totality of relevant facts associated with a prosecutor’s conduct during a defendant’s trial. The second prong requires a prosecutor to offer a neutral explanation for challenging those jurors in the protected class. Finally, the trial - court must assess the plausibility of the prosecutor’s explanations in light of all relevant evi[350]*350dence and determine whether the proffered reasons are legitimate or simply pretextual for discrimination against the targeted class. [Citations in footnotes omitted.]

See also Saylor v. Commonwealth, 144 S.W.3d 812, 816 (Ky.2004) (“Although Appellant is Caucasian, it is well settled that he has standing to raise the Equal Protection issue. Campbell v. Louisiana, 523 U.S. 392, 118 S.Ct. 1419, 140 L.Ed.2d 551 (1998); Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991).”). We also recognize that a “trial court’s decision is entitled to great deference[,]” McPherson, 171 S.W.3d at 3, and “will not be disturbed unless clearly erroneous.” Washington v. Commonwealth, 34 S.W.3d 376, 380 (Ky.2000).

We must agree with the Commonwealth that Chesher failed to make a pri-ma facie showing of purposeful discrimination because two African-Americans remained in the jury pool after this particular juror was stricken. Therefore, he failed in his burden of establishing a Bat-son violation. Even if he had met this burden of showing purposeful discrimination, the Commonwealth offered a race-neutral reason for striking her, which was her demeanor and lack of interest in the proceedings. While Chesher argues that the circuit court failed to address the third prong and assess the plausibility of the prosecutor’s explanation, this consideration is implicit in the court’s decision to deny the Batson challenge.

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Related

Batson v. Kentucky
476 U.S. 79 (Supreme Court, 1986)
Powers v. Ohio
499 U.S. 400 (Supreme Court, 1991)
Campbell v. Louisiana
523 U.S. 392 (Supreme Court, 1998)
Norris v. Commonwealth
89 S.W.3d 411 (Kentucky Supreme Court, 2002)
Metcalf v. Commonwealth
158 S.W.3d 740 (Kentucky Supreme Court, 2005)
McPherson v. Commonwealth
171 S.W.3d 1 (Kentucky Supreme Court, 2005)
Hall v. Commonwealth
862 S.W.2d 321 (Kentucky Supreme Court, 1993)
Collins v. Galbraith
494 S.W.2d 527 (Court of Appeals of Kentucky (pre-1976), 1973)
Commonwealth v. English
993 S.W.2d 941 (Kentucky Supreme Court, 1999)
Sanborn v. Commonwealth
892 S.W.2d 542 (Kentucky Supreme Court, 1995)
Peyton v. Commonwealth
253 S.W.3d 504 (Kentucky Supreme Court, 2008)
Saylor v. Commonwealth
144 S.W.3d 812 (Kentucky Supreme Court, 2004)
Hellstrom v. Commonwealth
825 S.W.2d 612 (Kentucky Supreme Court, 1992)
Stringer v. Commonwealth
956 S.W.2d 883 (Kentucky Supreme Court, 1997)
Washington v. Commonwealth
34 S.W.3d 376 (Kentucky Supreme Court, 2000)
McDaniel v. Commonwealth
415 S.W.3d 643 (Kentucky Supreme Court, 2013)

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Bluebook (online)
485 S.W.3d 347, 2016 Ky. App. LEXIS 25, 2016 WL 834306, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chesher-v-commonwealth-kyctapp-2016.