JAMES H. BARNETT V. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED : MAY 20, 2010
TO BE PUBLISHED
of
6;VUyrrMr (~Vurf
2008-SC-000615-MR
JAMES H. BARNETT
V.
ON APPEAL FROM MONTGOMERY CIRCUIT COURT
HONORABLE FRANK A. FLETCHER, SPECIAL JUDGE
NO . 08-CR-00062
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE SCHRODER
AFFIRMING
Appellant James Barnett appeals as a matter of right from a judgment
convicting him of wanton murder and theft. Finding no reversible error, we
affirm Appellant's conviction. We also clarify that under our criminal rules,
jurors must be permitted to use their notes during deliberations.
BACKGROUND
On the morning of June 13, 2007, Jamie Townsend saw Appellant
driving erratically at a high rate of speed in Clay City, Kentucky . Appellant
squealed his tires and pulled into a parking lot where Townsend's daughter
was riding her bicycle. Witnesses saw Appellant drinking something from a
bottle. Appellant later admitted to using Xanax, cocaine, and possibly Percocet
and methadone that morning.
After witnessing Appellant's erratic driving, Townsend called 911, and
Clay City Police Chief Randy Lacy responded . Chief Lacy arrested Appellant on
suspicion of DUI, handcuffing him with his arms in front of his body .
Witnesses testified that Appellant and Chief Lacy knew each other, and that
Appellant was cooperative. Chief Lacy placed Appellant in the back of his
police cruiser, and then went to speak to Townsend and take photographs of
the tire marks Appellant left in the parking lot. At some point while Appellant
was alone in the police cruiser, he reached through an open partition and took
a handgun from the front seat.
While Chief Lacy was driving Appellant to the Powell County Jail in
Stanton, Appellant fired a shot from Chief Lacy's gun. The bullet passed
through the partition and struck Chief Lacy in the head, killing him. The
cruiser went out of control and wrecked. Appellant kicked out the back
window of the cruiser, but was stopped by witnesses as he left the scene.
Appellant did not deny the underlying facts ; his defense was based on
intoxication and mental health issues . The Commonwealth sought the death
penalty based on the aggravating circumstance of Chief Lacy being a police
officer. Due to pretrial publicity and the fact that Chief Lacy was a well-known
and respected member of the community, the Powell Circuit Court granted
change of venue to Montgomery County.
a
After a jury trial, Appellant was found guilty of wanton murder and theft.
The jury found Appellant not guilty of escape and intentional murder . After his
conviction, Appellant agreed to a sentence of life imprisonment without the
possibility of parole for 20 years, to run concurrently with a sentence of 3
years' imprisonment for the theft. He appeals to this Court as a matter of
right, I and raises a number of issues related to his trial.
ANALYSIS
I.
The Jurors Were Properly Permitted To Use Their Notes, And The
Trial Court Did Not Abuse Its Discretion Regarding Review of Trial
Testimony
Appellant argues that the trial court erred in allowing the jurors to use
their notes in deliberations, and in not allowing jurors to review trial testimony.
When the jury retired to begin deliberations, the trial court informed the jurors
that they would not be permitted to take their notes with them to the jury
room. After approximately four hours, the jury returned and the foreperson
requested that the jury be allowed to review the first day of trial testimony. The
jury had a number of specific, factual questions, and according to the
foreperson, different jurors had different questions . The foreperson also stated,
"Our notes would help us out a lot."
During a bench conference, both the Commonwealth and defense
counsel objected to the jurors being permitted to take their notes into the jury
room. Both parties suggested that the jury must be allowed to review any
testimony it wished . After considering the issue, realizing the number of
1 Ky. Const. ยง 110(2)(b) .
specific questions the jury had, and reviewing the law, the trial court: permitted
the jurors to use their notes in deliberations. This was done over the objection
of both parties . The court also gave the jurors the admonition regarding notes
from RCr 9.72. The court did not permit the jury to review the trial testimony,
but stated that it could review specific portions if there were further questions.
The trial judge expressed confusion about whether jurors are permitted
to take their notes into the jury room during deliberations . This confusion was
understandable, given the current state of the law. RCr 9 .72 states:
Upon retiring for deliberation the jury may take all
papers and other things received as evidence in the
case. Thejurors shall be permitted to take into thejury
room during their deliberations any notes they may
have made during the course of the trial, but upon
request of either party the jury shall be admonished
that the notes made by jurors shall not be given any
more weight in deliberation than the memory of other
jurors .
(Emphasis added) .
However, this Court stated in Harper v. Commonwealth:
The trial court allowed jurors to take notes for their
own use but advised the jury that the notes could not
be used to influence other jurors and did not permit
the jurors to take the notes into the jury room. We are
of the opinion this procedure by the trial judge was
proper.
694 S.W.2d 665, 669-70 (Ky. 1985) . The Court in Harper did not make any
reference to RCr 9 .72, which was amended to its current form in 1981 . And no
published case since Harper has discussed RCr 9.72's requirement that jurors
be permitted to take their notes into the jury room. We see no way to reconcile
Harper with the plain language of RCr 9 .72, which is mandatory in permitting
jurors to use their notes during deliberations . Therefore, Harper is overruled to
the extent that it conflicts with the plain wording of RCr 9 .72.
RCr 9.72 clearly states that jurors are permitted to take their notes into
the jury room during deliberations . Upon request of either party, the court is
to admonish the jurors that their notes are not to be given any more weight
than the memories of other jurors. Id. The trial court gave this admonition .
While the trial court initially erred in not permitting the jurors to use their
notes, it later corrected this error.
Whether to allow the jury to have testimony replayed during
deliberations is within the sound discretion of the trial judge. Baze u.
Commonwealth, 965 S.W.2d 817, 825 (Ky. 1997) . See also Thompson u.
Commonwealth, 147 S.W.3d 22, 35 (Ky. 2004) ; Harris u. Commonwealth, 134
S.W. 3d 603, 610 (Ky. 2004) . After the trial court permitted the jurors to use
their notes, there were no further questions about the evidence, and no further
requests to review trial testimony. The court also made it clear that it would
allow review of specific trial testimony if the jury requested it. Under these
circumstances, the trial court did not abuse its discretion in refusing to allow
the jury to review an entire day of trial testimony.
II.
The Trial Court Did Not Abuse Its Discretion In Denying Funds For
Additional Expert Witnesses
Appellant had an extensive history of substance abuse and mental health
issues . On October 12, 2007, the trial court entered an order authorizing
defense counsel to employ Dr. Bobby Miller "as a mental health expert for
evaluation of the defendant and for the preparation and presentation of the
defense as they, in good faith, believe necessary to render effective assistance of
counsel." The order also authorized the payment of reasonable fees to Dr.
Miller.
Dr. Miller's curriculum vitae was made part of the record . He is a board
certified psychiatrist and forensic psychiatrist, who is also board eligible in
neurology. He is licensed to practice medicine in West Virginia, Kentucky, and
Pennsylvania. His clinical specialties include psychopharmacology and
neuropsychiatry. At the time of trial, he was in private practice in Huntington,
West Virginia. Among other previous positions, Dr. Miller had served as an
assistant professor of neurology at West Virginia University School of Medicine.
Dr. Miller was paid for his services, and apparently evaluated Appellant
in November 2007. However, defense counsel did not submit any report by Dr.
Miller, and did not call Dr. Miller as a witness at trial. At a November 12, 2007
hearing, defense counsel stated that its expert (Dr. Miller) was evaluating
Appellant . The Commonwealth stated that, following that evaluation, it would
likely request that Appellant be evaluated at the Kentucky Correctional
Psychiatric Center (KCPC) . As a result of this anticipated delay by the
Commonwealth and the defense, the court continued the January trial date.
On January 23, 2008, the defense gave notice that it would rely on a
mental health defense. In response, the Commonwealth requested that
Appellant be evaluated at KCPC . The trial court entered an order on February
4, 2008 that Appellant be evaluated by KCPC "to determine the Defendant's
mental status at the time of the alleged offense, as well as, the present mental
state of the Defendant."
KCPC staff psychiatrist Dr. Amy Trivette, as well as other KCPC staff,
evaluated Appellant with respect to his competency to stand trial and his
criminal responsibility . Dr. Trivette submitted a report to the court dated April
1, 2008. In her report, she detailed Appellant's extensive history of psychiatric
hospitalization and substance abuse . Dr. Trivette concluded that Appellant
was competent to stand trial, and that he could appreciate the criminality of
his actions and had the ability to conform his conduct to the requirements of
law. Because Appellant reported prior seizures and head trauma, physicians
at KCPC ordered an EEG and a head CT. The head CT revealed "mild to
moderate supratentorial with mild vermian atrophy possibly associated with
chronic alcohol abuse and/or malutrition ." Defense counsel received a copy of
the KCPC report on June 16, 2008.
At a June 18, 2008 pretrial conference, defense counsel made a motion
for a competency hearing. The Commonwealth then requested that Appellant
turn over any reports by Dr. Miller. 2 Defense counsel responded that it had
not yet decided whether Dr. Miller would be called as a witness, and expressed
the possibility of using Dr. Trivette's report and testimony instead.
On July 2, 2008, the court held a hearing to determine Appellant's
competency to stand trial, and to address Appellant's motion to exclude the
death penalty due to mental retardation. Dr. Trivette was the sole witness at
the July 2 hearing. Following her testimony, the trial court ruled that
Appellant was competent to stand trial, but reserved ruling on the motion to
exclude the death penalty pending further testimony scheduled for July 7.
Following the July 7 hearing, defense counsel filed a motion for funds for
two expert witnesses, and for a continuance to allow these experts to be
retained . Appellant sought two additional experts : Dr. James Walker, a
neuropsychologist, to "help explain the results of the CT scan, EEG tests, and
an independent interpretation of the other KCPC tests"; and Dr. Robert Smith,
a clinical psychologist and addiction specialist, to "provide testimony as to the
effect of intoxicants on [Appellant] at the time of arrest" and to "give further
insight following a complete neuropsychological examination as to how
intoxicants would specifically affect [Appellant] ."
The trial court was reluctant to grant a continuance one day before the
trial was scheduled to begin. The court also expressed the opinion that Dr.
Miller, as a medical doctor, could offer testimony on the results of the CT scan
2 At the time, defense counsel had not revealed the identity of its expert. Dr. Miller's
name is used for clarity.
and the effect of drugs on the body. The trial court ultimately denied
Appellant's motions, which Appellant argues was error.
In determining whether an indigent defendant is entitled to funding for
an expert witness under KRS 31 .110(1)(b), a trial court must consider " 1)
whether the request has been pleaded with requisite specificity; and 2) whether
funding for the particularized assistance is "reasonably necessary" ; 3) while
weighing relevant due process considerations ." Benjamin v. Commonwealth,
266 S .W.3d 775, 789 (Ky. 2008) . "Upon review, however, this Court's analysis
is limited to whether the trial court has abused its discretion ." Id. (citing
Davenport v. Commonwealth, 177 S .W.3d 763, 773 (Ky. 2005), and Dillingham
v. Commonwealth, 995 S.W.2d 377, 381 (Ky. 1999)).
Dr. Miller, the expert who had already been provided for the defense, was
a board certified psychiatrist with specialties in psychopharmacology and
neuropsychiatry. The two additional experts requested by Appellant were
psychologists-not medical doctors like Dr. Miller. It seems highly unlikely
that a psychologist would be more qualified to interpret EEG and CT scan
results than Dr. Miller, a medical doctor with a specialty in neuropsychiatry
(who had previously served as an assistant professor of neurology and was
board eligible in neurology) .
We also agree with the trial court that Dr. Miller, as a doctor authorized
to prescribe medication, would be perfectly qualified to testify as an expert
witness regarding drugs and their effect on the body. This is particularly true
given Dr. Miller's specialization in psychopharmacology. In light of Dr. Miller's
qualifications, the trial court did not abuse its discretion in concluding that
additional experts were not reasonably necessary.
Nor was there a violation of Appellant's due process rights . Ake u.
Oklahoma, 470 U.S. 68 (1985), "provides that when the mental state of a
defendant is seriously in question, due process requires a state to provide
access to a competent psychiatrist to assist in evaluation, preparation and
presentation of the defense ." Crawford u. Commonwealth, 824 S.W.2d 847,
850 (Ky . 1992) (internal quotations and citations omitted) . However, a
defendant is not entitled to additional funds to hire additional experts simply
because he is unhappy with the initial expert's conclusions. Id.
Dr. Miller never filed a report with the court, nor did he testify at trial.
We can only assume that Appellant was not satisfied with Dr. Miller's
conclusions. This does not mean that Appellant's due process rights were
violated when the trial court refused to provide him with additional experts.
"[A]ppellant was afforded the constitutionally and statutorily required expert
assistance and, as such, the trial court's refusal to provide additional
examinations or funds did not violate his due process rights ." Id. (citing
Caldwell u. Mississippi, 472 U.S. 320 (1985)) .
The trial court did not abuse its discretion in refusing to grant funds for
additional experts . As this was the reason Appellant requested a continuance,
Appellant's arguments regarding the denial of the continuance are moot.
III.
The Trial Court Did Not Err In Finding Appellant Competent To
Stand Trial, And Any Error Related To The Production Of Testing
Data Was Harmless
Appellant argues that the trial court erred in finding him competent to
stand trial, and in failing to order KCPC raw testing data to be turned over
prior to the competency hearing. The test for a defendant's competency to
stand trial is "whether he has substantial capacity to comprehend the nature
and consequences of the proceeding pending against him and to participate
rationally in his defense ." Commonwealth u. Grfin, 622 S.W.2d 214, 217 (Ky.
1981). See also Wooten u. Commonwealth, 269 S.W.3d 857, 865 (Ky. 2008) ;
RCr 8.06; KRS 504. 100 .
After Appellant was evaluated by KCPC, defense counsel filed a motion
for discovery of KCPC test materials and results on June 26, 2008 . On July 2,
2008, the court held a hearing to determine whether Appellant was competent
to stand trial. Dr. Trivette was the only witness at the competency hearing .
She testified that Appellant appreciated the seriousness and consequences of
the charges, and that she believed he was capable of participating in his
defense. Her uncontroverted testimony was that Appellant was competent to
stand trial. Following Dr. Trivette's testimony, the trial court entered a finding
that Appellant was competent.
Defense counsel then stated that it would like to present additional
evidence of Appellant's mental retardation in support of Appellant's motion to
exclude the death penalty. The trial court scheduled a hearing for July 7,
2008, so that Appellant's sisters could testify to Appellant's developmental
disabilities . At the July 2 hearing, the court also granted defense counsel
access to the KCPC test materials and data.
In support of his argument that he was incompetent to stand trial,
Appellant points to IQ tests, testimony by his sisters regarding his slow
development, and evidence of his difficulty with daily living. While this
evidence is certainly relevant to the issue of possible mental retardation, it has
little relation to the issue of Appellant's competency to stand trial. The
question of Appellant's mental retardation was relevant to the exclusion of the
death penalty. Because Appellant did not receive the death penalty, that issue
is moot.
Dr. Trivette's uncontroverted testimony established that Appellant had
the capacity to understand the nature and consequences of proceedings
against him, and to participate rationally in his own defense. Therefore, in
light of the evidence, we cannot say that the trial court abused its discretion, or
made a clearly erroneous finding of fact. See Wooten 269 S.W.3d at 865 .
With regard to the KCPC data, Appellant's motion requested this data for
cross-examination of Dr. Trivette regarding malingering on IQ tests, and for
possible mitigation during the penalty phase of the trial. Therefore, the KCPC
data had little relation to the issue of Appellant's competency to stand trial,
and the judgment of competency was not substantially swayed by any possible
error. See Winstead u. Commonwealth, 283 S.W.3d 678, 688-89 (Ky. 2009).
Therefore, any error in not providing the data sooner was harmless . Id.
IV.
No Reversible Error Occurred With Respect To The Testimony of
Amanda Hara
Appellant called Amanda Hara, a television news reporter who
interviewed Appellant the day after Chief Lacy's death, to testify about her
observations . During Hara's interview with Appellant, she apparently stated,
"It seems like you're coming down off of something right now," and "You would
not have done something like this if you weren't under the influence of drugs."
During Hara's testimony, the Commonwealth objected when defense counsel
began to repeat Hara's statements from the interview to her. The trial court
sustained the objection.
Appellant argues that Hara's statements and her opinion regarding
Appellant's intoxication should have been admitted . Appellant's argument
conflates Hara's earlier (hearsay) statements that expressed an opinion about
Appellant's intoxication with the concept of a witness offering an opinion on
intoxication at trial. Appellant is correct that "[i)n Kentucky, a lay witness may
testify on the basis of observation and appearance that another person was
intoxicated at a given point in time." Motorists Mut. Ins. Co. v. Glass, 996
S.W.2d 437, 446 n.14 (Ky. 1997) .
However, it is not entirely clear that there was an attempt to ask Hara
her lay opinion of Appellant's intoxication . The day before Hara testified, the
trial court stated that Hara could not offer an opinion, but could testify to what
3
Defense counsel proffered what Hara would testify to, but no video or transcript of
the interview was introduced as an avowal exhibit.
13
she observed. Defense counsel never asked Hara her opinion of Appellant's
intoxication, but instead attempted to introduce her prior statements.
Assuming the trial court prevented Hara from testifying as to her lay opinion of
Appellant's intoxication, this was error, but it was harmless . There was a great
deal of evidence presented that Appellant was intoxicated at the time of the
murder. Therefore, we can say with fair assurance that this error did not
substantially sway the judgment . Winstead, 283 S.W.3d at 688-89 .
We now turn to the question of whether the trial court abused its
discretion in excluding Hara's earlier statements. See Brewer v.
Commonwealth, 206 S.W.3d 313, 320 (Ky. 2006). Hara's prior statements were
unquestionably hearsay. Appellant argues that the trial court should have
admitted Hara's statements as a recorded recollection under KRE 803(5) .
However, for a hearsay statement to be admissible as a recorded recollection, it
must first be established that the witness has insufficient recollection to testify
without the recording. See Fields v. Commonwealth, 12 S.W.3d 275, 280 (Ky.
2000) . It is also unclear what record Appellant intended to use, given that
defense counsel was repeating the statements back to Hara.
Appellant also argues that Hara's statements were admissible as a
present sense impression under KRE 803(1) . However, this argument was
never made to the trial court, and is not properly preserved for our review. See
Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976) . Nor do we believe
that any improper exclusion of Hara's statements rises to the level of palpable
error under RCr 10.26.4
V.
A Witness's Statement That Appellant Had Been In Trouble Before
Did Not Warrant A Mistrial
During its case-in-chief, the Commonwealth called Garland Lacy, the
victim's brother, to testify. Garland Lacy was employed with the Powell County
Sheriff as a bailiff. During direct examination, the prosecutor asked Lacy if he
knew Appellant. Lacy responded, "I really didn't. I understand that he had
been in court some and in trouble some but I didn't . . . ."
Appellant objected, and moved for a mistrial. The prosecutor responded
that he did not expect Lacy to give that answer, expecting him instead to
simply state that he knew Appellant from the community. The prosecutor
requested that the court admonish the jury to disregard the statement. The
trial court denied Appellant's motion for a mistrial, but admonished the jury to
disregard Lacy's last statement.
Appellant argues that he was entitled to a mistrial based on Lacy's
statement. It is undisputed that the statement was inadmissible evidence of
prior bad acts under KRE 404(b) . The question is whether the trial court's
admonition was sufficient to cure the error. "A jury is presumed to follow an
admonition to disregard evidence and the admonition thus cures any error ."
Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003) (citing Mills v.
Commonwealth, 996 S.W.2d 473, 485 (Ky. 1999) .
4 In his reply brief, Appellant has requested palpable error review of several
unpreserved issues.
15
There are only two circumstances in which the
presumptive efficacy of an admonition falters : (1) when
there is an overwhelming probability that the jury will
be unable to follow the court's admonition and there is
a strong likelihood that the effect of the inadmissible
evidence would be devastating to the defendant, or (2)
when the question was asked without a factual basis
and was "inflammatory" or "highly prejudicial."
Johnson, 105 S.W.3d at 441 (emphasis original) (internal citations omitted).
Lacy's statement was isolated and ambiguous. It did not refer to any
specific act by Appellant. There is simply no reason to believe the jury was
unable to follow the trial court's admonition . Further, Lacy's statement was an
unexpected response to an innocuous question by the prosecutor. The trial
court's admonition cured the error.
VI.
There Was No Reversible Error Stemming From Appellant's Request
For Production Of The Victim's KASPER Data Or From The
Testimony Of The Victim's Physician
Prior to trial, Appellant filed a motion for discovery of a complete
KASPER5 report on the victim Randy Lacy, showing all controlled substances
Chief Lacy legally obtained since 2007. The medical examiner's report revealed
that Chief Lacy had hydrocodone and other drugs in his system at the time of
his death. Appellant sought production of Chief Lacy's KASPER report to
determine whether these drugs had been prescribed, which Appellant argued
could be relevant in mitigation of punishment.
Appellant never obtained a ruling on his motion for discovery; therefore,
the issue is not properly preserved for review by this Court. See Brown u.
5 Kentucky All-Schedule Prescription Electronic Reporting.
16
Commonwealth, 890 S.W.2d 286, 290 (Ky. 1994) . Rather, defense counsel
conceded that the KASPER data was not relevant to Appellant's guilt or
innocence, but only relevant in mitigation of punishment . The issue of
mitigation became moot when Appellant agreed to a sentence .
Nor do we find any palpable error. This Court recently held that a
criminal defendant's constitutional right to exculpatory information must
prevail over statutes and rules preventing disclosure of KASPER data, provided
the defendant makes a showing that the data does in fact contain exculpatory
information. Commonwealth, Cabinetfor Health & Family Serv. v. Bartlett,
S.W.3d
, No. 2008-SC-000508-MR, 2010 WL 997374, at *3 (Ky. Mar. 18,
2010) (establishing for KASPER data the procedure outlined in Commonwealth
v. Barroso, 122 S.W .3d 554 (Ky. 2003)) . Appellant made no showing that Chief
Lacy's KASPER data contained exculpatory information.
Because Appellant was not granted access to Chief Lacy's KASPER data,
he alleges error in Dr. Julie Keenon, one of Appellant's physicians, being
permitted to testify. Appellant elicited on cross-examination of the medical
examiner that Chief Lacy had hydrocodone in his system at the time of his
death. In response, the Commonwealth called Dr. Keenon to testify that the
medications found in Chief Lacy's system after his death had been prescribed
to him. Dr. Keenon testified only after Appellant had opened the door
regarding Chief Lacy's medications. In addition, defense counsel was permitted
to inspect all of Dr. Keenon's medical records on Chief Lacy prior to her
testifying. There was no error.
VII .
The Trial Court Did Not Abuse Its Discretion In Permitting Blaze
Tomlin To Be Cross-Examined Regarding Possible Motive For Bias
During his case-in-chief, Appellant called Blaze Tomlin, an attorney with
the Department of Public Advocacy (DPA), who was assigned to speak to
Appellant when he was taken to the hospital just after his arrest. Tomlin
testified to Appellant's state of extreme intoxication .
Early in the Commonwealth's cross-examination, the prosecutor asked a
number of questions about Tomlin's background.
Prosecutor:
Where did you complete your legal
education?
Tomlin:
Ohio Northern University
Prosecutor:
Are you a native of Ohio?
Tomlin:
I am. Southern Ohio .
Prosecutor:
How long have you lived in
Kentucky?
Tomlin:
Five and a half years .
Prosecutor:
Did you come to Kentucky to join
the Department of Public Advocacy?
Tomlin:
No, sir.
Prosecutor:
Have you worked as an attorney for
any law firm for yourself or in any
capacity other than the Department
of Public Advocacy?
Prosecutor :
You're a full-time employee of the
Department of Public Advocacy, the
same as Mr. Jones [Appellant's
attorney]?
Appellant raises two objections to the Commonwealth's questions: that
the questions about Tomlin's background were irrelevant, and that Appellant
was prejudiced when his attorney was revealed to be a public defender. We
review a trial court's evidentiary rulings for an abuse of discretion, i.e . "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) .
The credibility of a witness is always at issue . Commonwealth v. Maddox,
955 S.W.2d 718, 721 (Ky. 1997) ; KRE 611(b) ("A witness may be crossexamined on any matter relevant to any issue in the case, including
credibility.") The trial court also maintains broad discretion to regulate crossexamination. Maddox, 955 S.W.2d at 721 .
The fact that Tomlin and Appellant's attorney both worked for the
Department of Public Advocacy was relevant to Tomlin's credibility, as it
showed a possible motive for bias. As the trial court pointed out, if a witness
worked at the same law firm as an attorney in the case, this would be a
relevant subject for cross-examination .
The Commonwealth's questions about Tomlin's background, we believe,
were intended to demonstrate that Tomlin had moved to Kentucky to work for
DPA, and thus to show a possible motive for bias. The questions, however,
could have been phrased differently, and it is concerning that the
Commonwealth attempted to portray Tomlin-in the words of defense
counsel-as a "foreigner ." However, we cannot say that the trial court abused
its discretion in allowing the questions, which were relevant to the issue of
possible bias .
Nor do we believe there was any identifiable prejudice to Appellant
resulting from his attorney being "unmasked" as a public defender. There is
nothing inherently prejudicial about having an attorney who is a public
defender. The probative value of Appellant's counsel and Tomlin being
employed by the same agency is not substantially outweighed by the danger of
undue prejudice . KRE 403 . The trial court did not abuse its discretion .
VIII. Issues Related To The Testimony Of Appellant's Wife Are Not
Preserved
Appellant argues that the trial court erred in failing to admit the
testimony of Appellant's wife Roberta Barnett regarding statements Appellant
made the morning of the murder. Mrs. Barnett began to testify that Appellant
said, "I love you; I'll be right back," and that he said he was going to run
somewhere. At this point, her testimony was cut off by the Commonwealth
objecting to the hearsay. However, before the trial court could rule on the
objection, defense counsel instructed Mrs . Barnett that she could not testify as
to what anyone said.
While Appellant argues that the statements were either not hearsay or
were admissible under a hearsay exception, it is clear that the issue is not
preserved . The trial court never had an opportunity to rule; therefore, the
court could not have erred. Nor does the failure to allow this testimony rise to
the level of palpable error under RCr 10.26.
CONCLUSION
For the forgoing reasons, the judgment of the Montgomery Circuit Court
is hereby affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Kathleen Kallaher Schmidt
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601-1109
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
Jason Bradley Moore
Assistant Attorney General
Office of Criminal Appeals
Attorney General's Office
1024 Capital Center Drive
Frankfort, KY 40601-8204
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.