HINKLE (KEVIN) VS. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: OCTOBER 29, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001454-MR
KEVIN HINKLE
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE A.C. MCKAY CHAUVIN, JUDGE
ACTION NO. 08-CR-002512
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: KELLER, MOORE, AND STUMBO, JUDGES.
KELLER, JUDGE: Kevin Hinkle (Hinkle) appeals from his conviction of escape
in the second degree, arguing that the jury instructions were faulty and that the
Commonwealth impermissibly struck African-American jurors. Having reviewed
the record and the arguments of the parties, we affirm.
FACTS
The facts are not in dispute. Hinkle appeared in court under a felony
indictment, and, by agreement of the parties, the court released Hinkle on his own
recognizance under home incarceration, apparently in lieu of $500.00 bond.
Hinkle violated the terms of his release by leaving his home without permission.
As a result, the Commonwealth charged him with escape in the second degree and
with being a persistent felony offender. Hinkle rejected a plea offer by the
Commonwealth and the parties tried this case to a jury.
Following voir dire, the Commonwealth exercised peremptory
challenges to strike three of four African-American jurors. Hinkle did not object to
the Commonwealth’s peremptory strikes of two of the jurors. However, he did
challenge the Commonwealth’s peremptory strike of juror number 43401, the only
remaining African-American male in the jury pool. In support of his challenge,
Hinkle noted that juror number 43401 had not said anything during voir dire and
that he did not seem “any more or less bored or excited” than any of the other
jurors. Hinkle also noted that a significant number of white jurors acted similarly
to juror number 43401. The court, agreeing with Hinkle, stated that it could
discern no obvious racially-neutral reason for the Commonwealth to peremptorily
strike juror number 43401. Therefore, the court ordered the Commonwealth to
provide a racially neutral reason for striking juror number 43401.
In response to the court’s order, the Commonwealth’s attorney stated
that, if possible, he routinely strikes students and the unemployed, and that juror
-2-
number 43401 was both. As to students, the Commonwealth’s attorney stated that
he believes that they lack real world experience or are so opinionated that they do
not listen to the evidence or follow the law. The Commonwealth’s attorney did not
provide a reason for routinely striking the unemployed; however, he did state that
he had stricken all of the other unemployed jurors. Hinkle then noted that the
Commonwealth did not strike a white male juror who had been “laid off.” The
Commonwealth’s attorney stated that he considered a person who had been laid off
to be different from a person who is unemployed, but he did not state why he made
that distinction. After hearing the arguments of counsel, the court found that the
reasons expressed by the Commonwealth’s attorney were “cogent” and consistent
with the Commonwealth’s other peremptory strikes. Therefore, the court
overruled Hinkle’s objection.
As to the jury instructions, Hinkle asked the court to include the entire
definition of “custody” contained in KRS 520.010(2), which is “restraint by a
public servant pursuant to a lawful arrest, detention, or an order of court for law
enforcement purposes, but does not include supervision of probation or parole or
constraint incidental to release on bail . . . .” The court denied Hinkle’s request
and instructed the jury that custody only “[m]eans restraint by a public servant
pursuant to a lawful arrest, detention, or an order of court for law enforcement
purposes.” The court excluded the later portion of the definition based on the
holding by the Supreme Court of Kentucky in Weaver v. Commonwealth, 156
-3-
S.W.3d 270 (Ky. 2005) that violation of home incarceration may result in a charge
of second-degree escape.
On appeal, Hinkle argues that the court erred when it permitted the
Commonwealth to remove juror number 43401 by peremptory challenge. Hinkle
also argues that the Supreme Court reached the wrong conclusion in Weaver and
that the trial court should have included the entire definition of custody in the jury
instructions.
STANDARDS OF REVIEW
In evaluating the explanation for striking a juror of color, the trial
court must determine if the race-neutral explanation offered by the Commonwealth
was merely a pretext for racially motivated use of a peremptory strike. Thomas v.
Commonwealth, 153 S.W.3d 772, 777-78 (Ky. 2004). This Court defers to the trial
court’s finding in that regard unless it is clearly erroneous. Id. at 778.
“Alleged errors regarding jury instructions are considered questions of
law that we examine under a de novo standard of review.” Hamilton v. CSX
Transportation, Inc., 208 S.W.3d 272, 275 (Ky. App. 2006).
ANALYSIS
Applying the above standards of review, we first address the alleged
jury instruction error. Hinkle does not dispute the Supreme Court’s holding in
Weaver that a person who violates the terms of home incarceration may be charged
-4-
with escape in the second degree.1
However, Hinkle argues that Weaver was not
correctly decided and that, despite the Supreme Court’s holding in Weaver, the
trial court should have given the requested instruction. We disagree.
Initially, we note that we are “bound by and shall follow applicable
precedents established in the opinions of the Supreme Court and its predecessor
court.” SCR 1.030(8)(a). Therefore, even if we disagree with the Supreme Court’s
holding in Weaver, we cannot alter it.
Furthermore, we agree with the trial court that, in light of Weaver,
inclusion of the requested jury instruction language would not have been
appropriate. The function of jury instructions is to set forth what the jury must
believe from the evidence in order to return a verdict in favor of the party bearing
the burden of proof. Webster v. Commonwealth, 508 S.W.2d 33, 36 (Ky. 1974).
Based on the Supreme Court’s holding in Weaver that a charge of escape in the
second degree “may arise from a violation of home incarceration that was imposed
as a condition of pretrial release,” 156 S.W.3d at 271, whether Hinkle was
constrained incidental to release on bail was irrelevant and not necessary for the
jury to find for the Commonwealth. Therefore, the trial court correctly excluded
the additional jury instruction language requested by Hinkle.
We next address the jury selection issue. As noted above, Hinkle
argues that the Commonwealth impermissibly excluded juror number 43401 from
the jury because of his race. A party may not strike African-American jurors
1
Hinkle argued at trial that he did not fall within the category of persons subject to Weaver;
however, he does not make that argument here.
-5-
without articulating a race-neutral explanation. Batson v. Kentucky, 476 U.S. 79,
97, 106 S. Ct. 1712, 1723, 90 L. Ed. 2d 69 (1986).
The Commonwealth stated that it struck juror number 43401 because
he was both unemployed and a student. As justification, the Commonwealth stated
that it generally strikes potential jurors with either characteristic and that juror
number 43401 had both. The Commonwealth did not state why it generally strikes
the unemployed, but it did state that it generally strikes students because of a belief
that students do not make reliable jurors. Hinkle argues the Commonwealth’s
argument is mere pretext because the Commonwealth did not strike a potential
white male juror who had been laid off. However, Hinkle has not pointed to any
other juror not stricken by the Commonwealth who was both a student and
unemployed. The Commonwealth offered a racially-neutral reason for striking
juror number 43401. Granting the trial court its due deference, we discern no error
in its acceptance of the Commonwealth’s reasons for striking juror number 43401.
CONCLUSION
Based on the preceding, and noting again that we are bound to follow
Supreme Court precedent, we hold that the trial court correctly defined custody in
the jury instructions. Furthermore, we hold that the trial court correctly determined
that the Commonwealth’s reason for peremptorily striking an African-American
juror was not simply pre-text. Therefore, we affirm.
ALL CONCUR.
-6-
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Annie O’Connell
Louisville, Kentucky
Jack Conway,
Attorney General of Kentucky
Todd D. Ferguson,
Assistant Attorney General
Frankfort, Kentucky
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
