IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: FEBRUARY 24, 2022 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2020-SC-0485-MR
JAMES CROUCH APPELLANT
ON APPEAL FROM WARREN CIRCUIT COURT V. HONORABLE STEVE ALAN WILSON, JUDGE NO. 20-CR-00746
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
James Crouch was convicted of trespassing in the first degree, burglary
in the second degree, and being a persistent felony offender in the first degree
by a Warren County jury. He was sentenced to a total of twenty years’
imprisonment. He now appeals to this Court as a matter of right. See KY.
CONST. § 110(2)(b). After careful review of the record and arguments of the
parties, we affirm the Warren Circuit Court.
I. BACKGROUND
In the early morning of August 13, 2019, Alice Waddell, who lived in
Bowling Green, awoke in her bed to find a white man whom she did not know
standing in her bedroom. This man was of medium height, had dark hair, and was wearing a black or dark color t-shirt with a lighter color image or writing
on it. As she reached for her cell phone, the man grabbed it before she could
get to it. He did not threaten Waddell and did not hurt her. However, he either
said that there were other women in the area who might get hurt or said that
there were women in the area who were in danger. Waddell convinced the man
to leave, and she escorted him out of the home.
Waddell’s neighbor, Jonathan Bryant, had a surveillance camera that
pointed partially at the back of Waddell’s house. Footage from this surveillance
camera showed a man go over Waddell’s fence just after midnight on August
13. The man climbed on Waddell’s roof, removed a window screen, and went
into Waddell’s apartment through a second-floor window. The man remained in
Waddell’s apartment for four to five minutes before leaving through the same
window. As he was leaving her property, the man threw the window screen over
the fence. Approximately forty minutes later, the same man reentered the
apartment through the same window. The camera footage does not show the
man leaving, presumably because Waddell escorted him out of the front door of
her home. Waddell’s son testified that he subsequently found the window
screen in a dumpster behind Waddell’s apartment and provided it to the police.
The Bowling Green Police Department posted a portion of Bryant’s
surveillance camera footage on Facebook and other social media outlets
seeking tips to identify the man who entered Waddell’s apartment. Tips came in
identifying the man as various people. At least two tips came in identifying the
man as Appellant, James Crouch. Police also received tips from people who
2 believed they had interacted with the man on the video in the hours before the
incident but did not know his name. Two of these people were Cody Pruitt and
Taylor Curtis. Pruitt worked in a downtown Bowling Green office building and
believed he briefly spoke to the man shown in Bryant’s surveillance video in the
lobby of his office building in the early evening of August 12. Curtis worked at
a downtown Bowling Green law firm, which was located near where Pruitt
worked. She believed the man shown in Bryant’s surveillance video came into
the law office asking if they did criminal legal work.
Police obtained surveillance video from Pruitt’s office building showing a
man in the lobby between approximately 7:00 p.m. and 8:00 p.m. on August
12. In that video, the man spoke to the camera asking for a criminal lawyer to
come speak with him. The man was wearing shoes and a shirt that were
similar to those worn by the man in Bryant’s surveillance video. He also had a
white towel or t-shirt over his shoulder. The man in Bryant’s surveillance video
had a similar item hanging out of his pocket. Finally, the man in the office
building video had a face tattoo and arm tattoos that appeared similar to those
on the man in Bryant’s surveillance video.
Detective Matthew Wheat interviewed Crouch. Crouch admitted to police
that he was the man in the office building video but refused to talk about the
incident at Waddell’s apartment. He also made a comment about “women being
forced into things and taken away from their husbands.” Detective Wheat
believed this comment was similar to the comment made to Waddell by the
man who entered her apartment.
3 Crouch was eventually indicted on two counts of burglary in the second
degree (one for each entry into Waddell’s apartment), tampering with physical
evidence, and being a persistent felony offender in the first degree. He was
convicted by a Warren County jury of one count of the lesser-included offense
of trespass in the first degree, one count of burglary in the second degree, and
being a persistent felony offender in the first degree. He was sentenced to
twenty years’ imprisonment, consistent with the jury’s recommendation. We
discuss additional facts as needed for our analysis.
II. ANALYSIS
Crouch alleges the trial court committed five errors. First, he alleges the
trial court erred in denying his motion for a directed verdict on the charges of
burglary in the first degree. Second, he alleges the trial court erred in allowing
the lead detective to identify Crouch as the person on the surveillance video
footage outside of Waddell’s apartment. Third, he argues the trial court erred in
denying his motion to strike for cause a juror whose son was a Bowling Green
Police officer. Fourth, he argues the trial court erred in failing to provide a
representative jury. Finally, Crouch alleges cumulative error. We address each
allegation in turn.
A. Directed verdict
Crouch’s first allegation of error is that the trial court should have
granted his motion for a directed verdict on the charges1 of burglary in the
1 To the extent Crouch argues the trial court erred in denying his motion for a directed verdict on the first count of burglary, we will not review the issue. The jury found Crouch not guilty of the first count of burglary and instead found him guilty of 4 second degree. This issue was preserved by Crouch’s motion for a directed
verdict at the close of the Commonwealth’s case.
In Commonwealth v. Benham, we explained:
On a motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purposes of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.
816 S.W.2d 186, 187 (Ky. 1991). “To defeat a directed verdict motion, the
Commonwealth must only produce ‘more than a mere scintilla of evidence.’”
Lackey v. Commonwealth, 468 S.W.3d 348, 352 (Ky. 2015) (quoting
Benham, 816 S.W.2d at 187). Finally, “[o]n appellate review, the test of a
directed verdict is, if under the evidence as a whole, it would be clearly
unreasonable for a jury to find guilt, only then the defendant is entitled to a
directed verdict of acquittal.” Benham, 816 S.W.2d at 187.
Under KRS 511.030(1), “[a] person is guilty of burglary in
the second degree when, with the intent to commit a crime, he knowingly
enters or remains unlawfully in a dwelling.” Crouch argues that the
Commonwealth failed to meet its burden of proving that he had the intent to
commit a crime at the time he entered or was inside of Waddell’s apartment.
trespass. Any error by the trial court in denying his motion for directed verdict on this count would be harmless.
5 “It is well-settled that a jury may make reasonable inferences from the
evidence.” Blades v. Commonwealth, 957 S.W.2d 246, 250 (Ky. 1997) (citations
omitted). This Court has previously stated, in the context of whether a
defendant is entitled to a jury instruction on the lesser-included offense of
trespass in the first degree, that
[o]rdinarily, the Commonwealth need only show that the defendant entered or remained in the dwelling unlawfully. This showing permits the jury to infer intent to commit a crime. . . . Cf. Patterson v. Commonwealth, 251 Ky. 395, 65 S.W.2d 75 (1933), which illustrates the long-standing rule in burglary cases that proof of the act of entering creates the inference of criminal intent.
Commonwealth v. Sanders, 685 S.W.2d 557, 559 (Ky. 1985).
In the case at bar, viewing the evidence as a whole, it would not be
clearly unreasonable for a jury to believe Crouch possessed the intent to
commit a crime when he entered or remained in Waddell’s residence. The
Commonwealth presented evidence that prior to going into Waddell’s residence,
Crouch approached two different building doors and looked into a car in a
suspicious manner. It presented evidence that Crouch jumped over Waddell’s
locked back fence to gain access to Waddell’s property. The Commonwealth
also presented evidence that Crouch removed a window screen in order to gain
entry into Waddell’s apartment and then threw the screen over the fence and
disposed of it in a dumpster. The Commonwealth presented evidence that
Crouch entered Waddell’s residence for approximately five minutes, left the
residence, and entered again approximately a half hour later. The jury could
infer that after this first foray into Waddell’s apartment, Crouch knew the
apartment was occupied by a single woman, that the occupant was sleeping, 6 and that the apartment was full of belongings, many of which could be easily
carried away.
Further, each time he entered and exited the residence (other than his
final exit when he was escorted out the front door by Waddell), Crouch used
the second-floor window instead of a door. Crouch also took Waddell’s phone
when she reached for it, and he asked her not to call the police. This, by itself,
could have been a crime.2 Although he did not directly threaten Waddell,
Crouch stated that other women in the area may be in trouble, which could
have been perceived as an implicit threat. Finally, all of this occurred after
midnight when Waddell was sleeping, and Crouch likely knew she was sleeping
based on his first entry into the apartment. All of this evidence, when taken
together, was sufficient to allow a reasonable jury to infer that Crouch entered
or remained in Waddell’s apartment with the intent to commit a crime.
Accordingly, the trial court did not err in denying his motion for a directed
verdict on the burglary charge.
B. Identification of Crouch on the video
Crouch next argues that the trial court erred in allowing Detective
Matthew Wheat, the lead detective on the case, to identify Crouch as the
person shown on Bryant’s surveillance video. Crouch argues that this
testimony improperly went to the ultimate issue in the case and invaded the
2 KRS 438.210 makes it illegal to “willfully and maliciously prevent[], obstruct[] or delay[] the sending, transmission, conveyance or delivery in this state of any message, communication or report through any telegraph or telephone line, wire or cable.”
7 fact-finding function of the jury. Before reaching the merits of his argument,
however, we must determine whether this issue was properly preserved.3
Prior to trial, Crouch filed a motion in limine to prevent any witness from
identifying Crouch as the person shown on Bryant’s surveillance video. The
trial court granted Crouch’s motion as it related to law enforcement—ruling
that no law enforcement witnesses could identify Crouch on Bryant’s
surveillance video. However, when Det. Wheat identified Crouch during his
testimony at trial, Crouch failed to make a contemporaneous objection. Crouch
asserts that his motion in limine was sufficient to preserve the issue for appeal.
The Commonwealth, on the other hand, argues that a contemporaneous
objection was necessary.
Kentucky Rule of Criminal Procedures (RCr) 9.22 requires that a party
make a contemporaneous objection to preserve an issue for appeal. This rule
was modified, but not repealed, by Kentucky Rule of Evidence (KRE) 103(d),
which states, “A motion in limine resolved by order of record is sufficient to
preserve error for appellate review.” MV Transp., Inc. v. Allgeier, 433 S.W.3d
324, 331 (Ky. 2014). We have repeatedly held that “while a motion in limine is
a proper means for bringing evidentiary issues to the trial court’s attention, the
contemporaneous objection rule was still alive and well.” Jenkins v.
Commonwealth, 607 S.W.3d 601, 611–12 (Ky. 2020) (citing Lanham v.
Commonwealth, 171 S.W.3d 14, 20–21 (Ky. 2005)). “[T]he critical point in
3 Although Crouch argues that this issue was preserved, he also seeks palpable
error review if we find it unpreserved.
8 preservation of an issue remains: was the question fairly brought to the
attention of the trial court.” Allgeier, 433 S.W.3d at 331 (citing Davis v.
Commonwealth, 147 S.W.3d 709, 722–23 (Ky. 2004)).
In Allgeier, the trial court made a pretrial ruling that a certain piece of
evidence could only be admitted to impeach a witness’s credibility but did not
specifically address whether the evidence could be used as substantive
evidence. Id. at 330–31. However, during the trial, the evidence was used for
substantive purposes and no contemporaneous objection was made. Id. We
concluded that the issue was not properly preserved, stating, “Having
established in advance of trial the parameters for which admissible evidence
may be used, the trial judge cannot be expected to then infallibly recognize the
point at which those evidentiary boundaries have been crossed, and
respond sua sponte with an unsolicited ruling.” Id. at 332.
Although the admissibility of the evidence for substantive purposes was
not as clearly decided in Allgeier as was the limitation in this case, our analysis
and reasoning do not change. In Allgeier, we explained, “A jury trial is a
difficult and often complex undertaking. Like intricate machinery, it has many
moving parts. The presiding judge is required to monitor those parts
throughout the trial, remaining simultaneously attentive to a number of
ongoing concerns.” Id. Just as in Allgeier, we cannot expect the trial judge in
this case to “infallibly recognize the point at which those evidentiary
boundaries have been crossed, and respond sua sponte with an unsolicited
ruling.” Id. Accordingly, we hold that any objection to Det. Wheat’s
9 identification of Crouch on the surveillance video was not properly preserved
for our review. See also Long v. Commonwealth, 2010-SC-000801-MR, 2011 WL
6826377, at *3 n.3 (Ky. Dec. 22, 2011) (“[A] party obviously may not obtain a
successful pretrial ruling, acquiesce to the breach of the ruling at trial by
failing to object to the violation, and then blithely claim preservation based
upon the pretrial ruling. KRE 103(d) does not excuse a party from its duty to
contemporaneously bring errors to the trial court's attention in the event the
pretrial ruling is violated.”).
Evidentiary rulings by the trial court are reviewed for an abuse of
discretion. Little v. Commonwealth, 272 S.W.3d 180, 187 (Ky. 2008). A trial
court abuses its discretion only where its decision is “arbitrary, unreasonable,
unfair, or unsupported by sound legal principles.” Commonwealth v. English,
993 S.W.2d 941, 945 (Ky. 1999). However, because this issue is unpreserved,
we will only reverse if it rises to the level of palpable error and affects the
substantial rights of a party. RCr 10.26. “For an error to rise to the level of
palpable, it must be easily perceptible, plain, obvious and readily
noticeable. Generally, a palpable error affects the substantial rights of the party
only if it is more likely than ordinary error to have affected the judgment.”
Martin v. Commonwealth, 409 S.W.3d 340, 344 (Ky. 2013) (internal citations
and quotation marks omitted). Even then, relief is appropriate only “upon a
determination that manifest injustice resulted from the error.” RCr 10.26.
10 Crouch points to two specific statements made by Det. Wheat which
Crouch claims were an improper identification of him. In the first, Det. Wheat
testified,
I was 100% convinced, there was no doubt in my mind at that point that Mr. Crouch was the person that we had seen on those cameras. At that time, I responded to the Commonwealth’s Attorney’s Office and presented these facts to an attorney, and an arrest warrant was typed up for two counts of burglary second. That was then presented to a district judge, and that warrant was signed and issued for his arrest that afternoon.
Crouch argues that this particular identification was unfairly bolstered and
made more prejudicial by Det. Wheat’s testimony regarding the
Commonwealth’s Attorney and the district judge. He asserts that Det. Wheat’s
testimony allowed the jury to infer that both the Commonwealth’s Attorney and
the district judge agreed with Det. Wheat’s conclusion that Crouch was the
person in the video.
The second statement made by Det. Wheat about which Crouch
complains is: “This is the surveillance video that we obtained from Mr. Bryant,
which shows Mr. Crouch as he extends his arms to climb over Ms. Waddell’s
fence.” Crouch argues that Det. Wheat’s identification of him was further and
unfairly bolstered by Det. Wheat’s additional testimony. Det. Wheat testified
that another detective from the Bowling Green Police Department, Det. Tim
Buss, who has a specialty in digital investigations, agreed that Crouch was the
person shown in Bryant’s surveillance video. In fact, Det. Buss’s testimony at
trial was not that explicit.
11 Finally, Crouch argues that Det. Wheat further bolstered his own
improper testimony by stating that he was “very confident” from early in the
investigation that Crouch was the suspect and that he had “no doubt in [his]
mind” that Crouch was the person shown in Bryant’s surveillance video.
Crouch argues that the cumulative effect of this testimony made it so that Det.
Wheat’s improper identification of him was not harmless and resulted in
manifest injustice.
This Court has previously held that a witness is permitted to make an
identification from photographs and videos, “particularly when the witness is in
a position to make an identification based on personal knowledge that is not
available to the jury.” Boyd v. Commonwealth, 439 S.W.3d 126, 132 (Ky. 2014)
(citing Morgan v. Commonwealth, 421 S.W.3d 388, 392 (Ky. 2014); United
States v. White, 639 F.3d 331, 336 (7th Cir. 2011)). KRE 602 and 701 govern
the admission of this evidence. Under KRE 602, a witness must have “personal
knowledge before being allowed to testify about a subject.” Morgan, 421 S.W.3d
at 392. Under KRE 701, opinion testimony by a lay witness must be
“[r]ationally based on the perception of the witness; [and] . . . [h]elpful to a clear
understanding of the witness’ testimony or the determination of a fact in
issue.”
In this case, Det. Wheat based his identifications of Crouch on his
personal interactions with Crouch in the days after the burglary. Immediately
prior to the first statement that Crouch alleges is an improper identification,
Det. Wheat stated that he identified Crouch’s voice in the office building video
12 based on Det. Wheat’s personal interaction with Crouch earlier that day. Det.
Wheat stated that Crouch had a limp during his previous interaction with him.
Det. Wheat noticed that the subject in the office building video also had a limp.
Det. Wheat also pointed out numerous similarities between the person shown
in the office building video and the person shown in Bryant’s surveillance
video. Based on all of those factors, including personal knowledge that was not
available to the jury that he gained in his interaction with Crouch, Det. Wheat
was convinced that Crouch was the person in Bryant’s surveillance video.
Further, this testimony explained the course of the investigation and why
Crouch continued to be a suspect. The trial court thus did not abuse its
discretion in permitting Det. Wheat to testify regarding Crouch’s identity in
Bryant’s surveillance video.
The second identification made by Det. Wheat came much later in his
testimony, when he was describing screenshots he and Det. Buss had taken
from Bryant’s surveillance video for comparison purposes. In describing one of
the screenshots, he stated that the image showed Crouch reaching his arm up
to climb over Waddell’s fence. This technically identified Crouch. However, this
statement is more accurately classified as a description of the photo rather
than a substantive identification. To the extent it was an identification, the trial
court did not abuse its discretion in admitting the evidence for the same
reasons it did not abuse its discretion in admitting the other identification.
Accordingly, we find no error. Because we find no error, we need not determine
13 if Det. Wheat’s bolstering of his own testimony created additional improper
prejudice.
C. For cause strike of juror
Crouch next argues that the trial court erred in denying his motion to
strike a prospective juror for cause. Specifically, Crouch argues the trial court
should have struck this juror because her son is a police officer at the Bowling
Green Police Department, the same police department that investigated
Crouch’s case. Crouch acknowledges that this issue is not preserved and
requests palpable error review under RCr 10.26.4
At the beginning of voir dire, the juror at issue stated that her son was a
Bowling Green Police officer. The trial court asked the juror if that fact would
affect her ability to listen to the case. She said it would not. About fifteen
minutes later in the voir dire, the juror acknowledged that she recognized some
of the names of witnesses who worked for the Bowling Green Police
Department. The trial court then asked the juror if she “would have any
discomfort in finding Mr. Crouch not guilty if you did not believe the
Commonwealth met its burden of proof beyond a reasonable doubt.” Although
much of her response was too difficult to hear, the juror stated that she “would
need to be fair.” The juror was not questioned any further by either party
regarding this issue.
4 Crouch failed to indicate in writing on his strike sheet whom he would have
struck had he not been forced to use a peremptory strike on the juror he believed should have been struck for cause. Instead, he only stated the information orally. This violates our preservation rules. See Floyd v. Neal, 590 S.W.3d 245, 250 (Ky. 2019). To the extent Crouch requests we loosen our preservation requirements, we decline to do so.
14 Under the Sixth and Fourteenth Amendments to the United States
Constitution and Section 11 of the Kentucky Constitution, a criminal
defendant is entitled to an impartial jury. RCr 9.36(1) provides “the standard
by which trial courts are to decide whether a juror must be excused for cause.”
Sturgeon v. Commonwealth, 521 S.W.3d 189, 193 (Ky. 2017). Under that rule,
“[w]hen there is reasonable ground to believe that a prospective juror cannot
render a fair and impartial verdict on the evidence, that juror shall be excused
as not qualified.” RCr 9.36(1). “[W]hether to excuse a juror for cause rests upon
the sound discretion of the trial court.” Sturgeon, 521 S.W.3d at 192.
Regarding juror relationships with the case and the parties, “this Court
has identified numerous relationships where bias may be implied despite the
juror’s ability to remain impartial.” Edmondson v. Commonwealth, 526 S.W.3d
78, 84 (Ky. 2017) (citing Ward v. Commonwealth, 695 S.W.2d 404, 407 (Ky.
1985)). “When these close relationships are identified, the juror should be
excused for cause since he or she is ‘so susceptible to the relationship as to be
predisposed to be more (or less) critical of one side’s evidence than the other’s.’”
Id. (quoting Futrell v. Commonwealth, 471 S.W.3d 258, 272 (Ky. 2015)).
A close relationship with a police officer, however, is not a relationship
that creates this presumptive bias. Brown v. Commonwealth, 313 S.W.3d 577,
597 (Ky. 2010) (citing Penman v. Commonwealth, 194 S.W.3d 237 (Ky. 2006)).
In such cases, we require “additional evidence of bias [such] as the prospective
juror’s personal acquaintance with the officers involved in the investigation of
the case being tried, or his assertion during voir dire that police officers are
15 less apt than other witnesses to lie because they take their oaths more
seriously.” Id. (citing Shane v. Commonwealth, 243 S.W.3d 336 (Ky. 2007)).
Because there is no presumptive bias, “[t]he court must weigh the probability
of bias or prejudice based on the entirety of the juror’s responses and
demeanor. There is no ‘magic question’ that can rehabilitate a juror as
impartiality is not a technical question but a state of mind.” Id. (citing United
States v. Wood, 299 U.S. 123 (1936); Pennington v. Commonwealth, 316 S.W.2d
221 (Ky. 1958)).
In this case, the juror at issue was not a member of law enforcement
herself. Her son was a police officer at the same police department as that
which investigated Crouch. There was no indication that her son was involved
in Crouch’s investigation in any way. The juror acknowledged that she
recognized the names of some of the officers involved in Crouch’s investigation,
but she did not indicate that (and was not asked whether) she was personally
acquainted with any of them. She did not indicate that she would trust police
officers more than other witnesses. Instead, when asked, she explained that
she understood that she would have to be fair. We cannot say that the trial
court abused its discretion in failing to find a “reasonable ground to believe
that [the] prospective juror [could] not render a fair and impartial verdict on the
evidence.” RCr 9.36(1). Thus, the trial court did not err by refusing to strike the
juror for cause.
16 D. Representative jury
Crouch next argues that the trial court erred in failing to provide him
with a representative jury.5 This argument is preserved by pretrial motion. We
will review the trial court’s actions on this issue for an abuse of discretion.
Miller v. Commonwealth, 394 S.W.3d 402, 405 (Ky. 2011) (citing Ratliff v.
Commonwealth, 194 S.W.3d 258 (Ky. 2006)); see also Brown v. Commonwealth,
313 S.W.3d 577, 596 (Ky. 2010) (“[T]he trial court is vested with broad
discretion to oversee the entire [jury selection] process, from summoning the
venire to choosing the petit jury which actually hears and decides the case.”).
Prior to Crouch’s trial, 375 summonses were sent out to potential jurors.
Ninety-one potential jurors did not respond to the summonses, and of those
that responded, 67 potential jurors were deemed qualified. Of those that
qualified for jury service, none were people of color. According to Crouch,
people of color make up 17% of Warren County’s population. Crouch objected
to the jury pool, arguing that because there were no non-white people in the
pool, it was not a representative jury. Crouch asked the trial court to send the
Sheriff’s Office to contact those potential jurors who did not respond to the
summonses to gather additional responses. The trial court, despite having
done this in the past, declined to do so on this occasion.
5 Although Crouch is white, he has standing to challenge the exclusion of non- white people from his jury pool. Peters v. Kiff, 407 U.S. 493, 504 (1972) (“[W]hatever his race, a criminal defendant has standing to challenge the system used to select his grand or petit jury, on the ground that it arbitrarily excludes from service the members of any race, and thereby denies him due process of law.”).
17 The Sixth and Fourteenth Amendments to the United States Constitution
entitle defendants to an impartial jury drawn “from a fair cross section of the
community.” Duren v. State of Missouri, 439 U.S. 357, 359 (1979) (citing Taylor
v. Louisiana, 419 U.S. 522 (1975)). However, “[d]efendants are not entitled to a
jury of any particular composition.” Taylor, 419 U.S. at 538. Instead, “the jury
wheels, pools of names, panels, or venires from which juries are drawn must
not systematically exclude distinctive groups in the community and thereby fail
to be reasonably representative thereof.” Id. In order to establish a prima facie
violation of his right to a representative jury, a defendant must show:
(1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.
Rodgers v. Commonwealth, 285 S.W.3d 740, 759 (Ky. 2009) (quoting Duren,
439 U.S. at 364).
We have previously held that African Americans “constitute a distinctive
group for jury selection purposes,” and we believe that the same holds true for
the more general category of “people of color.” However, Crouch has not met his
burden to show that people of color are generally or regularly “unfairly and
unreasonably underrepresented” on Warren County jury panels. Miller v.
Commonwealth, 394 S.W.3d 402, 410 (Ky. 2011). Nor has he “provide[d] any
proof that the alleged underrepresentation is due to systemic exclusion.” Id. “It
is not enough to merely allege a particular jury failed to represent the
18 community. ‘A showing of underrepresentation must be predicated on more
than mere guesswork. Such a showing requires competent proof (usually
statistical in nature).’” Id. at 409 (quoting United States v. Lara, 181 F.3d 183,
192 (1st Cir. 1999)). Crouch has made no such showing. Accordingly, the trial
court did not err when it overruled Crouch’s objection to the jury panel.
We further note that, according to the trial court, Crouch’s trial was only
the second trial to be held in the Commonwealth after the court system
reopened during the first year of the Covid-19 pandemic. Given the
circumstances of the pandemic, as well as Crouch’s unwavering request for a
fast and speedy trial, we cannot hold that the trial court abused its discretion
in refusing Crouch’s request to send the Sheriff out to gather responses from
those potential jurors who did not respond to the summonses. Accordingly, we
find no error on this issue.
E. Cumulative error
Finally, Crouch argues his conviction should be reversed due to
cumulative error. Under the cumulative error doctrine, “multiple errors,
although harmless individually, may be deemed reversible if their cumulative
effect is to render the trial fundamentally unfair.” Brown v. Commonwealth, 313
S.W.3d 577, 631 (Ky. 2010). Because we have found no errors, there cannot be
cumulative error.
19 III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the Warren Circuit
Court.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Robert Chung-Hua Yang Department of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel J. Cameron Attorney General of Kentucky
Aspen Caroline Carlisle Roberts Assistant Attorney General