Bartley v. Commonwealth, 2014 Ky. LEXIS 492

On July 31, 2007, police responded to Pamela and Carl Bartley’s home after relatives expressed concern about Carl’s safety; Carl’s body was later found in the garage with a gunshot wound suggesting a pistol likely used was a .357 or .38.
Pamela Bartley had a tumultuous marriage and knew Carl was having an affair; she had previously spoken with Carl’s sister about the dispute and later spoke to Detective Bowling with attorney present.
Approximately a month after Carl’s death, Pamela reported being shot at by a man named Thomas Lee and then spoke with Detective Bowling in her driveway; the almost two-hour interview was recorded.
During the interview, Pamela invoked her right to remain silent on topics other than the September 7 incident and repeatedly avoided questions about the murder, while initially acknowledging the Miranda rights.
The Commonwealth sought to admit the entire recording into evidence at trial; the trial court admitted much of it; Pamela was convicted of second-degree manslaughter; the Court of Appeals affirmed.
This discretionary review centers on whether the recording violated due process by using Pamela’s silence as substantive evidence and whether selective silence and waiver issues affected admissibility.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether recording Pamela’s silence violated due process by using it as substantive evidence	Bartley argues use of silence breached Fifth/14th Amendment guarantees	Bartley contends selective silence and Miranda warnings limit use	Yes; admission violated due process and Fifth Amendment protections
Whether Pamela could selectively invoke silence and later have it used against her	Bartley claims selective invocation should shield her from use of silence	Bartley contends selectivity should not bar use of some statements	Selective silence is protected; its use as substantive evidence was improper
Whether Pamela waived her rights by engaging in the interrogation beyond the September 7 incident	Bartley maintains no waiver occurred given continued invocation	Bartley’s conduct implied waiver due to discussing other topics	Waiver not proven; no knowing, voluntary relinquishment established
Whether the recording’s admission was harmless error or reversible	Bartley argues error not harmless given rights violation	Commonwealth argues any error was harmless	Error not harmless beyond a reasonable doubt; reversal warranted
What retrial issues likely to recur and how to handle them on remand	Bartley seeks preservation of rights and exclusion of non-weapon evidence	Commonwealth should re-evaluate admissibility and closing references	Remand for retrial with proper handling of rights and evidence constraints

Doyle v. Ohio, 426 U.S. 610 (U.S. 1976) (improper to impeach with silence after Miranda warnings; due process protection)
Jenkins v. Anderson, 447 U.S. 231 (U.S. 1980) (pre-arrest silence may be used to impeach; no Miranda trigger)
Fletcher v. Weir, 455 U.S. 603 (U.S. 1982) (post-arrest silence without Miranda warnings may be used against defendant who testifies)
Wainwright v. Greenfield, 474 U.S. 284 (U.S. 1986) (silence as evidence of sanity; cannot use post-Miranda silence against accused)
Salinas v. Texas, 133 S. Ct. 2174 (U.S. 2013) (pre-custodial silence; due process limits depend on warning receipt)
Berghuis v. Thompkins, 560 U.S. 370 (U.S. 2010) (requirement of explicit waiver standard; detailed waiver analysis)
Wise v. Commonwealth, 422 S.W.3d 262 (Ky. 2013) (automatic waiver analysis for noncustodial/consensual interrogation context)
Green v. Commonwealth, 815 S.W.2d 398 (Ky. 1991) (Miranda warnings not required to establish right; silence after warning improper in certain contexts)
Hall v. Commonwealth, 862 S.W.2d 321 (Ky. 1993) (prosecution may not use defendant’s silence in the case-in-chief)