Court of Appeals, 2010-CA-001509-MR
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
