                IMPORTANT NOTICE
         NOT TO BE PUBLISHED OPINION

  THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
  PURSUANT TO THE RULES OF CIVIL PROCEDURE
  PRO.MULGATED 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  THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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  UNPUBLISHED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 CONS.IDERATION
  -BY THE COURT .SHALL BE SET OUT AS AN UNPUBLISHED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 ALO.NG WITH THE
   DOCUMENT TO THE COURT AND ALL PARTIES TO THE .
  ACTION.
                                                        RENDERED: SEPTEMBER 28, 2017
                                                                NOT TO BE PUBLISHEO




                                        2016-sc..:ooo 119·-MR


MICHAEL TAYLOR                                                                 APPELLANT


                        ON APPEAL FROM ADAIR CIRCUIT COURT
v.                     HONORABLE JUDY DENISE VANCE, JUDGE
                         NO. 14-CR-00051 AND NO. 14-CR-00052


COMMONWEALTH OF KENTUCKY                                                        APPELLEE


                        MEMORANDUM OPINION OF THE COURT

                                              AFFIRMING

         A circuit court jury convicted Michael Taylor of two counts of first-degree
Trafficking in a 1 Controlled Substance and of being a fi:rst-degree Persistent

·Felony Offender, recommending the mrud.mum 5-years' imprisonment on each··

trafficking conviction            enh~nced   by PFO I status to 20 years' imprisonment on
                              .                  .
each count to be served conse·cutively. The trial court sentenced Taylor to 20

years' imprisonment on each count to be served concurrently and rendered a

judgment accordingly. Taylor appeals from that judgment as
                                                        . a matter
                                                             -
                                                                   of right,.

raising six issues.I.




1   Ky. Const. § 110(2)(b).
                                       I. ANALYSIS.
      A. Stan.dard of Review.
          For preserved issues, determining the proper standard of review requires

a determination of the alleged trial court error .. "We review a circuit court's

decision to dismiss [or to deny dismissal ofj an indictment for an abuse of

discretion: "2 Evidentiary rulings are cllso reviewed for abuse of discretion. 3 "The

test for abuse of discr~tion is whether the trial judge's decision was arbitrary,

unreasonable, unfair, or unsupported by sound leg~l principles. "4 When

reviewing a challenge regarding the racial composition of a jury panel, this

Court applies the Supreme Court's test in DUren v. Missouris, as stated by this

Court in Mash v. Commonwealthf'.

          For unpreserved issues, thi.s Court will only overturn the trial court's

ruling if "palpable error" exists in that ruling. 7 Palpable error requires a

showing that the alleged error affected the "substantial rights" of a defendant,

where relief may be granted "upon a determination that manifest injustice has

resulted from the error."B To find that "manifest injustice has resulted from the

error," this Court must conclude that the error so seriously affected the '



2Commonwealth v. Grider, 390 S.W.3d 803, 817 (Ky. App. 2012) (citing
Commonwealth v. Baker, 11S.W.3d585, 590 (Ky. App. 2000)).
  3 McDaniel v. Commonwealth, 4iS S.W.3d 643, 655 (Ky. 2013); Partin v ..
. Commonwealth, 918 S.W.2d 219, 222 {Ky. 1996).
4   Goodyear Tire & RUbber Co. v. Thompson, 11 S.W.3d 575, 5al (Ky. 2000) ..
s 439 U.S. 357, 364 (1979).
6   376 S.W.3d 548, 552 (Ky. 2012).
1   Kentucky Rule of Criminal Procedure (RCr)l0.26.
B   Id.
                                            2
 fairness, integrity, or public reputation of the proceeding as .to be "shocking or

jurisprucientially in tolerable. "9

      B. Alleged Dis.covery Violations.
         Taylor argues that the trial court erred when it denied Taylor's multiple

 motions to dismiss the indictment. We review a trial court's rulings onmotions

 to dismiss an indictment for abuse of discretion.10 Taylor made these motions

 becau~e    of the Commonwealth's alleged failure to produce discovery· timely.

According     ~o   the record, this issue centers on the production of a police report
               ~




 relating to a charge brought by the Commonwealth against the confidential

 informant used by the Commonwealth in two           con~rolled    buys that form the
   .                 .




 basis for the charges against Taylor in the case at ha:nd.

          Part of Taylor's defense included. impeaching the credibilify of this

 confidential informant. Taylor began making discovery motions for the

 production of exculpatory information on January 5, 2015. On November 17,.

 2015, Taylor argued that by checking the court records, he became aware of a

_criminal charge brought against
                          .
                                 the confidential informant on September 3,
                                                               .




 2015, the existence of which the Commonwealth had failed to inform Taylor.

Additionally, Taylor averred that the      g~and ju11'.   disJ;Ilissed the criminal charge

.against the informant, and Taylor argued that the dismissal could have

 occurred because of the Commonwealth's favorable treatment of the

 confidential informant to reward her service to the Commonwealth. Taylor



 9   Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006).
·10  Grider, 39<? ~.W.3d at 817.

                                             3
                    .           .                .                        .
 requested the Commonwealth produce information· regarding this charge

 against the informant and how it came to be dismissed.

       On December 30, 2015, Taylor filed a prose motion to dismiss the

 indictment because of the Commonwealth's failure to produce the requested

 informa~ion concerning the informant. He argu.ed that he had not received the

·requested information with trial beginning on January 5, 2016. On December

_31, 2015, the Commonwealth
                    .
                            produced. over 192 pages of documents of

 potentially exculpatory material to Taylor, the Commonwealth reporting that it

 received those.documents on December 23, 2015. Taylor's counsel, who was

 out-of-town for the New Year's holiday, did not actually receive the 192-page

 production until January 4, 2016, one day beforethe trial was set to begin.

       On January 5, 2016, the day trial began, Taylor renewed his motion to

.dismiss the indictment for discovery violations. In considering options in light·

.of the motion, the trial court identified two potential remedies other than

. d~smis.sal-to postpone the trial or to exclude part of the Commonwealth's

 evidence. Tayfor maintained that
                             .
                                  dismissal of the indictment was the only
                                                                        .
             -                            .
 acceptable remedy because a continuance to give Taylor an opportunity to

 review the 192 pages of documents would violate his right to a speedy trial, and

· he did not want any material evidence excluded. Because Taylor rejected all

 potential remedies short of outright dismissal as suggested by the. trial court

 and because the trial court found that any prejudice suffered because of the

 Commonwealth's delayed production did ·not warrant dismissal, the trial court



                                         4
denied Taylor's motion to. dismiss for discovery violations, and. Taylor's cas<?

proceeded to trial. Accordingly, this issue is preserved: for ·appellate review.

         As a   pr~liminary   matter, no Brady1 1 violation occurred in this case. The

Commonwealth did not fail to tum over potentially exculpatory evidence;

rather, Taylor argues that the ,commonwealth did not timely turn over this

potential evidence.

         Ta:ylor persistently argues that the Commonwealth's dilatory production

violates    ~Cr   7.24, the rule governing "Discovery and Inspection." No subsection

of this rule explicitly states that the prosecution must "timely" produce

exculpatory material, but RCr 7.24(4) suggests an obligation of the prosecution

to do so.12 Additionally, Roberts v. Commonwealth imposes a timeliIJ,ess

obligation ..1 3 So the Commonwealth does have an obligation to timely turn over

potentially exculpatory material. But RCr 7.24 clearly grants discretion to the.

trial court to fashion appropriate relief for dilatory respon~es, as~uming the

defense makes a sufficient showing of a .failure to turn over potentially

exc-µlpatory evidence and if relief is warranted.14

         To warrant a dismissal of an indictment, "Generally, a defendant must

de~onstrate a flagrant abuse of the grand jury process that resulted in both



11   Brady v. Maryland, 373 U.S ..83 (1963) (hqlding denial of due process for·
prosecutor's withholding of evidence).
12RCr 7.24(4) ("It is not a defense against untimely disclosure of evidence .... ")
(emphasis ~dded).
13 896 S.W.2d 4, 6-7 (Ky. 19.95) ("[I]t is imperative· that the Commonwealth provide full
and timely discovery pursuant to RCr 7.24 .... ").
14   RCr 7.24(4)-(9), (11).

                                              5
  actual prejudice and deprived the grand jury of autonomous and unbiased

  judgment."15 "There are certain        circumsta~ces   where trial judges are permitted

  to dismiss criminal indictments .... These include .... prosecutorial misconduct

  that prejudices the defendant .... "16

            Even assuming Taylor made a sufficient showing to warrant some sort of

  relief for late production of exculpatory materials, we conclude that.the trial

  court's ruling here did not amount to an abuse of di.scretion. Recall that Taylor

  ·refused .to entertain any other form of relief besides a dismissal· of his.

  indictment; The trial court discussed the possibility of excluding certain

  material evidence or granting a continuance l.n lieu of the extreme remedy of a

  dismissal of the indictment. The trial' court reasonably determined that any

 .prejudice Taylor potentially suffered did not warrant a dismissal-Taylor still

  had the opportunity to cross examine, and did cross examine at trial, the

  confidential informant
                .
                         about her criminal history. So we find no error in the
                                            ~




  trial court's reasonable denial of Taylor's motion to dismiss the indictment for

  discovery     violation~   and thus affirm the trial court's ruling on this issue.

         C. Alleged Improper Character Evidence.
            Taylor argues 'that the trial court abused its discretion by overruling his

  objection to the alleged improper bolstering ·of the confidential inform.ant's

  credibility before ·an attack on that credibilicy occurred at trial ·and that this




. · 15Commonwealth v. Hill, 228 s:W.3d 15, 17 (Ky. App. 2007) (citing Bank v. Nova Scotia
   v. United States, 487 U.S. 250, 257-60 (1988)).                 ·
   16    Commonwealth-v. Bishop, 245 S.W.3d 733, 735 (Ky. 2008).

                                                 6
                                                                               ·'
 abuse of discretion amounted to reversible error.1 7 During the Commonwealth's

 direct examination of one of the detectives involved in the controlled .buys, the

 Commonwealth asked why the detective did not search the motel room where

 the buys were going to occur bef~re Taylor arrived at the scene. As ·part of his

 answer, the detective stated that he, "felt like [the confidential informant] was

 trustworthy and credible an~ that [thisinformant] had made many buys in the

 past." Taylor objected to this testimony, and the trial court overruled the

 objection. But Taylor did not move to strike the testimony. Though

 questionably preserved, we will treat this issue as preserved for purposes of our

 review.

           On cross-examination of the detective, Taylor· attacked the honesty of the

 confidential informant and suggested improper motives for the confidential

.. informa:pt's actions. During the Commonwealth's re-direct of the detective, the

 Commonwealth asked whether the detective fo_und the confidential informant

 credible, reliable, and trustworthy,_ to which the detective answered in. the

 affirmative. This line of questioning does not appear to have drawn an objection

 from Taylor.

           Both parties agree that, as a· matter of law, the prosecution· can.not

 bolster a witness's credibility before that credibility is attacked. 18 Both parties

 also agree that it is improper for one witness to testify that another witness is·



   There is question as to the preservation ofthis issue. But regardless of the standard
 _11
 of review we use, the conclusion is the same--:-:-no reyersible error is present.
· 18   Kentucky Rule of Evidence (KRE) 608.

                                              7
 telling the truth; in other words, it is improper for one witness to vouch for the

 credibility of another witness. 19 Taylor argues that the trial court's denial of

 Taylor's objection to the detective's statements during direct examination

 regarding the confidential informant's trustworthiness and credibility

 amounted to    an abuse of discretion and reversible error.
        Even where testimony is introduced in error, "... this Court may still

 determine that the error is harmless pursuant to RCr 9.24 and the standards

 set forth in· Winstead v. Commonwealth2D."21 "A non-constitutional
                                                          \      .
                                                                    evidentiary

 error .. .is harmless if the reviewing court can say with fair assurance that the

 judgment was not substantially swayed by the error."22 Errors have also been

 found to be harmless in light of other strong evidence, as there is no possibility ·

· the error substantially swayed the jury.23 "When rehabilitation evidence is

. admitted befdre. credibility is attacked, any error is   harmle~s as long as
 credibility is, in fact, later impeached."24 Regarding this exact type of error, the

 court in Fairrow v. Commonwealth?- 5 stated, "Nor are we satisfied that the

 admission· of improper evidence of the character of a mere witness affected ·




 i9 Stringer v. Commonwealth, 956 S.W.2d 883, 888 (Ky.1997); Newkirk v.
 Commonwealth, 937 S.W.2d 690; 696 (Ky. 1996); Hall v. Commonwealth, 862 S.W.2d
 321 (Ky. 1993).                                                 .
                                 ,- .
 20 283 S.W.3d 678 (Ky. 2009).
 21 Harris v. Commonwealth, 384 S.W.3d 117, 122 (Ky. 2012).
 22 Id. at 125 (citing Winstead v. Commonwealth, 283 S.W.3d 678, 688-89 (Ky. 2009)).
 23 Wiley v. Commonwealth, 348 S.W.3d 570, 579 (Ky. 2010); Hunt v. Commonwealth,
 304 S.W.3d 15, 35 (Ky. 2009); Winstead, 283 S.W.3d at 689.
 24 Reed v. Commonwealth, 738 S.W.2d 818, 821 (Ky. 1987) .(citing Summitt v.
 Commonwealth, 550 S.W.2d 548, 550 (Ky. 1977)).            ·
 2s 175 S.W.3d 601 (Ky. 2005).

                                            8
     Appellant's substantial rights and constituted manifest injustice so as to

     require reversal as. palpable error. "26
(
                  Th~ cases most anal~gous to the case at.hand are Commonwealth v.

     Wright27 and Fairrow v. Commonwealth28. In Wright, an officer made numerous

     statements .during his testimony.as to the credibility of a confidential

     informant.29 The court found no error in the admission of the officer's

    . testimony.30 In Fairrow, the Commonwealth actually elicited testimony from an·

     officer as to the credibility of a confidential
                                              ,      informant,
                                                         .      directly asking the officer

     to testify on this matter.31 Holding that this did not amount to reversible error,.

     the Court stated, "Nor are we satisfied tqat the admission of improper evidence

     of the character of a mere witness.affected Appellant's (defendant's) substantial

     rights and constituted m~nifest injustice so as to require reversal as palpable

     error."32 Fairrow and. Wright support our conclusion that, while allowing the

     testimony may _have amounted to an error, it did not.amount to reversible error

     because of this case's analogous factual circumstances to Fairrow and Wright.

     Additionally, the defendant did attack the confidential informant's credibility on

     cross-examination, the exact scenario Reed held to be harmless. We affirm the

     trial court in all respects on this issue.


     26    Id. at 606.
     27    467 S.W.3d 238, 247-.48 (Ky. 2015).
     2s    175 S.W.3d 601, 605-07 (Ky. 2005).
     29    Wright, 467 S.W.3d   a~   247-48 ..
     30    Id .
    . 31   Fairrow, 175 S.W.3d at 605.
     32    Id. at 607.

                                                  9
        D. Alleged KRS 532.055 Vioiation.
            Tayfor alleges palpable error occurred when the Commonwealth's witness

· mentioned an amended charge in violation of KRS 532.055(2)(a)(2) and Blane v.

 _Commonwealth33, The circuit clerk testified about Taylor's prior conviction~.

 During hi$ testimony, the clerk testified that one of Taylor's convi<;tions

 included. facilitation to first-degree assault, which was amended from first-

 degree assault."This issue is uri:preserved, sq we review this issue for palpable

 error.

            KRS 532.055(2)(a)(2) states, "Evidence may be offered by the

 Commonwealth relevant .to sentencing including: The nature of prior offenses

 for which he was convicted." 34 "KRS 532;055(2)(a) permits the introduction of
        .                        .
 prior convictions of the defendant, not prior charges subsequently

 dismissed. "35 "For purposes of the penalty phase, criminal charges that have
                                                         I                 .

 subsequently been amended are the functional equivalent of dismissed

 charges, which we have established to be impermissible as. evidence iri a ·

 sentencing hearing. "36

            While the clerk's testimony regarding amended offenses was improper, it

 did not rise to the level of palpable error. A simple inadvertent mention of an




 33    364 S.W.3d 140, 152-53 (Ky. 2012).
 34    KRS 532.055(2)(a)(2).
                                      .      .
· 35   Robinson v. Commonwealth, 926 S.W.2d 853, 854 (Ky. 1996).
 36 Blane v. Commonwealth, 364 S.W.3d 140, 152-53 (Ky. 2012) (citing Chavies v.
 Commonwealth, 354 S.W.3d 103, 115 (Ky. 20i 1)-(abrogated on other grounds by Roe
 v. Commonwealth, 493 S.W.3d 814 (Ky. 2015)).

                                            10
indictment with amended charges does not amount to palpable error.37 If "the

amended offenses were never pointed out to the jury by the trial judge, the

Commonwealth, or the Commonwealth's             witne~s ... we   cannot find that the

erroneous introduction of prior amended~ .. cJ:iarges seriously affected the

fairness of the proceeding. "38 This Court found palpable error in Blane when

"the Commonwealth not only elicited the testimony from the deputy circuit

cl~rk regarding the ·original charges, but it also emphasized t~e prior amended

charges in its closing argument to the jury."39 In a situation where a defendant

receives a "jury's recommendation of the maximum sentence on each of the

underlying      ch~ges ... prejudi~e. can be presu~ed," but "the facts pr~se~ted in
[tl:ie] case" must still be taken into account.40

         While the error here was not as 1.nnocent as the error in Chavies, and

even though prejudice can: be presumed in this case, the error in this case does

not approach the standard of palpable error set forth in Blane. Here, the clerk

simply mistakenly testified about Taylor's amended charge. Although prejudice

can be presumed, the Commonwealth did not elicit that testimony, nor did it

. emphasize Taylor's amended charge to the jury at any point, as the

Commonwealth .did in Blane. So even though we are to presume prejudice,

because the factual circumstanc~s of this case significantly differ.from Blane,.




37   Chavies, 354 S:W.3d at.115-16.
,38Jd.
39   Blane; 364 S.W.3d. at 153.
40   Id. at 152-53·.

                                           11
looking at the totality of the circumstances, no palpable error occurred, and we

. affirm the trial court on this issue. ·

    E. Alleged Improper Cross Examination Questioning.
       Taylor alleges palpable error when the Commonwealth inquired as to the

identification of the offense for which Taylor was on parole. Taylor called his

parole officer in as a witness. T'.3-ylor inquired as to the nature and extent of the

parole officer's supervision over Taylor, in ·addition to eliciting favorable

character testimony. Before cross examination, the Qommonwealth requested a

bench conference. The Commonwealth told the trial court that it believed

Taylor ·Opened the door for inquiry to questioning about the specific crime of

.which Taylor was convicted that resulted in his being on parole. Taylor objected .

only to any inquiry "regarding how much time Taylor had on the shelf," not to

an inquiry into Taylor's   ~pecific   charges. The Commonwealth then asked Taylor

if it could inquire as to what Taylor was on parole
                                                 .
                                                    for, and it appears from the  ~




record that Taylor nodded in agreement. Therefore, the trial court allowed the

Commonwealth to ask the parole officer: for what ·offenses the defendant was on

parole. This issue is thus unpresenied.

       This Court deems this·issue to have been waived by Taylor. This Court in

 West v. Commonwealth acknowledged the waiver rule stated in Salisbury v.

 Commonwealth:

       When a defendant's attorney is aware of an issue and elects to
       raise no objection, the attorney's failure to object may constitute a
       waiver of an error having constitutional implications. The
       defendant's counsel cannof deliberately forego making an objection



                                            12
         to a curable trial defect when he is aware of the basis for an
         objection."41·

After "[o]bserving that the record failed to reveal the reason for counsel's failure

to object, whether tactical, deliberate, or inadvertent ... the Court held that

palpable error had not been ·demonstrated. "42

         In this case, waiver of this issue is clear. Taylor did not make any

objection to the Commonwealth's· inquiry into the ·nature of the offense for

which Taylor was on parole; in fact, the record suggests that Taylor agreed that

this question could be asked.     ~ven   if Taylor did not actually agree that this

que~tion     could be asked, both parties conferred with the trial court during a ·

bench conference to discuss the. potential issue, giving Taylor ample knowledge

of the potential. issue and time to make an      object~on.   We conclude this issue

was waived and that no palpable errqr exists; thus we affirm the trial court.

      F. Alleged Improper Sentencing.
         Taylor alleges the trial court abused its discretion when it denied Taylor's

motions attacking the use of his 2007 conviction to obtain the first-degree

felony offender status'. Taylor argues here a violation of KRS 532.080(.10).

         KRS 532.080(10)(a) prohibits the application of the persistent felony

offender statute "to a person convicted of a criminal offense if the penalty for

that offerise was increased from a misdemeanor to a felony, or from a lower

felony classification to a higher felony classification because the conviction


41West v. Commonwealth, 780 S.W.2d 600, 602 (Ky. 1989) (quoting Salisbury v.
Commonwealth, 556 S.W.2d 922, 927 (Ky. App. 1977)).
42   jd. at 602-03. ·

                                            13
constituted a second or subsequent violation of that offense." KRS

532.080(10)(b)(2) states that (IO)(a) "shall not prohibit the application of this

section to a person convicted of... [a]ny other felony offense if the penalty was

not enhanced to a higher level because the Commonwealth elected to prosecute

the person as a first-time violator of that offense."

      Although the Commonwealth indicted· Taylor for a second-offense

trafficking in a controlled substance, first-degree, which would have violated

KRS 532.080(10)(a), the Commonwealth amended this indidment before trial·

and elected to try Taylor as a first-time violator of the offense, invoking KRS ·

532.080(10)(b)(2)'s statutory protection. The jury ultimately found Taylor guilty

under instructions for a first-time offense. Accorqingly, no violation of KRS

532.080(10)(a) occurred ...

      Taylor's claim· that the Commonwealth did not meet its burden of proof

has no merit. The record shows ample testimony supporting the jury's ve~dict

of conviction. So we ·affirm the ruling of the. trfal court on this issue.

   G. Fair Cross-Section Claim.
      Taylor essentially challenges the rac.~al composition of the jury that tried

him, alleging that the African American population was underrepresented. Over

the course of the proceedings, he requested a fair ·cross-section of the

community in several motions, all of which the trial court denied. Taylor, who

is African American, claimed that out of 75 persons who reported in the-venire,

only one was African American and one was Mexican American. in denying

Tayior's motions, the trial court responded that the venire 'was drawn rando.mly


                                          14
 and that she could not control who was in the venire. We will treat this issue

 as preserved for our review .

         . This Court reviews fair cross-section claims according to the defendant's

 burden to show the following:

          To succeed qn 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 µiis group in ·v~nires 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. 43

Taylor satisfies the    firs~   prong.of this test-there is no question that the group

· alleged to be excluded, African Americans, is a distinctive group in the

 community. According to Taylor, African Americans only comprise 3% of the

 population of Adair County. But this veryJact supports the Commonwealth's

 point that Taylor's.argument fails under the second prong of the Mash test.

        · Taylor himself states, "If 75 persons were in ajufy panel, at least 2.25

jurors should be African American." The, record shows the impaneling of one

Africa.n American. Statistically, Taylor is correct; But a venire consisting of one

 less Africaz:i American than statistically indicated is not unfair, nor

 unreasonable.·

          Taylor argues· the impossibiiity of proving the third prong because the

 Comm:onwealth of Kentucky does not collect the information Taylor would need

 to meet his burden of·proving the third prong. But Taylor has not shown


 43   Mash, 376 S.W.3d at 552 (citing Duren, 439 U.S. at 364).

                                              15
' exhaustion in seeking out other ways of proving the third prong. And because

 Taylor fails the second prong, we do not reach the third one.

       Because Taylor fails the second prong of the Mash test, we affirm the

 trial court's denial of Taylor's challenge to the racial composition of the jury.
                                   -             .      I                     .




                                       II. CONCLUSION

       Finding no merit to any of the issues raised on this appe8.l, we affirm the

 judgment.

      · All sitting. All concur.



 COUNSEL FOR APPELLANT:

 Kathleen Kallaher Schmidt
 Assistant Public Advocate


 COUNSEL FOR APPELLEE:

 Andy Beshear
 Attorney General of Kentucky

 Gregory C. Fuchs
 Assistant Attorney General




                                            16
