BRUCE E. HARTLEY V. COMMONWEALTH OF KENTUCKYAnnotate this Case
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RENDERED : MAY 19, 2011
NOT TO BE PUBLISHED
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BRUCE E . HARTLEY
ON APPEAL FROM ESTILL CIRCUIT COURT
HONORABLE THOMAS P. JONES, JUDGE
NO . 08-CR-00012-001
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT
Appellant Bruce Hartley appeals from a judgment of the Estill Circuit
Court convicting him of wanton murder, first-degree wanton endangerment,
and tampering with physical evidence . The jury recommended, and the trial
court imposed, a total sentence of 30 years' imprisonment (two 5-year
sentences running concurrently with a 30-year sentence) . Appellant therefore
appeals to this Court as a matter of right. Ky. Const. § 110(2)(b) .
Appellant argues that the trial court erred in failing to give jury
instructions on imperfect self-defense, protection of property, and seconddegree wanton endangerment ; excluding evidence of Appellant's offer to take a
polygraph examination; and not permitting defense counsel to conduct voir dire
as to the penalty ranges for lesser-included offenses . Finding no reversible
error, we affirm.
Appellant was disabled and had become dependent on prescription pain
pills . This was known in the community, and Appellant had experienced
numerous thefts . On January 5, 2008, 25-year-old Angel Riddell called
Appellant several times, asking him if she could come to his house . Angel went
to Appellant's house with 34-year-old Brenda Davenport. Brenda testified at
trial that she and Angel were going to Appellant's home to get money from him.
In a 911 call, Brenda would state that Angel had tried to rob Appellant .
Brenda and Angel arrived at Appellant's residence in a van at
approximately 6 p .m ., which was dusk . Brenda was driving, and she parked
the van with the passenger side facing closest to Appellant's house . Angel
exited the vehicle, while Brenda remained .
Appellant's ex-wife Victoria Hartley and his friend Phillip Abney' were
present, sitting in the living room talking when Angel arrived . According to
Victoria, Angel and Appellant walked toward the kitchen, and then back out of
the house . Victoria testified that Appellant did not appear to be upset.
Brenda testified that Appellant and Angel talked for a few moments on
the front porch, without there appearing to be anything wrong. Angel then
walked to the van, and Appellant walked about halfway . Angel opened the
passenger door, sat on the edge of the seat without closing the door, and told
Brenda to drive off, because Appellant had accused her of stealing money.
1 Phillip Abney was indicted for tampering with physical evidence, complicity to firstdegree robbery, and first-degree hindering prosecution . However, Abney died of a
blood clot in July 2009 before the charges could be resolved .
Brenda glanced at Appellant, saw that he had a pistol, and told Angel to give
back any money she had taken. Angel walked to Appellant and handed him
cash that was rolled up in her hand .
Angel and Appellant talked for a few moments longer. When Angel
returned to the van, she told Brenda that Appellant had accused her of having
more of his money. Brenda saw Appellant reach for his gun, and she drove
away. Appellant began firing, and the back glass of the van shattered . Brenda
accelerated and continued to drive away. It was at this point that she realized
Angel had been shot. Shortly thereafter, Angel lost consciousness .
Victoria testified that she heard gunshots and tires spinning. Appellant,
who was picking money up off the ground ; said, "They just robbed me ."
Appellant and Phillip Abney pursued the two women in a truck. Brenda
testified that she pulled over, telling Phillip and Appellant that Angel had been
shot and needed medical attention . Appellant said that he did not care, and
that he wanted his money. Brenda found two $20 bills in Angel's bra strap,
which she gave to Phillip . Phillip then told Brenda to go .
Brenda stopped at a house for help . The woman who lived there, Bonnie
Abney, went to get her stepdaughter Teresa Neely, who lived behind her and
was a nurse . Teresa's husband Roy stayed with Brenda Davenport, and
Brenda called 911 . This 911 call would be played for the jury. Meanwhile,
Bonnie Abney drove Angel to the hospital, while Teresa Neely worked on her.
They arrived at the hospital at 6 :56 p.m., and Angel Riddell was pronounced
dead at 7 :09 p.m. She had suffered a gunshot wound to the left upper back;
the bullet had traveled through the back of the van's passenger seat.
While this was occurring, Phillip Abney and Appellant returned to
Appellant's home . Victoria testified that the two men, using a flashlight, picked
up shell casings from the driveway. Fearing retaliation, the men then fled to
The next day, Appellant returned to Kentucky to turn himself in to
police . Kentucky State Police Detectives Bill Collins and Brian Reeder took
Appellant to the Mountain Parkway, where Appellant said he had thrown his
gun . Though the weapon was never recovered, Appellant spoke freely with the
detectives as they drove, after the detectives had readvised Appellant of his
Miranda rights . Appellant did not testify at trial, but his recorded conversation
with the detectives was played for the jury.
In the recording, Appellant offered a slightly different version of events
than the witnesses at trial. He said that Angel had called him, wanting to "get
laid ." Appellant declined, because his ex-wife was at his house . Angel arrived
anyway, and asked to use the restroom . Appellant said he caught Angel
stealing his pills. As they left the house and neared the van, Angel told
Appellant that the "sights are on you." She repeated this several times, and
Appellant took this to mean that Brenda or someone else had a gun. Angel
demanded money from Appellant. As the van drove off, Appellant stated that
he fired at the tires . Appellant said he had used a 9 mm Glock pistol. He
explained that, while he was a good shot with most weapons, the Glock was too
big for his hands .
The jury found Appellant guilty of wanton murder of Angel Riddell, firstdegree wanton endangerment of Brenda Davenport, and tampering with
physical evidence for removing the shell casings . The trial court imposed a 30
year sentence, consistent with the jury's recommendation, and this appeal
II. JURY INSTRUCTIONS
The trial court and the attorneys spent a substantial amount of time in
the judge's chambers preparing jury instructions. As to Count 1, the jury was
instructed on murder (intentional and wanton), first-degree manslaughter,
second-degree manslaughter, and reckless homicide. The jury was also
instructed on self-protection under Count 1 . As to Count 2, the jury was
instructed on first-degree wanton endangerment and self-protection . As to
Count 3, the jury was instructed on tampering with physical evidence.
Appellant argues that the trial court erred in failing to give instructions
on imperfect self-defense (for Count 1 and Count 2), protection of property (for
Count 1 and Count 2), and second-degree wanton endangerment (for Count 2) .
Pursuant to RCr 9 .54(2),
No party may assign as error the giving or the failure
to give an instruction unless the party's position has
been fairly and adequately presented to the trial judge
by an offered instruction or by motion, or unless the
party makes objection before the court instructs the
jury, stating specifically the matter to which the party
objects and the ground or grounds of the objection .
For those alleged errors that this Court finds to be unpreserved,
Appellant requests review for palpable error under RCr 10 .26.
Under RCr 10 .26, an unpreserved error may be
reviewed on appeal if the error is "palpable" and
"affects the substantial rights of a party." Even then,
relief is appropriate only "upon a determination that
manifest injustice has resulted from the error ." Id. An
error is "palpable," only if it is clear or plain under
current law. Brewer v. Commonwealth, 206 S .W.3d
343 (Ky. 2006) . Generally, a palpable error "affects the
substantial rights of a party" only if "it is more likely
than ordinary error to have affected the judgment ."
Ernst v. Commonwealth, 160 S .W.3d 744, 762 (Ky.
2005) . We note that an unpreserved error that is both
palpable and prejudicial, still does not justify relief
unless the reviewing court further determines that it
has resulted in a manifest injustice ; in other words,
unless the error so seriously affected the fairness,
integrity, or public reputation of the proceeding as to
be "shocking or jurisprudentially intolerable ." Martin
v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006) .
Miller v. Commonwealth, 283 S .W.3d 690, 695 (Ky. 2009) .
A. Imperfect Self-Defense
Appellant argues that the trial court erred in failing to instruct the jury
on imperfect self-defense . This issue is not properly preserved . As the parties
prepared jury instructions in this case, there was some discussion of the model
imperfect self-defense instruction found in Commonwealth v. Hager, 41 S.W .3d
828 (Ky. 2001) . However, defense counsel never specifically requested that
imperfect self-defense be included in the jury instructions.
Upon review for palpable error under RCr 10.26, we conclude that the
lack of an imperfect self-defense instruction did not affect Appellant's
substantial rights, nor did it result in manifest injustice . The doctrine of
imperfect self-defense, found in KRS 503 .050 and KRS 503 .120, limits the
effect of a defendant's subjective belief in the need to use physical force when
that belief is wantonly or recklessly held. Elliott v. Commonwealth, 976 S .W.2d
416, 420 (Ky. 1998) . The result is that the defendant is not acquitted, but
rather guilty of "a lesser offense for which wantonness or recklessness is the
culpable mental state, i.e., second-degree manslaughter or reckless homicide."
In Hager, this Court provided specimen recommended jury instructions
for imperfect self-defense, providing that a jury should first be instructed on
self-protection . 41 S .W.3d at 846. The self-protection instructions in the
instant case complied with Hager, stating that Appellant was privileged to use
physical force if "he believed that Angel Riddell and/or Brenda Davenport" was
"then and there about to use physical force upon him," but providing that
Appellant was only privileged to use deadly physical force if he believed it
necessary to protect himself from serious physical injury.
Hager then provided the specimen jury instruction for imperfect selfdefense, which applies only if the jury "believe[s] from the evidence beyond a
reasonable doubt that the Defendant was mistaken in his belief that it was
necessary to use physical force . . . ." Id. Thus, the jury must first find that a
defendant believed it was necessary to use physical force before it can reach
the question of whether that belief was wantonly or recklessly held.
Imperfect self-defense is a limitation on the usual self-defense
instruction . In other words, if a jury finds that the elements of self-defense are
met, it would normally acquit the defendant of that charge . However, when a
jury proceeds to find that the self-defense was imperfect (i.e ., that the
defendant's belief in the need for self-defense was wantonly or recklessly held),
it does not acquit the defendant, but rather finds him guilty of a lesser offense,
i.e ., second-degree manslaughter or reckless homicide. In the instant case, the
jury, after being properly instructed on self-defense, rejected Appellant's selfdefense argument outright when it convicted him of wanton murder and firstdegree wanton endangerment . Therefore, Appellant suffered no manifest
injustice and no palpable error when the jury was not instructed on imperfect
B. Protection of Property
Appellant argues he was entitled to an instruction on protection of
property, pursuant to KRS 503.080. This argument is not properly preserved .
Defense counsel argued for an instruction on the use of physical force to
protect property, pursuant to KRS 503.080(l) . The trial court denied the
request, because KRS 503 .080(1) deals with non-deadly physical force.
Defense counsel began to discuss KRS 503 .080(2), which deals with deadly
force, but never specifically requested such an instruction . We therefore review
for palpable error under RCr 10.26.
We conclude that no palpable error resulted from the jury not being
instructed on protection of property. A defendant may use physical force to
prevent a robbery "upon real property in his possession . . . ." KRS
503 A defendant may also use physical force to prevent "[t]heft,
criminal mischief, or any trespassory taking of tangible, movable property in
his possession . . . ." KRS 503 .080(1)(b) . However, a defendant is justified in
protecting property using deadly physical force only in defense of a dwelling.
See KRS 503.080(2) .
Appellant used deadly physical force when he fired a gun. He did so in
his front yard as Angel Riddell and Brenda Davenport drove away. He did not
use deadly physical force to protect a dwelling under any of the circumstances
allowed under KRS 503 .080(2) . "An error is `palpable,' only if it is clear or plain
under current law." Miller, 283 S .W.3d at 695 (citing Brewer, 206 S .W.3d 343) .
No palpable error occurred, because the victims were in a vehicle, driving away
from the scene when Appellant shot. This clearly shows that Appellant was not
attempting to protect private property .
C. Second-Degree Wanton Endangerment
Appellant argues the trial court erred in not instructing the jury on
second-degree wanton endangerment as a lesser-included offense of firstdegree wanton endangerment . This argument was not properly preserved .
Defense counsel suggested that there should be a lesser-included offense
available that reflected a reckless mental state, which resulted in a brief
discussion of the elements of second-degree wanton endangerment . However,
defense counsel never requested a second-degree wanton endangerment
instruction . We therefore review for palpable error under RCr 10 .26 .
There are two differences between first-degree (KRS 508 .060) and
second-degree (KRS 508 .070) wanton endangerment .
The higher degree requires that the conduct be wanton
indifference to the value of human life while the lower
degree requires only that the conduct be wanton. The
higher degree requires conduct which creates a
substantial danger of death or serious physical injury
while the lower degree is satisfied by conduct which
only creates a substantial danger of physical injury.
Combs v. Commonwealth, 652
S .W.2d 859, 860-61 (Ky. 1983) . A first-degree
wanton endangerment conviction requires the same mental state as a
conviction for wanton murder, while second-degree wanton endangerment
shares the same mental state as second-degree manslaughter . Appellant
properly received an instruction on second-degree manslaughter as to Angel
Riddell . And, had Appellant properly requested it, the evidence in this case
would have supported an instruction on second-degree wanton endangerment
as to Brenda Davenport.
However, Appellant suffered no manifest injustice in not receiving a
second-degree wanton endangerment instruction . The jury, presented with the
full range of possible mental states as to the offense against Angel Riddell,
convicted Appellant of wanton murder. Wanton murder shares the same
mental state as first-degree wanton endangerment, and the jury convicted
Appellant of first-degree wanton endangerment of Brenda Davenport. Both of
these crimes were the result of a single act, i .e ., firing at the van driven by
Brenda Davenport . Therefore, both crimes would share the same mental state.
The jury found the same mental state as to both crimes. Therefore, under the
circumstances of this case, no manifest injustice resulted from the jury not
being instructed on second-degree wanton endangerment . Thus, there was no
palpable error .
III. EVIDENCE OF APPELLANT'S OFFER TO TAKE
A POLYGRAPH EXAMINATION
As stated previously, the jury heard an audio recording of Appellant's
statement to police . During the course of that statement, in support of
Appellant's versions of events, he offered to take a "lie detector test ." Later, the
prosecutor informed the court that he felt he had been negligent in allowing
this mention of a polygraph examination to be played for the jury. The
Commonwealth requested that the statement be redacted from the audio
recording, 2 and that the jury be admonished to disregard the mention of a lie
detector test. Defense counsel objected, arguing that, while polygraph
examinations are of no evidentiary value in Kentucky courts, Appellant's offer
to take a lie detector test was not meaningless ; therefore, the defense should be
able to argue this point to the jury to show that Appellant was credible .
The trial court admonished the jury:
Mr. Hartley had mentioned on his taped statement
that you heard, he offered to take a lie detector test.
2 It is unclear whether the statement was redacted in the audio recording made
available to the jury . The statement was not redacted from the audio recording that
is part of the record on appeal.
And Kentucky law does not permit the use of lie
detector tests in courtrooms, so you're not to consider
that evidence in this case . You are admonished to
disregard it entirely and put it out of your mind. You
are to try the case just on the evidence that you hear
that's competent evidence. That's not any competent
evidence . Disregard that entirely . Kentucky law does
not consider that to be of any value .
Appellant argues that the trial court erred in not permitting defense
counsel to argue to the jury that an offer to take a polygraph examination had
value, and in admonishing the jury that a polygraph is not competent evidence
and is not of any value . We conclude that no error occurred.
This Court "has held repeatedly and consistently" that polygraph
evidence is inadmissible, including "mention of the taking of a polygraph, the
purpose of which is to bolster the claim of credibility or lack of credibility of a
particular witness or defendant ." Ice v. Commonwealth, 667 S .W .2d 671, 675
(Ky. 1984) (citing cases so holding) . See also Morgan v. Commonwealth, 809
S .W .2d 704, 706 (Ky. 1991) . The trial court's admonition was a correct
statement of Kentucky law. Therefore, there was no error.
Further, in Davis v. Commonwealth, this Court held that it was proper
for a defendant to be prohibited from inquiring further after a witness for the
Commonwealth made a passing reference to the fact that the defendant had
taken a lie detector test. 795 S.W .2d 942, 949 (Ky. 1990) . This is analogous to
the situation in the instant case, where the Commonwealth neglected to redact
Appellant's mention of a lie detector test. There was no error in prohibiting
Appellant from further developing this issue.
Finally, the cases cited by Appellant are inapposite . In Rogers v.
Commonwealth, 86 S .W.3d 29 (Ky. 2002) and Commonwealth v. Hall, 14
S.W.3d 30 (Ky . App. 1999), this Court and the Court of Appeals allowed
discussion of polygraph examinations, but only to vindicate the defendants'
rights to explain the circumstances of their confessions . See Crane v.
Kentucky, 476 U .S . 683 (1986) . Appellant sought to use his offer to bolster his
credibility . No error occurred with respect to the trial court's exclusion of
further evidence, nor in its admonition to the jury.
IV. VOIR DIRE AS TO PENALTY RANGE FOR
During voir dire, the Commonwealth told potential jurors that the
penalty range for murder was 20 years' to 50 years' imprisonment, or life .
When defense counsel conducted voir dire, he told the potential jurors that
they had not heard the penalty ranges for - first- or second-degree
manslaughter, nor for reckless homicide. After an objection by the
Commonwealth, the trial court, pursuant to Lawson v. Commonwealth, 53
S.W .3d 534 (Ky. 2001), did not permit defense counsel to discuss penalty
ranges for lesser-included offenses .
Appellant argues that this Court should reconsider Lawson, which limits
voir dire on the possible range of penalties to a discussion of the penalty range
for the indicted offense . Id. at 544 . We see no compelling reason to reconsider
Lawson, and decline the invitation to do so.
For the foregoing reasons, the judgment of the Estill Circuit Court is
Abramson, Noble, Schroder, and Venters, JJ., concur. Minton, C .J .,
concurs in result only without separate opinion . Scott, J., concurs in result
only by separate opinion in which Cunningham, J ., joins .
SCOTT, J ., CONCURRING IN RESULT ONLY: Although I concur with the
majority's result, I believe it is appropriate for the parties to voir dire the jury
on the possible range of penalties for lesser included offenses aptly supported
by evidence in the case. Cunningham, J., joins .
COUNSEL FOR APPELLANT :
Emily Holt Rhorer
Department of Public Advocacy
100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Bryan Darwin Morrow
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601