# 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NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANU ARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOC UMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.RENDERED: APRIL 29, 2021 NOT TO BE PUBLISHED 

# Supreme Court of Kentucky

2020

- SC

- 0335

- MR

LAVERN GRAY APPELLANT

ON APPEAL FROM KNOX CIRCUIT COURT V. HONORABLE GREGORY A LLEN LAY , JUDGE NO. 18

- CR

- 00109

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING
The trial court sentenced Lavern Gray to imprisonment for two consecutive ten

- year sentences following a trial in which the jury convicted him
of first

- degree rape and first

- degree sodomy. Gray appeals t h at judgment as a matter of right. 1 Gray argues the trial court’s failure to grant his for

- cause challenge to strike a police officer from the venire cost him a peremptory challe nge during jury selection , denying him of his right to an impartial jury. H e also argues palpable error occurred when the Commonwealth misrepresented the evidence against him by stating in closing argument that the forensic evidence “contained [Gray’s] DN A.” We find no error in the trial court ’s decision to deny

1 Ky. Const. § 110(2)(b).2

the for

- cause challenge, and , although the prosecutor’s statement in closing argument improperly characterized the DNA evidence , no palpable error
occurred. W e affirm the judgmen t. I. FACTUAL BACKGROUND
T.B. and Gray’s granddaughter we re friends. T.B often accompanied her
to Gray’s house where the two girls played and help ed Gray tend to his
animals.
O n one occasion when T.B. and the granddaughter were visiting Gray’s
home , T.B. was left alo ne with Gray inside the home

. On that occasion, T.B. alleges Gray made suggestive comments to her about his private parts , telling her that she was beautiful and needed a man like him. She claimed that Gray
gave her a drink that made her feel dizzy. Then, Gray pressed his weight on her so she could not move and licked her vagina. After this, T.B. alleges that Gray forced vaginal intercourse with her . She described that when he completed intercourse, he wiped his penis on a red rag

. T.B. told the jur

y that upon return ing home from the encounter with Gray , she showered and placed her clothes into the washing machine to soak

. The next day, she told both her mother and Timber about the encounter with Gray. Her mother then called the pol ice. The invest igating officer with the Kentucky State Police (KSP) came to T.B.’s house and collected her clothes
from the washing machine

. He also collected a DNA sample from Gray and
found red rags and sleeping pills in Gray’s home.3 II. ANALYSIS A. The t rial court did not err in refusing to strike J uror 253 for cause. Gray contends that he was denied his right to an impartial jury because
the trial court refused to strike Juror 253 for cause. 2 During voir dire, Juror
253 disclosed that he was a city police officer and had cases actively prosecuted by the same office prosecuting th e case at hand. Additional voir
dire questioning disclosed that Juror 253 knew the KSP officers and attorneys working on the present case. Juror 253 stated that he would be able to remain impartial as a juror despite his employment and familiarity with the parties
involved.
D efense counsel moved to strike for cause Juror 253 as a prospective juror, arguing th at Juror 253 w ould be unable to remain impartial because he

was regularly employed in law enforcement as an agent of the Commonwealth.
The trial court denied the motion , ruling that Juror 253 was not an agent of
the Commonwealth simply because of his employment with a local city’s police department , Juror 253 had stat ed his ability to serve impartially , and defense
counsel had cited no legal authority to support the argument that police
officers are automatically disqualified from service as petit jurors in criminal
trials

. Defense counsel properly preserved this issue for appeal by designating
on the peremptory strike sheet the jurors he would have struck had the peremptory strike been available to him. 3

2 U.S. Const. amend. VI , XIV; Ky. Const. amend s . XI.

3 Ward v. Commonwealth , 587 S.W.3d 312, 327 (Ky. 2019 ) 

### (“ To complain on appeal that a party was forced to use one of the party's peremptory challenges because4

This Court reviews for abuse of discretion a trial court’s refusal to strike

a potential juror for cause , giving deference to the trial court’s involvement in
the jury

- selection process in real time

. 4 Although we typically review for abuse
of discretion under the harmless

- error standard , when a substantial right is
affected , such as the right to an impartial jury, we will reverse if the trial court erred, because prejudice is presumed

. 5 Kentucky Rule of Criminal Procedure (RCr) 9.36 requires a prospective juror to be dismissed when there is “a reasonable ground to believe that the juror cannot render a fair and impartial verdict on the evidence.” A juror’s ability to decide a defendant’s guilt or innocence impartial ly is adjudged by the entirety of the juror’s voir dire responses and demeanor. 6 Ostensible d oubt as
to impartiality does not require a prospective juror to be dismissed, but when
the prospective juror shares a close relationship, “be it familial, financial or situational, with any of the parties, counsel, victims or witnesses,” 7 the trial court may dismiss the juror for cause .” 8 Overall, a trial court’s decision to

of the trial court's erroneous failure to grant a for

- cause strike, the defendant must use a peremptory strike on that juror and show that the peremptory strike was used on their strike sheet. ”

). Gray used nine peremptory strikes and noted that he would have struck Juror 326 if his motion to strike Juror 253 had been granted.

4 Shane v. Commonwealth , 243 S.W.3d 336, 338 (Ky. 200 7 )

. 5 Ward , 587 S.W.3d at 32 7

– 28 (“As such, harmless error analysis is not appropriate, and prejudice is presumed .”).

6 Sturgeon v. Commonwealth , 521 S.W.3d 18 9, 196 (Ky. 201 7 ).

7 Marsch v. Commonwealth , 743 S.W.2d 830, 833 (Ky. 1988).

8 Whittle v. Commonwealth , 352 S.W.3d 898, 901 (Ky. 2011).5

strike a juror for cause is a case

- by

- case decision determined by the prospective juror’s responses to questions during voir dire. 9 This Court has held that employment as a police officer does not carry with it a presumptive bias that necessitate s automatic disqualification;
additional circumstantial information is required

. 10 In Brown v. Commonwealth we discussed a prospective juror’s arguable inability to be impartial simply because of her employment as a police officer. 11 In Brown , the prospective jur or worked as a police officer , and her work brought her into regular contact with the Commonwealth ’s Attorney's O ffice and KSP

. 12 She had experience as a federal law enforcement officer, had t aught other agents investigation techniques and how to give testimony in court , and her father and
brother had both worked as law enforcement officers. 13 But despite these facts
that cast ostensible doubt on her ability to decide impartially in a criminal prosecution , she also told the trial court she would be able to “ assess the credibility of police officers as she would any other witness, ” that she knew that police officers could testify falsely or mistakenly , and “ that her training had

9 Brown v. Commonwealth , 313 S.W.3d 577, 59 6 (Ky. 2010) (“ In making this determination, the trial court is to consider the prospective juror's voir dire responses as well as his or her demeanor during the course of voir dire and is to keep in m ind that generally it is the total ity of those circumstances and not the response to any single question that reveals impartiality or the lack of it. ‘ Impartiality, ’ we reiterated recently in Shane v. Commonwealth, 243 S.W.3d 336, 338 (Ky. 2007) , ‘ is not a technical question but a state of mind. ’ ” ).

10 Id . at 597.

11 Id.

12 Id

. 13 Id

.6

impressed upon he r the importance of treating an officer's testimony no differently than anyone else's. ” 14 We upheld the trial court’s decision to not
strike th e police officer for cause in Brown because she indicated her ability to remain impartial and did not share a close relationship with any of the actors in the case. Gray contends that because Juror 253 had a working relationship with the Commonwealth’s Attorney’s Office prosecuting his case , the trial court was

re quired to strike the juror for cause. In Fugate v. Commonwealth , 15 we held
that two venire persons should have been stricken for cause because of their prior professional relationship with the prosecuting attorney. For example, in Fugate , the prosecutor h ad prepare d legal documents for one prospective juror
who was a satisfied client and willing to retain the prosecutor again for legal
work. 16 The other prospective juror in Fugate expressed satisfaction and had a
current first

- name
- bas is relationship with the prosecutor who was

c ontemporaneously prosecuting a case in which the victim of the crime was the business the prospective juror managed. 17 We held as error the trial court’s refusal to strike these potential jurors for cause because of their p rior and potential future professional relationships with the same attorney prosecuting
the case on trial. 18

14 Id

. 15 993 S.W.2d 931, 938 (Ky. 1999).

16 Id

. 17 Id . at 938

– 39.

18 Id . at 939.7

We find the circumstances here more like those in Brown . Juror 253 was employed a t a local police department

. T hrough that employme nt , he had a relationship with the office prosecuting the present case. In his role with the police department , Juror 253 investigated crimes and brought them to the
attention of the Commonwealth’s Attorney’s Office. At the time of the trial,
Juror 253 h ad some active cases with the Commonwealth’s Attorney’s Office. Importantly , Juror 253 indicated that his employment would not cause him to “lean one way or another.”
While Juror 253 had pending prosecutions being handled by the Commonwealth’s Attorney’s Office, so would any police officer with cases currently being prosecuted by the state. No elicited information in voir dire suggested Juror 253 had any special relationship with anyone employed by the Commonwealth’s Attorne y or with the attorney prosecuting the case at ha nd

. In Brown

— a case in which trial venue had been changed

— the juror had
routine contact with the Commonwealth’s Attorney’s Office in the county where
the case was being tried, but the team prosecuting Bro wn at trial were from
outside the trial venue

. 19 In this case , Juror 253 had active cases with the same office prosecuting Gray, but the special relationships noted in Fugate are absent here. T he trial court did not abuse its discretion by denying Gray’s
motion to strike Juror 253

.

19 313 S.W.3d at 588.8

B. Gray was not denied a fair trial by the Commonwealth ’ s Attorney’s statement during closing argument. Gray argues improper statements by the Commonwealth’s Attorney in closing argument denied him a fair trial. This issue wa s not preserved by a contemporaneous objection. This Court generally does not review u npreserved

errors. 20 But when the alleged error has potential constitutional implications , such as the denial of due process Gray assert s here, we will review for palpab le
error under RCr 10.26. 21 Still, w e will on ly reverse the judgment of the trial court if the alleged misconduct by the Commonwealth’s Attorney is flagrant
and caus ed a gross injustice to the defendant. 22 In deciding if prosecutorial misconduct is flagrant, this Court undertakes
a four

- part analysis. 23 First, we decide if the prosecutor’s remarks tended to mislead the jury or prejudice the accused. 24 Second, we consider whether the
remarks were isolated or extensive. 25 Third, we determine whether th e comments were deliberately or accidentally place d before the jury. 26 And

20 RCr 10.26

. 21 Martin v. Commonwealth , 409 S.W.3d 340 , 344 (Ky. 2013) (“ Under RCr 10.26, an unpreserved error may generally be noticed on appeal if the error is ‘ palpable ’ and if it ‘ affects the substantial rights of a party. ’”).

22 Duncan v. Commonwealth , 322 S.W.3d 81, 87 (Ky. 2010).
23 Id

. 24 Id

. 25 Id

. 26 Id

.9

finally , we evaluate t he comments in light of the strength of the evidence against the accused. 27
T he Commonwealth presented expert testimony about the DNA found on T.B.’s underwea r. The testimony from several members of the K SP l aboratory
included information meant to assist the jury in deciphering the statistical meaning of DNA tests and how the tests assist criminal investigations. The testimony further provided that lab analys is of T.B. ’s underwear produced results showing DNA from two males. T h e testimony explained that the DNA of the second profile contribut ed larger amounts of DNA than the first , that the second profile matched that of Gray and his paternal relatives , and that there was a 1:891 chance of randomly selecting a ny given male from within the
United States population that would have the same profile as Gray. Based on
this evidence , the Commonwealth’s Attorney stated during closing argument that the victim’s underwear “contained the defendant’s DNA

. ” Gray argues this was flagrant prosecutorial misconduct because no testimony confirmed it was his DNA on the victim’s underwear.
In Duncan v. Commonwealth 28 we discussed a prosecutor’s improper comments regardin g DNA testing and its significance

. Duncan involved similar expert testimony about DNA evidence collected and used against the
defendant. 29 The testimony in D uncan was that the DNA analysis of the

27 Id

. 28 322 S.W.3d 81 , 92

– 93 (Ky. 2010).
29 Id . at 92.10

sample collected from the defendant produced inconclusive results

. 30 In sum, the testimony included t hat neither the defendant nor any other male in the defendant’s lineage could be ruled out as the perpetrator

. 31 No further testimony was given explaining the significance of the DNA evidence

. Despi te the testimony relaying inconclusive results , the Commonwealth’s Attorney in closing stated, “ W hat was the defendant’s DNA doing in the victim’s panties ?” 32
We held the statement resulted in reversible error, not solely because of
the statement itself

, but also because the statement lack ed a n evidentiary basis given the statistical meaning of the DNA evidence. T he DNA evidence was statistically inconclusive, indicat ing the defendant could have been the perpetrator but in a way equally “ consistent with a scenario in which any other

man on the planet was the perpetrator .” 33 We found t his to be a type of

non
- exclusion evidence that court s must scrutinize to avoid its tendency to mislead the jury. We explained in Duncan , that merely stating a defendant’s
DNA matches what was found at the crime scen e is “ meaningless, or, at most,

30 Id

. 31 Id

. (“ The problem is not that the evidence failed to establish a match between Duncan's profile and the profile obtained from the sample. The evidence established a match, or a partial match, at ten o f the seventeen tested sites. But missing from the Commonwealth's proof was any testimony establishing the significance of that partial match. Johnson's testimony that Duncan could not be excluded as a source of the panty DNA said nothing at all about how likely or unlikely it was for such a partial match to occur, and most assuredly it did not say that Duncan was the source. By asking the jury to infer on the basis of Johnson's testimony that he was, the prosecutor sought to wring from that testimony a con clusion it could not reasonably yield. ”).

32 Id

. 33 Id

.11

of marginal value ” w ithout “ further evidence putting the match in some context of significance, statistical or otherwise , ” because it does not e xclude any potential defendant, but only includes them among the rest of the population as a potential source of the DNA. 34 “ Without the accompanying evidence

. . . the jury ha [s] no way to evaluate the meaning of the result. ” 35 As a result, we
found the Commonwealth’s Attorney’s statement t hat the DNA evidence conclusively proved it matched the defendant to be so improper as to warrant reversal.
But t he circumstances in Gray’s trial are not like those in Duncan . The
Commonwealth ’s Attorney in this case undoubtedly overstated the strength of the DNA evidence, which was not conclusive that Gray’s DNA was on the victim’s underwear. 36 But as we discussed in Duncan, to determine the effect
the statement had on the jur y , we consider not only the improper statement
about the DNA evidence but also any testimony about the statistical significance of the DNA evidence that was also given

. H ere, t he jury heard the
overblown statement after hearing extensive testimony about the significance of DNA analysis , specifically that there was a n 89 1 to 1 chanc e of another male in
the United States having the same profile as Gray. A nd defense counsel’s

34 Id

. 35 Id

. 36 Id . at 93 (“ Whatever avenue is chosen ; the Commonwealth must abide by the limitations of its own proof and not make claims that its DNA evidence is more probative than the expert's testimony has shown it to be. ”).12

cross
- examination revealed to the jury that the probability of someone else having this Y

- STR profile was greater than other kinds of DNA tests

. To be clear, w e do not approve of the Commonwealth’s Attorney’s overstatement of the strength of the DNA evidence, but we find the conduct was not flagrant. The improper statement was made immediately preceding the Commonwealth’s Attorney ’s recital of the DNA analysis report, again reminding the jury of the statistical meaning of the evidence. 37 While the
statement could mislead the jury, it was isolated and was only said once during closing argument. This Court cannot determine if the statement was deliberately placed before the jury

. But it was a single , brief statement and the
Commonwealth ’s Attorney did no t state that the expert s found the DNA evidence to be conclusive, but only overstated the significance of the findings

. We finally consider the improper statem ent in connection to not only the
DNA evidence but to all the evidence presented at trial. Gray was charged with
first

- degree assault and sodomy. T .B. testified that Gray gave her a drink that made her feel dizzy, that he pressed his weight upon her so s he could not move
away , that he pulled down her leggings and underwear, and then he leaned down and licked her vagina. T.B. further told the jury she told Gray no and shook her head but because she was pinned down she could not escape. She

37 Commonwealth’s Attorney : “ But the other thing is [T.B’s underwear] contained t he Defendant’s DNA

. . . the Defendant has made an interesting argument but I want to sa

y . . . . I’ve told you this in beginning and I read you this and I’m going to read this to you again. This is what the lab report itself said ‘ That a match is 891 times more likely to occur if the contributor is Lavern Gray or another paternal relative than if the source is a randomly selected male from the United States population. ’ ”13

also testified that after this, Gray proceeded to have vaginal intercourse with her, that she continued to say no, and when he was done he wiped his penis with a red rag and pulled T.B.’s pants and panties back up. At trial, evidence also included that the red rags an d sleeping pills were
found at Gray’s home

. Dr. Melissa Haddix, who performed a sexual assault exam on T.B., testified that blood was found in the vaginal vault, despite T.B. ’s lack of menstruation, but that there were no tears or forcible damage in the

v agina. Haddix testified that because there was no active hemorrhaging she
could not ascertain the source of the blood. And as previously discussed, t he prosecutor’s improper closing statement was made after the jury heard both
direct and cross

- examination testimony addressing the statistical significance
of the DNA evidence. Even if the weight of the DNA evidence w as overstated by the prosecutor , we find that the prosecutor’s statements did not have such an impact on the jury as to affect the outcome at trial. In a single brief sentence, the Commonwealth’s Attorney overstated the conclusiveness of the DNA evidence.
But the statement did not allege that the expert testimony about Gray’s DNA

was incor rect nor did the Commonwealth’s Attorney state the experts found the
DNA eviden ce to be conclusive. The prosecutor here overstated the evidence in closing argument, but such statement did not result in injustice.14 III. CONCLUSION
For the reasons state d, we affirm the judgment. All sitting. All concur.
COUNSEL FOR APPELLANT : Kathleen Kallaher Schmidt Erin Hoffman Yang Department of Public Advocacy

COUNSEL FOR APPELLEE : Daniel J. Cameron Attorney General Jenny Lynn Sanders Assistant Attorney General