Yell v. Com., 2006-SC-000327-MR.

• Decision Date: 20 December 2007
• Docket Number: No. 2006-SC-000327-MR.,2006-SC-000327-MR.
• Citation: 242 S.W.3d 331
• Parties: Robert YELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

242 S.W.3d 331

Robert YELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2006-SC-000327-MR.

Supreme Court of Kentucky.

December 20, 2007.

Ordered Published December 21, 2007.

Susan Jackson Balliet, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, David W. Barr, Assistant Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellee.

MEMORANDUM OPINION OF THE COURT

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 I). 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 H. 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 II) 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.

ACCELERANT 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 2006 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...