Featured Case - Lukjan

Court of Appeals, 2010-CA-001509-MR

Susan Lukjan v. Commonwealth

Audra J. Eckerle, Judge, Jefferson County

To be Published Opinion, Reversing and Remanding

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Before: Taylor, Chief Judge; Acree and Vanmeter, Judges.

Opinion by Judge Acree

Lukjan was convicted of arson, burning personal property to defraud an insurer, and committing a fraudulent insurance act over $300, and sentenced to twelve years.  The COA reversed the conviction, and remanded for a new trial. Lukjan was denied a defense when the circuit court refused to allow the defense arson expert to testify on the ground that he wasn’t a licensed investigator as required by KRS 329A.015 and KRS 329A.010 (prohibiting an individual from holding himself out to the public as a private investigator).  On remand, the circuit court must judge Lukjan’s proffered experts based on KRE 702 and caselaw. Under those standards, licensure is not necessary to qualify as an expert, though it may be a factor. See Fugate v. Commonwealth, 993 S.W.2d 931 at 935.

 The COA also reversed the circuit court’s decision to admit the prosecution’s arson opinion evidence without either an adequate Daubert hearing, specifically without examining “the portions of the record which would have enabled the court to determine the reliability and relevance of the evidence.”

Practice note:    Consider carefully what is contained in the “certified business record” you are trying to get admitted.  The COA held that a lightning strike report wasn’t admissible as a business record under KRE 902(11), because the certification said the data was “detected and recorded by National Lightning Detection Network Sensors, and processed by “[h]ighly refined algorithms[.]”  The COA held the proffered report appeared to be scientific evidence whose admissibility is governed by KRE 702 and not a business record “as contemplated by KRE 803(6) and KRE 902(11).”  If the record you are trying to get admitted was not made by a human being, you may need to subpoena the custodian. 

Contributed by Susan Balliet

Spark of Truth: Can Science Bring Justice to Arson Trials? - Discover Magazine

Gregory Gorbett/Eastern Kentucky University

Also see the related article, "Seven Myths About Arson."

On a rainy spring morning in eastern Kentucky, Greg Gorbett prepares to commit arson. His target is a tidy but cheerless one-bedroom apartment with the kind of mauve-colored carpet, couches, tables, and lamps you would find in a cheap motel. Gorbett is not the only one eager to see the place burn. A handful of other fire scientists and grad students from Eastern Kentucky University (EKU) are checking equipment in the test room as well. They have gathered at the EKU fire lab, a concrete structure in an open meadow as close to nowhere as possible, to document in exacting detail the life cycle of a blaze.

Gorbett scans the setup one last time. A foil-covered wire studded with metal probes—a thermocouple array—crosses the ceiling and hangs down the center of the space; it will measure the temperature at one-foot intervals every two seconds. A radiometer shaped like a soup can will detect changes in radiant energy. Bundles of yellow wires will carry the data to a computer-equipped truck sitting out back. There is also a man lying on the floor: James Pharr, a former fire investigator from Charlotte, North Carolina, wearing a fire-resistant suit and oxygen mask, who will record the event with a thermal-
imaging camera.

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