PAMELA BARTLEY APPELLANT v. COMMONWEALH OF KENTUCKY APPELLEE

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Court of Appeals of Kentucky.

PAMELA S. BARTLEY APPELLANT v. COMMONWEALH OF KENTUCKY APPELLEE

NO. 2010–CA–001640–Me

Decided: March 09, 2012

BEFORE:  TAYLOR, CHIEF JUDGE;  COMBS AND NICKELL, JUDGES. BRIEFS FOR APPELLANT:  W. Robert Lotz Covington, Kentucky Derek R. Durbin Fort Thomas, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky John Paul Varo Assistant Attorney General Frankfort, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Pamela Bartley has appealed from her conviction and sentence following a jury trial in the Rowan Circuit Court on a charge of manslaughter in the second degree. Double She contends the trial court erroneously permitted the Commonwealth to comment on her pre-arrest silence, and further erroneously permitted the introduction into evidence of handguns which had been tested and conclusively excluded from being the weapon used in the homicide.   We disagree and affirm.

On July 31, 2007, troopers from the Kentucky State Police (KSP) were dispatched to the home of Carl and Pamela Bartley in Jeffersonville, Montgomery County, Kentucky, in response to a call from members of Carl's extended family who were concerned about his whereabouts and safety.   The officers were given a key to the residence and performed a search of the residence.   In the garage, the officers discovered Carl's body on the floor between two cars, a white Chevrolet sedan and a blue Toyota coupe.   The body was wrapped in blankets with boxes on top of it.   An autopsy later found that Carl had been killed by a gunshot to the back of his head.   A ballistics expert determined that the fatal shot had been fired by either a .357 or .38 handgun.   The time of death could not be established.

Following an investigation, Pamela was indicted for Carl's murder. Double A trial commencing on July 14, 2009, in Montgomery County resulted in a mistrial after a jury could not be seated.   The case was then transferred to Rowan County and a special judge was appointed to preside over the matter.   An eight-day jury trial began on December 7, 2009.   The following pertinent factual background was revealed during the trial.

Carl's sister, Linda McGuire, spoke to Carl around 9:30 a.m. on July 30, 2007, and made plans to meet with him around 5:00 that afternoon.   Carl would not be heard from again.   Pamela's and Carl's vehicles were seen in their driveway around 1:00 p.m. that day.   A friend, Virgil Parks, called the home at 2:00 p.m. to speak to Carl, and was told by Pamela that he couldn't come to the phone because they were having “marital problems.”   At 2:28 p.m., Pamela was at the bank withdrawing $5,000.00 from Carl's business account.   She stopped to get a phone charger from her grandson approximately 45 minutes later, and then made the two-hour drive to her daughter's home in Melbourne, Kentucky.

When Carl did not meet his sister as planned that evening, she became concerned and attempted to contact him.   When she could not locate him, Linda contacted Pamela to see if she was aware of Carl's whereabouts.   Pamela informed Linda they had been in a heated argument that morning, Carl had left, and she believed he was probably with his girlfriend.   Repeated phone calls to Pamela that evening did not spark any concern, and although having never done so previously, Pamela stayed overnight at her daughter's home.   She returned to her home the following day after Carl's body had been discovered.

KSP Detective Larry Bowling was assigned to the case following the discovery of Carl's body.   Upon his arrival at the scene, several of Carl's family members indicated their belief that Pamela was responsible for Carl's death.   Pamela, having travelled to her daughter's home in Campbell County, Kentucky, on July 30, 2007, was not at the scene at that time.   When Pamela arrived a short time later, she was accompanied by her son and daughter and was told not to approach the home for safety reasons.   Det. Bowling approached Pamela but was told by her son that she would not answer questions without first having an attorney present.   Pamela personally reiterated this sentiment to the officer.   Det. Bowling continued his investigation without meaningful cooperation from Pamela.

A number of witnesses testified as to the tumultuous marital relationship between Carl and Pamela.   The pair often argued and fought, occasionally to the point where they drew guns on each other.   These marital issues escalated in July 2007 when Pamela learned that Carl had been engaged in an extramarital affair for over five years with Katherine Lee after receiving a phone call from Katherine herself.   The couple fought bitterly over the affair throughout the month.   On July 10, 2007, a KSP trooper was dispatched to the home in response to a domestic disturbance stemming from a day-long argument over Carl's girlfriend.   At some point during July, Carl inquired of the Montgomery County Attorney's office about obtaining an emergency protective order.   Other witnesses testified about hearing Pamela threaten to kill Carl on various occasions and expressing sentiments such as, if she could not have Carl “nobody else will;” Carl was worth more to her dead than alive;  and she “couldn't take it any more.”   Dalton Bartley, Pamela and Carl's then eight-year-old grandson, testified to seeing Pamela pull a gun and point it at the back of Carl's head during an argument shortly before Carl's death.   Dalton testified Pamela told him on Sunday, July 29, 2007, she was going to kill Carl.

Testimony of several witnesses revealed that Pamela owned and carried a .38 caliber handgun, she had carried it for years, and referred to it as her “baby.”   Following Carl's death, several handguns were located in the home, but Pamela's .38 handgun was never recovered.   A ballistics expert from the KSP testified she had received and tested two 9 mm handguns which she concluded had not fired the round that killed Carl. One of the two 9 mm handguns was introduced into evidence and published to the jury for its examination.   The ballistics expert reiterated that the fatal shot had been fired from a .38 or .357 magnum.

Witnesses further testified that Carl routinely drove a white Chevrolet sedan.   Because the car leaked oil, Carl would not park the Chevrolet in the driveway or in the garage.   However, this vehicle was one of the two cars in the garage between which Carl's body was found.

Pamela contacted the KSP on September 7, 2007, requesting assistance regarding an incident she alleged had occurred earlier that day in which Thomas Lee, Katherine's brother, had chased her and her son, Bradley Bartley, fired shots at their vehicle, and broke out a window of the car with a baseball bat.   Det. Bowling responded to the assistance call and drove to Pamela's home.   The pair engaged in a lengthy recorded conversation in Det. Bowling's cruiser while parked in Pamela's driveway. Double At the beginning of the conversation, Det. Bowling informed Pamela of her Miranda warnings, she noted she understood, and indicated that she had spoken to her attorney and, upon his advice, did not want to discuss anything regarding Carl's death, but only wanted to talk about “what happened today.”

Despite her assertion, Pamela attempted to implicate Thomas Lee in Carl's murder many times throughout the conversation.   She expressed her fear that Thomas would do the same thing to her.   However, Pamela remained completely silent when directly questioned by Det. Bowling regarding events and her actions around the time of the murder.   Det. Bowling asked her numerous times about the location of her gun, when she left to travel to her daughter's house, and where Carl generally parked his car.   Pamela remained silent.   She also made no comments when Det. Bowling stated his theory that she had killed Carl, but that he believed it was an accident.   Pamela's demeanor changed dramatically throughout the conversation, ranging from laughter, sniffling, hysterical crying, fear and anger.   Many times these mood changes occurred within a matter of seconds.   At the conclusion of the conversation, Pamela was arrested on an outstanding warrant unrelated to Carl's death.

Numerous other witnesses were called throughout the trial by the Commonwealth and the defense.   The testimony and evidence provided by these additional witnesses, while important in the jury's consideration of the case, are not challenged in this appeal and warrant no further discussion.

On December 17, 2009, the case was given to the jury.   The jurors deliberated for eight and a half hours before convicting Pamela of manslaughter in the second degree.   After hearing more testimony, the jury recommended a sentence of eight-years' imprisonment.   The trial court sentenced her in accordance with the jury's recommendation on January 19, 2010, and this appeal followed.

Pamela raises two allegations of error in urging reversal of her conviction and sentence.   First, she contends the trial court erred in permitting the introduction of her taped conversation with Det. Bowling.  Second, she argues the trial court erred in permitting the Commonwealth to introduce evidence that multiple guns were seized from the Bartley residence which were tested and conclusively shown to not be the murder weapon.

In her first allegation of error, Pamela contends she was denied a fair trial because the trial court erroneously admitted her tape-recorded conversation with Det. Bowling.  She further alleges the trial court compounded its error by permitting the Commonwealth to elicit testimony regarding her pre-arrest silence as captured on the audio recording.   Pamela believes these errors amount to a violation of her Constitutional right against self-incrimination.

The introduction of the tape-recorded interview was discussed at length and both sides had ample opportunity to make their respective positions known to the trial court.   Multiple hearings were held on the matter and numerous orders were entered.   In an effort to ensure it was making the correct decision on the admissibility of the conversation, the trial court sat with the parties in chambers to listen to the entire interview, pausing the recording at several points to entertain dialogue about issues with the recording in real-time.   The decision on whether to admit the tape was carefully considered by the trial court before ultimately ruling the entire interview would be played for the jury with only minor redactions.

The trial court's decision to allow introduction of the taped interview is an evidentiary ruling which we review for an abuse of discretion.  Anderson v. Commonwealth, 231 S.W.3d 117, 119 (Ky.2007).  “The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair or unsupported by sound legal principles.”  Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999) (citations omitted).   We have reviewed the complete record, including the entire interview, and discern no abuse of the trial court's substantial discretion.

The Fifth and Fourteenth Amendments to the United States Constitution and Section 11 of the Kentucky Constitution serve to protect a defendant from being compelled to give evidence against herself in a criminal prosecution.   Citing Combs v. Coyle, 210 F.3d 269, 283 (6 th Cir.2000), Pamela contends the use of the tape constituted an improper reference to her pre-arrest silence as substantive evidence of her guilt and was violative of her privilege against self-incrimination.

In Combs, the Sixth Circuit held that the introduction of a defendant's statement, “talk to my lawyer,” as a response to a police officer's question, violated the Fifth Amendment, even though the defendant had not been placed under arrest nor given his Miranda warnings at the time he made the statement.   The court went on to state that “the use of a defendant's pre-arrest silence as substantive evidence of guilt violates the Fifth Amendment's privilege against self-incrimination” and “the application of the privilege is not limited to persons in custody or charged with a crime;  it may also be asserted by a suspect who is questioned during the investigation of a crime.”  Id. Kentucky courts have not addressed the Combs holding in any published opinions, but this Court and the Supreme Court of Kentucky have recognized its existence in unpublished opinions.

Here, Pamela had been informed of her Miranda rights, acknowledged she fully understood them, stated she had contacted her attorney, and was invoking her right to remain silent as to events unconnected with the September 7, 2007, incident allegedly involving Thomas Lee. Nevertheless, throughout her conversation with Det. Bowling, Pamela attempted to manipulate the discussion to implicate Thomas as Carl's murderer.   She willingly discussed matters beyond the September 7, 2007, incident—contrary to her earlier assertion she would not do so based on counsel's advice—until Det. Bowling asked questions about her statements.   She then became silent and refused to respond.   This pattern of events was repeated numerous times throughout the interview.

Pamela consistently attempted to state her beliefs and direct the investigation into Carl's death but refused to answer any questions relating to her possible involvement in the crime.   Although she invoked her right to remain silent as to Carl's death at the beginning of the interview, we believe Pamela's subsequent actions constituted at minimum an implicit waiver Double of that asserted right.   Clearly, Pamela was aware of her rights, acknowledged her understanding of those rights, and subsequently made statements directly contrary to that assertion.   Thus, we believe, as did the trial court, that the jury was entitled to hear the entire interview.

Pamela further alleges the trial court compounded its error by permitting the Commonwealth to elicit testimony regarding her pre-arrest silence and comment on the same in its closing argument.   Although she now argues it was improper for the Commonwealth to question Det. Bowling regarding her silence and to comment in closing on her refusal to inform the police where her .38 was located and other potentially important information, no contemporaneous objection was lodged during the line of questioning nor during the Commonwealth's closing.   Thus, this alleged error is unpreserved for appellate review as Pamela tacitly concedes, and she has requested review under the palpable error standard contained in RCr 10.26.   Under the clear mandates of that rule, for an error to rise to the level of palpable error requiring reversal, the defendant's substantial rights must have been affected resulting in manifest injustice.   To determine whether a manifest injustice has occurred, reviewing courts are required to determine whether “the defect in the proceeding was shocking or jurisprudentially intolerable.”  Commonwealth v. Pace, 82 S.W.3d 894, 895 (Ky.2002).   An error cannot be palpable unless there is a “substantial possibility” that the result would have been different without the error.  Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky.2006).

In its closing argument, the Commonwealth referred briefly to Pamela's refusal to reveal the location of her .38 caliber handgun or to definitively state when she left Montgomery County to travel to her daughter's home near the time of Carl's death.   The Commonwealth also commented on Pamela's continued refusal to assist in Det. Bowling's investigation, but informed the jury that Pamela was not required to do so.   It is well-settled that closing arguments are not evidence and that wide latitude is allowed.   See Wheeler v. Commonwealth, 121 S.W.3d 173 (Ky.2003);  Slaughter v. Commonwealth, 744 S.W.2d 407 (Ky.1987).   We discern no error in the Commonwealth's comments on the evidence, much less palpable error, as we cannot conclude the jury was prejudiced against Pamela by these statements.   Pamela was charged with intentional murder, a capital offense.   The jury returned a verdict on a lesser included offense upon a finding she had acted wantonly in causing Carl's death.   It cannot reasonably be argued that, but for the challenged statements, the jury would have found Pamela guilty of reckless homicide or acquitted her all together.   The substantial body of evidence presented, circumstantial though it was, does not bear out such a conclusion.   Thus, Pamela is not entitled to the relief she seeks as she has failed to show a substantial possibility the outcome of her trial was affected by the unchallenged statements.  RCr 10.26.

Finally, Pamela contends the trial court erred in permitting the Commonwealth to introduce evidence that multiple guns were seized from the Bartley residence and that after testing, these guns were conclusively shown to not be the murder weapon.   She alleges this testimony and the subsequent introduction of the 9 mm handgun were irrelevant and highly prejudicial.   She admits this error is unpreserved but again requests palpable error review.   As we stated earlier, an error is palpable only if there is a “substantial possibility” the outcome of the trial would have been different absent the error.   Our review of the record reveals no such “substantial possibility” existed.

As a general rule, guns unrelated to the crime are inadmissible.  Major v. Commonwealth, 177 S.W.3d 700, 710–11 (Ky.2006);  Gerlaugh v. Commonwealth, 156 S.W.3d 747, 756 (Ky.2005).   The Commonwealth cites us to an unpublished opinion of the Supreme Court of Kentucky suggesting this rule is not absolute and upholding the admission of guns and ammunition that were not shown to have been used in the commission of the charged crime.  Goodman v. Commonwealth, 2008 WL 2167538 (Ky.2008, unpublished).   In Goodman, the Supreme Court acknowledged the general rule in Major and Gerlaugh, but distinguished the case on factual grounds.   In particular, after the defendant in Goodman shot his wife, he drove to his home where a “small arsenal of weapons and ammunition was stored.”   Upon his arrival, Goodman ordered his family to leave, telling them that the police were coming because he had just killed his wife.   Although no evidence was presented that Goodman had used these particular weapons during the ensuing shootout and standoff with police, the Supreme Court held that the presence of the guns was relevant to show that Goodman went to the house with the intent to engage in combat with any police officer who may arrive.  Id. at *5–6.

Unlike in Goodman, no evidence was presented in this case that the two 9 mm handguns seized and tested had any relation at all to the charged crime.   The Commonwealth maintains that evidence regarding the presence of the guns in the home was relevant to show Pamela's comfort with and intimate knowledge of firearms.   However, Pamela was not charged with illegally possessing any weapons, nor could she have been as the Commonwealth's own proof indicated she had a permit to carry a concealed deadly weapon.   No testimony indicated Pamela obtained one of the 9 mm weapons to kill her husband.   The testimony regarding the two 9 mm handguns, which were seized from the marital home and tested, was brief and was not presented in such a fashion as to implicate Pamela as the shooter.   There could be no confusion that neither of these guns was capable of firing the fatal shot as the expert testimony clearly revealed.   Given the absence of any connection to the charged offense, the only purpose for introducing the two 9 mm handguns was to show Pamela's propensity to commit a certain type of crime.   This is not a permissible purpose for admission of weapons not shown to be related to the charged crime.   Thus, we conclude the trial court abused its discretion by allowing introduction of the two 9 mm handguns.  Major, 177 S.W.3d at 707.

However, while the trial court erred in admitting the unrelated weapons, we conclude that any error in this circumstance was harmless beyond a reasonable doubt.  RCr 9.24.  “Our harmless error standard requires ‘that if upon a consideration of the whole case this court does not believe there is a substantial possibility that the result would have been any different, the irregularity will be held nonprejudicial.’ ”  Matthews v. Commonwealth, 163 S.W.3d 11, 27 (Ky.2005) (quoting Abernathy v. Commonwealth, 439 S.W.2d 949, 952 (Ky.1969), overruled on other grounds by Blake v. Commonwealth, 646 S.W.2d 718 (Ky.1983)).

Testimony regarding the two handguns in question was elicited in a brief questioning of the Commonwealth's firearms expert and was mentioned but once in the Commonwealth's lengthy closing argument.   This testimony and comment in closing was essentially an aside in Pamela's eight-day trial.   Contrary to Pamela's assertion, our review of the record does not indicate the Commonwealth was attempting to paint her as a “pistol-packing mama” through this testimony.   Considering the introduction of significant evidence supporting a finding of guilt, including Pamela's motive and opportunity, we cannot conclude there is a substantial possibility the result would have been different if the two 9 mm handguns had not been introduced.   Therefore, the error was not prejudicial and no relief is warranted.

For the foregoing reasons, the judgment of the Rowan Circuit Court is affirmed.

TAYLOR, CHIEF JUDGE, CONCURS.

COMBS, JUDGE, DISSENTS AND FILES SEPARATE OPINION.

COMBS, JUDGE, DISSENTING:  Numerous facts tending to inculcate Pamela were presented throughout the trial in this case.   However, the commentary about her silence was an inexcusable violation of her Fifth Amendment right to remain silent.   It was reversible error per se for any comment to be made concerning her exercise of her constitutional right.   Cases so holding are legion.   The entire proceeding was fatally tainted by the inclusion of references to her silence.

Although I agree that evidence as to the other guns was inadmissible and prejudicial, the overarching error is the patent violation of the right of the accused to exercise her Fifth Amendment privilege against self-incrimination by remaining silent.

This case must be reversed on this palpable error alone – other errors notwithstanding.   It cannot be finessed away – and should not be.

NICKELL, JUDGE:   Double