RENDERED: APRIL 30, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-0538-MR

DARRYL KEITH BAKER APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT

v. HONORABLE LUCY A. VANMETER, JUDGE

ACTION NO. 18-CR-00637

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

REVERSING AND REMANDING

**   **  **

BEFORE: COMBS, JONES, AND MCNEILL, JUDGES.

JONES, JUDGE: Darryl Keith Baker appeals from the Fayette Circuit Court’s 

final judgment and sentence of imprisonment entered on March 13, 2019. At his 

jury trial, aside from a number of misdemeanor convictions, Baker was also

convicted of third-degree assault. He was sentenced to two-years’ imprisonment

on that charge, which was enhanced to fifteen years by being a first-degree 
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persistent felony offender (PFO). After careful consideration, we reverse and 

remand for a new trial based on the trial court’s erroneous application of Batson v. 

Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986) and its progeny.

I. Background

During the late evening hours of March 27, 2018, police officers were 

investigating an automobile parked outside the Day’s Motel on Versailles Road in 

Lexington. Police officers later described the Day’s Motel as being in a “high call 

volume” area. Baker, a homeless black man, occupied the front passenger seat of 

the vehicle. While the officers were questioning Baker, they repeatedly directed 

him to keep his hands in view, because Baker kept placing his hands inside his 

jacket. The officers asked Baker for permission to search the vehicle. Baker 

declined, stating the vehicle did not belong to him and he only had the owner’s 

permission to stay there. 

After declining to give permission to search, Baker once again hid his 

hands, this time dropping them below the seat. To ensure Baker was not reaching 

for a weapon, an officer opened the door of the vehicle. When the door opened, 

Baker became aggressive, jumping out of the vehicle with his fists clenched and 

growling at the officers. At this point, the officers intended to arrest Baker for 
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menacing1and ordered him to get on the ground. When Baker did not comply, 

Officer David Smith of the Lexington Police Department tried to restrain Baker by 

grasping his right arm in order to handcuff him. Baker responded by punching 

Officer Smith several times, causing injuries to the officer’s chin, left eye, and 

finger. After subduing Baker, the officers searched the vehicle and found a 

narcotics pipe and a used syringe.

Following Baker’s arrest, the Fayette County grand jury indicted him

on multiple charges stemming from the incident: third-degree assault,

2

resisting 

arrest,

3 possession of drug paraphernalia,4

and menacing.5 The grand jury later 

added a charge of being a first-degree persistent felony offender (PFO)6to Baker’s 

indictment. The Fayette Circuit Court held Baker’s jury trial on November 13, 

2018.

7

 The Commonwealth presented testimony from several Lexington police 

 

1

 “Menacing” is defined in Kentucky Revised Statute (KRS) 508.050 as “intentionally plac[ing] 

another person in reasonable apprehension of imminent physical injury.”

2

 KRS 508.025(1)(a), a Class D felony.

3

 KRS 520.090, a Class A misdemeanor.

4

 KRS 218A.500(2), a Class A misdemeanor.

5

 KRS 508.050, a Class B misdemeanor.

6

 KRS 532.080.

7

 These proceedings in Fayette Circuit Court involved three separate judges. Judge John 

Reynolds conducted the guilt phase of Baker’s trial, but he left during jury deliberation in order 

to attend to other matters. Judge Kimberly Bunnell presided when the jury returned its verdict. 
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officers, including Officer Smith, conforming to the above narrative. The 

Commonwealth also introduced body camera video footage of the incident. Baker 

did not present witnesses or other evidence in his defense.

After deliberation, the jury found Baker guilty on all counts in the 

indictment and recommended a sentence of two years on the third-degree assault 

charge, enhanced to fifteen years by virtue of the PFO. For the remaining 

misdemeanor charges, the jury recommended a sentence of thirty-days’ 

incarceration on each count. The trial court entered its final judgment on March 

13, 2019, sentencing Baker in accordance with the jury’s recommendation. This 

appeal followed.

II. Analysis

Baker presents three arguments on appeal. First, he argues the trial 

court erroneously denied his motion to prohibit the Commonwealth from striking 

jurors in violation of Batson v. Kentucky. Second, Baker argues the trial court 

erroneously denied his right to present mitigating evidence in the penalty phase. 

Third, Baker argues the trial court erroneously permitted the Commonwealth to 

refer to the site of the incident where he was arrested as “a high crime area,” in 

violation of the parties’ agreed motion in limine to refrain from such language. We 

agree with Baker’s first argument regarding Batson and note that such an error is 

 

Finally, Judge Lucy A. VanMeter entered the final judgment upon her successful election to the 

seat formerly occupied by Judge Reynolds.
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structural, requiring a new trial. For these reasons, we need not consider his other 

arguments at this time.

Baker argues the trial court erroneously denied his Batson challenge 

to the prosecutor’s use of two peremptory strikes. At a bench conference during 

voir dire, Baker objected to the prosecutor’s use of peremptory strikes against 

Juror 4696 and Juror 4079, both of whom were black men. By way of explanation, 

the prosecutor argued that Juror 4696 had disclosed that his father was charged 

with murder in Fayette County in 1986, when the juror was thirteen years old. 

Despite the juror’s assertion he would be impartial during Baker’s trial, the 

prosecutor argued she was uncertain what the juror’s experience was with the court 

system. Notably, the prosecutor elected not to strike Juror 4718, a white woman, 

who disclosed that she had a brother who was prosecuted for fraud in federal court. 

Like the immediately preceding Juror 4696, Juror 4718 stated her family member 

was treated fairly and it would not affect her ability to sit as a juror. Next, 

regarding Juror 4079, the prosecutor stated the following reason for the strike:

I don’t know if you caught this, but whenever his name 

was called, he stood up, shook his head, and was very 

disgruntled about it, and kind of gave off bad body 

language while we were asking questions—I don’t know 

if you caught it or not. He stood up really quick and sat 

down . . . . It was pretty quick.

Baker’s counsel maintained his objection to the strikes, asserting these were 

insufficiently race-neutral reasons and did not comport with Batson. Without 
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providing analysis or commentary, the trial court simply stated, “well, [the 

prosecutor] stated her reasons. You preserved that for appeal.”

Batson v. Kentucky forbids the use of peremptory strikes against a 

potential juror based on race because doing so results in a violation of equal 

protection principles in the federal constitution. “Exclusion of black citizens from 

service as jurors constitutes a primary example of the evil the Fourteenth 

Amendment was designed to cure.” Batson, 476 U.S. at 85, 106 S. Ct. at 1716. A 

prosecutor may use a peremptory strike against a potential juror who happens to 

belong to a racial minority group, but the prosecutor must have a race-neutral 

reason for doing so. Id., 476 U.S. at 98, 106 S. Ct. at 1724. “[T]he Constitution 

forbids striking even a single prospective juror for a discriminatory purpose[.]” 

Snyder v. Louisiana, 552 U.S. 472, 478, 128 S. Ct. 1203, 1208, 170 L. Ed. 2d 175 

(2008) (quoting United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994)).

When a defendant alleges the prosecutor has struck a venire person

based on race, the trial court must engage in a three-part test under Batson to 

evaluate the claim:

First, a defendant must make a prima facie showing that a 

peremptory challenge has been exercised on the basis of 

race. Second, if that showing has been made, the 

prosecution must offer a race-neutral basis for striking 

the juror in question. Third, in light of the parties’ 

submissions, the trial court must determine whether the 

defendant has shown purposeful discrimination.
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United States v. Atkins, 843 F.3d 625, 631 (6th Cir. 2016) (citations and internal 

quotation marks omitted); Mash v. Commonwealth, 376 S.W.3d 548, 555 (Ky. 

2012). “[A] Batson violation is structural error not subject to harmless error 

review.” Johnson v. Commonwealth, 450 S.W.3d 696, 706 (Ky. 2014), abrogated 

on other grounds by Roe v. Commonwealth, 493 S.W.3d 814 (Ky. 2015). 

However, “[b]ecause the trial court is the best ‘judge’ of the Commonwealth’s 

motives in exercising its peremptory strikes, great deference is given to the court’s 

ruling.” Tunstull v. Commonwealth, 337 S.W.3d 576, 585 (Ky. 2011)

(quoting Gray v. Commonwealth, 203 S.W.3d 679, 691 (Ky. 2006)). “On appellate 

review, a trial court’s denial of a Batson challenge will not be reversed unless 

clearly erroneous.” Id. (citations omitted).

In examining the issue through the three-part test outlined above, we 

have ascertained there is no need to analyze the first prong, that of prima facie 

discrimination, because the prosecutor volunteered an explanation for the 

peremptory strike. When “the prosecutor offered a race-neutral explanation for the 

peremptory challenge and the trial court has ruled on the ultimate issue of 

intentional discrimination, the preliminary issue of whether the defendant had 

made a prima facie showing . . . becomes moot.” Commonwealth v. Snodgrass, 

831 S.W.2d 176, 179 (Ky. 1992).
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For the second prong of the test, “[t]he issue is the facial validity of 

the prosecutor’s explanation. Unless a discriminatory intent is inherent in the 

prosecutor’s explanation, the reason offered will be deemed race neutral.” Mash, 

376 S.W.3d at 555 (quoting Hernandez v. New York, 500 U.S. 352, 360, 111 S. Ct. 

1859, 1866, 114 L. Ed. 2d 395 (1991)). “This step sets a fairly low bar for the 

Commonwealth to meet.” Id. Here, the prosecutor offered two separate 

explanations for striking the jurors. First, regarding Juror 4696, the prosecutor 

averred that the juror’s father was previously charged with murder, and the juror 

may have retained some ill will against the court system. Next, regarding Juror 

4079, the prosecutor allegedly viewed a momentary disgruntlement when the juror 

heard his name called. Both of the prosecutor’s asserted explanations are facially 

race-neutral, in that they “could apply with equal force to a juror of any race.” Id. 

Therefore, the second prong of Batson was met.

Finally, the third prong of the test required the trial court “to 

determine whether the prosecutor’s race-neutral reason was actually a pretext for 

racial discrimination.” Id. at 556. On this point, we rely heavily on the trial court:

Because the trial court’s decision on this point requires it 

to assess the credibility and demeanor of the attorneys 

before it, the trial court’s ultimate decision on 

a Batson challenge is like a finding of fact that must be 

given great deference by an appellate court. In the 

absence of exceptional circumstances, appellate courts 

should defer to the trial court at this step of 

the Batson analysis.
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Id. (citations and internal quotation marks omitted). This final step of Batson 

requires the trial court to engage in an independent assessment of the prosecutor’s 

reasoning and credibility. “[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.” Abukar v. Commonwealth, 530 S.W.3d 915, 918 (Ky. App. 2017) (quoting 

Washington v. Commonwealth, 34 S.W.3d 376, 379 (Ky. 2000)).

Unfortunately, the trial court in the case sub judice utterly failed to 

conduct any kind of independent assessment of the prosecutor’s reasoning. Step 

three of Batson requires the trial court to “assess the plausibility of the prosecutor’s 

explanations in light of all relevant evidence and determine whether the proffered 

reasons are legitimate or simply pretextual for discrimination against the targeted 

class.” McPherson v. Commonwealth, 171 S.W.3d 1, 3 (Ky. 2005) (citation 

omitted). Instead, the record reflects how the trial court either omitted step three or 

conflated it with step two: “Well, [the prosecutor] stated her reasons. You 

preserved that for appeal.” This is gravely insufficient. “A [trial] court must 

independently assess a race-neutral explanation and explicitly rule on its credibility 

. . . . It is inappropriate for a [trial] court to perfunctorily accept a race-neutral 

explanation without engaging in further investigation.” United States v. Cleveland, 

907 F.3d 423, 434 (6th Cir. 2018) (citations omitted). Furthermore, it is error to 

combine the second and third prongs of the Batson inquiry. Thomas v. 
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Commonwealth, 153 S.W.3d 772, 777 (Ky. 2004) (citing Purkett v. Elem, 514 U.S. 

765, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995)); see also United States v. Kimbrel, 

532 F.3d 461 (6th Cir. 2008).

The dissent focuses on our Supreme Court’s holding in 

Commonwealth v. Coker, 241 S.W.3d 305 (Ky. 2007), arguing the result in that 

case should control here. After a close examination, we believe Coker is narrowly 

distinguishable. In Coker, the trial court made a very terse ruling which the 

Kentucky Supreme Court held comported with step three of Batson: “The trial 

court ruled without elaboration that there had been no Batson violation.” Id. at 

307. Here, the trial court made no ruling at all—in spite of the fact that “trial 

judges possess the primary responsibility to enforce Batson and prevent racial 

discrimination from seeping into the jury selection process.” Flowers v. 

Mississippi, 139 S. Ct. 2228, 2243, 204 L. Ed. 2d 638 (2019).

Coker’s concurrence is particularly compelling as to why a trial court 

should explicitly rule on a Batson challenge. Chief Justice Lambert, joined by 

Justice Noble, noted the “ease of evasion” inherent in the Batson rule, and warned 

that “[a]ppellate courts cannot discharge their duty of review without knowing 

what the trial court thought of the controversy.” Id. at 310 (Lambert, CJ, 

concurring). We defer to a trial court’s Batson ruling, but, as the Sixth Circuit 

stated in another context, “[d]eferential review is not no review[.]” McDonald v. 
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Western-Southern Life Ins. Co., 347 F.3d 161, 172 (6th Cir. 2003) (citation and 

internal quotation marks omitted). In short, the trial court’s failure to issue a ruling 

hindered meaningful appellate review.

Moreover, in Snyder v. Louisiana, a case decided after Coker, the 

United States Supreme Court considered the issue of a trial court which failed to 

issue a Batson ruling. The Supreme Court determined that demeanor could form 

the basis for a peremptory strike; however, in Snyder, “the record does not show 

that the trial judge actually made a determination concerning [the potential juror’s]

demeanor. . . . Rather than making a specific finding on the record concerning [the 

potential juror’s] demeanor, the trial judge simply allowed the challenge without 

explanation.” Snyder, 552 U.S. at 479, 128 S. Ct. at 1209. In the absence of a 

ruling by the trial court, the Supreme Court declined to presume that the trial court 

agreed with the prosecutor’s assertions. Id. We conclude there is a significant 

difference in the trial court’s providing a step-three ruling without an explanation, 

as in Coker, and a failure to make any ruling at all, as in Snyder and the case sub 

judice.

Finally, even if we were to assume the trial court explicitly ruled on 

the prosecutor’s peremptory strike of Juror 4079, the trial court’s acceptance of the 

demeanor-based rationale would be an abuse of discretion requiring reversal under 

Batson. In coming to this conclusion, we are mindful of the Kentucky Supreme 
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Court’s relatively recent memorandum opinion of Sifuentes v. Commonwealth, No. 

2016-SC-000485-MR, 2018 WL 898228 (Ky. Feb. 15, 2018).8 In Sifuentes, the 

prosecutor used a peremptory strike against a juror who directed “belligerent” and 

“hostile” looks at the Commonwealth’s counsel table. Id. at *3. The Supreme 

Court acknowledged the facial neutrality of this reason under step two of Batson. 

Id. Nonetheless, despite the trial court’s acceptance of the prosecutor’s reasoning, 

the Supreme Court held the explanation for the peremptory strike was insufficient 

under Batson. 

In its decision to reverse for the Batson violation, the Sifuentes court

held, “we have consistently found Batson violations when only the appearance or 

demeanor of a perspective juror is the given reason.” Id. at *4 (citing Johnson, 450 

S.W.3d at 703-06, abrogated on other grounds by Roe, 493 S.W.3d 814; 

Washington, 34 S.W.3d at 379). The Sifuentes court held the prosecutor “did not 

offer any explanation as to why [the prospective juror’s] perceived hostility would 

make him unfit to serve as a juror” and pointed out that “when proffered reasons 

are so vague, the ‘vagueness alone could fairly point toward a conclusion that they 

are merely pretextual.’” Id. (quoting Johnson, 450 S.W.3d at 704, abrogated on 

other grounds by Roe, 493 S.W.3d 814).

 

8

 Sifuentes is an unpublished opinion which we cite not as authority but for its persuasive value 

under Kentucky Rule of Civil Procedure (CR) 76.28(4)(c).
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In the case before us, the demeanor-based rationale is even weaker 

than that found to be insufficient in Sifuentes. The prosecutor claimed Juror 4079 

had “bad body language” and seemed “disgruntled,” which falls short of the 

outright belligerent and hostile looks directed toward the prosecutor in Sifuentes. 

Furthermore, the prosecutor in this case admitted to the trial court during the bench 

conference that the look was so fleeting that the judge probably did not see it: “I 

don’t know if you caught it or not. He stood up really quick and sat down . . . . It 

was pretty quick.” Even though Sifuentes is not binding authority, its rationale 

persuades us that a similar result is justified in this case. Even if the trial court had 

explicitly accepted the prosecutor’s demeanor-based peremptory strike against 

Juror 4079, which we have previously noted did not occur, doing so would have 

amounted to an abuse of discretion requiring reversal.

Because the trial court failed to undertake an inquiry consistent with 

Batson’s framework, and Batson violations are “structural error[s] not subject to 

harmless error review[,]” Johnson, 450 S.W.3d at 706, abrogated on other grounds 

by Roe, 493 S.W.3d 814, we are required to reverse Baker’s judgment of 

conviction and remand for a new trial.
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III. Conclusion

For the foregoing reasons, we reverse the judgment of conviction and 

remand this matter for a new trial conducted in a manner not inconsistent with this 

opinion.

COMBS, JUDGE, CONCURS.

MCNEILL, JUDGE, DISSENTS AND FILES SEPARATE 

OPINION. 

MCNEILL, JUDGE, DISSENTING: I respectfully dissent because I 

do not believe Batson9requires a trial court to make detailed findings or explain its 

reasoning when evaluating a proffered reason for a peremptory strike. The 

majority opinion holds the trial court “failed to undertake an inquiry consistent 

with Batson’s framework,” when it “utterly failed to conduct any kind of 

independent assessment” of the prosecutor’s proffered reasons for its peremptory 

strikes. It reaches this conclusion because the trial court “without providing 

analysis or commentary” denied the Batson challenge by stating “well, [the 

prosecutor] stated her reasons. You preserved that for appeal.”

The majority cites United States v. Cleveland, 907 F.3d 423 (6th Cir. 

2018), for the requirement that a trial court must “independently assess a race-

 

9 Batson v. Kentucky, 476 U.S. 79, 80, 106 S. Ct. 1712, 1714, 90 L. Ed. 2d 69 (1986), holding 

modified by Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991).
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neutral explanation and explicitly rule on its credibility . . . .” Id. at 434 (emphasis 

added). But decisions of lower federal courts are not binding on state courts. 

Commonwealth Nat. Res. & Env’t Prot. Cabinet v. Kentec Coal Co., 177 S.W.3d 

718, 725 (Ky. 2005); Cook v. Popplewell, 394 S.W.3d 323, 346 (Ky. 2011) 

(Abramson, J., concurring) (“We, of course, look to the Sixth Circuit with a great 

deal of respect, but as the Court of Appeals noted, we are not bound by Sixth

Circuit precedent.”). 

Further, the issue of whether a trial court must make explicit findings 

as to the credibility of a prosecutor’s race-neutral reason for its peremptory strike 

appears unsettled in the federal courts of appeals, including the Sixth Circuit. See 

Mitchell v. LaRose, 802 F. App’x 957, 961 (6th Cir. 2020)10 (“[A] clear rejection 

of a Batson motion without explicit findings violates no clearly established federal 

law.”); compare Barnes v. Anderson, 202 F.3d 150, 156-57 (2d Cir. 1999) (holding 

it was error for the trial court to deny a Batson motion without explicitly 

adjudicating the credibility of the non-moving party’s race neutral explanations for 

its peremptory strikes) with McKinney v. Artuz, 326 F.3d 87, 100 (2d Cir. 2003) 

(“Although reviewing courts might have preferred the trial court to provide express 

reasons for each credibility determination, no clearly established federal law 

required the trial court to do so.”).

 

10 Pursuant to Federal Rule of Appellate Procedure 32.1, unpublished federal opinions are 

entitled to the same persuasive import as published federal opinions. 
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As noted in Mitchell:

“The Supreme Court has never directed trial courts to 

make detailed findings . . . before ruling on 

a Batson motion.” Caudill v. Conover, 881 F.3d 454, 

459 (6th Cir. 2018), cert. denied, ––– U.S. ––––, 139 S. 

Ct. 793, 202 L.Ed.2d 586 (2019); see Miller-El v. 

Cockrell, 537 U.S. 322, 347, 123 S.Ct. 1029, 154 

L.Ed.2d 931 (2003) (“[A] state court need not make 

detailed findings” to render a proper Batson ruling). Nor 

has the Supreme Court generally required trial courts to 

make credibility findings about a party’s proffered raceneutral reason beyond a clear acceptance or rejection of 

the motion. Indeed, Batson itself “decline[d] . . . to 

formulate particular procedures to be followed” beyond 

the three-step framework. 476 U.S. at 99, 106 S.Ct. 

1712.

Mitchell, 802 F. App’x at 960.

We are, however, bound by Kentucky Supreme Court precedent, 

see Smith v. Vilvarajah, 57 S.W.3d 839, 841 (Ky. App. 2000) (citing SCR11

1.030(8)(a)) (“as an intermediate appellate court, this Court is bound by established 

precedents of the Kentucky Supreme Court.”), and its holding in Commonwealth v. 

Coker, 241 S.W.3d 305 (Ky. 2007), appears controlling. In that case, a panel of 

this Court reversed a trial court’s denial of a defendant’s Batson challenge. On 

discretionary review, our Supreme Court reversed, concluding that “the Court of 

Appeals did not show proper deference to the wide latitude afforded trial courts in 

ruling on Batson challenges.” Id. at 306. 

 

11 Kentucky Supreme Court Rules.
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There, as here, the trial court had denied the Batson challenge 

“without elaboration.” Id. at 307. Both defendant and Court of Appeals cited 

United States v. Hill, 146 F.3d 337 (6th Cir. 1998), which reversed a trial court’s 

Batson ruling, holding it could not conduct a proper review because the trial court 

had not explained its reasoning for its rulings in step three of the Batson analysis. 

Our Supreme Court held:

We reject any implication in Hill that an otherwise valid 

conviction must be reversed if a trial court fails to 

articulate its reasons for denying a Batson challenge. We 

believe that the fact that the trial court denied the Batson

challenge inherently and obviously contains an implicit 

finding that it accepted the Commonwealth’s reason for 

striking the African-American veniremember as being 

sufficiently race-neutral and non-pretextual.

Because the Batson framework is intended to minimize 

delay in jury selection, we reject Hill and the Court of 

Appeals’ seeming requirement that a trial court make 

detailed Batson-related findings under the facts of this 

case. This conclusion is reinforced by the fact that there 

is no indication that Coker asked the trial court for any 

further findings.

Coker, 241 S.W.3d at 309. 

Pursuant to Coker, therefore, a trial court is not required to make 

explicit findings or explain its reasoning in denying a Batson challenge. The trial 

court’s denial of Baker’s Batson challenge “inherently and obviously contains an 

implicit finding that it accepted the Commonwealth’s reason for striking the 

African-American veniremember as being sufficiently race-neutral and non-
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pretextual.” Coker, 241 S.W.3d at 309. Further, as in Coker, Baker did not 

request more detailed findings from the trial court. 

As an additional reason to affirm the trial court, I would find that 

Baker’s failure to rebut the Commonwealth’s facially race-neutral reasons for its 

peremptory strikes by offering evidence of purposeful discrimination is fatal to his 

Batson claims. “[T]he ultimate burden of persuasion regarding racial motivation 

rests with, and never shifts from, the opponent of the strike.” Purkett v. Elem, 514 

U.S. 765, 768, 115 S. Ct. 1769, 1771, 131 L. Ed. 2d 834 (1995) (citation omitted). 

“Once the Commonwealth gave its reasoning and such was acceptable to the trial 

court, the burden shifted to the Appellant to rebut the neutrality of the reasoning.” 

Gray v. Commonwealth, 203 S.W.3d 679, 690 (Ky. 2006); see also Mash v. 

Commonwealth, 376 S.W.3d 548, 555 (Ky. 2012) (citation omitted) (“At the third 

step of Batson, the burden shifts back to the defendant to show ‘purposeful 

discrimination.’”). 

Because Baker offered no evidence of purposeful discrimination

“there was nothing on the record from which the trial court could have found that 

the Commonwealth’s proffered reasons were a mere pretext for racial 

discrimination.” Chatman v. Commonwealth, 241 S.W.3d 799, 804 (Ky. 2007). I 

am, thus, “not persuaded that the Appellant met his subsequent burden to provide 

further evidence on which the trial court could determine the Commonwealth’s 
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peremptory strike to be discriminatory.” Gray, 203 S.W.3d at 691 (citation 

omitted). 

Therefore, I would affirm the judgment of conviction.

BRIEFS FOR APPELLANT:

Emily Holt Rhorer

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Jenny L. Sanders

Assistant Attorney General

Frankfort, Kentucky