Taylor v. Commonwealth

STUMBO, Justice,

Dissenting.

Respectfully, I dissent from the majority opinion in this case on two of the issues decided therein. First, Taylor has made a prima facie case under both Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), and Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Next, I would reach the merits of Taylor’s Confrontation Clause -with respect to the admission of Wade’s confession.

Taylor produced very impressive evidence in support of his claim that the Commonwealth Attorney violated his right to equal protection of law by using peremptory strikes to remove African-American jurors from the jury venire solely on account of the jurors’ race. The evidence presented included:

(1) Passages from the Kentucky Prosecutor’s Handbook that stated that the following were not “preferable” jurors for the prosecution: (1) a juror who came from a “[mjinority group[ ] who may have a grudge against law enforcement;” and (2) a “juror of racial or national background to that of the defendant.”

(2) Observations by a then-sitting Jefferson Circuit Judge that she discharged a panel in a particular case because the Commonwealth Attorney used peremptory strikes to remove all black jurors on the venire and because of her “awareness that the Commonwealth had in other prior cases also elected to utilize strikes to remove all blacks.”

(3) The testimony of a former Jefferson County public defender that he had observed a pattern and practice of the Commonwealth using peremptory strikes to remove blacks from jury venires.

(4) The testimony of a private attorney that he had observed the same pattern and practice on behalf of the Commonwealth in “dozens and dozens of murder cases, many of which had been tried capitally.”

(5) The testimony of a former staff attorney who worked for the Jefferson County Commonwealth Attorney, who testified that it was undei’stood in the office that prosecutors should strive to strike jurors with the same ethnic background. Further, she testified that it was common knowledge that the same Commonwealth Attorney who prosecuted Taylor’s case-— who is also African-American — believed that blacks on the jury panel were bad.

The above evidence is of the same quantity and quality presented in Love v. Jones, 923 F.2d 816 (1991), which held that the defendant had made a prima facie case under Swain. Further, the Commonwealth used peremptory strikes to remove all but one African-American juror from the jury venire. Thus, the “practice continued unabated” at Taylor’s trial. Id. at 818. A prima facie case is established when a party produces “enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor.” Black’s Law Dictionary (7th ed.1999). There is no doubt in my mind that Taylor produced enough evidence to allow the inference that the Commonwealth Attorney used peremptory strikes in this case to remove African-Americans from the jury venire solely on the basis of race. Next, I am frankly baffled by the majority’s reliance on the fact that Batson overruled Swain to deny Taylor relief.

In overruling Swain, the Batson Court sought to remove a defendant’s “crippling burden of proof’ to establish an Equal Protection Clause violation under the evi-dentiary formulation set forth in cases interpreting Swain. Batson, 476 U.S. at 92, 106 S.Ct. at 1721-22, 90 L.Ed.2d at 85-86. To use Batson as a shield to prevent bringing Taylor’s equal protection claim to light is a perversion of the spirit and intent of Batson. And, I would also note that precious little light indeed has been shed on this claim.

Taylor did raise a Batson claim on direct appeal. While that claim was necessarily rejected in the opinion affirming his conviction, there was absolutely no analysis of the claim. We are left in the dark as to why the claim was rejected. The majority opinion’s assertion that Taylor’s Batson claim was rejected on direct appeal because he failed to establish a prima facie’ case is pure speculation.

In discussing what might constitute “other relevant circumstances” required to establish a prima facie case, Batson states clearly that a “ ‘pattern’ of strikes against black jurors included in the particular ve-nire might give rise to an inference of discrimination.” Id. at 96-97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88. There was — as was argued by defense counsel in the objection to seating of the jury — a clear pattern of using peremptory strikes to remove African-Americans from the venire in Taylor’s case. While I would hold that the evidence presented by Taylor in support of his Swain claim was sufficient in itself to establish a prima facie case under Batson — and that this alone should be grounds to revisit an important constitutional issue decided but never addressed on direct appeal — whether a prima facie case was established is of no consequence to the merits of Taylor’s claim on this issue.

The establishment of a prima facie case does not entitle a defendant to relief under Swain. Rather, it shifts the burden on the government to put forth a race-neutral reason for its use of peremptory strikes. Batson, 476 U.S. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88; Jones, 923 F.2d at 820. In this case, the Commonwealth Attorney did offer a reason for its use of peremptory strikes to remove African-American jurors from the venire, and that reason was anything but race-neutral.

In response to the defense’s objection to the seating of the jury, the Commonwealth Attorney explained his reasons for his peremptory strikes: “In accordance with case law, the Commonwealth has no other rational reason — if I strike all [black jurors] it then becomes objectionable under the cases coming from ... California.” Further, the trial court’s remarks in overruling the objection make clear that it did not accept this explanation as race-neutral: “I believe the issue being addressed at this time as to whether it is permissible to exercise your peremptory strikes whichever way you wish to. I don’t know, but the record is clear as to what has been done in this case.” If anything, the remarks indicate that the trial court assumed that race-based strikes were permissible.

In my mind, once the prosecutor comes forth -with an explanation for his or her use of peremptory strikes, the issue of whether the defendant has established a prima fa-cie case becomes moot. The establishment of a prima facie case only serves to shift the burden of proof to the government. Once the government assumes the burden of proof by proffering its reasons for its use of peremptory strikes, it must meet its burden. When the government’s reasons do not establish a race-neutral basis for its strikes, the record reveals on its face a patent violation of a defendant’s right to equal protection under both Sivain and Batson.

Therefore, if the majority opinion is correct in its assertion that Taylor’s Batson claim failed on direct appeal for failure to establish a prima facie case, then our error on direct appeal in affirming Taylor’s conviction on this issue is clear and palpable. Further, the error resulted in a deprivation of Taylor’s basic and fundamental right to equal protection under the law. Union Light, Heat & Power Co. v. Blackwell’s Adm’r, Ky., 291 S.W.2d 539, 542 (1956). For similar reasons, the law of the case doctrine should not bar Taylor’s Confrontation Clause claim based on the substantive use of Wade’s confession.

I see no reason to argue the majority opinion’s assertion that Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999), does not overrule Taylor v. Commonwealth, Ky., 821 S.W.2d 72 (1990). It just does not matter whether it does. Binding case law and precedent in force at the time of Taylor’s trial clearly hold that introduction of Wade’s uncross-examined confession violated Taylor’s right under the Confrontation Clause.

In Douglas v. Alabama two defendants — Loyd and Douglas — were charged with murder and tried separately, 380 U.S. 415, 416, 85 S.Ct. 1074, 1075, 13 L.Ed.2d 934, 935-36 (1965). Loyd was tried first and convicted. Subsequently, the prosecutor — referred to in the opinion as the “Solicitor” — called Loyd to testify against Douglas at his trial. Loyd refused to testify on Fifth Amendment grounds. The trial court ruled that the privilege did not apply and permitted the prosecution to treat Loyd as a hostile witness. The Solicitor

then produced a document said to be a confession signed by Loyd. Under the guise of cross-examination to refresh Loyd’s recollection, the Solicitor purported to read from the document, pausing after every few sentences to ask Loyd, in the presence of the jury, “Did you make that statement?” Each time, Loyd asserted the privilege and refused to answer, but the Solicitor continued this form of questioning until the entire document had been read. The Solicitor then called three law enforcement officers who identified the document as embodying a confession made and signed by Loyd. Although marked as an exhibit for identification, the document was not offered in evidence.

The statements from the document as read by the Solicitor recited in considerable detail the circumstances leading to and surrounding the alleged crime; of crucial importance, they named the petitioner as the person who fired the shotgun blast which wounded the victim.

Id. at 416-17, 85 S.Ct. at 1075-76, 13 L.Ed.2d at 936.

While the facts of Douglas are eerily similar to those of the case at bar, the results could not be more different. In reversing, the Douglas Court stated:

In the circumstances of this case, petitioner’s inability to cross-examine Loyd as to the alleged confession plainly denied him the right of cross-examination secured by the Confrontation Clause. Loyd’s alleged statement that the petitioner fired the shotgun constituted the only direct evidence that he had done so; coupled with the description of the circumstances surrounding the shooting, this formed a crucial link in the proof both of petitioner’s act and of the requisite intent to murder. Although the Solicitor’s reading of Loyd’s alleged statement, and Loyd’s refusals to answer, were not technically testimony, the Solicitor’s reading may well have been the equivalent in the jury’s mind of testimony that Loyd in fact made the statement; and Loyd’s reliance upon the privilege created a situation in which the jury might improperly infer both that the statement had been made and that it was true. Since the Solicitor was not a witness, the inference from his reading that Loyd made the statement could not be tested by cross-examination. Similarly, Loyd could not be cross-examined on a statement imputed to but not admitted by him. Nor was the opportunity to cross-examine the law enforcement officers adequate to redress this denial of the essential right secured by the Confrontation Clause. Indeed, their testimony enhanced the danger that the jury would treat the Solicitor’s questioning of Loyd and Loyd’s refusal to answer as proving the truth of Loyd’s alleged confession. But since their evidence tended to show only that Loyd made the confession, cross-examination of them as to its genuineness could not substitute for cross-examination of Loyd to test the truth of the statement itself. Hence, effective confrontation of Loyd was possible only if Loyd affirmed the statement as his. However, Loyd did not do so, but relied on his privilege to refuse to answer. We need not decide whether Loyd properly invoked the privilege in light of his conviction. It is sufficient for the purposes of deciding petitioner’s claim under the Confrontation Clause that no suggestion is made that Loyd’s refusal to answer was procured by the petitioner, on this record it appears that Loyd was acting entirely in his own interests in doing so. This case cannot be characterized as one where the prejudice in the denial of the right of cross-examination constituted a mere minor lapse. The alleged statements clearly bore on a fundamental part of the State’s case against petitioner. The circumstances are therefore such that “inferences from a witness refusal to answer added critical weight to the prosecution’s case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant.

Id. at 419-20, 85 S.Ct. at 1077, 13 L.Ed.2d at 937-38 (internal citations omitted).

We have relied on Douglas to reverse a number of convictions on facts similar to the case at bar. See e.g., Higgs v. Commonwealth, Ky., 554 S.W.2d 74, 75 (1977); Lowe v. Commonwealth, Ky., 487 S.W.2d 935, 936 (1972); see also Owsley v. Commonwealth, Ky., 458 S.W.2d 457, 463 (1970). These cases remain good law. Further, neither these cases nor Douglas were distinguished in the majority opinion on Taylor’s direct appeal. Rather, we are left to assume that the admission of Wade’s confession as a hearsay exception created a magic bullet that could pierce the heart of the Confrontation Clause but render it no harm.

The statement against penal interest exception to the hearsay rule was adopted by this Court in Crawley v. Commomvealth, Ky., 568 S.W.2d 927 (1978). In Crawley, the appellant sought to admit a statement by a co-defendant, in which the co-defendant implicated someone other than appellant in the crimes charged. Thus, there was no potential Confrontation Clause concerns as to its admissibility. See Lilly, 527 U.S. at 130, 119 S.Ct. at 1897, 144 L.Ed.2d at 130. The majority opinion recognizes this fact when it argues that Taylor’s confession was not admitted as a “firmly rooted” hearsay exception but rather under a rule of evidence. From there, the majority opinion implies that some of the factors used to admit the statement as a rule of evidence also served to make the statement admissible for Confrontation Clause purposes. This same tactic was used on direct appeal. The tactic was and is highly disingenuous.

The majority opinion conspicuously fails to mention that factors considered on direct appeal that related to “the circumstances surrounding the making of the confession” have been completely discredited by Lilly and other cases. These factors are the fact that Wade was not under arrest at the time, that he had been read his Miranda rights prior to questioning, that he signed a written waiver thereto, and that there was no suggestion that Wade was attempting to curry favor with the police. The Lilly Court summarily rejected similar arguments by the Commonwealth of Virginia. Lilly, 527 U.S. at 137-39, 119 S.Ct. at 1900-01, 144 L.Ed.2d at 135-36, citing Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986).

Therefore, I would hold that, under Douglas, supra, there was a clear and palpable error made on direct appeal in holding that Wade’s confession was properly admitted. Further, this error without a doubt severely prejudiced Taylor at trial. It is a mistake for the majority opinion to use the law of the case doctrine to avoid reaching the result that is required to correct the errors made at trial in this case.

For the reasons set forth above, I would reverse the trial court and remand this case for a new trial.