2007-SC-000154-MR

RENDERED: APRIL 24, 2008

TO BE PUBLISHED

JULIAN CHESTNUT APPELLANT

ON APPEAL FROM JEFFERSON CIRCUIT COURT

V. HONORABLE JUDITH MCDONALD-BURKMAN, JUDGE

NOS. 06-CR-003744, 06-CR-002355, 04-CR-003146,

04-CR-003038, AND 04-CR-002479

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE SCOTT

REVE RSING

Appellant, Julian Chestnut, was convicted by a Jefferson Circuit Court jury

on four counts of burglary in the second degree, receiving stolen property over

three hundred dollars, possession of a controlled substance, and illegal

possession of drug paraphernalia . The jury recommended an aggregate

sentence of seventy-seven (77) years imprisonment, as enhanced by persistent

felony offender status . Appellant now appeals as a matter of right . Ky. Const . §

110(2)(b) .

Appellant raises eight claims of error: 1) that investigative hearsay

testimony was allowed at trial, violating his confrontation rights; 2) that he was

denied due process because of the Commonwealth's failure to disclose an

incriminating statement made by him; 3) that the trial court abused its discretion

in permitting the Commonwealth's motion to join offenses ; 4) that the trial court
erred in permitting the peremptory strike of a juror in violation of Batson; 5) that

the trial court abused its discretion in allowing the introduction of prejudicial

photographs; 6) that Appellant was denied his due process rights when the jury

was allowed to consider excluded evidence during deliberations; 7) that the trial

court erred in failing to make findings of fact at a suppression hearing ; and 8)

that Appellant was denied due process due to faulty jury instructions on the

illegal use or possession and persistent felony offender charges . Upon review,

having concluded that the Commonwealth's failure to disclose an incriminating

oral statement of the defendant per RCr 7.24(1) impermissibly tainted the

Appellant's defense in this case, we hereby reverse the conviction and

sentencing and remand this matter for a new trial .

I . BACKGROUND

The following facts center on the criminal activity of Appellant, Julian

Chestnut, during the course of a nine-day period in August 2004. In the early

morning hours of August 18, 2004 a series of burglaries were committed on Mt.

Rainier Drive in Jefferson County . At that time, officers were dispatched to

respond to a call for a burglary in progress. Officer Ebersol was one of the

officers who responded to the call. Once in the area, Ebersol noticed a gray

Chevrolet parked outside of the residence from which the call had been made.

The gray Chevrolet then started its engine and sped away. Ebersol gave chase

in his cruiser, eventually catching up with the car approximately a mile later.

Appellant was the driver and sole occupant of the gray Chevrolet.

Upon being stopped, Appellant told Ebersol that he was lost and had

turned around in the subdivision . Subsequently, a show-up identification was

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conducted with the owner of the residence, Anne Boldrick, and the back-up

officer, Detective Mellon . Appellant was then arrested and taken for further

questioning . In total, three burglaries occurred on Mt. Rainier Drive on the night

in question . All burglaries were perpetrated in a similar manner and with similar

items being taken, i .e . wallets, purses, money, cell phone, etc .

Appellant's partially estranged wife, Shakita, was also indicted for the Mt .

Rainier burglaries and pled guilty under a complicity theory. According to

Shakita's testimony, she and Appellant and had spent the day together, drinking

and getting high smoking crack cocaine. Upon running out of drugs, the two

decided to go get money to obtain more drugs.

Testimony indicates that the two went to a neighborhood with nice homes

where Appellant told Shakita to wait in the car while he got some money from a

"friend ." Shakita testified that she became bored with waiting and decided to

burglarize some homes. She was confronted in one of the homes by the

homeowner and fled. Thereupon, she called Appellant on a cell phone which

she had stolen from one of the residences. At this point, however, Appellant was

already in the custody of police.

Appellant, on the other hand, claims that he was working at the Waffle

House on the night in question, and that he was only in the area to pick up

Shakita, who called him indicating that she had burglarized some homes and

needed a ride. Appellant denied ever being in the Mt. Rainier subdivision .

On August 13, 2004, the home of Richard LeBlanc on Falls Creek Rd .,

was burglarized . In the early morning hours, Richard's son noticed a gray

Chevrolet parked in front of the house. Upon waking, the family noticed that a
purse, laptop computer, and some distinctive, personalized men's jewelry were

missing . A pawn shop record showed Appellant pawned the jewelry.

On August 20, 2004, a home was burglarized on Mockingbird Lane in

Jefferson County. Additionally, their black Lexus sedan was stolen. Two days

later on August 22, 2004, officers on narcotics patrol in west Louisville pulled the

black Lexus over. Appellant was the passenger in the car. Upon being stopped,

testimony indicates Appellant shouted to the driver "go, go, go!" Appellant had a

key to the Lexus in his pocket along with a bag of cocaine and a used crack pipe.

The Lexus was the same automobile stolen from the Mockingbird Lane residence

two days earlier .

11 . ANALYSIS

A. Appellant's confrontation rights were not denied because the

testimony was non-hearsay offered for the purpose of explaining the

development of Appellant as a suspect in the case and thus not

investigative hearsay.

Appellant argues that testimony presented at trial by Officers Ebersol and

Mellon is investigative hearsay, and that, as such, his confrontation rights were

violated by its admission . We disagree .

During trial Appellant objected to the introduction of certain testimony by

Officer Ebersol indicating that after the stop of Appellant in the Mt. Rainier Dr.

area, a "show-up" identification was held . Additionally, Appellant objected to

testimony by Detective Mellon that he took Ms . Boldrick to the scene of the stop

to conduct the "show-up" identification, and that the purpose of a "show-up" is to

see if a witness can identify a suspect. The officers also testified that Appellant

was arrested following the "show-up." The trial judge sustained Appellant's
objections to the extent that no hearsay statements of Ms . Boldrick regarding

identification would be admissible . Thus, no identification testimony was

presented regarding what Ms. Boldrick said about Appellant.

It is well-established that investigative hearsay is still, fundamentally,

hearsay and, thus, disallowed . See, e.g . , Sanborn v. Commonwealth, 754

S.W.2d 534, 541 (Ky. 1988), overruled on other grounds by Hudson v.

Commonwealth, 202 S .W .3d 17 (Ky. 2006). However, it is equally evident that

not all testimony from a police officer concerning an investigation is hearsay.

This Court accepted the plurality holding of Sanborn regarding

investigative hearsay and the verbal acts doctrine in Brewer v. Commonwealth,

206 S .W.3d 343, 351 (Ky. 2006), therefore rendering it binding precedent. Thus,

the rule on investigative hearsay which Sanborn announced proves dispositive .

"The rule is that a police officer may testify about information furnished to him

only where it tends to explain the action that was taken by the police officer as a

result of this information and the taking of that action is an issue in the case."

Sanborn , 754 S.W.2d at 541 . Such testimony is then admissible not for proving

the truth of the matter asserted, but to explain why a police officer took certain

actions. Young v. Commonwealth, 50 S .W.3d 148,167 (Ky. 2001). However,

Sanborn places a short leash on the extent to which investigative hearsay, or as

more appropriately styled, investigative verbal acts, may be used . It limits such

testimony

to circumstances where the taking of action by the police is an

issue in the case and where it tends to explain the action that was

taken as a result of the hearsay information . In such circumstances,

hearsay may be admissible to prove why the police acted in a

certain manner, but not to prove the facts given to the officer.
Gordon v. Commonwealth, 916 S .W .2d 176,179 (Ky. 1995).

Here, development of Appellant as a suspect in the case, and his

subsequent arrest were certainly at issue, particularly in light of Appellant's

testimony at trial . Appellant testified that he was never in the Mt. Rainier

subdivision . However, at trial, testimony was presented that police saw a gray

Chevrolet in the area of the burglary call they responded to, that the car drove

away and was pursued by the police and subsequently stopped . Moreover,

Appellant accused Officer Ebersol of lying during his testimony. Therefore, why

the police arrested Appellant was clearly at issue.

Thus, the complained of testimony concerning the show-up identification

also served to explain Appellant's arrest. The testimony was not offered to prove

the truth of what Boldrick told the officers . Rather, it was offered to prove the

officers' motive for arresting Appellant. In the present instance, what was not

said concerning the "show-up" identification is as important as what was said.

There was no hearsay testimony presented purporting to show that what Boldrick

told the officers was true or untrue . The officers' testimony concerned only what

they did on the night in question, not that Boldrick identified the Appellant.

Therefore, Appellant was not denied his right to confrontation . See Crawford v.

Washington, 541 U .S . 36,124 S .Ct. 1354, 158 LEd.2d 177 (2004); Norton v.

Commonwealth , 890 S.W .2d 632, 635 (Ky. 1994) (noting that the admissibility of

out of court statements for non-hearsay purposes does not violate the

confrontation clause) . Therefore, there was no error here.

B. The trial court committed reversible error in admitting Appellant's

oral statements withheld in violation of RCr 7.24(1), effectively

destroying the credibility of the whole defense.
1 . The Commonwealth should have disclosed Appellant's

incriminating oral statements during discovery irrespective of the

fact that such statement had not been reduced to writing.

Appellant argues that the Commonwealth presented testimony which they

were bound to disclose to him under RCr 7.24(1), and thus the trial court's

admission of said testimony was error. We reluctantly agree.

Detective Wright interviewed Appellant at the police station following his

arrest. During that interview, Appellant admitted to Detective Wright that he

waited outside as his wife burglarized homes. Appellant now asserts that certain

testimony presented at trial by Wright concerning these previously undisclosed

oral statements made by the Appellant was given in violation of RCr 7 .24(1).

RCr 7.24(1) states in pertinent part that

the attorney for the Commonwealth shall disclose the substance,

including, time, date, and place, of any oral incriminating statement

known by the attorney for the Commonwealth to have been made

by a defendant to any witness, and to permit the defendant to

inspect and copy or photograph any relevant (a) written or recorded

statements or confessions made by the defendant, or copies

thereof, that are known by the attorney for the Commonwealth to be

in the possession, custody, or control of the Commonwealth

RCr 7.24(1) (emphasis added). Admittedly, this Court has previously held that

the first part of RCr 7.24(1) applies only to written or recorded oral statements.

Berry v. Commonwealth, 782 S.W.2d 625, 627 (Ky. 1990) ("RCr 7.24 applies

only to written or recorded [oral] statements.") ; Partin v. Commonwealth, 918

S .W .2d 219, 224 (Ky. 1996) (finding that no substantive changes had been made

to RCr 7.24 that would affect the Court's ruling in B_ errs, and thus finding no error

in the trial court allowing testimony of previously undisclosed oral statement).

However, although we upheld these previous decisions in Matthews v.

Commonwealth, 997 S.W.2d 449, 451 (Ky. 1999), overruled on other grounds by

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Hayes v. Commonwealth , 58 S .W.3d 879, 882 (Ky. 2001), we were troubled by

the result and began to question the soundness of the line of reasoning these

prior opinions espoused. See infra .

Truly, we are heedful of the doctrine of stare decisis . "[S]tare decisis [is]

the means by which we ensure that the law will not merely change erratically, but

will develop in a principled and intelligible fashion ." Vasquez v. Hillary, 474 U.S .

254, 265-265, 106 S .Ct. 617, 624, 88 L .Ed .2d 598 (1986). Thus, it is with

anything but a cavalier attitude that we broach the subject of changing the ebb

and flow of settled law. However, we do not feel that the doctrine compels us to

unquestioningly follow prior decisions when this Court finds itself otherwise

compelled . "The doctrine of stare decisis, like almost every other legal rule, is

not without its exceptions. It does not apply to a case where it can be shown that

the law has been misunderstood or misapplied, or where the former

determination is evidently contrary to reason ." Payne v. City of Covington, 276

Ky. 380, 123 S.W .2d 1045, 1050-1051 (1938). While the doctrine does guide us

to decide every case with a respect for precedent, it does not demand that this

Court be precluded from change.

Looking at the plain language of RCr 7 .24(1) stating that, "the

Commonwealth shall disclose . . . any oral incriminating statement . . . made by a

defendant," we find that it is apparent from a reading of the language of the rule,

that RCr 7 .24(1) was intended to apply to both oral and written statements, which

were incriminating at the time they were made. Consequently, to the extent that

Berry, and its progeny Partin and Matthews hold that RCr 7.24(1) does not apply

to a defendant's oral incriminating statements, they are overruled . We simply
cannot in good faith square such a counterintuitive reading of the rule's manifest

intention. The Commonwealth's ability to withhold an incriminating oral

statement through oversight, or otherwise, should not permit a surprise attack on

an unsuspecting defense counsel's entire defense strategy. Such a result would

run afoul of the clear intent of RCr 7.24(1).

Accordingly, we now conclude that nondisclosure of a defendant's

incriminating oral statement by the Commonwealth during discovery constitutes a

violation of the discovery rules under RCr 7.24(1), since it was plainly

incriminating at the time it was made.'

persuasive.

As such, we find this Court's reasoning in the dissent in Matthews to be

There are two clear parts to RCr 7.24(1)(a). The first requires that

the Commonwealth "disclose the substance of any oral

incriminating statement . . . made by a defendant to any witness."

The second mandates that the Commonwealth give the defendant

access to "any relevant written or recorded statements ." The

reason that it is clear there are two separate parts to RCr 7.24(1)(a)

is that the conjunction "and" is employed in the middle of the rule.

Accordingly, there are two separate burdens imposed by RCr

7.24(1)(a).

RCr 7.24(l)(a) demands disclosure of "any incriminating

statement." This is not a vague or complex concept. Basically

anything that the defendant has said to a witness which in any way

incriminates himself or herself must be disclosed to the defense.

This part of the rule does not require that the statement even be

recorded, simply that the Commonwealth know of the statement.

Mathews, 997 S .W .2d at 454 (Stephens, J ., dissenting). In Matthews , the

dissent notes that when the appellant did not learn that the Commonwealth was

in possession of his incriminating statements until trial, his rights were

' This ruling would not be applicable to non-incriminating or innocuous

statements made by defendant prior to trial which only become incriminating in

the context of testimony at trial .
impermissibly violated. Id. at 454 (Stephens, J., dissenting) . Justice Stephens

reasons therein, that such impermissible violation of one's rights constitutes

reversible error in his estimation . Id . at 453-454. Today, we are inclined to

agree.

Having concluded that such action constitutes a violation of the discovery

rules in that the statements were incriminating, we next turn to whether the trial

court erred in allowing the introduction of Appellant's statements, and whether

such error mandates reversal . The United States Supreme Court has held that a

discovery violation serves as sufficient justification for setting aside a conviction

when there is a reasonable probability that if the evidence were disclosed the

result would have been different . Wood v. Bartholomew, 516 U.S . 1, 5-6,116

S .Ct. 7, 10, 133 L.Ed .2d 1 (1995) (quoting Kyles v. Whitley, 514 U .S. 419, 433-

444, 115 S .Ct. 1555, 1565-1566, 131 L .Ed .2d 490 (1995)); see also Weaver v.

Commonwealth , 955 S .W.2d 722, 725-726 (Ky. 1997).

Here, Appellant asserts that had the incriminating statement been

disclosed prior to trial, there was a reasonable probability that the result would

have been different . Specifically, he argues that the Commonwealth's failure to

turn over the statement served to fatally undermine his whole defense by

permitting the Commonwealth to introduce a surprise confession in an otherwise

circumstantial case, which directly refuted testimony proffered by both Appellant

and Shakita. Appellant contends that the failure to disclose the statement

induced him to rely on a defense strategy he may not have otherwise asserted

and denied his right to due process of law.
However, before such a determination can be made, we must turn to the

question of whether, despite the Commonwealth's violation in failing to turn over

Appellant's oral statement, the trial court properly admitted such testimony in

rebuttal .

2. Presentation of undisclosed evidence in violation of RCr 7.42(1)

under the guise of rebuttal evidence pursuant to RCr 9.42

constitutes reversible error.

The Commonwealth asserts that even if the failure to disclose the

statements was a discovery violation, the statements could be used in rebuttal.

However, the duty of discovery imposed by RCr 7.24(1) to disclose incriminating

statements does not end at the close of the Commonwealth's case in chief.

Rebuttal does not offer a protective umbrella, under which prosecutors may lay in

wait. "A cat and mouse game whereby the Commonwealth is permitted to

withhold important information requested by the accused cannot be

countenanced." James v. Commonwealth, 482 S.W.2d 92, 94 (Ky. 1972) .

That the statements were Appellant's own is immaterial . The premise

underlying RCr 7 .24(1) is not only to inform the defendant that he has made

these statements, as he should be clearly aware, but rather to inform the

defendant (and to make sure his counsel knows) that the Commonwealth is

aware that he has made these statements. This ensures that the defendant's

counsel is capable of putting on an effective defense, as per the intent of the rule .

See Anderson v. Commonwealth, 864 S.W.2d 909, 914 (Ky. 1993) (holding that

Commonwealth's failure to disclose incriminating statement "denied the defense

the opportunity to prepare for and refute the incriminating evidence by cross-
examination or other proof'). This holds true regardless of whether the

incriminating statements are written or oral.

The Commonwealth likens the present situation to the instances of tainted

evidence under Miranda violations, as addressed by the United States Supreme

Court in Harris v. New York, 401 U .S. 222, 91 S.Ct. 643, 28 L.Ed .2d 1 (1971). In

Harris , the Court reasoned that statements which were precluded from entering

into the prosecutor's case in chief, because of a failure to comply with the

procedural protections of Miranda, could nonetheless be used for impeachment

purposes. The Court articulated that in these instances, the exclusionary rule

would offer sufficient protections, both in its preclusion of admitting evidence

during the prosecutor's case in chief and in curbing impermissible police conduct.

Harris, 401 U.S . at 225, 91 S .Ct. at 645.

However, in the present instance we are not confronted with Miranda

violations, of which the defendant and his counsel would be aware . Moreover,

protections such as the exclusionary rule are not in place. Instead, we are faced

with a violation of discovery rules under RCr 7 .24(1) and the potential for the late

introduction of evidence which is then destructive of the credibility of the entire

defense . See Wood, 516 U .S. at 5-6, 116 S .Ct. at 10. Furthermore, absent the

protections of RCr 7.24(1), there is nothing to curb the errant prosecutor who

may strategically violate the rule in an attempt to surprise a defendant with an

undisclosed statement.

This is not to say that a defendant is permitted to take the stand and

commit perjury without recourse . Indeed, a criminal defendant who testifies in

his own defense is bound by the same rights and repercussions as every other

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witness in a court of law, and may rightfully be subject to impeachment or any

other available remedy. However, we cannot say that when evidence is withheld

in violation of the rules of this Court, that they may be permissibly used under the

pretext of rebuttal without consequence .

Assuredly, the trial court is granted broad discretion in its determination on

the admissibility of evidence in rebuttal under RCr 9 .42 . Pilon v. Commonwealth,

544 S.W.2d 228, 231 (Ky. 1976). Therefore, the test for admission of evidence is

an abuse of discretion . Commonwealth v. King , 950 S.W.2d 807, 809 (Ky.

1997). However, by permitting evidence to be admitted on rebuttal which was

withheld from the defense in violation of the rules, we find that the trial court

abused its discretion in this instance. Surely, there may be some cases where

such introduction will be harmless, yet we are not convinced such was the case

here . Therefore, Detective Wright's testimony was improperly placed before the

jury at trial as rebuttal evidence.

In Akers v. Commonwealth, 172 S .W .3d 414, 417-418 (Ky. 2005), this

Court held that the Commonwealth's RCr 7.24 discovery violation mandated

reversal as it prejudiced the appellant's ability to properly prepare a defense.

This Court noted that if the Commonwealth had provided the withheld evidence,

it is doubtful "defense counsel would have proceeded in the same manner or the

jury would have reached the same result." Id.

Likewise, in Grant v. Commonwealth, --- S .W.3d ---, 2008 WL 199711 *4

(Ky. 2008), this Court was recently presented with a closely analogous situation,

wherein the Commonwealth attempted to introduce a defendant's undisclosed

incriminating statements in rebuttal. In Grant, we concluded that the

1 3
Commonwealth's withholding of the appellant's statement until after he had put

on his defense, prevented counsel from making an informed decision as to an

appropriate defense strategy, therefore requiring reversal. Id.

Here, Appellant's defense consisted of his testimony at trial . When

questioned concerning the Mt. Rainier subdivision burglaries, Appellant denied

any participation . However, prior testimony indicated that Appellant had told

police that he had gotten lost and entered the subdivision to turn around.

Appellant never mentioned working that night, nor did he mention to police that

he was in the subdivision to pick up his wife. However, he testified at trial that he

explained his presence on the night in question to Detective Wright, claiming that

he was merely there to pick up his wife, and that he never entered the

subdivision where Mt. Rainier is located . Moreover, he testified that he was

working at the Waffle House on the night in question prior to being stopped . On

rebuttal, over Appellant's objection, the Commonwealth called Detective Wright.

Detective Wright testified that after Appellant was transported to the police

substation and further questioned, he admitted that he was in the subdivision and

that he waited outside in the car while his wife burglarized homes. He testified

that Appellant's oral statement was never reduced to writing.

Consequently, Wright's testimony concerning Appellant's confession

essentially gutted Appellant's defense. For this reason, we cannot say that had

Appellant been presented with this information prior to trial, he would have

proceeded with his defense in the same manner or that the trial would have

achieved the same result. Grant, --- S.W.3d ---, 2008 WL 199711 *4 ("While we

cannot say with certainty that the result at trial would have been different, we can

1 4
say that Appellant's defense to the charges would have been different, and we

cannot conclude that the jury would have reached the same result."); see also

Akers , 172 S.W.3d at 417 ("We cannot reasonably conclude that, had Akers'

been provided the assault report, defense counsel would have proceeded in the

same manner or the jury would have reached the same result .") As such, we find

that because the trial court abused its discretion in allowing the admission of the

statements in violation of RCr 7 .24(1), and because we find it reasonably likely

that had the evidence been disclosed, Appellant's defense, and potentially the

result, would have been different, we cannot find the error harmless.

Having determined that Appellant's convictions should now be reversed,

we will consider the remaining issues as such may, or will, recur on retrial.

C. Appellant was not unduly prejudiced by joinder of the charges

against him, and the trial court's error in regard to the source of the

stolen vehicle was harmless.

Appellant also argues that the trial court abused its discretion in permitting

the various charges against him to be joined together and heard in a single trial .

We disagree.

RCr 6 .18 states that two or more offenses may be charged in the same

indictment "if the offenses are of the same or similar character or are based on

the same acts or transactions connected together or constituting parts of a

common scheme or plan." A trial judge has broad discretion concerning the

joinder of indictments for trial, and absent a clear demonstration of abuse of that

discretion, the trial judge will not be overturned. Violett v. Commonwealth, 907

S.W.2d 773, 775 (Ky. 1995) . Offenses that stem from closely related events and
which occur within a short period of time may be properly joined in one

indictment . See Pennington v. Commonwealth , 479 S.W.2d 618, 619 (Ky. 1972).

Further, RCr 9.12 sets forth the standard to be applied by a trial judge in

determining whether joined offenses may be tried together or separately. RCr

9.12 indicates that two or more offenses may be tried together "if the offenses . . .

could have been joined in a single indictment." Again, here, the trial judge has

broad discretion in determining whether charges should be joined for trial, and

such a decision should not be overturned absent a showing of prejudice and

clear abuse of that discretion . Sherley v. Commonwealth, 889 S .W.2d 794, 800

(Ky. 1994). RCr 9.16 mandates that a separate trial is in order if joinder of the

offenses would result in undue prejudice to either party. A conviction based on

joinder of offenses should only be reversed if there is a clear showing of abuse of

discretion and prejudice to the defendant. Spay v. Commonwealth , 609 S .W.2d

128, 131 (Ky. 1980). It is well-established that joinder is proper under RCr 6.18

and RCr 9 .12 when "the crimes are closely related in character, circumstance,

and time." Id .

Appellant's charges all occurred within a close temporal period . Appellant

was charged with the Falls Creek burglary occurring on August 13, 2004. The

three Mt. Rainier burglaries happened on August 18, 2004. Appellant was then

stopped on August 22, 2004, in a stolen car with both the keys to the stolen car

and drugs in his pocket.

Joinder in this instance was proper and not an abuse of discretion, nor

overly prejudicial to Appellant. All of the charges stemmed from criminal activity

taking place within a nine-day period in close geographic proximity in Jefferson

1 6
County. Moreover, the circumstances surrounding the events suggested a

common plan or scheme. The trial court found that the separate offenses were

part of a common course of conduct and motive whereby Appellant burglarized

and stole from residences, pawning the stolen property to finance his drug habit

of using and selling drugs. The court articulated that all of the burglaries

occurred in the same area of town, and that the charges served to explain an

enmeshed source of motive, one for the other.

Thus, the trial court did not abuse its discretion in permitting joinder

despite a factual error on the court's behalf. Appellant correctly asserts that the

trial court was erroneous in their belief that the stolen car was from one of the

Falls Creek or Mt. Rainier burglaries. In fact, the car was stolen from another

location, the burglary of which Appellant was indicted for, but acquitted .

That being said, a sufficient nexus of factual and schematic evidence

existed between all of the charges joined. Thus, separate trials would be

unnecessary, notwithstanding the factual error of the trial court, as evidence from

each offense would have been admissible in either trial, even if conducted

separately. See Russell v. Commonwealth, 482 S.W.2d 584, 588 (Ky. 1972)

("An important factor in determining whether a joinder of offenses for trial is

prejudicial is whether the evidence of one of the offenses would be admissible in

a separate trial for the other offense . If the evidence is admissible, the joinder of

offenses, in most instances, will not be prejudicial .") . Here, there was neither a

demonstration of an abuse of discretion, nor a clear showing of undue prejudice .

See Harris v. Commonwealth , 556 S .W .2d 669, 670 (Ky. 1977).

D. The trial court was correct in its determination that there was no

Batson violation during voir dire.

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Appellant argues that a prospective African-American juror was struck in

violation of Batson v. Kentucky, 476 U .S. 79, 106 S .Ct. 1712, 90 L.Ed.2d . 69

(1986), thus violating his Sixth and Fourteenth Amendment rights . Appellant's

argument lacks merit as it is unsupported by the facts at trial .

The United States Supreme Court, in Batson, articulated a three-step

process for determining whether the state's use of peremptory challenges

violates the Equal Protection Clause . A defendant first has the burden of making

a prima facie showing that a peremptory challenge has been exercised on the

basis of race; second, if this showing is made, then the burden shifts to the

prosecutor to articulate a race-neutral reason for striking the juror in question ;

and third, the trial court must then determine whether the burden of proving

purposeful discrimination has been met. Id. at 96-98, 106 S.Ct. at 1723-1724.

"Batson was not intended to remove all prosecutorial discretion in peremptory

strikes, but rather to eliminate the odious practice of eliminating potential jurors

simply because of race." Washington v. Commonwealth, 34 S.W.3d 376, 379

(Ky. 2000) .

Admittedly, jurisdictions are divided as to whether and to what extent an

explanation is required upon an allegation of discrimination in the use of

peremptory challenges, and many states have declined to proffer a bright line

requirement as to under what circumstances a race-neutral justification is

required. See 50A C.J.S . Jury § 451 (2008). However, if a court can point to

certain circumstances in the record which indicate that the prosecution has not

exercised peremptory challenges in a discriminatory manner, then a race-neutral

justification may not be required . See Valentine v. State, 616 So.2d 971, 974

18
(Fla . 1993). Moreover, some courts have held that the burden of a prima facie

showing of discrimination has not been met until the trial court asks for a raceneutral justification . See State v. Newell, 132 P.3d 833, 845 (Ariz. 2006).

We believe, however, it is the circumstances which raise the inference and

thus establish the threshold requirement . Here the court correctly reasoned that

the objection was premised upon a confusion regarding the two jurors, thus no

prima facie showing occurred . Commonwealth v. Hardy, 775 S.W.2d 919, 920

(Ky. 1989). Therefore, the burden of going forward, in this instance, did not shift

to the Commonwealth to provide a race-neutral justification for this peremptory

strike .

During voir dire, there were two African Americans on the panel . The

Commonwealth used eight of its nine peremptory challenges to strike prospective

jurors of other races. The Commonwealth struck juror number thirty-two (32),

one of the two African-Americans, with one of its nine peremptory challenges .

Appellant then objected and asked for a race-neutral justification for striking juror

number thirty-two (32) in line with Batson. The Commonwealth, indicating that it

took these allegations very seriously, asked that Appellant establish a prima facie

case of racial discrimination .

Appellant then argued that juror number thirty-two (32) had answered

several questions in a manner that would indicate that she would be a good juror.

The trial judge then asked Appellant's counsel if he were confusing juror number

thirty-two (32) with juror number twenty-one (21). Both jurors were AfricanAmerican females. The court explained that juror number thirty-two (32) had

answered no questions at all, that it was juror number twenty-one (21) which had

1 9
given those answers. The Commonwealth did not strike African-American juror

number twenty-one (21). She did, in fact, serve on the jury during trial .

Appellant conceded that he may have confused the two jurors. Appellant,

however, stood on his objection as to juror number thirty-two (32) . Appellant said

that he would offer what he had already stated (meaning that juror number thirtytwo had answered questions well), and added, "if I'm mistaken then I'm

mistaken ." The judge then stated that, "the record will be clear, seat number

twenty-one answered quite articulately . . . but number thirty-two made no

responses to anything ." Plainly, the court did not require the Commonwealth to

provide a race-neutral reason for striking juror number thirty-two (32) because

the record was clear that Appellant's objection was due to his confusion. See

Valentine , 616 So.2d at 974.

Appellant now argues that although juror number thirty-two (32) did not

answer any questions, she listened attentively and nodded approvingly at several

occasions, thus a race-neutral justification was required . 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, 11 S .Ct . 1859, 114

L .Ed .2d 395 (1991); Washington , 34 S.W.3d 376, 379-380. "Because 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." Grate,

Commonwealth, 203 S.W.3d 679, 691 (Ky. 2006) (citing Wells v.

Commonwealth , 892 S.W.2d 299, 303 (Ky. 1995)).

Here, Appellant failed to meet the threshold requirement demonstrating a

prima facie showing that the Commonwealth exercised a peremptory challenge

20
on the basis of race as required under Batson , since the circumstances did not

reach a prima facie violation . Batson, 476 U.S . at 96-98, 106 S .Ct. at 1723-1724.

Thus, the Commonwealth was not required to proffer a race-neutral justification .

Given the Appellant's obvious confusion and his conceded

misidentification of the two African-Americans, the trial court was not clearly

erroneous in its denial of Appellant's objection . Appellant's argument is without

merit.

E . Photographs of the interior of Appellant's car were properly admitted

as they were relevant and not unduly prejudicial .

We disagree.

Appellant claims that he was unduly prejudiced at trial by the admission of

photographs of the interior of his car on the night he was arrested for burglary.

Evidence, of any nature, must clear two preliminary hurdles in order to be

admissible. First, it must be relevant. Robert G . Lawson, The Kentucky

Evidence Law Handbook § 2.00, 77 (4th ed . 2003). Second, its prejudicial effect

must not substantially outweigh its probative value. KRE 403 . Mere prejudice

alone will not exclude a relevant photograph ; the prejudicial effect must be

substantial . In this regard, a trial judge has broad discretion in determining the

admissibility of photographic evidence. Woodall v. Commonwealth, 63 S.W.3d

. 104, 130 (Ky. 2001) . The general rule is that relevant pictures are not rendered

inadmissible even when the photographs depict gruesome or heinous images of

a crime . Esc . , Brown v. Commonwealth, 558 S .W.2d 599 (Ky. 1977).

Here, the complained of photographs were neither heinous, nor

gruesome, nor overly prejudicial . Appellant claims that the photographs

depicting the interior of his car portrayed an unopened condom on the seat,

21
causing extreme prejudice . However, the photographs also depict the way the

car appeared on the night of Appellant's arrest, upon leaving the scene of a

burglary. The photographs also depict other contents of the car, including a

flashlight . The prejudice, if any, suffered by Appellant is certainly outweighed by

the photograph's probative nature. There was no error in allowing admission of

the photograph .

F. The trial court committed error in allowing excluded evidence into

the jury room during deliberations .

evidence, during deliberations, which was specifically excluded from the record.

We agree.

Appellant argues prejudice in that the jury was allowed to consider

During deliberations the jury was permitted, pursuant to RCr 9.72, to take

back a pawn shop record which contained evidence indicating that Appellant had

pawned jewelry from the Falls Creek burglary. However, the pawn shop record

also contained a receipt showing an unrelated pawn ticket of a men's bracelet

three days before the Falls Creek burglary. Appellant objected to its inclusion,

and the trial court ordered that portion of the pawn record redacted. However,

the complained of portion was not actually redacted and was allowed to go back

with the jury. This was error which should not reoccur.

G. The omitted record as to the pretrial suppression hearing supports

the decision of the trial court.

Appellant argues that the trial court erred by failing to render findings of

fact at a pretrial suppression hearing, thus mandating reversal. Appellant's

argument is without merit.

22
Initially, it should be noted that the record is incomplete as to the

evidentiary suppression hearing for the Mt. Rainier burglaries . At trial, Appellant

moved to suppress physical evidence, statements, and identifications made

pursuant to the stop following the Mt. Rainier burglaries, and to suppress

evidence from the drug case. RCr 9.78 states:

If at any time . . . a defendant moves to suppress. . . evidence

consisting of (a) a confession or other incriminating statements

alleged to have been made by the defendant to police authorities,

(b) the fruits of a search, or (c) witness identification, the trial court

shall conduct an evidentiary hearing . . . and at the conclusion

thereof shall enter into the record findings resolving the essential

issues of fact raised by the motion or objection and necessary to

support the ruling. If supported by substantial evidence the factual

findings of the trial court shall be conclusive.

Indeed, RCr 9.78 necessitates an evidentiary hearing and entry into the record of

findings of fact. Appellant does not claim that an evidentiary hearing did not

occur. Appellant argues that because the record lacks proof of the findings,

reversal is mandated . This is not so .

The video record is incomplete as to portions of the suppression hearing;

therefore to say that proof was not entered would be presumptuous at best. This

Court is not in the business of making baseless presumptions . It is incumbent

upon Appellant to present the Court with a complete record for review. See Steel

Technologies, Inc. v. Congleton, 234 S.W.3d 920, 926 (Ky. 2007); Davis v.

Commonwealth, 795 S .W.2d 942, 948-949 (Ky. 1990) . When the record is

incomplete, this Court must assume that the omitted record supports the trial

court. Commonwealth v. Thompson , 697 S.W.2d 143,145 (Ky. 1985) . "We will

not engage in gratuitous speculation as urged upon us by appellate counsel,

based upon a silent record ." Id.

23
In Davis , this Court examined RCr 9.78 hearings on suppression motions

and the standard for appellate review of such motions. 795 S .W.2d at 948. The

appellant in Davis claimed error, but the record lacked any transcript of the

suppression hearing. Id. The Court stated that they would not entertain the

appellant's claim of error, because she had failed to avail herself of CR 75 .13 .

Id. at 949 . Cr 75 .13 allows an appellant to prepare a narrative statement "for use

. . as a supplement to or in lieu of an insufficient electronic recording" of a

suppression hearing. CR 75.13(1). The Court articulated :

[a]ppellant has failed to show that the ruling below was not

supported by substantial evidence . "In the absence of any showing

to the contrary, we assume the correctness of the ruling by the trial

court." It is the duty of a party attacking the sufficiency of evidence

to produce a record of the proceeding and identify the trial court's

error in its findings of fact. Failure to produce such a record

precludes appellate review.

Id. (quoting Harper v. Commonwealth, 694 S.W.2d 665, 668 (Ky. 1985)) .

Here, Appellant has similarly failed to avail himself of CR 75.13.

Moreover, Appellant has failed to provide this Court with a complete record for

review. As such, we are bound to assume that the omitted record supports the

decision of the trial court. Thompson, 697 S .W.2d at 145. Therefore, pursuant to

RCr 9.78, the factual finding of the trial court would be conclusive.

H. Complained of jury instructions did not render Appellant's trial

fundamentally unfair, nor did they permit the Commonwealth to

avoid proving every element of the crimes charged.

Appellant argues that jury instructions pertaining to the illegal use or

possession of drug paraphernalia tendered to the jury were improper as they

precluded the Commonwealth from proving beyond a reasonable doubt all

statutory elements of the offense. Further, Appellant argues that the jury

24
instructions regarding the first-degree persistent felony offender instruction

tendered to the jury was likewise insufficient . We disagree in both instances.

Appellant contends that the jury instruction concerning the illegal

possession of drug paraphernalia charge lacks the intent element and thus

deprives him of constitutional rights . Admittedly, RCr 9.54(2) provides that "no

party may assign as error the giving or the failure to give an instruction unless the

party's position has been fairly and adequately presented to the trial judge" by

proper objection, or unless the party specifically states grounds for objection

before the jury is instructed . This Court has consistently regarded failure to

comply with the requirements of RCr 9.54(2) as precluding review.

Commonwealth v. Thurman, 691 S.W .2d 213, 216 (Ky. 1985); Johnson v.

Commonwealth , 105 S.W .3d 430, 435 (Ky. 2003); Chumbler v. Commonwealth,

905 S.W.2d 488, 499 (Ky. 1995). Although Appellant's argument is unpreserved

for appellate review under RCR 9.54, we will nonetheless examine the substance

of Appellant's allegation for sake of clarity upon retrial.

Appellant argues that omission of the intent element from the instructions

violated his due process rights by avoiding the Commonwealth's obligation to

prove every element of an offense beyond a reasonable doubt. However, the

United States Supreme Court has stated that "an instruction that omits an

element of the offense does not necessarily render a criminal trial fundamentally

unfair or an unreliable vehicle for determining guilt or innocence." Neder v.

United States, 527 U.S. 1, 9,119 S.Ct. 1827, 1833, 144 L.Ed .2d 35 (U .S. 1999).

The Court in Neder specifically rejected appellant's position that omission of an
element from a jury instruction amounted to a de facto rendition of an unfair trial.

Id . at 13-15.

Here, in the court's instruction on illegal possession of drug paraphernalia,

the jury was instructed to find guilt if it believed:

A. That in this county on or about August 22, 2004 he had in

his possession a pipe; AND

B. That said pipe constituted drug paraphernalia, as defined

in Instruction No. 10

Jury instruction No. 10 defined drug paraphernalia as "all equipment, products

and material of any kind which are used, or intended for use . . . in . . . ingesting .

. . into the human body a controlled substance." Clearly, the instruction defining

drug paraphernalia was a concomitant aspect of the guilt instruction, which

directly referenced the definitional instruction . See Crawley v. Commonwealth,

107 S.W.3d 197, 200 (Ky. 2003) (holding that the intent element for complicity

can be satisfied by a separate definition of complicity elsewhere in the

instructions).

Appellant argues that the instruction was flawed because it did not include

an intent element. However, in order for the jury to determine that the pipe was

drug paraphernalia under the definition provided in the instruction, it was also

required to conclude that it be used or was intended to be used to consume a

controlled substance . Therefore, the intent element was incorporated in the

paraphernalia definition. The pipe could not have been found paraphernalia

without the jury simultaneously determining that Appellant intended to use the

pipe for drugs. Because the intent element was satisfied within another
definition, the complained of instruction did not render the trial fundamentally

unfair.

Similarly, Appellant argues that the persistent felony offender instruction

permitted the Commonwealth to circumvent its obligation of proving every fact

necessary to constitute a crime beyond a reasonable doubt. Appellant claims

that due to a clerical error concerning the date of a prior conviction, the jury was

instructed improperly as to his prior offenses. As before, this issue is

unpreserved for appellate review under RCr 9.54 and Thurman . 691 S.W.2d at

216.

However, we will once again examine the merits of Appellant's argument.

The crux of Appellant's contention is that the Commonwealth failed to prove

persistent felony offender status because the jury instructions listed the date of a

prior burglary conviction as June 9, 1991, when the actual date of the conviction

was June 20, 1991 . Such argument bears no weight, as there was

uncontroverted evidence presented that Appellant had two prior convictions .

Appellant suffered no prejudice due to the clerical error regarding the date of the

conviction .

As this Court stated in Howe v. Commonwealth, 462 S.W.2d 935, 938 (Ky.

1971), when addressing a clerical error of date in a jury instruction, "[w]e are of

the opinion that the error in the date did not affect the substantial rights of the

accused and that he was not prejudiced by this inadvertent mistake." Likewise,

although review under RCr 10 .26 on this matter is not compulsory, we find no

prejudice and no error. Appellant's arguments in both instances are without

merit.

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III . CONCLUSION

For the preceding reasons, set out in section II(B) of this opinion,

Appellant's conviction on four counts of burglary in the second degree, trafficking

in a controlled substance and illegal possession of drug paraphernalia are

reversed and remanded for a new trial .

Lambert, C .J . ; Cunningham, Minton, Noble, and Schroder, JJ ., concur.

Abramson, J., not sitting .
COUNSEL FOR APPELLANT:

Daniel T. Goyette

Louisville Metro Public Defender

200 Advocacy Plaza

719 West Jefferson Street

Louisville, KY 40202

Cicely Jaracz Lambert

Deputy Appellate Defender

200 Advocacy Plaza

719 West Jefferson Street

Louisville, KY 40202

COUNSEL FOR APPELLEE:

Jack Conway

Attorney General of Kentucky

Kenneth Wayne Riggs

Assistant Attorney General

Office of Criminal Appeals

Office of the Attorney General

1024 Capital Center Drive

Frankfort, KY 40601