RENDERED: February 13, 2004; 2:00 p.m. NOT TO BE PUBLISHED Commonwealth Of Kentucky Court of Appeals NO. 2002-CA-002517-MR LASHANE MAURICE MORRIS a/k/a LASHOAN MAURICE MORRIS APPELLANT APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE STEPHEN P. RYAN, JUDGE ACTION NO. 00-CR-002144 COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: COMBS, DYCHE, and JOHNSON, Judges. COMBS, JUDGE. LaShane Maurice Morris has appealed from the final judgment and sentence entered by the Jefferson Circuit Court on November 8, 2002, finding him guilty pursuant to a jury verdict of the offenses of theft by unlawful taking over $300.00 and of being a first-degree persistent felony offender (PFO I). He was sentenced to prison for a term of five years -- enhanced to fifteen years. Having considered each of Morris s arguments
for reversal or remand, we affirm both the judgment and the sentence. On the afternoon of July 24, 2000, Louisville Police Department officers William Salyers and Mark Wampler responded to a call concerning a hold-up outside a McDonald s Restaurant located at Second and Broadway. Upon their arrival, the officers determined that Teresa Etheridge, the owner of Salt and Pepper Temporaries, had been robbed by an unidentified assailant. Etheridge had parked her car close to the rear of the McDonald s Restaurant and was delivering payroll to her assembled employees when a masked man reached into the vehicle and grabbed some of the pay envelopes filled with cash. During the struggle that ensued with her assailant, Etheridge was able to get out of the car, but she dropped several more of the pay envelopes to the ground. Morris, an employee awaiting his wages, along with Dwight Snorden, a fellow employee, rushed forward into the melee. assailant physically. Snorden attempted to subdue the Morris claims that he gathered some of the envelopes from the ground with the intention of returning them to Etheridge. However, once a shot rang out, Morris fled the scene. He was later tracked to an ambulance ramp outside a hospital not far from the restaurant. The sum of nearly fifteen -2-
hundred dollars in cash was recovered from his hat. Morris was indicted for robbery in the first degree and PFO I. The case proceeded to trial and was submitted to a jury. The jury acquitted Morris of robbery but returned a verdict of guilty of theft by unlawful taking and PFO I. On November 6, 2002, the trial court adopted the jury s sentencing recommendation. This appeal followed. Morris first contends that the composition of the jury panel violated his right to due process. Following the exercise of peremptory challenges but before the jury was seated and sworn, Morris s counsel objected to the selection of the venire members. He argued that the jury panel did not adequately reflect a fair cross-section of the community since it had failed to include a representative number of African-American jurors. The court stated that the jury panel members had been randomly selected by computer. The Commonwealth argues that this issue was not properly preserved for our review. Additionally, it observes that there is absolutely no evidence to refute the court s explanation that the jury panel was selected through a completely random process. We agree that the issue has not been properly preserved for our review. Motions pertaining to an irregularity in the selection or summons of jurors and/or as to the composition of the jury -3-
must be made prior to examination of the jurors pursuant to RCr 1 9.34, which addresses challenges to the jury panel as a whole. Morris acknowledges that he did not raise any claim of irregularity before the jurors were examined. However, Morris contends that the issue was sufficiently preserved in reliance on RCr 9.36, which pertains to challenges to individual jurors as distinguished from the jury panel. We disagree. While the provisions of RCr 9.36 permit challenges to be made until the time the jury is sworn, these provisions pertain specifically to challenges to individual jurors rather than to challenges to the venire panel as a body. We have consistently refrained from addressing the merits of alleged error in jury selection where the error is unpreserved. Commonwealth v. Nelson, Ky., 841 S.W.2d 628 (1992); Robertson v. Commonwealth, Ky., 597 S.W.2d 864 (1980); Moore v. Commonwealth, Ky. App., 597 S.W.2d 155 (1979). As Morris failed to raise his objection in timely fashion, the issue is not subject to our review. Additionally, his bare objection -- without some factual demonstration of irregularity in the selection of the jury panel -- is patently insufficient. Brodgen v. Commonwealth, Ky., 476 S.W.2d 192 (1972); Bowling v. Commonwealth, Ky., 942 S.W.2d 293 (1997). Appellant has failed to demonstrate that the jury selection process was in any manner 1 Kentucky Rules of Criminal Procedure -4-
irregular or that it systematically excluded African-Americans from Jefferson County jury panels. Morris attacks the Commonwealth s exercise of a peremptory challenge to eliminate the single African-American juror who remained following the voir dire examination as violating the standards set forth in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In response to an objection by the defense, the prosecutor stated that Juror No. 17560 had been stricken because she had indicated a mistrust of police officers during voir dire. Morris argues that the prosecutor struck the juror merely because of her race. He asserts that the reasons offered by the prosecution for exercising a peremptory strike against Juror No. 17560 do not withstand the close scrutiny of the Batson test. We disagree. In Batson, supra, the United States Supreme Court outlined a three-step analysis for determining whether peremptory challenges have been properly exercised. First, a defendant must establish a prima facie case of race-related discrimination. Second, the prosecutor must provide a raceneutral reason for the exercise of the peremptory challenge. And third, the trial court must then conduct an inquiry into the ultimate question of whether there was discriminatory intent underlying the exercise of the peremptory challenge. -5-
Assuming, arguendo, that Morris could make out a prima facie case of racial discrimination through the Commonwealth s exercise of this single peremptory strike, we have examined the record to determine whether the prosecution gave a sufficient, race-neutral explanation for the exercise of the peremptory challenge against African-American Juror No. 17560. During the course of the voir dire examination, the Commonwealth correctly detected and accurately assessed the juror s mistrust of police officers. The requirements of Batson do not wholly eliminate prosecutorial discretion as to the use of peremptory challenges. Woodall v. Commonwealth, Ky., 63 S.W.3d 104 (2002). Moreover, the trial court retains ultimate discretion to evaluate the sufficiency of the reasons offered for a prosecutorial challenge. Id. Under the circumstances of this case, we cannot agree that the court abused its discretion in rejecting the appellant s Batson challenge. Next, Morris contends that he did not receive a fair trial because the Commonwealth failed timely to disclose the existence and identity of an eyewitness. Again, we disagree. During its voir dire examination of jurors, prosecutors indicated that Dwight Snorden, who had also tried to subdue the unknown assailant, would be called as a witness during the course of trial. Morris did not object. Later, during opening statements, prosecutors again mentioned Dwight -6-
Snorden and described the nature of his anticipated testimony. Once again, Morris did not object. Finally, the Commonwealth indicated to the court that Snorden would be the first witness called the following day. Only then did Morris object. Morris argued that Snorden s testimony should be excluded since the Commonwealth had failed to disclose his existence as a witness during discovery. Although it refused to exclude the anticipated testimony, the court granted a delay in the proceedings in order that defense counsel could interview Snorden prior to his being called to the stand. Following the interview, defense counsel made no further attempt to exclude testimony or to seek a continuance. Morris has made no specific allegation of harm resulting from the court s refusal to exclude the testimony. It is apparent that the court weighed the options contained in RCr 7.24 in responding to the objection of defense counsel to Snorden s testimony. In addressing an alleged discovery violation, the trial court was authorized in its discretion: 1) to grant a continuance; 2) to exclude material not disclosed; or 3) to issue any other order as may be just under the circumstances. RCr 7.24(9). The court declined to exclude the anticipated testimony but did offset any resulting prejudice to Morris by permitting a delay in the proceedings to allow defense counsel an opportunity to interview the witness. -7-
Morris cannot demonstrate that he suffered any specific jeopardy as a result of not having learned of the witness earlier. Consequently, as he has failed to establish any reversible error, we will not disturb the court s ruling on this point. Next, Morris contends that the trial court erred by failing to declare a mistrial after the jury saw him dressed in a jail jumpsuit and shackled in handcuffs. While he concedes that the issue was not properly preserved for review, he asks us to consider it under the palpable-error standard of RCr 10.26. At the conclusion of the guilt-innocence phase of trial, the court ordered that Morris (who had previously been released on his own recognizance) be taken into custody. A $100,000 bond was set but not posted. The following morning, Morris was brought to court for the combined PFO proceeding and penalty phase of trial. He was dressed in a standard-issue bright orange Jefferson County Jail jumpsuit; he remained in handcuffs. Counsel did not lodge an objection, requesting only that the proceedings be continued until Morris had changed into civilian clothes. The trial court permitted the delay, and Morris returned more suitably dressed. Although the jury had already determined that Morris was guilty of theft by unlawful taking, the appellant contends that his appearance in the jumpsuit and handcuffs served to stigmatize him as a criminal. He argues that because the error -8-
was palpable and affected substantial rights, the failure to lodge an objection must be excused. He also contends that the error resulted in manifest injustice and that, therefore, relief in the form of a reversal of his conviction is required. We disagree. Morris readily acknowledges that he did not make a contemporaneous objection regarding his appearance in the jail attire. He also observes that the trial court responded to his request for a delay in the proceedings so that he might obtain more suitable garb. Thus, the court granted him the only relief that he sought. We cannot find reversible error or an irregularity rising to the level of manifest injustice. Finally, Morris contends that the trial court erred by failing to consider him for probation as required by KRS 2 533.010. Consequently, he contends that the case should be remanded for proper sentencing. However, conceding that this issue was not properly preserved for review, he urges this Court to review the error pursuant to the provisions of RCr 10.26, which would require our finding of palpable error affecting his substantial rights. Accordingly, we have examined the record on this point. After the jury was discharged, Morris waived his right to a pre-sentence investigation and requested immediate 2 Kentucky Revised Statutes. -9-
sentencing. The court imposed the fifteen-year sentence as recommended by the jury. Morris contends that the record is devoid of any indication that the court considered sentencing him to probation as required by statute. We disagree. Contrary to Morris s representations, the court s written record reveals that the possibility of probation was duly considered and expressly rejected. The court indicated that it had weighed and evaluated the nature and circumstances of the crime and the history and character of the defendant before judgment and sentence were entered. These factors are among those designated for consideration by the provisions of KRS 533.010(2). The record sufficiently establishes that the trial court followed the statutory criteria in entertaining the possibility of probation. There was no abuse of discretion. Court are affirmed. The judgment and sentence of the Jefferson Circuit ALL CONCUR. BRIEF FOR APPELLANT: Elizabeth B. McMahon Louisville, Kentucky BRIEF FOR APPELLEE: Albert B. Chandler III Attorney General of Kentucky Tami Allen Stetler Assistant Attorney General Frankfort, Kentucky -10-