Bartley v. Commonwealth
2013 Ky. LEXIS 291
| Ky. | 2013Background
- Donna Bartley and roommate/co-defendant Rita Mitchell were tried for neglecting and abusing Bartley’s severely disabled adult son, K.B.; Bartley convicted of first-degree assault and first-degree criminal abuse and sentenced to consecutive terms (20 and 10 years).
- K.B., who has cerebral palsy and severe cognitive impairment, was found naked on a plastic-covered mattress amid filth, covered in feces, dehydrated, malnourished, with bedsores, muscle atrophy, displaced clavicle/shoulder collapse, vitamin deficiencies, and severe dental decay; medical testimony showed injuries developed over weeks/months and posed life‑threatening risks.
- Mitchell lived in the mobile home and provided day‑to‑day care; Bartley retained control of finances and benefits but visited infrequently and allowed utilities and basic care to lapse; Mitchell testified she was depressed and intimidated by Bartley.
- Procedural: both defendants had attorneys from the same public‑defender office; no contemporaneous objection to that arrangement; late disclosure of additional nursing‑home records prompted a joint continuance motion denied by the trial court.
- Trial rulings challenged on appeal: alleged conflict of interest with counsel, lawfulness of charging first‑degree assault for omission, adequacy of jury instructions (duty element and lesser included offense), denial of continuance, and denial of mistrial after a witness’s reference to possible cigarette burns.
Issues
| Issue | Plaintiff's Argument (Bartley) | Defendant's Argument (Commonwealth / Court) | Held |
|---|---|---|---|
| Conflict of interest from same office representing co‑defendant | Joint representation created an impermissible conflict that undermined effective assistance | No specific showing that any actual conflict adversely affected counsel’s performance; no contemporaneous objection or waiver | Denied relief — no actual adverse effect shown; caution to courts to address potential conflicts early |
| Whether first‑degree assault may be based on omission (neglect) | Assault statutes require an overt affirmative act; cannot criminalize pure omission | Penal Code defines "conduct" to include omission to perform a legal duty (KRS 501.030(1)); assault is a result crime focused on serious physical injury and can be committed by neglect if elements met | Held lawful to charge and convict for assault by neglect where duty existed and statutory elements (wantonness, grave risk, serious injury) satisfied |
| Whether jury should decide existence of legal duty (instructional error) | Jury should be instructed to find Bartley owed a legal duty to K.B. (element of omission) | Existence of a legal duty is a question of law for the court; jury should decide breach, causation, and disputed factual circumstances only | Court ruled duty is for judge to decide; omission of a duty‑finding instruction not reversible here because duty (mother of dependent disabled adult) was undisputed and error not preserved or palpable |
| Failure to instruct on lesser included offense (KRS Ch. 209 neglect of an adult) | Jury faced only extremes (first‑degree assault or misdemeanor fourth‑degree assault); should have had KRS 209 lesser option | Defendant did not request a KRS 209 lesser‑included instruction; trial court not required to give unrequested lesser offense instruction | No relief — failure to request preserves nothing; strategic choice not remediable on appeal |
| Denial of continuance after late disclosure of nursing‑home records | Denial deprived defendants time to obtain independent expert and present defense | Trial court found motion untimely, no compliance with affidavit requirements, speculative prejudice, and inconvenience to witnesses | Denial was not an abuse of discretion; no identifiable prejudice shown |
| Denial of mistrial after witness referenced cigarette‑burn‑sized scars | The remark was highly prejudicial and required mistrial | Court sustained objection, admonished jury twice to disregard the answer, and found evidence basis for the question; not so inflammatory or inevitably devastating as to render admonition ineffective | Denial of mistrial affirmed; admonition adequate under circumstances |
Key Cases Cited
- Holloway v. Arkansas, 435 U.S. 475 (1978) (multiple representation and Sixth Amendment conflict principles)
- Mickens v. Taylor, 535 U.S. 162 (2002) (actual‑conflict standard for unpreserved multiple‑representation claims)
- Kirkland v. Commonwealth, 53 S.W.3d 71 (Ky. 2001) (same‑office representation implicated but no reversal absent actual adverse effect)
- Gibson v. Commonwealth, 50 S.W. 532 (Ky. 1899) (early recognition that omission causing death can constitute homicide)
- West v. Commonwealth, 935 S.W.2d 315 (Ky. Ct. App. 1996) (homicide by neglect under Penal Code where omission of legal duty caused death)
- Lane v. Commonwealth, 956 S.W.2d 874 (Ky. 1997) (parental duty to protect child can generate criminal liability; overlap of statutes and prosecutorial discretion)
- Anderson v. Commonwealth, 63 S.W.3d 135 (Ky. 2001) (denial of continuance reversed where late disclosure materially affected ability to prepare defense)