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                                                RENDERED: AUGUST 20, 2015
                                                     NOT TO BE PUBLISHED

              ,ittprrittr (Court of 1.firttfurkv
                              2014-SC-000332-MR


TERRENCE ALAN SIMS                                                    APPELLANT


                 ON APPEAL FROM FAYETTE CIRCUIT COURT
V.              HONORABLE JAMES D. ISHMAEL, JR., JUDGE
                            NO. 13-CR-01023


COMMONWEALTH OF KENTUCKY                                                 APPELLEE



                  MEMORANDUM OPINION OF THE COURT

                                  AFFIRMING

      Appellant, Terrance Alan Sims, appeals from a judgment of the Fayette

Circuit Court convicting him of murder and sentencing him to imprisonment

for thirty-five years. Appellant raises the following arguments on appeal: (1)

the trial court erred by denying his pretrial motion for self-defense immunity

pursuant to KRS 503.085(1); (2) the trial court erred by denying his Batson

challenge to the Commonwealth's peremptory strike of a juror; and (3) the trial

court erred by limiting his cross-examination of a witness about the victim's

criminal record. For the reasons stated below, we affirm.


                I. FACTUAL AND PROCEDURAL BACKGROUND

      Stephen Kavenaugh was shot and killed in downtown Lexington.

Although Kavenaugh and Appellant apparently were not previously acquainted,

they both ventured at the same time into the same part of town to buy crack

cocaine, and then joined together to locate a dealer. Soon afterwards,
Kavenaugh's empty wallet was found next to his body. The contents of the

wallet were scattered about, suggesting that he had been robbed. Laboratory

testing of a shirt found nearby revealed the presence of Kavenaugh's blood.

DNA, later identified as Appellant's, was also on the shirt.

      Eventually, police located Appellant in Michigan and arranged to

interrogate him about Kavenaugh's death. With the hope of inducing Appellant

to speak more freely about the incident, police suggested to Appellant that

Kavenaugh was known to them as a rough character, and a violent individual

who robs people to "snatch[] the dope." They even suggested to Appellant, "You

have the right to defend yourself against getting robbed." Although Appellant

initially told police several different versions of the event, including denying

that he was present at all, he eventually claimed that Kavenaugh attempted to

grab a gun from Appellant's waistband; that a scuffle over the gun ensued; and

that during the struggle, the gun discharged, killing Kavenaugh.

      Appellant was indicted for the murder of Kavenaugh. Prior to trial,

Appellant moved for dismissal of the case under the self-defense immunity

provisions of KRS 503.085(1). His motion asserted that:

      The police report reveals no motive for this killing, and the witness
      statements in discovery indicate that Mr. Kavenaugh lunged for
      Mr. [Sims'] firearm and that the firearm was discharged as Mr.
      [Sims] attempted to wrestle it back from Mr. Kavenaugh in self-
      defense.

After conducting an evidentiary hearing on Appellant's motion, the trial court

found from the evidence probable cause to believe that Appellant had not acted

in self-defense, and so the motion to dismiss was denied.


                                         2
      At trial, Appellant persisted with his claim of self-defense, but the jury

found to the contrary and returned a verdict convicting Appellant for the

murder of Kavenaugh. The trial court entered judgment consistent with the

verdict. After Appellant's motion for a new trial was denied, he filed this

appeal.


          II. APPELLANT WAS NOT PREJUDICED BY THE TRIAL COURT'S
          METHOD OF RESOLVING APPELLANT'S SELF-DEFENSE IMMUNITY
                         MOTION UNDER KRS 503.085(1)

      Appellant first contends that the trial court erred to his prejudice in its

handling of his motion to dismiss the charges pursuant to KRS 503.050 and

KRS 503.085. Citing the procedures we outlined in Rodgers v. Commonwealth,

285 S.W.3d 740 (Ky. 2009) to guide trial courts in their resolution of motions

for dismissal based upon self-defense immunity, Appellant contends that the

trial court erred by basing its findings entirely upon the testimony of Det.

Robert Wilson, the only witness to testify at the self-defense immunity hearing.

Appellant argues that Rodgers mandated that the trial court's ruling must be

based, in Appellant's words, on "materials and reports related to the case so as

to make a neutral determination whether probable cause existed to believe the

accused could be found guilty of murder."

      More precisely, we said in Rodgers with respect to defendant's motion for

immunity from prosecution based upon self-defense immunity: "The burden is

on the Commonwealth to establish probable cause and it may do so by

directing the court's attention to the evidence of record including witness




                                        3
statements, investigative letters prepared by law enforcement officers,

photographs and other documents of record."        Rodgers at 755.

         Appellant's complaint on appeal is not that the trial court misjudged the

evidence by finding probable cause where none existed. Rather, his claim is

that by conducting an evidentiary hearing instead of reviewing the paper record

described in Rodgers, the trial court followed the wrong procedural route to

resolve the self-defense immunity motion, and as a result, overlooked any

compelling evidence that might have been found in the kind of materials

described in Rodgers.

         Significantly, Appellant fails to identify any instance in which he asked

the trial court to follow the documentary review process detailed in Rodgers.

Also, we find no indication that he objected to the trial court's use of an

evidentiary hearing rather than a document review. We agree with the

Commonwealth that this issue is not properly preserved. Therefore, our review

of this issue is limited to the manifest injustice standard contained in RCr

10.26.

         Upon review, we are persuaded that the record clearly demonstrates that

probable cause existed to support the conclusion that Appellant's use of deadly

force against Kavenaugh was unlawful. It would be nearly impossible to

conclude otherwise, especially since a jury has determined beyond a

reasonable doubt that Appellant did not act in self-defense, and since

Appellant does not contend that the jury's verdict was not supported by




                                          4
evidence sufficient to establish his guilt—a standard of proof far exceeding the

reasonable doubt standard.

       Given that probable cause is a very low evidentiary threshold, it is

inconceivable that the trial court, after reviewing "evidence of record including

witness statements, investigative letters prepared by law enforcement officers,

photographs and other documents of record" as set forth in Rodgers, would

have failed to find probable cause, which was so clearly established by the

testimony of a single investigating police officer at the evidentiary hearing. If

the process employed to determine whether probable cause existed to support

the continuation of the prosecution after Appellant asserted self-defense was

error, Appellant suffered no manifest injustice as a result.


     HI. DENIAL OF BATSON CHALLENGE TO STRIKE OF JUROR 3053

      Appellant contends that the Commonwealth's use of a peremptory

challenge to remove Juror 3053 from the venire violated Batson v. Kentucky,

476 U.S. 79 (1986), and that the trial court erred by denying his objection to

the Commonwealth's use of that challenge. The Commonwealth responded to

Appellant's objection by proffering race-neutral reasons for its decision to strike

the juror.

      As we explained in Johnson v. Commonwealth, 450 S.W.3d 696 (Ky.

2014), Batson provides "a three-step process for trial courts to follow in

adjudicating a claim that a peremptory challenge was based on race." Those

steps are: 1) a defendant must make a prima facie showing that a peremptory

challenge has been exercised on the basis of race; 2) if that showing has been

                                         5
made, the prosecution must offer a race-neutral basis for striking the juror in

question; and 3) in light of the parties' submissions, the trial court must

determine whether the defendant has shown purposeful discrimination.            Id at

702, citing Batson, 476 U.S. at 96. 1 "[T]he trial court's ultimate decision on a

Batson challenge is akin to a finding of fact, which must be afforded great

deference by an appellate court." Chatman v. Commonwealth, 241 S.W.3d 799,

804 (Ky. 2007). Ultimately, however, "[a] trial court's ruling on a Batson

challenge will not be disturbed unless clearly erroneous."      Washington v.

Commonwealth, 34 S.W.3d 376, 380 (Ky. 2000).

      Here, Appellant made the requisite prima facie showing of racial

discrimination necessary for a Batson challenge: Appellant and Juror 3053 are

both of African-American descent and the prosecutor used a peremptory

challenge to remove Juror 3053 from the jury panel. Nothing more is required

to permit an inference of racial discrimination.    Blane v. Commonwealth, 364

S.W.3d 140, 149 (Ky. 2012).

      The second prong of Batson requires the prosecutor to offer a race-

neutral basis for challenging jurors in the protected class. The threshold is

low. "At this step of the inquiry, the issue is the facial validity of the

prosecutor's explanation. Unless a discriminatory intent is inherent in the

prosecutor's explanation, the reason offered will be deemed race-neutral."

Hernandez v. New York, 500 U.S. 352, 360, (1991) (plurality opinion). "The



      1 Johnson actually cites the quoted passage from Batson as "476 U.S. at 97-98,"

which is incorrect. The correct citation is 476 U.S. 96.

                                          6
second step of this process does not demand an explanation that is persuasive,

or even plausible," Purkett v. Elem, 514 U.S. 765, 767-68 (1995), though "the

expressed basis for the strike must rise above the level of an inexplicable

excuse and reach, at least, to the level of a coherent reason for the strike."

Johnson at 703. Here, the prosecutor cited the fact that Juror 3053 had

tattoos, body piercings, suffered from chronic pains, and had an "attitude."

Since none of those factors are exclusive to African-Americans, and they rise

above the level of "inexplicable excuse" as held in Johnson, we have no

difficulty accepting it as a racially-neutral basis for challenging the juror.

      The final step of the Batson test requires the trial court "to assess the

plausibility of the prosecutor's explanations in light of all relevant evidence and

determine whether the proffered reasons are legitimate or simply a pretext for

discrimination against the targeted class." Johnson, 450 S.W.3d at 706. As

noted above, the trial court's ultimate decision on this point is given deference

as a finding of fact, and so we review it under the clearly erroneous standard.

A finding of fact is clearly erroneous if it is not supported by substantial

evidence, which is defined as evidence "which has sufficient probative value to

induce conviction in the mind of a reasonable person."      Hunter v. Hunter, 127

S.W.3d 656, 659 (Ky. App. 2003).

      During jury selection, the Commonwealth issued peremptory challenges

against eight venire members. One of the prosecutors at the trial made

notations on the strike sheet to explain each peremptory challenge. For Juror

3053, the prosecutor wrote: "Chronic back pain. Tatoos/piercings—unclear on
her status as Army. Doesn't appear consistent w/ military standards.

Attitude." In the discussion at the bench concerning Juror 3053, the trial

court expressed some reservations about the Commonwealth's basis for

excluding Juror 3053, and asked the Commonwealth to clarify the reference to

her "attitude." The prosecutor replied that she believed Juror 3053 had

somewhat of a strange demeanor when she came to the bench; that the

piercings and the tattoos had nothing to do with race, and that prosecution

had also used a peremptory strike to remove another juror with facial jewelry

and who also had a friend in jail for trafficking marijuana. Ultimately, the trial

court accepted the Commonwealth's reasons as being race-neutral and not

pretextual. Appellant's Batson challenge was denied.

      Upon review we are constrained to conclude that there is a substantial

basis to support the trial court's finding. Under the deferential standard

outlined above, we cannot say the trial court's ruling was clearly erroneous.

We are not persuaded that the trial court erred in upholding the

Commonwealth's peremptory strike of Juror 3053.

        IV. EXCLUSION OF VICTIM'S PRIOR ROBBERY CONVICTION

      Detective Matthew Brotherton, one of the police officers who first

interviewed Appellant after he was located in Michigan, testified at trial. After a

recording of Appellant's police interview was played for the jury, the

prosecution questioned Brotherton about the statements officers made to

Appellant during the interview, including the derogatory statements used to

suggest that Kavenaugh was dangerous. Brotherton acknowledged that the


                                         8
officers employed those statements intentionally to deceive Appellant about

Kavenaugh's past in the hope of inducing Appellant to admit his involvement in

the shooting. Brotherton explained this as an interview technique occasionally

employed as a means of getting information or a confession from a suspect.

Brotherton also testified that the statements made to Appellant about

Kavenaugh's violent past, which the jury heard when the recording was

introduced, were not true. Appellant characterized this testimony as an effort

to cast the victim in a more favorable light, as a non-violent person, in order to

undermine Appellant's claim of self-defense.

       Appellant's counsel tried to cross-examine Brotherton about

Kavenaugh's criminal record for the purpose of refuting whatever

misimpression that Brotherton's testimony may have created respecting

Kavenaugh's character. Apparently, Kavenaugh had a prior conviction for

second-degree robbery. The trial court sustained the Commonwealth's

objection to that line of cross-examination on the grounds that police were

using a legitimate interrogation technique and were allowed to lie to suspects

during police interrogation. 2 The trial court hinted that he might allow a

broader inquiry into the issue of Kavenaugh's criminal past when Brotherton's

partner, Detective Wilson, took the stand; however, Wilson was never called as

a witness.




       2 The use of a ruse, or "strategic deception," does not render a defendant's

statement involuntary so long as the ploy does not rise to the level of compulsion or
coercion. See Illinois v. Perkins, 496 U.S. 292 (1990).

                                           9
      This evidentiary ruling was also the subject of Appellant's post-trial

motion for a new trial, in which he distilled the issue as follows:

      Mr. Sims was not granted a fair trial due to the improper bolstering
      of Steven Kavenaugh's character through Detectives Brotherton
      and Wilson during the recorded interview which was played for the
      jury. Additionally, Mr. Sims was not given an opportunity to
      disprove the statements made by those detectives, so the jurors
      were made to believe that Mr. Kavenaugh was not previously
      convicted of robbery. Attached is documentation that Mr.
      Kavenaugh was in fact convicted of robbery.

      Appellant argues on appeal that his cross-examination of Brotherton

should not have been curtailed as it was, and that he should have been allowed

to introduce proof of Kavenaugh's prior conviction for second-degree robbery. 3

                                                                                      HeargusthComnweal"pdthorevincwht

presented Brotherton's testimony re-casting Kavenaugh's disposition as that of

a non-violent person to dispel the negative impression created about him when

the jury heard contrary statements made by the police on the interview

recording.




      3  The record discloses that in 1997 Kavanaugh, as a result of a plea agreement,
was convicted of second-degree robbery (as amended down from the original charge of
first-degree robbery); and receiving stolen property over $300.00. In connection with
the plea agreement charges for carrying a concealed deadly weapon and third-degree
criminal mischief were dismissed. The original charge, first-degree robbery, is
classified as a violent offense under KRS 439.3401(m), though second-degree robbery
is not similarly classified under the violent offender statute. Nevertheless, KRS
515.030 describes the elements of second-degree robbery, a Class C felony, as follows:
"A person is guilty of robbery in the second degree when, in the course of committing
theft, he uses or threatens the immediate use of physical force upon another person with
intent to accomplish the theft." (emphasis added). As such, while second-degree
robbery may not formerly be classified as a "violent offense" under the violent offender
statute, second-degree robbery has elements of violence associated with it (actual or
threatened use of physical force).

                                          10
     "The term 'opening the door' describes what happens when one party

introduces evidence and another introduces counterproof to refute or

contradict the initial evidence . . . If the first party objects to the counterproof,

or loses the case and claims error in admitting it, typically the objection or

claim of error is rejected because he 'opened the door."' ROBERT G. LAWSON, THE

KENTUCKY EVIDENCE LAW HANDBOOK § 1.10[5] (4th ed. 2011) (quoting 1 Mueller &

Kirkpatrick, Federal Evidence, § 12 (2d ed. 1994)). Sometimes referred to as

"curative admissibility," opening the door occurs when one party introduces an

inadmissible fact that opens the door for the opponent to offer similar facts

whose only claim to admission is that they negate, explain, or counterbalance'

the prior inadmissible fact. Norris v. Commonwealth, 89 S.W.3d 411, 414 (Ky.

2002).

         We addressed virtually the same circumstances very recently in

Stansbury v. Commonwealth, 454 S.W.3d 293, 300-01 (Ky. 2015), although in

that case the Commonwealth was on the opposite side of the issue:

      []Stansbury . . . elicited testimony from Falconer about the extent
      to which he cared for her pets, testimony that could have been
      excluded as inadmissible character evidence. However, as we held
      in Metcalf [v. Commonwealth, 158 S.W.3d 740 (Ky. 2005)], once
      Stansbury opened the door to the introduction of "good" character
      evidence, he cannot complain if the Commonwealth walked
      through that door and introduced character evidence not to his
      liking. Therefore, we hold no error occurred.

With reference to Commonwealth v. Higgs, 59 S.W.3d 886, 894 (Ky. 2001), we

noted in Stansbury that "testimony by Higgs's father that Higgs was not a thief




                                          11
`opened the door' to evidence that Higgs's father had accused Higgs of stealing

property from him."

      We agree with Appellant. Although evidence that Kavenaugh had been

convicted of a violent crime might otherwise have been inadmissible under KRE

404(b), once the Commonwealth introduced testimony that Kavenaugh did not

have a violent criminal record, the door was opened for Appellant to offer proof

to the contrary. To paraphrase Higgs, supra, testimony by Brotherton that

Kavenaugh was not a robber or a violent person, "opened the door" to

Appellant's evidence that Kavenaugh was a convicted robber. The rule invoked

to the Commonwealth's advantage in Stansbury and Higgs applies to the

defendant as well. The trial court erred by limiting Appellant's cross-

examination of Brotherton on this point.

      Nevertheless, we find the error to be harmless. The evidence of

Appellant's guilt was overwhelming. There was no doubt at all that his gun

fired the fatal bullet and that Kavenaugh's blood was on Appellant's shirt,

which he apparently discarded at the scene. Circumstances indicated that the

same person that shot Kavenaugh also robbed him, or attempted to rob him, as

evidenced by the ransacking of the victim's wallet and the fact that people in

the vicinity, upon hearing the gun shot, arrived on the scene almost

immediately. Appellant's flight from the area suggests consciousness of guilt;

forensic evidence discredited the manner in which Appellant claimed the fatal

wound was inflicted; Appellant and Kavenaugh were both involved in the

nefarious activity of buying illegal drugs; and after being located in Michigan


                                        12
and questioned by police, Appellant gave conflicting accounts of the incident,

further evincing a consciousness of guilt. Moreover, Kavenaugh's robbery

conviction was thirteen years prior to this event, and thus did not demonstrate

recent violent conduct, thereby mitigating its significance in light of the other

proof. The jury was made aware of the victim's recent drug use and, in our

view, was not likely to have been unduly sympathetic to the victim, such that

the Appellant was unfairly prejudiced. We find it unlikely that the

Commonwealth's misleading, and conflicting, portrayals of the victim, first in

the interview with Appellant and then in Brotherton's testimony, led the jury to

reject Appellant's self-defense theory.

      In summary, although we are satisfied that the trial court's ruling

constraining Appellant's ability to cross-examine Brotherton about the victim's

robbery conviction was erroneous, we are satisfied that it did not substantially

sway the jury's verdict and sentencing recommendation. Looking at totality of

evidence heard by the jury in this case, we conclude with fair assurance that

the error did not substantially sway the verdict, and so was harmless.

Winstead v. Commonwealth, 283 S.W.3d 678, 688-89 (Ky. 2009).


                                  IV. CONCLUSION

      For the foregoing reasons, the judgment of the Fayette Circuit Court is

affirmed.

      All sitting. Minton, C.J., Barber, Cunningham, Keller, Noble, and

Venters, JJ., concur. Abramson, J., concurs in result only.




                                          13
COUNSEL FOR APPELLANT:

Linda Roberts Horsman
Assistant Public Advocate
Department of Public Advocacy


COUNSEL FOR APPELLEE:

Jack Conway
Attorney General of Kentucky

James Daryl Havey
Assistant Attorney General
Office of the Attorney General




                                 14
