May 2002 - Department of Public Advocacy

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that evidence that Bray fled to Canada was admissible, but
anything pertaining the television show should be kept out
on re-trial.
“Unlawful Flight To Avoid Prosecution”
Warrant Inadmissible
Bray argued that testimony that he had been charged with
the collateral federal crime of unlawful flight to avoid prosecution
should not have been admitted into evidence. The
Commonwealth claimed that such testimony was allowed
under Commonwealth v. Howard, Ky., 287 S.W.2d 926 (1955)
as a “fact and circumstance” showing evasion and resisting
arrest. The Court held that the fact that Bray had fled that
country and had been captured through the coordination of
the United States and Canadian authorities was properly admitted.
However, that Court found that the collateral criminal
charge itself was not a “fact and circumstance” surrounding
Bray’s fleeing the country and was highly prejudicial and
irrelevant to the proceedings.
Second-Degree Arson Instruction
Should Have Been Given;
No Directed Verdict On First-Degree Arson
Bray argued that he was entitled to a second-degree arson
instruction. Since the two victims were already dead from
gunshot wounds before the home was set on fire, the jury
could have believed that the house was not inhabited or
occupied by living persons. The Commonwealth maintained
that the first-degree arson statute is designed to cover the
destruction of “dwellings,” while the second-degree arson
statute is designed to cover other situations such as arson
for profit. The Court held that the jury should have been
instructed on second-degree arson, noting that the evidence
in the case could have permitted the jury to conclude that the
victims had been killed before the fire was started. However,
since the evidence was inconclusive as to whether the victims
were living or dead at the time the house was set afire,
the Court held that the trial court did not err by failing to
direct a verdict on first-degree arson.
Statement Opened The Door To
Questions About Prior Shooting Incident
The Court also held that Candie Bray’s statement on crossexamination
that Bray was afraid of Mary York because she
was “out to get him” opened the door to further questioning
regarding the meaning of her statement. Therefore, there
was no error when the Commonwealth responded that it was
Bray who assaulted Mary and continued to question Candie
concerning the events of the assault which involved a “shooting
incident” for which Bray was criminally charged.
THE ADVOCATE Volume 24, No. 3 May 2002
Bennie L. Gamble, Jr. v. Commonwealth,
Ky., __ S.W.3d __ (02/21/02)
(Reversing and remanding for a new trial)
Gamble, Chasidy Bradley and Barbara Neill were arrested and
indicted for the robbery and murder of William Tolbert. While
Gamble maintained his innocence, Bradley and Neill gave
statements about their involvement, as well as Gamble’s, in
the crimes. Neill eventually pled guilty and testified against
Bradley and Gamble in exchange for a 25-year prison sentence.
Bradley and Gamble were tried together. Both were
convicted of first-degree robbery and murder. Bradley received
a 25-year sentence. Gamble was sentenced to life in
prison. Gamble is African-American, while the victim was
Caucasian, as are Bradley and Neill.
Batson Objection Timely, But No Batson Violation Found
The Commonwealth used its peremptory challenges to strike
three of four African-American jurors from the venire. Gamble
challenged the Commonwealth’s use of its strikes as racially
motivated. The Court found Gamble’s Batson objection to
be timely made where defense counsel raised the objection
as soon as practicable after the 14 jurors names were called
and before the jury was sworn. However, the Court found no
Batson violation where the Commonwealth offered the following
grounds for its peremptory challenges: the prosecutor
tried a murder case against a prospective juror’s son who
was ultimately convicted of murder; a prospective juror’s
brother had successfully sued and recovered a judgment
against a police officer/department for false arrest; a prospective
juror was approached by a witness in the case and
had spoken about the case, and she had recently been
stopped by the police and charged with a series of traffic
offenses. The Court noted that “[t]he trial court may accept
at face value the explanation given by the prosecutor depending
upon the demeanor and credibility of the prosecutor.”
Stanford v. Commonwealth, Ky., 793 S.W.2d 112 (1980).
Trial Court Erred In Refusing
To Strike Juror With Racist Views
On appeal, Gamble argued that the trial court erred in failing
to exclude racist jurors for cause, compelling him to exercise
his peremptory challenges on incompetent jurors. During
voir dire, Juror #54 indicated that he had moved from his prior
neighborhood because he had a young daughter and he
“never felt safe” because there were “black guys” always
around the house. He indicated strong opposition to interracial
relationships, stating that he generally thought of people
involved in such relationships as low class, and of low class
people as more likely to commit crime. Juror #54 further stated
that he could not deny his prejudices and that upon entering
the courtroom he automatically assumed Gamble to be the
defendant because he “figured a black had to be the person
accused.” Despite having made these statements, when asked
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