Appellant, Robin L. Moore, appeals as a matter of right, Ky. Const. § 110, from a judgment of the Jefferson Circuit Court convicting him of murder, tampering with physical evidence, of being a felon in possession of a handgun, and sentencing him to a total of sixty-five years imprisonment.
As grounds for relief Appellant raises the following claims: (1) that palpable error occurred when the Commonwealth used a prior consistent statement to impeach one of Appellant's witnesses; (2) that the trial court erred when it granted the Commonwealth's Batson motion and blocked Appellant's attempt to use a peremptory strike on a juror; (3) that the trial court erred by denying Appellant's motion for a mistrial after a witness stated that Appellant was a "bad man" and after another witness testified regarding threats allegedly made on behalf of Appellant; (4) that the trial court erred by permitting the introduction of evidence that a baseball bat and a knife were found in Appellant's truck following the shooting; (5) that the trial court erred by permitting the introduction of two gruesome autopsy photos of the victim; and (6) that the trial court erred by granting the Commonwealth's motion to exclude evidence that the victim's body tested positive for the presence of marijuana.
For the reasons stated below, we affirm the judgment of the Jefferson Circuit Court.
Seventeen year-old Charles Eldridge was shot and killed on M Street in Louisville, Kentucky. Appellant admits to being involved in the shooting of Eldridge. He contends that as he attempted to fend off an armed assailant, the gun discharged several times.
The Commonwealth presented the testimony of Delmar Baxter, who upon hearing gunshots, ran toward the intersection of Fifth Street and M Street so he could see what was happening, and saw Eldridge running from Appellant, who was standing in the middle of the intersection shooting at Eldridge. Baxter saw Eldridge run onto the lawn of M Street Baptist Church and collapse, and he then saw Appellant flee the scene. Tiffany Procter testified that she heard gunshots, went out onto her porch and saw Appellant standing in the intersection holding a gun. Howard Snead, who was with Baxter at the time of the shooting, testified that he saw Eldridge ride by on a bicycle when a pickup truck came around the corner toward Eldridge. Eldridge threw his bicycle down, began running, and said "you have the wrong person." Snead testified that Appellant got out of the truck, chased Eldridge down, and shot him. Baxter testified that Appellant then approached and asked, "Does any more niggers want to die? Or any more nigger lovers?" Appellant is Caucasian; the victim and the eye-witnesses were African-American.
Appellant's version of events was quite different. He testified that he was driving around the area looking for a prostitute, and asked two young men on bicycles "where the ladies were." Appellant said that they told him to park his truck and get his money out, and he complied and stood, resting his arm on the truck window with his money in his hand. As he waited, one of the young men punched him in the mouth, and the other pointed a pistol at him. Appellant testified that he reached defensively for the pistol, but ended up grabbing instead the arm holding the gun. As he repeatedly pushed the arm away from himself, the gun fired several times. Then, due to the blows upon his face, he lost his vision. When he regained his sight, the young men were gone. Appellant was certain that the two young men were attempting to rob him.
As a result of that event, Appellant was indicted for murder, possession of a handgun by a convicted felon, and tampering with physical evidence. At trial, the jury rejected Appellant's version of events, returning a verdict of guilty on all counts and recommending a total sentence of sixty-five years. The trial court entered final judgment consistent with the jury's verdict and sentencing recommendation. This appeal followed.
Appellant contends that error occurred as a result of the Commonwealth's attempt to impeach Appellant's daughter, Brittany Whitaker, with a statement she made to police on the night of the shooting. Appellant contends that the statement was a prior consistent statement, as opposed to a prior inconsistent statement, and therefore it was admitted in violation of KRE 801A(a)(l), Appellant concedes that the error is not preserved but requests palpable error review pursuant to RCr 10.26.
We begin our discussion by setting-forth the relevant testimony, beginning with Whitaker's:
Thus, according to Whitaker's trial testimony, on the night of the shooting she told police that her father had told her that he had been robbed. After Whitaker testified, Deputy Mike Smith was recalled to the stand and testified in rebuttal as follows:
Appellant contends that Whitaker's statement to Smith to the effect that Appellant said he had been assaulted and his keys had been stolen was the same, in substance, as her trial testimony that Appellant had told her that he had been robbed, and thus was not subject to impeachment as a prior inconsistent statement. KRE 801A(a)(1) allows admission of a witness's prior inconsistent statement provided the witness testifies at trial and is examined about the statement, subject to the foundational requirements contained in KRE 613. Tunstull v. Commonwealth, 337 S.W.3d 576, 590 (Ky. 2011)
The inconsistency, if any, between Whitaker's statement the night of the shooting to the effect that her father "had been assaulted and his keys taken" and her statement at trial that he had been "robbed" is, indeed, quite subtle. As pointed out by Appellant, if someone has been assaulted and bloodied and the assailant takes his keys, the victim has, in fact, been "robbed."
First, we agree with Appellant that the Commonwealth did not comply with the foundational requirements of KRE 613. KRE 613 requires that, "[b]efore other evidence can be offered of the witness having made at another time a different statement, he must be inquired of concerning it, with the circumstances of time, place, and persons present, as correctly as the examining party can present them; and, if it be in writing, it must be shown to the witness, with opportunity to explain it."
The rule requires that the examining party, here the Commonwealth, must first ask the witness about the difference in the trial testimony and give her a chance to explain it. As the above transcription demonstrates, the Commonwealth at no time gave Whitaker an opportunity to explain the subtle variance between her pre-trial statement to police that her father had been assaulted and his keys stolen, with its absence of the terms "rob" and/or "robbed," and her trial testimony that her father had been robbed. Compliance with KRE 613 may have resolved the entire controversy, because upon being confronted with the subtle distinction, Whitaker may have clarified that she meant the same thing in both statements.
Second, because we are reviewing this issue pursuant to the manifest injustice standard of RCr 10.26, rather than undertake an academic and legalistic parsing of the subtle distinction between the two statements and reach a conclusion of whether the latter is in fact inconsistent with the former pursuant to KRE 801A(a)(1), we will instead assume Appellant is correct that there is no significant distinction between the two.
Based upon the presumptions that error occurred as a result of the Commonwealth's failure to comply with KRE 613 and that the two statements were not inconsistent, we nevertheless are persuaded that any error did not rise to the level of a manifest injustice. RCr 10.26. Under the palpable error standard prescribed in Ladriere v. Commonwealth, "reversal is warranted `if a manifest injustice has resulted from the error,' which requires a showing of the `probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law.'" 329 S.W.3d 278, 281 (Ky. 2010) (quoting Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006)). Manifest injustice is found if the error seriously affected the "fairness, integrity, or public reputation of the proceeding." Martin, 207 S.W.3d at 4.
Upon consideration of the totality of the evidence properly admitted against Appellant, we conclude that the admission of Deputy Smith's "impeachment" testimony did not substantially affect the fairness of the trial. The fact that the distinction between the two statements is exceptionally subtle means that it is highly unlikely that the jury would have drawn from it an unfavorable inference about Whitaker's credibility. Any trivial difference between the two statements could not possibly have affected the verdict.
Next, Appellant contends that the trial court erred by sustaining the Commonwealth's Batson challenge to his peremptory strike of Juror 24. Appellant is Caucasian and Juror 24 is African-American. The victim was also African-American. In exercising his peremptory strikes, Appellant struck, four of the remaining six African-American jurors, including Juror 24. Of the three peremptory challenges other than Juror 24, the trial court agreed that two were appropriately challenged; the Commonwealth withdrew its objection to the striking of one of the jurors.
We begin by noting that a preserved Batson error is subject to the usual standards of harmless error analysis. Rivera v. Illinois, 556 U.S. 148 (2009) (holding that there is no federal constitutional right to peremptory challenges; that states are free to decide, as a matter of state law, that a trial court's mistaken denial of a peremptory challenge is reversible error per se; and that states are free to decide, as a matter of state law, that the improper seating of a competent and unbiased juror does not convert the jury into an ultra vires tribunal; and therefore the error can rank as harmless under state law). Unpreserved error, therefore, is also subject to the usual manifest injustice standards.
During voir dire Juror 24 indicated that she had had a relative who was prosecuted by the Jefferson County Commonwealth's Attorney's office about four years ago. The Commonwealth followed up by asking, "and that's something that you could set aside and understand that it doesn't have any relation to this case?" The video recording does not make clear how the Juror responded to this question, though it appears that she indicated that she could. Neither the Commonwealth nor Appellant further questioned Juror 24 regarding her relationship to the defendant or the specifics of the prosecution.
After Appellant listed Juror 24 as a preemptory strike, the following discussion occurred between the trial court, defense counsel, and the Commonwealth:
In Batson, the United States Supreme Court prohibited deliberate racial discrimination during jury selection. Under Batson, we have explained,
McPherson v. Commonwealth, 171 S.W.3d 1, 3 (Ky. 2005) (citations and footnotes omitted). The identical rules and analysis apply in the case of a defendant using a peremptory strike based exclusively upon racial motives. Georgia v. McCollum, 505 U.S. 42, 59 (U.S. 1992) ("We hold that the Constitution prohibits a criminal defendant from engaging in purposeful discrimination on the ground of race in the exercise of peremptory challenges. Accordingly, if the State demonstrates a prima facie case of racial discrimination by the defendants, the defendants must articulate a racially neutral explanation for peremptory challenges."); Wiley v. Commonwealth, 978 S.W.2d 333, 335 (Ky. App. 1998).
The 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) (citation omitted). "`Deference,' of course, does not mean that the appellate court is powerless to provide independent review, Miller-El v. Dretke, 545 U.S. 231 (2005) (holding that the trial court's finding of non-discrimination was erroneous in light of clear and convincing evidence to the contrary), . . . but the ultimate burden of showing unlawful discrimination rests with the challenger." Rodgers v. Commonwealth, 285 S.W.3d 740, 757-58 (Ky. 2009). "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).
When called upon to rationalize the strike of Juror 24, the only viable, race-neutral reason proffered by Appellant's counsel for the strike was his concern that Juror 24 would be biased because a relative had been prosecuted four years earlier and may still be on probation or in custody, implying concern that the Commonwealth may still have some influential impact upon the juror's kinsman. The trial court responded "I don't hear a good reason." As noted, we review the trial court's ultimate Batson determination pursuant to the clearly erroneous standard.
Appellant did not further examine Juror 24 to determine the precise relationship between the juror and the relative; what the charges were; what the disposition was; whether she thought there was anything unjust about the prosecution; and the current status of her relative, i.e., whether in prison or on probation or parole. In his brief, Appellant suggests that Juror 24 might have a son on probation or parole, and thus might have been inclined to favor the Commonwealth in order to curry favor for her son.
Because Appellant's stated reason for striking Juror 24 appears to have been based primarily upon speculation and intuition, the trial court's ultimate decision that to deny the strike, based upon Batson's prohibition against striking jurors for race-based reasons, was not clearly erroneous.
Appellant next contends that the trial court erred when it denied each of his two motions for a mistrial. One of the motions occurred during Baxter's testimony, and the other during Snead's testimony. We address each of the motions in turn below.
The first motion for a mistrial occurred during Baxter's testimony and was founded upon Baxter calling Appellant a "bad man." The relevant testimony was as follows:
A mistrial is an extreme remedy and should be resorted to only when there appears in the record "a manifest necessity for such an action or an urgent or real necessity." Bray v. Commonwealth, 68 S.W.3d 375, 383 (Ky. 2002) (quoting Clay v. Commonwealth, 867 S.W.2d 200, 204 (1993)). "The standard for reviewing the denial of a mistrial is abuse of discretion." Id.
Here, the brief and fleeting reference to Appellant as a "bad man" certainly did not rise to the level of creating a manifest necessity to terminate the trial. Indeed, and while certainly improper testimony, see KRE 404(a), the reference was a rather inconsequential attack on Appellant's character. Further, at the bench following Appellant's objection the trial court offered to admonish the jury concerning the improper characterization, which Appellant declined.
As noted in Matthews v. Commonwealth:
163 S.W.3d 11, 17 (Ky. 2005)(citations omitted).
Thus, with an admonition as an available alternative to a mistrial for this rather innocuous introduction of inadmissible evidence, we conclude the trial court's refusal to grant a mistrial was not an abuse of discretion.
Appellant's second motion for a mistrial occurred during Snead's testimony during direct-examination by the Commonwealth and concerned threats made against the witness apparently warning him not to testify in this case. The relevant testimony was as follows:
Following this exchange Appellant moved for a mistrial based upon hearsay and the Commonwealth's failure to provide the statement during discovery. We believe the evidence, which concerns a threat against a witness to the crime, was admissible, and therefore that the trial court properly denied Appellant's motion for a mistrial.
In Foley v. Commonwealth, 942 S.W.2d 876, 887 (Ky. 1996), we upheld the introduction of evidence that the defendant's wife and father attempted to intimidate a witness of the Commonwealth. In that case we explained the controlling rule as follows:
Id. at 887 (citations omitted). "Evidence that a witness has been threatened or otherwise influenced in an attempt to suppress his testimony is admissible in a criminal prosecution only where the threat was made by, or on behalf of, the accused." Id. at 886. Here, while it is not known with absolute certainty who made the threats, there is strong circumstantial evidence that Appellant, or someone acting on his behalf, did so. While incarcerated and awaiting trial, Appellant said to his ex-wife in a recorded phone call that "his best chance was if the witnesses did not appear against him at trial." That statement creates an obvious link between Appellant and the witness being told to "get amnesia" and "move," and it supports the inference that Appellant was responsible for the threatening communication. Accordingly, admission of Snead's testimony on that matter was proper. No mistrial was required as a result of the testimony.
Appellant next contends that the trial court erred by permitting the Commonwealth to introduce evidence that a sawed-off baseball bat and a dagger knife were found in the rear portion of his vehicle's passenger compartment following the shooting. The Commonwealth introduced pictures of both items as they were discovered in the truck, and also the actual sawed-off bat and knife. Appellant contends that the evidence was irrelevant, and was therefore improperly admitted. The Commonwealth responds that the evidence of the nearby weapons was relevant because it tended to undermine Appellant's claim of self-defense.
To be admitted at trial, the evidence must be relevant. KRE 402. Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." KRE 401. However, even relevant "evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." KRE 403; Moorman v. Commonwealth, 325 S.W.3d 325, 332-33 (Ky. 2010).
Under the facts of this case, the Commonwealth's claim of relevance is weak and unconvincing. We are persuaded that the slight probative value associated with the weapons in the rear of the truck cab is substantially outweighed by the prejudicial effect associated with the admission of the evidence. Their presence does not rebut Appellant's description of the events. Appellant described a sudden and unexpected attack beginning with a punch to his mouth, followed by a gun being pointed at him, and the immediate necessity of grabbing for the gun. The Commonwealth contends that if his claim was true, he would have gone for the bat or knife in the back of the truck rather than grabbing for the gun. That explanation is implausible, but more to the point, it does not rebut his self-defense claim. As we clearly stated in Major v. Commonwealth, "weapons, which have no relation to the crime, are inadmissible. Thus, it was error to introduce these weapons without connection to the crime." 177 S.W.3d 700, 710-11 (Ky. 2005) (citations omitted). Accordingly, the trial court erred by permitting the Commonwealth to introduce evidence concerning the bat and knife.
Nevertheless, this evidence was not particularly critical of Appellant's character and did not link him to prior criminal activity. Thus the erroneous evidence was not inflammatory or otherwise unduly prejudicial. Accordingly, we are persuaded that admission of the evidence did not substantially sway the verdict, and was therefore harmless error. Winstead v. Commonwealth, 283 S.W.3d 678 (Ky. 2009); RCr 9.24.
Appellant next contends that the trial court erred by permitting the Commonwealth to introduce two autopsy photographs depicting the wounds incurred by the victim during the shooting. The first photograph showed the autopsied victim's open and empty chest cavity with a rod depicting the trajectory of the fatal shot into the victim's chest. The other photograph showed the victims cut-open forearm with the underlying muscles and other tissue exposed to depict the bullet wound to this area.
Appellant contends that the gruesomeness of the photographs rendered the photos unduly prejudicial, and that the same information could have been communicated to the jury by medical illustrations depicting the same information. The Commonwealth responds that the circumstances concerning the firing of the shots — whether at close range in the scuffle described by Appellant, or at a distance in cold-blooded murder — was the central issue in the case, and thus the actual autopsy photos were crucial to explaining to the jury that the shots could not have been fired as described by Appellant.
A trial court's evidentiary rulings are reviewed under an abuse of discretion standard. Walker v. Commonwealth, 288 S.W.3d 729, 739 (Ky. 2009). The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). The trial court did not abuse its discretion in admitting the photographs. "The general rule is that a photograph, otherwise admissible, does not become inadmissible simply because it is gruesome and the crime is heinous." Funk v. Commonwealth, 842 S.W.2d 476, 479 (Ky. 1992). "[T]he prosecution is permitted to prove its case by competent evidence of its own choosing, and the defendant may not stipulate away the parts of the case that he does not want the jury to see." Barnett v. Commonwealth, 979 S.W.2d 98, 103 (Ky. 1998).
The photographs were particularly relevant in this case to show the nature and extent of the victim's injuries and the circumstances under which the shots were fired, which was the central issue in the case. See KRE 401. Further, only two photographs were used to illustrate these particular points, and so the evidence was not cumulative and was used appropriately to illustrate an important point. In light of the crucial significance of the photographs in explaining to the jury the forensic conclusions regarding the circumstances under which the gunshot wounds were incurred, and though the photographs were clearly gruesome, we conclude the trial court did not abuse its discretion in finding that KRE 403 did not require the exclusion of the evidence.
Finally, Appellant contends that the trial court erred by granting the Commonwealth's motion in limine to exclude evidence that the victim tested positive for marijuana. Appellant contends that the evidence was relevant because it demonstrated that the victim was a drug user, and therefore had the motive to commit a robbery to get money to buy more drugs.
Appellant's theory is based upon unsupported speculation. While there may be some general correlation between drug use and criminal conduct, there is no evidence that Eldridge's use of marijuana afforded him a motive to rob Appellant. The generality cited by Appellant has no ability to prove that the victim set out to rob Appellant or anyone else, and it was therefore irrelevant. It is well established that a trial court may limit evidence supporting a theory that is speculative or far-fetched, and could confuse or mislead the jury. Commonwealth v. Maddox, 955 S.W.2d 718, 721 (Ky. 1997). The trial court accordingly did not abuse its discretion in excluding the evidence.
For the foregoing reasons, the judgment of the Jefferson Circuit Court is affirmed.
Minton, C.J., Abramson, Cunningham, Scott and Venters, JJ., concur. Noble, J., concurs in part and dissents in part by separate opinion. Keller, J., not sitting.
NOBLE, J., CONCURRING IN PART AND DISSENTING IN PART:
Appellant is white, and the victim is black. At trial, six of the prospective jurors were black, and Appellant tried to exercise a peremptory strike on four of them. The Commonwealth objected on the grounds of Batson v. Kentucky, 476 U.S. 79 (1986), and asked the Appellant to establish the race neutral reasons for his peremptory strike. On two of the four, the trial court was satisfied with the reasons Appellant gave; on one, the Appellant withdrew his proposed strike.
This left Juror 24. This juror had stated in voir dire that a relative had been prosecuted by the Commonwealth's Attorney about four years earlier. She also had told the prosecutor she could be fair. In response to the Batson challenge, Appellant's counsel stated a concern about the juror having relatives who had just been prosecuted four years ago, and further stated, "With somebody being prosecuted four years ago, that's the other thing I was concerned, was that person on probation or in custody?" At this point, the trial court summarily granted the Commonwealth's Batson challenge.
It is beyond question that race is not and cannot be the proper basis for a peremptory strike. This has clearly been the law since at least 1880. See Strauder v. West Virginia, 100 U.S. 303 (1880). But this same law, as laid out in the Batson case, does not automatically prevent the use of a peremptory strike on persons from a protected class. Instead, Batson, established a process that protects against racial bias but also allows fair exercise of peremptory strikes. The Supreme Court recognized that a litigant "ordinarily is entitled to exercise permitted peremptory challenges `for any reason at all, as long as that reason is related to his view concerning the outcome' of the case to be tried," Batson, 476 U.S. at 89 (quoting United States v. Robinson, 421 F.Supp. 467, 473 (D. Conn. 1976)), but as the issue was stated in Batson, "the State's privilege to strike individual jurors through peremptory challenges . . . is subject to the commands of the Equal Protection Clause," id.
This reasoning led the Court to lay out a process that requires a prima facie showing that gives rise to "an inference of discriminatory purpose." Id. at 94. Upon this showing, "the burden shifts to the [party exercising the peremptory strike] to explain adequately the racial exclusion," id., often referred to as stating racially neutral reasons for the strike.
The analysis can be complicated by the fact that the stated reason usually is racially neutral on its face. And, because it is a peremptory challenge of a juror, the Batson Court emphasized that the "explanation need not rise to the level justifying exercise of a challenge for cause." Id. at 97. Indeed, the nature of a peremptory challenge is that the reason for the strike is not good enough for a strike for cause. A peremptory strike is simply a privilege granted by a state court that allows a juror to be struck based on a bad feeling or "no reason at all," although in Kentucky we have found that it is a substantial right. Shane v. Commonwealth, 243 S.W.3d 336, 341 (Ky. 2007). It just cannot be used based solely on the race of the juror.
So, even if the stated reason doesn't make a lot of sense to the judge, or as the judge said here, "I don't hear a good reason," the Batson decision requires more: there must be evidence that the racially neutral reason stated for the strike is a sham, or pretext, and other factors exist which allow a trial judge to conclude that the reason cannot be taken on its face.
This has to be more than the judge's gut feeling. Otherwise, the judge is not applying a legal standard or applying sound discretion, and is instead simply calling the attorney who stated the racially neutral reason a liar. It is not an undue burden to have the party opposing the strike state evidentiary reasons why the racially neutral statement is pretext. In fact, the law requires it. Nor is it an undue burden for the trial court to state its reasons for finding pretext. Without such, an appellate court cannot make a meaningful review, and must resort to putting words in the trial judge's mouth in order to divine what he was thinking.
I do not argue that the right to exercise a peremptory strike is more important than ensuring racial fairness; it is clearly not. But neither is it fundamentally fair to inject racially discriminatory motivation into a trial when there is none. For this reason, Batson gives a trial court "the duty to determine if the [party opposing the strike] has established purposeful discrimination." Batson, 476 U.S. at 98 (emphasis added).
Here, all the trial court said was "I don't hear a good reason." He said nothing about purposeful discrimination. He gave no reason why he thought the stated reason for the strike was not neutral, or what facts in evidence led him to believe there was a discriminatory motive. In fact, the sequence of events leading up to this strike would tend to argue to the contrary: the trial court found sufficient neutral reasons to strike two of the black jurors, and the Appellant withdrew his challenge on a third. Thus the record to that point did not indicate a racially discriminatory animus.
And it is not totally absurd for Appellant to be concerned about a juror's past experiences with the Commonwealth's Attorney, nor with the question of whether her relatives were still in jail or had received probation, maybe on the Commonwealth's Attorney's recommendation, which might have biased her in the Commonwealth's Attorney's favor. All of these "maybes" or "mights" certainly would not support a strike for cause. But they are more than adequate for a peremptory strike, and in addition are racially neutral on their face.
What is lacking in the trial court's analysis is an articulation of how there is any purposeful racial motivation for the strike, or how the reason stated is pretextual. Without such, the trial court abused its discretion.
A fair trial is perhaps the last bastion of decency and order in an increasingly chaotic world. This means being fair to both a defendant and the Commonwealth, and for this reason the Batson challenge may be brought by either side. Here, it was the Commonwealth who challenged the Appellant's peremptory strike of Juror 24. It was a fair challenge, because the Appellant is white and the juror is black, as was the victim. It is essential to justice that such peremptory strikes be examined for open or hidden bias.
But if that bias cannot be established as more likely than not, then to disallow the strike defeats the purpose of the Batson hearing every bit as much as ignoring clear bias would. No bias having been established here, I would reverse and remand for a new trial that allows a fair jury selection to both sides.
