IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. 2019-SC-000274-MR
DANIEL GENE PERDUE
ON APPEAL FROM CALDWELL CIRCUIT COURT V. HONORABLE CLARENCE A. WOODALL III, JUDGE NO. 18-CR-00057
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A Caldwell Circuit Court jury convicted Daniel Gene Perdue of two
counts of third-degree burglary, one count of theft by unlawful taking over
$500 or more, one count of second-degree fleeing and evading police, and of
being a first-degree persistent felony offender. Perdue was sentenced in
accordance with the jury’s recommendation to twenty years’ imprisonment and
now appeals to this Court as a matter of right. Ky. Const. §110(2) (b).
Perdue asserts the trial court erred in overruling his challenge under
Batson v. Kentucky, 476 U.S. 79 (1986) to the Commonwealth’s use of
peremptory strikes to remove two African American jurors.
For the following reasons, we affirm Perdue’s conviction and sentence.
I. BACKGROUND
Perdue’s sole claim of error is the trial court’s denial of his Batson
challenge. Perdue is a white male and the two jurors in question were African American. Perdue alleges no claims of error outside of voir dire. Therefore, our
review will focus entirely on jury selection.
The video record in this case makes it difficult to view the jury pool in
this case—and deliberately so. The cameras in our courtrooms are
intentionally set to avoid showing the jury pool or jury box. Therefore, the
panel of potential jurors called to try the case is never shown on the video.
Without a view of the jury pool, it is not possible to observe juror facial or
bodily reactions to counsel’s questions. It is, with few exceptions, not possible
to discern which jurors raised their hands in response to a question. Counsel’s
attention on a juror is not possible to discern. Only those jurors who
participated in individual bench discussions and questioning are shown, and
those jurors did not include numbers 308 and 113—the two jurors in question.
Juror 308 is female and Juror 113 is male.
During group voir dire, the Commonwealth asked if any juror had a
family member who had been represented by the defense counsel for Perdue.
Juror 308 raised her hand and was acknowledged by her name and confirmed
that defense counsel’s prior representation of her son would have no effect on
her as a juror in this case. As the jurors are not visible on the video record
during group questioning, these few questions and answers comprised the
responses attributable to Juror 308. Likewise, Juror 113 was not shown
responding to any group voir dire questions.
After strike sheets were turned in, Perdue’s counsel made a Batson
challenge to the Commonwealth striking jurors 308 and 113. In making his
2 motion, Perdue’s counsel said he assumed the Commonwealth would make the
same argument concerning Juror 308 that it made at a trial the previous day.
The argument centered on Juror 308’s son, who had been prosecuted several
times by the local Commonwealth’s Attorney’s office. In fact, Juror 308’s son
had been tried by the same Assistant Commonwealth’s Attorney who was
representing the Commonwealth in Perdue’s trial. The juror’s son had been
represented in several cases by the same defense counsel who represented
Perdue at trial.
The prosecutor affirmed that was her argument for striking Juror 308
and added that the lead officer at Perdue’s trial had also investigated Juror
308’s son in other cases. The prosecutor noted that at the previous trial she
had prepared and presented a chart of indictments for Juror 308’s son and
marked those cases where she prosecuted him and defense counsel defended
him. The prosecutor’s concern was the juror’s familiarity with the lawyers and
her son’s prior involvement with Perdue’s lead investigating officer. The
Commonwealth’s Attorney was wary of how Juror 308 would be affected by her
son’s history-despite her saying that his prior representation by Perdue’s
counsel would have no effect on her.
We note the chart referenced by the Commonwealth’s Attorney listing
those prior indictments was not included in the record in this case. The
indictments she mentioned were not listed by case number and Juror 308 was
not asked questions about those cases. Juror 308 was not asked how she felt
about her son’s prosecutions, nor was she asked about the defense he received
3 in those cases. As far as this record reveals, during voir dire, Juror 308
responded to one area of inquiry by the Commonwealth by raising her hand
and saying her son’s prior history with defense counsel would not affect her.
Perdue’s counsel also moved to set aside the Commonwealth’s strike of
Juror 113, who did not respond to any questions during voir dire. The
Commonwealth claimed that the juror lived with a relative, possibly an uncle,
who was a registered sex offender and had other court problems including a
prior felony probation revocation. Juror 113 also had a first cousin who had
been prosecuted by the Commonwealth’s Attorney’s office on several occasions.
The Commonwealth was concerned about the possible effects of this juror’s
family members’ criminal histories. Juror 113 was never asked about his
uncle or his first cousin and how he felt about their legal problems and
involvement with the court system.
The Commonwealth exercised peremptory strikes against two jurors
based on criminal histories of family members, previous prosecutions by the
Commonwealth’s Attorney and her office, prior defense counsel representation
of Juror 308’s son, and lead officer’s prior involvement with Juror 308’s son.
No concerns were expressed by the Commonwealth’s Attorney about anything
the two jurors said in response to questions during voir dire or any out-of-court
comments attributed to them. The Commonwealth’s concerns were based
entirely on information obtained from out-of-court sources—primarily
prosecution records.
4 The two jurors in question represent two-thirds—or possibly all— of the
African American jurors in the jury pool. The actual percentage struck is not
clear because of uncertainty about one juror’s possible race. That juror was
described by the Commonwealth as possibly being “mixed” race based on her
complexion, and the Commonwealth noted she did not strike that juror. That
juror is also never seen on the video record.
A copy of the voir dire from the previous day’s trial is missing from the
record on appeal. Under typical circumstances, unless a codefendant is
involved, what happened during voir dire at a separate trial is not relevant to
the issues at hand in a case currently being reviewed. However, in this
circumstance, information that came to light during the prior day’s voir dire is
discussed by the attorneys and the trial court during Perdue’s voir dire. This
has a heightened degree of relevancy because the trial court judge, prosecutor,
defense counsel, and much of the jury pool were the same for both trials.
The problem created by the missing voir dire from the previous day is
that the parties and trial court in Perdue’s case talk about and rely on the prior
day’s voir dire, which is unknown and unavailable to this Court. One example
was the trial court noting its ruling on a Batson challenge in the prior day’s
trial. The trial court said that in order to be consistent with the decision in the
prior trial, it found the Commonwealth’s proffered reasons were race neutral.
However, without the prior voir dire being included with this record, we are
unable to evaluate that decision. The underlying factual basis for the prior
5 decision including the Commonwealth’s chart of prior indictments, is largely
unavailable for review in Perdue’s case.
Following arguments of counsel, the trial court found the
Commonwealth’s stated reasons for the peremptory strikes to be sufficiently
race neutral and denied Perdue’s Batson challenge.
II. ANALYSIS
A Batson challenge requires a trial court to make a decision during trial
based on the evidence before it at that point in the trial. This allows the
challenge to be heard, resolved, and the trial to proceed. “The trial court is
afforded great discretion in making its determination under Batson. ” Gamble v.
Commonwealth, 68 S.W.3d 367, 372 (Ky. 2002). A trial court’s decision will not
be set aside unless it is clearly erroneous. Id. at 372. See also Hernandez v.
New York, 500 U.S. 352, 111 S. Ct. 1859, 114 L.Ed.2d 395 (1991);
Commonwealth v. Snodgrass, 831 S.W.2d 176 (1992). Further, “[findings of
fact are not clearly erroneous if supported by substantial evidence. Substantial
evidence is that evidence which, when taken alone or in light of all the
evidence, has sufficient probative value to induce conviction in the minds of
reasonable people.” Ky. State Racing Comrn’n v. Fuller, 481 S.W.2d 298, 308
(Ky. 1972).
In reviewing Perdue’s claims, we refer to long-standing principles that
outline the required three-step process pursuant to Batson:
As is now familiar, Batson provides a three-step process whereby trial courts are to adjudicate claims that peremptory juror challenges were based on race:
6 First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race [; s]econd, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question[; and t]hird, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination.
Brown v. Commonwealth, 313 S.W.3d 577, 602 (Ky. 2010) (quoting Snyder v.
Louisiana, 552 U.S. 472, 476-77 (2008)) (citations and internal quotation
marks omitted).
A review of the record reveals that the trial court did not require Perdue
to provide any additional information for the required prima facie showing. We
proceed presuming that the trial court found sufficient information to then
proceed to the second prong of the required process and ask the
Commonwealth to respond to the challenge. We need not address whether
Perdue’s claims were sufficient for the required prima facie showing as the trial
court proceeded without objection by the Commonwealth.
The Commonwealth’s response is the focus of Perdue’s arguments. In
his brief, Perdue asserts that the Commonwealth’s response was unclear and
not reasonably specific and references Johnson v. Commonwealth, 450 S.W.3d
696 (Ky. 2014), abrogated on other grounds by Roe v. Commonwealth, 493
S.W.3d 814 (Ky. 2015). In Johnson, we articulated that the reasoning behind
the requirement is “because a clear, reasonably specific and legitimate reason
is necessary for the trial court to fulfill its duty to assess the plausibility of the
proffered reason for striking the potential juror in light of all the evidence.” Id.
7 at 704. In this case, upon review we are led to conclude, that the
Commonwealth’s offered reasons were clear and specific.
As noted above, the Commonwealth’s offered race-neutral reasons were
apparently accepted at a trial the previous day. For Juror 308, the underlying
basis of the strike was her son’s history with the Commonwealth’s Attorney
and her office as well as the history of the son’s prior representation by defense
counsel. However, in addition to the information provided at the previous trial,
the prosecutor added that the lead officer in Perdue’s case had investigated the
juror’s son in other criminal cases. For Juror 113, the race-neutral reasons
included the uncle the juror lived with had been prosecuted for issues
including a probation revocation. Additionally, that juror’s uncle was a
registered sex offender and his first cousin had also been previously
prosecuted.
Following counsel’s arguments, the trial court ruled the reasons given by
the prosecution were sufficiently race neutral. After careful review, we agree.
The first portion of our review deals with the factual circumstances of
Perdue’s trial. As noted above, the trial judge, the Commonwealth’s Attorney,
defense counsel, and many of the jurors in Perdue’s trial were involved in a
trial on the previous day. This circumstance is not uncommon in smaller rural
courts throughout the Commonwealth.
Court of Justice system records indicate Caldwell County is part of a
four-county circuit. As in many smaller rural counties, the Commonwealth’s
Attorney’s office covers all four counties and the public defender’s office
8 frequently assigns one attorney to handle the dockets in a small county. It is
not unusual for the trial judge, the prosecutor, and appointed counsel to be the
same for many cases. In many small counties, a jury panel sits for a six-
month period during which cases are tried before the same jury pool. The
circumstances in Perdue’s case were not unusual to similarly-situated courts.
With that in mind, we remind counsel practicing in smaller rural courts
that it is incumbent on them to make sure the record includes those relevant
facts and information connected to issues in the current case. “Appellant has
a responsibility to present a ‘complete record’ before the Court on appeal.”
Hatfield v. Commonwealth, 250 S.W.3d 590, 600 (Ky. 2008). As an example,
we note that a copy of the Commonwealth Attorney’s chart listing indictments
for Juror 308’s son apparently shown in the prior trial would have been
helpful, as would including the prior day’s trial voir dire with its arguments by
counsel. While we note those efforts would be the best practice moving
forward, there is still sufficient information in this record to support the trial
court’s findings.
In this case, the Commonwealth struck either two of the three African
American jurors or possibly all the available African American jurors
(depending on the race of a third juror). Either way, the number of jurors
struck is not dispositive. “Batson requires more than a simple numerical
calculation.” Commonwealth v. Hardy, 775 S.W.2d 919, 920 (Ky. 1989). In
evaluating the prosecution’s claims, the United States Supreme Court said: “In
the typical peremptory challenge inquiry, the decisive question will be whether
9 counsel’s race-neutral explanation for a peremptory challenge should be
believed. There will seldom be much evidence bearing on that issue, and the
best evidence often will be the demeanor of the attorney who exercises the
challenge.” Hernandez, 111 S. Ct. at 1869. In addition to the demeanor of the
attorney offering the reasons, we said:
We find no fault with the prosecutor for exercising a peremptory challenge against a juror where the decision to strike is based upon information which the prosecutor has received from a source other than information received from voir dire. Batson does not require the neutral explanation for peremptorily striking a potential juror to be derived from voir dire. Neither does the explanation have to rise to a level sufficient to satisfy a strike for cause.
Snodgrass, 831 S.W.2d at 179.
We further made clear in Snodgrass that:
A prosecutor may utilize his own personal knowledge concerning a juror and information supplied from outside sources. Whether the information is true or false is not the test. The test is whether the prosecutor has a good-faith belief in the information and whether he can articulate the reason to the trial court in a race-neutral manner which is not inviolate of the defendant's constitutional rights.
Id. at 180.
In this case, the information from outside sources relied on by the
prosecutor was permitted under Snodgrass. There can be little doubt the
Commonwealth’s Attorney had a good-faith belief in the information provided
to the court as much of it was derived from her own office’s prosecution
records. Further, the information provided by the Commonwealth was not
disputed by Perdue, and the trial court was in the best position to evaluate the
10 demeanor of the attorney offering the information. The trial court’s decision to
accept the Commonwealth’s race-neutral reasons was supported by the
evidence.
The Commonwealth was very specific in its stated response. The
Commonwealth pointed to family relations with actual criminal cases
prosecuted by the prosecutor’s office and by the Commonwealth’s Attorney
trying Perdue. Further details included representation by defense counsel and
officer involvement with Juror 308’s son in other cases. Unlike the general
claim of age with no further specifics offered by the prosecutor in Johnson, 450
S.W.3d at 703-704, the claims in this case are very detailed and undisputed by
Perdue.
It is possible that the family relationships in this case that concerned the
Commonwealth might not have risen to the level justifying a strike for cause.
Without further questioning of the jurors it is impossible to know, but such
questioning is not required. We said in Snodgrass:
While we agree with the Court of Appeals that further questioning of Mr. Clark by the Commonwealth or the trial court might well have reaffirmed the suspicions of the prosecutor, we do not believe that either our Federal or State Constitutions required such inquiry, especially where the strike arises from a peremptory challenge.
831 S.W.2d at 180.
Family relationships and prior involvement with the court system are a
reasonable topic of concern for attorneys. Even with an expression of
affirmation that the family relationship and a prior history with the court
11 system by that family member will not affect a juror, there exists
understandable cause for concern.
In prior cases where jurors said that they could disregard close
relationships, we said: “Their statements, given in response to leading
questions, that they would disregard all previous information, opinions and
relationships should not have been taken at face value.” Marsch v.
Commonwealth, 743 S.W.2d 830, 834 (Ky. 1987). Further: “It makes no
difference that the jurors claimed they could give the defendants a fair trial.”
Montgomery v. Commonwealth, 819 S.W.2d 713, 718 (Ky. 1991). Jurors are
asked to come to court and then asked to set aside close family relationships
and the history that goes with those relationships. In a somewhat different
context, we said: “[I]rrespective of the answers given on voir dire, the court
should presume the likelihood of prejudice on the part of the prospective juror
because the potential juror has such a close relationship, be it familial,
financial or situational, with any of the parties, counsel, victims or witnesses.”
Ward v. Commonwealth, 695 S.W.2d 404, 407 (Ky. 1985) (internal citations
omitted). A reasonable nondiscriminatory exercise of peremptory challenges
can resolve these concerns.
“While the Constitution does not confer a right to peremptory challenges,
those challenges traditionally have been viewed as one means of assuring the
selection of a qualified and unbiased jury.” Batson, 106 S. Ct. at 1720
(internal citations omitted). While limitations have been placed on unbridled
use of peremptories to prevent unlawful discrimination, this court has sought
12 to preserve the ability of trial lawyers to utilize this tool in jury selection on
behalf of their clients.
The goal of selecting an impartial jury has been a consistent one in our
jurisprudence. We reference a quote from Chief Justice Hughes of the United
States Supreme Court: “Impartiality is not a technical conception. It is a state
of mind.” U. S. v. Wood, 299 U.S. 123, 145-46 (1936). “A trial court's decision
whether a juror possessed this mental attitude of appropriate indifference must
be reviewed in the totality of circumstances.” Gabbard v. Commonwealth, 297
S.W.3d 844, 853 (Ky. 2009) (internal quotation marks omitted). The goal of an
appropriate state of mind can be served with proper nondiscriminatory use of
peremptory challenges.
Under the totality of circumstances in this case, the trial court’s decision
to find the Commonwealth’s stated race-neutral reasons for striking Jurors 308
and 113 sufficient was supported by the evidence. The trial court’s decision to
overrule Perdue’s Batson challenge was not clearly erroneous.
III. CONCLUSION
After careful consideration of the issue presented, we affirm Perdue’s
conviction and corresponding sentence
All sitting. All concur.
13 COUNSEL FOR APPELLANT:
Robert Chung-Hua Yang Assistant Public Advocate Department of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel Jay Cameron Attorney General of Kentucky Office of the Attorney General