Johnson v. Com.

• Citation: 292 S.W.3d 889
• Decision Date: 27 August 2009
• Docket Number: No. 2007-SC-000952-MR.,2007-SC-000952-MR.
• Parties: Charles Lamar JOHNSON, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court (Kentucky)

292 S.W.3d 889

Charles Lamar JOHNSON, Appellant v. COMMONWEALTH of Kentucky, Appellee.

No. 2007-SC-000952-MR.

Supreme Court of Kentucky.

August 27, 2009.

Charles Lamar Johnson, LaGrange, KY, Counsel for Appellant.

Jack Conway, Attorney General, Michael Louis Harned, Perry Thomas Ryan, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice SCOTT.

On August 1, 2007, Appellant, Charles Lamar Johnson, was found guilty by a Jefferson Circuit Court jury of five (5) counts of rape in the first degree, two (2) counts of incest, (2) two counts of sexual abuse in the first degree, rape in the second degree, rape in the third degree, criminal attempt to commit rape in the first degree, and sodomy in the first degree. For these crimes, Appellant was sentenced to life imprisonment. Appellant now appeals his conviction as a matter of right. Ky. Const. § 110(2)(b).

I. Background

At trial, five (5) young females alleged that Appellant had various degrees of sexual contact with them on numerous occasions over the course of a decade. Two (2) of the females were Appellant's daughters, A.J. and C.J. and two (2) of them were friends of Appellant's daughters, F.G. and K.H. The fifth, C.R., was a frequent babysitter in Appellant's house. The relevant testimony at trial was as follows.

Both A.J. and C.J. testified at trial. A.J. testified that Appellant engaged in sexual intercourse with her on several occasions, sodomized her on one occasion, and touched her in a sexual manner more than twenty-five (25) times when she was between the ages of eight (8) and twelve (12).¹ C.J testified that Appellant engaged in sexual intercourse with her on at least seven specific occasions when she was between the ages of eleven (11) and fifteen (15).

F.G., K.H., and C.R. testified as well. F.G. testified that she spent the weekend at Appellant's house in late October 2004, when she was eleven (11) years old, and she stated that Appellant engaged in sexual intercourse with her on each of the two nights she stayed in his home. A.J. witnessed one of the acts of sexual intercourse and corroborated F.G.'s testimony. K.H. frequently spent the night at Appellant's house on weekends, and testified as to two sexual encounters she had with Appellant when she was eleven (11) years old.² C.R. testified that she babysat in Appellant's home when she was eight (8) or nine (9) years old, and recalled several sexual acts between her and Appellant during this time (including oral sex, sexual intercourse, sodomy, and fondling).

At trial, the parties stipulated that Appellant suffered problems with sleepwalking. Accordingly, Appellant's primary argument in closing was that he did not possess the mental state required for commission of the crimes. At the conclusion of trial, the jury found Appellant not guilty of rape in the second degree as to A.J., but did find him guilty of: rape in the first degree, incest, and sexual abuse in the first degree as to A.J.; rape in the first degree, rape in the second degree, rape in the third degree, and incest as to C.J; two counts of rape in the first degree as to F.G.; rape in the first degree and criminal attempt to commit rape in the first degree as to K.H.; and rape in the first degree, sodomy in the first degree, and sexual abuse in the first degree as to C.R. For these crimes, the Jefferson County Circuit Court jury sentenced Appellant to imprisonment for life.

On appeal, Appellant raises five principal allegations of error: (1) that the trial court deviated from the jury selection process in such a way that systematically excluded African Americans from the venire from which his petit jury was selected; (2) that African Americans were systematically excluded from sitting on the grand jury that indicted him; (3) that he was convicted of multiple crimes constituting a single course of conduct; (4) that the Commonwealth improperly elicited testimony known to be perjurious and failed to correct such testimony once introduced; and (5) that the Commonwealth failed to prove his age as an essential element of the charges of rape in the second degree and third degree. Finding no cause for reversal, we affirm Appellant's convictions.

II. ANALYSIS

A. Appellant Does Not Establish A Prima Facie Violation Of The Fair Cross-Section Requirement Or A Prima Facie Case For Purposeful Discrimination Because He Failed To Supplement The Record With Evidence Supporting His Claim.

Appellant argues that his conviction should be reversed because the trial court deviated from the jury selection process set forth by KRS 29A.060³ and RCr 9.30,⁴ resulting in a venire that did not satisfy the fair cross-section requirement as expressed in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), thereby violating his Sixth Amendment right to a jury trial. Appellant also argues that his Fourteenth Amendment rights to due process and equal protection of the law were violated through purposeful discrimination in the jury selection process pursuant to Batson v. Kentucky, 476 U.S. 79, 93, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We decline to reverse Appellant's convictions for reasons that Appellant fails to establish either a violation of the fair cross-section requirement or a case for purposeful discrimination.

1. Fair Cross-Section Requirement

Here, Appellant first claims that the process from which the venire was selected was flawed in such a way that systematically excluded African Americans. Indeed, the panel from which a petit jury is selected must be drawn from a representative cross-section of the community in order to satisfy the Sixth Amendment's guarantee to a fair and impartial jury. Taylor, 419 U.S. at 528-530, 95 S.Ct. 692 (citing Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940)). However, the burden is upon the Appellant to establish a prima facie violation of the fair cross-section requirement. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).

Prior to the venire panel's appearance on the first day of trial, Appellant requested that the trial court permit testimony from a clerk in the Jefferson Circuit Court regarding the selection of the jury pool. Appellant then introduced statistical information compiled by the Administrative Office of the Courts concerning jury selection procedures in Jefferson County. In response, the Commonwealth argued that the law does not guarantee that any individual petit jury will reflect the exact racial composition of the community. Ultimately, the trial court disallowed testimony by the clerk absent a showing that the process was flawed in a manner that systematically excluded minority groups. The trial court, however, stated the subpoenaed records would be sealed in the record or made available for purposes of appellate review.

Nevertheless, on appeal, it is apparent that Appellant has failed to supplement the record with this statistical information (or, for that matter, any other evidence that tends to establish a prima facie violation of the fair cross-section requirement). "It is incumbent upon Appellant to present the Court with a complete record for review." Chestnut v. Commonwealth, 250 S.W.3d 288, 303 (Ky. 2008); see Steel Technologies, Inc. v. Congleton, 234 S.W.3d 920, 926 (Ky.2007); Davis v. Commonwealth, 795 S.W.2d 942, 948-949 (Ky.1990).

Without this supplemental information, Appellant cannot establish a prima facie violation of the fair cross-section requirement, namely:

In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

Duren, 439 U.S. at 364, 99 S.Ct. 664.

Under the first of the Duren requirements, Appellant does show that African Americans represent a distinctive group in the community. Duren, 439 U.S. at 364, 99 S.Ct. 664. In order for a group to be distinctive, "it must comprise a substantial percentage of the county population." Commonwealth v. McFerron, 680 S.W.2d 924, 928 (Ky.1984). Appellant cites figures from the 2008 World Almanac stating that the total population of Louisville-Jefferson County (as of 2006) was approximately 554,496, with African Americans comprising 13% of the area's total population. In any event, absent these statistics, it has long been held that African Americans are a distinctive group in the community. See Strauder v. West Virginia, 100 U.S. 303, 310, 25 L.Ed. 664 (1880) (abrogated on other grounds by Taylor, 419 U.S. at 536, 95 S.Ct. 692).

Yet, though Appellant meets the first of the Duren requirements, he falls short of demonstrating the remaining two. Also under Duren, Appellant must establish "that the representation of this group in venires ... is not fair and reasonable in relation to the number of such persons in the community." Duren, 439 U.S. at 364, 99 S.Ct. 664. In order to satisfy this requirement, Appellant must "demonstrate the percentage of the community made up of the group alleged to be underrepresented" and compare that percentage to the number of African Americans in venires. Duren, 439 U.S. at 364, 99 S.Ct. 664. Here, rather than providing statistics, Appellant merely estimates the number of African Americans which made up his venire (three to ten). This is not sufficient.

Since Appellant fails to show any underrepresentation of African Americans in jury pools over a period of time, he accordingly cannot meet the third of the Duren requirements: that such underrepresentation was caused by the "systematic exclusion of the group in the jury-selection...