Gordon Strange v. Commonwealth of Kentucky

IMPORTANT NOTICE
NOT TO BE PUBLISH ED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE ; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT . OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED : APRIL 23, 2009
IS
ixyrpmr C~aurf of )fit
2007-SC-000358-MR
GORDON STRANGE
ON APPEAL FROM POWELL CIRCUIT COURT
V. HONORABLE FRANK A. FLETCHER, JUDGE
NO. 06-CR-00016
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
This is an appeal from a judgment in which Appellant was convicted of'
first-degree assault and second-degree arson for severely burning his
stepdaughter and burning his trailer down . Appellant assigns as error: the
refusal to instruct on second-degree assault; allowing the prosecutor to
question the victim's characterization of the crime as an "accident" ; allowing an
arson expert to testify beyond his expertise ; admission of a computer print-out
of Appellant's prior convictions without an authenticating witness ; and reusing
to inform the jury of the 85% serve-out rule for a violent offender. We reject, the
first four claims of error and adjudge that the error in not allowing the jury to
hear the "violent offender" minimum parole eligibility information did not rise
to the level of palpable error in this case. Hence, we affirm .
Appellant, Gordon Strange, was Michelle Thorpe's stepfather for ten
years, until she was around 16 years of age when her mother and Strange
divorced . In February of 2006, Thorpe was living on and off with Strange in his
trailer. In the early morning hours of February 7, 2006, Thorpe was making a
bed on Strange's couch when she turned around and saw Strange dousing
kerosene all around the kerosene heater . Strange then threw kerosene all over
Thorpe, from the bottom of her legs to the top of her waist. According to
Thorpe's testimony, she asked Strange if he was going to burn her and he said
yes . Strange then jumped on Thorpe, held her down on the couch and lit the
kerosene with a lighter. Thorpe's body was immediately consumed by flames
and Strange fled the trailer.
Thorpe sustained burns to over 80% of her body, including her legs,
trunk, chest, neck and face. She was in a coma for months and suffered
painful skin grafts and debriding. Thorpe was in the hospital for approximately
five months and required in-patient physical therapy for another four months
to continue treating the burns and learn how to walk again. At the time of
trial, Thorpe's elbows were still locked and she could not cook, dress herself or
completely sit down .
On March 1, 2006, Strange was indicted on charges of first-degree
assault and first-degree arson . Pursuant to a jury trial on March 26-28, 2007,
Strange was found guilty of first-degree assault and second-degree arson. The
jury recommended a sentence of 20 years for the assault and 10 years for the
arson, with five years to run concurrently, for a total of 25 years. From the
judgment sentencing Strange according to the recommendations, Strange now
appeals .
SECOND-DEGREE (WANTON) ASSAULT INSTRUCTION
Strange tendered instructions in the case which included a second-
degree assault instruction identical to the instruction ultimately submitted to
the jury . The instruction was based on KRS 508.020(a), for "intentionally
caus[ing] serious physical injury to another person." The only assault
instruction tendered by Strange with a wanton mental state was the fourth-
degree assault instruction . And during the discussion on the instructions,
defense counsel did not argue for a second-degree assault instruction based on
a wanton mental state (KRS 508 .020(c)) . However, the next day, right before
the instructions were to be read to the jury, defense counsel stated that she
thought, from the previous day's discussion, there was going to be a second-
degree assault instruction based on a wanton mental state (KRS 508 .020(c))
instead of an intentional mental state (KRS 508.020(a)) . The court denied the
inclusion of a second-degree assault instruction under KRS 508.020(c),
concluding that "the instruction as given is consistent with the evidence."
No assault instruction was ultimately given with a wanton mental state,
although the jury was instructed on third-degree arson which required a
wanton mental state with respect to the damage to or destruction of the trailer.
The jury was instructed on first and second-degree assault, both based on an
intentional mental state . The jury found Strange guilty of first-degree assault,
finding that he intentionally caused serious physical injury to Thorpe by setting
her on fire and that the fire was a dangerous instrument. KRS 508.010(a) .
Strange now argues that the trial court erred in failing to instruct on wanton
second-degree assault.
In the police interviews with Strange, which were admitted into evidence,
Strange told the detective that he poured or splashed kerosene on the bottom
of Thorpe's pajamas because he was upset that Thorpe had been out that night
with "a bunch of crackheads." Strange insisted that he was just joking around
though, stating. "I knew it might catch on fire, but, God damn, I could smack it
right back out with my hands, you know." At one point in the interview,
Strange admitted that he had ignited the kerosene on Thorpe with a lighter.
Strange told the detective, "Seem like we's getting ready to light a cigarette, and
then I just said, why, hell, I'll just = you know, touch it to her pants when I was
lighting a cigarette, and by God, it just flew." At another point in the same
interview, Strange stated that he could not remember whether he lit her with a
lighter or she got too close to the kerosene heater and ignited.
At trial, Strange testified that he splashed kerosene on Thorpe to make
her be quiet because she was "fussing." He stated that he did not mean for her
to get burned like she got burned. Strange denied having a lighter the night of
the fire and testified that if he pushed her into the heater, he did not mean to.
Subsection (c) of KRS 508.020 provides that "[a] person is guilty of
assault in the second degree when . . . [h)e wantonly causes serious physical
injury to another person by means of a deadly weapon or a dangerous
instrument ." "Wantonly" is defined in KRS 501 .020(3) as follows:
"Wantonly"--A person acts wantonly with respect to a
result or to a circumstance described by a statute
defining an offense when he is aware of and
consciously disregards a substantial and unjustifiable
risk that the result will occur or that the circumstance
exists. The risk must be of such nature and degree
that disregard thereof constitutes a gross deviation
from the standard of conduct that a reasonable person
would observe in the situation. A person who creates
such a risk but is unaware thereof solely by reason of
voluntary intoxication also acts wantonly with respect
thereto .
KRS 501 .020(1) provides that "A person acts intentionally with respect to a
result or to conduct described by a statute defining an offense when his
conscious objective is to cause that result or to engage in that conduct."
It is the duty of the trial court to instruct the jury on every theory of the
case deducible from the evidence. Fredline v. Commonwealth, 241 S.W.3d 793,
797 (Ky. 2007) (citing Manning v. Commonwealth , 23 S.W.3d 610, 614 (Ky.
2000)) ; RCr 9.54(1) . While that duty includes instructions on any lesser
included offenses which are supported by the evidence, that duty does not
require an instruction on a theory with no evidentiary foundation. Houston v.
Commonwealth , 975 S.W.2d 925, 929 (Ky. 1998) (citing Barbour v.
Commonwealth , 824 S.W.2d 861, 863 (Ky. 1992), overruled on other rounds
by McGinnis v. Commonwealth, 875 S.W.2d 518 (Ky. 1994)) . "An instruction
on a lesser-included offense is required only if, considering the totality of the
evidence, the jury could have a reasonable doubt as to the defendant's guilt of
the greater offense, and yet believe beyond a reasonable doubt that he is guilty
of the lesser offense." Baker v. Commonwealth, 103 S .W.3d 90, 94 (Ky. 2003)
(citing Clifford v. Commonwealth, 7 S.W.3d 371, 377-78 (Ky. 1999)) . A trial
court's rulings on instructions are reviewed under an abuse of discretion
standard . Ratliff v. Commonwealth, 194 S.W.3d 258, 274 (Ky. 2006) (citing
Johnson v. Commonwealth, 134 S.W.3d 563, 569-70 (Ky. 2004)) .
Strange argues that given his testimony that he just was just joking
around with Thorpe when he poured or splashed the kerosene on her, he was
entitled to a second-degree assault instruction based on a wanton state of
mind. Notwithstanding Strange's assertion that he was just joking around
when he poured kerosene on Thorpe, the evidence was undisputed that he
intended to pour kerosene on her for the purpose of igniting it. Strange was
not simply aware of and consciously disregarded a substantial risk that
Thorpe's body would catch on fire when he poured kerosene on her and ignited
her with a lighter or heater . According to Strange's own testimony, his
conscious objective was to pour kerosene on Thorpe and light the kerosene for
the purpose of setting her body on fire and burning her. Accordingly, the trial
court did not abuse its discretion in denying Strange's motion for a second-
degree wanton assault instruction.
PROSECUTOR'S ASSERTION OF PERSONAL KNOWLEDGE OF FACTS
During the Commonwealth's direct examination of Thorpe, the following
exchange occurred:
Commonwealth : At that date or on that date, in
February of 2006, where were you living?
Thorpe : At the time of the accident?
Commonwealth : Well, you call it an accident.
Was it an accident?
Thorpe : Well, no.
Commonwealth : Okay. Let's don't use that word if it
wasn't, because that's not what it was.
Thorpe : Okay. I'm sorry.
At that point, defense counsel objected. The trial court overruled the
objection, and the examination of Thorpe continued.
Strange argues that by telling the witness to not further characterize the
incident as an accident, the prosecutor improperly inserted his knowledge of
the facts into the record as decried in Berger v. United States , 295 U .S. 78, 84
(1935) .
It is well established that a trial court's evidentiary rulings are reviewed
under an abuse of discretion standard . Simpson v. Commonwealth, 889
S .W.2d 781, 783 (Ky. 1994) . We do not view the prosecutor's questioning of
Thorpe to be an assertion of personal knowledge. Given the charges against
Strange, the Commonwealth's theory of the case was obviously that the fire
was not an accident, and the Commonwealth had already declared this was
their theory in their opening statement. In light of Thorpe's testimony as to
how the fire started, the prosecutor simply asked Thorpe whether it was an
accident to clarify her testimony. The trial court. did not abuse its discretion in
allowing this line of questioning.
TESTIMONY OF DETECTIVE BARNES
Kentucky State Police ("KSP") Detective Shane Barnes, a certified fire
investigator for the KSP, was called as an expert witness by the
Commonwealth . He testified to the results of his investigation of the fire at
Strange's trailer and his conclusion that the fire was not accidental. On direct
examination, Barnes was also questioned extensively about the kerosene
heater found at the scene, without any objection by the defense. Barnes
testified that the type of kerosene heater found at the scene had a safety
shutoff that extinguishes the flame if it is tipped over or kicked hard . Barnes
also testified that the heater had a wick enclosed by a glass glove and that the
entire combustion chamber had a metal grill over it. In his final question on
direct, the prosecutor asked Barnes, "Okay. Okay. So you don't have an
exposed flame?" Barnes replied, "No, sir."
On cross-examination, defense counsel established that Barnes'
testimony about the kerosene heater was based on his own personal experience
with kerosene heaters. Defense counsel then proceeded to ask Barnes many of
the same type of questions about another radiant oil heater found at the scene
that the Commonwealth had asked about the kerosene heater . Defense
counsel also elicited the following testimony from Barnes :
Defense : Okay. So you've ruled out that an accidental
cause of the fire could have been from hitting the
lighted kerosene simply because your personal
experience with kerosene heaters told you that that
didn't ever happen? Is that right?
Barnes : Can you repeat that?
Defense : Okay. You said it was not accidental .
However, there was an open flame in that house there
that night . Was there not? Or some type of flame in
the house that night?
Barnes: Could have been if the - if the heater was on.
Defense : And the fuse was lit and there was an open
flame in the house, correct?
Barnes : Could be.
Defense : And certainly an open flame with vapors of
kerosene or diesel oil or anything else could cause a
fire. Could it not?
Barnes: Well, with that type of heater, what you're
saying is there is a combustion chamber where the
flame is housed. Yes, there is an open flame, but it's
inside the glass housing.
Defense: Assuming it's all working properly.
Barnes : Yes, ma'am.
Defense: Okay, we don't know whether it was working
properly or not?
Barnes : No, ma'am.
On re-direct, the Commonwealth asked Barnes, based on his experience
and knowledge of this type of kerosene heater, if the grill on the front would get
hot enough to burn a person if he touched it while the heater was on. Defense
counsel objected on the grounds that Barnes' knowledge was "limited to his
own personal experience with one kerosene heater ." Defense counsel again
objected when the Commonwealth asked Barnes where an open flame would
have been on the kerosene heater . The court overruled the objection,
reasoning that the witness had already testified about how the kerosene heater
was made and how it worked.
Strange now complains on appeal that the trial court erred in allowing
Barnes to give his opinion regarding the safety features of kerosene heaters in
violation of Kumho Tire Co., Ltd. v. Carmichael, 526 U .S . 137 (1999) (holding
that trial courts should consider the specific factors in Daubert v. Merrell Dow
Pharmaceuticals, Inc . , 509 U.S. 579 (1993), where they are reasonable
measures of the reliability of expert testimony) . However, as noted above,
defense made no objection to Barnes' qualifications or the reliability of his
testimony about kerosene heaters prior to trial or at anytime during the
Commonwealth's direct examination of Barnes. And the defense itself elicited
testimony from Barnes on cross-examination about how the kerosene heater
and the other radiant oil heater worked, including testimony about the grill on
the front and whether there was an open flame on the kerosene heater . It was
not until re-direct that Strange expressed any objection to Barnes' testimony.
KRE 103(a)(1) requires a timely objection to preserve an issue regarding
the admission of evidence . Just as in Commonwealth v. Petrey , 945 S.W.2d
417, 419 (Ky. 1997), Strange waived his right to object in the present case by
failing to interpose a timely objection to Barnes' qualifications or the reliability
of his expert testimony. Hence, the trial court did not abuse its discretion
when it overruled Strange's objections .
COMPUTER PRINT-OUTS OF DEFENDANT'S PRIOR CONVICTIONS
During the penalty phase, pursuant to KRS 532 .055, the trial court
allowed the Commonwealth to introduce computer print-outs of Strange's prior
convictions in Kentucky for assault in the fourth degree, violation of an
emergency protective order, DUI, and alcohol intoxication, all from 1994. The
print-outs of the convictions were not offered through an authenticating
witness, but were all certified by the Powell Circuit Court Clerk. The defense
objected, arguing that the computer print-outs were not properly
authenticated. The trial court overruled the objection on grounds that they
were certified records of the best evidence that could be obtained of the 1994
convictions .
On appeal, Strange argues that under Robinson v. Commonwealth, 926
S.W.2d 853 (Ky. 1996), the computer print-outs of the prior convictions were
not admissible without a witness who could testify to their authenticity.
However, Robinson involved print-outs of out-of-state convictions, which were
not certified . Id. at 854. In the instant case, KRS 422.040 is not implicated
because the convictions were not from another state or a federal court.
KRE 902(2) and (4) allow domestic public documents and official records
to be self-authenticating if they are certified . See Merriweather v.
Commonwealth, 99 S.W.3d 448, 452-53 (Ky. 2003) . The present case is more
akin to Hall v. Commonwealth, 817 S.W.2d 228, 230 (Ky. 1991), overruled on
other rounds by Commonwealth v. Ramsey, 920 S .W.2d 526, 527 (Ky . 1996),
wherein this Court held that a certified Kentucky State Police computer print-
out of the defendant's prior convictions was admissible as proof of defendant's
prior convictions for purposes of KRS 532 .055, where there was no dispute as
to the existence of the convictions or the content of the writing. Like Hall,
Strange does not dispute the existence or the accuracy of the prior convictions
at issue. Accordingly, the trial court did err not in allowing the evidence of the
prior convictions to be admitted for truth-in-sentencing purposes .
PAROLE ELIGIBILITY UNDER ERS 439.3401 DURING SENTENCING
During the defense's closing argument in the penalty phase, defense
counsel attempted to inform the jury that because the offenses were violent
offenses pursuant to KRS 439 .3401, Strange would have to serve 85% of his
sentence before he would be eligible for parole. Before the defense could finish
so advising the jury, the Commonwealth objected, arguing that this information
was not admissible . The court agreed and defense counsel voluntarily
withdrew that portion of its argument. The court then granted the
Commonwealth's motion for an admonishment and admonished the jury "to
disregard the last statement of defense counsel ."
Strange argues that the trial court erred in refusing to allow the defense
to inform the jury that as a "violent offender" under KRS 439.3401(3), he would
be required to serve 85% of his sentence before he would be eligible for parole .
KRS 532 .055(a)(1) expressly allows evidence of the defendant's minimum
parole eligibility to be adduced during the sentencing hearing. In Boone v.
Commonwealth , 780 S.W.2d 615, 616-17 (Ky. 1989), we adjudged that that it
was error for the trial court to refuse to allow the defense to put, on evidence of
the defendant's minimum parole eligibility under the "violent offender"
provisions. of KRS 439.3401 . We held, "If Truth-in-Sentencing' is the objective
sought by KRS 532 .055, then either the defendant or the Commonwealth
should be permitted to introduce evidence of minimum parole eligibility." Id. at
616. Thus, it was error for the trial court to refuse to allow the defense to put
this information before the jury in the case at bar.
Our review of the error in this case, however, is confined to a palpable
error standard because defense counsel voluntarily withdrew its argument,
appearing to agree with the court's ruling and thus waiving the error. See
Ropers v. Commonwealth , 992 S.W.2d 183, 187 (Ky. 1999) . Under RCr 10.26,
"[a] palpable error which affects the substantial rights of a party may be
considered . . . by an appellate court on appeal, even though insufficiently raised
or preserved for review, and appropriate relief may be granted upon a
determination that manifest injustice has resulted from the error." With
palpable error review, an unpreserved error requires reversal only "if a manifest
injustice has resulted from the error," which means there "is [a] probability of a
different result or [the] error [is] so fundamental as to threaten a defendant's
entitlement to due process of law." Martin v. Commonwealth, 207 S . W.3d 1, 3
(Ky. 2006) .
In this case, there was no minimum parole eligibility evidence put
before the jury. The jury recommended a sentence of 20 years for the first-
degree assault and 10 years for the second-degree arson, five years to run
concurrently and five years to run consecutively, for a total of 25 years. The
jury could have sentenced Strange to a maximum of 40 years. Given the
heinous nature of the crime, we cannot say that there was a probability of a
different result had the jury been aware of the 85% serve-out requirement in
KRS 439 .3401(3) . Nor can we say that the error was so fundamental that it
threatened Strange's entitlement to due process . Accordingly, there was no
palpable error.
For the reasons stated above, the judgment of the Powell Circuit Court is
affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Susan Jackson Balliet
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Ste. 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
Todd Dryden Ferguson
Assistant Attorney General
Office of Attorney General
1024 Capital Center Drive
Frankfort, KY 40601