IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4){C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: SEPTEMBER 26, 2019 NOT TO BE PUBLISHED
2018-SC-000422-MR
MICHAEL THORNTON
ON APPEAL FROM JEFFERSON CIRCUIT COURT V. HONORABLE BRIAN C. EDWARDS, JUDGE NO. 15-CR-001981
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING IN PART, REVERSING AND VACATING IN PART AND REMANDING
Michael Thornton was convicted of third-degree assault, two counts of
first-degree wanton endangerment, second-degree wanton endangerment,
fleeing or evading police, first-degree criminal mischief, receiving stolen
property, second-degree escape, theft by failure to make required disposition of
property, tampering with a prisoner monitoring device, and being a persistent
felony offender in the first degree. He was sentenced to twenty years in prison.
Thornton now appeals his conviction as a matter of right, making the following
arguments: (1) his convictions for escape and tampering with a prisoner
monitoring device violated double jeopardy; (2) his convictions for second-
degree wanton endangerment and fleeing or evading police violated double
jeopardy; (3) the trial court erred by failing to sever the escape and tampering charges from the remaining charges; (4) the trial court erred in failing to excuse
a juror for cause; and (5) the trial court erred in denying his Batson motion.1
For the reasons set forth below, Thornton’s second-degree wanton
endangerment conviction is reversed and vacated, and all other convictions are
affirmed.
FACTS AND PROCEDURAL HISTORY
Michael Thornton was subject to home incarceration, an alternative to
incarceration where inmates are placed on house arrest and their locations are
monitored through an ankle bracelet (anklet). Under the terms of home
incarceration, Thornton was not permitted to leave his residence unless he was
making a court appearance, reporting to the Louisville Metro Department of
Corrections Home Incarceration Unit (HIU), or seeking emergency medical
treatment. He was required to stay within the four walls of his residence and
could not go outside even if he remained on his property. Thornton
acknowledged these conditions in writing. On March 26, 2015, HIU received a
notification that Thornton’s anklet had been tampered with and that the strap
was open. Police located the anklet at its last known location at the
intersection of 17th and Lytle Streets and searched for Thornton in the
surrounding neighborhood but could not locate him.
Officer Hagan, who was in charge of supervising Thornton while on home
incarceration, had information that Thornton was romantically involved with
1 Batson v. Kentucky, 476 U.S. 79 (1986).
2 Kathryn McIntire, a probationer who reported to the Clifton probation office.
Officer Hagan requested that McIntire’s probation officer contact Officer Hagan
when she was at the probation office and hold her there until she could be
interviewed.
On April 2, Thornton dropped McIntire off at the probation office in a
silver vehicle. The car driven by Thornton was stolen days prior. McIntire had
never seen the vehicle before and did not know how long Thornton had been
driving it. He told her that it was his uncle’s vehicle. At the probation office,
Officer Hagan convinced McIntire to call Thornton and request that he pick her
up. Officer Hagan called for backup and learned that Thornton may be driving
a stolen vehicle. He then parked in a secluded area behind bushes that
provided him with a view of the parking lot.
After Thornton dropped McIntire off, he picked up his cousin Robert and
Robert’s girlfriend, Pauline, in the stolen vehicle. Thornton returned to the
parking lot of the probation office and Officer Hagan determined that it was
Thornton driving. Officer Hagan and Detective Joshua Jaynes pulled into the
probation office parking lot and put their emergency lights on as Thornton was
attempting to leave. Officer Hagan parked nose to nose with Thornton’s vehicle
and Thornton backed his vehicle down the length of the short parking lot.
Officer Hagan and Detective Jaynes exited their vehicles with weapons drawn
and gave loud verbal commands to Thornton to stop the vehicle, show his
hands and exit the vehicle. Thornton shifted his vehicle from reverse to drive
3 and the vehicle slowly began to move forward as Detective Jaynes attempted to
open Thornton’s door.
Thornton then accelerated toward Officer Hagan. Officer Hagan testified
that he fired two shots through the windshield as he jumped to avoid being hit.
He fired an additional shot through Thornton’s window as he drove by.2
Thornton accelerated down an embankment, across the street and up a hill
before turning back toward the street and hitting Officer Keeling’s marked
police car, pushing it into Officer Hundley’s marked police car. This forced
Thornton’s car to come to a stop and he and his passengers were removed from
the vehicle. Both Thornton and Robert had been shot.
The jury found Thornton guilty of third-degree assault of Officer Hagan,
two counts of first-degree wanton endangerment as to the passengers in his
vehicle, second-degree wanton endangerment as to Officer Keeling, first-degree
fleeing or evading police, first-degree criminal mischief (damaging the stolen
vehicle), receiving stolen property (the stolen vehicle), second-degree escape,
theft by failure to make required disposition of property (abandoning the anklet
and charger), and tampering with a prisoner monitoring device. In the penalty
phase, the jury found that Thornton is a first-degree persistent felony offender.
2 Officer Hagan testified that he shot two shots through the front windshield and one into the driver’s side of the vehicle as Thornton drove by. At trial, a crime scene analyst who performed gunshot reconstruction and trajectory analysis testified that Officer Hagan was in the front of the car when he fired one shot and fired two shots at the driver’s side of the vehicle. Where and when the shots were fired is not relevant to this appeal.
4 The trial court sentenced him to an enhanced sentence of twenty years in
prison.
ANALYSIS
I. The Second-Degree Escape and Tampering With a Prisoner Monitoring Device Convictions Did Not Violate Double Jeopardy. Thornton acknowledges that this first issue is unpreserved. “[D]ouble
jeopardy violations can be addressed as palpable error because the nature of
such errors is to create manifest injustice.” Cardine v. Commonwealth, 283
S.W.3d 641, 652 (Ky. 2009). Kentucky Rule of Criminal Procedure (RCr) 10.26
provides the standard for palpable error review and states:
[a] palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.
The Fifth Amendment to the Kentucky Constitution states that “[n]o
person shall, for the same offense, be twice put in jeopardy of his life or limb.”
Kentucky courts rely on Blockburger v. United States, 284 U.S. 299 (1932), to
resolve double jeopardy claims. Dixon v. Commonwealth, 263 S.W.3d 583, 588
(Ky. 2008). Additionally, Kentucky Revised Statute (KRS) 505.020 outlines the
statutory structure for determining whether multiple convictions stemming
from the same conduct are permissible.
“The applicable rule is that, where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses or only one, is whether
5 each provision requires proof of a fact which the other does not.” Blockburger,
284 U.S. at 304. We review the escape and tampering statutes to determine
whether they contain an element that the other does not. “Pursuant to this
test, ‘a defendant is put in double jeopardy when he is convicted of two crimes
with identical elements, or where one is simply a lesser-included offense of the
other.”’ Kiper v. Commonwealth, 399 S.W.3d 736, 742 (Ky. 2012) (quoting
Turner v. Commonwealth, 345 S.W.3d 844, 847 (Ky. 2011)).
Under KRS 519.070(1):
A person is guilty of tampering with a prisoner monitoring device when he or she intentionally alters, disables, deactivates, tampers with, removes, damages, or destroys any device used to facilitate electronic monitoring or supervision of a person who is on probation or parole, or has been ordered to wear a device as a condition of pretrial release.
The statute does not require the defendant to escape or even have an intent to
escape in order to be convicted. “A person is guilty of escape in the second
degree when he escapes from a detention facility or, being charged with or
convicted of a felony, he escapes from custody.” KRS 520.030(1). “Escape” is
defined as “departure from custody or the detention facility in which a person
is held or detained when the departure is unpermitted, or failure to return to
custody or detention following temporary leave granted for a specific purpose or
for a limited period.” KRS 520.010(5). This Court has determined that a
person’s behavior while in the home incarceration program can constitute
second-degree escape. Weaver v. Commonwealth, 156 S.W.3d 270, 272 (Ky.
2005).
6 Thornton argues that his act of removing the anklet was not readily
distinguishable from the escape. He states that he removed the anklet and left
the home incarceration program with the same intention — to escape. He cites
to Kiper, 399 S.W.3d at 739, where a defendant was convicted of attempted
murder and first-degree assault after firing multiple gunshots in rapid
succession, then shooting a single shot as he drove away. Kiper argued that
the two convictions constituted a double jeopardy violation. Id. at 739. The
Court held that the convictions violated KRS 505.020(l)(b), which “prohibits a
conviction for more than one offense when inconsistent findings of fact are
required to establish the commission of the offenses.” Id. at 741.
The Court based its holding on the specific factual context of Kiper’s
acts. Id. at 744. In order for the jury to convict Kiper of both attempted
murder and first-degree assault based on the same course of conduct, they
would have to find that Kiper specifically intended to kill the victim, but also
intended to cause serious physical injury to the victim — not to kill. Id. Citing
Welborn v. Commonwealth, 157 S.W.3d 608, 612 (Ky. 2005), the Court stated
that “for multiple convictions to be proper there must have been a cognizable
lapse in his course of conduct during which the defendant could have reflected
upon his conduct, if only momentarily, and formed the intent to commit the
additional acts.” Kiper, 399 S.W.3d at 745. The Court distinguished Kiper’s
case from Welborn, in which the defendant shot an officer three separate times
and had ample time to pause between each shot, seriously injuring the officer
in three separate places. Welborn, 157 S.W.3d at 612. Ultimately, the Court
7 determined that Kiper’s convictions satisfied the Blockburger test, but
nevertheless violated the statutory double jeopardy protection in KRS 505.020.
Under the Blockburger test, “[a] defendant is put in double jeopardy when
he is convicted of two crimes with identical elements, or where one is simply a
lesser-included offense of the other.” Turner v. Commonwealth, 345 S.W.3d
844, 847 (Ky. 2011). In Thornton’s case, the crime of escape does not require
that the defendant “alter, disable, deactivate, tamper with, remove, damage, or
destroy” a prisoner monitoring device. KRS 519.070(1). Tampering with a
monitoring device does not require that the defendant depart from custody
without permission. KRS 520.030(1). In other words, the two statutory
provisions do not have identical elements, and each requires proof of facts that
the other does not.
Thornton’s conduct and subsequent convictions also satisfy KRS
505.020(1). The statute states that
(1) [w]hen a single course of conduct of a defendant may establish the commission of more than one offense, he may be prosecuted for each such offense. He may not, however, be convicted of more than one offense when: (a) One offense is included in the other, as defined in subsection (2); or (b) Inconsistent findings of fact are required to establish the commission of the offenses; or (c) The offense is designed to prohibit a continuing course of conduct and the defendant's course of conduct was uninterrupted by legal process, unless the law expressly provides that specific periods of such conduct constitute separate offenses.
8 (Emphasis supplied). As to KRS 505.020(l)(b), no inconsistent findings were
required to establish the offenses, as were present in Kiper. 399 S.W.3d at
744.
Thornton submits that the escape and tampering charges occurred in a
continuing course of conduct pursuant to KRS 505.020(1 )(c) because he
removed the anklet, walked out the door, and threw the anklet away three
blocks from his residence. He argues that the two charges could only be
accomplished with the same intent — to escape home incarceration. While it is
true that the tampering and escape charges could be considered part of a
continuing course of conduct, Thornton has not shown how either offense was
“designed to prohibit a continuing course of conduct” as required by KRS
505.020(l)(c). Regardless, tampering and escape prohibit separate, individual
acts and not a course of conduct. Even if these crimes are committed in the
same course of conduct, they are separate offenses requiring different conduct.
See Biederman v. Commonwealth, 434 S.W.3d 40 (Ky. 2014).
Thornton argues that his act of removing the anklet is subsumed in the
escape and should be considered a lesser-included offense. But we find that
the tampering offense is not included in the separate escape offense pursuant
to KRS 505.020(l)(a). In reviewing the requirements to constitute a lesser-
included offense, none of the subsections under subsection (2) of KRS 505.020
are applicable here. As determined above, each of the offenses was established
by proof of at least one fact unique to each offense. Tampering does not
consist of an attempt to commit escape. According to the terms of the home
9 incarceration program, Thornton was not permitted to leave his residence
unless he was making a court appearance, reporting to the Louisville Metro
Department of Corrections, or seeking emergency medical treatment. He was
required to remain within the four walls of his residence and could not go
outside, even if he remained on his property. It is conceivable, even if unlikely,
that a person on home incarceration can tamper with his anklet without
making an escape attempt, thereby giving rise to tampering charges but not
escape charges.
While removing the anklet prevented the police from being able to track
Thornton, it was not a requirement of the escape conviction, which merely
requires a departure from custody. Based on the terms of home incarceration,
Thornton arguably could have been charged with escape for simply going into
his yard or taking out the trash. Finding that Thornton’s convictions for
tampering and escape satisfy both the Blockburger test and the statutory
double jeopardy analysis as prescribed by KRS 505.020, we affirm the
convictions.
II. The Second-Degree Wanton Endangerment and First-Degree Fleeing or Evading Police Convictions Violated Double Jeopardy. Thornton argues that his convictions for second-degree wanton
endangerment as to Officer Keeling and first-degree fleeing or evading police
violated double jeopardy. This issue also is not preserved, and thus reviewed
for palpable error pursuant to RCr 10.26. As stated above, the Blockburger test
applies, requiring a determination of “whether each provision requires proof of
a fact which the other does not.” Blockburger, 284 U.S. at 304.
10 The provision under which Thornton was convicted of first-degree fleeing
or evading police requires:
while operating a motor vehicle with intent to elude or flee, the person knowingly or wantonly disobeys a direction to stop his or her motor vehicle, given by a person recognized to be a police officer, and . . . [b]y fleeing or eluding, the person is the cause, or creates a substantial risk, of serious physical injury or death to any person or property[.]
KRS 520.095(l)(a)(4). “A person is guilty of wanton endangerment in the
second degree when he wantonly engages in conduct which creates a
substantial danger of physical injury to another person.” KRS 508.070(1).
This Court considered double jeopardy rights for convictions of first-
degree fleeing and evading police and second-degree wanton endangerment in
Brown v. Commonwealth, 297 S.W.3d 557 (Ky. 2009). The case involved a
defendant who circumvented a sobriety checkpoint which resulted in a police
chase. Id. at 559. The defendant was convicted of fleeing or evading police and
second-degree wanton endangerment as to the officers who pursued him as he
drove recklessly, attempting to flee. Id. This Court concluded that the
defendant’s rights were violated through the following reasoning:
First-degree fleeing or evading police contains proof of four facts that second-degree wanton endangerment does not. Specifically, first-degree fleeing or evading police requires proof that the accused was operating a motor vehicle, had intent to elude or flee, disobeyed a police officer's direction to stop, and that the risk of physical injury was serious. Second-degree wanton endangerment requires proof of none of these facts. Second-degree wanton endangerment, however, requires proof of no fact beyond first-degree fleeing or evading police. Both provisions are satisfied by proof of wantonly engaging in certain conduct which creates a substantial danger of serious physical injury to another person. For second-degree wanton endangerment, the conduct is general and open-ended; for 11 first-degree fleeing or evading police, the conduct is specified as intentionally fleeing from police while operating a motor vehicle. It follows, therefore, that once the Commonwealth proved the specific conduct required to convict Appellant of first-degree fleeing or evading police, it necessarily proved the general conduct necessary to convict him of second-degree wanton endangerment, too. Consequently, Appellant's convictions for first-degree fleeing or evading police and second-degree wanton endangerment constitute double jeopardy. . . . This is because the principle of double jeopardy prohibits the Commonwealth from “punishing] a single episode as multiple offenses,” not from “carv[ing] out of a single criminal episode the most serious offense.”
Id. at 562-63 (quoting Commonwealth v. Burge, 947 S.W.2d 805, 811 (Ky.
1996)). The same reasoning applies here with respect to Thornton’s fleeing and
evading and the second-degree wanton endangerment of Officer Keeling. The
fleeing or evading and second-degree wanton endangerment convictions violate
Thornton’s right against double jeopardy pursuant to our holding in Brown. Id.
at 562.
First-degree fleeing or evading police is a felony and second-degree
wanton endangerment is a misdemeanor. As stated in Brown, “the remedy is
to vacate the lesser offense)] of wanton endangerment.” Id. at 563. The
judgment imposed a punishment of ten years in prison for the fleeing and
evading conviction,3 and a $500 fine for the second-degree wanton
3 The initial punishment was five years in prison, but the sentence was enhanced because Thornton was convicted of being a first-degree persistent felony offender.
12 endangerment conviction. Therefore, Thornton’s conviction for second-degree
wanton endangerment as to Officer Keeling is reversed and vacated.4
III. The Trial Court Did Not Err in Declining to Sever the Tampering and Escape Charges From the Remaining Charges. Prior to trial, Thornton filed a motion to sever the escape and tampering
charges from the other counts in the indictment, arguing that he would be
prejudiced by the jury knowing that he was on home incarceration for a felony
when the April 2 incidents at the probation office occurred. The trial court
determined that the alleged offenses were inextricably intertwined and a part of
the same pattern of conduct. In deciding to deny the motion for severance, the
trial court was persuaded by the Commonwealth’s argument that Thornton’s
conduct in attempting to flee from law enforcement authorities was predicated
upon his awareness that he was wanted for escaping the home incarceration
program.
On appeal, Thornton argues that the trial court abused its discretion in
declining to sever the charges. RCr 6.18 allows joinder where “the offenses are
of the same or similar character or are based on the same acts or transactions
connected together or constituting parts of a common scheme or plan.”
Debruler v. Commonwealth, 231 S.W.3d 752, 760 (Ky. 2007). If the “crimes are
closely related in character, circumstance, and time” joinder is proper. Cherry
4 We note that in the conclusion of this argument in Thornton’s brief, he requests that his convictions for second-degree wanton endangerment as to Officers Keeling and Hundley be dismissed. However, the jury instructions and verdict forms indicate that the jury found Thornton not guilty of second-degree wanton endangerment as to Officer Hundley.
13 v. Commonwealth, 458 S.W.3d 787, 794 (Ky. 2015). Further, “[a] criminal
defendant is not entitled to severance unless he positively shows prior to trial
that joinder would be unduly prejudicial.” Cohron v. Commonwealth, 306
S.W.3d 489, 493 (Ky. 2010).
“The trial court has broad discretion with respect to joinder and will not
be overturned in the absence of a showing of prejudice and a clear abuse of
discretion.” Id. The trial court abuses its discretion when it makes a decision
that is “arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). “If
evidence from one of the offenses joined in the indictment would be admissible
in a separate trial of the other offenses, the joinder of offenses generally will not
be prejudicial.” Cohron, 306 S.W.3d at 493.
Thornton argues that while a temporal connection between the events
exists, the charges arising from his home incarceration escape would not be
admissible if the trial court had ordered them tried separately from the April 2
charges occurring at the probation office. He states that the fact that he
escaped from home incarceration was not so intertwined with the incident in
the parking lot that his status as an escapee was necessary to prove the
parking lot crimes.
The Commonwealth counters that every other offense Thornton was
charged with was committed in furtherance of his escape. For example,
removing the anklet denied police GPS information about his location, making
him harder to find, and his actions in the probation office parking lot were
14 intended to extend his escape. We agree with the trial court that the events
were so intertwined as to justify joinder of the offenses.
At trial, one of the passengers in Thornton’s vehicle during the incidents
in the parking lot testified that she was scared and kept asking Thornton to
stop the car. Thornton told her that he could not stop and that he was on the
run. Thornton likely did not want to stop and submit himself to the police
because he knew he had violated the law by tampering with the anklet and
escaping from home incarceration. As Thornton cites,
the required nexus does not arise simply from the proximity of the alleged crimes in time and space, although proximity is certainly relevant, but rather from a “logical” relationship between them, some indication that they arose one from the other or otherwise in the course of a single act or transaction, or that they both arose as parts of a common scheme or plan.
Peacherv. Commonwealth, 391 S.W.3d 821, 837 (Ky. 2013). While Thornton
had also stolen a vehicle (or at least received a stolen vehicle) in the period
between escaping home incarceration and the events in the parking lot, he
clearly had a motive or plan for escaping incarceration in the first place and it
is likely that the parking lot incidents were in furtherance of that plan, rather
than him merely seeking to avoid being caught for stealing the vehicle.
Additionally, the Commonwealth argued that Thornton’s escape from home
incarceration was the reason Officer Hagan was at the probation office in the
first place because he was trying to locate Thornton. Officer Hagan was
responsible for supervising Thornton and had been searching for him since he
escaped on March 26. All the incidents that occurred after the tampering and
15 escape thus can be reasonably said to be part of Thornton’s scheme or plan to
escape and avoid home incarceration.
Here, evidence used to establish that Thornton tampered with the anklet
and left the confines of his home, in violation of the home incarceration terms,
was relevant to the other offenses. This evidence was necessary to establish
why Officer Hagan was looking for Thornton and why he devised a plan to try
to catch Thornton. The evidence also goes to establishing Thornton’s motive or
intent in committing the other crimes, such as wanton endangerment and
assault. As stated in Cohron, because the evidence from one offense would be
used in a trial for the other offenses, joinder is not prejudicial. 306 S.W.3d at
493. “Additionally, considerations of judicial economy and the efficiency of
avoiding multiple trials are reasons for joint trials.” Id. at 493-94. In
Thornton’s case, “[s]eparate trials would involve a great deal of duplicate
testimony, witnesses, and evidence.” Murray v. Commonwealth, 399 S.W.3d
398, 406 (Ky. 2013).
Moreover, Thornton failed to establish the requisite prejudice prior to
trial. “Because a defendant is prejudiced simply by virtue of being tried at all,
we require a defendant to show that he would be ‘unfairly prejudiced’ by a
joinder.” Parker v. Commonwealth, 291 S.W.3d 647, 656-57 (Ky. 2009).
During the hearing on his motion to sever, Thornton argued that the case
could be tried without admission of the fact that he was on home incarceration
for a felony charge when the other incidents leading to the indictment
occurred. While this may be true, Thornton offered little to support his
16 argument for severance, thereby failing to establish the necessary prejudice.
This Court has determined that “to be reversible, an erroneous joinder of
offenses must be accompanied by ‘a showing of prejudice’ to the defendant.
This showing of prejudice cannot be based on mere speculation, but must be
supported by the record.” Hammond v. Commonwealth, 366 S.W.3d 425, 429
(Ky. 2012) (citations omitted). Given the lack of evidence to support prejudice
from trying the charges together, we cannot say that the trial court abused its
discretion in denying the motion to sever.
The Commonwealth argues that even if denying severance of the charges
was error, it was harmless given that the evidence of the assault against Officer
Hagan was overwhelming. In his reply brief, Thornton alleges that the evidence
supporting the assault and wanton endangerment convictions was insufficient,
and that the Commonwealth ignores evidence presented by Detective Jaynes
suggesting that he did not believe he (Jaynes) was in danger during the
incidents in the parking lot, and evidence suggesting Thornton was
unconscious when the car went down the hill and onto the road. Because we
cannot find that the trial court abused its discretion in declining to sever the
charges, harmless error analysis is unnecessary. However, even if the evidence
presented was contradictory, assessing the credibility of witnesses and
determining the weight given to their testimony rests “within the unique
province of the jury.” .Ross v. Commonwealth, 531 S.W.3d 471, 477 (Ky. 2017).
17 IV. The Trial Court Did Not Err in Declining to Excuse a Juror for Cause. Thornton argues that the trial court erred in declining to excuse a juror
for cause. During voir dire, Thornton challenged Juror A for cause.5 Juror A
stated that he was a corrections officer whose home was recently broken into.
Initially, this juror expressed a grudge against criminals, but after a bench
conference with counsel and the trial court, Juror A indicated that he could be
impartial. Thornton made a motion to strike Juror A for cause, citing his initial
indication of a bias against criminals. The Commonwealth countered stating
that nothing Juror A said rose to the level of striking a juror for cause, and
highlighted that Juror A seemed to be upset with a specific group of
adolescents in his neighborhood that broke into his home. The trial court
considered both arguments and concluded that because Juror A stated he
could listen to the evidence and make a decision in the case based on what he
heard, the motion should be denied.
Thornton states that because the trial court did not strike Juror A for
cause, he was forced to use a peremptory challenge. If he had not had to use
his peremptory strike on Juror A, he would have used it on Juror B.6 Juror B
5 In his brief, Thornton identifies these jurors by their seven-digit identification numbers assigned by the trial court. For simplicity, we identify this juror as Juror A, and will identify other jurors later in this opinion as Jurors B, C, and D. 6 We note that in making his presentation to the trial court, Thornton’s counsel mistakenly gave the incorrect juror number for Juror A. Counsel referred to the juror as a male, but the identification number counsel provided was assigned to a female. However, given that Juror A was a corrections officer, and that Thornton identified him as such and referred to the juror as male, we note the error but believe that the trial court and the Commonwealth were aware of the correct juror Thornton was challenging.
18 made comments about her belief that her daughter “got what she deserved” by
being arrested and imprisoned. Thornton now points out that Juror B sat on
the jury that ultimately convicted him. He argues that there were reasonable
grounds to believe that Juror A was biased, and he should have been struck for
cause, thereby allowing him to use a peremptory strike on Juror B.
“When 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). “It is elementary that the
determination of whether to excuse a prospective juror rests within the sound
discretion of the trial judge and ought not to be set aside by a reviewing court
unless the error is manifest.” Peters v. Commonwealth, 505 S.W.2d 764, 765
(Ky. 1974). Therefore, on review the trial court’s decision will only be reversed
for clear error. Scruggs v. Commonwealth, 566 S.W.2d 405, 410 (Ky. 1978).
Thornton cites McDaniel v. Commonwealth, 341 S.W.3d 89, 92-93 (Ky.
2011), to state
the impartiality of a juror manifests itself as a state of mind, and not simply through the juror’s responses to questioning .... [A] juror may indicate that he or she can be impartial, but may demonstrate a state of mind to disprove that statement “by subsequent comments or demeanor so substantially at odds that it is obvious the [trial court] has abused [its] discretion in deciding the juror is unbiased.”
Thornton acknowledges that being a member of law enforcement is not enough
to strike a juror for cause, Mills v. Commonwealth, 95 S.W.3d 838, 842 (Ky.
2003), but argues that the fact that Juror A’s home was broken into four to five
months before trial constitutes bias.
19 The initial comments made by Juror A were concerning. He initially
indicated a bias toward all criminals. However, as the trial court explained, the
Commonwealth questioned Juror A and discovered the root of his bias, which
was directed at the young individuals in his neighborhood that committed the
crime. When questioned by the trial court during the bench conference, Juror
A indicated that he would give Thornton a “fair deal.” Further, he stated that
he did not know whether Thornton was guilty or innocent because he had not
yet heard the proof. He also explained that he was not leaning toward thinking
Thornton was guilty because he had not heard any proof — if the proof
indicated he was not guilty then he stated he could find him not guilty.
“Generally, the impartiality of a juror manifests itself as a state of mind,
and not simply through the juror's responses to questioning, although that
possibility certainly exists.” McDaniel, 341 S.W.3d at 92. “A trial court's
decision whether a juror possessed ‘this mental attitude of appropriate
indifference’ must be reviewed in the totality of circumstances. It is not limited
to the juror's response to a ‘magic question.”’ Montgomery v. Commonwealth,
819 S.W.2d 713, 718 (Ky. 1991). While it is true that a juror may indicate an
ability to be impartial, they “may demonstrate a state of mind to disprove that
statement ‘by subsequent comments or demeanor so substantially at odds that
it is obvious the [trial court] has abused [its] discretion in deciding the juror is
unbiased.’” McDaniel, 341 S.W.3d at 92 (quoting Shane v. Commonwealth, 243
S.W.3d 336, 338 (Ky. 2007)). Here, Juror A’s demeanor and subsequent
comments did not contradict the several indications that he could be impartial
20 and would give Thornton a “fair deal.” Juror A responded to Thornton’s, the
Commonwealth’s and the trial court’s various questions directed to any
potential bias and all of his answers indicated his ability to be impartial.
Thornton also argues that the juror was unable to consider the full range
of penalties: “It is difficult to imagine that a juror who holds a grudge against
all criminal defendants would be able to consider and impose a minimum
sentence on Michael Thornton, should he believe the evidence warranted it[.]”
Thornton then cites Springer v. Commonwealth, 998 S.W.2d 439, 456 (Ky.
1999), to support the proposition that jurors that cannot consider a full range
of penalties must be excused for cause. However, this is mere speculation.
Neither Thornton nor the Commonwealth questioned the juror on that point.
Thornton also points to Juror A’s initial comment that he did not agree
with what Thornton did, but Juror A immediately continued on to suggest that
he did not agree with any criminal act and he is against anyone that breaks the
law. Following this statement, the trial court asked Juror A whether he could
find Thornton not guilty if the proof was insufficient, noting that at that point
in time the court was dealing with mere allegations. Juror A affirmatively
stated that he could find Thornton not guilty if the proof did not establish his
guilt.
Thornton argues that Juror A’s answers to the “magic questions” asked
by the trial court do not render him impartial. Montgomery, 819 S.W.2d at
717. But the trial court must determine a juror’s impartiality based on the
totality of the circumstances. Shane, 243 S.W.3d at 338. Most people likely
21 harbor some type of bad feelings or thoughts about criminals. However, Juror
A made it clear that he could consider the evidence and find Thornton not
guilty based on the proof presented. When reviewing the totality of the
circumstances and the trial court’s questions to Juror A, we cannot say that
the trial court’s decision was clearly erroneous.
V. The Trial Court Did Not Err in Denying Thornton’s Batson Motion.
The venire started with eight African-American jurors and three of those
jurors served on the panel that actually heard the case. Of the original eight,
two were excused for hardship. Of the remaining six, Thornton struck one and
the Commonwealth struck two, Jurors C and D, the focus of Thornton’s Batson
challenge.
After the parties exercised their peremptory challenges, Thornton asked
the Commonwealth for its race-neutral reasons for striking Jurors C and D.
The Commonwealth provided reasons, and the trial court was satisfied that the
explanations for removing the two jurors were race-neutral and so overruled
the Batson challenge. Thornton argues that the trial court erred in denying his
Batson motion regarding Jurors C and D.
In Batson, the United States Supreme Court set forth a three-step
process for determining whether peremptory strikes were used to strike
jurors 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 22 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. Finally, the trial court has the duty to evaluate the credibility of the proffered reasons and determine if the defendant has established purposeful discrimination. 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.
Gamble v. Commonwealth, 68 S.W.3d 367, 371 (Ky. 2002) (internal quotations
and citations omitted). A trial court’s denial of a Batson motion is reviewed for
clear error. Washington v. Commonwealth, 34 S.W.3d 376, 380 (Ky. 2000).
This Court has determined that once the Commonwealth offers race-
neutral reasons for the peremptory strike and the trial court has ruled on the
discrimination issue the first step in the analysis — the defendant’s prima facie
showing of racial bias — is moot. Gamble, 68 S.W.3d at 371. Here the
Commonwealth provided race-neutral reasons for striking the jurors subject to
the Batson motion, rendering the first prong of the analysis moot.
The second prong of the test requires the Commonwealth to provide
“clear and reasonably specific” race-neutral reasons for the peremptory strikes
Id. The Commonwealth stated that Juror C had been sleeping during the
entire voir dire, and Juror D was “nodding off and acting disinterested,” and
had “rolled her eyes on a couple of occasions.” The second step of the Batson
analysis does not require the Commonwealth’s reasons for exercising a
peremptory strike to be persuasive or plausible. Purkett v. Elem, 514 U.S. 765,
767-68 (1995). This step is a “fairly low bar for the Commonwealth to meet.”
Mash v. Commonwealth, 376 S.W.3d 548, 555 (Ky. 2012). Here the facial
23 validity of the Commonwealth’s explanation is assessed and, unless
discriminatory intent is inherent in the justification for the strike, the proffered
reasons will be deemed race-neutral. Because there is no discriminatory intent
inherent in the Commonwealth’s explanations for striking Jurors C and D, the
second prong of the Batson analysis is satisfied. Hernandez v. New York, 500
U.S. 352, 360 (1991).
In the third step of the Batson analysis, the burden shifts back to the
party challenging the strike to prove “purposeful discrimination.” Hernandez,
500 U.S. at 359. The trial court must determine whether the Commonwealth’s
reasons behind exercising the strikes were merely a pretext for racial
discrimination. Chatman v. Commonwealth, 241 S.W.3d 799, 804 (Ky. 2007).
This step requires the trial court to assess the credibility and demeanor of the
attorneys. Commonwealth v. Coker, 241 S.W.3d 305, 308 (Ky. 2007). Since
this is comparable to a finding of fact, the trial court must be afforded great
deference. Chatman, 241 S.W.3d at 804.
Thornton argues that the Commonwealth’s reasons for striking Juror C
and D based on their inattentiveness were not valid race-neutral reasons, citing
Washington, 34 S.W.3d at 376. In Washington, this Court expressed concern
over the assertion that a juror appeared inattentive, given that no questions
were directed to that juror during voir dire. 34 S.W.3d at 379. Thornton points
out that the Commonwealth addressed no questions to either Jurors C or D
and specifically did not ask about their apparent inattentiveness, boredom, or
sleeping. However, during voir dire, the Commonwealth was questioning the
24 panel as a whole. Inattentiveness during general questioning, especially
sleeping, is an adequate reason for exercising a strike.
“[I]n the absence of exceptional circumstances,” appellate courts should
defer to the trial court in the third step of the analysis. Snyder v. Louisiana,
552 U.S. 472, 477 (2008). Here, the trial court determined that the
Commonwealth’s justifications for exercising the juror strikes were race-neutral
and satisfactory. Because Thornton has failed to prove purposeful
discrimination we conclude that the trial court’s denial of the Batson challenge
was not error.
CONCLUSION
For the foregoing reasons, we reverse and vacate Thornton’s second-
degree wanton endangerment conviction and affirm all other convictions.
Accordingly, we remand this case to the trial court for entry of a new judgment
consistent with this Opinion.
All sitting. All concur.
25 COUNSEL FOR APPELLANT:
Julia Karol Pearson Assistant Public Advocate Department of Public Advocacy
COUNSEL FOR APPELLEE:
Andy Beshear Attorney General of Kentucky
Joseph A. Newberg, II Assistant Attorney General Office of Criminal Appeals