George Clapp v. Craig G. Van Horne, M.D., ph.D. ( 2021 )

RENDERED: MARCH 5, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0176-MR
GEORGE CLAPP AND WILMA APPELLANTS
CLAPP
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE THOMAS L. TRAVIS, JUDGE
ACTION NO. 15-CI-03621
CRAIG G. VAN HORNE, M.D., Ph.D. APPELLEE
OPINION
AFFIRMING
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BEFORE: LAMBERT, MAZE, AND L. THOMPSON, JUDGES.
LAMBERT, JUDGE: In this medical malpractice action, George Clapp and
Wilma Clapp (collectively, the Clapps) have appealed from the Fayette Circuit
Court’s January 3, 2020, trial verdict and judgment in favor the defendant below,
Craig Van Horne, M.D., Ph.D. (Dr. Van Horne). The sole issue on appeal
addresses the trial court’s denial of the Clapps’ Batson1 challenge to Dr. Van
1
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
Horne’s use of peremptory strikes to remove two prospective Black jurors from the
panel. We affirm.
The underlying action arose as a result of George’s treatment by
neurosurgeon Dr. Van Horne for a diagnosis of idiopathic Parkinson’s Disease
beginning in June 2014. Dr. Van Horne surgically implanted a Deep Brain
Stimulator, and George claimed to have sustained permanent injuries as a result of
this procedure. The Clapps filed a complaint in October 2015 seeking damages for
Dr. Van Horne’s alleged negligence in his treatment of George as well as for loss
of consortium for Wilma, his wife. A jury trial was held over several days
beginning on December 9, 2019. At the conclusion of the trial, the jury returned a
verdict in favor of Dr. Van Horne on the threshold question of whether he failed to
comply with his duty of care. As a result, the trial court entered a judgment
dismissing the Clapps’ claims with prejudice on January 3, 2020. This appeal now
follows.
The sole issue the Clapps have raised on appeal relates to the trial
court’s ruling on their Batson challenge during jury selection.
First, we shall set forth the parties’ arguments at trial related to the
Batson challenge. When the parties submitted their respective peremptory strike
lists at the conclusion of jury selection, counsel for Dr. Van Horne included two
Black jurors, Jurors 3603 and 3514. Because they were Black, counsel for the
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Clapps requested that defense counsel offer race-neutral reasons for striking these
jurors pursuant to Batson. Defense counsel stated that just because they were
Black did not justify making a Batson challenge, but he indicated he would offer
an explanation if the court required it. The court then requested that defense
counsel articulate race-neutral reasons for the strikes.
As to Juror 3603, defense counsel stated that her body language was
an issue and that she never said anything. As to Juror 3514, defense counsel stated
that like the other juror, he never answered a question. For another example,
counsel recounted this juror’s lack of response when counsel asked the panel
members if they would find in favor of Dr. Van Horne if defense counsel proved
“x, y, and z.” While other panel members raised their hands, Juror 3514 did not.
When he asked the question for a second time, the juror looked at the other jurors
and sort of raised his hand. Defense counsel did not feel comfortable with that
response. He also pointed out that three other Black people remained on the jury
panel. The court asked if there was any response from plaintiffs’ counsel; no
response was given. The court then found that the reasons defense counsel offered
did not rise to the level of a race-neutral explanation to exercise the strikes, and it
did not permit the strikes to be used, thereby granting the Clapps’ Batson
challenge.
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Defense counsel then stated that there was no racial reason for the
strikes. He said both jurors were also young, while the defense wanted older
people on the jury. In addition, Juror 3514 would not engage with him. He would
not look at him or raise his hand for a legitimate reason when asked. Later,
defense counsel stated that Juror 3603’s strike sheet showed she still lived with her
parents, providing an additional reason to strike her from the panel.
The court opted to go off the record to consider the three-part test in
Batson. When back on the record, the court found that defense counsel had offered
a race-neutral reason for striking the jurors. It did not believe that there had been a
showing that the defense was being purposefully discriminatory, noting that there
were several other members of the remaining jury panel who were Black. In
addition, the court stated that it was not sure there was a prima facie showing that
the challenges were exercised on the basis of race, backtracking itself on that issue.
Therefore, the court reversed its earlier decision and permitted the strikes to stand.
In Mash v. Commonwealth, 376 S.W.3d 548 (Ky. 2012), the Supreme
Court of Kentucky set forth the three-part Batson test as follows:
Under Batson, claims of racial discrimination in
the use of peremptory strikes are analyzed under a three-
step test. “First, the defendant must show a prima facie
case of racial discrimination. If the trial court is satisfied
with the defendant’s showing, the burden shifts to the
prosecutor to state race-neutral reasons for the
peremptory strikes. The trial court must then determine
whether the defendant has sufficiently proven purposeful
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discrimination.” Thomas v. Commonwealth, 153 S.W.3d
772, 777 (Ky. 2004) (citing Batson, 476 U.S. at 93-98,
106 S. Ct. 1712). A trial court’s denial of a Batson
challenge is reviewed for clear error. Washington v.
Commonwealth, 34 S.W.3d 376, 380 (Ky. 2000).
In this case, there is no need to determine whether
a prima facie showing of discrimination was made under
the first Batson prong because the prosecutor volunteered
an explanation for his strike. Commonwealth v.
Snodgrass, 831 S.W.2d 176, 179 (Ky. 1992) (citing
Hernandez v. New York, 500 U.S. 352, 359, 111 S. Ct.
1859, 114 L. Ed. 2d 395 (1991)) (“[S]ince the prosecutor
offered a race-neutral explanation for the peremptory
challenge and the trial court has ruled on the ultimate
issue of intentional discrimination, the preliminary issue
of whether the defendant had made a prima facie
showing . . . becomes moot.”).
The second Batson step, whether the prosecutor
stated a race-neutral basis for the strike, was met in this
case. This step sets a fairly low bar for the
Commonwealth to meet. “[T]he issue is the facial
validity of the prosecutor’s explanation. Unless a
discriminatory intent is inherent in the prosecutor’s
explanation, the reason offered will be deemed race
neutral.” Hernandez, 500 U.S. at 360, 111 S. Ct.
1859. . . .
At the third step of Batson, the burden shifts back
to the defendant to show “purposeful discrimination.”
Hernandez, 500 U.S. at 359, 111 S. Ct. 1859. At this
step, the trial court was required to determine whether the
prosecutor’s race-neutral reason was actually a pretext
for racial discrimination. “Because the trial court’s
decision on this point requires it to assess the credibility
and demeanor of the attorneys before it, the trial court’s
ultimate decision on a Batson challenge is like a finding
of fact that must be given great deference by an appellate
court.” Commonwealth v. Coker, 241 S.W.3d 305, 308
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(Ky. 2007). “In the absence of exceptional
circumstances,” appellate courts should defer to the trial
court at this step of the Batson analysis. Snyder v.
Louisiana, 552 U.S. 472, 477, 128 S. Ct. 1203, 170 L.
Ed. 2d 175 (2008) (quoting Hernandez, 500 U.S. at 366,
111 S. Ct. 1859).
The third step of the Batson test is where “the
persuasiveness of the justification becomes relevant.”
Purkett v. Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 131
L. Ed. 2d 834 (1995). “Although a prosecutor
theoretically could fabricate a demeanor-based pretext
for a racially-motivated peremptory strike, the third step
in Batson alleviates this concern by permitting the court
to determine whether it believes the prosecutor’s
reasons.” Thomas v. Commonwealth, 153 S.W.3d 772,
778 (Ky. 2004).
Mash, 376 S.W.3d at 555-56.
As to whether the Clapps established a prima facie case under the first
Batson step, we recognize that there are several elements that must be proven
before the burden shifts to the other party:
To prevail on a Batson claim, the defendant must first
“make a prima facie showing of discriminatory use of
peremptory challenges.” United States v. Harris, 192
F.3d 580, 586 (6th Cir. 1999). Under Batson, a prima
facie case is established by showing each of the
following elements:
[1] that [the defendant] is a member of a
cognizable racial group . . .
[2] that the prosecutor has exercised
peremptory challenges to remove from the
[jury pool] members of the defendant’s race
. . . [and]
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[3] that these facts and any other relevant
circumstances raise an inference that the
prosecutor used that practice to exclude the
[potential jurors] from the petit jury on the
account of their race.
Batson, 476 U.S. at 96, 106 S. Ct. 1712. As explained in
detail in the next section, the Supreme Court in Powers v.
Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411(1991), “modified the Batson prima facie case to allow a
defendant to raise a Batson violation even if he is not of
the same race as the excluded juror.” United States v.
Odeneal, 517 F.3d 406, 419 (6th Cir. 2008).
United States v. Mahbub, 818 F.3d 213, 224 (6th Cir. 2016). In this case, we note
that the Clapps are not Black. However, they are still permitted to raise a Batson
challenge as set forth in Powers v. Ohio:
[T]he Equal Protection Clause prohibits a prosecutor
from using the State’s peremptory challenges to exclude
otherwise qualified and unbiased persons from the petit
jury solely by reason of their race, a practice that
forecloses a significant opportunity to participate in civic
life. An individual juror does not have a right to sit on
any particular petit jury, but he or she does possess the
right not to be excluded from one on account of race.
499 U.S. at 409, 111 S. Ct. at 1370.
In Commonwealth v. Hardy, 775 S.W.2d 919 (Ky. 1989), the Supreme
Court of Kentucky made it clear that a party raising a Batson challenge must do
more than state that the opposing party was attempting to strike a jury panel
member who was Black in order to meet the prima facie case:
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Batson requires more than a mere stating that the
prosecutor struck a number of [B]lacks from the jury
panel. In considering this matter, the trial judge should
consider all the relevant circumstances. Hardy has not
shown any “pattern” of strikes against [B]lack jurors
regarding this particular venire, because only one of three
were challenged.
Batson also indicated that questions and statements
during the voir dire may be used to support or refute an
inference of discrimination. Hardy cannot demonstrate
any circumstance in this regard because it was the
defense counsel, not the prosecutor, who asked the panel
if they would have a problem with the fact that the
defendant was [B]lack and the victims were white.
The U.S. Supreme Court indicated a confidence in
trial judges and recognized a broad discretion in them to
determine whether, under all the circumstances, a prima
facie showing of discrimination had been made. There is
no indication that the trial judge abused his discretion by
ruling that Hardy had not made a sufficient showing or
argument stating that the prosecutor had struck one of the
three [B]lack jurors on the basis of race.
Batson requires more than a simple numerical
calculation. Numbers alone cannot form the only basis
for a prima facie showing. Two California cases decided
before Batson provide a persuasive analysis. People v.
Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748(1978) indicated that the use of two peremptories to
excuse the only two [B]lack jurors was found insufficient
for a prima facie showing. People v. Rousseau, 129
Cal.App.3d 526, 179 Cal.Rptr. 892 (1982) stated that a
claim of discriminatory exclusion requires the defendant
to establish as complete a record of the circumstances as
is feasible and that from all the circumstances, he must
show a strong likelihood that such persons are being
challenged because of their group association rather than
because of a specific bias. Rousseau, supra, further held
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that even though all the [B]lacks on the panel had been
struck by the prosecutor, this alone was not enough to
establish a prima facie showing of discrimination.
Hardy, 775 S.W.2d at 920.
In the present case, the trial court initially required defense counsel to
articulate race-neutral reasons for striking the two jury panel members after the
Clapps’ counsel raised the Batson challenge. After hearing arguments, the court
upheld this challenge. However, the court reconsidered its initial decision, stating
it was “not sure” there was a prima facie showing that the challenges were
exercised on the basis of race. We must agree with Dr. Van Horne that the Clapps
did not establish a prima facie case of racial discrimination in this instance.
Our review of the trial record reflects that the Clapps’ counsel raised a
Batson challenge based solely upon defense counsel’s use of peremptory strikes on
two Black jury panel members. There was no other reason given, and the Clapps’
counsel did not present any other argument on this element when the court
reversed its initial ruling that had been in their favor. There are no other
circumstances present that would permit the trial court to find that there was any
racial motivation, especially in light of the fact that there were three other Black
jury panel members who were not the subject of peremptory strikes by defense
counsel. Because there is simply no evidence of racial discrimination—other than
the fact that two of the jurors sought to be stricken were Black—to establish a
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prima facie case under the first step of Batson, we hold that the trial court did not
commit any error as a matter of law in denying the Clapps’ Batson challenge in
this case.
For the foregoing reasons, the judgment of the Fayette Circuit Court is
affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE:
Escum L. Moore, III Mark E. Nichols
Lexington, Kentucky Jeffrey A. Darling
Elizabeth A. Arrick
James M. Francis Lexington, Kentucky
Lexington, Kentucky
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