EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, March 23, 2012

Death Of The Furby: Supreme Court Of Kentucky Reverses Murder Conviction Based On Furby Shooting Evidence

According to Wikipedia,

A Furby (plural Furbys or Furbies) was a popular electronic robotic toy resembling a hamster/owl-like creature which went through a period of being a "must-have" toy following its launch in the holiday season of 1998, with continual sales until 2000. Furbies sold 1.8 million units in 1998, 14 million units in 1999, and altogether in its three years of original production, Furbies sold over 40 million units. Its speaking capabilities were translated into 24 languages.

Furbies were the first successful attempt to produce and sell a domestically-aimed robot. A newly purchased Furby starts out speaking entirely Furbish, the unique language that all Furbies use, but is programmed to start using English words and phrases in place of Furbish over time. This process is intended to resemble the process of learning English. In 2005, new Furbies were released, with voice-recognition and more complex facial movements, and many other changes and improvements. The Emoto-Tronic Furbies (Furby, Furby Baby, and Funky Furby) continued to be sold until late 2007, when these toys became extremely rare.

The year is 2001. Like many people back in the halcyon days of the Furby, Richard Gabbard became annoyed by the noises coming from one of the toys. Unlike most people, Gabbard decided to shoot at a Furby with his pistol, striking it between the eyes. About four and a half years later, Gabbard shot and killed his girlfriend and was later convicted of wanton murder. Part of the evidence against him consisted of testimony concerning the Furby shooting. Was this evidence properly admitted? According to the recent opinion of the Supreme Court of Kentucky in Gabbard v. Commonwealth, the answer is "no."

In Gabbard, the facts were as stated above, with Gabbard claiming that his gun went off accidentally when he was cleaning it, resulting in the death of his girlfriend, . At Gabbard's trial, a witness, Stacey Little, Michelle Kyrstofik

testified that, around September of 2001, some four and a half years before the fatal shooting of Michelle Kyrstofik, Little and her boyfriend, Jeremy Peters, were visiting Appellant and the victim at their home. The four were outside sitting around a picnic table while drinking. Appellant became annoyed by the noise from a "Furby" toy which was in the middle of the table. Appellant said that he was going to blow the toy's brains out if it made the noise again. When the toy repeated the noise, Appellant retrieved his pistol from inside. When he returned, with everyone still sitting around the table, Appellant proceeded to fire at the toy, hitting it directly between the eyes. Stacey testified that she became uncomfortable after realizing that she had been sitting less than two feet away from the toy when Appellant shot it. She and Jeremy left at that time.

After he was convicted, Gabbard appealed, claiming, inter alia, that this testimony was improperly admitted. The Supreme Court of Kentucky noted that this testimony was admitted under Kentucky Rule of Evidence 404(b), which provides that

Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible:

(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or

(2) If so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party. 

The court then noted that even if "other act" evidence is offered for a permissible purpose under Rule 404(b), it still must pass the balancing test set forth in Kentucky Rule of Evidence 403, which states that

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

The Kentucky Supremes noted that the trial court had found this test satisfied: 

In its ruling on the admissibility of this evidence, the trial court found that the prejudice to Appellant was outweighed by its probative value. It concluded that the evidence was probative because it was similar in nature and demonstrated a similar pattern of conduct as the circumstances surrounding the shooting of the victim in this case. The trial court further indicated that the incident with the Furby toy may have demonstrated a wanton disregard of human life. The trial court noted that the Furby incident was prejudicial to Appellant because it made it look like the shooting of the victim was not a mistake or accident. The trial court acknowledged that Appellant was not charged with intentional murder, but explained that the point of the Furby incident was that it showed Appellant's indifference to human life. The trial court also explained that this evidence went against Appellant's defense theory that "[the victim] was shot when his gun went off while he was cleaning it, and supports the Commonwealth's theory of absence of mistake or accident."

The Supreme Court of Kentucky disagreed on both the probative value and unfair prejudice of the Furby evidence. With regard to probative value, the court did

agree that the Furby incident implied that Appellant was competent in handling and firing guns since he was able to accurately fire and hit a small toy between the eyes. This suggests that Appellant was skilled in handling the gun and less likely to have accidentally discharged the weapon

That said, the court then found that

Appellant's defense theory was that the gun malfunctioned, causing it to fire accidentally. The fact that he was a good shot with the gun was not particularly probative of whether the gun malfunctioned or fired accidentally.

Moreover, with regard to unfair prejudice, the court concluded that

This evidence was extremely prejudicial with respect to Appellant's character. It showed that Appellant was easily angered. In the previous incident with the Furby toy, he talked about blowing the toy's brains out. He also fired the pistol in close proximity to other people while drinking. Many of these circumstances were present in the case sub judice. These similarities between the two incidents make the possibility of prejudice even higher. Based on this evidence, a reasonable juror would be tempted to infer that, because Appellant acted wantonly with a gun in the Furby incident, he probably acted wantonly with the gun on the night of the victim's death.

Perhaps most importantly, the court correctly concluded that

The rationale that this evidence should be admitted because it shows conduct that was possibly wanton is the very rationale prohibited by KRE 404(b). Even if evidence of prior bad acts is similar to the facts of the crime charged, it still must be probative of something other than the defendant's character

Accordingly, the court reversed Gabbard's conviction.

(Hat tip to Richard Underwood for the link).



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