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NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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.
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2007-SC-000310-MR

MICHAEL POINTS APPELLANT

ON APPEAL FROM JEFFERSON CIRCUIT COURT

V. HONORABLE GEOFFREY P. MORRIS, JUDGE

NO. 05-CR-003024 AND 06-CR-000608

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

RENDERED: DECEMBER 20, 2007

NOT TO BE PUBLISHED

This case is on appeal from the Jefferson Circuit Court where Appellant, Michael

Points, was convicted of trafficking in a controlled substance in the first degree,

disregarding a stop sign, and being a persistent felony offender and was sentenced to

twenty-one years' imprisonment. Appellant now appeals to this Court as a matter of

right . Ky. Const. Sec. 110(2)(b) .

Appellant raises three claims of error: (1) that the Commonwealth's reasons for

striking two African American jurors were improper; (2) that the jury was provided an

incorrect verdict form; and (3) that the trial court should have suppressed evidence

obtained from an illegal search .

Because Appellant's claim concerning the verdict form was not properly

preserved for appellate review, the Court will only reverse them if they constitute

palpable error under RCr 10.26. A palpable error is one that "affects the substantial
rights of a party" and will result in "manifest injustice" if not considered by the court.

Schoenbachler v. Commonwealth, 95 S .W.3d 830 (Ky. 2003) (citing RCr 10.26).

Recently this Court clarified that the key emphasis in defining such a palpable error

under RCr 10.26 is the concept of "manifest injustice ." Martin v. Commonwealth, 207

S .W.3d 1, 3 (Ky. 2006). "[T]he required showing is probability of a different result or

error so fundamental as to threaten a defendant's entitlement to due process of law."

Id. Having reviewed Appellant's argument, the Court concludes that there was no

manifest injustice . The alleged error was neither "shocking" nor "jurisprudentially

intolerable." Id . at 4. Therefore,it cannot be considered palpable and is not grounds for

reversal.

Finding no error with respect to Appellant's two remaining issues, this Court

a

affirms the ruling of the trial court.

I . Background

Appellant was stopped when Officer Kristin Downs observed him drive a moped

through a stop light. Officer Downs approached the moped and asked Appellant for his

license . Appellant stated that the address on the license was incorrect and gave his

correct address. She noticed at this time that the moped did not have a flag or a license

tag . Officer Downs also noted that Appellant was wearing a home incarceration

bracelet. She asked Appellant if he had "anything on him that would get him into

trouble, any guns or drugs ." At first, Appellant replied, "Yeah." Officer Downs waited for

Appellant to produce the contraband . - When he did not, she repeated the question and

he responded, "No ." When Officer Downs asked about his conflicting answers,

Appellant replied he hadn't heard her.
Officer Downs decided to perform a pat down search of Appellant . She

immediately recognized crack cocaine in Appellant's pocket. She removed 37 pieces of

individually wrapped cocaine, placed them in an envelope and gave them to another

officer on the scene. Appellant was then arrested .

11 . Analysis

A. Batson Challenge

In using its nine peremptory strikes, the Commonwealth struck three African

American jurors, #1, #32 and #38 out of five left on the jury panel . Appellant raised an

objection pursuant to Batson v. Kentucky, 476 U .S . 79, 106 (1986). The trial court

granted Appellant's objection as to Juror #38, but denied his objections to Jurors #1 and

#32 .

Under Batson, there is a three step process to determine whether a prosecutor

has used peremptory challenges to strike jurors on the basis of race: (1) the defendant

must make a prima facie showing that the prosecutor has exercised peremptory

challenges on the basis of race; (2) if this showing is made, the burden shifts to the

prosecutor to articulate a clear and reasonably specific race-neutral explanation for

striking the jurors in question and (3) the trial court must evaluate the credibility of the

proffered reasons and determine whether the defendant has carried his burden of

proving purposeful discrimination . 476 U .S. 79 at 96-98. On appellate review, a trial

court's denial of a Batson challenge will not be reversed unless clearly erroneous.

Hernandez v. New York, 500 U.S . 352, 369 (1991); Washington v. Commonwealth , 34

S.W.3d 376, 379-80 (Ky. 2000).
The Commonwealth argues that Appellant failed to satisfy the first step of Batson

by making a prima facie showing of racial discrimination . However, the judge indicated

that "three strikes out of nine of the remaining five African Americans does concern me ."

To make a prima facie case, Appellant must show he is a member of a cognizable racial

group, Castaneda v. Partida, 430 U .S. 482 (1977), quoted in Batson , 476 U .S . at 84,

and he must show that these facts and any other relevant circumstances raise an

inference that the prosecutor used that practice to exclude jurors on the basis of race.

Id. at 96 . The concerns raised by Appellant in his objection, and the judge's comments

regarding his concern that so many African Americans had been stricken, satisfy this

requirement.

The Commonwealth then proceeded to provide "race neutral reasons" for striking

the two jurors. Regarding Juror #1, the Commonwealth explained that this juror did not

respond to any questions; she sat in a corner "dipped down" and covering her face; she

looked straight ahead and did not look at either attorney; she showed no emotion and

did not appear to be paying attention. Appellant alleges that this juror was outside the

view and hearing of the video record . While that appears to be the case, both parties

agree that Juror #1 did not respond to any questions during voir dire.

Regarding Juror #32, the Commonwealth explained that this juror did not raise

his hand when asked whether he or anyone he knew worked in law enforcement, even

though his juror information sheet indicated that he was a correctional officer at the

Kentucky Correctional Institute for Women.

As courts in many jurisdictions have held, striking jurors who appear inattentive is

a racially-neutral reason for utilizing a peremptory strike . See Messiah v. Duncan, 435

F .3d 186, 200 (2nd Cir. 2006); United States v. Knight, 342 F.3d 697 (7th Cir. 2003);
United States v. Copeland, 321 F .3d 582, 599 (6t " Cir. 2003). The Commonwealth gave

a thorough explanation for why it thought Juror #1 was inattentive and the trial court

accepted that explanation .

Juror #32 gave an answer the Commonwealth felt was inconsistent with the

information on his juror information sheet. According to the Commonwealth, this was

either due to the juror's inattentiveness or his dishonesty. Appellant claims, however,

that Juror #32 did not fail to answer, or answer dishonestly, stating that the only

questions asked were whether anyone was a lawyer or police officer or had friends or

relatives in law enforcement. Appellant alleges that a correctional officer is not a police

officer and the Commonwealth counters that corrections officers have full powers of

arrest. This hair splitting is unnecessary. While these nuances might be relevant in

determining whether a challenge for cause should have been granted, the explanation

given by the Commonwealth was sufficient for a peremptory strike . See Batson at 97.

The trial court proceeded through the steps under Batson appropriately. There

was nothing erroneous about the trial court's conclusions as to Jurors #1 and #32 as the

Commonwealth gave reasonable race-neutral reasons for striking them .

B. Motion to Suppress

A month prior to trial, Appellant filed a pro se motion to suppress evidence . On

the morning of the first day of trial, Appellant's counsel filed a second motion to

suppress. Both motions challenged the admissibility of Appellant's statements to Officer

Downs, and of the cocaine found on Appellant during the pat down search. On the

morning of trial, the trial court conducted a hearing on the issue and overruled

Appellant's motions. Since the factual findings of the trial court shall be conclusive if

supported by substantial evidence, RCr 9.78, Appellant has the burden to show that the
trial court's ruling was clearly erroneous. See Commonwealth v. Banks, 68 S.W .3d 347,

349 (Ky. 2001) .

Appellant alleges that Officer Downs's questioning of him exceeded the purpose

of the stop. During the suppression hearing, Officer Downs testified to the following

reasons for why she searched Appellant :

1 . The area where Appellant was traveling was a "high crime area."

2 . The moped Appellant was riding had no flag or registration plate.

3. Appellant's address was incorrect on his license.

4. Appellant was wearing an ankle home incarceration bracelet.

5 . When Appellant was asked whether he had any drugs or guns on him, he

answered, "Yeah," then answered "No" when asked a second time.

Officer Downs stated that she performed the pat-down search based on the totality of

the circumstances, and cited the reasons stated above to establish her purpose of

searching for weapons. While feeling Appellant's leg, Officer Downs felt what she

recognized as crack cocaine in Appellant's pocket.

Appellant argues that once Officer Downs had run his license and checked the

VIN number of the moped, that he should have been issued a citation and that the stop

should have concluded. Officer Downs's detention of Appellant was not, however,

unreasonable . "Questions that hold potential for detecting crime, yet create little or no

inconvenience, do not turn reasonable detention into unreasonable detention ." Ohio v.

Robinette , 519 U.S . 33 (1996) quoted in Garcia v. Commonwealth, 185 S .W.3d 658,

667 (Ky. App . 2006). Officer Downs's questions about whether Appellant had any

contraband did not detain Appellant any longer than he otherwise would have been .
Where a police officer observes "unusual conduct which leads him reasonably to

conclude in light of his experience that criminal activity may be afoot. . . where in the

course of investigating this behavior he identifies himself as a policeman and makes

reasonable inquiries. . . he is entitled for the protection of himself and others. . . to conduct

a carefully limited search. . . in an attempt to discover weapons." Terry v. Ohio, 392 U .S .

1, 30 (1968).

Appellant's conflicting answers to these questions, combined with the other facts

Officer Downs testified to, were enough to give her reasonable suspicion to conduct a

pat-down search. The trial court's ruling on Appellant's motion to suppress was proper.

Ill . Conclusion

For the forgoing reasons, the decision of the trial court is affirmed .

All sitting . All concur.
COUNSEL FOR APPELLANT:

Daniel T. Goyette

Louisville Metro Public Defender

200 Advocacy Plaza

719 West Jefferson Street

Louisville, Kentucky 40202

Cicely Jaracz Lambert

Deputy Appellate Defender

Louisville Metro Public Defender

200 Advocacy Plaza

719 West Jefferson Street

Louisville, Kentucky 40202

COUNSEL FOR APPELLEE:

Gregory D. Stumbo

Attorney General

Perry T. Ryan

Assistant Attorney General

Criminal Appellate Division

Office of the Attorney General

1024 Capital Center Drive, Suite 200

Frankfort, Kentucky 40601-8204