           IMPORTANT NOTICE
      NOT.TO BE PUBLISHED OPINION
                                    .   (




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                                                    '·




                                            RENDERED: DECEMBER 14, 2017
                                                    NOT TO BE PUBLISHED

              ~upr,:em:e         filnud nf ~:enfurkir ·
                              2016-SC-000627-MR


ZAYER ADAMS                                                            APPELLANT


                ON APPEAL FROM CHRISTIAN CIRCUIT COURT
V.                 HONORABLE ANDREW C. SELF, JUDGE
                   NOS. 16-CR-000235 AND 16-CR-'000379


COMMONWEALTH OF KENTUCKY                                               APPELLEE



                  MEMORANDUM OPINION OF THE COURT

                                  AFFIRMING


      On the morning of February 4, 2016, Appellant, Zayer Antonio Adams,

was arguing with his ex-wife, Stephanie Shakoor; at her residence. Shakoor

called her brother, Kenny Green, to remove Adams from her apartment.

Knowing Adams and Shakoor had a tumultuous relationship, Green went to

the. back door of his sister's apartme·nt to check on her. Nobody answered.

Adams then appeared in the window and told Green that Shakoor was "all

right," but did not answer the door. Green continued to k_nock and yell for lier.

      Worried neighbors called the police. Upon arrival, the officers saw
                                                                   .     I


through the apartment window that a fire was starting on the stove, and

                                                              I.
proceeded to break down Shakoor's door to rescue those inside. As they broke

down the back door, Adams fled through the front door.

     · He left Shakoor in her apartment, naked and beaten. Before being taken

to the hospital, Shakoor told the police that Adams had restra~ned, beaten,

kicked, and dragged her around by her hair. After. hospitalization for abrasions

and contusions resulting from the beating, Shakoor continued to suffer

physical and emotional pain.

      Adams was arrested and charged witl:i se9ond-degree Assault, first-

degree Fledng or Evading Police, and first-degree Unlawful Imprisonment. He

was also charged with being a Persistent Felony Offender.

      At trial, the jury found Adams guilty of all charges presented and

recommended a fifteen-year sentence for Assault and a seven-year sentence for

Unlawful Imprisonment, to run consecutively. At sentencing, Adams als,o-.

unconditionally pied guilty to other charges not tried before the jury, and

received a three-year sentence on those counts to be served concurrent with

his trial convictions. However, to comply with KRS 532.1 lO(l)(c), the trial

court imposed a concurrent tWenty-year sentence for all the convictions.

      Adams now appeals his jury trial convictions as a matter of right.   Ky~


Const.§ 110(2)(b). Five issues are raised and addressed as follows.

                    Racial Composition of the Jury Panel
                                    .       .              .

      First, Adams alleges that he was denied his right to a jury panel

representing a fair cross-sectiori of his community. He claims error under the

Sixth Amendment, as well as equal protection under the Fourteenth

                                        2
Amendment, because only one member of the jury was an African-American .

male. Adams is African-American.

      The Sixth Amendment right to a jury trial in criminal proceedings entails

the right to have the jury's members drawn from "a representative cross-

section of the community," Miller v. Commonwealth, 394 S.W.3d 402, 409 (Ky.

2011) (citing Taylor v. Louisiana, 419 U.S. 522, 527 (1975)), to ensure an

impartial jury is empaneled.

      To establish a prima facie case for violation!·of the fair cross-section

requirement, a defendant must show:

      (1) the group alleged to be excluded is a "distinctive" group in the
      community;
      (2) the representation of this group in venires from which juries are
      selected is not fair and reasonable in relation to the number of
      such persons in the community; and
      (3) this underrepresentation is due to systematic exclusion of the
      group in the jury-selection process.

Miller, 394 S.W.3d at 409 (internal citations omitted).

      Adams satisfied the first element, as African-Americans are a recognized

"distinctive" group for jury selection inquiries. Id. at 410·(citing Rodgers v.

Commonwealth, 285 S.W.3d 740 (Ky. 2009)).
                        "'--



      However, Adams failed to offer proof that African-Americans have

historically been unfairly or unreasonably t:mderrepresented within the venire

from which Christian County juries are selected. Although Adams provided

2010 census data, this Court has stated that the "mere citation to census data,

without any other information, is not enough to show underrepresentation or       \.




systematic exclusion." Mash v. Commonwealth, 376        S.W.~d   548, 552 (Ky.

                                         3
2012) (internal citations omitted). Without evidence of systematic exclusion,

Sixth Amendment fair cross-section claims fail, Miller, 394 S.W:3d at 409-10,

as do Fourteenth Amendment equal protection claims. Castaneda v. Partid,a,

430 U.S. 482, 494 (i977).

       Adams .,~gues that the jury qualification forms provided by the

Administrative Office of the Courts do riot request the race of potential jurors,

thus allegedly preventing Adams from having evidence to prove.the historic,

systematic exclusion of African-Americans from the jury pool. Additionally,

Adams claims that the destruction of records relating to randomized jury panel

lists pursuant to former Section 14 of Part II of the Administrative Procedures

of the Court of Justice 1 constituted failure to collect and retain information

necessary to prove a fair cross-section claim.

       However, Christian County juries are selected at random. As this Court

has previously stated, "[e]xperience has taught [us] that random selection is the

most effective means of rooting out discrimination in the selection of citizens to

fill thejury pool so that it reflects a fair cross section of the community." Doss,

510 S.W.3d 830, 836 (Ky. 2016) (emphasis added). Additionally, even if Adams

had shown that African-Americans were underrepresented on the jury panel,

that fact alone does not give the trial court grounds to dismiss a proper,

randomly-selected jury. Id .. at 837. Thus, we find that Adams' arguments




  1 Former Section 14 of Part II of the Administrative Procedures of the Court of Justice,
. titled "Preservation of records and papers compiled in selection process," was repealed ·
  effective October 1, 2017.

                                             4
 about the jury selection form and the destruction of exhausted jury panel lists

 have no merit.

        Because      ~dams   has not established a prima facie fair cross-section claim

 under the Sixth Amendment, the trial court did not err to deny Adams' motion

· for a new trial.
                                         I

                                    Denial of Batson Motion

        Adams further contends that the trial court erred when it denied his

 motion pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), after the

 Commonwealth used a peremptory challenge to strike an African-American

 woman from the jury pool. We review a trial court's decision whether to grant a

 Batson motion for an abuse of discretion. Rodgers, 285 S.W.3d at 757-58.

        Batson provides a three-prong test for analyzing claims of racial

 discrimination during jury selection under the Equal Protection Clause of the

 Fourteenth Amendment. Batson, 476 U.S. at 85. First, the defendant must

 establish a prima facie case of racial discrimination in the prosecutor's use of a

 peremptory challenge. Id. at 96-97. Once established, the burden shifts to the

 State to show "permissible racially neutral selection criteria and procedures"

 were used, but nonetheless "produced the monochromatic result." Id. at 94.

Third, the trial court must determine whether the defendant carried his burden

 of proving purposeful discrimination. Id. at 97-98.

        Here, Adams claimed that the Commonwealth's peremptory strike of an

 African-American woman from the jury pool constituted racial discrimination.

The Commonwealth respondeq that the prospective juror was stricken because

                                              5
Officer Frederico Rodriguez, a witness for the Commonwealth, recognized the

juror's name as that of a woman he had recently ticketed. The trial court held

that removal of a prospective juror because of her potential bias toward a .

government witness was a sufficiently race-neutral reason for the

Commonwealth's peremptory strike.

       Because the trial court's finding that the Commonwealth's explanation

was race-neutral is not clearly erroneous, no abuse of discretion occurred.
                                                            '
Commonwealth v. Snodgrass, 831 S.W.2d 176, 180 (Ky.1992).

                                  Motion for Directed Verdict

       Third, Adams contends that the trial court erred        ~hen   it denied his

motions for directed verdicts of acquittal on      th~. charges   of second-degree

assault and first-degree unlawful imprisonment.

       Drawing all reasonable inferences in favor of the Commonwealth, this

Court's inquiry on appellate review of a directed verdict motion is whether the

Commonwealth presented evidence sufficient for a reasonable juror to find the

defendant guilty beyond a reasonable doubt. Commonwealth v. Benham, 816

S.W.2d 186, 187 (Ky. 1991). If it would be ctearly unreasonable for a juror to

find guilt,   th~n   the defendant is entitled to a directed verdict of acquittal. Id.
         l



       In this case, a jury's finding of second-degree assault requires intentional

causation of serious physical injury. KRS 508.020(1)(b). First-degree unlawful

imprisonment requires knowledge of the unlawful restraint of another and

actual exposure of the other to a risk of serious physical injury. KRS

509.020(1); McClellan v. Commonwealth, 715 S.W.2d 464, 470 (Ky. 1986). For

                                              6
both crimes, the requited element of "serious physical injury" is defined as

"physical injury which creates a sµbstantial risk of death, or which causes

serious and prolonged disfigurement, prolonged impairment of health, or

prolonged loss or impairment of the function of any bodily organ." KRS

500.080(15).

      Here, the victim testified that Adams fractured the right side of her face

and caused damage to her nasal cavity. She claims to have suffered from

dizziness, headaches, memory loss, and pain following her injuries. She

continues to suffer from sinus infections and prolonged pain.
                                                /

     . The Commonwealth also presented testimony from Dr. Jeremy

Helphenstine, the ER physician who treated Shakoor. Dr. Helphenstine

testified that Shakoor had a small abrasion on the cornea of her right eye, and

a CAT scan revealed a maxillary fracture under her right eye. Although Dr.

Helphenstine could not confirm whether Shakoor suffered from a concussion,

Shakoor testified that she suffered from concussion-related symptoms following

the incident, including dizziness, heada,ches, and memory loss.

      Based upon the evidence presented, a reasonable juror could have found

that the victim's injuries and her resultant symptoms constitute prolonged

impairment of her health under the stat1..:i,tory definition of "serious physical

injury" in KRS-500.080(15). Parson v. Commonwealth, 144 S.W.3d 775, 787

(Ky. 2004) (concluding that.prolonged pain satisfies the "prolonged impairment

of health" element of a serious physical injury).




                                          7
       Thus, we hold that the trial court did not.commit error when it denied
                                              '
 Adams' motion for a directed verdict on either charge.

                       Motion to Prohibit Recorded Phone Calls

       Fourth, Adams claims the trial court .erred when it did not prohibit the

 introduction of his recorded phone calls     m~de   from jail. We review a trial

 court's ruling on a motion to prohibit evidence during discovery, or,

 alternatively, a continuance motion, for a clear abuse of discretion. Hunter v.

 Commonwealth, 869 S.W.2d 719, 721 (Ky. 1994) (internal citations omitted).

       On August 5, 2016, the    Commonwe~.lth       informed defense counsel that it

 planned to introduce evidence from several recorded phone calls of Adams

 while he was in jail. On August 8, with trial scheduled for August 11, defense

 counsel requested that two of the calls selected by the prosecution be excluded

. from evidence. Defense counsel did not alternatively request a continuance

 because his clientdirected him not to delay the trial. The trial court decided to

 proceed with the trial as scheduled.

       While it is within a trial court's discretion to prohibit the introduction of

untimely-disclosed ·evidence, it is also within its discretion to grant a

 continuance, or, alternatively, to go ahead with the trial schedule. RCr 7.24.

Adams now argues that the late-tendered evidence prejudiced his case.

 However, at Adams' direction, his counsel did not request a continuance, which

. would have provided more tfine to review the recorded calls to prepare for trial. .

Adams cannot now claim error .based upon his own inaction. Accordingly, we

 hold that the trial court did not abuse its discretion.

                                          8
                   \
                       Evidence of Prior Charges and Convictions

       Finally, Adams claims that during the penalty phase, the trial court erred
   I

in admitting evidence of facts and circumstances underlying his prior charges

and convictions. While this error was unpreserved, Adams-seeks palpable

error review under RCr 10.26. It is proper to reverse a trial court under

palpable error review only when the error results in manifest injustice. RCr
                                      .         .
10.26; Elery v. Commonwealth, 368 S.W.3d 78, 97-98 (Ky. 2012).

       During the penalty phase of this criminal proceeding, evidence of Adams'

prior convictions and limited evidence of the nature of those prior convictions
                                  }




was pr6perly.adm,itted. Parker.v. Commonwealth, 482 S.W.3d 394, 407 (Ky.

2016) (citing KRS 532.080 and KRS 532.055). However, evidence of prior

indictments, plea agreements, names of victims from prior crimes, and other

such information was also admitted. We found the introduction of such

evidence improper in Parker, and we equally find it was an error here.· Parker,

482 S.W.3d
       \
           at 408.

       However, although we find that it was error for information about Adams'

prior indictments and plea agreements to be submitted to the jury, the

defendant must either be "substantially prejudiced by the error or otherwise []

subjected as a result of it to manifest injustice" to be entitled to relief under

RCr 10.26. Id. at 407. Actual prejudice or manifest injustice is required. Id.

       Here, as in Parker, a third party read the defendant's prior convictions

into evidence straight from the administrative record. Id. Likewise, the entire,

unredacted record was submitted to the jury during the penalty phase of trial,

                                          9
which included details such as amended charges, plea agreements, and details

from prior offenses. Parker, 482 S.W.3d at 407. As in this case, the

Commonwealth in Parker never referred to the improperly-admitted evidence of

prior indictments or plea agreements iri its argument. Id. at 408. Nor was that

information read aloud to the jury. Id.

      We have held that, even though the jury was shown improperly-admitted

information about the defendant's prior dismissed or amended charges, the

defendant failed to show "a likelihood-'a reasonable possibility'-that, but for

the error, a different sentence would have been imposed." Parker, 482 S.W.3d

at 407-08 (internal citation omitted).

      The mere fact that the jury had access to that evidence in Parker did not

permit a finding of substantial prejudice or manifest injustice, and we

accordingly denied the defendant relief under RCr 10.26. Id. at 408. Here, we

likewise hold that Adams did not suffer substantial prejudice or manifest

injustice warranting palpable error under RCr 10.26.

                                 Conclusion

      For the foregoing reasons, we hereby affirm the decision of the Christian

Circuit Court.

      All sitting. All concur.




                                          10
 COUNSEL FOR APPELLANT:

 Linda Roberts Horsman
 Assistant Public Advocate


 COUNSEL FOR APPELLEE:

 Andy Beshear
 Attorney General of Kentucky

 Jesse Robbins
 Assistant Attorney General

  David Bryan Abner
- Assistant Attorney General




                                11
