             IMPORTANT NOTICE
        NOT TO BE PUBLISHED OPINION

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                                                    RENDERED: APRIL 2, 2015
                                                      NOT TO BE PUBLISHED

              Suprrtur (Couti                    (71,firufurkv
                              2014-SC-000069-MR


MARKELLE D. WHITE                                                    APPELLANT


               ON APPEAL FROM JEFFERSON CIRCUIT COURT
V.              HONORABLE AUDRA JEAN ECKERLE, JUDGE
                           NO. 10-CR-002815


COMMONWEALTH OF KENTUCKY                                               APPELLEE



                  MEMORANDUM OPINION OF THE COURT

                                  AFFIRMING

      Markelle White appeals as a matter of right from a Judgment of the

Jefferson Circuit Court convicting him of murder. Ky. Const. § 110(2)(b).

White raises two issues on appeal. First, he argues that the trial court erred to

his substantial prejudice when it allowed the Commonwealth to exercise

peremptory strikes against jurors. Second, White argues that the introduction

of a witness's interview with police officers was erroneous. We now find no

error and affirm the Judgment of the Jefferson Circuit Court.

                               RELEVANT FACTS

      Appellant Markelle White was convicted by a Jefferson County jury of

intentional murder for the shooting death of Lamont Wilson. At trial, the

Commonwealth argued that White and co-defendant Lakendrick Charlton shot

Wilson five times as he stood in the front yard of his home shortly after

midnight on September 8, 2010. Various neighbors and other witnesses
testified to observing a verbal altercation between White, Charlton, and Wilson.

Another neighbor testified to witnessing three men fire shots at Wilson after he

advised a large group of people assembled outside of his house to turn their

music down. A surveillance video at a nearby liquor store captured images of

White moving towards the scene, followed by visible gunfire. The

Commonwealth played a video of a police interview with a witness, Chris

Mayfield, who told the detectives that White confessed to shooting Wilson. The

jury deliberated and recommended a life sentence, which was then imposed by

the trial court. This appeal followed.

                                    ANALYSIS

I. The Commonwealth is Entitled to Peremptory Strikes.

      Before voir dire, the trial court allocated thirteen peremptory strikes to

the defense and nine peremptory strikes to the Commonwealth pursuant to

Kentucky Rule of Criminal Procedure (RCr) 9.40. The challenges were

exercised without objection. White now maintains that the trial court

improperly allocated peremptory strikes to the Commonwealth, asserting that

the statute establishing a prosecutorial right to peremptory strikes, Kentucky

Revised Statute (KRS) 29A.290, represents an unconstitutional delegation of

legislative power.

      Under KRS 29A.290(2)(b), the legislature has provided that "parties shall

have the right to challenge jurors," and "[t]he number of peremptory challenges

shall be prescribed by the Supreme Court." The Court has promulgated RCr

9.40, our criminal rule prescribing the allocation of peremptory strikes in a


                                         2
criminal prosecution. Under that rule, "the Commonwealth is entitled to eight

(8) peremptory challenges and the defendant or defendants jointly to eight (8)

peremptory challenges" in felony prosecutions, with the numbers increased to

nine and thirteen respectively in cases such as this where an extra juror was

seated and two defendants are being tried jointly. RCr 9.40. White maintains

that no right to prosecutorial challenges existed at common law, and, therefore,

the legislature cannot delegate its lawmaking authority to the Supreme Court

under KRS 29A.290(2)(b).

      The Commonwealth urges this Court not to consider the merits of

White's claim because he failed to provide notice of the constitutional challenge

to KRS 29A.290(2)(b) to the Attorney General as required by KRS 418.075. 1 We

have held that the mandatory notification requirement of KRS 418.075 cannot

be satisfied by filing an appellate brief.   Benet v. Commonwealth, 253 S.W.3d

528, 532 (Ky. 2008). As White has failed to comply with KRS 418.075, we

must decline to address the merits of White's argument.

       Against this result, White urges this Court to revise our policy of strict

adherence to KRS 418.075 and assess his claim on the merits. While we find

this argument unpersuasive, 2 we note that this Court has recently addressed


        1 KRS 418.075(1) provides: "In any proceeding which involves the validity of a

statute, the Attorney General of the state shall, before judgment is entered, be served
with a copy of the petition, and shall be entitled to be heard, and if the ordinance or
franchise is alleged to be unconstitutional, the Attorney General of the state shall also
be served with a copy of the petition and be entitled to be heard."
       2Citing Commonwealth v. Johnson, 423 S.W.3d 718 (Ky. 2014), White contends
that because the Attorney General cannot intervene in "ordinary criminal
prosecutions" without statutory permission to do so, the notice requirement of KRS
418.075 cannot serve as a procedural bar to a constitutional challenge of a statute. In
                                             3
the propriety of prosecutorial peremptory strikes. In Glenn v. Commonwealth,

we declared that "although KRS 29A.290(2)(b) constitutes an encroachment by

the General Assembly upon the prerogatives of the judiciary, it is not

inconsistent with our rules, and is, therefore, upheld as a matter of comity."

436 S.W.3d 186, 188 (2013) (citing Commonwealth v. Reneer, 734 S.W.2d 794,

797 (Ky. 1987) (internal quotations omitted). Citing our authority under

Section 116 of the Kentucky Constitution, we affirmed RCr 9.40 substantively,

and reaffirmed our constitutional power as a Court to promulgate rules of

practice and procedure—including our authority to set the rules for the

allocation of peremptory strikes. "We alone are the final arbiters of our rules of

`practice and procedure."' 436 S.W.3d at 188.

      So although the Glenn decision did not squarely address the

constitutionality of KRS 29A.290(2)(b), this Court deemed the statute

acceptable by way of comity. "Comity, by definition, means the judicial

adoption of a rule unconstitutionally enacted by the legislature not as a matter

of obligation but out of deference and respect."   Taylor v. Commonwealth, 175

S.W.3d 68, 77 (Ky. 2005) (internal citations omitted). In extending comity, we




the alternative, White argues that KRS 418.075 does not apply to criminal
prosecutions at all. The answer to both of White's contentions is a settled one: the
Attorney General is entitled to notice under KRS 418.075 "whenever the
constitutionality of a statute is placed in issue." Maney v. Mary Chiles Hosp., 785
S.W.2d 480, 481 (Ky. 1990) (emphasis added). By its plain language, KRS 418.075
permits the Attorney General to intervene in cases when the constitutionality of a
statute is put in issue. See Brashars v. Commonwealth, 25 S.W.3d 58 (Ky. 2000). Our
recent decision in Commonwealth v. Johnson affirming the Attorney General's
authority to enforce and investigate drug crimes in no way undermines the validity of
KRS 418.075. See 423 S.W.3d at 725.

                                          4
recognized that KRS 29A.290(b)(2) is consistent with our rules of practice and

procedure. Glenn, 436 S.W.3d at 188.

      White's appellate counsel ("counsel") takes great umbrage with what he

characterizes as this Court's refusal to "do anything about KRS 29A.290." Lest

counsel believes that he is shouting against the wind, we acknowledge that he

has repeatedly raised iterations of this precise issue in other recent matter of

right appeals. 3 Undaunted by our clear articulation of the Court's position on

the statute's validity in Glenn, counsel proceeded to raise the same issue in

three post-Glenn appeals (including this one). 4 These post-Glenn appeals follow

a familiar formula: first, there is a failure to comply with the notification

requirement of KRS 418.075 at the trial level; and second, there is an attack on

the constitutionality of KRS 29A.290 before an appellate court. Although Glenn

was rendered after the conclusion of White's trial, 5 counsel cites Glenn here,

and has contemplated its import having participated as appellate counsel in

that case. Moreover, counsel was effectively on notice that the Attorney

      3 In Grider v. Commonwealth, appellant's counsel argued that RCr 9.40 exceeds
this Court's constitutional authority under Section 116, and that KRS 29A.290(2)(b)
violates the separation of powers. 404 S.W.3d 859, 861 (Ky. 2013). The Court
declined to address the issue in Grider because the appellant failed to notify the
Attorney General pursuant to KRS 418.075(1). See id. Months later in Glenn,
appellant's counsel (listed as one of three attorneys who handled appellant Glenn's
appeal) again challenged the validity of RCr 9.40 for essentially the same reasons
argued in Grider. 436 S.W.3d at 188. As with Grider, the Attorney General was never
notified, and the Commonwealth argued that this Court could not address the
constitutional challenge to RCr 9.40 in Glenn. Id. However, the Court concluded that
no notice is required when challenging the constitutionality of a Supreme Court Rule.
Id.
      See also Adkins v. Commonwealth, 2014 WL 2810040, No. 2013-SC-000460-
      4

MR (Ky. 2014) and Prickett v. Commonwealth, 427 S.W.3d 812 (Ky. Ct. App. 2013).
      5 The Glenn opinion was issued on November 21, 2013 and became final on

February 20, 2014.

                                          5
General must be notified before a final judgment is entered in order to preserve

a constitutional challenge, and also that any attack on the validity of KRS

29A.290 would have to address Glenn's extension of comity.

      To see this argument raised once again conjures up images of Justice

Scalia's oft-referenced ghoul who "repeatedly sits up in its grave and shuffles

abroad, after being repeatedly killed and buried[.]" 6 As explained above, Glenn

held that the allocation of peremptory strikes falls within the Court's

procedural rulemaking authority and extended comity to KRS 29A.290(2)(b).

Id. Therefore, to appellant's counsel's spirited charge that this Court has failed

to "do anything" concerning the alleged invalidity of prosecutorial peremptory

strikes, let us be clear: the Court has upheld KRS 29A.290(2)(b) under the

principles of comity. We reaffirm that decision today.

H. Police Interview With Witness Was Properly Admitted.

      On the second day of trial, the Commonwealth called the victim's former

neighbor, Christopher Mayfield, to testify. On direct examination, Mayfield

explained that he suffered a recent brain injury that prevented him from

remembering any details about Wilson's shooting, including whether he was in

the vicinity at the time of the shooting, whether he spoke with police officers

after the shooting, or whether he spoke to White after the shooting. On cross-

examination, Mayfield reiterated that he could not remember anything about

the events of September 8, 2010.



       6 Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (1993)
(J. Scalia, dissenting).

                                           6
      Detective Chris Middleton was then called to testify about a September 9,

2010 interview with Mayfield. Before Detective Middleton took the stand, the

prosecutor asked the trial court how a video of the interview should be played

for the jury. White's counsel objected to the introduction of the video on two

grounds: 1) that Mayfield was incompetent to testify, and; 2) that the statement

was hearsay. White's counsel asserted that effective cross-examination would

be impossible if the video interview was substituted for Mayfield's live

testimony. In response, the Commonwealth maintained that White's

competency objection was untimely given that Mayfield had testified the day

prior. As to the hearsay objection, the Commonwealth •argued that Mayfield's

testimony that he could not remember what he had said to the officers

established the proper foundation for impeachment under McAtee v.

Commonwealth.? The trial court agreed with the Commonwealth that White's

objection to Mayfield's competency was untimely, and further held that the

Commonwealth had laid the proper foundation for impeachment. The video of

Mayfield's interview was then played for the jury.

      White now charges that the video violated our evidentiary rules against

the introduction of hearsay statements, specifically asserting that the

Commonwealth failed to lay the proper foundation for the video's introduction

pursuant to KRS 613. We disagree.

      As a general rule, hearsay statements, that is, out-of-court statements

offered to prove the truth of the matter asserted, are inadmissible. KRE 802.


      7   413 S.W.3d 608 (Ky. 2013).

                                         7
Our rules against the admission of hearsay are designed in part to protect the

accused from the introduction of unreliable statements that have not been

submitted to the rigors of cross-examination by the accused. This guarantee

is, of course, rooted in the Sixth Amendment's Confrontation Clause, which

provides that "[i]n all criminal prosecutions, the accused shall enjoy the right

. . . to be confronted with the witnesses against him."   See Crawford v.

Washington, 541 U.S. 36 (2004). One exception to our prohibition against

hearsay statements concerns the prior inconsistent statements of a witness, as

provided in KRE 801A as follows:

      (a) Prior statements of witnesses. A statement is not excluded
      by the hearsay rule, even though the declarant is available as a
      witness, if the declarant testifies at the trial or hearing and is
      examined concerning the statement, with a foundation laid as
      required by KRE 613, and the statement is:
             (1) Inconsistent with the declarant's testimony;
             (2) Consistent with the declarant's testimony and is
              offered to rebut an express or implied charge against the
             declarant of recent fabrication or improper influence or
             motive; or
             (3) One of identification of a person made after perceiving
              the person.

      In our recent McAtee v. Commonwealth decision, we were asked to

determine whether prior inconsistent statements can be admitted to impeach a

witness who claims to not remember making the statement. 413 S.W.3d at

618. The factual scenario in McAtee is very similar to what we have before us

in the case at bar. In McAtee, the trial court admitted a witness statement

given to police officers—a statement that the witness later testified to having no

memory of making. Id. at 617-18. Relying on the Supreme Court's seminal



                                         8
Crawford v. Washington decision, we reiterated that the Confrontation Clause

does not constrain the use of a prior inconsistent statement when the

"declarant is present at trial to defend or explain it."   Id. (quoting Crawford, 541

U.S. at 59 n.9). Going further, McAtee applied United States v. Owens, 484

U.S. 554 (1988), where the Supreme Court held that a defendant is not denied

the Sixth Amendment right to cross-examine a witness simply because that

witness claims memory loss. 8 Reading Crawford alongside Owens, we

concluded that "the Confrontation Clause is not implicated by a witness

claiming memory loss if he or she takes the stand at trial and is subject cross-

examination." McAtee at 619. Because the forgetful witness in McAtee was

subjected to cross-examination about the prior statements, we found no error.

Id.

      As a threshold matter, we agree that defense counsel's objection at trial

was sufficient to preserve the issue for appellate review. Defense counsel's

hearsay objection concerned White's right to cross-examine Mayfield, referring

to White's right to confrontation. The Commonwealth cited McAtee as

controlling. Under McAtee, as explained supra, a prior inconsistent statement

used to impeach a witness who claims to suffer from memory loss does not

implicate a defendant's right to confrontation. 413 S.W.3d at 618. In order to

introduce a prior inconsistent statement, the proponent of the statement must


      8  "If the ability to inquire into these matters suffices to establish the
constitutionally requisite opportunity for cross-examination when a witness testifies as
to his current belief, the basis for which he cannot recall, we see no reason why it
should not suffice when the [witness's] past belief is introduced and he is unable to
recollect the reason for that past belief." Owens, 484 U.S. at 559.
lay the proper foundation pursuant to our rules of evidence. KRE 613. The

issue of an improper foundation here (that is, where a declarant has claimed

memory loss) is so closely intertwined with the confrontation/hearsay objection

that we are satisfied that the trial court properly considered the question before

making its ruling so as to preserve the issue for our review.

      As for the introduction of the statement to police, we find no error. In his

taped interview, Mayfield stated that White confessed to shooting Wilson,

claiming that Wilson tried to punch him, prompting White to shoot him. As

noted previously, Mayfield testified at trial that he had no knowledge of the

shooting, nor did he recall giving a statement to detectives. 9 That testimony

was subjected to examination. Therefore, Mayfield's statements constituted

prior inconsistent statements because they were "[i]nconsistent with the [his]

testimony," and he was "examined concerning the statement[.]" KRE 801A(a).

Under the principle espoused in McAtee, the Commonwealth was entitled to

introduce any prior inconsistent statements made by Mayfield, so long as it

first established the proper foundation under KRE 613.
                             ,




      A party seeking to admit a prior inconsistent statement must first

"[inquire of the declarant] concerning [the statement], with the circumstances

of time, place, and persons present, as correctly as the examining party can

       9 White argues that no KRE 804 exception applies here. Exceptions to our
prohibition against out-of-court statements include some instances where a witness is
unavailable to testify, such as when a witness "[t]estifies to a lack of memory of the
subject matter of the declarants statement." KRE 804(3). Mayfield undoubtedly
qualifies as an unavailable declarant. However, the application of the KRE 804(b)
(hearsay exceptions when the declarant is unavailable) is immaterial, as our prior
inconsistent statement rule applies whether or not the declarant is available. KRE
801A(a)(1).

                                          10
present them[.]" KRE 613. White now insists that the Commonwealth failed to

meet its burden under KRS 613, arguing that the Commonwealth was required

to lay a foundation for each utterance made during Mayfield's police interview.

To the contrary, we agree that under McAtee, the Commonwealth established a

proper foundation for the introduction of the police interview. The

Commonwealth asked Mayfield if he remembered giving a statement to

Detective Middleton; Mayfield testified that he did not. When asked about

specific statements, Mayfield replied that he could not recall making any

statements. Mayfield's testimony was unequivocal that he would be unable to

answer any questions concerning Wilson's shooting or his interview with

Detective Middleton.

      It was abundantly clear that nothing more could have been gained by

questioning Mayfield as to the specifics of his interview with police. Rather,

because Mayfield was available for cross-examination at trial, at which time he

claimed to not recall giving a statement to the police, the Commonwealth was

entitled to impeach him with the video of the police interview.   McAtee, 413

S.W.3d at 619. As such, we agree that the trial court did not err in allowing

the Commonwealth to introduce Mayfield's police interview.

                                  CONCLUSION

      For the reasons stated herein, we affirm the judgment and sentence of

the Jefferson Circuit Court.

      All sitting. All concur.




                                        11
COUNSEL FOR APPELLANT:

Daniel T. Goyette
Louisville Metro Public Defender

James David Niehaus
Deputy Appellate Defender


COUNSEL FOR APPELLEE:

Jack Conway, Attorney General of Kentucky

Gregory C. Fuchs
Assistant Attorney General




                                    12
