SHANNON (TERESA YVETTE) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: OCTOBER 16, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001716-MR
TERESA YVETTE SHANNON
v.
APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE ROBERT J. HINES, JUDGE
ACTION NO. 06-CR-00611
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON, TAYLOR, AND THOMPSON, JUDGES.
CAPERTON, JUDGE: The Appellant, Teresa Shannon (Shannon), appeals from
McCracken Circuit Court convictions on the charges of third-degree assault,1
1
Kentucky Revised Statutes (KRS) 508.025 states that a person is guilty of Assault in the Third
Degree when he or she “recklessly or intentionally causes or attempts to cause physical injury to
a city peace officer.”
resisting arrest,2 and disorderly conduct.3 Shannon claims that the trial court erred
in three ways: (1) by preventing Shannon from questioning potential jurors about
race during jury selection; (2) in finding that Shannon’s arrest was lawful; and (3)
by submitting jury instructions that allowed for a non-unanimous verdict on the
charge of third-degree assault. Having thoroughly reviewed the arguments of the
parties, the record, and the applicable law, we affirm.
On November 21, 2006, officers from the Paducah Police Department
went to Shannon’s home to serve a warrant on her daughter. The exchange
between Shannon and the officers was recorded by a body microphone system
worn by one of the officers. Shannon answered the door, and the police
immediately asked whether her daughter was home. Shannon provided the police
with inconsistent answers, and then shut the door.
Not understanding whether Shannon’s daughter was home, the police
repeatedly rang the doorbell and knocked at the door. Shannon then yelled
profanities at the officers. The police then warned Shannon that she needed to
calm down, refrain from profanity, and lower her voice. When these warnings
were ignored, the police attempted to arrest Shannon. An officer tried to handcuff
Shannon, but she ran into her home. The officers followed Shannon inside, where
2
KRS 520.090 states that a person is guilty of resisting arrest when he “intentionally prevents or
attempts to prevent a peace officer, recognized to be acting under color of his official authority,
from effecting an arrest of an actor ... by using any other means creating a substantial risk of
causing physical injury to the peace officer.”
3
KRS 525.060 defines disorderly conduct as “when in a public place and with intent to cause
public annoyance or alarm, or wantonly creates a risk thereof, he makes unreasonable noise.”
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she continued to resist and verbally assault the officers. Shannon then struck one
of the officers in the face, drawing blood. The police then forced Shannon to the
ground, handcuffed her, and placed her under arrest.
Thereafter, on December 21, 2006, a McCracken County grand jury
indicted Shannon on charges of third-degree assault, resisting arrest, and disorderly
conduct. A jury trial followed. During voir dire, Shannon’s counsel asked the
venire, “Does anybody here think it’s gonna be a problem if we have a jury of all
one, of all one race?” The Commonwealth objected and a bench conference
immediately followed. The defense attorney asserted that his client was arrested
by two white police officers, and that accordingly, he was entitled to pose raceoriented questions to the prospective jurors.
In response, the court stated that race was “not an issue in this case”
because the case did not concern a hate crime, and it was not a capital case, and
because the issue wasn’t ripe. The court also stated, “You can’t ask that. Quit, just
quit.” Before leaving the bench, defense counsel made brief reference to the Sixth
and Fourteenth Amendments.
Defense counsel then continued his questioning without further
mention of race. Further, aside from the question which was objected to, counsel
failed to make a proffer of any additional questions about race that he wanted to
ask but was prevented from doing so.
During a subsequent bench conference after the jury was selected,
defense counsel renewed his objection to the trial court’s prohibition against race-3-
related questioning during voir dire. Specifically, counsel objected to the fact that
he was not allowed to ask questions regarding race, and because he asserted that
the jury did not represent a fair cross-section of the community. In response to
Shannon’s objections in this regard, the court responded that the objection was
sustained only as to the specific question asked, rather than to the entire line of
questioning. The court further stated that, “I don’t think their opinion as to the
makeup of the jury is relevant to any case, so there. Let’s go on.”
On June 28, 2007, a jury found Shannon guilty on all counts, and
sentenced her to a total of three and a half years imprisonment. Subsequently, on
August 3, 2007, the trial court probated Shannon’s sentence for one year. This
appeal followed.
As previously noted, Shannon appeals on what are essentially three
separate grounds: (1) that the trial court erred by preventing Shannon from
questioning potential jurors about race during jury selection; (2) that the trial court
erred in finding that Shannon’s arrest was lawful; and (3) that the trial court erred
in submitting jury instructions that allowed for a non-unanimous verdict on the
charge of third-degree assault. We address these issues respectively.
On appeal, Shannon argues first that the trial court erred when it
refused to allow defense counsel to voir dire the panel about racial bias. In support
of her argument in that regard, Shannon asserts that an adequate voir dire is crucial
to a fair trial, and that the right to an impartial jury is basic to the American system
of justice. See Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491
-4-
(1968). Shannon states that one of the most effective safeguards for securing an
impartial jury is the jury challenge. She asserts that she was never allowed to ask
questions directed toward racial bias or animus, despite the fact that the jury was
entirely Caucasian and in light of the fact that McCracken County’s population
was 24 percent African-American.
Shannon argues that because she had an all-white jury, was arrested
by two white police officers, and was prosecuted by a white person, she should
have been allowed “to ask questions getting at whether venire members held such
racial biases or racial animus that they could not be fair.”4 Accordingly, Shannon
asserts that because she was not allowed to ask questions concerning the racial
make-up of the jury, her rights to an impartial jury and a fair trial under the Fifth,
Sixth, and Fourteenth Amendments to the U.S. Constitution and § § 2, 7, and 11 of
the Kentucky Constitution were violated. In addition, Shannon asserts that the
court’s decision was an unreasonable application of and contrary to established
U.S. Supreme Court precedent in the cases of Ristaino v. Ross, 424 U.S. 589, 594,
96 S.Ct. 1017, 47 L.Ed.2d 258 (1976), Turner v. Murray, 476 U.S. 28, 106 S.Ct.
1683, 90 L.Ed.2d 27 (1986), and Ham v. South Carolina, 409 U.S. 524, 93 S.Ct.
848, 35 L.Ed.2d 46 (1973).
In response, the Commonwealth argues first that this alleged error was
not preserved for review. The Commonwealth states that other than the initial
question posed to the jury, Shannon did not state what other questions she would
4
See Appellant’s brief, p. 10.
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have asked the venire. In support thereof, the Commonwealth cites this Court to
the decision rendered by our Kentucky Supreme Court in Lawson v.
Commonwealth, 53 S.W.3d 534 (Ky. 2001), wherein the issue was whether the
trial judge improperly limited defense counsel’s voir dire regarding the applicable
penalty range. The Court ultimately found the issue to be unpreserved, stating:
Lawson’s trial counsel then addressed a new line of
questioning and did not return to the topic of the penalty
range ... We conclude that Lawson’s failure to propose a
question which properly defined the appropriate penalty
range presents no properly preserved error for our
review. As Lawson made no further effort in the trial
court to voir dire the panel on the correct penalty range,
his argument hinges on speculation that the trial court
would not have permitted him to ask questions he wished
to ask, and he has not preserved this error for our review.
Lawson, 53 S.W.3d at 541-45 (Ky. 2001). Similarly, in Hayes v. Commonwealth,
175 S.W.3d 574 (Ky. 2005), the Supreme Court refused to reverse a conviction
because defense counsel did not specifically state which questions he wished to ask
the venire on the record.5
Further, the Commonwealth asserts that the trial judge did not limit
Shannon’s voir dire. The Commonwealth states that in response to the objection of
the prosecutor, the trial court directed defense counsel to stop the line of inquiry
regarding the venire’s opinion about an all-white petit jury, but did not direct
counsel to cease any and all inquiries regarding racial animus.
5
In the same decision, the Court reversed the convictions on a separate issue concerning voir
dire where counsel specifically preserved the questions he wished to ask but was denied by the
trial court.
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The Commonwealth further argues that defense counsel could and
should have offered the questions he wanted to ask for the record, but did not.
Indeed, the Commonwealth noted that its objection at the time went to the
particular question asked by counsel, and not to all race-based questions, as
counsel stated, “Other race-based questions, perhaps, would have been proper. I
don’t know. You didn’t ask those questions.”6 Likewise, the Commonwealth
asserts that when addressing this issue, the trial court stated, “I don’t think their
opinion as to the makeup of the jury is relevant to any case, so there. Let’s go
on.”7
Having reviewed the record and applicable law, we are in agreement
with the Commonwealth that Shannon has failed to properly preserve this issue for
our review. In reviewing the record, we note that the Commonwealth’s objection
to Shannon’s question was not about the issue of race itself, but instead addressed
what the jury as a whole felt about an all-white jury trying a black defendant.
Indeed, our review of Shannon’s question indicates that her question was primarily
concerned not with the bias of any one individual prospective juror, but with
prospective jurors’ perception of the make-up of the jury panel as a whole.
We are of the opinion that his type of question is not one of the sort
which would elicit any pertinent information as to the bias or prejudice of any
individual juror, and would not provide counsel with any substantial support upon
6
7
See VR2; 06/28/07; 10:50:45-10:55:45.
Id.
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which to base a preemptory strike or challenge for cause. Accordingly, we believe
the court properly sustained the objection of the Commonwealth to this question.
Furthermore, having reviewed the record, we find that contrary to
Shannon’s argument, the court below did not limit counsel’s ability to ask other
questions directed to the racial animus or bias of potential jurors. It was the
responsibility of Shannon’s counsel to make known to the court the actions counsel
desired the court to take. See Kentucky Rules of Criminal Procedure (RCr) 9.22,
and e.g., Sasaki v. Commonwealth, 485 S.W.2d 897 (Ky. 1972)(overruled on other
grounds by Sasaki v. Kentucky, 410 U.S. 951, 93 S.Ct. 1422, L.Ed.2d 684 (1973))8.
In the matter sub judice, while Shannon’s counsel objected to the
court’s limitation on one particular question, our review of the record does not
indicate that counsel explained to the court the nature of the additional race-related
questions he wished to ask. Accordingly, as previously set forth by this Court in
Lawson, Shannon’s arguments hinge upon what is essentially “speculation” that
the trial court would not have permitted her to ask the additional questions she
desired. As a result, we cannot find that this issue was preserved for our review.
8
This case concerned a physician charged with performing an abortion in violation of a statute in
effect at the time of the decision, but since found unconstitutional. Counsel submitted several
questions to potential jurors during voir dire concerning the nature of their opinions on the
abortion issue, as well as in reference to religious views. In the midst of jury selection, the Court
called counsel for both sides to chambers and advised that it would be conducting the remainder
of voir dire itself. Counsel objected in chambers, and later insisted that he was denied the right
of examining jurors as guaranteed by RCr 9.38. In addressing the issue, our Kentucky Supreme
Court held that if there was an unfavorable ruling made in chambers, it was incumbent upon
appellant to see to it that the proceedings were made a part of the record. The Court was of the
opinion that appellant did not make known to the court the action he desired the court to take,
nor his objection to the action of the court as required by RCr 9.22.
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See Sasaki, supra, Lawson, supra, and RCr 9.22. Having so found, we decline to
overturn the trial court on this issue.
As her second basis for appeal, Shannon asserts that her arrest was
illegal and without probable cause. On February 26, 2007, Shannon filed a onepage motion to suppress, stating that she wished to suppress certain evidence
because the police arrested Shannon illegally and without a warrant. In support of
her motion, Shannon stated that she was relying upon the Fourth and Fourteenth
Amendments of the U.S. Constitution, as well as § § 1, 2, and 10 of the Kentucky
Constitution and related caselaw. On May 2, 2007, a suppression hearing was held
during which both the Commonwealth and Shannon presented testimony.
Both Shannon and the Commonwealth each called one witness. The
Commonwealth called Officer Orazine, who described going to Shannon’s house
and looking for her daughter, Shannon’s yelling of profanities, and Shannon’s
disorderly conduct, as well as his repeated warnings, attempts to arrest Shannon,
and Shannon’s attempt to strike Officer Smith. Officer Orazine also testified that
Shannon’s yelling and cursing was so loud that it echoed off of nearby homes and
caused people in the neighborhood to look and see what was happening. On crossexamination, Officer Orazine confirmed that Shannon was placed in handcuffs
inside her home and that she assaulted Officer Smith while in the house.
Shannon called L. Johnson as her witness during the suppression
hearing. Johnson testified that he was present during the incident and that neither
he nor Shannon was on the porch. Johnson testified that the incident took place
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inside Shannon’s house. On cross-examination, Johnson confirmed that Shannon
cursed and yelled, but he did not believe that the yelling was heard across the
street. Johnson also testified that Shannon was yelling inside her home.
At the conclusion of the testimony, Shannon did not present any
argument, but sought instead to submit a brief and audio tape of the incident. The
trial court agreed, and on May 10, 2007, Shannon filed a five-page memorandum
in support of her motion to suppress, as well as copies of an unpublished decision
from this Court, and an unpublished decision from the Court of Appeals for the
Sixth Circuit.
In the memorandum, Shannon explained that the basis of her motion
to suppress was that her arrest was illegal and made without probable cause. We
note that in the opening paragraph of the “Argument” section of the memorandum,
Shannon focused her argument on “the narrow issue of whether a person
responding to police questioning can be arrested for disorderly conduct solely
when the alleged conduct takes place at her residence.”9
In the remainder of her memorandum, Shannon argued that state and
federal case law interpreting KRS 525.060 do not allow for a person to be arrested
for disorderly conduct while at a private residence and not a public place. Shannon
also expressly noted that her argument did not hinge on whether she was inside her
house or on the porch when she yelled at the officers, stating:
Teresa Shannon’s conduct clearly does not qualify as
disorderly conduct. The incident happened at a private
9
See Trial Record, p. 28.
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place, well within the confines of Shannon’s property.
Even if the court accepts the testimony of Officer
Orazine, Shannon never left her front porch. No
Kentucky Court has ever upheld a disorderly conduct
conviction that took place at a private residence.
Thereafter, on May 16, 2007, the trial court issued an order denying
the motion to suppress. In so doing, the trial court found that Shannon’s arrest was
lawful because her unruliness had created a disturbance in the neighborhood in
violation of KRS 525.060, a misdemeanor, thereby permitting Shannon to be
arrested without a warrant. Subsequently, at trial, Shannon renewed her motion to
suppress, adding, in addition to the aforementioned arguments, that the statute
permitting arrest for a misdemeanor, KRS 431.005, does not apply when the arrest
takes place in the home.10 The trial judge again denied the motion.
When reviewing a trial court’s decision on a motion to suppress, the
appellate court must initially determine whether the lower court’s findings are
supported by substantial evidence. Commonwealth v. Neal, 84 S.W.3d 920, 923
(Ky. App. 2002). If the trial court’s findings are supported in this manner, then
they are conclusive. Id. Based on those findings, the appellate court must then
conduct a de novo review of the trial court’s application of the law to those facts to
determine whether its decision is correct as a matter of law. Id.
Interestingly enough, we note that Shannon does not make arguments
to our Court on the issue of whether a person responding to police questioning can
be arrested for disorderly conduct solely when the alleged conduct takes place at
10
Shannon does not raise this ground on appeal, and accordingly, we shall not address it further
herein.
-11-
her residence, nor on the issue of whether the statute permitting arrest for a
misdemeanor, KRS 431.005, applies when the arrest takes place in the home,
which are the arguments she made to the court below. Therefore, we do not
address these issues.
Having reviewed the record and the applicable law, we simply cannot
agree with Shannon that her arrest was illegal or without probable cause. We note
that the appropriate analysis to be employed in determining whether a
misdemeanor arrest is lawful is whether a reasonable officer could conclude from
all facts that a misdemeanor is being committed in his presence. See
Commonwealth v. Mobley, 160 S.W.3d 783, 787 (Ky. 2005). Resisting Arrest is a
Class A misdemeanor and, pursuant to KRS 431.005(1)(d), a peace officer may
make an arrest without a warrant when such a misdemeanor has been committed in
his presence.
Having reviewed the record, including the audiotaped interaction with
the police, we conclude that the trial court had ample evidence to support its belief
that the officer’s actions were reasonable. The evidence supported the trial court’s
finding that Shannon had created a disturbance in the neighborhood by yelling and
cursing loudly so as to cause the neighbors to take notice, a misdemeanor in
violation of KRS 525.060.
The evidence also supported the finding that this occurred in the
presence of the officers, which, pursuant to KRS 431.005(d)(1), permitted the
officers to conduct a warrantless arrest for disorderly conduct. Having had a
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reasonable belief that a crime was being committed in their presence, we find
nothing inappropriate in the subsequent pursuit and arrest of Shannon by the
officers. Accordingly, we affirm the trial court’s ruling on that issue.
On appeal to this Court, Shannon now argues that the trial court erred
in failing to suppress evidence procured as a result of her unlawful arrest. In
support of this assertion, Shannon makes several arguments including: (1) blaming
the officers for provoking the incident, (2) that she was “inside her home when she
was arrested,” (3) that the trial judge failed to take into account that the tip was not
verified in any way, shape or form, and (4) that no exigent circumstances existed.
As we have noted, our review of the record indicates that the
arguments in the preceding paragraph now made by Shannon were not presented to
the court below. Our Kentucky Supreme Court has repeatedly held that it is not at
liberty to review alleged errors made with respect to motions to suppress unless the
grounds argued for reversal were also argued to the trial court. See e.g., Henson v.
Commonwealth, 20 S.W.3d 466, 470 (Ky. 2000), and Todd v. Commonwealth, 716
S.W.2d 242, 248 (Ky. 1986).
As noted, our review of the record indicates that the only argument
Shannon made to the court below concerned whether a person responding to police
questioning can be arrested for disorderly conduct when the alleged conduct takes
place solely at her residence. In her brief to this Court, Shannon never expressly
addresses this issue at all, and instead, addresses the aforementioned issues upon
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which the trial court was never given the opportunity to rule. Accordingly, we
cannot address those issues now for the first time on appeal.
As her final basis for appeal to this Court, Shannon asserts that the
third-degree assault jury instruction failed to require a unanimous verdict as
guaranteed by §§ 2, 7, and 11 of the Kentucky Constitution, RCr 9.82(1), and the
Fifth and Fourteenth Amendments of the U.S. Constitution. In reviewing this
matter, we note that alleged errors regarding jury instructions are considered
questions of law and are to be reviewed de novo on appeal. Hamilton v. CSX
Transp., Inc., 208 S.W.3d 272 (Ky.App. 2006).
The pertinent portion of the instruction at issue provided that Shannon
“intentionally caused or attempted to cause physical injury to Officer Steve Smith
of the Paducah Police Department by punching and/or striking and/or scratching
him in the face and/or head.” During the conference on instructions, Shannon’s
counsel objected to the instruction because it allowed the jury to find that Shannon
either caused or attempted to cause physical injury. The trial court overruled the
objection.
In support of her argument that the court below erred in allowing an
instruction which failed to require a unanimous verdict, Shannon cites
Commonwealth v. Whitmore, 92 S.W.3d 76 (Ky. 2002), for the proposition that
when the Commonwealth presents multiple theories of guilt in one instruction, the
evidence must support all of the various theories. Shannon asserts that according
to Whitmore, if one or more of the theories are not supported by the evidence, then
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the criminal defendant’s right to a unanimous verdict has been violated. Shannon
argues that the evidence does not support that Shannon intentionally attempted to
cause physical injury to Officer Smith.
Having reviewed the record and applicable law, we find no merit to
Shannon’s argument, and decline to reverse on this basis. As our Kentucky
Supreme Court previously stated in Hayes v. Commonwealth, 625 S.W.2d 583, 584
(Ky. 1981), “An alternative type instruction is proper and non-violative of the
unanimity requirement of Section 7 of the Kentucky Constitution if either theory in
the instruction is reasonably supported by the evidence.”
In the matter sub judice, it was the testimony of the officers that
Shannon struck Officer Smith. Indeed, the officers testified that Shannon flailed
her arms as Officer Smith arrested her, striking him in the face hard enough to
draw blood.11 We find the testimony of the officers to be evidence of a nature
substantial enough to support either theory in the instruction. Thus, the trial court
did not err in submitting the instruction to the jury.
Accordingly, for the foregoing reasons, we affirm the judgment of the
McCracken Circuit Court, the Honorable Robert J. Hines, presiding.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY.
THOMPSON, JUDGE, DISSENTS AND FILES SEPARATE
OPINION.
11
See VR2; 06/28/07; 11:35:15 & 13:33:10-13:34:50.
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THOMPSON, JUDGE, DISSENTING: I respectfully dissent from
the majority’s opinion because I believe Shannon’s request to voir dire on the issue
of racial prejudice was improperly denied and constituted an abuse of discretion.
Pursuant to the Fourteenth Amendment, an African-American charged
with a capital offense has the right to question prospective jurors regarding racial
prejudice. Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986).
RCr 9.38 provides the same right. Winstead v. Commonwealth, 283 S.W.3d 678
(Ky. 2009). I believe that an identical right should be extended to all regardless of
the potential penalty. It is the Commonwealth’s “duty to protect the innocent as
much as . . . prosecute the guilty.” Commonwealth v. Hamilton, 905 S.W.2d 83, 85
(Ky.App. 1995), citing Goff v. Commonwealth, 241 Ky. 428, 44 S.W.2d 306, 308
(1931).
The fundamental purpose of voir dire is to examine each prospective
juror's state of mind to enable the trial court to determine actual bias and to permit
counsel to discover bias or prejudice. Shegog v. Commonwealth, 142 S.W.3d 101,
110 (Ky. 2004); Wilson v. Commonwealth, 601 S.W.2d 280, 283 (Ky. 1980). As
the U.S. Supreme Court has stated in a landmark case involving the issue of the
racial composition of juries, the jury system has occupied a central position in our
country by safeguarding a person accused of a crime against the arbitrary exercise
of power by a prosecutor or judge. Batson v. Kentucky, 476 U.S. 79, 86, 106 S.Ct.
1712, 90 L.Ed.2d 69 (1986).
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Despite the constitutional mandate of impartial juries, I am cognizant
of the fact that the U.S. Constitution does not always entitle a defendant to engage
in voir dire questioning regarding all matters that conceivably might prejudice
potential jurors against him. Ristaino v. Ross, 424 U.S. 589, 594, 96 S.Ct. 1017, 47
L.Ed.2d 258 (1976). Rather, in Hayes v. Commonwealth, 175 S.W.3d 574, 583
(Ky. 2005), our Supreme Court stated that the preclusion of a voir dire question
constitutes reversible error when the question’s anticipated response would afford
the basis for a peremptory challenge or a challenge for cause.
However, the U.S. Supreme Court recently stated that “‘[i]t is well
known that prejudices often exist against particular classes in the community,
which sway the judgment of jurors, and which, therefore, operate in some cases to
deny to persons of those classes the full enjoyment of that protection which others
enjoy.’” Miller-El v. Dretke, 545 U.S. 231, 237, 125 S.Ct. 2317, 162 L.Ed.2d 196
(2005), quoting Strauder v. West Virginia, 100 U.S. 303, 309, 25 L.Ed. 664 (1880).
This sentiment is widely shared by the American public as evidenced by the results
of a survey conducted by the National Center for State Courts, How the Public
Views State Courts.12
In the survey, almost 70 percent of African-Americans respondents
believed that African-Americans, as a group, received “somewhat worse” or “far
worse” treatment from the courts relative to others. Id. at 38. Over forty percent
12
National Center for State Courts, How the Public Views the State Courts: A 1999 Survey
(1999), available at http://www.ncsconline.org/WC/Publications/Res_Amt PTC_PublicViewCrts
Pub.pdf.
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of white respondents felt that African-Americans, as a group, were treated worse
by the courts. Id. Additionally, while whites were roughly evenly split on whether
or not most juries are representative of the community, 70 percent of AfricanAmericans believed that most juries were not representative. Id. at 29. While our
courts have painstakingly endeavored to prevent the scourge of racial prejudice
from infiltrating our system of justice, as the U.S. Supreme Court has recognized
and our general public bears witness to, racial prejudice persists both in reality and
in perception. Against this background, I examine Shannon’s argument regarding
voir dire.
In this case, the defendant was black, the arresting officers were
white, all of the Commonwealth's witnesses were white, defense counsel, the
prosecutor and trial judge were white, and the entire venire panel was white.
Under these factual circumstances, when the racial disparity of the courtroom was
so patently conspicuous, a defendant should be permitted to question the venire on
the issue of racial prejudice. Due to the realistic implications of such a disparity,
this reasoning has been validated by many of our sister jurisdictions. Mize v. State,
131 Ga.App. 538, 206 S.E.2d 530 (Ga.App. 1974); Matthews v. State, 276 A.2d
265 (Del. 1971); Commonwealth v. Holland, 298 Pa.Super. 289, 292, 444 A.2d
1179, 1181 (Pa.Super. 1982) (denying the reality that racial prejudice exists may
prevent a defendant from obtaining a fair trial).
Additionally, providing a defendant with an adequate, not plenary,
opportunity to voir dire on the issue of racial prejudice will lead to greater public
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acceptance of our system of justice and ensure fair treatment for the accused. As
the U.S. Supreme Court recognized, when there is widespread cynicism regarding
a jury’s impartiality, the public confidence in our system of justice is undermined.
Miller-El v. Dretke, 545 U.S. at 238. Therefore, I believe Shannon’s line of voir
dire questioning would have afforded a basis to challenge prospective jurors.
Accordingly, based on the trial court’s abuse of discretion in refusing to permit any
questions on the issue of racial prejudice, I would vacate Shannon’s conviction.
The majority contends that Shannon’s voir dire claim is unpreserved
because her defense counsel failed to ask another specific question regarding racial
prejudice. While defense counsel asked only one question, I believe Lawson v.
Commonwealth, 53 S.W.3d 534 (Ky. 2001), is distinguishable. Unlike in Lawson,
the trial court strongly rebuked defense counsel’s voir dire question by stating that
race was “not an issue in this case.” The trial court further added, “Quit, just quit.”
While the majority uses Lawson to penalize defense counsel for not
voir diring further on racial prejudice, it ignores the import of the trial court’s
vehement repudiation of the defense counsel’s attempt to voir dire on the issue of
racial prejudice. Preston v. Commonwealth, 406 S.W.2d 398, 404 (Ky. 1966).
While Shannon’s defense counsel strongly argued to voir dire on the issue of racial
prejudice, the trial court’s overly strong rejection of this line of questioning
silenced counsel. Accordingly, I believe that the trial court’s repudiation of
defense counsel’s attempt at questioning absolved counsel of any failure to voir
dire further on the issue of racial prejudice.
-19-
I would reverse and remand for a new trial.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Julia K. Pearson
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Jeffrey A. Cross
Assistant Attorney General
Frankfort, Kentucky
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