HOWARD (CHERYL) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: NOVEMBER 7, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE JANET P. COLEMAN, JUDGE
ACTION NO. 06-CR-00300
COMMONWEALTH OF KENTCKY
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; STUMBO, JUDGE; GUIDUGLI,1 SENIOR
STUMBO, JUDGE: Cheryl Howard, hereinafter Appellant, is appealing her
convictions in the Hardin Circuit Court for first-degree assault, DUI, and driving
without a seatbelt. She was sentenced to twelve-years’ imprisonment. Appellant
claims that the trial court erred when it dismissed a Batson v. Kentucky, 476 U.S.
Senior Judge Daniel T. Guidugli sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), objection because Appellant was not of
the same race or gender of the juror in question and that she was entitled to a
directed verdict on the charge of first-degree assault. We find that the trial court
incorrectly applied the law on the Batson challenge, but that it correctly denied a
directed verdict on the assault charge. We therefore remand to the trial court for it
to re-examine the Batson issue.
On March 31, 2006, Appellant was driving her car when it went off
the road. Appellant overcorrected and went into the oncoming lane where it struck
another vehicle being driven by Josh Miller. Josh was transported by medical
helicopter to University Hospital in Louisville, Kentucky.
An x-ray revealed that Josh had a pneumothorax and rib fractures.
The rib fractures had punctured one of Mr. Miller’s lungs causing a pneumothorax.
A pneumothorax occurs when air is trapped between the lung and chest wall. If
the air pressure is allowed to build up in the chest wall, it can cause the lungs to
shift to one side of the chest cavity resulting in the loss of blood flow to the heart.
The doctor treating Josh, Dr. Frank Miller, inserted a tube into Josh’s chest cavity
allowing the trapped air to escape.
A “CAT” scan was also performed which revealed Josh’s spleen had
been injured and was bleeding into his abdomen. Luckily, this injury did not
require surgery and healed on its own.
Appellant admitted to having been drinking and a blood-alcohol test
revealed a blood-alcohol content of 0.32, four times the legal driving limit.
On May 30, 2006, Appellant was indicted by the Hardin County
Grand Jury and a three-day trial began on June 25, 2007. During voir dire,
eighteen potential jurors were struck for cause. After voir dire, counsel for
Appellant and the Commonwealth submitted their peremptory strikes to the trial
Appellant’s first claim of error concerns the use of one of the
Commonwealth’s peremptory strikes to remove Juror Ford. Juror Ford was one of
two African-American potential jury panel members. Counsel for Appellant
questioned why the Commonwealth wanted to remove Juror Ford and raised the
Batson challenge. The United States Supreme Court held in Batson that the Equal
Protection Clause forbids a prosecutor from challenging a potential juror solely on
the basis of race. Batson at 89.
Here, Appellant’s counsel questioned the Commonwealth’s strike of
Juror Ford. However, because Appellant was a white female, the trial judge was
unsure as to how to proceed. She stated that she was unaware of case law that
permitted someone who was not of the same race as the juror to raise the Batson
issue. The Commonwealth Attorney stated that the defendant must be a member
of the same race as the juror before the Batson issue can be raised. Appellant’s
counsel disputed this. Ultimately, the trial judge overruled the Batson objection
because Appellant was not an African-American.
In Saylor v. Commonwealth, 144 S.W.3d 812, 816 (Ky. 2004), our
Supreme Court held that a Caucasian defendant may raise the Batson Equal
Protection issue regarding the dismissal of an African-American potential jury
member. See also Campbell v. Louisiana, 523 U.S. 392, 118 S.Ct. 1419, 140
L.Ed.2d 551 (1998); Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d
411 (1991). In this case, the trial judge was incorrect in refusing to hear the
Batson objection because Appellant was not of the same race as Juror Ford.
There is a three-part standard in determining whether a prosecutor
violated the Equal Protection Clause with a Batson challenge.
First, a defendant must make a prima facie showing that a
peremptory challenge has been exercised on the basis of
race. Second, if that showing has been made, the
prosecution must offer a race-neutral basis for striking
the juror in question. Third, in light of the parties’
submissions, the trial court must determine whether the
defendant has shown purposeful discrimination.
Miller-El v. Cockrell, 537 U.S. 322, 328-329, 123 S.Ct. 1029, 154 L.Ed.2d
Here, the trial judge did not apply the proper standard in denying the
Batson challenge based on an erroneous belief that the potential juror and
defendant must be of the same race in order for a Batson objection to be made. A
retrospective hearing can be held by the trial court as set forth in Washington v.
Goodman, 830 S.W.2d 398, 402 (Ky. App. 1992). We therefore remand this case
to the trial court in order for it to hold a hearing in which it uses the three-part
standard set forth above.
Appellant also argues that there was insufficient evidence to prove
serious physical injury, a component of first-degree assault. This issue was
preserved by Appellant moving for a directed verdict.
Kentucky Revised Statute (KRS) 508.010(1) states:
A person is guilty of assault in the first degree when:
(a) He intentionally causes serious physical injury to
another person by means of a deadly weapon or a
dangerous instrument; or
(b) Under circumstances manifesting extreme
indifference to the value of human life he wantonly
engages in conduct which creates a grave risk of death to
another and thereby causes serious physical injury to
Appellant was charged under KRS 508.010(1)(b). Appellant claims there was no
serious physical injury to Josh Miller and that a directed verdict should have been
granted in her favor.
Serious physical injury is defined in KRS 500.080(15) as “physical
injury which creates a substantial risk of death, or which causes serious and
prolonged disfigurement, prolonged impairment of health, or prolonged loss or
impairment of the function of any bodily organ.”
On motion for a directed verdict, the trial judge must
draw all fair and reasonable inferences from the evidence
in favor of the Commonwealth. Commonwealth v.
Benham, 816 S.W.2d 186 (Ky. 1991). If the evidence is
sufficient to induce a reasonable juror to believe beyond
a reasonable doubt that the defendant is guilty, a directed
verdict should not be given. Id. The standard for
appellate review of a denial of a motion for a directed
verdict based on insufficient evidence is if, under the
evidence as a whole, it would not be clearly unreasonable
for a jury to find the defendant guilty, he is not entitled to
a directed verdict of acquittal. Commonwealth v.
Sawhill, 660 S.W.2d 3 (Ky. 1983).
Williams v. Commonwealth, 178 S.W.3d 491, 493 - 494 (Ky. 2005). Here, there
was testimony from Dr. Miller that Josh’s injuries were “potentially life
threatening.” Josh suffered internal bleeding and a punctured lung. Each of these
could have potentially been deadly. Appellant argues that because Josh’s
punctured lung was repaired before serious damage could have been done and
because the spleen stopped bleeding on its own that these injuries were not serious
as to create a substantial risk of death.
We disagree. The fact that Josh was fortunate in that his injuries did
not progress and become more serious does not negate the fact that at the onset
there was a substantial risk of death, as testified to by Dr. Miller. Either of his
injuries could have been deadly. It was not clearly unreasonable for the jury to
believe the internal bleeding and pneumothorax were serious physical injuries in
that they could have been fatal. As such, the motion for directed verdict was
Based on the above, we remand this case to the trial court for a hearing
on the Batson issue.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Kathleen K. Schmidt
Assistant Public Advocate
Department of Public Advocacy
Attorney General of Kentucky
Stephen B. Humphress
Assistant Attorney General