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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NOT TO BE PUBLISHED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 ALLEN 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 that 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 challenge during 

jury selection, denying him of his right to an impartial jury. He 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] DNA.” 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. We affirm the judgment. 

I. FACTUAL BACKGROUND

T.B. and Gray’s granddaughter were friends. T.B often accompanied her 

to Gray’s house where the two girls played and helped Gray tend to his 

animals. 

On one occasion when T.B. and the granddaughter were visiting Gray’s 

home, T.B. was left alone 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 jury that upon returning 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 police. The investigating 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 trial court did not err in refusing to strike Juror 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 the 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. 

Defense counsel moved to strike for cause Juror 253 as a prospective 

juror, arguing that Juror 253 would 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 stated 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. amends. 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 because 
4

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 impartially is adjudged by the 

entirety of the juror’s voir dire responses and demeanor.6 Ostensible doubt 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. 2007).

5 Ward, 587 S.W.3d at 327–28 (“As such, harmless error analysis is not 

appropriate, and prejudice is presumed.”).

6 Sturgeon v. Commonwealth, 521 S.W.3d 189, 196 (Ky. 2017).

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 necessitates 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 juror worked as a police officer, and her work brought her into 

regular contact with the Commonwealth’s Attorney's Office and KSP.

12 She

had experience as a federal law enforcement officer, had taught 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, 596 (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 mind 

that generally it is the totality 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 her 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 the 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 

required 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 had prepared 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-basis relationship with the prosecutor who was 

contemporaneously 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 prior 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 at a local police department. Through that employment, 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 had 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 Attorney or with the attorney prosecuting the case at hand. 

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 Brown 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. The 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 was not preserved by a 

contemporaneous objection. This Court generally does not review unpreserved 

errors.20 But when the alleged error has potential constitutional implications, 

such as the denial of due process Gray asserts here, we will review for palpable 

error under RCr 10.26.21 Still, we will only reverse the judgment of the trial 

court if the alleged misconduct by the Commonwealth’s Attorney is flagrant

and caused 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 the 

comments were deliberately or accidentally placed 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 the comments in light of the strength of the evidence 

against the accused.27

The Commonwealth presented expert testimony about the DNA found on

T.B.’s underwear. The testimony from several members of the KSP laboratory

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 analysis of T.B.’s underwear produced 

results showing DNA from two males. The testimony explained that the DNA of 

the second profile contributed 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 any 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. Commonwealth28 we discussed a prosecutor’s improper 

comments regarding DNA testing and its significance. Duncan involved similar 

expert testimony about DNA evidence collected and used against the 

defendant.29 The testimony in Duncan 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 that 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. Despite 

the testimony relaying inconclusive results, the Commonwealth’s Attorney in 

closing stated, “What 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 lacked an evidentiary basis 

given the statistical meaning of the DNA evidence. The DNA evidence was 

statistically inconclusive, indicating 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 this to be a type of 

non-exclusion evidence that courts 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 scene 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 of 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 conclusion it could not reasonably 

yield.”).

32 Id.

33 Id.
11

of marginal value” without “further evidence putting the match in some context 

of significance, statistical or otherwise,” because it does not exclude 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 that the DNA evidence 

conclusively proved it matched the defendant to be so improper as to warrant 

reversal.

But the 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 jury, 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. Here, the jury heard the 

overblown statement after hearing extensive testimony about the significance of 

DNA analysis, specifically that there was an 891 to 1 chance of another male in 

the United States having the same profile as Gray. And 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, we 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 not state that the experts found the DNA 

evidence to be conclusive, but only overstated the significance of the findings. 

We finally consider the improper statement 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 she 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 the Defendant’s DNA . . . the Defendant has made an interesting argument 

but I want to say . . . . 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 and 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 

vagina. Haddix testified that because there was no active hemorrhaging she 

could not ascertain the source of the blood. And as previously discussed, the 

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 was 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 incorrect nor did the Commonwealth’s Attorney state the experts found the 

DNA evidence 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 stated, 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