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RENDERED: SEPTEMBER 24, 2015
NOT TO BE PUBLISHED
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2014-SC-000349-MR
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HARRY HENRY PAYNE, JR. APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
V. HONORABLE BARRY wiLLErr, JUDGE
NO. 11-CR-003036
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
The Appellant, Harry Henry Payne, Jr., was sentenced to 60 years'
imprisonment after being found guilty of incest, first-degree sodomy, first-
degree sexual abuse, and being a first-degree persistent felony offender. On
appeal, he claims that the trial court erred (1) in striking Juror 929394 for
cause on the fourth day of trial and (2) in failing to suppress the results of a
buccal swab taken without a search warrant. Finding no grounds for reversal,
this Court affirms.
I. Background
The facts of the crimes in this case are not relevant to this appeal. It
suffices to say that Payne was accused by his five-year-old granddaughter of
making her take off her pants and underwear, taking off his own clothes,
putting his private part in her bottom, and then shaking it to cause a "white
polar bear" to come out. The claims that Payne now raises relate to evidence
collected by the police and a suppression hearing, and the striking of a juror
during trial. This COurt describes in detail only the facts related to those
issues.
The suppression issue is related to a buccal swab performed by police.
Buccal swabs are common procedures used to collect DNA samples that
"involve[] wiping a small piece of filter paper or a cotton swab similar to a Q-tip
against the inside cheek of an individual's mouth to collect some skin cells."
Maryland v. King, 133 S.Ct. 1958, 1967-68 (2013). It "is a far more gentle
process than a venipuncture to draw blood ... [and) involves but a light touch
on the inside of the cheek." Id. at 1969.
After the Louisville Metro Police Department became aware of the
allegations against Payne, patrol officers located and arrested him under an
unrelated outstanding warrant. Upon his arrest, he was transported to the
Crimes Against Children Unit office and was placed in an interview room
around 12:30 a.m. A video recording, approximately two hours and eleven
minutes long, documented Payne's time in the interview room. For most of that
time, he sat unmoving in a chair and appeared to be asleep.
After about 42 minutes, Detective Angela Merrick entered the room. She
roused Payne, advised him of his Miranda rights, and had him sign a waiver of
those rights. Detective Merrick then attempted to question Payne about the
allegations that had been leveled against him. Payne gave several nonverbal
responses apparent on the video—for example, he shook his head "no" when
asked if the allegations were true and shrugged his shoulders and turned up
2
his hand in an "I don't know" gesture when asked if he knew why the victim
had made the allegations. Otherwise, he appeared mostly nonresponsive
throughout the exchange. But because of the placement of the camera and the
quality of the video, it is difficult to discern much detail, such as Payne's facial
features. Detective Merrick left Payne alone again in the interview room about
16 minutes after she first entered.
About 25 minutes later, Detective Merrick returned to the interview room
and again attempted to rouse Payne. She appeared to have more difficulty
doing so than before, but he nevertheless eventually acknowledged her. She
told him that she needed to swab the inside of his mouth and asked him for
permission to do so. She eventually succeeded in having him sign a form
acknowledging his consent to the buccal swab. His signature on the buccal-
swab consent form is notably more scribbled than that on the Miranda waiver.
After he signed the form, Payne opened his mouth to allow Detective Merrick to
swab the insides of both of his cheeks.
At trial,' Payne moved to suppress the results of the buccal swab,
arguing that the video evidence of his time in the interview room showed that
his consent to the swab was not voluntary. The trial court held a hearing on
the motion at which it heard testimony from Detective Merrick and watched the
relevant portions of the video recording described above. In short, Detective
Merrick testified that while Payne had appeared tired (she first read him his
1Payne raised his motion to suppress at trial because the Commonwealth failed
to provide the interview room video recording until a few days before the start of trial.
He raises no complaint about this timing, however.
3
rights at 1:09 a.m.), he had also appeared to her to be pretending to sleep to
avoid speaking to her; that he had not appeared intoxicated and had not
smelled of alcohol; that she had continued asking questions and getting his
consent to the buccal swab because he had been responsive to her, albeit
nonverbally; and that he had willingly signed both the Miranda waiver and
buccal-swab consent form and had willingly opened his mouth to allow her to
conduct the buccal swab. Payne did not testify.
Following the suppression hearing, the trial court denied Payne's motion
to suppress, finding under the totality of the evidence that he had voluntarily
consented to the swab. The court found that while it was difficult to get a good
feel of Payne's behavior from the video, he did not appear to be intoxicated or
unconscious. The court further found that Payne had communicated
nonverbally despite appearing largely nonresponsive. And the trial court cited
as the most important facts supporting its conclusion on voluntariness that
Payne had signed the waiver and consent forms and that he had opened his
mouth to allow the swab. Finally, the trial court found that even if Payne had
not voluntarily consented to the buccal swab, the police would have inevitably
obtained this information either by obtaining a pre-indictment search warrant
or a post-indictment court order. 2
Payne's other claim of error relates to a juror who was released in the
middle of trial. During voir dire, the Commonwealth elicited from Juror 929394
2 See generally Leslie W. Abramson, Kentucky Criminal Practice and Procedure
§ 17.7 (5th ed. 2014) (discussing the inevitable-discovery exception to the fruit-of-the-
poisonous-tree doctrine).
4
that a foster child of his had been charged with a crime. The juror stated that
the child had previously been in his foster care but that the alleged crime had
occurred at a time after the child had returned to his biological parents' care.
Juror 929394 denied having any involvement with the case other than
attending and watching the trial. He confirmed that it had been prosecuted by
the Jefferson County Commonwealth's Attorney's office but denied that this
fact, or anything else about the prior case, would affect his ability to sit on the
jury in this case. No further questions were asked of Juror 929394 at that
time, and he was ultimately one of the twelve jurors (with two alternates)
selected to sit on the panel for Payne's trial.
On the fourth day of trial, however, the Commonwealth informed the trial
court that it had just received additional information about Juror 929394
regarding the past prosecution of his foster child. The foster child had been
acquitted (seven months before the commencement of Payne's trial) after being
tried in the same division and before the same judge as in this case. After being
acquitted, the foster child had returned to Juror 929394's and his wife's foster
care. According to the Commonwealth, during the prior prosecution of the
foster child, both Juror 929394 and his wife had contacted the prosecutor's
office (and media outlets) to express displeasure with their holding and
prosecuting the child "without any evidence" and had "basically said some
pretty nasty stuff about us." Accordingly, the Commonwealth seriously doubted
Juror 929394 would not be biased or prejudiced as a result of that prior
experience. The Commonwealth also expressed concern with what it perceived
as intentional minimization of the earlier case by Juror 929394 in his
5
responses during voir dire and on juror information forms. The trial judge also
recalled that Juror 929394's wife had testified for the foster child and been the
"point person" at his bond-reduction hearings. Consequently, the trial court
struck Juror 929394 for cause.
Payne was convicted of first-degree sodomy, incest, first-degree sexual
abuse, and being a first-degree persistent felony offender; and he was
sentenced to 60 years in prison.
He now appeals to this Court as a matter of right. See Ky. Const.
§ 110(2)(b). Additional facts will be developed as necessary in the discussion
below.
II. Analysis
A. The trial court did not err in declining to suppress the buccal-
swab evidence.
Payne claims that the buccal-swab evidence should have been
suppressed because it was obtained without a search warrant and without his
voluntary consent. He primarily argues that the trial court clearly erred in
finding that he voluntarily consented to the swab.
Our standard of review when reviewing suppression issues is two-fold.
First; we will review findings of historical fact only for clear error,
Commonwealth v. Ousley, 393 S.W.3d 15, 22 (Ky. 2013), and the factual
findings of the trial court are conclusive so long as they are supported by
substantial evidence, see RCr 9.78. Second, "[u]sing those facts, [we] then
conduct[] a de novo review of the trial court's application of the law to those
facts to determine whether the decision is correct as a matter of law."
6
Commonwealth v. Jones, 217 S.W.3d 190, 193 (Ky. 2006). To be clear, the
decision under review is the voluntariness of Payne's consent to the swab,
which is "determined by a preponderance of the evidence from the totality of all
the circumstances." Talbott v. Commonwealth, 968 S.W.2d 76, 82 (Ky. 1998).
There was substantial evidence here to support the trial court's factual
findings that Payne had not been intoxicated or unconscious when he was
asked to consent to the buccal-swab search, had personally signed the waiver
and consent forms, and had willingly opened his mouth to allow Detective
Merrick to administer the swab. Although the video is less than clear, the trial
court found Detective Merrick's testimony credible and relied upon it to fill in
the blanks that the video did not answer. And our careful review of the video
recording confirms that none of this testimony was contradicted by the video
evidence, so we cannot say the trial court's findings were clear error. Because
they were supported by substantial evidence, the trial court's historical
findings of fact are conclusive.
But, as noted above, that does not end our inquiry because we must now
apply the law to those facts to determine whether the trial court's conclusion
that Payne's consent was voluntary was correct as a matter of law. We do so de
novo without giving any deference to the trial court beyond its factual findings.
See Ousley, 393 S.W.3d at 23.
"[U]sing a buccal swab on the inner tissues of a person's cheek in order
to obtain DNA samples is a search." Maryland v. King, 133 S.Ct. 1958, 1968-
69 (2013). Warrantless searches are presumptively unreasonable in violation of
the Fourth and Fourteenth Amendments unless they fall under a recognized
7
exception to the warrant requirement. Consent is one of those exceptions, but
to be valid, it must be voluntarily given. See Bumper v. North Carolina, 391 U.S.
543, 548 (1968). "The question of voluntariness turns on a careful scrutiny of
all the surrounding circumstances in a specific case." Cook v. Commonwealth,
826 S.W.2d 329, 331 (Ky. 1992). "Courts must determine the voluntariness of
consent based upon 'an objective evaluation of police conduct and not by the
defendant's subjective perception of reality."' Payton v. Commonwealth, 327
S.W.3d 468, 474 (Ky. 2010) (quoting Cook, 826 S.W.2d at 331).
The primary concern in determining "voluntariness" of consent to
conduct a warrantless search is whether it was freely given or instead was the
product of duress or coercion, either express or implied. See Schneckloth v.
Bustamonte, 412 U.S. 218, 227 (1973). There was no such coercion here. There
is no evidence that Detective Merrick or any other officers made any threats,
promises, or misrepresentations to induce consent. Additionally, there is no
evidence that Detective Merrick asserted any claim of lawful authority to
conduct the search—such as claiming to have a search warrant later
determined to be invalid, see Bumper v. North Carolina, 391 U.S. at 548-49—to
support Payne's contention that he merely acquiesced, rather than voluntarily
consented, to the search. And to be sure, the trial court's findings that Payne
was conscious, nonverbally responsive to questioning, and not intoxicated,
which again we must accept as conclusive, directly refute his claim that he was
incapacitated and unable to give consent.
8
Therefore, based on our review of the facts and surrounding
circumstances, Payne's consent was voluntary. Thus, there was no error in the
trial court's declining to suppress the buccal-swab evidence. 3
B. The trial court did not err in striking Juror 929394 for cause.
Payne also claims that the trial court erred in striking for cause
Juror 929394 on the fourth day of trial.
Criminal Rule 9.36(1) requires trial courts to excuse a juror whenever
there is a reasonable basis to believe he cannot render a fair and impartial
verdict based on the evidence. Normally, for-cause challenges of jurors "must
be made before the jury is sworn," but the trial court may "for good cause"
allow a juror to be challenged after being accepted. RCr 9.36(3). A trial court's
decision to strike a juror after the panel has already been seated is reviewed for
abuse of discretion. Nunley v. Commonwealth, 393 S.W.3d 9, 14 (Ky. 2013).
"And we have recently been 'emphasizing the importance of excusing doubtful
jurors for cause."' Id. (quoting Ordway v. Commonwealth, 391 S.W.3d 762, 781
(Ky. 2013)); see also Basham v. Commonwealth, 455 S.W.3d 415, 421 (Ky.
2014). To reiterate, "[s]triking a juror for cause simply will not constitute a
reversible abuse of discretion absent evidence of systematic exclusion (e.g., on
the basis of race or gender) that undermines the fairness of the entire jury
process." Wallace v. Commonwealth, S.W.3d , 2015 WL 4967099, *6
(Ky. 2015).
3 Because this Court discerns no error in the trial court concluding consent was
voluntarily given, the issue whether the court erred in further finding suppression
unnecessary under the inevitable discovery doctrine is moot.
9
There was ample reason for the trial court to believe that the juror was
biased against the Commonwealth. The juror had misrepresented his prior
involvement in the criminal justice system and, it turned out, had leveled
public accusations of impropriety against the Commonwealth's Attorney's office
in a high profile case. Even if it was a close call, in excusing Juror 929394, the
trial court here complied with this Court's oft-repeated direction to err on the
side of caution when the ability of a juror to be unbiased and impartial is
questioned. And Payne has not argued that striking Juror 929394 was part of
any systematic exclusion that might otherwise undermine the fundamental
fairness of the jury process. There was no abuse of discretion.
III. Conclusion
For the reasons set forth above, the judgment of conviction and sentence
of the Jefferson Circuit Court is affirmed.
All sitting. All concur.
10
COUNSEL FOR APPELLANT:
Daniel T. Goyette, Louisville Metro Public Defender of Counsel
Cicely Jaracz Lambert, Assistant Appellate Defender
Office of the Louisville Metro Public Defender
Advocacy Plaza
717-719 West Jefferson Street
Louisville, Kentucky 40202
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
Thomas Allen Van De Rostyne
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204