Gamble v. Commonwealth

68 S.W.3d 367, 2002 Ky. LEXIS 16, 2002 WL 337070
CourtKentucky Supreme Court
DecidedFebruary 21, 2002
Docket1999-SC-0567-MR
StatusPublished
Cited by22 cases

This text of 68 S.W.3d 367 (Gamble v. Commonwealth) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gamble v. Commonwealth, 68 S.W.3d 367, 2002 Ky. LEXIS 16, 2002 WL 337070 (Ky. 2002).

Opinions

[370]*370STUMBO, Justice.

Appellant, Bennie L. Gamble, Jr., was convicted in the McCracken Circuit Court of murder and first-degree robbery and sentenced to life in prison. Gamble appeals his conviction, alleging that: (1) peremptory strikes were improperly used by the prosecution during jury selection to exclude African-Americans from the jury, violating Appellant’s right to Equal Protection; (2) the trial court committed reversible error in refusing to excuse two jurors with racist views for cause, compelling Appellant to exercise peremptory challenges on incompetent jurors; (3) Appellant’s motion to be tried separately from his co-defendant was improperly denied; and (4) the trial court improperly refused to grant a mistrial following prejudicial testimony that Appellant had terminated his interview with police, prejudicial comments and cross-examination by co-defendant Bradley’s attorneys, and misconduct by the trial judge during Appellant’s testimony. Because we find the trial court erred in its ruling as to the second issue, we reverse and remand for a new trial.

FACTS

Appellant, Chasidy Bradley and Barbara Neill were arrested for the September 23, 1997 robbery and murder of William Tol-bert. While Appellant maintained his innocence, Bradley and Neill gave statements about their involvement, as well as Appellant’s, in the crimes. Neill eventually pled guilty to the murder and robbery and testified against Bradley and Appellant in exchange for a recommended sentence of twenty-five (25) years in prison. Bradley and Gamble were tried together.

Neill essentially testified that she and Bradley had originally planned to kill Tol-bert for his money. They were unable to go through with their plan alone and recruited Appellant, who was living with Bradley, to help. Neill indicated that the women, who knew Tolbert, went to his house and distracted him by performing oral sex on him. While they were so engaged, one of the women slipped to the back of the house and let Appellant in the back door. Neill indicated that, after an attempt to cut Tolbert’s throat failed, Appellant, with Neill’s assistance, strangled him with a telephone cord and belt.

COMMONWEALTH’S USE OF PEREMPTORY STRIKES

Appellant is African-American, while the victim was Caucasian, as are Bradley and Neill. Of the thirty-three (33) prospective jurors called in Appellant and Bradley’s case, four were African-American. The Commonwealth used its peremptory challenges to strike three of the four African-Americans from the jury and Appellant challenged the Commonwealth’s use of peremptory strikes as racially motivated. Before the jury was sworn, the trial judge overruled Appellant’s objection to the Commonwealth’s use of its peremptory challenges.

The Commonwealth indicated at the bench conference that prospective Juror # 52 had been stricken because the prosecutor had tried a murder case against her son, who was ultimately convicted of murder. Prospective Juror # 40 was stricken because her brother had successfully sued, and recovered a judgment against a police officer, and/or department, for false arrest. Finally, the Commonwealth asserted that prospective Juror # 66 was stricken because she had been approached by a witness in the case and had spoken about the case, and she had recently been stopped by Paducah police and charged with a series of traffic offenses. Appellant asserted then, and now, that those reasons were merely pretextual, noting that none [371]*371of these issues were raised by the Commonwealth during voir dire. Also, prospective Juror # 40 was questioned about her ability to be fair if she served on the jury and she repeatedly indicated that she could be fair.

The Commonwealth argues that this issue has not been properly preserved, as the objection was not raised until after the prospective jurors who had been stricken had been discharged and had left the courtroom. This assertion is without merit. The Commonwealth cites Simmons v. Commonwealth, Ky., 746 S.W.2d 393 (1988), wherein a Batson challenge was held to be untimely where defense counsel specifically stated that he had no objection to the jury, the prospective jurors who were not chosen for the jury had been discharged, and the jury had been sworn. In the case at bar, the names of the fourteen (14) jurors were called, immediately after which the trial judge began to thank the potential jurors who were not selected and to discuss his own experiences as a juror. Appellant raised the objection as soon as was practicable, under the circumstances, and before the jury had been sworn. Washington v. Commonwealth, Ky., 34 S.W.3d 376 (2000). Thus, the objection was timely and the issue was properly preserved for appeal.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) the United States Supreme Court outlined a three-step process for evaluating claims that prospective jurors were stricken on the basis of race in violation of the Equal Protection Clause. “First, the defendant must make a prima facie showing of racial bias for the peremptory challenge. Second, if the requisite showing has been made, the burden shifts to the Commonwealth to articulate ‘clear and reasonably specific’ race-neutral reasons for its use of a peremptory challenge. While the reasons need not rise to the level justifying a challenge for cause, ‘self-serving explanations based on intuition or disclaimer of discriminatory motive’ are insufficient. Stanford v. Commonwealth, Ky., 793 S.W.2d 112, 114 (1990) (quoting Batson, supra, at 98, 106 S.Ct. 1712). Finally, the trial court has the duty to evaluate the credibility of the proffered reasons and determine if the defendant has established purposeful discrimination.” Washington v. Commonwealth, Ky., 34 S.W.3d 376 (2000). “A judge cannot merely accept the reasons proffered at face value, but must evaluate those reasons as he or she would weigh any disputed fact. In order to permit the questioned challenge, the trial judge must conclude that the proffered reasons are, first, neutral and reasonable, and second, not a pretext. These two requirements are necessary to demonstrate ‘clear and reasonably specific ... legitimate reasons.’ ” Wright v. State, 586 So.2d 1024 (Fla.1991). (quoting State v. Slappy, 522 So.2d 18 (Fla.1987)).

With respect to the first prong of the Batson test, this Court has found that once the Commonwealth has offered a race-neutral explanation for the peremptory challenge and the trial court has ruled on the ultimate issue of discrimination, the preliminary issue of whether the defendant has made a prima facie showing is moot. Commonwealth v. Snodgrass, Ky., 831 S.W.2d 176 (1992). (citing Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)). Thus, the first prong of Batson has been rendered moot by the circumstances herein.

The Commonwealth has clearly met the second prong of the Batson three-prong test.

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Bluebook (online)
68 S.W.3d 367, 2002 Ky. LEXIS 16, 2002 WL 337070, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gamble-v-commonwealth-ky-2002.