             IMPORTANT NOTICE
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                                              RENDERED: SEPTEMBER 24, 2015
                                                     NOT TO BE PUBLISHED

               oSninpittr (Court of 1,.firttfttrhv
                               2014-SC-000349-MR


HARRY HENRY PAYNE, JR.                                                  APPELLANT


                ON APPEAL FROM JEFFERSON CIRCUIT COURT
V.                  HONORABLE BARRY wiLLErr, JUDGE
                            NO. 11-CR-003036


COMMONWEALTH OF KENTUCKY                                                 APPELLEE


                   MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING

      The Appellant, Harry Henry Payne, Jr., was sentenced to 60 years'

imprisonment after being found guilty of incest, first-degree sodomy, first-

degree sexual abuse, and being a first-degree persistent felony offender. On

appeal, he claims that the trial court erred (1) in striking Juror 929394 for

cause on the fourth day of trial and (2) in failing to suppress the results of a

buccal swab taken without a search warrant. Finding no grounds for reversal,

this Court affirms.

                                  I. Background

      The facts of the crimes in this case are not relevant to this appeal. It

suffices to say that Payne was accused by his five-year-old granddaughter of

making her take off her pants and underwear, taking off his own clothes,

putting his private part in her bottom, and then shaking it to cause a "white
polar bear" to come out. The claims that Payne now raises relate to evidence

collected by the police and a suppression hearing, and the striking of a juror

during trial. This Court describes in detail only the facts related to those

issues.

      The suppression issue is related to a buccal swab performed by police.

Buccal swabs are common procedures used to collect DNA samples that

"involve[] wiping a small piece of filter paper or a cotton swab similar to a Q-tip

against the inside cheek of an individual's mouth to collect some skin cells."

Maryland v. King, 133 S.Ct. 1958, 1967-68 (2013). It "is a far more gentle

process than a venipuncture to draw blood ... [and] involves but a light touch

on the inside of the cheek." Id. at 1969.

      After the Louisville Metro Police Department became aware of the

allegations against Payne, patrol officers located and arrested him under an

unrelated outstanding warrant. Upon his arrest, he was transported to the

Crimes Against Children Unit office and was placed in an interview room

around 12:30 a.m. A video recording, approximately two hours and eleven

minutes long, documented Payne's time in the interview room. For most of that

time, he sat unmoving in a chair and appeared to be asleep.

      After about 42 minutes, Detective Angela Merrick entered the room. She

roused Payne, advised him of his Miranda rights, and had him sign a waiver of

those rights. Detective Merrick then attempted to question Payne about the

allegations that had been leveled against him. Payne gave several nonverbal

responses apparent on the video—for example, he shook his head "no" when

asked if the allegations were true and shrugged his shoulders and turned up
                                         2
his hand in an "I don't know" gesture when asked if he knew why the victim

had made the allegations. Otherwise, he appeared mostly nonresponsive

throughout the exchange. But because of the placement of the camera and the

quality of the video, it is difficult to discern much detail, such as Payne's facial

features. Detective Merrick left Payne alone again in the interview room about

16 minutes after she first entered.

       About 25 minutes later, Detective Merrick returned to the interview room

and again attempted to rouse Payne. She appeared to have more difficulty

doing so than before, but he nevertheless eventually acknowledged her. She

told him that she needed to swab the inside of his mouth and asked him for

permission to do so. She eventually succeeded in having him sign a form

acknowledging his consent to the buccal swab. His signature on the buccal-

swab consent form is notably more scribbled than that on the Miranda waiver.

After he signed the form, Payne opened his mouth to allow Detective Merrick to

swab the insides of both of his cheeks.

       At trial, 1 Payne moved to suppress the results of the buccal swab,

arguing that the video evidence of his time in the interview room showed that

his consent to the swab was not voluntary. The trial court held a hearing on

the motion at which it heard testimony from Detective Merrick and watched the

relevant portions of the video recording described above. In short, Detective

Merrick testified that while Payne had appeared tired (she first read him his




       1 Payne raised his motion to suppress at trial because the Commonwealth failed
to provide the interview room video recording until a few days before the start of trial.
He raises no complaint about this timing, however.
                                            3
rights at 1:09 a.m.), he had also appeared to her to be pretending to sleep to

avoid speaking to her; that he had not appeared intoxicated and had not

smelled of alcohol; that she had continued asking questions and getting his .

consent to the buccal swab because he had been responsive to her, albeit

nonverbally; and that he had willingly signed both the Miranda waiver and

buccal-swab consent form and had willingly opened his mouth to allow her to

conduct the buccal swab. Payne did not testify.

       Following the suppression hearing, the trial court denied Payne's motion

to suppress, finding under the totality of the evidence that he had voluntarily

consented to the swab. The court found that while it was difficult to get a good

feel of Payne's behavior from the video, he did not appear to be intoxicated or

unconscious. The court further found that Payne had communicated

nonverbally despite appearing largely nonresponsive. And the trial court cited

as the most important facts supporting its conclusion on voluntariness that

Payne had signed the waiver and consent forms and that he had opened his

mouth to allow the swab. Finally, the trial court found that even if Payne had

not voluntarily consented to the buccal swab, the police would have inevitably

obtained this information either by obtaining a pre-indictment search warrant

or a post-indictment court order. 2 ,

       Payne's other claim of error relates to a juror who was released in the

middle of trial. During voir dire, the Commonwealth elicited from Juror 929394




       2 See generally Leslie W. Abramson, Kentucky Criminal Practice and Procedure

§ 17.7 (5th ed. 2014) (discussing the inevitable-discovery exception to the fruit-of-the-
poisonous-tree doctrine).
                                            4
that a foster child of his had been charged with a crime. The juror stated that

the child had previously been in his foster care but that the alleged crime had

occurred at a time after the child had returned to his biological parents' care.

Juror 929394 denied having any involvement with the case other than

attending and watching the trial. He confirmed that it had been prosecuted by

the Jefferson County Commonwealth's Attorney's office but denied that this

fact, or anything else about the prior case, would affect his ability to sit on the

jury in this case. No further questions were asked of Juror 929394 at that

time, and he was ultimately one of the twelve jurors (with two alternates)

selected to sit on the panel for Payne's trial.

      On the fourth day of trial, however, the Commonwealth informed the trial

court that it had just received additional information about Juror 929394

regarding the past prosecution of his foster child. The foster child had been

acquitted (seven months before the commencement of Payne's trial) after being

tried in the same division and before the same judge as in this case. After being

acquitted, the foster child had returned to Juror 929394's and his wife's foster

care. According to the Commonwealth, during the prior prosecution of the

foster child, both Juror 929394 and his wife had contacted the prosecutor's

office (and media outlets) to express displeasure with their holding and

prosecuting the child "without any evidence" and had "basically said some

pretty nasty stuff about us." Accordingly, the Commonwealth seriously doubted

Juror 929394 would not be biased or prejudiced as a result of that prior

experience. The Commonwealth also expressed concern with what it perceived

as intentional minimization of the earlier case by Juror 929394 in his
                                          5
responses during voir dire and on juror information forms. The trial judge also

recalled that Juror 929394's wife had testified for the foster child and been the

"point person" at his bond-reduction hearings. Consequently, the trial court

struck Juror 929394 for cause.

         Payne was convicted of first-degree sodomy, incest, first-degree sexual

abuse, and being a first-degree persistent felony offender; and he was

sentenced to 60 years in prison.

         He now appeals to this Court as a matter of right. See Ky. Const.

§ 110(2)(b). Additional facts will be developed as necessary in the discussion

below.

                                     II. Analysis

   A. The trial court did not err in declining to suppress the buccal-
      swab evidence.

         Payne claims that the buccal-swab evidence should have been

suppressed because it was obtained without a search warrant and without his

voluntary consent. He primarily argues that the trial court clearly erred in

finding that he voluntarily consented to the swab.

         Our standard of review when reviewing suppression issues is two-fold.

First; we will review findings of historical fact only for clear error,

Commonwealth v. Ousley, 393 S.W.3d 15, 22 (Ky. 2013), and the factual

findings of the trial court are conclusive so long as they are supported by

substantial evidence, see RCr 9.78. Second, "[u]sing those facts, [we] then

conduct[] a de novo review of the trial court's application of the law to those

facts to determine whether the decision is correct as a matter of law."


                                           6
Commonwealth v. Jones, 217 S.W.3d 190, 193 (Ky. 2006). To be clear, the

decision under review is the voluntariness of Payne's consent to the swab,

which is "determined by a preponderance of the evidence from the totality of all

the circumstances." Talbott v. Commonwealth, 968 S.W.2d 76, 82 (Ky. 1998).

      There was substantial evidence here to support the trial court's factual

findings that Payne had not been intoxicated or unconscious when he was

asked to consent to the buccal-swab search, had personally signed the waiver

and consent forms, and had willingly opened his mouth to allow Detective

Merrick to administer the swab. Although the video is less than clear, the trial

court found Detective Merrick's testimony credible and relied upon it to fill in

the blanks that the video did not answer. And our careful review of the video

recording confirms that none of this testimony was contradicted by the video

evidence, so we cannot say the trial court's findings were clear error. Because

they were supported by substantial evidence, the trial court's historical

findings of fact are conclusive.

      But, as noted above, that does not end our inquiry because we must now

apply the law to those facts to determine whether the trial court's conclusion

that Payne's consent was voluntary was correct as a matter of law. We do so de

novo without giving any deference to the trial court beyond its factual findings.

See Ousley, 393 S.W.3d at 23.

      "[U]sing a buccal swab on the inner tissues of a person's cheek in order

to obtain DNA samples is a search." Maryland v. King, 133 S.Ct. 1958, 1968-

69 (2013). Warrantless searches are presumptively unreasonable in violation of

the Fourth and Fourteenth Amendments unless they fall under a recognized
                                        7
exception to the warrant requirement. Consent is one of those exceptions, but

to be valid, it must be voluntarily given. See Bumper v. North Carolina, 391 U.S.

543, 548 (1968). "The question of voluntariness turns on a careful scrutiny of

all the surrounding circumstances in a specific case." Cook v. Commonwealth,

826 S.W.2d 329, 331 (Ky. 1992). "Courts must determine the voluntariness of

consent based upon 'an objective evaluation of police conduct and not by the

defendant's subjective perception of reality."' Payton v. Commonwealth, 327

S.W.3d 468, 474 (Ky. 2010) (quoting Cook, 826 S.W.2d at 331).

      The primary concern in determining "voluntariness" of consent to

conduct a warrantless search is whether it was freely given or instead was the

product of duress or coercion, either express or implied. See Schneckloth v.

Bustamonte, 412 U.S. 218, 227 (1973). There was no such coercion here. There

is no evidence that Detective Merrick or any other officers made any threats,

promises, or misrepresentations to induce consent. Additionally, there is no

evidence that Detective Merrick asserted any claim of lawful authority to

conduct the search—such as claiming to have a search warrant later

determined to be invalid, see Bumper v. North Carolina, 391 U.S. at 548-49—to

support Payne's contention that he merely acquiesced, rather than voluntarily

consented, to the search. And to be sure, the trial court's findings that Payne

was conscious, nonverbally responsive to questioning, and not intoxicated,

which again we must accept as conclusive, directly refute his claim that he was

incapacitated and unable to give consent.




                                        8
       Therefore, based on our review of the facts and surrounding

circumstances, Payne's consent was voluntary. Thus, there was no error in the

trial court's declining to suppress the buccal-swab evidence. 3

   B. The trial court did not err in striking Juror 929394 for cause.

       Payne also claims that the trial court erred in striking for cause

Juror 929394 on the fourth day of trial.

       Criminal Rule 9.36(1) requires trial courts to excuse a juror whenever

there is a reasonable basis to believe he cannot render a fair and impartial

verdict based on the evidence. Normally, for-cause challenges of jurors "must

be made before the jury is sworn," but the trial court may "for good cause"

allow a juror to be challenged after being accepted. RCr 9.36(3). A trial court's

decision to strike a juror after the panel has already been seated is reviewed for

abuse of discretion. Nunley v. Commonwealth, 393 S.W.3d 9, 14 (Ky. 2013).

"And we have recently been 'emphasizing the importance of excusing doubtful

jurors for cause."' Id. (quoting Ordway v. Commonwealth, 391 S.W.3d 762, 781

(Ky. 2013)); see also Basham v. Commonwealth, 455 S.W.3d 415, 421 (Ky.

2014). To reiterate, "[s]triking a juror for cause simply will not constitute a

reversible abuse of discretion absent evidence of systematic exclusion (e.g., on

the basis of race or gender) that undermines the fairness of the entire jury

process." Wallace v. Commonwealth,            S.W.3d    ,    2015 WL 4967099, *6

(Ky. 2015).




      3 Because this Court discerns no error in the trial court concluding consent was
voluntarily given, the issue whether the court erred in further finding suppression
unnecessary under the inevitable discovery doctrine is moot.
                                          9
      There was ample reason for the trial court to believe that the juror was

biased against the Commonwealth. The juror had misrepresented his prior

involvement in the criminal justice system and, it turned out, had leveled

public accusations of impropriety against the Commonwealth's Attorney's office

in a high profile case. Even if it was a close call, in excusing Juror 929394, the

trial court here complied with this Court's oft-repeated direction to err on the

side of caution when the ability of a juror to be unbiased and impartial is

questioned. And Payne has not argued that striking Juror 929394 was part of

any systematic exclusion that might otherwise undermine the fundamental

fairness of the jury process. There was no abuse of discretion.

                                  HI. Conclusion

      For the reasons set forth above, the judgment of conviction and sentence

of the Jefferson Circuit Court is affirmed.

      All sitting. All concur.




                                        10
COUNSEL FOR APPELLANT:

Daniel T. Goyette, Louisville Metro Public Defender of Counsel
Cicely Jaracz Lambert, Assistant Appellate Defender
Office of the Louisville Metro Public Defender
Advocacy Plaza
717-719 West Jefferson Street
Louisville, Kentucky 40202


COUNSEL FOR APPELLEE:

Jack Conway
Attorney General

Thomas Allen Van De Rostyne
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
