ROBERT YELL V. COMMONWEALTH OF KENTUCKY
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2006-SC-000327-MR
ROBERT YELL
V.
APPELLANT
ON APPEAL FROM LOGAN CIRCUIT COURT
HONORABLE TYLER L . GILL, JUDGE
NO. 04-CR-000232
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Robert Yell appeals his conviction for First-Degree Arson, First-Degree Assault,
Second-Degree Manslaughter, and Second-Degree PFO for intentionally causing the
house fire which killed his two-year-old son and severely injured his eleven-month-old
daughter. Upon review of Yell's claims of error, we adjudge there was no error that
warranted reversal . Hence, we affirm.
In 2004, Robert Yell was living in a trailer in Russellville with his girlfriend, April
Carpenter, their two children, Saralynn Yell, eleven months old, and Cameron Yell, two
years old, and April's two children from a prior relationship, Zachary Carpenter and
Nicholas Carpenter. On September 11, 2004, Robert, April, Saralynn, Cameron,
Zachary and Nicholas went to a neighbor's house for the afternoon . The children
played outside with the children of the neighbors, Lindsey Bromm and Donald Powell,
while Robert and April proceeded to drink a large amount of alcohol and smoke
marijuana. April and Robert became very intoxicated, and at some point, Robert
became belligerent with Donald Powell and they began arguing . Robert tried to get
April to leave, but April did not want to go home . April and Robert then began arguing .
Sometime before 5:00 p.m ., Robert, April, and all four children went home to their
trailer.
According to April, once they got back to the trailer, she and Robert got into an
argument. April testified that she and Robert fought frequently because she recently
had an affair with another man when Robert was in jail . The fight escalated and Robert
began choking her. April ultimately freed herself and ran back to Lindsey Bromm's
house with Zachary and Nicholas following behind her. April arrived at Bromm's house
at approximately 7:00 p.m. After staying there for twenty to forty minutes, April wanted
to go back to her trailer to get the other two children . When April began walking back to
the trailer, she noticed smoke and realized the trailer was on fire. She ran into the
burning trailer and retrieved Saralynn from the front room and handed her off to Officer
Ron Mills of the Russellville Police Department. April attempted to go back into the
burning trailer to get Cameron, but the smoke and fire were too bad. The police refused
to let April go back into the trailer again .
Ultimately, Cameron was pulled from the blazing trailer by firefighters, but, by
that time, he had already died of smoke inhalation . Saralynn sustained third-degree
burns to 50% of her body and extensive respiratory damage as a result of smoke
inhalation. The evidence established that Saralynn suffered permanent, painful injuries
as a result of the fire that have necessitated protracted hospitalization and numerous
surgeries .
As a result of the events of September 11, 2004, Robert was indicted on October
28, 2004 on one count each of First-Degree Arson, Capital Murder, Attempted Murder,
Fourth-Degree Assault, Resisting Arrest, Menacing, Third-Degree Terroristic
Threatening, Public Intoxication, Third-Degree Assault, Second-Degree Disorderly
Conduct, and for being a First-Degree Persistent Felony Offender (PFO 1). On February
8, 2006, Robert attempted to enter a guilty plea pursuant to a plea bargain with the
Commonwealth whereby he agreed to plead guilty to Third-Degree Arson, two counts of
First-Degree Assault, one count of Third-Degree Assault, and PFO II in exchange for a
recommendation of a twenty-five year sentence . After determining that the plea was
actually an Alford plea, the court refused to accept the plea because it did not usually
accept Alford pleas. Consequently, a jury trial was held from February 10, 2006 through
February 22, 2006. Robert was found guilty of First-Degree Arson, First-Degree
Assault, Second-Degree Manslaughter, and PFO 11 . Robert was also convicted of two
misdemeanors, Fourth-Degree Assault and Disorderly Conduct. Robert was sentenced
to: 26 years on the Arson conviction ; 20 years (10 years enhanced to 20 years by the
PFO 11) on the Manslaughter conviction ; 26 years (20 years enhanced to 26 years by
the PFO II) on the First-Degree Assault; 12 months on the Fourth-Degree Assault; and
90 days on the Disorderly Conduct . The sentences for the Arson and First-Degree Assault convictions were to run consecutively, with the remaining sentences to run
concurrently, for a total of 52 years imprisonment. This matter of right appeal followed .
ACCE LERANT DETECTION CANINE EVIDENCE
Robert argues that the trial court erred in allowing the Commonwealth to
introduce evidence that an accelerant detection dog had alerted to the presence of
ignitable liquids at the trailer fire scene. In a pre-trial suppression motion, the defense
objected to the admission of this evidence on grounds that there was no scientific
support for its admissibility and no legal authority in Kentucky for its admissibility.
Although the motion did not cite Daubert v. Merrell Dow Pharmaceuticals . Inc. , 509 U.S.
579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), or request a Daubert hearing, the trial
court held a self-described Daubert hearing prior to trial in this case . The hearing, held
on January 3, 2006, elicited the following facts relative to the use of the accelerant
detection dog, PJ, in investigating the fire scene in this case.
PJ was assigned to National Certified Fire Investigator Buster Cannon by the
Federal Bureau of Alcohol, Tobacco and Firearms (ATF) in 2002. Cannon established
that he had twenty-three years of experience as a policeman and firefighter. At the time
Cannon received PJ, she had already been trained and imprinted in accelerant
detection . Early in 2002, Cannon and PJ successfully completed a five-week course in
canine accelerant-detection training with the ATF. Both Cannon and PJ have
completed annual forty-hour re-certification programs for 2003, 2004, and 2005 and are
subject to annual testing by the ATF. Since 2002, Cannon and PJ have worked
approximately 200 fire scenes together . PJ is trained by Cannon twice a day and
reports of her training are submitted monthly to the ATF. PJ detects ignitable liquids
and trains with a food/reward system whereby Cannon gives PJ kibbles when she
correctly alerts (sits at the site) where ignitable liquids are detected . Cannon trains PJ
with an array of -flammable liquids at varying levels. During her training sessions, PJ
may be exposed to as little as one micro liter (roughly one-half of an eye dropper) to as
much as 15 micro liters of a given accelerant . Cannon testified that samples that a dog
has alerted to will sometimes test negative in a laboratory for the presence of
accelerants because the sample may contain a level of accelerant too small for a
laboratory to detect . Cannon explained that the accelerant may be consumed in the fire
or may evaporate before collection and testing. Cannon testified that PJ's false alerts
may be as high as 5%. Through his experience working with PJ, Cannon has learned
that if it is a true alert, PJ will get very excited and he will not be able to pull her off of
the site of the alert. If Cannon suspects it is a false alert (by her nonchalant behavior),
PJ will surrender the spot without much resistance .
Before going into a fire scene, PJ is calibrated by detecting a drop of accelerant
that Cannon places away from the fire scene. When PJ properly alerts to the
accelerant, she is rewarded and then taken into the fire scene . At the fire scene,
controls are used. Samples are collected from the areas where PJ alerts and the
samples are placed in individual containers . A control sample containing no accelerant
is also placed in a container . All the containers are then taken away from the fire scene,
and PJ is taken past them. In the instant case, PJ alerted to all the samples taken from
the scene and did not alert on the control sample .
On January 9, 2006, the trial court issued its order allowing the evidence
regarding PJ's alerts at the fire scene in the present case. The trial court found that
Cannon's testimony established that using properly trained dogs was a reliable method
for determining the presence of accelerants at a fire scene, and that PJ was adequately
trained to detect accelerants . The court went on to say that the evidence that PJ had
alerted to the presence of ignitable liquids at the scene of the fire in this case would be
helpful to the jury, and that the jury was capable of giving appropriate weight to such
evidence . The trial court also found that due to his experience with PJ, Cannon could
generally tell if PJ's alert was a false alert or a true alert.
At trial, Cannon testified that after arriving at the fire scene on the morning after
the fire and calibrating PJ, PJ went into the trailer and alerted to six locations for the
presence of ignitable liquids . Contrary to his earlier ruling, the trial court allowed
Cannon at trial to identify the locations of the six alerts in the trailer. As stated above,
PJ again alerted to the presence of accelerants in the six separate samples taken from
the scene, but did not alert on the control sample containing no accelerants . However,
the testimony of Kenneth Rider from the Kentucky State Police forensic lab established
that all six samples tested negative in the laboratory for the presence of ignitable liquids.
On appeal, Robert asserts that there is no legal authority in Kentucky for allowing
evidence of accelerant detection by a dog pursuant to Daubert. Robert argues that
allowing the evidence was error in this case because PJ's alerts were unconfirmed by
the laboratory testing of the samples, and there was no scientific validation of PJ's
ability to detect accelerants at levels lower than detectable in a laboratory analysis of
the samples. The Commonwealth argues that Daubert does not apply in canine
accelerant detention cases because the dog's ability to accurately detect accelerants
through its sense of smell is not dependent on scientific explanation .
A trial court's determination on the admission of expert scientific testimony
pursuant to Daubert is reviewed under an abuse of discretion standard . Miller v.
Eldridge , 146 S.W .3d 909, 914 (Ky. 2004). The trial court's decision will be overturned
only upon a showing that the ruling was "arbitrary, unreasonable, unfair, or unsupported
by sound legal principles." Goodyear Tire & Rubber Co. v. Thompson , 11 S.W.3d 575,
581 (Ky. 2000) .
After submission of the briefs in the instant case, this Court on August 23, 2007,
rendered its opinion in Debruler v. Commonwealth, No. 2005-SC-000989-MR, 2007 WL
2403438 (Ky. August 23, 2007) (final as of September 13, 2007), wherein we addressed
the issue of whether canine scent tracking was subject to reliability analysis under
Daubert . In Debruler, a child was abducted and taken to a vacant house from which
she was fortunately able to escape . In investigating the crime, the police brought two K9 unit dogs to the vacant house, along with two articles of the suspect's clothing. Both
dogs tracked the scent of the suspect's clothing through the house, and evidence of this
scent tracking was ultimately admitted in the suspect's kidnapping trial . This Court held
that Daubert does not apply to such evidence because canine scent tracking is not
grounded in any scientific technique, theory or methodology. Id . at *3. Rather, it is
based on the dog handler's personal observations of the dog's actions relative to his
experience with and training of the dog. Id . This Court also rejected the appellant's
claim that canine scent tracking required a Daubert reliability analysis because it
involved technical or specialized knowledge . Id. ; see Kumho Tire Co. . Ltd. v.
Carmichael, 526 U.S . 137, 141, 119 S . Ct. 1167, 1171, 143 L. Ed. 2d 238 (1999).
Here, we are not persuaded that the Daubert analysis would
accurately assess the reliability of canine scent tracking
testimony . Contrary to Appellant's assertions, the factors
identified in Daubert provide little guidance as to the
reliability of non-scientific, experience-based knowledge
such as canine scent tracking . More specifically, canine
scent tracking is not a technique amenable to peer review or
scientific standards and testing. Rather, it concerns the
behaviors of the dog and the meanings of those behaviors, a
knowledge acquired through experience and training . For
this reason, foundational evidence of the canine's scent
tracking record ; the qualifications of its handler, its training
and history provide far more insight into the general reliability
of the testimony than a Daubert analysis .
In the hearing in the present case, we believe the Commonwealth satisfied the
foundational requirements required in Debruler . Cannon testified to his qualifications for
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being a dog handler and to his ATF certification, testing and training record in
accelerant detection with PJ .
As to Robert's claim that the evidence of PJ's alerts to the presence of
accelerants at the fire scene was unreliable because it was contradicted by the negative
results of the lab testing of the samples, we believe that there was a sufficient showing
of reliability to allow the evidence despite the negative laboratory results. As noted
above, Cannon testified that through his training with PJ, he has established that PJ is
able to accurately detect the presence of as little as one micro liter (one-half of an
eyedropper) of an accelerant in a control sample . Kenneth Rider of the KSP forensic
laboratory, who tested the samples, testified that in order for a lab to detect the
presence of an accelerant, there needs to be 15-20 parts per million of accelerant in the
sample . Both Rider and Cannon testified that simply because a sample tests negative
for ignitable liquids in a laboratory does not mean that an accelerant was not used in the
fire . Rider and Cannon explained that ignitable liquid can be consumed in the fire or
evaporate, leaving behind too small of an amount of accelerant to be detected in
laboratory testing. Cannon testified to two particular fires where samples from areas
where PJ had alerted tested negative for accelerants in the lab, but it was later
confirmed from confessions of the defendants that accelerants had been used in the
particular locations where PJ had alerted . The controls employed by the handler - the
calibration of the dog before going into the scene and re-introducing the dog to the
samples along with a non-accelerant control sample away from the fire scene - also
help to insure the reliability of the evidence. As recognized by the trial court, the jury
heard the evidence of the negative lab results of the samples and was free to weigh this
evidence against the evidence of PJ's alerts to accelerants in the trailer. This was but
one piece of evidence that could assist the jury in determining whether this fire was
intentionally set. As shall be discussed below, PJ's alerts to the presence of
accelerants in the trailer was not the only evidence that this fire was the result of Arson .
SUFFICIENCY OF EVIDENCE ON THE ARSON, FIRST-DEGREE ASSAULT AND
MANSLAUGHTER CONVICTIONS
Robert argues that there was insufficient circumstantial evidence that he
intentionally started the fire in this case (KRS 513.020), which was the basis for the
Manslaughter and First-Degree Assault convictions for causing the death of Cameron
and serious physical injury to Saralynn in the fire . Thus, he maintains that the trial court
erred in denying his motion for directed verdict on those three charges. KRS
513.020(1) provides :
A person is guilty of arson in the first degree when, with the
intent to destroy or damage a building, he starts a fire or
causes an explosion, and;
(a) The building is inhabited or occupied or the person has
reason to believe the building may be inhabited or occupied;
or
(b) Any other person sustains serious physical injury as a
result of the fire or explosion or the firefighting as a result
thereof.
Our standard of review on a motion for directed verdict is set forth in
Commonwealth v. Benham, 816 S .W.2d 186,187 (Ky. 1991) as follows :
On motion for directed verdict, the trial court must draw all
fair and reasonable inferences from the evidence in favor of
the Commonwealth . If the evidence is sufficient to induce a
reasonable juror to believe beyond a reasonable doubt that
the defendant is guilty, a directed verdict should not be
given . .. .
On appellate review, the test of a directed verdict is, if under
the evidence as a whole, it would be clearly unreasonable
for a jury to find guilt, only then the defendant is entitled to a
directed verdict of acquittal .
"The test is the same .when the only evidence of guilt is circumstantial ." Ratliff v.
Commonwealth, 194 S.W.3d 258, 267 (Ky. 2006) (citing Bussell v. Commonwealth , 882
S.W.2d 111, 114 (Ky. 1994) and Nugent v. Commonwealth , 639 S.W.2d 761, 763-64
(Ky. 1982)) .
As to the evidence that the fire was intentionally set, besides the dog's alerts to
the presence of accelerants, David West (a fire investigator for KSP), AI Gregory
(Assistant Fire Marshall), Samual Flowers (Kentucky Fire Marshall), and Buster Cannon
all testified that the burn pattern of the fire pointed to Arson . They testified that the low,
deep (all the way through the floor), v-shaped burn patterns and the fact that these
areas of deep burn were not connected were indicative of a fire that was intentionally
set. Flowers explained that fires usually burn upward, but when an accelerant is used,
a fire burns low and deep. Flowers and West both testified that their investigation of the
fire scene revealed that there were three separate fire origins in the trailer that were not
connected at floor level . This coupled with the fact that there was no evidence of any
electrical fire, fire from the stove, or act of God led them to the conclusion that the fire
was intentionally set with a combustible liquid. Cannon also testified that there was a
shiny coating in the areas of deep burn, which is consistent with an accelerant being
used . Finally, West testified that charcoal lighter fluid was found in the trailer, which
could have been used to start the fire, and a lighter was found in the yard behind the
trailer the day after the fire .
As to the evidence that Robert was the one who started the fire, there was
evidence that Robert was angry at April on the day in question and was at the trailer
with Cameron and Saralynn at the time of the fire. April testified that she and Robert
had gotten into a fight that afternoon about her affair that culminated in Robert choking
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her. When she left with Zachary and Nicholas, Robert was at the trailer with Cameron
and Saralynn.
Kay Lyons, who had taken Robert to the liquor store before the fire, also testified
that April and Robert were fighting on the day of the fire . Lyons testified that after she
brought Robert back to his house, Robert asked her to take Zachary and Nicholas with
her. Lyons replied that she would take all four children . Robert indicated that the other
two children were taken care of and were in the house asleep. When she refused to
only take Zachary and Nicholas, Robert got angry and took out a knife and said, "you
don't know what I can do to you ." At that point, Lyons went to the police station to
report Robert's threat.
Robert's own testimony was consistent with the evidence that he was at the
trailer at the time of the fire and had the means to start the fire . Robert testified that
after Lyons dropped him off, he went and got the children from the house of Charlotte
Bellor, a neighbor who was friends with April . The last thing he remembered was
coming back to the trailer with more alcohol and sitting in his chair in the trailer. After
that, Robert maintains that he blacked out and remembers nothing until he was at the
sally port at the jail later that night . Robert also testified that he usually carried a lighter
on his person and that he likely had one on the night of the fire .
The first police report regarding the events of that evening was made by
Charlotte Bellor. Bellor called 911 to report that Robert was drunk and trying to kick her
door in. In that call, Bellor also reported that she could see smoke and fire coming out
of Robert's trailer.
The next time Robert was seen was at the home of Tina Maskin, another
neighbor of Robert's . Maskin testified that Robert came to her home in a very
intoxicated state . Maskin allowed him to come in the house and, while seated on her
couch, she observed that he kept flicking a lighter and playing with a pocket knife.
Maskin told her children to lock themselves in the bathroom. Maskin then noticed that
the police were at Robert's home and advised Robert of this . Robert went into Maskin's
bedroom and tried to hide under her bed. When Maskin told him that his trailer
appeared to be on fire, Robert responded that April had better have gotten Cameron
and Saralynn out.
When Officer Ronald Mills of the Russellville Police Department responded to the
fire, Robert was at the scene . According to Mills, Robert kept repeating the statement,
"The bitch better have gotten Cameron and Saralynn out." And, when Robert was taken
into custody, he made the statement multiple times to Officer Chad Eggleston and
Officer Ed Higgins, "If that bitch had done to you what she did to me, you would have
done the same fucking thing ."
From our review of the evidence in the light most favorable to the
Commonwealth, there was more than sufficient evidence to induce a reasonable juror to
believe beyond a reasonable doubt that Robert intentionally set the fire in the trailer.
The Commonwealth presented evidence that the fire was intentionally set, that Robert
was at the trailer at the time of the fire, had a motive to start the fire (anger at April), had
the means to start the fire (lighter and lighter fluid), and that the trailer was occupied by
other persons who sustained serious physical injury in the fire. Additionally, there was
the evidence of the statement made by Robert to police after the fire that could be
viewed as a confession - "If that bitch had done to you what she did to me, you would
have done the same fucking thing ." And contrary to Robert's assertion that finding him
guilty of arson required a pyramiding of inferences in violation of Pengleton v.
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Commonwealth , 294 Ky. 484, 172 S .W.2d 52 (1943), the inference that the fire was
intentionally set and the inference that Robert set the fire were not dependent on one
another. As can be seen from our analysis above, there was a completely separate
body of evidence supporting the reasonable inferences that the fire was the result of
arson and that Robert was the one who set the fire.
IN FORMING OUT-OF-STATE WITNESS OF ARREST WARRANT
Witness Lindsey Bromm was subpoenaed to testify on behalf of the
Commonwealth pursuant to a summons served on her in Missouri, where she resided at
the time of trial . It is undisputed that the procedural requirements of KRS 421 .250 to
procure her attendance were not followed . During the trial, prior to her testimony, the
Commonwealth informed the court during a bench conference that there was an
outstanding felony warrant for her arrest on a charge of Theft By Unlawful Taking from
when Bromm previously resided in Kentucky. The court asked the attorneys how they
wanted the matter to be handled. Defense counsel did not express any preference .
The prosecutor asked that Bromm be arrested after her testimony, but left the issue of
her bond to the court's discretion. Defense counsel responded, "that's fine ." The court
then called Lindsey Bromm up to the bench (out of the hearing of the jury) and informed
her of the outstanding bench warrant for her arrest in Kentucky and of the charge
against her. The judge told her that he was releasing her on her own recognizance on
the condition that she show up on Monday to testify at Robert's trial and show up to
answer to the charges against her. Bromm agreed . The court thereupon asked the
bailiff to take Bromm for her bond interview. Subsequently, on February 13, 2006,
Bromm testified for the Commonwealth in this case.
On appeal, Robert claims that informing Bromm that she would be arrested and
then having her arrested violated KRS 421 .260(1) which provides :
If a person comes into this state in obedience to a summons
directing him to attend and testify in this state he shall not
while in this state pursuant to such summons be subject to
arrest or the service of process, civil or criminal, in
connection with matters which arose before his entrance into
this state under the summons .
Robert contends that such violation constituted structural error that undermined
the fundamental framework of the trial, because Bromm was essentially threatened with
prosecution and thus there was a high risk that her testimony was prejudiced in favor of
the Commonwealth. "`[A] structural error' affects the entire framework of the trial and
therefore defies harmless error analysis ." Quarels v. Commonwealth , 142 S .W.3d 73,
81 (Ky. 2004) (quoting Arizona v. Fulminante , 499 U .S. 279, 309, 111 S . Ct. 1246,
1265, 113 L. Ed. 2d 302 (1991)).
We agree that under KRS 421 .260(1), it was error to have Bromm arrested while
she was present in Kentucky to testify as a witness in this trial. However, there was no
evidence that Bromm was threatened with prosecution by the Commonwealth relative to
her testimony at Robert's trial or that her testimony was in any way coerced by the
Commonwealth. Accordingly, we adjudge this was not a structural error that affected
the entire framework of the trial. Rather, it was a "`trial error' which may be
`quantitatively assessed in the context of other evidence presented . . ."' Quarels , 142
S.W .3d at 81 (quoting Fulminante , 499 U .S. at 307-08, 111 S. Ct. at 1264) .
Neither party raised the issue of KRS 421 .260 before the trial court. RCr 9.22 .
Hence, the error must rise to the level of palpable error to be reversible . RCr 10.26.
Under RCr 10 .26, "an error is reversible only if a manifest injustice has resulted from the
error." Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006) (quoting Graves v.
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Commonwealth, 17 S.W.3d 858, 864 (Ky. 2000)). "To discover manifest injustice, a
reviewing court must plumb the depths of the proceeding . . . to determine whether the
defect in the proceeding was shocking or jurisprudentially intolerable ." Id. a t 4. Here
we cannot say that informing Bromm of the arrest warrant and executing the arrest
warrant (although she was never jailed) before her testimony constituted palpable error .
Bromm voluntarily appeared and testified at Robert's trial, even though she was not
properly subpoenaed as an out of state witness pursuant to KRS 421 .250 . There was
no indication that Bromm testified more favorably for the Commonwealth because of the
arrest warrant, and there has been no allegation by Robert that Bromm did not testify
truthfully . Although Bromm's testimony corroborated April's version of the events of
September 11, 2004, and supported April's alibi, she provided no testimony about the
fire or about Robert's possible involvement in the fire .
TRIAL COURT'S REFUSAL TO ACCEPT APPELLANT'S GUILTY PLEA
On February 8, 2006, Robert attempted to enter a guilty plea pursuant to a plea
bargain with the Commonwealth whereby he agreed to plead guilty to a combination of
reduced/dismissed charges in exchange for
a recommendation of a twenty-five year
sentence . At the plea hearing, the court stated to Robert, "Tell me what you did ."
Robert responded, "I left them in the trailer by theirself . I recklessly left them in the
house while I was drunk and recklessly started the fire ." Robert continued, "I left the
kids in the house and I went to look for April . Then the house caught on fire and they
got injured ." The trial judge told Robert that the facts as given to him by Robert did not
constitute First-Degree Assault . The court then asked, "Did you do anything to start the
fire? Tell me the truth." Robert answered, "Recklessly, I did your honor."
A bench conference then ensued wherein the judge instructed defense counsel
that he was looking for the truth and was not going to allow anyone to plead guilty
simply by reciting a legal term. Defense counsel then explained that they had prepared
for Robert to plead guilty to a reckless state of mind relative to the reduced ThirdDegree Arson charge . Again the judge asked Robert to tell him the truth. After a break,
Robert again attempted to plead guilty, stating "I believe I recklessly left a cigarette out
when me and April were fighting and arguing . A cigarette got knocked out of my hand
and fell on the couch, and I believe that's how the fire got started." The court concluded
that the plea was actually an Alford plea and refused to accept it because it had a policy
of rarely accepting Alford pleas . The court told Robert that he would accept the Alford
plea only as an open plea, allowing the Commonwealth to put on its case in chief for
jury sentencing .
A court may refuse to accept a guilty plea. RCr 8.08. In Hoskins v. Maricle , 150
S .W.3d 1, 21 (Ky. 2004) (citing Cobb v. Commonwealth, 821 S .W.2d 817, 818 (Ky.App.
1992)), this Court made clear that "in Kentucky, a defendant has no right to plead guilty
to a lesser included offense for the purpose of precluding conviction of the indicted
offense ." A "charge bargain", which dismisses or amends one or more charges in
exchange for a guilty plea on the reduced charges, or a "hybrid bargain", which is a
charge bargain with an additional agreement as to sentencing, can be approved or
rejected at the discretion of the trial court, so long as the court independently reviews
the agreement and sets forth the prosecutor's reasons for the bargain and the court's
reasons for rejecting the bargain . Id. at 22-24.
The written plea agreement is not in the record before us, but it is clear from the
videotape of the plea proceedings that the plea bargain in the present case was a
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hybrid bargain . Although the court did not explicitly state the prosecutor's reasons for
forming the plea bargain, Robert does not complain about this deficiency. The court
clearly articulated that it was rejecting the plea because it wanted Robert to truthfully
admit the facts behind the charges he was pleading guilty to, and that the plea was
essentially an Alford plea . Robert argues that it was an abuse of discretion to reject the
plea for this reason . We disagree . There was no abuse of discretion in refusing to
accept the guilty plea in this case .
APPELLANT'S RIGHT TO CONFRONT CHI LD WITNESS
In anticipation of its upcoming child witness, Zachary Carpenter, who was seven
years old at the time of trial, the Commonwealth moved to have Zachary testify in
chambers via closed circuit television because of anxiety the child was having about
testifying with Robert in the room. The court held a hearing on the motion. At the
hearing, Melinda Gill, Zachary's school-based therapist, testified that Zachary was
highly susceptible to influence and she was concerned that he would skew his
testimony to say what the most powerful person in the room wanted to hear . Gill stated
that Zachary would most assuredly view Robert as the most powerful person in the
room . Gill also testified that Zachary was having some anxiety about testifying at
Robert's trial, although she stated that when she told Zachary about the trial, Zachary
smiled and asked if he was going to get to talk to Robert. Zachary's foster mother
testified that Zachary had been complaining of
a stomachache since being told that he
would be testifying at the trial . The Commonwealth further expressed concern for
Zachary because during April's testimony, Robert had gotten up from his seat at the
defense table and moved, and the prosecution believed this might have been in an
17
effort to intimidate April . The prosecutor claimed that April's demeanor changed after
this move by Robert.
The court decided to allow Zachary to testify in chambers, although it expressed
that it was risky for the Commonwealth . Before Zachary was to be called, the
Commonwealth changed its mind and informed the court that it now felt that Zachary
should testify in open court in the presence of Robert. However, the Commonwealth
still sought to minimize the chance that Robert could intimidate Zachary . The trial judge
suggested that Robert move his chair at the defense table six inches toward the wall
and not be permitted to move during Zachary's testimony. Robert's chair was moved
(the jury was not in the courtroom at this time) and the judge then sat in the witness
chair himself and noted that the child should only be able to see the top of Robert's
head when testifying. Defense counsel expressed her continuing objection that Robert
would be unconstitutionally denied his right to confront his accuser face to face .
Zachary was then called as a witness and sat in the witness chair to the right of
the judge that all previous witnesses had sat in . The configuration of the courtroom
appeared to be that in looking out into the courtroom from the vantage point of the
witness box, the defense table was far to the left. It was not possible in viewing the
videotape of the trial to ascertain whether or how much Zachary and Robert could see
each other during Zachary's testimony.
Zachary's testimony at trial corroborated April's and Bromm's testimony that
Zachary, Nicholas and their mom were at Bromm's house before the fire . Zachary
testified that when his mom and he walked back to the trailer, they could see that it was
on fire.
On appeal, Robert argues that by requiring him to move his chair to obstruct
Zachary's view of him during Zachary's testimony, he was denied his right to confront
his accuser face to face in violation of the Sixth Amendment of the United States
Constitution . "The Confrontation Clause of the Sixth Amendment . . . provides : `In all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him."' Maryland v. Craig, 497 U.S. 836, 844, 110 S . Ct. 3157, 3162,
111 L. Ed. 2d 666 (1990) . Section 11 of the Kentucky Constitution reads, in part, "In all
criminal prosecutions, the accused has the right to . . . meet the witnesses face to face."
G reene v. Commonwealth, 197 S.W .3d 76, 83 (Ky. 2006), cert. denied, -U .S.-, 127
S. Ct. 1157, 166 L. Ed. 2d 1001 (2007), made it clear that KRS 421 .350, which allows
witnesses under the age of twelve to testify out of court under certain circumstances if
they are a victim or witness to one of the specifically enumerated crimes (mostly sexual
crimes), is limited to trials for those particular offenses only. In Greene , it was held to
be error to allow a child witness to testify via closed circuit television in a Murder trial
because Murder and Manslaughter were not in the class of specifically enumerated
offenses in the statute . Id.
However, the Court found the error to be harmless where
the child's testimony was cumulative of other evidence presented and not critical to the
Commonwealth's case. Id. at 84-85 .
In the present case the prosecution clearly could not avail itself of KRS 421 .350
because none of the offenses with which Robert was charged were included in the class
of offenses in the statute . However, Zachary testified in open court, and although the
record does not confirm whether Robert and Zachary could see each other's faces
during Zachary's testimony, it was established that each was nevertheless aware of the
other's presence at trial. During the bench conference before Zachary's testimony, the
19
attorneys noted that Zachary had seen Robert in the hallway and knew he would be
present at trial. In our view, even if there was error in obstructing Zachary's view of the
defendant, any error was harmless. As in Greene, Zachary's testimony was cumulative
of other witnesses - April and Bromm - and was not critical to the Commonwealth's
case.
For the above stated reasons, the judgment of the Logan Circuit Court is
affirmed .
Lambert, C .J. ; Abramson, Cunningham, Minton, and Schroder, JJ., concur. Scott
J., files a separate opinion concurring in part and dissenting in part in which Noble, J.
joins.
COUNSEL FOR APPELLANT:
Susan Jackson Balliet
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Gregory D . Stumbo
Attorney General
David W. Barr
Assistant Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, KY 40601-8204
RENDERED : DECEMBER 20, 2007
TO BE PUBLISHED
,iixyrtme Courf of Rrufurhg
2006-SC-000327-MR
ROBERT YELL
V.
APPELLANT
ON APPEAL FROM LOGAN CIRCUIT COURT
HONORABLE TYLER L. GILL, JUDGE
NO . 04-CR-000232
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION BY JUSTICE SCOTT
CONCURRING IN PART AND DISSENTING IN PART
Although I concur with the majority on the other issues, I must respectfully
dissent in regards to the admissibility of evidence regarding arson dog alerts to
the presence of accelerants where scientific tests do not confirm the presence of
accelerants in the samples taken from the sites alerted to.
At trial, it was acknowledged that the arson dog, PJ's, arson detection
skills had not been recertified for at least four months prior to the fire and she had
never been trained on lighter fluid . She was having a bad day and was more
interested in playing, than she was in investigating the fire.
At the trailer, she "wasn't concerned," and PJ's handler had to "make PJ
get her nose down" and reward her to get her to perform her sitting behavior .
Only then did PJ sit at six locations in the trailer and receive six more food treats.
No one, including PJ's handler, Buster Cannon, retained any record of where, or
how, or with what specific encouragement PJ sat down six times in the trailer.
Samples were then collected for testing from the six spots where PJ sat down .
Every one of the KSP lab results of these samples were negative for accelerants .
The KSP forensic lab has the ability to accurately identify accelerants in
vapor given off by samples from the scene at concentrations as low as 15-20
parts per million . The ability to confirm the presence of these liquids at 15-20
parts per million is state-of-the-art science .
At the Daubert hearing, PJ's handler admitted that, even regarding
concentrations above 15-20 parts per million, he had no documentation of PJ's
accuracy rate, because he kept no log on PJ's field work. He had rarely, if ever,
received any follow-up information that would inform him whether PJ was right or
wrong in any cases PJ had worked . In fact, he admitted that, for all he knew, PJ
could be "all wrong." Yet, in closing argument, the Commonwealth drove home
PJ the dog's opinion at least five times, even though the KSP forensic lab results
indicated that there were no ignitable liquids on a single scrap from the trailer .
Having grown up with, trained, and hunted scenting dogs most of my life, I
believe there is a high probability that the specter of good of PJ, mans' best
friend, who even the judge said would not lie,' overshadowed all the other
evidence in this case and played a highly prejudicial role in convincing the jury to
convict Appellant of intentional arson . The belief of humanity in the extraordinary
abilities of scent-tracking dogs is so trustful even, that we took judicial notice of
their abilities over 100 years ago. Pedigo v. Commonwealth , 103 Ky. 41, 44
S .W . 143 (1898) .
' "[D]ogs are such honest animals . They don't lie unless they want food ."
2
This case, however, does not involve tracking dogs, which have proved
their mettle over the centuries by locating prey, or the escapee, at the end of the
trail. Nor does it involve questions of "probable cause" common to the use of
narcotic alert dogs, who again alert to the existence of contraband, the existence
of which is soon evident . See Morton v. Commonwealth , 232 S.W.3d 566, 569
(Ky . App. 2007) ("when the drug dog detected the odor of drugs inside Morton's
vehicle . . . Hord was provided with probable cause"). It deals with dogs trained
under differing standards to alert to the presence of accelerants, something we
can never see, but one which is fraught with the presence of the trust developed
between us over thousands of years .
"[W]e [should] recognize that the real danger posed by admitting [such]
evidence lies not simply in its fallibility, but in its potential to prejudice ." People v.
Cruz, 643 N .E.2d 636, 662 (111. 1994) .
It is well known that the exercise of a mysterious power, not
possessed by human beings, begets in the minds of many people a
superstitious awe . . . that they see in such an exhibition a direct
interposition of Divine Providence in aid of human justice. The very
name by which the animal is called has a direct tendency to
enhance the impressiveness of the performance, and it would be
dangerous in the extreme to permit the introduction of such
testimony in a criminal case under conditions which did not fully
justify its consideration . . . .
Pedigo v. Commonwealth , 44 S .W . at 14546.
In fact,
[The canine accelerant alert] program is built around the lab
analysis of samples taken by investigators after the dogs key in on
the location of residual accelerants on a fire scene . Despite the
dogs' inherent ability to locate accelerants, lab analysis of samples
is the key to the program's success . "There are kind of two camps
on the dogs' use," says Sgt. Jeff Howard, arson section manager
with OSP [Oregon State Police]. "The Connecticut State Police and
the ATF [The Federal Bureau of Alcohol and Tobacco Firearms]
3
have stressed the party line from the beginning -- the dog is just a
tool. Period. He who uses the dog as an expert without lab
confirmation is a fool."
Kelly Andersson, Arson Dogs, Wildland Firefighter Magazine (1997),
http://www.workingdogs .com/doc0130 .htm . These are not my words, but the
words of the Arson Section Manager of the Oregon State Police . Even the
guideline "published by the National Fire Protection Association suggests that
evidence of a canine alert that is not confirmed by laboratory testing should not
be considered valid." Commonwealth v. Crouse, 855 N.E.2d 391, 402 (Mass.
2006).
"While the reliability of tracking dogs has been widely recognized and
generally accepted by the courts, with thirty-two states approving of admissions
of trailing by [dogs], courts have been much less receptive to accelerant
detection [canine alerts] not confirmed by laboratory analysis ." State v. Sharp,
928 A.2d 165, 169 (N .J . Super. Ct. Law. Div. 2006) . In fact, "[t]here is substantial
scientific agreement that unconfirmed canine alerts are not reliable in the
absence of laboratory confirmation, largely due to the fact the canines cannot
meaningfully discriminate between background pyrolysis products [those created
by the combustion] and accelerants ." Id . at 170; see also John D . DeHaan,
Kirk's Fire Investigation 543 (6th Ed . 2006) ("without a specific verifiable
identification of just what is present [by a lab], the investigator cannot decide the
significance of such positive alerts") .
Most courts that have considered the issue of uncorroborated canine
accelerant alerts have found them to be novel scientific evidence, not generally
accepted in the scientific community of arson investigators . See Farm Bureau
Mut. Ins. Co . v. Foote, 14 S .W .3d 512 (Ark. 2000) (holding that testimony that
accelerant detection canine is more reliable than laboratory equipment is without
scientific validity) ; Carr v. State, 482 S.E.2d 314 (Ga. 1997) (holding that
reliability of uncorroborated canine alerts is questionable) ; Sharp, 982 A.2d at
171 ; State v. Webber, 716 A .2d 738, 741-742 (R .I . 1998) (reversing conviction
under balancing test of R.I . Rule of Evidence 403 where lab tests of alert areas
were negative for accelerants); People v. Acri, 662 N .E.2d 115 (III . App. 1996)
(stating that uncorroborated alerts are not generally accepted); State v. Shultz,
58 P.3d 879, 885 (Utah App. 2002) (stating that uncorroborated alert is "novel
scientific evidence"); see also Fitts v. State, 982 S.W .2d 175, 183 (Tex . App .
1998) ("[canine's] reliability was . . . evidenced by the laboratory test showing the
presence of gasoline at the scene.") ; but see State v. Buller, 517 N .W.2d 711 (la.
1994) (requiring dog accuracy foundation be laid in making determinations of
admissibility subject to Iowa Rule of Evidence 403 balancing test);
Commonwealth v. Crouse, 855 N.E .2d 391 (Mass. 2006) (permitting testimony of
accelerant detection despite an absence of lab results where gas station
surveillance video tape showed the defendant pumping gasoline into the right .
rear cargo area of the truck in the exact area of the dog's alert along with
statements of the defendant that he had purchased the gasoline) ;
Commonwealth v. Gwynn, 723 A.2d 143, 152 (Pa. 1999) (admitting evidence of
unconfirmed . canine accelerant alert in trial where Appellant's confession
indicated he had poured the gasoline and ignited the fire accidentally) ; Fones v.
State , 765 So.2d 849, 850 (Fla. App. 2000) (permitting testimony of accelerant
dog alert despite absence of lab results) .
In Debruler v. Commonwealth, 231 S.W .3d 752, 757 (Ky. 2007), we held
that testimony relating to a scent-tracking dog's action "concerned the results of
an investigative technique, not a scientific procedure." Yet here, by approving
testimony of canine accelerant alerts without lab verification, we are supplanting
scientific procedure with an investigative
technique.
I
can not be a party to this
until testimony regarding such unconfirmed alerts is generally accepted in the
scientific community of arson investigators . See Kumho Tire Co . . Ltd. v.
Carmichael , 526 U.S. 137,119 S .Ct. 1167, 143 L.Ed .2d 238 (1999); Goodyear
Tire & Rubber Co . v. Thompson , 11 S .W .3d 575 (Ky. 2000). For these reasons, I
record my dissent.
Noble, J., joins this dissent .
uyrrmr Courf of ~irufurhV
2006-SC-000327-MR
ROBERT YELL
V.
APPELLANT
ON APPEAL FROM LOGAN CIRCUIT COURT
HONORABLE TYLER L. GILL, JUDGE
NO. 04-CR-000232
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER
On the Court's own motion, the Memorandum Opinion of the Court rendered
December 20, 2007 shall be modified on page 1 by changing it To Be Published and the
attached Concurring in Part and Dissenting in Part Opinion shall be modified on page 1
by changing it To Be Published. Page 1 of the Memorandum Opinion of the Court and
page 1 of the attached Concurring
in Part and
Dissenting in Part Opinion shall be
substituted, as attached hereto, in lieu of page 1 of each of the Opinions as originally
rendered . Said modification does not affect the holding .
ENTERED: December 21, 2007.
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