RENDERED: DECEMBER 1, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2023-CA-0254-MR

DONJUAN JOHNSON APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT

v. HONORABLE SARAH E. CLAY, JUDGE

ACTION NO. 20-CR-001789

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND TAYLOR, JUDGES.

ECKERLE, JUDGE: This matter-of-right criminal appeal raises a sole issue 

regarding an alleged racial motivation by the Commonwealth during its exercise of 

one peremptory challenge. Finding no error, we affirm.
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BACKGROUND

The facts underlying the conviction are not disputed. Donjuan 

Johnson was indicted by a Jefferson County Grand Jury, which charged Johnson 

with one count of First-Degree Wanton Endangerment and one count of FourthDegree Assault for actions committed against the same victim, T.A. 

In short form, Johnson strangled and struck T.A. in the face during a 

discussion about their breakup. They had dated for six months prior to T.A. 

breaking up with Johnson. Following a phone call during which T.A. agreed to 

talk with Johnson about the breakup, T.A. went to Johnson’s mother’s house. T.A. 

stayed in her truck while talking with Johnson. T.A. believed Johnson had been 

drinking, so she declined to get out of the vehicle per Johnson’s request, which led 

to a verbal argument and eventually a physical altercation. Johnson somehow 

reached into the truck and began to strangle T.A., who thought she was dying and 

felt herself “leaving.”

Johnson’s mother came out and, according to T.A., told Johnson to 

get off of T.A. All three then went into the house at Johnson’s direction. T.A. 

could not see well, so she did what Johnson said. T.A. stated that Johnson broke a 

window and also threw a chair at T.A. Johnson was then screaming about things 

that were bothering him in his life, none of which had to do with T.A., who tried to 

calm Johnson down by cleaning up broken glass and being nice to Johnson. She 
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was at the house for about nine hours before managing to escape to her truck. T.A. 

went to her cousin’s house, and her cousin called the police. EMS took T.A. to the 

hospital, where several photographs of her bloodied and bruised condition were 

taken. She had broken blood vessels in her eyes, a busted lip, and strangulation 

marks around her neck. The photographs of T.A.’s injuries were shown to the 

jury. The prosecution introduced other testimony, including a nurse who testified 

about common injuries caused by strangulation, including broken blood vessels.

Johnson’s mother testified in his defense. She witnessed the fight 

between Johnson and T.A. but saw neither strangulation nor the beginning of the 

fight. She testified that T.A. was throwing punches at Johnson. She saw that T.A. 

had glassy eyes and thought that meant T.A. had been drinking. She denied that 

her son threw a chair and claimed that everyone was acting normally during the 

time spent in the house.

A jury found Johnson guilty of both charges and recommended a total 

imprisonment sentence of four years. The Trial Court followed the jury’s 

recommendation and sentenced Johnson to imprisonment for four years. Johnson 

timely appealed. Additional facts pertinent to the sole issue on appeal are detailed 

below.
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ANALYSIS

Johnson’s sole issue on appeal is a Batson challenge to the 

Commonwealth’s use of a peremptory challenge on a Black prospective juror. 

Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). We first 

outline the proper legal standards for a Batson claim, and then discuss the facts and 

analyze them in light of those legal standards. 

A. Legal standards for Batson challenges.

Batson requires a three-step process for evaluating a claim that a 

prosecutor’s peremptory challenge was used in a manner violating the Equal 

Protection Clause of the United States Constitution. Commonwealth v. Snodgrass, 

831 S.W.2d 176, 178 (Ky. 1992). First, the defendant must make a prima facie

showing that the prosecutor exercised the challenge on the basis of race. Id. If that 

showing is made, the prosecution must articulate a race-neutral reason for the 

strike. Id. Finally, the Trial Court must then determine whether the defendant has 

met his burden of proving purposeful discrimination. Id. at 178. Appellate review 

may be limited to the second and third prong. If the prosecutor offers a raceneutral explanation, and the Trial Court rules on the ultimate issue of intentional 

discrimination, then whether there was a prima facie showing becomes moot. Id. 

at 179. See also Hernandez v. New York, 500 U.S. 352, 359, 111 S. Ct. 1859, 

1866, 114 L. Ed. 2d 395 (1991) (“Once a prosecutor has offered a race-neutral 
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explanation for the peremptory challenges, and the [T]rial [C]ourt has ruled on the 

ultimate question of intentional discrimination, the preliminary issue of whether 

the defendant had made a prima facie showing becomes moot.”). 

Appellate review gives “great deference” to the Trial Court’s analysis 

because that analysis is “based upon issues ‘peculiarly within the trial judge’s 

province,’ such as the ‘demeanor and credibility of the prosecutor.’” Ross v. 

Commonwealth, 455 S.W.3d 899, 906 (Ky. 2015) (footnotes and citations 

omitted). “A trial court’s denial of a Batson challenge is reviewed for clear error.” 

Abukar v. Commonwealth, 530 S.W.3d 915, 917 (Ky. App. 2017) (citing

Washington v. Commonwealth, 34 S.W.3d 376, 380 (Ky. 2000)). 

B. Facts surrounding the Batson challenge.

The venire persons in the instant case were comprised of people from 

different races and genders. During voir dire, some of the venire persons were 

initially seated in certain places and later shuffled to others. Though the video and 

audio quality make for a challenging review of the record, the parties’ briefs have 

done yeomans’ jobs in providing ample detail about the locations of various jurors, 

including where they initially sat and where they finally sat. We would be remiss 

to not acknowledge both parties for providing ample citations to the record in 

conformity with our briefing rules. See RAP1 32(A)(3)-(4) (“ample references to 

1 Kentucky Rules of Appellate Procedure.
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the specific location in the record”); RAP 32(B)(3)-(4). The details provided in the 

briefs coupled with our review of the record show that, indeed, there was some 

shuffling of seats amongst the venire persons. Though not dispositive of the 

Batson challenge, this shuffling could have caused some confusion about which 

venire person was sitting in which seat.

Following voir dire and the Commonwealth’s exercise of a 

peremptory strike on Juror 28, Johnson presented a Batson challenge. The Trial 

Court then asked the Commonwealth for its race-neutral reason for the strike. The 

Commonwealth initially offered that the juror was a white female whom the 

prosecution tried to engage a few times, but the juror seemed disinterested. The 

Commonwealth noted that it was striking the juror because the juror was not 

engaged – the juror did not speak, did not address anything, did not ask any 

questions, and did not ask to approach the bench. Johnson initially argued they 

were not talking about the same juror, as Juror 28 was a Black male. The lead 

prosecutor then explained she may have erred when the jurors were being shuffled 

around in the back row, but she maintained that the juror was non-communicative,

and that was the reason for the strike. 

The Trial Court stated that according to her notes, Juror 28 was a male 

who did not say anything. The Trial Court could not recall if the person was 

Black, but she did note that the venire person did not say anything at all. The 
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parties then discussed that the jurors had been shuffled around in some seats at the 

beginning of voir dire, which may be the source of the confusion. The Trial Court 

then asked whether Juror 28 said anything at all, because the Trial Court had not 

written down that Juror 28 had said anything, and “that’s a race-neutral reason to 

strike the individual.” The Trial Court further noted the possibility that the 

Commonwealth was attempting to strike the wrong person.

The Commonwealth then responded that it was not trying to strike the 

wrong person. The Commonwealth noted that it tried to keep track of race as a 

reminder “if we ever need to have another reason to strike somebody for other 

reasons that were race neutral, but this is an individual I thought was a white 

woman.” The lead prosecutor disclaimed any intention to use race as a reason to 

strike any of the venire persons. Furthermore, the lead prosecutor noted Juror 28 

did not say anything and would not engage or make eye contact with the 

Commonwealth. The Trial Court then had the prospective jurors re-enter the 

courtroom and sit in their seats to figure out who Juror 28 was.

After the prospective jurors re-entered and sat in their seats, Juror 28 

was, indeed, a Black male. Following this clarification, the Trial Court asked the 

Commonwealth if it still intended on striking Juror 28, and if so, to offer the raceneutral reason. The Commonwealth continued with its peremptory challenge of 

Juror 28 and stated:
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Judge, for 28, my race-neutral reason was I had it written 

down as somebody that was, of course, the wrong skin 

color and gender, so I was not striking anyone I thought 

was a Black male. A white woman who I thought was 

sitting there. They weren’t saying anything. They never 

made eye contact, and I had it written down as would not 

make eye contact with me, and, uh, didn’t say anything. 

I have a blank that I remember not having anything on 

there. Counsel had nothing on there. I had the wrong 

gender written down, so obviously I did not choose a race 

motivated reason to strike 28. We were just going 

through, and people who didn’t say anything were getting 

struck because they didn’t say anything.

Video Record (VR) 11/30/22, 12:11:46. 

The Trial Court accepted these reasons as race neutral. The Trial 

Court held that both the misbelief that Juror 28 was a white woman and the fact 

that the juror said nothing at all were both race-neutral reasons for exercising a 

peremptory strike on Juror 28. 

C. Did the Trial Court err by overruling the Batson challenge?

Johnson claims the Trial Court erred by finding the Commonwealth’s 

reasons were race neutral. Johnson argues that a racially-motivated reason for the 

strike is shown because the Commonwealth initially wanted to strike what it 

believed was a white female who was nonresponsive but ultimately proceeded to 

strike a Black male. Johnson claims that the Commonwealth had an opportunity to

refrain from striking Juror 28 and could have changed its strike to a white female 
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who was sitting near Juror 28, as she was likely the juror the Commonwealth 

mistook as Juror 28 when the shifting of jurors occurred during voir dire. 

The Commonwealth in response argues that once the parties realized 

the error, the trial prosecutor never really requested that Juror 28 be struck. 

Instead, the Commonwealth notes that the trial prosecutor had no reason to request 

that her strike move to the white female juror, as Johnson had already exercised 

one of his peremptory challenges on that juror. Instead, the Commonwealth 

maintained that its race-neutral reason for the strike was a mistaken belief that it 

was not striking a Black male. The Commonwealth claims that it was the Trial 

Court that “essentially shifted the peremptory strike to [the Black male], even 

though the prosecutor did not ask [the Trial Court] to do that.” Appellee’s Brief at 

15. 

We do not agree with the Commonwealth’s novel interpretation of the 

facts. The Trial Court asked the Commonwealth if it intended on striking Juror 28, 

and, if so, what was the race-neutral reason for striking Juror 28. The 

Commonwealth then proceeded to give its race-neutral reasons for striking Juror 

28: (1) mistakenly writing down that Juror 28 was a white female; and (2) striking 

all jurors who were non-responsive. Clearly, the Commonwealth intended on 

striking Juror 28 after the clarification that Juror 28 was a Black man. 
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The Trial Court accepted the Commonwealth’s reasons as raceneutral, thus we do not review whether Johnson made a prima facie showing. 

Snodgrass, supra, and Hernandez, supra. Instead, we review the second and third 

steps in Batson where the Trial Court must evaluate the reasons given and 

determine if the challenger has met his burden of proving purposeful 

discrimination. Abukar v. Commonwealth, 530 S.W.3d at 918. While conducting 

our appellate review, we are cognizant that the Trial Court’s findings are

“‘peculiarly within a trial judge’s province’” and will “not be disturbed unless 

clearly erroneous.” Washington, 34 S.W.3d at 379-80 (quoting Snodgrass, 831 

S.W.2d at 179). The Trial Court is assessing the credibility and demeanor of the 

attorneys before it and evaluating the attorneys’ states of mind. Abukar, 530 

S.W.3d at 918 (citations omitted). In light of these standards and the evidence 

adduced at the trial, we find no clear error with the Trial Court’s ruling that the 

Commonwealth’s race-neutral reasons are valid and not pre-textual.

First, the Trial Court accepted as a race-neutral reason that the 

Commonwealth mistakenly believed that Juror 28 was a white woman. This 

finding is supported by substantial evidence in the record. There was a mix-up 

with the seating of the venire persons during voir dire. One of Johnson’s defense 

counsel even proffered that two of the venire persons “were switched, like, 
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accidentally” and admitted, “I guess, Judge, there’s some confusion, I guess, as to 

who was sitting in seat 28.” VR 11/30/22, 12:03:05. 

Having reviewed the record, there is substantial evidence to support 

that the Commonwealth erred when writing down the race and gender of Juror 28. 

Notably, other jurisdictions hold that honest mistakes are not evidence of racial 

bias. See, e.g., Aleman v. Uribe, 723 F.3d 976, 982 (9th Cir. 2013) (“[I]f a 

prosecutor makes a mistake in good faith, such as an innocent transposition of 

juror information, then that mistake does not support the conclusion that the 

prosecutor’s explanation is clearly not credible.”); United States v. Watford, 468 

F.3d 891, 912 (6th Cir. 2006) (prosecutor mistakenly listed the juror as white); 

United States v. Burrus, 375 F. App’x 323, 324 (4th Cir. 2010) (prosecutor 

mistakenly struck Black juror while intending to strike juror who was asleep 

during jury selection); State v. Gonzalez-Sandoval, 431 P.3d 850, 859 (Kan. 2018) 

(collecting cases). The Trial Court found the prosecutor’s reason to be credible, 

and we afford great deference on appeal to that factual finding. Roe v. 

Commonwealth, 493 S.W.3d 814, 827 (Ky. 2015). Accordingly, the Trial Court’s 

acceptance of this reason was not clearly erroneous.

Second, the Trial Court accepted as race neutral the Commonwealth’s 

stated reason that it intended on striking the non-responsive jurors. Johnson argues 

that the Trial Court erred in finding a juror’s failure to speak or engage is a race-
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neutral reason to exercise a peremptory challenge. Johnson cites Miller-El v. 

Dretke, 545 U.S. 231, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005), Foster v. 

Chatman, 578 U.S. 488, 136 S. Ct. 1737, 195 L. Ed. 2d 1 (2016), and Ross, 455 

S.W.3d 899. These cases are all distinguishable as they all involved substantial 

evidence of the prosecution’s discriminatory purposes.

Miller-El was a death-penalty case where prosecutors effectively 

removed 91% of Black potential jurors, including using peremptory strikes on 10 

of the 11 eligible Black venire persons. The prosecutors employed various 

racially-motivated tactics, including shuffling jurors and using more graphic 

questioning on Black jurors. And the Court could discern little difference between 

answers from Black and non-Black venire persons, leading the Court to conclude, 

“[i]f a prosecutor’s proffered reason for striking a black panelist applies just as 

well to an otherwise-similar nonblack [panelist] who is permitted to serve, that is 

evidence tending to prove purposeful discrimination[.]” 545 U.S. at 241, 125 S. 

Ct. at 2325. 

Foster was also a death-penalty case where prosecutors effectively 

removed 100% of the Black potential jurors, including using peremptory strikes on 

all four of the eligible Black venire persons. The prosecution’s research into the 

potential jurors included highlighting all Black venire persons and circulating the 

list amongst the prosecution’s office for input on whether the potential jurors 
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should be stricken. The evidence also included numerous other documents where 

the Black potential jurors were identified, including a list of “definite NO’s” 

identifying six names, five of which were qualified Black prospective jurors. And 

the evidence included the notes of an investigator for the prosecution where he 

opined, “If it comes down to having to pick one of the black jurors, [this one] 

might be okay.” Foster, 578 U.S. at 494, 136 S. Ct. at 1744. 

Finally, Ross concerned a Batson challenge where the prosecutor 

initially explained his reason for striking a Black female was: “In all honesty, I 

was striking women.” 455 S.W.3d at 905. This “silver platter by the 

Commonwealth” made the prima facie showing of gender discrimination. Id. at 

907. The prosecutor also made additional and substantial statements regarding 

gender differences during voir dire, including opining that his “[c]at used to be 

male but is no longer, so he might as well be female.” Id. The Kentucky Supreme 

Court found the Commonwealth failed to provide gender-neutral justifications for 

striking two potential jurors when the prosecutor offered that he “picked the jurors 

that I thought were the jurors that I liked,” which the Court deemed essentially a 

“gut feeling” or “prosecutor’s instinct” justification. Id. at 908. Notably, however, 

the Court was expressly not deciding whether the Commonwealth’s justifications 

for other prospective jurors were gender-neutral, including justifications that the 

jurors were, “looking ‘amazed,’ ‘waffling,’ and not paying attention . . . .” Id.
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(emphasis added). In summary, Miller-El, Foster, and Ross involved substantial 

evidence of improper discriminatory intent underlying the peremptory challenges. 

The instant case is not so infused with such evidence. The 

Commonwealth’s rationale – striking jurors who were not paying attention and not 

responsive – was a race-neutral reason. Thomas v. Commonwealth, 153 S.W.3d 

772, 778 (Ky. 2004) (“As demeanor is a race-neutral explanation, the 

Commonwealth met its burden of proof, shifting the burden back to Appellant.”). 

It was also a reason that was factually supported by substantial evidence, including 

the Trial Court’s own notes about Juror 28. Thus, the Trial Court’s ruling on the 

Batson challenge is not clearly erroneous.

CONCLUSION

Based on the record before us, the Trial Court’s findings on Johnson’s

Batson challenge are supported by substantial evidence, and Johnson has not met 

his burden of proof. The Trial Court did not err, and we AFFIRM the judgment 

and sentence.

ALL CONCUR. 
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BRIEFS FOR APPELLANT:

Michael C. Lemke

Louisville, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Jason Rothrock

Assistant Attorney General

Frankfort, Kentucky