Gray v. Commonwealth

MINTON, Concurring Justice.

I concur with the majority’s conclusion that Gray’s conviction should be affirmed. But I write separately because I view Gray’s argument regarding the reciprocal discovery agreement differently and because I share many of the concerns expressed in the dissent.

A. The Discovery Violation.

I disagree with the majority’s conclusion that the pretrial discovery agreement only *693required Gray to share the results of scientific tests under RCr 7.24(3)(A)(i). Because the majority takes this narrow view of the parties’ pretrial discovery agreement, the majority undertakes an extensive analysis of RCr 7.24. Such detailed scrutiny is unnecessary.

I believe the pretrial discovery agreement was broad in scope, as evidenced by the fact that it states that “the Defendant [Gray] agrees to provide reciprocal discovery[.]” So, unlike the majority, I believe that the trial court correctly found that Gray breached the agreement when he failed to share the taped statements with the Commonwealth. And I believe that the trial court had broad authority to fashion the appropriate remedy for this breach, regardless of whether the taped statements fit nicely into any specific subsection of our criminal rules. Under RCr 7.24(9), a trial court has the inherent discretion to fashion a remedy when a discovery rule has been violated. Under our settled jurisprudence, we may only disturb a trial court’s remedy if that remedy represents an abuse of discretion.1 Under the circumstances of this case, I do not believe that the trial court abused its discretion.

The parties clearly envisioned reciprocal discovery. And there is no indication that the Commonwealth failed to abide by that agreement. Additionally, the trial court, which was surely in the best position to judge the parties’ intent, also must have believed that the parties intended to provide broad reciprocal discovery because the trial court did not engage in the RCr 7.24 analysis undertaken by the majority.

I conclude that the trial court did not abuse its discretion by prohibiting Gray from introducing evidence that he had not disclosed to the Commonwealth. The trial court’s ruling merely held Gray to the terms of his voluntary agreement.2

I also respectfully suggest that the majority’s discussion of harmless error and invited error is unnecessary. When the trial court ruled that Gray could not impeach Crutcher or Eggerson with a specific inquiry into their prior statements, it concurrently allowed Gray to ask Crutcher or Eggerson whether they recalled making those statements. But Gray’s counsel did not accept the trial court’s invitation to ask either Crutcher or Eggerson whether they recalled making the statements at issue. So the propriety of the exclusion of those statements is not preserved for our review.3

*694B. The Batson Issue.

I support Justice McAnulty’s contention that residents of high crime areas may have as much, if not more, interest in serving as jurors in criminal cases than do residents of so-called “safe” neighborhoods. And I am troubled by the paternalistic thinking reflected in the Commonwealth’s invocation of Juror 764’s residence in a high crime area as possibly putting her in a “tight spot” as its reason for striking her. She, unlike others in the venire, did not respond to the Commonwealth’s voir dire question asking if any of them were afraid to sit on the case. My concern is deepened by the fact that the Commonwealth made no discernible effort to link Juror 764 in any way to the facts of the case. But despite my concerns, I must ultimately disagree with Justice McAnulty’s conclusion that reversible error occurred here.

Whether Gray made the requisite prima facie showing under Batson v. Kentucky 4 is a moot point since the Commonwealth offered a response to the Batson inquiry.5 And the burden was on the Commonwealth to state a race-neutral reason for exercising the peremptory challenge to Juror 764.6 On its face, the Commonwealth’s response regarding Juror 764’s residence in a high-crime neighborhood has nothing to do with that juror’s race.7

Although the Commonwealth’s proffered race-neutral reason for striking Juror 764 was not specifically related to the charges against Gray, as required by Batson, that factor, standing alone, does not require reversal. Rather, a lack of a relationship between the residence of the prospective juror and the facts of the case to be tried is one factor that a trial court can take into account in determining if the prosecution’s stated reason for the strike is race-neutral.8 Thus, I disagree with the conclusion reached by the dissent that the lack of a connection between Juror 764’s place of residence and Tiller’s death requires reversal of Gray’s conviction.

Having found that the Commonwealth’s proffered reason was, on its face, race-neutral, the final step was for the trial court to determine if the Commonwealth’s race-neutral reason was actually a pretext for racial discrimination. Although he now argues that pretext is inherent in the Commonwealth’s proffered reason, Gray does not show where he made that argument before the trial court.

The trial court made its ruling facing a situation in which the Commonwealth’s proffered reason for striking a juror was facially race-neutral and the defense did not challenge the Commonwealth’s assertion by offering to present historical or anecdotal proof.9 From the vantage point *695of an appellate panel, we perhaps could differ as to whether the Commonwealth’s explanation for striking Juror 764 was a pretext for racial discrimination. But I cannot find that the trial court’s ruling, which necessarily had to be made on-the-spot, was clearly erroneous10 in light of the fact that the trial court was “in the arena,”11 and, thus, was uniquely positioned to judge the Commonwealth’s demeanor and motives.12 Although I share many of Justice McAnulty’s concerns, I do not believe that the trial court clearly erred when it found that Gray did not meet his burden to show that the Commonwealth’s peremptory strike of Juror 764 was racially motivated.13 Accordingly, I concur with the majority’s conclusion that no Batson-related reversible error occurred in this case.

. See, e.g., St. Clair v. Commonwealth, 140 S.W.3d 510, 549 (Ky.2004) ("[h]ere, the trial court prohibited the Commonwealth 'from introducing in evidence the material not disclosed,’ and we find no abuse of discretion in the trial court’s choice of remedy for the Commonwealth’s discovery violation.”).

. See, e.g., Hicks v. Commonwealth, 805 S.W.2d 144, 149 (Ky.App.1990) (holding that the Commonwealth was obligated to abide by its announced "open file” discovery policy even without a discovery order issued by the court); United States v. Atisha, 804 F.2d 920, 924 (6th Cir.1986).

. Commonwealth v. Ferrell, 17 S.W.3d 520, 525 (Ky.2000) (”[a]n appellate court simply cannot address admissibility and prejudice issues in a vacuum, and RCr 9.52 provides parties with a procedure which allows them to include within the record the words of their witnesses so that appellate courts can review their claims. Based on the record before us in this case, we [cannot] determine whether the trial court erred in sustaining the Commonwealth's objection, and we certainly [cannot] make any meaningful determination of how any error prejudiced the defendant in light of the other evidence admitted at trial. Accordingly, we reaffirm our holding in Partin [v. Commonwealth, 918 S.W.2d 219 (Ky.1996)] that a party must offer an avowal by the witness in order to preserve for appellate review an issue concerning the exclusion of evidence.”).

. 476 U.S. 79, 98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

. Commonwealth v. Snodgrass, 831 S.W.2d 176, 179 (Ky.1992).

. Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) ("[a]t this step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.”) (plurality opinion).

. See, e.g., Taitano v. Commonwealth, 4 Va.App. 342, 358 S.E.2d 590, 593 (1987) (specifically holding that prosecution’s exercise of peremptory challenges because, among other reasons, prospective jurors lived in "high crime” areas was race-neutral).

. Boyde v. Brown, 404 F.3d 1159, 1171 n. 10 (9th Cir.2005).

. Indeed, Gray’s brief does not show how many total peremptory challenges the Commonwealth used to remove African-Americans or how many African-Americans actually sat on the jury. A review of the record, *695however, shows that the Commonwealth exercised nine peremptory strikes, four of which were used for African-Americans. Ultimately, two African-Americans served on the jury that found Gray guilty.

. Stanford v. Commonwealth, 793 S.W.2d 112, 114 (Ky.1990) (applying the clearly erroneous standard to a trial court's findings concerning a Batson challenge).

. "It is not the critic who counts: not the man who points out how the strong man stumbles or where the doer of deeds could have done better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly[.]” Theodore Roosevelt, "Citizenship in a Republic,” Speech at the Sorbonne, Paris, April 23, 1910 (as noted at http://www.theodoreroosevelt.org/life/guotes. htm).

. Hernandez, 500 U.S. at 365, 111 S.Ct. 1859 ("[i]n the typical peremptory challenge inquiry, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor's state of mind based on demeanor and credibility lies peculiarly within a trial judge’s province.”) (internal quotation marks and citation omitted).

. Thomas v. Commonwealth, 153 S.W.3d 772, 777 (Ky.2004) (quoting Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)) ("the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.”).