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ACTION.DANIEL GENE PERDUE 2019-SC-000274-MR

V. ON APPEAL FROM CALDWELL CIRCUIT COURT

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 AfricanAmerican. 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

2motion, 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

3in 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.

4The 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

5decision 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:

6First, 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.

7at 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

8frequently 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 sixmonth 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

9counsel ’ 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

10demeanor 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

11system 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

12to 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.

13COUNSEL 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

14