IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: APRIL 29, 2021 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2020-SC-0335-MR
LAVERN GRAY APPELLANT
ON APPEAL FROM KNOX CIRCUIT COURT V. HONORABLE GREGORY ALLEN LAY, JUDGE NO. 18-CR-00109
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
The trial court sentenced Lavern Gray to imprisonment for two
consecutive ten-year sentences following a trial in which the jury convicted him
of first-degree rape and first-degree sodomy. Gray appeals that judgment as a
matter of right.1
Gray argues the trial court’s failure to grant his for-cause challenge to
strike a police officer from the venire cost him a peremptory challenge during
jury selection, denying him of his right to an impartial jury. He also argues
palpable error occurred when the Commonwealth misrepresented the evidence
against him by stating in closing argument that the forensic evidence
“contained [Gray’s] DNA.” We find no error in the trial court’s decision to deny
1 Ky. Const. § 110(2)(b). the for-cause challenge, and, although the prosecutor’s statement in closing
argument improperly characterized the DNA evidence, no palpable error
occurred. We affirm the judgment.
I. FACTUAL BACKGROUND
T.B. and Gray’s granddaughter were friends. T.B often accompanied her
to Gray’s house where the two girls played and helped Gray tend to his
animals.
On one occasion when T.B. and the granddaughter were visiting Gray’s
home, T.B. was left alone with Gray inside the home. On that occasion, T.B.
alleges Gray made suggestive comments to her about his private parts, telling
her that she was beautiful and needed a man like him. She claimed that Gray
gave her a drink that made her feel dizzy. Then, Gray pressed his weight on
her so she could not move and licked her vagina. After this, T.B. alleges that
Gray forced vaginal intercourse with her. She described that when he
completed intercourse, he wiped his penis on a red rag.
T.B. told the jury that upon returning home from the encounter with
Gray, she showered and placed her clothes into the washing machine to soak.
The next day, she told both her mother and Timber about the encounter with
Gray. Her mother then called the police. The investigating officer with the
Kentucky State Police (KSP) came to T.B.’s house and collected her clothes
from the washing machine. He also collected a DNA sample from Gray and
found red rags and sleeping pills in Gray’s home.
2 II. ANALYSIS
A. The trial court did not err in refusing to strike Juror 253 for cause.
Gray contends that he was denied his right to an impartial jury because
the trial court refused to strike Juror 253 for cause.2 During voir dire, Juror
253 disclosed that he was a city police officer and had cases actively
prosecuted by the same office prosecuting the case at hand. Additional voir
dire questioning disclosed that Juror 253 knew the KSP officers and attorneys
working on the present case. Juror 253 stated that he would be able to remain
impartial as a juror despite his employment and familiarity with the parties
involved.
Defense counsel moved to strike for cause Juror 253 as a prospective
juror, arguing that Juror 253 would be unable to remain impartial because he
was regularly employed in law enforcement as an agent of the Commonwealth.
The trial court denied the motion, ruling that Juror 253 was not an agent of
the Commonwealth simply because of his employment with a local city’s police
department, Juror 253 had stated his ability to serve impartially, and defense
counsel had cited no legal authority to support the argument that police
officers are automatically disqualified from service as petit jurors in criminal
trials. Defense counsel properly preserved this issue for appeal by designating
on the peremptory strike sheet the jurors he would have struck had the
peremptory strike been available to him.3
2 U.S. Const. amend. VI, XIV; Ky. Const. amends. XI. 3 Ward v. Commonwealth, 587 S.W.3d 312, 327 (Ky. 2019) (“To complain on appeal that a party was forced to use one of the party's peremptory challenges because 3 This Court reviews for abuse of discretion a trial court’s refusal to strike
a potential juror for cause, giving deference to the trial court’s involvement in
the jury-selection process in real time.4 Although we typically review for abuse
of discretion under the harmless-error standard, when a substantial right is
affected, such as the right to an impartial jury, we will reverse if the trial court
erred, because prejudice is presumed.5
Kentucky Rule of Criminal Procedure (RCr) 9.36 requires a prospective
juror to be dismissed when there is “a reasonable ground to believe that the
juror cannot render a fair and impartial verdict on the evidence.” A juror’s
ability to decide a defendant’s guilt or innocence impartially is adjudged by the
entirety of the juror’s voir dire responses and demeanor.6 Ostensible doubt as
to impartiality does not require a prospective juror to be dismissed, but when
the prospective juror shares a close relationship, “be it familial, financial or
situational, with any of the parties, counsel, victims or witnesses,”7 the trial
court may dismiss the juror for cause.”8 Overall, a trial court’s decision to
of the trial court's erroneous failure to grant a for-cause strike, the defendant must use a peremptory strike on that juror and show that the peremptory strike was used on their strike sheet.”). Gray used nine peremptory strikes and noted that he would have struck Juror 326 if his motion to strike Juror 253 had been granted. 4 Shane v. Commonwealth, 243 S.W.3d 336, 338 (Ky. 2007). 5Ward, 587 S.W.3d at 327–28 (“As such, harmless error analysis is not appropriate, and prejudice is presumed.”). 6 Sturgeon v. Commonwealth, 521 S.W.3d 189, 196 (Ky. 2017). 7 Marsch v. Commonwealth, 743 S.W.2d 830, 833 (Ky. 1988). 8 Whittle v. Commonwealth, 352 S.W.3d 898, 901 (Ky. 2011).
4 strike a juror for cause is a case-by-case decision determined by the
prospective juror’s responses to questions during voir dire.9
This Court has held that employment as a police officer does not carry
with it a presumptive bias that necessitates automatic disqualification;
additional circumstantial information is required.10 In Brown v.
Commonwealth we discussed a prospective juror’s arguable inability to be
impartial simply because of her employment as a police officer.11 In Brown, the
prospective juror worked as a police officer, and her work brought her into
regular contact with the Commonwealth’s Attorney's Office and KSP.12 She
had experience as a federal law enforcement officer, had taught other agents
investigation techniques and how to give testimony in court, and her father and
brother had both worked as law enforcement officers.13 But despite these facts
that cast ostensible doubt on her ability to decide impartially in a criminal
prosecution, she also told the trial court she would be able to “assess the
credibility of police officers as she would any other witness,” that she knew that
police officers could testify falsely or mistakenly, and “that her training had
9 Brown v. Commonwealth, 313 S.W.3d 577, 596 (Ky. 2010) (“In making this determination, the trial court is to consider the prospective juror's voir dire responses as well as his or her demeanor during the course of voir dire and is to keep in mind that generally it is the totality of those circumstances and not the response to any single question that reveals impartiality or the lack of it. ‘Impartiality,’ we reiterated recently in Shane v. Commonwealth, 243 S.W.3d 336, 338 (Ky. 2007), ‘is not a technical question but a state of mind.’”). 10 Id. at 597. 11 Id. 12 Id. 13 Id.
5 impressed upon her the importance of treating an officer's testimony no
differently than anyone else's.”14 We upheld the trial court’s decision to not
strike the police officer for cause in Brown because she indicated her ability to
remain impartial and did not share a close relationship with any of the actors
in the case.
Gray contends that because Juror 253 had a working relationship with
the Commonwealth’s Attorney’s Office prosecuting his case, the trial court was
required to strike the juror for cause. In Fugate v. Commonwealth,15 we held
that two venire persons should have been stricken for cause because of their
prior professional relationship with the prosecuting attorney. For example, in
Fugate, the prosecutor had prepared legal documents for one prospective juror
who was a satisfied client and willing to retain the prosecutor again for legal
work.16 The other prospective juror in Fugate expressed satisfaction and had a
current first-name-basis relationship with the prosecutor who was
contemporaneously prosecuting a case in which the victim of the crime was the
business the prospective juror managed.17 We held as error the trial court’s
refusal to strike these potential jurors for cause because of their prior and
potential future professional relationships with the same attorney prosecuting
the case on trial.18
14 Id. 15 993 S.W.2d 931, 938 (Ky. 1999). 16 Id. 17 Id. at 938–39. 18 Id. at 939.
6 We find the circumstances here more like those in Brown. Juror 253
was employed at a local police department. Through that employment, he had
a relationship with the office prosecuting the present case. In his role with the
police department, Juror 253 investigated crimes and brought them to the
attention of the Commonwealth’s Attorney’s Office. At the time of the trial,
Juror 253 had some active cases with the Commonwealth’s Attorney’s Office.
Importantly, Juror 253 indicated that his employment would not cause him to
“lean one way or another.”
While Juror 253 had pending prosecutions being handled by the
Commonwealth’s Attorney’s Office, so would any police officer with cases
currently being prosecuted by the state. No elicited information in voir dire
suggested Juror 253 had any special relationship with anyone employed by the
Commonwealth’s Attorney or with the attorney prosecuting the case at hand.
In Brown—a case in which trial venue had been changed—the juror had
routine contact with the Commonwealth’s Attorney’s Office in the county where
the case was being tried, but the team prosecuting Brown at trial were from
outside the trial venue.19 In this case, Juror 253 had active cases with the
same office prosecuting Gray, but the special relationships noted in Fugate are
absent here. The trial court did not abuse its discretion by denying Gray’s
motion to strike Juror 253.
19 313 S.W.3d at 588.
7 B. Gray was not denied a fair trial by the Commonwealth’s Attorney’s statement during closing argument.
Gray argues improper statements by the Commonwealth’s Attorney in
closing argument denied him a fair trial. This issue was not preserved by a
contemporaneous objection. This Court generally does not review unpreserved
errors.20 But when the alleged error has potential constitutional implications,
such as the denial of due process Gray asserts here, we will review for palpable
error under RCr 10.26.21 Still, we will only reverse the judgment of the trial
court if the alleged misconduct by the Commonwealth’s Attorney is flagrant
and caused a gross injustice to the defendant.22
In deciding if prosecutorial misconduct is flagrant, this Court undertakes
a four-part analysis.23 First, we decide if the prosecutor’s remarks tended to
mislead the jury or prejudice the accused.24 Second, we consider whether the
remarks were isolated or extensive.25 Third, we determine whether the
comments were deliberately or accidentally placed before the jury.26 And
20 RCr 10.26. 21 Martin v. Commonwealth, 409 S.W.3d 340, 344 (Ky. 2013) (“Under RCr 10.26, an unpreserved error may generally be noticed on appeal if the error is ‘palpable’ and if it ‘affects the substantial rights of a party.’”). 22 Duncan v. Commonwealth, 322 S.W.3d 81, 87 (Ky. 2010). 23 Id. 24 Id. 25 Id. 26 Id.
8 finally, we evaluate the comments in light of the strength of the evidence
against the accused.27
The Commonwealth presented expert testimony about the DNA found on
T.B.’s underwear. The testimony from several members of the KSP laboratory
included information meant to assist the jury in deciphering the statistical
meaning of DNA tests and how the tests assist criminal investigations. The
testimony further provided that lab analysis of T.B.’s underwear produced
results showing DNA from two males. The testimony explained that the DNA of
the second profile contributed larger amounts of DNA than the first, that the
second profile matched that of Gray and his paternal relatives, and that there
was a 1:891 chance of randomly selecting any given male from within the
United States population that would have the same profile as Gray. Based on
this evidence, the Commonwealth’s Attorney stated during closing argument
that the victim’s underwear “contained the defendant’s DNA.” Gray argues this
was flagrant prosecutorial misconduct because no testimony confirmed it was
his DNA on the victim’s underwear.
In Duncan v. Commonwealth28 we discussed a prosecutor’s improper
comments regarding DNA testing and its significance. Duncan involved similar
expert testimony about DNA evidence collected and used against the
defendant.29 The testimony in Duncan was that the DNA analysis of the
27 Id. 28 322 S.W.3d 81, 92–93 (Ky. 2010). 29 Id. at 92.
9 sample collected from the defendant produced inconclusive results.30 In sum,
the testimony included that neither the defendant nor any other male in the
defendant’s lineage could be ruled out as the perpetrator.31 No further
testimony was given explaining the significance of the DNA evidence. Despite
the testimony relaying inconclusive results, the Commonwealth’s Attorney in
closing stated, “What was the defendant’s DNA doing in the victim’s panties?”32
We held the statement resulted in reversible error, not solely because of
the statement itself, but also because the statement lacked an evidentiary basis
given the statistical meaning of the DNA evidence. The DNA evidence was
statistically inconclusive, indicating the defendant could have been the
perpetrator but in a way equally “consistent with a scenario in which any other
man on the planet was the perpetrator.”33 We found this to be a type of
non-exclusion evidence that courts must scrutinize to avoid its tendency to
mislead the jury. We explained in Duncan, that merely stating a defendant’s
DNA matches what was found at the crime scene is “meaningless, or, at most,
30 Id. 31 Id. (“The problem is not that the evidence failed to establish a match between Duncan's profile and the profile obtained from the sample. The evidence established a match, or a partial match, at ten of the seventeen tested sites. But missing from the Commonwealth's proof was any testimony establishing the significance of that partial match. Johnson's testimony that Duncan could not be excluded as a source of the panty DNA said nothing at all about how likely or unlikely it was for such a partial match to occur, and most assuredly it did not say that Duncan was the source. By asking the jury to infer on the basis of Johnson's testimony that he was, the prosecutor sought to wring from that testimony a conclusion it could not reasonably yield.”). 32 Id. 33 Id.
10 of marginal value” without “further evidence putting the match in some context
of significance, statistical or otherwise,” because it does not exclude any
potential defendant, but only includes them among the rest of the population
as a potential source of the DNA.34 “Without the accompanying evidence . . .
the jury ha[s] no way to evaluate the meaning of the result.”35 As a result, we
found the Commonwealth’s Attorney’s statement that the DNA evidence
conclusively proved it matched the defendant to be so improper as to warrant
reversal.
But the circumstances in Gray’s trial are not like those in Duncan. The
Commonwealth’s Attorney in this case undoubtedly overstated the strength of
the DNA evidence, which was not conclusive that Gray’s DNA was on the
victim’s underwear.36 But as we discussed in Duncan, to determine the effect
the statement had on the jury, we consider not only the improper statement
about the DNA evidence but also any testimony about the statistical
significance of the DNA evidence that was also given. Here, the jury heard the
overblown statement after hearing extensive testimony about the significance of
DNA analysis, specifically that there was an 891 to 1 chance of another male in
the United States having the same profile as Gray. And defense counsel’s
34 Id. 35 Id. 36 Id. at 93 (“Whatever avenue is chosen; the Commonwealth must abide by the limitations of its own proof and not make claims that its DNA evidence is more probative than the expert's testimony has shown it to be.”).
11 cross-examination revealed to the jury that the probability of someone else
having this Y-STR profile was greater than other kinds of DNA tests.
To be clear, we do not approve of the Commonwealth’s Attorney’s
overstatement of the strength of the DNA evidence, but we find the conduct
was not flagrant. The improper statement was made immediately preceding
the Commonwealth’s Attorney’s recital of the DNA analysis report, again
reminding the jury of the statistical meaning of the evidence.37 While the
statement could mislead the jury, it was isolated and was only said once during
closing argument. This Court cannot determine if the statement was
deliberately placed before the jury. But it was a single, brief statement and the
Commonwealth’s Attorney did not state that the experts found the DNA
evidence to be conclusive, but only overstated the significance of the findings.
We finally consider the improper statement in connection to not only the
DNA evidence but to all the evidence presented at trial. Gray was charged with
first-degree assault and sodomy. T.B. testified that Gray gave her a drink that
made her feel dizzy, that he pressed his weight upon her so she could not move
away, that he pulled down her leggings and underwear, and then he leaned
down and licked her vagina. T.B. further told the jury she told Gray no and
shook her head but because she was pinned down she could not escape. She
37 Commonwealth’s Attorney: “But the other thing is [T.B’s underwear]
contained the Defendant’s DNA . . . the Defendant has made an interesting argument but I want to say . . . . I’ve told you this in beginning and I read you this and I’m going to read this to you again. This is what the lab report itself said ‘That a match is 891 times more likely to occur if the contributor is Lavern Gray or another paternal relative than if the source is a randomly selected male from the United States population.’”
12 also testified that after this, Gray proceeded to have vaginal intercourse with
her, that she continued to say no, and when he was done he wiped his penis
with a red rag and pulled T.B.’s pants and panties back up.
At trial, evidence also included that the red rags and sleeping pills were
found at Gray’s home. Dr. Melissa Haddix, who performed a sexual assault
exam on T.B., testified that blood was found in the vaginal vault, despite T.B.’s
lack of menstruation, but that there were no tears or forcible damage in the
vagina. Haddix testified that because there was no active hemorrhaging she
could not ascertain the source of the blood. And as previously discussed, the
prosecutor’s improper closing statement was made after the jury heard both
direct and cross-examination testimony addressing the statistical significance
of the DNA evidence.
Even if the weight of the DNA evidence was overstated by the prosecutor,
we find that the prosecutor’s statements did not have such an impact on the
jury as to affect the outcome at trial. In a single brief sentence, the
Commonwealth’s Attorney overstated the conclusiveness of the DNA evidence.
But the statement did not allege that the expert testimony about Gray’s DNA
was incorrect nor did the Commonwealth’s Attorney state the experts found the
DNA evidence to be conclusive. The prosecutor here overstated the evidence in
closing argument, but such statement did not result in injustice.
13 III. CONCLUSION
For the reasons stated, we affirm the judgment.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Kathleen Kallaher Schmidt Erin Hoffman Yang Department of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel J. Cameron Attorney General
Jenny Lynn Sanders Assistant Attorney General