GEORGE A. LUNA V. COMMONWEALTH OF KENTUCKY
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RENDERED : NOVEMBER 18, 2010
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2008-SC-000652-MR
GEORGE A. LUNA
V.
APPELLANT
ON APPEAL FROM MARSHALL CIRCUIT COURT
HONORABLE DENNIS R. FOUST, JUDGE
NO . 07-CR-00151
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
REVERSING AND REMANDING
George Luna appeals his convictions for murder and first-degree arson,
for which he was sentenced to life imprisonment . Luna assigns error in the
trial court's : failure to excuse two jurors for cause; refusal to grant a mistrial
after references to a polygraph and Luna's probation were made in a police
interview played for the jury; allowing evidence that Luna previously set his
own car on fire ; failing to exclude the testimony of a witness regarding matters
not disclosed during discovery; allowing evidence that Luna had previously
been involved in a burglary which culminated, in a shootout with police; and
allowing evidence of three other fires in Illinois involving Luna. We adjudge
that the trial court erred in failing to excuse one of the jurors for cause, in
allowing in evidence regarding the offer of the polygraph and of Luna being on
probation, and in admitting the evidence of the two previous fires involving
Luna. Accordingly, we reverse and remand for a new trial or further
proceedings consistent with this opinion.
At around 6:25 p .m ., Appellant, George Luna, called 911 to report a fire
at the trailer belonging to the victim herein, Debra Hendrickson. In the call,
Luna was belligerent with the dispatcher and claimed he did not know
Hendrickson's last name or where the trailer was located. The evidence at trial
established, and Luna admitted in his interview with police, that he (Luna)
made the 911 call from Hendrickson's cell phone while he was driving her
truck to Illinois.
The fire at Hendrickson's trailer was discovered an hour and a half later
by a neighbor who was driving by and noticed a bright glow in the trailer. The
neighbor called 911 and went to the trailer, but did not think Hendrickson was
home because her car was not there. The body of Debra Hendrickson was
subsequently discovered inside the trailer when the fire department arrived at
the scene. The arson investigation revealed the presence of an accelerant in
three areas around the body. The autopsy report stated the cause of death as
blunt-force head trauma.
Luna was driving through southern Illinois when he was pulled over by
Illinois police at 7:34 p.m. for speeding. He was clocked driving Hendrickson's
truck at 100 miles per hour. The trooper arrested Luna for operating a vehicle
on a suspended license and for outstanding warrants . Illinois police were
subsequently notified that Luna was a suspect in the Hendrickson
murder/arson investigation in Kentucky.
The following day, Detective Matt Hilbrecht of the Marshall County
Sheriffs Department traveled to Marion, Illinois to interview Luna in the
Williamson County Jail. Luna denied any involvement in the arson and
murder of Hendrickson.
According to Luna's account of events in the interview, he was living
rent-free with Hendrickson in her trailer, although he maintained they were
only friends. He stated that on the day she was murdered, he and
Hendrickson went to two bars in Paducah, and then to a liquor store. Luna
claimed that Hendrickson met a man at the liquor store, who she told him
would be coming over to her trailer later. Luna then drove Hendrickson back
to her trailer and decided to go visit his daughter in Illinois. Luna grabbed
some clothes and his tools and put them in Hendrickson's truck, which he
claimed he was in the process of buying from Hendrickson, and left for Illinois.
According to Luna, Hendrickson was on the front porch of the trailer when he
left for Illinois . When he got all the way to Paducah, he realized he forgot his
level, which he needed for work, so he turned around and went back to
Hendrickson's trailer. As he was getting his level from the garage next to
Hendrickson's trailer, he claimed he saw what looked like flames in the window
of the trailer. Luna told police that''he thought he was probably just drunk, so
he left and thereafter called 911 .
Luna was indicted on charges of murder and first-degree arson. After a
four-day jury trial, Luna was convicted of both charged offenses and a sentence
of life imprisonment was recommended for each offense. From the final
judgment sentencing Luna to life imprisonment, Luna now appeals as a matter
of right.
FAILURE TO EXCUSE TWO JURORS FOR CAUSE
Luna assigns as error two jurors who he maintains should have been
dismissed for cause because of information they had previously read about the
case. The trial court declined to dismiss the two jurors for cause, forcing Luna
to use his peremptory challenges on the jurors. Luna maintains that the
answers given during the following individual voir dire of the first juror
demonstrated the bias of this juror:
Judge: Now have you read, seen or heard anything
concerning Mr. Luna, the defendant in this case?
Juror: (inaudible) . . . that in the paper .
Judge: And anything specific about that, any specific
information?
Juror: Unh uh. (indicates negative response)
Judge : What are your thoughts, beliefs, or feelings
about the information you've received about Mr. Luna?
Juror: Well, I mean, if what was in the paper was
correct, the lady was really nice and helped him a lot
and that's a poor way to pay her back.
Defense counsel: I'm sorry.
Juror: I said, that's a very poor way to pay her back.
Judge: Okay, based on what you've read, have you
formed any opinions about this case?
Juror: No, I don't think so .
Judge: Have you read, seen or heard anything
concerning Debra Hendrickson, the alleged victim in
this case?
Juror: Well, the letters that people, her friends, wrote
in about it, uh, how they thought it, I mean, she was
mistreated, obviously.
Judge: Okay, and any other specific information that
you might have received?
Juror: No .
Judge : Okay, and what are your thoughts, feelings, or
beliefs on the information you've received with respect
to her?
Juror: Ah, I mean, it was sad that it happened . I
don't have a particular, uh, way of thinking about it I
guess.
Judge: Okay. Do you feel like, that uh, just what
you've heard so far, and I think from what you said,
you understand that the charges for which the
defendant stands are murder and arson. Do you have
any opinions, any preconceived notions, as to his
innocence or guilt?
Juror: Well, just reading the paper, I mean, I would
just assume that he was guilty.
Judge: Okay. Do you feel you could be a fair and
impartial juror in this case?
Juror: It would be hard, but yes I think so.
Judge : Alright.
Commonwealth : You made an important statement.
You can, you feel like, even though you've read the
publicity and you've read the letters that have come
into the paper, uh, you can, you believe, listen to all
the evidence and base your verdict on that?
Juror: I think so, yes .
Commonwealth: Okay. And that's the key question
and I know Judge Foust hit on it pretty good. And I
know Mr. Erwin is gonna hit on it some more. But,
uh, can you, can you put your feelings that you've
read, and I know there is some feeling in the
community that she was a good woman and did a lot
of good things . But can you put all that aside, you
know, and just hear the evidence and decide whether
or not George Luna is guilty of homicide or not, based
on just the evidence? Can you do that?
Juror: I think so, yes.
Commonwealth : Okay, alright. Thank you.
Defense counsel: Mrs. Jones, you said you read some
letters that friends and family wrote in?
Juror: I mean it's been a while back. I think it was in
the letters to the editor.
Defense counsel: Okay. Was it in the Paducah Sun or
was that in the . . . .
Juror: The county paper.
Defense counsel: (inaudible) . How many letters were
there because I didn't get a chance to read these?
Juror: l, I don't know. I mean, it was right after it
first happened . So I'm not sure.
Defense counsel: Now, when the court asked you
about the assumptions you made, your initial instinct
was that you assumed Mr. Luna was guilty?
Juror: Yeah.
Defense counsel: Was that correct?
Juror: Yeah.
Defense counsel: And, how long have you felt that
way?
Juror: Well, I mean, it's just, reading through the
article, it's just kind of the way I did. Of course, it's
been a while and it hasn't been fresh in my mind.
Defense counsel: But you still assume he's guilty?
Juror: Well, it's hard not to.
Defense counsel: Nothing further.
It is ordinarily prejudicial error when a trial court erroneously fails to
strike a juror for cause, a defendant is forced to use a peremptory challenge to
remove that juror, and the defendant uses all available peremptory challenges .
Shane u. Commonwealth, 243 S.W.3d 336, 341 (Ky. 2007) . This Court has
recently held that error is non-prejudicial if the other jurors the defendant
would have used his peremptory strikes on do not actually sit on the jury.
Gabbard u . Commonwealth, 297 S.W.3d 844, 854 (Ky . 2009) (citing King u.
Commonwealth, 276 S.W.3d 270, 279 (Ky. 2009)) . To show that other jurors
actually sat on the jury that the defendant would have used his peremptory
strikes on, this Court in Gabbard added the requirement that "the defendant
must identify on his strike sheet any additional jurors he would have struck ."
297 S.W.3d at 854.
In the present case, Luna did not indicate on his strike sheet the other
jurors he would have stricken. However, the trial in this case was held in
August 2008, which was before Gabbard had been rendered. Luna argues that
because Gabbard was rendered in October of 2009, some fourteen months after
the trial in his case, he was not on notice of this requirement and should not
be held to its dictates. We agree that it would be unfair to retroactively impose
such a requirement on trial counsel when Shane, which was the law in effect at
the time of trial, contained no such requirement. Thus, our review is limited to
whether the trial court erroneously failed to excuse the juror in question for
cause.
A trial court's decision on whether to excuse a juror for cause will be
reviewed for an abuse of discretion . Shane, 243 S.W.3d at 338. Pursuant to
RCr 9.36(1), a judge must excuse a juror for cause if there is a "reasonable
ground to believe [the] prospective juror cannot render a fair and impartial
verdict on the evidence." The true test of whether a juror should be stricken for
cause is whether "the prospective juror can conform his views to the
requirements of the law and render a fair and impartial verdict." Thompson u.
Commonwealth, 147 S.W.3d 22, 51 (Ky. 2004) (quoting Mabe u. Commonwealth,
884 S.W.2d 668, 671 (Ky. 1994)).
The juror in the instant case stated that, based on information she had
read about the case, she assumed Luna was guilty. Despite the juror's
assertions that she could be impartial and decide the case based on the
evidence, she still expressed that "it's hard not to" assume Luna was guilty. In
Gabbard, this Court recently held that a juror who stated that she had made
up her mind that the defendant was guilty could not be rehabilitated and
should have been stricken for cause. 297 S.W.3d at 853-54. We likewise hold
in the present case that the trial court abused its discretion in refusing to
excuse the juror for cause because of her assumption that Luna was guilty.
Accordingly, we must reverse the judgment and remand for retrial of the case
or other proceedings consistent with our opinion. See Shane, 243 S.W.3d at
341 . For advisory purposes, we shall address the remaining issues raised that
are likely to arise on retrial. The issue raised regarding the second juror is
moot because that juror will not be seated on retrial.
MENTION OF POLYGRAPH OFFER AND THAT LUNA WAS ON PROBATION
During the trial, Luna's lengthy interview with police was admitted into
evidence and played for the jury. Prior to trial, Luna had sought to exclude the
interview on grounds that it was not relevant because Luna did not confess to
the crimes during the interview. The trial court denied the motion to suppress
the statement.
Prior to playing the recording of the statement at trial, the prosecutor
informed the court that he would not be playing a portion of the tape that
referred to a matter that the trial court excluded in a previous ruling. The
parties and the court agreed that the prosecutor would stop the recording and
forward over that portion of the tape . No mention was made by either party of
any other portion of the statement which needed to be redacted.
During the interview, Officer Matt Hilbrecht asked Luna if he would be
willing to submit to a polygraph examination if the police felt it was necessary.
Luna responded that he did not know if he would submit to the test, but stated
that he would consider it. Later in the interview, when Luna asked what he
was being held for, Hilbrecht mentioned a probation violation, as well as the
other charges (speeding and driving on a suspended license) for which he was
originally arrested. Defense counsel moved for a mistrial based on the
references to the polygraph and Luna's probation violation. The trial court
agreed that the references should have been redacted from the tape. However,
the court declined to grant the mistrial because defense counsel was aware of
what was on the tape prior to trial and had ample opportunity to make his
objection so that the references could be redacted before the tape was played.
Defense counsel did not ask for an admonition and none was given.
It has been held that the mere mention of the defendant taking a
polygraph examination, even without disclosure of the result, is error. Ice u.
Commonwealth, 667 S.W.2d 671 (Ky. 1984) . In McQueen u. Commonwealth,
however, an indefinite and ambiguous reference to a polygraph examiner was
held to be nonprejudicial error, where there was no indication that a polygraph
had been actually administered and to whom it had been given. 669 S.W.2d
519 (Ky. 1984). The McQueen Court stated, "There must arise a clear inference
that there was a result and that the result was favorable, or some other
manner in which the inference could be deemed prejudicial." Id. at 523. In the
present case, Officer Hilbrecht merely asked Luna if he would consider taking a
polygraph examination. While Luna responded that he was not sure and that
he might consider taking a polygraph, there was no evidence or inference in the
record that a polygraph examination was actually administered to Luna, let
alone that the result of such a test was favorable. This would distinguish the
instant case from Morgan v. Commonwealth, wherein the witness testified that
a polygraph instrument was in the interrogation room, creating the clear
inference that the defendant had been given a polygraph examination. 809
S.W.2d 704, 706 (Ky. 1991). Accordingly, the fact that Luna was asked by
authorities if he would consider taking a polygraph examination was not
prejudicial to Luna in this case. However, on retrial, we trust that the
reference to the polygraph will be redacted from the tape.
As for the reference to Luna being on probation, we agree, as did the trial
court, that there was no justification for such evidence to be admitted in this
case under KRE 404(b) or for any other reason. See Dennis v. Commonwealth,
526 S.W.2d 8, 10 (Ky. 1975) . Accordingly, the admission of this evidence was
in error in this trial.
LUNA'S PRIOR HISTORY WITH ILLINOIS POLICE
When Luna was transported to the Illinois police station after his arrest,
he was handcuffed and seated in a chair in the squad room awaiting the arrival
of Trooper Steve Nelson, while the officers who had transported him, Officers
Sorrells and James Wright, began working on paperwork at their respective
desks. According to the testimony of Officer Wright, while he was doing
paperwork at his desk, he heard Officer Sorrells yell, "Get back!" With that,
Officer Wright saw that Luna was approaching him from behind, and reacted
by pushing back against him, causing Luna to fall back and hit his head on the
chair he had been sitting in. Luna sustained a cut on his head, which required
four staples. Immediately after the incident, Luna told Officer Wright that if he
would let him bond out, he would tell everyone that he slipped and that it was
just an accident. When Wright refused and told Luna he would report the
incident as it happened, Luna became belligerent and said to him, "You don't
know who you're messing with. I'm the real thing. I will fucking kill you ."
According to Wright, Luna also threatened to kill his (Wright's) family.
When Officer Wright was cross-examined about the incident, defense
counsel asked if Luna may have been looking at what Wright was typing when
he approached him from behind, or if Luna's handcuffs were on too tight.
Defense counsel also emphasized in his questioning that the incident was not
videotaped .
On redirect, the prosecutor prefaced his questioning with the statement,
"Deputy Wright, I, I have a feeling that you're, you've been accused of a little bit
of police brutality." Defense counsel immediately objected and a bench
conference ensued. The prosecutor argued that defense counsel's questioning
of Wright was clearly meant to insinuate that Wright knocked Luna down on
purpose without justification, thus the Commonwealth was entitled to bring in
further evidence to show why Officer Wright reacted the way he did. Defense
counsel denied that his questioning was intended to insinuate that Luna was a
victim of police brutality and argued that the prosecution should not be
permitted to present prior bad act testimony in response to Luna's crossexamination of Wright.
The trial court agreed with the Commonwealth that Luna's counsel was
trying to create the impression that Luna had been roughed up by police
unjustifiably and, therefore, Luna opened the door for the prosecution to
explain and respond to the accusation . Hence, the trial court overruled the
objection and allowed the Commonwealth on redirect to explain further why
Officer Wright reacted the way he did in knocking Luna down.
The prosecutor then proceeded to ask Officer Wright if he had a history
with Luna prior to his arrest and what the nature of that encounter was.
Wright stated that he knew Luna from another incident with police stemming
from a burglary. Wright explained that when police responded to the burglary
call at a home, the suspects, one of whom was Luna, exchanged gunfire with
police as they fled the scene. Luna argues that such evidence did not serve any
legitimate KRE 404(b) purpose and was highly prejudicial . Thus, he claims it
was reversible error for the trial court to overrule his objection.
According to the doctrine of "curative admissibility," when one party
introduces improper evidence, it "opens the door" for the other party to
introduce improper evidence in rebuttal for the purpose of explaining or
rebutting the prior inadmissible evidence. Metcaif v. Commonwealth, 158
S.W.3d 740, 746 (Ky. 2005) ; Non-is v. Commonwealth, 89 S.W.3d 411, 414 (Ky.
2002) ; Lawson, The Kentucky Evidence Law Handbook, ยง 1 .10[5], at 43-44
(4th .
ed. 2003) . Although the evidence which "opens the door" is typically
inadmissible evidence, it can also be misleading evidence, to which the other
party must be allowed to respond to remove any unfair prejudice. See Norris,
89 S.W.3d at 414-15.
In the present case, the questioning of Officer Wright by the defense was
clearly intended to suggest that Luna was a victim of police brutality. Officer
i
Wright's testimony about Luna's prior history with the Williamson County
Police Department was necessary to explain Officer Wright's reaction to Luna
approaching him from behind and refute the allegation of police brutality.
Without that evidence, the defense would have been allowed to unfairly suggest
that Officer Wright had, at worst, intentionally shoved Luna, or, at best,
overreacted to the situation. Accordingly, we agree with the trial court that the
Commonwealth was entitled to present evidence that Luna was previously
involved in a shootout with the Williamson County Police.
EVIDENCE OF CAR FIRE
Prior to trial, Luna moved to exclude any statements made by him to
Bridget and Jerry Dehart regarding an incident before Hendrickson's murder
where his car burned up and he tried to get Hendrickson to make a fraudulent
insurance claim on the vehicle. The trial court denied the motion.
At trial, Bridget Dehart, a neighbor and friend of Hendrickson, testified
that one afternoon she saw Luna leave in his car and return some time later as
a passenger in a different car. When asked where his car was, Luna laughed,
saying that it was on fire down the road and was a hunk of metal . Dehart
testified that Luna subsequently asked Hendrickson to call the insurance
company and say that the car had been stolen out of her garage, so that he
could get the insurance money. According to Dehart, when Hendrickson
refused to make the call to report the car stolen, Luna became very upset with
Hendrickson .
It is worth noting that, although Luna characterizes Dehart's testimony
as evidence that Luna set his own car on fire (and seems to concede as much),
and the prosecutor argued that was the implication from the testimony, Dehart
did not actually testify that Luna told her he set the car on fire. She testified
only that he said the car was on fire down the road. However, Luna does not
argue that the evidence of the car fire was inadmissible because there was not
. sufficient evidence that he set his own car on fire . Rather, Luna argues that
evidence he set his own car on fire was not admissible under KRE 404(b).
KRE 404(b) provides as follows :
(b) Other crimes, wrongs, or acts. Evidence of other
crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in
conformity therewith. It may, however, be admissible:
(1) If offered for some other purpose, such as proof
of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or
accident;
Luna maintains that the evidence of the car fire was offered only to show
Luna's criminal propensity to coYnmit arson, while the Commonwealth argues
it was admissible to prove motive. Luna counters that evidence of the car fire
would not be relevant to the motive for burning Hendrickson's trailer because
the alleged motive for the car fire was collection of the insurance proceeds, and
there was no evidence of any monetary incentive for Hendrickson's fire or
murder.
Luna misses the point. The evidence of the car fire was not admissible to
show that the motive for both fires was the same. Rather, the fact that Luna
became very angry at Hendrickson for not helping him make a fraudulent
insurance claim on the car was admissible as a motive for Hendrickson's
murder. This was especially important for the Commonwealth here because,
although there was an abundance of evidence that Luna was the one who set
fire to the trailer and killed Hendrickson, there was little evidence as to his
motive . Accordingly, the trial court did not abuse its discretion in allowing the
evidence of Luna's prior car fire to be admitted.
DISCOVERY VIOLATION
At trial, the Commonwealth announced that it was calling Robert Davis
as a witness. The defense objected on grounds that it had no notice that Davis
would be called as a witness and that it had never been provided with any
copies of pretrial statements by Davis in discovery. A hearing on the motion
ensued in chambers . The Commonwealth pointed out that a statement made
by Robert Davis was mentioned in the statement of Dana Collie, which was
provided by the Commonwealth in discovery. Collie's statement was that Davis
had told her that Luna had slit Hendrickson's throat, beat her head in with a
hammer and then lit her body on fire. The defense argued that this mention of
Davis's statement contained within Collie's statement was not sufficient notice
to call Davis as a witness . The trial court ruled that it would allow Davis to
testify, but would reserve ruling on the limits of that testimony until the
examination of the witness.
Upon calling Davis as a witness, the Commonwealth asked him if Luna
had ever said anything to him about fires that happened in Illinois. Davis
responded that Luna had told him about a fire he had started in his garage
with gasoline and a cigar . When the Commonwealth then asked if Luna had
told him about other fires he'd had, the defense objected on KRE 404(b)
grounds. The trial court ruled that Davis could testify to statements Luna
made to him about other fires. Davis then testified about a trailer fire and a
house fire that Luna had in Illinois on the same property. When the
Commonwealth asked Davis if Luna had told him how those fires were set,
Davis responded that Luna had not. The Commonwealth next asked Davis if
Luna had ever talked to him about setting a fire to make it look like an
accident. Davis responded in the affirmative, stating that Luna had told him
about starting fires with candles and Febreze.
Luna first argues that Davis's testimony should have been excluded
because Luna did not get the required notice of Davis's statement pursuant to
RCr 7.24, which states that the "attorney for the Commonwealth shall disclose
the substance, including time, date, and place, of any oral incriminating
statement known by the attorney for the Commonwealth to have been made by
a defendant to any witness . . . ... This Court recently held that in order to be
subject to RCr 7 .24, a statement must be incriminating at the time it is made.
Chestnut v. Commonwealth, 250 S.W.3d 288, 296 (Ky. 2008). Although Luna's
statements to Davis did not relate to the Hendrickson arson and murder, the
statements were nonetheless incriminating when they were made because they
were admissions that Luna knew how to and did commit arson. We further
agree with Luna that the reference to Robert Davis in another witness's
statement did not meet the disclosure requirements of RCr 7.24(1), especially
given that Davis was not questioned regarding the subject of the statement he
allegedly made to Dana Collie. Instead, he was primarily questioned about
Luna's prior fires.
However, as the Commonwealth points out, the Commonwealth here
twice gave Luna unequivocal notice pursuant to KRE 404(c) that it intended to
introduce "evidence of the Defendant's prior involvement in instances of
suspected arson under KRE 404(b) ." The second notice in the response to
Luna's second motion in limme specifically stated, 'The prior fires can be
admitted since they show modus operandi due to the Defendant's own
admissions regarding setting his car on fire and his ability to set fires and not
be connected to them ." Also, during the pre-trial hearing on the KRE 404(b)
evidence, the prosecutor stated that the Commonwealth had a witness from
Illinois (Davis is from Illinois) that it would call to testify that Luna bragged
about setting other fires in Illinois, specifically, that Luna bragged about
setting one fire with a cigar and gasoline. In our view, because Luna was given
notice of the substance of Davis's testimony about Luna's incriminating
statements - that he had set a fire with a cigar and gasoline and was able to set
fires and not be connected to them - there was no discovery error in this case.
KRE 404(b) VI0LATION
Evidence of three other fires on Luna's property in Illinois was admitted
at trial through the testimony of Robert Davis, as noted above, and in Luna's
interview with Officer Wright, which was played for the jury. Luna argues
before this Court as he did below that there was no proof that Luna set the
prior fires and the evidence of the prior fires was not relevant for any
permissible purpose under KRE 404(b) .
This Court will review a trial court's determinations on the admissibility
of evidence for abuse of discretion . See, e.g. Cook v. Commonwealth, 129
S.W.3d 351, 362 (Ky. 2004) . The court has abused its discretion when "the
trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by
sound legal principles ." Commonwealth v. English, 993 S .W.2d 941, 945 (Ky.
1999) . According to Bell v. Commonwealth; 875 S.W.2d 882, 889 (Ky. 1994),
for evidence to be admitted under KRE 404(b), it must meet the three-prong
test this Court has established, which looks to the (1) relevance (2)
probativeness and (3) prejudice of the proposed evidence. Benjamin v.
Commonwealth, 266 S.W.3d 775, 791 (Ky. 2008) . On the issue of
probativeness, the test is whether "evidence of the uncharged crime [is]
sufficiently probative of its commission by the accused to warrant its
introduction into evidence." Bell, 875 S.W.2d at 890. The United States
Supreme Court has held that "[i]n the Rule 404(b) context, similar act evidence
is relevant only if the jury can reasonably conclude that the act occurred and
that the defendant was the actor." Huddleston v. United States, 485 U .S. 681,
689(1988) .
As for whether the jury could reasonably conclude that Luna started the
three prior fires in Illinois, there was no evidence in the trial record that Luna
was involved in starting two of the fires -- the trailer and house fires . Davis
testified that the two fires occurred on Luna's property, but did not state that
Luna started them and specifically denied that Luna had told him how those
fires were started. While Luna admitted during the police interview that three
fires had occurred on his property in Illinois and that he was a suspect in one
of the fires, he consistently denied having anything to do with them.
The instant case is similar to O'Bryan v. Commonwealth, wherein the
Commonwealth sought to introduce into evidence in the defendant's trial for
the murder of her husband by arsenic poisoning that the defendant had
previously lived with another man who died of arsenic poisoning. 634 S.W. 2d
153 (Ky. 1982). This Court held that such evidence was inadmissible where
there was no evidence connecting the defendant to the prior poisoning other
than the fact that she lived with the victim. Id. at 157 . Likewise, in the case at
bar, the only evidence connecting Luna to the prior trailer and house fires in
Illinois was that the fires occurred on his property. Accordingly, it was error to
allow evidence of those two prior fires to be admitted in this trial.
There was, however, sufficient evidence of Luna's involvement in the
garage fire in Illinois via the testimony of Davis that Luna had told him he
started it with gasoline and a cigar. The next question is whether the evidence
of this garage fire was properly admissible under KRE 404(b).
For evidence of the prior fire to be admissible, it must be relevant to
show motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident. KRE 404(b)(1) . The Commonwealth argues
that evidence of the prior fires was relevant to show modus operandi. "The
modus operandi exception requires `the facts surrounding the prior misconduct
[to be] so strikingly similar to the charged offense as to create a reasonable
probability that (1) the acts were committed by the same person, and/or (2) the
acts were accompanied by the same mens rea."' Clark u. Commonwealth, 223
S.W.3d 90, 96 (Ky . 2007) (quoting English, 993 S .W.2d at 945) .
The only similarity between the garage fire and the fire in the present
case was that both were started with an accelerant. We cannot say that this
fact alone makes the fires a signature crime . However, the evidence that Luna
started the Illinois garage fire with gasoline and a cigar would be relevant to
show he had the knowledge to commit arson, especially in light of Davis's
testimony that Luna stated he knew how to start a fire to make it look like an
accident. Accordingly, the trial court did not abuse its discretion in allowing
the evidence of the garage fire in Illinois to be admitted.
For the foregoing reasons, the judgment of the Marshall Circuit Court is
reversed and the case is remanded for retrial or other proceedings consistent
with this opinion.
All sitting . Minton, C.J. ; Noble, Schroder, Scott, and Venters, JJ .,
concur. Abramson, J ., concurs in result only. Cunningham, J ., dissents in
part and concurs in part by separate opinion.
CUNNINGHAM, J., DISSENTING IN PART AND CONCURRING IN PART : I
respectfully dissent in part and concur in part. I concur with the majority with
the exception of reversing the conviction based on failure of the trial court to
excuse one of the jurors for cause.
Admittedly, this is a close call. However, the juror in question went back
and forth, depending upon who was doing the questioning. Although it might
appear on review that a wiser choice would have been to dismiss the juror, I
am unable to conclude that the trial judge-on the scene and best able to
evaluate the juror-abused his discretion. This is especially true since our
decision in Shane made the failure to properly strike for cause subject to
harsher consequences . In our doing so, we should give the trial courts at least
a modicum of more deference in considering these most difficult, sometimes
exasperating, decisions. I would affirm the conviction.
COUNSEL FOR APPELLANT:
Thomas More Ransdell
Assistant Public Advocate
Department Of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
Gregory C. Fuchs
Assistant Attorney General
Office Of Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
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