Stopher v. Commonwealth

KELLER, Justice,

dissenting.

I dissent from Section 11(1) of the majority opinion concerning the trial court’s rulings on Stopher’s challenges for cause and write separately regarding Section III(4)’s conclusions regarding Dr. Evans’s testimony. I dissent from the majority’s result because I believe the trial court abused its discretion when it denied Sto-pher’s challenge for cause to Juror # 361. Under this Court’s existing jurisprudence, the trial court’s improper failure to sustain a challenge for cause is reversible error because the erroneous ruling deprives the defendant of the use of one of his or her peremptory challenges. 1 Although I will articulate within this opinion the reasons I believe the Court should reconsider this holding, the Commonwealth does not dispute its viability, and I must conform to this precedent until this Court chooses to correct it.

1(A) — FAILURE TO SUSTAIN STOPHER’S CHALLENGE TO JUROR # 361

In my opinion, Juror # 361’s responses to the questions asked of him by the trial court (“TC”), Commonwealth’s Attorney (“Com.”), and Stopher’s defense counsel (“Def.”) during individual voir dire clearly demonstrated that he could not consider the full range of penalties:

TC: Now, if the jury that sits in this case, after hearing all the evidence in the case, were to find the defendant guilty of intentional murder, and, if the jury were to also find certain aggravating circumstances to exist, then the jury would be asked to select and assign the appropriate punishment for that offense. And it would have the option of assessing that punishment *809 from one of the following ranges of penalty that I will describe to you. The jury could sentence the defendant to a period of confinement of no less than twenty years in the penitentiary or any term of years in excess of twenty years up to and including life imprisonment. Or the jury could sentence the defendant to life imprisonment without the possibility of parole for twenty-five years. Or the jury could sentence the defendant to death. Now, again, if you were one of those jurors and the jury did, as indicated, find the defendant guilty of intentional murder, after that verdict were determined by the jury and announced here in the open court, I would be advising the jury that there would be a second phase of the trial. That second phase of the trial would be a sentencing phase. At that time, the jury would then possibly hear additional evidence presented to it which would be focused exclusively on the sentencing aspect. The jury, after hearing that information, would then be asked to return to the jury room and then to deliberate and come up with the appropriate sentence. Now, this time, the second time that the jury goes back to deliberate, they now have and can consider all the evidence that they heard in the first phase of the trial as well as all the evidence, if any, that they heard in the second phase of the trial. Now, my question to you is, if you were a member of that jury, could you, in affixing the appropriate punishment, consider the entire range of sentences that I’ve just told you along with all the facts that have been presented in the case and then come up with a fair and appropriate sentence?

# 361: I believe so. Yes, I believe I could.

The Commonwealth’s voir dire then established that Juror # 361 had no moral, ethical, or religious objections to the death penalty and that he considered the imposition of the death penalty to be a “fit, moral, and proper” function of government. The Commonwealth then rephrased the trial court’s inquiry:

Com.: In a case involving a defendant who was found guilty of intentionally murdering a deputy sheriff while in the line of duty, would you be able to fairly consider the full range of penalties as described by the judge. In other words, twenty years to life, life without the possibility of parole for twenty-five years, up to and including the death penalty?

#361: [Inaudible]

Com.: You could? You could consider them all?

# 361: Yes, I could consider them all.

Voir dire examination by the defense then established that Juror # 361 believed that the death penalty serves a deterrent function (“With the death penalty, that’s a good way to change people’s minds, knowing if you’re going to get the death penalty, not to commit the crimes in the first place — your life for another one.”) After agreeing with defense counsel that people still commit murder despite the possibility of the death penalty, Juror # 361 admitted that he believed that the death penalty should be used more often. Further questioning raised serious doubts about Juror # 361’s ability to consider the full range of penalties:

Def.: Once a jury has found a person guilty of a crime beyond a reasonable doubt, is there any crime where, after being told what the range of penalties are, that you would exclude everything but the death penalty?

*810 # 361: I’m not understanding what you’re asking.

Def.: In other words, if the judge said you could, let’s say hypothetically, for this crime, the low end is twenty years in jail and the high end is the death penalty and you can consider anything in between. Is there any crime where, for you, we don’t consider anything else but the death penalty — that crime’s so bad that it’s got to be a death case?

TC: In other words, you could not follow the court’s instruction to consider the whole range of penalty. You would automatically just on the nature of the crime ...

#361: OK, yeah, I believe if you kill somebody, it’s possible you should be put to death, too.

Def.: Are you saying then, since this is a case where we have the death of a police officer, if the jury found Vincent Stopher guilty beyond a reasonable doubt of intentionally killing that police officer, that it’s automatic he should receive the death penalty to the exclusion of any other punishment? You wouldn’t consider anything else but a death penalty?

# 361: Honestly, yeah. The death penalty I believe is what I would choose.

Def.: OK, if the judge said “you need to consider twenty years or life without parole for twenty or life or death penalty,” you’re not going to consider those, you’re only going to consider the death penalty as being the appropriate one in this case, is that what you’re saying?

#361: Yes.

The Commonwealth than asked the Court to again question the juror, and the Court • again inquired:

TC: As indicated by Mr. Yustas [Sto-pher’s trial counsel], if the jury, after hearing all the evidence as I mentioned to you earlier, were to find the defendant guilty of the intentional murder of a police officer in the performance of his duty, it would then be my duty to instruct the jury that they could consider the following punishments, and they’re those along the lines I’ve just described to you — that you can consider any punishment of no less than twenty years imprisonment up to life imprisonment, or life imprisonment without the possibility of parole for twenty-five years, or death as a possible punishment. And in considering and discussing with your fellow jurors and deliberating, you would be asked and it would be part of my instructions that you take into consideration and factor into your judgment the matters that you heard in the initial phase of the trial as well as any matters that might be presented at that second phase of the trial. And, as indicated, the second phase of the trial would include information that might tend to even treat the matter more serious than you might have initially, if that’s possible. Or, on the other hand, might present information that would tend to, while leave the matter quite serious, but tend to give you a more mitigating impression of the defendant — something extenuating or explanation, perhaps, not a defense, but at least let you know something about who this person is and sometimes that’s considered to be matters which would tend to look at, direct your attention perhaps, towards a less serious sentence. It might not have that weight upon you or have that effect upon you, but, you know the juror is allowed and instructed to consider these matters. Now, if you were in that situation as a juror under *811 those circumstances, would you be able to go back with your fellow jurors and fully discuss and deliberate with them all the aspects of the case and all the possible punishments or would you, upon retiring to deliberate and decide sentence, just state “Nah, he killed a police officer, and death is the only sentence that I think is appropriate”?

# 361: I could probably weigh the difference, but, to me, it doesn’t matter if it’s a police officer or anybody. I mean, if you deliberately kill somebody, you deserve what you got coming.

TC: OK, and can you, however, personalize it? By that I mean — that’s I take to be your general impression of anybody that takes a life of somebody unlawfully — but could you personalize it by, in a particular case, look at who’s charged and who’s been convicted and make a decision as to that individual based on the facts of that case, or would you tend to say “don’t care who you are or what you’re like or where you came from or anything, this is it”? Or could you consider personal aspects or aspects of the case itself?

#361: Sure, I could consider it, yeah. But, I still, you know, the way I feel about it is, if you take a life — deliberately — how do you say it, an eye for an eye, a tooth for a tooth, that kind of deal. That’s the way I feel about it.

TC: -I understand the way you feel about it. I guess what I’m trying to distinguish and counsel are concerned is that might be your feeling, but if you are asked to sit as a juror on this case and take the oath to serve as a juror, could you follow the instructions of the court and consider all matters that are presented to you or would your personal feelings so drive you such that you would say “well, if we you found you guilty, then the only penalty that you’re fit for is death” or could you consider other possible penalties depending on the facts of the particular case ...

# 361: Sure, I could consider other possible penalties, yeah, I could, yeah, but I don’t think I’m really understanding. You mean could I choose something besides the death penalty?

TC: Yes.

# 361: OK, sure, sure, I could.

TC: Let me ask it this way, and I’m being inartful, but let me ask you this. Can you conceive — I’ll use your terminology — of, knowing that, in any intentional murder, 2 that the jury has the right under the law to sentence anywhere from twenty years up to and including death — all that range all the way from twenty years all the way up to death — knowing that that’s what the law gives the jury the right to do, can you conceive of a factual situation, without telling us about it, a set of circumstances, where you could believe that a person could be sentenced to something other than death for the intentional murder of someone?

# 361: Sure, yes, I could.

The defense then questioned Juror #361 concerning his ability to consider the minimum penalty of twenty years:

Def.: Can you conceive of a case where you have an intentional murder where the defendant gets twenty years?

*812 # 361: I don’t think it’s right, but I can see that, yeah, but, like I say, when you kill somebody—

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Def.: Can you conceive of yourself ever considering twenty years as a valid sentence in an intentional murder case?

#361: No.

The trial court initially withheld his ruling on Stopher’s motion challenging Juror # 361 for cause, but later denied the challenge and decided that Juror # 361 could fulfill his duties as a juror despite his answers to the questions asked him regarding the death penalty. The trial court dismissed Juror # 361’s answer to defense counsel’s final question as “under the stark reality as presented — the killing of a police officer in the line of duty- — that the twenty years did not make sense to him under those circumstances” and compared it to the situation addressed by this Court in Mabe v. Commonwealth. 3 Stopher used a peremptory challenge to remove Juror #361.

In Grooms v. Commonwealth, 4 this Court held that “a juror should be excused for cause if he would be unable in any case, no matter how extenuating the circumstances, to consider the imposition of the minimum penalty prescribed by law.” 5 Although reviewing courts must give due deference to trial court determinations, 6 we must not abdicate our responsibility to review those determinations for error. In my opinion, the trial court’s decision that Juror # 361 could consider all possible penalties was clearly erroneous. While I am troubled by Juror # 361’s invocation of the Old Testament “eye for an eye, tooth for a tooth” maxim, I find no margin for different interpretations of his response to the final question asked of him. Contrary to the trial court’s characterization at the time of its ruling on the challenge for cause, defense counsel did not propose a stark hypothetical and ask Juror # 361 if he could consider the minimum sentence. Defense counsel asked if Juror # 361 could conceive of any intentional murder for which he could consider the minimum penalty, and Juror #361 answered with an unequivocal “no.” This was the last question asked of Juror # 361, and, in clear and unambiguous terms, it struck at the heart of the question before the trial court — could Juror # 361 set aside his personal convictions and consider all possible penalties. He clearly, loudly, and unequivocally answered “no.”

Although the Commonwealth contends that Juror # 361 indicated elsewhere during his individual voir dire that he could follow the instructions of the trial court, *813 we have soundly rejected the idea that a potential juror’s answer to a “magic question” ends the discussion of his ability to serve. 7 Although Juror # 361 was questioned a number of times about his ability to consider the full range of penalties, he was directly asked once, and only once, whether he could consider the minimum penalty of twenty years if a jury had found a defendant guilty of intentional murder, and he stated that he could not. The juror’s statement that he could “choose something other than death” is a far cry from an assurance that he could consider the entire range of penalties as the trial court would instruct him. Juror # 361’s answers mirror those given by a juror who, according to the Grooms Court, should have been excluded. 8 Accordingly, I believe the trial court erred when it failed to excuse Juror # 361.

1(B) — REVERSIBLE ERROR

Because I believe the trial court erroneously failed to sustain Stopher’s challenge to Juror # 361 and because existing Kentucky caselaw requires reversal under such circumstances, I dissent from the result reached by the majority and would reverse Stopher’s conviction and remand the case to the trial court for a new trial. I must express my discomfort with this result, however, because I cannot ascertain how Stopher suffered any tangible disadvantage from the trial court’s ruling after he used a peremptory challenge to remove Juror # 361 from the panel. I have carefully reviewed the videotaped record, and the general and individual voir dire revealed that each of the jurors who deliberated Stopher’s crime and punishment could do so fairly and impartially. My reverse vote reflects only my conclusion that Stopher used one of his peremptory challenges to exclude a juror when he should not have had to do so.

I am struck by the incongruity of these two conclusions — Stopher was tried by a fair and impartial jury, and I must vote to reverse. Accordingly, I believe this is an appropriate time to express my opinion that this Court should reconsider existing precedent decreeing that automatic reversible error exists whenever a trial court error implicates a defendant’s exercise of peremptory challenges.

This Court’s adoption of RCr 9.40 allows the parties in a criminal 9 case to remove a given number of jurors by peremptory challenge without showing cause. While we currently provide a base allotment of eight (8) peremptory challenges to each side, the Commonwealth and the defense, in a felony criminal case and three (3) peremptory challenges to each side in a misdemeanor criminal case, we could allow a larger number of peremptory challenges, a smaller number, 10 and we could even delete the rule and provide for no peremp *814 tory challenges whatsoever in criminal cases. No provision of the United States Constitution requires peremptory challenge procedures in criminal cases:

We have long recognized that peremptory challenges are not of constitutional dimension. They are a means to achieve the end of an impartial jury. So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated. 11

While RCr 9.40 undoubtedly allows criminal defendants to exercise peremptory challenges, I have my doubts about this Court’s conclusion that we must reverse a case whenever a trial court ruling infringes upon these “substantial rights.” 12 Bestowing a substantial right upon the exercise of a peremptory challenge serves one function and one function only — -it manufactures reversible error in cases where the case has been decided by a fair and impartial jury. The rhetorical label we have placed upon peremptory challenges does nothing more than circumvent the last sentence of RCr 9.24 13 and insulate a class of trial court rulings from harmless error analysis. When we attach the “substantial right” label to the defendant’s opportunity to exercise peremptory challenges, a defendant who cannot otherwise demonstrate prejudice 14 may now claim that he or she was denied a “substantial right” when a trial court ruling “required” the defense to use one of its challenges to remove a juror which the trial court should have removed for cause.

I can find no support for the contention that the ability to exercise peremptory challenges implicates substantial rights. None of the due process protections in the United States Constitution requires peremptory challenges:

[TJhere is no constitutional obligation to allow [peremptory challenges]. Peremptory challenges are permitted only when the government, by statute or decisional law, deems it appropriate to allow parties to exclude a given number of persons who otherwise would satisfy the requirements for service on the petit jury. 15

In Swain v. Alabama, 16 the United States Supreme Court recognized that while peremptory challenges existed at common law, “the source of this right was not whol *815 ly clear.” 17 In Ross v. Oklahoma, 18 the High Court declined to view peremptory challenges as an unfettered right and noted the incongruity of the rights rhetoric with both the realities of exercising such challenges and the manner in which legislatures have modified them:

We think there is nothing arbitrary or irrational about [requiring that a defendant use peremptory challenges to cure erroneous refusals by the trial court to excuse jurors for cause], which subordinates the absolute freedom- to use a peremptory challenge as one wishes to the goal of empaneling an impartial jury. Indeed, the concept of a peremptory challenge as a totally freewheeling right unconstrained by any procedural requirement is difficult to imagine. As pointed out by the dissenters in Swain:

This Court has sanctioned numerous incursions upon the right to challenge peremptorily. Defendants may be tried together even though the exercise by one of his right to challenge peremptorily may deprive his code-fendant of a juror he desires or may require that codefendant to use his challenges in a way other than he wishes. A defendant may be required to exercise his challenges prior to the State, so that some may be wasted on jurors whom the State would have challenged. Congress may regulate the number of peremptory challenges available to defendants by statute and may require codefendants to be treated as a single defendant so that each has only a small portion of the number of peremptories he would have if tried separately. 19

In United States v. Martinez-Salazar; 20 the United States Supreme Court unanimously agreed that a defendant who uses a peremptory challenge to remove a juror whom the trial court erroneously declined to excuse for cause “has not been deprived of any rule-based or constitutional right” 21 because the defendant has the choice whether to exercise a peremptory challenge to remove that juror:

After objecting to the District Court’s denial of his for-cause challenge, Martinez-Salazar had the option of letting Gilbert sit on the petit jury and, upon conviction, pursuing a Sixth Amendment challenge on appeal. Instead, Martinez-Salazar elected to use a challenge to remove Gilbert because he did not want Gilbert to sit on his jury. This was Martinez-Salazar’s choice. The District Court did not demand — and Rule 24(b) did not require — that Martinez-Salazar use a peremptory challenge curatively.

In choosing to remove Gilbert rather than taking his chances on appeal, Martinez-Salazar did not lose a peremptory challenge. Rather, he used the challenge in line with a principal reason for peremptories: to help secure the constitutional guarantee of trial by an impartial jury. Moreover, the immediate choice Martinez-Salazar confronted — to stand on his objection to the erroneous denial of the challenge for cause or to use a peremptory challenge to effect an instantaneous cure of the error — eom- *816 ports with the reality of the jury selection process. 22

The United States Supreme Court observed no due process violation, 23 and the •Circuit Courts of Appeal have applied this reasoning to both federal 24 and state 25 criminal matters.

Unquestionably, Kentucky may provide for rights not guaranteed by the United States Constitution, and our procedural protections may exceed those available on the federal level. In Thomas, this Court implied that the opportunity to exercise peremptory challenges constitutes a substantial right because of such challenges’ importance for insuring procedural due process. In as much as Edmonson v. Leesville Concrete Co. 26 holds that the United States Constitution does not require that states allow defendants to exercise peremptory challenges, our prior holdings thus rest on the premise that Kentucky’s due process protections extend further than that of the United States Constitution and that, in this state, fundamental notions of fair process require that we grant defendants a license to exclude jurors who can fairly and impartially deliberate. guih/innocence and punishment. Even if we had not spent the last century eroding the extent of this “right” through gradual reductions in the number of peremptory challenges available to defendants in felony cases, I would dispute our “substantial rights” characterization because I can find no support for it in the Kentucky Constitution. As the scope of this “right” changes with the phases of the moon, however, I cannot imagine how we ever concluded that the ability to exercise peremptory challenges is such an important right that prejudice may be presumed.

A brief recap may be in order — this Court has decided a defendant’s exercise of peremptory challenges constitutes a “substantial right” despite the fact that no identifiable provision of either the United States or Kentucky Constitution compels such a conclusion. This epitomizes “rights talk,” a term observers of the American legal system use to define our inclination towards the elevation into “rights” of all legal matters:

The law talk that percolates through American society today, however, is far removed from nineteenth-century versions .... [L]aw talk in Tocqueville’s day was not nearly so saturated with rights talk as it has been since the end of World War II. In short, legal speech today is a good deal more morally neutral, adversarial, and rights-oriented than it was in 1881.

There is no more telling indicator of the extent to which legal notions have penetrated both popular and political discourse than our increasing tendency to speak ... in terms of rights, and to frame nearly every social controversy as a clash of rights. Yet, for most of our history, political discourse was not so *817 liberally salted with rights talk as it is today, nor was rights discourse so legalistic. The high season of rights came upon the land only rather recently, propelled by, and itself promoting, a gradual evolution in the role of the courts. 27

Such “rights talk” is by no means innocuous, and:

[R]ights talk often operates at cross-purposes with our venerable rights tradition. It fits perfectly within the ten-second formats currently preferred by the news media, but severely constricts opportunities for the sort of ongoing dialogue upon which a regime of ordered liberty ultimately depends. A rapidly expanding catalog of rights ... risks trivializing core democratic values. 28

I believe our characterization of peremptory challenges as substantial rights elevates form over substance and detracts from the true question of whether the trial court seated a fair and impartial jury to decide a defendant’s guilt or innocence.

While reliance upon precedent is important, “the doctrine of stare decisis does not commit us to the sanctification of ancient fallacy.” 29 I believe it is time for this Court to reexamine its decisional law concerning peremptory challenges used to excuse jurors whom the trial court has erroneously failed to excuse for cause. Rather than deeming such errors “automatic reversible error,” we should bring Kentucky law in accordance with the prevailing federal jurisprudence.

II. TESTIMONY OF DR. EVANS

I also write separately with respect to Section 111(4) of the majority opinion which addresses the testimony of Dr. Evans because I see no reason for this Court to engage in an erroneous interpretation of our evidence rules to affirm a ruling which the trial court never made. After reviewing the video record in this case, I do not believe the trial court ever prohibited Dr. Evans from testifying that Stopher’s behavior on the day he killed Deputy Hans indicated that Stopher was under the influence of a hallucinogen.

The Commonwealth initially asked that the trial court prohibit Dr. Evans from testifying in this regard. However, after the trial court held a hearing to ascertain the nature of and basis for this testimony, it ruled that Dr. Evans could testify as to the findings of a chemical analysis of Sto-pher’s blood and urine samples and, if the testimony provided a proper foundation, to his opinions as to whether Stopher was under the influence of a hallucinogen. The Commonwealth suggested that, in light of the trial court’s ruling, it intended to cross-examine Dr. Evans regarding Stopher’s past violent criminal history, which Dr. Evans admitted he had not considered in forming his opinion, to contest the weight which the jury should assign to that opinion. After realizing the potential opportunity costs to soliciting a specific opinion from Dr. Evans, the defense decided, unilaterally, to limit the scope of its examination of Dr. Evans:

Def: We’ll accede to his [the prosecutor’s] statement that Dr. Evans cannot make a specific finding as to his observations as to what Vincent Sto-pher did but instead present to the jury what the effects are of LSD and hallucinogens. We also say that we are entitled for him to testify as to foreign substances that he found.

*818 TC: I don’t think there’s any objection to that.

Def: Oh, I thought they were — he wanted it limited.

TC: After the court’s acceptance, I think the Commonwealth’s ruling was basically, on the chemical analysis' — he could testify as to that basis.

Def: Very well. Well, he can testify as to — not specifically as to Vincent Sto-pher — but what the effects are.

TC: Right. And the effects of his chemical analysis.

Def: Yes.

Simply put, the trial court did not prevent the defense from introducing any of Dr. Evans’s proffered testimony. The defense appears to have decided to “fold its hand” after concluding that the Commonwealth held a better one. 30 We have no ruling to review.

My review of the record leads me to the conclusion that the question of whether the trial court should have allowed Dr. Evans to testify to his opinion is largely academic. However, because the majority has erroneously decided that question, and the majority’s incorrect legal conclusions will become the law of this case, I feel compelled to address those conclusions.

The majority opinion reaches three conclusions with respect to Dr. Evans’s testimony: (1) Dr. Evans was qualified to testify as to his chemical analysis of Stopher’s blood and urine, but not to give his opinion regarding whether Stopher’s behavior at the time he killed Deputy Hans was consistent with someone affected by a hallucinogen; (2) Dr. Evans had no proper basis for his opinion; and (3) this testimony would not have assisted the jury’s determination. I would note that the trial court made none of these findings, and that, in reaching these conclusions, the majority acts not as a reviewing court, 31 but as a finder of fact. The record in this case and the law in this Commonwealth squarely contradict each of these conclusions.

At the trial court’s evidentiary hearing, Dr. Evans testified to his qualifications. On appeal, Stopher appropriately describes those qualifications as “impeccable.” A partial list of those qualifications would include: (1) Bachelor of Science degrees in Biology and Chemistry; (2) A Ph.D. in Toxicology from the Indiana University School of Medicine; (3) Post-doctoral work in Toxicology at the National Institute of Health, (4) almost two decades of board certification in Toxicology; (5) teaching and research experience into the effects of drug abuse as a tenured Associ *819 ate Professor of Medicine at the University of Illinois; and (5) over one hundred (100) scientific publications in his field, many of which addressed drug abuse issues and the effect of drugs upon human behavior. Dr. Evans defined the field of toxicology as “the study of the effect of drugs on the central nervous system and brain function as well as behavior” and emphasized that an important aspect of toxicology is the effect of drugs on human behavior. Dr. Evans, a former Indiana State Toxicologist, has testified in civil and criminal proceedings at the request of prosecutors and defense counsel as well as counsel for both plaintiffs and defendants. Dr. Evans was absolutely qualified to testify as to the effect hallucinogens have on human behavior and to express an opinion as to whether certain behaviors were indicative of hallucinogen use. The majority’s conclusion is not only wrong but indefensible.

KRE 703(a) defines the permissible bases for an expert’s opinions:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field informing opinions or inferences upon the subject, the facts or data need not be admissible in evidence. 32

At the evidentiary hearing, Dr. Evans testified that he based his conclusion that Stopher was under the influence of a hallucinogen on his findings from the chemical analysis of Stopher’s blood and urine as well as witness interviews, discovery materials, and a videotape made of Stopher on the day he killed Deputy Hans which the defense provided to him. Dr. Evans testified that he commonly if not always forms his opinions on the basis of similar materials provided to him, and even before we adopted KRE 703, this Court believed that experts may rely on exactly these types of materials. 33 Although the Commonwealth argues that Dr. Evans’s reliance on third-party information is improper, KRE 703, Kentucky case law, and common sense invalidate the contention that all experts must also be occurrence witnesses.

I cannot fathom how the majority can conclude that Dr. Evans’s testimony would not “assist the trier of fact to understand the evidence or to determine a fact in issue.” 34 There was never any issue in this case about whether Stopher killed Deputy Hans. The only relevant issue was Stopher’s mental state at the time he did so and whether Stopher should receive the death penalty. Stopher’s defense was that he was having a “bad” hallucinogenic trip at the time he killed Deputy Hans, and the defense argued that Stopher’s culpability was thus reduced below intentional murder. The Commonwealth disputed this contention. Dr. Evans’s testimony addressed this very issue.

The majority’s contention that Dr. Evans’s testimony would have been of little value because no test revealed LSD in Stopher’s blood or urine ignores Dr. Evans’s testimony that, because LSD is photosensitive and chemically decomposes when exposed to light, he would have been surprised to find LSD in the samples provided to him because those samples were neither frozen nor protected from fight. Dr. Evans did testify, however, that his advanced tests on Stopher’s urine sample *820 indicated a ethyltriptomine-like substance which typically forms the chemical “backbone” of LSD, and which would be present if LSD in Stopher’s system had decomposed. Dr. Evans’s testimony that Sto-pher’s behavior on the day in question was consistent with use of a hallucinogenic drug unquestionably would have satisfied the relevancy requirement of KRE 401 as evidence which made “the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” 35

Stopher presents no renewable issue concerning Dr. Evans’s testimony because the trial court did not exclude that evidence. However, I cannot agree with the majority’s gratuitous conclusion that the trial court should not have allowed Dr. Evans to testify as to his opinions because I find those conclusions clearly erroneous.

Under this Court’s existing case law, the trial court committed reversible error when it overruled Stopher’s challenge to Juror #361. Thus, I would reverse and remand the case to the trial court for a new trial.

STUMBO, J., joins this dissent.

. See Thomas v. Commonwealth, Ky., 864 S.W.2d 252 (1993), cert. denied, 510 U.S. 1177 , 114 S.Ct. 1218 , 127 L.Ed.2d 564 (1994).

. Although the trial court’s question appears to imply otherwise, a jury must find an aggravating circumstance before it may sentence a defendant to death or life without possibility of parole for twenty five years. KRS 532.025(3).

. Ky., 884 S.W.2d 668, 671 (1994):

[A] juror is often presented with the facts in their harshest light and asked if he could consider imposition of a minimum punishment. Many jurors find it difficult to conceive of minimum punishment when the facts as given suggest only the most severe punishment.... The test is not whether a juror agrees with the law when it is presented in the most extreme manner. The test is whether, after having heard all of the evidence, the prospective juror can conform his views to the requirements of the law and render a fair and impartial verdict.

Id.

. Ky., 756 S.W.2d 131 (1988).

. Id. at 137 . See also Morris v. Commonwealth, Ky., 766 S.W.2d 58, 60 (1989) ("Both the Commonwealth and the defendant are entitled to a panel of jurors who will consider the entire range of punishment. Those who will not should be struck by the Court for cause.” Id.).

. See Mabe v. Commonwealth, supra note 3 at 670 ("The law recognizes that the trial court is vested with broad discretion to determine whether a prospective juror should be excused for cause.” Id.).

. See Montgomery v. Commonwealth, Ky., 819 S.W.2d 713, 718 (1991).

. Supra note 4 at 135-137.

. My views expressed herein would apply equally to peremptory challenges exercised in civil cases.

. In fact, the current allocation of peremptory challenges in felony cases has only existed since 1994, and over the past century, the number of peremptory challenges available to criminal defendants has decreased. From 1877 to 1893, the defense could exercise twenty (20) peremptory challenges. In 1893, the number of peremptory challenges allowed by the defense was reduced to fifteen (15). In 1978, the number of peremptory challenges given to the defense was reduced to eight (8). From 1877 until 1994, we allowed the Commonwealth to exercise only five (5) peremptory challenges. In 1994, we amended RCr 9.40 to eliminate the defense’s numerical advantage, and we now allow the prosecution to exercise eight (8) such challenges.

. Ross v. Oklahoma, 487 U.S. 81, 88 , 108 S.Ct. 2273 , 101 L.Ed.2d 80, 90 (1988) (citations omitted).

. Thomas v. Commonwealth, supra note 1 at 258-9 ("The rules specifying the number of peremptory challenges are not mere technicalities, they are substantial rights and are to be fully enforced.” Id. at 259.).

. "The court at every stage of the proceeding must disregard any error or defect in the proceeding that does not affect the substantial rights of the parties.” RCr 9.24.

. E.g., when, as is the case here, the defendant subsequently used his or her peremptory challenges to exclude any juror whom the trial court improperly failed to excuse for cause. See Turpin v. Commonwealth, Ky., 780 S.W.2d 619, 621 (1989) overruled by Thomas v. Commonwealth, supra note 1 ("Turpin can demonstrate no prejudice or constitutional violation because the jurors were removed for cause by the defense.” Id.)', Dunbar v. Commonwealth, Ky., 809 S.W.2d 852, 853 (1991) overruled by Thomas v. Commonwealth, supra note 1 ("Even if a juror should have been removed for cause, such error does not violate the constitutional right to an impartial jury if the person did not actually sit on the jury.” Id.).

. Edmonson v. Leesville Concrete Co., 500 U.S. 614, 620 , 111 S.Ct. 2077 , 114 L.Ed.2d 660, 673 (1991).

. 380 U.S. 202, 214 , 85 S.Ct. 824 , 13 L.Ed.2d 759, 769 (1965).

. Id.

. Supra note 11.

. Id. at 487 U.S. at 90 , 108 S.Ct. at 2279 , 101 L.Ed.2d at 91 (emphasis added and citations omitted).

. 528 U.S. 304 , 120 S.Ct. 774 , 145 L.Ed.2d 792 (2000).

. Id. at 528 U.S. 304, 307 , 120 S.Ct. 774, 777 , 145 L.Ed.2d 792 (citations omitted).

. Id. at 528 U.S. 304, 315-16 , 120 S.Ct. 774, 781-2 , 145 L.Ed.2d 792 .

. Id. at 528 U.S. 304, 317 , 120 S.Ct. 774, 782 , 145 L.Ed.2d 792 ("Martinez-Salazar and his codefendant were accorded 11 peremptory challenges, the exact number Rule 24(b) and (c) allowed in this case. Martinez-Salazar received precisely what federal law provided; he cannot tenably assert any violation of his Fifth Amendment right to due process.” Id.).

. See, e.g., United States v. Quinn, 230 F.3d 862, 865-6 (6th Cir.2000) ("By removing Juror #35, Quinn exercised his peremptory challenge in the manner that it was intended to be used — to assure his right to an impartial jury.... The system worked precisely as intended.” Id.).

. See, e.g., Wolfe v. Brigano, 232 F.3d 499, 501-2 (6th Cir.2000).

. Supra note 15.

. Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse, 3-4 (The Free Press 1991).

. Id. at xi.

. Hilen v. Hays, Ky., 673 S.W.2d 713, 717 (1984).

. Stopher’s brief never identifies an adverse ruling by the trial court and essentially admits that the defense "folded” on this issue:

After the Commonwealth threatened that it would (yet again) bring up Vince’s past arrests and "the things he [Dr. Evans] does not know about Vince Stopher” the defense finally acceded to Dr. Evans not making specific findings as to his observations from the videotape recordings of Vince’s actions the day of the crime or from listening to the descriptions of his behavior the day of the crime. (Essentially, the Commonwealth had managed, over defense objection, to get in front of the jury, on several occasions, alleged past arrests of Vince.) The defense did not want this to happen again and therefore took the threat of the Commonwealth seriously. Accordingly, Dr. Evans did not testify as to his determination that the behavior of Vince the day of the crime was completely consistent with his being high on LSD.

Brief for Appellant at 84 (citations to record omitted and emphasis added).

. See Goodyear Tire & Rubber Co. v. Thompson, Ky., 11 S.W.3d 575, 583 (2000) ("KRE 702 gives the trial court the discretionary authority, reviewable for its abuse, to determine admissibility of expert testimony in light of the particular facts and circumstances of the particular case.” Id.); Mitchell v. Commonwealth, Ky., 908 S.W.2d 100, 102 (1995).

. KRE 703(a) (emphasis added).

. See Buckler v. Commonwealth, Ky., 541 S.W.2d 935, 940 (1976).

.KRE 702.

. KRE 401. See also Stringer v. Commonwealth, Ky., 956 S.W.2d 883, 889-892 (1997) (''[JJurors ... usually do need the assistance of a medical expert in determining the cause of a physical condition in order to understand the evidence....” Id. at 890 ).