Mash v. Commonwealth

• Decision Date: 20 September 2012
• Docket Number: No. 2010–SC–000584–MR.,2010–SC–000584–MR.
• Citation: 376 S.W.3d 548
• Parties: Billy MASH, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

376 S.W.3d 548

Billy MASH, Appellant

v.COMMONWEALTH of Kentucky, Appellee.

No. 2010–SC–000584–MR.

Supreme Court of Kentucky.

March 22, 2012.

Rehearing Denied Sept. 20, 2012.

Thomas More Ransdell, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, for appellant.

Jack Conway, Attorney General, James Coleman Shackelford, Assistant Attorney General, Office of Criminal Appeals, Attorney General's Office, Frankfort, KY, for appellee.

Opinion of the Court by Justice NOBLE.

Appellant Billy C. Mash was convicted in McCracken Circuit Court of one count of first-degree sodomy. He was sentenced to twenty years' imprisonment. Appellant now challenges his conviction before this Court as a matter of right. Ky. Const. § 110(2)(b). This Court affirms.

I. Background

This case involves a sexual assault committed by one inmate against another in the McCracken County Jail. On January 1, 2009, Appellant was incarcerated in the jail. The victim in this case, Matthew Morgan, was arrested in the early morning hours of New Year's Day and brought to the same cell block of the jail in which Appellant was housed. Appellant, an African–American man in his fifties, and Morgan, a nineteen-year-old white man, shared a cell for the next few days. According to Morgan, Appellant pressured him to have sex on his second night in jail, but Morgan refused. Morgan was so frightened he could not sleep that night. On Morgan's third night in jail, Appellant pulled him off the top bunk, pinned him down, and put his hands on Morgan's throat. Appellant put his penis in Morgan's mouth, then in his anus, and then in his mouth again.

The next morning, another inmate reported the attack to jail personnel. Morgan was transported to a local hospital, where a Sexual Assault Nurse Examiner (“SANE nurse”) performed an examination. The SANE nurse swabbed both the inside and outside of Morgan's anus. A lab technician later determined that a sample taken from Morgan's anus contained sperm cells matching Appellant's DNA, although the lab technician did not specify at trial whether the matching DNA was found inside or outside Morgan's anus. The examination by the SANE nurse also revealed marks on Morgan's neck consistent with someone gripping his neck, some redness on his right buttock, and injuries to his shins, but the nurse did not document any tears or trauma to the anus.

When interviewed by jail personnel and a detective, Appellant at first denied that he had had any sexual contact with Morgan. Later, he explained that there had been some sexual contact between them, but that it had been consensual. According to Appellant, he and Morgan became friends during the time they were in jail together. On the third night Morgan spent in jail, again according to Appellant, Morgan masturbated Appellant to express gratitude to Appellant for looking out for him. Appellant characterized this encounter as Morgan willingly giving him a “hand job.”

Appellant was charged with two counts of sodomy in the first degree and with being a persistent felony offender in the first degree. The jury instructions differentiated between the two sodomy counts, with one asking the jury to find that Appellant “penetrat[ed] Morgan's anus with his penis” by forcible compulsion, and the other that Appellant “penetrat[ed] Morgan's mouth with his penis” by forcible compulsion. Appellant was found guilty under the instruction for anal sodomy but not guilty under the instruction for oral sodomy. He was sentenced to twenty years' imprisonment.

II. Analysis

A. Fair Cross–Section Challenge to the Jury Panel.

Appellant argues that the trial court erred by denying his motion to set aside the jury panel and set a new trial. He argues the panel did not represent a fair cross-section of the community because there was only one African American on the panel. For the reasons explained below, Appellant did not establish a prima facie violation of the fair cross-section requirement, and therefore the trial court did not err.

From the start of the proceedings, Appellant believed that he would not get a fair trial in McCracken County because of his race. At a hearing on his motion for change of venue,¹ Appellant argued that the fact that he was a middle-aged African–American man and the victim was a nineteen-year-old white man would prejudice a white jury against him. Appellant told the court that he had been tried seven times in McCracken County, and he stated, “[T]here's been one black in each, in each case. So every jury's been white.” Appellant's motion for change of venue was eventually withdrawn because defense counsel could not find anyone to sign the affidavits required by KRS 452.220(2).

Appellant raised the issue of racial composition of the jury during a hearing in the judge's chambers the morning of trial before voir dire. At that point, the jury panel was starting to come into the courtroom but not everyone had arrived yet. Defense counsel noted that she had only seen one African American on the panel so far. She argued: “I just want to call the court's attention to the fact that I think that ... this may not be a good representation of minorities on that panel. That this panel may be flawed in some manner.” The prosecutor responded that the method of sending jury summons in McCracken County was absolutely race-neutral. The court did not rule on the issue at that time. Ultimately, only one African American was on the panel of 42 potential jurors. Eight or nine other potential jurors were supposed to show up that day but never did; their races are unknown. After voir dire, defense counsel made a motion to set aside the jury panel and to set a new trial date. The court denied the motion.²

To succeed on a challenge to the racial composition of the jury panel, a 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 v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). The burden is on the defendant to make this showing. Johnson v. Commonwealth, 292 S.W.3d 889, 894 (Ky.2009). “It is not enough to merely allege a particular jury failed to represent the community.” Miller v. Commonwealth, ––– S.W.3d ––––, ––––, 2011 WL 6543054 (Ky.2011). Although the first prong of the Duren test is met in this case because African Americans constitute a distinctive group in the community, see Rodgers v. Commonwealth, 285 S.W.3d 740, 759 (Ky.2009), Appellant failed to meet the second and third prong because he did not provide any information to the trial court about the number of African Americans in McCracken County or establish that there had been systematic exclusion of the group in the jury selection process.

The second prong of the test requires data about the number of members of the excluded group in the community. In his brief, Appellant cites to the 2000 United States census to show that 11.4% of the McCracken County population is African American alone or in combination with one or more other races. The census information was not provided to the trial court, but Appellant now asks this Court to take judicial notice of this information. While census information is the type of fact that may be judicially noticed under KRE 201, appellate courts should use judicial notice only “cautiously,” and this Court declines to do so in this case. Commonwealth, Cabinet for Health and Family Services v. Ivy, 353 S.W.3d 324, 335 (Ky.2011). Judicial notice “should not be used as a device to correct on appeal a failure to present adequate evidence to the trial court.” 1 Joseph M. McLaughlin, Weinstein's Federal Evidence § 201.32[3][a] (2d ed.2003); see Robert G. Lawson, The Kentucky Evidence Law Handbook § 1.00[5][d] (4th ed.2003) (explaining that judicial notice should be used “sparingly” on appeal). Here, Appellant failed to provide the trial court with any information about the number of African Americans in McCracken County at the time when the objection to the jury panel was made the morning of trial. Without this information, it was impossible for the trial court to evaluate whether Appellant had satisfied the second prong of the Duren test, and therefore Appellant failed to meet his burden.

Even if this Court were to take judicial notice of the census information showing the number of African Americans in McCracken County, Appellant still has not provided enough information to meet his burden under the second and third prongs of Duren. This Court has held that mere citation to census data, without any other information, is not enough to show underrepresentation or systematic exclusion. Miller, ––– S.W.3d at –––– (holding that defendant had not established that African Americans were unreasonably underrepresented when his only evidence on the issue was a reference to the 2010 U.S. Census); Johnson, 292 S.W.3d at 895.

A defendant may demonstrate systematic exclusion by providing statistical information showing that a particular group was underrepresented in a county's jury panels over a period of time. Duren, 439 U.S. at 366–67, 99 S.Ct. 664 (defendant met his burden by showing that women were underrepresented “in every weekly venire for a period of nearly a year”). Alternately, a defendant may show that something about the way a county selects its jury panels or creates its master list of jurors leads to systematic exclusion of a particular group. See Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953) (defendant made a prima facie showing of discrimination by demonstrating that the jury commissioner had used white tickets for white jurors' names and yellow tickets for African American jurors' names during the selection...