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Turner v. Commonwealth

Supreme Court of Kentucky

April 26, 2018



          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



         Melinda 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 sentenced


         Over a 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.

         Several 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.[1]

         Less 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.

         After 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%.[2]

         While 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 as well.

         In 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.


         I. The Coroner's Testimony Regarding Pomeroy's Time of Death Was Properly Admitted.

         Turner alleges that the trial court erred by permitting the Commonwealth to introduce, the testimony of the local coroner, Gobies, concerning time of death.[3] 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, 2015.[4]

         At 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.

         After 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.

         After 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 had dried.[5]

         Gobies 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.

         When 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.

         The 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 methods; 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. 2015)).

         To 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)).

         In the 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.

         Turner 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 Pomeroy's death.

         Further, 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.

         We also reject Turner's contention that Gobles's expert testimony was not reliable.[6] 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.[7] 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 ...

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