Futrell v. Commonwealth
2015 Ky. LEXIS 1861
| Ky. | 2015Background
- On July 16, 2011, Kayla Lord and Jared Futrell brought Lord’s 17‑month‑old son, Staten Stephenson, to the ER; the child had catastrophic head and abdominal injuries and died ten days later.
- Autopsy and treating‑physician testimony attributed death to hypoxic‑ischemic encephalopathy from blunt‑force head trauma; numerous bruises and an occipital skull fracture were documented.
- Commonwealth presented child‑abuse pediatrician Dr. Melissa Currie who opined the injuries were inflicted, not accidental; defense presented an expert who blamed choking on gum and CPR.
- Both defendants were tried jointly, convicted by a jury of wanton murder (principal or accomplice), and sentenced to 25 years.
- Defendants moved for directed verdicts and post‑trial relief raising multiple trial errors; the Court reversed based primarily on improper refusal to strike two jurors for cause and other instructional and evidentiary concerns likely to recur on retrial.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Lord/Futrell) | Held |
|---|---|---|---|
| Sufficiency / Directed verdict | Evidence showed catastrophic trauma while defendants had exclusive access; convictions as principals supported. | Evidence showed only presence/opportunity; mere presence insufficient for guilt. | Denied directed verdicts — sufficient evidence existed for a jury to find either/both guilty as principals. |
| Challenge for cause of two jurors | Jurors’ ties to assistant prosecutor were not disqualifying given juror assurances. | Jurors (Nos. 27 & 75) had ongoing or close relationships with prosecutor and expressed bias; should be excused. | Trial court abused discretion by failing to remove both; error satisfied Gabbard test and requires reversal and remand. |
| Combination principal/accomplice instruction (unanimity) | Instruction proper if evidence supports both theories; jury convicted under combined instruction. | Instruction included inadequately supported theories (esp. Futrell complicity); risked nonunanimous verdict. | Combination instruction allowable only if evidence supports each theory; Lord may be retried on principal and duty‑based complicity theories, but Futrell’s complicity instruction lacked evidentiary and drafting support — Futrell may not be retried on complicity. |
| Drafting error in Futrell’s complicity instruction | Error was obvious and jury would disregard drafting sloppiness. | Instruction misidentified actor and failed to tie aiding conduct to the lethal assault; legally and evidentially insufficient. | Instruction was legally erroneous and unsupported; provides alternative ground to reverse Futrell’s conviction on complicity theory. |
| Admissibility of child‑abuse pediatrician (Dr. Currie) | Expert testimony met KRE 702/Daubert criteria and was necessary to distinguish inflicted vs. accidental injury. | Diagnosis of ‘‘inflicted’’ is unreliable, not testable, unduly prejudicial, and invaded ultimate issue. | Admission affirmed: differential diagnosis by a child‑abuse specialist is reliable, relevant, and not unduly prejudicial under KRE 702/403. |
| Peremptory challenges allotment | Court’s allocation was sufficient. | Defendants received too few peremptory strikes for joint trial (RCr 9.40). | Trial court erred — defendants were entitled to additional peremptory challenges. |
| Cross‑examination impeachment of diversion deal (Johnny Stephenson) | Matter was not material or the risk of confusion outweighed probative value. | Defense should have impeached witness with existence of revocable diversion to show motive. | Exclusion was error — revocable diversion implicates Confrontation Clause impeachment rights (Van Arsdall/Davis). |
| Admission of autopsy photos and prior‑act evidence | Photographs and prior‑acts were cumulative and unfairly prejudicial. | Photos and prior‑act testimony were probative to show inflicted injury and rebut accident defense. | Admission was proper: photos and prior‑act evidence were relevant and not unfairly prejudicial. |
Key Cases Cited
- Gabbard v. Commonwealth, 297 S.W.3d 844 (Ky. 2009) (preservation and prejudice analysis when juror for‑cause denial exhausts peremptories)
- Jackson v. Commonwealth, 392 S.W.3d 907 (Ky. 2013) (standard for directed verdict / viewing evidence for Commonwealth)
- Benham v. Commonwealth, 816 S.W.2d 186 (Ky. 1991) (directed verdict legal standard)
- Travis v. Commonwealth, 327 S.W.3d 456 (Ky. 2010) (unanimity rule when instruction includes unsupported theories)
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (U.S. 1993) (expert admissibility gatekeeping principles)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (U.S. 1999) (Daubert factors apply to non‑scientific expert testimony)
- Estelle v. McGuire, 502 U.S. 62 (U.S. 1991) (admission of expert shaken‑baby testimony does not per se violate due process)