Luna v. Commonwealth, 2013–SC–000173–MR

• Decision Date: 19 February 2015
• Docket Number: 2013–SC–000173–MR
• Citation: 460 S.W.3d 851
• Parties: George A. Luna, Appellant v. Commonwealth of Kentucky, Appellee
• Court: United States State Supreme Court — District of Kentucky

460 S.W.3d 851

George A. Luna, Appellant

v.Commonwealth of Kentucky, Appellee

2013–SC–000173–MR

Supreme Court of Kentucky.

RENDERED: FEBRUARY 19, 2015

Rehearing Denied June 11, 2015

COUNSEL FOR APPELLANT: Molly Mattingly, Assistant Public Advocate, Department of Public Advocacy

COUNSEL FOR APPELLEE: Jack Conway, Attorney General of Kentucky, Gregory C. Fuchs, Assistant Attorney General

Opinion

OPINION OF THE COURT BY CHIEF JUSTICE MINTON

A circuit court jury convicted George A. Luna of first-degree murder and first-degree arson for killing Debra Hendrickson and burning the trailer where she lived. The jury also found as a statutory aggravator that Luna murdered Hendrickson in the commission of first-degree robbery. As a result, Luna was sentenced to imprisonment for life without the possibility of probation or parole. Appealing the resulting judgment as a matter of right,¹ Luna now presents a host of arguments for this Court's consideration. We reverse Luna's first-degree arson conviction and sentence but affirm Luna's first-degree murder conviction and his sentence of life imprisonment without possibility of probation or parole.

I. FACTUAL AND PROCEDURAL BACKGROUND.

A neighbor arrived home around 8:00 on the evening of September 8, 2007, to find Debra Hendrickson's trailer on fire. By the time firefighters arrived, the flames were so widespread they could not enter until water was applied, a situation known in firefighting parlance as a fully involved fire. The neighbor observed that Hendrickson's truck was gone and assumed she was not at home at the time. But Hendrickson lay dead inside. After the fire, her body was recovered from the debris.

A few months before the fire, Luna had taken up residence with Hendrickson, rent-free. The two had become acquainted several months earlier. A journeyman bricklayer by trade, Luna traveled as jobs required, returning to Hendrickson's home and staying with her between jobs. As a result, Luna's tenancy with Hendrickson was fairly sporadic, primarily on weekends.

Hendrickson and Luna, despite their living arrangement, and, according to Luna, Hendrickson's repeated advances, were not romantically linked. Their relationship was reportedly filled with conflict. Hendrickson's family and friends described various instances of physical abuse inflicted upon Hendrickson by Luna. Likewise, during his testimony at trial, Luna recounted examples of her physical abuse of him, including inflicting a gunshot and stab wound. And, as we will discuss in more detail below, Luna and Hendrickson engaged in various insurance-fraud schemes.

Earlier in the afternoon before the fire, Luna accompanied Hendrickson into Paducah, about 30 minutes from Hendrickson's trailer in Marshall County, Kentucky. The two visited a couple of bars, ate, and drank beer. Before returning home, they stopped at a liquor store. According to Luna, Hendrickson encountered a potential boyfriend, and she told Luna the man would be coming over later that night. Hendrickson drove Luna home in her truck, a truck that Luna was allegedly in the process of buying from Hendrickson.

According to Luna, he was eager to see his daughter in Illinois, so upon returning home he began packing his clothes and tools to get on the road. Hendrickson waved from the front porch, beer in hand, as Luna pulled out of the driveway. Luna reached Paducah before he realized he had left his level in Hendrickson's garage, so he turned around and drove back to Hendrickson's trailer.

Upon arrival, Luna did not enter the trailer but went directly to retrieve the level from the garage. As he returned to his vehicle, Luna thought he saw flames through a window in the trailer. According to Luna, he thought little of the flames. Supposing he was drunk and sensing things that were not there, he drove away. But while driving to Illinois, he called 911 several times to report a potential fire. While on the phone with the 911 dispatcher, Luna was unable to provide Hendrickson's address or even her surname, claiming he did not know it. Eventually, Luna hung up on the dispatcher, but then became belligerent with her when she called him back seeking more information.

At 7:34 on the evening of the fire, an Illinois State Trooper clocked Luna traveling through southern Illinois at 100 miles per hour. Luna was arrested there.

Following a short investigation and his extradition to Kentucky, Luna was indicted on charges of first-degree murder and first-degree arson. A jury trial conducted in 2008 resulted in Luna's conviction of all charges and a sentence of life imprisonment. On appeal, we reversed that judgment and remanded for a new trial.² On retrial, Luna was again tried for and convicted of first-degree murder and first- degree arson. Unlike the first trial, the Commonwealth sought a finding of statutory aggravators on retrial. The jury found aggravating circumstances and sentenced Luna to life imprisonment without possibility of probation or parole. The trial court entered judgment accordingly.

II. ANALYSIS.

Luna presents for our consideration on appeal twelve issues, each of which we discuss in turn.³

A. We Reject the Commonwealth's Assertion that the Law–of–the–Case Doctrine Bars Consideration of a Number of Luna's Issues on Appeal.

Before reaching Luna's substantive attacks on his conviction, we address the Commonwealth's attempt to rebut several of Luna's arguments with the law-of-the-case doctrine. As a general matter, when referring to the law of the case, we are describing “a handful of related rules giving substance to the general principle that a court addressing later phases of a lawsuit should not reopen questions decided by that court or by a higher court during earlier phases of the litigation.”⁴ Within this handful of rules, one is of primary relevance for this case: “issues decided in earlier appeals should not be revisited in subsequent ones.”⁵ To this end, our case law has extended the law-of-the-case doctrine from only previously decided appellate issues to “decisions of the trial court which could have been but were not challenged in a prior appeal.”⁶

This extension of the doctrine is the gravamen of the Commonwealth's response to Luna's arguments. The Commonwealth's view, taken to its end, would essentially preclude appellate review of any issue that was not objected to in Luna's first trial. Our law-of-the-case jurisprudence, primarily Commonwealth v. Schaefer,⁷ at one point perhaps supported the Commonwealth's position in the present case. But with our later decision in Brown, our jurisprudence clearly no longer stands for such a proposition.

With regard to earlier trial court rulings, the law-of-the-case doctrine only applies “where a ruling of law is made based on existing law and that ruling has gone unchallenged during the original appeal.”⁸ The issue must be presented to the trial court and the trial court must affirmatively rule in order to trigger the law-of-the-case doctrine. Here, of course, Luna has been before this Court previously, so the law-of-the-case doctrine is certainly potentially applicable. Fatal to the Commonwealth's law-of-the-case argument, however, is its failure in the present appeal to direct us to the record of Luna's original trial where the trial court ruled on the merits of issues Luna now presents.⁹

Because the Commonwealth is attempting to use the law-of-the-case as a shield against Luna's arguments, the Commonwealth bears the burden of showing its applicability.¹⁰

To apply successfully the law-of-the-case doctrine and bar Luna's present issues, the Commonwealth must show that Luna's present issues were not only presented to the trial court in the earlier proceeding but received an affirmative ruling from the trial court in that proceeding. Potential errors that passed unpreserved by contemporaneous objection and ruling in the earlier trial are not automatically cleansed by the law-of-the case doctrine for a reprise on retrial. Simply stated, if inadmissible evidence came in without objection and a ruling by the trial court in a first trial, a party opposing its admission at retrial must make an objection.

Thus, the Commonwealth's reliance on Schaefer is misplaced. While nearly all of the issues presented by Luna involve evidence or issues that were present in the first trial, we are not provided with any indication that the trial court ruled on them in the first trial. We can appreciate the efficiency of the law-of-the-case doctrine in situations like the instant case where the evidence presented on retrial is substantially similar and nearly identical in the case of some witnesses. But we should not promote reliance on the law-of-the-case doctrine out of simple convenience. Accordingly, we conclude that the law-of-the-case doctrine is not a bar to the consideration of Luna's issues in the present appeal.

B. The Trial Court Properly Denied Luna's Daubert Challenge to the Commonwealth's Arson Investigator.

We must admit to a degree of confusion regarding Luna's argument on this issue. Luna seemingly vacillates between arguing the science behind the arson investigator's testimony is faulty to focusing on the conduct undertaken by the arson investigator in compiling his report to focusing solely on the conduct of the trial court. We are certain, however, that any error in the admission of the arson investigator's testimony was harmless.

Luna's argument seems to be presented on two fronts: (1) the trial court's hearing conducted under Daubert v. Merrell Dow Pharmaceuticals, Inc.,¹¹ was unfair because the Commonwealth did not produce its witness and (2) the hearing was cut short. In both the retrial and the original trial, the Commonwealth presented testimony from the same fire-and-explosives investigator from Kentucky's Office of the State Fire Marshal. This testimony, built upon observations and analysis performed at the scene of the fire close in time to the fire's extinguishment, centered on the arson investigator's conclusion...