FRYE (DERAY) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: NOVEMBER 26, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 07-CR-00373
COMMONWEALTH OF KENTUCKY
VACATING AND REMANDING
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BEFORE: COMBS, CHIEF JUDGE; STUMBO, JUDGE; GUIDUGLI,1 SENIOR
COMBS, CHIEF JUDGE: Deray Frye was convicted in Kenton Circuit Court on
one count of possession of a handgun and of being a second-degree persistent
felony offender. On appeal, he argues that the jury was improperly empanelled
and that he is entitled to a new trial. After our review, we agree.
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.
At his trial on August 14, 2007, Frye, who is African-American, was
convicted and sentenced to fifteen-years’ imprisonment. The prosecution used a
peremptory strike to remove the only African-American juror (Juror X) on the
panel. After some initial hesitation, the trial court allowed use of the strike. This
We recapitulate the pertinent facts involved in the bench conference
concerning the strike:
[DEFENSE COUNSEL]: Judge, I’m going to assume that the
only African-American gentleman on the panel was excused by
TRIAL COURT: No. The Commonwealth [inaudible]. [Juror
COMMONWEALTH: That’s correct, judge. Do you want my
reasoning on the record?
TRIAL COURT: The race-neutral reason for that?
COMMONWEALTH: Yes sir. [Juror X] did not respond, that
I noticed, to any questions by either the Commonwealth or the
defense, um, did not look like he wanted to be here. His eyes
were very bloodshot and red, looked like he’d been up all night
and, like a couple of other people that I excused, I just don’t
like jurors that don’t look interested in participating or paying
attention. That was the impression that I got from [Juror X].
TRIAL COURT: You probably should have brought it up if
you had some concerns about his physical condition. Now,
[Juror X] served on a jury last month and participated in the
COMMONWEALTH: Judge, it’s not uncommon for an
attorney to make judgment calls based on people’s just physical
behavior and their demeanor, and this, like other jurors that I
select or I struck [inaudible] struck me as someone that would
not be a good person to have on the jury. . . .
DEFENSE COUNSEL: Judge, my only difficulty with what
[the Commonwealth] says is that we’re unable to verify a lot of
those things because that individual was not brought up. Those
were things that I did not notice. He seemed responsive to me.
Now, did he give a verbal answer? No, but he was nodding
appropriately, paying attention.
TRIAL COURT: One of the things I noticed throughout this
morning is that there was, I think, a noticeable lack of response,
not just from [Juror X], but there was really a less than average
[inaudible] from my perspective.
COMMONWEALTH: There were other people that I struck
for their lack of response, as well.
TRIAL COURT: [inaudible] Whether or not that’s the case,
the only African-American juror of the 28 is struck by the
Commonwealth. That raises a question.
COMMONWEALTH: I realize any time you strike a juror of
ethnicity it’s going to raise a question, but that doesn’t mean
there’s a presumption of impropriety.
TRIAL COURT: It doesn’t. It does call for a race-neutral
explanation, and that’s what I’m waiting for. You said that he
was not responsive. Well, but like I said, out of the 28,
probably about 20 of them weren’t responsive.
Toward the end of the bench conference, the trial court finally
declared: “Although I’m not totally satisfied with the explanation, I know from
prior exposure to [Juror X] that there was some concern about his being a
satisfactory juror.” That concern was based on an episode of incontinence and
dozing during a previous trial.
The Sixth Amendment of the United States Constitution guarantees
that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury[.]” (Emphasis added.) It is well established that if
the selection of the jury is based on racial reasons, the defendant’s Fourteenth
Amendment equal protection rights are implicated and may be violated. Batson v.
Kentucky, 476 U.S. 79, 86 (1986). In Batson, the U.S. Supreme Court outlined a
three-step analysis to test whether a peremptory strike was discriminatory:
First, the defendant must make a prima facie showing of
racial bias for the peremptory challenge. Second, . . . the
Commonwealth [must] articulate “clear and reasonably
specific” race-neutral reasons for its use of a peremptory
challenge. . . . Finally, the trial court has the duty to
evaluate the credibility of the proffered reasons and
determine if the defendant has established purposeful
Washington v. Commonwealth, 34 S.W.3d 376, 379 (Ky. 2000).
In this case, the defendant met the first step by articulating a prima
facie case of discrimination. The Commonwealth then offered a race-neutral
explanation for its peremptory challenge as dictated by the second step of Batson.
Commonwealth v. Snodgrass, 831 S.W.2d 176, 179 (Ky. 1992). The court then
undertook its analysis.
The threshold for an acceptable race-neutral reason is generally low –
“not a reason that makes sense, but a reason that does not deny equal protection.”
Thomas v. Commonwealth, 153 S.W.3d 772, 777 (Ky. 2004), quoting Purkett v.
Elem, 514 U.S. 765, 768 (1995). At Frye’s trial, the prosecutor claimed that Juror
X seemed unresponsive, looked disinterested, had bloodshot eyes, and had the
appearance of sleeplessness – all indications that Juror X might not have possessed
the degree of alertness that a juror would need for a day-long trial. Our Supreme
Court has held that a potential juror’s demeanor is a race-neutral reason. Thomas
v. Commonwealth, 153 S.W.3d at 778. Thus, the issue before us is whether the
trial court properly evaluated the Commonwealth’s explanation.
In examining the third prong of the Batson test (the propriety of the
trial court’s decision as to the explanation), our role is to scrutinize whether the
race-neutral explanation was in reality a subterfuge or a guise for racially
motivated use of a peremptory strike. Id. We defer to the trial court unless we
determine that its finding was “clearly erroneous.” Hernandez v. New York, 500
U.S. 352, 369 (1991), McGinnis v. Commonwealth, 875 S.W.2d 518, 523 (Ky.
1994) overruled on other grounds by Elliott v. Commonwealth, 976 S.W.2d 416,
418 (Ky. 1998). As Justice Breyer wrote:
ordinary mechanisms of judicial review cannot assure
Batson’s effectiveness. . . . The trial judge is best placed
to consider the factors that underlie credibility. . . .
Appellate judges cannot on the basis of a cold record
easily second-guess a trial judge’s decision about likely
Rice v. Collins, 546 U.S. 333, 343 (2006), (Breyer, J., concurring).
The U.S. Supreme Court has recently refined the third prong of the
Batson test in Snyder v. Louisiana, 128 S.Ct. 1203 (2008), a case which was
decided after Frye’s trial. Snyder provides that in cases where the juror’s
demeanor is the basis for a peremptory strike, “the trial court must evaluate
whether . . . the juror’s demeanor can be credibly said to have exhibited the basis
for the strike attributed to the juror by the prosecutor.” Id. at 1208. Snyder places
a role of heightened scrutiny upon a reviewing court. The Fifth Circuit
summarized the Snyder reasoning as follows:
[T]he Supreme Court rejected the State’s argument that
the prosecutor’s peremptory challenge was validly based
on a prospective juror’s nervousness for the reason that
the record did not reflect whether the trial court, in
allowing the challenge, had noted, recalled, or made a
determination as to the juror’s demeanor. Because the
trial court in Snyder simply accepted the explanation as
race-neutral and allowed the challenge without stating
any reason, the Supreme Court discounted the
possibility that the trial court could have based its “raceneutral” determination on the prosecution’s “demeanor”
explanation even under a highly deferential “clear error”
standard. . . . Under Snyder’s application of Batson,
therefore, an appellate court applying Batson arguably
should find clear error when the record reflects that the
trial court was not able to verify the aspect of the juror’s
demeanor upon which the prosecutor based his or her
peremptory challenge. (Emphasis added.)
Haynes v. Quarterman, 526 F.3d 189, 199 (5th Cir. 2008). In other words, clear
findings need to be made by a trial court as to its reasoning in resolving the Batson
The Snyder rationale dictates that we must reject the explanation for
the disputed peremptory strike. The trial court struggled in reaching its findings
concerning the proffered race-neutral explanation by the Commonwealth. It noted
initially that the Commonwealth’s reason was unsatisfactory and that it had not
personally noticed anything negatively noteworthy about Juror X. Ultimately, the
court upheld the strike based on behavior from the previous month that
reinforced the contentions offered by the Commonwealth.
The allusion to past performance was essentially irrelevant for any
analysis at this juncture. The court revealed that Juror X had experienced some
incontinence and drowsiness due to medication. However, Juror X was not given
the opportunity to disclose whether his medical condition still existed at Frye’s
trial – nearly one month later. Furthermore, neither the Commonwealth nor the
defense was aware of any behavioral problems with past performance. More
importantly, neither the defense nor the trial court could objectively corroborate
the Commonwealth’s claims as to Juror X’s demeanor. In light of Snyder, we are
compelled to hold these grounds to be too tenuous and unsubstantiated to prevail.
Additionally, Snyder held that it is improper to exercise a strike
against a minority panelist for a reason that is shared by white panelists but treated
differently. Snyder, supra at 1211. In Snyder, the prosecution’s strike was based
on school scheduling problems of the potential juror. The Supreme Court held that
the strike was suspicious because several white jurors who were not dismissed had
disclosed more demanding family and work conflicts. Id. In a direct parallel,
Frye’s trial court observed that “twenty out of twenty-eight” of the panelists
displayed the same disinterest that the prosecution claimed was the basis for
striking Juror X. Yet their lack of concentration did not serve as a basis for any
objection – much less a strike.
We note again that the trial judge in this case did not have the benefit
of Snyder, which was decided after Frye’s trial. Based on the combined reasoning
of Batson, supra, and Snyder, supra, we are compelled hold that the use of the
peremptory strike was inappropriate.
Since we are remanding this case on the Batson issue, we shall
address one other issue briefly as it is likely that it will arise during the new trial.
Appellant correctly argues that the prosecutor inappropriately questioned Frye as
to the veracity of the police officers who testified at trial. During his crossexamination of Frye, the prosecutor repeatedly attempted to elicit from Frye his
characterization of the officers as liars. Our Supreme Court has clearly held such a
line of questioning to be impermissible. Moss v. Commonwealth, 949 S.W.2d 579,
583 (Ky.1997). Although this alleged error was unpreserved for appellate review,
we have nonetheless elected to address it since appellant has challenged it as
palpable error under Kentucky Rules of Criminal Evidence (RCr) 10.26. Although
the court in Moss did not agree that it was palpable error requiring reversal, it
noted as follows:
Appellant’s failure to object and our failure to regard
this as palpable error precludes relief. However, we
believe such a line of questioning to be improper. A
witness should not be required to characterize the
testimony of other witnesses, particularly a wellrespected police officer, as lying. Such a characterization
places the witness in such an unflattering light as to
potentially undermine his entire testimony.
Id. at 583.
Accordingly, we vacate and remand this case to the Kenton Circuit
Court for a new trial.
BRIEF AND ORAL ARGUMENT
Kathleen Kallaher Schmidt
Assistant Public Advocate
Department of Public Advocacy
BRIEF FOR APPELLEE:
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
ORAL ARGUMENT FOR
Courtney J. Hightower