Debruler v. Com.

• Court: Supreme Court of Kentucky
• Citation: Debruler v. Com., 231 S.W.3d 752 (Ky. 2007)
• Decision Date: 23 August 2007
• Docket Number: No. 2005-SC-000989-MR.,2005-SC-000989-MR.
• Parties: Jerry Lynn DEBRULER, Appellant v. COMMONWEALTH of Kentucky, Appellee.

231 S.W.3d 752

Jerry Lynn DEBRULER, Appellant v. COMMONWEALTH of Kentucky, Appellee.

No. 2005-SC-000989-MR.

Supreme Court of Kentucky.

August 23, 2007.

Emily Holt Rhorer, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Gregory D. Stumbo, Attorney General of Kentucky, Courtney J. Hightower, Assistant Attorney General, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.

MEMORANDUM OPINION OF THE COURT

Appellant, Jerry Debruler, was convicted of first degree kidnapping, second degree robbery, and being a persistent felony offender in the first degree. The Daviess Circuit Court sentenced him to life imprisonment and twenty years' imprisonment, respectively, to be run concurrently. He now appeals as a matter of right, raising six allegations of error. For the reasons set forth herein, we affirm.

I. Background

The charges arise from two incidents occurring in Owensboro on the same morning. At about 7:25 a.m., C.B., a ten-year old child, left her grandmother's home to walk a short distance to school. As she walked along the sidewalk, a man grabbed her wrist and put his hand over her mouth. He told her to be quiet, then picked her up and carried her to the backyard of a vacant house. C.B. struggled and managed to free herself by slipping out of her overcoat. She ran away after looking behind her and seeing the man climb over the fence at the far end of the backyard. Beyond the fence is an alley. C.B. later told police that the man was Caucasian, but that she could not see his face or hands because he wore a mask and gloves. She did remember that he wore black work boots with yellow and black laces.

Meanwhile, Deborah Riney was exiting the Rolling Pin Bakery in Owensboro shortly after 8:00 a.m. The bakery is located less than a mile away from the scene of C.B.'s attempted abduction. When Ms. Riney arrived at the bakery's parking lot, a man was standing near the taillight of her car. He demanded her car keys; she refused. He came towards her, attempting to grab her arm or her purse. Ms. Riney screamed and ran into the street, then observed the man run away between two buildings. Two bystanders witnessed this incident and both alerted police. One followed the man until police arrived and arrested him. Both bystanders and Ms. Riney positively identified Appellant as Riney's attacker.

Appellant was charged with both first degree kidnapping and second degree robbery, and tried before a Daviess County jury. Because Appellant admitted the robbery, the only issue for the jury was the degree of the offense. However, Appellant denied the kidnapping charge and the case against him was largely circumstantial, as C.B. had been unable to see her attacker's face.

Officers Morgan and Howard testified that two K-9 unit dogs were brought to the scene of C.B.'s attempted abduction about seven hours after the incident. Captain David Thompson brought two articles of Appellant's clothing to the scene from the police station for use in the tracking. Officer Morgan laid a sweatshirt and a jacket in the front yard of the vacant house, and his canine, Bady, was told to track the scent. Bady went around the side of the house, turned a corner, walked along the fence line, and then went to the entrance of the alley behind the house, where the scent died. Officer Howard repeated the same procedure with his canine, Denise, using Appellant's jacket. Denise also followed the trail towards the back of the house along the fence line, and then lost the scent at the entrance to the alley.

Appellant was convicted of both counts and the jury recommended a sentence of twenty years' imprisonment on the kidnapping charge and ten years' imprisonment on the robbery charge, to be served consecutively. The jury also found Appellant guilty of being a persistent felony offender in the second degree, and recommended an enhanced sentence of life on the kidnapping charge and twenty years' imprisonment on the robbery charge. The trial court accepted the jury's recommendation, though it ordered the sentences to run concurrently. This appeal followed.

II. Analysis

First, Appellant challenges the canine scent tracking evidence on three grounds: (1) that the trial court improperly denied Appellant a Daubert hearing; (2) that the Commonwealth failed to lay an adequate foundation for the admission of the evidence; and (3) that the evidence was inadmissible due to a pre-trial discovery violation. Also, Appellant claims that the trial court erred when it refused to: (1) sever the kidnapping and robbery counts; (2) allow the jury to view the scenes of the crimes; and (3) direct a verdict of acquittal as to the kidnapping charge.

A. Canine Scent Tracking Evidence: Denial of a Daubert Hearing

Appellant challenges the introduction of the canine scent tracking evidence on the grounds that the trial court improperly denied his request for a hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Essentially, Appellant argues that canine scent tracking evidence is "scientific testimony," the admissibility of which is governed by the test set forth in Daubert, We disagree.

At the outset, we note that the standards for admissibility set forth in Daubert have been adopted in Kentucky. Mitchell v. Commonwealth, 908 S.W.2d 100 (Ky.1995), overruled on other grounds by Fugate v. Commonwealth, 993 S.W.2d 931 (Ky.1999). On appeal, the trial court's decisions with respect to the admission of expert scientific testimony pursuant to Daubert are reviewed for an abuse of discretion. Miller v. Eldridge, 146 S.W.3d 909, 914 (Ky.2004). As such, the trial court's rulings will be disturbed only upon a showing that the decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.2000).

The analysis set forth in Daubert applies to scientific expert testimony, which "implies a grounding in the methods and procedures of science." 509 U.S. at 590, 113 S.Ct. at 2795. It is designed to keep out unreliable or "pseudoscientific" expert scientific testimony that would confuse or mislead the jury, or that cannot legitimately be challenged in a courtroom. Thus, when a party seeks to introduce expert testimony, an initial determination is whether the expert is proposing to testify to scientific knowledge which "entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid." 509 U.S. at 592-93, 113 S.Ct. at 2796.

Because Daubert directs itself to the evaluation of the reliability of scientific expert testimony, it provides factors that are grounded in the scientific process to accomplish its goal. Stated otherwise, "[i]n a case involving scientific evidence, evidentiary reliability will be based upon scientific validity." 509 U.S. at 590 n. 9, 113 S.Ct. at 2795 n. 9 (emphasis original). Accordingly, the Daubert analysis requires the trial court to analyze the testability of the scientific technique, whether it has been subject to peer review, the existence of scientific standards, and the level of general acceptability in the scientific community. 509 U.S. at 593-94, 113 S.Ct. at 2796-97.

Bearing in mind the purpose of Daubert, we turn to the issue of whether testimony from a trained dog-handler concerning the use of canine scent tracking is scientific expert testimony. Here, Officers Howard and Morgan did not testify as to any scientific technique, theory or methodology. Nor did either officer testify as to the scientific explanation of a dog's ability to track a scent. Rather, their testimony was limited to their personal observations of the dogs' actions, and their interpretation of these actions based on experience and training. The testimony concerned the results of an investigative technique, not a scientific procedure. In short, the practice of using trained dogs to track a human scent lacks the hallmark of scientific knowledge identified by the Supreme Court, i.e., "a grounding in the methods and procedures of science." Id. We therefore conclude that testimony concerning the use of canine scent tracking in a particular case does not involve scientific knowledge.

Still, Appellant correctly points out that a Daubert hearing may apply to technical or specialized knowledge, in addition to scientific knowledge. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238 (1999) (concluding that the Daubert test is a flexible one which "neither necessarily nor exclusively applies to all experts or in every case"). See also Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000) (holding that a trial court may use a Daubert analysis to evaluate the reliability of any type of expert testimony, when doing so would be helpful to such a determination). 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.

For these reasons, we conclude that testimony concerning canine scent tracking is not subject to the reliability analysis of Daubert. See also State v. White, 372 S.C. 364, 642 S.E.2d 607, 617 (Ct.App.2007) (canine scent tracking evidence is not scientific...