Taylor v. Com., 1998-SC-0355-MR.

Decision Date25 October 2001
Docket NumberNo. 1998-SC-0355-MR.,1998-SC-0355-MR.
Citation63 S.W.3d 151
PartiesVictor Dewayne TAYLOR, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellant.
CourtUnited States State Supreme Court — District of Kentucky

Thomas M. Ransdell, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Margaret F. Case, Department of Public Advocacy, Stanford, Counsel for Appellant.

A.B. Chandler III, Attorney General of Kentucky, Janet M. Graham, Michael G. Wilson, Assistant Attorneys General, Criminal Appellate Division, Office of the Attorney General, Frankfort, Counsel for Appellee.

JOHNSTONE, Justice.

Appellant, Victor Dewayne Taylor, was convicted of two counts of first-degree murder, two counts of first-degree kidnapping, two counts of first-degree sodomy, and one count of first-degree robbery in connection with the murder of two teenage boys. He was sentenced to death on each of the murder and kidnapping charges and twenty years' imprisonment on each of the other charges, with the sentences to be run consecutively. His conviction was affirmed on direct appeal. Taylor v. Commonwealth, Ky., 821 S.W.2d 72 (1990), cert. denied, 502 U.S. 1100, 112 S.Ct. 1185 117 L.Ed.2d 428 and cert. denied, 502 U.S. 1121, 112 S.Ct. 1243, 117 L.Ed.2d 475 (1992). However, we vacated the two death sentences on the kidnapping charges on grounds that those sentences violated the U.S. and Kentucky constitutional provisions against double jeopardy. Id. at 77. Subsequently, Taylor filed a RCr 11.42 motion to set aside the remaining judgments against him. After an evidentiary hearing, the trial court entered an order denying the motion. Taylor appeals that ruling to this Court as a matter of right. For the reasons set forth below, we affirm the trial court.

EXCLUSION OF AFRICAN-AMERICAN JURORS

At the evidentiary hearing, Taylor placed into evidence testimony and material concerning his claim that the office of the Jefferson County Commonwealth's Attorney had a pattern and practice of systematically striking African-Americans from the jury venire. Taylor argued that this conduct violated his right to equal protection under the Fourteenth Amendment as held in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). However, Swain was overruled by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Further, Batson applied retroactively to Taylor's case because his case was still pending review in this Court when Batson was decided and, consequently, was "not yet final" within the meaning of Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649, 661 (1987). Therefore, Batson, not Swain, applies to Taylor's case.

Swain holds that a "State's purposeful or deliberate denial" to African-Americans of the opportunity to serve as jurors solely because of race violates the right to equal protection under the Fourteenth Amendment. Swain, 380 U.S. at 203-04, 85 S.Ct. at 826-27, 13 L.Ed.2d at 763. To show a prima facie case under Swain, a criminal appellant has to show "through direct or indirect evidence, such as testimony or statistical proof, that the prosecutor had a systematic and intentional practice of excluding blacks from petit juries in criminal trials through the exercise of peremptory challenges, and that this practice continued unabated in [the appellant's] trial." Love v. Jones, 923 F.2d 816, 818 (1991). Batson overruled that portion of Swain that sets forth the necessary evidentiary showing needed to establish a prima facie case of racial discrimination.

The Batson Court held that a defendant "may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial." Batson, 476 U.S. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87. To establish a prima facie case under Batson, a defendant has to show that he is a "member of a cognizable racial group," that the prosecutor exercised "peremptory challenges to remove from the venire members of the defendant's race,"1 and that those "facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race." Id., 106 S.Ct. at 1723, 90 L.Ed.2d at 87-88 (emphasis added). Upon making out a prima facie case, the burden shifts to the prosecutor to come forward with a race neutral explanation for the challenged peremptory strikes. Id. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88.

The Batson Court noted that lower courts had interpreted Swain as placing a "crippling burden of proof" which had effectively rendered a prosecutor's peremptory challenges immune from constitutional scrutiny. Id. at 92-93, 106 S.Ct. at 1720-21, 90 L.Ed.2d at 84-85. Thus, Batson overruled Swain in order to remove this disability on a defendant's constitutional challenge to a prosecutor's peremptory challenges. Nonetheless, Taylor claims error under Swain and its "crippling burden of proof' rather than Batson because he alleged a Batson violation on direct appeal. The issue was decided against Taylor on direct appeal and, therefore, cannot be raised in his RCr 11.42 motion. See Thacker v. Commonwealth, Ky., 476 S.W.2d 838, 839 (1972), which holds, "It is not the purpose of RCI. 11.42 to permit a convicted defendant to retry issues which could and should have been raised in the original proceeding, nor those that were raised in the trial court and upon an appeal considered by this court." The Swain claim is an attempt to get, around this long-established rule. Even if we were to hold that Swain and not Batson was controlling, Taylor's claim would still fail for the same reason his Batson claim failed on direct appeal.

The evidence presented by Taylor at the evidentiary hearing focused on the first part of his burden under Swain, i.e., whether the prosecutor's office had a systematic and intentional practice of excluding blacks from juries in criminal trials. But he presented no evidence that this practice "continued unabated" at his trial. In addition to a prosecutor's exclusion of minority members from the venire via peremptory strikes, Batson also requires — to establish a prima facie case — a showing of "other relevant circumstances" that create an inference that the prosecutor struck the jurors on the basis of their race. Commonwealth v. Hardy, Ky., 775 S.W.2d 919, 920 (1989). In the case at bar, there was no showing of other relevant circumstances at the time defense counsel objected to the seating of the jury and no such argument on this point was made on direct appeal. Moreover, the trial court specifically noted that there was no evidence that African-Americans were systematically excluded from the venire. Notice of Death Sentence Review at 9, Commonwealth v. Taylor, 84-CR-1549 (Jefferson Circuit Court entered June 3, 1986). Therefore, since a prima facie case was not made under Batson, it certainly was not made under the much more restrictive holding of Swain.

ALLEGED BRADY VIOLATIONS

Taylor alleges that the prosecution failed to disclose exculpatory information to the defense in violation of its duty to do so under Beady v. Maryland, 373 U.S. 83, S.Ct. 1194, 10 L.Ed.2d 215 (1963). We address separately each alleged violation below because of the discrete and independent nature of each claim. We are aware that the materiality of evidence withheld by the prosecution is to be considered cumulatively and not item-by-item, Kyles v. Whitley, 514 U.S. 419, 436, 115 S.Ct. 1555, 1567, 131 L.Ed.2d 490, 507 (1995), and apply that standard below.

1. FAILURE TO DISCLOSE REWARD OFFER

Taylor argues that the Commonwealth failed to disclose that two of the witnesses against him, Cecil Pepper and Dino Pace, had been offered a reward of $12,100 if' a conviction was obtained against Taylor. The Commonwealth argues that the defense was aware of this reward offer and, thus, there was no failure to disclose the information. We agree with the Commonwealth.

A general reward of $12,000 for "information leading to the arrest and conviction of the boys' killer" was offered by Harvey Sloane, who was the Mayor of Louisville at the time. The "boys" referred to were the two teenage boys Taylor was ultimately convicted of kidnapping and murdering. Information regarding the reward was publicized in the media and was public knowledge. In fact, defense counsel noted the reward in an attachment to Taylor's motion for a change of venue. Thus, this information was not withheld from the defense and was available to the defense for impeachment purposes at trial.

There was no Brady violation with respect to the offer of a $12,000 reward.

2. FAILURE TO DISCLOSE THAT A WITNESS HAD BEEN RED-LINED

Next, Taylor argues that the Commonwealth failed to reveal that Cecil Pepper, who identified Taylor at trial, had been red-lined, a local procedure formerly employed by Jefferson District Court Judges to restrict the number of warrants one person may swear out against another. Its purpose was to curb abuse of the warrant procedure. While only a district judge could red-line an individual, Taylor points out that the Jefferson County Attorney's Office had access to records concerning red-lining. Taylor argues that this was valuable impeachment evidence that could have seriously undermined the credibility of Pepper's testimony. Among other arguments, the Commonwealth states that there was no proof that the prosecution knew that Pepper had been red-lined. Again, we agree with the Commonwealth.

There is nothing in the record to indicate that the Commonwealth was aware that Pepper had been red-lined. Nor can that knowledge be imputed upon the Commonwealth. The Brady rule "encompasses evidence known only to police investigators and not to the prosecutor. In order to comply with Brady, therefore,...

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