NOT TO BE PUBLISHED
OPINION
TAYLOR, JUDGE.
Marcus Lavar Porter appeals from the May 19, 2010, Jefferson Circuit Court judgment of conviction and sentence. Porter was convicted of manslaughter in the second degree and persistent felony offender in the first degree, and subsequently sentenced to a total of fifteen-years' imprisonment. On appeal, Porter alleges error in the trial court's rulings on a juror peremptory challenge and failure to suppress the testimony of a prosecution witness. Because we find no error with the trial court's ruling regarding the juror strike and no abuse of discretion with regard to the trial court's evidentiary ruling, we affirm.
On March 26, 2008, Porter shot and killed D'Juan Swain. Porter was indicted by the Jefferson County Grand Jury for murder, possession of a handgun by a convicted felon, tampering with physical evidence, and being a persistent felony offender in the first degree ("PFO I"). Porter was tried jointly with Antonio Healy, who was also present when Swain was shot. At trial, Porter testified that he had shot Swain but had done so because he was afraid that Swain was going to kill him.
On November 20, 2009, the jury returned a verdict finding Porter guilty of manslaughter in the second degree and not guilty of tampering with physical evidence. Porter was subsequently found not guilty of possession of a handgun by a convicted felon. Following a retrial of the PFO proceeding and penalty phase in April 2010, Porter was also found to be guilty of PFO I and given a fifteen-year sentence. This appeal followed.
On appeal, Porter first argues that the trial court committed reversible error by allowing a peremptory challenge against a juror, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L. Ed. 2d 69 (1986). Prior to the beginning of Porter's trial, counsel for Porter challenged the Commonwealth's use of peremptory strikes against several African-American jurors, based on Batson.
Batson established a three-step process for determining whether a prosecutor's peremptory challenges violate the Equal Protection Clause. First, the defendant must show a prima facie case of racial discrimination. If the trial court is satisfied with the defendant's showing, the burden shifts to the prosecutor to state race-neutral reasons for the peremptory strikes. The trial court must then determine whether the defendant has sufficiently proven purposeful discrimination.
Thomas v. Com., 153 S.W.3d 772, 777 (Ky. 2004) (citing to Batson, 476 U.S. at 93-98, 106 S. Ct. at 1722-24).
Porter appeals from the permitted strike of only one juror, juror number 103926. In response to the Batson challenge, the Commonwealth argued that juror number 103926 had put his head down, crossed his arms over his chest, closed his eyes, and appeared to fall asleep several times during voir dire. The Commonwealth articulated a concern that he would not pay attention during trial. The Commonwealth also argued that a white female juror had been struck for the same reason. Counsel for Porter argued that she had closely observed juror number 103926 during the proceeding, because he had failed to respond during voir dire, and that she had not observed him sleeping in the courtroom. Porter's co-counsel and Porter also stated that they had not observed the juror sleeping in the courtroom. The trial court found that the Commonwealth had presented a race-neutral reason for its peremptory strike of juror number 103926 and denied Porter's Batson challenge.
The trial court is afforded great deference with regard to its ruling on Batson challenges and its ruling will stand unless found it to be clearly erroneous. See Thomas v. Com., 153 S.W.3d 772. Porter argues that the Commonwealth's proffered reason for striking juror number 103962 was insufficient to overcome a Batson challenge because the juror did not respond to any questions during voir dire and the trial court did not determine whether the inattentive behavior had taken place. In support of this argument, Porter cites to the case of Washington v. Commonwealth, 34 S.W.3d 376 (Ky. 2000), in which the Supreme Court of Kentucky opined that a trial judge must evaluate the Commonwealth's purported reasons behind a peremptory strike and not just accept them at face value. The Supreme Court's concern in Washington arose when the Commonwealth's prosecutor initially argued that he had not struck a particular juror, but it was later shown that he had. Id. The prosecutor subsequently offered a string of proffered reasons for the strike which were found to be unacceptable by the trial court but accepted nonetheless as race neutral. Id.
The facts in the case sub judice are not as extreme as those in Washington. The Commonwealth offered a race-neutral reason: the juror in question appeared disinterested; and the trial court determined that Parker had failed to show purposeful discrimination by the Commonwealth. Such peremptory strikes have traditionally been allowed. See, e.g., Braxton v. Gansheimer, 561 F.3d 453 (6th Cir. 2009) (exclusion of juror based upon apparent disinterest was permissible). Given that the Commonwealth had struck another juror for the same reason and that there was no indication that the strike was based on race, we find no error with the trial court's ruling on Parker's Batson challenge.
Parker further argues that the trial court erred in its decision because it did not actually observe the juror nodding off. We disagree. After appropriate inquiry, the trial court explicitly noted that it was impossible for either the attorneys or the court, to continuously observe the juror in question during the entire proceeding. Although counsel for Porter testified that he did not observe the juror disregarding the proceedings, the court nonetheless chose to accept the alleged observations of the Commonwealth Attorney. To do so was clearly within the court's discretion and we therefore find no error. See Thomas v. Com., 153 S.W.3d 772.
Parker's second argument on appeal is that the trial court erred by allowing prior consistent statements of witness Ronrico Crawford. Our standard of review for admission of evidence is whether the trial court abused its discretion. Com. v. English, 993 S.W.2d 941, 945 (Ky. 1999). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Id.
Crawford, who was present at the March 26, 2008, shooting, did not initially give a statement to police. Crawford was stopped on April 18, 2008, by Officer Billy Clark, who informed Crawford that Detective Roy Stalvey wished to speak to him. On April 25, one month after the shooting, Crawford met with Detective Stalvey and gave his account of the March 26, 2008, events. Crawford's friend and Swain's girlfriend, Ranisha Morgan, accompanied Crawford to the police station. Crawford identified Porter as the shooter and told Detective Stalvey that Healy handed a gun to Porter and Porter then shot Swain. Crawford testified at trial that he and Swain were close, that they saw each other every day, and that Crawford would do anything for Swain and Swain's family.
At trial, counsel for Porter attempted to show that Crawford's version of the shooting incident was fabricated, as evidenced by his loyalty to Swain and his family. In response to the attack on Crawford's credibility, the Commonwealth introduced the testimony of Swain's mother, Malitha White. White testified that Crawford attended Swain's funeral where he disclosed to her that Porter shot Swain after being handed a gun by Healy. The Commonwealth also offered the testimony of Morgan, who testified that Crawford had told her the same story of the March 26, 2008, shooting. Parker now challenges the use of White and Morgan's prior consistent statements.
Prior consistent statements of witnesses create an exception to the hearsay rule and may be introduced in order to rebut a claim of witness testimony fabrication. Kentucky Rules of Evidence 801A(a)(2). Porter argues that Crawford was only "minimally impeached" and therefore the prior consistent statement exception was not triggered. We disagree. Porter used Crawford's testimony to directly challenge his account of the March 26, 2008, shooting, not to generally challenge Crawford's truthfulness. Counsel for Porter further alleges that Crawford's version of the events was motivated by the influence of Swain's family for retaliation against Porter.
The Kentucky Supreme Court has held that prior consistent statements are admissible if the witnesses prior statements were made before a motive for fabrication existed. Smith v. Com., 920 S.W.2d 514, 517 (Ky. 1995). The Court reiterated that, in general,
a witness cannot be corroborated by proof that on previous occasions he has made the same statements as those made in his testimony. Where, however, a witness has been assailed on the ground that his story is a recent fabrication, or that he has some motive for testifying falsely, proof that he gave a similar account of the matter when the motive did not exist, before the effect of such an account could be foreseen, or when motive or interest would have induced a different statement, is admissible.
Id. (emphasis in original) (quoting Eubank v. Com., 210 Ky. 150, 275 S.W. 630, 633 (1925)). At the time that Crawford relayed the March 26, 2008, events to White and Morgan, he had not yet spoken to the police and had actively chosen not to. Given Crawford's reluctance to initially speak to the police about the shooting, there is no evidence that Crawford's statements to White and Morgan were induced by motive or improper influence. In fact, Crawford's statements to White and Morgan took place just days after the shooting whereas his statement to Detective Stalvey took place almost a month later. Accordingly, we hold that the trial court did not abuse its discretion when it allowed the prior consistent statements of White and Morgan to rebut the claim that Crawford's testimony was based on improper motive or influence.
For the foregoing reasons, we affirm the Jefferson Circuit Court's May 19, 2010, judgment of conviction and sentence.
ALL CONCUR.
