APPEAL FROM SCOTT CIRCUIT COURT HONORABLE PAUL F. ISAACS,
JUDGE NO. 10-CR-00255
COUNSEL FOR APPELLANT: Karen Shuff Maurer Steven Goens
Assistant Public Advocates Department of Public Advocacy
COUNSEL FOR APPELLEE: Andy Beshear Attorney General of
Kentucky Joseph Todd Henning Assistant Attorney General
Office of the Attorney General
Turner was convicted of the stabbing death of her boyfriend,
Maxwell Pomeroy, Jr. She appeals as a matter of right from a
judgment of the Scott Circuit Court sentencing her to thirty
years' imprisonment for murder and for being a
first-degree persistent felony offender. Turner alleges that
the trial court erred by: 1) permitting the Commonwealth to
elicit testimony from the coroner about the victim's
estimated time of death; 2) denying her motion to continue
the trial; 3) granting the Commonwealth's motion to
disqualify one of her attorneys; 4) allowing the Commonwealth
to introduce evidence about the victim's state of mind
prior to his murder; and 5) failing to properly instruct the
jury as to self-defense and extreme emotional disturbance.
For the following reasons, we affirm the judgment and
AND PROCEDURAL HISTORY
period of several months, Turner and Pomeroy had a tumultuous
courtship which ended with Pomeroy's death by stabbing on
August 9, 2010. Initially, Turner and Pomeroy lived in a
residence with Pomeroy's parents, but later the couple
moved into an Owen County farmhouse owned by Turner's
family. Due to their turbulent relationship, Turner and
Pomeroy briefly stopped seeing each other. At one point,
Pomeroy expressed an interest in moving to another state to
get away from Turner, but he ultimately remained in Kentucky.
Eventually the couple reconciled, with Pomeroy moving into a
house with Turner and her family in Georgetown, Kentucky,
where he resided at his death.
weeks before the murder, Turner and Pomeroy visited Misty
Johnson's residence, and while there they argued over
Pomeroy's interest in moving back in with his parents.
Two days before the murder, Pomeroy and Turner had another
altercation which spilled out into the yard outside their
home. According to Gina Jones, when she arrived at her
mother's home that Saturday evening, she observed Pomeroy
standing over Turner outside the couple's residence.
Jones recalled Pomeroy's explanation for the altercation
- Pomeroy was concerned that Turner was going to stab and
kill him and that she had succeeded in chasing him from their
home. Jones described Turner as being loud and aggravated.
After Jones asked the pair if she needed to call the police,
Pomeroy requested that she not contact them explaining that
the pair had been drinking.
than forty-eight hours later, Pomeroy was dead. The morning
of the murder, Turner and Pomeroy appeared to be getting
along as they cooked breakfast together. That night, however,
Turner contacted the police to report that three black men
had broken into their home and murdered her boyfriend.
Approximately two minutes after Turner's call to 911,
Deputy Mike Litteral arrived at the scene of the crime.
Deputy Litteral recalled not hearing anything when he
initially arrived at the home, but after Turner observed him
through ' the window, she began to scream and cry
hysterically. The residence was in shambles with items out of
place or damaged. When questioned by the police, Turner
reiterated that three black men had broken into the home and
murdered Pomeroy, Pomeroy had a stab wound, three inches wide
and over six inches deep, that penetrated his heart and a
superficial stab wound near his back shoulder blade.
the police confirmed that Pomeroy was dead, they contacted
the Scott County coroner, John Gobies, who arrived on the
scene approximately eight to ten minutes later. Upon
examining Pomeroy's body, the coroner concluded that
Pomeroy had been dead for two to three hours, which directly
contradicted Turner's account that he had been murdered
minutes before she contacted the police. Accordingly, the
police focused their investigation on Turner. Examination of
Turner at the hospital revealed a bruise on her arm and a
small waist abrasion, but no obvious hand injuries. At the
hospital, Turner was tested for the presence of drugs and
alcohol, and while there were no drugs found in Turner's
system, her blood alcohol concentration nearly five hours
after she called the police was .09%.
Turner claimed that one of the three unknown assailants
killed Pomeroy, she allegedly told a different story to her
friend, Misty Johnson. According to Johnson, Turner admitted
to accidentally stabbing and killing Pomeroy. Further, Turner
informed Johnson that she had asked her brother to dispose of
the murder weapon and considered asking him to bury the body
November 2010, Turner was indicted by the Scott County grand
jury for the murder of Pomeroy as well as for being a
first-degree persistent felony offender. Turner's trial
was frequently delayed for reasons not apparent from the
record on appeal, and she was not tried until January 2016.
At trial, Turner declined to testify. As noted, she was
convicted of wanton murder and for being a first-degree
persistent felony offender, and the trial court sentenced her
to thirty years' imprisonment as recommended by the jury.
The Coroner's Testimony Regarding Pomeroy's Time of
Death Was Properly Admitted.
alleges that the trial court erred by permitting the
Commonwealth to introduce, the testimony of the local
coroner, Gobies, concerning time of death. Prior to trial,
Turner filed a motion to exclude Gobles's testimony
contending that he was not an expert in determining time of
death and that the method he used to render his conclusions
did not satisfy the requirements of Kentucky Rule of Evidence
(KRE) 702. The trial court denied Turner's motion after
hearing argument at a hearing on December 11,
trial Gobies testified that he had been the Scott County
coroner for fourteen years. Prior to his service as coroner,
Gobies worked for the Kentucky State Police for twenty years.
In his coroner position, Gobies received in-service training
with the medical examiner along with eighteen hours per year
of continuing education. In addition to his
statutorily-mandated training, pursuant to Kentucky Revised
Statute (KRS) 72.415, Gobies stated that he had conducted
approximately 1, 500 death investigations.
stating his qualifications, Gobies explained to the jury that
a series of factors, mostly related to changes to the
victim's body, are involved in assessing time of death.
Among the factors that he would consider are: (1) the time
the victim was last seen alive; (2) whether livor mortis had
set in (can start * within thirty minutes and is visible
after approximately one hour); (3) whether rigor mortis had
set in (can occur after a minimum of one hour, but usually
occurs after two to three hours); (4) changes in body
temperature (typically body temperature decreases 1.5 degrees
per hour until the body reaches room temperature); and (5)
whether there was pooling of blood (while also considering
whether there had been changes in the color of the blood or
if it had dried). Gobies stated that none of these factors is
dispositive, rather he considers each factor in assessing
time of death.
being contacted by police, it took Gobies approximately eight
to ten minutes to arrive on scene. Although he was informed
that the murder was the result of a just-completed home
invasion, Gobies observed several factors which cast doubt on
the idea that the murder had just occurred. Specifically,
Gobies noted that rigor mortis had set in and that the body
was very stiff, suggesting that Pomeroy had been dead for
approximately two hours. Additionally, blood from
Pomeroy's body had pooled and blood smears on his pants
assessed Pomeroy's body temperature with a thermometer.
Gobies explained to the jury that the most accurate way to
assess body temperature is to put the thermometer in the
liver, but at the time of this murder he had not yet been
trained to perform that procedure. Gobies identified two
alternate methods to assess body temperature, rectally or
aurally. He opted to assess Pomeroy's body temperature
aurally. Testing of Pomeroy's ears revealed a left ear
temperature reading of 94.4 degrees and a right ear
temperature of 94.2 degrees. Based on these temperatures,
Gobies concluded that Pomeroy had been dead for two to three
hours. Gobies mentioned some potential considerations to be
mindful of when relying on body temperature to assess time of
death, including: (1) not everyone's normal body
temperature is 98.6 degrees; (2) any external source of heat;
(3) cooling sources; and (4) illness. Gobies testified that
he did not recall seeing a cooling or heating source that
would have impacted his examination nor did he have reason to
believe that Pomeroy had been sick. While Gobies concluded
that Pomeroy had died approximately two to three hours prior
to his examination, he noted that he was unable to identify
with certainty the exact time of death.
cross-examined by Turner, Gobies stated that while he had
looked at the thermostat to identify the room's
temperature, he had not recorded that temperature. Gobies
also acknowledged two additional factors that could impact a
body's cooling, i.e., the presence of alcohol
and the victim having a larger body mass.
admissibility of expert testimony is evaluated pursuant to
KRE 702. That rule provides:
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and
(3) The witness has applied the principles and methods
reliably to the facts of the case.
KRE 702 was drafted in response to Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), which
mandated "the trial court to play the role of
'gatekeeper' to prevent the admission of
'unreliable pseudoscientific evidence."'
Holbrook v. Commonwealth, 525 S.W.3d 73, 78 (Ky.
2017) (citing Miller v. Eldridge, 146 S.W.3d 909,
914 (Ky. 2004)). "[A] trial court's task in
assessing proffered expert testimony is to determine whether
the testimony 'both rests on a reliable foundation and is
relevant to the task at hand.'" Id. (quoting
Futrell v. Commonwealth, 471 S.W.3d 258, 282 (Ky.
assess whether the proposed expert testimony is reliable, a
trial court may consider a number of non-exclusive factors
including: "whether the principle, theory, or method in
question 'can be (and has been) tested, ' whether it
lias been subjected to peer review and publication, '
whether it has a Icnown or potential rate of error, ' and
whether it enjoys acceptance within 'a relevant
scientific community.'" Futrell, 471 S.W.3d
at 282 (quoting Daubert, 509 U.S. at 593-94, 113
S.Ct. at 2796-97). "We review a trial court's
determination whether a witness is qualified to give expert
testimony for an abuse of discretion." Smith v.
Commonwealth, 454 S.W.3d 283, 285-86 (Ky. 2015)
(citing Brown v. Commonwealth, 416 S.W.3d 302, 309
(Ky.2013)). "The test for abuse of discretion is whether
the trial judge's 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) [citing Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1999)).
case at bar, it appears that the trial court did not conduct
a formal Daubert hearing. Further, due to the
aforementioned audio recording issues during the hearing on
this issue, we do not have the benefit of counsels' oral
arguments or the trial court's thoughts as to why the
proffered expert testimony was admissible. However, our
review of the available record demonstrates that the trial
court did not abuse its considerable discretion in concluding
that Gobies was an expert or permitting him to offer his
opinion concerning the time of Pomeroy's death.
takes issue with Gobies being permitted to testify claiming
that he was not an expert and that "the
'science' of time of death is severely lacking
credibility." We disagree with Turner's assertion
that Gobies was not an expert. Turner seeks to diminish
Gobles's experience by emphasizing that he is not a
licensed medical doctor and that he had only one hundred and
four hours of medical training to determine time of death.
This argument purposefully overlooks Gobles's significant
experience both as Scott County coroner for fourteen years
and with the Kentucky State Police for twenty years.
Moreover, as part of his professional experience as coroner,
Gobies conducted approximately 1, 500 death investigations.
As such, Gobles's background, training and experience
qualify him to render an opinion on the timing of
Turner's criticisms about the methods Gobies employed to
assess Pomeroy's body temperature are unpersuasive to bar
Gobles's testimony. These criticisms were properly
brought out on cross-examination and Turner was able to argue
to the jury about what weight or credibility they should
afford Gobles's testimony. In sum, due to Gobles's
considerable experience with death investigations with the
Kentucky State Police and as the Scott County coroner, along
with the training and education he received in the latter
position, we cannot say that the trial court abused its
discretion in permitting him to testify as an expert.
reject Turner's contention that Gobles's expert
testimony was not reliable. As admitted by Turner, Gobies did
not offer a definitive time of death, but rather offered his
expert opinion to identify a general time frame during which
Pomeroy had died. Gobles's testimony had the proper
caveats so that the jury was aware that he was only
identifying a general time frame during which he believed
that Pomeroy's death occurred. Moreover, Gobles's
approach was consistent with the publications cited to this
Court by Turner. See, e.g., Samuel D. Hodge Jr. 8b
Nicole M. Saitta, Behind the Closed Doors ofthe
Coroner's Office-the Medical/Legal Secrets Involving an
Autopsy, 32 Temp. J. Sci. Tech. 8b Envtl. L. 1, 6 (2013)
("time of death and [the postmortem interval] cannot be
determined with exactness and are merely given as estimates
and ranges"). Additionally, the techniques employed by
Gobies to assess time of death generally match those
identified in the publications cited to the Court -
"[t]he traditional method of establishing the time of
death is the rate method, and common factors utilized include
the rate of cooling of the body (algor mortis), the
initiation and duration of rigor mortis and livor mortis, as
previously discussed, determination of ...