BENNIE L. GAMBLE, JR. V. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: FEBRUARY 21,2002
TO BE PUBLISHED
BENNIE L. GAMBLE, JR.
APPEAL FROM MCCRACKEN CIRCUIT COURT
HON. R. JEFFREY HINES, JUDGE
INDICTMENT NO. 97-CR-0291-1
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT BY JUSTICE STUMBO
Appellant, Bennie L. Gamble, Jr., was convicted in the McCracken Circuit Court
of murder and first-degree robbery and sentenced to life in prison. Gamble appeals his
conviction, alleging that: (1) peremptory strikes were improperly used by the
prosecution during jury selection to exclude African-Americans from the jury, violating
Appellant’s right to Equal Protection; (2) the trial court committed reversible error in
refusing to excuse two jurors with racist views for cause, compelling Appellant to
exercise peremptory challenges on incompetent jurors; (3) Appellant’s motion to be
tried separately from his co-defendant was improperly denied; and (4) the trial court
improperly refused to grant a mistrial following prejudicial testimony that Appellant had
terminated his interview with police, prejudicial comments and cross-examination by
co-defendant Bradley’s attorneys, and misconduct by the trial judge during Appellant’s
testimony. Because we find the trial court erred in its ruling as to the second issue, we
reverse and remand for a new trial.
Appellant, Chasidy Bradley and Barbara Neil1 were arrested for the September
23, 1997 robbery and murder of William Tolbert. While Appellant maintained his
innocence, Bradley and Neil1 gave statements about their involvement, as well as
Appellant’s, in the crimes. Neil1 eventually pled guilty to the murder and robbery and
testified against Bradley and Appellant in exchange for a recommended sentence of
twenty-five (25) years in prison. Bradley and Gamble were tried together.
Neil1 essentially testified that she and Bradley had originally planned to kill
Tolbert for his money. They were unable to go through with their plan alone and
recruited Appellant, who was living with Bradley, to help. Neil1 indicated that the
women, who knew Tolbert, went to his house and distracted him by performing oral sex
on him. While they were so engaged, one of the women slipped to the back of the
house and let Appellant in the back door. Neil1 indicated that, after an attempt to cut
Tolbert’s throat failed, Appellant, with Neill’s assistance, strangled him with a telephone
cord and belt.
COMMONWEALTH’S USE OF PEREMPTORY STRIKES
Appellant is African-American, while the victim was Caucasian, as are Bradley
and Neill. Of the thirty-three (33) prospective jurors called in Appellant and Bradley’s
case, four were African-American. The Commonwealth used its peremptory challenges
to strike three of the four African-Americans from the jury and Appellant challenged the
Commonwealth’s use of peremptory strikes as racially motivated. Before the jury was
sworn, the trial judge overruled Appellant’s objection to the Commonwealth’s use of its
The Commonwealth indicated at the bench conference that prospective Juror #
52 had been stricken because the prosecutor had tried a murder case against her son,
who was ultimately convicted of murder. Prospective Juror # 40 was stricken because
her brother had successfully sued, and recovered a judgment against a police officer,
and/or department, for false arrest. Finally, the Commonwealth asserted that
prospective Juror # 66 was stricken because she had been approached by a witness in
the case and had spoken about the case, and she had recently been stopped by
Paducah police and charged with a series of traffic offenses. Appellant asserted then,
and now, that those reasons were merely pretextual, noting that none of these issues
were raised by the Commonwealth during voir dire. Also, prospective Juror # 40 was
questioned about her ability to be fair if she served on the jury and she repeatedly
indicated that she could be fair.
argues that this issue has not been properly preserved, as
the objection was not raised until after the prospective jurors who had been stricken had
been discharged and had left the courtroom. This assertion is without merit. The
Commonwealth cites Simmons v. Commonwealth, Ky., 746 S.W.2d
wherein a Batson challenge was held to be untimely where defense counsel specifically
stated that he had no objection to the jury, the prospective jurors who were not chosen
for the jury had been discharged, and the jury had been sworn. In the case at bar, the
names of the fourteen (14) jurors were called, immediately after which the trial judge
began to thank the potential jurors who were not selected and to discuss his own
experiences as a juror. Appellant raised the objection as soon as was practicable,
under the circumstances, and before the jury had been sworn. Washinaton v.
Commonwealth, Ky., 34 S.W.3d 376 (2000). Thus, the objection was timely and the
issue was properly preserved for appeal.
In Batson v. Kentucky, 476 U.S. 79 (1986) the United States Supreme Court
outlined a three-step process for evaluating claims that prospective jurors were stricken
on the basis of race in violation of the Equal Protection Clause. “First, the defendant
must make a prima facie showing of racial bias for the peremptory challenge. Second,
if the requisite showing has been made, the burden shifts to the Commonwealth to
articulate ‘clear and reasonably specific’ race-neutral reasons for its use of a
peremptory challenge. While the reasons need not rise to the level justifying a
challenge for cause, ‘self-serving explanations based on intuition or disclaimer of
discriminatory motive’ are insufficient. Stanford v. Commonwealth, Ky., 793 S.W.2d
112, 114 (1990) (quotinq Batson. supra, at 98). Finally, the trial court has the duty to
evaluate the credibility of the proffered reasons and determine if the defendant has
established purposeful discrimination.” Washinaton v. Commonwealth, KY., 34 S.W.3d
376 (2000). “A judge cannot merely accept the reasons proffered at face value, but
must evaluate those reasons as he or she would weigh any disputed fact. In order to
permit the questioned challenge, the trial judge must conclude that the proffered
reasons are, first, neutral and reasonable, and second, not a pretext. These two
requirements are necessary to demonstrate ‘clear and reasonably specific . . .
legitimate reasons.“’ Wriaht v. State, 586 So.2d 1024 (Fla. 1991). (quoting State v.
Slappy, 522 So.2d 18 (Fla. 1987).
With respect to the first prong of the Batson test, this Court has found that once
the Commonwealth has offered a race-neutral explanation for the peremptory challenge
and the trial court has ruled on the ultimate issue of discrimination, the preliminary issue
of whether the defendant has made a prima facie showing is moot. Commonwealth v.
Snodorass, Ky., 831 S.W.2d 176 (1992). (citing Hernandez v. New York, 500 U.S. 352
(1991)). Thus, the first prong of Batson has been rendered moot by the circumstances
The Commonwealth has clearly met the second prong of the Batson three-prong
test. The Commonwealth articulated ‘clear and reasonably specific’ race-neutral
reasons for its use of the peremptory challenges, in that one juror’s son had been
prosecuted by the prosecutor in the case sub judice, one juror had talked with a witness
in the trial, and, less impressively, had recently received a number of traffic citations
from the Paducah police, and that the third juror stricken had a close relative who had
filed suit for false arrest and had recovered against the police officer and/or department.
As to Appellant’s assertion that the Commonwealth should have inquired into these
incidents with each potential juror, this Court has previously held that such inquiry is not
required before exercising a peremptory challenge. Commonwealth v. Snodarass, Ky.,
831 S.W.2d 176 (1992).
In the third prong of the Batson test, the trial judge weighed the evidence before
him and decided that Appellant had not shown purposeful discrimination in the
Commonwealth’s use of its peremptory challenges. The trial court is afforded great
discretion in making its determination under Batson. “The trial court may accept at face
value the explanation given by the prosecutor depending upon the demeanor and
credibility of the prosecutor.” Stanford v. Commonwealth, 793 S. W.2d 112 (1990). The
trial judge’s decision is not clearly erroneous and thus will not be set aside. Hernandez
v. New York, 500 U.S. 352 (1991) Commonwealth v. Snodarass, Ky., 831 S.W.2d 176
TRIAL COURTS REFUSAL TO EXCUSE JURORS WITH RACIST VIEWS
Upon individual questioning, Juror # 170 indicated that he had been assaulted at
gunpoint by an African-American in Tennessee. When asked if he had ever used racial
terms to describe this incident, Juror # 170 stated that he had used the phrase “some
nigger robbed me at gunpoint.”
During the questioning of Juror # 54, he indicated that he had moved from his
prior neighborhood because he had a young daughter and he “never felt safe” because
there were “black guys” always around their house. He indicated a strong opposition to
inter-racial relationships, stating that he generally thought of people involved in such
relationships as low class, and of low class people as more likely to commit crime.
Juror # 54 stated that he could not deny his prejudices and that upon entering the
courtroom he automatically assumed Gamble to be the defendant because he “figured
a black had to be the person accused.” Both Juror # 170 and Juror # 54 indicated that
they could base their decision solely on the evidence presented at trial.
Neither Juror # 170 nor Juror # 54 served on Appellant’s jury. According to
Appellant, the trial court refused to exclude these jurors for cause and Appellant
exercised peremptory challenges in order to avoid having them serve on the jury.
However, Appellee points out, and the record reflects, that the Court, in fact, eventually
struck Juror # 170, though how that came about is unclear from the record.
Appellee further notes that Gamble did not allege that he used all of his
peremptory challenges, even having stricken Juror # 54. Thus, the Commonwealth
argues that the issue is not properly preserved for appeal, citing Derossett v.
Commonwealth, Ky., 867 S.W.2d
195, 197 (1993); and Wilson v. Commonwealth, Ky.,
836 S.W.Zd 872 (1992). “The error attributed to the failure to excuse either or both
jurors for cause is not properly postured for further review insofar as neither juror sat,
nor has prejudice been shown as the record does not disclose that appellant exhausted
all peremptory challenges as to these venirepersons.” Derossett at 197.
CR 9.40 provides that, for the charge of a felony offense, the defendant or
defendants jointly are entitled to eight (8) peremptory challenges. If one (1) or two (2)
additional jurors are called, each defendant gets an additional peremptory challenge,
and where more than one (1) defendant is being tried, each defendant is entitled to at
least one additional peremptory challenge to be exercised independently of any other
defendant. While a motion was made for additional challenges, the record does not
indicate that the motion was granted.
The record reveals that Appellant and Bradley struck eight (8) jurors jointly, and
Appellant struck an additional two jurors independently. Thus it would appear that
Appellant did, in fact, use all of his peremptory challenges.
While it is true that the decision of whether a juror should be excused for cause
is a matter within the sound discretion of the trial court, Mills v. Commonwealth, KY.,
996 S.W.2d 473 (1999) Foley v. Commonwealth, KY., 953 S.W.2d 924 (1997) the
exchange between Juror # 54, counsel for the Appellant and Ms. Bradley, and the trial
judge, is very disturbing. While Juror # 54 was hesitant to label himself a bigot, and
clearly embarrassed when voicing his views on race, he did state that: (1) he was
racially biased; (2) he left his neighborhood because young black men were hanging
around in the area; (3) when he walked into the courtroom he assumed that Appellant
was the accused because of the color of his skin; (4) and he was opposed to, in fact,
offended by, inter-racial relationships. Juror # 54 specifically stated that he felt that
people who were involved in such relationships were low class, and that low class
people were more likely to commit crimes. Juror # 54 stated that it was “hard to say”
how the presence of an inter-racial relationship would affect his decision in this case.
While Juror # 54 did eventually state that he could be fair and reach a decision on the
evidence, every indication was that he holds racist ideas which affected his view of
Appellant before the first piece of evidence was presented to him. In short, he had
indicated a bias so strong that he could not be rehabilitated. As stated in Montaomery
v. Commonwealth, Ky., 819 S.W.2d 713, 718 (1991), further questions do “not provide
a device to ‘rehabilitate’ a juror who should be considered disqualified by his personal
knowledge or his past experience, or his attitude as expressed on voir dire.”
had indicated a bias so strong that the prosecutor’s questions did not serve to remove
the disqualification.” Thomas v. Commonwealth, Ky., 864 S.W.2d 252,255 (1993).
this Court stated in Montaomery:
One of the myths arising from the folklore surrounding jury selection is
that a juror who has made answers which would otherwise disqualify him
by reason of bias or prejudice may be rehabilitated by being asked
whether he can put aside his personal knowledge, his views, or those
sentiments and opinions he has already, and decide the case instead
based solely on the evidence presented in court and the court’s
instruction. This has come to be referred to in the vernacular as the
“magic question.” But, as Chief Justice Hughes observed in United States
v. Wood, 299 U.S. 123 (1936), “impartiality is not a technical conception.
It is a state of mind.” A trial court’s decision whether a juror possessed
“this mental attitude of appropriate indifference” must be reviewed in the
totality of circumstances. It is not limited to the juror’s response to a
“magic question.” In this case, the record is replete with circumstances
establishing an inference of bias or prejudice on the part of jurors so
pervasive that the jurors were beyond being rehabilitated as appropriate
jurors by affirmative answer to such a question, however well intentioned.
Id. at 718. For Appellant’s challenge to succeed, it is not necessary that an unqualified
juror actually sat on the jury. As the Court noted in Thomas v. Commonwealth,
Ky., 864 S.W.2d 252, 259 (1993), it has always been the law in Kentucky “that
prejudice is presumed, and the defendant is entitled to a reversal in those cases where
a defendant is forced to exhaust his peremptory challenges against prospective jurors
who should have been excused for cause.” All that is required is that “[a] party must
exercise all of his peremptory challenges in order to sustain a claim of prejudice due to
the failure of the court to grant a requested challenge for cause.” Thomas, citing
Abramson, Kentucky Practice, (Criminal Rules) Vol. 9, Sec. 25.50 (1987).
Inasmuch as our decision on this issue is dispositive, the additional issues raised
by Appellant on appeal, which are unlikely to arise at a second trial, will not be
Lambert, C.J.; Cooper and Johnstone, JJ., concur. Keller, J., dissents by
separate-opinion, with Graves and Wintersheimer, JJ., joining that dissent.
COUNSEL FOR APPELLANT:
Shelly R. Fears
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601-I 133
COUNSEL FOR APPELLEE:
A. B Chandler, III.
Frankfort, Ky 40601
John E. Zak
Assistant Attorney General
Criminal Appellate Division
OfTice of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
RENDERED: FEBRUARY 21,2002
TO BE PUBLISHED
BENNIE L. GAMBLE, JR.
APPEAL FROM MCCRACKEN CIRCUIT COURT
HON. R. JEFFREY HINES, JUDGE
INDICTMENT NO. 97-CR-0291-1
COMMONWEALTH OF KENTUCKY
DISSENTING OPINION BY JUSTICE KELLER
I wholeheartedly agree with the majority that the trial court erred when it found
Juror # 54 qualified to sit as a juror and overruled Appellant’s motion to excuse Juror
#54 for cause. Unlike the majority, which bases its reversal on the premise that the trial
court’s error “forced” Appellant to exercise a peremptory challenge to remove Juror #54,
however, I believe the most important - and ultimately, in my view, dispositive - fact
in this case is that Juror # 54 did not sit on the jury that determined Appellant’s guilt.
exercising a peremptory challenge to remove Juror # 54, Appellant “did not lose a
peremptory challenge. Rather, he used the challenge in line with a principal reason for
peremptories: to help secure the constitutional guarantee of trial by an impartial jury.“’
‘United States v. Martinez Salazar, 528 U.S. 304, 315-316, 120 S.Ct. 774, 781-2,
145 L.Ed.2d 792 (2000).
Here, a fair and impartial jury deliberated the evidence and found Appellant guilty.
Accordingly, I do not believe that the trial court’s error affected Appellant’s substantial
rights2 and I would affirm the judgment of the McCracken Circuit Court.
In my dissenting opinion in Stopher v. Commonwealth,3 I expressed my opinion
that this Court should overrule Thomas v. CommonweaIth,4 reject the notion that
automatic reversible error exists whenever a defendant exercises a peremptory
challenge to remove a juror whom the trial court erroneously failed to remove for cause,
and subject such allegations of error to harmless error review. Although, at that time, I
expressed my intention to follow this Court’s precedent until a majority of the Court
elects to adopt my view,5 I now realize that I cannot fulfill my oath of office by closing
my eyes, reversing a jury verdict that resulted from a fair trial, and remanding the case
for another fair trial. As even more courts have embraced the view that errors of this
type do not require automatic reversal,’ I again suggest that this Court “reexamine its
decisional law concerning peremptory challenges used to excuse jurors whom the trial
court has erroneously failed to excuse for cause . . . [and] bring Kentucky law in
accordance with the prevailing federal jurisprudence.“7
3Ky., 57 S.W.3d 787, 813-818 (2001) (Keller, J., dissenting).
4Ky., 864 S.W.2d 252 (1993) cert. denied, 510 U.S. 1177, 127 L.Ed.2d 567, 114
S.Ct. 1218 (1994).
‘Stopher v. Commonwealth, supra note 3 at 808.
“See State v. Lindell, 629 N.W.2d 223 (Wise. 2001); State v. Fire, 34 P.3d 1218
v. Commonwealth, supra note 3 at 817.
Because I find no reversible error in either the issue addressed in the majority
opinion or the other issues Appellant raises, I would affirm the judgment of the
McCracken Circuit Court.
Graves and Wintersheimer, JJ., join this dissenting opinion.