Not to be Published

MEMORANDUM OPINION OF THE COURT

On the night of June 18, 2008, around midnight, Jackie Corman was driving down Alexandria Drive on her way home to her apartment. Appellant, Antonio Smither, was also walking down Alexandria Drive and followed Corman. In front of her apartment, Corman was attacked by Appellant.

Antonio Martinez-Vila, Gorman's boyfriend, was inside the apartment with some of his friends at the time. He heard screaming, came to the door, and saw Appellant strike Corman and run off with her purse. Martinez-Vila and his companions chased Appellant into some nearby bushes and surrounded him. When Martinez-Vila dove into the bushes after him. Appellant fled to a nearby fire station. He punched through the glass in a window, getting the attention of a fireman who held him until the police arrived. Martinez-Vila and a neighbor later retrieved Gorman's purse from the bushes.

Appellant was arrested and later tried before a Fayette County jury. The jury found Appellant guilty of robbery in the second degree and being a persistent felony offender (PFO) in the first degree. He was sentenced to ten years imprisonment on the robbery charge, enhanced to twenty years by virtue of the PFO conviction. He now appeals as a matter of right. Ky. Const. § 110(2)(b).

Expert testimony regarding eyewitness identifications

Appellant first argues that portions of his expert witness' testimony were improperly excluded. The defense retained the assistance of Dr. Solomon Fulero, an expert in the field of eyewitness identifications. A Daubert hearing was held to assess the admissibility of the proposed testimony, at which the Commonwealth stipulated Dr. Fulero's qualifications. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The primary issue was the relevancy of his testimony. Following the hearing, the trial court reserved its ruling in order to consider the issue in light of the proof adduced at trial.

At trial, four witnesses testified that they identified Appellant to police on the day of the robbery. Martinez-Vila testified that he chased Appellant from the apartment, never losing sight of him until he was apprehended. He further testified that he recognized Appellant by his hair and clothing. Jackie Corman also identified Appellant at the fire station, as well as in the courtroom. James Arthur and Sue Ann Russell both testified that a man ran by them to the fire station while being chased by a group of Hispanic males. Both acknowledged that they did not see the man's face, but identified him at the fire station based on features such as his hair style and clothing. Because neither witnessed the attack, the testimony of both Arthur and Russell was simply that the man they saw being chased was Appellant.

Following this testimony, the trial court ultimately ruled that Dr. Fulero could provide opinion testimony regarding Jackie Gorman's identification of Appellant. This included expert testimony regarding the different factors that adversely affect a witness' ability to perceive and remember an event. The trial court disallowed testimony regarding unconscious transference, the reliability of eyewitness identifications, statistics concerning DNA exonerations in cases based upon eyewitness testimony, and conclusions as to the reliability of eyewitnesses. Finally, the trial court did not permit testimony specifically relating to Martinez-Vila's identification, concluding that it was irrelevant because Martinez-Vila testified that he never lost sight of Appellant during the chase.

As the trial court acknowledged, expert witness testimony regarding the reliability of eyewitness identification is admissible in Kentucky. Commonwealth v. Christie, 98 S.W.Sd 485, 488 (Ky. 2002). "Expert opinion evidence is admissible so long as (1) the witness is qualified to render an opinion on the subject matter, (2) the subject matter satisfies the requirements of Daubert, (3) the subject matter satisfies the test of relevancy set forth in KRE 401, subject to the balancing of probativeness against prejudice required by KRE 403, and (4) the opinion will assist the trier of fact per KRE 702." Stringer v. Commonwealth, 956 S.W.2d 883, 891 (Ky. 1997). The trial court's decision with respect to the admissibility of expert testimony is reviewed for abuse of discretion. Christie, supra.

Here, the trial court did not abuse its discretion because the excluded portions of Dr. Fulero's testimony were not relevant. KRE 401. Martinez-Vila testified that he never lost sight of Appellant during the chase. In such circumstances, where identification does not rest upon memory or recall, eyewitness identification testimony is irrelevant. The trial court properly excluded this portion of Dr. Fulero's testimony.

The trial court also did not abuse its discretion in concluding that the remaining excluded portions of Dr. Fulero's testimony were equally irrelevant. Testimony concerning unrelated DNA exonerations in cases based upon eyewitness testimony bore little relevance and certainly would have confused the jury, particularly where no DNA evidence was presented against or by Appellant. Testimony concerning unconscious transference was equally irrelevant. Unconscious transference is the phenomenon where a witness will mis-identify someone the witness is familiar with from another, unrelated situation. The trial court correctly ruled that unconscious transference was irrelevant where there was insufficient evidence that Appellant lived in the same area as Corman and Martinez-Vila, or that they had ever seen him before. Finally, Dr. Fulero was properly prohibited from testifying about the reliability of eyewitness identifications. Where Dr. Fulero was permitted to explain the different factors that can affect eyewitness recall, it was within the province of the jury to assess the reliability of Corman and Martinez-Vila's identifications and testimony.

The trial court properly admitted those portions of Dr. Fulero's testimony that were relevant to Gorman's eyewitness identification of Appellant. In so doing, Appellant was afforded the opportunity to present a full defense and to sufficiently attack the validity of Gorman's identification. There was no abuse of discretion.

Instruction on PFO in the second degree

Appellant argues that the trial court erred in not giving an instruction on PFO in the second degree as a lesser included offense of PFO in the first degree. A trial court is only required to give a lesser included offense instruction where "the evidence would permit a juror reasonably to conclude that . . . the defendant was not guilty of the charged offense but was guilty of the lesser one." Lawless v. Commonwealth, 323 S.W.3d 676, 680 (Ky. 2010) (citing Fredline v. Commonwealth, 241 S.W.3d 793 (Ky. 2007); Fields v. Commonwealth, 219 S.W.3d 742 (Ky.2007)). When dealing with PFO in the first degree charge, if there is no evidence to put the prior convictions at issue, an instruction on PFO in the second degree is not required. Payne v. Commonwealth, 656 S.W.2d 719, 721 (Ky. 1983). We will review the trial court's decision not to issue a jury instruction under the abuse of discretion standard. Crain v. Commonwealth, 257 S.W.3d 924 (Ky. 2008).

In this case, the Commonwealth submitted proof of four prior felonies and none were denied or challenged. The parties agreed that, under KRS 532.080(4), two of those four convictions should be combined and considered as one for purposes of the PFO in the first degree charge. In order for the jury to have concluded that Appellant was not guilty of being a PFO in the first degree, but was guilty of being a PFO in the second degree, they would have had to also conclude that he had committed only one of the three prior felony convictions. KRS 532.080. There was no distinction in the weight of the evidence of the various convictions. A juror could not reasonably choose to disregard two of the three convictions while choosing to believe the other. "[I]t does not follow that the jury has the right to be capricious and ignore one conviction and believe the other where the convictions are not denied." Payne, 656 S.W.2d at 721. Accordingly, the trial court did not abuse its discretion in denying the request for an instruction on PFO in the second degree.

As a corollary argument, Appellant urges this Court to reconsider Payne in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi, the U.S. Supreme Court held that the Fourteenth Amendment requires that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490. In Kentucky, the jury determines the validity of the prior convictions beyond a reasonable doubt; therefore, no Apprendi violation occurs. See KRS 532.080.

Directed verdict on persistent felony offender in the first degree

Appellant next argues that the trial court erred in denying his motion for a directed verdict on the PFO in the first degree charge. On a motion for directed verdict,

Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). On appellate review, the test of a directed verdict is whether, "if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt." Id.

A finding of guilt, under KRS 532.080(3), for PFO in the first degree requires at least two prior felony convictions. Here, Appellant correctly notes that two of the four convictions that the Commonwealth read into the record should have been combined pursuant to KRS 532.080(4). However, even had the two convictions been combined, the Commonwealth still had three convictions to present to the jury. When considering this evidence in a light most favorable to the Commonwealth, it was not unreasonable for the jury to infer that Appellant committed at least two of the three prior felony convictions and, therefore, fmd him guilty of being a persistent felony offender in the first degree. Consequently, the trial court did not err in denying the motion for directed verdict.

Voir Dire

Appellant argues that the trial court erred in failing to excuse Juror B.T. for cause. A party may complain on appeal where a trial court erroneously denies the party's motion to strike a juror for cause, and the party subsequently exercises a peremptory strike on the juror. See Shane v. Commonwealth, 243 S.W.3d 336, 340 (Ky. 2007). Later, in Gabbard v. Commonwealth, this Court further explained that, in order to bring a claim under Shane, the party "must identify on his strike sheet any additional jurors he would have struck." 297 S.W.3d 844, 854 (Ky. 2009).

Prejudice is presumed where at least one of the prospective jurors the party would have struck did, in fact, sit on the jury. Id. at 855. In such situations, if a trial court denies a defendant's motion to strike the juror for cause and the juror does, in fact, sit on the jury, a party is not required to exercise a peremptory strike to remove the juror in order to complain on appeal. See Thomas v. Commonwealth, 864 S.W.2d 252, 259 (Ky. 1993). However, the party is still required to exhaust all of his peremptory challenges. Id. Here, Appellant's motion to strike B.T. was denied, and she was later empanelled on the jury. Further, Appellant exhausted all of his peremptory challenges on other veniremen. Consequently, his claim of error is preserved and will be considered.

During voir dire. Juror B.T. indicated that she was the ex-stepmother of Officer Thomas, a witness at trial. Appellant moved to strike Juror B.T. for cause, which the trial court denied. Appellant argues that the trial court erred in failing to excuse Juror B.T. for cause based on an imputed bias, as well as her responses to voir dire questioning. "A determination as to whether to exclude a juror for cause lies within the sound discretion of the trial court, and unless the action of the trial court is an abuse of discretion or is clearly erroneous, an appellate court will not reverse the trial court's determination." King v. Commonwealth 276 S.W.3d 270, 278 (Ky. 2009) (quoting Pendleton v. Commonwealth, 83 S.W.3d 522, 527 (Ky.2002)). A court should excuse a prospective juror for cause "when there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence." RCr. 9.36(1).

The trial court was not required to dismiss Juror B.T. solely because of her previous relationship with Officer Thomas. Although some relationships may impute a bias that may not be overcome, this Court has held that "a party — someone who presumably might have had a close relationship with a party at one time but whose relation by marriage had ended sometime in the past — should not necessarily be dismissed for cause." Campbell v. Commonwealth, 260 S.W.3d 792, 800 (Ky. 2008) (citing Ward v. Commonwealth, 695 S.W.2d 404, 407 (Ky. 1985)). In Ward, a former brother-in-law of the prosecuting attorney was not automatically disqualified from sitting on the jury based on imputed bias. Id. at 407.

Juror B.T.'s stepparent relationship to Officer Thomas had ended completely. She and Officer Thomas' father had divorced in 2003, and she had only seen Officer Thomas once in the past fourteen years. Juror B.T. explained that, even while married to his father, Officer Thomas stayed at his mother's house and never lived with her and his father. She said there were no feelings "at all" between them. Due to the attenuated nature of the relationship, the trial court did not abuse its discretion in rejecting the notion that Juror B.T. was unqualified based solely on her prior relationship with Officer Thomas.

Nor did Juror B.T.'s responses render her unqualified. "Prospective jurors are . . . qualified to sit on a case provided reasonable grounds exist to believe they can render a fair and impartial verdict based solely on the evidence adduced." Maxie v. Commonwealth, 82 S.W.3d 860, 862 (Ky. 2002) (citing Sanders v. Commonwealth, 801 S.W.2d 665 (Ky. 1991); Jones v. Commonwealth, 737 S.W.2d 466 (Ky.App. 1987)). To make this determination, a court should "weigh the probability of bias or prejudice based on the entirety of the juror's responses and demeanor." Shane 243 S.W.3d at 338. Trial judges' decisions must be given deference since they are in the best position to see and hear the jurors' responses. Commonwealth v. Lewis, 903 S.W.2d 524, 527 (Ky. 1995).

Looking at the totality of Juror B.T.'s responses, even in light of her prior relationship with a witness, we do not believe that the trial court abused its discretion in denying Appellant's motion to strike for cause.

For the abovementioned reasons, the judgment of the Fayette Circuit Court is hereby affirmed.

All sitting. All concur.