Partin v. Commonwealth

PARTIN, Appellant, Delmar Kentucky,

COMMONWEALTH of

Appellee.

No. 94-SC-768-MR.

Supreme Kentucky.

March Bedford, Winchester, Clay for

S. General, III, Attorney A.B. Chandler Hilborn, Kay Handy, Thomas V. and Sharon General, Appel- Attorneys Criminal Assistant Division, Frankfort, appellee. late GRAVES, Justice. appel- County jury

A Knox convicted murder of Delmar Partin of the his lant estranged paramour Betty From a Carnes. imprisonment appeals of life he sentence right. this court as a matter of 26,1993, Betty Sunday, September job at the Tremco disappeared from her site September plant Barbourville. On decapitated body found in a her was fifty-five gallon plant barrel in laborato- ture of the Defense counsel ob- ry. autopsy jected grounds disclosed the cause of death on the injury awas blunt-force hearsay the head consis- under KRE 802 and not relevant being tent with pipe struck a metal under 403. The trial court ruled that Also, in found the barrel. Ms. Carnes testify anything witnesses could not as to by bruises on her neck caused cord by appellant to Carnes or the wit- encircling County her neck. The Knox nesses. The trial court wit- allowed the Jury Grand appellant indicted the for the testify concerning nesses to their observa- murder of Ms. Carnes. exhibiting tions of Carnes fear of and her statements about that fear. Wit- Appellant raises six appeal. issues on only nesses testified as to observations of Each issue is in present- addressed the order Carnes, anything not to she said. by appellant. ed (no Specifically, Ken Carnes relation to First, appellant asserts the trial court Carnes) Betty testified that he observed the overruling erred in appellant’s motion for a appellant. victim was afraid of The fear acquittal directed verdict of of murder be eight increased over the last six to weeks of cause of insufficient Appellant evidence. her life. Ken Carnes testified that ... “she claims that there was not sufficient time to talk wanted to more and more.” Barbara perform all the alleged by actions the Com Mason, partner machine, Carnes’ on the first addition, monwealth. appellant argues noticed that Carnes was afraid of in eyewitnesses that there are no or forensic June of 1993. She observed one incident evidence to link him to the crime. As a shaken, visibly which crying, Carnes was result, he claims nothing in the evidence trembling, and scared to death after one points exists which guilt to his more than meeting appellant. with Robert Cornett anyone having else laboratory. access to the appeared stated that Carnes afraid after appellate review, On the test of a meeting Earls, appellant. with Steve an em- directed verdict is whether under the evi ployee station, of a local service observed dence as a it clearly whole would be unrea appellant meeting Carnes and about one jury sonable for a guilt. Only to find if that prior week to her murder. He described question is answered the affirmative is a upset Carnes as George and nervous. Hamil defendant entitled to a directed verdict. testified that kept Carnes’ schedule was con- Benham, Commonwealth v. Ky., 816 S.W.2d fidential she exhibited fear. Burton (1991); Sawhill, Commonwealth v. gave Wilson testified that he Carnes’ work (1983). 660 S.W.2d 3 directly schedule displaying to her instead of it in the rack with the others. However, weight “the of evidence and credibility of the witnesses are functions Defense counsel did not cross-examine Ken peculiarly Carnes, within province Cornett, jury, Robert and Steve Earls. jury’s and the determination testify will not be dis The did Betty witnesses about turbed.” Jillson v. Ky., 461 Carnes’ statements to them. Their testimo- S.W.2d Leigh ny only Common consisted of observations of fear wealth, by S.W.2d appellant. See exhibited Carnes toward the also, Owsley v. Ky.App., 743 question before this Court is whether A review of the testimony concerning by observations made evidence as a whole indicates that the trial alleged witnesses of Carnes’ fear of correctly denied a directed verdict. hearsay pursuant to KRE 801 and/or testimony whether pursuant such is relevant

Second, appellant argues to KRE 401 and KRE 403. trial allowing testimony court erred in con cerning alleged Ms. Carnes’ fear “ of 801(c) provides KRE as follows: ‘Hear- offering statement,

Prior to say’ witnesses who would tes- is a other than one made tify as to Ms. appellant, Carnes’ fear of testifying declarant while at the trial or hear- Commonwealth advised the court ing, of the na- prove offered evidence to the truth of required following judgments matter asserted.” A statement “(1) 801(a) equation in KRE 403: formulated is: An oral or written (2) assertion; (i) conduct of a Nonverbal worth of assessment person, person sought; if it is intended as an the evidence whose exclusion testimony This did not contain assertion.” (ii) impact probable assessment of the Carnes. oral or written assertion consequences likely specified undesirable nonverbal conduct concerned (i.e., from its to flow admission “undue of Carnes. The issues, prejudice, confusion of the or mis- concerning this exhibited observed fear leading jury, delay, or ... undue need- if it is only a statement evidence”); Carnes is considered presentation of cumulative less conduct, (iii) [Carnes] intended “[n]onverbal determination whether the (harmful as an assertion.” judgment the product of second admission) prod- from the effects exceeds hearsay the can constitute under “Conduct (probative judgment uct of the first worth accompa- if federal definition intent to assert evidence.) of In conduct. instances the nied the most Id. at 56. intent to assert existence or non-existence of above, As stated the Commonwealth will from sur- be obvious the circumstances any elicit Carnes did not statements Lawson, rounding the conduct.” Robert fear of Nor were the wit of her Handbook, at Kentucky Evidence Law observations of fear exhibited nesses’ 1993). (3d Examples ed. of conduct with As toward assertions. a to assert can found in Souder the intent be result, has avoided a the Commonwealth de testimony pursuant termination of the above testify to proposed in which a social worker 803(3). exception, KRE to the state-of-mind in pointing to actions of a child to and dem- doll; onstrating anatomically an correct jurisdictions, as the feder- In other as well clearly the child assertive the actions of were system, appears a al court common thread to hearsay. and found to constitute interpreting hearsay when whether exist the victim’s fear of statements about murder testimony the wit- find that the of We ex- falls under the state-of-mind a defendant concerning of nesses their observations 803(3), hearsay KRE the ception, or whether hearsay. of not Carnes’ fear is a are relevant. Where victim’s statements issue, testimony the of mind is state However, admissibility of the the to be admitted into evidence. not allowed above evidence must further be examined a did not claim Specifically, where defendant pursuant guidelines in KRE to the outlined death, suicide, self-defense, an or accidental evidence, KRE 403. de 401 and Relevant usually relevancy “little statements have such 401, having in KRE “means evidence fined providing strong inference of except toward a any tendency to make of any the existence intent, culpability.” appellant’s actions or consequence of to the determina fact that is Nevada, 388, P.2d 96 Nev. Shults or less probable tion of the action more also, See States v. United probable it would the evi than be without (D.C.Cir.1973) Brown, 490 F.2d 758 and A decision trial court will dence.” the State, (Wyo.1981). Hopkinson v. P.2d 79 of in the absence of an abuse be disturbed in the of The same effect results provides KRE 403 as follows: discretion. concerning their observations four relevant, exclud “Although evidence be appellant. The exhibited fear of that Carnes substantially out probative if its value is ed relevancy “except toward has little danger prejudice, undue weighed the strong in- appellant’s providing inference issues, misleading the confusion of or Shults, tent, 616 P.2d culpability.” actions or delay, jury, or considerations of undue ap- at 394. The record establishes evi presentation of cumulative needless an recently ended extra pellant and decedent dence.” relationship relationship. marital After Lawson, extraordinary went According to ceased at 2.10. An affairs. a to be with the exam- about the other As measures decedent. preserved by this ple spending up four hours issue is not for review appellant’s 103(2). time to follow the as she RCr 9.52 and KRE of his own decedent performed duties at on both work. Also The record indicates that defense counsel Thursday Friday death on before her objection response stated as follows: Sunday, appellant requested eight six going is—We are to call wit- purpose Our be rescheduled to work with the times to nesses to show had motive Saturday. appellant’s post victim on opportunity killing frightened Her affair behavior the decedent. the same reason that Com- woman for expressed fear both in and in behavior ascribing monwealth is to our client that speech. her their interest their desire to have only purpose for that’s the which we

Applying relevancy equation that, it for offering offering we are not Lawson, in KRE outlined purpose reputation, only her show the testi we find value of else had with someone been involved mony outweighs provid effect kill- have had a her and would reason for prosecu ed a murder ing her. tion, victim, evidence that the adult normal woman, harbored fear of her accused killer Commonwealth, v. Ky.App., 566 Hebert probative of It inquiry. the central (1978), Kentucky the S.W.2d 798 Court unreasonable to ask in such circumstances interpreted Appeals literally 9.52 RCr

why would she have such fear and whether it avowals had to concluded that be made disputed render a tended to fact more less than witnesses rather counsel. In FB Insur Prejudice likely. is that which is unneces Jones, Company Ky.App., ance v. 864 S.W.2d sary and unreasonable. v. Com Romans (1993), Appeals 926 that the noted monwealth, Ky., 547 S.W.2d 128 As present may unclear the state law be result, we find of the four also, Lawson, concerning at avowals. See con Commonwealth witnesses who testified (KRE 103(a)) easily “can be construed cerning appellant permis Carnes’ fear of was allowing as use of avowals counsel sible to KRE 401 and KRE preserve for errors review.” Id. at 22.

Third, appellant the trial claims that appel- A the record review of discloses that court erred when it failed to the intro allow request lant did not that an examination be by appellant duction of other evidence presence jury conducted outside the extra-marital affairs Carnes. testimony by and offer RCr avowal under Commonwealth, v. 9.52. Caudill statement, During opening defense counsel As stated in Cain going that he was that stated to show Ky., 554 S.W.2d 369 affair was not between and Carnes to show “without an avowal what a witness place employ- Carnes’ first affair at her appellate no would have said court has objected that ment. Commonwealth determining basis for whether an error (and improper untimely) was an at- perhaps proffered excluding preju- his was tack Carnes’ character. Defense counsel dicial.” at 375. Counsel’s version of the Id. responded that the affairs evidence of other enough. court reviewing evidence A being char- was not offered to attack Carnes’ As a must the words of the witness. have acter, persons was to but show that other pre- we find this issue has not been exactly opportunity had the same motive and served. to kill as the Commonwealth was ascribing The trial sus- Fourth, Appellant that a vio asserts objection during tained the Commonwealth’s discovery lation of a order the Common opening statements. previously regarding wealth undisclosed upon argues allegedly by Appellant The Commonwealth statements process accepted ruling requires his due never offered arrest violated testify by way of an avowal reversal. argument un- Attorney closing monwealth examination of The Commonwealth’s direct A RCr 10.26. palpable der the error rule. for the first Adams disclosed Detective Grant one which the sub- palpable error is affects said, “Oh, weU”when he time that rights party of a and relief be stantial body decapitated had been was told that her only upon a granted palpable for errors de- objected and a Defense counsel found. injustice that a manifest has re- termination conference was held. bench means, upon error. This sulted from the discovery entered on A order had been case, of the whole the review- consideration 26, 1993, year almost a full before October that a substantial ing court must conclude The statement was disclosed the trial. result would have possibility exists Adams testified only when Detective defense grant different order to relief. Jack- been Attorney stat- at trial. Commonwealth’s Commonwealth, Ky.App., 717 S.W.2d son v. he no disclosure because ed there been (1986). A careful review of this record statement. A motion was unaware of the comment of no indication discloses counsel moved mistrial was denied. Defense Attorney substantially af- the Commonwealth discovery violation of a for exclusion due to jury’s Accordingly, the verdict. fected granted the motion order. The trial court palpable not rise to the level of error does agree strike, it inclined to stating that was Jackson, supra; 10.26. error. RCr that what the defendant with the defense Any appeal of consideration on shortly time of his arrest alleged prosecutorial misconduct must center jury point. The was a crucial thereafter of the entire trial. on the overall fairness disregard state- the last then admonished Commonwealth, Ky., 844 S.W.2d Dean ment, being made to the reference without (1992); Slaughter v. disregarded. exact statement to be States v. United “Oh, subject many inter- well” is comment 1038, 1, 105 84 L.Ed.2d Young, 470 U.S. S.Ct. in its ad- pretations. perceive no harm We reversal, (1985). justify In 1 order mission. so prosecutor must be misconduct of the 7.24(1), the defendant Pursuant to RCr entire trial funda as to render the serious any incriminating oral seek disclosure Bordenkircher, mentally unfair. v. Summitt witness, any him made statement Cir.1979). (6th The conduct of F.2d 247 608 any copying of rele- inspection and for the preju not so in this case was prosecutor con- or written or recorded statements vant fundamentally deprive Partin of a dicial as to him. fessions Tucker, Dean, Michigan v. supra; fair trial. 26,1992, entered 2357, an order was On October 41 L.Ed.2d 182 94 417 U.S. S.Ct. directing Judge the Common- the Circuit McDonald inspect “[t]he wealth to allow defendant 84 incriminating any state- oral substance of The conviction is affirmed. any witness ment made said defendant diligence of due or the exercise known KING, STEPHENS, C.J., and attorney for the may become known LAMBERT, REYNOLDS WINTERSHEIMER, JJ., Commonwealth.” concur. Commonwealth, Ky., STUMBO, J., Berry v. In dissents. held that “RCr we S.W.2d 27, 1996, January Prior to his death state- only or recorded applies to written majority considered REYNOLDS Justice Upon at 627. examination

ments.” Id. Rendition opinion herein and concurred. 7.24, find that no substantive RCr we only by administrative delayed normal language of made to the changes have been procedures. hold- affect this Court’s rule that would STUMBO, Justice, dissenting. find that no Berry. As a we ing in occurred. error Respectfully, I must dissent. murder, of dreadfully gruesome we was a

Finally, contends This gruesomeness The that there is no doubt. alleged of the Com- error should review crime, however, (citations omitted) grounds for af- protected.” princi- The firming a conviction through obtained ples the use prose- under which the conduct of a of inadmissible improper argu- evidence and cuting attorney judged are well stated in ment. Niemeyer (1976): 218, 222 S.W.2d finds, majority explaining without how public give One of the finest offices the can conclusion, it reached such a the evi- legal profession to member of the in this dence of decedent’s fear of probative Attorney. state is that of more Commonwealth’s value than effect. Yet, very Its power nowhere is the status becomes a mantle of value ex- plained. respect Though decedent’s state of mind was to the wearer. few issue, not in as there was no claim of self- apt lightly, forget, to wear it some or defense, death, suicide; thus, accidental or learn, apparently humbly. never to wear it relevancy there was “little except toward except judge No one for the himself is providing strong appellant’s inference of obligation under a stricter to see that ev- intent, culpability.” actions or Shults v. Ne- ery trial, defendant receives a fair a trial in vada, 96 Nev. 616 P.2d law, accordance with the which means the majority treats this inference as a duly law as laid down constituted ground when, fact, admissibility, Shults authorities, prosecuting and not as the at- just holds particularly reverse. This is torney may ought think it to be. true a case such as this where there is spite ruling of a of the trial court that virtually physical no evidence to tie evidence of other affairs of the decedent was to this crime. No effort is made to distin- inadmissible, prosecutor stated that “[i]f Shults, guish any way to set forth what proof, bring there’s people these in like fact is probable, made more probable, or less They would do. didn’t come.” The than it would be without the evidence. KRE effect of this comment was to insinuate that really possess the defense did not such wit- Additionally, I agree cannot that the com- courts, nesses. “The decisions of until over- plained of error in the Commonwealth’s clos- ruled, respected obeyed by must be trial ing was, argument best, harmless error. Moore, counsel.” at 438. I majority notes, As the opinion appellant would hold that com- Commonwealth’s sought, unsuccessfully, to introduce evidence improper ments were to the engaged decedent had in other ro- rights appellant, and would reverse mantic anticipated testimony liaisons. That and remand for a new trial. in appellant’s opening mentioned argu- ment, but when the time came to introduce evidence, the trial court refused to allow We have affirmed that rul-

ing. During closing argument, the Common- wealth following made the statement: “Other MINING, Appellant, APEX affairs —no evidence on it. While she’s dead buried, easy its to make If accusations. BLANKENSHIP; Sherman Robert L. proof, bring there’s people these in like Whittaker, Acting Special Director of They would do. didn’t come.” Fund; Steen, Irene Administrative Law argument by An the Commonwealth refer- Judge; Compensation and Workers’ ring to which the trial court has Board, Appellees. objection prejudicial. sustained As this No. 95-SC-671-WC. Court stated in Moore v. (1982): Ky., 634 S.W.2d 437-38 Supreme Kentucky. precept It is a prose- fundamental that a March cutor must conduct himself with “... due regal’d proprieties of his office and accused, legal rights

to see that the

as well as those of the

Case Details

Case Name: Partin v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: Mar 21, 1996

Citation: 918 S.W.2d 219

Docket Number: 94-SC-768-MR

Court Abbreviation: Ky.