Washington v. Commonwealth , 34 S.W.3d 376 ( 2000 )

GRAVES, Justice

On December 15, 1997, a Franklin County grand jury indicted Appellant, Toma Washington, on one count of capital murder, one count of robbery in the first-degree, and one count of being a persistent felony offender in the second degree. The charges stemmed from a shooting which occurred on December 3, 1997, following a fight in South Frankfort between a friend of Appellant’s, Ben Child, and Rodney Williams. Evidently, when the fight was over, Appellant approached Williams and fatally shot him once in the chest. On May 12, 1998, Appellant was convicted of capital murder and sentenced to life imprisonment.

On appeal, Appellant alleges six errors warrant reversal of his conviction: (1) a Batson violation; (2) an improper Allen charge; (3) failure to grant a new trial due to improper juror separation; (4) an improper allotment of peremptory challenges; (5) failure to grant a directed verdict; and (6) injection of a false issue.

I. BATSON CHALLENGE

The Commonwealth utilized its peremptory challenges to strike the only two African-Americans included in the thirty-one person venire. Prospective juror Keisha Redding was struck because she stated during the voir dire examination that she had recently served on a jury and would be unable to convict anybody else. The Commonwealth’s use of a peremptory strike on Ms. Redding was not challenged. However, Appellant claims the Commonwealth’s peremptory strike of the other prospective African-American juror, Robert Newberry, violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Based on a review of the record, we agree.

The record reveals that following voir dire on the morning of trial, the clerk announced the names of the chosen jurors and the trial court swore in the panel. Immediately thereafter, defense counsel raised a Batson objection to the Commonwealth’s striking of Mr. Newberry. The prosecutor responded that the Commonwealth had not struck Mr. Newberry, and the trial court and defense counsel were led to believe that he was eliminated by random draw. The bench conference concluded, and the trial court dismissed the non-selected jurors. Shortly thereafter, the clerk informed the trial judge that the Commonwealth had, in fact, used a peremptory challenge to strike Mr. Newberry. Until he was shown the strike sheet, the prosecutor continued to insist that he did not strike Mr. Newberry.

As a result, the trial court demanded reasons from the Commonwealth to support the peremptory challenge. The prosecutor first claimed Mr. Newberry was struck because of his youth. The trial court rejected this reason since Mr. New-berry was 43 years old. Next, the prosecutor asserted that Mr. Newberry “appeared bored” during voir dire. Again, the trial court rejected the explanation. Finally, the Commonwealth stated that Mr. New-berry had sat on an earlier jury that had returned an acquittal. Interestingly, the Commonwealth suggested that Mr. New-berry be placed back on the panel and the defense given the opportunity to strike any other juror. The trial court refused to accept any of the Commonwealth’s “race-neutral” explanations for the peremptory strike of Mr. Newberry, and directed the bailiff to locate the remaining prospective jurors who had been dismissed. Unfortunately, all of the prospective jurors had left the building and could not be located.

The trial court called a recess during which the Commonwealth reiterated the reasons for striking Mr. Newberry. Upon revisiting the matter, the trial court reversed its position stating, “I think juror inattention probably is sufficient reason to excuse the juror. I did observe that he was being somewhat inattentive.” Consequently, the trial court overruled Appellant’s Batson objection as well as denied the motion for a mistrial.

As a preliminary matter, the Commonwealth argues that the Batson challenge was not timely made and is therefore not preserved for review. We disagree. In Simmons v. Commonwealth, Ky., 746 S.W.2d 393, 398 (1988), cert. denied, 489 U.S. 1059, 109 S.Ct. 1328, 103 L.Ed.2d 596 (1989), we held that a Batson objection which is not raised before the swearing of the jury and the discharge of the remainder of the panel is untimely. However, the circumstances in this case are quite different. The trial court immediately swore the jury after the names were called. Defense counsel raised the objection as soon as was practically possible. Unfortunately, the problem was compounded by the fact that both defense counsel and the trial court believed Mr. Newberry had been eliminated by draw, and as such, excused all remaining jurors. The trial court even noted that the Commonwealth’s failure to correctly inform the court of its use of a peremptory strike on Mr. Newberry effectively denied defense counsel the opportunity to make a Batson argument before the remaining jurors were excused. It was not until the clerk notified the trial court that the Commonwealth had, in fact, struck both black jurors that the groundwork was laid for a Batson challenge. Thus, we conclude that the Batson challenge was timely, and will therefore address the merits of the issue.

Challenging prospective jurors on the basis of race violates the Equal Protection Clause. In Batson, supra, the United States Supreme Court outlined a three-step process for evaluating such claims. First, the defendant must make a prima facie showing of racial bias for the peremptory challenge. Second, if the requisite showing has been made, the burden shifts to the Commonwealth to articulate “clear and reasonably specific” race-neutral reasons for its use of a peremptory challenge. “ ‘While the reasons need not rise to the level justifying a challenge for cause,’ self-serving explanations based on intuition or disclaimers of discriminatory motive” are insufficient. Stanford v. Commonwealth, Ky., 79B S.W.2d 112, 114 (1990) (quoting Batson, supra, at 98, 106 S.Ct. at 1724.) 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. In order to permit the questioned challenge, the trial judge must conclude that the proffered reasons are, first, neutral and reasonable, and second, not a pretext. These two requirements are necessary to demonstrate “clear and reasonably specific ... legitimate reasons.”

Wright v. State, 586 So.2d 1024, 1028 (Fla.1991) (quoting State v. Slappy, 522 So.2d 18 (Fla.1988), cert. denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988)). Batson was not intended to remove all prosecutorial discretion in peremptory strikes, but rather to eliminate the odious practice of eliminating potential jurors simply because of race.

The most disturbing aspect of this case is the prosecutor’s insistence that he did not strike Mr. Newberry. Notably, when he was shown the strike sheet, his immediate response was “Oh my God.” Given the prosecutor’s initial denial, followed by his obvious surprise at the fact he had struck Mr. Newberry, subsequent explanations for the strike were disingenuous. Certainly age was not a sufficient reason to strike a 43-year-old man. Moreover, we are concerned by the assertion that Mr. Newberry appeared inattentive or bored, in light of the fact that no questions were directed toward him during voir dire. “Although [the prosecutor] is entitled to draw reasonable inferences, we are troubled by such complete reliance on bare hunches drawn from the juror’s demeanor.” Parker v. State, 219 Ga.App. 361, 464 S.E.2d 910, 912 (1995); see also Wright, supra at 1028. (Factors tending to show that asserted reason for peremptory challenge is either unsupported by the record or pretextual include failure to examine a juror or perfunctory examination.) Even the trial court initially ruled that inattentiveness was insufficient justification for the peremptory challenge. Finally, the Commonwealth’s third °proffered reason, namely that Mr. Newberry had previously served on a jury that returned an acquittal verdict may have been a sufficient race-neutral explanation. McGinnis v. Commonwealth, Ky., 875 S.W.2d 518 (1994), overruled on other grounds, Elliott v. Commonwealth, Ky., 976 S.W.2d 416 (1998). However, the Commonwealth provided nothing other than a bare assertion during the bench conference, and the trial judge accordingly rejected the reason. The Commonwealth was unable to provide the trial court any details of Mr. Newber-ry’s prior jury service until it filed the Commonwealth’s response to the motion for new trial some six weeks later. Had the prosecutor based the peremptory challenge on a legally sufficient reason, it is hard to understand why he was unable to articulate it earlier.

As with the state of mind of a juror, evaluation of the prosecutor’s state of mind, as well as the proffered reasons for the peremptory challenge, lies “peculiarly within a trial judge’s province.” Commonwealth v. Snodgrass, Ky., 831 S.W.2d 176, 179 (1992) (citing Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)). A trial court’s ruling on a Batson challenge will not be disturbed unless clearly erroneous. Unfortunately, after reviewing the proceedings in this case, we can reach no other conclusion but that the trial court erred in ruling that the Commonwealth proffered sufficient explanations to overcome the Batson challenge. The' Commonwealth’s strike of Mr. Newberry was, at best, inadvertent, and at worst, based on something other than a race-neutral reason. Thus, notwithstanding the fact that the evidence was undoubtedly sufficient to convict Appellant, we are compelled to reverse this case for a new trial because of the prosecutor’s failure to follow the Batson rule in exercising peremptory challenges.

II.

As the peremptory challenge issue is dispositive, we decline to address all other issues. We have reviewed Appellant’s remaining enumerations of error and find that they either lack merit or are unlikely to recur at trial.

The judgment and sentence of the Franklin Circuit Court are reversed, and this matter is remanded for a new trial.

LAMBERT, C.J., COOPER, GRAVES, JOHNSTONE, and STUMBO, JJ., concur. KELLER, J., dissents in a separate opinion in which WINTERSHEIMER, J., joins.