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NOT TO BE PUBLISHED OPINION 

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE 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 

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CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED 

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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED 

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ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE 

DOCUMENT TO THE COURT AND ALL PARTIES TO THE 

ACTION. 
ICEAN LJEAVGLJ. /-11-1[1.L Z, ZU1J 

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2014-SC-000069-MR 

MARKELLE D. WHITE 

U 17,4 S D Hi 

A 

APPELLANT 

ON APPEAL FROM JEFFERSON CIRCUIT COURT 

V. HONORABLE AUDRA JEAN ECKERLE, JUDGE 

NO. 10-CR-002815 

COMMONWEALTH COMMONWEALTH OF KENTUCKY APPELLEE 

MEMORANDUM OPINION OF THE COURT 

AFFIRMING 

Markelle White appeals as a matter of right from a Judgment of the 

Jefferson Circuit Court convicting him of murder. Ky. Const. § 110(2)(b). 

White raises two issues on appeal. First, he argues that the trial court erred to 

his substantial prejudice when it allowed the Commonwealth to exercise 

peremptory strikes against jurors. Second, White argues that the introduction 

of a witness's interview with police officers was erroneous. We now find no 

error and affirm the Judgment of the Jefferson Circuit Court. 

RELEVANT FACTS 

Appellant Markelle White was convicted by a Jefferson County jury of 

intentional murder for the shooting death of Lamont Wilson. At trial, the 

Commonwealth argued that White and co-defendant Lakendrick Charlton shot 

Wilson five times as he stood in the front yard of his home shortly after 

midnight on September 8, 2010. Various neighbors and other witnesses 
testified to observing a verbal altercation between White, Charlton, and Wilson. 

Another neighbor testified to witnessing three men fire shots at Wilson after he 

advised a large group of people assembled outside of his house to turn their 

music down. A surveillance video at a nearby liquor store captured images of 

White moving towards the scene, followed by visible gunfire. The 

Commonwealth played a video of a police interview with a witness, Chris 

Mayfield, who told the detectives that White confessed to shooting Wilson. The 

jury deliberated and recommended a life sentence, which was then imposed by 

the trial court. This appeal followed. 

ANALYSIS 

I. The Commonwealth is Entitled to Peremptory Strikes. 

Before voir dire, the trial court allocated thirteen peremptory strikes to 

the defense and nine peremptory strikes to the Commonwealth pursuant to 

Kentucky Rule of Criminal Procedure (RCr) 9.40. The challenges were 

exercised without objection. White now maintains that the trial court 

improperly allocated peremptory strikes to the Commonwealth, asserting that 

the statute establishing a prosecutorial right to peremptory strikes, Kentucky 

Revised Statute (KRS) 29A.290, represents an unconstitutional delegation of 

legislative power. 

Under KRS 29A.290(2)(b), the legislature has provided that "parties shall 

have the right to challenge jurors," and "[t]he number of peremptory challenges 

shall be prescribed by the Supreme Court." The Court has promulgated RCr 

9.40, our criminal rule prescribing the allocation of peremptory strikes in a 

2 
criminal prosecution. Under that rule, "the Commonwealth is entitled to eight 

(8) peremptory challenges and the defendant or defendants jointly to eight (8) 

peremptory challenges" in felony prosecutions, with the numbers increased to 

nine and thirteen respectively in cases such as this where an extra juror was 

seated and two defendants are being tried jointly. RCr 9.40. White maintains 

that no right to prosecutorial challenges existed at common law, and, therefore, 

the legislature cannot delegate its lawmaking authority to the Supreme Court 

under KRS 29A.290(2)(b). 

The Commonwealth urges this Court not to consider the merits of 

White's claim because he failed to provide notice of the constitutional challenge 

to KRS 29A.290(2)(b) to the Attorney General as required by KRS 418.075. 1We 

have held that the mandatory notification requirement of KRS 418.075 cannot 

be satisfied by filing an appellate brief. Benet v. Commonwealth, 253 S.W.3d 

528, 532 (Ky. 2008). As White has failed to comply with KRS 418.075, we 

must decline to address the merits of White's argument. 

Against this result, White urges this Court to revise our policy of strict 

adherence to KRS 418.075 and assess his claim on the merits. While we find 

this argument unpersuasive, 2we note that this Court has recently addressed 

1KRS 418.075(1) provides: "In any proceeding which involves the validity of a 

statute, the Attorney General of the state shall, before judgment is entered, be served 

with a copy of the petition, and shall be entitled to be heard, and if the ordinance or 

franchise is alleged to be unconstitutional, the Attorney General of the state shall also 

be served with a copy of the petition and be entitled to be heard." 

2Citing Commonwealth v. Johnson, 423 S.W.3d 718 (Ky. 2014), White contends 

that because the Attorney General cannot intervene in "ordinary criminal 

prosecutions" without statutory permission to do so, the notice requirement of KRS 

418.075 cannot serve as a procedural bar to a constitutional challenge of a statute. In 

3 
the propriety of prosecutorial peremptory strikes. In Glenn v. Commonwealth, 

we declared that "although KRS 29A.290(2)(b) constitutes an encroachment by 

the General Assembly upon the prerogatives of the judiciary, it is not 

inconsistent with our rules, and is, therefore, upheld as a matter of comity." 

436 S.W.3d 186, 188 (2013) (citing Commonwealth v. Reneer, 734 S.W.2d 794, 

797 (Ky. 1987) (internal quotations omitted). Citing our authority under 

Section 116 of the Kentucky Constitution, we affirmed RCr 9.40 substantively, 

and reaffirmed our constitutional power as a Court to promulgate rules of 

practice and procedure—including our authority to set the rules for the 

allocation of peremptory strikes. "We alone are the final arbiters of our rules of 

`practice and procedure."' 436 S.W.3d at 188. 

So although the Glenn decision did not squarely address the 

constitutionality of KRS 29A.290(2)(b), this Court deemed the statute 

acceptable by way of comity. "Comity, by definition, means the judicial 

adoption of a rule unconstitutionally enacted by the legislature not as a matter 

of obligation but out of deference and respect." Taylor v. Commonwealth, 175 

S.W.3d 68, 77 (Ky. 2005) (internal citations omitted). In extending comity, we 

the alternative, White argues that KRS 418.075 does not apply to criminal 

prosecutions at all. The answer to both of White's contentions is a settled one: the 

Attorney General is entitled to notice under KRS 418.075 "whenever the 

constitutionality of a statute is placed in issue." Maney v. Mary Chiles Hosp., 785 

S.W.2d 480, 481 (Ky. 1990) (emphasis added). By its plain language, KRS 418.075 

permits the Attorney General to intervene in cases when the constitutionality of a 

statute is put in issue. See Brashars v. Commonwealth, 25 S.W.3d 58 (Ky. 2000). Our 

recent decision in Commonwealth v. Johnson affirming the Attorney General's 

authority to enforce and investigate drug crimes in no way undermines the validity of 

KRS 418.075. See 423 S.W.3d at 725. 

4 
recognized that KRS 29A.290(b)(2) is consistent with our rules of practice and 

procedure. Glenn, 436 S.W.3d at 188. 

White's appellate counsel ("counsel") takes great umbrage with what he 

characterizes as this Court's refusal to "do anything about KRS 29A.290." Lest 

counsel believes that he is shouting against the wind, we acknowledge that he 

has repeatedly raised iterations of this precise issue in other recent matter of 

right appeals. 3Undaunted by our clear articulation of the Court's position on 

the statute's validity in Glenn, counsel proceeded to raise the same issue in 

three post-Glenn appeals (including this one). 4These post-Glenn appeals follow 

a familiar formula: first, there is a failure to comply with the notification 

requirement of KRS 418.075 at the trial level; and second, there is an attack on 

the constitutionality of KRS 29A.290 before an appellate court. Although Glenn 

was rendered after the conclusion of White's trial, 5counsel cites Glenn here, 

and has contemplated its import having participated as appellate counsel in 

that case. Moreover, counsel was effectively on notice that the Attorney 

3In Grider v. Commonwealth, appellant's counsel argued that RCr 9.40 exceeds 

this Court's constitutional authority under Section 116, and that KRS 29A.290(2)(b) 

violates the separation of powers. 404 S.W.3d 859, 861 (Ky. 2013). The Court 

declined to address the issue in Grider because the appellant failed to notify the 

Attorney General pursuant to KRS 418.075(1). See id. Months later in Glenn, 

appellant's counsel (listed as one of three attorneys who handled appellant Glenn's 

appeal) again challenged the validity of RCr 9.40 for essentially the same reasons 

argued in Grider. 436 S.W.3d at 188. As with Grider, the Attorney General was never 

notified, and the Commonwealth argued that this Court could not address the 

constitutional challenge to RCr 9.40 in Glenn. Id. However, the Court concluded that 

no notice is required when challenging the constitutionality of a Supreme Court Rule. 

Id. 

4 See also Adkins v. Commonwealth, 2014 WL 2810040, No. 2013-SC-000460-

MR (Ky. 2014) and Prickett v. Commonwealth, 427 S.W.3d 812 (Ky. Ct. App. 2013). 

5The Glenn opinion was issued on November 21, 2013 and became final on 

February 20, 2014. 

5 
General must be notified before a final judgment is entered in order to preserve 

a constitutional challenge, and also that any attack on the validity of KRS 

29A.290 would have to address Glenn's extension of comity. 

To see this argument raised once again conjures up images of Justice 

Scalia's oft-referenced ghoul who "repeatedly sits up in its grave and shuffles 

abroad, after being repeatedly killed and buried[.]" 6As explained above, Glenn 

held that the allocation of peremptory strikes falls within the Court's 

procedural rulemaking authority and extended comity to KRS 29A.290(2)(b). 

Id. Therefore, to appellant's counsel's spirited charge that this Court has failed 

to "do anything" concerning the alleged invalidity of prosecutorial peremptory 

strikes, let us be clear: the Court has upheld KRS 29A.290(2)(b) under the 

principles of comity. We reaffirm that decision today. 

II. Police Interview With Witness Was Properly Admitted. 

On the second day of trial, the Commonwealth called the victim's former 

neighbor, Christopher Mayfield, to testify. On direct examination, Mayfield 

explained that he suffered a recent brain injury that prevented him from 

remembering any details about Wilson's shooting, including whether he was in 

the vicinity at the time of the shooting, whether he spoke with police officers 

after the shooting, or whether he spoke to White after the shooting. On crossexamination, Mayfield reiterated that he could not remember anything about 

the events of September 8, 2010. 

6 Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (1993) 

(J. Scalia, dissenting). 

6 
Detective Chris Middleton was then called to testify about a September 9, 

2010 interview with Mayfield. Before Detective Middleton took the stand, the 

prosecutor asked the trial court how a video of the interview should be played 

for the jury. White's counsel objected to the introduction of the video on two 

grounds: 1) that Mayfield was incompetent to testify, and; 2) that the statement 

was hearsay. White's counsel asserted that effective cross-examination would 

be impossible if the video interview was substituted for Mayfield's live 

testimony. In response, the Commonwealth maintained that White's 

competency objection was untimely given that Mayfield had testified the day 

prior. As to the hearsay objection, the Commonwealth argued that Mayfield's 

testimony that he could not remember what he had said to the officers 

established the proper foundation for impeachment under McAtee v. 

Commonwealth.? The trial court agreed with the Commonwealth that White's 

objection to Mayfield's competency was untimely, and further held that the 

Commonwealth had laid the proper foundation for impeachment. The video of 

Mayfield's interview was then played for the jury. 

White now charges that the video violated our evidentiary rules against 

the introduction of hearsay statements, specifically asserting that the 

Commonwealth failed to lay the proper foundation for the video's introduction 

pursuant to KRS 613. We disagree. 

As a general rule, hearsay statements, that is, out-of-court statements 

offered to prove the truth of the matter asserted, are inadmissible. KRE 802. 

7413 S.W.3d 608 (Ky. 2013). 

7 
Our rules against the admission of hearsay are designed in part to protect the 

accused from the introduction of unreliable statements that have not been 

submitted to the rigors of cross-examination by the accused. This guarantee 

is, of course, rooted in the Sixth Amendment's Confrontation Clause, which 

provides that "[i]n all criminal prosecutions, the accused shall enjoy the right 

. . . to be confronted with the witnesses against him." See Crawford v. 

Washington, 541 U.S. 36 (2004). One exception to our prohibition against 

hearsay statements concerns the prior inconsistent statements of a witness, as 

provided in KRE 801A as follows: 

(a) Prior statements of witnesses. A statement is not excluded 

by the hearsay rule, even though the declarant is available as a 

witness, if the declarant testifies at the trial or hearing and is 

examined concerning the statement, with a foundation laid as 

required by KRE 613, and the statement is: 

(1) Inconsistent with the declarant's testimony; 

(2) Consistent with the declarant's testimony and is 

offered to rebut an express or implied charge against the 

declarant of recent fabrication or improper influence or 

motive; or 

(3) One of identification of a person made after perceiving 

the person. 

In our recent McAtee v. Commonwealth decision, we were asked to 

determine whether prior inconsistent statements can be admitted to impeach a 

witness who claims to not remember making the statement. 413 S.W.3d at 

618. The factual scenario in McAtee is very similar to what we have before us 

in the case at bar. In McAtee, the trial court admitted a witness statement 

given to police officers—a statement that the witness later testified to having no 

memory of making. Id. at 617-18. Relying on the Supreme Court's seminal 

8 
Crawford v. Washington decision, we reiterated that the Confrontation Clause 

does not constrain the use of a prior inconsistent statement when the 

"declarant is present at trial to defend or explain it." Id. (quoting Crawford, 541 

U.S. at 59 n.9). Going further, McAtee applied United States v. Owens, 484 

U.S. 554 (1988), where the Supreme Court held that a defendant is not denied 

the Sixth Amendment right to cross-examine a witness simply because that 

witness claims memory loss. 8Reading Crawford alongside Owens, we 

concluded that "the Confrontation Clause is not implicated by a witness 

claiming memory loss if he or she takes the stand at trial and is subject crossexamination." McAtee at 619. Because the forgetful witness in McAtee was 

subjected to cross-examination about the prior statements, we found no error. 

Id. 

As a threshold matter, we agree that defense counsel's objection at trial 

was sufficient to preserve the issue for appellate review. Defense counsel's 

hearsay objection concerned White's right to cross-examine Mayfield, referring 

to White's right to confrontation. The Commonwealth cited McAtee as 

controlling. Under McAtee, as explained supra, a prior inconsistent statement 

used to impeach a witness who claims to suffer from memory loss does not 

implicate a defendant's right to confrontation. 413 S.W.3d at 618. In order to 

introduce a prior inconsistent statement, the proponent of the statement must 

8 "If the ability to inquire into these matters suffices to establish the 

constitutionally requisite opportunity for cross-examination when a witness testifies as 

to his current belief, the basis for which he cannot recall, we see no reason why it 

should not suffice when the [witness's] past belief is introduced and he is unable to 

recollect the reason for that past belief." Owens, 484 U.S. at 559. 

9 
lay the proper foundation pursuant to our rules of evidence. KRE 613. The 

issue of an improper foundation here (that is, where a declarant has claimed 

memory loss) is so closely intertwined with the confrontation/hearsay objection 

that we are satisfied that the trial court properly considered the question before 

making its ruling so as to preserve the issue for our review. 

As for the introduction of the statement to police, we find no error. In his 

taped interview, Mayfield stated that White confessed to shooting Wilson, 

claiming that Wilson tried to punch him, prompting White to shoot him. As 

noted previously, Mayfield testified at trial that he had no knowledge of the 

shooting, nor did he recall giving a statement to detectives. 9That testimony 

was subjected to examination. Therefore, Mayfield's statements constituted 

prior inconsistent statements because they were "[i]nconsistent with the [his] 

testimony," and he was "examined concerning the statement[.]" KRE 801A(a). 

Under the principle espoused in McAtee, the Commonwealth was entitled to 

introduce any prior inconsistent statements made by Mayfield, so long as it 

first established the proper foundation under KRE 613. 

A party seeking to admit a prior inconsistent statement must first 

"[inquire of the declarant] concerning [the statement], with the circumstances 

of time, place, and persons present, as correctly as the examining party can 

9 White argues that no KRE 804 exception applies here. Exceptions to our 

prohibition against out-of-court statements include some instances where a witness is 

unavailable to testify, such as when a witness "[t]estifies to a lack of memory of the 

subject matter of the declarants statement." KRE 804(3). Mayfield undoubtedly 

qualifies as an unavailable declarant. However, the application of the KRE 804(b) 

(hearsay exceptions when the declarant is unavailable) is immaterial, as our prior 

inconsistent statement rule applies whether or not the declarant is available. KRE 

801A(a)(1). 

10 
present them[.]" KRE 613. White now insists that the Commonwealth failed to 

meet its burden under KRS 613, arguing that the Commonwealth was required 

to lay a foundation for each utterance made during Mayfield's police interview. 

To the contrary, we agree that under McAtee, the Commonwealth established a 

proper foundation for the introduction of the police interview. The 

Commonwealth asked Mayfield if he remembered giving a statement to 

Detective Middleton; Mayfield testified that he did not. When asked about 

specific statements, Mayfield replied that he could not recall making any 

statements. Mayfield's testimony was unequivocal that he would be unable to 

answer any questions concerning Wilson's shooting or his interview with 

Detective Middleton. 

It was abundantly clear that nothing more could have been gained by 

questioning Mayfield as to the specifics of his interview with police. Rather, 

because Mayfield was available for cross-examination at trial, at which time he 

claimed to not recall giving a statement to the police, the Commonwealth was 

entitled to impeach him with the video of the police interview. McAtee, 413 

S.W.3d at 619. As such, we agree that the trial court did not err in allowing 

the Commonwealth to introduce Mayfield's police interview. 

CONCLUSION 

For the reasons stated herein, we affirm the judgment and sentence of 

the Jefferson Circuit Court. 

All sitting. All concur. 

11 
COUNSEL FOR APPELLANT: 

Daniel T. Goyette 

Louisville Metro Public Defender 

James David Niehaus 

Deputy Appellate Defender 

COUNSEL FOR APPELLEE: 

Jack Conway, Attorney General of Kentucky 

Gregory C. Fuchs 

Assistant Attorney General 

12