dissenting:
I write separately to dissent solely on the basis of the issue arising as a result of Shane v. Commonwealth, 243 S.W.3d 336 (Ky.2007).
This is undoubtedly a sordid case in which a child was outrageously abused and victimized. The court meticulously ruled correctly on one evidentiary issue after another. However, I am compelled to conclude that it committed reversible error (albeit unwittingly) in refusing to strike Juror # 42 for cause.
This case was tried and the judgment of conviction was entered in September of 2007. In December of 2007, our Supreme Court rendered the Shane decision, drastically altering Kentucky law on the issue of peremptory challenges so as to have sweeping ramifications in both civil and criminal cases. Essentially, the Supreme Court ruled that a court’s failure to strike for cause results in the deprivation of a substantial right by forcing a party to use a peremptory challenge. The resulting error, formerly harmless, has become fatal in the wake of Slum#:
Thus, the correct inquiry is not whether using a peremptory strike for a juror who should have been excused for cause had a reasonable probability of affecting the verdict (harmless error), but whether the trial court who abused its discretion by not striking that juror for reasonable cause deprived the defendant of a substantial right. Harmless error analysis is simply not appropriate where a substantial right is involved.... Here, the defendant did not get he trial he was entitled to get.
Id, at 341.
In the case before us, the tape revealed Juror # 42’s behavior and responses to the court to be hesitant and ambivalent as to his ability to suppress his own life experience in the context of this trial for the sake of objectivity.
When Juror #42 was selected to replace Juror # 2, he immediately asked to approach the bench and informed the court that he had been sexually abused as a teenager by his father. When questioned directly, however, the prospective juror did assure the court that he could set aside his own experiences and make a decision based entirely on the evidence presented against the defendant.
Nevertheless, Allen’s attorneys pressed on and continued to ask specific questions about the prospective juror’s own experiences and impressions. In response, Juror #42 indicated to the court that he believed that a young person could make false allegations of sexual abuse. He also stated that he would not have been inclined to be involved in the prosecution of his abuser. When asked again by counsel whether he could keep an open mind and remain objective after hearing from the Commonwealth’s witnesses, rather than responding affirmatively and with conviction, the juror instead responded, “That’s *658the intention. That’s the goal. Yes.” Based in part on this tentative response, Allen’s attorneys asked the court to strike the Juror # 42 for cause.
Allen’s counsel contended that the challenged juror was unqualified to serve. Counsel argued that the Commonwealth’s case against the defendant was strikingly similar to situation involving Juror # 42’s allegations as to his own father. Under these circumstances, counsel expressed a concern that the prospective juror would too closely identify with the prosecuting witness and suggested that he was very likely incapable of being objective because of his own life experience. The court refused to remove Juror #42, and Allen’s counsel was obliged to use a peremptory strike to remove him from the jury panel.
Prior to Shane, the court’s error was harmless. Every case cited in the majority opinion pre-dates Shane. Since Shane, I am persuaded that despite the highly offensive outcome, Allen is entitled to a new trial. Shane has clothed the peremptory challenge with constitutional overtones virtually on a par with the Miranda2 warning.
I find the result to be unpalatable but unmistakable in this case: Shane entitles Allen to a new trial. Accordingly, I would vacate and remand for a new trial.
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).