Released for Publication March 12, 2015.
[Copyrighted Material Omitted]
ON APPEAL FROM BELL COUNTY CIRCUIT COURT. HONORABLE ROBERT COSTANZO, JUDGE. NO. 12-CR-00108.
COUNSEL FOR APPELLANT: Robert Chung-Hua Yang, Assistant Public Advocate.
COUNSEL FOR APPELLEE: Jack Conway, Attorney General, Todd Dryden Ferguson, Assistant Attorney General.
OPINION OF THE COURT BY JUSTICE KELLER. Minton, C.J.; Abramson, Cunningham, Keller, Noble and Venters, JJ., sitting. Minton, C.J.; Abramson, Noble and Venters, JJ., concur. Cunningham, J., concurs in part and dissents in part by separate opinion.
A Bell County Circuit Court jury convicted Jonathan Brock Stansbury (Stansbury) of the attempted murder of his fiancee, Clorah Falconer; of first-degree arson; and of being a second-degree persistent felony offender (PFO), enhancing his twenty-year sentence to life in prison. Stansbury appeals his conviction as a matter of right under Ky. Const. § 110(2)(b). Before this Court, Stansbury argues the trial court committed reversible error: (1) by denying him the right to present a defense when it limited defense counsel's questioning of the arson investigator; (2) by allowing detailed evidence that he abused Falconer's pets; (3) by allowing the prosecutor to appeal to general and local prejudice regarding his bipolar schizophrenia, and anger problems, and status as a non-native eastern Kentuckian; and (4) by admitting improper sentencing-phase evidence. Having reviewed the record and the parties' arguments, we affirm in part, reverse in part, and remand.
Stansbury began living with Falconer in July 2010. Falconer's three parakeets, four cats, two puppies, a turtle, and a goldfish lived with the couple inside the house and Falconer's two dogs and a duck lived outside. On February 3, 2012, sometime between 10 and 11 p.m., Stansbury arrived home, and he and Falconer ate a late meal. At approximately 3:00 a.m., Falconer went to bed, but Stansbury stayed up watching television on the couch.
Later that morning, Falconer awoke and noticed smoke throughout the house. She tried to get out the back door, but it was locked. She then tried to find Stansbury in the living room, but he was gone. Falconer then opened the windows, got as many of her pets out of the house as she could, and went to a neighbor's to call the fire department.
Nicholas Maricle (Maricle) of the Middlesboro Fire Department and Justin Barton (Barton) and Brad Cawood (Cawood) of the Middlesboro Police Department arrived at Falconer's home at or near the same time. At trial, all three testified that they noticed a large burn mark on the carpet near the front door; a burn mark on the adjacent wall; a burn mark leading toward the back door; the odor of petroleum; the back door was locked so that it would not open from the inside; and the smoke detector was missing.
Because he noticed the smoke detector was missing, Barton requested assistance from an arson investigator. Kentucky State Police arson investigator Josh Bunch (Detective Bunch) conducted a preliminary investigation and concluded that the fire had not been caused by an electrical malfunction.
When Barton interviewed Falconer, she stated that her cell phone, house keys, as well as Stansbury's Xbox, video games, BB gun, cane, clothes, and weed eater were missing. She also told Barton that the missing smoke detector had been there when she went to bed, and that Stansbury might be at Eddie Reed's (Reed) house.
Barton went to Reed's house and found Stansbury hiding on the floor behind Reed's bed. Stansbury then told Barton that: he arrived home at approximately
11:00 p.m.; after Falconer went to bed, he went to Reed's house to do laundry; when he left, he locked the back door, as he always did, and took his house key; he took the smoke detector down because it was not working; he did not know how the fire started, but he had been cleaning two leg wounds and spilled some alcohol on the floor; and he took a gun, weed eater, and his and Falconer's cell phones when he left. Reed subsequently returned the Xbox and games, the BB gun, the weed eater, and some clothes to Falconer, and Falconer found the smoke detector in the yard several days after the fire.
A grand jury indicted Stansbury for attempted murder, arson in the first-degree, and for being a second-degree PFO. As noted above, a jury convicted Stansbury of those charges. We supplement additional facts as necessary below.
A. The Trial Court Did Not Impede Stansbury's Right to Present a Defense by Limiting Stansbury's Questioning of Detective Bunch.
The standard of review on evidentiary issues is abuse of discretion. Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007). " The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945, 46 8 Ky. L. Summary 28 (Ky. 1999).
The Commonwealth questioned Detective Bunch regarding the origin of the fire, the electrical outlets in Falconer's home, and the tornado shaped burn mark near the door. Detective Bunch testified that he was confident the fire did not start at an electrical outlet, but began on the floor and proceeded up the wall where the electrical outlet was positioned.
Stansbury's counsel cross-examined Detective Bunch as follows:
Defense Counsel : Now, let me ask you about the shape. It appears that an arsonist would, if the front door was the only exit, the side door, as you've explained, the door was locked and unless you had a key, there's no exit that way. Would an arsonist put the bulk of the tornado before the exit, the only exit, then walk back to the house 'til it got smaller? Would an arsonist walk in the house and put the bulk back there by the living room/dining room and come out to the door and it would have a smaller area at the exit door?
Commonwealth : Your Honor, I'm going to object to the question. What an arsonist would do is not relevant to this case.
Judge : Rephrase.
Defense Counsel : Well, using your experience with arson fires.
Commonwealth : I'm objecting to the relevance of the generic arsonist. What an arsonist would do. It is not relevant.
Judge : Rephrase it.
Defense Counsel : How many arson fires have you worked?
Detective Bunch : Over the course of five years, I don't have a specific count of arson fires. I mean, it would be in terms of, you know, there's a suspected arson, there's conviction of arson, there are some fires that you don't have a suspect for. So I couldn't put a number on that to answer your question.
Defense Counsel : Alright, but you've done several?
Detective Bunch : I would be comfortable saying that there have been several.
Defense Counsel : Okay, in the arson fires that you have had experience with, how is the accelerant poured?
Commonwealth : Your Honor, I object to the relevance. That has nothing to do with this set of facts. There is no relevance in asking someone testifying about a specific set of facts how ...