Sifuentes v. Commonwealth, 2016-SC-000485-MR
| Decision Date | 15 February 2018 |
| Docket Number | 2016-SC-000485-MR |
| Parties | FERNANDO SIFUENTES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | United States State Supreme Court (Kentucky) |
IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.
NOT TO BE PUBLISHED
ON APPEAL FROM SHELBY CIRCUIT COURT
MEMORANDUM OPINION OF THE COURT
Fernando Sifuentes appeals as a matter of right from the judgment of the Shelby Circuit Court and 20-year sentence for one count of first-degree rape, one count of first-degree sodomy, and one count of incest stemming from the abuse of his niece, B.M. Sifuentes raises a number of grounds for relief, two of which have merit and require reversal. The first is a Batson1 violation resulting from a peremptory strike made by the Commonwealth. The second is duplicitous jury instructions on rape and sodomy, which violate the unanimityrequirement for jury verdicts. We will further address any remaining issues which may arise again on remand.
B.M. lived in a mobile home in Shelbyville, Kentucky with her parents and sister, as well as several other relatives, including Sifuentes, B.M.'s paternal uncle. B.M. testified that when she was in third grade, Sifuentes began engaging in sexual behaviors, first by touching her inappropriately over her clothes, then under her clothes, until progressing to sexual intercourse, and finally sodomy when B.M. was in fifth grade. She stated that the abuse occurred "once or twice a week" during this time, and that Sifuentes would seek out time alone with her, such as when her mother would go to the store, when her parents were out, or at night.
B.M. testified that she felt "nasty" and "ashamed for letting it happen," but that Sifuentes told her "it could cause problems" with the family if she ever told anyone, and B.M. was afraid to upset her father. After a while, even though she knew the behavior was wrong, B.M. felt "normal" because it happened so often. The abuse stopped when Sifuentes returned to Mexico, but resumed when he returned to Kentucky, when B.M was in sixth grade.
After B.M.'s sister read about the sexual abuse in B.M.'s diary, and confronted her, B.M. told her mother. Her mother sent her to counseling immediately. B.M. received psychological treatment at Our Lady of Peace Hospital in Louisville for a week, and was also treated at Seven Counties Services. In 2012, B.M. disclosed the abuse to a school counselor, at whichpoint the police began an investigation. In March 2012, B.M. was interviewed by a forensic investigator at the Family and Children's Place in Louisville. During the pendency of this investigation, B.M. and her family were referred to Catholic Charities regarding the U-Visa process.2 Although B.M. and her family began the appropriate filings, they did not complete the application process.
In 2014, Sifuentes was indicted as follows: three counts of first-degree rape, two counts of first-degree sodomy, and one-count of incest, for offenses that occurred between 2006-2009. The Commonwealth thereafter amended the indictment to one count of first-degree rape, one count of first-degree sodomy, and one count of incest. The jury was instructed on these offenses, as well as an additional incest instruction for a victim under 12, now a Class A felony under KRS3 520.010, as amended June 12, 2006. The jury convicted Sifuentes of all charges, and recommended a sentence of 20 years on each count, to be served concurrently, for a total of 20 years' imprisonment, which the trial court imposed. This appeal follows as a matter of right.
First, Sifuentes, an undocumented Mexican immigrant, argues that the trial court abused its discretion in overruling his Batson challenge and allowing the Commonwealth to exercise a peremptory strike on Mr. Jimenez, the only Latino on the venire panel of 31. Defense counsel objected under Batson, and the trial court overruled the objection, finding that the Commonwealth had proffered an appropriate, race-neutral reason for striking Mr. Jimenez. We review the trial court's ruling for an abuse of discretion. Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000). An abuse of discretion occurs if the trial court's ruling is "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
In Batson, the United States Supreme Court outlined a three-step process for evaluating claims that prospective jurors were stricken on the basis of race, in violation of the Equal Protection Clause.
First, the defendant must make a prima facie showing of racial bias for the peremptory challenge. Second, if the requisite showing has been made, the burden shifts to the Commonwealth to articulate clear and reasonably specific race-neutral reasons for its use of a peremptory challenge. While the reasons need not rise to the level justifying a challenge for cause, self-serving explanations based on intuition or disclaimer of discriminatory motive are insufficient. Finally, the trial court has the duty to evaluate the credibility of the proffered reasons and determine if the defendant has established purposeful discrimination. A judgecannot merely accept the reasons proffered at face value, but must evaluate those reasons as he or she would weigh any disputed fact. In order to permit the questioned challenge, the trial judge must conclude that the proffered reasons are, first, neutral and reasonable, and second, not a pretext. These two requirements are necessary to demonstrate clear and reasonably specific legitimate reasons.
Gamble v. Commonwealth, 68 S.W.3d 367, 371 (Ky. 2002) (internal quotations and citations omitted). "Unless the trial court's findings of fact are clearly erroneous, they must be accepted." Stanford v. Commonwealth, 793 S.W.2d 112, 114 (Ky. 1990).
For the first prong of the Batson test, this Court has found that "once the Commonwealth has offered a race-neutral explanation for the peremptory challenge and the trial court has ruled on the ultimate issue of discrimination, the preliminary issue of whether the defendant has made a prima facie showing is moot." Gamble, 68 S.W.3d at 371 (citing Commonwealth v. Snodgrass, 831 S.W.2d 176 (Ky. 1992)) ). In the instant case, the Commonwealth offered a race-neutral explanation for striking, and the trial court ruled on the issue, thus making the issue of whether Sifuentes made a prima facie showing moot.
With respect to the second prong of the Batson test, the Commonwealth met its burden to articulate a race-neutral reason for its use of the peremptorychallenge. The Commonwealth stated that Mr. Jimenez looked "belligerent" and "hostile" when he looked at the Commonwealth's counsel table.4 Hernandez v. New York, 500 U.S. 352, 360, 111 S. Ct. 1859, 1866, 114 L. Ed. 2d 395 (1991). In this case, the Commonwealth's stated reason for striking Mr. Jimenez was that he seemed hostile when he looked at the counsel table. Mash v. Commonwealth, 376 S.W.3d 548, 555 (Ky. 2012).
The "final step under the test requires the trial court to assess the plausibility of the prosecutor's explanations in light of all relevant evidence and determine whether the proffered reasons are legitimate or simply pretextual for discrimination against the targeted class." Johnson v. Commonwealth, 450 S.W.3d 696, 706 (Ky. 2014), abrogated on other grounds by Roe v. Commonwealth, 493 S.W.3d 814 (Ky. 2015).
Step three of the Batson inquiry involves an evaluation of the prosecutor's credibility and the best evidence of discriminatory intent often will be the demeanor of the attorney who exercises the challenge. In addition,race-neutral reasons for peremptory challenges often invoke a juror's demeanor (e.g., nervousness, inattention), making the trial court's firsthand observations of even greater importance. In this situation, the trial court must evaluate not only whether the prosecutor's demeanor belies a discriminatory intent, but also whether the juror's demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor. We have recognized that these determinations of credibility and demeanor lie peculiarly within a trial judge's province[.]
Snyder v. Louisiana, 552 U.S. 472, 477, 128 S. Ct. 1203, 1207-08, 170 L. Ed. 2d 175 (2008) (internal quotations and citations omitted). Although the reason stated need not rise to the level justifying a challenge for cause, "self-serving explanations based on intuition or disclaimer of discriminatory motive are insufficient." Stanford, 793 S.W.2d at 114 (quoting B...
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