Date: 07-20-2007

Case Style: Rosietta Taylor and Linda Cannon, Co-Administrators of the Estate of James Edward Taylor v. Det. Mike O'Neil, Division of Police; City of Louisville/Jefferson County Metro Government

Case Number: 2005-CA-001301-MR

Judge: Wine

Court: Supreme Court of Kentucky on appeal from the Circuit Court of Jefferson County

Plaintiff's Attorney:

Aubrey Williams, Louisville, Kentucky

Defendant's Attorney:

Frank F. Chuppe, Michael W. McClain and Jennifer Starr, Louisville, Kentucky

Description:

On December 23, 2003, Rosietta Taylor and Linda Cannon brought a wrongful death action on behalf of the Estate of James Edward Taylor ("Estate") against the City of Louisville ("City"), the Louisville Police Department ("LMPD") and Detectives Mike O'Neil ("O'Neil") and Brian Luckett ("Luckett") of the Louisville Police Department. The claim arose from the December 5, 2002, shooting of James Taylor by O'Neil. In addition to the wrongful death claim, the Estate also asserted that the City had failed to adequately train and supervise its officers in the use of deadly force.

Prior to trial, the court granted summary judgment dismissing the claims against Luckett. That order has not been appealed. The matter proceeded to a jury trial in May 2005. At the conclusion of the evidence, the trial court instructed the jury on the wrongful death claim and on the City's liability for failure to train. However, the court declined the Estate's instruction that the City could be liable for negligent failure to train independent of O'Neil's personal liability. The jury found that O'Neil's use of deadly force was justified under the circumstances. Consequently, the trial court entered a judgment in favor of the City and O'Neil. This appeal and the two cross-appeals followed.

On appeal, the Estate argues that the Appellees improperly used peremptory challenges to strike African-American jurors from the panel, that it was entitled to a jury instruction on its independent negligence claim against the City, that it was entitled to directed verdicts on its claims against the City and O'Neil, and that the trial court should have granted a mistrial based on improper comments during opening statements. In its cross-appeal, the Louisville/Jefferson County Metro Government, the successor in interest to the City, argues that the Estate failed to present sufficient evidence on the failure-to-train claim. In his cross-appeal, O'Neil argues that the trial court erroneously instructed the jury on self-defense and damages for the destruction of Taylor's capacity to earn money. We find no error on any of the issues raised in the direct appeal or the City's cross-appeal. Consequently, the issues raised in O'Neil's cross-appeal are moot. Hence, we affirm the trial court's judgment confirming the jury's verdict.

While the details of Taylor's death are disputed, the circumstances are not. During the evening of December 5, 2002, O'Neil and Luckett went to 713 East St. Catherine Street in Louisville to investigate a crime. A resident told the officers that the woman they were seeking was located next door, at 709 East St. Catherine Street. As the officers approached the building, they heard screaming coming from one of the apartments. They followed the noise to Taylor's one-room apartment. As he was approaching the door, O'Neil heard a female voice say the word "knife."

The door was open and Luckett could see Taylor inside with his fists clenched. O'Neil saw crack pipes on the table. In addition to Taylor, there were four other individuals in the apartment: Cannise Phoenix ("Phoenix"), Derrick Spaulding ("Spaulding"), Ricky Dunn ("Dunn") and Rhonda Maddox ("Maddox"). Phoenix was screaming that she was not going to let Taylor cut her.

When Taylor saw the officers, he attempted to close the door. Depending upon the witnesses' accounts, Luckett either prevented the door from fully closing or Taylor reopened the door and allowed the officers to enter. By all accounts, Taylor was very agitated and appeared intoxicated. Upon entering the apartment, Luckett grabbed Taylor's arms, walked him across the room, and sat him down in an armchair. Luckett then handcuffed Taylor's arms behind his back.

O'Neil conducted pat down searches of Spaulding and Dunn, while Luckett kept watch over Taylor and listened to Phoenix. According to Phoenix, she and Taylor had been drinking and using drugs all day. Taylor had given Phoenix money to buy crack cocaine, and Taylor believed that Phoenix had stolen the money. Phoenix stated that Taylor had cursed her, pulled a knife and threatened to cut her.

While O'Neil was searching Spaulding and Dunn, Taylor attempted to get out of his chair several times. Luckett was able to push him back down. However, Taylor managed to move his hands around to his side and retrieve a box cutter knife from his pocket. Taylor got up and began advancing toward the officers. O'Neil pulled out his weapon and ordered Taylor to stop and drop the knife. Taylor refused to stop and attempted to slash Luckett. Several witnesses testified that Taylor cursed and challenged the officers, saying "come on," or "come and get me."

At this point, the accounts vary somewhat. O'Neil and Luckett testified that O'Neil unsuccessfully tried to kick the knife out of Taylor's hand. Other witnesses dispute this account. By this point, Luckett had backed up to the doorway and O'Neil had backed into a corner. Taylor continued to advance on O'Neil. O'Neil fired one shot, hitting Taylor in the chest. Taylor slumped forward or turned sideways, depending on accounts, but did not stop. O'Neil then fired again, shooting Taylor ten more times.

Despite the shots, Taylor was still standing and the box cutter was in his hands. O'Neil again kicked at Taylor. Taylor fell backward and over a small table. He died at the scene.

The shooting of a 59-year old, handcuffed, African-American man by a white police officer prompted considerable controversy in the Louisville area. Due to the intense pre-trial publicity, the parties agreed to a jury questionnaire to help with voir dire. Included in the questionnaire was Question Number 50 which read as follows:

Do you believe it is impossible for a man in handcuffs to pose a threat of death or serious bodily injury to a police officer?

The panel began with a venire of one hundred people, eight of whom were African-American. After strikes for cause, four African-American jurors remained among the twenty-six who were randomly selected. Independently, the City and O'Neil each used their peremptory challenges to exclude these four African-American jurors, in addition to three non-African-American jurors. The Estate objected, arguing that the City and O'Neil had used their peremptory challenges to improperly exclude African- American jurors in violation of Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S. Ct. 1712, 1722-24, 90 L. Ed. 2d 69 (1986). All of the African-American jurors who were stricken had answered "yes" to Question 50. But after considering defense counsels' explanations, the trial court found that the defense had given adequate race-neutral reasons for the strikes.

In Batson, supra, the United States Supreme Court held that the use of peremptory challenges based on race is improper. Although Batson was a criminal case, the rule applies equally to civil litigation. Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991). See also Washington v. Goodman, 830 S.W.2d 398, 400-02 (1992). The Court in Batson set out a three-step process to evaluate whether a prosecutor's use of peremptory challenges violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. Batson, 476 U.S. at 96-98, 106 S. Ct. at 1722-24. First, the party opposing the strike must make a prima facie showing that the opposing attorney has exercised a peremptory challenge based on race. Id. at 96-97, 106 S. Ct. at 1723. Second, if such a prima facie showing has been made, the burden shifts to the party making the strike to articulate a race-neutral explanation for striking the juror in question. Id. at 97-98, 106 S. Ct. at 1723-24. Third, the trial court must determine whether the party opposing the strike has carried the burden of proving purposeful discrimination. Id. at 98, 106 S. Ct. at 1724. See also McPherson v. Commonwealth, 171 S.W.3d 1 (Ky. 2005).

"Numbers alone cannot form the only basis for a prima facie showing." Commonwealth v. Hardy, 775 S.W.2d 919, 920 (Ky. 1989). In determining whether counsel has used peremptory strikes in a discriminatory manner, the test is whether the party has a good faith belief in the information and can articulate the reason to the trial court in a race-neutral manner. Commonwealth v. Snodgrass, 831 S.W.2d 176, 179 (Ky. 1992). As with the state of mind of a juror, evaluation of counsel's state of mind, as well as the proffered reasons for the peremptory challenge, lies "peculiarly within a trial judge's province." Id., citing Hernandez v. New York, 500 U.S. 352, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991). "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).

The Estate argues that the defendants' proffered reasons were clearly a pretext for purposeful discrimination in light of the totality of the circumstances. Miller- El v. Dretke, 545 U.S. 231, 239, 125 S. Ct. 2317, 2324-25, 162 L. Ed. 2d 196 (2005). But in Miller-El, there were compelling reasons to reject the prosecution's explanation for its use of peremptory challenges. First, the prosecution had repeatedly sought a "jury shuffle" to manipulate the number of African-Americans on the venire. Second, the prosecution marked the race of the jurors on the jury forms. Third, the prosecution used disparate tactics in conducting voir dire of African-American jurors vis-a-vis white jurors. Fourth, the prosecution mischaracterized the responses of the African-American jurors to justify the strikes. Fifth, the prosecution used peremptory challenges to strike ten of the eleven African-Americans on the panel. Sixth, many of the prosecution's stated reasons for excluding African-Americans could be applied equally to whites. And finally, the defense presented evidence that the prosecutor's office had adopted a formal policy to exclude minorities from jury service. Given this compelling evidence, the Supreme Court concluded that the trial court clearly erred in finding that the state had articulated legitimate, non-pretextual reasons for its use of peremptory strikes. Id. at 253- 266, 125 S. Ct. at 2332-40.

* * *

Outcome: Accordingly, the judgment of the Jefferson Circuit Court is affirmed.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None