Released for Publication January 8, 2015.
[Copyrighted Material Omitted]
ON APPEAL FROM CHRISTIAN CIRCUIT COURT. HONORABLE ANDREW C. SELF, JUDGE. NO. 12-CR-00367.
FOR APPELLANT: Roy Alyette Durham, II, Assistant Public Advocate, Department of Public Advocacy.
FOR APPELLEE: Jack Conway, Attorney General of Kentucky; Mathew Robert Krygiel, Assistant Attorney General, Office of the Attorney General, Office of Criminal Appeals.
OPINION OF THE COURT BY JUSTICE VENTERS. Minton, C.J., Abramson, Keller, Noble and Scott, JJ., concur. Cunningham, J., dissents by separate opinion.
Appellant, Antonio Michael Johnson was a convicted felon on May 28, 2011, when he had an altercation with his girlfriend. During the incident, he made threats against his girlfriend and her son, and he assaulted his girlfriend by twice slamming her head into a wall. He also fired several shots from a .22 caliber handgun. Police later discovered the .22 caliber handgun in Appellant's vehicle along with a .44 caliber handgun with the serial number scratched off.
Following a jury trial in the Christian Circuit Court, Appellant was convicted of third-degree terroristic threatening, two counts of possession of a handgun by a convicted felon, possession of a defaced firearm, and of being a first-degree persistent felony offender. He was sentenced to a total of twenty-year' imprisonment. He appeals as a matter of right.
As grounds for relief from the judgment, Appellant contends that (1) the trial court erred by failing to dismiss the charges or, alternatively, to grant a continuance, based upon a violation of the 180-day speedy trial provision contained in the Interstate Agreement on Detainers (IAD), KRS 440.450 -- KRS 440.510; (2) a Batson -violation occurred as a result of one of the peremptory strikes made by the Commonwealth; and (3) the prosecutor made improper statements about him during his closing argument.
For the reasons explained below we conclude that a Batson violation occurred, which, under the circumstances of this case, requires us to vacate Appellant's conviction, and remand the case to the Christian Circuit Court for a new trial. We address Appellant's other issues that may arise again in the circuit upon remand.
I. THE INTERSTATE AGREEMENT ON DETAINERS, KRS 440.450 -- KRS 440.510, WAS NOT VIOLATED
Appellant argues that the trial court erred by failing to dismiss the charges based upon a violation of the 180-day speedy trial requirement of KRS 440.450 Art. III(1) . Appellant contends that he timely and adequately filed his paperwork to invoke the IAD 180-day trial requirement, and that the court and the Commonwealth thereafter failed to bring him to trial within the 180-day limit. Alternatively, Appellant contends that the trial court violated the IAD by granting the Commonwealth's motion for a continuance which delayed his trial beyond the 180-day limit. We begin our review with a summary of the relevant chronology.
Following the altercation of May 28, 2011, an arrest warrant was issued for Appellant; however, he could not be immediately located. In November 2011, Appellant was arrested and incarcerated in the Montgomery County Jail in Clarksville, Tennessee. After learning of his incarceration, the Christian County Attorney filed an IAD detainer with the Montgomery County Jail, pursuant to KRS 440.450 Art. III(1).
On May 8, 2012, after the detainer had been lodged, Appellant invoked the IAD's 180-day trial provisions by having the warden of the jail mail his IAD trial request forms to the Christian Circuit Court Clerk. The forms were delivered on May 11, 2012; 180 days from that delivery date was November
Although the detainer had been lodged by the Christian County Attorney, Appellant's IAD paperwork identified the Christian County Commonwealth's Attorney as the " Prosecuting Officer." Consequently, the applicable forms were delivered to that office rather than to the County Attorney's office. Appellant now concedes that he incorrectly designated the Commonwealth's Attorney rather than the County Attorney as the " Prosecuting Officer" for receipt of his IAD trial request.
Appellant was indicted in September, 2012. Although his defense counsel, the prosecutor, and the trial judge were each unaware of Appellant's IAD filing, a trial date was set for November 5, 2012. At a subsequent pretrial status conference, the IAD filings were discovered but it was initially perceived to be of no import because the trial date was set two days prior to the expiration of the 180-day IAD deadline. However, shortly before trial, the Commonwealth was unable to serve the primary victim with a subpoena. The prosecutors believed she was avoiding service because she was afraid of Appellant. For that reason, the Commonwealth moved for a continuance; the Appellant objected to the postponement of the trial.
The trial court granted a limited continuance pursuant to KRS 440.450 Article III(1) in order to determine the validity of Appellant's IAD trial request and whether " good cause" existed for granting the Commonwealth's request for a continuance. Soon thereafter, the trial court entered an order concluding that by addressing his IAD request notice to the wrong prosecuting official, Appellant had failed to comply with the IAD, and his request for trial within 180-days was ineffective. The trial court also held that " [e]ven if [Appellant] had strictly complied with the IAD, the Commonwealth has shown good cause for a continuance" due in part to " the difficulty in locating and obtaining the presence of its key witnesses." The trial was eventually held on January 24, 2013, 258 days after Appellant's IAD forms were delivered to the Christian Circuit Court Clerk's office, and less than five months after his indictment.
The 180-day time period established by the IAD does not commence until a detainee's request for final disposition of the charges against him has actually been delivered to the appropriate court and to the prosecuting officer that lodged the detainer against him. Fex v. Michigan, 507 U.S. 43, 52, 113 S.Ct. 1085, 122 L.Ed.2d 406 (1993). Article III of the IAD, codified at KRS 440.450(1) requires that in order to invoke the 180-day IAD rule, a detainee inmate, inter alia, " shall have caused to be delivered to the prosecuting officer. . . his request for a final disposition to be made of the indictment, information or complaint[.]" Pursuant to KRS 440.450(2), he does this by giving his request for final disposition to the " warden," or other official having custody of him, who must then forward the IAD request as directed by the detainee's paperwork. Because it is the detainee who " shall have caused" the delivery of the IAD forms to the proper
prosecuting officer, the statutory text clearly places the responsibility for the accuracy of the notice upon the prisoner. See Clutter v. Commonwealth, 322 S.W.3d 59 (Ky. 2010).
In Clutter, we emphasized the necessity of strict compliance with the procedures of Article III of the IAD. Id. at 63-64, citing Ellis v. Commonwealth, 828 S.W.2d 360, 361, 39 3 Ky. L. Summary 14 (Ky. 1992). We further noted, however, that a limited exception to the requirement of strict compliance applied, " only when strict compliance is thwarted by a public official despite a prisoner's having done everything possible to achieve strict compliance." Id. at 64.
In this case it was the Appellant himself, not a public official, who caused the IAD paperwork to be delivered to the wrong prosecuting officer. Accordingly, Appellant was not " thwarted by a public official despite [his] having done everything possible to achieve strict compliance." As such, we are persuaded that the trial court properly concluded that Appellant had not strictly complied ...